Pampolina Notes_Avena Civil Procedure Reviewer

January 30, 2018 | Author: cmv mendoza | Category: Jurisdiction, Judiciaries, Supreme Courts, Appeal, Certiorari
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AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines. (Article 8, Civil Code) No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law. (Article 9, Civil Code)

CIVIL PROCEDURE REVIEWER PROFESSOR VICTORIA A. AVENA I. Introductory Concepts

B. Constitutional Protections

II. Judicial Power

1. Constitutional Status

A. Nature and Scope of Judicial Power 1. 1987 Philippine Constitution Actual Controversy and Judicial Review. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice 1. To settle actual controversies involving rights which are legally demandable and enforceable, and 2. To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Article VIII, Section 1, 1987 Constitution)

Declaratory Relief

Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. An action for the reformation of an instrument, to quite title to real property or remover cloud therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule. (Rule 63, Sec. 1)

Presidential and Vice Presidential Elections

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose. (Article VII, Section 4, paragraph 7, 1987 Constitution)

Martial Law and Suspension of Writ of Habeas Corpus The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Article VII, Section 18, Paragraph 3, 1987 Constitution)

2. Statutory Basis of Judicial Review

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Article 7, Paragraph 2-3, Civil Code)

3. Judicial Legislation

The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members. (Article VIII, Section 2, 1987 Constitution) The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. (Article VIII, Section 5, 1987 Constitution) The Supreme Court shall have administrative supervision over all courts and the personnel thereof. (Article VIII, Section 6, 1987 Constitution)

2. Statutory Increase of Appellate Jurisdiction

No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. (Article VII, Section 30, 1987 Constitution)

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Avena Notes Preliminary Considerations (11 Nov 04) What is Jurisdiction? Jurisdiction is the power of the courts to hear and entertain action or proceedings and to render a judgment therein that binds the parties to the action or proceedings. It pertains to the authority to decide cases submitted before a court of law. How about quasi-judicial bodies? Quasi-judicial bodies perform duties and decide cases similar to courts. They decide the rights and obligations of the persons and settle disputes submitted before them. How is jurisdiction created? Jurisdiction is conferred by law. The jurisdiction of the lower courts is defined under the Judiciary Reorganization Act of 1980 (BP 129, which took effect on August 14, 1981). The jurisdiction of the Supreme Court is defined under the 1987 Constitution. (Article VIII, Section 5). May the parties stipulate or agree on a court’s jurisdiction? No. What is judicial power? Is jurisdiction part of judicial power? Judicial power is the power to hear and settle disputes. Although the definition of judicial power is not clearly spelled out in the law, Prof. Avena is of the belief that the concept of judicial power was developed throughout the history of American and English laws, to which our legal system owes a lot through colonization by the US. In the US, jurisdiction was defined by experience, in that there must be a body or entity with the power to decide a case. Jurisdiction is part of judicial power. Original jurisdiction is when a court takes cognizance of a case at the first instance, which is why the RTC where formerly called the Courts of First Instance (or in the words of Prof. Avena – korte ng unang dulog). Appellate jurisdiction is the power of a court to review the final orders or decisions of a lower court. Trace the development of jurisdiction through the laws and statutes governing it. Judiciary Act of 1948 (RA 296) => Judiciary Reorganization Act of 1980 (BP 129) => Amending Certain Sections of the Judiciary Reorganization Act of 1980 (EO 33) => (RA 7902)

What are specialized courts? Specific or limited courts are courts whose jurisdiction was specifically limited by law to certain classes of actions like cases involving juveniles or landlord-tenant relations. The specialized courts included the Juvenile and Domestic Relations Court, Court of Agrarian Relations and Circuit Criminal Court. These courts have been abolished and the jurisdiction of the cases, which they could take cognizance of have been transferred to the Regional Trial Court. What courts have general jurisdiction? The municipal courts, Regional Trial courts, Court of Appeals and the Supreme Court are courts of general jurisdiction. Although the law imposes limits on the jurisdiction of courts, they are still considered courts of general jurisdiction and not specialized courts as specialized courts pertain to limits due to the subject matter of the action and not to procedural matters. Are a civil action, civil case, and civil suit the same in our jurisdiction? Yes, these terms are used interchangeably. The distinction was used in American jurisprudence in relation to distinguishing courts of law and courts of equity. Regional Trial Courts pertain to territorial jurisdiction or judicial regions. There are currently 13 judicial regions, including among them the Metropolitan Manila Judicial Region. Although the Regional Trial Courts exercise the same powers in terms of jurisdiction, the scope of their jurisdiction is limited to their judicial regions. A QC RTC cannot issue an ejectment order to be executed in Davao. Avena Notes (13 Nov 04) How many constitutional courts do we have? The 1987 Constitution expressly created only one court, the Supreme Court. The Sandiganbayan is a constitutionally mandated court. All other courts in the Philippines are statutory courts or courts created by law. How do we determine subject-matter jurisdiction? Jurisdiction is determined by law. However, a court acquires jurisdiction over an action by going to the allegations in the pleadings. If the allegations in the pleadings are sufficient that they pass the requisites predetermined by law, then the proper court shall take cognizance of the action. Subject matter jurisdiction is defined by the law but in a pleading, the necessary elements must be alleged in order for the court to exercise jurisdiction. What is evidence aliunde?

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Evidence aliunde is evidence from outside or from another source. It is the evidence drawn from sources exterior to the written instrument, in the case of civil action, sources apart from the pleading itself. When can a motion to dismiss for lack of jurisdiction be raised? A motion to dismiss for lack of jurisdiction of the court can be raised at any time except that in cases where estoppel by laches applies, the Supreme Court has held that lack of jurisdiction may be overlooked and the action prospers in the interest of justice. Tijam v. Sibonghay FACTS: Tijam filed an action to recover P1,908 bond from the Manila Surety Corporation. Although the case should have been filed with the Municipal Trial Court, the plaintiff filed it with the Regional Trial Court. The defendant, Manila Surety Corporation, did not object to the jurisdiction of the Municipal Trial Court despite the amount of the claim. When the RTC rendered a decision in favor of Manila Surety, Tijam filed an appeal with the CA. In the CA, the RTC’s decision in favor of Manila Surety was reversed and ordered Manila Surety to pay Tijam. Manila Surety appealed to the Supreme Court saying that the original decision of the RTC should be declared void for it lacked jurisdiction. In short, Manila Surety wanted to reverse the original decision in the RTC because of the unfavorable decision it got in the Court of Appeals. HELD: Jurisdiction over the subject matter is conferred upon the court exclusively by law. When a court has no jurisdiction of the case based on the pleadings, then a motion to dismiss must be filed at the earliest possible time. Manila Surety was estopped from questioning the jurisdiction because it voluntarily submitted to the jurisdiction of the RTC, even if the amount of the claim made the action cognizable by the municipal court. How is subject matter jurisdiction different from perfecting an appeal? Subject matter jurisdiction refers to the nature of the action by which a court has power to decide the action or proceeding. In perfecting an appeal, the action must comply with certain requirements (like periods) before an appellate court can take cognizance of the case. Differentiate between a question of fact and a question of law. A question of fact relates to an issue involving the appreciation of the fact, for example the interpretation of the contract.

A question of law deals with the application of the law. What are auxiliary writs or process? They are temporary orders of the court like preliminary injunction and bail. Their importance lies in the jurisdiction of the Court of Appeals (BP 129 Sec. 9 (1)). “The Court of Appeals shall exercise original jurisdiction to issue writes of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction. St. Martin Funeral v NLRC Rulings of the National Labor Reconciliation Commission should first be appealed to the Court of Appeals, before it can reach the Supreme Court. Prof. Avena says it was an anomalous decision because previously the rules and statutes provided that decisions of the NLRC are to be appealed directly to the Supreme Court, but the decision made in this case was contrary to that effect and was without any basis in law. What is the doctrine of qualified political agency? The executive power is vested in the Chief Executive. However, he also acts through his Cabinet Secretaries. What is the doctrine of primary jurisdiction? The doctrine of primary jurisdiction or exhaustion of administrative remedies provides that where the law vests in an administrative agency the power to decide a controversy or treat an issue, the courts will refrain from entertaining the case until the agency has fulfilled its statutory obligation. Should the conjugal property be included in the computation of the amount of the claim? Yes. Conjugal property is included in the amount of the claim. According to Fernandez v. Maravilla (GR No. L-18799, 31 March 1964), where the property, which is the only one wherein the decedent had any proprietary rights, is conjugal in nature, it is the total value of the such conjugal property, and not only the value of the share of the decedent therein, which should furnish the jurisdictional test. Manchester Development v CA. (GR No. 75919, 7 May 1987) Docket fees must be paid within reasonable time. The rule is well-settled "that a case is deemed filed only upon payment of the docket fee regardless of the actual date of filing in court." Thus, in the present case the trial court did not acquire jurisdiction over the case by the payment of only P410.00 as docket fee. Neither can the amendment of the complaint thereby vest jurisdiction upon the

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Court. For all legal purposes there is no such original complaint that was duly filed which could be amended. Consequently, the order admitting the amended complaint and all subsequent proceedings and actions taken by the trial court are null and void. The Court acquires jurisdiction over any case only upon payment of the prescribed docket fee. An amendment of the complaint or similar pleading will not thereby vest jurisdiction in the Court, much less the payment of the docket fee based on the amounts sought in the amended pleading Sun Insurance v Asuncion (GR No. 79937-38, 13 February 1989) In cases where there is a miscalculation of the docket fees and more damages were awarded than that stated in the pleading, the balance on the filing fee will constitute a lien on the judgment for damages. Private respondent claims that the ruling in Manchester cannot apply retroactively to the civil action for at the time said civil case was filed in court there was no such Manchester ruling as yet. Further, private respondent avers that what is applicable is the ruling of this Court in Magaspi v. Ramolete, wherein this Court held that the trial court acquired jurisdiction over the case even if the docket fee paid was insufficient. The contention that Manchester cannot apply retroactively to this case is untenable. Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and to that extent. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment.

An action for ejectment arises in case of forcible entry or unlawful detainer when the action was brought within one year from the time the plaintiff was removed from lawful possession. An accion publiciana is an action to claim rightful possession of property of which the owner was effectively dispossessed from and with a claim to ownership. The action arises after a year of the act of effective dispossession of the owner. Jurisdiction is with the Regional Trial Court. Example: Possession of the land is due to mere tolerance of the owner. Accion reinvindicatoria or action for recovery of real property has for its object the recovery of the dominion over the property as its owner. The main issue is ownership and not merely possession. This is the remedy available when an action referring to possession has already been decided. Example: When a party refuses to deliver the property due to an adverse claim of ownership.

Are actions for rescission and actions for specific performance in cases of breach of contract always action incapable of pecuniary estimation? Not always. In cases of breach of contract, actions for specific performance are not necessarily incapable of pecuniary estimation for it depends on the kind of performance which the plaintiff demands. (action for specific performance to sing in a concert v to pay an outstanding balance on a debt). It is the same with cases of rescission, wherein what is demanded in return is determinative of whether or not the action is incapable of pecuniary estimation. Differentiate an action for ejectment based on forcible entry or unlawful detainer. accion publiciana and accion reinvindicatoria.

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III. “Prescribed Jurisdiction” Jurisdiction over the Subject Matter What is subject matter? Subject matter is the thing, wrongful act, contract or property which is directly involved in the action, concerning which the wrong has been done and with respect to which the controversy has arisen. What are the features of subject matter jurisdiction? 1. Conferred by law 2. Can be raised at anytime 3. Determined by the allegations of the case 4. Determined by the allegations in the pleadings and NOT the evidence. 5. Sometimes is territorial. Article VIII, SECTION 2, 1987 Constitution

The Congress shall have the power to define, prescribe, and apportion the jurisdiction of various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

How is subject matter jurisdiction determined? As a general rule, the subject matter jurisdiction of the court is determined by the allegation in the complaint. Can subject matter jurisdiction be stipulated? No. One outstanding feature of subject matter jurisdiction which is stressed is that it is conferred by the legislature. Since subject matter jurisdiction is the exclusive prerogative of the legislature, the parties to an action or proceeding cannot stipulate on the matter as to vest or oust jurisdiction in or from the court. PROBLEM: A shipment of goods by sea from Hong Kong to Manila is covered by a bill of lading. The consignee is unhappy with the shipment. He brings an action against the shipper and carrier in Manila. The stipulation in the contract provides that cases should be filed in HK. The defendants filed a Motion to Dismiss on the ground that the Manila court has no jurisdiction. Rule on the motion. ANSWER: Denied. Jurisdiction is vested by law and the parties cannot stipulate otherwise. However, there is a case in Private International Law which says that in a multistate transaction, contracting parties may stipulate the choice of forum. Sindico v. Diaz Facts: Pet – Accion Reivindicatoria with preliminary Mandatory Injunction with the RTC; the complaint does not allege tenurial relationship

- involves agricultural land which is covered by CARP, hence DARAB has uesclusive original jurisdiction Pet – Opposition to the Motion to Dismiss - not an agrarian dispute; no tenancy or leasehold relationship Issue: whether RTC or DARAB has jurisdiction Held: Jurisdiction over the subject matter is determined by the allegations of the complaint. It is not affected by the pleas set-up by the defendant in his answer or in a motion to dismiss; otherwise, jurisdiction would be dependent on his whims. Since allegations in the complaint show that the dispute involves an action for recovery of possession of land (accion reinvindicatoria) and does not involve an agrarian dispute, RTC has jurisdiction over it. There was no denial by the respondents that the controversy did not involve a tenancy or leasehold agreement, which is subject to the jurisdiction of the DARAB falling under agricultural disputes.

KINDS of JURISDICTION 1. as to COVERAGE General Jurisdiction Power to adjudicate all controversies except those expressly withheld from the plenary powers of the court.

Special or Limited Jurisdiction Those which have no power to decide their own jurisdiction

2. as to COGNIZANCE of a CASE Original Power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law

Appellate Authority of a court higher in rank to reexamine the final order or judgment of a lower court which tried the case now elevated for review.

3. as to CONCURRENCE with OTHER COURTS Exclusive Power to adjudicate a case or proceeding to the exclusion of all other courts at that stage

Def – Motion to Dismiss - RTC has no jurisdiction over the subject matter 5 of 229

Concurrent Power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories.

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4. as to SCOPE Jurisdiction over the Person Jurisdiction acquired by the person becoming a party to the action or proceeding before the court either through voluntary appearance or upon service of summons or other judicial process

Jurisdiction over the Subject Matter Jurisdiction which pertains to the classes or kinds of actions or proceedings which the court is authorized to entertain and adjudicate.

Those competent to decide their own jurisdiction Those competent to take cognizance of all kinds of cases, unless otherwise provided by the law or Rules

Distinguished from exercise of jurisdiction There is a distinction between the competence of the court to entertain an action (jurisdiction) and the power to render a judgment on the merits (exercise of jurisdiction). Where there is jurisdiction, the decision of all questions arising in the case is but an exercise of jurisdiction. Distinguished from venue Venue determines the question which of several courts in the Philippines having jurisdiction of a case shall take cognizance of it.

Classifications of Philippine Courts 1. as to SCOPE OF THEIR JURISDICTION General Jurisdiction

Jurisdiction is the power of the court to hear or entertain an action or proceedings and to render a judgment thereon which will bind the parties to such action or proceeding.

Special or Limited Jurisdiction Those which have no power to decide their own jurisdiction Those which can only try cases permitted by statute.

Nature Law of which it is concerned Relationship established

2. as to KIND OF JURISDICTION Original Jurisdiction Those courts, which under the law, action or proceedings may originally be commenced.

Appellate Jurisdiction Courts which have the power to review on appeal the decisions or orders of a lower court

Creation

3. as to RANK: Superior Courts Courts which have the power of review or supervision over another and lower court.

VENUE Place where the case is to be heard or tried Matter of procedural law

Establishes a relation between the court and the subject matter

Establishes a relation between plaintiff and defendant, or petitioner and respondent May be conferred by the act or agreement of the parties.

Fixed by law and cannot be conferred by the parties

Manila Railroad v. Atty.-General Facts:

Inferior Courts Those which, in relation to another court, are lower in rank and subject to review and supervision by the latter.

Held: Jurisdiction is assured, whatever the place of its exercise. Jurisdiction is the thing; the place of its exercise is its incident. Venue simply grants to the defendant certain rights and privileges as against the plaintiff relative to the place of trial.

4. as to their CREATION; Constitutional Courts Those which owe their creation and existence to the Constitution and, therefore cannot be legislated out of existence or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the constitution.

JURISDICTION Authority to hear and determine a case Matter of substantive law

Statutory Courts Those created, organized and with jurisdiction exclusively determined by law.

NOTES: simply put, CFI had jurisdiction over the subject matter, i.e., expropriation. Venue has nothing to do with jurisdiction over the subject matter. Sec. 18, B.P. 129 The Supreme Court shall define the territory over which a branch of the RTC shall exercise its authority. The territory thus defined shall be deemed to be the territorial area of the the branch concerned for purposes of determining the venue of all suits, proceedings or actions…

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GEN. RULE: Jurisdiction cannot be waived Judgment without jurisdiction is void. Lack of jurisdiction can be raised at any stage of the proceedings, even on appeal. Rule 9, Section 1. 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 (1) court has no jurisdiction over the subject matter, that there is (2) another action pending between the same parties for the same cause (litis pendiencia), or that the (3) action is barred by a prior judgment or by (4) statute of limitations, the court shall dismiss the claim. Abbain v. Chua Complaint alleges the existence of landlordtenant relationship. Judgment of the Justice of the Peace Court is void, because it has no jurisdiction over cases involving a landlord-tenant relationship. Jurisdiction is with the Court of Agrarian Relations. Since the judgment of the lower court is void, it can be attacked directly or collaterally even after the time for appeal or review has elapsed. “Such a judgment is held to be a dead limb on the judicial tree, which should be lopped off or wholly disregarded as the circumstances may require.” EXCEPTION: Jurisdiction by Estoppel General rule is that estoppel does not confer jurisdiction to a court which has none at the onset. The decision is void until the SC says otherwise, i.e. that estoppel or laches applies to bar attacks on jurisdiction. (Prof Avena) SEAFDEC v. NLRC. A case of illegal dismissal was brought against SEAFDEC, an international organization, with the NLRC. One of the basic immunities of an international organization is immunity from local jurisdiction. The invocation of estoppel is not meritorious in this case because estoppel does not apply to confer jurisdiction to a tribunal that has none over the cause of action.

by asking the court for affirmative relief. (Citing the case of PNOC Shipping v. CA) The rationale behind the exception of jurisdiction by estoppel is to prohibit parties from accepting judgments of court only if favorable to them. Jurisdiction cannot be the subject of Compromise Article 2035, Civil Code No compromise upon the following question shall be valid: XXX XXX XXX (5) The jurisdiction of courts. Retroactivity of Law Expanding Jurisdiction of Courts The provisions of this Act shall apply to all civil cases that have not yet reached the pre-trial stage. However, by agreement of all the parties, civil cases cognizable by the MTC by the provisions of this Act may be transferred from the RTC to the latter. The executive judge of the appropriate RTC shall define the administrative procedure of transferring the cases affected by the redefinition of jurisdiction of the MeTC, MTC, MCTC. (Sec.7, R.A. 7691 -> amending B.P.129) Jurisdiction once attached to a court, cannot be ousted by subsequent statute (unless the statute itself so provides) Southern Foods v. Salas GEN. RULE: Once the court already obtained and is exercising jurisdiction over a controversy, its jurisdiction is not affected by new legislation placing jurisdiction over the controversy to another tribunal. EXCEPTION: Unless the statute itself conferring new jurisdiction expressly provides for retroactive effect. Jurisdiction of Quasi-Judicial Bodies

NOTE: why no estoppel? (1)Doctrine of Immunity from Suit (2)Immunity was not waived; In their Answer pa lang, invoked lack of jurisdiction! In Soliven, acts implied waiver (pinagod ang court) Soliven v. Fastforms Phils. Fastforms actively participated in all stages of the proceedings and invoked its authority

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IV. “Acquired Jurisdiction”

2. By Voluntary Appearance.

A. Over the Person Of the Plaintiff Jurisdiction over the person (of the plaintiff) is conferred by consent and made to depend indirectly at least, on the party’s own volition. (Manila Railroad v. Atty-General) Of the Defendant 1. By Service of Summons. (Rule 14) - Clerk to issue summons (Sec.1) - Form: directed to defendant, signed by clerk under seal Contents: (a) name of court and parties (b) direction that defendant answer within the time fixed by the Rules (c) notice that unless defendant answers, plaintiff will take judgment by default (Sec.2) - Served by sheriff, deputy, court officer, or for justifiable reasons by any suitable person (Sec.3)

Personal Service or Service in person on defendant.

Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (Sec. 6, Rule 14)

Substituted Service.

If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (Sec.7, Rule 14)

Extraterritorial Service and Service by Publication. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, (a) by leave of court, be effected out of the Philippines by personal service as under section 6 or (b) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, (c) or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (Sec. 15, Rule 14)

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. (Sec. 20, Rule 14)

Boticano v. Chu. Chu voluntarily submitted to the court’s jurisdiction by (1) submitting pleadings to the court and (2) by appearing in person in court thru his counsel. The defects of the summons were cured by the voluntary appearance of the defendant. 3. Voluntary Submission. Rodriguez v. Alikpala The Tolentino spouses, parents of Mrs. Rebollado, voluntarily submitted to the court’s jurisdiction by assuming or participating in the defense as co-movants with the Mr. and Mrs. Rebollado, in the motion for judgment on a compromise. B. Over the Res.

(a) When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or (b) the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6 or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (Sec. 15, Rule 14)

Banco-Español Filipino v. Palanca In the foreclosure of real estate mortgage, the court acquires jurisdiction over the property since it is found in the Philippines, but does not acquire jurisdiction over the person since mortgagor is a nonresident. After signing the real estate mortgage, Palanca, owner of the foreclosed real estate, lived thereafter in China and had died there without paying his debt. Conditions for the Foreclosure of Property of Nonresident Mortgagors: 1. jurisdiction of the court is derived from the power which the court possesses over the property. 2. jurisdiction over the person is not acquired and is not essential.

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3. that the relief granted by the court must be limited to such as can be enforced upon the property itself. De Midgely v. Ferandos. Jurisdiction over de Midgely, a resident of Spain, was acquired by her voluntary appearance in court. If the motion is for any other purpose than to object to the jurisdiction of the court over his person, he thereby submits to the jurisdiction of the court. In this case, extra-territorial service of summons was made through the Philippine embassy in Spain, The court held that service through the embassy can be encompassed under extraterritorial service by reasonably sufficient means. An action is one in rem where the direct object is to reach and dispose of property owned by them. (i.e. testamentary proceeding which is an action in rem par excellance)

Jurisdiction is acquired over the person: a. when there is voluntary appearance b. through the coercive power of legal process (summons) Jurisdiction over the property is acquired: a. when there is actual seizure of the property by the court. b. when there is recognition of the power of the court over the property.

C. Over the Issues. Pre-trial Order.

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. (Sec. 7, Rule 18)

Amendment to conform to or authorize presentation of evidence.

When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (Sec. 5, Rule 10)

Gonzaga v. CA A party is entitled to such relief consistent with and limited to that sought by the pleadings or incidental thereto. Gonzaga spouses did not include in their prayer that a refund be granted to them of P90,000 as against the third party defendants, Gregorio spouses. How is jurisdiction acquired over the person? Over property? 9 of 229

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V. Specific Jurisdiction of Courts. A. Supreme Court. 1987 Constitution

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Article VIII, Section 1, 1987 Constitution) The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members. (Article VIII, Section 2, 1987 Constitution) The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. (Article VIII, Section 5, 1987 Constitution)

Constitutional Commissions

Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it

within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Sec. 7, Article IX – A, 1987 Constitution)

Rule 43 “Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals.” Question of Law. Urbano v. Chavez This involves the participation of the Solicitor General in two cases involving government officials. The issues presented by both the cases are purely questions of law. Whether or not the conclusions of the trial court are in consonance with law and jurisprudence is a question of law. Ortigas v. CA The Court of Appeals was without jurisdiction over the case presented because the appellate jurisdiction over cases involving purely legal questions is exclusively vested with the Supreme Court. Questions of jurisdiction are purely legal questions. Josefa v. Zhandong Trading Corporation GENERAL RULE: In a petition for review on certiorari to the Supreme Court, only questions of law may be raised. EXCEPTIONS: 1. conclusion is grounded on speculations, surmises or conjectures 2. the inference is manifestly mistaken, absurd or impossible 3. there is grave abuse of discretion 4. the judgment is based on a misapprehension of facts 5. the findings of fact are conflicting 6. there is no citation of specific evidence on which the factual findings are based 7. the finding of absence of facts is contradicted by the presence of evidence on record. 8. the findings of the Court of Appeals are contrary to those of the trial court. 9. the Court of Appeals manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion. 10. the findings of the Court of Appeals are beyond the issues of the case. 11. such findings are contrary to the admissions of the parties. Change of Venue. powers:

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(4) Order a change of venue or place of trial to avoid a miscarriage of justice. (Article VIII, Section 5, 1987 Constitution)

People v. Sola. This was a petition for a change of venue filed in the Supreme Court. The Supreme Court is granted the constitutional power to order a change of venue to avoid a miscarriage of justice. In this case, the witnesses to the criminal case against Pablo Sola were not at liberty to reveal what they know. BATAS PAMBANSA BLG. 129 (Judiciary Reorganization Act of 1980)

SECTION 9. Jurisdiction. The Intermediate Appellate Court shall exercise: (1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction; (2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Social Security Commission, the Edmployees Compensation Commision, and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Phils. under P.D. No.442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials and hearings must be continuous and must be completed within three (3) months, unless extended by the Chief Justice. [These provisions shall not apply to decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals.]* *text in bold and “[ ]” are amendments inserted and removed by RA7902

REVISING PRESIDENTIAL DECREE NO. 1486 CREATING A SPECIAL COURT TO BE KNOWN AS "SANDIGANBAYAN" AND FOR OTHER PURPOSES (PD 1606) SECTION 7. Form, finality and enforcement of decisions. Decisions and final orders of the Sandiganbayan shall contain complete findings of facts on all issues properly raised before it. A petition for reconsideration of any final order or decision may be filed within (15) days from promulgation or notice of the final order or judgment, and such petition for reconsideration shall be decided within thirty (30) days from submission thereon. Decisions and final orders shall be subject to review on certiorari by the Supreme Court in

accordance with Rule 45 of the Rules of Court. The Supreme Court shall decide any case on appeal promptly and without the necessity of placing it upon the regular calendar. Whenever, in any case decided, the death penalty shall have been imposed, the records shall be forwarded to the Supreme Court, whether the accused shall have appealed or not, for review and judgment, as law and justice shall dictate. Final judgments and orders of the Sandiganbayan shall be executed and enforced in the manner provided by law.

B. Court of Appeals BATAS PAMBANSA BLG. 129 (Judiciary Reorganization Act of 1980) SECTION 9. Jurisdiction. The Intermediate Appellate Court shall exercise: (1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction; (2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Social Security Commission, the Edmployees Compensation Commision, and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Phils. under P.D. No.442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. The Court of Appeals shall have the power: a. to try cases and conduct hearings, b. to receive evidence and c. to perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials and hearings must be continuous and must be completed within three (3) months, unless extended by the Chief Justice.

Rule 43 “Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals.” PD 442, as amended by RA 6715 Labor Code St. Martin’s Funeral Home v. NLRC. Under Rule 65 (petitions for certiorari), appeals from the decisions of the NLRC must first be brought to the CA before SC hears it. SC Resolution A.M. No. 99-2-01 [A.M. NO. 99-2-01-SC. February 9, 1999.] IN RE: DISMISSAL OF SPECIAL CIVIL ACTIONS IN NLRC CASES: National Labor Relations Commission, Dismissal of Special Civil Action In light of the decision in St. Martin Funeral Homes v. NLRC (G.R. No. 130866, 16 September

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1998), all special civil actions arising out of any decision or final resolution or order of the National Labor Relations Commission filed with the Court after 01 June 1999 shall no longer be referred to the Court of Appeals, but shall forthwith be DISMISSED. Let this resolution be published in two newspapers of general circulation in the Philippines and copies thereof furnished the Integrated Bar of the Philippines and the National Labor Relations Commission. SC Resolution A.M. No. 00-2-03 (amending Rule 65, Sec.4) [A.M. No. 00-2-03-SC. September 1, 2000.] FURTHER AMENDING SECTION 4, RULE 65 OF THE RULES OF CIVIL PROCEDURE RESOLUTION BE IT RESOLVED, AS IT IS HEREBY RESOLVED, to further amend Section 4, Rule 65, of the 1997 Rules of Civil Procedure, as amended by the Resolution of July 21, 1998, so as to read as follows:

upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; (3) In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds twenty thousand pesos (P20,000.00); (4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds twenty thousand pesos (P20,000.00); (5) In all actions involving the contract of marriage and marital relations; (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions; (7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Courts of Agrarian Relations as now provided by law; and (8) In all other cases in which the demand, exclusive of interest and costs or the value of the property in controversy, amounts to more than twenty thousand pesos (P20,000.00).

SECTION 4. When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court, or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. (4a) This resolution shall take effect on September 1, 2000, following its publication in two (2) newspapers of general circulation.

REPUBLIC ACT NO. 7691 (AN ACT EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, AND MUNICIPAL CIRCUIT TRIAL COURTS, AMENDING FOR THE PURPOSE BATAS PAMBANSA, BLG. 129, OTHERWISE KNOWN AS THE "JUDICIARY REORGANIZATION ACT OF 1980") SECTION 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary Reorganization Act of 1980", is hereby amended to read as follows:

C. Regional Trial Court

"Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction. "(1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; "(2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty thousand pesos (P20,000,00) or, for civil actions in Metro Manila, where such value exceeds Fifty thousand pesos (P50,000.00)∗ except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; "(3) In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds One hundred thousand pesos (P100,000.00) or, in Metro Manila, where such demand or claim exceeds Two hundred thousand pesos (P200,000.00); "(4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds One hundred thousand pesos (P100,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Two Hundred thousand pesos (P200,000.00); "(5) In all actions involving the contract of marriage and marital relations; "(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions;

Ordinary Civil amended)

Actions

(Sec.

19,

BP

129,

as

BATAS PAMBANSA BLG. 129 (Judiciary Reorganization Act of 1980) SECTION 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred 

Bold text represents the changes from the prior law. Emphasis is my own.

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"(7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and "(8) In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds One hundred thousand pesos (P100,000.00) or, in such other cases in Metro Manila, where the demand exclusive of the abovementioned items exceeds Two Hundred thousand pesos (P200,000.00)."

What are the new jurisdictional amounts based on RA 7691? Based on Section 5, RA 7691 which became effective in April 1994, the jurisdictional amounts are the following: Period Upon enactment of RA 7691 April 99 – April 04 (five years after effectivity of RA 7691) April 04 to present

Outside of Metro Manila P 100,000.00

In Metro Manila

P 200,000.00

P 400,000.00

P 300,000.00

P 200,000.00

(2) In actions affecting ambassadors and other public ministers and consuls.

Exclusive Appellate Jurisdiction. (Sec. 22, BP 129) BATAS PAMBANSA BLG. 129 (Judiciary Reorganization Act of 1980) SECTION 22. Appellate jurisdiction. Regional Trial Courts shall exercise appellate jurisdiction over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictions. Such cases shall be decided on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Courts. The decision of the Regional Trial Courts in such cases shall be appealable by petition for review to the Intermediate Appellate Court which may give it due course only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed.

Special Jurisdiction (Sec. 23, BP 129) BATAS PAMBANSA BLG. 129 (Judiciary Reorganization Act of 1980)

P 400,000.00

But these adjusted jurisdictional amounts shall only apply to the following instances delineating the jurisdictional amounts for the RTC and MTC. 1. admiralty and maritime actions. 2. probate proceedings 3. in all other cases not involving real property. The jurisdictional amount with respect to all civil actions which involve title to, or possession of real property and any interest therein still remains the same ( P50,000 for civil actions in Metro Manila and P20,000 outside of Metro Manila.) Special Civil Actions and the Special Proceeding of Habeas Corpus (Sec. 21, BP 129) BATAS PAMBANSA BLG. 129 (Judiciary Reorganization Act of 1980) SECTION 21. Original jurisdiction in other cases. — Regional Trial Courts shall exercise original jurisdiction: (1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; and (2) In actions affecting ambassadors and other public ministers and consuls. SECTION 21. Original jurisdiction in other cases Regional Trial Courts shall exercise original jurisdiction: (1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; and

SECTION 23. Special jurisdiction to try special cases. The Supreme Court may designate certain branches of the Regional Trial Courts to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies, and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice.

Rule 1, Sec.4 (NICEL)

These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.

Rule 143 Applicability of the Rules These Rules shall not apply to land registration, cadastral, and election cases, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.

SC Administrative Circular No. 09-94 SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 09-94 SUBJECT: Guidelines in the Implementation of Republic Act No. 7691, Entitled "An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980" TO: The Court of Appeals, Sandiganbayan, Regional Trial Courts, Metropolitan Trial Courts, Municipal

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Trial Courts, Municipal Circuit Trial Courts, All Members of the Government Prosecution Service and All Members of the Integrated Bar of the Philippines

For the guidance of the Bench and at the Bar, the following guidelines are to be followed in the implementation of Republic Act No. 7691, entitled "An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa Blg. 129, Otherwise Known as the Judiciary Reorganization Act of 1980": 1. The new jurisdiction of the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in civil and original cases, and in cadastral and land registration cases, under Sections 19, 32, 33, and 34 of B.P. Blg. 129, as amended by R.A. No. 7691, was effective on April 15, 1994, fifteen (15) days after publication in the Malaya and in the Times Journal on March 30, 1994 pursuant to Section 8 of R.A. No. 7691. 2. The exclusion of the term "damages of whatever kind" in determining the jurisdictional amount under Section 19 (8) and Section 33 (1) of B.P. Blg. 129, as amended by R.A. No. 7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, in cases where the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court. 3. The criminal jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts under Section 32 (2) of B.P. Blg. 129, as amended by R.A. No. 7691, has been increased to cover offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of the fine. As a consequence, the Regional Trial Courts have no more original jurisdiction over offenses committed by public officers and employees in relation to their office, where the offense is punishable by more than four (4) years and two (2) months up to six (6) years. 4. The provisions of Section 32 (2) of B.P. Blg. 129, as amended by R.A. No. 7691, apply only to offenses punishable by imprisonment or fine, or both, in which cases the amount of the fine is disregarded in determining the jurisdiction of the court. However, in cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court in accordance with the original provisions of Section 32 (2) of B.P. Blg. 129 which fixed the original exclusive jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts over offenses punishable with a fine of not more than a four thousand pesos, the Regional Trial Courts shall have jurisdiction, including offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed six thousand pesos. However, this rule does not apply to offenses involving damage to property through criminal negligence which are under the exclusive original jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, irrespective of the amount of the imposable fine. Manila, June 14, 1994.

SC Circular No. 09-94 Transfer to RTC from MTC of cases within the jurisdiction of Family Courts under RA 8369 (Family Courts Act of 1997)

CB v. CA This was the case of the P102 docket fee. Even if the amount of damages is not in the prayer, the docket fees shall be assessed if the amount prayed for is in the body of the complaint. Ascue v. CA Where the thing sought to be deposited or consigned is a sum of money, the amount of the debt due is determinable and capable of pecuniary estimation. Negre v. Cabahug Shipping All admiralty and maritime cases fall under the jurisdiction of the CFI, irrespective of the amount or value of the goods involved. (Judiciary Act, Sec. 44) C/f BP 129 Sec.19 (3), as amended by RA 7691 – The present law places a peso limit under which the RTC can exercise jurisdiction over admiralty and maritime cases. Baito v. Sarmiento An action for support falls under the jurisdiction of the CFI for being incapable of pecuniary estimation. The following are factors that determine support: amount to be given, relation of the parties, right to support created by that relation, needs of the claimant and financial resources of the person from whom support is sought. D. Metropolitan, Municipal and Municipal Circuit Trial Courts (MeTC, MTC, MCTC) Rule 5, Sec. 2 The term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts.

BP 129 Sec. 25 – 31, as amended by RA 7691 BATAS PAMBANSA BLG. 129 (Judiciary Reorganization Act of 1980)

CHAPTER III Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts SECTION 25. Establishment of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. There shall be created a Metropolitan Trial Court in each metropolitan area established by law, a Municipal Trial Court in each of the other cities or municipalities, and a Municipal Circuit Trial Court in each circuit comprising such cities and/or municipalities as are grouped together pursuant to law. SECTION 26. Qualifications. No person shall be appointed judge of a Metropolitan Trial Court, Municipal Trial Court, or Municipal Circuit Trial Court unless he is a natural-born citizen of the Philippines, at least 30 years of age, and, for at least five years, has been engaged in the practice of law in the

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Philippines, or has held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. SECTION 27. Metropolitan Trial Courts of the National Capital Region. There shall be a Metropolitan Trial Court in the National Capital Region, to be known as the Metropolitan Trial Court of Metro Manila, which shall be composed of eighty-two (82) branches. There shall be: (list of branches omitted) SECTION 28. Other Metropolitan Trial Courts. The Supreme Court shall constitute Metropolitan Trial Courts in such other metropolitan areas as may be established by law whose territorial jurisdiction shall be coextensive with the cities and municipalities comprising the metropolitan area. Every Metropolitan Trial Judge shall be appointed to a metropolitan area which shall be his permanent station and his appointment shall state branch of the court and the seat thereof to which he shall be originally assigned. A Metropolitan Trial Judge may be assigned by the Supreme Court to any branch within said metropolitan area as the interest of justice may require, and such assignment shall not be deemed an assignment to another station within the meaning of this section. SECTION 29. Municipal Trial Courts in cities. In every city which does not form part of a metropolitan area, there shall be a Municipal Trial Court with one branch, except as hereunder provided: (list of branches omitted) SECTION 31. Municipal Circuit Trial Courts. There shall be a Municipal Circuit Trial Court in each area defined as a municipal circuit, comprising one or more cities and/or one or more municipalities. The municipalities comprising municipal circuits as organized under Administrative Order No. 33, issued on June 13, 1978 by the Supreme Court pursuant to Presidential Decree No. 537, are hereby constituted as municipal circuits for purposes of the establishment of the Municipal Circuit Trial Courts, and the appointments thereto of Municipal Circuit Trial Judges: Provided, however, That the Supreme Court may, as the interests of justice may require, further reorganize the said courts taking into account workload, geographical location, and such other factors as will contribute to a rational allocation thereof, pursuant to the provisions of Presidential Decree No. 537 which shall be applicable insofar as they are not inconsistent with this Act. Every Municipal Circuit Trial Judge shall be appointed to a municipal circuit which shall be his official station. The Supreme Court shall determine the city or municipality where the Municipal Circuit Trial Court shall hold sessions.

WHEREAS, there are at present 1,444 municipal courts exclusive of city courts in the inferior courts level all over the country; WHEREAS, a number of these municipal courts did not receive a single case for investigation or trial during Fiscal Year 1971-1972 and a still much bigger number received not more than 60 cases during the said period; WHEREAS, these municipal courts may be constituted into municipal circuit courts each comprising two or more municipalities without detriment to the administration of justice; WHEREAS, the constitution of municipal circuit courts will mean substantial savings in public funds which can be profitably utilized for carrying out vital projects of the national government. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby decree and order that municipal circuit courts be constituted and organized out of the present municipal courts of the Land under and in accordance with the following conditions and criteria: 1. The capital of a province shall not be grouped with any other municipality except in the third, fourth, fifth, sixth and seventh class provinces. 2. The municipalities to be constituted under a municipal circuit court shall, as much as possible, be contiguous to each other. 3. The circuit judge shall have his official station in a municipality within the circuit which shall be as centrally located and easily accessible as possible from the other municipalities comprising the circuit. 4. The jurisdiction of municipal circuit courts of which the capital of a province or sub-province is a part shall be the same as that of the municipal courts of provincial capitals, while the jurisdiction of other municipal circuit courts shall be the same as that of ordinary municipal courts under existing law. 5. All cases arising within the circuit shall be tried at the official station of the circuit judge; Provided, however, that whenever the number of cases or the interest of the administration of justice requires it, the Supreme Court may authorize the circuit judge to hold session outside his official station but within the circuit. 6. The municipal circuit courts shall be courts of record. All proceedings therein shall be recorded, and appeals from their judgments shall be taken and prosecuted in accordance with the procedure prescribe under existing law and rules.

Administrative Order No. 33 Presidential Decree No. 537 PRESIDENTIAL DECREE No. 537 August 12, 1974 CONSTITUTING MUNICIPAL COURTS INTO MUNICIPAL CIRCUIT COURTS

7. The Supreme Court shall carry out the provisions of this decree through implementing orders, on a province-toprovince basis. TRANSITORY PROVISIONS

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1. Pending the issuance by the Supreme Court of the implementing orders herein above authorized, the municipal courts shall continue to function as presently constituted and organized. 2. The most senior in point of service in the judiciary among the municipal judges of the municipalities constituted into a circuit court shall be retained as municipal circuit judge, unless the Supreme Court, in the interest of a better administration of justice, deems it necessary to consider other factors. The judge who is retained shall, with the approval of the Supreme Court, appoint a clerk of court, two stenographers, a clerkinterpreter, and such other personnel as may be provided by law, giving preference to the qualified personnel of the municipal courts comprising the circuit. For this purpose, the Chief Justice is hereby authorized, within the limits of appropriations authorized for the Municipal Courts, to created additional positions, to make changes in the assignment of personnel, and to effect such reorganization as maybe necessary. 3. Upon the issuance of the implementing orders by the Supreme Court, the municipal circuit courts constituted thereunder shall commence to exist. The municipal courts organized into the circuit shall be deemed automatically abolished, and the incumbent municipal judges not designated to continue as circuit judges shall cease to hold office. 4. Municipal judges and subordinate employees who shall be separated from office by reason of this decree shall be entitled, in addition to the money value of their accumulated leave credits, a gratuity equivalent to one month salary for every year of service rendered but not exceeding twelve months on the basis of the highest salary received, chargeable against savings in appropriations for the courts; Provided, if said judges and employees are entitled to gratuity or pension under any retirement law, they shall select either the gratuity or pension under said retirement law or the gratuity provided for in this decree. 5. All cases pending in the municipal courts constituted and organized into a circuit shall be transferred to the proper municipal circuit court and shall be tried and decided therein. 6. This decree shall not apply to city courts in chartered cities. If a chartered city is reverted to a municipality, such municipality shall be grouped with other municipalities constituted under a municipal circuit court. This Decree shall take effect immediately. Done in the City of Manila, this 12th day of August, in the year of Our Lord, nineteen hundred and seventy-four.

Exclusive Original Jurisdiction 1. in Civil and Estate Settlement Proceedings/ over provisional remedies

BP 129, Sec. 33 (1), last proviso, as amended by RA 7691 Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing fees: Provided, further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions;

SC Administrative Circular No 09-94 (supra) 2. in Forcible Entry and Unlawful Detainer cases BP 129, Sec. 33 (2), as amended by RA 7691

Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the questions of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession;

Lim v. CA Lawyer who was prevented from getting his law books from a unit he owned in a building. The action is for forcible entry and unlawful detainer under Rule 70. Possession still remained with Reginaldo although he was prevented from exercising his right of ingress and egress into the building. 3. in Civil Actions involving title to or possession of real property BP 129, Sec. 33 (3), as amended by RA 7691 Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases.

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Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That in cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots. Russel v. Vestil It is the RTC that has jurisdiction over this case. The main purpose of the action was to declare null and void a document (agreement of partition which excluded some of the heirs of properties worth P5,000) which is incapable of pecuniary estimation. The partition of the property is merely incidental to the main relief sought. 4. Delegated Jurisdiction. BP 129, Sec. 34, as amended by RA 7691 Sec. 34. Delegated Jurisdiction in Cadastral and Land Registration Cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts may be assigned by the Supreme Court to hear and determine cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots where the value of which does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. Their decisions in these cases shall be appealable in the same manner as decisions of the Regional Trial Courts.

SC Circular No. 38-97 TO: REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS SUBJECT: CLARIFICATION OF THE EXTENT OF DELEGATED JURISDICTION UNDER ADMINISTRATIVE CIRCULAR NO. 6-93-A OF MeTCs, MTCCs, MTCs AND MCTCs TO HEAR AND DETERMINE CADASTRAL AND LAND REGISTRATION CASES.

Numerous queries from the Courts concerned have been received by the Court Administrator regarding the scope of the delegated jurisdiction under Administrative Circular No. 6-93-A of MeTCs, MTCCs, MTCs AND MCTCs to hear and determine cadastral and land registration cases, particularly as to whether or not the delegation covers

petitions and motions for reconstitution of lost certificate of title. The clear tenor and intention of Administrative Circular No. 6-93-A is that only original cadastral or land registration cases are covered. The jurisdiction of the First Level Courts, being merely delegated, should be limited to what is expressly mentioned in the delegation. 1. There are limits to the delegation, i.e., either the subject matter is an uncontested lot or if contested the value of the lot should not exceed One hundred thousand [P100,000.00] Pesos. There will be difficulty in the determination of these limits if and when the First Level Courts are required to exercise delegated jurisdiction over petitions subsequent to original registration. 2. A First Level Court should not be placed in a situation where, in disposing of a matter subsequent to registration, it will have to consult the records of another Court, which granted the original registration. 3. To require First Level Courts to handle petitions after original registration would unduly increase their dockets already loaded with cases covered by R. A. 7691, the law on their expanded jurisdiction. Therefore, matters subsequent to the original registration determined by Second Level Courts, including petitions for reconstitution of lost titles, should not be unloaded to the First Level Courts. The Second Level Courts are hereby directed to take cognizance of and exercise jurisdiction over such matters. June 20, 1997.

5. Special Jurisdiction BP 129, Sec. 35, as amended by RA 7691

SECTION 35. Special jurisdiction in certain cases. In the absence of all the Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent Regional Trial Judges sit.

Avena Notes (18 Nov 04) MRR v Atty-General It is a matter of procedural law in determining the venue of the action. The venue of a real action lies where the land or real property is situated. The CFI has jurisdiction over all lands over the country. It is a matter of procedure which determines which of the competent CFI’s in the country venue lies. Parties, however, may agree to change the venue subject to certain conditions imposed by the Rules. Abbain v Chua

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This is an action to order tenant Abbain to vacate the land. The issue is whether the justice of the peace or the CAR has jurisdiction. A landlord tenant relationship existed between the parties; Chua even alleged in the record that Abbain was a tenant.

damages should be instituted with the dismissal case in the NLRC. But RA6715 did not provide retroactivity for cases currently pending. The rules of procedure at the time of the complaint is filed determines the rules applicable to the complaint and the jurisdiction of the courts.

SEAFDEC v NLRC This was an action which involved the dismissal of an employee of SEAFDEC. The NLRC was without jurisdiction because SEAFDEC was an international organization, which enjoyed immunity from suit. Estoppel cannot confer jurisdiction. The ruling in Tijam is merely an exceptional exception.

Sindico v Diaz This was an accion reinvindicatoria filed in the RTC. Land was alleged to be agricultural land. DARAB has jurisdiction over agricultural disputes but the case lacked any proof of a landlordtenant relationship.

AVENA: Was the court saying that the NLRC could not take cognizance of the case because there was lack of cause of action or that SEAFDEC was immune from suit? A lack of cause of action pertains to the subject matter jurisdiction of the court which prevents it from exercising jurisdiction. Immunity from suit speaks of the fact that even if the court can take jurisdiction of a case, the juridical person (SEAFDEC) was immune from suit being an international organization. PROBLEM: A rally is staged in the US Embassy against globalization by militant groups. Pasay police officers and US embassy guards are deployed to keep the peace. A riot breaks out and in the commotion some militants are injured. A suit is filed against the Filipino police officers and embassy guards. Will the action prosper against the parties? ANSWER: The court will acquire jurisdiction over the person of the Filipino officers but not over the US Embassy guards being foreigners working in the embassy they are immune from suit here. The action will prosper but only against the local law enforcement officers. Soliven v. Fast Forms Fastforms failed to pay a P170,000 loan to Soliven. The action claimed damages totaling P195,155. In AM Cir 9-94, the Supreme Court clarified that the term “damages of whatever kind” mean incidental damages. Southern Food Sales v Salas This case involved two action: one filed with the CFI for damages arising from the dismissal and another in the NLRC for the validity of the dismissal. Under the old law, in cases of dismissal an action questioning the validity of the dismissal can be separated from an action for civil damages arising from the dismissal. The labor arbiter’s jurisdiction is limited to those cases arising from an employeremployee relationship and the civil courts have jurisdiction over actions for damages. But RA6715 repealed the old law in that the civil action for

See RA 6657 and RA8799. Some RTC have jurisdiction over commercial disputes and intellectual property cases that were merged to form the Special Commercial Courts. But essentially, these Special Commercial Courts continue to be RTCs. What is acquired jurisdiction? It is the jurisdiction acquired by the court over the parties (plaintiff and defendant). "plaintiff" = claiming party, the counterclaimant, the cross-claimant, or the third (fourth, etc.) party plaintiff. "defendant" = original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) party defendant. In third party claims, parties may want to sue other persons not yet parties to the action. In cross claims, plaintiff/s sue several defendants but defendants file a cross claim against their fellow defendants. How is jurisdiction over the defendant acquired? 1. service of summons. 2. voluntary appearance. 3. voluntary submission. How is service of summons effected? 1. personal service (handing a copy to the person of defendant or tender to him) 2. substituted service (place of residence or regular place of business) 3. service by publication 4. extra-territorial service. Who puts into effect service of summons? The Sheriff. What is tender of service of summons? Tender is an offer to serve summons to the person of the defendant but the defendant refuses to receive such summons. Can service be effected by leaving the summons at the foot of the person? Yes. If there is a tender to the defendant who refuses to receive it.

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What is the effect if the service of summons is not proper? Since there is no service of summons, then the court acquires no jurisdiction over the person. It proceedings, judgment and decision will be null and void with respect to the person not served with summons.

4. the property of the defendant has been attached within the Philippines.

Boticano v. Chu This case involved an agreement to pay for the repairs of the truck. Summons was served through substituted service to the wife. The plaintiff wanted to proceed expediently with the case so, he moved to dismiss the action with respect to the driver. He did this because if he impleaded the driver, the case cannot proceed until the driver was served with summons. If he was not impleaded, then the plaintiff can continue with the case because the owners were already served with summons.

How is service of summons effected if the defendant is NOT found in the Philippines? 1. publication and registered mail 2. personal service outside of the Philippines 3. any other manner the court may deem sufficient (i.e. through the Philippine embassy, mail, and courier)

Can a person appear in court in a civil case without a lawyer? Yes. Rodriguez v Alikpala. The parents of the defendant daughter agreed to the compromise agreement in the lower court which binds them to it. MTC had a final judgment embodied in the compromise agreement as it recognized the agreement. So it had the authority to hear the action for a writ of execution of its judgment. This is different is there was an out of court settlement between the parties and the case was dismissed. In this case, there was no decision by the court to be executed, thus a writ of execution of judgment is not available. Ma’am says for purposes of practice, it is best that when the parties enter into a compromise agreement, let the court recognize it. The court’s recognition of the compromise agreement acts as an assurance that its condition will be followed, or else would give rise to an action for execution for enforcement of the court’s decision. Avena Notes (20 Nov 04) What are the instances where extraterritorial service of summons is proper? (Rule 14 Sec. 15) 1. when the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff (i.e. recognition of paternity, marriage, etc.) 2. the subject of which is property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent 3. the relief demanded consists, wholly or in part in excluding the defendant from any interest in the real property in the Philippines.

How is service of summons effected if the defendant is found in the Philippines? 1. personal service 2. substituted service

Rule 18. 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. This provision is significant because if counsel is not careful, issues which were not in the pre-trial order could be raised by opposing counsel during the trial. Rule 10 Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. In relation to the other provision, this rule is used against inattentive lawyers. If opposing party raises an issue during trial but not in the pleadings and defense counsel does not object, the issue is deemed to have been raised as if they were written in the pleadings. Urbano v. Chavez

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The case pertains to two instances involving the appearance of Solicitor General in some cases. Questions of law are exclusively handled by the Supreme Court. Ortigas v CA This involved an error of jurisdiction at each stage of the action. MTC has no jurisdiction. Action was appealed to the RTC but the RTC wrongfully took cognizance of the action. CA exercised appellate jurisdiction. Josefa v Zhandong GENERAL: RULE: Only questions of law are entertained by the Supreme Court in a petition for review on certiorari. EXCEPTIONS: 1. the conclusion is grounded on speculations, surmises or conjectures. 2. the inference is manifestly mistaken, absurd or impossible. 3. there is grave abuse of discretion 4. the judgment is based on misapprehension of facts. 5. the findings of fact are conflicting 6. there is no citation of specific evidence on which the factual findings are based. 7. the finding of absence of facts is contradicted by the presence of evidence on record 8. the finding of the Court of Appeals are contrary to those of the trial court. 9. the Court of Appeals manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion 10. the findings of the Court of Appeals are beyond the issues of the case. 11. such finding are contrary to the admissions of both parties People v Sola This is a petition by certiorari to change venue that was a direct action to the Supreme Court. The Supreme Court has exclusive power to change the venue upon assertion of the party of exceptional circumstances warranting such change. Defendants in the case were public officers who threatened the witnesses. CB v CA This is the P100,000,000 claim that paid only P120 for docket fees. Ascue v CA. Consignation estimation.

is

Avena Notes (23 Nov 04) Negre v Cabahug

capable

of

pecuniary

This is an action involving the shipping of dried fish that was lost even before the ship had sailed. Maritime and admiralty cases involved trade and transactions in the sea. But in this case the ship had not yet moved, was there already a maritime trade or transaction? Maritime jurisdiction included maritime tort. Baito v Sarmiento This was an action for support amounting to P720. The action for support is incapable of pecuniary estimation because the court is asked to determine first whether or not the wife was indeed entitled to support. After a determination of that support is warranted, the court is then asked to determine the amount of the claim using relevant factors in the case. Does the RTC have jurisdiction to hear original actions to annul decision of the MTC, just like the authority of CA over RTC? Under BP129 Sec9, the CA has original jurisdiction to hear original actions for the annulment of decisions of RTC. Under BP129 Sec22, the RTC exercises appellate jurisdiction to over all decisions of the MTC, which is dissimilar to the power of the CA, abovementioned, because the latter pertains to an original action (suit filed in the first instance). But the RTC is said to still exercise such original jurisdiction over original actions for annulment of MTC decisions under Rule 47 Section 10, to wit, “An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto.” Also another basis for this is the general original jurisdiction granted to RTC (BP129 Section 6, in all other cases not within the exclusive jurisdiction of any court). Lim Kieh Tong v. CA This was the case of the lawyer locked out of his own apartment unit in a building and was forced to buy three new law books. The action was one for forcible entry and unlawful detainer as the tenant-lawyer was prevented from taking possession of his room in the building. Actions for Forcible Entry and Unlawful Detainer. Rule 70 Section 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or

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termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. The provision allows FEUD (forcible entry and unlawful detainer) to be filed even by lessees of land, building and even parts thereof (rooms in a building) What is the difference of ORGINAL JURISDICTION and APPELLATE JURISDICTION in reference to the ruling in the St. Martin’s case? A petition for certiorari under Rule 65 (grave abuse of discretion) is an original action, since the cause of action is to be taken by the court for the first time. A petition for review on certiorari under Rule 45 (question of law) is part of the process of appeal, as a decision of a lower court has already been rendered. In St. Martin’s, it was held that the old law provided appeal from decisions of the NLRC to the DOLE Secretary and then appeal to the Office of the President. But PD 391 abolished appeals from decisions of the NLRC and would seem that NLRC had the last and final say in the case. But despite the abolition of the appeal to the DOLE Secretary and President by PD 391, the Supreme Court ruled that the law did not deprive the Supreme Court’s judicial power to hear a labor case but NOT as an appeal from the decision of the NLRC but as an original action. But in St. Martin’s, it was also ruled that despite the power exercised by the Supreme Court, an action questioning the decision of the NLRC should first pass through the CA which has concurrent jurisdiction because of the abundance of labor cases coming to the SC and because of the deference afforded to the hierarchy of courts. When is judicial power exercised? What is judicial review? Judicial power is the power vested in the Supreme Court and to such lower courts as may be established by law. Judicial power is exercised in the following instances: 1. to settle actual controversies involving rights which are legally demandable and enforceable. 2. to determine whether or not there has been a grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch or instrumentality of the government. 3. actions for declaratory relief (Rule 63)

Judicial review is the power of the courts to review the decisions of another department or level of government or to declare a legislative act of Congress void for being unconstitutional. Marbury v Madison. Russel v Vestil This was an action for declaration of nullity of a deed of partition. An action for declaration of nullity is incapable of pecuniary estimation. The amount claimed for was merely incidental to the main relief that was for declaration of nullity. Differentiate an action for declaration of nullity and action to annul. An action for declaration of nullity pertains to contracts which are void ab intio and had no effect whatsoever. An action to annul is used against voidable contracts. E. Special Rules Manufacturer’s Distributor’s v. Yu Siu Liong The action was to compel Yu Siu Liong to accept delivery of the goods, which is incapable of pecuniary estimation. Payment in money is not an alternative equivalent, but a consequence or result of the specific performance and cannot constitute a pecuniary estimation thereof. Cruz v Tan The alternative remedy of specific performance that consists of finishing the house, is capable of pecuniary estimation at the same amount, more or less. The jurisdiction of the court is determined by the value of the demand and not the value of the transaction out of which the demand arose. Lapitan v. Scandia Rescission is a counterpart of specific performance and there must be inquiry into matters which would justify the setting aside of the contract. The determination of damages, demand an inquiry into other factors which the law has deemed to be more within the competence of the CFI, which were the lowest courts of record at the time. Good Development v. Lapitan The CFI had jurisdiction over the case even if the action was to recover only P1,520, because the personal property subject to the chattel mortgage amounted to P15,340. When the action involves the foreclosure of a chattel mortgage concerning properties valued at more than P10,000, the action should be instituted with the CFI.

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Avena Notes (23 Nov 04)

MNEMONIC: Ma’am suggests you do it alphabetically (20 agencies).

Manufacturer’s v Yu Siu Liong This involved an action to accept delivery of goods that the purchaser refused to accept from the vendor. The value of the goods was incidental to the enforcement of deliver or compulsion to accept delivery, which was incapable of pecuniary estimation. Cruz v Tan This case involved an action to compel either the finishing of the construction of the house OR pay the sum of P644. The alternative relief prayed for was capable of pecuniary estimation. The action to compel finishing the house is, at first glance, incapable of pecuniary estimation but making an alternative relief for a definite sum of money the compulsion to complete the house equivalent to that sum. Compared to Manufacturer’s, the demand for a sum of money which was the value of the cargo to be delivered in Manufacturer’s was incidental to the main relief of compelling the purchaser to first accept the goods. Lapitan v. Scandia Lapitan purchased an engine from Scandia which broke twice. So Lapitan wanted to rescind the contract of purchase and return of the purchase price. Rescission is the counterpart or opposite of specific performance. Since specific performance was incapable of pecuniary estimation, then so was rescission.

A –1, B-2, C-4, D-1, E-2, G-1, I-1, L-1, N-2, O-1, P1, S-2, V-1 Agricultural Inventions Board Board of Investments Bureau of Patents, Trademarks and Technology Transfer Central Board of Assessment Appeals Civil Service Commission Civil Aeronautics Board Construction Industry Arbitration Commission Department of Agrarian Reform under Republic Act No. 6657 Employees Compensation Commission Energy Regulatory Board Government Service Insurance System Insurance Commission Land Registration Authority National Electrification Administration National Telecommunications Commission Office of the President Philippine Atomic Energy Commission Securities and Exchange Commission Social Security Commission Voluntary arbitrators authorized by law.

Good Development v. Tutaan This was an action for a sum of money P1,520 secured by chattel mortgage of personal property worth P15,340. The Court looked at the value of the chattel property in determining which court had jurisdiction citing the case of Seno v. Pestolante. Ma’am questioned the decision of the SC because it determined the jurisdictional amount based on an accessory contract of chattel mortgage. But in chattel mortgage, the mortgagee has no right to the property itself (pactum commisorium) and his only right to sell the property in a public auction and apply the proceeds of the sale to his loan. The value of the property was not yet determinate at the time of foreclosure, because the value can go fluctuate depending on the bids made at the public auction. What is the extent of appellate jurisdiction of the CA over quasi-judicial bodies? The CA has exclusive appellate jurisdiction over decisions of quasi-judicial agencies. Rule 43 Section 1

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VI. Scope and Construction of Rules of Civil Procedure Title of the Rules. These Rules shall be known and cited as the Rules of Court. (Sec. 1, Rule 1)

In what courts applicable. These Rules shall apply in all the courts, except as otherwise provided by the Supreme Court. (Sec. 2, Rule 1)

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

In what cases not applicable. These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1)

Commencement of action.

A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (Sec. 5, Rule 1)

Construction. These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1)

Regalado Notes: C/f Rule 135 Section 6. The Code of Civil Procedure (Act No. 190) is one of the main sources of the old Rules of Court, which took effect on July 1, 1940 and, in turn of the present revised Rules. They have the force and effect of law. Can the Supreme Court suspend the application of the Rules of Court? Yes, in the interest of just and expeditious proceedings, the Supreme Court may suspend the application of the Rules of Court and except a case

from their operation because the Rules were precisely adopted with the primary objective of enhancing fair trial and expeditious justice. (Republic v. CA, et al. GR L-3103-04, May 31, 1978) The Supreme Court has inherent jurisdiction that it can always exercise in settings attended by unusual circumstances to prevent manifest injustice that could result to bare technical adherence to the law and imprecise jurisprudence. (Co v PNB, GR No. 51767, June 29, 1982) PRESIDENTIAL DECREE NO. 946 REORGANIZING THE COURTS OF AGRARIAN RELATIONS, STREAMLINING THEIR PROCEDURES, AND FOR OTHER PURPOSES (June 17, 1976) SECTION 16. Rules of Procedure. The Courts of Agrarian Relation shall adopt uniform rules of procedure on matters not provided for in this Decree in order to achieve a just, expeditious and inexpensive determination of every action or proceeding filed before them. The rules of Court shall not be applicable to agrarian cases, even in a suppletory character. It is the spirit and intention of this Decree that the Courts of Agrarian Relations shall utilize and employ every and all reasonable means to ascertain the facts of every case in accordance with justice and equity and the merits of the case, without regard to technicalities of law and procedure. To this end, each Court of Agrarian Relations shall have the authority to adopt any appropriate measure or procedure in any situation or matter not provided for or covered by this Decree and in the uniform rules of procedure of the Courts of Agrarian Relations. All such special measures or procedures, and the situations to which they are applied shall be reported to the Supreme Court by the individual Judges through the Executive Judge who shall furnish copies of such reports to all the other Judges. In criminal and expropriation cases the Rules of Court shall apply.

What are the types of actions governed by the Rules of Court? 1. Civil Action 2. Criminal Action 3. Special Proceeding What is a civil action? A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. What are the kinds of civil actions? 1. Ordinary. 2. Special Civil Action. *Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. All rules pertaining to ordinary civil actions (Rule 1 – 61) are applicable to special civil actions. What is a criminal action? A criminal action is one by which the State prosecutes a person for an act or omission punishable by law.

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What is a special proceeding? A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. Is there a distinction between a suit and an action in Philippine jurisprudence? No, there is no difference between a suit and an action as our courts are courts of law and equity. Action is generally confined to proceedings in courts of law, while suit is equally applied to prosecution at law or in equity. In what cases is the Rules of Court not applicable? Mnemonic: NICEL. 1. Naturalization proceedings 2. Insolvency proceedings 3. Cadastral proceedings 4. Election cases 5. Land registration proceedings. * Except that the Rules of Court may be applied by analogy or in a suppletory character and whenever practicable and convenient. Also excluded from the applicability of the Rules of Court are corporate disputes under PD 902A and bankruptcy proceedings. When is an action said to have been commenced? An action is commenced by the filing of the original complaint in court. As long as the complaint is filed within the prescriptive period, the claim alleged therein is not barred even if summons was served on the defendant AFTER the prescriptive period. Can an action be commenced by the filing the complaint through registered mail? Yes. If the mailing was done in accordance with Rule 13, Section 3, the fact that said complaint, as mailed, was actually received by the clerk of said court after the lapse of the prescriptive period is immaterial as the date of mailing is considered the date of the filing of said complaint. What is the rule on commencement of an action in relation to docket fees? General rule is that a case is deemed filed only upon the payment of the docket fee. If the requisite docket fee was actually paid, either personally or also be mail, subsequent to the mailing of the complaint, the date of such payment or the mailing of said amount therefore shall be considered as the date of the filing of the complaint. How are docket fees assessed? All complaints, petitions, answers and similar pleadings must specify the amount of damages being prayed for both in the body of the pleading and in the prayer therein, and said damages shall be considered in the assessment of the filing fees.

Where the action involved real property and related claims for damages, the legal fees shall be assessed on both the value of the property and total amount of damages sought. What happens if the complaint was filed without paying the docket fees? If there is no payment of docket fees, the pleading shall not be accepted for filing and shall be expunged from the record. (Manchester Development Corp, et al v. CA, et al. GR No. 75919, May 7, 1987) However, this ruling has been modified as follows (Sun Insurance Office, Ltd. v Asuncion, GR No. 79937-38, February 13, 1989): a. when the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but not beyond the applicable prescriptive or reglementary period. b. the same rule applies to permissive counterclaims, third-party claims and similar pleadings. c. when the trial court acquire jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but subsequently, the judgment awards a claim not specified in the pleadings, or if specified the same has been left for determination by the court, the additional filing fee therefore shall constitute a lien on the judgment which shall be enforced and the additional fee assessed and collected by the clerk of court. What is the doctrine of exhaustion of remedies? What are the exceptions to this rule? Before bringing an action in or resorting to the courts of justice, all remedies of administrative character affecting or determinative of the controversy at that level should first be exhausted by the aggrieved party. The exception to this rule includes the following cases: 1. Where the issue is purely a legal one and nothing of an administrative nature is to be and can be done or when no administrative remedy is provided by law. 2. Where the insistence on its observance would result in nullification of the claim being asserted or when to require exhaustion of administrative remedies would be unreasonable. 3. Where the controverted act is patently illegal or was performed without the jurisdiction or in excess of jurisdiction or when there is estoppel on the part of the administrative agency concerned. 4. Where the respondent is a department secretary, whose acts as an alter ego of the President bear the implied or assumed approval of the latter, unless actually disapproved by the President. 5. Where there are circumstances indicating the urgency of judicial intervention.

