rem civ pro (2)

REMEDIAL LAW REVIEW 2007

INTRODUCTION TO REMEDIAL LAW REVIEW (1st meeting) Jurisdiction is the sun around which the remedial system revolves. Master the issue in jurisdiction, you have already complied 50% of remedial law. In answering the exams, you have to determine: 1. What rule applies? 2. If there be no applicable rule, determine the jurisprudence to which it is related; 3. If the two abovementioned are not applicable, solve the problem under the principle of jurisdiction Basis of Jurisdiction: 1. The Constitution, particularly section 5 of Article 6; 2. BP 129 as amended by RA 7691; 3. RA 8369 4. RA 7639- Sandiganbayan- constitutionally mandated court What is Jurisdiction? It is the authority to hear and decide a case Distinguished from Exercise of Jurisdiction It is the effect of that authority. These are decisions, judgments, orders and resolutions. Jurisdiction is conferred by law. It is the law that gives authority Kinds of Jurisdiction: 1. Over the subject matter 2. Over the person or property 3. Over the res 4. Over the issue In criminal cases, there is what you called territorial jurisdiction. Venue here is Jurisdictional. In civil cases, venue is different from jurisdiction Not capable or pecuniary estimation, jurisdiction is with the RTC Jurisdiction over the subject matter—7691 (actions involving title to or possession of real property). If the claim is more that P400,000.00 in Metro Manila; or more than P300,000.00 outside Metro Manila Jurisdiction over person/ parties: 1. Plaintiff; 2. Defendant. Exception: Special Proceedings, one may oppose but he does not become a defendant Exception to the Exception: In cases of Habeas Corpus proceedings

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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How does the court acquire jurisdiction over the: 1. Plaintiff? Upon filing of the complaint. But jurisprudence dictates the mere filing of the complaint is not sufficient, payment of the correct docket fees is required (Check Alday vs FGU Insurance). 2. Defendant? a. Valid service of summons; b. Voluntary appearance. When the defendant voluntary submitted himself to the jurisdiction of the court. Rule 14 provides for the Summons to be served to the defendant. The defendant maybe a prisoner, incompetent, insane or a corporation. (Check the Millenium case) In Criminal cases, jurisdiction over the accused is acquired through: 1. Lawful arrest; or 2. Voluntary Surrender In cases of third/ fourth/ fifth party defendant, court acquires jurisdiction over them through: 1. Valid service of Summons; 2. Voluntary Appearance In cases of an Intervenor, court acquires jurisdiction over them upon approval or granting of the motion to intervene. Jurisdiction over the res is used only in certain occasions such as when the jurisdiction over the person of the defendant is not acquired. Res means facts of the case or status of a person. Example: 1. Annulment of Marriage- case may proceed. Extraterritorial service of summons under Section 14, 15 and 16 of Rule 14. 2. Actions involving property, may proceed provided court acquire jurisdiction over the real or personal property a. An action for a sum of money. The defendant cannot be summoned nor voluntarily appeared. Apply Rule 57- attachment or property to acquire jurisdiction over the res. The plaintiff can only execute the res. Pag kulang, that’s it because he did not acquire jurisdiction over the person of the defendant. b. If jurisdiction over the person of the defendant is already acquired, res no longer necessary Jurisdiction over the issue Acquired through the allegations in the pleading Example: 1. Unlawful detainer/ Forcible entry. The issue here is possession de facto and not ownership or when the issue of ownership is raised in the pleadings, ownership must be solved first to resolve possession. 2. Action for sum of money- no demand letter- defendant may dismiss the case Jurisdiction over the subject matter: Conferred by law- BP 129

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Exercise of Jurisdiction 1. Original- for the first time to take cognizance of the case a. Exclusive- lies particularly with this court and no other court b. Concurrent- authority is share by several courts. Eg. Certiorari, prohibition and mandamus 2. Appellate a. Exclusive; and b. Concurrent Principle of Jurisdiction: 1. Judicial Hierarchy; 2. The Supreme Court is not a trier of facts; 3. Supreme Court may take cognizance for the first time of transcendental importance. Example: Rule 45 appeal by certiorari- must be brought on pure question of law but in the case of Francisco vs House of Representative, that was not the case (Impeachment case of Davide) Delegated Jurisdiction Jurisdiction of an inferior court taking cognizance of cadastral and land registration cases where the value of the property is not more than P100,000.00 and there is no opposition thereto. Possible BAR QUESTION: San ang appeal nito? General rule is that decisions made by the inferior courts must be appealed to the RTC. Exception to this rule is the Delegated jurisdiction, appeal in these cases is in the CA. Special Jurisdiction Exercise by inferior court in taking cognizance for petition for bail or habeas corpus in the absence of RTC judges, NOT in the absence of RTC courts. Limited Jurisdiction Eg. Settlement of estate. Through a probate court only. Probate is concern only with the extrinsic validity of a will. Residual Jurisdiction Jurisdiction of a court in spite losing its jurisdiction because of the perfection of an appeal still retains it for purposes of preserving the rights of the parties. Section 9 Rule 41- Perfection of an appeal- When perfected? Notice of appeal Record on appeal- upon approval Upon perfection of appeal, the court loses jurisdiction over the subject matter, and may file a motion for execution. Saan file? Sa trial court, still exercises residual jurisdiction. Regular courts: 1. Supreme Court 2. Court of Appeals 3. Regional Trial courts 4. Inferior courts 5. Sandiganbayan

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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REMEDIAL LAW REVIEW 2007

Quasi Court: 1. Civil Service Commission 2. Commission on Election 3. Commission on Audit Quasi Judicial Agencies All other agencies that exercises judicial or quasi judicial function. Rule 43 provides that the Court of Tax Appeals and other quasi judicial bodies, but that is already amended. CTA is already elevated to the level of the CA. Remove that already from Rule 43. Delete the CTA there. Just remember this five (5): 1. Court of Appeals 2. Sandiganbayan 3. Commission on Election 4. Commission on Audit 5. Court of Tax Appeals All other quasi judicial bodies, appeal to the CA, except this five Securities and Regulation Code, paragraph 5.2. originally cognizable by the SRC transferred now to the RTC but pursuant to SC Circular, integrated to the Commercial Courts or RTC. NB: No more special criminal courts, the only special courts are commercial and family courts. Sharia Courts- Muslim 1. Sharia Appellate Court—CA 2. Sharia District Court---RTC 3. Sharia Country Courts---Inferior Courts Check RA 7691