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6. When the rule does not provide a plain, speedy and adequate remedy or when the issue of nonexhaustion of administrative remedies has been rendered moot. 7. When there is a violation of due process. 8. When there is irreparable injury. 9. When the subject matter is a private land in land case proceedings. How should the Rules of Court be construed? These Rules shall be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. Are the rules on period liberally construed? While the Rules are liberally construed, the provisions on reglementary periods are strictly applied as they are deemed indispensable to the prevention of needless delays and necessary to the orderly and speedy discharge of judicial business. Avena Notes (16 Nov 04) Rule 1 Section 1 Title of the Rules of Court The Rules of Court were preceded by the 1940 Code of Civil Procedure, then by the 1964 Rules of Court. What are the new jurisdictional amounts based on RA 7691? Based on Section 5, RA 7691 which became effective in April 1994, the jurisdictional amounts are the following: Period Upon enactment of RA 7691 April 99 – April 04 (five years after effectivity of RA 7691) April 04 to present

Outside of Metro Manila P 100,000.00

In Metro Manila

P 200,000.00

P 400,000.00

P 300,000.00

P 400,000.00

VII. Uniform Procedure The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure. (Sec. 1, Rule 5)

Avena Notes (23 Nov 04) What is the uniform procedure rule in trial courts? Are there exceptions to the rule? The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts. (Rule 5, Section 1) EXCEPTIONS: 1. where a particular provision expressly or impliedly applies only to either of said courts, or 2. in civil cases governed by the Rule on Summary Procedure. What is the scope of the Rules of Summary Procedure? Summary procedure includes the following: 1. Forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. 2. All other cases where the total amount of plaintiff’s claim does not exceed P10,000.00 except probate What are the only pleadings allowed in summary procedures? a. complaint b. compulsory counterclaim and crossclaim c. answers thereto.

P 200,000.00

But these adjusted jurisdictional amounts shall only apply to the following instances delineating the jurisdictional amounts for the RTC and MTC. 1. admiralty and maritime actions. 2. probate proceedings 3. in all other cases not involving real property. The jurisdictional amount with respect to all civil actions which involve title to, or possession of real property and any interest therein still remains the same ( P50,000 for civil actions in Metro Manila and P20,000 outside of Metro Manila.)

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VI. Actions

sustained.

Kinds of Actions (Rule 1, Section 3)

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

Hernandez v. Rural Bank of Lucena Personal Action – action against personal property Real Action – action on real property Action in Personam – action against a person Action in Rem – action against a thing. 2. As to their BINDING EFFECT Action Rem

in

What is a cause of action? What is a right of action? Are they different from one another?

A cause of action is the act or omission by which a party violates a right of another. A right of action is the remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him.

Cause of Action Cause of action is the delict or wrong Is determined by averments of pleading regarding acts committed by defendant

the the the the

Right of Action Right of action is the right to sue as a consequence of that delict Is determined by the substantive law.

What is relief? The redress, protections, award or coercive measure which the plaintiff prays the court to render in his favor as a consequence of the delict committed by the defendant. What is a remedy? The procedure or type of action which may be availed of by the plaintiff as the means to obtain the relief desired. Nature of Actions

Action in Personam

Action Quasi in Rem

De Midgely v. Ferandos A quasi in rem action is an action between parties where the direct object is to reach and dispose of property owned by them or some interest therein. Jurisdiction was acquired because it was a quasi in rem action, where jurisdiction over the person is not required and where the service of summons is required only for the purpose of complying with the requirement of due process. 3. As to VENUE Transitory Action

1. As to SUBJECT MATTER Real Action

Personal Action Mixed Action

Action brought for the protection of real rights, land, tenements or hereditaments or one founded on privity of estate only (accion reivindicatoria) Action which is not founded upon privity of real rights or real property (action for a sum of money) Actions brought for protection or recovery of real property and also for award for damages

One which is not directed only against a particular persons but against the thing itself and the object of which is to bar indifferently all who might be minded to make an objection against the right sought to be enforced (judgment which is binding to the whole world) One which is directed against particular persons on the basis of their personal liability to establish a claim against them and the judgment wherein is binding only upon the parties impleaded or their successors in interest One directed against particular persons but the purpose of which is to bar and bind not only said persons but any other person who claims any interest in the property or right subject of the suit.

Local Action

One the venue of which is dependent generally upon the residence of the parties regardless of where the cause of action arose One which is required by the Rules to be instituted in a particular place in the absence of an agreement to the contrary

PROBLEM: A shipment of goods by sea from Hong Kong to Manila is covered by a bill of lading. The consignee is unhappy with the shipment. He brings an action against the shipper and carrier in Manila. The stipulation in the contract provides for an arbitration clause. The defendants filed a Motion to 26 of 229

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Dismiss on the ground of failure to comply with condition procedure – arbitration. Rule on the motion. ANSWER: Denied. If the plaintiff files a case which is premature or fails to exhaust administrative remedies, then the case can be dismissed for failure to state a cause of action. Since there is no cause of action, the case is not yet ripe for adjudication by a court. * When the plaintiff fails to resort to the Katarungang Pambaranggay according to Supreme Court Administrative Circular 14-93, the case can be dismissed for failure to state a cause of action or failure to comply with condition precedent. However, the Supreme Court also said that the proceedings in court can also be suspended. (Bengzon v Chan). If there is no resort to arbitration before the case is brought to court, the court may suspend the case applying SC Administrative Circular 14-93. PROBLEM: The complaint prays for sum of damages worth P2,000,000.00. The complaint is lodged with the RTC. But in truth and in fact, the plaintiff is only entitled to P100,000.00 Defendant filed a motion to dismiss for lack of jurisdiction over the subject matter. Rule on the motion. ANSWER: Denied. Jurisdiction is determined by the allegations in the complaint and not the evidence presented. Jurisdiction of the courts is based on the amounts stipulated in the allegations. PROBLEM: Petitioner wants to challenge the constitutionality of a statute, can he go directly to the Supreme Court? ANSWER: No. Lower courts have the jurisdiction to rule on the constitutionality of statutes. This refers to a decentralized type of judicial review, in which the power to decide the constitutionality of a statute is not reposed on the Supreme Court alone, but to lower courts as well. PROBLEM: Plaintiff files an action for ejectment and recovery of P1,500,000.00. Where should he file? ANSWER: MTC. The Revised Rules of Summary Procedure provide that all cases of forcible entry and unlawful detainer IRRESPECTIVE of the amount of damages and unpaid rentals sought to be recovered are vested with the MTC, MeTC, MCTC. (Revised Rules of Summary Procedure Section 1 A (1)). PROBLEM: Plaintiff files an action to collect P10,000.00.The defendants reside in QC. Do they still have to go through the Katarungang Pambarangay? ANSWER: Yes. Plaintiff must go through the process in the barangay of defendant. However there are EXCEPTIONS to the Katarungan Pambarangay (SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 14-93):

1. Where one party is the government, or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; 3. 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; 4. 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); 5. 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; 6. 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); 7. Offenses where there is no private offended party; 8. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following: a. Criminal cases where accused is under police custody or detention (See Sec. 412 (b)(1), Revised Katarungang Pambarangay Law); b. 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; c. Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and d. Actions which may be barred by the Statute of Limitations. 9. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice; 10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657); 11. 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); 12. Actions to annul judgment upon a compromise, which may be filed directly in court (See Sanchez vs. Tupaz, 158 SCRA 459). PROBLEM: Complainant filed in the RTC to recover payment for P15,000.00, attorney’s fees of

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P5,000.00 and interest accrued as of the time of the filing, P1,500.00. Defendant moves to dismiss on the ground of RTC’s lack of jurisdiction. His motion is granted. Plaintiff then appeals to the Court of Appeals. Resolve the appeal. ANSWER: The CA should dismiss the case outright. (Rule 50, Sec 2). This is a significant change from the old rules where the CA should just certify a wrongfully-filed case to the SC. Supreme Court has appellate jurisdiction over cases in which the jurisdiction of the Regional Trial Court over the subject matter is an issue. PROBLEM: If the action is to recover the P15,000.00 balance from a contract to buy a car which is worth P500,000.00, which amount is determinative of the jurisdiction of the court? ANSWER: Amount in the claim. The settled rile is that the jurisdiction over the subject matter is determined by the allegations of the complaint. MTC, MeTC and MCTC have jurisdiction over the P15,000.00 balance. PROBLEM: Plaintiff files for an action to rescind a contract. Where must it be filed? ANSWER: RTC, since the action is not capable of pecuniary estimation. PROBLEM: Plaintiff files a performance of a contract P50,000.00. Where do you file?

case for specific to sell involving

ANSWER: RTC. The action is for specific performance which is not capable of pecuniary estimation. PROBLEM: Plaintiff files a case for specific performance of a contract to sell involving a P50,00.00 with alternative prayer of P50,000.00 worth of damages. Where do you file? ANSWER: Two scenarios are contemplated: 1. if the alternative prayer can be granted without granting the main prayer, the case is capable of pecuniary estimation and should therefore be filed in the MTC, since the amount of P50,000.00 is within the jurisdictional limits of the MTC. 2. However, if the alternative prayer cannot be granted without first determining the main prayer, the case remains incapable of pecuniary estimation, and therefore must be filed with the RTC. Commencement of an Action (Rule 1, Sec.5) When is an action said to have been commenced? A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading,

irrespective of whether the motion for its admission, if necessary, is denied by the court. CB v. CA “Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period.” The prescriptive period mentioned here refers to the period within which a specific action must be filed. In this case, the claim for damages arising out of an injury of PBP’s rights was filed beyond the four-year extinctive prescriptive period under Article 1146, Civil Code. Manuel v. Alfeche This was the libel case filed by the Shabu Queen against the Panay News. In case the civil liability is instituted with the criminal action, the following rules shall apply in assessing the filing fees, (citing General v. Clavall) (a) when the amount of damages, other than actual, is alleged, then filing fees should be paid. (b) if there is a claim for damages but the amount is not specified, then filing fees shall constitute a lien on the judgment and filing fees need not be paid. Go v Tong. In this case, the court allowed for the payment of docket fees in a staggered basis, for as long as the full payment was made within reasonable time but not beyond the prescriptive period. When is an action said to have been commenced? An action commences from the filing of the original complaint and the payment of the prescribed docket fees. Avena Notes (23 Nov 04) Hernandez v Rural Bank This was a personal action by Hernandez spouses to compel Rural Bank to accept a check in payment of their P6,000 loan and to cancel mortgage on their land. When the Hernandez spouses filed suit, the liquidation of the bank was already pending. It was somewhat strange for the spouses to have mailed the check to the court. An action to foreclose a mortgage on real property is a real action since it affected the owner’s title and right to the property. Venue was improperly laid since the action was filed in CFI-Lipa City despite the fact that the property mortgaged was in Quezon City and the spouses lived in Cubao, Quezon City. Manuel v. Alfeche Delia Manuel was alleged to be the millionaire Shabu Queen by the Panay News. Delia brought a libel suit against Panay News.

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GENERAL RULE: A civil action is deemed instituted in a criminal action, thus no filing fees are required. EXCEPTION (c/f General v. Clavall): 1. when the amount of damages, other than actual, is alleged by the complainant then the filing fees should be paid. 2. if there is a claim for damages but the amount is not specified, then the filing fees should constitute a lien on the judgment and the filing fee need not be paid. Cause of Action RULE 2 CAUSE OF ACTION Ordinary civil actions, basis of. Every ordinary civil action must be based on a cause of action. (Sec. 1, Rule 2)

Cause of action, defined. A cause of action is the act or omission by which a party violates a right of another. (Sec. 2, Rule 2)

One suit for a single cause of action. A party may not institute more than one suit for a single cause of action. (Sec. 3, Rule 2)

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. (Sec. 4, Rule 2)

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

Misjoinder of causes of action. Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. (Sec. 6, Rule 2)

Effect of Splitting a Cause of Action. Grounds for Motion to Dismiss an Action (Rule 16, Section 1 (e), (f)) 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:

(e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations;

Joinder of Parties. (Rule 3, Sec. 6) All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.

Felipe v. Leuterio A contestant has no right to the prize, unless and until he or she is declared winner by the board of referees or judges. A wrong, under a cause of action, refers to a violation of a right. C/f damnum absque injuria – damages without legal injury. Santiago v. Bautista Committee of teachers, who were tasked with ranking the honor students, was not exercising quasi-judicial functions as it was not determining what the law was. Sagrada v. NACOCO Sagrada filed suit against NACOCO for seizure of lands that Sagrada previously owned prior to the Japanese occupation. NACOCO was not liable under any of the sources of obligation: was not guilty of an offense, was not negligent and was not privy to any contract. Ma-ao Sugar Central v. Barrios This was an action to recover money before the outbreak of the war. The complaint did not state a cause of action, as there was no act or omission of the defendant in violation of the plaintiff’s right due to the prevailing Moratorium Law that had suspended the payment of debts. There can be no action to compel recognition of a debt which is not yet due, because it would unnecessarily require the debtor to bear incidental expenses. Union Glass v. SEC Union Glass should be joined in the action between Pioneer Glass and DBP because Union Glass was in possession of the glass plant subject of the dacion en pago agreement between Pioneer Glass and DBP. Regalado Notes. What is a cause of action?

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A cause of action is the act or omission by which a party violates a right of another. It is the delict or wrongful act or omission committed by the defendant in violation of the primary right of the plaintiff. The singleness of a cause of action lies in the singleness of the delict or wrong violating the rights of one person. These pertain to rights under substantial law that are violated. What is splitting a single cause of action? Splitting a cause of action is the act of diving a single cause of action, claim or demand into two or more parts, and bringing suit for one of such parts only, intending to reserve the rest for another separate action. The purposes of the rule are to avoid harassment and vexation to the defendant and to obviate multiplicity of suits. What is the remedy for splitting a cause of action? Where a single cause of action has been split, the remedy of the defendant is to move to dismiss under Rule 16 (Motion to Dismiss) on the ground that there is another action pending between the same parties for the same cause, or litis pendentia (Rule 16 Sec 1(e)); or if the first action has already been terminated, on the ground of re judicata (Rule 16 Sec 1(f)). In Ma’am conyo accent, “it’s when you make the action tingi”.  Can a non-payment of mortgage loan be split into two action? No, there cannot be one action for payment of debt and another action for the foreclosure of the mortgage. There is but one cause of action. What is a joinder of cause of action? The joinder of a cause of action in one complaint is the assertion of a party of as many causes of action as he may have against an opposing party. The purpose of the joinder of causes of action is to avoid multiplicity of suits. The joinder of cause of action is merely permissive. The plaintiff can always file separate action for each cause of action. What are the requisites for the joinder of cause of action? 1. That the joinder of cause of action complies with the rules of joinder of parties. 2. That the joinder of parties does not include any special civil actions. (i.e. one cannot join an action for an insolvency proceeding) 3. Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of

action falls within the jurisdiction of said court and the venue lies therein; and 4. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. What are the requisites for a joinder of parties? 1. action is based on the same transaction or series of transactions. 2. the controversy involves a common question of law or fact. 3. the joinder of parties is allowed by law. Is joinder of causes of action different from joinder of parties? Joinder of causes of action refer to two or more person, each having a cause of action against another person, join their causes of action in one complaint or where the plaintiff having several causes of action, each against several persons, join theses causes of action in one complaint. Joinder of parties properly applies when two or more persons having a joint right in one claim, or are jointly liable in one claim. What is a misjoinder of causes of action? In cases of misjoinder of causes of action, the cause of action is erroneously joined to each other. In such cases, the cause of action erroneously joined need only be separated and dismissed without, affecting the action with regard to the other cause or causes of action. A misjoinder of causes of action is not a ground for dismissal of an action. There is no provision on or sanction against a non-joinder of separate causes of action since the plaintiff needs only a single cause of action to maintain an action. This is in full accord with the idea that joinder of causes of action is merely permissive.

Avena Notes (16 Nov 04) What are the elements of a cause of action? 1. legal right of the plaintiff 2. correlative obligation of the defendant 3. act or omission of the defendant in violation of said right. Give an example of a splitting of a cause of action. In a case of contract to sell a car, the vendor changes his mind and sells the car to someone else. If the vendee institutes one suit for specific performance to compel vendor to sell him the car and another suit for damages, then the vendee is said to have split his cause of action. There is one cause of action (the failure of the vendor to sell the car to the vendee) but two suits.

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The cause of action refers to the act or omission. A single cause of action can give rise to many reliefs.

established that there was a vehicular accident, who among the parties should be liable)

Give an example of joinder of causes of action. A joinder of causes of action happens when there are several causes of action against a single opposing party. An example would be in a case for a transportation accident. (c/f maritime trade under Prof. Camacho). When a passenger is transported by a common carrier like a jeepney and through the driver’s negligence the passenger is injured due to a collision with a truck, then the accident gives rise to two types of action – one for a breach of transportation contract with the common carrier (breach of contract) and another as well for damages arising from the negligence of the driver (quasi-delict under Article 2176 and 2180 of the Civil Code).

Avena Notes (23 Nov 04)

What is meant by “transaction” and “a series of transactions” in a joinder of causes of action or joinder of parties? A transaction refers to an event and it does not necessarily pertain to a contract. A vehicular accident, although there is no contract, gives rise a transaction under a quasi-delict. Series of transaction refer to chronologically successive events. “GULAT” INCIDENT. (Ma’am’s favorite example) A law student suffers from a heart condition and is frequently stressed from his civ pro case load. Not knowing of his condition, his blockmate hides behind the door to surprise him. When the stressed out law student enters the classroom, his prankster classmate surprises him. Startled, the surprised law student suffered a mild heart attack and was rushed to the UP Infirmary. He had to be hospitalized for 7 days, paid for his hospital bills, and missed his favorite civ pro class. He sues the prankster classmate in court for damages. Will the suit prosper? This is a case of damnum absque injuria or loss, hurt or harm without injury in the legal sense, that is without such breach of duty as is redressible by a legal action. There is a loss or injury but it does not give rise to an action for damages against the person causing it. According to ma’am, pranks are part of the Filipino culture. Paano kaya kung si ma’am yun ginulat? Differentiate a question of fact and a question of law. A question of fact pertains to what had happened. It points to an issue involving the resolution of a factual dispute. (i.e. whether or not an vehicular accident did occur) A question of law pertains to questions concerning the legal effects to be given an undisputed set of facts or an issue which involves the application or interpretation of a law. (i.e. having

In reference to the sore losers cases of Felipe v. Leuterio (oratorical contest) and Santiago v. Bautista (third honors kid), were the cases dismissed for lack of cause of action or lack of judicial power or both? According to Ma’am, the court muddled the basis for not taking cognizance of the cases presented. If the basis was lack of judicial power, then the court’s argument is premised on the exercise of judicial power, as provided by the constitution, which was confined to deciding actual controversies of rights arising from law or in instances of a public officer’s grave abuse of discretion. In cases of oratorical, beauty and other contests, there is no law that is said to apply as it is a private affair. If the basis is lack of cause of action, then the argument would be that contestants in such competition have no right to demand the prize and the organizers have no obligation to give the prize, unless one is declared a winner. Only when a contestant is declared a winner, that a vested right arises to the prize. Another example would be betting in a lottery; a bettor cannot demand a right to the prize by mere purchase of the ticket because a right vests upon the bettor only upon the winning of his ticket. There was no legal obligation that arose in favor of the contestants. (obligations are derived from law, contract, quasi-contract, delict, quasidelict). Avena Notes (25 Nov 04) Felipe v Leuterio The case of the disputed oratorical contest were Felipe did not win. The basis for the action was the faulty addition of one of the judges of Felipe’s score. In this case, what is the act or omission by which Felipe’s right was violated? What was the legal obligation which gave rise to Felipe’s right? Santiago v Bautista Committee of teachers which decided the honors placed to graduates of a primary school. Under the 1987 Constitution, every government body was subject to review. c/f Rule 43 Sagrada v NACOCO This case involved land sold during the Japanese occupation. Under the Trading with the Enemy Act, all enemy property was confiscated by the US.

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Sagrada’s claim for unpaid rentals used on their land was without basis. Civil procedure comes under the mandate of judicial power. Ma’ao Sugar Central v Barrios This case involved the application of the debt moratorium after the war to debts. The cause of action must exist by the time the complaint was filed. One would not file a complaint if there was no cause of action preceding that would justify the filing of the action. (Ma’am explains: kaya ka nga magdedemanda kasi may nangyari.) Under the debt moratorium law, the cause of action existed, since the debt became due as per agreement of the parties. However, the enforceability of a creditor’s claim for a debt against the debtor was suspended due to the moratorium law. Suspension of the cause of action is different from the suspension of the enforceability of the cause of action. The latter describes the situation in this case, where the legal obligation still exists but the creditor cannot move for its execution, unless the debt moratorium imposed by the government is lifted. The cause of action did arise but its enforceability was suspended by law. (Ma’am comments that the decision by the SC in this case was hazy because the court said there was NO cause of action, which is to be distinguished from that the enforceability of the action was suspended.) Union Glass v SEC This involved a case of an intra-corporate dispute between stockholders. The SC said that even if Union Glass had possession of the glass plant of Pioneer Glass, the action filed in the SEC was between stockholders of Pioneer. Since there was no intra-corporate relation between the stockholders and Union Glass, Union Glass should not be joined in the action. * Ma’am is quick to point out that under the new rules, the ruling in Union Glass has been overturned as the RTC now has jurisdiction of intra-corporate disputes. RTC is more competent than SEC officers because SEC officers are administrative officers and not objective and knowledgeable arbiters of disputes.

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IX. Parties to Civil Actions (Rule 3)

Skyvision, since the agreement to set-off Skyvision loan with Velarde’s retirement benefits was subject to the approval of Skyvision.

A. Requisites Who may be parties?

B. Kinds of Parties

Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) party defendant. (Sec. 1, Rule 3)

Juasing Hardware v. Mendoza Juasing Hardware had no personality to sue because it was neither a natural or juridical person with capacity to sue. Juasing Hardware was a single proprietorship, which is a mere form of business. The case should have been filed in the name of the owner with the words “doing business, as Juasing Hardware.” What is a party in interest? A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. (Sec. 2, Rule 3) Joya v. PCGG This was an action filed by a group of art lovers to enjoin the PCGG from pushing through with an auction of paintings and silverware. The art lovers had no legal standing, which is defined as personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of a government act. (material interest) Oposa v Factoran. Class suit of minors and their parents against DENR Secretary to stop issuance of timber license agreements. Class suit was allowed to represent even generations yet unborn. (Intergenerational responsibility) FELICIANO: The court recognized a beneficiaries’ right of action in the field of environmental protection. Velarde v. Lopez Counterclaim of Velarde should not be against Lopez but against Skyvision, because Velarde was an employee of Skyvision and Skyvision had a separate corporate personality as a subsidiary from the parent company of Lopez Group. The tortuous manner of forced retirement is attributable to

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

Spouses as parties.

Husband and wife shall sue or be sued jointly, except as provided by law. (Sec. 4, Rule 3) Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (Article 145, Family Code) A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same. (Article 111, Family Code)

Minor or incompetent persons.

A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. (Sec. 5, Rule 3) Age of majority was lowered to 18 years of age by RA 6809. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned un Articles 37 and 38, may contract marriage. (Article 5, Family Code)

Entity without juridical personality as defendant.

When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. (Sec. 15, Rule 3)

Unknown identity or name of defendant. Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly. (Sec. 14, Rule 3)

Unwilling co-plaintiff.

If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a

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defendant and the reason therefor shall be stated in the complaint. (Sec. 10, Rule 3)

Indigent Party. A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may impose. (Sec. 21, Rule 3)

Compulsory joinder of indispensable parties.

Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. (Sec. 7, Rule 3)

Arcelona v. CA The nonresident brother, sister and wife of the deceased brother should have been impleaded in the action, as they were co-owners of an indivisible pond and as such were indispensable parties. A tenant who fails to implead all co-owners cannot establish with finality his tenancy over the entire co-owned land. Cerezo v. Tuason The driver of the vehicle in a car accident was not an indispensable party in this case, since the action was for the negligence of the employer. An employer’s liability for quasi-delict is primary and direct, unlike in a criminal action where the employer’s liability is subsidiary. Necessary party.

A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (Sec. 8, Rule 3)

Permissive joinder of parties. All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any

plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. (Sec. 6, Rule 3)

Flores v. Mallare-Philipps This was a case involving two separate purchases of truck tires by two distinct entities from one vendor, Flores. There was a misjoinder of parties because each had a separate and distinct cause of action. The totality of claims rule applies only when a suit joins tow or more causes of actions that arise out of the same transaction or series of transactions. If joinder of causes of action arises out of the same transaction or common question, then the totality of all the claims is the jurisdictional test; if there are different causes of action, each claim shall be the test of jurisdiction. Non-joinder of necessary parties to be pleaded.

Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. (Sec. 9, Rule 3)

Alternative defendants. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. (Sec. 13, Rule 3)

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. (Sec. 12, Rule 3)

Newsweek v. IAC This was a class action for libel brought by an association of sugar planters against Newsweek for an article about the brutality and exploitation of sugar can laborers. The action was not a proper class suit because each plaintiff has a separate and distinct reputation within the community. In a libel case, the person upon whom the defamatory remarks are

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aimed should be identified and individualized, in order that the readers can identify them. Notice to the Solicitor General. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him. (Sec. 22, Rule 3) C. Effects Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11, Rule 3)

Supervening Incompetency or Incapacity.

If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. (Sec. 18, Rule 3)

Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (Sec. 16, Rule 3) When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. (Sec. 20, Rule 3)

Father filed an action for damages for the death of his deaf-mute son, who died while alighting from a bus of Bicol Transport Company. An agreement was entered into between the father and his son in law, in which the father assigned his interest in the case to his son in law. After the father had assigned his interest in the case to his son in law, father continued the suit as a trustee. The son in law remained the real party in interest and substitution was a mere formality. Gojo v. Goyala Before amending of the complaint in case of death of the plaintiff, there must be a substitution order by the court. An order to amend the complaint before proper substitution of parties if void and imposes no duty to comply. Transfer of interest.

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. (Sec. 19, Rule 3)

Death or separation of a party who is a public officer. When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard. (Sec. 17, Rule 3)

Regalado Notes: Under the Rules of Court, who may be parties to an action? 1. Natural persons. 2. Juridical persons. 3. Entities authorized by law. Who is a party in interest? A real party in interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. (i.e. in an action for ejectment, the owner of the property is a real party in interest). The underlying notion behind the requirement of the real party in interest is to protect the party who pays or recovers according to the judgment. Due process demands that no judgment can bind one who is not a party. As such, parties to a

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case are entitled to notice as to orders, pleadings, etc. They can also take part in the proceedings. If the suit is brought against a party who is not a real party in interest, what should one do? If the action is prosecuted by one who is not the real party in interest, then the action may well be moot and would then not be an actual controversy involving rights which are legally demandable and enforceable and therefore outside the scope of the judicial power exercisable by our courts. (Art VIII, Sec.1, 1987 Constitution). Courts are not allowed to adjudicate moot and hypothetical case. If the suit is not brought in the name of or against the real party in interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. (Rule 16 Sec 1(g)). Standing in an action is part of the cause of action. What are the different modes of becoming a party in a civil suit? 1. When you sue. 2. When you are sued. 3. Impleaded through a third party complaint. 4. Intervention. 5. Defendant on a counterclaim, brought in as a new party. Should a representative implead his principal in the suit? Yes. The impleading of the beneficiary as a party to the suit is now a mandatory requirement and not a discretionary procedure. Unless the action is authorized to be brought in the name of the representative, the action must be brought in the name of the real party in interest, otherwise, it may be dismissed for failure to state a cause of action. What are the different classes of parties in interest? Indispensable Parties. Those who without whom no final determination can be had of an action. (Sec 7). If a judgment in the action cannot be rendered without affecting a party, then this party is indispensable, as in an action by a lessor against a sub-lessee the sublessor may well be an indispensable party. Necessary Parties. Those who are not indispensable parties but ought to be parties if completer relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (Sec 8) i.e. junior mortgagee who, if not made a party to an action for foreclosure of the real estate mortgage, will simply not be bound by the judgment therein but his non-joinder will not preclude the action. Representative Parties. Those who act in a representative capacity for another. (Sec 3). I.e. labor unions

Pro Forma Parties. Those who are required to be joined as co-parties in suits by or against another party as may be provided by applicable substantive law or procedural rule (Sec 4) Also known as nominal parties or parties who are joined as plaintiffs or defendants, not because they have any real interest in the subject matter or because any relief is demanded against them, but merely because the technical rules of pleading require their presence on the record. I.e. spouses in some cases. Quasi Parties. Those in whose behalf a class or representative suit is brought. (Sec 17). Parties who were not initially and formally pleaded as original parties to the case, but later bound themselves to comply with the terms of a judgment on compromise rendered therein may also be considered as quasi parties in said case. (Rodriguez v Alikpala, GR No. L-38314, June 25, 1974) When can the wife be sued alone? Art. 113 Civil Code. The husband must be joined in all suits by or against the wife, except: (1) When they are judicially separated; (2) If they have in fact been separated for at least one year; (3) When there is a separation of property agreed upon in the marriage settlements; (4) If the administration of all the property in the marriage has been transferred to her, in accordance with Articles 196 and 197; (5) When the litigation is between the husband and wife; (6) If the suit concerns her paraphernal property; (7) When the action is upon the civil liability arising from a criminal offense; (8) If the litigation is incidental to the profession, occupation or business in which she is engaged; (9) In any civil action referred to in Articles 25 to 35; and (10) In an action upon a quasi-delict. In the cases mentioned in Nos. 7 to 10, the husband must be joined as a party defendant if the third paragraph of Article 163 is applicable. (n) In a suit by an incompetent person, must there be a judicial declaration of incompetence before his parents or guardian can sue or be sued through them? No. The suit can be brought by or against him personally but with the assistance of his parents or his guardian. It is sufficient that his incompetency be alleged in the corresponding pleadings and the trial court may pass upon the truth and effects thereof. What are the requisites for permissive joinder of parties? 1. That there exists in their favor or against them a right of relief in respect or arising out of the same transaction or series of transaction.

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2. There is a question of law or fact common to all the plaintiffs or defendants. 3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue. What is a misjoinder of parties? When any of the first two requirements for permissive joinder of parties is not satisfied, then there is a case of misjoinder of parties. Is misjoinder or non-joinder of parties a ground for dismissal? No. Any claim against a misjoined party may be severed and proceeded with separately. In case of non-joinder of an indispensable party, the party who insists on his impleader may move for such joinder. Is joinder of causes of action different from joinder of parties? Joinder of causes of action refer to two or more person, each having a cause of action against another person, join their causes of action in one complaint or where the plaintiff having several causes of action, each against several persons, join theses causes of action in one complaint. Joinder of parties properly applies when two or more persons having a joint right in one claim, or are jointly liable in one claim. What does “series of transactions” mean? Series of transactions means separate dealings with the parties but all of which dealings are directly connected with the same type of subject matter of the suit. What is the effect of the rule on totality of claims to joinder of parties and jurisdiction of the court? Where a complaint contained two causes of action each for a sum of money less than P100,000.00 owed by the plaintiff to a different defendant and arising from different and independent transactions, although the total of both claims exceeds P100,000.00, the Regional Trial Court has no jurisdiction since the totality rule involving the different parties, in Sec 33(1) if BP 129 and Sec. 11 of the Interim Rules, is subject to the requirements of joinder of parties, one of which is that the right to relief arises out of the same transaction or series of transactions. (Flores v Mallare-Philipps, et al, GR No. 66620, September 24, 1986) PROBLEM: Eva Fonda, 16, is a movie actress. She went to a shooting in the jungles of Mindanao. She was accidentally shot by a hunter, so she was hospitalized, thus taken out of the picture. She brought an action against Regal Films, the movie production, and against the hunter. What is her capacity to sue? Can she sue alone?

ANSWER: Eva Fonda cannot sue alone. She has to be joined and assisted by her father, mother or guardian, since she is a minor. In the alternative. PROBLEM: Eva Fonda, is now 19 and married to her co-star. While shooting for a different film in Mindoro, she was shot on the leg by a hunter. She is unable to complete the movie and was replaced by a rising starlet. Eva sues for tort. Does she have the capacity to sue? Can she sue alone, without her husband? ANSWER: Yes, she can sue alone without her husband, since the cause of action was in the exercise of her profession and it does not involve the conjugal property of the spouses. PROBLEM: If Eva Fonda sues both the hunter and the movie company, there would be 1 plaintiff with 2 defendants and 2 causes of action (tort and breach of contract). Should there be a joinder of causes of action under Rule 2, Section 5 (a) ANSWER: One cannot have a joinder of causes of action, if the parties are misjoined. The parties are properly joined because there is the same transaction and involves common questions of law and fact. In this case, there is a common question of fact. The fact that Eva was shot, led to her being unable to finish the film. Plus, the movie may be held liable for contributory negligence since it should have made sure that no harm would come to Eva. Avena Notes (25 Nov 04) Who may be parties? Natural or juridical persons authorized by law. (Rule 3 Sec.1)

or

entities

Who are natural persons? Who are juridical persons? Natural persons are human persons. Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (Civil Code) Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (Civil Code) Juridical persons are those entities created by law. They exist as legal fiction. (i.e. corporations and partnerships which have a separate and distinct legal personality from stockholders and partners, respectively.)

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Art. 44. The following are juridical persons: (1) The State and its political subdivisions; (2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law; (3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. (Civil Code) Oposa v. Factoran This was an action to prohibit Sec. Fulgencio Factoran from issuing any more timber license agreements and to cancel those currently existing. The action was sued in representation of generation yet unborn with regard to their right to a healthful and balanced ecology. The SC recognized their right to sue but limited their relief to temporary restraining orders and to prohibition. They were not allowed to ask for damages. Avena Notes (30 Nov 04) Who can sue? (Rule 3 Sec.1) 1. Natural Persons 2. Juridical Persons 3. Entities authorized by law What is juridical personality? Is it different with judicial capacity? Juridical personality, with respect to civil procedure, is the capacity to sue and be sued. It pertains to a party’s rights and obligations. Juridical personality does not always mean juridical capacity. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. (Art. 37, Civil Code) Can a retard sue? Yes. Even if a person is an imbecile, he can still act through his father, mother, or guardian. What is a guardian ad litem? Is he any different from an ordinary guardian? A guardian ad litem is a special guardian appointed by the court in which a particular litigation is pending to represent an infant, ward or unborn person in that particular litigation, and the status of the guardian ad litem exists only in that specific litigation in which the appointment occurs. (Black’s Law Dictionary.) He is a representative of his ward for a particular suit. He is different from an ordinary guardian. A general guardian is one who has the general care and control of the person and estate of the ward. (Black’s Law Dictionary). He can be a guardian over

the person or over the property of the ward or both at the same time. When an action is not prosecuted or defended in the name of the real party in interest, what is the remedy? The opposing party can file a motion to dismiss on the ground that the pleading submitted failed to state a cause of action, since naming of the real party in interest is an element in any cause of action. The motion to dismiss based on a lack of capacity to sue is untenable because there was no real party in interest to speak of in the first place, much less capacity. Ma’am Avena’s Jericho Rosales example. Jericho Rosales met a vehicular accident which led to injuries to his face and forced him to cancel filming of his Filmfest entry. He filed suit against the driver and the owner of the car for damages. The president of his fans club also filed action against the driver and the owner of the car, saying that she had sleepless nights and hurt feelings in seeing her idol disfigured and unable to act anymore. Will her suit prosper? A real party in interest is one who has a direct and substantial interest to the case. If you are not a real party in interest, then you have no cause of action. Sample Pleading to illustrate real party in interest and cause of action. (A borrowed money from X. A failed to pay X. X files an action in court) Republic of the Philippines Regional Trial Court National Capital Region Ms. X, Plaintiff vs. Mr. A, Defendant

Case No. 0917 FOR: Sum of Money COMPLAINT

PLAINTIFF, by counsel, respectfully states that: 1. THAT Plaintiff, Ms. X is a Filipino and of legal age, residing at 1 Malakas St., Quezon City. 2. THAT Defendant, Mr. X, is a Filipino and of legal age, residing at 2 Malakas St., Quezon City. 3. THAT on 1 January 2000, Defendant loaned from me P400,000.00. 4. THAT defendant agreed to pay the plaintiff on 1 January 2004. 5. THAT after 1 January 2004, defendant failed to pay his loan. 6. THAT after repeated demands, defendant refuses to pay his loan to this day. 7. THAT defendant’s refusal to pay has caused plaintiff to suffer material injury because she was not able to use the money for her other living expenses.

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WHEREFORE, plaintiff respectfully prays for judgment in its favor by ordering defendant to pay the principal sum of P400,000.00, legal interest from 1 January 2004 until the loan is paid, moral damages, exemplary damages and costs of this suit. What are the elements of a cause of action? 1. the right invoked by the plaintiff. 2. the act or omission committed by the defendant 3. that said act or omission violated the rights of the plaintiff. * If any of these elements are not present, then the complaint fails to state a cause of action. Can a real party in interest be represented? Yes. (Rule 3 Section 3) PROBLEM: An owner of a building in Manila now resides in South Africa. The owner gives a special power of attorney to the administrator of the building to manages the building and send to him rentals from the tenants of the building. One of the tenants fails to pay, so the administrator sues the defaulting tenant. The administrator presents the power of attorney, justifying his appearance in the action in representation of the non-resident owner. Counsel for the tenant discovers that the power of attorney was forged and wants to submit this issue before the court. What should he do? Counsel for the tenant should file a motion to dismiss based on lack of capacity to sue (Rule 16, Sec 1(d)) because the administrator had no authority to sue in behalf of the owner of the building since his alleged authority was derived from a false power of attorney. What are the limitations to a party’s right to sue? 1. age. 2. incompetency 3. civil interdiction 4. marriage. Is an unwilling co-plaintiff a necessary or indispensable party? The unwilling co-plaintiff is an indispensable party and cannot refer to a necessary party because the suit would not proceed without the co-plaintiff being impleaded in the action. Give an example of an unwilling co-plaintiff under Rule 3 Sec 10. In a suit for recovery of rentals from a lessee where the building leased is co-owned by four sisters and 1 brother, the brother does not want to join in the suit against the lessee. Since co-owners are indispensable parties, all co-owners must be impleaded in the action concerning the property coowned. If the brother refuses to join his sisters, the sisters can continue with the case and implead their

co-owner brother as a defendant and state the reason why his consent to the suit cannot be obtained. Are co-owners always indispensable parties to a suit involving the property co-owned by them? Yes, except in cases of ejectment. Where the real property is co-owned, each co-owner is allowed to bring an action by himself alone for ejectment. The theory here is that each co-owner is owner of the entire property pro indiviso. (Art. 487, Civil Code). Can there be permissive joinder of parties involving indispensable parties? No. Permissive joinder of parties in Rule 3 Section 9 pertains to necessary parties. That a party is indispensable means that their joinder in the action is compulsory and not merely permissive. Distinguish between entities authorized by law (Rule 3 Sec. 1) and persons not organized as an entity with juridical personality (Rule 3 Sec. 15). Entities authorized by law include 1. corporations by estoppel (Chiang Kai Shek School v CA) 2. estate of a deceased person (Limjoco v Intestate Estate of Fragrante, Estate of Mota v. Concepcion) 3. the Roman Catholic Church (Barlin v. Rodriguez) 4. action brought against a building (Broadway Theater), where the lessee filed an answer and later entered into a compromise agreement admitting liability (Ventanilla Enterprises Corp. v. Lazaro) Joya v. PCGG Artists were not the real parties in interest since the artworks complained of were not owned by them and the action was not a proper tax payer’s suit because no disbursement of public funds were involved. The artifacts and paintings were not considered as national treasures nor were they part of the cultural heritage as evidenced by the cultural properties register. Oposa v. Factoran The prayer of the plaintiffs was twofold. 1. annul or cancel the existing timber license agreements 2. stop the Sec. Factoran from issuing timber license agreements. The minors sued as plaintiffs invoking their right to a balanced and healthful ecology, provided by the Constitution. The SC recognized the beneficiaries’ right of action as even those generations yet unborn had a right to a balanced and healthful ecology as it was

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connected with the intergenerational responsibility to protect the environment. FELICIANO (Concur): It is necessary that we emphasize that the legal interest that we speak of that gives rise a cause of action is one that is specific, direct and material interest and not one that is of a general and vague mandate of the law. If otherwise, the court will be flooded with suits of a general nature not actual controversies. *Avena says that the court only granted the right to sue to generations yet unborn. Their recognition of these children yet unborn is limited only for the purpose of suing and to protect such generation in the present. It could not give rise for damages as the computation for such would effectively bankrupt the government due to the indeterminancy of the number of children that one might have. Velarde v. Skyvision Velarde, an employee of Skyvision sued Lopez Inc. for his retirement benefits. Complaint against Lopez did not prosper since Velarde’s employer was actually Skyvision and the piercing of the corporate veil was unwarranted because Skyvision and Lopez Inc. was of two distinct and separate personalities, even if Skyvision was a subsidiary of Lopez Inc. Arcelona v. CA Tenant was asserting a claim over a fishpond owned pro-indiviso by the siblings. All the co-owners of the fishpond should be impleaded as to make any judgment binding on the property and parties, even if some of the co-owners had already migrated to the US. Cerezo v Tuason The employee-driver of the bus company was not an indispensable party in a quasi-delict against the employer and owner of the bus company since the liability of the owner in a quasi-delict is direct and primary. A necessary party is not impleaded in the case. If the plaintiff fails to include the necessary party despite an order of the court to do so, the plaintiff’s claim against the necessary party is waived. (Rule 3 Sec. 9). If the necessary party files an action against the plaintiff after the latter’s complaint has been dismissed, will the subsequent action prosper? Yes, the judgment rendered in the original action by the plaintiff is without prejudice to the rights of the omitted necessary party. EXAMPLE: In a claim for damages arising from a car accident, the plaintiff sues the defendant but does not implead the insurer who is bound to pay under the defendant’s insurance contract. The judge dismisses the complaint saying the plaintiff was at fault. If the insured defendant subrogates his rights to the insurer after payment by the latter, the

insurer is not prevented from filing a new claim against the plaintiff in the former case. Bautista Notes: Can an entity without juridical capacity file an action against a person? No. An entity without juridical personality may not sue but it can be sued. (Rule3 Section 15). i.e. a school organization or law partnership neither of which are duly registered with the SEC. In a class suit, what kind of interest is considered? The interest of the class must be a common or general interest in the subject matter of the controversy and not merely in the legal question involved. The interest must be common and not independent for each member of the class and should not conflict with each other. Owners of subdivision lots in a subdivision cannot sue as a class because their interest is only in their respective lots. (Sulo ng Bayan, Inc. v Araneta, Inc.) What is the basis or policy behind allowing class suits? The authorization for a class suit is based on convenience. Extreme care must however be exercised in seeing to it that the class is a true class and that its members really have a common interest and that the one suing in behalf of the class is a member of that class and adequately represents their interest. What should the defendant do if an indispensable party is not impleaded? Rule 3 Sec. 11 provides that neither misjoinder or non-joinder of parties is a ground for dismissal of an action. So move for addition of the new party and if the plaintiff does not comply, you move to dismiss the complaint on the ground of Rule 17 Sec 3, for failure to comply without justifiable cause to the orders of the Court requiring that an indispensable party be impleaded. Avena Notes (4 Dec 04) Flores v. Mallare Philipps Flores joined two causes of action against two different persons. The joinder was not proper because it related to two transactions of different parties and there was no common question of fact. The decision clarified and corrected the phrase found in BP 129 Sec 33 (1) “irrespective of whether the causes of action arose out of the same or different transactions”. In a class suit, can a member of that class intervene?

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Yes, any party in interest shall have the right to intervene to protect his individual interest. (Sec.12, Rule 3) Newsweek v. IAC The libel case filed by the sugar planters against Newsweek was not a proper class suit . Reputation should be of common or general interest; but the reputations of each of the sugar planters was distinct and individual to them. Oposa v. Factoran The court found the case to be a proper class suit. Please refer to Feliciano’s opinion on the beneficiaries’ right of action. Is the appearance of the Solicitor General mandatory in actions involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations? No, it is discretionary upon the court to require the appearance of the Solicitor General in such cases. (Sec. 22, Rule 3) What are examples of action that are extinguished by death? In a criminal action where the accused dies, the civil action that is impliedly instituted with the criminal action dies with the accused. In cases of tort, the action is extinguished only when the defendant dies. Del Castillo v Jaymalin Deed of assignment of interest of the father in prosecuting his claim for damages for the death of his deaf-mute son was contracted in favor of the father’s son in law. The deed of assignment was a cession of rights of the father to his son in law. Differentiate a motion to dismiss based on lack of capacity to sue and failure to state a cause of action. Lack of capacity to sue pertains to the authority granted by law to a person to file suit or capacity to sue. Does the plaintiff have the legal requirements in order to have legal capacity to file the suit? Failure to state a cause of action describes a situation where substantive law does not grant a specific right to a person. Does the person state fully in his complaint his substantive rights granted by law that were violated? Was there a legal right violated?

What are the incidents or processes upon the death of a party to an action? 1. Duty of counsel to inform the court of the death within 30 days after of the fact of death. 2. Counsel must also give the name and address of the legal representatives of the deceased party. 3. Court shall order said legal representatives to appear and be substituted within 30 days from notice. 4. If legal representatives ordered to substituted fails to appear, court may order opposing party to procure the appointment of an executor or administrator for the estate of the deceased to immediately appear for and on behalf of the deceased party. Who may be legal representatives that can be substituted for the deceased party? 1. Heirs of the deceased, without requiring the appointment of executors or administrators. 2. If the heirs are minors, the court may appoint a guardian ad litem for them. 3. executors and administrators of the estate of the deceased party. 4. court appointed executor or administrator of the estate of the deceased party, procured by the opposing party. (court charges of procuring such appointment by opposing party may be recovered by the opposing party as costs.) What are the conditions for continuing an action against a public officer who died or was separated from public service? (Sec. 17, Rule 3) 1. Court is satisfactorily convinced by any party that there is a substantial need for continuing or maintaining the action. 2. The successor of the public officer adopts or continues or threatens to adopt or continue the action of his predecessor. 3. Application for continuing the action against the public officer is to be granted only after 30 days from the day the successor takes office. 4. Before substitution is made, the successor of the public officer shall be given reasonable notice of the application and be accorded an opportunity to be heard.

Gojo v. Goyala This case involved a dispute as to whether the parties agreed to a pacto de retro sale of land or a loan with real estate mortgage. The court found it was loan with equitable mortgage. Order of amendment by the trial court is void because the court should first order the substitution of parties.

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X. Venue of Actions (Rule 4) Venue of real actions.

Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated. (Sec. 1, Rule 4)

Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. (Sec. 2, Rule 4)

Venue of actions against non-residents. If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. (Sec. 3, Rule 4)

When Rule not applicable.

This Rule shall not apply: (a) In those cases where a specific rule or law provides otherwise; or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (Sec. 4, Rule 4)

People v. Sola Supreme Court has the constitutional power to order the change the venue of an action to avoid a miscarriage of justice. Time Inc., v. Reyes This was a libel suit filed by Manila Mayor Villegas and Enrile against Time for an article entitled “Corruption in Asia” in the CFI-Rizal. Since the public officer holds office in Manila and the libelous article was not printed in Rizal, the propert venue of the libel case is in CFI-Manila, as per RA 4363, which is now Article 360 of the RPC. The intent of the law was that a libeled public officer must sue in the court where he holds office in order to prosecute the action with little interference with the discharge of his public duties. Pilipino Telephone v. Tecson This was an action filed in RTC – Iligan for a sum of money based on 6 cellular phone subscription embodied in a Mobiline Service Agreement that stipulated that any suit arising from such relationship will be filed with RTC – Makati and the subscriber waives any other venue.

Parties, under Section 4 of Rule 4, are allowed to agree on the venue of any action arising between them, subject to the following requisites: 1. chosen venue is exclusive in nature or in intent 2. agreement is expressed in writing 3. it was agreed upon before the filing of the suit. Even if the service agreement was a contract of adhesion, the stipulations were clear and left no room for ambiguity. Regalado Notes How is the present rule on venue different from the old rules? The present revised Rule has adopted a uniform rules of venue for ALL TRIAL COURTS. Both the RTC and the Municipal Courts now have jurisdiction over real actions, depending on the value of the property in controversy. The venue for real actions being determined by the place where the real property is situated. For personal actions, the venue is determined by the residence of the parties, with special provisions for nonresident defendants. If the action involves various parcels of land situated in different provinces, where should the venue lie? The venue is determined by the singularity or plurality of the transaction involving said parcels of land. Where said parcels are the objects of one and the same transaction, the venue was in the RTC of any of the provinces wherein a parcel of land is situated. (El Hogar Filipino v. Seva) If the parcels of land are subject of separate and distinct transactions, there is no common venue and separate actions should be laid in the RTC of the province wherein each parcel of land is situated. (Mijares v. Piccio) Give examples of real action and personal action. REAL ACTIONS. 1. Action for annulment or rescission of a sale and the return of realty. 2. Action to compel the vendor to accept payment of the purchase price of the land. 3. Action to compel the vendor to deliver the certificates of title to the land. PERSONAL ACTIONS. 1. Action to recover the purchase price of the land. 2. Actions for recovery against the Assurance Fund. 3. Action for the annulment of the cancellation of the award of a lot in favor of the plaintiff 4. Action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage, if the mortgagee has not foreclosed the mortgage and the mortgagor is in possession of the premises.

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In an action to review an administrative decision of a public office involving real property, where does venue lie? Action should be brought to the RTC of the place where the public officer who rendered the decision holds office, and not where the land is situated.

In actions involving domestic corporations with a network of offices throughout the country, where does the venue lie? For purposes of venue, what is controlling is the location of the principal place of business and not the branch office or place of business thereof. (Sy v Tyson Enterprises).

In a personal action, what does residence pertain to? The residence referred to is the place where the party actually resides at the time the action is instituted, not his permanent home or domicile. The residence of the person is his personal, actual or physical habitation or his actual residence or place of abode, whether permanent or temporary as long as he resides with continuity and consistency therein.

Is the venue of a third-party complaint different from the venue of the main action? No. Since a third party-complaint is but ancillary to a main action, the rules on jurisdiction and venue do not apply to it. A third party complaint yields to the jurisdiction and venue of the main action even if said third party complaint is based on a separate agreement which specifies a different venue for suits arising from said agreement.

If there are more than one plaintiffs or defendants in an action, whose residence shall be considered in determining the venue? The residences of the principal parties should be the basis for determining the proper venue. If improper venue is not objected to in a motion to dismiss, is such ground deemed waived? No. Under the new rules, the ground for improper venue (Rule 16 Sec. 1 (c)) is placed on the same footing as the other grounds for dismissal in Rule 16, in that if such ground was not pleaded in a motion to dismiss, it may still be raised as an affirmative defense in the answer. (Rule 16 Sec. 6) What are the elements in stipulation by the parties of venue? 1. That the parties have validly agreed to stipulations regarding the venue of any action arising from their relation. 2. The agreement must be in writing. 3. The agreement must have arisen before the filing of the action. 4. The parties must have agreed on the exclusive nature of the venue. (restrictive nature of agreement) What is the fundamental principle behind the rules on venue? The fundamental principle is that the situs is fixed to attain the greatest convenience possible to the litigants by taking into consideration the maximum accessibility to them of the courts of justice.

Bautista Notes. When should a question on venue be raised? Questions on venue should be raised at the earliest time possible because the court has to resolve it at once. So that where the objection to the venue is denied, counsel must elevate it to the higher court at once on certiorari. Avena Notes ( 7 Dec 04) Time Inc. v Reyes This case applied the exception to the rule on venue under Section 4(a) of Rule 4 because Article 360 of the RPC specifically provides a different law on the venue of libel cases filed by public officers. Article 360 (paragraph 3) provides that the libel suit of the public officer shall be filed either in the CFI where he holds office at the time of the commission of the offense or where the libelous article is printed and first published. What are the requisites for the stipulation of parties as to venue of an action between them? (Sec. 4(b), Rule 3) 1. Parties must have validly agreed in writing as to the venue stipulation. 2. The written agreement was contracted prior to the filing of the action. 3. The stipulated venue of actions must be exclusive and cannot be concurrent or alternative.

If the parties have stipulated the venue arising out of the action, can the court annul these stipulations? Yes, the court may declare agreements on venue as contrary to public policy if such stipulation unjustly denies a party a fair opportunity to file suit in the place designated by the rules. i.e. contracts of adhesion involving passage tickets where the stipulation of venue was in fine print.

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XI. Kinds of Pleadings (Rule 6) OVERVIEW OF KINDS OF PLEADINGS 1. Pleadings in General (Rule 6 & 8) 2. The Claim (Rule 6) 3. The Answer (Rule 6) 4. The Reply (Rule 6) 5. Common Provisions (Rule 7 & 8) 6. Amended/ Supplemental Pleadings (Rule 10) 7. When to File Responsive Pleadings (Rule 11) 8. Filing/ Service of Pleadings, Judgments and Other Papers (Rule 13) 9. Computation of Time (Rule 22) 10. Bill of Particulars. (Rule 12) 1. In General Pleadings defined.

Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Sec. 1, Rule 6)

Kinds of Pleadings. (Sec. 2, Rule 6) The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-intervention. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answer may be responded to by a reply.

Manner of Making Allegations in Pleadings. Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. (Sec. 1, Rule 8) Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (Sec. 7, Rule 8)

Santiago v. Delos Santos Santiago applied for registration of a land, which was opposed by Delos Santos because the land sought to be registered by Santiago was public land which was leased to Delos Santos by virtue of a Pasture Lease Agreement. Santiago had admitted in his pleadings that the land was formerly of public domain but was released for agricultural purposes under the order of the DENR Secretary. Avena Notes (7 Dec 04)

What are ultimate facts? How is it different from evidentiary facts? Ultimate facts refer to those events, occurrences or transaction that are to be alleged in the complaint that will constitute a cause of action. These are facts which are essential to the right of action or matter of defense and which are necessary to determine the issues in the case. Evidentiary facts are those specific instances or circumstances that will prove the ultimate facts. They are the premises upon which conclusions of ultimate facts are based. Sample Complaint alleging the ultimate facts. (B was sideswiped by car driven and owned by A) COMPLAINT Plaintiff, by counsel, respectfully states that: 1. Plaintiff B is a Filipino of legal age, and resident of 6750 Ayala, Makati; while Defendant A is also a Filipino of legal age, and resident of 123 Ayala, Alabang. 2. Sometime on December 25, 2004 at around 5’o clock in the afternoon, Plaintiff B was walking along Ayala Avenue. 3. Around the same time, Defendant A was driving along Ayala Avenue in his black BMW, with plate num XXX101. 4. While Plaintiff B was walking on the sidewalk, the BMW driven by Defendant A suddenly went up to the sidewalk and bumped Plaintiff B on his left side. 5. The BMW of Defendant A was driving at about a 100 miles per hour when it hit Plaintiff B and stopped only when it hit a nearby Meralco post. 6. When Defendant A stepped out of his BMW, he smelled of alcohol. 7. After the car hit him, Plaintiff B suffered a broken leg and minor bruises and had to be rushed to the hospital. 8. Plaintiff B had to pay hospital bill worth P50,000 and was bedridden and unable to go to work for thirty days. PRAYER The Makati police filed a police report of the car accident. Is this police report an actionable document? No, it is a mere evidentiary document. It is not an actionable document because the cause of action arose out of the car accident and not because of the police report. Santiago v. Delos Santos The two documents attached to the pleading (Pasture Lease Agreement and the DENR Secretary order) were important as attachments are deemed part of the pleadings and are thus binding on the parties who filed the pleading.

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The attachments proved that Santiago had no continuous, open and uninterrupted possession of the land because the said land was inalienable. Regalado Notes What is a pleading? What is included in the term pleading? A pleading is the written statements of the formal allegations by the parties to a suit of the respective claims and defenses, with the intended purpose being to provide notice of what is to be expected at trial. The term “pleading” includes all papers filed, excluding evidentiary matters, from the complaint down to the judgment. Documents attached to the pleadings and made a part thereof are considered evidence and also part of the pleadings. (Asia Bank v. Olsen). Are all kinds of pleadings allowed in actions governed by summary procedure? No. The only pleadings allowed to be filed in summary procedure are the complaint, compulsory counter claim, cross claims pleaded in the answer and the answers thereto. (1991 Revised Rules on Summary Procedure, Sec. 3(a)). In a negative defense, what is to be considered as a specific denial? A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (Sec. 10, Rule 8) Are the enumerations in the Rules of affirmative defenses exclusive? No. Other affirmative defenses not mentioned in the rules include: 1. res judicata 2. ultra vires acts of a corporation, or lack of authority of a person assuming to act for the corporation 3. laches 4. unconstitutionality What is the effect of a counter claim? A counterclaim is considered in effect a NEW SUIT in which the party named as the defendant in the original complaint is the plaintiff in the new complaint and the plaintiff in the original complaint becomes the defendant in the new suit.

When is a counterclaim permissive? What are its determining factors? 1. If it arises out of, or is necessarily connected with, the transaction or occurrence which is the subject matter of the opposing party’s claim 2. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction 3. Subject to the qualification on the jurisdictional amount with regard to counterclaims raised in the RTC, the court has jurisdiction to entertain the claim. * The one compelling test of compulsoriness is the logical relationship between the claim alleged in the complaint and that in the counter claim. What are the criteria for determining whether a claim is compulsory or permissive, according to the case of Alday v. FGU Insurance? 1. the issues of fact and law raised by the claim and the counterclaim are essentially the same. 2. res judicata would bar a subsequent suit or defendant’s claim absent the compulsory counterclaim rule. 3. substantially the same evidence support or refute the claim and the counterclaim. 4. there is a logical relationship between the claim and the counter claim. Distinguish between a compulsory counter claim and a permissive counterclaim. COMPULSORY PERMISSIVE Also known Recoupment Set-off as Relation to One which arises Does NOT arise the subject out of or is out or nor is matter of the necessarily necessarily opposing connected with connected party’s claim the transaction or occurrence in the original complaint If it is not It is BARRED. NOT BARRED. se-up with the original complaint * Even if the counterclaim arises out of the subject matter of the opposing party’s claim but is not within the jurisdiction of the regular courts, or it requires for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction, it is only considered as a permissive counterclaim and is not barred even if not set up in the action. Is an after-acquired counterclaim barred? No. Under Rule 8 Section 11, even if the counter claim was not set-up alongside the complaint, an after-acquired counterclaim may still be set up since the basis for compulsory counterclaim exists at the time he files his answer. Should a counterclaim or cross claim be answered? A counterclaim or cross-claim need not be answered if it is based on and inseparable from the

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very defense raised by the opposing party, as it will merely result in said opposing party pleading the same facts already raised in the former pleading. (Navarro v. Bello) A plaintiff who choose not to answer a compulsory counterclaim cannot be declared in default on such counterclaim. (Gojo v Goyala) How does a cross claim differ from Cross-Claim Against Against a cowhom filed. party Relation to Always arises out the subject of the transaction matter of the or occurrence main claim that is the subject matter of the original action or of a counterclaim there in. (always compulsory) If it is not BARRED se-up with the main action

a counterclaim? Counterclaim Against opposing party Sometimes is permissive (not necessarily connected or arises out of the subject matter of the main action)

If permissive, it is not barred; but it is barred if it is compulsory

What is the effect of a dismissal of the main complaint with the cross claim? The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross claim seeking affirmative relief. (Torres v CA) What is the purpose of the reply? To join issues with new matters in the answer and thereby authorize the pleader of the reply to introduce evidence on said new issues. Is a reply mandatory? No, the filing of a reply is optional as the new matters raised in the answer are deemed controverted even without a reply. What is the limitation on the reply as regards the cause of action? A party cannot, in his reply, amend his cause of action nor introduce therein new or additional causes of action. Compare a third party complaint to a cross claim. SIMILARITY. Both seek to recover from another person some relief in respect to the opposing party’s claim. DIFFERENCE. With respect to the stage in which the person is involved, a third party complaint seeks to implead a person not yet party to the action; in a cross claim, the third party is already impleaded in the action.

1. leave of court is required 2. if leave of court is granted, summons will have to be served on the third party defendant. Compare a third party complaint to a complaint in intervention. SIMILARITY. Both result in bringing into the action a third person who was not originally a party. DIFFERENCE. As to the initiative of bringing the action, the initiative of filing a third party complaint lies with the person already a party to the action; in a complaint in intervention the initiative rests upon the non-party who seeks to join the action. Does a third party complaint need to arise out of or be entirely dependent on the main action? No. It suffices that the third party complaint be only in respect of the claim of the third party plaintiff’s opponent. Consequently, the judgment on a third party complaint may become final and executory without waiting for the final determination of the main cause. (Pascual v. Bautista) What are the tests to determine whether the third party complaint is in respect of plaintiff’s claim? 1. Where it arises out of the same transaction on which the plaintiff’s claim is based; or whether the third party claim, although arising out of another or different contract or transaction is connected with the plaintiff’s claim 2. Whether the third party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant, although the third party defendant’s liability arises out of another transaction. 3. Whether the third party defendant may assert any defenses which the third party plaintiff has or may have to the plaintiff’s claim. A main action if filed by the plaintiff-pedestrian in the RTC, involving a car accident out of which damages of P500,000.00 is claimed. The defendant-drive files a third party complaint against his passenger for having distracted him while driving thus causing him to lose control over the car for at half of the actual damages caused to the plaintiff-pedestrian. The third party defendant files a motion to dismiss saying that the third party complaint is not within the jurisdiction of the RTC, since the amount would only be P250,000.00. How should the court rule? Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint regardless of the amount involved, as a third party complaint is merely auxiliary to and is a continuation of the main action. (Republic v. Central Surety; EASCO v Cui).

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Bautista Notes. What is the Anglo-Saxon procedure of pleadings? The Anglos-Saxon procedure of pleadings regard the pleading as essentially binding the parties in the trial, unlike in countries of Continental Europe where the parties are not bound at the trial by what they have previously said in them. What are the functions of pleadings? 1. Pleadings primarily perform a notice-giving function in that they serve to inform each side of his version as to the matters of fact. 2. Pleadings also assist both the court and the parties as they formulate the issues to be tried. 3. The pleadings are expected also at a minimum to sufficiently differentiate the situation of fact which is being litigated from all the other situations to allow the application of the doctrine of res judicata. 4. Pleadings serve as a device for the proper routing of cases to secure the most effective means of trial. What is a denial of the allegations in a pleading in the form of a negative pregnant? A negative pregnant is a form of denial, considered to be pregnant with admissions as it is ambiguous. A negative pregnant has been defined as that form of a denial which implies an affirmative, or as a denial in such a form as to imply or express an admission of the substantial fact which apparently is controverted, or a denial which, although in the form of a traverse, really admit the important facts contained in the allegations to which it relates. In disallowing a pleader of a negative pregnant, the Rules expressly require that where a defendant desires to deny only a part of an averment, he should specify so much of it as is true and material and deny only the remainder. (Rule 8 Sec. 11) 2. The Claim. Where the Claim is asserted. The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-intervention. (Sec. 2 (para. 1), Rule 6)

Complaint. The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (Sec. 3, Rule 6)

Counterclaim. A counterclaim is any claim which a defending party may have against an opposing party. (Sec. 6, Rule 6)

Cross-claim. A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a

counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (Sec. 8, Rule 6)

Counter-counterclaims and counter-cross-claims.

A counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant. (Sec. 9, Rule 6)

Claims of a Plaintiff after Defendant’s Reply.

If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (Sec. 10 (para. 2), Rule 6)

Counterclaim or Cross-claim Arising After Answer.

A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (Sec. 9, Rule 11)

NAMARCO v. Federation of United NAMARCO NAMARCO entered into a contract of sale of candies to Federation secured by 3 domestic letters of credit from PNB. Federation, first, filed suit to compel NAMARCO to deliver goods and accept payment. NAMARCO, later, filed suit to compel Federation to make payments, since the letters of credit were dishonored. A counterclaim must exist at the time the counterclaimant files his answer. Therefore, an afteracquired counterclaim (cause of action of the counterclaim arose only after the filing of answer) is not barred but can be set-up in a supplemental pleading before the judgment. Bringing New Parties. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. (Sec. 12, Rule 6) If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (Sec. 5, Rule 1) Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (Sec. 6, Rule 10) Third, (fourth, etc.) party complaint.