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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November 9, 2006 Q: What is the distinguishing feature, doctrinal wise, in the cases of Duero vs CA as distinguish in the doctrine laid down in Roxas vs CA? Are they conflicting? A: Both of them are about issues of jurisdiction but in one case, the Supreme Court upheld the decision of the lower court, in another one it denied. Remember that the leading case in this regard is the famous case of Tijam vs Subunghanoy. We are being taught here about the proper application of estoppel. The two cases are not contradicting, in the Duero case, the participation is that there is no jurisdiction but in the Roxas case the participation is to ask a favor and when he failed to obtain the same, he raised the fact of jurisdiction, here there is estoppel. Q: What are the remedies of the defendant upon judgment? A: Appeal in Rule 40, 41, 42 and 45. What are the grounds for new trial/ motion for reconsideration? Know the time post of the remedy! 1. When a complaint is filed, what is the first remedy of the defendants? a. Motion to dismiss under Rule 16 b. Dismissal of Action i. Dismissal by notice (section 1) ii. Dismissal by motion (section 2) c. Summary Judgment i. As to defendant- counterclaim ii. As to plaintiff- ask for judgment on the pleadings d. Upon resting of the prosecution, the plaintiff may ask for demurrer to evidence under Rule 30 2. From the Judgment a. New trial b. Motion for reconsideration c. Ask for relief from judgment d. Appeal under Rule 40, 41, 42 and 45. 3. If you lose in the appeal, your final remedy is annulment of judgment Knowing the sign post of remedy, the first question you are going to answer is “In what stage of the proceeding is this problem?” If the stage of the proceeding is after presentation of evidence, you already know what is your remedy. After presentation of evidence of the plaintiff, defendant can file demurrer to evidence. But even before answer is filed, your remedy is motion to dismiss for any ground enumerated in section 1 Rule 16 In reading the cases, you’ll get to know what stage you are now so you’ll not get lost in the analysis. Before you go to the decision of the Supreme Court, go first at the court at quo, what happened there. NB: The basis for declaration of default is only one, that is failure to file an answer, if your book still states “as in default” that is no loner correct, wla na ung “as in default”. There is only now Default. General Rule is that jurisdiction may be raised at any time, even first time on appeal. Jurisdiction over the subject matter is conferred by law. The law that conferred the Jurisdiction of the Supreme Court is the Constitution. I ask you to memorize section 5 of Article 8 of the 1987 Constitution. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Jurisdiction of the Supreme Court: The law that confers jurisdiction upon the SC is the Constitution under Sec. 5, Art. VIII. “Sec. 5. The Supreme Court shall have the ff. 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). (Note: the “or higher” clause no longer applies because there is no more death penalty.) (e) All cases in which only an error or question of law is involved….” Note: The jurisdiction of the SC can either be exclusive original or appellate. Q: Over what actions does the SC have original exclusive jurisdiction? A: The SC has exclusive original jurisdiction over the ff: Petitions for certiorari, prohibition, and mandamus against: 1. Commission on Audit (COA) 2. Commission on Elections (COMELEC) 3. Court of Appeals (CA) 4. Sandiganbayan 5. Court of Tax Appeals (CTA) Concurrent jurisdiction? Notes: A petition for certiorari, prohibition, and mandamus is not always under the original exclusive jurisdiction of the SC except when the respondent thereto is any of the above-mentioned 5 bodies because these bodies are next to the SC in rank. BUT when you speak of petitions for certiorari, prohibition, and mandamus against the RTC, it is not exclusive, rather it is concurrent with the CA. A petition for habeas corpus and quo warranto is not exclusive in the SC but is concurrent with the RTC and CA. Just remember these 5 bodies; All the rest are outside the original exclusive jurisdiction of the SC in petitions for certiorari, prohibition, and mandamus. Nevermind petitions for quo warranto and habeas corpus because you never file a petition for quo warranto against these bodies because what is quo warranto? Usurpation of power…why would you file it against the CA?...and the same thing with habeas corpus…so, it cannot be exclusive, but always concurrent. Just remember CA, CTA, COA, COMELEC and Sandiganbayan, all the rest is outside the original and exclusive jurisdiction of the Supreme Court if it is petition for certiorari, prohibition and mandamus. But not quo warranto and habeas corpus because you do not file this petition with these bodies.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: What is quo warranto? A: It is usurpation of powers, why will you file it with the CA and petition for habeas corpus. This cannot be exclusive but always concurrent. In the application of concurrent jurisdiction, always remember the three (3) principles: 1. Hierarchy of Courts; 2. Supreme Court is not a trier of facts; and 3. Transcendental Importance Even if it is in its concurrent jurisdiction, it does not mean that the party has an absolute right to file it with the Supreme Court or Court of Appeals, he has to consider the three abovementioned principle. Supreme Court Appellate Jurisdiction: (b) section 5 Article 8 NB: Reclusion Perpetua or Higher; wala na higher sa reclusion perpetua (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) cases in which the jurisdiction of any lower court is in issue. (d) criminal cases in which the penalty imposed is reclusion perpetua or higher. (Note: the “or higher” clause no longer applies because there is no more death penalty.) (e) cases in which only an error or question of law is involved….” The term Review, Reverse, Revise, Modify or Affirm must be define separately and distinctly: 1. Review- what does review consist of? It consist of Reverse, Revise, Modify or Affirm. The term review is a catch all provision. Review means is to take cognizance of the decision but does not cover resolution of the lower body. Review means to look into. 2. Reverse- overturn a favorable judgment to an unfavorable one or vice versa 3. Revise- revision, not a simple amendment 4. Modify- modification or amendment 5. Affirm- accept the decision of the lower body The first paragraph of section a paragraph 5 is exclusive original jurisdiction of the Supreme Court. Paragraph b refers to its appellate jurisdiction. So this power to Review, Reverse, Revise, Modify and Affirm is within the appellate powers of the jurisdiction of the Supreme Court. Q: What does the phrase “review, revise, reverse, modify, or affirm “on appeal or certiorari” under Sec. 5, Art. VIII, Constitution mean? To what kind of appeal is it referring to? A: The word “appeal” is by ordinary appeal. The word “certiorari” is ‘appeal by certiorari’ as a mode of appeal under Rule 45 because when you speak of “review, revise, reverse, modify, or affirm” it is in the exercise of appellate jurisdiction of the SC; it must have come from a lower court and not an original action under Rule 65 which is a special civil action and not a mode of appeal. Do not be confused. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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REMEDIAL LAW REVIEW 2007

Q: What are the modes of appeal under Rule 41 section 2? 1. Ordinary Appeal; 2. Petition for review; and 3. Appeal by certiorari But the kind of certiorari mentioned is a mode of appeal because precisely when you speak of to Review, Reverse, Revise, Modify and Affirm, it is the exercise of appellate jurisdiction. Q: So how could it be an original action when it is certiorari? A: Do not be confuse, certiorari there refers to Rule 65 because Rule 65 is a special civil action, it is not a mode of appeal. Q: What is a mode of Appeal by certiorari? A: Rule 45. So the statement there on appeal—ordinary appeal or certiorari---appeal by certiorari---it cannot be a special civil action because it is appellate jurisdiction of the Supreme Court. You do not go to the Supreme Court by ordinary appeal, well we are talking of civil action. In criminal action there is notice by appeal to the Supreme Court. Since there is no more automatic appeal because of the removal of the death penalty, but it does not mean you can no longer appeal to the Supreme Court, how? By notice of appeal and when you speak of the Constitution, it applies to both civil and criminal cases. Q: The Court of Appeals has only one original exclusive jurisdiction and what is that? A: Action for Annulment of Judgment of the RTC. That is the only original exclusive jurisdiction of the Court of Appeals. Q: If you file an Action for Annulment of Judgment of the MTC, where will you go? A: To the RTC. General Rule: There is no way a decision, resolution or judgment of an inferior court can go up to the CA or SC, all must go to the RTC. Exception: When the inferior court exercises delegated jurisdiction. It is the only instance that the judgment of the MTC can be appealed to the CA or Sandiganbayan. Inferior courts are not included in section 1 of Rule 45. Q: Under what Rule is the exclusive original jurisdiction of the CA (annulment of judgment of RTC)? A: Rule 47-On what grounds? 1. Intrinsic Fraud- prescribed after 4 years from discovery of fraud 2. Extrinsic Fraud- does not prescribed, limited only by application of the principle of laches. Appellate Jurisdiction of the Court of Appeals All decisions, final orders, judgment of the RTC and quasi judicial agencies. The exceptions to this are the five (5), all the rest are found under Rule 43. Just remove the CTA, because it is no longer appealable to the CA but to the Supreme Court. NB: Decisions made by the Civil Service Commission is appealable to the CA. NB: HLURB is not in Rule 43 because appeal therefrom is to the Office of the President. From there, you go up to the CA.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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REMEDIAL LAW REVIEW 2007