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A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (Sec. 11, Rule 6) Republic v. Central Surety (26 SCRA 741) Read the SC decision of October 26, 1968 (25 SCRA 641). This present action is a motion to modify October 26, 1968 judgment. Motion was granted as against the third-party defendants because no comment was filed by them as of the date of this resolution. Effect of Dismissal of Claim to Defendant’s Counterclaim. 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. 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. (Sec. 6, Rule 16) Dismissal of Claim 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. (Sec. 2, Rule 17) Compulsory Counterclaim and Crossclaim. Compulsory Counterclaim. A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the

court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. (Sec. 7, Rule 6) Calo v. Ajax Calo ordered wire rope worth P3,420 from Ajax. Benavides, which acquired the credit of Ajax, filed suit in MTC to enforce outstanding credit against Calo. Calo subsequently filed suit in CFI for completion of delivery of the goods or reduce the credit with legal costs. Calo’s claim was not a compulsory counterclaim, even if it arises out of the same transaction and does not require the presence of third parties. The amount of Calo’s claim exceeds the jurisdiction of the MTC; even if it was a compulsory counterclaim in the MTC, Calo would still have to file a separate action in CFI because MTC did not have jurisdiction over the P12,000 claim. Existing counterclaim or cross-claim. A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (Sec. 8, Rule 11) Compulsory counterclaim, or cross-claim, not set up barred. A compulsory counterclaim, or a cross-claim, not set up shall be barred. (Sec. 2, Rule 9) Chavez v. Sandiganbayan PCGG filed a case against Cojuangco and Enrile for reconveyance and reversion. Enrile filed an answer with compulsory counterclaim and crossclaim for damages impleading Chavez and other officials saying that the action was meant to harass him. The claim for alleged harassment of Chavez does not constitute a compulsory counterclaim and must be filed in a separate civil action. A lawyer should not be sued on a counterclaim in the very same case he has filed only as counsel and not as a party in interest; this rule applies more particularly to the Solicitor General whose function is to defend national interest. “To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their representative in court and not a plaintiff or complainant in the case, would lead to mischievous consequences.” (Borja v. Borja) Cojuangco v. Villegas Cojuangco filed an ejectment suit for Villegas, whose occupation of Cojuangco’s land and the construction of the house was merely tolerated by the land owner. Counterclaim of Villegas for payment of improvements on the land worth P300,000 should have been set-up in the ejectment case, in line with her claim that she was a builder in good faith and

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should be paid the value of the improvements made by her. Carpena v. Manalo In an action for recovery of a parcel of land, the defendant must set-up a counterclaim for the value of the improvements made or introduced by him on the property, otherwise his claim would be barred. Cabaero v. Cantos No docket fees are required for a compulsory counterclaim. The defendant filed counterclaim with the answer because civil liability was deem impliedly instituted with the criminal action. Chan v. CA Chan leased a rooftop of his building to Cu for the purpose of using the property as a learning center. Lease was subsequently terminated and Chan refused to accept further rentals from Cu. Cu filed action for consignation with the MTC; Chan filed a counterclaim for ejectment saying the lease was expired. Both parties have conceded to the propriety of the counterclaim for ejectment in the action for consignation. Cu even filed a counter counterclaim to Chan’s counterclaim. The counterclaim for ejectment was compulsory as it arose or is necessarily connected with the lease contract, as regards whether payment of rentals was due or whether the lease had already expired. Avena Notes (7 Dec 04) The complaint alleges the cause of action; while the answer contains the defenses against the complaint’s cause of action. A counter claim asks for a positive and independent relief and, unlike the answer, does not just defeat the opposing party’s claim. A counterclaim is any claim whether permissive or compulsory. A cross claim is a claim against a co-party. (it is a claim against you kakampi or a party on the same side) A counter cross claim is essentially a counterclaim and can be either permissive or compulsory. A third-party complaint defending party.

is

available

only

to

a

What are the requisites of a compulsory counterclaim? 1. arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of opposing party’s claim. 2. does not require presence of third parties of whom the court cannot acquire jurisdiction

3. court has jurisdiction to entertain the claim. What are the tests of compulsoriness counterclaim? a. identity of issues b. would be bound by res judicata c. same or substantial identity of evidence d. logical relationship.

of

a

NAMARCO v. Federation The first case filed by the Federation involved the initial delivery of goods, where the court declared the contract to be valid and NAMARCO was ordered to deliver the goods. The second case filed by NAMARCO asked for the payment for the delivery of the goods. Although the contract subject of the controversy was the same, each case pertained to a different transaction. What kind of parties are sought to be brought in under Section 12, Rule 6? These are necessary parties to the determination of a counterclaim or cross-claim. This is different from a necessary party to a pleading asserting a claim under Section 9, Rule 3 because necessary parties to a claim are given more privileges for example failure of party to comply with order of inclusion of necessary party shall be deemed a waiver of the claim against the necessary party and any judgment where a necessary party is not included is without prejudice to the rights of such necessary party. A plaintiff-landowner files an ejectment action against a defendant-lessor. Defendant lessor files an answer with counterclaim for value of the improvements made on the land as a builder in good faith. Plaintiff-landowner withdraws the complaint for ejectment, and court dismisses the action. Is the defendant’s counterclaim also dismissed? No, the dismissal is limited to the complaint without prejudice to the claims of the defendant in his counterclaim, which continues to subsist. OLD RULE: If counterclaim is compulsory and the main action is dismissed, the compulsory counterclaim is also dismissed. If the counterclaim is permissive and the main action is dismissed, the permissive counterclaim survives. The determining factor is whether or not the counterclaim is permissive or compulsory. NEW RULE: Any dismissal of the action upon motion of the plaintiff or upon defendant’s own motion to dismiss is without prejudice to the filing of the defendant of his counterclaim in a separate action (Sec. 6, Rule 16 and Sec. 2, Rule 17). However, in case where the defendant already filed a counterclaim prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint and the defendant, within

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fifteen days from notice of the motion, may manifest his preference to have his counterclaim be resolved in the same action. (Sec. 2, Rule 17) The determining factor now is who filed first because the counterclaim must survive if the answer has already been given. Cojuangco v. Villegas In accion reinvindicatoria, the action pertains to issues of ownership and possession. In the second case, Villegas asked for the value of improvements as an alternative. The first action served as a prior judgment which barred the second case. Res judicata bars all issues raised or should have been raised at the first action. All claims that inured to the benefit of Villegas should have been alleged in the first action and cannot file piecemeal suits. 3. Answer Definition. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. (Sec. 2, Rule 6) An answer is a pleading in which a defending party sets forth his defenses. (Sec. 4, Rule 6)

Answer to Third (fourth, etc.) Party Complaint.

A third (fourth, etc.) party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.) party plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff. (Sec. 13, Rule 6)

Defenses. Defenses may either be negative or affirmative. (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. (Sec. 5, Rule 6)

Gojo v. Goyala A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default. Issues in the counterclaim are deemed automatically joined by the allegation of the complaint. In this case, the counterclaim that the contract was really a loan with real estate mortgage was clearly inconsistent and directly controverted the whole theory and basic allegations of the complaint that the contract was a pacto de retro sale. 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. 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. (Sec. 6, Rule 16) Specific Denial. A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (Sec. 10, Rule 8) Allegations Not Specifically Denied Deemed Admitted. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (Sec. 11, Rule 8) Tec Bi v. Chartered Bank of India This case involved a quantity of leaf tobacco sold by Tec Bi to La Urania Cigar Factory, who then pledged the said leaf tobacco to Chartered Bank of India as security for a P25,000 loan. Bank took keys to the bodega where the tobacco was stored and sold the goods. Tec Bi was a preferred creditor of La Urania as an unpaid seller and was not bound by the pledge agreement with Chartered Bank, which was not set forth in a public instrument. Bank said Tec Bi alleged in its answer that the Bank had “absolute and exclusive possession of the goods”. A general admission of the truth of the allegations set forth in a pleading is not an admission of the truth of: (a) an impossible conclusion of fact drawn from other facts set out in the pleading (b) a wrong conclusion of law based on the allegations of fact well pleaded (c) a general averment of facts contradicted by more specific averments. Philippine Advertising v. Revilla Phil. Advertising filed a complaint for a recovery of a sum of money against Southern

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Industrial for promotion and advertising services. In Southern’s answer, it said that they were without sufficient knowledge or information to form a belief as to the truth of the matter. The documents attached to the pleading were written admissions of indebtedness. The rule on denial of allegations based on lack of sufficient knowledge or information does not apply if from the facts to which want of knowledge is asserted is so plainly within the defendant’s knowledge. Liam Law v. Olympic Sawmill. Olympic Sawmill, defendant-debtor, admitted it owned Liam Law, plaintiff-creditor, P10,000 but said that the additional P6,000 claimed by Liam Law was usurious interest. Under Section 9 of the Usury Law, failure to deny that the interest was usurious was deemed to be an implied admission. However, this provision does not apply, where it is the defendant and not the plaintiff, which claims usury. CB Circular No. 905 Interest rates are not longer subject to any ceiling prescribed in the Usury Law. Action or Defense Based on Document – Actionable Documents. Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (Sec. 7, Rule 8) How to Contest Actionable Documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (Sec. 8, Rule 8) PBC v. CA Sarmiento obtained a P4.126 M loan from Philippine Banking Corp., as evidenced by a promissory note. When Sarmiento failed to pay PBC the loan, PBC filed a complaint; Sarmiento denied he received the proceeds of the loan. The promissory not proved only the existence of such document (actionable document). A statement in a written instrument regarding payment of consideration is merely in the nature of a

receipt and maybe contradicted. PBC deposited the proceeds of the loan but on the same day withdrew them from Sarmiento’s account. Alternative Causes of Action or Defenses. A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (Sec. 2, Rule 8) 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. (Sec. 1, Rule 9) Katon v. Palanca Sombrero Island land dispute where Katon applied for conversion of the land and was granted but failed to apply for a homestead application, thus others were able to gain a foothold on Katon’s efforts to convert the land. Katon had no cause of action to contest the homestead applications because he was not the owner of the land neither did was he authorized to ask for reversion of the converted land (only Solicitor General had that power). The court also has the discretion to dismiss an action which was time barred due to prescription. Avena Notes (11 Dec 04) Tec Bi v. Charted Bank of India Pledge between the bank and La Urania Cigar Factory was not binding on Tec Bi and third parties because Tec Bi was not privy to the agreement and it was not embodied in a public instrument. The “the bank’s absolute and exclusive possession of the tobacco” as alleged by Tec Bi in his complaint was not an admission because it was a wrong conclusion of law. Phil. Advertising v. Revilla Southern Industries admitted to the existence of the debt through its attachments in its answer to the complaint (two documents: one detailing the periodic payments and the other listing Phil. Advertising as a creditor).

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Annexes to the answer are deemed part of the answer. What are the three ways of denial? 1. Material Denial 2. Partial Denial 3. Denial through insufficient information or knowledge sufficient to for a belief as to the truth of a material averment PBC v. CA What is proven under Section 8, Rule 8 is the due execution and genuineness of the document but not as to the truth of the matter alleged in the document (the receipt of the money). What is admitted upon the submission of an actionable document without specific denial under oath of the opposing party? The submission of the actionable document admits the genuineness and due execution of the written instrument but not the truth of matters alleged therein. Genuineness means that the document is truly what they purport to be and that they are free from forgery or counterfeiting. Due execution of a document pertains to the performance of all acts necessary (formal and substantial requirements) to render it complete as an instrument and imports the idea that nothing remains to be done to make complete and effective the document. Katon v. Palanca Katon only converted Sombrero Island to alienable land but failed to apply for a homestead patent. Katon had no legal capacity to sue. Avena Notes (14 Dec 04) What is a negative pregnant? A negative pregnant is when there is a denial of a fact, which at the same time involves an affirmative implication. It is therefore an admission and is not an effective denial. Give an example of a negative pregnant. In a complaint for the sum of money, the Plaintiff A states that the Defendant B borrowed from him P1M on December 30, 2004 so that Defendant B could purchase fireworks for the New Year Celebrations. Defendant B in his answer stipulates that he did not borrow P1M from Plaintiff A on December 30, 2004 because he borrowed the money on December 31, 2004. There is no effective denial of the material allegations only a denial of the qualifying conditions. What kinds of allegations, even if specifically denied in the answer of the defendant, are deemed not to

have been denied, if the denial was not made under oath? 1. Actionable documents must be denied under oath. (Sec. 8, Rule 8). 2. Allegations of usury must also be denied under oath. (Sec. 11, Rule 8). PBC v CA Borrower admitted to the promissory note but denied that the proceeds were ever received. The loan and the accompanying note were not effectively denied because the denial was not made under oath; denial in the answer was thus defective. In effect, there was an admission as to the correctness of the promissory note. However, this admission is limited to the genuineness and due execution of the document and not as to the correctness of the contents. There was no admission that the proceeds of the loan were ever received. Katon v. Palanca This was the case of homestead patents granted over Sombrero Island and not to Katon who had applied for the public property to be converted. In the respondent’s motion to dismiss, they raised the issues of lack of capacity to sue and estoppel by laches. In the decision of the SC, Panganiban added another basis for dismissal of a claim, which was failure to state a cause of action. (c/f Sec.1, Rule 9 which enumerates the only causes by which the court can motu propio dismiss a case: lack of jurisdiction, litis pendentia, res judicata and prescription), * Panganiban seemed to add one more condition for motu propio dismissal of a claim by the court which is failure to state a cause of action. Ma’am believes this ruling would negate the privileges of amendments to the pleading to conform to the evidence (Sec.5, Rule 10). Panagniban did not specifically say that the ruling amended Rule 16. (c/f dismissal of an action by the court motu propio Sec. 3, Rule 17) Is an alternative defense the same as an alternative defendant? Duh?! A party may set forth two or more statements of alternative defenses. (Sec. 2, Rule 8). Alternative defendants refer to several parties upon whom a complainant is uncertain who among them he is entitled to relief. (Sec. 13, Rule 3). What are the two types of defenses? (Sec. 5, Rule 6) 1. Negative 2. Affirmative What are the classes of negative defenses or denials? (Sec. 10, Rule 8) 1. specific denial 2. partial denial

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3. defendant is without knowledge or information sufficient to form a belief as to the truth of the material averment.

4. Reply

What is a default order? What its effects to the case? (Sec. 3, Rule 9) A default order is a declaration by the court that the defending party is in default because of its failure to answer the claim within the time allowed. An default order is upon motion of the claiming party with notice to the defending party and proof of such failure. EFFECTS: a. A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (Makikita mo na niluluto ka sa sarili mong mantika – Ma’am, super size me!) b. Upon its discretion, the court may require the claimant to submit evidence. c. Court will render judgment granting the relief prayed for by the claimant. (In short, plaintiff wins.)

Definition. An answer may be responded to by a reply. (Sec. 2, Rule 6) A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (Sec. 10, Rule 6)

Is a motion to declare a defendant in default the same as a motion for judgment on the pleadings? No, motion for an order of default is premised upon failure of the defendant to answer with the time allowed. (Sec. 3, Rule 9) A motion for judgment on the pleadings happens when the defendant files an answer but his answer fails to tender an issue or admits the material allegations of the adverse party’s pleadings. (Sec. 1, Rule 34)

A reply is a denial of the new issues or matters raised in the answer. If there is no reply filed by the plaintiff, all new matters raised in the answer of the defendant is deemed to be controverted.

What are the consequences of a default judgment? a. Party claimant assumes total victory. b. Relief granted by the court should not be different in kind or amount as to what is prayed for and should not include unliquidated damages. (c/f Sec.11, Rule 8)

Avena Notes (7 Dec 04)

If plaintiff wishes to raise new matters after the defendant has filed an answer, he can do so by amending or supplementing his complaint. A reply is filed to make the issues clearer to the court. 5. Common Provisions a. Parts of a Pleading (Rule 7)

Name all the remedies that a defendant party upon a default judgment against him. 1. motion to set aside the default judgment – before judgment (Sec. 3, Rule 9) 2. motion for new trial – after judgment of default but during appeal (Sec. 1(a), Rule 37) 3. petition for relief of judgment – when judgment has become final (Rule 38) 4. appeal from judgment (Sec. 1, Rule 41) 5. petition for certiorari (Rule 65) 6. annulment of judgment (Rule 47)

Caption. The caption sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. (Sec. 1, Rule 7)

What are the requisites in order for a defaulting defendant can file a motion to set aside default judgment? a. Motion must be filed after notice of default order and before judgment. b. Defendant must show that his failure to answer was because of fraud, accident, mistake or excusable negligence (FAME) c. Defendant must show that he has a meritorious defense to the claims presented by the plaintiff.

The Body. The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. (a) Paragraphs. - The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with

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convenience. A paragraph may be referred to by its number in all succeeding pleadings. (b) Headings. - When two or more causes of action are joined, the statement of the first shall be prefaced by the words "first cause of action," of the second by "second cause of action," and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (c) Relief. - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (d) Date. - Every pleading shall be dated. (Sec. 2, Rule 7) Signature and address. Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. (Sec. 3, Rule 7) Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief. A pleading required to be verified which contains a verification based on "information and belief," or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (Sec. 4, Rule 7) Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously

filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (Sec. 5, Rule 7) SC Circular 48 – 2000 TO: THE COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL COURTS, SHARI'A DISTRICT COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS AND SHARI'A CIRCUIT COURTS. SUBJECT: A.M. No. 00-2-10-SC. RE: AMENDMENTS TO SECTION 4, RULE 7 AND SECTION 13, RULE 41 OF THE 1997 RULES OF CIVIL PROCEDURE. For the information and guidance of all concerned, quoted hereunder are the amended provisions in the 1997 Rules of Civil Procedure: (a) Section 4 of Rule 7: and (b) Section 13 of Rule 41, to wit: "RULE 7 Sec. 4. Verification. - Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on "information and belief, or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (4a)

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RULE 41 SEC 13. Dismissal of appeal.- Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may, motu propio or on motion, dismiss the appeal for having been taken out of time or non-payment of the docket and other lawful fees within the reglementary period.(13a)" The foregoing amendments took effect last May 1, 2000.

Fil Estate Golf v. CA This involved the two cases filed by Layos against FERC and FEGDI, which had constructed a highway interchange in a lot allegedly owned by Layos. The first case (RTC – Binan) was denied because Layos was unable to substantiate his claim. In the second case (RTC – San Pedro), FEGDI filed a motion to dismiss citing the previous ruling of the issue. Layos resorted to forum shopping since the complaints in both cases were identical and that there was identity of parties even if FEGDI was not impleaded in the first complaint but only in the second complaint. Forum shopping, an act of malpractice, is proscribed and condemned as trifling with the courts and abusing their processes. It is improper conduct that degrades the administration of justice. (Bugnay Construction v. Laron) DBP v. CA

Avena Notes (14 Dec 04) Counterclaim and crossclaim must have a certification against non-forum shopping. True or False. (Sec. 5, Rule 7) False. The certification against non-forum shopping is limited to complaints or other initiatory pleadings. The counterclaim and crossclaim are not initiatory pleadings because they are ancillary actions. What pleadings must be verified? Initiatory pleadings and appeals need to be verified.

Republic of the Philippines Regional Trial Court Branch 123

The title of the case and pleading are one and the same. True or False. False. The title of the case or action states the names of the parties and their participation in the case i.e. Ms. Magalang, Plaintiff v. Ms. Mahinhin, Defendant. The title of the pleading is its designation, i.e. Complaint for Sum of Money. Allegations are required to be divided into numbered paragraphs to prevent long-winded pleadings. Counsel forgot to sign a Complaint for a Sum of Money. What is the effect? (Sec. 3, Rule 7) An unsigned pleading is without legal effect because the signature is a certification or warranty that: a. counsel has read the pleading b. counsel has a good ground for action c. pleading was not intended for delay In relation to the pleadings submitted by counsel, what actions by counsel would subject him to disciplinary action? (Sec. 3, Rule 7) 1. Counsel files an unsigned pleading. 2. Counsel signs a pleading in violation of Rule 7. 3. Counsel alleges scandalous or indecent matter in the pleading. 4. Counsel fails to report a change of his address. EXPLANATION OF THE MAIL REGISTRY SYSTEM. Unlike an ordinary mail, the registered mail is delivered to the recipient with a registry return card that will be given back to the sender. The recipient of the registered mail will sign the return card as proof of delivery of the mail.

Wee v. Galvez

Sample Caption.

* A case is given a docket number after raffling of the case with the different branches of the RTC. There is a central docketing office which caters to one RTC, which has many branches.

What is the effect of verification? (Sec. 4, paragraph 2, Rule 7) 1. Affiant has read the pleading. 2. The allegations in the pleading are true and correct of his personal knowledge or based on authentic records. Fil Estate Golf v. CA Pleadings in both cases were the same as proved by the use of the same cedula in both complaints. This negated the claim of Layos that the first complaint was not authorized by him. DBP v. CA Atty. Galaport of DBP should have signed the pleading because he was the special sheriff who conducted the extra-judicial foreclosure. If forum shopping is wilful and deliberate and not inadvertently, what is the effect on the pleading?

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1. It will be a ground for summary dismissal with prejudice. 2. It shall constitute direct contempt. 3. It will be a cause for administrative sanctions. Wee v. Galvez The court allowed reasonable compliance with the certification against forum shopping (CFS) when it allowed the daughter of a non-resident complainant to sign the CFS. The daughter was given a special power of attorney to sign all papers and documents including the complaint. It was the daughter who had actual and personal knowledge of whether or not an action prior to the complaint was initiated. b. Manner of Making Allegations (Rule 8) In general.

Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. (Sec. 1, Rule 8)

Alternative causes of action or defenses.

A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (Sec. 2, Rule 8)

Conditions precedent.

In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (Sec. 3, Rule 8)

Capacity. Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (Sec. 4, Rule 8)

Action or defense based on document. Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (Sec. 7, Rule 8) When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (Sec. 8, Rule 8)

Official document or act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. (Sec. 9, Rule 8)

Specific denial.

A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (Sec. 10, Rule 8)

Allegations not specifically denied deemed admitted. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (Sec. 11, Rule 8)

Perpetual Savings v. Fajardo Wee v Galvez

Avena Notes (14 Dec 04)

Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (Sec. 5, Rule 8)

Judgment.

decision without setting forth matter showing jurisdiction to render it. (Sec. 6, Rule 8)

In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or

Table of Allegations Generally or Specifically Averred. Generally Averred performance or occurrence of all conditions precedent - facts showing the capacity to sue or

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authority of a party to sue in a representative capacity - legal existence of an organized association of persons that is made a party malice, intent, knowledge or other condition of the mind of a person - pleading a decision or judgment of a court without setting forth matter showing jurisdiction to render it - that the document was issued or the act done was in compliance with the law

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representative capacity. - all averments of fraud or mistakes and the circumstance constituting them

Avena Notes (17 Dec 04) How do you plead an official act or document? It is enough to merely aver that the document was issued or the act done in compliance with the law. How do you cite a provision of law in your pleadings which is the basis of your defense? The defendant must clearly and concisely state: 1. the pertinent provision of law 2. the applicability of such provision of law to him. Wee v. Galvez The lead sentence was lacking the word “compromise”. But conditions precedent need only be generally averred from the allegations of the complaint. c. Effect of Failure to Plead (Rule 9) 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. (Sec. 1, Rule 9)

Compulsory counterclaim, or cross-claim, not set up barred.

A compulsory counterclaim, or a cross-claim, not set up shall be barred. (Sec. 2, Rule 9)

Default; declaration of.

If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (a) Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (b) Relief from order of default. - A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (c) Effect of partial default. - When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (d) Extent of relief to be awarded. - A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (e) Where no defaults allowed. - If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (Sec. 2, Rule 9)

Judge to receive evidence; Delegation to clerk of court. The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. (Sec. 9, Rule 30)

Tan v. Dumarpa Dumarpa was a State Prosecutor who obtained a fake receipt to cover his cash advance from Tan the caterer. A suit was filed against Dumarpa and in turn, Dumarpa filed a libel suit against Tan, for malicious publication of what transpired in the Manila Times. After denial of her MTD, Tan was not able to appear at the pre-trial and was declared in default. Tan knew of the default judgment when appeal was still available to her. So, she should have filed a motion for new trial. Trial court deprived Tan of due process by saying that her Motion for Reconsideration was merely pro forma and by

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disallowing her to prove that she was not notified of the pre-trial.

because there are some defenses that are personal to each and every defendant.

Cerezo v. Tuason

Cerezo v. Tuason In Cerezo, the court was more strict in denying the re-hearing of their case, as compared to Tan, where the court was more liberal in allowing a rehearing. But in Cerezo, she had no meritorious defense. There was no reason for her petition for review because there was no allegation of fraud, accident, mistake or excusable negligence.

Avena Notes (17 Dec 04) What is the effect of a default order on the action? 1. the court renders a default judgment against the defendant. 2. the court may ask the plaintiff or claimant to present evidence ex parte in support of his complaint. What is the effect of default order to the defendant? 1. the defendant is entitled to notice of subsequent proceedings. 2. defendant is, however, not allowed to take part in the trial. 3. the extent or relief that may be adjudged against him shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. Tan v. Dumarpa This was the case of allegations against prosecutor Dumarpa for malversation of public funds. Tan, who was the plaintiff, in the libel case filed by Dumarpa, did not appear in the pre-trial, which has the same effect as not filing an answer. The trial court made judgment on the merits of the motion for reconsideration without even hearing the facts as to the lack of notice of the pretrial which prevented Tan from appearing in the pretrial. Whether or not they received notice of the pretrial is a question of fact. * Ordinary appeal v. Petition for certiorari. An appeal, under Rule 45 Petition for Review, is where the same case goes through the hierarchy of courts. The action under Rule 65, Petition for Certiorari, is an original action. For example, in a case of A v. B, the trial court dismissed the action for lack of verification and Certificate of Non-Forum Shopping (CFS). A, now appeals the trial court decision for being exercised with grave abuse of discretion, in a petition for certiorari entitled, B v. RTC. What is partial default? Partial default occurs when in an action where there are several defendants being sued based on one cause of action and some of them fail to answer, the court shall try the case based on the answer of those who filed. The former rule was that when a defendant has a common defense, it inures to the benefit of the others. A t present this is no longer strictly applied

What are the defendant’s remedies for a default judgment? 1. Motion to set aside order of default because of fraud, accident, mistake or excusable negligence (FAME). 2. Motion for new trial, within fifteen days to appeal (Rule 37), also due to FAME. 3. Petition for Relief of Judgment (c/f Lina v. CA and Tuason v. CA) 4. Appeal. 5. Certiorari (Rule 65) filed within 60 days from issuance). 6. Annulment of judgment (Rule 47) In a relief for an order of default, what must be alleged? 1. There must be proper showing that his failure to file an answer was due to FAME. 2. That the defendant has a meritorious defense. When you appeal the order of default in a Motion for New Trial, what is being asked is to declare everything (both the default order and default judgment) to be declared void. Is an order of default a final court order? No, an order of default is an interlocutory order. When if a petition for relief from judgments or orders available? (Sec. 3, Rule 38) It is available only if the judgment has become final and executory and all other reliefs are no longer available. It must be filed: a. 60 days after petitioner learns of the judgment, and b. not more than 6 months after such judgment or final order is entered. What does a petition for relief question? A petition for relief questions: 1. When a judgment or final order is entered, or any other proceeding thereafter taken against a party in any court through FAME. (Sec. 1, Rule 38) 2. When a judgment or final order is rendered by any court in a case, and a party thereto, by FAME, has been prevented from taking an appeal. (Sec.2, Rule 38)

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Tuason v. CA When you question the judgment of the trial court, then you should appeal. If you cannot appeal because you were prevented by FAME, then use petition for relief. * But in Cerezo, SC said petition for relief was not proper. In contrast with Tan, the subject of the appeal was only an order of the court not a final decision; Ma’am says kawawa naman si Tan, if she cannot use PR if appeal was not available. In Tan, the order of default was unfair because notice was not received. ** Carpio in his opinion in Cerezo, says the loss of appeal was also due to FAME. What are the grounds for the motion for annulment of judgment? (Sec. 2 and 3, Rule 47) 1. Extrinsic fraud (action must be filed within 4 years from its discovery.* 2. lack of jurisdiction (action must be filed before it is barred by laches or estoppel. * Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. (Sec. 2, Rule 38)

section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (Sec. 3, Rule 10)

Formal amendments.

A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (Sec. 4, Rule 10)

Amendment to conform to or authorize presentation of evidence.

When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (Sec. 5, Rule 10)

Supplemental pleadings. d. striking out pleadings Striking out of pleading or matter contained therein.

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (Sec.12, Rule 8)

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (Sec. 6, Rule 10)

Filing of amended pleadings.

6. Amended and Supplemental Pleadings. (Rule 10)

When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (Sec. 7, Rule 10)

Amendments in general.

Effect of amended pleadings.

Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (Sec. 1, Rule 10)

Kinds of Amendments. Amendments as a matter of right. A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (l0) days after it is served. (Sec. 2, Rule 10)

Amendments by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this

An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (Sec. 8, Rule 10)

Additional Defendant. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (Sec. 5, Rule 1)

Dauden Hernandez v. Delos Angeles Actress Marlene Dauden (sikat daw siya nun panahon ni Ma’am) sued Hollywood Far East Productions for P14, 700 for balance of service rendered in two motion pictures she made with them. The trial court granted a Motion to Dismiss because the claim was not evidence by a written

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document and that the complaint was defective on its face. A Motion for Recon was filed to amend the complaint but it was also denied. A second Motion for Recon was filed but it now asked that the denial of the first Motion for Recon be reviewed. Trial court still denied the second motion for recon. SC said it was an error for the trial court to dismiss the complaint without giving the party plaintiff an opportunity to amend the complaint, if she so chooses. A motion to dismiss is NOT A RESPONSIVE PLEADING! Plaintiff was entitled as a matter of right to amend his complaint. Philippine Export v. Philippine Infrastructures PEFLG executed 5 letters of guarantees to PNB for credit accommodation in favor of Phil. Infrastructure. Phil. Infrastructure, et al, in turn signed an indemnity agreement with PEFLG. Phil. Infrastructure failed to pay PNB the loans. So PNB made claims on PEFLG, who then made claims against Phil. Infrastructure. PEFLG sued Phil. Infrastructure. During the course of the proceedings, PEFLG paid PNB the amount due. PEFLG, then asked the court to amend the complaint. Even if there was an affirmative defense in the answer (failure to state a cause of action), the issues not joined are deemed admitted, if the defendant produces evidence to contradict the cause of action. The debit memo form PNB and the testimony of Treasury Department was presented to prove that PEFLG had already paid for the loan, and no objection was raised to this presentation of evidence. Avena (17 Dec 04)

party during trial, the plaintiff can now ask amendment of the complaint to conform to the evidence already presented in trial. (Sec. 5, Rule 10) 7. When to File Responsive Pleadings. (Rule 11) Answer to the complaint. The defendant shall file his answer to the complaint within fifteen (l5) days after service of summons, unless a different period is fixed by the court. (Sec. 1, Rule 11) Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (Sec. 2, Rule 11)

Answer to third (fourth, etc.)- party complaint.

The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint. (Sec. 5, Rule 11)

Answer to amended complaint, amended counterclaim, amended cross-claim, amended third (fourth, etc.) party complaint, and amended complaint-in-intervention.

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. (Sec. 3, Rule 11)

Answer to supplemental complaint.

Dauden Hernandez v. Delos Angeles Amendment of a pleading is a matter of right, if it is before a responsive pleading. A motion to dismiss is not a responsive pleading. In this case, Dauden filed a petition for certiorari under Rule 65 for grave abuse of discretion, because she could not appeal the denial of the Motion for Reconsideration, as it was merely a court order. * Ma’am says it is better to file an answer with affirmative defenses citing the grounds for a motion to dismiss rather than filing a motion to dismiss. (Sec. 6, Rule 16) PEFLG v. Phil. Infrastructure This was a case involving an indemnity contract. PEFLG filed a motion to amend the complaint because payment was already made. Trial court dismissed the action for failing to state a cause of action. Court of Appeals said the real purpose of the amendment was to introduce a new cause of action (COA). As to the CA’s point of introducing a new COA, since there was no objection by the adverse

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

Answer to counterclaim or cross-claim.

A counterclaim or cross-claim must be answered within ten (l0) days from service. (Sec. 4, Rule 11)

Existing counterclaim or cross-claim.

A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (Sec. 8, Rule 11)

Counterclaim or cross-claim arising after answer. A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (Sec. 9, Rule 11)

Omitted counterclaim or cross-claim.

When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of

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JONATHAN PAMPOLINA by

Reply. A reply may be filed within ten (l0) days from service of the pleading responded to. (Sec. 6, Rule 11)

Extension of time to plead. Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (Sec. 10, Rule 11)

Avena Notes ( 4 Jan 04) When do you file responsive pleading? Generally there are two periods 15 days and 10 days. 15 Days 1. Answer to an original complaint. 2. Answer to an amended complaint, if a matter of right 3. Answer to a third party complaint. 4. Answer to an amended counterclaim, amended cross-claim, amended 3rd party complaint, and amended complaint in intervention.

10 Days 1. Answer to a amended complaint, by leave of court 2. Answer to counterclaim or cross claim. 3. Answer to a reply 4. Answer to supplemental complaint.

Can the court grant an extension of time? Yes, the court may grant an extension of time, in pursuit of the liberal construction of the Rules. 8. Filing/ Service of Pleadings, Judgments and Other Papers (Rule 13) This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed. (Sec. 1, Rule 13)

Filing and service, defined.

Manner of filing.

The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. (Sec. 3, Rule 13)

Papers required to be filed and served.

Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (Sec. 4, Rule 13)

Modes of service.

A counterclaim is similar to a complaint since it is a pleading which asserts a claim against another party. But why is a defendant to a counterclaim given only 10 days to file an answer? Because the defendant of the counterclaim is the plaintiff in the original complaint. As he is the one who filed the original complaint, it is presumed that he would know the meat of the action.

Coverage.

Filing is the act of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (Sec. 2, Rule 13)

Service of pleadings, motions, notices, orders, judgments and other papers shall be made either: (Sec. 5, Rule 13) a. personally or b. by mail.

Personal service.

Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (Sec. 6, Rule 13)

Service by Registered Mail.

Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (l0) days if undelivered. (Sec. 7, Rule 13)

Service by Ordinary Mail. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (Sec. 7, Rule 13)

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Substituted service.

If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (Sec. 8, Rule 13)

The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (Sec. 13, Rule 13)

Notice of lis pendens.

Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. (Sec. 10, Rule 13)

In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain 1. the names of the parties and 2. the object of the action or defense, and 3. a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (Sec. 14, Rule 13)

Priorities in modes of service and filing.

SC Resolution of February 17, 1998

Service of judgments, final orders or resolutions.

Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (Sec. 9, Rule 13)

Completeness of service. delivery.

Personal

service

is

complete

upon

actual

Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed. (Sec. 11, Rule 13)

Proof of filing. The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. (Sec. 12, Rule 13)

Proof of service. Proof of personal service shall consist of a. a written admission of the party served, or b. the official return of the server, or c. the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by a. such affidavit (mentioned above) and b. the registry receipt issued by the mailing office.

Avena Notes (4 Jan 04) What are the modes of service of pleadings and other papers? 1. Personal service 2. Registered mail. 3. Substituted service 4. Service by publication. * According to Ma’am, it is an unwritten rule that counsel must first serve the papers to the adverse party before filing to the court. What are the ten kinds of pleadings and papers that are required to be filed and served? (Sec. 4, Rule 13) Judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar paper. MNEMONIC: JROPWNADOS. An original complaint has a special mode of service which is through summons. How do you file judgments and final orders that are issued by the court? The judge files it directly with the clerk of court. There will be a certification by the clerk of court of the dispositive portion of the judgment and final order. What is entry of judgment? Entry of judgment is when the period for appealing a judgment or final order has lapsed. It is

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not the actual physical filing, because the judgment may have already been entered, but the clerk of court only records it three months thereafter.

Also an employee of the court, the sheriff has other duties to the court aside from serving papers like in embargo or execution of judgments.

Mode of Filing

If the party has counsel, service shall be made on the counsel and not the party. If the party employs several counsels, service can be limited to just one of them, and not necessarily the lead counsel. If several parties to an action have the same counsel, that counsel is entitled only to one copy of the paper or pleading to be served.

Personally through the clerk of court who shall endorse on the pleading the date and hour of filing. By sending them through registered mail. (the date of filing, payment or deposit in court shall be the date of the mailing as shown in the post office stamp on the envelope, or the registry receipt.

Proof of Filing, if NOT in the Record The written or stamped acknowledgement of its filing by the clerk of court on a copy of the pleading or paper. By the registry receipt and by the affidavit of the person who did the mailing

(test: where incorporated) 9. Computation of Time. (Rule 22)

What is a registry receipt? Is it the same as a registry return card? A registry receipt is proof that you have entered mail through the registry service. It is different from a registry return card, which proves that the sendee or person to whom the mail is sent to has actually received the registered mail. Service by the Court Modes of Service Personal

Registered Mail

Ordinary Mail (if no registry service is available in the locality of either the sender or addressee) Substituted Service to the Clerk of Court Service by Publication (allowed only if summons was also by publication)

How do you know that a corporation is foreign? The corporation is foreign, if the company was incorporated under the laws of a foreign country.

Proof of Service 1. Written Admission of the party served, or 2. Official return of the Server, or 3. Affidavit of the party serving. 1. Affidavit of the person mailing of facts showing compliance with Sec. 7, Rule 13, AND 2. Registry receipt issued by the mailing office. Affidavit of the person mailing of facts showing compliance with Sec. 7, Rule 13. By the records of the court.

What is a process server? Is he also a sheriff? A process serve, as the name implies, is an employee of the court, which serves the processes emanating from the court. (Court messenger).

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, a. the day of the act or event from which the designated period of time begins to run is to be excluded and b. 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. (Sec. 1, Rule 22)

Effect of interruption.

Should an act be done which effectively interrupts the running of the period, a. the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. b. The day of the act that caused the interruption shall be excluded in the computation of the period. (Sec. 2, Rule 22)

AM No. 00-2-14 SC Avena Notes (4 Jan 05) What motions or pleadings interrupt the period for filing of the responsive pleading? 1. Motion for Extension of Time 2. Motion to Dismiss 3. Motion for Bill of Particulars 4. Motion to Amend Pleading How are the provisions of Section 1 and Section 2 of Rule 22 different? Section 1 provides for the computation of the period. Section 2 contemplates the computation of time, when there is an interruption.

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Counsel was to send a pleading through registered mail on Friday, which was the last day for the period. But the PGMA declared Friday, a non-working holiday in honor of San Lorenzo Ruiz. But the post office continued to work on Friday. Counsel was able to send the pleading only on Monday. Did the period lapse? No. Even if the post office works on the day of the holiday, the time of the period would lapse only on Monday. (WCC v. Galang) PROBLEM: June 2 Summons was served on the defendant. June 16 Defendant files a motion to dismiss (MTD) based on lack of capacity to sue. July 15 MTD of defendant is denied. July 18 Notice of denial of MTD is given to Defendant. July 23 Defendant files an answer. Did the period for filing the answer lapse? ANSWER: No, the answer was filed on time. Even if the balance of the period was only 2 days (June. 3 – June 15 is 13 days), Sec. 4, Rule 17 allows the defendant in this case is entitled to file an answer not less than 5 days from his receipt of the notice. (July 19 – July 23 is five days). Luz v. National Amnesty This was the case where Luz applied for amnesty but was denied and he appealed to the National Amnesty Board. He filed two extensions. The court only allowed the first extension but denied the second extension for being filed out of time. Under SC AM-00-2-14, the second motion to extend should be counted from actual last day of the period, which was Dec. 7, even if it was a Saturday and not on the day where the extension was allowed to be filed, which was Dec. 9. 10. Bill of Particulars. (Rule 12) When applied for; Purpose.

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

Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either: (Sec. 2, Rule 12) a. deny b. grant it outright, or c. allow the parties the opportunity to be heard.

If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (l0) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (Sec. 3, Rule 12)

Effect of non-compliance. If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (Sec. 4, Rule 12)

Stay of period to file responsive pleading.

After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (Sec. 5, Rule 12)

Bill of Particulars, A Part of the Pleading.

A bill of particulars becomes part of the pleading for which it is intended. (Sec. 6, Rule 12)

Avena Notes (7 Jan 04) Is a motion for a bill of particulars a matter of right? Yes. * Ma’am wishes to stress that when a defendant files a motion for a bill of particulars and it is granted, it is the plaintiff who is tasked to file the bill of particulars. How should a plaintiff comply with order to submit a bill of particulars? 1. Through a separate pleading. 2. Through an amendment of the original complaint. * Ma’am opines that it is better to amend the complaint rather than submit a separate pleading because it is easier for the judge to inspect and see the amendments introduced. Regalado Notes What is the purpose of a bill of particulars? It is to enable the defending party to properly prepare his responsive pleading. Courts should not be left to conjecture in the determination of the issues submitted by the litigants. Is the court duty bound to always allow a motion for a bill of particulars? No. The granting of a motion of a bill of particulars lies within the sound discretion of the court.

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The court is not wholly satisfied with all the assertions made in the motion for bill of particulars. Should it deny the motion in its entirety. No. The court may grant the motion for bill of particulars in whole or in part as not all the allegations questioned are necessarily so ambiguous as to require clarification. Does the motion for a bill of particulars interrupts the time to plead? Yes but only if the motion is sufficient in form and in substance. Upon granting by the court of a motion of a bill of particulars, how shall the plaintiff file the bill of particulars? A bill of particulars may be filed by the complainant either through a separate pleading or an amended pleading. Bautista Notes What are matters that can be order to be particularized in a motion for a bill of particulars? What may be ordered to be particularized on a motion for bill of particulars are the allegations of the elements of a cause of action or defense. The allegation of evidentiary matters cannot be ordered on a motion for bill of particulars. (Republic v. Sandiganbayan) PROBLEM: D files a motion for bill of particulars. TC denied motion. Within the time for filing pleading, D files a MTD for improper venue. P opposes MTD on the ground that objection to improper venue was not raised in the first instance and so deemed waived. Rule on the MTD. ANSWER: P’s MTD must be denied. (Sy v. Tyson). Nowhere in the rules does it state that the objection to improper venue must be raised at the first instance or first objection. PROBLEM: A stays in Sulo Hotel for a few days. A is not from QC. He is from Surigao. He makes QC the venue of his suit against B who is in Surigao. Is this proper? Can A be served summons at Sulo hotel? ANSWER: No. A cannot make QC the venue of his suit because it is not his residence as contemplated in Rule 4. However, A can be served summons at Sulo Hotel according to Rule 14, if personal service is effected and not substituted service for Sulo Hotel would not be the residence of A. (I am not sure why Prof. Bautista put this problem in this topic.)

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XII. Summons (Rule 14) A. Contents, When Issued and By Whom Issued Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. (Sec. 2, Rule 14)

Other Papers Included in the Summons

1. A copy of the complaint and 2. order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (Sec. 2, Rule 14)

Who Issues Summons.

Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (Sec. 1, Rule 14)

By Whom Shall Summons be Served.

The summons may be served a. by the sheriff, b. by the sheriff’s deputy c. other proper court officer d. for justifiable reasons by any suitable person authorized by the court issuing the summons. (Sec. 3, Rule 14)

know that the defendant frequents a night club in Quezon Avenue. The sheriff goes to the night club and waits for the defendant. Like clockwork, defendant enters the night club at 12 midnight. The sheriff serves summons on him. Is this service of summons valid? Yes. Personal service of summons may be effected anywhere. What are the requisite conditions before substituted service can be resorted to? (Sec. 7, Rule 14) 1. It is for justifiable reasons. 2. Personal service cannot be made on the defendant within reasonable time. Is the mode substituted service of summons the same as substituted service of pleadings and papers? No. Substituted service of summons (Sec. 7, Rule 14) is effected through serving summons to a person who is of sufficient age and discretion residing in the residence of the defendant, at the residence of the defendant and to a person having charge of the defendant’s office or principal place of business, at such office. Substituted service of pleadings and other papers (Sec. 8, Rule 13), substituted service is done by delivering copy to the clerk of court with proof of failure of both personal service and service by mail. Since substituted service is a derogation of the normal mode which is personal service, the fact the genuine efforts were made to serve such summons shall be stated in the return of service.

Issuance of alias summons.

1. If a summons is returned without being served on any or all of the defendants; or 2. If the summons has been lost the clerk, on demand of the plaintiff, may issue an alias summons. If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. (Sec. 5, Rule 14)

Avena Notes (6 Jan 04)

B. Modes of Service 1. Voluntary Service (Sec. 20, Rule 14) 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.

2. Voluntary Submission

When the summons is served, will the defendant know the name of the judge? No. Only the branch of the trial will be indicated. Can the plaintiff who is an interested party in the case be allowed to serve summons on the defendant? Yes. The court may even authorize the plaintiff to be the one to effect service of summons on the defendant. The rules provide safeguards that prevent him from defrauding the defendant. A sheriff knows the residence of the defendant because the defendant is his neighbour and he also

Rodriguez v. Alikpala This was the case where the parents were considered parties as they were co-movants in a motion for judgment on a compromise agreement signed together with the daughter and her husband. 3. Service in Person (Sec. 6, Rule 14) Service in person on defendant. Whenever practicable, the summons shall be served a. by handing a copy thereof to the defendant in person, or,

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b. if he refuses to receive and sign for it, by tendering it to him.

circulation nor is it necessary they have the largest number of subscribers.

Toyota Cubao v. CA Strict compliance of the Rules was applied herein, when the return of the summons did not specify why substituted service was resorted to.

Bonnevie v. CA

4. Substituted Service (Sec. 7, Rule 14) Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (Sec. 7, Rule 14) Jose v. Boyon In this case, there was no genuine effort to locate the defendants and serve them with summons. 5. Extraterritorial Service (Sec. 15, Rule 14) Extraterritorial service.

When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines a. by personal service as under section 6; or b. by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or c. in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

Basa v. Mercado Ing Katipunan was held to be a newspaper of general circulation because it possessed the four requisites, namely: a) it was published for dissemination of local news and general information, b) it had a bona fide subscription list of paying subscribers, c) it was published at regular intervals and d) it was NOT devoted to the interests of particular group of people. The law does not require a fixed number of subscribers to constitute a newspaper of general

Dial Corp v. Soriano An action for injunction is a personal action where extraterritorial service of summons on a nonresident defendant is not allowed. Courts are powerless to reach non-resident defendants of actions in personam because personal service of summons is only within the state. Contractual rights are not property rights. Montalban v. Maximo This was the case of Fr. Maximo’s car accident where the summons was served on Fr. Bautista in the church because Fr. Maximo was at the time in Europe. Substituted service of summons can be executed against a Philippine resident temporarily out of the country. In the US, domicilliaries of the state though temporarily absent are always amenable to suits in personam filed within the state, as it is recognized that states still exercise authority over its citizens. D’Midgley v. Ferandos The four instances were extra territorial service of summons is allowed. 1. Action affects personal property of the plaintiff. 2. Action relates to property of the defendant which is in the Philippines 3. Relief consists of excluding defendant from any interest in the property located in the Philippines. 4. Non-resident defendant’s property in the Philippines has been attached. Sahugan v. CA The Rules did not prescribe extra territorial service of summons by publication to be effected on the place where the defendant resides. The extra territorial service of summons in this case was also defective because no registered mail was sent to the last known address of the defendant. REPUBLIC ACT NO. 4883 AN ACT TO AMEND SECTION ONE OF REPUBLIC ACT NUMBERED FOUR THOUSAND FIVE HUNDRED SIXTYNINE ENTITLED "AN ACT REGULATING THE PUBLICATION OF JUDICIAL NOTICES, ADVERTISEMENTS OF PUBLIC BIDDINGS, NOTICES OF AUCTION SALES AND OTHER SIMILAR NOTICES" SECTION 1. Section one of Republic Act Numbered Four thousand five hundred sixty-nine is hereby amended to read as follows: Sec. 1. All judicial notices, advertisements for public biddings, notices of auction sales and other similar notices or announcements required by law to be published in newspaper or periodical of general circulation in

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particular provinces and/or cities shall be published in newspapers or publications published, edited and printed in the same city and/or province where the requirement of general circulation applies: Provided, That in the event there is no newspaper or periodical published in the locality, the same be published in the newspaper or periodical published and edited in the nearest town, city or province: Provided, further, That no newspaper or periodical which has not been regularly published for at least two years before the date of publication of the notices or announcements which may be assigned to it shall be qualified to publish the said notices." SECTION 2. This Act shall take effect upon its approval. Approved: June 17, 1967

PRESIDENTIAL DECREE NO. 1079 REVISING AND CONSOLIDATING ALL LAWS AND DECREES REGULATING PUBLICATION OF JUDICIAL NOTICES, ADVERTISEMENTS FOR PUBLIC BIDDINGS, NOTICES OF AUCTION SALES AND OTHER SIMILAR NOTICES

WHEREAS, in order to better serve the public good, it is necessary to properly disseminate information contained in judicial notices, advertisements for public biddings, notices of auction sales and other similar notices required by Republic Act No. 4569, as amended by Republic Act No. 4883 and Presidential Decree No. 795; WHEREAS, Presidential Decree No. 19 has further amended the above-mentioned law by authorizing the publication of the said notices in any existing newspaper or periodical in any part of the country during the present national emergency; WHEREAS, there is an urgent need to revise Presidential Decree No. 19 to preclude any confusion in the distribution of the notices referred to above; WHEREAS, Presidential Decree No. 19 was intended merely as an emergency measure to prevent the paralyzation of the normal transactions of the government and the private sector that might have resulted from the scarcity of newspapers in the provinces during the early stages of martial law, which possibility no longer exists today; WHEREAS, to better implement the philosophy behind the publication of the above-mentioned notices and announcements and prevent cross commercialism and unfair competition among community newspapers, which conditions prove to be inimical to the development of a truly free and responsible press, it is necessary to revise and consolidate all laws and decree affecting the publication of judicial notices and other announcements herein referred to; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by law, do hereby order and decree the following: SECTION 1. All notices of auction sales in extra-judicial foreclosure of real estate mortgage under Act No. 3135 as amended, judicial notices such as notices of sale on execution of real properties, notices in special proceedings, court orders and summonses and all similar announcements arising from court litigation required by law to be published in a newspaper or periodical of general circulation in particular provinces and/or cities shall be published in newspapers or publications published, edited and circulated in the same city and/or province where the requirement of general circulation applies:

Provided, That the province or city where the publication's principal office is located shall be considered the place where it is edited and published: Provided, further, That in the event there is no newspaper or periodical published in the locality, the same may be published in the newspaper or periodical published, edited and circulated in the nearest city or province: Provided, finally, That no newspaper or periodical which has not been authorized by law to publish and which has not been regularly published for at least one year before the date of publication of the notices or announcements which may be assigned to it shall be qualified to publish the said notices. SECTION 2. The executive judge of the court of first instance shall designate a regular working day and a definite time each week during which the said judicial notices or advertisements shall be distributed personally by him for publication to qualified newspapers or periodicals as defined in the preceding section, which distribution shall be done by raffle: Provided, That should the circumstances require that another day be set for the purpose, he shall notify in writing the editors and publishers concerned at least three (3) days in advance of the designated date: Provided, further, That the distribution of the said notices by raffle shall be dispensed with in case only one newspaper or periodical is in operation in a particular province or city. SECTION 3. No newspaper or periodical shall charge for the publication of the said notices and announcements less than ten pesos (P10.00) per column inch, nor more than eighty percent (80%) of their regular commercial display advertising rates: Provided, That publications whose regular commercial advertising rates are lower than ten pesos (P10.00) shall not charge below ten pesos (P10.00) per column inch for the publication of the above-mentioned notices and announcements: Provided, further, That in the case of publications that do not carry commercial display advertising, the rate for the publication of legal and judicial notices shall be fixed at ten pesos (P10.00) per column inch: Provided, finally, That newspapers or periodicals may only charge more than ten pesos (P10.00) up to eighty percent (80%) of their regular commercial display advertising rates when there is proper and adequate proof that the rate claimed is the regular commercial display advertising rate. SECTION 4. In the publication of the legal and judicial notices referred to above, newspapers or periodicals shall use less but not more than eight (8) points for the text, less but not more than ten (10) points for the heading, and more but not less than nine (9) ems column width; Provided, That the printing of the text and heading shall be solid, without slugs or leads between lines and margins; SECTION 5. No publishers, editor, media personnel or any other person shall directly or indirectly offer or give money, commission or gift of any kind to executive judges of the court of first instance or any court employee in consideration of the award of legal and judicial notices and similar announcements defined in section 1 hereof. Neither shall the latter directly or indirectly demand of or receive from the former money, commission or gifts of any kind in consideration of any publication herein referred to. SECTION 6. Violation of any provision of this Decree shall be punished by a fine or not less than five thousand pesos (P5,000.00) nor more than twenty thousand pesos (P20,000.00) and imprisonment for not less than (6) months nor more than two (2) years. The offending

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executive judge or court personnel shall be perpetually disqualified from holding any public office in the government. SECTION 7. Any provision of law, decree, executive order, rule or regulation contrary to or inconsistent with the provisions of this decree are hereby amended, modified or repealed accordingly. SECTION 8. This Decree shall take effect immediately. Done in the City of Manila, this 28th day of January in the year of Our Lord, nineteen hundred and seventy-seven.

6. Service by Publication Service upon defendant whereabouts are unknown.

whose

identity

or

a. In any action where the defendant is designated as an unknown owner, or the like, or b. whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (Sec. 14, Rule 14)

Extraterritorial service. (Sec. 15, Rule 14)

When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient.

Residents temporarily out of the Philippines. (Sec. 16, Rule 14) When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section.

Toyota Cubao v. CA Guevarra had repaired his Toyota car but paid with a check that did not have sufficient funds. A judge in RTC-QC issued a summons to be served by the sheriff of Calamba, where the defendant was residing. Substituted service was not valid because the return of service did not state affirmatively that earnest efforts were made to effect service. Basa v. Mercado This was case where summons by publication was questioned.

The requirement that the publication in a newspaper of general circulation must be done once a week for three weeks, need not be within the full 21 days. (Week 1: Publish Friday; Week 2: Publish Tuesday; Week 3: Publish Monday: On Tuesday of Week 3, you can already call for a hearing) Ing Katipunan was a newspaper of general circulation. A newspaper of general circulation need not be the one with the biggest newspaper subscription. What are the requisites for a newspaper to be one of general circulation? 1. Published for dissemination of local news and general information. 2. Has a bona fide subscription list of paying subscribers. 3. Published at regular intervals. 4. Not devoted to interests of a particular group of people. Dial Corp. v. Soriano Dial Corp., was a foreign corporation, in which extra territorial service of summons (DHL Courier) was effected to acquire jurisdiction over it in an action in personam. Extra territorial service is proper only if the defendant is a non-resident and cannot be found in the Philippines and falls under the four instances enumerated in De. Midgley. Montalban v. Maximo This was a car accident involving Fr. Maximo, who was out of the country when summons was served in his parish. Extraterritorial service of summons is allowed when the resident of the Philippines is temporarily out of the country. The reason being is that a person who intends to return to his residence would not abandon his property, when he is temporarily abroad. In substituted service, actual delivery to the defendant is necessary in order for the court to acquire jurisdiction over the person? No. Substituted service of summons is completed upon delivery of summons to the person residing in defendant’s residence or the person in charge in the defendant’s office or principal place of business. It is the responsibility of the person receiving the summons for the defendant, to inform the defendant of the summons. Substituted service is deemed as sufficient constructive service of summons on the defendant. Sahagun v. CA Sahagun assigned to Filinvest for valuable consideration, credit from a fictitious sale of a car. Abel Sahagun was in the US, so summons was through publication. Sahagun said publication should be in the US and not in the Philippines.

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The rules do not state where the publication in a newspaper should be. The server should exert his very best to give due notice. It is also impossible to publicize in the US without entailing huge costs and also because Sahagun’s whereabouts in which particular US state was unknown.

from being sued in Philippine courts for acts done against a person in the Philippines. Case was rendered moot because Facilities Management paid dela Osa. 3. Upon Resident Temporarily Abroad.

C. Modes of Service upon Certain Defendants

Residents temporarily out of the Philippines.

1. Upon Domestic Private Judicial Entity Service upon domestic private juridical entity.

When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. (Sec. 11, Rule 14)

Paluwagan ng Bayan v. King Paluwagan ng Bayan filed an action for recovery of money market placement through promissory notes against Mercantile Financing Corp. (MFC) and its directors and officers. Summons was served only on the assistant manager of MFC at their office building in LTA. Summons was not proper with regard the officers and directors. Since the directors and officers were being held liable in their personal capacity, summons must be served on them personally. 2. Upon Foreign Private Juridical Entity Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made a. on its resident agent designated in accordance with law for that purpose, or, b. if there be no such agent, on the government official designated by law to that effect, or c. on any of the foreign private juridical entity’s officers or agents within the Philippines. (Sec. 12, Rule 14)

Answer of a defendant foreign private juridical entity. Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (Sec. 2, Rule 11)

(Sec. 14, Rule 14, 1964 Rules of Court) Facilities Management v. Dela Osa Dela Osa was a Filipino employee of Facilities Management, which was a foreign corporation that was domiciled in the Wake Islands. A foreign corporation not engaged in business in the Philippines cannot claim exemption

When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (Sec. 16, Rule 14)

Montalban v. Maximo Fr. Maximo was in Europe when summons was served on him at his Church, which was received by another priest. Substituted service of summons on the priest was proper and allowed the court to acquire jurisdiction over Fr. Maximo. 4. Upon Defendant Whose Identity or Whereabouts Unknown. Service upon defendant whereabouts are unknown.

whose

identity

or

In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (Sec. 14, Rule 14)

Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall a. be made by motion in writing, b. supported by affidavit of the plaintiff or some person on his behalf, c. setting forth the grounds for the application. (Sec. 17, Rule 14)

5. Upon Others. Service upon entity without juridical personality.

When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving a. upon any one of them, or b. upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (Sec. 8, Rule 14)

Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the

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officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (Sec. 9, Rule 14)

Service upon minors and incompetents.

When the defendant is a minor, insane otherwise an incompetent, service shall be made 1. upon him personally and 2. on his legal guardian if he has one, or if none, upon guardian ad litem whose appointment shall be applied by the plaintiff. 3. In the case of a minor, service may also be made on father or mother. (Sec. 10, Rule 14)

or his for his

Service upon public corporations.

a. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; b. in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (Sec. 13, Rule 14)

D. Return or Proof of Service Return. When the service has been completed, the server 1. shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and 2. shall return the summons to the clerk who issued it, accompanied by proof of service. (Sec. 4, Rule 14)

Proof of service. The proof of service of a summons 1. shall be made in writing by the server and shall set forth the manner, place, and date of service; 2. shall specify any papers which have been served with the process and the name of the person who received the same; and 3. shall be sworn to when made by a person other than a sheriff or his deputy. (Sec. 18, Rule 14)

Proof of service by publication. If the service has been made by publication, service may be proved 1. by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and 2. by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (Sec. 19, Rule 14)

Regalado Notes General Rule: Jurisdiction cannot be acquired over the person of the defendant WITHOUT service of summons. Plaintiff filed an amended complaint. Should a new summons be issued against the defendant who was already served summons in the original complaint? Defendant need not be issued a new summons for the amended complaint, if the

amended complaint does NOT introduce new causes of action. But, if defendant has not filed a responsive pleading and the amended complaint introduces new causes of action, a new summons must be issued against the defendant. But if defendant has already appeared in response to the first summons by filing a MTD or an answer, a new summons need not be served upon the amended complaint because defendant was already in court when the complaint was amended. A police sergeant served summons on the debtor because the plaintiff said debtor was the police sergeant’s next door neighbor and friend. Is service of summons valid? No. The enumeration of persons who may serve summons is EXCLUSIVE. Summons on a defendant living in Hong Kong was served by mail only because, plaintiff had no funds to pay for publication by newspaper. Trial court held service of summons was valid. Was the trial court correct? No. Summons cannot be served by mail. Resort to registered mail, when service of summons is by publication, is only complementary to service of summons by publication, but it does not mean that service by registered mail alone would suffice. Plaintiff filed an action for ejectment. He served summons by publication on PDI, Philippine Star and Manila Bulletin for three successive weeks and had summons sent through registered mail to the defendant who was in Baguio. Trial court said summons by publication was proper. Was trial court correct? No. An ejectment case, being in personam action, personal service of summons on the defendant within the state of the forum is essential to acquire jurisdiction over his person; hence summons by publication in this case is null and void. In service of summons upon prisoners, what is the significance of the deputization as special sheriff of the head of the penal institution? That officer being deputized as a special sheriff shall be charged with the duty of complying with the requirement for the service of the return under Sec. 4 and 5 of Rule 14. ABC Corporation was sued for non payment of debt. Sheriff served summons on the secretary of the President of the Corporation, since the President was on vacation leave. Trial court held that service was improper. Was trial court correct? Yes, service upon other persons mentioned in Sec. 13, Rule 14 on service of summons on domestic private juridical entities is invalid and does not bind the corporation. The secretary of the President is different from the corporate secretary.

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What is the ultimate test on the validity and sufficiency of service of summons on a domestic private juridical entity? Whether the summons and the attachments there to were ultimately received by the corporation under such circumstances that no undue prejudice was sustained by it from the procedural lapse and that it was afforded full opportunity to present its responsive pleadings.

Mr. MADUGAS, Clerk RTC of Quezon City, Branch 123

What is a newspaper of general circulation? 1. one which is published for the dissemination of local news and general information; 2. it has a bona fide subscription list of subscribers 3. is published at regular intervals (c/f RA 4883, newspaper must have been regularly published for at least two years before the date of the publication in question) 4. it is not published for or devoted to the interest of a particular group of persons.

Can a policeman serve summons? Yes. If and only if, the court grants him special authority to serve summons.

Any form of appearance in the court by the defendant or his agent or counsel is equivalent to service of summons. True or False. False. When appearance by the defendant or his agent or counsel is precisely to object to the jurisdiction of the court over the person of the defendant. (I think this is what they call as special appearance to contest the jurisdiction of the court over the person.) Bautista Notes What is summons? Summons is the process by which a party is brought to court as a defendant. It is a writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance therein. Service of summons enables the court to acquire jurisdiction over the person of the defendant. What is the effect of judgment where there is no service of summons on the defendant? In the absence of service of summons and unless the defendant waives such defect by his voluntary appearance in court, any judgment in regard to such defendant is null and void. SAMPLE SUMMONS To Ms. MAHINAHON, Defendant. You are hereby summoned and required to file and serve your answer to the complaint, copy of which is hereby served upon you, within fifteen (15) days after service hereof exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

Can summons be served by fax or email, as under other means of service? According to Prof. Bautista, summons can be served by fax or email as it comes under the purview of the Electronic Commerce Act. But I am not sure under which provision.

Sheriff was ordered to serve summons on defendant. When sheriff reached the house of defendant, he waited for ten minutes without any success in serving the summons on the defendant. Since he had other summons to serve, sheriff resorted to substituted service by giving the summons to a person who purported to be the defendant’s maid. Was there valid substituted service of summons? No. Substituted service of summons may be resorted to only if personal service cannot be made within a reasonable time. The sheriff should have exerted more reasonable efforts to serve summons. (Laus v. CA) In the sheriff’s return of service, it was stated that substituted service was done on the nephew of the defendant who was at the house of the defendant when the sheriff came. Defendant files a MTD for lack of jurisdiction over the person due to improper service of summons and was able to prove that his nephew was merely 14, although he looked much older. Plaintiff said that sheriff’s return of service is conclusive upon this court. Rule on the MTD. MTD granted. The recital of facts in the sheriff’s return of service is not conclusive. This is especially so when the recital of facts has a legal component, where, for instance, the sheriff concludes that substituted service was made on a person of suitable age and discretion. (Mechanical Appliance Co v, Castleman, 54 L. Ed. 272) What is special appearance? Special appearance is a procedural device recognized in our jurisdiction where the defendant may challenge the jurisdiction of the court based on the invalidity of the service of summons upon him and he is not thereby considered to have submitted himself to the jurisdiction of the court. (United Coconut Planter’s Bank v, Ongpin) Defendant is served with summons in his Makati office through his wife, who happened to be visiting his office. He appears before the court to file a motion for additional time to answer because he read the summons when he discovered it in his desk a week after. Plaintiff objects and says, his filing of the motion should be deemed as voluntary submission to the jurisdiction of the court. Defendant argues that

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he will file a special appearance to question the service of summons. Rule on the arguments. There is already voluntary appearance. Defendant waives his objection to any defect in the service of summons where he moves for additional time to answer. (Orosa v. CA) Can the parties stipulate in advance upon whom summons shall be served, if and when an action between them arises? Yes. In some contracts, like international contracts, the parties may agree as to whom summons should be served. What are the justifiable reasons for substituted service? 1. staff is not available (understaffed) 2. distance 3. identification of person to be sued is impossible (In the case of the Tatalon estate, the service was substituted because the defendant lived in a squatter’s area where the houses did not have numbers. GENERAL RULE: Return of service of summons immediately shifts the burden of evidence (that summons was served) from plaintiff to defendant, since there is a presumption of regularity. Table of Modes of Service. PLEADING Summons

Pleadings and Other Papers

Final Judgments, Orders and Decisions

MODE OF SERVICE 1. Personal (either handing or tendering) 2. Substituted a. Residence: with resident of sufficient age and discretion b. Office/Regular Place of Business: with some competent person in charge thereof. 3. publication 4. any other means 1. Personal a. delivery to party/ counsel b. leaving it in office with clerk or person in charge c. leaving it in residence of party or counsel from 8AM-6PM 2. Substituted Service - with clerk of court after personal service fails. 3. Mail a. Registered mail: date of mailing is date of filing b. Ordinary Mail: If no registry service is available 1. Personal 2. Registered Mail 3. Publication (but only if defendant was summoned by publication and defendant failed to appear in the action.

PROBLEM: A lawyer was a defendant in an action for collection. When sheriff went to his house to serve summons, he only person he found was defendant’s daughter who was visiting him. Can summons be served on the daughter. ANSWER: No. Rule requires that the person to whom summons may be served must be RESIDING in the defendant’s house and not merely a visitor. PROBLEM: What is one supposed to do if service of summons is not valid? ANSWER: Make a special appearance for the limited and exclusive purpose of questioning the validity of service of summons, to quash it and move to dismiss on the ground of lack of jurisdiction over the person of the defendant. If you add other grounds (i.e. prescription, failure to state a cause of action), you are not deemed to have waived the ground of invalid service of summons. Because of the omnibus motion rule (Sec. 1, Rule 9) where defenses or objections not pleaded in MTD or in the answer are deemed waived. PROBLEM: A civil action was filed against Robert Strunk who is still at present in the US. Court issued a summons for him to appear. Can the sheriff be authorized to serve summons in the US? ANSWER: No. Processes of the courts are effective only within the Philippines just as our judgments cannot be enforced abroad. (Sec. 3 and 4, Rule 135) PROBLEM: In one Philippine case, a lawyer was sued. He was declared in default for failing to file an answer. He sought to set aside the order of default. The service was made on the first floor of his house, which was a sari-sari store, to his son who was manning the store. He claims that summons was served on his 21-year-old son, who according to him was mentally retarded and not of sufficient discretion and even called a psychiatrist to testify to that fact. Was service valid? ANSWER: SC said YES and even scolded the lawyer. SC said that son was of sufficient age and discretion because although mentally retarded, the lawyer allowed him to tend to the store. If he was smart enough to tend the store, he is smart enough to understand the significance of the summons. If complaint is amended, is there a need for a new issuance of summons? DEPENDS: a. NO. If the defendant has already been served with summons on the original complaint and the amended complaint does not introduce new causes of actions, no further summons is required. (Ong Peng v, Custodio) b. YES. If the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint

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as the original complaint was deemed withdrawn upon such amendment. (Knoll and Co v. Domingo)

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XIII. Motions in General (Rule 15)

Avena Notes (7 Jan 04)

What is a motion?

Are motion pleadings? Technically, NO. Because the Rules say it is other than a pleading.

Motions must be in writing.

Who sets the hearing on the motion? The applicant sets the hearing on the motion, subject to the following conditions: a. date and time of hearing shall not be later than 10 days after the filing of the motion. b. service of notice of hearing on the adverse party shall be done at least 3 days before the date of hearing.

A motion is an application for relief other than by a pleading. (Sec. 1, Rule 15)

All motions shall be in writing except those made in open court or in the course of a hearing or trial. (Sec. 2, Rule 15)

Contents. A motion shall state: (Sec. 3, Rule 15) a. the relief sought to be obtained and b. the grounds upon which it is based, and c. if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers.

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. (Sec. 4, Rule 15)

Notice of hearing.