Before, decisions of the NLRC are appealable to the Supreme Court. In labor cases. Walang appeal don. What is appealed to the SC is under Rule 65. But because of the St. Martin Funeral Homes case, appeal is now filed to the CA. The decision of St. Martin Funeral Homes, as reiterated in Rubber World case, is not actually removing the jurisdiction of the Supreme Court over decisions of the NLRC. But in St. Martin Funeral Homes case, considering in a petition for certiorari from the NLRC, question of facts are waived and the Supreme Court is not a trier of facts. It is more convenient to file the petition with the CA. Two years thereafter, the Supreme Court laid down a circular stating therein that “petition should now be filed in the CA, otherwise it will be dismiss. Not appeal proper, but under Rule 65. Rule 65 is not a mode of appeal but a special civil action. Regional Trial Court has eight subject matter: 1. Incapable of pecuniary estimation (Russel vs Vestil; Barangay San Roque case). a. What is the determining factor whether the action is capable or incapable of pecuniary estimation? What should be the nature? When the money claim is incidental to the action, then it is not capable of pecuniary estimation BUT if the claim is determinable in terms of money then it is capable of pecuniary estimation. b. Example: A filed a case against B for completion of the house. B agreed to build for A in the amount of P250,000.00. Which court has jurisdiction over the case? The Regional Trial Court has jurisdiction over the case because it is an action for specific performance. The amount of P250,000.00 is merely incidental to the case. c. Suppose in A’s prayer he said: 1. Ordering B to complete the construction of plaintiff’s house; OR 2. Pay B the amount of P250,000.00. Which court has jurisdiction? No longer the RTC, it is already the MTC because of the word “or”. It is now determinable in terms of money. In other words, the cause of the transaction has been determined in the very pleading which is P250,000.00. If the prayer is for B to complete the construction of the house “and” pay P250,000.00, it is not capable of pecuniary estimation. d. Rule: if the case is determinable in terms of money, then it depends as to what is the claim. If the claim is P300,000.00 and below-MTC; if the claim is more than P300,000.00- RTC. e. In the case of Russel vs Vestil, that is precisely the issue here whether or not the action to declare null and void a deed of heirship and partition is capable of pecuniary estimation. The Supreme Court said NO! this is similar to specific performance and in specific performance money is only incidental so that whether or not there is a valid ground to annul a deed of heirship and partition, is not capable of pecuniary estimation. f. The same doctrine was enunciated in the case of Barangay San Roque vs the heirs of Francisco. Expropriation proceeding is not capable of pecuniary estimation while it is true that in an expropriation proceeding there is determination of just compensation but that will come after the court has resolved the issue of whether or not the government or any of its instrumentalities is entitled to expropriate the subject property or the entity has complied with all the requirements of expropriation. So this is again not capable of pecuniary estimation. g. In cases like annulment of judgment, whether the judgment is for a certain amount of money, but when you file an action for annulment of judgment it is not capable of pecuniary estimation because the principal issue here is whether the judgment is annullable or not, money becomes incidental. h. So as to cases of foreclosure of mortgage.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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REMEDIAL LAW REVIEW 2007

2. Actions involving title to or possession of real property or any interest therein, where the assessed value of the said property exceeds P20,000.00; Metro Manila exceeds P50,000.00. What is action involving title to or possession of real property? Is annulment of title an action involving title to property? It seems so, but not anymore because of the case of Russel vs Vestil and Barangay San Roque. Before these cases came out, this was really complicated. NB: You must analyze the nature of the action, and how do you do that? According to the “prayer”. If the prayer for money is only incidental, it is not capable of pecuniary estimation. If the conjunction is “and”, again it is not capable but if it is “or” it is already determinable by the very allegations of the pleadings and the value determines whether it is within the jurisdiction of the RTC or MTC. NB: So by process of elimination, ano nalang ang action involving title to or possession of real property? It seems to me that the only action is “Recovery”, accion publician and accion reinvendicatoria because all the rest now are capable of pecuniary estimation. 3. All cases which used to be within the jurisdiction of the Juvenile and Domestic Relations court are now within the jurisdiction of the Regional Trial Court. NB: BP 129 as amended by RA 7691 that the Securities and Regulation Commission, particularly section 5 paragraph 2, previously handled by the SEC are now transferred to the Regional Trial Court but not to the regular courts, rather to the special Regional Trial Court—Commercial Courts. There are no more Intellectual Property courts because they are already merged with commercial courts. 4. Admiralty and Maritime cases. Should an admiral always be a party to the case? What is admiralty cases? What are maritime cases? Carriage of Goods Sea Act. Admiralty should not be confuse to someone from the military, they are maritime cases. But the jurisdictional amount now is P300,000.00 and P400,000.00—RA 7691. Five years after and then five years after. The last five years happened in 2004. 5. Estate proceedings. This is something new, this was not included in the old rule. RA 7691—inferior courts now has jurisdiction already over Estate Proceedings and that is whether it is testate or intestate. Do not limit probate of a will to the RTC. 6. Marriage and marital relation is with the RTC, although it is a certain kind of RTC because it is the family court under RA 8369. So you correlate it with the jurisdiction of the RTC under RA 8369. NB: Let me just remind you of one provision there that guardianship proceedings and custody of minor proceedings and petition for habeas corpus in relation thereto, it does not necessarily follow that the Family Court has exclusive jurisdiction over petition for Habeas Corpus. If it is a petition for habeas corpus in relation to custody or guardianship proceedings then file it with the family courts. But if it is an ordinary habeas corpus, not in any way related to custodial proceedings or guardianship proceedings, then it is the regular RTC. Q: What are the Inferior Courts? A: There are four (4): MeTC, MTC, MCTC and MTCC.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: Distinguish a municipal trial court from municipal circuit trial court? A: A municipal trial court is one which is located in a municipality with a fixed presiding judge. If there is no judge permanently assigned there, it is a circuit. There roving judges. Note: In inferior courts, there are two proceedings that which are applicable: (1) Regular procedure; and (2) Summary procedure. That is why jurisdiction there gets complicated because of these two procedures. Q: What are the subject matter cognizable by the inferior courts? A: Actions involving personal property Q: What are the actions cognizable by these courts and governed by the Rules on Summary Procedure? A: Forcible entry and unlawful detainer; Money claims limited to the amount of either P300T or P400T, regular procedure but 100T and below and 200T and below, Metro Manila, summary procedure. The Rules on Summary Procedure apply only in inferior courts. As a general rule, there is no summary procedure in the RTCs. So, even if you hear that it is only “summary” in the RTC, it is not the same as Summary Procedure. It only means that there is no controversy in the action, there is no opposition. It is handled by RTC but it is summary. Do not apply the word “summary” there as to mean Summary procedure. Q: In criminal cases, what is the determining factor to decide whether it is under the RTC or the MTC? A: The duration of imprisonment. If more than 6 years, RTC..less than 6 years, MTC. If the penalty is only a fine, the determining amount is P4,000…above P4,000, RTC… below P4,000, MTC. BUT, if the penalty is BOTH imprisonment and fine, the amount of the fine becomes immaterial. Note: Violations of BP 22 (Bouncing Checks Law) are now governed by the Rules on Summary Procedure irrespective of the amount of the check and exclusively under the jurisdiction of the MTC. The same thing with Negligence under criminal law (Criminal Negligence), any crime committed through negligence resulting in damage to property is exclusively by the inferior court irrespective of the amount of damage to property. Violation of Traffic Rules and Regulations, violation of the Rental Laws… these are all w/in the jurisdiction of the inferior courts. In cases of penalty of imprisonment not exceeding 6 years, MTC, but when it is 1 year and below, it is summary. In claims, if P300T and below, it is MTC, but when it is P200T and below, and P100T, if it is outside Metro Manila, it is Summary. Sandiganbayan: A Constitutionally mandated court. The determining factor here is not the imposable penalty, but the salary grade of the accused. If the salary grade of the accused is 27 and above, it is w/in the jurisdiction of the Sandiganbayan. Aside from that determining factor of salary grade, it must be any of the following violations: (1) Anti-Graft and Corrupt Practices Act; (2) Executive Order 14 and 14-A (the PCGG cases); (3) Criminal Law on Bribery and Sequestration cases. The salary grade is found in the Classification and Composition Act of 1987. Moreover, all of the aforementioned violations must be committed in relation to one’s office.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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RULE 1 Sec. 4. In what cases not applicable: In Cadastral cases, Land Registration cases, and Election Cases, the Rules of Court are only suppletorily applicable because they have their own rules. Sec. 6. Proper Construction of the rules: administration of justice.