The notice of hearing 1. shall be addressed to all parties concerned, and 2. shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. (Sec. 5, Rule 15)

Proof of service necessary.

Regalado Notes What are the exception to the three day notice rule in Section 4, Rule 15? 1. ex parte motions 2. urgent motions 3. motions agreed upon by the parties to be heard on shorter notice. 4. motions for summary judgment which must be served at least 10 days before its hearing (Sec. 3, Rule 35) What are the exceptions to the general rule that all written motions shall be set for hearing? The exceptions to the general rule are nonlitigatable or non-litigated motion, or motions which may be acted upon by the court without prejudicing the rights of the adverse party.

No written motion set for hearing shall be acted upon by the court without proof of service thereof. (Sec. 6, Rule 15)

A motion which does not contain a notice of time and place of hearing is a useless piece of paper and of no legal effect.

Motion day.

What is the purpose of attaching the pleading sought to be admitted in a motion for leave to file such pleading? It is to provide the court with the basis for determining the merits of the motion for leave of court to file the desired pleading or motion. It is unfair to the court and to the adverse party to seek a ruling and the admission of a pleading sight unseen, since the court will have to fathom the contents of the projected pleading and the opposing party cannot formulate his opposition to the admission thereof.

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. (Sec. 7, Rule 15)

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. (Sec. 8, Rule 15)

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. (Sec. 9, Rule 15)

Form.

The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (Sec. 10, Rule 15)

Bautista Notes. PROBLEM: Suppose a motion is filed on July 1. When is the earliest time that it can be set for hearing? ANSWER: After 3 days, or July 4. The receipt for the form of the notice of hearing advises the adverse party of the date, time and place of hearing. It is mandatory and strictly enforced.

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Failure to comply with this requirement will result in a fatal defect. This motion will be tantamount to no motion at all and in the word of the SC, it can be deemed “an outlaw that can be slain on sight.” The burden is on the party or the movant to set the date, time and place of hearing. This cannot be made dependent on the clerk of court.

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XIV. Motion to Dismiss (Rule 16)

Pleading grounds as affirmative defenses.

What are the grounds for a Motion to Dismiss (MTD)?

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: MNEMONIC: JJVCP – PCWUC (Sec. 1, Rule 16) (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with.

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. (Sec. 2, Rule 16)

Resolution of motion. After the hearing, the court may a. dismiss the action or claim, b. deny the motion, or c. order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (Sec. 3, Rule 16)

Time to plead.

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. 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. (Sec. 1, Rule 16)

Avena Notes (7 Jan 05) The plaintiff, a 34-year old lawyer, files an action for recovery of possession of property. Defendant claims plaintiff has no interest or claim in the property and is thus not the real party in interest. He files a MTD based on lack of capacity to sue. Is the basis for the MTD correct? No. The correct ground is the complaint states no cause of action because the plaintiff is argued to be not the real party in interest. Compare litis pendentia with res judicata. LITIS PENDENTIA 1. identity of parties 2. identity of causes of action 3. a decision in one will bar the other action by res judicata

RESJUDICATA 1. the decision is final 2. the court deciding the action is a competent court which has jurisdiction over the case. 3. identity of parties 4. asks for the same reliefs

The final judgment requisite in res judicata need not be one which was on the merits. EXAMPLE: A MTD if granted, is a final judgment which is not based on the merits of the case. But the plaintiff can still appeal. The grounds in a motion to dismiss can be alleged in the defendant’s answer, if no motion to dismiss is filed.

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. (Sec. 4, Rule 16)

US v. Ruiz This is an action for specific performance against the US, that involved a contract bidding for repairs. When a state or international organization claims immunity for suit, the ground for dismissing the action is lack of jurisdiction over the person and NOT lack of jurisdiction over the subject matter.

Effect of dismissal.

National Union v. Stolt-Nielsen When a condition precedent is not complied with (did not go through arbitration process), the ground for dismissal is not failure to state a cause of action but failure to comply with a condition precedent.

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. (Sec. 5, Rule 16)

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Diu v. CA This was the case where the Baranggay Chairman did not constitute the Pangkat ng Tagapamayapa to settle the issue, but instead wrote a letter submitting the issue for court intervention. A motion to dismiss was failed saying that the court did not have jurisdiction because the process of the Katrungang Pambaranggay was not resorted to fully. The ground for dismissing the action is not the lack of jurisdiction of the court over the subject matter, but failure to comply with the condition precedent. But even then, from the facts of the case there was no genuine resolve by the parties to settle amicably the issue. So it is best that they go directly to the court. Besides, the participation of the Baranggay Chairman was substantial compliance with the law. Marcopper v. Garcia A request for admission was filed by Garcia from Marcopper, who was claiming that the land held in possession by Garcia was actually theirs. * Ma’am believes that the SC in this case was using the wrong technical words, in disposing of the case. A motion to dismiss on the ground of failure to state a cause of action will lie only at the beginning of the case, where the trial court will limit itself to the four corners of the complaint and test whether the allegations if hypothetically admitted will justify the awarding of the relief. In a dismissal of an action for lack of cause of action, the motion comes after the plaintiff has submitted its evidence and the defendant believes that the evidence presented did not prove the cause of action stated in the complaint. Here, the trial court is allowed to look at the whole records of the case and is not limited to the complaint. Sustiguer v. Tamayo This was the case of an award of land by the mayor to Aposaga, but was subsequently sold to Tamayo. Aposaga and Sustiguer, who was the loser in the award of land by the mayor, filed suit saying they have a preferential right to the land. But Aposaga withdrew from the suit later on. Tamayo now claims that Sustiguer was not the real party in interest. Again the court was confused in delineating the terms lack of COA and failure to state COA. The motion to dismiss the complaint was only filed after Aposaga’s withdrawal, which was done in the middle of the trial.

occupying land in excess of what was orally agreed upon. Barnes v. Reyes This was an appeal of a decision of the lower court, wherein only one of the siblings signed the certificate for non-forum shopping. SC said that the sister had a special power of attorney, wherein she was allowed to sign for her siblings who were also co-owners with her. Juasing v. Hardware. This was the case where the sole proprietorship filed suit. Juasing Hardware is not a legal person. The ground for dismissal should be lack of legal personality, because it did not exist in the eyes of the law. It is not lack of capacity to sue, because personality refers to the fitness to be the subject of legal relations. Lee Bun Ting v. CA This case involved a sale of land to an alien, to which the vendor wanted the land returned. In a 1956 decision, SC declared that vendor did not have a juridical remedy under the law, because he was also in pari delicto. When the subsequent ruling of PBC v. Li (Ruling: Exception to the pari delicto rule – when the pari delicto rule would render injustice) came about, vendor again returned to the trial court to have the land adjudicated back to him. There was a bar by prior judgment of the SC. Present parties are still the same. Compare Bar by prior judgment v. Conclusiveness of judgment

Kind of Res Judicata

Scope of Matters which are rendered conclusive

Baguirro v. Barrios Baguirro built a house in violation of an oral agreement with the owner of the land. An action was filed by the owner to either pay the rentals or vacate the land. CFI has no jurisdiction because of the jurisdictional amount of the rent claimed for and because the action was forcible entry of Baguirro in 78 of 229

Bar by Prior Judgment (Sec. 47 (b), Rule 39) Complete res judicata (identity of parties, subject matter, and issues) All matters directly adjudged or as to any other matter that could have been raised in relation thereto

Conclusiveness of Judgment (Sec. 47 (c), Rule 39) There is NO identity of issues, but there is identity of parties and it involves the same subject matter. That which is only been deemed to have been adjudged in a former judgment or final order which appears upon its face to have been adjudged, or which was actually or necessarily included therein or necessary thereto.

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JONATHAN PAMPOLINA

* Res judicata is merely a re-litigation of the same issues with the same parties. Regalado Notes: Avena Notes (8 Jan 05)

Differentiate a motion to dismiss under Rule 16 as against a demurrer to evidence under Rule 33.

As per all motions, proof of service is necessary before the court shall act on the motion. (Sec. 6, Rule 15) A hearing on the motion to dismiss was ordered by the court. The defendant present evidence in the hearing on the motion. The MTD is denied. The defendant files an answer and during the trial argues based on evidence presented during the preliminary hearing on the MTD. The plaintiff objects saying that the court has ruled and denied the MTD, so the defendant cannot raise the grounds or evidence presented in the hearing on the MTD. Rule on the objection. Objection should be overruled because the Rules automatically make the evidence presented during the hearing on the MTD part of the evidence of the defendant who filed it, even if the MTD is denied. (Sec. 2, Rule 16)

Basis Who file?

Period filing.

* This principle, according to ma’am is a great preservative of your evidence. In ruling on a motion to dismiss, what is the advantage of a court ordering merely an amendment to the complaint? If the court orders an amendment of the complaint after hearing on the MTD, the plaintiff may just file an amended complaint without paying docket fees. If the court grants the MTD and dismisses the case, then counsel for the plaintiff has to file docket fees anew. Sempio v. CA This was the case involving three action the subject matter of which was the land owned by Sempio that was sold in a extra judicial foreclosure by DBP. DBP subsequently sold the land to Tuason. SC held that Tuason was aware of the proceedings instituted by Sempio against DBP, but still he did not participate in the case but filed a separate case, when he learned the Sempio was given possession of the land. SC said Tuason’s right over the property was contingent on the rights of DBP over the extra-judicial foreclosure. * The SC separated substantial identity of parties and community of interest. The SC described community of interest between the parties as the situation wherein Tuason was a successor in interest to DBP. On the other hand, substantial identity of interest pertained to the idea that it does not require absolute identity of the parties. To Avena’s mind, the two concepts are actually the same banana, because there is substantial identity of parties because of community of interests.

may

for

Motion to Dismiss Grounded on preliminary objections. May be filed by any defending party against whom a claim is asserted in the action. Should be filed within the time for but prior to the filing of the answer to the defending party to the pleading asserting the claim against him.

Demurrer to Evidence Based on insufficiency of evidence. May be filed only by the defendant against the complaint of the plaintiff. May be filed for the dismissal of the case only after the plaintiff has completed the presentation of his evidence.

Does a MTD admit the whole truth of the matter alleged in the complaint? No. A MTD only hypothetically admits the truth of the facts alleged in the complaint. Such, admission however, is limited only to all material and relevant facts which are well pleaded in the complaint. Can a compliant be dismissed by the court, on a ground not alleged in the MTD? No. An action cannot be dismissed on a ground not alleged in the MTD, even if said ground, e.g. prescription, is provided for in Rule 16, EXCEPT in those cases where the court may dismiss a case motu propio. (Malig v.Bush) If defendant files a MTD challenging the jurisdiction of the court over his person and also on the ground of prescription, does he waive his right of special voluntary appearance and does the court now exercise jurisdiction over his person? No. Even if he challenges the jurisdiction of the court over his person, as by reason of absence or defective service of summons, and he also invokes other grounds for the dismissal of the action under Rule 16, he is not deemed to be in estoppel or to have waived his objection to jurisdiction over his person. (La Naval Drug v. CA) A party files an action for specific performance. The court dismisses the action because the obligation has

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been paid. The plaintiff files an appeal questioning the jurisdiction of the RTC. Rule on the appeal. Appeal is denied. Where a party invokes the jurisdiction of a court to obtain affirmative relief and fails, he cannot thereafter repudiate such jurisdiction. While the issue of jurisdiction may be raised at any time, he is estopped as it is tantamount to speculating on the fortunes of litigation. (Crisostomo v. CA) Can there be an implied waiver of improper venue? Yes, where the plaintiffs filed the action in a court of improper venue and thereafter submitted to its jurisdiction, the issue of venue was thereby waived and they are in estoppel to repudiate or question the proceedings in said court. (Vda. De Suan v. Cusi) Objections to venue is also impliedly waived where the party enters into trial, cross-examines the witnesses of the adverse party and adduces evidence. (Paper Industries v. Samson) A plaintiff files an action for quieting of title against defendant. Defendant says that plaintiff is not the real party in interest because he is not the real owner of the property. Counsel files a MTD based on lack of capacity to sue. Is the basis valid? No. Where the plaintiff is not the real party in interest the ground for the MTD is failure to state a cause of action. (Casimiro v. Ramirez) Lack of legal capacity to sue means that the plaintiff is either not in the exercise of his civil rights or does not have the character or representation that he claims. (Lunsod v. Ortega) What are the requisites of litis pendentia? 1. the parties to the action are the same. 2. that there is substantial identity in the cause of action and reliefs sought 3. that the result of the first action is determinative of the second in any event. Does the pendency of an administrative action constitute litis pendentia on the civil action? No. The pendency of an administrative case between the parties does not generally constitute litis pendentia in another civil or criminal case between them. When the ground for dismissal is that the complaint states no cause of action, such fact can be determined only from the facts alleged in the complaint. This implies that the issues must be passed upon on the basis of the allegation assuming them to be true and the court cannot inquire into the truth of the allegations and declare them to be false, otherwise, it would be a procedural error and a denial of due process to the plaintiff. The trial court can consider all the pleadings filed including annexes, motions and the evidence on record.

The test is whether, assuming the allegations of fact in the complaint, a valid judgment could be rendered in accordance with the prayer in the complaint. Action is for cancellation of the defendant’s title, but the allegations therein are inadequate. Can the plaintiff now say that he has made improvements on the land and should be reimbursed thereof? Where the facts alleged to make out the principal cause of action and relief are insufficient, the case should be dismissed and plaintiff cannot rely on ancillary matters in the complaint to make out a cause of action. A suit is filed against debtor for failure to pay his obligation. In the complaint, it does not allege the consideration for the obligation. The case goes to trial and defendant does not object to the lack of consideration stated in the complaint. Plaintiff now moves that the complaint be amended to introduce the consideration of the obligation. Should this be allowed or should the complaint be dismissed. Allow the amendment of the complaint to conform to the evidence presented. If the defendant permits evidence to be introduced, without objection, which supplies the necessary allegation in such defective complaint, this evidence cures the defects of such complaint which may no longer be dismissed on that account and the court shall award such relief as is consistent with the case made out by the pleadings and the evidence. (Pascua v. CA and also see Sec. 5, Rule 10) What ground can be cited to dismiss an action based on the ground that the allegations of the complaint are vague or indefinite? None. An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. A ruling on the motion to dismiss is unappealable. True or false? It depends. If the MTD is denied, the order of denial is interlocutory and not appealable, unless the judge’s denial is done with grave abuse of discretion or in excess of jurisdiction. If the MTD is granted, the order granting the MTD is final and appealable. When a court grants the MTD and dismisses the complaint, can the plaintiff refile again correcting the mistakes of the prior complaint? Yes. Except if the order granting the MTD is based on the following grounds: 1. res judicata 2. prescription 3. extinguishments 4. unenforceability under the Statute of Frauds

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That a cause of action has prescribed, the ground for dismissal is that the cause of action is barred by the statute of limitations. That the ownership or other real rights claimed have prescribed or in cases of extinctive prescription, the ground for dismissal of the action is that the claim or demand has been extinguished.

PROBLEM: Husband sues wife and her paramour for recovery of money. MTD was filed by the defendants on the ground that earnest efforts to compromise were not exerted. Rule on the motion.

Bautista Notes:

PROBLEM: First action was for the annulment of a contract of mortgage. A second action was filed for the foreclosure of a mortgage. A MTD was filed against the second action. Rule on the MTD. ANSWER: MTD is denied. Although there is identity of parties and there may be identity of rights asserted yet the judgment which may be rendered in the first action does not necessarily bar the second action. (What if the first action was dismissed and the court rules that the contract of mortgage was valid.) Identity between the two actions must be such that any judgment rendered on the other action will amount to an adjudication of the action under consideration. It is not punctuated upon such contingency. It is applicable between with the same particularity when the judgment to be rendered in the first action will be such that, regardless of the party’s success, it still results in res judicata with the second action.

Where the defendant moved to dismiss the complaint on the ground of lack of SM jurisdiction and litis pendentia but the court instead dismissed the complaint on ground that the case has become moot and academic. Is the dismissal by the court valid? Yes, the dismissal was held to have been effectively made motu propio and without an opportunity afforded the plaintiff to be heard despite the presence of factual issues that need to be proved. (Borje v. CFI-Misamis Occidental) A lessee sued his lessor to fix the period for their contract of lease. Lessor, in turn sues the lessee for ejectment. Lessee in the second case, moves for dismissal saying that the first action is litis pendentia on the second and that the lessee was the one who filed first. Rule on the motion. Motion to dismiss is denied. It was held that what should be dismissed is the first case of fixing the period of the lease because ejectment is the more appropriate action for determination of the lessee’s right to occupy the premises and fixing of the period for the lease is discretionary with the court. There is no requirement in litis pendentia that the other pending action should have been filed first. (Teodoro v.Mirasol) PROBLEM: Defendant files a MTD on the ground of lack of capacity to sue. The court denies MTD. Can the defendant re-plead lack of capacity to sue as an affirmative defense. ANSWER: No, the general rule is that if a MTD has been filed, the grounds alleged in the MTD cannot be repleaded, unless it is for lack of SM jurisdiction, litis pendentia, res judicata or prescription of the action. PROBLEM: Husband sues his wife for a sum of money. Wife files an answer, but shortly before pretrial she files a MTD on the ground of lack of earnest efforts to resolve the matter. Rule on the motion. ANSWER: MTD granted. The lack of earnest efforts to resolve the matter between husband and wife is a condition precedent to the cause of action for the recovery of money such that the failure of the husband to cite the earnest effort had been undertaken would amount to a failure to state a cause of action. Since the failure to state a cause of action is an exception to Rule 9, Section 2, the allegations after filing of the answer is not too late.

ANSWER: MTD is denied. Where third parties are involved, you don’t have to exert earnest efforts to compromise. (Magabaleta v. Bono)

PROBLEM: Petition in the Bureau of Lands for issuance of free patent over a parcel of land. Another action was filed to recover said land during pendency of the proceedings in the Bureau of Lands. A MTD in the civil action was filed on the basis of litis pendentia. Rule on the MTD. ANSWER: MTD is denied. There is no litis pendentia because the first action is administrative, while the second action is instituted in court. Differentiate between Bar by Prior Judgment and Estoppel by Judgment. Bar by Prior Estoppel by Judgment Judgment Issues Any issue that was Only the issues barred. raised or which actually raised could have been and necessarily raised but was not adjudged by the raised is barred action are from being raised barred. Other in another action in issues not the future. raised are not barred because the causes of action of the cases are different. Is MTD Yes, it is a ground Not a ground valid? for a MTD because for a MTD it is complete res because the judicata. cause of action is different.

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What are the elements of Bar by Prior Judgment or Res Judicata Proper? What is the scope of preclusion? 1. Jurisdiction of the court 2. Final judgment. 3. Judgment on the Merits 4. Identity of parties and cause of action What is precluded is the entire action, which means all matters directly adjudged in the first case and any matter that could have been raised in relation thereto. What are the elements of Estoppel by Judgement or Conclusiveness of Judgment? What is the scope of preclusion? 1. Jurisdiction of the Court. 2. Final Judgment 3. judgment on the merits 4. Identity of parties but not the causes of action. Only specific issues are prevented from being re-litigated, which means matters adjudged in a final judgment or final order which appears upon its face to have been adjudged and matters actually and necessarily included therein or necessary thereto. PROBLEM: 1st action – A v. B to foreclose real estate mortgage. 2nd action – B v. A to quiet title. A files a MTD. Rule on the motion. ANSWER: MTD granted. It is a bar by prior judgment. PROBLEM: 1st action – A v. B to recover land. 2 nd action – B v. A to quiet title. A files a MTD. Rule on the motion. ANSWER: MTD is granted. There is conclusiveness of judgment because the issue of the validity of the mortgage cannot be re-litigated. Avena Notes (18 Jan 05) 246 Corp v. Daway This is the Rolex trademark infringement case. A motion to dismiss with motion for preliminary hearing is not an absolute right of the plaintiff. A motion for preliminary hearing is available only if there is no need for evidence aliunde and the court is asked only to look at the complaint. Taganas v. Emusalan This was the case of the four way vehicular accident. FIRST CASE: Juntos (owner of the Isuzu van) v. Taganas (Petron truck owner). Taganas won the suit, Juntos was judged as liable. SECOND CASE: Shell v. Juntos and Taganas. Juntos filed a cross claim against Taganas. In the first case, the cause of action was in relation to damages to the Juntos’ car. “Taganas, you bumped my behind.” In the second case, Juntos’s second cause of action in the cross claim

was with respect damages to Shell. “Since you bumped me, which therefore led me to bump Shell, Taganas, you should pay Shell what Shell is asking from me.” Regala v. Sandiganbayan This was the case filed against Eduardo Cojuangco, which impleaded the ACCRA lawyers in their capacity as nominee stockholders. PCGG filed a motion to admit third amended complaint. According to ma’am, SC went ahead of itself and jumped the gun when it dismissed the complaint against the ACCRA lawyers. In evidence, the attorney-client privileged is only invoked when the attorney is asked to take the witness stand and testify against his client. But here the SC already ruled on the applicability of the attorney-client privilege even before they were asked to take the stand. Procedurally, the ACCRA lawyers were not yet impleaded in the Cojuangco case in the Sandiganbayan, which was why PCGG was trying to amend their complaint. Yet, the SC dismissed the case against the ACCRA lawyers without them being impleaded and without resolving the motion to admit the amended complaint. Licarios v. Sandiganbayan This was the case of the ill-gotten wealth of Lucio Tan, who in conspiracy with the then Governor of the CB, Licarios, was able to purchase the assets of GBTC for P.5 M only. There was no failure to state a cause of action, since there was sufficient facts imputed against Licarios in the complaint to implead him in the conspiracy. Tancuntian v. Gempesaw The issue in this case was whether Tancuntian was filing a case for reversion or quieting of title. The SC said this was for quieting of title because Tancuntian had an original certificate of title to the land in question; which renders the grant by the Bureau of Lands of the free patent null and void because the real property was no longer public land. Compared to Katon, Tancuntian had registered his title to the land via an original certificate of title. Katon, on the other hand, was negligent in not pushing for the application for the registration of the Sombrero Island. Agilient v. Integrated Silicon The first case was based on a breach of contract, wherein Integrated Silicon sued Agilient for not extending the period of the contract. The second case was for replevin, in which Agilient sued Integrated Silicon for recovery of equipment owned by Agilient. There was no litis pendentia because there was no identity of causes of action and of the issues.

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XV. Dismissal of Action by Claimant (Rule 17)

because before the amendment there must be substitution of the deceased party.

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. (Sec. 1, Rule 17)

Two-Dismissal Rule. 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. (Sec. 1, Rule 17)

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. (Sec. 2, Rule 17)

Dismissal due to fault of plaintiff.

If, for no justifiable cause, the plaintiff a. fails to appear on the date of the presentation of his evidence in chief on the complaint, or b. fails to prosecute his action for an unreasonable length of time, or c. fails 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. (Sec. 3, Rule 17)

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. (Sec. 4, Rule 17)

Gojo v. Goyala Failure of the plaintiff to comply with the orders of the court is a ground for a motu propio dismissal of the complaint. This rule did not apply in this case because the order of the court to amend the pleadings to substitute the heirs was void

Regalado Notes: When is the notice by the plaintiff of the dismissal of the complaint with prejudice? 1. Where the notice of dismissal so provides. 2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction 3. Where the notice of dismissal does not provide that it is with prejudice, but it is presumed on the fact of payment by the defendant of the claim involved. What causes the loss of the plaintiff’s right to effect dismissal of action by mere notice? It is the service on the plaintiff of the defendant’s answer or of a motion of summary judgment and NOT the filing of the defendant’s answer. (c/f filing v. serving of pleadings and papers.) (Go v. Cruz) Where the first complaint for foreclosure of a chattel mortgage for non-payment of certain instalments due thereunder was dismissed with prejudice, at the instance of the plaintiff, another complaint later filed by him for non-payment of instalments subsequent to those involved in the first case should not be dismissed on the ground of res judicata since the second case involved different causes of action. (Filinvest Credit Corp. v. Salas) If the defendant wishes to pursue his counterclaim in an action dismissed upon motion of the plaintiff, are the alternative remedies of either continuing the counterclaim in the same action or filing it separately dependent on whether the counterclaim is compulsory? No. The alternative remedies are available to the defendant who filed the counterclaim regardless of whether his counterclaim is compulsory or permissive. Is the rule on dismissal of the action by the plaintiff, under Section 1 and 2 of Rule 17, the same as the rules on dropping or adding parties under Section 11, Rule 3? No. Dropping or adding parties refers to the maintenance of the case against all parties, except that one or more defendants may be excluded. The action still prevails or continues, only that some of the defendants or plaintiffs are excluded; unlike in a dismissal of the action under Rule 17, where the action is clearly terminated with regard ALL the parties. Plaintiff is absent during the presentation of evidence of the defendant. Defendant moves to dismiss action against plaintiff on the basis that plaintiff did not appear during the trial. Rule on the motion.

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Motion is denied. Since the plaintiff’s presence is now required only during the presentation of his evidence in chief, his absence during the presentation of evidence of the defendant or other parties, nor even at the rebuttal or subsequent stages of the trial, is not a ground for dismissal. (Section 3, Rule 17) How can the plaintiff’s action be dismissed on the basis of failure to prosecute? Unjustifiable inaction on the part of plaintiff to have the case set for trial is ground for dismissal for failure to prosecute. The unreasonable length of time in failure to prosecute is addressed to the sound discretion of the trial court. Counsel for plaintiff presented evidence of his client’s claim for damages against defendant. After his presentation of evidence, counsel was sent to Olangapo by his law firm for some “recreational duties” and was unable to appear at plaintiff’s subsequent hearing where defendant was to present his evidence in defense. Defendant, after he presents his case, files a motion for dismissal of the action based on failure to prosecute. Rule on the motion. Motion is denied. Where counsel for the plaintiff had adduced evidence for his client, his failure to appear at a subsequent hearing cannot be considered as failure to prosecute but only a waiver of the right to cross-examine the witnesses for the defendant and to object to the admissibility of evidence for the latter. (Jalover v. Ytoriaga) Bautista Notes In dismissal of the action by mere notice of the plaintiff, a copy must be furnished to the defendant. True or False. False. Since it is dismissal by mere notice and not by motion, there is no need to furnish a copy to the other party. PROBLEM: The plaintiff files today, but withdraw the next day. What does the plaintiff do if he wants to re-file? ANSWER: The plaintiff can re-file the action, but he has to pay the docket fees again. Dismissal under Section 1 and 2 of Rule 17 are without prejudice EXCEPT: 1. where the notice of dismissal so provides. 2. where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (two dismissal rule) 3. when stated to be with prejudice in the order of the court. * Prof. Bautista notes that if the plaintiff withdraws the case for the second time, then it is equivalent to an adjudication of the case. However, for practical

purposes, how would the defendant know if the plaintiff has filed the case for the second time? He probably would not. Therefore, for practical purposes, this is illusory and the implication is that the plaintiff can re-file even after the second time. PROBLEM: Plaintiff files a complaint. After six months, there has been no service of summons. The case is dismissed for failure to prosecute. Two months later. The plaintiff re-files the same case. The defendant files for a motion to dismiss under Section 3, Rule 17. Rule on the motion to dismiss. ANSWER: Motion to dismiss is denied. The first court did not acquire jurisdiction over the defendant. No summons had been issued yet. There is no res judicata either. Where an action has been dismissed motu propio by the court for failure to prosecute in that summons has not yet been served on defendant despite the lapse of considerable length of time, the dismissal has no res judicata effect because the court by that time had not yet acquired jurisdiction over the defendant. Without such jurisdiction, the court had no competence to dispose of the cause on the merits and to render a binding judgment. (Meliton v. CA) Avena Notes (18 Jan 05) When is a dismissal under Rule 17, an adjudication upon the merits of the case? 1. Under Sec. 3 of Rule 17, where the plaintiff is at fault. 2. Under Sec. 1 of Rule 17, under the two dismissal rule. Avena Notes (20 Jan 05) Can a defendant file a notice of dismissal of the action? No. Notice of dismissal under Sec. 1 or Rule 17 is available only to the claiming party. When a defendant wants to dismiss an action filed against him, it must be through a motion in which the adverse party is afforded a chance to oppose. Ma’am says, kawawa naman yun nag demanda if upon mere notice of the defendant, his claim is dismissed. As a general rule, is a dismissal under Rule 17 with prejudice? No. Dismissal of an action under Sections 1 and 2 of Rule 17 is generally without prejudice. EXCEPTIONS: 1. Under the two dismissal rule of Sec. 1 of Rule 17. 2. Unless otherwise stated in the court order of dismissal.

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3. When dismissal is premised on the fact of payment, dismissal shall be with prejudice. (Serrano v. Cabrera) When should notice of dismissal be filed by the plaintiff? At any time before the service of the answer or of a motion for summary judgment. Ma’am is puzzled why a motion for summary judgment is included, since a motion for summary judgment is proper after the pleading in answer (Rule 35). “Until now, I still cannot figure out the puzzle.” Gojo v. Goyala Dismissal of the action for failure to comply with a court order will not be applicable if the court order, as in this case, was null and void. The court ordered the party to amend the complaint, to introduce the substituted party of the deceased, BEFORE there was any substitution at all. In this case, the SC ruled that an action cannot be dismissed by the plaintiff, if the defendant has filed a compulsory counterclaim. Did the 1997 Rules of Court conform to the ruling of Gojo v. Goyala? No. Because under the new rules, the dismissal of the action in Rule 17 is limited only to the action and the counterclaim, whether compulsory or not, can prosper in the same proceeding or in a separate action, upon the choice of the defendant. Do you need to file an answer in a compulsory counterclaim? No. Because the original complaint controverts the issues in the compulsory counterclaim.

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XVI. Judgement on the Pleadings (Rule 34) Judgment on the pleadings.

A. Where an answer fails to tender an issue, or B. otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (Sec. 1, Rule 34)

Republic v. Cojuangco (Sandiganbayan decision)

Regalado Notes: A judgment on the pleadings presupposes that there is NO controverted issue whatsoever between the parties, hence the plaintiff is also assumed to have admitted all the relevant allegations of fact of the defendant in his answer. The judgment is based exclusively upon the allegations appearing in the pleadings of the parties and the annexes thereto, if any without consideration of any evidence aliunde. The plaintiff, by moving for judgment on the pleadings is not deemed to have admitted irrelevant allegations in the defendant’s answer, neither is the defendant deemed to have admitted allegations of damages in the complaint. Compare Judgment on the Pleadings under Rule 34 and Summary Judgment under Rule 35. Judgment on the Summary Pleadings Judgment When proper. When it appears Proper even if that there is NO there is an issue GENUIN ISSUE as to damages between the recoverable. parties. Introduction Based exclusively Based not only of Evidence. upon the on the pleadings pleadings but also the WITHOUT affidavits, introduction of depositions and evidence admissions of the parties showing that, except as to amount of damages, there is no genuine issue. In what kinds Available in ANY Proper only in of actions ACTION, except actions to available for annulment of recover a debt, marriage or legal or for a separation. liquidated sum of money or for declaratory relief.

Rules on Motion Applicable.

Subject only to the 3-day notice rule and where all the material averments of the complaint are admitted, such motion may be made ex parte.

Requires the 10day notice.

Compare Judgment on the Pleadings and Summary Judgment with Judgment by Default. In judgment by default, 1. Genuine issues of fact and/or law are normally involved. 2. Evidence must be introduced on the material allegations, albeit ex parte, except in cases covered by the rule on summary procedure 3. All cases may be subject to judgments by default, except those for annulment or declaration of nullity of marriage or legal separation. 4. Motions for default judgments may be filed ex parte, except under the rule on summary procedure wherein upon failure of defendant to answer, the court, motu propio or on plaintiff’s motion, shall render the corresponding judgment. Bautista Notes: What is the reason for the rule allowing judgment on the pleadings? To expedite litigation. Where on the pleadings there is nothing presented but an issue of law, no evidentiary hearing is required and judgment may thence be simply be rendered on the pleadings. This may well happen where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleadings. When is judgment on the pleadings allowed? Judgment on the pleadings is allowed when there is NO ISSUE OF FACT. If there is only an issue of law, judgment on the pleadings is proper because you do not try issues of law and you do not receive evidence on issues of law. At most you argue your positions on issues of law. What are the grounds for judgment on pleadings? 1. When an answer fails to tender an issue 2. When an answer admits material allegations

the

Who may ask for a judgment on the pleadings? The plaintiff. Can the defendant ask for judgment on the pleadings? Yes, under Rule 18, during pre-trial it is allowed.

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At what stage of the proceeding can a motion for judgment on the pleadings be invoked? After filing of the answer and before the trial.

A motion for judgment on the pleadings can be filed with any pleading with a claim EXCEPT with a compulsory counterclaim in which no answer is needed.

Is partial judgment allowed on the motion for judgment on the pleadings allowed? Yes, under Rule 36 Sections 4 and 5. A court may render judgment on the pleadings on some of the defendant or based on some of the causes of action and allow that trial be shall proceed with the other defendant or other causes of action. Avena Notes (20 Jan 05) What are the two grounds for a motion for a judgment on the pleadings? Are they the same? The grounds for the motion for judgment on the pleadings are: 1. the answer fails to tender an issue. 2. the answer admits the material allegations of the pleading. According to ma’am, they are the same because the first ground purports to make a show of controverting the complaint but actually does not. In the second ground, there is an admission by the party and no controversy as to the allegations in the complaint. A motion on judgment on the pleadings asks the court to render a judgment on what pleadings? The complaint and the answer. Differentiate a motion for judgment on the pleadings the same as a default judgment. Motion for Default Judgment Judgment on the Pleadings Ground Premised on an Defendant does answer filed by not file any the defendant but ANSWER at all. fails to make an issue as to the allegations of the complaint or admits the allegations Evidence there is no after a default presentation of order, the court evidence and the can ask the court renders plaintiff to present judgment based evidence ex parte on the pleadings to his claim. presented before it Relief No limitation as to Relief shall not be relief prayed for. different in kind or amount as to what is prayed for in the complaint.

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XVII. Pre-Trial (Rule 18) 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. (Sec. 1, Rule 18)

Nature and purpose. (Sec. 2, Rule 18) 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.

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. (Sec. 3, Rule 18)

(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. (Sec. 6, Rule 18)

Record of pre-trial.

The proceedings in the pre-trial shall be recorded. (Sec. 7, Rule 18)

Pre-Trial Order.

Upon the termination thereof, the court shall issue an order which shall recite in detail 1. the matters taken up in the conference, 2. the action taken thereon, 3. the amendments allowed to the pleadings, and 4. the agreements or admissions made by the parties as to any of the matters considered. 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. (Sec. 7, Rule 18)

REPUBLIC ACT No. 876

Appearance of parties.

COMPROMISE.

It shall be the duty of the parties and their counsel to appear at the pre-trial. (Sec. 4, Rule 18)

Articles 2028 to 2041, Civil Code. Title XIV. - COMPROMISES AND ARBITRATIONS

Non-Appearance of Parties. The non-appearance of a party may be excused 1. only if a valid cause is shown therefor or 2. 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. (Sec. 4, Rule 18)

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. (Sec. 5, Rule 18)

Pre-trial brief.

The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;

CHAPTER 1 COMPROMISES Art. 2028. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. Art. 2029. The court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise. (n) 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. Art. 2031. The courts may mitigate the damages to be paid by the losing party who has shown a sincere desire for a compromise. (n)

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Art. 2032. The court's approval is necessary in compromises entered into by guardians, parents, absentee's representatives, and administrators or executors of decedent's estates. (1810a) Art. 2033. Juridical persons may compromise only in the form and with the requisites which may be necessary to alienate their property. (1812a) Art. 2034. There may be a compromise upon the civil liability arising from an offense; but such compromise shall not extinguish the public action for the imposition of the legal penalty. (1813)

Regalado Notes: What is the public policy basis for imposing on the plaintiff the duty to move for a pre-trial? The transfer of responsibility to the plaintiff himself is based on the policy that whosever is the proponent of the particular stage of the proceeding should himself initiate the corresponding steps to have judicial action taken thereon since he is presumed to be the one interested in the speedy disposition thereof. The pre-trial and the trial on the merits of the case must be held in separate dates.

Art. 2035. NO COMPROMISE upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime.

When can the plaintiff properly move for a pre-trial? A pre-trial cannot be validly held until the last pleading has been filed, which last pleading may be the plaintiff’s reply, EXCEPT where the period to file the last pleading has lapsed.

Art. 2036. A compromise comprises only those objects which are definitely stated therein, or which by necessary implication from its terms should be deemed to have been included in the same. A general renunciation of rights is understood to refer only to those that are connected with the dispute which was the subject of the compromise. (1815) Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise. (1816) Art. 2038. A compromise in which there is mistake, fraud, violence, intimidation, undue influence, or falsity of documents, is subject to the provisions of Article 1330 of this Code. However, one of parties cannot set up a mistake of fact as against the other if the latter, by virtue of the compromise, has withdrawn from a litigation already commenced. Art. 2039. When the parties compromise generally on all differences which they might have with each other, the discovery of documents referring to one or more but not to all of the questions settled shall not itself be a cause for annulment or rescission of the compromise, unless said documents have been concealed by one of the parties. But the compromise may be annulled or rescinded if it refers only to one thing to which one of the parties has no right, as shown by the newly-discovered documents. Art. 2040. If after a litigation has been decided by a final judgment, a compromise should be agreed upon, either or both parties being unaware of the existence of the final judgment, the compromise may be rescinded. Ignorance of a judgment which may be revoked or set aside is not a valid ground for attacking a compromise. Art. 2041. If one of the parties fails or refuses to abide by the compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original demand.

Defendant in a plunder case will not be able to attend the pre-trial because of knee surgery in Hong Kong. He wants to appoint you as his representative. What must be contained in the special power of attorney to be given to you, in order for the court to recognize you as the defendant’s proper representative? The special authority on the party’s representative must confer the following: a. power to enter into a compromise or amicable settlement. b. power to submit to alternative modes of dispute settlement c. power to enter into stipulations or admission of fact and documents. The mere presentation of such written authority is not sufficient, but must be complemented by a showing of VALID CAUSE for the non-appearance of the party himself. In the preceding example, the written special power of authority given to you by the defendant was rendered unintelligible because you spilled orange mocha frappucino on it while studying the case at Starbucks. The defendant is already undergoing surgery in Hong Kong and cannot fax a new SPA. Can you still appear in court without such written authority? Yes. It has been held that the authority need not be in writing and may be established by competent evidence or subsequently ratified by the party concerned. Where the defendant was present at the pre-trial, the court has no authority to thereafter call a second pre-trial and declare defendant in default for his absence therein. Where a pre-trial has already been held, the fact that an amended complaint was later filed, with leave of court, does not necessitate another pre-trial.

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Notice of pre-trial was served on the defendant, but not on his counsel. Defendant acknowledged receipt but failed to inform his counsel because he figured in a freak gas station accident and was immobilized for a week for burns all over his body. Counsel failed to attend the pre-trial. At pre-trial, trial court declared defendant in default and received evidence of the plaintiff ex parte. Was the trial court’s action valid? No. Where petitioner’s counsel was not served with a separate notice of pre-trial, although the client acknowledged receipt of a copy thereof in its behalf and of said counsel, said service is insufficient and the order of default and the ex parte proceedings before the commissioner are null and void.

Plaintiff can appeal from dismissal, as it is a final order.

the

order

of

Avena Notes (20 Jan 05) What is the nature and purpose of pre-trial? It is for the prompt disposition of case. Who has the duty to move for a pre-trial? When should he do so? It is the duty of the plaintiff to move for pretrial and should do so upon the filing of the last pleading allowed or upon the lapse of the period for filing of the last pleading allowed. Plaintiff as the party moving for the pre-trial also decides the date of pre-trial hearing. True or false. False. It is up to the court to decide the date of the pre-trial hearing.

Bautista Notes: What is pre-trial? What is its purpose? Pre-trial is a conference or hearing at which the court with the cooperation of the parties, seeks to determine definitively what precisely are the factual issues to be tried and how each party intends to establish his position on each disputed factual issue. Does the pre-trial cover only factual issues? No, the pre-trial covers both factual and legal issues. Pre-trial is not mandatory if the issue is purely legal. Pre-trials are conducted after the last pleading has been served and filed. May pre-trial be scheduled by the plaintiff, if he has not filed an answer to the defendant’s compulsory counterclaim? Yes. Pre-trial may be properly scheduled even if the plaintiff has not yet filed his answer to the defendant’s compulsory counterclaim, since no answer is required to be filed thereto. Where nobody appeared at the pre-trial except the counsel for the plaintiff but said counsel had no special authority to represent the plaintiff, the plaintiff may properly be declared non-suited. The plaintiff may be so declared non-suited and the case dismissed without motion by the defendant. Trial court has the discretion to declare a party nonsuited and, unless otherwise provided, such dismissal has the effect of an adjudication on the merits. What are the remedies for declaration on non-suited party? Defendant can file a motion for reconsideration (without need for affidavits of merit) on the grounds of FAME. If this is denied, he can file certiorari under Rule 65 as such order is interlocutory.

Whose appearance is required in a pre-trial? The general rule is that both the party and counsel should appear at the pre-trial. The rationale for the personal appearance of the party is for the possibility of amicable settlement, resort to alternative modes of dispute resolution and for stipulation of the facts. In the pre-trail hearing, Plaintiff A was able to attend, but his counsel, Atty. B did not. Should Plaintiff A be declared non-suited because his lawyer did not appear in trial? Ma’am is of the opinion that it can be argued either way. Under a strict interpretation of the Rules, the appearance of both the party AND his counsel is what is required; failure to appear of either of them, renders the party non-suited. But under an old ruling of the SC, the absence of the lawyer in a pre-trial is immaterial and should not prejudice the party, being represented by the absent lawyer, who appeared at the pre-trial. Jonathan Landoil v. Mangudadatu This involved the non-appearance of the Landoil and its two counsels in the pre-trial hearing. The two counsels were said to have withdrawn their services from Landoil. Trial court allowed the presentation of evidence ex parte, upon Landoil’s absence at pre-trial. Under Sec. 3, Rule 7, counsel remains to be counsel of record, until there is a formal withdrawal of counsel through the court. The remedy for non-appearance at the pretrial which resulted in opposing party’s presentation of evidence ex parte is a motion for reconsideration; which is unlike a default judgment which has different remedies.

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XVIII. Course of Trial

the parties to argue or to submit their respective memoranda or any further pleadings. (Sec. 5, Rule 30) If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. (Sec. 5, Rule 30)

1. Trial Proper (Rule 30) Notice of trial. Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before such date. (Sec. 1, Rule 30)

Adjournments and postponements. A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court. (Sec. 2, Rule 30)

Requisites of motion to postpone trial for absence of evidence.

A motion to postpone a trial on the ground of absence of evidence can be granted only upon a. affidavit showing the materiality or relevancy of such evidence, and b. that due diligence has been used to procure it. (Xception:) But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to their admissibility, the trial shall not be postponed. (Sec. 3, Rule 30)

Requisites of motion to postpone trial for illness of party or counsel.

A motion to postpone a trial on the ground of illness of a party or counsel may be granted a. if it appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is indispensable and b. that the character of his illness is such as to render his non-attendance excusable. (Sec. 4, Rule 30)

Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. (Sec. 6, Rule 30)

Statement of judge.

During the hearing or trial of a case any statement made by the judge with reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes. (Sec. 7, Rule 30)

Suspension of actions.

The suspension of actions shall be governed by the provisions of the Civil Code. (Sec. 8, Rule 30)

Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. (Sec. 9, Rule 30)

OCA Circular No. 39-98

Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: (a) The plaintiff shall adduce evidence in support of his complaint; (b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint; (c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint; (d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; (e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and (g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs

Regalado: Does a motion to postpone a trial due to illness require a medical certificate? A mere medical certificate is generally insufficient. It must be under oath, or in the form of an affidavit. When can a civil action or proceeding be suspended? Under Article 2030 of the Civil Code, every civil action or proceeding shall be suspended: 1. if willingness to discuss a possible compromise is expressed by one or both parties. 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 suspension of the civil action or proceeding and similar matters shall be

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governed by such provisions of the ROC as the SC shall promulgate. Said ROC shall likewise provide for the appointment and duties of amicable compounders. What are the requisites for delegation of reception of evidence to the clerk of court? 1. The delegation may be made only in default or ex parte hearings, or on agreement in writing by the parties. 2. The reception of evidence shall be made only by the clerk of court who is a member of the bar. 3. Said clerk shall have no power to rule on objections to any question or to the admission of evidence or exhibits 4. He shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court, within ten days from the termination of the hearing. Bautista Notes: What are the grounds for postponing a trial upon motion of the party? 1. absence of evidence 2. illness of the party or counsel Is impending death a ground for postponing trial? On a case to case basis. Can the court require the plaintiff to present witnesses first, on direct testimony, before anyone of them is cross-examined? Yes. Because it is still within the rule that the plaintiff presents his evidence first in the form of testimony. Can a judge in a civil case direct that a party present all the direct testimony of all his witnesses in the form of affidavits subject to cross examination? It depends on the character of the proceeding. In case of summary proceedings, testimony by affidavits and counter- affidavits are allowed. (Rule 9 of the Revised Rules of Summary Procedure) But in non-summary proceedings, it is not allowed.

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2. Kinds of Trial

3. by hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case. (Salazar v. CFI – Laguna, 64 Phil. 785)

a. Consolidated and Separate (Rule 31) CONSOLIDATION OR SEVERANCE Consolidation. When actions involving a common question of law or fact are pending before the court, a. it may order a joint hearing or trial of any or all the matters in issue in the actions; b. it may order all the actions consolidated; and c. it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Sec. 1, Rule 31)

Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party complaints or issues. (Sec. 2, Rule 31)

Regalado Notes: What is the rationale for consolidation or joint hearing? 1. to avoid multiplicity of suits 2. to guard against oppression or abuse 3. to prevent delay 4. to clear congested dockets 5. to simplify the work of the trial court 6. to save unnecessary costs and expenses In short, consolidation seeks to attain justice with the least expense and vexation to the litigants. (Palanca v. Querubin, 29 Nov. 1969) Is consolidation limited to cases pending before the same court? Generally, the rule on consolidation of cases applies only to cases pending before the same judge, not to cases pending in different branches of the same court or in different courts. (PAL v. Teodora, 97 Phil. 461) But Regalado is of the opinion that, whenever appropriate, and in the interest of justice, consolidation of cases in different branches of the same court or in different courts can be affected. Consolidation of cases on appeal and assigned to different divisions of the SC or CA is also authorized, and generally the case which was appealed and bearing the higher docket number is consolidated with the case having the lower docket number. (But Regalado gives no legal basis for this.) What are the ways of consolidating a case? 1. by recasting the cases already instituted, conducting only one hearing and rendering only one decision. 2. by consolidating the existing cases and holding only one hearing and rendering only one decision.

Can the SC order the consolidation of cases involving the same parties and same issues where one was filed in RTC-QC and RTC-Cavite? Yes. On considerations of judicial economy and for the convenience of parties, the SC can also order the consolidation of cases involving substantially the same parties and issues but which have been filed in different courts of equal jurisdiction. (Superlines Transco., v. Victor, 30 Sept. 1983) Can the RTC – QC order separation of trial of claims, where one of the claims involves property in Hong Kong? Yes. The provision permitting separate trials presupposes that the claims involved are within the jurisdiction of the court. When one of the claims is not within its jurisdiction, the same should be dismissed, so that it may be filed in the proper court. b. Trial by Commissioners. (Rule 32) TRIAL BY COMMISSIONER Reference by consent.

By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an examiner. (Sec. 1, Rule 32)

Reference ordered on motion. When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein; (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. (Sec. 2, Rule 32)

Order of reference; powers of the commissioner.

When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order of reference may a. specify or limit the powers of the commissioner, and direct him to report only upon particular issues, or b. direct him to do or perform particular acts, c. direct him or to receive and report evidence only, and

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d. fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held before the court. (Sec. 3, Rule 32)

Oath of commissioner.

Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof. (Sec. 4, Rule 32)

days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. (Sec. 10, Rule 32)

Hearing upon report. Upon the expiration of the period of ten (l0) days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order: a. adopting b. modifying, or c. rejecting the report in whole or in part, or d. recommitting it with instructions, or e. requiring the parties to present further evidence before the commissioner or the court. (Sec. 11, Rule 32)

Stipulations as to findings.

Proceedings before commissioner. Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (l0) days after the date of the order of reference and shall notify the parties or their counsel. (Sec. 5, Rule 32)

Failure of parties to appear before commissioner. If a party fails to appear at the time and place appointed, a. the commissioner may proceed ex parte or, b. in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment. (Sec. 6, Rule 32)

When the parties stipulate that a commissioner's findings of fact shall be final, only questions of law shall thereafter be considered. (Sec. 12, Rule 32)

Compensation of commissioner. The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. (Sec. 13, Rule 32)

Order of expropriation.

It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his report. (Sec. 8, Rule 32)

If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. (Sec. 5, Rule 67)

Report of commissioner.

Regalado Notes

Refusal of witness. The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a contempt of the court which appointed the commissioner. (Sec. 7, Rule 32)

Commissioner shall avoid delays.

Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. (Sec. 9, Rule 32)

Notice to parties of the filing of report.

Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (l0)

Can the commissioner rule on the admissibility of evidence? Yes. In the proceedings under this section, the commissioner may rule upon the admissibility of evidence, UNLESS otherwise provided in the order of reference. Note that the clerk of court under Sec. 9, Rule 30 does NOT have the same power and the clerk of court shall just receive the evidence subject to the objections interposed thereto and such questions or objections shall be resolved by the court after the clerk has submitted his report in it.

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Are the commissioners allowed to do whatever acts in proceeding with the trial, despite the limited scope of their proceedings? Yes. What Section 3, authorizes to be limited is the scope of the proceedings before the commissioner, not the MODALITY thereof. The order of reference may direct the commissioner to perform different acts in and for purposes of the proceedings. (Aljem’s Corp. v. CA, 28 Mar. 2001)

TC is not bound by the findings of the commissioners or precluded from disregarding the same and it may adopt, modify or reject the report. TC did not adopt the survey made by commissioners because the survey of the land was done individually.

Considering that the commissioners are allowed to proceed in whatever mode they deem fit and necessary, are they allowed to dispense with hearing? No. When the commissioner did not hold a hearing in violation of Section 3 of Rule 30, it is error for the trial court to issue an order approving said commissioner’s report over the objection of the aggrieved party. (Jaca v. Davao Lumber, 29 Mar. 1982) Whatever may be the case, the requirement for the commissioners to hold a hearing cannot be dispensed with as this is the essence of due process. (Jaca v. Davao Lumber, 29 Mar. 1982) Bautista Notes If the right to trial with the assistance of assessors is demanded, is it a matter of right? Yes. Under Sec.1, Rule 32, the judge SHALL... meaning the judge has NO discretion. NOTE: Bautista: This is practically a dead provision but it is the kind of provisions which they resurrect in the bar. But as per wording in the 1997 ROC, it is now MAY and not SHALL, so it is now discretionary. Can the commissioners write opinions to cases? Yes, but it is the judge who finally determines the ruling. The value of the commissioner’s opinion is merely to advise the judge on questions of facts. When are commissioners appointed by the trial court? By written consent of both parties, or if they disagree upon motion of any of the parties or by the court motu propio.

Angara v. Fedman Development Corp. Fedman filed a complaint against Angara for refusing to vacate a parcel of land which supposedly belonged to Fedman. TC ordered the constitution of a committee of 3 surveyors. After the survey, Angara filed a motion to render judgment based on the commissioners’ report. TC denied Angara’s motion saying that commissioners did not conduct a joint survey of the land.

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3. Incidents or Processes

A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Sec. 2, Rule 19)

a. Calendar of Cases (Rule 20)

Pleadings-in-intervention.

Calendar of cases. The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases 1. for pre-trial, 2. for trial, 3. for those whose trials were adjourned or postponed, and 4. for those with motions to set for hearing. Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. (Sec. 1, Rule 20)

The intervenor shall file a complaint-inintervention 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. (Sec. 3, Rule 19)

Answer to complaint-in-intervention. The answer to the complaint-in -intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (Sec. 4, Rule 19)

Assignment of cases.

The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. (Sec. 2, Rule 20)

Avena Notes (22 Jan 05) What kinds of proceedings must be calendared? 1. trial 2. pre-trial 3. adjournment and postponement 4. motions with preference to habeas corpus cases, election cases, special civil actions. What are the two conditions for a proper raffling of cases? 1. Raffling should be done in open session. 2. Raffling is done with adequate notice. Why should the raffling of cases be in open session? Raffling is done in open session, in order to prevent collusion. Any person can be at the raffling to avoid any cheating. b. Intervention (Rule 19) Who may intervene. a. 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 b. A person 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. (Sec. 1, Rule 19)

Time to intervene.

Regalado Notes. Is there an absolute right to intervene? No. The right to intervene is not an absolute right. The procedure to secure the right to intervene is fixed by the statute or rule and intervention can be secured only in accordance with the terms of the applicable provisions. The allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court. (Big Country Ranch Corp. v. CA, 12 Oct. 1992) Does intervention change the nature of the action? No. Intervention is not intended to change the nature and character of the action itself. (Garcia v. David, 67 Phil. 279) In general, an independent controversy cannot be injected into a suit by intervention, hence such intervention will not be allowed where it would enlarge the issues in the action and expand the scope of the remedies. (Big Country Ranch Corp. v. CA, 12 Oct. 1992) Distinguish Intervention (Rule 19) and Interpleader (Rule 62) Intervention Interpleader Kind of Ancilliary action Original Action Action When In any of the four Presupposes that proper situations the plaintiff has mention in Rule no interest in the 19 subject matter of the action or has an interest therein which in whole or in part, is not disputed by the other parties to the action. Parties to Defendants are Defendants are the suit already original being sued parties to the precisely to pending suit implead them

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What is the effect of dismissal of the principal action to the complaint in intervention? A. Intervention is dismissed. (Brgy. Matictic v. Elbinias, 27 Feb 1987) Since said order had achieved finality, the dismissal of the motion for intervention is unavoidable as the main action having ceased to exist, there was no pending proceeding wherein the intervention may be based. Besides, its interests may be protected in a separate case which it may prevail upon the municipality to re-file or if the intervenor has the requisite authority, it can file the action for expropriation itself. B. Intervention continues despite dismissal of the principal action. (Metropolitan Bank v. Presiding Judge, 21 Sept. 1990) If the complaint-in-intervention was filed BEFORE the plaintiff’s action had been expressly dismissed, the intervenor’s complaint was not subject to dismissal on the ground that no action was pending, because dismissal of plaintiff’s action did not affect the rights of the intervenor or effect the dismissal of the intervenor's complaint. Moreover, to require private respondent to refile another case will result in unnecessary delay and expenses and entail multiplicity of suits and, therefore, defeat the very purpose of intervention which is to determine all conflicting claims on the matter in litigation and settle in one action and by a single judgment the whole controversy among the persons involved. Is intervention optional? Yes. While, as a rule, intervention is optional and whether the failure to intervene may be deemed as waiver or estoppel depends on each case. What are the twin requirements for filing a complaint in intervention? 1. that the movant has direct legal interest in the matter in litigation. 2. consideration must be given as to whether or not the adjudication of the rights of the original parties may be delayed or prejudiced, while those of the intervenor may be protected in a separate proceeding. Avena Notes (22 Jan 05) What is the purpose of intervention? Intervention is for the benefit of non-parties, who must have an interest or is situated to be adversely affected. A complaint in intervention is directed against the defendant and an answer in interventions is directed against the plaintiff. What are the four grounds for intervening in an action?

1. Person has a legal interest in the matter in litigation. 2. Person has a legal interest in the success of either party 3. Person has an interest against both 4. Person 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. Republic v. Cojuangco SMC filed an intervention in the sequestration of SMC shares purchased supposedly by coco levy funds. SMC is not party to the Sandiganbayan case against Cojuangco; it was merely a transferee of the rights. As a transferee pendente lite, SMC is bound by the rulings of the court on its transferor, which was the CIIF companies of Cojuangco. SMC need not be a party to the suit because his interest is ably represented by his transferor, who is the original party in the complaint. Holiday Inn v. Sandiganbayan This was the management contract of Holiday Inn with NRHDC, which was rescinded without honouring Holiday Inn’s right of first refusal to purchase the hotel. NRHDC was subjected to sequestration proceedings by the PCGG as part of the ill-gotten wealth of Benedicto. The cause of action in the Sandiganbayan case referred to the issue of whether or not the hotel of NRHDC was part of the ill-gotten wealth. But Holiday Inn’s cause of action was dissimilar and not contingent upon the case in the Sandiganbayan, because it was for the interpretation of the management contract which gave it a right of first refusal. This was a civil action which could be tried separately. Ordonez v. Gustilo This was the case of the reclamation contract approved by the mayor, in which baranggay captains tried to intervene saying that the reclamation contract was void and not actual reclamation took place. Since the main case involving the mayor and the assignor of the reclamation company was resolved through an amicable settlement, the complaint in intervention should likewise be dismissed because it is a ancillary action which had no leg to stand on upon the approval of the compromise agreement. c. Subpoena. (Rule 21) 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

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which case it is called a subpoena duces tecum. (Sec. 1, Rule 21)

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. (Sec. 2, Rule 21) 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. (Sec. 2, Rule 21)

Form and contents.

A subpoena shall 1. state the name of the court and the title of the action or investigation, 2. be directed to the person whose attendance is required, and 3. 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. (Sec. 3, Rule 21)

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 a. if it is unreasonable and oppressive, or b. the relevancy of the books, documents or things does not appear, or c. 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. (Sec. 4, Rule 21)

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. (Sec. 5, Rule 21)

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. (Sec. 6, Rule 21)

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. (Sec. 7, Rule 21)

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. (Sec. 8, Rule 21)

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. (Sec. 9, Rule 21)

Exceptions. The provisions of sections 8 and 9 of this Rule shall not apply 1. 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 2. to a detention prisoner if no permission of the court in which his case is pending was obtained. (Sec. 10, Rule 21)

Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: (f) Failure to obey a subpoena duly served; But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings. (Sec. 3 (f), Rule 71)

Regalado Notes. What is the viatory right of witnesses? It is the right of witnesses NOT to be compelled to attend upon a subpoena by reason of the distance from the residence of the witness to the place where he is to testify.

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There is no distinction under the present rules as to whether or not the witness resides in the same province as the place where he is required to go and testify or produce documents. What is now determinative is that the distance between both places does not exceed 100 kilometers by the ordinary course of travel, generally by overland transportation. Is the viatory right of witness available in all actions? No, the right is available only in civil cases and not in criminal cases. (People v. Montejo, 31 Oct. 1967) Bautista Notes. Distinguish a subpoena duces tecum (Rule 21) and motion for production and inspection of documents or things (Rule 27). Subpoena Duces Tecum

Cause Grounds quashing

for

To whom directed Sanctions for failure to obey

No showing of good cause necessary There are listed grounds for quashing a subpoena duces tecum May be directed to a non-party to the litigation If without adequate cause, may constitute contempt of court

Motion for production and inspection of Document or things Good cause must be shown Grounds quashing different subpoena.

for are with

Can only be directed against a party. Other sanctions may be imposed other than contempt.

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d. Modes of Discovery Administrative Matter No. 03-1-09 SC (July 13, 2004) Preliminary Matters. Regalado Notes: What are the principal benefits desirable from the availability and operation of a liberal discovery procedure? 1. it is of great assistance in ascertaining the truth and preventing perjury because the witness is examined while his memory is still fresh, he is generally not coached, he cannot at a later date contradict his deposition, and his deposition is preserved in case he becomes unavailable. 2. it is an effective means of detecting and exposing fake, fraudulent and sham claims and defenses. 3. it makes available in a simple convenient and often inexpensive way facts which otherwise could not have been proved later. 4. it educates the parties in advance of trial on the real values of their claims and defenses, thereby encouraging settlements out of court. 5. it expedites the disposal of litigations, saves the time of the court and helps clear the dockets. 6. it safeguards against surprise at the trial, prevents delays, simplifies the issues, and thereby expedites the trial 7. it facilitates both the preparation and trial of cases. (Fortune Corporation v. CA, 19 January 1994) Bautista Notes. What is the purpose of discovery? The purpose of discovery is to obtain the fullest knowledge of the issues and fact. Originally, discovery was intended as a device for expediting the case. By being able to obtain more knowledge as to the issues and facts, this would ideally save on time. As recently as November 1991, the Phil. SC observed what it termed the “unreasoned and unreasonable disinclination” to resort to discovery “which could, as the experience of other jurisdictions convincingly demonstrates effectively shorten the period of litigation and speed up adjudication.” (Republic v. Sandiganbayan, 204 SCRA 212) However, according to Prof. Bautista, discovery does not always make the case shorter; contrary to expectations that it will expedite the litigation, it has protracted it because this is an additional battleground/ source of skirmish. What are the goals of discovery? 1. to find out how strong the case is.

2. to anticipate the opponent’s actions and eliminate the suspense. 3. to get evidence to support one’s case. What matters are not subject to discovery? 1. privileged matters like the work-product rule, those subject to right to privacy, and trade secrets. 2. impeaching evidence (This is a gray area as commentators are not in agreement. The argument is that if the intention is shown in advance – to discover impeaching evidence – then it is useless) What is the work-product rule? The work-product rule was enunciated in the case of Hickman v. Taylor. In that case, there was a barge that sank and several crewmembers perished. The owner of the barge hired a lawyer, Fortenbough. Fortenbough interviewed the surviving crew members. When the heirs of the crewmembers filed an action against the barge owners, their lawyers asked Fortenbough to produce all his NOTES AND INTERVIEWS. Fortenbough naturally refused. The US SC said that the notes, memoranda, impressions of the lawyers, etc., in preparing the case are NOT DISCOVERABLE. Such are not discoverable not because of the attorney-client privilege but because the so called word product rule. If such are discoverable, then the legal profession would collapse. Lawyers would not be diligent since their very own efforts could be used against them. Deposition Pending Action (Rule 23) Depositions pending action, when may be taken. By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon 1. oral examination or 2. written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (Sec. 1, Rule 23)

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. (Sec. 2, Rule 23)

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Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. (Sec. 3, Rule 23)

Use of depositions.

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it, which is relevant to the part introduced, and any party may introduce any other parts. (Sec. 4, Rule 23)

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. (Sec. 5, Rule 23)

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. (Sec. 6, Rule 23)

Effect of taking depositions.

A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (Sec. 7, Rule 23)

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. (Sec. 8, Rule 23)

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. (Sec. 9, Rule 23)

Persons before whom depositions may be taken within the Philippines. Within the Philippines, depositions may be taken before any 1. judge, 2. notary public, or 3. the person referred to in section 14 hereof. (Sec. 10, Rule 23)

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. (Sec. 11, Rule 23)

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. (Sec. 12, Rule 23)

Disqualification by interest. No deposition shall be taken before a. a person who is a relative within the sixth degree of consanguinity or affinity, or b. employee or counsel of any of the parties; or c. a person who is a relative within the same degree, or employee of such counsel; or d. a person who is financially interested in the action. (Sec. 13, Rule 23)

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. (Sec. 14, Rule 23)

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

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the time and place for taking the deposition and o the name and address of each person to be examined, if known, o and if the name is not known, o a general description sufficient to identify him or o 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. (Sec. 15, Rule 23) o

Orders for deponents.

the

protection

of

parties

and

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 a) that the deposition shall not be taken, or b) that it may be taken only at some designated place other than that stated in the notice, or c) that it may be taken only on written interrogatories, or d) that certain matters shall not be inquired into, or e) 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 f) that after being sealed the deposition shall be opened only by order of the court, or g) that secret processes, developments, or research need not be disclosed, or h) that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; i) or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (Sec. 16, Rule 23)

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. (Sec. 17, Rule 23)

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 a. the examination is being conducted in bad faith or b. 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. (Sec. 18, Rule 23)

Submission to witness; changes; signing.

When the testimony is fully transcribed, the deposition 1. shall be submitted to the witness for examination and 2. 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. (Sec. 19, Rule 23)

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. (Sec. 20, Rule 23)

Notice of filing.

The officer taking the deposition shall give prompt notice of its filing to all the parties. (Sec. 21, Rule 23)

Furnishing copies.

Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (Sec. 22, Rule 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

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pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney's fees. (Sec. 23, Rule 23)

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.

Failure of subpoena.

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.

party

giving

notice

to

serve

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. (Sec. 24, Rule 23)

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 redirect interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition. (Sec. 25, Rule 23)

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, a. to take the testimony of the witness in response to the interrogatories and b. to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. (Sec. 26, Rule 23)

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. (Sec. 27, Rule 23)

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. (Sec. 28, Rule 23)

Effects of errors and irregularities in depositions. (a) As to notice.

(b) As to disqualification of officer.

(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.

Regalado Notes: What are the kinds of depositions? As to the form of deposition, there is 1. depositions on oral examination and 2. depositions upon written interrogatories. As to the purpose of the deposition, there is 1. deposition de bene esse - those taken for purposes of a pending action) and 2. depositions in perpetuam rei memoriam - those taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case on appeal) Is leave of court necessary to take a deposition? It depends. Section 1, Rule 23 provides that a deposition may be resorted to after jurisdiction has been obtained over ANY defendant, NOT ALL defendants. Leave of court is NOT necessary to take a deposition after an answer to the complaint has been filed. But such leave is required where NO answer has yet been filed (even if jurisdiction has been

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obtained over any defendant), since before the filing of the answer, the disputed facts are not clear. Before service of such answer, leave of court may be granted but only in exception or unusual situations. (Republic v. Sandiganbayan, 30 May 2001) Are depositions substitutes for testimony in open court? Generally, depositions are not meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must, as a rule be presented for oral examination in open court at the trial. Any deposition offered to prove the facts therein at the trial of the case, in lieu of actual testimony of the deponent in court, may be opposed and excluded for being HEARSAY, except in those specific instances authorized by the Rile under particular conditions and for certain limited purposes. (Dasmarinas Garments, Inc., v. Reyes, 24 August 1993) Does the introduction of the deposition bind the party who introduces it? As a general rule, yes, the introduction of the deposition binds the part who introduces it, since he thereby makes the deponent his witness. EXCEPT, a. if it is introduced to impeach or contradict the witness. b. if it is the deposition of the opposing party. Differentiate a commission and letters rogatory. Commission Letters Rogatory. Addressed Any authority in a A judicial to who? foreign country authority in the authorized foreign country. therein to take down depositions. Rules that Subject to the Subject to the govern? rules laid down rules laid down by the COURT by such FOREIGN ISSUING THE JUDICIAL COMMISSION AUTHORITY When are letters rogatory resorted to? Letters rogatory are resorted to when there is a difficulty or impossibility of obtaining the deposition by commission. Letters rogatory may be applied for and issued only AFTER a commission has been returned unexecuted. (Dasmarinas Garments, Inc. v. Reyes) Bautista Notes: What are depositions and what is their importance? The deposition is perhaps the most thorough and comprehensive mode of discovery. Depositiontaking is a trial like examination of a witness, called the deponent, before a deposition officer who

presides over the proceeding but with limited authority to rule on the admissibility of evidence. The deposition may or may not be introduced in court as evidence since it may have been resorted to for purely discovery purposes. The deposition may be taken pending action or even before any action is filed in court or pending appeal. Why are depositions taken? Deposition are taken to preserve testimony – to avoid flip-flopping. Counsel should try to take the deposition right away when the impressions are still fresh. What are the kinds of written interrogatories? 1. Direct 2. Cross. (10 days from notice of interrogatories) 3. Re-direct. (5 days from notice of cross) 4. Re-cross. (3 days from notice of re-direct) Parties may take the deposition of ANY PERSON. What is the difference if the deponent is a party to the action or a non-party? The difference lies in their use. If the deposition is that of a PARTY to the action, the deposition may be used for any purpose. Any purpose means to use as substantive evidence – to prove the truth. For example, the deposition of Atong Ang can show that his cook makes P2,000. If the deposition is that of a NON PARTY, the deposition may be used for impeachment purposes. For example, it may be used to prove a prior inconsistent statement. However, under Sec. 4(c), Rule 23, the deposition of a NON-PARTY may be used for both impeachment or evidentiary purposes if it falls under any of the 5 circumstances. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Do depositions fall under the hearsay rule? Depositions are exceptions to the hearsay rule. Depositions are really hearsay in the cases enumerated in Sec. 4(c), Rule 23. But this is balanced by oath taken and the cross examination. Can the deponent officer rule on the objections to the deposition? The person before whom the deposition is taken cannot rule on the objections. However, these objection must be made right away or else they are waived. A deponent refuses to answer a question propounded upon oral examination. What can the party proposing the question do? The proponent has two options: a. STOP the examination, or b. COMPLETE the examination on other matters.

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In either case, the proponent may then take the necessary steps to secure an order from the court compelling the deponent to answer.

What is the right to subpoena? It is the right to get evidence from the person, whether testimonial or documentary.

Suppose the deponent, in the abovementioned example, persists and still refuses to answer the question even after a court order, what can be done? The court may make such orders as are just, and among others, the following: 1. an order that matters regarding which the questions were asked shall be taken to be established. 2. an order refusing to allow the disobedient party to support/oppose designated claims/defenses. 3. an order striking out pleadings/parts thereof, or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. 4. an order directing the arrest of the party.

In a case in QC RTC, A sues B. But B is in LA. A applies for a subpoena in LA. Is the subpoena valid? No. Subpoena should be issued by QC RTC. The LA court does not issue the subpoena.

Why is there a need to ask for leave of court to take depositions before an answer is filed? So that the court can give limiting orders to protect the deponent as in Sections 16 and 18 of Rule 23. When is the only instance where one always needs leave of court before taking depositions? Where the deponent is in jail. Can you take the deposition of a person who resides within 100 kilometers from the place of the trial? What is the 100 km limit for? Yes, you can take such deposition. The 100 km limit modifies the USE of the deposition but NOT the right to take a deposition. If the deponent resides beyond the 100 km limit, his deposition can be used as a substantive evidence in court as an exception to the hearsay rule. Do you make the deponent your witness by taking his deposition? Is determining whether the deponent is you witness or not actually important? No, the deponent does not automatically become your witness by merely taking his deposition. This is significant because when the deponent is not your witness, the four kinds of impeaching evidence (contradictory evidence, prior inconsistent statements, reputation evidence and prior conviction) can be used against him. If the deponent is you witness, reputation evidence is not allowed. Avena Notes ( 22 Jan 05) Can Philippine courts subpoena anybody outside the Philippines? Generally, they cannot, unless the subpoena is for deposition under Rule 23, Section 4.

Can the MTC issue a subpoena, even if it is a lower court? Yes. The subpoena issued by a court is applicable only within the jurisdiction of the issuing court. True or False. True. The power of Philippine process will not go beyond Philippine soil. Subpoena and other processes will not work outside of the Philippines. Who can take depositions in a foreign country? 1. ambassador, consul 2. commission or letters rogatory 3. person stipulated by writing, who is authorized to administer an oath What is the difference between a commission and letters rogatory? A commission is addressed to a person in the foreign country appointed by the court and the deposition is governed by Philippine Rules of Court. A letter rogatory is a request from the local courts addressed to another foreign court to take deposition of the person, in which case the rules of deposition taking of the foreign court shall govern. Who can issue subpoena for deposition taking? 1. Court where witness is required to attend. 2. Court where deposition is to be taken. 3. Officer or body authorized by law. 4. Any Justice of the SC or CA. X files an action against Y in QC RTC. One of the witnesses, Z, resides in Davao. Can the Davao court issue a subpoena? Yes. Upon motion of X to the QC RTC court for deposition, the QC RTC can ask the Davao court to take the deposition. The Davao court then issues a subpoena, to order deponent to appear before it for deposition taking. Depositions are hearsay evidence and thus, inadmissible. True or false. True. Depositions are only alternative modes. Unless the conditions under Rule 23, Section 4 are present, depositions are inadmissible evidence. What are the three functions of a subpoena? The purpose of the subpoena is limited only to the following instances. 1. to order person to testify

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2. to order the production of documents 3. to call person for deposition. The subpoena has no other purpose than that mentioned. What are the grounds for quashing a subpoena duces tecum? 1. Subpoena is unreasonable and oppressive 2. The books, documents or things are irrelevant to the subject matter of the suit. 3. There is a failure to advance reasonable costs. What are the grounds for quashing a subpoena ad testificandum? 1. Witness is not bound by the subpoena. 2. The witness fees and kilometrage was not paid. What are the six instances when depositions can be admitted as evidence in court, without presenting the deponent in court? 1. Deponent is dead. 2. Deponent resides more than 100 kilometers from the court. 3. Deponent is outside of the country. 4. Deponent cannot appear before the court due to age, sickness, infirmity or imprisonment. 5. The presence of the deponent has not been secured even by a subpoena issued by the court. 6. Other such exceptional circumstances. As regards the deponent, what is primary evidence required in court? The primary evidence admissible in court with regard a deponent is his actual presence and testimony in open court. If he is not able to appear in court because of the reasons enumerated under the Rules, the deponent’s deposition can be presented in court as evidence. Who chooses the mode of deposition whether through written interrogatories or oral examination? 1. the party who moves for the deposition. 2. by the court, when justice requires. Can you stipulate where deposition taking shall take place? Yes, unless it is clearly oppressive as adduced by the court. Who should be given notice of deposition? All parties should be given notice of the deposition taking. The deposition can be used against all parties who received notice of the deposition. What is the right of the parties given notice of the deposition taking? Parties have a right to attend and even send a representative to the deposition. They can ask questions or send written interrogatories.

What is the order of deposition? 1. Deponent swears under oath. 2. The flow of the presentation of witness under Rule 132, Sections 3-18 is, then, followed. (Direct, cross, re-direct and re-cross) 3. The record of the deposition shall then be written or transcribed. 4. The deponent will then examine the deposition and can ask or propose changes to his deposition. 5. After, the deponent must sign the deposition. If the deponent refuses to sign or cannot sign due to waiver, illness, or is subsequently absent, deposition officer should note down such circumstance. How is the deposition to be recoded? The proceedings of the deposition shall be recorded through a stenographer or by different mode ordered by the court. * Ma’am says the deposition officer is like a SPONGE -- he merely absorbs everything. What is the more expensive mode of deposition taking? Ma’am says deposition taking through written interrogatories is a more expensive mode of discovery because of the amount of copies you have to produce for all parties. What is the subject matter of deposition? 1. matter related to the claim or action 2. only relevant matters 3. matters that are not privileged. Avena Notes (27 Jan 05) Moving for the deposition of a person, makes the deponent the moving party’s witness. True or False. False. Merely taking depositions does not mean that the deponent is a witness of the person who moved for the deposition. The deponent does not necessarily even become a witness in the case. As a follow-up, using the deposition of the person in court makes the deponent your witness. True or False. True. The person who uses or submits the deposition as evidence in open court makes the deponent his witness, EXCEPT when the deposition is used to contradict the deponent-witness or when it is deposition of the party himself being used by the adverse party. How can the deposition be used to impeach the deponent witness? The deposition can be used as impeaching evidence under Rule 132, Section 11 in the following manner: a. as contradictory evidence b. as evidence that the deponent’s reputation for truth, honesty and integrity is bad.

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c. as evidence of prior inconsistent statements (laying the predicate) What are the grounds for questioning the deposition and when is the proper time for raising such questions? BEFORE deposition - lack of notice to parties deponent officer is disqualified lack of relevance, materiality and competence of the deposition to the action

DURING deposition deponent officer is disqualified - error in the manner of taking the deposition - error in the form of the deposition

AFTER deposition - manner of preparing the deposition

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Depositions Before Action and Pending Appeal (Rule 24) 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. (Sec. 1, Rule 24)

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. (Sec. 2, Rule 24)

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. (Sec. 3, Rule 24)

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. (Sec. 4, Rule 24)

Depositions pending appeal.

(a) If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or (b) 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. (Sec. 7, Rule 24)

Regalado Notes: What is the purpose of taking depositions before an action or pending appeal? The purpose is to perpetuate the testimony of witnesses for probable use in a future case or in the event of further proceedings in the same case. (Deposition in perpetuam rei memoriam) Bautista Notes: Why do you want to take a deposition before an action or pending appeal? To perpetuate his testimony in case he might die or to pin him down and impeach him with prior inconsistent statements. As substantive evidence, to prove the truth like reported testimony which is an exception to the hearsay rule.

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. (Sec. 5, Rule 24)

Use of deposition.

If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (Sec. 6, Rule 24)

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Interrogatories to Parties (Rule 25) Interrogatories to parties; service thereof.

Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. (Sec. 1, Rule 25)

Answer to interrogatories. The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. (Sec. 2, Rule 25)

Objections to interrogatories.

Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. (Sec. 3, Rule 25)

Number of interrogatories.

No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. (Sec. 4, Rule 25)

Scope and use of interrogatories. Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule. (Sec. 5, Rule 25)

Effect of failure to serve written interrogatories. Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (Sec. 6, Rule 25)

Regalado Notes: Is leave of court necessary in serving written interrogatories? Just like depositions, a party may serve written interrogatories to the other party, without leave of court only after an answer has been served. Before that, leave of court must be obtained. Can a party who previously availed of written interrogatories, now, resort to a deposition on oral examination? Yes, the fact that a party had previously availed of a mode of discovery, which is by written interrogatories, cannot be considered as good cause to prevent his resort to a deposition on oral examination because the fact that information on

oral examination similar to that sought had been obtained by answers to interrogatories does not ban an examination before trial, and is not a valid objection to the taking of a deposition in good faith and there being no duplication and knowledge by the petitioner of the facts concerning which the proposed deponent is to be examined does not justify refusal of such examination. The various modes of discovery under the Rules are clearly intended to be cumulative and not alternative or mutually exclusive. (Fortune Corp, v. CA, 19 January 1994) What is the justification for not compelling testimony or deposition pending appeal of a party who unjustifiably refuses to elicit facts material and relevant to his case by addressing written interrogatories to the adverse party. The justification for Section 6, Rule 25 is that the party in need of said facts have foregone the opportunity to inquire into the same from the other party through means available to him, he should not thereafter be permitted to unduly burden the adverse party with courtroom appearances or other cumbersome processes. The sanction adopted by the Rules is not one of compulsion in the sense that the party is being directly compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him. What is the difference between the sanctions in Section 6, Rule 25 and those in Rule 29? The sanction under Section 6, Rule 25 is directed at a party who fails or refuses to RESORT to discovery procedures therein. The sanction under Rule 29 is directed upon a party who refuses or fails to COMPLY WITH discovery procedures, duly availed of by his opponent. Bautista Notes: What are the limitations of discovery by written interrogatories to parties? This mode of discovery has necessarily inherent limitations as a device for developing facts prior to trial. Extensive examination of the adverse party by interrogatories may be cumbersome and likely to prove inefficient as compared with deposition-taking. (Coca-cola v. Dixi-Cola Lab, 30 F. Supp. 275, 1939) Differentiate depositions (Rule 23) and written interrogatories (Rule 25)

As to whom addressed?

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Depositions May be addressed to a party or nonparty

Interrogatories Addressed only to the adverse party.

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Procedure.

Need for crossinterrogatories Sanctions for refusal to answer.

May be oral or written and sent to a deposition officer. Served within 10 days from receipt of notice of written interrogatories. Pay expenses of other party. Contempt, after there has been a refusal of the order to answer. * There are sanctions common to both devices. (Sec. 3, Rule 29)

On whom answers are binding.

Time to Answer.

Any party who was present or represented at the taking of the deposition or who had due notice thereof or who had the opportunity to serve crossinterrogatories No fixed time.

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Served to the adverse party himself No crossinterrogatories

Judgment by default or dismissal of the action or proceeding or part thereof or strike out all or any part of the pleading. Payment of expenses to the other party or contempt. Only on the party served.

PBP v. CA State Investment House Inc. (SIHI) filed a complaint for a sum of money against Producer’s Bank of the Philippines (PBC) for the principal and unpaid of the time deposits. PBP claims that it had paid the interests and that the time deposits was issued to Johnny Lu and payments were already made to Lu. SIHI served written interrogatories to PBP after SIHI’s presentation of rebuttal witness. ISSUE: WON court was correct in allowing the admission of written interrogatories filed by SIHI even if the trial was about to be terminated. HELD: Yes. Rule 23 does not provide any deadline within which modes of discovery should be resorted to because the purpose of discovery is to discover every bit of information that may be useful in the preparation for trial. The interrogatories were related to the existence of the liability of PBP as PBP alleges payment to Lu of the obligation and is connected to the factual and principal issues in dispute.

Within 15 days after service of interrogatories, unless extended or reduced by the court.

What is the effect of failure to serve written interrogatories? The party not served may not be compelled by the adverse party to give testimony in open court or to give a deposition pending appeal. (Sec. 6, Rule 25) Suppose a party to who Rule 25 interrogatories are served, refuses to answer the set of interrogatories, what are the consequences? The consequences of refusal are: 1. order to answer 2. contempt 3. subject of discovery is deemed admitted or established. 4. party prohibited from introducing contradictory evidence 5. suspension of proceeding 6. declared non-suited or in default 7. striking of pleading 8. arrest 9. cost 110 of 229

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Admission by Adverse Party (Rule 26) 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. (Sec. 1, Rule 26)

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. (Sec. 2, Rule 26)

Effect of admission. Any admission made by a party pursuant to such request is a. for the purpose of the pending action only and b. shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. (Sec. 3, Rule 26)

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. (Sec. 4, Rule 26)

Effect of failure to file and serve request admission.

for

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. (Sec. 5, Rule 26)

Regalado Notes: What does admission by adverse party contemplate? Admission by adverse party, as a mode of discovery, contemplates interrogatories seeking clarification in order to determine the truth of the allegations in a pleading. A request for admission should not 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 exhibite with the request, for the purpose of establishing the party’s cause of action or defense. (Po v. CA, 22 August 1988) When is an admission by an adverse party, as a mode of discovery not proper? An adverse party should not be compelled to admit: a. admit matters of fact already admitted, in his pleading and concerning which there is no issue, nor b. should he be required to make a second denial of those matters already denied in his answer to the complaint. (Po v. CA, 22 August 1988) What is the legal remedy of a plaintiff who failed to file an answer to the request for admission under Rule 26? Where the plaintiff failed to answer a request for admission filed under Rule 26, based on its allegations in its original complaint, the legal effects of its implied admission of the facts stated in the request cannot be set aside by its subsequent filing of an amended complaint. It should have filed a motion to be relieved of the consequences of said implied admission. (Bay View Hotel, Inc. v. Ker & Co., 31 August 1992) Bautista Notes: Notice for request for admission under Rule 26 may be served on the adverse party’s counsel. True or False. False. The request for admission must be served on the party and not on the counsel. This is an exception to the general rule that notices shall be served upon the counsel and not upon the party. (Duque v. CA, 2 July 2002) Avena Notes (29 Jan 05) Can a request for admission be covered in a written interrogatory? Yes. A written interrogatory can cover anything even those outside the personal knowledge of the deponent. However, a request for admission in written interrogatories is allowed, if the genuineness of the document is within the personal knowledge of the deponent witness. Why is personal knowledge important in this mode of discovery? The significance of having personal knowledge as to the genuineness of the document lies in the effects of a failure to answer. If the adverse party refuses to answer the request for admission, then the genuineness of the document is deemed admitted.

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Production or Inspection of Documents or Things (Rule 27)

Subpoena Duces Tecum

Motion for production or inspection; order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (Sec. 1, Rule 27) Regalado Notes: Compare Rule 27 with a subpoena duces tecum. The production of documents affords more opportunity for discovery than a subpoena duces tecum as, in the latter, the documents are brought to the court for the first time on the date of the scheduled trial wherein such documents are required to be produced. The inspection of land and other real property for the purposes authorized by Rule 27 also avoids the need for ocular inspection thereof by the court. The court is authorized under Rule 27 to take the subject matter of the motion for production or inspection of documents or things in custodia legis. True or false. False. This mode of discover under Rule 27 does NOT authorize opposing party or the clerk or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession, even temporarily. (Tanda v. Aldaya, 89 Phil. 297) What is the test to be applied in determining the relevancy of documents and the sufficiency of their description? The test is one of reasonableness and practicability. (Line Corp. of the Phils. V. Moran, 59 Phil. 176) Baustista Notes:

Nature

To whom directed When it may be asked? Issued by Whom?

When Issued? Must good cause be shown? Grounds for quashal.

Consequence of Disobedience

Differentiate a subpoena duces tecum and an order for production or inspection of documents. 112 of 229

Process requiring a person to bring with him any books, documents or other things under his control or possession.

To ANY person Only during trial Issued by a court before whom the witness is required to attend, or court where the deposition is to be taken or clerk or body authorized by law or any Justice of SC or CA in any case or investigation pending within the Phils. Issued upon request No.

Unreasonable and oppressive, irrelevant, or the person in whose behalf the subpoena is issued fails to advance the reasonable costs of the production thereof Constitutes contempt of the court from which the subpoena was issued

Order for Production or Inspection order to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, etc., OR order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. Only to a PARTY Before and/or during trial Issued by the court where the action is pending.

Issued upon motion. Yes.

No good cause shown.

See Sec. 3, Rule 29

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Defendant files a motion for production of documents. Plaintiff objects to the motion, saying that the information could be come available in a subpoena duces tecum. Rule on the motion. Motion is granted and objection is denied. It is not a valid objection to a motion for production and inspection of documents that the information could become available by depositions or subpoena duces tecum because that would be tantamount to the argument that the party is entitled to retain his evidence until the actual trial, with all the advantages of secrecy and surprise. (Saxton v. WS Askew Co, 38 F.Supp. 323) Nor is it a defense to a motion for production that the documents contain inadmissible evidence because such documents might be used for rebuttal or impeachment purposes or for other reasons for which they may be admissible. (Mackerer v. New York, 1 F.R.D. 408)

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Physical and Mental Examination of Persons (Rule 28) When examination may be ordered. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician. (Sec. 1, Rule 28)

1. party examined has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition. 2. party examined waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him.

Order for examination.

The order for examination may be made a. only on motion for good cause shown and b. upon notice to the party to be examined and to all other parties, and c. shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. (Sec. 2, Rule 28)

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. (Sec. 3, Rule 28)

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. (Sec. 4, Rule 28)

Regalado Notes: Are the results of the physical and mental examination by order of the court protected under the physician-patient privilege? No. Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege. Such examination is NOT necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physical or mental condition.

Baustista Notes: Employee P files an action for sexual harassment against Employer XXX. P alleges emotional distress and mental anguish from her experience with XXX. XXX files a motion for mental examination of P. P objects saying in sexual harassment suit, her mental condition was not an issue. Rule on the motion. Motion is granted. In an action for sexual harassment where the plaintiff alleged that the defendant’s action caused her emotional distress and mental anguish, plaintiff was ordered on defendant’s motion to undergo a medical and physical examination. Plaintiff was held to have placed her mental condition in controversy by alleging mental and emotional distress and defendant is entitled to discover whether plaintiff’s alleged distress was caused by a pre-existing mental condition or by alternative causes. (Vinson v. CA, 43 Cal.3d 833) Can you ask a psychiatric examination of a witness? No. Only a party. Generally, if a party refuses to be subjected to any of the modes of discovery, can you put him in jail? Yes, except for refusal to submit to a physical or mental examination. Avena Notes (29 Jan 05) What are the conditions for a court order for physical and mental examination of the person? 1. good cause 2. notice to the party to be examined 3. must specify physician 4. scope of the examination 5. time, place and manner of examination. What is the ground for objecting to a mental or physical examination? The mental or physical examinations will not be proper if the mental or physical condition of the person is not in controversy.

What are the consequences when the party examined requests for a report on the results of the examination? Where the party examined requests and obtains a report on the results of the examination, the consequences are: 114 of 229

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Refusal to Comply with Modes of Discovery (Rule 29) Refusal to answer.

If a party or other deponent refuses to answer any question upon oral examination, the examination may be a. completed on other matters or b. 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. (a) 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. (b) 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. (Sec. 1, Rule 29)

Contempt of court. or

(1) If a party or other witness refuses to be sworn

(2) 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. (Sec. 2, Rule 29)

Other consequences.

A. 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 B. 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 C. an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and

(d) In lieu of any of the foregoing orders or in thereto, an order directing the arrest of any party of a party for disobeying any of such orders except to submit to a physical or mental examination. Rule 29)

addition or agent an order (Sec. 3,

Expenses on refusal to admit.

If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney's fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. (Sec. 4, Rule 29)

Failure of party to attend or serve answers. If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may 1. strike out all or any part of any pleading of that party, or 2. dismiss the action or proceeding or any part thereof, or 3. enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees. (Sec. 5, Rule 29)

Expenses against the Republic of the Philippines. Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule. (Sec. 6, Rule 29)

TABLE ON EFFECTS OF REFUSAL Type of Refusal Refusal to answer questions in interrogatories (Rule 23 or 25) Refusal to obey court order to answer (Rule 29.1, Rule 26, Rule 27)

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Consequence A. either complete the examination on other matter OR adjourn the examination B. Apply to the court for order to compel an answer May be required by the court to pay the proponent the amount of reasonable expenses incurred in obtaining court order, including attorney’s fees. Other Consequences: - such orders as the court may deem just - order that the subject matter regarding the inquiry shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. - order prohibiting the introduction of evidence - order to strike out pleadings or part thereof - order to stay further

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If there is a denial of application for court to compel refusing deponent to answer

Refusal to be sworn in Refusal to answer any question after being directed to do so by the court of the place where the deposition is being taken Refusal to submit to a physical and mental examination (Rule 28)

Refusal to admit genuineness of any document or the truth of any matter of fact (Rule 29.4 in relation to Rule 26)

o

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Refuses to appear before deposition officer, after being served with proper notice Refuses to serve answers to interrogatories submitted under Rule 25, after proper service of such interrogatories

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proceedings - order dismissing the action or proceeding or any part thereof. - order rendering judgment by default. - order the arrest Proponent of the application may be required to pay the refusing party or deponent the amount or reasonable expenses incurred in opposing the application including attorney’s fees. Contempt of court where the swearing in should have been done Contempt of court

Other Consequences: (same as above in Refusal to produce or inspect documents or things) EXCEPT that party refusing to submit to examination may NOT be ARRESTED for his refusal to submit. Proponent may ask court order requiring refusing party to pay proponent reasonable expenses incurred in making such proof, including attorney’s fee. UNLESS there were good reasons for denial or that admissions sought were of no substantial importance - order to strike out pleadings or part thereof - order to stay further proceedings - order dismissing the action or proceeding or any part thereof. - order rendering judgment by default. - order to pay reasonable expenses incurred by the other including attorney’s fees.

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e. Summary Judgment (Rule 35) Summary judgment for claimant.

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. (Sec. 1, Rule 35)

Summary judgment for defending party.

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. (Sec. 2, Rule 35)

Motion and proceedings thereon. The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Sec. 3, Rule 35)

Case not fully adjudicated on motion. If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain 1. what material facts exist without substantial controversy and 2. what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly. (Sec. 4, Rule 35)

Form of affidavits and supporting papers.

Supporting and opposing affidavits a. shall be made on personal knowledge, b. shall set forth such facts as would be admissible in evidence, and c. shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. (Sec. 5, Rule 35)

Affidavits in bad faith.

Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the

reasonable expenses which the filing of the affidavits caused him to incur, including attorney's fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt. (Sec. 6, Rule 35)

Regalado Notes: When are summary judgments proper? Summary judgment is proper only when there is clearly no genuine issue as to any material fact in the action, and if there is any question or controversy upon any question of fact, there should be a trial on the merits. (Agcanas v. Nagum) Summary judgment is NOT proper where the defendant presented defenses tendering factual issues which call for the presentation of evidence. (Villanueva v. NAMARCO) Defendant files a motion for summary judgment. Judge immediately grants the motion ex parte. Plaintiff contests the judge’s order. Is the judge’s order valid? NO. There must be a motion for summary judgment and a hearing of said motion, the nonobservance of which procedural requirements warrants the setting aside of the summary judgment. (Cadirao v. Estenzo) What is the test for the propriety of a motion for summary judgment? The test for the propriety of a motion for summary is whether the pleading, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that as a matter of law, there is no defense to the action or the claim is clearly meritorious (Estrada v. Consolacion) Can a motion for summary judgment be rendered on the amount of damages that is to be recovered? No, under Section 3 of Rule 35, summary judgment may not be rendered on the AMOUNT of damages, although such judgment may be entered on the issue of the RIGHT to damages. Thereafter the court may proceed to assess the amount recoverable. (Jugador v. De Vera) Also the court cannot impose attorney’s fees in a summary judgment in the absence of proof as to the amount thereof. (Warner Barnes v. Luzon Surety) If there is doubt as to the propriety of a summary judgment, to whom shall the doubt be resolved? The doubt shall be resolved against the moving party. The court should take that view of evidence most favorable to the party against whom it is directed and give that party the benefit of all favorable inferences. (Gatchalian v. Pavilin)

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Denials, unaccompanied by any fact which would be admissible in evidence at a hearing, are sufficient to raise a genuine issue of fact. True or false. False. Mere denials are NOT sufficient to raise a genuine issue of fact sufficient to defeat a motion for summary judgment. (Plantadosie v. Loew’s) Where all the facts are within the judicial knowledge of the court, summary judgment may be granted as a matter of right. Upon motion for summary judgment, the judge finds that the motion is only partially meritorious and grants the partially the motion. The trial court continues with the hearing of the case. The movant appeals the partial denial of his motion. As the appellate court, rule on the appeal. Appeal is denied. While sec. 4 of Rule 35 authorizes the rendition of a partial summary judgment, such judgment is interlocutory in nature and is not a final and appealable judgment. The appeal from the partial summary should be taken together with the judgment in the entire case after the trial shall have been conducted on the material facts on which a substantial controversy exists. (Guevarra v. CA)

There is a genuine issue if a regular trial is needed to resolve it. When is an issue as to a material fact genuine? An issue is genuine if it is properly triable, when it merits trial, meaning it requires for its resolution a full dress hearing or a trial where you call witnesses, direct and cross examine. Where, for instance, the plaintiff sues for collection on a note payable and the defendant does not deny the execution of the note but defends by saying that he has paid. Why not just present affidavits and the receipt? What is there to try? Republic v. Sandiganbayan This was the forfeiture case to declare the Marcos assets held in escrow in PNB as ill-gotten wealth. Two motions for summary judgment were filed: the first based on the compromise agreement reached with the PCGG and the second was filed after pre-trial. Marcos failed to raise any genuine issue. Stock or general denials due to lack or insufficiency of knowledge of the Marcos of such accounts was NOT a proper denial. The Marcos’s merely asserted that the wealth was legally acquired but without giving substantial proof of the same.

Baustista Notes: What is the two step procedure on a motion for summary judgment? 1. There must be a determination that the case is appropriately resolvable on a summary judgment. 2. After such determination, the court will resolve the case on the basis of the affidavits, depositions and admissions on file. (Estrada v. Consolacion) What is the principal purpose of allowing summary judgment? It is to isolate and dispose of factually unsupported claims or defenses. In order to show that there is a genuine issue of fact which would require a trial, the burden is on the opposing party to go beyond the pleadings by deposition, supporting affidavits and admissions. (Celotex v. Catrett) Summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. (Cross v. US) What is the rationale for the rule allowing for summary judgment? It is to spare the court and the other party of going through with the trial. There is no need to spend time on factually baseless claims and defenses. What is a genuine issue?

Grand Farms v. CA Grand Farms filed for an annulment of the extra judicial foreclosure proceedings of their property instituted by Banco Filipino, saying that the latter did not give notice of the foreclosure. Grand Farms filed a request for admission asking the Bank to admit that there was no personal notice given to Grand Farms. The Bank replied saying that they notified Grand Farms “through posting of notices and publication.” Grand Farms moved for summary judgment. The motion for summary judgment was proper because to require trial despite the lack of personal notice to Grand Farms of the foreclosure would be a superfluity. The bank’s answer was a tacit admission that it did not send a formal notice personally to Grand Farms, which notice was specifically enjoined by the mortgage contract. The test of the propriety of a motion for summary judgment is whether or not the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify a finding as a matter of law that there is no defence to the action or that the claim is meritorious. Allied Agri-Business v. CA Cherry Valley, a foreign corporation, sued Allied Agri-Business for payment of several duck hatchling eggs and ducklings. Quintos’s, President of Allied Agri-Business, invited Cherry Valley to be a stockholder in a new company, but Cherry Valley

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declined. In a letter to Cherry Valley, Quintos expressly acknowledged the obligation. Cherry Valley filed a request for admission but Allied Agri-Business refused to comply. Cherry Valley moved for summary judgment. Allied Agri-Business failed to submit answers to the request for admission and therefore admitted the allegations. Summary judgment may be granted if the facts which stand admitted by reason of failure to deny the statements, show no material issue of facts, as what happened in this case. GSIS v. Philippine Village Hotel A MOA was reached between Philippine Village Hotel Inc. (PVHI) and GSIS where the former would pay P300M to settle all its outstanding accounts. PVHI filed an action for specific performance to compel GSIS to accept the balance of P270M. PVHI, after presenting their evidence, moved for a partial summary judgment, which the trial court granted confirming the validity of the MOA and ordering GSIS to accept the balance. PVHI appealed the grant of its own motion. CA denied the appeal. ISSUE: WON the CA may pass upon the partial summary judgment of RTC, considering the RTC has not yet adjudged the amount of recoverable damages. A partial summary judgment is NOT reviewable by the CA; it does not finally dispose of the action. It is merely an interlocutory order and not a final judgment. The judgment postponed the hearing on the amount of damages and the finding of damages is inseparable from the validity of the MOA.

2. The affected party can just let the trial proceed, and if the decision is still unfavourable, he can appeal. Allied Agri-Business v. CA There was no genuine issue of fact because Quintos had admitted the debt through the letter. (evidence aliunde) Grand Farms v. CA There was an implied admission by Banco Filipino that Grand Farms was not given PERSONAL NOTICE of the foreclosure of the property, which was specifically provided for in the mortgage contract. Republic v. Sandiganbayan In a petition for forfeiture, there is a presumption of ill-gotten wealth when the property acquired is beyond the salaries of a public official. The defenses raised by the Marcos on their face would tender an issue, but upon presentation of other documents, the defenses were indeed a “sham”. In this case, the motion for summary judgment against the Marcos used the pleadings of the Marcos and even other evidence aliunde: 1. the answer, 2. pre-trial brief, 3. demurrer to evidence, 4. compromise and supplemental agreement based on the Swiss court ruling, 5. motion to freeze, 6. manifestation of Imelda that 90% of the dollar account belong to Imelda and 6. the other attachments to the motion for summary judgment. * In a motion for summary judgment, the answer tenders an issue of fact (which makes it different from a motion for judgment on the pleadings) but the issue of fact presented is NOT a genuine issue.

Avena Notes (1 Feb 05) Is there a deadline for filing a motion for summary judgment? No. As to the evidence presented, differentiate a motion for judgment on the pleadings with a motion for summary judgment. In a motion for judgment on the pleadings, the court bases its decision only on the pleadings – the complaint of the plaintiff and the answer of the defendant. In a motion for summary judgment, the court relies on the pleadings, affidavits, depositions and admission for its decision. GSIS v. Philippine Village Hotel A partial summary judgment interlocutory order and is not appealable.

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What are the remedies against a partial summary judgment issued by the court? 1. File an original action for certiorari under Rule 65 for grave abuse of discretion in issuing the partial summary judgment. 119 of 229

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f. Demurrer to Evidence (Rule 33) Demurrer to Evidence.

After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. a. If his motion is denied, he shall have the right to present evidence. b. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (Sec. 1, Rule 33)

Regalado Notes. What is a demurrer to evidence? A demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests his case. How is a demurrer to evidence different to a motion to dismiss, under Rule 16? A demurrer to evidence differs to a motion to dismiss under Rule 16 which is grounded on preliminary objections and is presented at the outset of the case. What are the effects if a lower court decision granting a demurrer is subsequently reversed by the appellate court? The defendants lose the right to present their own evidence. The appellate court shall, in addition, resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations. It cannot remand the case for further proceedings. (Radio Wealth Finance v. Del Rosario) The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence. (Siayngco v. Costibolo) Is an order resolving a demurrer to evidence a final order of the court? It depends. Where the defendant’s demurrer to evidence is sustained and the case is dismissed, such order would be an adjudication on the merits, hence the requirement that said judgment should state clearly and distinctly the facts and the law on which it is based. Where the demurrer is denied, the denial order is interlocutory in nature. Such denial order is not controllable by certiorari, absent an oppressive exercise of judicial authority. Bautista Notes.

2. Defendant may waive the presentation of his evidence and decide to submit the case for decision on the basis of plaintiff’s evidence alone. 3. Defendant may file what is known as a “demurrer to evidence”. What is the risk in defendant filing a demurrer? If the demurrer is granted and there is an appeal of the judgment and it is reversed, the movant-defendant loses his right to present his evidence. The defendant therefore takes the chance where his demurrer is granted, and this can only mean that he should be fairly sure of the solidity of his ground when he moves for judgment without having to adduce evidence on his side. Northwest Airlines v. CA This was the case where Torres purchased firearms in the US and got lost when transported by Northwest Airlines. Torres filed suit in the Philippines for actual, moral, temperate and exemplary damages against Northwest. After Torres presented his evidence, Northwest filed a demurrer to the evidence (as to the moral, temperate and exemplary damages) with a motion for summary judgment (as to the actual damages). TC rendered a full-blown decision ordering Northwest to pay actual and moral damages. Summary judgment can only be granted as to the actual damages but it cannot cover claims for moral damages and attorney’s fees. The motion for summary judgment was not proper because there was a genuine issue of fact, WON Northwest was liable and if so, for how much. In denying Northwest’s demurrer, the trial court cannot immediately grant Torres relief. Northwest, upon the denial of its demurrer, should be allowed to present evidence. Choa v. Choa Alfonso Choa filed for declaration of nullity of his marriage with Leni Choa based on Art.36 psychological incapacity. After Alfonso presented his evidence in chief, Leni filed a demurrer to the evidence saying that Alfonso did not establish psychological incapacity. TC denied the demurrer saying Alfonso established a quantum of evidence which must be controverted. A demurrer to evidence is proper when the evidence, which the adverse party produced is insufficient in point of law to make out his case or sustain the issues. Alfonso’s evidence was insufficient to support any finding of psychological incapacity.

After the plaintiff has rested his case, what are the options of the defendant? 1. Defendant may proceed to present his evidence.

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XIX. Judgments, Final Orders and Entry Thereof (Rule 36) Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be a. in writing personally and directly prepared by the judge, b. stating clearly and distinctly the facts and the law on which it is based, c. signed by him, and d. filed with the clerk of the court. (Sec. 1, Rule 36)

Entry of judgments and final orders.

If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. (Sec. 2, Rule 36)

A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Members who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefore. The same requirement shall be observed by all lower collegiate courts. (Sec. 13) No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefore. (Sec. 14)

Judgments and processes.

Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. (Sec. 3, Rule 36)

All judgments determining the merits of cases shall be a. in writing, b. stating clearly the facts and the law on which they were based, c. signed by the Judge and d. filed with the Clerk of Court. Such judgment shall be appealable to the RTC in accordance with the procedure now prescribed by law for appeals to the Court of First Instance by the provisions of this Act, and by such rules as the SC may hereafter prescribe. (Sec. 38, para.1, BP 129) All processes issued by the MeTC, MTC and MCTC, in cases falling within their jurisdiction, may be served anywhere in the Philippines without the necessity of certification by the Judge of the Regional Trial Court. (Sec. 38, para.2, BP 129)

Several judgments.

Regalado Notes.

Judgment for or against one or more of several parties.

In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. (Sec. 4, Rule 36)

Separate judgments.

When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. (Sec. 5, Rule 36)

Judgment against entity without juridical personality.

When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known. (Sec. 6, Rule 36)

1987 Constitution, Article VIII

The Conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court.

What is the decision of the court? The decision of the court is the entire document prepared and promulgated by it, adjudicating and determining the rights of the parties to the case. What is the fallo? The fallo or the dispositive portion or decretal portion is what actually constitutes the judgment or resolution of the court and which can be the subject of execution, although the other parts of the decision may be resorted to in order to determine the ration decidendi for such judgment or resolution. What should govern should there be a conflict between the fallo and the body of the decision? The dispositive portion or fallo controls irrespective of what appears in the body of the decision. EXCEPTIONS: a. where the inevitable conclusion from the findings of fact in the opinion is so indubitable and clear as to show that there was a mistake in the dispositive portion. b. Where explicit discussion and settlement of the issue is found in the body of the decision. When the dispositive part of a final order or decision is definite, clear and unequivocal and can be

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wholly given effect without the need of interpretation or reconstruction, the same is considered as the judgment of the court to the exclusion of anything said in the body thereof. What are the special forms of judgment under the Rules and jurisprudence? 1. Judgment by default (Sec. 3, Rule 9) 2. Judgment on the pleadings (Rule 34) 3. Summary Judgment (Rule 35) 4. Several Judgment (Sec. 4, Rule 36) 5. Separate Judgment (Sec. 5, Rule 36) 6. Judgment for Specific Acts (Sec. 10, Rule 39) 7. Special Judgment (Sec. 11, Rule 39) 8. Judgment upon confession 9. Judgment upon compromise, or on consent or agreement 10. “Clarificatory” Judgment 11. Judgment nunc pro tunc. Is a judgment by consent and a judgment by confession the same thing? No. A judgment by consent is one the provisions and terms of which are settled and agreed upon by the parties to the action, and which is entered in the record by the consent of the court. There must be unqualified agreement among the parties to be bound by the judgment on consent before said judgment may be so entered and the court does not have the power to supply terms, provisions or essential details not previously agreed by the parties. A judgment by confession is not a plea but an affirmative and voluntary act of the defendant himself and the court exercises a certain amount of supervision over their subsequent status. What must be alleged in the an appeal from a judgment on compromise? 1. a party appealing must move to set aside the judgment on compromise 2. a party appealing must also move to set aside or annul the compromise agreement itself. A sued B. They reached a compromise and the court rendered a judgment on the compromise. A moved to execute judgment against C who was not a party to the suit. C files a motion to set aside the judgment on the compromise because he was not impleaded in the suit. TC denies the motion. Is the denial of the motion valid? Yes. Where a judgment based on a compromise is sought to be enforced against a person who was not a party thereto, he may file an original petition for certiorari to quash the writ of execution. He could not move to the have the compromise agreement set aside and then appeal from the order denying his motion since he is not a party to the compromise or the judgment therein. A petition for relief would be an inadequate remedy as the execution was already being carried out. (Jacinto v. Montesa, 28 Feb. 1967)

Can a compromise agreement, once approved by the court, still be overturned by the court? Generally, a compromise agreement, once approved by the court has the force of res judicata between the parties and should not be disturbed. EXCEPT: a. compromise was forged. b. there was a vice of consent in the compromise. What is a judgment note? Is a judgment note recognized in our judicial system? A judgment note is a promissory note wherein the maker authorizes in advance, on warrant of attorney, a confession of judgment against him in the event of non-payment of the note on its maturity. There is no law in our jurisdiction which recognizes a judgment note. This is considered void as being contrary to public policy, since the promissory bargains away his day in court and this might be a source of abuse and oppression. (PNB v. Manila Oil Refining, 43 Phil. 444) What is a judgment nunc pro tunc? A judgment nunc pro tunc (literally, “now for then”) is rendered to enter or record such judgment as had been formerly rendered but has not been entered as thus rendered. Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or in any material respect. (Lichuaco v. Tan Pho, 51 Phil. 862) The object of a judgment nunc pro tunc is not the rendition of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record the judgment that has been previously rendered, to make it speak the truth and thereby show what the judicial action really was. It may not be availed of to correct judicial errors, such as to render a judgment which the court ought to have rendered in place of the one it did erroneously render or to supply nonaction by the court however erroneous the judgment may have been. (Manning International Corp. v. NLRC, 13 March 1991) When is there a rendition of judgment? It is the filing of the signed decision with the clerk of court and not its pronouncement in open court that constitutes rendition of judgment. If the decision is sent by the judge by registered mail, it is considered filed in court as of the date of its receipt by the clerk , and not of the date of its posting or mailing. (Sec. 51 RA 296) TC renders a judgment contrary to the express provisions of law. Adversely affected party refuses to submit to the execution, claiming that the judgment rendered was void. Is the claim correct?

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No. A judgment contrary to the express provisions of law is ERRONEOUS, but it is NOT VOID. Once it becomes final and executory, it is binding and effective, will be enforced as a valid judgment in accordance with its dispositions. (Mercado v. CA, 10 June 1988)

In actions against solidary debtors, is a several judgment proper? No.

Can the validity of a judgment or order of a court be collaterally attacked? Generally, validity of a judgment or order of a court cannot collaterally attacked. EXCEPTION: a. lack of jurisdiction b. irregularity of its entry apparent from the face of the record.

What are the traditional parts of a judgment? a. The body or opinion b. The decretal or dispositive portion c. The signature of the judge.

What is a motion for clarificatory judgment? A motion for clarificatory judgment is the remedy where the judgment is ambiguous and difficult to comply with.

What is a “sin perjuicio” judgment? Is it allowed in our jurisdiction? A judgment which contains the dispositive portion only and reserves the making of findings in a subsequent judgment is known as a “sin perjuicio” judgment. A “sin perjuicio” judgment is not allowed and shall have no effect. (Dizon v. Lopez)

What is a memorandum decision? Is it valid in the Philippines? Under Sec. 40, BP 129, memorandum decisions are authorized species of succinctly written decisions by appellate courts for expediency, practicality and convenience in consideration of the docket status of our courts. It has been held that such decisions comply with the constitutional mandate. (Oil and Natural Gas Commission v. CA, 28 September 1999) However, to be valid such memorandum decision should actually embody the factual findings and legal conclusions in an annex attached to and made an integral part of the decision. Also, such decisions should be sparingly used and may be resorted to only in cases where the facts are accepted in the main by the parties, are easily determinable by the judge and do not involve doctrinal implications requiring extended discussion It may be employed in simple cases where the appeal is obviously groundless and deserves no more than the time to dismiss it. (Yao v. CA, 24 October 2000) Can a transferred judge still render a decision in his former court? A judge permanently transferred to another court of equal jurisdiction can render a decision on a case in his former court which was totally heard by him and submitted for decision, with the parties having argued the case. (Valentin v. Sta. Maria, 17 January 1974) What is a several judgment? A several judgment is proper where the liability of each party is clearly separable and distinct from that of his co-parties such that the claims against each of them could have been the subject of separate suits, and judgment for or against one of them will not necessarily affect the other.

Bautista Notes.

If there is a conflict between the opinion and the dispositive portion, which part shall prevail? The dispositive portion shall prevail.

Is a conditional judgment valid? No. A conditional judgment cannot executed and some courts say it is null and void.

be

Where the judgment is for a sum of money to be determined by another court, it is complete judgment which can be executed. True or False. False. It is an incomplete judgment which cannot be executed. (DBP v. Tanada) What is a cognovit judgment? A cognovit judgment is one rendered upon confession entered pursuant to a cognovit clause in a promissory not or a contract authorizing the holder or party upon default to confess judgment as the maker’s or party’s attorney-in-fact upon the note or contract. Such kind of a judgment is considered void in our jurisdiction for denying a party his right to a day in court and his right to file counterclaims. (PNB v. Manila Oil Refining, 8 June 1922) But there is no reason for invalidating a cognovit provision whereby a party voluntarily waives his right to pre-judgment notice and hearing and such a provision may well serve a useful purpose in the commercial world. (DH Overmeyer Co. v. Frick Co. 405 US 174) What are the two classes of cases in which it was originally held proper to enter a judgment nunc pro tunc? a. those cases in which the suitors have done all in their power to place the cause in a condition to be decided in a court but in which, owing to the delay of the court, no final judgment has been entered. b. Those cases in which judgment though pronounced by the court, have, from accident or

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mistake of the officers of the court, never been entered on the records of the court. In our jurisdiction only the second class would be appropriate for the rendition of a nunc pro tunc judgment. Ruiz v. Caneba

Velarde v. SJS

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1. Effect of Judgment Effect of judgments or final orders.

The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:

(a) Res Judicata in Judgments In Rem

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

(b) Res Judicata in Judgments In Personam

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

(c) Conclusiveness of Judgment

In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (Sec. 47, Rule 39)

Effect of foreign judgments or final orders. The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

(a) Foreign Judgments in Actions in Rem

In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and

(b) Foreign Judgments in Actions in Personam

In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (Sec. 48, Rule 39) A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution EXCEPT in compliance with a judicial compromise. (Art. 2037, Civil Code)

Regalado Notes: What is res judicata? What are its effects? In res judicata, the parties and the causes of action in both actions are identical or substantially the same. The judgment in the first action is conclusive as to every matter offered and received therein and as to any other matter admissible therein and which might have been offered for that purpose, hence it is an absolute bar to a subsequent action for the same cause.

What is conclusiveness of judgment? What are its effects? In conclusiveness of judgment, the parties in both actions may be the same but the causes of action are different. Hence, the judgment in the first is binding only with respect to the matters actually raised and adjudged therein and is not a bar to another action between the same parties on a different cause of action. What are the requisites for res judicata? a. The former judgment or order must be FINAL. b. It must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case. c. It must have been rendered by a court having jurisdiction over the subject matter and the parties d. There must be, between the first and second actions, identity of parties, subject matter and of cause of action. This requisite is satisfied if the two actions are substantially between the same parties. For a judgment or order to be on the merits, there must be a trial where there is presentation and consideration of evidence. True or False. False. Although there has been no trial or presentation and consideration of evidence therein, a dismissal of the complaint under the circumstances provided in Sec. 3, Rule 17 shall have the effect of an adjudication of the case on the merits, unless otherwise declared by the court. The same rule applies when the case is dismissed for non-suit due to unjustified failure of the plaintiff to appeal at the pre-trial of his case. (Sec. 5, Rule 17) Is there identity of parties when co-defendant sue each other in a subsequent suit? No. Where in a prior case the parties were co-defendant without any hostile or conflicting claims raised in issue or adjudicated as between them, and the second action is between them as plaintiff and defendant, the judgment in the first action does not constitute res judicata to bar the second action as there is no identity of parties in both actions. (Valdez v. Mendoza, 89 Phil. 83) When is there identity of causes of action? Even if the forms or nature of the two actions be different, there is identity of causes of action when: a. the judgment sought will be inconsistent with the prior judgment, or b. if the same evidence will sustain the second action. Does the doctrine of res judicata apply where the second action is to annul the judgment in the first action?

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No. One of the requisites of res judicata is that there must be a former valid judgment. The rule of res judicata applies to final decisions of quasi-judicial agencies. True or False. True. Can a judgment of a foreign tribunal be enforced by execution in the Philippines? No. Such judgment only creates a right of action and its non-satisfaction, a cause of action, and it is necessary that a suit be brought upon said foreign judgment in our local courts. Filipino defendant participated as party to the foreign judgment. Foreign court ruled against the Filipino defendant. Foreigner complainant seeks to enforce the foreign judgment in the QC RTC. Filipino defendant seeks to dismiss the action saying that the foreign judgment cannot be enforced in the Philippines. Rule on the motion. Motion denied. If the defendant had also been a party to and actually participated in the proceedings in the foreign court, he is bound by the judgment therein and the doctrine of res judicata will apply to such foreign judgment. (General Corporation of the Philippines v. Union Insurance Society of Canton, 37 Phil. 313) Lee Bun Ting v. Aligaen World Machine Enterprises v. IAC Nabus v. CA Buan v. Lopez United Housing v. Dayrit Jose Tapia purchased a parcel of land from United Housing Corp., but no absolute deed of sale or transfer or title was executed. Tapia filed a complaint with the Human Settlements Regulatory Commission (now HLURB). A compromise was reached wherein UHC promised to deliver the title. (judgement upon compromise) UHC failed to deliver the title to Tapia, so Tapia moved for execution but HLURB forwarded the case to Prosecutor Gabriel as a criminal case in violation of Sec. 25 of PD 957. Tapia also filed for specific performance for execution of absolute deed of sale with the RTC. UHC filed a MTD for lack of jurisdiction of the RTC. RTC denied UHC’s MTD. ISSUE: WON a case of specific performance decided by the HLURB whose decisions has become final, may be relitigated in the RTC on the same issue and between the same parties? HELD: The jurisdiction for specific performance of obligations filed by the buyers against the subdivision lot owners is vested with the HSRC, now HLURB. The Judgement upon compromise is a

judgement on the merits and is conclusive upon the parties. The HLURB/HSRC can issue a writ of execution on its judgment on compromise. Since the HLURB did not issue writ of execution, Tapia should have filed for mandamus. SC said the action for specific performance is untenable. Buazon v. CA Bagong Barrio and Housing Cooperative claimed ownership over a one-storey building. 1st CASE: Buanzon (Pres. Of Coop). v. Mabalay & Villanueva In the MTC, an ejectment case was filed against lessees in which the cooperative participated. The MTC declared Buazon as the owner and ordered the lessees to vacate. 2nd CASE: Mabalay& Villanueva v. Buazon In the RTC, a complaint for ownership was filed. The RTC declared Buazon as the owner and ordered old lessees to vacate. 3rd CASE: Coop v. Buazon and 2 new lessees. In the MTC case for unlawful detainer, the MTC ruled for the Coop, declaring the Coop as the owner and ordering Buazon and the new lessees to vacate. On appeal, the RTC sustained Buazon’s defence saying that there is already res judicata with regard ownership of the building. CA reversed the RTC and ruled that there was no res judicata. SC held that there was no res judicata. Coop was not a party nor was it impleaded as a party in the prior cases involving Buazon. Coop cannot be bound by a decision it was not a party to and as such the decision is binding only between Buazon and Mabalay-Villanueva. In cases of forcible entry and unlawful detainer, the decision of the MTC as regards the title or issue of ownership is not conclusive and is only conclusive with respect to the issue of material possession. Philsec Investment v. CA

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Perfection of appeal; effect thereof.

The perfection of the appeal and the effect thereof shall be governed by the provisions of section 9, Rule 41. (Sec. 4, Rule 40)

Perfection of appeal; effect thereof. Notice of Appeal A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

Record on Appeal

A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (Sec. 9, Rule 41)

Perfection of appeal; effect thereof. (a) Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise. (Sec. 8, Rule 42)

Regalado Notes: When is a record of appeal required? A record on appeal shall be necessary in the following: a. appeals in special proceedings as provided in Rule 109 b. other cases wherein multiple appeals are allowed. Can an appeal by the defendant be withdrawn to revive the jurisdiction of the trial court, to enable him to file a motion for reconsideration?

No. While a party can withdraw an appeal, he cannot do so in order to revive the jurisdiction of the trial court to enable him to take another course of action calling for the exercise of that jurisdiction, such as the filing of a motion for new trial or reconsideration. This is so because by filing his notice of appeal, insofar as he is concerned he has perfected his appeal to the appellate court and it is in that court where he can pursue any further remedy. Co-defendants A and B receive an unfavourable judgment from Manila RTC. A appeals the case to the CA. B, on the other hand, files a motion for reconsideration. Plaintiff X moves to dismiss B’s motion for reconsideration because A had already filed an appeal, thus the Manila RTC has no more jurisdiction of the case. Rule on X’s motion. Motion denied. The rule on perfection of appeal applies individually and only to each of the parties so circumstanced since the timeliness of their recourse to appellate remedy depends on when the respectively received a copy of the judgment or final order. In the meantime, the trial court retains jurisdiction over the case. The TC lose jurisdiction over the entire case upon the filing of the record of appeal. True or False. False. A party’s appeal by record on appeal is deemed perfected as to him upon the approval of his record on appeal seasonably filed, but only with respect to the subject matter thereof. Where all the parties have either perfected their appeals in such manner or the period therefore has expired for those who did not do so then the trial court loses jurisdiction over the subject matter of their appeals upon the approval of their records on appeal and the expiration of the period to do so of the other parties. In an appeal by record of appeal, the trial court loses jurisdiction only over the subject matter of the respective appeals of the parties but retains jurisdiction over the case or special proceeding from which such appeals were taken. This is because this mode of appeal is involved and proper in special proceedings wherein the possibility of several appeals is contemplated, specifically from the various order enumerated in Rule 109 which are declared appealable, and in civil actions where several appeals may likewise be taken from certain aspects thereof. The lower court retains jurisdiction over the special proceeding or civil action, and since the original record remains with it for purposes of further remedies which the parties may avail of, a record on appeal has to be filed by any appellant. What is the effect of perfection of an appeal? After the perfection of the appeal by either mode, the trial court loses jurisdiction over the case or the subject matter involved in the appeal, as the case may be. In either instance, and before the transmittal to the appellate court of the original record or the record on appeal, the trial court still retains its so-called residual jurisdiction to issue

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protective orders, approve compromises, permit appeals of indigent litigants and, to order discretionary execution and to allow the withdrawal of the appeal. Even if the appeal has already been perfected but the records have not yet been transmitted to the appellate court, the TC still has jurisdiction to set aside its order approving the record on appeal. (Cabungcal v. Fernandez, 20 April 1964) The rule is that an interlocutory order remains under the control of the court and can be modified or rescinded before the entry of final judgment. (Larrobis v. Wislezemers, 42 Phil. 401) Does a perfected appeal stay the challenged judgment or final order? Generally, yes. That stay of judgment, however, is not applicable to civil cases under the Rule on Summary Procedure, which as revised, provides in Sec. 21 thereof that the decision of the RTC in civil cases governed by said rule including forcible entry and unlawful detainer cases shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. New Sampaguita v. Canoso

Fortune Life and Gen. Insurance v. CA

Oropesa v. Allied Bank

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2. Execution and Satisfaction of Judgments The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another: (1) The guardian, the property of the person or persons who may be under his guardianship; (2) Agents, the property whose administration or sale may have been entrusted to them, unless the consent of the principal has been given; (3) Executors and administrators, the property of the estate under administration; (4) Public officers and employees, the property of the State or of any subdivision thereof, or of any government-owned or controlled corporation, or institution, the administration of which has been intrusted to them; this provision shall apply to judges and government experts who, in any manner whatsoever, take part in the sale; (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. (6) Any others specially disqualified by law. (Art.1491, Civil Code)

Rule 39 Execution upon judgments or final orders.

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

Discretionary execution. (a) Execution of a judgment or final order pending appeal.

On motion of the prevailing party will notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

(b) Execution of several, separate or partial judgments.

A several separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. (Sec. 2, Rule 39)

Stay of discretionary execution. Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety. (Sec. 3, Rule 39)

Judgments not stayed by appeal. Judgments in actions for 1. injunction, 2. receivership, 3. accounting and 4. support, and 5. such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party. (Sec. 4, Rule 39)

Effect of reversal of executed judgment. Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances. (Sec. 5, Rule 39)

Execution by motion or by independent action.

A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. (Sec. 6, Rule 39)

Execution in case of death of party.

In case of the death of party, execution may issue or be enforced in the following manner: (a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; (b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon; (c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to

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the corresponding executor or administrator for any surplus in his hands.

Issuance, form and contents of a writ of execution. The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner herein after provided: (a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor; (b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such properties; (c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; (d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and (e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant. (Sec. 8, Rule 39)

Execution of judgments for money, how enforced. (a) Immediate payment on demand.

The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amount to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the

judgment. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him. (Sec. 9, Rule 39)

(b) Satisfaction by levy.

If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment. (Sec. 9, Rule 39)

(c) Garnishment of debts and credits.

The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishing requiring such delivery, except the lawful fees which shall be paid directly to the court. In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made by the judgment obligee. The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgment obligee. (Sec. 9, Rule 39)

Execution of judgments for specific act.

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(a) Conveyance, delivery of deeds, or other specific acts; vesting title. If a judgment directs a party who execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may be an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. (Sec. 10, Rule 39)

(b) Sale of real or personal property

If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment. (Sec. 10, Rule 39)

(c) Delivery or restitution of real property

The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all person claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee; otherwise, the officer shall oust and such persons therefrom with the assistance, if necessary of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. (Sec. 10, Rule 39)

(d) Removal of improvements on property subject of execution

When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court. (Sec. 10, Rule 39)

subject to liens and encumbrances then existing. (Sec. 12, Rule 39)

Property exempt from execution. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempt by law. But no article or species of property mentioned in his section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (Sec. 13, Rule 39)

Return of writ of execution.

(e) Delivery of personal property

When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. (Sec. 11, Rule 39)

The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. (Sec. 14, Rule 39)

Effect of levy on execution as to third persons.

Notice of sale of property on execution.

In judgments for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. (Sec. 10, Rule 39)

Execution of special judgments.

The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy,

Before the sale of property on execution, notice thereof must be given as follows:

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(a) In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; (b) In case of other personal property, by posting a similar notice in the three (3) public places abovementioned for not less than five (5) days; (c) In case of real property, by posting for twenty (20) days in the three (3) public places above-mentioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city; (d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time before the sale, in the same manner as personal service of pleadings and other papers as provided by Section 6 of Rule 13. The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon. The place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. (Sec. 15, Rule 39)

Proceedings where property claimed by third person.

If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate

action against a third-party claimant who filed a frivolous or plainly spurious claim. When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. (Sec. 16, Rule 39)

Penalty for selling without notice, or removing or defacing notice. An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, in addition to his actual damages, both to be recovered by motion in the same action; and a person willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale, shall be liable to pay five thousand (P5,000.000) pesos to any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in the same action. (Sec. 17, Rule 39)

No sale if judgment and costs paid.

At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. (Sec. 18, Rule 39)

How property sold on execution; who may direct manner and order of sale. All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, if present at the sale, may direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. (Sec. 19, Rule 39)

Refusal of purchaser to pay.

If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby;

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but the court may order the refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. (Sec. 20, Rule 39)

Judgment obligee as purchaser.

When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess. (Sec. 21, Rule 39)

Adjournment of sale.

By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned. (Sec. 22, Rule 39)

Conveyance to purchaser of personal property capable of manual delivery. When the purchaser of any personal property, capable of manual delivery, pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. (Sec. 23, Rule 39)

Conveyance to purchaser of personal property not capable of manual delivery. When the purchaser of any personal property, not capable of manual delivery, pays the purchase price, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. (Sec. 24, Rule 39)

Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds. Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: (a) A particular description of the real property sold; (b) The price paid for each distinct lot or parcel; (c) The whole price paid by him; (d) A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. (Sec. 25, Rule 39)

Certificate of sale where property claimed by third person. When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such third-party claim. (Sec. 26, Rule 39)

Who may redeem real property so sold. Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment obligor, or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. (Sec. 27, Rule 39)

Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed. The judgment obligor, or redemptioner, may redeem the property from the purchaser, a. at any time within one (1) year from the date of the registration of the certificate of sale, b. by paying the purchaser the amount of his purchase, with one per centum per month interest thereon in addition, up to the time of redemption, c. together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last named amount at the same rate; d. and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. Property so redeemed may again be redeemed a. within sixty (60) days after the last redemption b. upon payment of the sum paid on the last redemption, with two per centum thereon in addition, and c. the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last-named amount, and d. in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner a. within sixty (60) days after the last redemption, b. on paying the sum paid on the last previous redemption, with two per centum thereon in addition, and c. the amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and d. the amount of any liens held by the last redemptioner prior to his own, with interest. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds; if such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens. (Sec. 28, Rule 39)

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Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon; to whom payments on redemption made.

If the judgment obligor redeems, he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale. (Sec. 29, Rule 39)

Proof required of redemptioner.

A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer 1. a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or, 2. if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; or 3. an original or certified copy of any assignment necessary to establish his claim; and an affidavit executed by him or his agent, showing the amount then actually due on the lien. (Sec. 30, Rule 39)

Manner of using premises pending redemption; waste restrained. Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, a. to continue to use it in the same manner in which it was previously used; or b. to use it in the ordinary course of husbandry; or c. to make the necessary repairs to buildings thereon while he occupies the property. (Sec. 31, Rule 39)

Rents, earnings and income of property pending redemption.

The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. (Sec. 32, Rule 39)

Deed and possession to be given at expiration of redemption period; by whom executed or given. a. If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, b. if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor. (Sec. 33, Rule 39)

Recovery of price if sale not effective; revival of judgment.

A. If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession thereof, or B. is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or C. because the judgment has been reversed or set aside, or D. because the property sold was exempt from execution, or E. because a third person has vindicated his claim to the property, he may on motion in the same action or in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on motion, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more. (Sec. 34, Rule 39)

Right to contribution or reimbursement. When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel a contribution from the others; and when a judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. (Sec. 35, Rule 39)

Examination of judgment obligor when judgment unsatisfied. When the return of a writ of execution issued against property of a judgment obligor, or any one of

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several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. (Sec. 36, Rule 39)

Examination of obligor of judgment obligor.

When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. (Sec. 37, Rule 39)

Enforcement examination.

of

attendance

and

conduct

of

A party or other person may be compelled, by an order or subpoena, to attend before the court or commissioner to testify as provided in the two preceding sections, and upon failure to obey such order or subpoena or to be sworn, or to answer as a witness or to subscribe his deposition, may be punished for contempt as in other cases. Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. If the examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers before a court or commissioner must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer or agent thereof. (Sec. 38, Rule 39)

Order for application of property and income to satisfaction of judgment. The court may order any property of the judgment obligor, or money due him, not exempt from execution, in the hands of either himself or another person, or of a corporation or other juridical entity, to be applied to the satisfaction of the judgment, subject to any prior rights over such property. If, upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his personal services are more than necessary for the support of his family, the court may order that he pay the judgment in fixed monthly installments, and upon his failure to pay any such installment when due without good excuse, may punish him for indirect contempt. (Sec. 40, Rule 39)

Appointment of receiver. The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. (Sec. 41, Rule 39)

Sale of ascertainable interest of judgment obligor in real estate.

If it appears that the judgment obligor has an interest in real estate in the place in which proceedings are had, as mortgagor or mortgagee or otherwise, and his interest therein can be ascertained without controversy, the receiver may be ordered to sell and convey such real estate or the interest of the obligor therein; and such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution, and the proceedings thereon shall be approved by the court before the execution of the deed. (Sec. 42, Rule 39)

Proceedings when indebtedness denied or another person claims the property.

If it appears that a person or corporation, alleged to have property of the judgment obligor or to be indebted to him, claims an interest in the property adverse to him or denies the debt, the court may authorize, by an order made to that effect, the judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt within one hundred twenty (120) days from notice of the order, and may punish disobedience of such order as for contempt. Such order may be modified or vacated at any time by the court which issued it, or by the court in which the action is brought, upon such terms as may be just. (Sec. 43, Rule 39)

Entry of satisfaction of judgment by clerk of court.

Obligor may pay execution against obligee. After a writ of execution against property has been issued, a person indebted to the judgment obligor may pay to the sheriff holding the writ of execution the amount of his debt or so much thereof as may be necessary to satisfy the judgment, in the manner prescribed in section 9 of this Rule, and the sheriff's receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the judgment obligee on the execution. (Sec. 39, Rule 39)

Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the return of a writ of execution showing the full satisfaction of the judgment, or upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel on the face of the record of the judgment. (Sec. 44, Rule 39)

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Entry of satisfaction with or without admission. Whenever a judgment is satisfied in fact, or otherwise than upon an execution, on demand of the judgment obligor, the judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction as provided in the last preceding section, and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. (Sec. 45, Rule 39)

When principal bound by judgment against surety.

When a judgment is rendered against a party who stands as surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety's request to join in the defense. (Sec. 46, Rule 39)

SC Circular 10 – 25 – 2000

Regalado Notes. What are the two senses by which the term “final order” is used? 1. Issue of Appealability. For purpose of appeal, an order is “final” if it disposes of the action, as distinguished from an interlocutory order which leaves something to be done in the trial court with respect to the merits of the case. 2. Issue of Binding Effect. For purposes of binding effect or whether it can be subject of execution, an order is “final” or executory after the lapse of the reglementary period to appeal and no appeal has been perfected. Must the party who won the appeal wait for the records of the appellate court to be remanded to the trial court before he can move for an execution? No. The prevailing party can secure certified true copies of the judgment or final order of the appellate court and the entry thereof, and submit the same to the court of origin with and to justify his motion for a writ of execution, without waiting for its receipt of the records from the appellate court. That motion must be with notice to the adverse party, with a hearing when the circumstances so require, to enable him to file any objection thereto or bring to the attention of said court matters which may have transpired during the pendency of the appeal and which may have bearing on the execution sought to enforce the judgment. What is the remedy when the trial court, for its own reasons or other unjustifiable circumstances, unduly delays or unreasonably refuses to act on the motion for execution or issue the writ for a final judgment or order of the appellate court? On motion in the same case while the records are still with the appellate court, or even

after the same have been remanded to the lower court, the appellate court can direct the issuance of the write of execution since such act is merely in the enforcement of its judgment and which it has the power to require. What are the instances when a trial court can reasonably refuse to issue a writ of execution for a judgment or order that has become executory? 1. When subsequent facts and circumstances transpire which render such execution unjust or impossible, such as a supervening cause. 2. On equitable grounds, as when there has been a change in the situation of the parties which makes the execution inequitable. 3. Where the judgment has been novated by the parties. 4. When a petition for relief or an action to enjoin the judgment is filed and a preliminary injunction is prayed for and granted. 5. Where the judgment has become dormant, the 5year period under Sec. 6 of Rule 39 having expired without judgment having been revived. 6. Where the judgment turns out be incomplete or is conditional, since as a matter of law, such judgments cannot become final. What is the remedy from a denial of a motion for execution? The remedy is an appeal. (Socorro v. Ortiz, 24 December 1964) When is a quashal of a writ of execution proper? The quashal of a writ of execution is proper when: 1. The writ of execution was improvidently issued 2. The writ is defective in substance 3. The writ is issued against the wrong party 4. The judgment was already satisfied. 5. The writ was issued without authority. 6. There is a change in the situation of the parties which renders execution inequitable. 7. The controversy was never validly submitted to the court 8. The writ of execution varies the terms of the judgment. 9. The writ is sought to be enforced against property exempt from execution 10. There is ambiguity in the terms of the judgment. Can the court amend a judgment that has become executory? Generally, it cannot. EXCEPTIONS: a. To make corrections of clerical errors, mistakes or omissions. b. To clarify an ambiguity which is borne out by and justifiable in the context of the decision, especially if the parties acquiesced thereto. c. In judgments for support, which can always be amended from time to time, in light of the circumstance of the parties.