Must not favor either party but must favor the

Sec. 5. Commencement of the action: An action is commenced upon filing of the complaint as far as the plaintiff is concerned, but jurisprudence tells us that something else is required…payment of the correct or prescribed docket fees. This applies to all kinds of pleadings, whether the pleading is initiatory or an answer to a complaint w/c carries w/ it a counterclaim. Alday v. FGU Insurance: It is only upon payment of the correct docket fees that the court acquires jurisdiction over the counterclaim. Note: Remember that the Rules do not even distinguish as to what kind of counterclaim it is, whether compulsory or permissive. But in the Alday case, the payment of the correct docket fees is required only in permissive counterclaims. This seems to be the doctrine now, notwithstanding a clear provision in the Rules which makes payment of docket fees necessary in compulsory or permissive counterclaims. It is the defendant who shall file a counterclaim and as far as the counterclaim is concerned, the defendant is the plaintiff and the plaintiff is the defendant, whether it is compulsory or permissive. The Rules were amended after the Alday case was decided, but as it stands,the Rules provide no distinction, the case provides a distinction, and in practice, clerks of court do not charge any docket fees as far as compulsory counterclaims are concerned. Barangay 24, Legaspi City v. Imperial: The payment of the correct docket fees is even required in cases of appeal. In this case, there was already payment of the appellate docket fees but it was insufficient and so it was dismissed on the ground that the court did not acquire jurisdiction over the appeal. Note: Even if you paid, but what you paid was not enough, still, the court does not acquire jurisdiction over the subject matter of the case. Q: As to the third-party defendant, when does the action commence? If the parties to a case are A, B, C, and D, how would you possibly situate a third-party defendant, who among them and how? A: A files a complaint against B. B would like to claim against C so he would include C as third-party defendant. Q: If the original action was filed by A against B and C, would C be a third-party defendant? A: No. The third-party defendant in this case would be one against whom the defendant files a case in the same proceeding. So, If A files a case against B and B files a case against C in the same proceeding, C would be a third-party defendant and if C would further file a case against D, D would be a third-party defendant and C would be a third-party plaintiff. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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As far as A is concerned, the action is commenced from the filing of the complaint and the payment of the correct docket fees. As for B, the defendant, the action is commenced from the moment the court acquires jurisdiction over him (upon valid service of summons or voluntary appearance, as the case may be). As to C, the thirdparty defendant, also upon valid service of summons because he is also a defendant… and as long as you are a defendant, summons is always necessary, otherwise, the court will not acquire jurisdiction over the person of the defendant. BUT when you speak of ‘commencement of the action’, payment of the correct docket fees is jurisdiction over the subject matter of the action and not over the person of the defendant. Q: If the action is filed by A against B and C, they are co- defendants and in that action, if B files a case against C, who would be B as to C? A: Crossclaimant. In that situation, who would be the counter-counter defendant? B. Why? Because the complaint was filed by A against B and C. The complaint by B against A is a counterclaim. The answer to the counterclaim, w/c is required in cases of permissive counterclaims, is also against B, so B would be the counter-counterclaimant. Do not confuse this with a reply…reply is different in that a reply is not necessary. Again, Commencement of the action is not only from the filing of the proper pleading but also after payment of the prescribed docket fees. RULE 2 Sec. 2. Cause of Action: The act or omission by which a party violates a right of another. Cause of Action v. Right of action: A Right of Action springs from a Cause of Action; it is a remedial right and it is the right to commence and maintain an action. Q: Between A and B who are plaintiff and defendant, respectively, who has the cause of action? A: B because it was his act or omission w/c violated the right of A. Q: How would you explain that there must be joinder of causes of action (Sec. 5) and in fact, in the joinder of causes of action, it is exceptional to the theory of ‘one suit for a single cause of action’ (Sec. 3)? A: If the Rule defines cause of action as an act or omission by which a party violates a right of another, it must be in the defendant for he is the one who violates the right of the plaintiff. But if it is in the defendant, why is it that there must only be ‘one suit for a single cause of action’ when the cause of action resides in the defendant? If we do not clarify these things, we cannot proceed because this is the difficulty as it is not even discussed that is why you keep on inter-changing one for the other Cause of Action and Right of Action). Even in the Rules, the Cause of Action is inter-changed with the Right of Action. They are used interchangeably while they are not supposed to be because the Rule is very clear as to the definition of a ‘Cause of Action’. The Right of Action belongs to the plaintiff as against the defendant. The Cause of Action brings about the birth of a Right of Action . So, when you say ‘one suit for a single cause of action’ (Sec.3), the word ‘suit’ belongs to the plaintiff. The cause of action belongs to the defendant.