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What are the remedies against a judgment or order which has become executory? 1. Petition for Relief (Rule 38) 2. Direct attack against the judgment 3. Collateral attack against the judgment. When can the trial court grant discretionary execution? Discretionary execution may be granted by the trial court a. while it has jurisdiction over the case and b. is still in possession of the original record thereof or the record on appeal in those instances where the latter is required. When can an execution pending appeal be filed with the appellate court? If the trial court has lost jurisdiction over the case be reason of perfection of the appeal from the judgment therein, the motion for execution pending appeal may be filed in the appropriate appellate court to which the original record or on the record on appeal shall have consequently been elevated. Can a decision of the CA, in the exercise of its original jurisdiction, be immediately made executory by the CA? No. In original actions filed in the CA, said court has no authority to issue immediate execution pending appeal of its own decision therein. Once final and executory, the judgment on appeal must be remanded to the lower court where a motion for execution may be filed after its entry. In other words, the judgment in such cases cannot be executed before its finality; it cannot be enforced by discretionary execution. (Heirs of Justice Reyes, v. CA, 16 August 2000) This should not be confused with the procedure outlined in the 2 nd paragraph of Sec. 2 (a) of Rule 39, which governs discretionary execution of the decisions of the Regional Trial Court, which is on appeal in the CA and the RTC has already lost jurisdiction over the case. In moving for a stay of discretionary execution, what is a supersedeas bond? A supersedeas bond is an auxiliary process designed to supersede enforcement of a TC’s judgment brought up for review, and its application is limited to the judgment from which an appeal is taken. In modern practice, the term is used synonymously with a “stay of proceedings” and designates the effect of an act or proceeding which in itself suspended the enforcement of a judgment. What are the instances or good reasons when even before the judgment has become executory and before appeal was perfected can the court in its discretion, may order execution as stated in a special order by said court?

1. Where the lapse of time would make the ultimate judgment ineffective 2. Where the appeal is clearly dilatory 3. Where the judgment is for support and the beneficiary is in need thereof. 4. Where the articles subject of the case would deteriorate, and hence under Sec. 15 (a) of Rule 39, the court can fix the time for notice of execution sale of perishable property. 5. Where defendants are exhausting their income and no other property aside from the proceeds of the subdivision lots subject of the action. 6. Where the judgment debtor is imminent danger of insolvency 7. Where the prevailing party is of advanced age and in a precarious state of health and the obligation in the judgment is non-transmissible 8. Where there is uncontradicted evidence showing that, in order to house machineries which they were forced to place on a public street, movants were in extreme need of the premises subject of the suit and the possession whereof was adjudged to them in the trial court’s decision, and the corresponding bond to answer for damages in case of reversal of appeal had been posted by them. 9. Where the case involved escrow deposits and the prevailing party posts sufficient bond to answer for damages in case of reversal of judgment. What is the remedy against an order granting execution pending appeal where the order is not founded upon good reasons? Certiorari. The fact that the losing party had also appealed from the judgment does not bar the certiorari proceedings as the appeal could not be an adequate remedy from such premature execution. An execution pending appeal can be awarded for actual, moral and exemplary damages prayed for in the complaint. True or False. False. Where from the decision and the evidence presented before the trial court, the judgment creditor is clearly entitled to actual damages, the same can be the subject of execution pending appeal, but NOT the other awards for moral and exemplary damages and attorney’s fees. (RCPI v. CA, 31 January 1985) What is the effect of a reversal of an executed judgment? The property itself must be returned to the judgment debtor, if the same is still in the possession of the judgment creditor, plus compensation to the former for the deprivation and use of property. This can be effected by motion to the trial court. If restitution of the property is impossible, how should compensation be made? a. If the purchaser at the public auction was the judgment creditor, he must pay the full value of

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the property at the time of its seizure, plus interest thereon. b. If the purchaser at a public auction was a third person, the judgment creditor must pay the judgment debtor the amount realized from the sale of said property at the sheriff’s sale, with interest thereon. c. If the judgment award was reduced on appeal, the judgment creditor must return to the judgment debtor only the excess which he received over and above that to which he is entitled under the final judgment, with interest on the excess. Can a writ of execution be enforced if the levy was made after the five year period? No. If no levy was made within the 5-year period, the writ of execution may no longer be enforced even if it was issued within the 5-year period. If a writ of execution was issued and levy made on the property within the 5-year period, the sale of property thereafter will be valid provided it is made within the 10 year period. Does the failure to object to a motion for a writ of execution issued after 5 years from final judgment validate the writ? No, the question of jurisdiction of the court is involved and jurisdiction cannot be conferred by the will of the parties. When will execution issue against the estate of the judgment debtor? If the judgment is for a sum of money, and the judgment obligor dies before the levy has been made on his property, such judgment cannot be enforced by writ of execution but must be filed as acclaim against his estate. However, if the judgment obligor dies after the entry of judgment but before levy on his property, execution will issue if it be for the recovery of real or personal property. Provided that, if judgment obligor dies AFTER levy has been made, the execution sale may proceed, It is the actual date of levy on execution which is the cut-off date. Can a party aggrieved by a writ of execution granted by the TC appeal? No. An order granting the issuance of a writ of execution of a final judgment is not appealable. Appeal is a remedy from an order DENYING the issuance of a writ of execution. A party who has voluntarily executed a judgment, partially or in toto, or who voluntarily acquiesces in or ratifies, either partially or in toto, the execution of such judgment is not permitted to appeal from it. True or False. True.

Is contempt of court the remedy against a party who refuses to yield possession of a property as ordered by a writ of execution? No. The sheriff must oust said party from the property but if demolition is involved, there must be a hearing on motion and due notice for the issuance of a special order under Sec. 14 of Rule 39. What is a special “break-open” order? A special “break-open” is an order from the court authorizing the sheriff to destroy, demolish or remove improvements on property subject of execution. (Sec. 10 (d), Rule 39). However, a writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a habere facias possessionem and authorizes the sheriff, without need of securing a “break-open” order, to break open the premises where there is no occupant therein. (Arcadio v. Ylagan, 30 July 1986) What is the special judgment in Sec. 12 of Rule 39? How is it different from execution of judgments for specific acts? It is a judgment which requires the performance of any act, other than the payment of money or the sale or delivery or real or personal property, which a party must personally do because his personal qualifications and circumstances have been taken in to consideration. Judgments for a specific act under Sec. 10 of Rule 39, on the other hands, directs a party to execute conveyance of land or to deliver deeds or other documents, or to perform any other specific acts in connection therewith but which acts can be performed by persons other than said party. Hence, on refusal to comply, the court can appoint some other person to perform the act directed to be done at the expense of the disobedient party and the act when so done shall have the same effect as if performed by the party himself. What is levy? Levy means the act or acts by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale. Without a valid levy being made, any sale of the property thereafter is void. What is garnishment? If the property involved is money, stocks or other incorporeal property in the hands of third persons, the act of appropriation by the sheriff is known as garnishment. The garnishee will not be directed by the court to deliver the funds or property to the judgment creditor as the garnishment merely sets apart such funds but does not constitute the creditor as the owner of the garnished property.

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Is the garnishment of a bank deposit a violation of RA 1405 (Secrecy of Bank Deposits Law)? No. It is not a violation of the said law, as it does not involve an inquiry or examination of such bank deposit. (China Banking Corp., v. Ortega, 31 January 1973) As to property exempted from execution, are sophisticated tools of advanced technological design exempt? No. Sophisticated tools of advanced technological designs with considerable value, such as power tools used in industrial or commercial concerns are NOT exempt. Are benefits from life insurance ext from execution? Yes. All monies, benefits, privileges or annuities accruing or growing out of any life insurance are now exempt regardless of the amount of the premiums paid. However, this exemption does not apply to non-life insurance coverage. When can property exempted from execution still be claimed in an execution judgment? The exemptions enumerated under the Sec. 13, Rule 39 cannot be claimed, if a. the judgment is for the recovery of the unpaid price of the article involved. b. the judgment is for the foreclosure of a mortgage on the property. Aside from those specifically enumerated under the Rules, what other properties are specially exempted? 1. Property mortgaged to the DBP. 2. Property taken over by the Alien Property Administration 3. Savings of national prisoners deposited with the Postal Savings Bank. 4. Backpay of pre-war civilian employees 5. Philippine Government backpay to guerrillas. 6. Produce, work animals and farm implements of agricultural lessees subject to limitations. 7. Benefits from private retirement systems of companies and establishments, with limitations. 8. Laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance. 9. Benefits from the SSS 10. Copyrights and other rights in intellectual property under the former copyright law. 11. Bonds issued by RA 1000 What is the life time of the writ of execution? The lifetime of the writ of execution corresponds to the period within which the judgment may be enforced by motion (within 5 years from entry thereof) since thereafter such judgment becomes dormant and subject to a revival action. Within the period for its enforceability and from its receipt by the officer tasked with its enforcement, the officer shall make periodic reports

to the court as required by Sec. 14 of Rule 39, until the judgment is fully satisfied or becomes ineffective. What is the effect of the bond filed by the prevailing party as regards the third party claim? Where a third party claim has been filed in due form, the prevailing party can compel the sheriff to proceed by the filing of a bond to answer for damages that may be incurred as a consequence of the execution. On the other hand, if the sheriff proceeds with the sale, without such a bond, he will be personally liable for such damages as may be sustained by and awarded to the third-party claimant. (Bayer Phil. Inc., v. Agana, 8 April 1975) What is the remedy of a third party whose claim was disregarded by the sheriff because of a bond filed by the prevailing party or the court denies the third party claim? The remedy of the third party claimant is to file an independent reinvindicatory action against the judgment creditor or the purchaser at public auction. The third party claimant cannot appeal nor avail of certiorari as a remedy, since he is not a party to the original action. What are the remedies outlined under Sec. 16 of Rule 39 for third party claimants? Are the remedies cumulative? 1. Summary hearing before the court which authorized the execution. 2. TERCERIA – third party claim filed with the sheriff 3. Action for damages on the bond posted by the judgment creditor. 4. Independent reinvindicatory action Yes, these are cumulative remedies and may be resorted to by a third party claimant independently of or separately form and without need of availing of the others. Differentiate third party claims in execution proceedings with third party claims arising from attachment proceedings (Sec. 14, Rule 57) and in replevin suits (Sec.7, Rule 60)? A third party claimant seeking to vindicate his claim to the property, or a judgment oblige with a claim for damages may enforce their claims in a separate action instituted for that purpose and NOT in the same court where the execution proceedings are being conducted. On the other hand, such third party claims contemplated and arising in attachment proceedings and in replevin suits may be litigated in the same action involved or in a separate suit. The reason for the difference is that the judgment in the case subject of execution is already final and executory, while Rules 57 and 60 involve actions still pending in the trial court.

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Can the judgment creditor bid and purchase at the public auction? How about the execution sheriff? The judgment creditor can bid and purchase at the public auction. (Sec. 21, Rule 39). But the officer conducting the execution sale or his deputy are disqualified. Other persons disqualified from participating in execution sale are enumerated in Article 1491 of the Civil Code. What is the remedy against an irregular sale? The remedy against an irregular sale is a motion to vacate or set aside the sale to be filed in the court which issued the writ of execution. What is the measure of damages to which the judgment creditor is entitled against the refusing purchaser or unlawful intervenor under Sec. 20 of Rule 39? The amount would be the difference between the amount which would have been realized were it not for the illegal intervention (but not to exceed the judgment account) and the total amount which he actually recovered on the judgment from all sources, including the amount actually realized at the auction sale, plus the expenses incurred as a consequence of the illegal intervention. (Mata v. Lichuaco, 36 Phil. 809) In the execution sale, the bidding was not completed on the Thursday, it was supposed to be scheduled. The sheriff is coming down with a flu and unilaterally decides to reset the meeting to next Monday. Is the sheriff’s action valid? No. The officer may adjourn the sale from day to day if it is necessary to do so for lack of time to complete the sale on the date fixed in the notice. He may NOT adjourn the sale to another date, unless with the written consent of the parties. Otherwise the sale thus conducted will be null and void. (Abrozar v. IAC, 15 January 1988) A Rolex watch was levied upon and was sold in an execution sale on March 1, 2003. The judgment debtor and owner of the watch wanted to redeem his watch on February 29, 2004. Should redemption be allowed? No. There is no right of redemption where the property sold at judicial sale is personal property. A house and lot was levied and sold under an execution sale on December 1, 2004. The certificate of sale was given by the executing officer to Purchaser X only on January 4, 2005 because of the confusion of the Christmas season. The Judgment Debtor Z wants to redeem the property from the purchaser and offered the purchase price in cash to him on December 24, 2005. Purchaser X, being an old Scrooge refuses to accept, saying that the period for redemption has already expired. Is the refusal proper?

No. The period of redemption has not run at all because the period for redemption only begins to run from the registration of the certificate of sale in the registry of deeds. In this case, the certificate of sale has not been registered and thus, the period for redemptions does not run. (Garcia v. Ocampo, 105 Phil. 102) Can the purchaser and judgment debtor agree that the period of redemption be shortened into six months from the registration of the certificate of sale? Yes. Where the parties agreed on the date of redemption, the statutory period for legal redemption was converted into one of conventional redemption and the period binding on them is that agreed upon. (Lazo v. Republic Surety & Insurance Co., 30 January 1970) The certificate of sale of real property confers the right of possession and ownership of the real property subject of the execution sale to the purchaser. True or False. False. The certificate of sale of real property is merely a memorial of the fact of the sale and does not confer any right to the possession, much less the ownership, of the real property purchased. It is the deed of sale executed by the sheriff at the expiration of the period of redemption which constitutes effective conveyance of the property sold and entitles the purchaser to possession of the property sold. When is a lien created as to grant the lien holder a right to redeem? Although the redemptioner is defined as one who has a lien by attachment or judgment, the same does not per se create such lien as it is the levy pursuant to said writ of attachment or judgment that creates a lien on the property. Hence the definition under the Rules have been restated to read that such lien is “by virtue” thereof. Can a creditor, whose lien is prior to the judgment under which the property is sold, redeem the property? No. A redemptioner is defined as a creditor with a lien subsequent to the judgment which was the basis of the execution sale. If the lien of the creditor is prior to the judgment under which the property was sold, he is not a redemptioner and therefore can NOT redeem property. The interests of a creditor with a prior lien are fully protected, since any purchaser at the public auction of said property takes the same, subject to such prior lien which he has to satisfy. The judgment debtor or the redemptioner need not prove their right to redeem. True or false. False. Unlike the judgment debtor, a redemptioner must prove his right to redeem by

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producing the documents called for by Sec. 30 of Rule 39. Can there be partial redemption of real property? Yes. Where several parcels of land were sold at a public auction to satisfy a judgment, the defendant may redeem some of the properties by paying the prices at which there were sold at the auction sale. Piece-meal redemption is allowed since, in the redemption of properties sold at an execution sale, the amount payable is no longer the judgment debt but the purchase price. (Dulay v. Cariaga, 29 July 1983) The rule is different in the redemption of properties mortgaged with the PNB or Development Bank and which are foreclosed judicially or extra judicially, since under the provisions of their respective charters, the redemptioner must pay all the amounts owed by the debtor on said mortgage. The same rule applies to foreclosures by banking institutions in view of the provisions of Sec. 78 of RA 337. Is there a difference in the periods of redemption by a judgment debtor and a redemptioner? Yes. The judgment debtor has always one year from the registration of the certificate of sale within which to redeem, regardless of whether there have been any prior redemptions and the date of such redemptions; and the moment said judgment debtor redeems, there shall be no further redemption. The redemptioner must redeem within the one-year period, if he is the first redemptioner, and within 60 days from the last redemption, if he be a subsequent redemptioner, provided that the judgment debtor has not exercised his right of redemption.

From the prior example, the judgment debtor wants to lease the vacation house in Tagaytay to his high school sweetheart for six months immediately after the registration of the certificate of sale to generate money for the redemption. The purchaser got wind of the lease agreement and asked the debtor’s former fling to pay the lease payment to him rather than to the judgment debtor. The former sweetheart complied with the request and gave the payments to the purchaser. Can the judgment debtor recover the lease payments? Yes. All rents, earnings and income derived from the property pending redemption shall belong to the judgment debtor until the expiration of his period of redemption, and not to the purchaser or rdemptioner. When is the purchaser or redemptioner substituted for the judgment obligor as to the property sold at an execution sale? Upon the expiration of the right to redemption. However, he shall acquire all the rights, title, interests and claims of the judgment obligor to the property as of the time of the levy. What is the reckoning period of the rights of the purchaser to the property sold at an execution sale? The right of the purchaser to the property retroacts to the date of the levy. This fixing of the date is important because, since the sale retroacts to the date of the levy, any disposition or lien in favour of third person created by acts of the debtor after the levy on real property shall NOT be binding against the purchaser to whom a final deed of sale was subsequently issued. (Guerrero v. Agustin, 27 April 1963)

During the period of redemption, what are the rights of the judgment debtor? The judgment debtor is entitled to the following rights: 1. right to possess the property 2. right to receive the fruits of the premises 3. right not to be required to pay rent to the creditor or purchaser.

After the deed of sale has been executed, is the purchaser therein entitled to a writ of possession? Yes. But the writ of possession shall issue only where it is the judgment debtor or his successors in interest who are in possession of the premises. Where the land is occupied by a third party, the court should order a hearing to determine the nature of his adverse claim.

A vacation house in Tagaytay was sold in an execution sale. After 11 months from registering the certificate of sale, the purchaser asked the sheriff if he could use the vacation house for his 2 month break from work. The sheriff allowed the purchaser’s request. The judgment debtor now comes to you for advice. What would you do? File an action for forcible entry. If the sheriff puts the purchaser at the public auction in possession of the land during the one-year period of redemption, an action for forcible entry lies against the sheriff and said purchaser. (Fabico v. Ong, 43 Phil. 572)

What are the options given to a purchaser where the execution sale was not effective under the conditions in Sec. 34 of Rule 39? The purchaser may: (Belleza v. Zandaga, 98 Phil. 702) a) Bring a separate action or file a motion in the same action against the judgment creditor for the amount paid by him at the judicial sale b) File a motion in the same action where execution was issued for the revival of the judgment in his name against the judgment debtor. c) Bring an action to recover possession of the property sold to him at public auction.

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What are the bases by which an entry of satisfaction of judgment shall be made in the court docket and in the execution book? a. The return of an execution satisfied by action of the sheriff in accordance with Sec. 44 of Rule 39. b. An admission of the satisfaction of judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment oblige or his counsel c. The indorsement of such admission by the judgment creditor or his attorney on the face of the record of the judgment. d. By order of the court, upon satisfactory proof of such satisfaction of judgment. Is the surety bound by the judgment against the principal by mere notice of the action or proceeding? No. The converse of Sec. 46 of Rule 39 is not true. In order that the surety may be bound by the judgment against his principal, such surety must be impleaded in the action or given an opportunity to be heard, otherwise the writ of execution issued against the surety is void. (Luzon Surety Co. v. Beson, 30 January 1970) Bautista Notes What is a good reason for allowing execution pending appeal? The good reason for allowing execution pending appeal constitutes such superior circumstances demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment. The mere filing by the judgment creditor of a bond is not by itself a “good reason” to justify immediate execution, otherwise immediate execution would become routinary. Nor would it be a “good reason” for the issuance of immediate execution that the appeal is frivolous and dilatory because this would be pre-emptive of the right of the appellate court to adjudicate the appeal. (Ong v. CA, 203 SCRA 38) What judgments are immediately final and executory and whose enforcement is not stayed by an appeal taken therefrom? 1. Actions for Injunction 2. Actions for Receivership 3. Actions for Accounting 4. Actions for Support 5. Judgments upon compromise 6. Judgments in forcible entry and unlawful detainer cases (Sec. 19, Rule 70) 7. Judgments in Direct Contempt. (Sec. 2, Rule 71) What in the decision of the court is subject to execution? Only the dispositive part of a judgment is subject to execution.

Conditional or incomplete judgments cannot be executed nor may execution of a judgment still issue where this judgment had been novated by a contract executed subsequent thereto. Can the sheriff levy on the personal property of judgment obligor that has been mortgaged? No. Where personal property of the judgment obligor has been mortgaged, the sheriff cannot levy on the property itself but only on the obligor’s right and equity therein. (Northern Motors, Inc. v. Coquia, 66 SCRA 415, 68 SCRA 374) What is the right given to the transferee of the judgment debtor’s right of redemption? Where the judgment debtor transfers his right of redemption, then his transferee shall redeem the property under the right of such judgment debtor as he shall thence be subrogated to the rights and obligations of the judgment debtor. Can the one year period of legal redemption be extended? As a general rule, the one year period for redeeming real property from execution sale cannot be extended, so that after the expiration of the period the title should be consolidated in the vendee. (Cenas v. Santos, 204 SCRA 53) But where the redemptioner and the judgment oblige cannot agree on the redemption price and the redemption period is about to expire the redemptioner may preserve his right of redemption through judicial action which must however be filed within the one-year redemption period and the filing of such court action would be equivalent to a formal offer to redeem, preserving his redemptive rights and “freezing” the expiration of the one-year period. (Hi-Yield Realty Inc., v. CA, 12 September 2002) Differentiate Redemption by Judgment Debtor and Redemption by a Redemptioner. Judgment Debtor Redemptioner Time of One year from Sixty days from Redemption the date of the the last sale redemption Amount to Pay the purchase Price which be Paid price, taxes paid constitutes the by the judgment value of the lien creditor and of the subsequent interest of 1% redemptioner and per month interest of 2% per month, plus taxes paid Finality of Once redeemed Can be subject to Redemption by judgment a subsequent debtor, no further redemption redemption may be allowed.

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Is the penalty of contempt for non payment of a money judgment unconstitutional or is prohibited under the right against imprisonment for debt? No. The imposition of penalty for contempt upon the judgment obligor who fails to comply with an order to pay a money judgment in fixed monthly instalments does not constitute imprisonment for debt. The debtor is then being punished for disobeying an order of the court, else the court would be powerless to enforce its order for payment and the creditor would have no remedy for the collection of his just debt. (Reeves v. Crownshield, 274 NY 74, 1937) What are the grounds to stay execution of a final judgment? 1. Relief 2. Injunction 3. Equitable grounds Within what time may you move for execution of judgment? Five years. Can a revived judgment also be revived? Yes. You have another ten years to revive it. OUTLINE OF TYPES OF JUDGMENT I. MONEY JUDGMENT A. Procedure 1. Motion for Execution 2. Order of Execution 3. Writ of Execution 4. Levy (Levy is effected by taking physical possession or by garnishment) B. Choosing Property to be Levied. Under Sec. 9 (b), Rule 39, the judgment debtor is given the option to choose which property the officer shall levy. If the judgment debtor does not exercise the option, the officer shall first levy on personal property if any and then on real properties if the personal properties are insufficient. C. Execution Sale 1. Notice - Written notice in 3 public places preferably in conspicuous areas of the municipal or city hall, post office and public market - Duration of notice will depend on the type of property - Notice by publication is also necessary in case the sale involves real property is the value of such exceeds P50,000.00. The notice must be once a week for 2 consecutive weeks in a newspaper selected by raffle, whether in English, Filipino or any major regional language.

- The notice requirement is for the benefit of the judgment debtor. The notice informs potential bidders of the sale. This facilitates debt rehabilitation. - If these notice requirements are not complied with, the sale is voidable at the instance of the judgment debtor, unless the judgement debtor was in connivance with the sheriff. - Sec. 17, Rule 39 provides the penalty for selling without notice, removing or defacing notice. 2. Auction - The auction sale can be postponed under Sec. 22, Rule 39. However, there must be a notice as to postponement. - The highest bidder shall get the object being sold. The highest bidder always pat cash. Even if the judgment creditor is the highest bidder, he must pay cash where there’s a 3rd party claim. 3. Certificate/ Deed of Sale 4. Redemption(s) - There might be more than one redemption. - Only real property may be redeemed. - The following persons may redeem (Sec.27, Rule 39) a. Judgment Obligor b. Redemptioner = a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. - If the redemption is made by the judgment debtor, then there can be no more possible redemptions. - Generally, the period for redemption cannot be extended. - During the period of redemption, possession remains with the judgment debtor. If there is a lease, the rents would go to the judgment debtor. II. JUDGMENTS FOR SPECIFIC ACTS a. Conveyance, delivery of deeds or other specific acts; vesting title. b. Sale of real or personal property c. Delivery or restitution of real property d. Removal of improvements on property subject of execution e. Delivery of personal property III. SPECIFIC JUDGMENTS - An example of a special judgment is a judgment ordering a judgment debtor to sing in a concert. - If the judgment debtor does not wish to comply with the special judgment, then he may be cited for contempt. - Under Sec. 13 (k), Rule 39, life insurance proceedings are exempt. There is no limit as to the

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amount. - Under Sec. 13 (d), Rule 39, necessary clothing is limited for ordinary personal use. - 3rd parties have the same remedies as in provisional remedies EXCEPT intervention,. The 3 rd party is not a party to the case. Since he is not a party, he can always file damages in a separate action. 1. Third Party Claim - If the 3rd party claim is denied by the court, rd the 3 party claimant cannot attack the denial via Rule 65, certiorari. The remedy of the 3 rd party claimant would be to intervene. 2. Reinvindicatory Action - Action to recover title 3. Damages - Recover against the indemnity or sheriff’s bond within 120 days from the date of the filing of the bond. 4. Cancel Annotation - See Property Registration Decree - These Remedies are cumulative (NOT mutually exclusive). However, the 3rd party claimant CANNOT recover twice. IV. FLOW OF EXECUTION 1. Judgment becomes final 2. Motion for Execution filed by judgment creditor 3. Order of Execution of the court (NOT APPEALABLE) 4. Writ of Execution issued by the clerk of court in the name of the court in which the judgment or order is entered. 5. Levy in Execution. The procedure in execution sale is more in ordinary judgment or judgment for payment of a sum of money. 6. Sale. In sale, the procedure is: notice, publication, auction, certification, delivery, registration, redemption. 7. Return of the Writ. V. PROCEEDINGS IN AID OF EXECUTION 1. 2. 3. 4.

Examination of Judgment Debtor Examination of Debtors of the Judgment Debtor Instalment Receivers

Villamor v. Napocor FACTS: NAPOCOR filed suit against Carlos Villamor for expropriation of lot owned by Villamor to install transmission lines for its 230KW interconnection project. RTC granted petition and issued writ of possession against the lot. NAPOCOR deposited P23,115.70 to PNB. NAPOCOR amended complaint to include two more lots and was again issued a writ of possession. RTC expropriated the lots for P3.9126M (for the land) and P1.021M (for improvements). NAPOCOR filed a notice of appeal on 2 March 1998. In 16 March 1998, Villamor filed for execution

pending appeal. TC granted execution pending appeal, since there was an absence of NAPOCOR’s objection on the commissioner’s report. CA annulled the TC’s execution order and ordered Villamor to pay P4.9M. ISSUE: WON execution pending appeal was proper? No. RATIO: TC only loses jurisdiction when an appeal is perfected and the period to file the same has lapsed. Villamor was not able to receive order denying MR’s resolution. Since Villamor was uninformed, there was no period by which to count the appeal and thus, the period did not run at all. Villamor had no good reason for filing an execution pending an appeal. NAPOCOR’s failure to object to the commissioner’s report is not a sufficient reason and neither was there a showing that NAPOCOR would fail to answer its obligations. The appeal made by NAPOCOR was also not dilatory. If judgment is executed, there might be damages, despite restitution. *What are the requisites for the proper grant of a discretionary execution pending appeal? 1. motion by the prevailing party 2. good reason 3. good reason must be stated in the special order. Diesel Construction v. Jollibee FACTS: DCCI constructed buildings in Laguna for Jollibee. DCCI filed for action for recovery of escalated construction costs. In response, Jollibee filed a counterclaim, saying that DCCI failed to complete the projects on time. TC found that DCCI had completed the projects on time and is entitled to escalated construction costs from Jollibee. On 7 July 1997, DCCI filed a motion for execution because it was in financial distress and needed the money, but on 14 July 1997, DCCI filed a notice of appeal. RTC granted execution since it was a matter of right and that DCCI would post a bond. DCCI filed for motion for issuance of writ of execution in the CA. CA ordered RTC to grant the execution but to stay the execution upon filing of a supersedeas bond by Jollibee. ISSUE: Can the CA be compelled to enforce execution order of RTC? No. RATIO: DCCI filed a petition asking for issuance of execution of decision of RTC from the CA. The grant of the writ of execution is not a ministerial duty of the CA and CA cannot be compelled to enforce special order of TC because CA has separate discretionary power. TC lost jurisdiction upon transmittal of records to CA. Only CA, in this case, can grant discretionary execution. Also, that DCCI was in financial distress was not a good reason to order the execution. Camacho v. CA

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FACTS: An action for specific performance was filed against Aurora Camacho based on the deeds of sale over the land. TC, CA, and SC ordered Camacho to segregate the lots in favour of the five purchasers. The SC decision became final and executory in 23 May 1983. A writ of execution was granted in 26 August 1983. Camacho moved for deferment of the execution because of the absence of the subdivision plan. TC, CA and SC denied the deferment. On 26 September 1986, a new writ of execution was issued in the name of the Aurora Camacho. The issuance of the new writ was due to the continued unenforcement of the judgment against Camacho because Camacho refused to surrender her title and subsequently, transferred the title to her daughter. The TC which heard the case was vacated due to the loss of the judge. On 15 June 1992, a new writ of execution was again asked for. TC denied the new writ because it was for an alias writ which should have been filed within a five year period from the time the SC decision on the motion for deferment was final (26 February 1986). CA reversed TC, saying the period for filing an alias writ has not tolled. ISSUE: WON a new writ should be issued. Yes. RATIO: Based on principles of equity, SC ruled that a writ of execution should be granted even if filed two and half years after finality of judgment because the delays were not due to the movant’s fault but to the due deferment of Camacho and the vacancies of judges in the trial court. Chinabank v. Ordinario FACTS: Chinabank granted three loans (P27.353M) to Trans American, which was owned by the spouses Garcia. The loan was secured by a registered REM on 45 parcels of land. Trans American defaulted and Chinabank extrajudicially foreclosed the REM in a public auction and was the highest bidder. Chinabank filed for a writ of possession. RTC granted the writ. Spouses Ordinario filed an MR claiming that they had purchased the land under TCT 7637. TC denied Ordinario’s MR. CA granted MR and excluded TCT 7637 from the writ of possession. ISSUE: WON the MR of Spouses Ordinario should be granted? No. RATIO: Ordinario’s MR in the case involving the writ of possession was a procedural misstep because the Spouses Ordinario were not parties to the case. They were third party purchasers of the land. The remedies of a third party claimant in cases where the property subject of execution belongs to a third party are: a. TERCERIA – WON sheriff rightly took hold of property which did not belong to the judgment debtor. b. SEPARATE ACTION – vindicate the claim of ownership. The remedies are cumulative. Phil. Bank of Commerce v. CA

FACTS: PBC filed two collection suits against Fortune Motors and Forte Merchant, with Joseph Chua as surety. PBC ran after Chua who had a property situated in Makati but was earlier transferred to Jaleco Development. The transfer to Jaleco was made with Chua’s wife consent. PBC filed an action for annulment of the sale of the property for being in fraud of creditors. TC ruled for PBC in the collection suit but could not issue execution because of the pending action. Thereafter, TC declared sale of land to Jaleco to be void and upon finality of the decision, Chua’s property was levied. Chua’s wife filed a third party claim with the Sheriff and two other reinvidicatory actions. PBC filed a motion to direct sheriff to enforce the writ of execution. RTC denied PBC’s motion. CA dismissed PBC’s petition and said the determination of WON Chua’s wife is a stranger to the case is best left with the TC. ISSUE: WON Chua’s wife is considered a stranger to entitle her to remedies in Sec. 17, Rule 39? No. RATIO: A wife is not considered a stranger who is entitled to the remedies of a third party claimant in an action to recover properties subject of execution. In this case, the wife gave marital consent and did not intervene properly when the case was being litigated. Chua family had control of Jaleco and continued to stay in the Makati property despite being sold to Jaleco. The transfer to Jaleco was a sham. DBP v. Unionbank FACTS: Unionbank sought collection of monthly rentals and damages from DBP. DBP counters saying liability does not attach until it receives rentals from Foodmaster Company. TC ruled for Unionbank. CA ordered Foodmaster to pay DBP P32M for unpaid rentals and ordered DBP, after payment by Foodmaster, to pay 30% to Unionbank of what it remits from Foodmatser. SC affirmed CA decision (2 August 2000) Unionbank filed for execution against DBP and DBP likewise filed the same against Foodmaster. TC granted the writ of execution and authorized deputy sheriff to execute CA judgment. In a MR, TC denied the MR saying that the writ of execution against Foodmaster was NEVER implemented. CA denied DBP’s petition for certiorari. RATIO: Writ of execution must conform to the dispositive portion of the decision. The variance between the execution by the RTC and the CA decision was that the CA decision involved a two step process, while the execution ordered by the RTC was for the immediate payment of a single obligation. The RTC writ of execution was vague. The body and dispositive portion of the CA decision acknowledged DBP’s obligation to Unionbank and the obligation is contingent with the liability of Foodmaster for payment of rentals. The liability of DBP for the principal is in a separate court. Writ of execution was declared null and void.

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Perla Compania v. Remolete FACTS: A jeepney owned by Nelia Enriquez and driven by Cosem Casas collided with a privately owned jeep and killed Palmes, Calixto and Borbon. The widow of Palmes filed a complaint against Enriquez and Casas. TC ruled for Palmes and ordered Enriquez to pay actual, moral, compensatory and exemplary damages and attorney’s fees. Writ of execution was unsatisfied. Upon examination, Enriquez claims the occurrence was covered by third party liability insurance with Perla Compania. TC ordered a garnishment be issued against the insurance policy. Perla Compania filed an MR and a motion to quash, but both motions were denied. After two years, Perla filed with SC a R65 certiorari with the SC alleging Judge Remolete’s grave abuse of discretion. ISSUE: WON TC may issue garnishment on Perla’s insurance policy? Yes. RATIO: A garnishment is an attachment for reaching any property or credits pertaining or payable to a judgment debtor (forced novation) by substitution of creditors. TC can bind garnishee by service of writ of garnishment and garnishee need not be impleaded, because the garnishee is a virtual party or forced intervenor. Insurer assumes the obligation of paying injured third party. Separate action for garnishee is needed only if garnishee claims an interest in the property adverse to the judgment debtor or denies the debt.

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XX. New Trial or Reconsideration.

the evidence or law, it may amend such judgment or final order accordingly. (Sec. 3, Rule 37)

RULE 37

Resolution of motion. A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time it is submitted for resolution. (Sec. 4, Rule 37)

Grounds of and period for filing motion for new trial or reconsideration. Motion for New Trial

Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. (Sec. 1, Rule 37)

Second motion for new trial.

A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. (Omnibus motion rule) A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order. (Sec. 5, Rule 37)

Effect of granting of motion for new trial.

Motion for Reconsideration Within the same period, the aggrieved party may also move for reconsideration upon the grounds that: (Sec. 1, Rule 37) (a) the damages awarded are excessive, (b) that the evidence is insufficient to justify the decision or final order, or (c) that the decision or final order is contrary to law.

If a new trial is granted in accordance with the provisions of this Rule, a. the original judgment or final order shall be vacated, and b. the action shall stand for trial de novo; c. but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. (Sec. 6, Rule 37)

Contents of motion for new trial or reconsideration and notice thereof.

Partial new trial or reconsideration.

The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party.

Motion for New Trial

A motion for new trial shall be proved in the manner provided for proof of motions. (a) A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. (b) A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence.

Motion for Reconsideration

A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (Sec. 2, Rule 37)

Action upon motion for new trial or reconsideration. 1. The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, (Sec. 6, Rule 37) or 2. may deny the motion. (Sec. 9, Rule 37) 3. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to

If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (Sec. 7, Rule 37)

Effect of order for partial new trial.

When less than all of the issues are ordered retried, the court may either a. enter a judgment or final order as to the rest, or b. stay the enforcement of such judgment or final order until after the new trial. (Sec. 8, Rule 37)

Remedy against order denying a motion for new trial or reconsideration.

An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. (Sec. 9, Rule 37)

When to appeal.

An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days after notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (Sec. 2, Rule 40)

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Period of ordinary appeal.

The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (Sec. 3, Rule 41)

Regalado Notes Is there a difference between perfecting an appeal and taking an appeal? Yes. An appeal is taken by filing a notice of appeal and the appeal is perfected upon the expiration of the last day to appeal by any party. In cases where a record of appeal is required, appeal is taken by filing the notice of appeal and record on appeal, and the appeal is perfected upon the approval of the record on appeal. When should a motion for new trial be filed? A MNT should be filed with the period for appeal, that is, within 15 or 30 days from notice of judgement. A MNT suspends the running of the period to appeal but does not extend the time within which an appeal must be perfected (now, taken), hence, if denied, the movant has only the BALANCE of the reglementary period within which to perfect (take) his appeal. When is MNT considered pro forma? 1. It is based on the same ground as that raised in the a preceding MNT or MR which has already been denied. 2. It contains the same arguments and manner of discussion appearing in the prior opposition to the MTD and which motion was granted. 3. The new ground alleged in the second MNT already existed, was available and could have been alleged in the first MNT which was denied. 4. It is based on the ground of insufficiency of evidence or that the judgment is contrary to law but does not specify the supposed defects in the judgment. 5. It sis based on the ground of FAME but does not specify the facts constituting these grounds and/or is not accompanied by an affidavit of merits. Can there be a pro forma MR against interlocutory orders? No. The concept of pro forma MR is properly directed against a final judgement or order and not those against an interlocutory order. NOTE: “Where the circumstances of a case show an intent on the part of the pleader to delay the proceedings, and his motion reveals fide effort to present additional matters

do not merely a bona or to

reiterate his arguments in a different light, the courts should be slow to declare the same outright as pro forma. (Guerra Enterprises Co., v. CFI, L-28310, 17 April 1970). What is the effect of a MR that is based on the same grounds as that of MNT? A MR, if based on the same grounds as that for a MNT, is considered a MNT and has the same effect. (Rodriguez v. Rovira, 63 Phil. 476). What kind of fraud is necessary to be a ground for a new trial? Fraud, as a ground for a new trial, must be extrinsic or collateral, that is, it is the kind of fraud which prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure the judgment without fair submission of the controversy. It is to be distinguished from intrinsic fraud which refers to the acts of a party at the trial which prevented a fair and just determination of the case. What is the rule on mistake that would constitute as a ground for a MNT? Mistake generally refers to mistakes of fact, but may also conclude mistakes of law, where in good faith, the defendant was misled in the case. As a general rule, a client is bound by the mistakes of his counsel. Only when the application of this general rule would result in serious injustice should an exception thereto be applied. What is the rule on negligence? Negligence must be excusable and generally imputable to the party. But the negligence of counsel is binding on the client just as the latter is bound by he mistakes of his lawyer. However, the negligence of the counsel may also be a ground for a new trial, if it was so great such that the party was prejudiced and prevented from fairly presenting his case. What are the requisites for newly discovered evidence to warrant a new trial? 1. Must have been discovered after trial. 2. Could not have been discovered and produced at the trial despite reasonable diligence. 3. If presented would probably alter the result of the action. Is a motion for reopening the trial the same as a MNT? No. A motion for reopening the trial, unlike a MNT, is NOT specifically mention in the Rules, but is nevertheless a recognized procedural recourse or device deriving validity and acceptance from long established usage. It differs from a MNT, which is proper only after promulgation of judgment, since a motion to reopen may properly be presented only after either or both parties have formally offered and closed their

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evidence before judgment. Also, a MNT is based on the specific grounds mentioned under the Rules, while a motion to reopen the case is controlled by no other rule than the paramount interests of justice, resting entirely on the sound discretion of a trial court.

What is the danger of filing a pro forma MNT? When the TC declares an MNT to be pro forma, the movant loses his right to appeal. Thus, the decision becomes final and executory.

What should be contained in an affidavit of merits, necessary for a MNT? An affidavit of merits is one which states a. the nature or character of the FAME on which the MNT is based b. the facts constituting the movant’s good and substantial defenses or valid causes of action. c. the evidence which he intends to present if his motion is granted. An affidavit of merits should state facts and not mere opinions or conclusions of law.

FACTS: Danilo Cansimo, Linda de Jesus and Elena Mesa constructed houses in lots, believing that the land was public land. But, these lots were owned by Spouses Castro. Castro spouses filed in MeTC a complaint for unlawful detainer and treated the matter as a summary procedure. MeTC denied the complaint and ruled that the Castro’s should first prove prior physical possession of property in an ejectment suit. RTC affirmed MTC, saying that there was no proof of prior possession. In a motion for reconsideration in the RTC, the Castro spouses appended documentary evidence showing ownership over the land. RTC reversed itself and declared that the land belonged to Castro’s and was not public land. CA affirmed RTC, declaring that Cansino was not able to prove ownership.

What is the effect of a MNT that is not accompanied by an affidavit of merits? The MNT is denied. Is there an exception to the rule that affidavits of merits should accompany an MNT? Yes. An affidavit of merits need not be attached with an MNT, when: a. The judgment is null and void as where the court has no jurisdiction over the defendant or the subject matter. b. The judgment is procedurally defective as where judgment by default was rendered before the reglementary period to answer had expired. c. The defendant was unreasonably deprived of his day in court, as when no notice of hearing was furnished him in advance. What should be contained in an affidavit of merits for a MR? None. Affidavits of merits are NOT required in MR. Is an order denying an MR or MNT appealable? No. An order denying a MNT or MR is NOT appealable. The remedy of the movant is an appeal from the judgment or final order in due time. If the defendant file for a MNT or MR of the decision of the trial court, and the plaintiff seeks to perfect an appeal of the decision, what is the proper procedure for the trial court? The court should withhold action on the plaintiff’s appeal, until after the MNT or MR shall have been resolved. Bautista Notes The time for filing an MNT is the time for appeal. Can the time for filing an MNT be extended? No. Except when the case is pending in the SC. (Habaluyas v. Japson, 142 SCRA 208).

Cansino v. CA

ISSUE: WON RTC’s consideration of the documentary evidence of land ownership on MR is proper? No. RATIO: A Motion for Reconsideration (MR) cannot be used as a vehicle to introduce new evidence. MR is proper only if the findings by the TC are not supported by the evidence so presented. The Castro spouses should have a MNT. They did not have any justification for the delay in presenting the evidence. PAL v. Salcedo FACTS: Melanio Salcedo, a PAL employee, was accused of stealing ball bearings and selling them to Abalajon, who in turn sold the goods to a store. PAL arbitrarily dismissed Salcedo and filed false charges of qualified theft. Upon investigation, Salcedo was exonerated but PAL still refused to reinstate Salcedo. Salcedo, with PAL Employees Association (PALEA) filed an action for reinstatement with back salaries against PAL. TC ordered PAL to reinstate Salcedo. CA reversed the TC and denied the MR. But before Salcedo received notice of the denial of the MR, Salcedo filed an additional petition in support of the MR. CA reversed itself and order TC to receive testimony of Romluo Matro. ISSUE: WON testimony of Matro should be received by the TC? Yes. Ratio: Salcedo had not been negligent in procuring Matro’s testimony. Salcedo only discovered Matro, upon Matro’s approaching of Salcedo’s counsel. Matro’s testimony was to the effect that the store bought the ball bearings from Matro, who got them not from Salcedo but from Cartegana and Calderon. Matro kept quiet because of his fear of jeopardizing his employment in PAL. Matro’s testimony can

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change the result of the suit depending on whose testimony is given credence, since the new evidence may affect the credibility of the testimony of the witness. People v. Amparado FACTS: CFI found Norman Amparado guilty of murder for stabbing Manuel Maghanoy. SC affirmed the CFI’s decision. Amaprado filed a MNT to introduce the testimony of Antonio Cachin and Manuel Auza. Amparado only knew of Cachin and Auza from the SC decision. ISSUE: WON the testimony of Cachin and Auza can be considered as newly discovered evidence? Yes. RATIO: The conviction of the accused was based on a single testimony of Rogelio Patangan. The testimony of Cachin and Auze would refute that Patangan was immediately present after Maghanoy’s stabbing. The new witnesses were only discovered after the SC rendered its decision. Helmuth, Jr. v. People FACTS: Joseph Helmuth, Fernand Herbuella and Silverio Villamor were charged in the Sandiganbayan for falsification of public documents. They were alleged to have forged the signature of Aquiliana Reyes, which caused the transfer of rights to a burial lot in the Manila South Cemetery. Sandiganbayan acquitted Villamor but convicted Helmuth, although the records were devoid of direct evidence linking Helmuth to the act, as superintendent of the cemetery. Helmuth filed a petition to exculpate himself saying he was convicted based on circumstantial evidence. After, Helmuth was convicted, Herbuella submitted an affidavit which exculpated Helmuth. Helmuth filed a supplemental petition to admit Herbuella’s affidavit. RATIO: Affidavit of Herbuella was significant and could result in altering the Sandiganbayan decision and acquitting Helmuth. The supplemental petition to admit Herbuella’s affidavit should be considered as an MNT.

RATIO: Although the MNT was granted, the NBI medical report was not considered as newly discovered evidence. The MNT was granted based on the broader ground of substantial justice due to the variance between the medical reports of the city health officer and the NBI. There was a substantial doubt as to del Mundo’s guilt. (liberal construction of the rules) Cuenca v. People FACTS: Edilberto Cuenca was found guilty by the TC of violation of Trust Receipts Law. CA and SC affirmed the conviction. Cuenca filed for substitution of counsel with a motion for leave to file MNT, based on newly discovered evidence (affidavit of Cuenca’s brother). CA granted substitution but denied the MNT. ISSUE: WON MNT should be granted? Yes. RATIO: Rodolfo Cuenca stated in his affidavit that their company CDCP did not pay Abra the amount corresponding the steel materials covered under the trust receipts and that he gave specific instructions to their company’s treasurer not to pay the trust receipts issued by Chinabank. Rodolfo accepted personal responsibility for the trust receipts. Edilberto, thus, had no power to cause the payment of the trust receipts. The Rodolfo’s admission against interest was admitted as new evidence. - no reason for change of mind. It was an afterthoght. Born out of conspiracy. Where that is involved, there is fraud. Equitable reason for MNT disappears. BPI v. Veloso

People v. Del Mundo FACTS: Victorino de Mundo was charged with six (6) counts of rape by her ten year old daughter, Marivic del Mundo. The Medico-Legal Report (23 August 1994) by Dr. Concepcion, a city health officer was presented. Dr. Concepcion found that there was positive showing of vaginal penetration. On 17 November 1994, Marivic presented an affidavit of desistance. Despite the desistance by the victim, the TC convicted del Mundo of rape. Del Mundo filed a MNT, presenting the NBI’s Medical Report (30 August 1995), which found that the victim’s physical virginity was preserved. ISSUE: WON MNT should be granted based on NBI Medical Report? Yes.

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XXI. Relief from Judgments, Orders or Other Proceedings (Rule 38) RULE 38 Grounds for Petition for Relief from Judgments, Orders or Other Proceedings. Petition for relief from judgment, order, or other proceedings.

When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (Sec. 1, Rule 38)

Petition for relief from denial of appeal.

b. but if it finds said allegations to be true, it shall set aside the judgment or final order or other proceedings complained of upon such terms as may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. (Sec. 6, Rule 38)

Procedure where the denial of an appeal is set aside. Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made. (Sec. 7, Rule 38)

When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course. (Sec. 2, Rule 38)

SC CIRCULAR NO. 5-98 TO: ALL EXECUTIVE JUDGES SUBJECT: REQUIREMENTS FOR THE PUBLICATION OF JUDICIAL NOTICES AND OTHER SIMILAR ANNOUNCEMENTS.

Time for filing petition; contents and verification.

To forestall complaints from publishers of newspapers relative to the participation of publications not qualified to publish judicial notices and other similar announcements in the distribution by raffle of the said notices and other similar announcements in the distribution by raffle of the said notices and to prevent the commission of any irregularity, unnecessary commercialism and unfair competition among community newspapers, all Executive Judges concerned should strictly comply with the following provisions of Presidential Decree No. 1079 [1977]:

A petition provided for in either of the preceding sections of this Rule must be 1. verified, 2. filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and 3. must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. (Sec. 3, Rule 38)

Order to file an answer. If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof. The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits. (Sec. 4, Rule 38)

Preliminary injunction pending proceedings.

The court in which the petition is filed, may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. (Sec. 5, Rule 38)

Proceedings after answer is filed. After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, a. it finds that the allegations thereof are not true, the petition shall be dismissed;

1. "SECTION 1. All notices of auction sales in extrajudicial foreclosure of real estate mortgage under Act No. 3135, as amended, judicial notices such as notices of sale on execution of real properties, notices in special proceedings, court orders and summonses and all similar announcements arising from court orders and/or periodical of general circulation in particular provinces and/or cities shall be published in a newspaper or periodical of general circulation in particular provinces and/or cities shall be published in newspapers, or publications published, edited and circulated in the same city and/or province where the requirement of general circulation applies: Provided, That the province or city where the publication's principal office is located shall be considered the place where it is edited and published: Provided, further, That in the event there is no newspaper or periodical published in the locality, the same may be published in the newspaper or periodical published, edited and circulated in the nearest city or province: Provided, finally, That no newspaper or periodical which has not been authorized by law to publish and which has not been regularly published for at least one year before the date of publication of the notices or announcements which may be assigned to it, shall be qualified to publish the said notices;" and 2. "SEC. 2. The Executive Judge of the [Regional Trial Court] shall designate a regular working day and a definite time each week during which the said judicial notices or advertisements shall be distributed personally by him for publication to qualified newspapers or periodicals as defined in the preceding section, which distribution shall be done by raffle: Provided, That should the circumstances require that

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another day be set for the purpose, he shall notify in writing the editors and publishers concerned at least three [3] days in advance of the designated date: Provided, further, That the distribution of the said notices by raffle shall be dispensed with in case only one newspaper or periodicals is in operation in a particular province or city." Attention is also invited to the following provisions of Presidential Decree No. 1079: 1. "SEC. 5. No publishers, editors, media personnel or any other person shall directly or indirectly offer or give money, commission or gift of any kind to Executive Judges of the [Regional Trial Courts] or any court employee in consideration of the award of legal and judicial notices and similar announcements defined in Section 1 hereof. Neither shall the latter directly or indirectly demand of or receive from the former money, commission or gifts of any kind in consideration of any publication herein referred to;" and 2. "SEC. 6. Violation of any provision of this Decree shall be punished by a fine of not less than five thousand pesos [P5,000.00] nor more than twenty thousand pesos [P20,000.00] and imprisonment for not less than six [6] months nor more than two [2] years. The offending Executive Judge or court personnel shall be perpetually disqualified from holding any public office in the government." For strict compliance.

or proceedings, and NOT from the date he actually read the same. The six month period is computed from the date of actual entry of the order or judgment, which is to be also the date of the finality of the judgement or final order. (Dirige v. Biranya, L-22033 30 July 1966) Must the petition for relief from judgment be accompanied with an affidavit of merit? Yes. An affidavit of merits must accompany the petition and the petition itself must be verified. Much like a MNT, the absence of an affidavit of merits is a fatal defect and warrants the denial of the petition. What are the two steps or hearings in a petition for relief? 1. A hearing to determine whether the judgment, order or proceeding should be set aside. 2. If in the affirmative, a hearing on the merits of the case. Will failure to answer the petition for relief constitute a default? No. Even without the answer of the respondent to the petition, the court will still have to hear the petition and determine the merits. Is an order granting a petition for relief appealable? No. An order granting a petition for relief is interlocutory and non-appealable.

SC Circular 6-92

Bautista Notes Regalado Notes Where should a petition for relief of judgment (PFR) be filed? The PFR should be filed in and resolved by the court in the same case from which the petition arose. When is a petition for relief of judgment allowed? A petition for relief is an equitable remedy and is allowed only in exceptional cases from final judgments or orders where NO other remedy is available. A petition for relief of judgment will not be entertained when the proper remedy is appeal or certiorari. Are the two periods for filing a petition for relief of judgment extendible? No. The two periods for filing the petition are not extendible and never interrupted. (Quijano v. Tameta, L-16473, 20 April 1961) From what time are the periods for filing a petition for relief from judgment reckoned? The 60-day period is reckoned from the time the party acquired knowledge of the order, judgment

What is the effect of a petition for relief that is filed in a different court, other than the one hearing the case? Where the petition for relief was filed in another court and docketed as a new case therein, it should be dismissed by the court in which it was filed for lack of jurisdiction. (Servicewide Specialists, Inc. v. Sheriff of Manila, GR No. 74586, 17 October 1986, 145 SCRA 139) What is the purpose of the injunction bond filed by the petitioner? The injunction bond here is NOT to answer for the satisfaction of the judgment sought to be set aside but for the damages and costs to be awarded to the defendant by reason of the issuance of the injunction. Cerezo v. Tuason (supra.) Lina v. CA FACTS: Northern Motors sued Alex Lina for a sum of money with damages. April 22* May 5

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Lina was served summons Lina filed for motion for extension to file responsive pleading by regular mail.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

May 8 May 19

Northern Motors moved for order of default Lina opposed Northern Motor’s motion saying he had already filed a motion for extension May 26 TC declared Lina in default May 27 Lina files his answer July 28 TC ruled for Northern Motors Aug 11 Lina filed a motion to set aside judgment Aug 25 TC denied Lina’s motion *all dates occurred in 1982

Lina then filed with the CA a petition for certiorari and prohibition. ISSUE: WON Lina was entitled to a motion for extension to file responsive pleading? No. RATIO: The granting of additional time to file an answer is addressed to the sound discretion of the trial court. A PFR could have been just as plain, adequate and speed remedy as certiorari. The TC’s declaration that Lina was in default was an implied denial of Lina’s motion for extension. DISSENT: TC should have resolved the motion for extension before declaring Lina in default. Tuason v. CA FACTS: Victoria Tuason file a petition for annulment of her marriage to Emilio Tuason based on Art.36 FC (psychological incapacity), claiming that her husband physically abused her, was into drugs and was a wominzer. Emilio’s counsel failed to appear and was declared to have submitted the case for decision. TC annulled the marriage. Claiming that he was denied due process, Emilio filed for PFR but was denied by the TC. CA affirmed TC’s denial of the PFR. ISSUE: WON PFR is warranted? No. RATIO: Emilio failed to appear in the hearings because he was confined for medical reasons (treatment for drug dependency). Counsel of Emilio was inexcusably negligent when he did not inform the TC of his client’s confinement and was out of the country during the time of the hearings. PFR is available only under exceptional cases, where there is no other remedy available or adequate. PFR is not available when the loss of the remedy was due to the petitioner’s own fault. Agan v. Nueva FACTS: Diosdada Nueva, with marital consent, sold a parcel of land in Cagayan de Oro City to Philadelphia Agan under a pacto de retro sale for P21,000. Nueva failed to repurchase the land within the six-month period. When Nueva died, the land was extrajudicially partitioned. The title to the land was reconstituted under the names of Nueva’s children, Ann and Lou. Agan filed a petition for reconsideration of ownership against Nueva’s children. Nueva’s children answered that the pacto de retro sale was actually an equitable mortgage. TC consolidated the ownership of the land with Agan BUT gave the Nueva children the right to repurchase the same within 30 days. Agan refused to accept the redemption price and so filed a PFR claiming that the grant of a 30-

day redemption was mere surplusage. TC deleted the redemption provision of its decision. CA reversed the TC saying the PFR is not a proper remedy, since there is another adequate remedy available to Agan, namely MNT or appeal. ISSUE: WON PFR should be granted based on the belief that the decision of the TC on redemption was a mistake? No. RATIO: The mere belief of Agan that the grant of redemption was mere surplusage was not the mistake contemplated under Rule 38 to be a ground for a PFR. The erroneous opinion of Agan cannot be employed as a ground for PFR. Judicial errors of TC can be corrected by an appeal. Moreover, Agan could not claim an honest belief, because he only moved for the PFR after the offer redemption, and not immediately after the TC judgment. Legarda v. CA FACTS: New Cathay entered into a lease agreement over land and its improvements through Roberto Cabrera with the owner Victoria Legarda. Legarda refused to sign the lease. New Cathay filed a suit for specific performance with preliminary injunction. Legarda’s counsel, Dean Antonio Coronel, filed a motion to extend time to file an answer but had failed to file an answer. TC declared Legarda in default. TC ordered Legarda to execute lease. Legarda’s counsel, upon receipt of the judgment, did not take any action. Legarda’s property was subject to execution and later sold to Cabrera. Legarda, then, prevailed on her counsel, Antonio, who filed a PFR in the CA. Antonio assured his client, Legarda, that the complaint against her would be withdrawn. CA found Dean Antonio to be negligent but dismissed the PFR. After terminating Antonio, Legarda found a new lawyer, who filed a Rule 65 petition with the SC. ISSUE: WON there was negligence of counsel that would justify a PFR? Yes. RATIO: Antonio, as counsel for Legarda, had abandoned his client’s cause and is guilty of gross and reckless negligence. Antonio failed to file a proper MTD or draw a compromise in the RTC. Legarda, who was abroad most of the time, only learned of the adverse decision from the secretary of the law firm. Fukuzumi v. Sanritsu FACTS: TC ordered Yusuke Fukuzumi to pay Sanritsu Great International Corporation, Tetsuji Maruyama and Akira Kubota. Feb 9* Feb 23 May 5 May 7 June 2 June 10 June 22

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Fukuzumi received notice of judgment Fukuzumi filed a MR (14 days from notice of judgment) Fukuzumi received TC judgment denying his MR (only has one day to file appeal) Fukuzumi filed a notice of appeal (one day late)  denial TC denies notice of appeal Fukuzumi receives denial of notice of appeal Fukuzumi files a PFR.

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JONATHAN PAMPOLINA

*all dates occurred in 1999

Fukuzumi’s PFR was based on the ground that his counsel, Atty. Polines, suffered high blood pressure on May 6, 1999 and was asked to rest for 3 days, as evidenced by a medical certificate. TC denied the PFR. ISSUE: WON Fukuzumi was entitled to a PFR? NO. RATIO: A PFR cannot be granted if the loss of the remedy was due to petitioner’s own negligence. Otherwise, resorting to PFR would be tantamount to reviving a right of appeal which has already been lost. Fukuzumi’s failure to file a notice of appeal on time is NOT excusable. Medical certificate asked Atty. Polines to rest for three days (May 6-8), yet counsel filed notice of appeal on May 7, without informing the TC of his high blood pressure. The medical certificate was also procured only on June 18. The allegation of high blood pressure was a mere afterthought.

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XXII. Appeal

b) which he shall certify as complete, to the proper Regional Trial Court. c) A copy of his letter of transmittal of the records to the appellate court shall be furnished the parties. (Sec. 6, Rule 40)

1. From MTC to RTC (Rule 40) RULE 40 APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS

Procedure in the Regional Trial Court.

Where to appeal.

An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. (Sec. 1, Rule 40)

When to appeal.

An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days after notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (Sec. 2, Rule 40)

How to appeal. The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals. The form and contents of the record on appeal shall be as provided in section 6, Rule 41. Copies of the notice of appeal, and the record on appeal where required, shall be served on the adverse party. (Sec. 3, Rule 40)

Perfection of appeal; effect thereof.

The perfection of the appeal and the effect thereof shall be governed by the provisions of section 9, Rule 41.

Appellate court docket and other lawful fees.

Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record or the record on appeal, as the case may be. (Sec. 5, Rule 40)

(a) Upon receipt of the complete record or the record on appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact. (b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellant's memorandum, the appellee may file his memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal. (c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed. (Sec. 7, Rule 40)

Appeal from orders dismissing case without trial; lack of jurisdiction.

If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. 1. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. 2. In case of reversal, the case shall be remanded for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (Sec. 8, Rule 40)

Applicability of Rule 41.

The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule. (Sec. 9, Rule 40)

OVERVIEW OF APPEAL FROM MTC TO RTC

Duty of the clerk of court.

Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk of court of the lower court shall a) transmit the original record or the record on appeal, together with the transcripts and exhibits,

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MTC Judgment ↓ Notice of Judgment of MTC to Appellant ↓ Perfection of Appeal (Notice of Appeal 15 Days from notice of judgment) (Record of Appeal 30 Days from notice of judgment) ↓ Transmittal of Records to RTC by MTC Clerk of Court (15 days from perfection) ↓ Receipt of Records by RTC RTC gives Notice to Parties of Appeal

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↓ Appellant’s Memorandum is Submitted (15 days from Notice by RTC of Appeal) *If no memorandum is submitted by the appellant, the appeal is dismissed. ↓ Apellee’s Memorandum is submitted. (15 days from notice of appellant’s memorandum) ↓ Appeal is deemed submitted for Decision. (upon submission of appellee’s memorandum or expiration of the period to file the same)

Regalado Notes What are required to be indicated in the notice of appeal? 1. the parties to the suit 2. the judgment or final order or part thereof appealed from 3. the material dates showing the timeliness of the appeal. What is the effect of non-payment or delay in the payment of appellate docket fee? While compliance with the requirement for timely payment of docket fees on appeal is a mandatory requirement, the appellate court is not without power to make exceptions thereto on justifiable cause, instead of dismissing the appeal on that sole ground. In cases of appeal, what is the duty of the clerk of court of the MTC, where the action originated? The MTC clerk of court shall elevate to the RTC, where the appeal is filed, not just the original record or the record on appeal but as well as the transcripts and exhibits taken or submitted to the MTC, within 15 days from the perfection of the appeal. A certification of the completeness of the documents transmitted to the appellate court must be furnished to the parties for their verification and appropriate action. Will notice be effective if the appellate court gives notice to the counsel of record in the lower court? Yes. Where the party had appeared by counsel in the inferior court, the notice contemplated in Sec. 7, Rule 40 should be sent to the attorney. (Elli v. Ditan, L-17444, 30 June 1962). But if the notice was sent to the party himself and he actually received the same, such notice is valid and binding. (Valuenzuela v. Balayo, L-18738, 30 March 1963).

with it. The consent of the parties to such assumption of original jurisdiction over the case is not required. This new rule under Sec. 8, para. 2, Rule 40 abandons the previous rulings which made it optional on the part of the parties whether or not to submit to such original jurisdiction of the RTC. Will the RTC, exercising appellate jurisdiction over a case tried by the MTC on the merits but without jurisdiction, be bound merely to the records of the MTC? No. Since there was an actual trial of the case on the merits, which normally entailed reception of evidence on which the judgment of the lower court was based, in the interest of justice, the parties may be allowed to file amended pleadings and adduce additional evidence at the trial of the case in the RTC. MODES & PERIODS OF APPEAL (Lacsamana v. IAC, GR No. 73146-53, 26 August 1986)* MODE OF APPEAL Ordinary Appeals by Mere Notice of Appeal (MTC -> RTC) (RTC -> CA) Appeals in Special Proceedings and other cases wherein multiple appeals are allowed (record of appeal is required)

Appeals by petition for review to the CA and SC. (MTC -> RTC -> CA) (MTC -> RTC -> SC)

Appeals from Quasi Judicial Bodes to the CA (notice of appeal)

Should the RTC dismiss outright an appeal tried by the MTC, but involves a subject matter outside the jurisdiction of the MTC? No. Where the question of law involves lack of jurisdiction over the subject matter and the RTC has jurisdiction over thereover, the RTC shall try the case on the merits, as if the case was originally filed 156 of 229

PERIOD OF APPEAL 15 day period for filing an appeal. (interrupted by a MNT or MR). No extension of time to file such a notice of appeal is needed, much less allowed. 30 day period for filing an appeal. (interrupted by a MNT or MR). A motion for extension of time to file the record on appeal may be granted. *The thirty day period may be extended because, where the record is voluminous or the appellant has other pressing matters to attend to, it may not be practicable to submit the record on appeal within the reglementary period. (Roque v. Gunigundo, 89 SCRA 178, 183) 15 day period for filing a petition for review. But if in case an MR or MNT is filed within the said period, then there is a 15 day period for filing an appeal, from notice of the resolution denying the MR or MNT. (Sec. 1, Rule 42) The CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. 15 day period for filing appeal from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity. (Sec. 4, Rule 43) But if in case an MR or MNT is filed within the same period in accordance with the governing law of the court or agency concerned, then there is a 15 day period for filing an appeal, from notice of the resolution denying the MR or MNT. (Sec. 4, Rule 43)

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

Appeals Certiorari to SC (RTC -> SC) (CA -> SC) (SB -> SC)

by the

Period of Extension of Time to file petition for review.

JONATHAN PAMPOLINA

The CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. 15 day period to file appeal from notice of judgment or of the denial of his MR filed in due time and paying at the same time the corresponding docket fees. In other words, in the event that a MR is filed and denied, the period of fifteen days begins to run again from notice of denial. A motion for extension of time to file a petition for review on certiorari may be filed with the SC within the reglementary period, paying at the same time the corresponding docket fee. An extension of only fifteen days for filing a petition for review may be granted by the CA, save in exceptionally meritorious cases and it must be filed and the corresponding docket fee paid within the reglementary period of appeal.