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Examples of Cause of Action: Breach of contract: The defendant breaches the contract and because of that breach, he violated the right of plaintiff. Suppose the breach is constituted by non payment of obligation, so the act or omission is non payment of the obligation. By non payment of the defendant, the right of plaintiff is violated. The plaintiff now has a right of action against defendant. That is why we say ‘one suit for a single cause of action.’ The Cause of Action is non payment. The right of Action is a suit for payment of sum of money. Sec. 4. Splitting a Cause of Action: Q: Using the same example, how do you split a single cause of action? A: One suit for collection of money and another suit for damages. Here, the cause of action is split because the damages arose from the non-payment, a single cause of action. You cannot bring two actions. In a contract of lease, the lessee did not return the property at the expiration of the contract. That failure to return the property brought about a right of action to the lessor. The lessor now files an action for recovery of property, accion publiciana, but aside from the property, he would also like to recover the fruits thereof, unpaid rentals. He cannot file another case of unpaid rentals because it arose from the same cause of action. From one cause of action, should arise also one suit only. But it can happen that between the same parties, A and B, there are several acts or omissions on the part of B. So instead of filing several suits because the Rule provides one is to one only, one suit for a single cause of action, the Rules allow joinder of causes of action. (Sec. 5) Example of joinder of causes of action: There are several violations done by B against A. Q: B borrowed money from A in the amount of P10T January 2006. Again, B borrowed money from A in the amount of P30T on March of the same year. Again in September, P400T. How many causes of action are there if B does not pay all obligations? A: There are three causes of action. How many rights of Action? There are also three. How many suits should A file against B? He may file three, but may opt to file only one complaint. If A opts to file only one complaint against B, collection of sum of money in the amount of P440T, it will be allowed under the principle of ‘joinder of causes of action’. Q: What are the requirements for joinder of causes of action? A: The requirements for a valid joinder of causes of action are: 1. The party joining the causes of action shall comply with the rules on joinder of parties; 2. The joinder shall not include special civil actions or actions governed by special rules; 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 RTC, provided one of the causes of action falls within the jurisdiction of the said court ant the venue lies therein, and 4. Where the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

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Q: In the said example, is there joinder of parties? A: No. There is no joinder of parties here because there is only one-party plaintiff and one-party defendant. There will be joinder of parties if A files a case against X,Y, and Z so there will be joinder of parties-defendants or A, B, C files a case against X, there will be joinder of parties-plaintiffs, or A,B,C, plaintiffs against X,Y,Z, defendants…there will be joinder of parties. ‘joinder of parties’ means there must be plurality of party-plaintiffs or party- defendants. Q: If there is no joinder of parties here, then why does the Rule require that in joinder of causes of action, there must be compliance with the Rules on joinder of parties? What is the rule under Sec. 6, Rule 3 on Permissive joinder of parties? What is the requirement for joinder of parties? A: There must be common question of fact or law. Q: Is that required in joinder of causes of action? A: Yes. When you join causes of action, there must be commonality of fact or law. In the example given, there is commonality of law. The causes of action joined must be governed by the same rules, so that a special civil action cannot be joined with an ordinary civil action because these two different actions are governed by different rules. If A intends to file collection for sum of money against B and he also wants B to vacate the premises w/c he leased unto him, he cannot join an action for collection of sum of money and unlawful detainer because the former is governed by regular or ordinary rules and the latter is governed by special rules, being a special civil action. So in joinder of causes of actions, all of the actions must be governed by the same rules. Q: Let us change the value in the example, P10T; P30Tand P401T. If you were to file three separate actions, where would you file them? A: As to the P401T, in the RTC; As to the P10T, in the MTC; and As to the P30T, also in the MTC. Q: If you join them, where will you file the action? A: In the RTC because of condition number 3 under the rules on joinder of causes of action. Q: Suppose the amounts are P10T; P30T; and P360T. Where will you file it? A: Applying the fourth condition in joinder of causes of action, the action shall be filed with the MTC as the aggregate mount is only P400T. Q: Mr. A resident of QC filed a case against Mr. B, resident of Baguio City for collection of a sum of money in the amount P450T and an action for recovery of property located in Batangas. Can A join his causes if action? A: Yes. Both are governed by the same rules, although the first cause of action is a personal action and the second is a real action. There is no prohibition against joining personal with real actions or an action in personam with an action in rem. Q: Which court has jurisdiction over the case if you join them? A: RTC because both actions are within the court’s jurisdiction. Q: Suppose the claim for a sum of money is for P100T, can you still join them? What court has jurisdiction? A: The RTC because one of the joined causes of action is cognizable by the RTC. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: Where is the venue? A: The venue of the action may be in QC, residence of the plaintiff; or in Baguio, residence of defendant; or Batangas, the location of the property, at the option of the plaintiff. There is no preference of real over personal or vice versa. The option belongs to the plaintiff. In the joinder of causes of action, you resolve the issue of both jurisdiction and venue then you refer to Rule 4: Venue of Actions. Q: When is the rule on venue not applicable (Rule 4, Sec. 4)? A: (1) In those cases where a specific rule or law provides otherwise; or (2) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. Note: Even in the agreement as to venue, it can be interpreted either in the mandatory or directory character, if it is not exclusive…there must be the character of exclusivity. (ex: “exclusive of any other venue”; etc.) Note: Take note of the doctrines in Katon v. Palanca and Manila Bankers Corporation case. RULE 3 Q: Who may be parties? A: Natural persons, Juridical persons, and those entities authorized by law (ex: estate of the deceased). Q: Who is a party in interest? A: A party who may be benefited or injured in a suit. The term “real party-in-interest” applies to both plaintiff and defendant. Party in interest v. lagal standing Party in interest is a matter of procedural law. Legal standing is a matter of substantive law A party in interest is a party who may be benefited or injured in a suit directly. In Legal standing, there is interest in the subject matter although one may not be directly benefited or injured by the suit.

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November 23, 2006 The case of FGU V. Alday is about counterclaim and docket fees. Q: Is non-payment of docket fees a ground for dismissal? A: Rules provide for payment of docket fees for counterclaim irrespective whether the counter is permissive or compulsory. The Rule provides no distinction as provided in Rule 141 Sec. 7. However in this case the Supreme Court provided for a distinction. Q: So if presented with this problem which would you follow, the rules or jurisprudence? A little background would help. A: When the Supreme Court amended the rules regarding docket fees it did not have any distinction. The implementing circular however became a subject of several protests which required payment of docket fees of counterclaim whether compulsory or permissive. Because of the protests, the SC recalled the circular. However in 2005, the IBP lifted their protest giving way to strict implementation of Rule 141 Sec. 7. But up to now the clerks of court in particular when there is compulsory counterclaim no fees are collected. This is what they do in practice. Hence it so appears now that the present policy is in accordance with the FGU decision. Q: Tests to determine the nature of counterclaim: A: 1. When the issues arise from the same transaction 2. Whether res judicata will bar subsequent filing of claim by defendant 3. Evidence test rule – whether the same evidence is required 4. Whether there is logical relation between the claim and counterclaim Q: Kinds of Pleadings: 1. Complaint 2. Answer 3. 3rd party complaint 4. Counter claim 5. Reply 6. Intervention Q: Who may file a counter counter-claim? A: The plaintiff Q: Suppose A filed a case against B, against whom may B file a cross-claim? A: No one because there is only a single defendant. Q: May B file a 3rd party complaint? A: Yes against a party not an original party to the action to which he sought for indemnification, subrogation or other relief. Q: Rules on counter-claim: A: 1. The counterclaim must be within the jurisdiction of the court both as to the nature and as to amount. 2. You cannot anymore subdivide a counter-claim. A counter-claim which exceeds the jurisdiction of the court must be dismissed.