*There have been subsequent changes in the Rules which affected the procedure in the Lacsamana ruling, which have been already incorporated in this outline. In particular Rule 42 (Petition for Review of RTC order to CA) and Rule 43 (Appeals from QuasiJudicial Bodies) Enriquez v. CA FACTS: Melba Moncal Enriquez was staying n the land of Engracia Macaraya by mere tolerance. Upon Enriquez’s refusal to buy the land, Macaraya sold the land to Tigle. Tigle wanted Enriquez to vacate, so she filed an unlawful detainer suit against Enriquez. Enriquez, in her answer with counterclaim, said that the land was co-owned with Macaraya and thus she sold only 1/7 of the share of the property to Tigle. MeTC granted unlawful detainer suit and ordered Enriquez to vacate. On appeal, RTC ordered parties to submit memoranda, but Enriquez failed to submit the same within the 15-day period. RTC dismissed Enriquez’s appeal. Enriquez filed an MR adopting her position in MeTC but was denied. On appeal, the CA dismissed Enriquez’s appeal saying that under the Rules the filing of a memorandum is a mandatory requirement. CA also denied Enriquez’s MR. ISSUE: WON dismissal of Enriquez’s petition was proper for failure to file the memorandum? Yes. RATIO: Enriquez is duty-bound to submit his memorandum. An appellate court has no power to resolve an unassigned error, which does not affect the court’s jurisdiction over the subject matter, save for a plain or clerical error. An appeal is a purely statutory right and in order to be entitled thereto, the person claiming such right must conform to the law’s conditions.

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2. From MTC to RTC to CA (Rule 42) RULE 42 PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS How appeal taken; time for filing.

A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may a. file a verified petition for review with the Court of Appeals, b. paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and c. furnishing the Regional Trial Court and the adverse party with a copy of the petition. d. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner's motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (Sec. 1, Rule 42)

Form and contents. The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. {certification against forum shopping} (Sec. 2, Rule 42)

Effect of failure to comply with requirements.

The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (Sec. 3, Rule 42)

Action on the petition.

The Court of Appeals may 1. require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice, or 2. dismiss the petition if it finds the same to be a. patently without merit, b. prosecuted manifestly for delay, or c. that the questions raised therein are too unsubstantial to require consideration. (Sec. 4, Rule 42)

Contents of comment. The comment of the respondent shall be filed in seven (7) legible copies, accompanied by certified true copies of such material portions of the record referred to therein together with other supporting papers and shall (a) state whether or not he accepts the statement of matters involved in the petition; (b) point out such insufficiencies or inaccuracies as he believes exist in petitioner's statement of matters involved but without repetition; and (c) state the reasons why the petition should not be given due course. A copy thereof shall be served on the petitioner. (Sec. 5, Rule 42)

Due course.

If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the period for the filing thereof without such comment or pleading having been submitted, the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition. (Sec. 6, Rule 42)

Elevation of record. Whenever the Court of Appeals deems it necessary, it may order the clerk of court of the Regional Trial Court to elevate the original record of the case including the oral and documentary evidence within fifteen (15) days from notice. (Sec. 7, Rule 42)

Perfection of appeal; effect thereof.

(a) Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal.

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(b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise. (Sec. 8, Rule 42)

Submission for decision. If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court itself. (Sec. 9, Rule 42)

OVERVIEW OF APPEAL FROM MTC TO RTC TO CA MTC Decision ↓ Appeal of MTC Decision to RTC ↓ RTC Decision of Appeal ↓ Notice of RTC Decision ↓ File Petition for Review of RTC Decision with CA (15 days from notice of RTC decision) (1st EXTENSION: additional 15 day period to file petition but with payment of docket fees) (2nd EXTENSION: Additional 15 day period to file petition but only for exceptional cases) *CA can dismiss the petition under the grounds on Sec. 4, Rule 42 ↓ CA can order appellee to file a comment to the petition ↓ Apellee files a Comment with the period or fails to file a comment upon expiration of the period (10 days from notice of CA’s order to comment) ↓ CA gives due course to the appeal or dismisses the appeal. *CA can also order the RTC to elevate the records, which the RTC must comply with within 15 days from notice of the order ↓ If the appeal is given due course, CA may set the case for oral argument or require parties to submit memoranda. (15 days from notice of order) ↓ Parties give oral arguments or submit memoranda. ↓ CA decides the appeal. (The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court itself)

What kinds of questions may be raised on appeal under Rule 42? The appeal under Rule 42 may be on either questions of fact, or of law, or on mixed questions of fact and law. Should lower courts or judges that rendered the judgment or final order complained of be impleaded as parties in the appeal? No. Rule 42 is a petition for the purpose of appeal and not petitions in original actions. Mendoza v. David FACTS: In 1997, Teresita Mendoza ordered 3 pieces of furniture from Beth David for P185,650 with specification provided by Mendoza. When the furniture was completed, Mendoza rejected the goods saying they were of inferior quality and asked for the refund of the initial deposit of P80,650. David refused to give the money back. Mendoza filed suit for collection of money against David. MTC dismissed Mendoza’s complaint, saying David is not liable to return the deposit because there was already a perfected sale. On appeal, RTC ordered Mendoza to pay the balance and ordered David to deliver the furniture upon payment. CA dismissed petition for review of Mendoza for failure to append the TC pleadings. In a MR, Mendoza attached the TC pleadings, but the MR was still denied. ISSUE: WON petition for review to the CA should be dismissed outright for failure to append the pleadings in the lower court? No. RATIO: Failure to append the pleadings and material portions of the record does not justify the outright dismissal of the petition. There was substantial compliance when the pleadings were attached to the MR. CA decided without substantial evidence and should required the TC to elevate the records. CA should have ruled on the merits. The sale was a made to order sale in which the furniture was manufactured according to the specification of Mendoza. David did not commit any breach of the contract of sale.

Regalado Notes Differentiate Rule 41 appeal and Rule 42 appeal of decisions of the RTC to the CA. Rule 41 refers to appeals from the RTC exercising original jurisdiction. Rule 42 refers to appeals of decisions of the RTC in the exercise of its appellate jurisdiction.

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3. From RTC to CA – Rule 41 RULE 41 APPEAL FROM THE REGIONAL TRIAL COURTS Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. (Sec. 1, Rule 41)

What order or judgments may not be appealed? No appeal may be taken from: (a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, crossclaims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice. In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (Sec. 1, Rule 41)

However, an appeal in habeas corpus cases shall be taken within forty-eight (48) hours from notice of judgment or final order appealed from. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (Sec. 3, Rule 41)

Appellate court docket and other lawful fees.

Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal. (Sec. 4, Rule 41)

Notice of appeal.

The notice of appeal shall 1. indicate the parties to the appeal, 2. specify the judgment or final order or part thereof appealed from, 3. specify the court to which the appeal is being taken, and 4. state the material dates showing the timeliness of the appeal. (Sec. 5, Rule 41)

Record on appeal; form and contents thereof.

The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42. (Sec. 2, Rule 41)

1. The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal and 2. it shall include the judgment or final order from which the appeal is taken and, 3. in chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved, 4. together with such data as will show that the appeal was perfected on time. 5. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and documentary, taken upon the issue involved. The reference shall specify the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses. If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits. 6. Every record on appeal exceeding twenty (20) pages must contain a subject index. (Sec. 6, Rule 41)

(c) Appeal by certiorari.

Approval of record on appeal.

What are the modes of appeal. (a) Ordinary appeal.

The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (Sec. 2, Rule 41)

(b) Petition for review

In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. (Sec. 2, Rule 41)

Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order.

Upon the filing of the record on appeal for approval and if no objection is filed by the appellee within five (5) days from receipt of a copy thereof, the trial court may a. approve it as presented or b. upon its own motion or at the instance of the appellee, may direct its amendment by the inclusion of any omitted matters which are deemed essential to the determination of the issue of law or fact involved in the appeal. If the trial court orders the amendment of the record, the appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by the order within ten (10) days from receipt thereof, shall redraft the record by including therein, in

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their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft. (Sec. 7, Rule 41)

Joint record on appeal.

Where both parties are appellants, they may file a joint record on appeal within the time fixed by section 3 of this Rule, or that fixed by the court. (Sec. 8, Rule 41)

Perfection of appeal; effect thereof. Notice of Appeal

A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. (Sec. 9, Rule 41)

Record on Appeal

A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. (Sec. 9, Rule 41)

Notice of Appeal and Record of Appeal

In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. {Residual Jurisdiction of the Trial Court} (Sec. 9, Rule 41)

Duty of clerk of court of the lower court upon perfection of appeal.

Within thirty (30) days after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the clerk of court of the lower court: (a) To verify the correctness of the original record or the record on appeal, as the case may be, and to make a certification of its correctness; (b) To verify the completeness of the records that will be transmitted to the appellate court; (c) If found to be incomplete, to take such measures as may be required to complete the records, availing of the authority that he or the court may exercise for this purpose; and (d) To transmit the records to the appellate court. If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not included in the records being transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or that could be taken to have them available. (e) The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. (Sec. 10, Rule 41)

Transcript. Upon the perfection of the appeal, the clerk shall immediately direct the stenographers concerned to attach

to the record of the case five (5) copies of the transcripts of the testimonial evidence referred to in the record on appeal. The stenographers concerned shall transcribe such testimonial evidence and shall prepare and affix to their transcripts an index containing the names of the witnesses and the pages wherein their testimonies are found, and a list of the exhibits and the pages wherein each of them appears to have been offered and admitted or rejected by the trial court. The transcripts shall be transmitted to the clerk of the trial court who shall thereupon arrange the same in the order in which the witnesses testified at the trial, and shall cause the pages to be numbered consecutively. (Sec. 11, Rule 41)

Transmittal.

The clerk of the trial court shall transmit to the appellate court 1. the original record or the approved record on appeal within thirty (30) days from the perfection of the appeal, 2. together with the proof of payment of the appellate court docket and other lawful fees, 3. a certified true copy of the minutes of the proceedings, 4. the order of approval, 5. the certificate of correctness, 6. the original documentary evidence referred to therein, and 7. the original and three (3) copies of the transcripts. Copies of the transcripts and certified true copies of the documentary evidence shall remain in the lower court for the examination of the parties. (Sec. 12, Rule 41)

Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may, motu proprio or on motion, dismiss the appeal for a. having been taken out of time or b. non-payment of the docket and other lawful fees within the reglementary period. (Sec. 13, Rule 41)

SUPREME COURT CIRCULAR NO. 48-00 TO: The Court Of Appeals, Sandiganbayan, Court Of Tax Appeals, Regional Trial Courts, Shari'a District Courts, Metropolitan Trial Courts, Municipal Trial Courts In Cities, Municipal Trial Courts, Municipal Circuit Trial Courts And Shari'a Circuit Courts SUBJECT: A.M. No. 00-2-10-SC. Re: Amendments To Section 4, Rule 7 And Section 13, Rule 41 Of The 1997 Rules Of Civil Procedure For the information and guidance of all concerned, quoted hereunder are the amended provisions in the 1997 Rules of Civil Procedure: (a) Section 4 of Rule 7: and (b) Section 13 of Rule 41, to wit: RULE 7, Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on "information and belief, or upon

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"knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (4a) RULE 41, Sec. 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may, motu proprio or on motion, dismiss the appeal for having been taken out of time or non-payment of the docket and other lawful fees within the reglementary period. The foregoing amendments took effect last May 1, 2000.

OVERVIEW OF APPEAL FROM RTC TO CA RTC Decision (Original Jurisdiction) ↓ Notice of Decision of RTC ↓ Perfection of Appeal (15 days from Notice for Notice of Appeal) (30 days from Notice for Record on Appeal) *The period for perfecting an appeal is interrupted by a timely MR or MNT. ↓ RTC approves the appeal. (5 days from receipt of notice or record on appeal) *RTC can amend its own decision by the inclusion of any omitted matters and thereafter appellant shall redraft the record and submit the same for approval. (Sec. 7, Rule 41) ↓ RTC Clerk of Court transmits the records to CA. (Within 30 days from perfection of appeal) *Prior to the transmittal of the records to the appellate court, the TC may motu propio or on motion DISMISS the appeal for having been taken out of time or for nonpayment of docket fees. (Sec. 13, Rule 41)

Regalado Notes When is an order considered interlocutory? An order is considered interlocutory if it does not dispose of the case but leaves something else to be done by the trial court on the merits of the case. An order is final, for purposes of appeal, if it disposes of the entire case. What are the remedies against interlocutory orders? GENERAL RULE: Where the order is interlocutory, the movant has to wait for the judgment and then appeal from the judgment, in the course of which appeal he can assign as error the said interlocutory order. The interlocutory order cannot be appealed from separately from the judgment. (Mapua v. Suburban Theaters, Inc., 81 Phil 311) EXCEPTION: Where the interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion, the remedy is certiorari, prohibition or mandamus depending on the facts of the case.

If no objection is made against an appeal of an interlocutory order, should the appellate court continue with hearing the appeal? No. Where the order appealed from is interlocutory, the appellate court can dismiss the appeal even if NO OBJECTION thereto was filed by the appellee in either the trial or appellate court. What is the fundamental difference between an appeal and an action to review? In the case of appeal, the court by which the first determination was made is not a party to the proceeding for review. While in an action to review, the court which made the determination is a party to the proceeding for review. Can the period to appeal be extended? Yes. The period to appeal may be extended but such extension is addressed to the sound discretion of the court. When should a motion to extend the period for filing the record on appeal be filed? The motion to extend the period must be filed within the 30-day period for perfecting an appeal. It should be heard and resolved promptly, or before the lapse of said period, so as to apprise the appellant WON his obligation to file the record on appeal within the said period is dispensed with. Does the mere filing and pendency of a motion for extension of time to perfect an appeal suspend the running of the reglementary period? No. What is the effect if the trial court approves the record on appeal even if the period for the appeal has expired? The approval of the trial court of the appeal is tantamount to a valid order granting the extension prayed for by the appellant if any such motion has been filed. (Berkenkotter v. CA) Conversely, the dismissal of the appeal by the TC constitutes a denial of the extension prayed for, in which case the only question that can arise is WON the TC had gravely abused its discretion in denying such extension. (PVTA v. Delos Angeles, L29736, 31 October 1974). Which court will determine WON the appeal is pro forma? GENERAL RULE: The appellate court determines WON the appeal is pro forma, frivolous, or dilatory and thereafter dismiss the appeal, as the TC has the ministerial duty to elevate the records if the appeal is duly perfected. EXCEPTION: If the TC dismissed the appeal because it was clearly demonstrated to be dilatory and frivolous, such order will not be disturbed by the appellate court. (De la Cruz v. Blanco, 73 Phil. 596).

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Is the requirement, that the record on appeal must show on its face that the appeal was perfected on time mandatory and jurisdictional? Yes. If the requirement of material dates is not complied with, the appellate court acquires no jurisdiction and the appeal must be dismissed. Will the failure of counsel to sign the record on appeal be a ground for dismissal of the appeal? No. The court can merely require the counsel to sign the record on appeal. Is there an exception to the material date rule under Sec. 6, Rule 41? Yes. The material date rule need not be observed if the TC issued an order to the effect that the appeal was seasonably perfected with the filing of the notice of appeal, and the record on appeal within the reglementary period. (Pimentel v. CA, L39684, 27 June 1975) The material date rule has been liberalized in the sense that reliance can be placed on the TC’s order of approval and its determination of the timeliness of the appeal, especially when the timeliness of perfection of such appeal has not been impugned by the appellee who filed no opposition to the approval by the TC of the record on appeal. (Saura Import & Export, Inc. v. CA, L-34770, 18 May 1978) Does a record of appeal have to be set for hearing in the TC by the appellant? No. A record of appeal is deemed submitted for approval upon its filing and the rule merely requires the adverse party to file any objection thereto within five (5) days. When does the TC lose jurisdiction over an appeal? After the perfection of the appeal by notice of appeal or record of appeal, the TC loses jurisdiction over the case or the subject matter involved in the appeal, as the case may be. What is the residual jurisdiction of the trial court? Before the transmittal to the appellate court of the original record or the record on appeal, the TC retains its so-called residual jurisdiction to issue protective orders, approve compromises, permit appeals of indigent litigants and, as has been added by amendment, to order discretionary execution and to allow withdrawal of the appeal. What is the effect on the TC’s jurisdiction of an appeal that is perfected but the records have not yet been transmitted to the appellate court? Even if the appeal has already been perfected but the records have not yet been transmitted to the appellate court, the TC still has jurisdiction to set aside its order approving the record on appeal. (Cabungcal v. Fernandez, L-16520, 20 April 1964)

Who has the responsibility of transmitted the records to the appellate court? The transmittal of the record should be the sole responsibility of the clerk of court. Furthermore, it is the duty of the clerk of court to furnish the parties with copies of his letter of transmittal of the records to the appellate court, to enable the parties to monitor or verify the clerk’s compliance with his duty to do so. Where should a motion to dismiss an appeal be filed? A motion to dismiss an appeal should be filed with the trial court, prior to the transmittal of the original record or the record on appeal to the appellate court. If the appellee fails to move for the dismissal of the appeal, will the appellee be forever barred from challenging the appeal? No. The failure of the appellee to move for the dismissal in the TC of an appeal perfected out of time does NOT prevent him from filing such a motion in the appellate court as it involves the appellate jurisdiction of the latter court. (Garganta v. CA, 105 Phil. 412) What is the remedy of an appellant who fails to perfect his appeal on time due to fraud, accident, mistake and excusable negligence? The appellant may file for a petition for relief under Rule 38, Sec. 2. If his petition for relief is denied, he can file a petition under Rule 65, since the denial of a petition for relief is no longer appealable under Sec. 1 of Rule 41. (De Luna v. Palacio, L-26927, 27 December 1969). Augusto v. Rises An order to surrender title in order to be annotated is an interlocutory order which cannot be appealed. Batara v. CA The filing of a MR interrupts the period to file an appeal. But if the MR is denied, the period to file an appeal is not renewed and the appeal should be filed within the balance of the reglementary period. Allied Banking v. Eserjose An appeal is merely a statutory right and strict adherence to the requirements for its exercise is called for. Notice of appeal that is filed three (3) days after the reglementary period cannot be taken cognizance of. The perfection of an appeal is a jurisdictional requirement.

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Santander v. Villanueva Payment of docket fees for appeal was filed only at MR. Appeal should be denied for payment of fees subsequently did not cure the defect of the appeal. Payment of appellate docket fees is a jurisdictional requirement. Estrella v. Espiridion Appellant did not specify to which court the appeal was being brought to. SC ruled that CA was too strict in applying the rules but ruled that after 5 September 1998, stricter reliance on details. Barnes v. Padilla Motion for extension to file MR was granted. CA denied the motion because period was not extendible. SC said CA should not be too strict and should have heard the case.

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4. From CTA and QJA to CA – Rule 43 RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. (Refer to List created earlier listing the QJAs alphabetically) Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Sec. 1, Rule 43)

Cases not covered.

This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. (Sec. 2, Rule 43)

Where to appeal. An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. (Sec. 3, Rule 43)

The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner. Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days from notice of the denial. (Sec. 5, Rule 43)

Contents of the petition. The petition for review shall (a) state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents; (b) contain a concise statement of the facts and issues involved and the grounds relied upon for the review; (c) be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and other supporting papers; and (d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. (e) The petition shall state the specific material dates showing that it was filed within the period fixed herein. (Sec. 6, Rule 43)

Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (Sec. 7, Rule 43)

Action on the petition.

Period of appeal.

The appeal shall be taken within fifteen (15) days a. from notice of the award, judgment, final order or resolution, or b. from the date of its last publication, if publication is required by law for its effectivity, or c. of the denial of petitioner's motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (Sec. 4, Rule 43)

How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo.

The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (Sec. 8, Rule 43)

Contents of comment. The comment shall be filed within ten (10) days from notice in seven (7) legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. The comment shall (a) point out insufficiencies or inaccuracies in petitioner's statement of facts and issues; and (b) state the reasons why the petition should be denied or dismissed. (c) A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the Court of Appeals. (Sec. 9, Rule 43)

Due course.

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If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on the basis of the petition or the records the Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due course to the petition; otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals. (Sec. 10, Rule 43)

CA may require court or agency to transmit the records. (within 15 days from notice of CA’s order giving due course on the petition, records must be transmitted) ↓ If the appeal is given due course, CA may also set the case for oral argument or require parties to submit memoranda. ↓ Parties set for oral arguments or submit memoranda. (Oral arguments and memorandum must be set or submitted within 15 days from notice of order.) ↓ Appeal is submitted for decision to CA.

Transmittal of record.

Regalado Notes

Effect of appeal.

Will the prosecutor’s quasi-judicial function of conducting a preliminary investigation subject to appeal under Rule 43? No. A prosecutor conducting a preliminary investigation performs a quasi-judicial function, but his office is not a quasi-judicial body and does not exercise adjudicatory or rule-making functions. The prosecutor’s action of approving the filing of an information is not appealable to the CA under Rule 43. (Bautista v. CA, GR 143375, 6 July 2001).

Within fifteen (15) days from notice that the petition has been given due course, the Court of Appeals may require the court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceeding under review. The record to be transmitted may be abridged by agreement of all parties to the proceeding. The Court of Appeals may require or permit subsequent correction of or addition to the record. (Sec. 11, Rule 43)

The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. (Sec. 12, Rule 43)

Submission for decision. If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the Court of Appeals. (Sec. 13, Rule 43)

What is the effect of an appeal that fails to comply with the requirements under Rule 43 or where the merits of the petition do not warrant consideration? Sections 7 and 8 authorize the outright dismissal of the petition. Bautista Notes Appeals from CTA and QJA to the CA When taken?

OVERVIEW OF APPEAL FROM CTA and QJA to CA CTA or QJA Decision ↓ Appellant files appeal to CA (Within 15 days from notice of award, judgment, final order or resolution, or from date of last publication or denial of MNT or MR) (1st EXTENSION: additional 15 day period to file petition but with payment of docket fees) (2nd EXTENSION: Additional 15 day period to file petition but only for exceptional cases) ↓ CA may require Respondent to file a comment. (CA may also dismiss the petition outright if the petitioner fails to comply with the requirements, is filed out of time, is patently without merit, prosecuted for delay, or the questions raised are to unsubstantial) ↓ Respondent files a comment. (Comment should be filed within 10 days from notice) ↓ CA gives due course to the petition or dismisses the petition. ↓

How taken

appeal

Contents Petition

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Within 15 days from notice of award, judgment, final order or resolution, or Within 15 days from the date of its last publication, if publication is required by law for its effectivity, or Within 15 days from the denial of petitioner’s MNT or MR duly filed in accordance with the governing law of the court or agency a quo. 1. File a verified petition for review with the CA in 7 legible copies, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. 2. Pay to the clerk of court the corresponding docket and other lawful fees. 3. Deposit the amount of P500 for costs. NOTE: Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the CA upon a verified motion setting forth valid grounds therefore. 1. Full names of the parties to the case, without impleading the courts of agencies either as petitioners or respondents. 2. Concise statement of the facts and issues and the grounds relied upon for the review 3. Clearly legible duplicate original or certified true copy of the award, judgment

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or final order or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and other supporting papers 4. Sworn certification against forumshopping 5. Specific material dates showing that the petition was filed within the period fixed in the Rules 1. Non-payment of docket and other lawful fees. 2. Non-deposit for costs. 3. Non-compliance with proof of service of the petition 4. Failure to comply with the requisite contents and documents that should accompany the petition. 5. Petition is patently without merit 6. Petition is prosecuted manifestly for delay. 7. The questions raised in the petition are too unsubstantial to require consideration. 8. Absence of prima facie showing that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed. The appeal does not stay the award, judgment, final order or resolution EXCEPTION: If the CA directs otherwise, upon such terms as it may deem just. (Sec. 12)

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5. To SC – Rule 45; Rule 65 RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (Sec. 1, Rule 45)

Time for filing; extension. The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. (Sec. 2, Rule 45)

Docket and other lawful fees; proof of service of petition. Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. (Sec. 3, Rule 45)

Contents of petition. The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. (Sec. 4, Rule 45)

Dismissal or denial of petition. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the

docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (Sec. 5, Rule 45) The Supreme Court may on its own initiative deny the petition on the ground that 1. the appeal is without merit, or 2. is prosecuted manifestly for delay, or 3. that the questions raised therein are too unsubstantial to require consideration. (Sec. 5, Rule 45)

Review discretionary. A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered: (a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or (b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. (Sec. 6, Rule 45)

Pleadings and documents that may be required; sanctions. For purposes of determining whether the petition should be dismissed or denied pursuant to section 5 of this Rule, or where the petition is given due course under section 8 hereof, the Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of nonfiling or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor. (Sec. 7, Rule 45)

Due course; elevation of records.

If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice. (Sec. 8, Rule 45)

Rule applicable to both civil and criminal cases.

The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. (Sec. 9, Rule 45)

SC Admin. Circular 3-96 TO : Court of Appeals, Sandiganbayan, Court of Tax Appeals, Regional Trial Courts, Metropolitan Trial Court, Municipal Trial Courts, Municipal Circuit Trial Courts, Quasi-Judicial Agencies, The Ombudsman, The Solicitor General, The Government Corporate Counsel, Members of the Government Prosecution Service, and Members of the Integrated Bar of the Philippines

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SUBJECT: Clarification of the Provisions of Paragraph (3), Revised Circular No. 1-88 and Supplemental Rules Therefor Paragraph (3) of Revised Circular No. 1-88 provides as follows: "(3) Copies of judgment or resolution sought to be reviewed — Petitions filed with the Supreme Court, whether under Rule 45, Rule 65, R.A. No. 5440 or P.D. No. 1606 shall be accompanied by a clearly legible duplicate original or certified true copy of the decision, judgment, resolution, or order subject thereof, and the requisite number of plain copies thereof. The certification shall be accomplished by the proper Clerk of Court or by his duly authorized representative or by the proper officer of the court, tribunal, board, commission, or office involved, or by his duly authorized representative. Certification by the parties themselves, their counsel or any other person shall not be allowed." The failure to comply with or miscomprehension of the aforesaid requirement in petitions to the Supreme Court, or in petitions or other initiatory pleadings filed in other courts or quasi-judicial agencies which have adopted the same or similar provisions, has created unnecessary controversies and resulted in undue delay in the proceedings therein. For the guidance of all concerned, the following clarifications and supplemental rules in complying with the requirement in Paragraph (3) of Revised Circular No. 1-88 are hereby announced for strict compliance: 1. The "duplicate original copy" shall be understood to be that copy of the decision, judgment, resolution or order which is intended for and furnished to a party in the case or proceeding in the court or adjudicative body which rendered and issued the same. The "certified true copy" thereof shall be such other copy furnished to a party at his instance or in his behalf, duly authenticated by the authorized officers or representatives of the issuing entity as hereinbefore specified. 2. The duplicate original copy must be duly signed or initialed by the authorities or the corresponding officer or representative of the issuing entity, or shall at least bear the dry seal thereof or any other official indication of the authenticity and completeness of such copy. For this purpose, all courts, offices or agencies furnishing such copies which may be used in accordance with Paragraph (3) of Revised Circular No. 1-88 shall make arrangements for and designate the personnel who shall be charged with the implementation of this requirement. 3. The certified true copy must further comply with all the regulations therefor of the issuing entity and it is the authenticated original of such certified true copy, and not a mere xerox copy thereof, which shall be utilized as an annex to the petition or other initiatory pleading. 4. Regardless of whether a duplicate original copy or a certified true copy of the adjudicatory document is annexed to the petition or initiatory pleading, the same must be an exact and complete copy of the original, and all the pages thereof must be clearly legible and printed on white bond or equivalent paper of good quality with the same dimensions as the original copy. Either of the aforesaid copies shall be annexed to the original copy of the petition or initiatory pleading filed in court, while plain copies thereof may be attached to the other copies of the pleading. 5. It shall be the duty and responsibility of the party using the documents required by Paragraph (3) of Circular No. 188 to verify and ensure compliance with all the requirements therefor as detailed in the preceding paragraphs. Failure to do so shall result in the rejection of such annexes and the dismissal of the case. Subsequent

compliance shall not warrant any reconsideration unless the court is fully satisfied that the non-compliance was not in any way attributable to the party, despite due diligence on his part, and that there are highly justifiable and compelling reasons for the court to make such other disposition as it may deem just and equitable. This Circular shall be published in two newspapers of general circulation and shall take effect on June 1, 1996.

Regalado Notes Can a Rule 45 appeal be used to question the decision of the RTC rendered in exercise of its appellate jurisdiction? No. The appeal under Rule 45 contemplates that the RTC rendered the judgment or final order or resolution acting in its original jurisdiction. If it rendered the same in the exercise of its appellate jurisdiction, in the instances provided for in Rule 42 and 43, the appeal shall be taken to the CA even if only questions of law are raised by the petitioner. What is a question of law? What is a question of fact? What is the test used for distinguishing the two questions? A question of law exists when there is a doubt or controversy as to what the law is on a certain state of facts. There is a question of fact when the doubt or difference arises as to the truth or falsehood of facts. (Ramos v. Pepsi, L-22533, 9 February 1967) One test is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case it is a question of law, otherwise it will be a question of fact. The question must not involve the examination of the probative value of the evidence presented. (Vda. De Arroyo v. El Beaterio, L-22005, 3 May 1968) Who determines whether an appeal involves only a question of law or both questions of law and fact? Whether an appeal involves only questions of law or both questions of law and fact is best left to the determination of an appellate court and not but the court which rendered the decision appealed from. (PNB v. Romillo, GR. 70681, 16 October 1985). What is the rule on the conclusiveness of factual findings of the CA to the SC? GENERAL RULE: The findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC. EXCEPTION: Findings of fact of the CA may be reviewed by the SC on appeal by certiorari, when: a. When the conclusion is a finding grounded entirely on speculations, surmises or conjectures b. When the inference made is manifestly mistaken, absurd or impossible

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c. Where there is grave abuse of discretion in the appreciation of facts. d. When the judgment is based on a misapprehension of facts e. When the findings of fact of the CA are conflicting f. When the CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee g. Where the CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion. h. Where the findings of fact of the CA are contrary to those of the TC, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the CA are premised on absence of evidence but are contradicted by the evidence of record.

However, although a copy of the petition is served on the lower court concerned, it is only for the purpose of giving notice that its judgment should not be entered since it is not yet executory because of the pending petition for review thereof. The lower court does not, however, become a party to the case. Is the appeal by certiorari under Rule 45 discretionary? Yes. The appellate review under Rule 45 is discretionary and can be granted only when there are special and important reasons therefore. Lanzona v. IAC

Differentiate certiorari under Rule 45 and certiorari under Rule 65. Rule 45 Certiorari Petition is based on questions of law which the appellant desires the appellate court to resolve. Involves the review of the judgment, award or final order on the merits.

Must be made within the reglementary period for appeal.

Stays the judgment, award or order appealed from.

The petitioner and respondent are the original parties to the action, and the lower court or QJA is not to be impleaded. The prior filing of a MR is NOT required. The appellate court is in the exercise of its appellate jurisdiction and power of review.

Rule 65 Certiorari Petition raises the issue as to WON the lower court acted without or in excess of jurisdiction or with grave abuse of discretion May be directed against an interlocutory order of the court prior to the appeal from the judgment or where there is no appeal or any other plain, speedy or adequate remedy. May be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed. Does not stay the challenged proceedings, unless a writ of preliminary injunction or a TRO. The parties are the aggrieved party against the lower court or QJA and the prevailing parties, who thereby respectively become the petitioners and respondents. A MR is a condition precedent. The higher the court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts.

Wee v. Galvez WON order of CA denying R65 petition is a final order? Yes. CA decided WON there was a grave abuse of discretion. Tropical Homes v. Fortun SC approved compromise agreement. Decision on the compromise agreement only binds parties to the appeal and does not affect other parties. EXCEPTION: a. When the claims are intimately intertwined. b. When their claims are not severable.

What is the effect of failure to present proof of service of copies to the lower court and on the adverse party? Lack of proof of service of copies to the lower court and the adverse party shall result to the outright of the dismissal of the appeal. 170 of 229

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MA’AM AVENA’s OVERVIEW and CHECKLIST OF MODES OF APPEALS 1. Period to file an appeal

2. Motion to Extend

3. Verified? 4. No. of copies to be submitted to the appellate court 5. Docket fees 6. Service to adverse party of appeal.

7. Contents of the Petition

8. CHECKLIST

RULE 40 15 days from notice of order (notice of appeal) 30 days from notice of order (record on appeal) NO extension for MNT/MR

Proof of payment Copies served to parties. MTC furnishes copies of transmittal to parties a. Parties to the appeal. b. judgment/ order appealed from c. material dates rule

Notice of Appeal 1. Parties 2. judgment/ final order appealed from 3. material dates rule Proof of payment of docket fees - Memorandum of appellant or appellee

RULE 42 15 days notice

from

1st Extension: 15 days (but with payment of fees) 2nd Extension: 15 days (for compelling reasons only) Yes 7 copies

Payment to CA

RULE 41 15 days from notice of order (notice of appeal) 30 days from notice of order (record on appeal) NO extension for MNT/MR

RULE 43 15 days from notice of order, judgment, publication or denial of MNT or MR 1st Extension: 15 days (but with payment of fees) 2nd Extension: 15 days (for compelling reasons only) Yes 7 copies

RULE 45 15 days from notice of order, judgment, publication or denial of MNT or MR 30 day extension ) only for justifiable reasons)

Payment of docket fees to CA

Pay fees to SC

a. Parties to the appeal. b. judgment/ order appealed from c. material dates rule d. copies of relevant pleadings (record on appeal)

a. Full name of parties b. Statement of facts and issues c. duplicate original or certified true copies of judgment/ order d. Certification against forumshopping e. material dates rule.

a. Full name of parties b. Material dates rule c. Statement of matters involving a question of law or fact, or both d. duplicate original or true copies of the judgment/ order e. Certification against forumshopping

Notice of Appeal Brief of Appellant 1. subject index 2. Assignment of errors 3. Statement of case 4. Statement of facts 5. Statement of issues 6. Argument/ relief 7. Copy of judgment or final order appealed from.

Notice of Appeal Brief of Appellant 1. subject index 2. Assignment of errors 3. Statement of case 4. Statement of facts 5. Statement of issues 6. Argument/ relief 7. Copy of judgment or final order appealed from.

Names of petitioner & respondent - Material dates rule material allegations or reasons or arguments for the allowance of the petition - Verification - CFS Attach: - certified true copy/ duplicate original of judgment significant pleadings Proof of Service

Proof of payment

Yes 18 copies

RTC furnishes copies of referral to parties.

a. Full name of parties b. Material dates rule c. Statement of matters involving a question of law or fact, or both d. duplicate original or true copies of the judgment/ order e. Certification against forumshopping f. proof of service to parties. Notice of Appeal - full names of petitioner & respondent - Statement of material dates - Statement of issues, errors of fact or law - Arguments - CFS - Verification Attach: - certified true copy/ duplicate original of judgment significant pleadings Proof of service

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JONATHAN PAMPOLINA the amount of P500.00 for costs at the time of the filing of the petition. The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. (Sec. 3, Rule 46)

XXIII. Original Actions in CA Rule 46 ORIGINAL CASES Title of cases.

In all cases originally filed in the Court of Appeals, a. the party instituting the action shall be called the petitioner and b. the opposing party the respondent. (Sec. 1, Rule 46)

To what actions applicable.

This Rule shall apply to original actions for certiorari, prohibition, mandamus and quo warranto. (Sec. 2, Rule 46) Except as otherwise provided, (Sec. 2, Rule 46) 1. the actions for annulment of judgment shall be governed by Rule 47, 2. for certiorari, prohibition and mandamus by Rule 65, and 3. for quo warranto by Rule 66.

Contents and filing of petition; compliance with requirements.

effect of non-

The petition shall contain a. the full names and actual addresses of all the petitioners and respondents, b. a concise statement of the matters involved, the factual background of the case, and c. the grounds relied upon for the relief prayed for. In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received. It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as are referred to therein, and other documents relevant or pertinent thereto. The certification shall be accomplished by the proper clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal, agency or office involved or by his duly authorized representative. The other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of all documents attached to the original. The petitioner shall also submit together with the petition a sworn certification that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. {Certification against forum shopping} The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and deposit

Jurisdiction acquired.

over

person

of

respondent,

how

The court shall acquire jurisdiction over the person of the respondent by the service on him of its order or resolution indicating its initial action on the petition or by his voluntary submission to such jurisdiction. (Sec. 4, Rule 46)

Action by the court.

The court may dismiss the petition outright with specific reasons for such dismissal or require the respondent to file a comment on the same within ten (10) days from notice. Only pleadings required by the court shall be allowed. All other pleadings and papers may be filed only with leave of court. (Sec. 5, Rule 46)

Determination of factual issues. Whenever necessary to resolve factual issues, the court itself may a. conduct hearings thereon or b. delegate the reception of the evidence on such issues to any of its members or to an appropriate court, agency or office. (Sec. 6, Rule 46)

Effect of failure to file comment. When no comment is filed by any of the respondents, the case may be decided on the basis of the record, without prejudice to any disciplinary action which the court may take against the disobedient party. (Sec. 7, Rule 46)

RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS Coverage.

This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. (Sec. 1, Rule 47)

Grounds for annulment. The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. (Sec. 2, Rule 47)

Period for filing action.

A. If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; B. and if based on lack of jurisdiction, before it is barred by laches or estoppel.

Filing and contents of petition.

The action shall be commenced by filing a verified petition alleging therein with particularity

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a. the facts and the law relied upon for annulment, b. as well as those supporting the petitioner's good and substantial cause of action or defense, as the case may be. The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies corresponding to the number of respondents. A certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition intended for the court and indicated as such by the petitioner. The petitioner shall also submit together with the petition affidavits of witnesses or documents supporting the cause of action or defense and a sworn certification that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same, and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. {Certification against forum-shopping} (Sec. 4, Rule 47)

Action by the court. Should the court find no substantial merit in the petition, the same may be dismissed outright with specific reasons for such dismissal. Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served on the respondent. (Sec. 5, Rule 47)

Procedure. The procedure in ordinary civil cases shall be observed. Should a trial be necessary, the reception of the evidence may be referred to a member of the court or a judge of a Regional Trial Court. (Sec. 6, Rule 47)

Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. (Sec. 7, Rule 47)

Suspension of prescriptive period.

The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. (Sec. 8, Rule 47)

Relief available. The judgment of annulment may include the award of damages, attorney's fees and other relief. If the questioned judgment or final order or resolution had already been executed, the court may issue such orders of restitution or other relief as justice and equity may warrant under the circumstances. (Sec. 9, Rule 47)

Annulment of judgments or final orders of Municipal Trial Courts.

An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (Sec. 10, Rule 47)

Regalado Notes Counsel filed an original action for certiorari with the CA but forgot to attach a certification against forum shopping. After discovering his mistake, he belatedly submits the CFS. Should the CA dismiss the appeal outright? Yes. The lack of CFS is generally NOT curable by the submission thereof after the filing of a petition. In exceptional circumstances, however, such as the filing of the certification a day after but within the reglementary period for filing such petition, the belated filing was allowed as a substantial compliance. While the filing of the certification is mandatory, still the requirement must not be interpreted literally. (Shipside, Inc. v. CA, GR No. 14377, 20 February 2001) When should the deposit for costs be made? The deposit for costs is required to be made upon the filing of the complaint, unlike before wherein the costs are required upon notice after the petition is given due course. The failure of the respondent to file the required comment results in a declaration of default and default judgment against respondent. True or false? False. The failure of the respondent to file the required comment does NOT result in a sanction similar to defaults in the TC, since the appellate court may just decide that case on the basis of the record before it, specifically the petition and its attachments but sans the comment or any representation in behalf of the respondent. What kind of remedy is annulment of a judgment under Rule 47? Annulment of a judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The judgment may be annulled on the ground of extrinsic or collateral fraud. A person who is not a party to the judgment may sue for its annulment provided he can prove that the same was obtained through fraud or collusion and that he would be adversely affected thereby. An action for annulment of judgment may be availed of even if the judgment to be annulled has already been fully executed or implemented. (Islamic Da’Wah Council of the Phils. v. CA, GR No. 80892, 29 September 1989)

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What is the most important condition for availment of annulment of judgment under Rule 47? The petitioner failed to move for new trial in, or appeal from, or file a petition for relief against or take other appropriate remedies assailing the questioned judgment or final order or resolution through no fault attributable to him. What is extrinsic or collateral fraud that can be a ground for a Rule 47 remedy? Extrinsic or collateral fraud is such that was not revealed to or was even deliberately suppressed from the opposing party and the court, hence relief under Rule 47 is available subject to certain conditions. If such ground of extrinsic fraud had really been availed of by the party in a MNT or PFR in the original court and was rejected with finality, he should not be permitted another chance on the same ground which had been concluded by the adjudication of the case thereon. If, on the other hand, he did not avail himself thereof, then he must suffer the consequences of his implied waiver.

annulment of judgment, petitioner must first exhaust all remedies available. Van Melle v. Endaya The petition did not contain an attachment of final order or proceeding that was being appealed from.

What are the two stages in evaluating a petition for annulment of judgment? 1. Preliminary evaluation of the petition for prima facie merit therein, 2. If in the affirmative, the issuance of summons as in ordinary civil cases and such appropriate proceedings thereafter. *Similar to the procedure in Rule 38. What is the remedy of the aggrieved party from a decision annulling a prior judgment under Rule 47? 1. If the annulment is on the ground of lack of jurisdiction, the aggrieved party may refile the action in the proper court. 2. If the annulment is based on extrinsic fraud committed by the offending party, the prevailing party, on motion based on justifiable grounds, need not refile the action and the TC which rendered the judgment can be ordered to try the case anew as if a timely MNT had been granted therein. *The difference lies in the fact that in the second process, the original judgment was not tainted by jurisdictional defects, but by the deception which resulted in prejudicial errors therein. Macapagal v. CA; Silverio v. CA Macapagal, a board member of Philippine Finance, was not made aware of the judgment. A petition for annulment of judgment because of extrinsic fraud is proper. Lazaro v. Rural Bank. Summons was served in Valenzuela and not in Katipunan residence. Before one can invoke R47 174 of 229

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XXIV. Procedure in CA Rule 44 ORDINARY APPEALED CASES Title of cases. In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. (Sec. 1, Rule 44)

Counsel and guardians. The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court. (Sec. 2, Rule 44)

Order of transmittal of record.

If the original record or the record on appeal is not transmitted to the Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal. (Sec. 3, Rule 44)

Docketing of case.

Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof. Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with the clerk of court seven (7) clearly legible copies of the approved record on appeal, together with the proof of service of two (2) copies thereof upon the appellee. Any unauthorized alteration, omission or addition in the approved record on appeal shall be a ground for dismissal of the appeal. (Sec. 4, Rule 44)

Completion of record.

Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform said court and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. (Sec. 5, Rule 44)

Dispensing with complete record. Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult causes, the court, on its own motion or on motion of any of the parties, may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration. (Sec. 6, Rule 44)

Appellant's brief.

JONATHAN T. PAMPOLINA It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee. (Sec. 7, Rule 44)

Contents of appellant's brief.

The appellant's brief shall contain, in the order herein indicated, the following: (a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; (b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; (c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record; (d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; (e) A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment; (f) Under the heading "Argument," the appellant's arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found; (g) Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and (h) In cases not brought up by record on appeal, the appellant's brief shall contain, as an appendix, a copy of the judgment or final order appealed from. (Sec. 13, Rule 44)

Appellee's brief. Within forty-five (45) days from receipt of the appellant's brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant. (Sec. 8, Rule 44)

Contents of appellee's brief.

The appellee's brief shall contain, in the order herein indicated, the following: (a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; (b) Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in the appellant's brief, or under the heading "Counter-Statement of Facts," he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant's statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant's statement of facts; and (c) Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 case begins and the page of the report on which the citation is found. (Sec. 14, Rule 44)

Appellant's reply brief. Within twenty (20) days from receipt of the appellee's brief, the appellant may file a reply brief answering points in the appellee's brief not covered in his main brief. (Sec. 9, Rule 44)

Time for filing memoranda in special cases. In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record. The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal. (Sec. 10, Rule 44)

Several appellants or appellees or several counsel for each party.

JONATHAN T. PAMPOLINA

Record of the conference.

The proceedings at such conference shall be recorded and, upon the conclusion thereof, a resolution shall be issued embodying all the actions taken therein, the stipulations and admissions made, and the issues defined. (Sec. 2, Rule 48)

Binding effect of the results of the conference.

Subject to such modifications which may be made to prevent manifest injustice, the resolution in the preceding section shall control the subsequent proceedings in the case unless, within five (5) days from notice thereof, any party shall satisfactorily show valid cause why the same should not be followed. (Sec. 3, Rule 48)

RULE 49 ORAL ARGUMENT When allowed.

Where there are several appellants or appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. (Sec. 11, Rule 44)

At its own instance or upon motion of a party, the court may hear the parties in oral argument on the merits of a case, or on any material incident in connection therewith. The oral argument shall be limited to such matters as the court may specify in its order or resolution. (Sec. 1, Rule 49)

Extension of time for filing briefs.

Conduct of oral argument.

Extension of time for the filing of briefs will not be allowed, Except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. (Sec. 12, Rule 44)

Questions that may be raised on appeal.

Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. (Sec. 15, Rule 44)

Rules 48 to 54 RULE 48 PRELIMINARY CONFERENCE Preliminary conference. At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference: (a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised; (b) To define, simplify and clarify the issues for determination; (c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and (d) To take up such other matters which may aid the court in the prompt disposition of the case. (Sec. 1, Rule 48)

Unless authorized by the court, only one counsel may argue for a party. The duration allowed for each party, the sequence of the argumentation, and all other related matters shall be as directed by the court. (Sec. 2, Rule 49)

No hearing or oral argument for motions.

Motions shall not be set for hearing and, unless the court otherwise directs, no hearing or oral argument shall be allowed in support thereof. The adverse party may file objections to the motion within five (5) days from service, upon the expiration of which such motion shall be deemed submitted for resolution. (Sec. 3, Rule 49)

RULE 50 DISMISSAL OF APPEAL Grounds for dismissal of appeal.

An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41; (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellant's brief, or of page references to the record

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. (Sec. 1, Rule 50)

Dismissal of improper appeal to the Court of Appeals.

An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. (Sec. 2, Rule 50)

Withdrawal of appeal.

An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of the court. (Sec. 3, Rule 50)

RULE 51 JUDGMENT When case deemed submitted for judgment. A case shall be deemed submitted for judgment:

A. In ordinary appeals.

1) Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period for its filing. 2) Where such a hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. (Sec. 1, Rule 51)

B. In original actions and petitions for review.1) Where no comment is filed, upon the expiration of the period to comment. 2) Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing. 3) Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. (Sec. 1, Rule 51)

By whom rendered. The judgment shall be rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. (Sec. 2, Rule 51)

Quorum and voting in the court. The participation of all three Justices of a division shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution.

JONATHAN T. PAMPOLINA If the three Justices do not reach a unanimous vote, the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from among all the other members of the court to sit temporarily with them, forming a special division of five Justices. The participation of all the five members of the special division shall be necessary for the deliberation required in section 2 of this Rule and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. (Sec. 3, Rule 51)

Disposition of a case. The Court of Appeals, in the exercise of its appellate jurisdiction, a. may affirm, b. reverse, or c. modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be had. (Sec. 4, Rule 51)

Form of decision.

Every decision or final resolution of the court in appealed cases shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed from. (Sec. 5, Rule 51)

Harmless error.

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties. (Sec. 6, Rule 51)

Judgment where there are several parties.

In all actions or proceedings, an appealed judgment may be affirmed as to some of the appellants, and reversed as to others, and the case shall thereafter be proceeded with, so far as necessary, as if separate actions had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper. (Sec. 7, Rule 51)

Questions that may be decided.

No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an assigned error and properly argued in the brief, save as the court may pass upon plain errors and clerical errors. (Sec. 8, Rule 51)

Promulgation and notice of judgment. After the judgment or final resolution and dissenting or separate opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 and cause true copies thereof to be served upon the parties or their counsel. (Sec. 9, Rule 51)

Entry of judgments and final resolutions. If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final resolution shall forthwith be entered by the clerk in the book of entries of judgments. The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry. The record shall contain the dispositive part of the judgment or final resolution and shall be signed by the clerk, with a certificate that such judgment or final resolution has become final and executory. (Sec. 10, Rule 51)

Execution of judgment. Except where the judgment or final order or resolution, or a portion thereof, is ordered to be immediately executory, the motion for its execution may only be filed in the proper court after its entry. In original actions in the Court of Appeals, its writ of execution shall be accompanied by a certified true copy of the entry of judgment or final resolution and addressed to any appropriate officer for its enforcement. In appealed cases, where the motion for execution pending appeal is filed in the Court of Appeals at a time that it is in possession of the original record or the record on appeal, the resolution granting such motion shall be transmitted to the lower court from which the case originated, together with a certified true copy of the judgment or final order to be executed, with a directive for such court of origin to issue the proper writ for its enforcement. (Sec. 11, Rule 51)

RULE 52 MOTION FOR RECONSIDERATION Period for filing. A party may file a motion for reconsideration of a judgment or final resolution within fifteen (15) days from notice thereof, with proof of service on the adverse party. (Sec. 1, Rule 52)

Second motion for reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. (Sec. 2, Rule 52)

Resolution of motion.

In the Court of Appeals, a motion for reconsideration shall be resolved within ninety (90) days from the date when the court declares it submitted for resolution. (Sec. 3, Rule 52)

Stay of execution.

The pendency of a motion for reconsideration filed on time and by the proper party shall stay the execution of the judgment or final resolution sought to be reconsidered unless the court, for good reasons, shall otherwise direct. (Sec. 4, Rule 52)

RULE 53 NEW TRIAL Period for filing; ground.

JONATHAN T. PAMPOLINA At any time after the appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new trial on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. (Sec. 1, Rule 53)

Hearing and order. The Court of Appeals shall consider the new evidence together with that adduced at the trial below, and may grant or refuse a new trial, or may make such order, with notice to both parties, as to the taking of further testimony, either orally in court, or by depositions, or render such other judgment as ought to be rendered upon such terms as it may deem just. (Sec. 2, Rule 53)

Resolution of motion.

In the Court of Appeals, a motion for new trial shall be resolved within ninety (90) days from the date when the court declares it submitted for resolution. (Sec. 3, Rule 53)

Procedure in new trial.

Unless the court otherwise directs, the procedure in the new trial shall be the same as that granted by a Regional Trial Court. (Sec. 4, Rule 53)

RULE 54 INTERNAL BUSINESS Distribution of cases among divisions.

All the cases of the Court of Appeals shall be allotted among the different divisions thereof for hearing and decision. The Court of Appeals, sitting en banc, shall make proper orders or rules to govern the allotment of cases among the different divisions, the constitution of such divisions, the regular rotation of Justices among them, the filling of vacancies occurring therein, and other matters relating to the business of the court; and such rules shall continue in force until repealed or altered by it or by the Supreme Court. (Sec. 1, Rule 54)

Quorum of the Court. A majority of the actual members of the court shall constitute a quorum for its session en banc. Three members shall constitute a quorum for its sessions of a division. The affirmative votes of the majority of the members present shall be necessary to pass a resolution of the court en banc. The affirmative votes of three members of a division shall be necessary for the pronouncement of a judgment or final resolution, which shall be reached in consultation before the writing of the opinion by any member of the division. (Sec. 2, Rule 54)

Regalado Notes Can the CA consider errors that were not assigned in the appellant’s brief?

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

GENERAL RULE: No. Only errors specifically assigned and properly argued in the brief will be considered. EXCEPTIONS: a. Unassigned errors affecting jurisdiction over the subject matter and plain and clerical errors. b. Unassigned errors closely related to or dependent upon an assigned error and properly argued in the brief. c. Unassigned errors which are necessary for a just decision in the case, or in the interest of justice, if they involve questions passed upon in the TC and are matters of record having some bearing on the issues submitted. (Korean Airlines v. CA, GR No. 114061, 3 August 1994) The basic procedural rule is that only errors claimed and assigned by a party will be considered by the court, EXCEPT errors affecting its jurisdiction over the subject matter. Can an appellee who has not appealed make assignment of errors of the decision of the lower court in his appellee’s brief? No. An appellee who has NOT appealed cannot make assignments of errors in his brief. (Gorospe v. Penaflorida, 101 Phil. 886) The appellee cannot assign errors to have the judgment modified, for to do so, he must have appealed (Appari v. CA, L-20274, 30 October 1965) Although, the appellee who has not appealed can make counter-assignments of errors in order to sustain the judgment. (Saenz v. Mitchel, 60 Phil. 69). An appellee, in his brief, can also argue on issues raised at the trial to sustain the judgment in his favor on other grounds, even if the same were not included in the decision of the court a quo nor raised in the appellant’s assignment of errors or arguments. Hence, the appellate court can affirm a judgment on grounds ignored or erroneously decided by the lower court. (Relativo v. Castro, 76 Phil. 563) What kind of questions can be raised on appeal? The ordinary appeal of cases can only raise questions of law or fact that a. were raised in the court below, and b. are within the issues framed by the parties therein. An issue which was neither averred in the complaint nor raised during the trial in the court below cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair play, justice and due process. Can parties change their theory of action or defense on appeal? No, since these change of theories would be outside the issues framed in the lower court. (Atkins, Kroll & Co., v. Chu Huan Tek, 102 Phil. 948) Will the reversal of a judgment on appeal affect parties who did not appeal?

JONATHAN T. PAMPOLINA

No. The reversal of a judgment on appeal is binding only on the parties in the appealed case and does not affect or inure to the benefit of whose who did not join or were not made parties to the appeal. However, where a judgment cannot be reversed as to the party appealing without affecting the rights and liabilities of the parties who did not appeal and those who appealed are so interwoven and dependent on each other as to be inseparable, a reversal as to one operates as a reversal as to all because of the community of their interests. (Tropical Homes Inc. v. Fortun, GR No. 51554, 13 January 1989). Just like other motions, motions in the SC and CA must contain notices of hearing. True or False. False. Motions in the SC and CA do not contain notices of hearing of said motions as NO oral arguments will be heard in support thereof. If the appellate court desiers to hold a hearing thereon, it will itself set the date with notice to the parties. If such notice of hearing is appended to the motion, the court may simply disregard the same. Are the grounds for dismissing an appeal under Sec. 1 Rule 50 mandatory? No. Except for Sec. 1 (b), the foregoing grounds for the dismissal of an appeal are DIRECTORY and not mandatory, and it is not the ministerial duty of the court to dismiss the appeal. (Ayala Land v. Carpo, GR No. 140162, 22 November 2000) Aside from the grounds enumerated under Sec. 1, Rule 50, what are the other grounds for the dismissal of an appeal? a. By agreement of the parties, as where the case was amicably settled by them. (Arcos v. Aradales, L27344, 28 May 1970) b. Where the appealed case has become moot or academic. (Camus v. CA, L-13125, 13 February 1969) c. Where the appeal is frivolous. (de la Cruz .v Blanco, 73 Phil. 596) A files an appeal under Rule 41 to the CA, questioning the decision of the RTC on a question of law. CA dismisses the case for lack of jurisdiction to hear cases on questions of law and forwards the case to the SC. Was the CA action proper? No. An appeal erroneously taken to the CA shall not be transferred to the appropriate court but shall be dismissed outright. Will the resolution of a division be valid, when two of the three justices are already resigned? No. To be binding, a judgment must be duly signed and promulgated during the incumbency of the judge who signed it. Where the decision was promulgated after two of the three justices necessary to constitute a quorum in a division had lost their authority to act as

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

justices by reason of the presidential acceptance of their resignations of which they were informed before such promulgation, said decision is null and void. (Lao v. To-Chip, GR No. 76594, 26 February 1988) When the CA in the exercise of its appellate jurisdiction directs a new trial or further proceedings to be had, can the CA hear the case? GENERAL RULE: No. The case shall ordinarily be remanded to the court a quo, as the CA is not essentially a trial court. EXCEPTION: Under Sec. 5, EO 33, “The CA shall have the power to receive evidence and perform any and all acts necessary to resolve factual issues raised on a. cases falling within its original jurisdiction, such as actions for annulment of judgments, as provided in paragraph (2) hereof, and b. cases falling within its appellate jurisdiction wherein a MNT based only on the ground of newly discovered evidence is granted by it. The CA will issue the writ of execution of its decisions. True or False. It depends on WON the CA exercises original or appellate jurisdiction. a. In actions originally commenced in the CA, the writ of execution shall be issued by it and addressed to any appropriate officer for its enforcement. To obviate any possible questions, the writ shall be accompanied by a certified true copy of the entry of judgment, final order or resolution. b. In cases pending on appeal in the CA, a motion for discretionary execution of the judgment of the TC may be filed in the CA, provided the CA is in possession of the original record or the record on appeal. If it grants the motion, it will NOT issue a writ of execution but shall order the court of origin to issue the writ upon receipt of its resolution granting the motion therefore. A copy of such resolution and a certified copy of the judgment or final order to be executed shall forthwith be transmitted to said trial court.

SC Resolution of February 17, 1998

Cucueco v. CA

Heirs of the Late Cruz Barredo v. Asis.

JONATHAN T. PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

XXV. Procedure in SC RULE 56-A ORIGINAL CASES Original cases cognizable. Only petitions for 1. certiorari, 2. prohibition, 3. mandamus, 4. quo warranto, 5. habeas corpus, 6. disciplinary proceeding against members of the judiciary and attorneys, and 7. cases affecting ambassadors, other public ministers and consuls may be filed originally in the Supreme Court. (Sec. 1, Rule 56-A)

Rules applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions: a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court; b) The portions of said Rules dealing strictly with and specifically intended for appealed cases in the Court of Appeals shall not be applicable; and c) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof of service on all adverse parties. (Sec. 2, Rule 56-A) The proceedings for disciplinary action against members of the judiciary shall be governed by the laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended. (Sec. 2, Rule 56-A)

RULE 56-B APPEALED CASES Mode of appeal. An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. (Sec. 3, Rule 56-B)

Procedure.

The appeal shall be governed by and disposed of in accordance with the applicable provisions of the constitution, laws, Rules 45, 48, Sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule. (Sec. 4, Rule 56-B)

Grounds for dismissal of appeal.

The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (a) Failure to take the appeal within the reglementary period; (b) Lack of merit in the petition; (c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs; (d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; (e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause; (f) Error in the choice or mode of appeal; and

JONATHAN T. PAMPOLINA (g) The fact that the case is not appealable to the Supreme court. (Sec. 5, Rule 56-B)

Disposition of improper appeal. Except as provided in Section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed. An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not issues of fact are involved shall be final. (Sec. 6, Rule 56-B)

Procedure if opinion is equally divided. Where the Court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the Court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. (Sec. 7, Rule 56-B)

See also Rule 45, 48, 51.1, 51.2, 51.5-11 and 52 Regalado Notes Can the SC review errors not assigned on appeal to it? Yes. The SC is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary in arriving a just decision of the case. It may consider an unassigned error closely related to an error properly assigned or upon which the determination of the question properly assigned is dependent. Furthermore, where the SC is in a position to resolve the dispute based on the records before it, it may resolve the action on the merits in the public interest and for the expeditious administration of justice, as such where the ends of justice would not be subserved by the remand of the case. (Roman Catholic Archbishop of Manila v. CA GR. 77425, 19 June 1991 and Sec. 8, Rule 51)

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T. PAMPOLINA

XXVI. Provisional Remedies Overview of Provisional Remedies

Replevin (R60)

1. 2. 3. 4. 5.

Support Pendente (R61)

Preliminary Attachment (Rule 57) Preliminary Injunction (Rule 58) Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite (Rule 61)

Lite

appointment of the receiver has been applied for ex parte. Amount is double the value of the personal property to be seized. No bond is generally required from the applicant.

1. Preliminary Attachment (Rule 57) Preliminary Considerations What are provisional remedies? Provisional remedies, also known as ancillary or auxiliary remedies, are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgement in the case. They are provisional because they constitute temporary measures availed of during the pendency of the action and they are ancillary because they are mere incidents in and are dependent upon the result of the main action. Can the MeTC, MTC and MCTC grant provisional remedies? Yes. All inferior courts can grant all appropriate provisional remedies, provided that the main action is within their jurisdiction. WHEN ARE PROVISIONAL REMEDIES AVAILABLE. Provisional Remedy Preliminary Attachment (R57) Preliminary Injunction (R58) Receivership (R59)

Replevin (R60) Support Pendente Lite (R61)

When Available At any stage of the action but before the entry of a final judgment in the case. At any stage of the action but before the entry of a final judgment in the case. At any stage of the action or proceeding and even after final judgment therein in order to preserve the property involved or to aid execution or otherwise to carry the judgment into effect. Before the defendant files his answer At any stage of the action, and even for the first time on appeal provided the basis or propriety thereof was established at the trial, but before the final judgment in said case on appeal.

Amount of Bond Required for Provisional Remedies. Provisional Remedy Preliminary Attachment (R57) Preliminary Injunction (R58) Receivership (R59)

Amount of Bond Sound discretion of the court.

Sound discretion of the court. Bond is fixed by the court and always required of the petitioner, WON the

Bautista’s Overview of Procedure for Preliminary Attachment MOTION FOR PRELIMINARY ATTACHMENT Party files a motion for Preliminary Attachment in court in which the action is pending or in the CA or SC. (Adverse party must have notice of the motion.) *By Who: Any party including a defendant on his counterclaim, a co-party on his cross claim, or 3rd party plaintiff on his 3rd party claim. *When: At the commencement of the action, or at any time before entry of judgment ↓ AFFIDAVIT Applicant or some other person who personally knows the facts must submit an affidavit. CONTENTS of the Affidavit: 1. His cause of action (which must be found to be existing and sufficient) 2. The ground for the application is covered by the instances provided for in Sec. 1, Rule 57 3. There is NO other sufficient security for the claim sought to be enforced by the action 4. The amount due to the applicant, or the value of the property the possession of which is entitled to recover, is as much as the sum for which the order is granted above all legal counter claims. ↓ BOND Applicant must then give a bond executed to the adverse party in the amount fixed by the court in its order. *CONDITIONS of the BOND: The applicant will pay all the costs which may be adjudged to theadverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudged that the applicant was not entitled to the writ. ↓ HEARING ON THE MOTION ↓ DECISION OF THE COURT ON THE MOTION The court will decide WON to grant the writ and issue its order accordingly. ↓ ENFORCEMENT OF THE WRIT If the court grants the writ, then the sheriff shall enforce the writ without delay and with all reasonable diligence. *The property attached should be located in the Philippines, belong to the party against whom the writ is issued, not exempt from execution and be sufficient to satisfy the applicant’s demand (not excessive). ↓ Enforcement of the Writ must be preceded or contemporaneously accompanied by the following: 1. Service of Summons 2. Copy of the Complaint

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 3. Copy of the Application for Attachment 4. A copy of the applicant’s affidavit and bond 5. Order and Writ of Attachment EXCEPTIONS to Contemporaneous Service of Summons a. Where personal or substituted service of summonds could not be effected despite diligent efforts b. The defendant is a resident of the Philippines temporarily absent therefrom c. The defendant is a non-resident of the Philippines. d. The action is one in rem or quasi in rem. ↓ SHERIFF”S RETURN After enforcing the writ, the sheriff must without delay, make a return of the writ to the court which issued it. *The return must be accompanied by the following: a. Full statement of proceedings under the writ. b. Complete inventory of the property attached. c. Counter-bond, if any, given by the party against whom the attachment was issued. ** The sheriff shall also serve copies of the foregoing on the applicant. ↓ APPLICATION FOR DISCHARGE The party whose property was attached or his agent, may move for the discharge of the attachment wholly or in part on the security given. ↓ SATISFACTION OF JUDGMENT The sheriff may then cause the judgment to be satisfied out of the property attached as follows: (a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment; (b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's hands, or in those of the clerk of the court; (c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determine by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee.

RULE 57 PRELIMINARY ATTACHMENT Grounds upon which attachment may issue. At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines which intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty;

JONATHAN T. PAMPOLINA (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. (Sec. 1, Rule 57)

Issuance and contents of order.

An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. (Sec. 2, Rule 57)

Affidavit and bond required. An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, a. that a sufficient cause of action exists, b. that the case is one of those mentioned in section 1 hereof, c. that there is no other sufficient security for the claim sought to be enforced by the action, and d. that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues. (Sec. 3, Rule 57)

Condition of applicant's bond.

The party applying for the order must thereafter give a bond executed to the adverse party a. in the amount fixed by the court in its order granting the issuance of the writ, b. conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudged that the applicant was not entitled there to. (Sec. 4, Rule 57)

Manner of attaching property. The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counter bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. (Sec. 5, Rule 57) No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, a. by service of summons, b. together with a copy of the complaint, c. the application for attachment, d. the applicant's affidavit and bond, and e. the order and writ of attachment, on the defendant within the Philippines. (Sec. 5, Rule 57) The requirement of prior or contemporaneous service of summons shall not apply a. where the summons could not be served personally or by substituted service despite diligent efforts, or b. the defendant is a resident of the Philippines temporarily absent therefrom, or c. the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. (Sec. 5, Rule 57)

Sheriff's return.

After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from which the writ issued, a. with a full statement of his proceedings under the writ and b. a complete inventory of the property attached, c. together with any counter-bond given by the party against whom attachment is issued, and serve copies thereof on the applicant. (Sec. 6, Rule 57)

Attachment of real and personal property; recording thereof. Real and personal property shall be attached by the sheriff executing the writ in the following manner: (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deed of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently

JONATHAN T. PAMPOLINA accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment; (b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor; (c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; (d) Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; (e) The interest of the party whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. (Sec. 7, Rule 57)

Effect of attachment of debts, credits and all other similar personal property. All persons having in their possession or under their control any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. (Sec. 8, Rule 57)

Effect of attachment of interest in property belonging to the estate of a decedent.

The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee,

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. (Sec. 9, Rule 57)

Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to sheriff. Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and be examine on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk of the court or sheriff on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action. (Sec. 10, Rule 57)

When attached property may be sold after levy on attachment and before entry of judgment. Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the party attached is perishable, or that the interests of all the parties to the action will be will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. (Sec. 11, Rule 57)

Discharge of attachment upon giving counter bond.