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RULE 7 Q: Parts of a Pleading A: 1. Caption 2. Body 3. Relief 4. Signature and Address 5. Verification 6. Certification against non-forum shopping Body 1. The part which states the right of action 2. Jurisdictional requirements: a. That the plaintiff has a legal capacity to sue and in the case of defendant the capacity to be sued. If you do not allege legal capacity the complaint is immediately dismissible. b. In case of defendant, his address or at least his whereabouts for service of processes c. The rule provides that allegations of certain matters to be made with particularity such as fraud and mistake or with generality such as malice, intent or judgment. d. Allegations must alleged only Ultimate facts which are the bases on one’s claim or defenses. Actionable document Q: Two (2) ways of pleading an actionable document A: 1. By setting forth the substance of such document in the pleading and attaching the document thereto as an annex; or 2. By setting forth said document verbatim in the pleading if such document is not lengthy. Q: How to contest an actionable document A: By denying specifically under oath. Failure to deny results in the admission of the genuineness and due execution of the document. Q: Exceptions? A: 1. When the adverse party is not a party to the instrument 2. When an order for the inspection of the document was not complied with. Q: Meaning of Genuineness A: Means that the document is not spurious, counterfeit or of different import on its face from the one executed by the party. Q: Meaning of Due execution A: Means that the document was signed voluntarily and knowingly by the party whose signature appears thereon, that if signed by somebody else such as representative that he had the authority to do so, that it was duly delivered and formalities complied with

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Q: Four (4) criteria of authenticity and due execution: A: 1. Signature is not forged or falsified 2. The contents of the instrument is the same at the time it was signed 3. That all formal requirements are considered complied with 4. The same document has been signed and delivered Case of Benguet (doctrine) If the authenticity and due execution of a document is duly proved, it extends only to the extrinsic validity of the document and not the truth of the contents of the document, which is the intrinsic validity. The records of the case clearly shows that the documents were contested. SIGNATURE AND ADDRESS Q: Purpose A: To assert that the parties had read the pleading and to know where the processes of the court may be properly served. The signature must be of the parties themselves VERIFICATION Q: Purpose A: Same purpose as signature Q: Is it not a surplusage since it has the same purpose as signature? A: No, because not all pleadings require verification Q: Which is more important, signature or verification? A: Signature is more important because when the pleading is not signed the effect is that the pleading is not deemed filed. The remedy is to re-file. Lack of verification on the other hand is not fatal. The remedy is to file an amendment. If both are present, verification is confirmation of the signature. CERTIFICATION AGAINST FORUM SHOPPING The certifier attest that he has not commenced any other action against the same parties with the same issues, or if there is a case pending a statement of the present status thereof or if he should learn of a similar action or claim filed he should inform the court within 5 days therefrom. Q: What is the effect of lack of certification? A: Dismissal under Rule 17, lack of certification of non-forum shopping is not correctible by amendment. In practice some lawyers separate verification from certification but some does not. Both the verification and certification must be signed by the parties themselves except if the party is a corporation and the lawyer is the in-house counsel. In case of three or more plaintiffs, all of them must sign the verification and certification. NOTE: Certification of non-forum shopping is very important because of it can be proved that absence of such is malicious you can even be cited in contempt. Q: What is Forum-shopping? A: Party seeks a favorable opinion in another forum through means other that appeal or certiorari by raising identical causes of action, subject-matter and issues.

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Q: Remedy? A: Motion to dismiss based on litis pendentia or res judicata NOTE: Do not confuse forum shopping with pre-judicial question. In forum shopping it involves even the same case file in other tribunal. In pre-judicial question it is necessary that one case is civil and the other one criminal which is not the issue in forum shopping. RULE 9 Q: The following defenses are not waived even if not raised in a motion to dismiss or answer (cross refer to Sec. 8 Rule 15): 1) Lack of jurisdiction over the subject matter 2) Litis pendentia 3) Res judicata; and 4) Prescription of action NOTE: A compulsory counter-claim not interposed is barred except Sec. 10 Rule 11. DEFAULT Q: When may a party be declared in default? A: After the lapse of period within which to file an answer and defendant did not file an answer seasonably. Q: May a plaintiff be declared in default? A: Yes plaintiff can be declared in default relative to a counterclaim especially of the counterclaim is permissive. Q: A files a case against B for unlawful detainer. B received summons Jan. 5 and on Jan. 25 B has not filed any answer yet. May B be declared in default? A: No B cannot be declared in default because the case is unlawful detainer which falls under summary proceedings. In summary proceedings a motion to declare a party in default is one of the prohibited pleadings. Q: Suppose the case is one for collection of sum of money, may he now be declared in default? If yes, how? A: Yes B can be declared in default by A’s filing of a motion to declare B in default. Q: Two kinds of motion: A: 1. Litigated 2. Non-litigated NOTE: If it is established that defendant did not receive a copy, it would be irregular for the court to declare Defendant in default. The phrase “as in default” no longer applies. The only ground for declaration of default is failure to file an answer seasonably. Q: Remedy of defendant declared in default A: File a motion to lift order of default If denied: Motion for reconsideration If denied: Certiorari under Rule 65 on the ground of grave abuse of discretion

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Q: Suppose there is no ground? A: Wait for rendition of judgment by default, you now have ordinary remedies such as appeal or new trial or relief from judgment NOTE: If the defendant is declared in default, he loses his personality before the court but by filing a motion his personality is restored. Order of default is different from judgment by default. A judgment by default is always preceded by order of default. There is only one exception to this and that is Rule 29, Sec. 3, Par. C which is refusal to comply with modes of discovery. NOTE: Supreme Court always looks down on default order so if confronted with this problem your inclination should always be against default orders. There are no injunctive relief in default orders. RULE 10 Q: Two (2) Classifications of Amendment: A: 1. Amendment a matter of right or by leave or court 2. Substantial or formal amendment Q: Effect of amendment? A: Amended pleading supercedes the original. Q: Totally? A: No, admissions in the original pleading may be used as evidence. Q: A files a case against B for collection of sum of money. Summons was served Jan. 10 and B filed an answer Jan. 20. May A still amend his complaint? A: Yes because the period to amend a complaint as a matter of right is anytime before a responsive pleading has been served. Filing and service are two different things. Filing is with the court while service is to the parties. NOTE: Amendment as a matter of right is absolute when the plaintiff has not yet received a copy of responsive pleading. If a motion to dismiss is filed, such is not a bar for a plaintiff to amend his complaint.

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RULE 10 Q: If A filed a case against B for a sum of money and then there was no allegation as to a demand, hence the issue of demand is not within the jurisdiction of the court. During the presentation of plaintiff’s evidence, the witness of the plaintiff would like to present as evidence the demand letter, B objected the same on the ground that it was not raised in the pleading and therefore the court has no jurisdiction over the issue. If you were the judge, how will you rule on the objection? A: You will grant the objection because the court has no actually jurisdiction over the issue. In granting the objection for denying the presentation of such kind of evidence because it is without jurisdiction of the court. Q: As plaintiff, what will you do? A: Under Rule 10 section 5, Amendments to conform or authorize presentation of evidence, the plaintiff may move for amendment and such must be granted to by the court with liberality. So even in this instance, at this point in time of the proceeding (during trial), amendment is still available. It is an amendment with leave of court. If the court does not grant it, it can be construed as grave abuse of discretion on the part of the court which is adept to certiorari or mandamus as the case may be. As a general rule, the evidence must conform to the pleading. This time, considering that the evidence is not within the jurisdiction of the court, it should be the pleading that must conform to the evidence to authorize the presentation of evidence. That is the meaning of section 5 Rule 10. Q: Suppose the amendment sought by the plaintiff here is a change of cause of action, will you grant it? A: Even if it is a change of cause of action, it must be granted with liberality. But as a general rule, never with jurisdiction. Cause of action yes but jurisdiction no. Q: Why? A: Because if for example you filed a case with the RTC for sum of money in the amount of P350,000.00. That is definitely outside the jurisdiction of the RTC and you ask for amendment with leave of court so that the RTC will have jurisdiction, and changed the amount claimed to P500,000.00, you cannot do that because this is an issue of jurisdiction. You cannot do that. Why? because remember, under the latest jurisprudence on that matter, jurisdiction over the subject matter is not only conferred upon filing of the necessary pleading but payment of the correct docket fees. So the docket fees you paid for is only for the amount of P350,000.00, and you want to change it to P1 million, you wont be allowed. It is an indirect way of escaping the payment of the correct docket fees. This is taken from the old Mar Copper doctrine. Q: How would you distinguish an amended pleading from a supplemental pleading? A: As to the purpose, an amended pleading aims to change certain facts while in a supplemental pleading you don’t change anything, you just ask for supplement. As held in the Remington case, there is no need for the issuance of a new summons because it did not change the cause of action. If the pleading changes the cause of action, then another summons is necessary because as a general rule, an amended pleading supersedes the original pleading. Q: Even if it superseded the original pleading, is there anything admissible from the original pleading? A: Admissions remain even when the original pleading has been superseded pleading. What kind of admissions are they? They used to be extrajudicial admissions but jurisprudence now, under the new rule, these are already considered as judicial ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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admissions. You have to distinguish that because the effect of a judicial admission is different from an extra judicial admissions whereby the latter requires or calls for proof, requires for offer. But because these are judicial admissions, you need not to offer them. It can be used by the court as basis of its decisions, judgment or resolution. RULE 11 Next rule is only about periods. The only thing to remember here in Rule 11 are the following days- 10 days, then 15 days, then 30 days and finally 60 days. Tandaan nyo lang yon and we are through with Rule 11. So this is about when to file responsive pleading, take note they are responsive pleading so if there is nothing to respond to, a responsive pleading is not necessary but if it is required, when are you suppose to file them? Q: So 10 days, what pleading must be filed within the period of 10 days? A: 1. Answer to the complaint when it is covered by the Rules on Summary Procedure; 2. Answer to an amended pleading if the amendment is not a matter of right; 3. Reply; 4. Answer to the counterclaim, cross claim and answer to a complain in intervention; 5. Answer to a pleading after a bill of particulars has been granted. Q: Let’s go to 15 days: A: 1. Answer to a complaint under regular procedure; 2. Answer to an amended complaint when the amendment is a matter of right; 3. Answer filed by a third, fourth or fifth party defendant as the case may be. Q: Why is the answer in a complaint in intervention is only 10 days? A: Remember that the one who answers it is already within the jurisdiction of the court. Kaya 10 days nalang but the one who is suppose to answer within 15 days is not yet within the jurisdiction of the court like a fourth party defendant is not within the jurisdiction of the court. So he must be first before he is brought within the jurisdiction of the court that is why you have the 15 days period. Q: How about the 30 day period? A: There is only one instance- when the defendant is a foreign corporation or foreign private entity and summons was served to the corporation through the government official in the Philippines. The 30 day period must be counted not from the receipt of the government official but from the receipt of the defendant itself, the corporation. Under section 13 of Rule 14, you will find out that a foreign private entity can be served with summons in three (3) ways. Kaya tatandaan nyo. If it is served to the government official in the country, 30 days, otherwise 15 days. This is the only 30 day period, wala ng iba sa rules. Now finally, we go the 60 day period- When summons is served under section 15 of Rule 14 or what we call extra territorial service. But take note, there is a cross reference in section 15, that is 14 and 16. Before and after. That summarizes Rule 11. RULE 12 Rule 12 is only the Bill of Particulars. Bill of Particulars maybe filed by any party that is suppose to file a responsive pleading. Before one files a responsive pleading and he wants to be clarified on certain matters, then instead of filing of the answer, he must file a motion for a Bill of Particulars.