After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counterbond shall secure the payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forth with be served on the attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any reason to be found to be or become insufficient, and the party furnishing the same fail to file an additional counter-bond, the

JONATHAN T. PAMPOLINA attaching party may apply for a new order of attachment. (Sec. 12, Rule 57)

Discharge of attachment on other grounds. The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharged the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith. (Sec. 13, Rule 57)

Proceedings person.

where

property

claimed

by

third

If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and a. such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and b. serves such affidavit upon the sheriff while the latter has possession of the attached party, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. (Sec. 14, Rule 57)

Satisfaction of judgment out of property attached; return of sheriff.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner: (a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment; (b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's hands, or in those of the clerk of the court; (c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determine by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. (Sec. 15, Rule 57) The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with copies thereof. (Sec. 15, Rule 57)

Balance due collected upon an execution; excess delivered to judgment obligor. After realizing upon all the property attached, including the proceed of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment, less the expenses of proceedings upon the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment. (Sec. 16, Rule 57)

Recovery upon the counter-bond. When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. (Sec. 17, Rule 57)

Disposition of money deposited. Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be rendered to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. (Sec. 18, Rule 57)

Disposition of attached property where judgment is for party against whom attachment was issued. If judgment be rendered against the attaching party, all the proceeds of sales and money collected or

JONATHAN T. PAMPOLINA received by the sheriff, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. (Sec. 19, Rule 57)

Claim for damages on account of improper, irregular or excessive attachment. An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case. If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court. Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award. (Sec. 20, Rule 57)

Regalado Notes. Only the plaintiff can ask for a preliminary attachment. True or False. False. Under the Rules, any party, not only the plaintiff can avail of preliminary attachment as long as any of the grounds therefore exist. A defendant on his counterclaim, a co-party on his cross-claim, and a third party plaintiff on his thirdparty claim may move for the issuance of the writ. Can a party ask for preliminary attachment after entry of judgment? No. Where the judgment is already final and executory, a motion for execution is the proper remedy. The property of a foreign corporation duly licensed to do business in the Philippines can be attached based solely on the ground of being a foreign corporation. True or False. False. A foreign corporation duly licensed to do business in the Philippines is NOT A NONRESIDENT within the meaning of Sec. 1 (f), Rule 57, hence, its property here may not be attached on the mere ground that its is a non-resident. The authorization for the issuance of a writ of attachment against a non-resident defendant does not apply to

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T. PAMPOLINA

corporations but to natural persons only. (Claude Neon Lights v. Phil. Advertising Corp., 57 Phil. 607)

The only requisites for the issuance of the writ are the affidavit and bond of the applicant.

Is the insolvency of the defendant debtor a ground for issuance of a writ of preliminary attachment? No. (Aboitiz & Co., Inc. v. Prov. Sheriff, L35990, 17 June 1981)

What property is exempt attachment or garnishment? Property exempt from exempt from preliminary garnishment.

What are the two forms of attachment? 1. Regular form of attachment refers to corporeal property in the possession of the party. 2. Garnishment refers to money, stocks, credits and other incorporeal property which belongs to the party but is in the possession or under the control of a third person. What is garnishment? Garnishment is a species of attachment for reaching the property or credits pertaining or payable to a judgment debtor. It results in a forced novation by the substitution of creditors, that is, the judgment debtor who is the original creditor of the garnishee is, through service of the writ of garnishment, substituted by the judgment creditor who thereby becomes the creditor of the garnishee. What is the purpose of preliminary attachment? 1. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment 2. To enable the court to acquire jurisdiction over the action by the actial or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be affected. (Mabunag v. Gallimore, 81 Phil. 354) Is there a difference between the order of preliminary attachment and the writ of preliminary attachment? Yes. The order can be signed only by the judge himself. The order is based on the motion filed therefore and any opposition thereto and may or may not contain the specific details but only the nature of the acts desired by the court. An implementing writ may be sgned and issued either by the clerk of court or the presiding judge. The writ shall be based on the order and shall contain the details required by the latter or the provisions of the law or Rules governing the same. Is notice and hearing required for preliminary attachment? No. A writ of preliminary attachment may be sought and issued ex parte. No notice to the adverse party is required, as the time which the hearing will entail could be enough to enable the defendant to abscond or dispose of his property before the writ of preliminary attachment issues. What are the requisites for the issuance of the writ of preliminary attachment?

from

preliminary

execution is also attachment or

What is the effect of an affidavit that lacks one of the allegations in Sec. 3, Rule 57? For a writ of attachment to be valid, the affidavit filed therefor must contain all the alleagations required. Failure to do so renders the writ totally defective as the judge issuing the writ acts in excess of jurisdiction. (K.O. Glas Consturction v. Valenzuela, L-48756, 11 September 1982) If the obligation under litigation is duly secured by a REM, but the mortgagee, instead of foreclosing the property, filed an ordinary action to recover the sum of money involved, can the mortgagee apply for a writ of preliminary attachment? No. Mortgagee is not entitled to a writ of preliminary attachement, since Sec. 3 of Rule 57 authorizes the same only if there is NO OTHER SUFFICIENT SECURITY for the plaintiff’s claim. (Salgado v. CA, GR No. 55381, 26 March 1984) What are the three stages of granting the provisional remedy of attachment? 1. The court issues the order granting the application. 2. The writ of preliminary attachment issues pursuant to the order granting the same. 3. The writ is implemented. Is it necessary that jurisdiction over the person of the defendant be first obtained? No. Jurisdiction over the defendant is not necessary during the first two stages (order of the court and issuance of the writ). However, once the implementation commences, the court must have acquired jurisdiction over the defendant, otherwise the court has not power and authority to act in any manner against or bind the defendant. (Cuartero v. CA, G.R. No. 102448 3 August 1992) What is the purpose of the bond posted by the attaching creditor? The bond posted by the attaching creditor responds for the damages and accosts which may be adjudged to the adverse party arising from and by reason of the attachment. Consequently, there must be a finding the decision of the court imposing such liabilityand the costs shall only br those arising from the attachment itself and not the other judicial costs that may be imposed against the losing party. (Rocco v. Meads, 96 Phil. 885) Generally, the liability on the attachment bond provided for in this section is limited to actual

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

damages, but moral and exemplary damages may be recovered where the attachment was alleged and proved to be malicious. What is the purpose of an attaching debtor’s counter bond? The counter bond posted for the discharge of attachment responds for the payment of the judgment recovered by the attaching creditor, regardless of the wordings of the bond. The plaintiff succeeds attaching the P10M house and lot of defendant for a debt amounting only to P2.5M. Can the defendant ask that his car worth P3M be substituted instead? No. There is no rule allowing substitution of attached property. Although an attachment may be discharged wholly or in part upon the security of a counter-bond offered by the defendant upon application to the court, with notice to and after hearing the attaching creditor. If the attachment is excessive, the remedy of the defendant is to apply for the court for a reduction or partial discharge and substitution of the attached properties. Otherwise, the lien acquired by the plaintiff creditor as of the date of the original levy would be lost and this would, in effect, constitute a deprivation without due process of law of the attaching creditor’s interest in the attached property as security for the satisfaction of the judgment which he may obtain. (Santos v. Aquino, Jr., G.R. No. 86181-82, 31 January 1992) Are the goods imported into the country by the defendant-debtor, but subject to the possession of the Collector of Customs and before duties have been paid, subject to attachment? No. The customs authorities have exclusive jurisdiction of the goods and such writ of attachment would constitute the Collector of Customs as bailee over said goods, a duty incompatible with his duties under the Tariff and Customs Code. (Virata v. Aquino, L-35027, 10 September 1978). Between an attaching creditor and a prior mortgagee over the attached property, who has a better right to the property? Where the property attached by the judgment creditor has been previously mortgaged, the judgment creditor’s lien if inferior to that of the mortgagee which must first be satisfied in the event of foreclosure. In reality, what was attached by the judgment creditor was merely the judgment creditor’s right or equity of redemption. (Top Rate International Service, Inc., v. IAC, GR. 67496, 7 July 1986) Is it necessary that the garnishee be served with summons in order that the TC may acquire jurisdiction to bind him? No. Garnishee need not also be impleaded as a party to the case. All that is necessary is the

JONATHAN T. PAMPOLINA

service upon him of the writ of garnishment, as a consequence of which he becomes a virtual party or a forced intervenor in the case and the TC thereby acquires jurisdiction to require compliance by him with all its orders and processes. (Perla Compania de Seguros, Inc., v. Ramolete, G.R. No. 60884, 13 November 1991) Under Sec. 10 of Rule 57, the examination of party whose property is attached is properly only when the writ of preliminary attachment is returned unsatisfied. True or False. False. The examination under Rule 57, unlike examinations under execution of judgments (Rule 39), is not subject to a preliminary condition but is anticipatory in nature and may be resorted to even if the writ of attachment was not returned because no property could be found to be levied upon thereunder. Of course, if the attaching party has succeeded in locating property of the adverse party sufficient for purposes of the property levy, it would be unnecessary for him to resort to the examination contemplated in Sec. 10, Rule 57. Can the garnishee refuse to submit to examination under Sec. 10, Rule 57? Yes. The court which issued the writ of attachment cannot compel the garnishee to appear before it for examination as Sec. 10 of Rule 57 applies only where the garnishee admits having in his possession property belonging to the defendant. (MERALCO v. Genbancor Dev. Corp, L-41756, 30 July 1976). If the garnishee does not admit the indebtedness or he claims the property, the controversy must be determined in an independent action. (Burca Corp., v. Macadaeg, 84 Phil. 493) The attaching creditor may, however, resort to modes of discovery. When will a preliminary attachment be discharged? A prelimnary attachment shall be discharged when it is established that: a. The debtor has posted a counter bond or has made the requisite cash deposit b. The attachment was improperly or irregularly issued as hwere there is no ground for attachment, or the affidavit and/or bond filed therefor was defective or insufficient. c. The attachment is excessive, but the discharge shall be limited to the excess d. The property attached is exempt from execution, hence exempt from preliminary attachment. e. The judgment is rendered against the attaching creditor. Can there be an ex parte discharge of the attachment? No. Where the attachment is challenged for having been illegally or improperly issued, there must be a hearing, with the burden of proof to

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

sustain the writ being on the attaching creditor. (Filinvest Credit Corp., v. Relova) Are the merits of the complaint triable in a motion to discharge an attachment? No. The merits of the complaint are not triable in a motion to discharge an attachment, otherwise an applicant for the dissolution of the writ could force a trial on the merits of the case on the strength alone of such motion. (Consolidated Bank and Trust Corp., v. CA, G.R. No. 84588, 29 May 1991) When the preliminary attachment is issued upon a ground which also constitutes the applicant’s cause of action, such as an action for money or property embezzled or fraudulently converted by the defendant, he is not allowed to move for the dissolution of the attachment under Sec. 13 of Rule 57 by offering the falsity of the averments in the applicant’s motion and supporting documents since the hearing on that motion for dissolution would be tantamount to a trial on the merits in the main action. (Chuidian v. Sandiganbayan, G.R. No. 139941, 19 January 2000) A third party claiming an interest in the attached property can file a separate action to vindicate his interest. True or False. True. Where the property of a defendant has been attached, a third party claiming an interest therein can maintain a separate action to vindicate his interest over the property and the injunctive relief granted in the latter case does NOT constitute an interference with the writ of attachment issued by the other court. (Traders Royal Bank v. IAC, G.R. No. 66321, 31 October 1984) In a case where a counter bond was filed against the attachment of the property, what is the effect if a subsequent writ of execution of a final judgment is returned unsatisfied? The liability of the counter bond automatically attaches without the need for the plaintiff to file a supplemental pleading to claim payment from the surety. (Vanguard Assurance Corp., v. CA, L-25921, 27 May 1975). If judgment was rendered against the attaching creditor but he proves that he acted in good faith in procuring such preliminary attachment, then the adverse party cannot recover on the attachment bond. True or False. True. (Banque General Belge v. Bull & Co., 84 Phil. 164.) Can the attaching creditor ask for damages for the attachment even on appeal? Yes. If the case is appealed and the judgment of the appellate court is in favor of the party whose property was attached, he can ask for damages sustained by him during the pendency of the appeal by filing a motion in the appellate court at

JONATHAN T. PAMPOLINA

any time before such judgment on appeal becomes executory. (Luneta Motor Co., v. Menendez, 117 Phil. 970) But if he did not apply for damages in the trial court, he cannot ask for damages during the pendency of the trial by motion in the appellat court. Can the attaching debtor claim for damages in a separate action? No. The claim for damages against the bond in an alleged wrongful attachment can only be sought in the same court where the bond was filed and the attachment was issued. The procedure for claiming damages outlined in Sec. 20 of Rule 57 is EXCLUSIVE, hence such claims for damages cannot be the subject of an independent action. EXCEPTIONS: 1. Where the principal case was dismissed for lack of jurisdiction by the TC without giving opportunity to the party whose property was attached to apply for and prove his claim for damages, and 2. Where the damages by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ was issued. Bautista Notes What is the difference between attachment and garnishment? Attachment usually refers to property being levied upon or being taken into actual custody of the sheriffs. Garnishment is a notice of sequestration. Can attachment be granted for unliquidated damages? No. Where the claim is for unliquidated damages, an attachment may not properly issue because then the applicant cannot swear that the amount due to him is as much as the sum for which the order is granted above all legal counterclaims. (Peregrina v. Panis, 133 SCRA 72) In a foreclosure suit, can property not subject of mortgage be subject of attachment? Yes. In an action to foreclose a REM, property not covered by the mortgage may be attached upon a showing that the mortgaged property is insufficient to cover the debt. (Reyes v. CFI, 55 Phil. 410) Classification of Attachments. According to Availaibility and Effects A. Preliminary - Resorted to at the commencement of the action or at any time before entry of judgment - Merely temporary. B. Final - Available after the judgment in the main action has become executory - For the satisfaction of a judgment, also known as levy upon execution.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 According to Form and Procedure of Enforcement A. Regular - Attachment of corporeal property in the possession of the party B. Garnishment - Attachment of money, stocks, credits, and other incorporeal property which belongs to the party but is in the possession or under the control of a third person.

JONATHAN T. PAMPOLINA

property first. In contrast with execution under Sec. 8, Rule 39, there is no order as to what property should first be attached. Motion to Set Aside/ Discharge Attachment Who files? When filed?

Modes of Attaching Property Kind of Property Real Property, or standing crops thereon or any interest therein

Personal Property capable of manual delivery Stocks or shares of any corporation or company or an interest therein. Debts and credits and other personal property not capable of manual delivery. Interest in property belonging to the estate of a decedent

Property in custodia legis

Mode of Attachment - File a copy of the order with the Register of Deeds, together with a description of the property attached, and a notice that it is attached. - Leave a copy of such order, description and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. - By taking and safely keeping it in sheriff’s custody and issuing the corresponding receipt. - By leaving with the President or managing agent thereof, a copy of the writ and a notice stating that the stock or interest is attached in pursuance of the writ - By leaving with the debtor, or person having possession or control of the credits or other personal property, or his agent a copy of the writ, and the proper notice. - By serving the executor or administrator or other personal representative of the decedent with a copt of the writ and notice. - By filing a copy of the writ and notice with the clerk of court in which the estate is being settled - By serving copies of the writ and notice upon the heir, legatee or devisee concerned. - By filing a copy of the writ with the proper court or quasi-judicial agency - By serving a notice of attachment upon the custodian of the property.

An overdraft is an accommodation by a bank, and is similar to a loan. Can the attaching creditor attach an overdraft? No. An overdraft account is not a credit in favor of the judgment debtor, because the latter, supposing he will ever avail himself thereto, will become a debtor instead of a creditor. Attaching an overdraft would be tantamount to compelling a person, by judicial process, to borrow funds with which to pay his judgment creditor. (Nava v. San Jose, L-3905, 31 October 1951) Defendant has a Benz, a Fortuner, and an Expedition. Can the plaintiff tell the sheriff which to take? The attachment debtor cannot direct the sheriff as to what properties to attach first, neither is there any requirement in the rules to attach personal

Grounds filing?

for

Party whose property has been ordered attached. While the action is pending, before or after levy, or even after release of the attached property. 1. The debtor has posed a counter-bond or has made the requisite cash deposit 2. The writ of attachment was improperly or irregularly issued 3. The writ of attachment was improperly or irregularly enforced 4. The bond is insufficient 5. The attachment is excessive (Note: the discharge shall be limited to the excess only) 6. The property attached is exempt from execution and preliminary attachment 7. The judgment is rendered against the attaching creditor.

What are the three bonds involved in a preliminary attachment? 1. Applicant’s Bond (Attachment Bond) - The amount is based on the amount dues or the value of the property. - It is conditioned on the fact that the applicant will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court finally adjudge that the applicant was not entitled thereto. - For the adverse party to collect actual damages, good faith is irrelevant. For the adverse party to collect moral damages, the party msut allege bad faith. - Recovery against the attachment bond must be filed before trial, before the appeal is perfected or before the judgment becomes executory. (The time is limited because the issue is WON the adverse party or creditor is entitled to attachment.) 2. Counter Bond - The amount is based on the value of the property. - The value of the property is determined by affidavits. It is not conclusive. So in case of disagreement as to the value, it will be decided by the court. - The counterbond is liable if judgment is rendered in favor of the attaching creditor and the judgment cannot be satisfied. - The general rule is that the plaintiff-creditor must file a claim against the counterbond in the same action. EXCEPTION: If the main action is dismissed for lack of jurisdiction or improper venue. 3. Sheriff’s Bond (Indemnity Bond) - The sheriff’s bond is filed by the plaintiff. - The amount is based on the value of the property. - he value of the property is determined by affidavits. It is not conclusive. So in case of

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

disagreement as to the value, it will be decided by the court. - The bond answers for damages which 3 rd parties may suffer when the sheriff does not re-deliver the property to them. PROBLEM: Plaintiff attaches and levies property. The counterbond is filed. Trial ensures. At the end, judgment is rendered in favor of the plaintiff. Plaintiff-creditor recovers against the counter bond, even if the judgment is final and executory. Defendant debtor argues that the plaintiff creditor cannot recover against the counter bond since the judgment is now final and executory, relying on Sec. 20, Rule 57. Rule. ANSWER: The plaintiff creditor can recover against the counterbond even if it is final and executory. Sec. 20, Rule 57 refers to recovery against the attachment bond and not against the counter bond. (See Sec. 17, Rule 57) PROBLEM: After the trial, the judgment is rendered in favor of the plaintiff. The defendant files a notice of appeal. Can the plaintiff recover on the counter bond pending appeal? ANSWER: Yes, since the rules does not distinguish if appeal is pending or not for as long as the judgment is unsatisfied. PROBLEM: RTC QC rules in favor of the plaintiff. A writ of execution is issued. The sheriff sees that the defendant has property in Pasig. The defendant gets an injunction from RTC Pasig to prevent the sheriff from levying on the property. Is this allowed? ANSWER: Yes, this is allowed. This is not interference by RTC Pasig. RTC Pasig is merely telling the sheriff not to levy on that property in Pasig. It is not interfering with the judgment of RTC QC itself. (Manila Herald Publishing v. Ramos) What are the remedies of a third party claimant in cases of attachment? 1. Third Party Claim, under Sec. 14, Rule 57 2. Reinvindicatory Action – action to recover title to the property. 3. Damages – recover against the indemnity or sheriff’s bond within 120 days from the date of the filing of the bond. 4. Cancel Annotation – if attachment is levied on real property, he may file a petition in land registration court for the deletion of the annotation under the property Registration Decree on the ground that the annotation was made througfh error or mistake or fraud. 5. Intervention – intervention is not available in execution. *These remedies are cumulative (not mutually exclusive). However, the 3 rd party claimant cannot recover twice.

JONATHAN T. PAMPOLINA

What should be included in the affidavit of a third party claimant under Sec. 14, Rule 57? The third party claimant shold file an affidavit with the following essential recitals: 1. Third party has a right to the possession 2. The grounds for such right. 3. Adverse party has no claim to property. Where should the affidavit of the third party claimant be filed? With the sheriff. The sheriff will, then, serve to the party attachment creditor, with notice that if attachment creditor does not give a bond, the officer shall relinquish possession of the property. Upon denial of his third party claim, can the third party claimant file Rule 65 certiorari against such denial? No. The remedy of the third party claimant is to intervene in the action. A sues B to recover land, which according to A, he was defrauded by B to sell. Can A attach this land? No. The plaintiff cannot attach property which he is claiming to be his or which is the subject of the litigation.

Mabanag v. Gallemore State must acquire jurisdiction over the property. Cuartero v. CA TC must acquire jurisdiction at the time the writ is sought to be implemented.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

2. Preliminary Injunction (Rule 58) RULE 58 PRELIMINARY INJUNCTION Preliminary injunction defined; classes. A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. (Sec. 1, Rule 58)

When final injunction granted.

If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. (Sec. 9, Rule 58)

Who may grant preliminary injunction. A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. (Sec. 2, Rule 58)

Grounds for issuance of preliminary injunction.

A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (Sec. 3, Rule 58)

Verified application and bond for preliminary injunction or temporary restraining order. A preliminary injunction or temporary restraining order may be granted only when: (a) The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and (b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. (c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-

JONATHAN T. PAMPOLINA sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant's affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. (d) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff's return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately. (Sec. 4, Rule 58)

Preliminary injunction not granted without notice; exception.

No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein. In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. (Sec. 5, Rule 58)

Grounds for objection to, or for motion of dissolution of, injunction or restraining order. The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. (Sec. 6, Rule 58)

Service of copies of bonds; effect of disapproval of same. The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant's bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be. (Sec. 7, Rule 58)

Judgment to include damages against party and sureties. At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57. (Sec. 8, Rule 58)

SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 11-00

TO : Judges of Lower Courts RE : Ban on the Issuance of Temporary Restraining Orders or Writs of Preliminary Prohibitory or Mandatory Injunctions in Cases Involving Government Infrastructure Projects Your attention is invited to Republic Act No. 8975, entitled AN ACT TO ENSURE THE EXPEDITIOUS

JONATHAN T. PAMPOLINA IMPLEMENTATION AND COMPLETION OF GOVERNMENT INFRASTRUCTURE PROJECTS BY PROHIBITING LOWER COURTS FROM ISSUING TEMPORARY RESTRAINING ORDERS, PRELIMINARY INJUNCTIONS OR PRELIMINARY MANDATORY INJUNCTIONS, PROVIDING PENALTIES FOR VIOLATIONS THEREOF, AND FOR OTHER PURPOSES, which was approved by the President on 7 November 2000 and published in the 11 November 2000 issues of The Manila Bulletin and The Malaya, newspapers of general circulation in the Philippines. The law takes effect fifteen (15) days following such publication. Pertinent provisions of the Act read as follows: SECTION 1. Declaration of Policy. — Article XII, Section 6 of the Constitution states that the use of property bears a social function, and all economic agents shall contribute to the common good. Towards this end, the State shall ensure the expeditious and efficient implementation and completion of government infrastructure projects to avoid unnecessary increase in construction, maintenance and/or repair costs and to immediately enjoy the social and economic benefits therefrom. SECTION 2. Definition of Terms. — (a) "National government projects" shall refer to all current and future national government infrastructure, engineering works and service contracts, including projects undertaken by government-owned and -controlled corporations, all projects covered by Republic Act No. 6957, as amended by Republic Act No. 7718, otherwise known as the Build-Operate-and-Transfer Law, and other related and necessary activities such as site acquisition, supply and/or installation of equipment and materials, implementation, construction, completion, operation, maintenance, improvement, repair and rehabilitation, regardless of the source of funding. (b) "Service contracts" shall refer to infrastructure contracts entered into by any department, office or agency of the national government with private entities and nongovernment organizations for services related or incidental to the functions and operations of the department, office or agency concerned. SECTION 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary Injunctions and Preliminary Mandatory Injunctions. — No court, except the Supreme Court, shall issue any temporary restraining order, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private, acting under the government's direction, to restrain, prohibit or compel the following acts: (a) Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; (b) Bidding or awarding of contract/project of the national government as defined under Section 2 hereof; (c) Commencement, prosecution, execution, implementation, operation of any such contract or project; (d) Termination or rescission of any such contract/project; and (e) The undertaking or authorization of any other lawful activity necessary for such contract/project. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall not apply when the matter is of extreme urgency involving constitutional issue, such that unless a temporary restraining order is issued, grave

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. If after due hearing the court finds that the award of the contract is null and void, the court may, if appropriate under the circumstances, award the contract to the qualified and winning bidder or order a rebidding of the same, without prejudice to any liability that the guilty party may incur under existing laws. SECTION 4. Nullity of Writs and Orders. — Any temporary restraining order, preliminary injunction or preliminary mandatory injunction issued in violation of Section 3 hereof is void and of no force and effect. SECTION 5. Designation of Regional Trial Courts. — The Supreme Court may designate regional trial courts to act as commissioners with the sole function of receiving facts of the case involving acquisition clearance and development of right-of-way for government infrastructure projects. The designated regional trial court shall within thirty (30) days from the date of receipt of the referral, forward its findings of facts to the Supreme Court for appropriate action. SECTION 6. Penal Sanction. — In addition to any civil and criminal liabilities he or she may incur under existing laws, any judge who shall issue a temporary restraining order, preliminary injunction or preliminary mandatory injunction in violation of Section 3 hereof, shall suffer the penalty of suspension of at least sixty (60) days without pay. Please be guided accordingly. The Court Administrator shall immediately disseminate copies of this Administrative Circular to all lower court Judges and see to it that they strictly comply with the law. Issued this 13th day of November 2000.

PRESIDENTIAL DECREE NO. 1818 PROHIBITING COURTS FROM ISSUING RESTRAINING ORDERS OR PRELIMINARY INJUNCTIONS IN CASES INVOLVING INFRASTRUCTURE AND NATURAL RESOURCE DEVELOPMENT PROJECTS OF, AND PUBLIC UTILITIES OPERATED BY, THE GOVERNMENT WHEREAS, Presidential Decree No. 605 prohibits the issuance by the courts of restraining orders or injunctions in cases involving concessions, licenses, and other permits issued by administrative officials or bodies for the exploitation, development and utilization of natural resources of the country; WHEREAS, it is in the public interest to adopt a similar prohibition against the issuance of such restraining orders or injunctions in other areas of activity equally critical to the economic development effort of the nation, in order not to disrupt or hamper the pursuit of essential government projects. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby decree and order as follows: SECTION 1. No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project,

JONATHAN T. PAMPOLINA or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or governmental official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation. SECTION 2.

This decree shall take effect immediately.

Done in the City of Manila, this 16th day of January, in the year of Our Lord, nineteen hundred and eighty-one.

SC CIRCULAR NO. 68-94

SUBJECT: Strict Observance of Section 1 of P.D. 1818 Envisioned by Circular No. 13-93 dated March 5, 1993 and Circular No. 20-92 dated March 24, 1992 TO: Judges of the Regional Trial Courts, Shari'a District Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, Municipal Circuit Trial Courts and Shari'a Circuit Courts There have been reports that despite Circular 1393, dated March 5, 1993, some courts are still issuing temporary restraining orders and/or preliminary injunctions even in cases, disputes, or controversies involving government infrastructure projects in violation of Section 1 of P.D. 1818, which, provides: "Sec. 1. No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest, or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government officials from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation." In order to obviate complaints against the indiscriminate issuance of restraining orders and court injunctions against government public utilities and infrastructure projects in gross violation of the aforesaid Presidential Decree, the provision of Circular No. 13-93 issued on March 5, 1993 is hereby reiterated for your strict compliance. All Clerks of Court are hereby directed to immediately furnish this Office copies of any restraining order(s) and/or writ(s) of injunction against government corporations and public utility firms. For strict compliance. November 3, 1994.

SC Resolution 17 February 1998 SC Cir. No 13 – 98

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 20-95 TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL CIRCUIT TRIAL COURTS, SHARI'A DISTRICT COURTS; SHARI'A CIRCUIT COURTS AND ALL MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES. SUBJECT: RE: SPECIAL RULES FOR TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS.

1. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is included in a complaint or any initiatory pleading filed with the trial court, such complaint or initiatory pleading shall be raffled only after notice to the adverse party and in the presence of such party of counsel. 2. The application for a TRO shall be acted upon only after all parties are heard in a summary hearing conducted within twenty-four (24) hours after the records are transmitted to the branch selected by raffle. The records shall be transmitted immediately after raffle. 3. If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and irreparable injury will arise, the Executive Judge shall issue the TRO effective only for seventy-two (72) hours from issuance but shall immediately summon the parties for conference and immediately raffle the case in their presence. Thereafter, before the expiry of the seventy-two (72) hours, the Presiding Judge to whom the case is assigned shall conduct a summary hearing to determine whether the TRO can be extended for another period until a hearing in the pending application for preliminary injunction can be conducted. In no case shall the total period of the TRO exceed twenty (20) days, including the original seventy-two (72) hours, for the TRO issued by the Executive Judge. 4. With the exception of the provisions which necessarily involve multiple-sala stations, these rules shall apply to single-sala stations especially with regard to immediate notice to all parties of all applications for TRO. For immediate compliance. This Circular shall be published in two (2) newspapers of general circulation and shall take effect on October 1, 1995. September 12, 1995

Regalado Notes. What is the primary purpose of an injunction? Its primary purpose is to preserve the status quo by restraining action or interference or by furnishing preventive relief. The status quo is the last actual, peaceable, uncontested status which precedes the pending controversy. (Rodulfa v. Alfonso, 76 Phil. 225) When will a mandatory injunction issue? A mandatory injunction is an extreme remedy and will be granted only on showing that: a. The invasion of the right is material and substantial. b. The right of the complainant is clear and unmistakeable.

JONATHAN T. PAMPOLINA

c. There is an urgent and paramount necessity for the writ to prevent serious damages. (Bautista v. Barcelona, 100 Phil. 1078) Distinguish between an injunction and prohibition. Injunction Generally directed against a party in the action. Does not involve jurisdiction of the court

the

May be the main action itself, or just a provisional remedy in the main action.

Prohibition Directed against a court, tribunal or person exercising judicial powers. May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction Is always the main action.

GENERAL RULE: Courts should avoid issuing a writ of preliminary injunction which in effect disposes of the main case without trial. After denial of prelimnary injunction, can a plaintiff apply for a second preliminary injunction? Yes. A second application for preliminary injunction, which rests in the sound discretion of the court, will ordinarily be denied, unless it is based on facts unknown at the time of the first application. However, this rule applies only where the second application is to operate on the SAME ACT sought to be enjoined in the first application, and cannot be invoked where relief is sought against a DIFFERENT ACT. (Reyes v. CA, G.R. No. 87647, 21 May 1990) Can RTC Manila enjoin the sheriff from selling properties levied upon to satisfy the judgment of RTC QC? Yes. Where the properties involved were those of a stranger to the action, the RTC of Manila can validly issue a writ of injunction to prevent the sale thereof which was intended to satisfy the judgment of the RTC QC. This does not constitute an interference with the processes of a court of coordinate and co-equal jurisdiction as the sheriff was improperly implementing the writ of execution. (Abiera v. CA, L-26294, 31 May 1972) Will injunction lie against acts already consummated? No. Injunction contemplates acts being committed or about to be committed and not acts already consummated. (Reyes v. Harty, 21 Phil. 422) But, if the acts complained of have already been committed, but such acts are continuing in nature and were in derogation of plaintiff’s rights at the outset, preliminary mandatory injunction may be availed of to restore the parties to the status quo. (Dayrit v. De Los Santos, 18 Phil. 275) Is temporary restraining order different from an injunction? A temporary restraining order is intended only as a restraint upon the defendant until the

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propriety of granting an injunction pendente lite, temporary or perpertual, can be determined, and it does no more than restrain the proceedings until such determination. Accordingly, the grant, denial or lifting of a restraining order does not in any way preempt the court’s power to decide the issue in the main action which is the injunction suit. (Anglo-Fil Trading Corp., v. Lazaro, G.R. No. 54958, 2 September 1983) Is a status quo order issued by the SC the same as an injunction? A status quo order is intended to maintain the last actual, peaceable and uncontested state of things which preceded the controversy. The order is issued motu propio on equitable considerations. Unlike, a TRO or a preliminary injunction, a status quo order is more in the nature of a cease and desist order, since it does not direct the doing or undoing of acts as in the case of prohibitory or mandatory injunctive relief. A status quo order also does not require the posting of a bond. What are the conditions for issuance of an ex parte temporary restraining order? The executive judge of a multiple sala court, or the president judge of a single sala court, is empowered to issue ex parte a TRO, but subject to the following conditions: 1. TRO shall be effective for only 72 hours. 2. He shall immediately comply with Sec. 4 regarding service of summons and accompanying documents, and 3. He shall conduct a summary hearing within said 72 hours to determine whether the restraining order shall be extended until the application for preliminary injunction can be heard. What are the grounds for refusing or dissolving the injunction? 1. The complaint is insufficient; 2. The defendant is permitted to post a counter bond, it appearing that he would sustain great damages while the plaintiff can be amply compensated; and/or 3. Other grounds, as where the bond posted by the applicant turned out to be insufficient or defective. The filing of a counter bond warrants the dissolution of the injunction. True or False. False. The court has to assess the probable relative damages. (Dir. of Bureau of Telecommunications v. Aligaen, L-31135, 29 May 1970) Bautista Notes.

Republic v. Migrino

JONATHAN T. PAMPOLINA

ICTSI v. CA

Benguet v. CA

Dungog v. CA

LBP v. Listana

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3. Receivership (Rule 59) RULE 59 RECEIVERSHIP Appointment of receiver. Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: (a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; (c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court. (Sec. 1, Rule 59)

Bond on appointment of receiver.

Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. (Sec. 2, Rule 59)

Denial of application or discharge of receiver.

The application may be denied, or the receiver discharged, when the adverse party files a bond executed to the applicant, in an amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in the application as ground for such appointment. The receiver may also be discharged if it is shown that his appointment was obtained without sufficient cause. (Sec. 3, Rule 59)

Oath and bond of receiver.

Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed to such person and in such sum as the court may

JONATHAN T. PAMPOLINA direct, to the effect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the court. (Sec. 4, Rule 59)

Service of copies of bonds; effect of disapproval of same. The person filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon. If either the applicant's or the receiver's bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be. If the bond of the adverse party is found to be insufficient in amount or the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be appointed or re-appointed, as the case may be. (Sec. 5, Rule 59)

General powers of receiver. Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power 1. to bring and defend, in such capacity, actions in his own name; 2. to take and keep possession of the property in controversy; 3. to receive rents; 4. to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; 5. to compound for and compromise the same; to make transfers; 6. to pay outstanding debts; 7. to divide the money and other property that shall remain among the persons legally entitled to receive the same; 8. and generally to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him. (Sec. 6, Rule 59)

Liability for refusal or neglect to deliver property to receiver.

A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the property, money, books, deeds, notes, bills, documents and papers within his power or control, subject of or involved in the action or proceeding, or in case of disagreement, as determined and ordered by the court, may be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. (Sec. 7, Rule 59)

Termination receiver.

of

receivership;

compensation

of

Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. (Sec. 8, Rule 59)

Judgment to include recovery against sureties.

The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure prescribed in section 20 of Rule 57. (Sec. 9, Rule 59)

Talag v. CA

JONATHAN T. PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

4. Replevin (Rule 60) RULE 60 REPLEVIN Application. A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided. (Sec. 1, Rule 60)

Affidavit and bond.

The applicant must show by his own affidavit or that of some other person who personally knows the facts: (a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and (d) The actual market value of the property. The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action. (Sec. 2, Rule 60)

Order. Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. (Sec. 3, Rule 60)

Duty of the sheriff. Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. (Sec. 4, Rule 60)

Return of property. If the adverse party objects to the sufficiency of the applicant's bond, or of the surety or sureties thereon, he cannot immediately require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending

JONATHAN T. PAMPOLINA a bond executed to the applicant, in double the value of the property as stated in the applicant's affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant. (Sec. 5, Rule 60)

Disposition of property by sheriff. If within five (5) days after the taking of the property by the sheriff, a. the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; b. or if the adverse party so objects and the court affirms its approval of the applicant's bond or approves a new bond, c. or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. (Sec. 6, Rule 60) If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party. (Sec. 6, Rule 60)

Proceedings where property claimed by third person.

If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. (Sec. 7, Rule 60)

Return of papers. The sheriff must file the order, with his proceedings indorsed thereon, with the court within ten (10) days after taking the property mentioned therein. (Sec. 8, Rule 60)

Judgment.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs. (Sec. 9, Rule 60)

Judgment to include recovery against sureties.

The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57. (Sec. 10, Rule 60)

Sapugay v. CA

JONATHAN T. PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

5. Support Pendente Lite (Rule 61) RULE 61 SUPPORT PENDENTE LITE Application. At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof. (Sec. 1, Rule 61)

Comment.

A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to comment thereon unless a different period is fixed by the court upon his motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in support thereof. (Sec. 2, Rule 61)

Hearing. After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions. (Sec. 3, Rule 61)

Order. The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible.

Enforcement of order.

If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of execution against him, without prejudice to his liability for contempt. When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support. (Sec. 5, Rule 61)

Support in criminal cases.

In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime. The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in the corresponding criminal case

JONATHAN T. PAMPOLINA during its pendency, in accordance with the procedure established under this Rule. (Sec. 6, Rule 61)

Restitution. When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor, it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give the support. Should the recipient fail to reimburse said amounts, the person who provided through same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support. (Sec. 7, Rule 61)

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

XXVII. Special Civil Actions Overview of Special Civil Actions 1. Interpleader (Rule 62) 2. Declaratory Relief (Rule 63) 3. Review of Judgments of COMELEC and COA (Rule 64) 4. Certiorari (Rule 65) 5. Prohibition (Rule 65) 6. Mandamus (Rule 65) 7. Quo Warranto (Rule 66) 8. Expropriation (Rule 67) 9. Foreclosure of Real Estate Mortgage (Rule 68) 10. Partition (Rule 69) 11. Forcible Entry and Unlawful Detainer (Rule 70)

1. Interpleader (Rule 62) RULE 62 INTERPLEADER When interpleader proper.

Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. (Sec. 1, Rule 62)

Order. Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court. (Sec. 2, Rule 62)

Summons. Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order. (Sec. 3, Rule 62)

Motion to dismiss.

Within the time for filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader action or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. (Sec. 4, Rule 62)

Answer and other pleadings. Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving a copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and

JONATHAN T. PAMPOLINA thereafter render judgment barring him from any claim in respect to the subject matter. The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto, as provided by these Rules. (Sec. 5, Rule 62)

Determination. After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with the Rules, the court shall proceed to determine their respective rights and adjudicate their several claims. (Sec. 6, Rule 62)

Docket and other lawful fees, costs and litigation expenses as liens. The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise. (Sec. 7, Rule 62)

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

2. Declaratory Relief and Similar Remedies (Rule 63)

JONATHAN T. PAMPOLINA

SC Resolution 17 February 1998

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Who may file petition. a. Any person interested under a deed, will, contract or other written instrument, b. whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, c. before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. 1. An action for the reformation of an instrument, 2. to quiet title to real property or remove clouds therefrom, or 3. to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule. (Sec. 1, Rule 63)

Parties.

All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action. (Sec. 2, Rule 62)

Notice on Solicitor General. In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question. (Sec. 3, Rule 62)

Local government ordinances.

In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard. (Sec. 4, Rule 62)

Court action discretionary. Except in actions falling under the second paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances. (Sec. 5, Rule 62)

Conversion into ordinary action. If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or proper. (Sec. 6, Rule 62)

Velarde v. SJS

PDIC v. CA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

3. Review of Judgments Resolutions of COMELEC Appointments (Rule 64)

and Final Orders and Commission

JONATHAN T. PAMPOLINA

or of

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT

shall contain a sworn certification against forum shopping as provided in the third paragraph of section 3, Rule 46. The petition shall further be accompanied by proof of service of a copy thereof on the Commission concerned and on the adverse party, and of the timely payment of docket and other lawful fees. The failure of petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. (Sec. 5, Rule 64)

Scope.

Order to comment.

This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit. (Sec. 1, Rule 64)

Mode of review.

A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. (Sec. 2, Rule 64)

Time to file petition. The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. (Sec. 3, Rule 64)

Docket and other lawful fees. Upon the filing of the petition, the petitioner shall pay to the clerk of court the docket and other lawful fees and deposit the amount of P500.00 for costs. (Sec. 4, Rule 64)

Form and contents of petition. The petition shall be verified and filed in eighteen (18) legible copies. The petition shall name the aggrieved party as petitioner and shall join as respondents the Commission concerned and the person or persons interested in sustaining the judgment, final order or resolution a quo. The petition shall state the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments relied upon for review, and pray for judgment annulling or modifying the questioned judgment, final order or resolution. Findings of fact of the Commission supported by substantial evidence shall be final and nonreviewable. The petition shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of such material portions of the record as are referred to therein and other documents relevant and pertinent thereto. The requisite number of copies of the petition shall contain plain copies of all documents attached to the original copy of said petition. The petition shall state the specific material dates showing that it was filed within the period fixed herein, and

a. If the Supreme Court finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within ten (10) days from notice thereof; b. otherwise, the Court may dismiss the petition outright. The Court may also dismiss the petition if it was filed manifestly for delay, or the questions raised are too unsubstantial to warrant further proceedings. (Sec. 6, Rule 64)

Comments of respondents. The comments of the respondents shall be filed in eighteen (18) legible copies. The original shall be accompanied by certified true copies of such material portions of the record as are referred to therein together with other supporting papers. The requisite number of copies of the comments shall contain plain copies of all documents attached to the original and a copy thereof shall be served on the petitioner. No other pleading may be filed by any party unless required or allowed by the Court. (Sec. 7, Rule 64)

Effect of filing.

The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms as it may deem just. (Sec. 8, Rule 64)

Submission for decision. Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be deemed submitted for decision upon the filing of the comments on the petition, or of such other pleadings or papers as may be required or allowed, or the expiration of the period to do so. (Sec. 9, Rule 64)

SC Resolution 17 February 1998

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

4. Certiorari (Rule 65) Petition for certiorari.

a. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, b. and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (Sec. 1, Rule 65)

SC Resolution 1 September 2000 in AM No. 002-03 SC (amending Rule 65.4 as amended by OCA Cir. No. 39 – 98) [A.M. No. 00-2-03-SC. September 1, 2000.]

FURTHER AMENDING SECTION 4, RULE 65 OF THE RULES OF CIVIL PROCEDURE RESOLUTION BE IT RESOLVED, AS IT IS HEREBY RESOLVED, to further amend Section 4, Rule 65, of the 1997 Rules of Civil Procedure, as amended by the Resolution of July 21, 1998, so as to read as follows: SECTION 4. When and where petition filed. — The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court, or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. This resolution shall take effect on September 1, 2000, following its publication in two (2) newspapers of general circulation.

SC Admin Cir. No. 3 – 96 ADMINISTRATIVE CIRCULAR NO. 3-96 TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS, QUASIJUDICIAL AGENCIES, THE OMBUDSMAN, THE SOLICITOR

JONATHAN T. PAMPOLINA GENERAL, THE GOVERNMENT CORPORATE COUNSEL, MEMBERS OF THE GOVERNMENT PROSECUTION SERVICE AND MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES SUBJECT: CLARIFICATION ON THE PROVISIONS OF PARAGRAPH (3), REVISED CIRCULAR NO. 1-88 AND SUPPLEMENTAL RULES THEREFOR. Paragraph (3) of Revised Circular No. 1-88 provides as follows: "(3) Copies of judgment or resolution sought to be reviewed. - Petitions filed with the Supreme Court, whether under Rule 45, Rule 65, R. A. No. 5440 or P. D. No. 1006, shall be accompanied by a clearly legible duplicate original or certified true copy of the decision, judgment, resolution or order subject thereof, and the requisite number of plain copies thereof. The certification shall be accomplished by the proper Clerk of Court or by proper officer of the court, tribunal, board, commission or office involved. Certification by the parties themselves, their counsel or any other person, shall not be allowed." The failure to comply with or miscomprehension of the aforesaid requirement in petitions to the Supreme Court, or in petitions or other initiatory pleadings filed in other courts or quasi-judicial agencies which have adopted the same or similar provisions has created unnecessary controversies and resulted in undue delay in the proceedings therein. For the guidance of all concerned, the following clarifications and supplemental rules in complying with the requirement in Paragraph (3) of Revised Circular No. 1-86 are hereby announced for strict compliance: [1] The "duplicate original copy" shall be understood to be that copy of the decision, judgment, resolution or order which is intended for and furnished to a party in the case or proceeding in the court or adjudicative body which rendered and issued the same. The "certified true copy" thereof shall be such other copy furnished to a party at his instance or in his behalf, duly authenticated by the authorized officers or representatives of the issuing entity as hereinbefore specified. [2] The duplicate original copy must be duly signed or initialed by the authorities or the corresponding officer or representative of the issuing entity, or shall at least bear the dry seal thereof or any other official indication of the authenticity and completeness of such copy. For this purpose, all courts, offices or agencies furnishing such copies which may be used in accordance with Paragraph (3) of Revised Circular No. 1-88 shall make arrangement for and designate the personnel who shall be charged with the implementation of this requirement. [3] The certified true copy must further comply with all the regulations therefor of the issuing entity and it is the authenticated original of such certified true copy, and not a mere xerox copy thereof, which shall be utilized as an annex to the petition or other initiatory pleading. [4] Regardless of whether a duplicate original copy or a certified true copy of the adjudicatory document is annexed to the petition or initiatory pleading, the same must be an exact and complete copy of the original, and all the pages

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 thereof must be clearly legible and printed on white bond or equivalent paper of good quality with the same dimensions as the original copy. Either of the aforesaid copies shall be annexed to the original copy of the petition or initiatory pleading filed in court, while plain copies thereof may be attached to the other copies of the pleading. [5] It shall be the duty and responsibility of the party using the documents required by paragraph 3 of Circular No. 188 to verify and ensure compliance with all the requirements thereof as detailed in the preceding paragraphs. Failure to do so shall result in the rejection of such annexes and the dismissal of the case. Subsequent compliance shall not warrant any reconsideration unless the Court is fully satisfied that the non-compliance was not in any way attributable to the party, despite due diligence on his part, and that there are highly justifiable and compelling reasons for the Court to make such other disposition as it may deem just and equitable.

JONATHAN T. PAMPOLINA

Mayor Balindong v. Vice Gov. Dacalos

Tesorero v. Mathay

DBP v. Pingol

This Circular shall be published in two newspapers of general circulation and shall take effect on June 1, 1996. April 17, 1996.

Fortune v. CA

SC Resolution 9 February 1999 RE: AM No. 992-01 SC Wee v. Galvez

Tano v. Socrates Dugog v. CA

Calagui v. CA

Macias v. Macias Republic v. CA

Serrano v. Galant Siena Realty Corp v. Gal-lang

Badua v. Cordillera Bodong

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T. PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

5. Prohibition (Rule 65) Petition for prohibition.

a. When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasijudicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, b. and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (Sec. 2, Rule 64)

Manila Prince Hotel v. GSIS

Paredes v. Gopengco

JONATHAN T. PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T. PAMPOLINA

6. Mandamus (Rule 65) Petition for mandamus.

a. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, b. and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

PALEA v. PAL

United Housing v. Dayrit

Bautista v. Peralta

Vital-Gozon v. CA

Mun. of Makati v. CA

Systems Plus v. Local Gov’t of Caloocan

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

* RULE 65 COMMON PROVISIONS Where petition filed.

The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasijudicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals. (Sec. 4, Rule 65)

Respondents and costs in certain cases. When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents. Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. (Sec. 5, Rule 65)

Order to comment.

If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent or respondents to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, the court may require the respondents to file their comment to, and not a motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper. (Sec. 6, Rule 65)

Expediting proceedings; injunctive relief.

The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings.

JONATHAN T. PAMPOLINA The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. (Sec. 7, Rule 65)

Proceedings after comment is filed.

After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If after such hearing or submission of memoranda or the expiration of the period for the filing thereof the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (Sec. 8, Rule 65)

Service and enforcement of order or judgment.

A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. (Sec. 9, Rule 65)

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

7. Quo Warranto (Rule 66) RULE 66 QUO WARRANTO Action by Government against individuals. An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (Sec. 1, Rule 66)

When Solicitor General or public prosecutor must commence action.

The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action. (Sec. 2, Rule 66)

When Solicitor General or public prosecutor may commence action with permission of court. The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. (Sec. 3, Rule 66)

JONATHAN T. PAMPOLINA

Venue. An action under the preceding six sections can be brought only in the Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction over the territorial area where the respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court. (Sec. 7, Rule 66)

Period for pleadings and proceedings reduced; action given precedence.

may

be

The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil matter pending in the court. (Sec. 8, Rule 66)

Judgment where usurpation found. When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires. (Sec. 9, Rule 66)

Rights of persons adjudged entitled to public office; delivery of books and papers; damages.

Upon application for permission to commence such action in accordance with the next preceding section, the court shall direct that notice be given to the respondent so that he may be heard in opposition thereto; and if permission is granted, the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall then be filed within the period ordered by the court. (Sec. 4, Rule 66)

If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. (Sec. 10, Rule 66)

When an individual may commence such an action.

Limitations.

When hearing had on application for permission to commence action.

A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name. (Sec. 5, Rule 66)

Parties and contents of petition against usurpation. When the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action. (Sec. 6, Rule 66)

A. Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose; B. nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioner's right to the office in question. (Sec. 11, Rule 66)

Judgment for costs. In an action brought in accordance with the provisions of this Rule, the court may render judgment for

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires. (Sec. 12, Rule 66)

JONATHAN T. PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T. PAMPOLINA

8. Expropriation (Rule 67) RULE 67 EXPROPRIATION The complaint. The right of eminent domain shall be exercised by the filing of a verified complaint which shall 1. state with certainty the right and purpose of expropriation, 2. describe the real or personal property sought to be expropriated, and 3. join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. 4. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. (Sec. 1, Rule 67)

Entry of plaintiff upon depositing authorized government depositary.

value

with

Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties. (Sec. 2, Rule 67)

Defenses and objections.

If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. (Sec. 3, Rule 67)

Order of expropriation. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. (Sec. 4, Rule 67)

Ascertainment of compensation. Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections. (Sec. 5, Rule 67)

Proceedings by commissioners.

Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. (Sec. 6, Rule 67)

Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. (Sec. 7, Rule 67)

Action upon commissioners' report.

Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, a. accept the report and render judgment in accordance therewith; b. or, for cause shown, it may recommit the same to the commissioners for further report of facts; c. or it may set aside the report and appoint new commissioners; d. or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. (Sec. 8, Rule 67)

Uncertain ownership; conflicting claims. If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made. (Sec. 9, Rule 67)

Rights of plaintiff after judgment and payment.

Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain

JONATHAN T. PAMPOLINA it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. (Sec. 10, Rule 67)

Entry not delayed by appeal; effect of reversal.

The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. (Sec. 11, Rule 67)

Costs, by whom paid. The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner. (Sec. 12, Rule 67)

Recording judgment, and its effect.

The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. (Sec. 13, Rule 67)

Power of guardian in such proceedings.

The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent. (Sec. 14, Rule 67)

REPUBLIC ACT NO. 8974 AN ACT TO FACILITATE THE ACQUISITION OF RIGHT-OFWAY, SITE OR LOCATION FOR NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS AND FOR OTHER PURPOSES SECTION 1. Declaration of Policy. — Article III, Section 9 of the Constitution states that private property shall not be taken for public use without just compensation. Towards this end, the State shall ensure that owners of real property acquired for national government infrastructure projects are promptly paid just compensation. SECTION 2. National Government Projects. — The term "national government projects" shall refer to all

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 national government infrastructure, engineering works and service contracts, including projects undertaken by government-owned and -controlled corporations, all projects covered by Republic Act No. 6957, as amended by Republic Act No. 7718, otherwise known as the BuildOperate-and-Transfer Law, and other related and necessary activities, such as site acquisition, supply and/or installation of equipment and materials, implementation, construction, completion, operation, maintenance, improvement, repair and rehabilitation, regardless of the source of funding. SECTION 3. Modes of Acquiring Real Property. — The government may acquire real property needed as right-ofway, site or location for any national government infrastructure project through donation, negotiated sale, expropriation or any other mode of acquisition as provided by law. SECTION 4. Guidelines for Expropriation Proceedings. — Whenever it is necessary to acquire real property for the right-of-way, site or location for any national government infrastructure project through expropriation, the appropriate implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines: (a) Upon the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) one hundred percent (100%) of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or structures as determined under Section 7 hereof; (b) In provinces, cities, municipalities and other areas where there is no zonal valuation, the BIR is hereby mandated within the period of sixty (60) days from the date of filing of the expropriation case, to come up with a zonal valuation for said area; and (c) In case the completion of a government infrastructure project is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proffered value taking into consideration the standards prescribed in Section 5 hereof. Upon compliance with the guidelines abovementioned, the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project. Before the court can issue a Writ of Possession, the implementing agency shall present to the court a certificate of availability of funds from the proper official concerned. In the event that the owner of the property contests the implementing agency's proffered value, the court shall determine the just compensation to be paid the owner within sixty (60) days from the date of filing of the expropriation case. When the decision of the court becomes final and executory, the implementing agency shall pay the owner the difference between the amount already paid and the just compensation as determined by the court. SECTION 5. Standards for the Assessment of the Value of the Land Subject of Expropriation Proceedings or Negotiated Sale. — In order to facilitate the determination of just compensation, the court may consider, among other well-established factors, the following relevant standards: (a) The classification and use for which the property is suited; (b) The developmental costs for improving the land; (c) The value declared by the owners;

JONATHAN T. PAMPOLINA (d) The current selling price of similar lands in the vicinity; (e) The reasonable disturbance compensation for the removal and/or demolition of certain improvements on the land and for the value of improvements thereon; (f) The size, shape or location, tax declaration and zonal valuation of the land; (g) The price of the land as manifested in the ocular findings, oral as well as documentary evidence presented; and (h) Such facts and events as to enable the affected property owners to have sufficient funds to acquire similarly-situated lands of approximate areas as those required from them by the government, and thereby rehabilitate themselves as early as possible. SECTION 6. Guidelines for Negotiated Sale. — Should the implementing agency and the owner of the property agree on a negotiated sale for the acquisition of right-ofway, site or location for any national government infrastructure project, the standards prescribed under Section 5 hereof shall be used to determine the fair market value of the property, subject to review and approval by the head of the agency or department concerned. SECTION 7. Valuation of Improvements and/or Structures. — The Department of Public Works and Highways and other implementing agencies concerned, in coordination with the local government units concerned in the acquisition of right-of-way, site or location for any national government infrastructure project, are hereby mandated to adopt within sixty (60) days upon approval of this Act, the necessary implementing rules and regulations for the equitable valuation of the improvements and/or structures on the land to be expropriated. SECTION 8. Ecological and Environmental Concerns. — In cases involving the acquisition of right-of-way, site or location for any national government infrastructure project, the implementing agency shall take into account the ecological and environmental impact of the project. Before any national government project could be undertaken, the agency shall consider environmental laws, land use ordinances and all pertinent provisions of Republic Act No. 7160, as amended, otherwise known as the Local Government Code of 1991. SECTION 9. Squatter Relocation. — The government through the National Housing Authority, in coordination with the local government units and implementing agencies concerned, shall establish and develop squatter relocation sites, including the provision of adequate utilities and services, in anticipation of squatters that have to be removed from the right-of-way or site of future infrastructure projects. Whenever applicable, the concerned local government units shall provide and administer the relocation sites. In case the expropriated land is occupied by squatters, the court shall issue the necessary "Writ of Demolition" for the purpose of dismantling any and all structures found within the subject property. The implementing agency shall take into account and observe diligently the procedure provided for in Sections 28 and 29 of Republic Act No. 7279, otherwise known as the Urban Development and Housing Act of 1992. Funds for the relocation sites shall come from appropriations for the purpose under the General Appropriations Act, as well as from appropriate infrastructure projects funds of the implementing agency concerned.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 SECTION 10. Appropriations for Acquisition of Right-ofWay, Site or Location for Any National Government Infrastructure Project in Advance of Project Implementation. — The government shall provide adequate appropriations that will allow the concerned implementing agencies to acquire the required right-of-way, site or location for any national government infrastructure project. SECTION 11. Sanctions. — Violation of any provision of this Act shall subject the government official or employee concerned to appropriate administrative, civil and/or criminal sanctions, including suspension and/or dismissal from the government service and forfeiture of benefits. SECTION 12. Rules and Regulations. — A committee composed of the Secretary of the Department of Public Works and Highways as chairperson, and the secretaries of the Department of Transportation and Communications, the Department of Energy, and the Department of Justice, and the presidents of the leagues of provinces, cities and municipalities as members shall prepare the necessary rules and regulations for the proper implementation of this Act within sixty (60) days from its approval. SECTION 13. Separability Clause. — If any provision of this Act is declared unconstitutional or invalid, other parts or provisions hereof not affected thereby shall continue to be in full force and effect. SECTION 14. Repealing Clause. — All laws, decrees, orders, rules and regulations or parts thereof inconsistent with this Act are hereby repealed or amended accordingly. SECTION 15. Effectivity Clause. — This Act shall take effect fifteen (15) days following its publication in at least two (2) newspapers of general circulation. Approved: November 7, 2000

NPC v. Gutierrez

BPI v. CA

Ansaldo v. Tantuico

JONATHAN T. PAMPOLINA

NAPOCOR v. CA

Bordillion v. Brgy. Malisi

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

9. Foreclosure of Real Estate Mortgage (Rule 68) RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE Complaint in action for foreclosure. In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth a. the date and due execution of the mortgage; its assignments, if any; b. the names and residences of the mortgagor and the mortgagee; c. a description of the mortgaged property; d. a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; e. and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action. (Sec. 1, Rule 68)

Judgment on foreclosure for payment or sale.

If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. (Sec. 2, Rule 68)

Sale of mortgaged property; effect.

When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. (Sec. 3, Rule 68)

Disposition of proceeds of sale. The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to a. the person foreclosing the mortgage, and b. when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior

JONATHAN T. PAMPOLINA encumbrancers in the order of their priority, to be ascertained by the court, c. or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it. (Sec. 4, Rule 68)

How sale to proceed in case the debt is not all due. If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper. (Sec. 5, Rule 68)

Deficiency judgment.

If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment. (Sec. 6, Rule 68)

Registration.

A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser. Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title. If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser. (Sec. 7, Rule 68)

Applicability of other provisions. The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions of the latter. (Sec. 8, Rule 68)

RULE 39

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

Sec. 31. Manner of using redemption; waste restrained.

premises

JONATHAN T. PAMPOLINA

pending

Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, a. to continue to use it in the same manner in which it was previously used; or b. to use it in the ordinary course of husbandry; or c. to make the necessary repairs to buildings thereon while he occupies the property. Sec. 32. Rents, earnings and income of property pending redemption. The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption.

Sec. 34. Recovery of price if sale not effective; revival of judgment. If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or because the judgment has been reversed or set aside, or because the property sold was exempt from execution, or because a third person has vindicated his claim to the property, he may on motion in the same action or in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on motion, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more.

Rosales v. Suba

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T. PAMPOLINA

10. Partition (Rule 69)

Report of commissioners; proceedings not binding until confirmed.

RULE 69 PARTITION

The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment thereon. (Sec. 6, Rule 69)

Complaint in action for partition of real estate. A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint a. the nature and extent of his title and b. an adequate description of the real estate of which partition is demanded and c. joining as defendants all other persons interested in the property. (Sec. 1, Rule 69)

Order for partition, and partition by agreement thereunder.

If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (Sec. 2, Rule 69)

Commissioners to make partition when parties fail to agree. If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. (Sec. 3, Rule 69)

Oath and duties of commissioners.

Before making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. (Sec. 4, Rule 69)

Assignment or sale of real estate by commissioners. When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. (Sec. 5, Rule 69)

Action of the court upon commissioners' report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, upon hearing, a. accept the report and render judgment in accordance therewith; or, b. for cause shown, recommit the same to the commissioners for further report of facts; or c. set aside the report and appoint new commissioners; or d. accept the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof. (Sec. 7, Rule 69)

Accounting for rent and profits in action for partition. In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. (Sec. 8, Rule 69)

Power of guardian in such proceedings.

The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent. (Sec. 9, Rule 69)

Costs and expenses to be taxed and collected. The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the action, including the compensation of the commissioners, having regard to the interests of the parties, and execution may issue therefor as in other cases. (Sec. 10, Rule 69)

The judgment and its effect; copy to be recorded in registry of deeds.

A. If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 B. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. C. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action. (Sec. 11, Rule 69)

Neither paramount rights nor amicable partition affected by this Rule.

Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made; nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action. (Sec. 12, Rule 69)

Partition of personal property.

The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable.

(Sec. 13, Rule 69)

JONATHAN T. PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

11. Forcible Entry and Unlawful Detainer (Rule 70) RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER Who may institute proceedings, and when. Subject to the provisions of the next succeeding

section, A. a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or B. other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. (Sec. 1, Rule 70)

Lessor to proceed against lessee only after demand. Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings. (Sec. 2, Rule 70)

Summary procedure.

Except in cases covered by the agricultural tenancy laws or when the law otherwise expressly provides, all actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder provided. (Sec. 3, Rule 70)

JONATHAN T. PAMPOLINA counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded. (Sec. 6, Rule 70)

Effect of failure to answer.

Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. The court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable, without prejudice to the applicability of section 3 (c), Rule 9 if there are two or more defendants. (Sec. 7, Rule 70)

Preliminary conference; appearance of parties.

Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. All cross-claims shall be dismissed. If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. This procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. (Sec. 8, Rule 70)

Record of preliminary conference.

The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons. (Sec. 5, Rule 70)

Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: 1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof; 2. The stipulations or admissions entered into by the parties; 3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order; 4. A clear specification of material facts which remain controverted; and 5. Such other matters intended to expedite the disposition of the case. (Sec. 9, Rule 70)

Answer.

Submission of affidavits and position papers.

Pleadings allowed. The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified. (Sec. 4, Rule 70)

Action on complaint.

Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the subject matter. Cross-claims and compulsory

Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them. (Sec. 10, Rule 70)

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

Period for rendition of judgment.

Within thirty (30) days after receipt of the affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last affidavit or the expiration of the period for filing the same. The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. (Sec. 11, Rule 70)

Referral for conciliation.

Cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement shall have been complied with. (Sec. 12, Rule 70)

Prohibited pleadings and motions. The following petitions, motions, or pleadings shall not be allowed: 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; 12. Interventions. (Sec. 13, Rule 70)

Affidavits.

The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. (Sec. 14, Rule 70)

Preliminary injunction.

The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (Sec. 15, Rule 70)

JONATHAN T. PAMPOLINA

Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. (Sec. 16, Rule 70)

Judgment.

A. If after trial the court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, attorney's fees and costs. B. If it finds that said allegations are not true, it shall render judgment for the defendant to recover his costs. C. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice requires. (Sec. 17, Rule 70)

Judgment conclusive only on possession; not conclusive in actions involving title or ownership. The judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an action between the same parties respecting title to the land or building. The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court. (Sec. 18, Rule 70)

Immediate execution of judgment; how to stay same.

If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the other papers, to the clerk of the Regional Trial Court to which the action is appealed. All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary bank, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise. Should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court, upon motion of the plaintiff,

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits. After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. (Sec. 19, Rule 70)

JONATHAN T. PAMPOLINA

Melchor v. Melchor

Nayve v. CA

Panganiban v. Pilipinas

Preliminary mandatory injunction in case of appeal. Upon motion of the plaintiff, within ten (10) days from the perfection of the appeal to the Regional Trial Court, the latter may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant's appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious. (Sec. 20, Rule 70)

Immediate execution on appeal to Court of Appeals or Supreme Court. The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. (Sec. 21, Rule 70)

Jakihaca v. Aquino

Alcaraz v. Tangga-an

Laurora v. Sterling

Ten Forty v. Cruz

Lanuzoa v. Munoz

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

XXVIII. Contempt RULE 71 CONTEMPT Direct contempt punished summarily. A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including 1. disrespect toward the court, 2. offensive personalities toward others, or 3. refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by a Regional Trial Court or a court of equivalent or higher rank and punished by a. a fine not exceeding two thousand pesos or b. imprisonment not exceeding ten (10) days, c. or both, or, if it be a lower court by a. a fine not exceeding two hundred pesos or b. imprisonment not exceeding one (1) day, c. or both, (Sec. 1, Rule 71)

Remedy therefrom. The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him. (Sec. 2, Rule 71)

Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this section shall be so construed as to prevent the court from issuing process to bring the

JONATHAN T. PAMPOLINA respondent into court, or from holding him in custody pending such proceedings. (Sec. 3, Rule 71)

How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. (Sec. 4, Rule 71)

Where charge to be filed. A. Where the charge for indirect contempt has been committed against a Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. B. Where such contempt has been committed against a lower court, the charge may be filed with the Regional Trial Court of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the Regional Trial Court of such place in the same manner as provided in section 2 of this Rule. (Sec. 5, Rule 71)

Hearing; release on bail.

If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon filing a bond, in an amount fixed by the court, for his appearance at the hearing of the charge. On the day set therefor, the court shall proceed to investigate the charge and consider such comment, testimony or defense as the respondent may make or offer. (Sec. 6, Rule 71)

Punishment for indirect contempt.

If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a. a fine not exceeding thirty thousand pesos or b. imprisonment not exceeding six (6) months, c. or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a. a fine not exceeding five thousand pesos or b. imprisonment not exceeding one (1) month, or c. both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless the court otherwise provides. (Sec. 7, Rule 71)

Imprisonment until order obeyed.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. (Sec. 8, Rule 71)

Proceeding when party released on bail fails to answer.

When a respondent released on bail fails to appear on the day fixed for the hearing, the court may issue another order of arrest or may order the bond for his appearance to be forfeited and confiscated, or both; and, if the bond be proceeded against, the measure of damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall be for the benefit of the party injured. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases. (Sec. 9, Rule 71)

Court may release respondent. The court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it appears that public interest will not be prejudiced by his release. (Sec. 10, Rule 71)

Review of judgment or final order; bond for stay. The judgment or final order of a court in a case of indirect contempt may be appealed to the proper court as in criminal cases. But execution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fixed by the court from which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment or final order. (Sec. 11, Rule 71)

Contempt against quasi-judicial entities.

Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor. (Sec. 12, Rule 71)

Panado v. CA

Adoptante v. CA

JONATHAN T. PAMPOLINA

De Midgeley v. Ferrandos

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

RULE 135 Powers and Duties of Courts and Judicial Officers Inherent powers of courts. Every court shall have power: (g) to amend and control its process and orders so as to make them conformable to law and justice. (Sec. 5 (g), Rule 135)

Means to carry jurisdiction into effect. When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processed and other means necessary to carry it into effect may be employed by such court or officer; And if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these Rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules. (Sec. 6, Rule 135)

De Guzman v. Sandiganbayan

JONATHAN T. PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

XXIX. Revised Rule on Summary Procedure RESOLUTION OF THE COURT EN BANC 1991 RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991 PROVIDING FOR THE REVISED RULE ON SUMMARY PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS * Pursuant to Section 36 of the Judiciary Reorganization Act of