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Q: Who may file a motion for a bill of particulars? A: 1. So this can be filed by the plaintiff with regard to a permissive counterclaim. 2. This can be filed by the defendant with respect to the complaint. 3. This may again be filed by the plaintiff if he intends to file a reply. Q: Anyone who is bound or required to file a responsive pleading may ask for a bill of particulars. What does this mean? A: It simply means that you are not clear on a matter in his allegation, so clarify it. Q: Suppose in the complaint of the plaintiff, the plaintiff joined three (3) causes of action. Assuming the defendant owns him P50,000.00, on another occasion he owes him P130,000.00 and another occasion he owes him P300,000.00. There was no allegation of when and how it was loaned. A: That is a very clear case that calls for a bill of particulars. Although a bill of particulars is there in the rules, but you will note that this is very academic. I’m telling you now because in actual practice you don’t ask for a bill of particulars. Good lawyers won’t ask for that. What will I do? I’ll file a motion to dismiss for lack of cause of action. If I’m not clear on the matter, motion to dismiss so he’ll amend the pleading. Thus, you bought time. Like default, if I were the plaintiff and he did not file an answer, I will not move for declaration of default. Why? I will ask for presentation of evidence, after all if the party is in default, you are delaying your own case. Why? because there are many remedies to default and the court will grant this remedies. Motion to set aside the order of default, motion for reconsideration then judgment and you go all over again and when you move up to the Supreme Court the latter will say, no default, the party must be given due process. Don’t fight it out of technicalities, so remand the case for further proceedings after fifteen (15) years. Although these are very good problems in the bar but later on, if you were in practice, how can you avail of what you don’t even know. Like in the bill of particulars, it may not be that important but it might be given in the bar. Q: So when do you count the period? A: When you file a bill of particulars, the period to file a responsive pleading is stop and you’ll only have the balance of the period within which to file an answer if it is denied but if its granted, you have to file a bill of particulars within the period of 10 days but the 10 day period must be counted from the receipt of the resolution granting your motion for a bill of particulars. Q: Suppose A filed an action against B and the latter received the summons in January 1. So he has ordinarily up to January 16 in which to file an answer but on January 5, instead of filing the answer he filed a motion for a bill of particulars. The court granted the bill of particulars on January 20, then the question is when should B file the answer? A: No answer yet because it is A who should clarify because the bill of particulars is granted, the order is directed to A to amend, to change what is suppose to be change, and if he does not, this may be ground for dismissal. Now, after he has change, the 15 day period will no longer apply. The 15 day period ordinarily within which to file an answer no longer apply because of that bill of particulars. So what applies? You have only the balance of the period but not less than 5 days. Pareho lang yan ng motion to dismiss under Rule 16. Under Rule 16, when the defendant files a motion to dismiss and it is denied by the court, you do not appeal. Why? It is an Interlocutory order. So the defendant has only the remaining balance of the period but not less than 5 days. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Do not apply the Domingo Mated doctrine, the fresh day rule. This is a September 2005 case, Domingo mated et al vs Court of Appeals penned by Justice Corona. Bago yan ha, September 14, 2005, this is the fresh day rule or the fresh day doctrine. Baka lumabas sa bar, atleast you know. It simply says that when a motion to dismiss is filed and then the court denies it or grants it as the case may be, of course denied. You have the entire period all over again, 15 days, not just the balance. But do not apply it here in a bill of particulars and motion to dismiss because the time to file the answer is the remaining balance which must not be less than 5 days. So the old rule applies only to Rule 42, 43 and 45. Yun lang ang may fresh day doctrine. It applies to Rule 41 as well. You have the entire period all over again. In fact my opinion on the matter is that it applies as well to Rule 64 and 65 because in Rule 65, a motion for reconsideration is mandatory. RULE 13 Rule 13 is about Filing and Service. In Service, what do you use? Powder or lotion? Q: What is Filing and what is Service? Which comes first, Filing or Service? Distinguish. A: As to initiatory pleading, filing comes first, service later. Thereafter, service comes first and filing later. So when you file a complaint, initiatory pleading yan, you don’t serve first because it is the court that serves the same together with the copy of the summons to the defendant so filing comes first. But answer, before the court receives the same for filing, you must first establish that you have served a copy thereof. Aside from initiatory pleading, ordinarily processes that emanated from the court, filing comes first then service later. For example, judgment. A judgment that emanates from the court, this is first filed and then served a copy to the party. Resolutions and orders, they are first filed and then served. We are going to discuss three (3) topics under Rule 13, so first is Manner or Mode of Filing and Manner or Mode of Service. The second topic is completeness of Filing and completeness of service. And the third topic is proof of Filing and Proof of Service. If you can answer that, tapos nanaman ang Rule 13. Q: What is the mode or manner of Filing? A: There are two (2): 1. Personal Filing; and 2. Filing by Registered mail. You have to distinguish now because in service it is different. How do you personally file? Q: How about service, what are the modes? A: There are three (3): 1. Personal Service; 2. Substituted Service; and 3. By mail. Under mail, it is divided in two kinds, either registered or ordinary mail. Importante eto because you might ask regarding completeness and proof. So magdidiffer yon, as to completeness and proof. What is Personal Service? And by mail? Have you ever mail by registered mail? By Substituted Service. Do not confuse this with substituted service of summons.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: To whom do you leave a copy? Which Clerk of Court? A: In every court, when you say RTC, isa lang yon. Kasi ang concept nyo pag sinabing RTC, ang dami nyon. Isa lang yon, but several branches. Every Regional Trial Court in a judicial region has only one clerk of court. But each branch has what you called a branch clerk of court. This city here in Metro Manila, for example here in Makati, there are more than 50 branches, but in Manila or Quezon City there are maybe a hundred I supposed or even more. Each branch has a branch clerk of court. This Substituted Service is not with the branch clerk of court but the Chief Clerk of Court. If your book says in the branch clerk of court, that’s wrong. It should be the Chief Clerk of Court and the latter is the one in charge with all the branches. In fact the sheriff is under the clerk of court. That is substituted service. Q: What do you have to establish to avail of substituted service? A: That is section 8, do not confuse that with section 9. You cannot avail of section 8 if the subject matter to be serve are final resolution or judgment, that is under section 9. Service of judgment, service of final order under section 9 is different from service of pleadings under section 8. In section 8, there is substituted service of pleadings but when you go to section 9, you do not avail of substituted. Q: What is the provision of section 9? It is through publication. So that the period for finality of the resolution or judgment starts to run only after availment of section 9. In the case of substituted service, that begins to run upon receipt of the clerk of court of whatever pleading is served. Do not confuse that with Rule 14, personal service is no longer used in summons. Personal service is used now in Rule 13. If you go to Rule 14, they do not use anymore personal service and you must follow that. It is already called Service on the person of the defendant under Rule 14. That is as to summons because substituted service of summons is very different. While here in service of pleadings, that is still personal service. If you cannot find the person to whom it must serve, you have to leave at the residence where a person of sufficient age and discretion is found, or in the office to a person in charge thereof. These three (3) ways are is still personal service of pleadings. Distinguish from the service on the person of the defendant under Rule 14. Q: When is filing complete? A: 1. In Personal filing, after actual delivery. 2. If it is by registered mail, the posting is the date of filing. When you mail by registered mail, the post office stamp is the date of filing so that within the 15 day period for example, the stamping is in the 15 th day, that is within the 15 day period. Q: When is service complete? A: You have to distinguish whether it is by ordinary mail or registered mail. If it is by registered mail, from the actual receipt of the mail or 5 days thereafter from the first notice of the postmaster. The post office sends three notices, it is the first and not the last. Hindi eto unlawful detainer. In Unlawful detainer, you count the one day period from the last demand, dito first notice. In substituted service, upon actual receipt of the clerk of court. Q: Proof of filing A: 1. If it is personal filing, the stamp made by the clerk of court. 2. If it is by registered mail, proof is the registry receipt.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: Proof of Service A: Take note of the requirement, now of an affidavit of the sender, especially if you are filing with the court of appeals or the supreme court under Rule 66 of the Rules of Court, that is a ground for the dismissal of your petition if you do not include an affidavit of service. If you do not include as proof that you have serve to the adverse party the affidavit of the sender together with the registry receipt stamp, that is a ground of the dismissal by the Court of Appeals or the Supreme Court. Q: There are many instances when you try to establish that you have filed a pleading with a court, the court cannot find anymore the pleading you have filed. Should the record of the court prevail over your personal record? A: You present your own copy kasi karamihan ngayon nakakaligtaan. Let me give a special mention to section 11. It says there priority of personal service. Of the many modes we have discuss, the Rules seems to prioritize personal service, why? This is new in the 1997 Rules. If you cannot avail of personal service, you have to make an explanation stating therein the reasons why you cannot avail of personal service. Service and filing cannot be made without that written explanation. What is the historical background regarding this amendment of Rule 13, these addition to the rules? Because several practicing lawyers would try to delay for one reason or the other, some reasons are valid but most reasons are not. They would not expedite the administration of justice. So the Supreme Court amended the Rules modestly and moderately by simply prioritizing personal service. For example here in Makati, in the same building, the plaintiff’s counsel is in the 4 th floor while the defendant is in the 1 st floor. What do they do? They mail pleadings to buy time. No amount of reason will invalidate your delay, if that is the case. Although the court would not mind it, but now with this rule, that must be practiced. The rule calls for a valid reason as long as he has a reason and the usual reasons are for convenience and practicality or lack of personnel to serve the same or there are other reasons I find like because of the horrendous traffic in Metro Manila. Rule 14 Rule 14 is very, very important. As a warning, summons is singular, the plural is summonses. I am warning you that because one of my friend examiners did not correct the examination booklet anymore because it states “summons are”, he said this examinee is not yet ready to become a lawyer. He underscores that, grade 49. Even if you get 90 in the Bar, if you have 49, you are already disqualified and only because of that grammar. Again, Summons is singular, the plural is Summonses. Also an examiner in Criminal Law, who in the same manner, did not bother to check the examination booklet because of the word “stafa” was misspelled. So be very careful with your grammar. Q: What is a Summons? A: Is a process issued by the court and served upon the defendant for the purpose of acquiring jurisdiction over him and to direct him to file responsive or an answer. Q: What is the purpose of a Summon? A: There are only two ways by which the court acquires jurisdiction over the person of the defendant: 1. Valid Service of Summons. Remember that it must be VALID. When you say service of summons that is wrong because even if you serve the summons and the same but the service is invalid, the court did not acquire jurisdiction. 2. Voluntary Appearance ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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To whom is the Summons addressed? Together with the summons is a copy of the complaint. Q: Who serve the summons? A: The sheriff. Q: How does the sheriff serve summons? What are the modes of service of summons? A: 1. Service on the person of the defendant 2. Substituted service 3. Extraterritorial Service (under section 14, 15 and 16) a. Service on the person of the defendant b. Substituted Service c. Publication d. By any other modes authorized by the court Note: There is no service of summons by registered mail Q: Why is there no service of summons by registered mail? A: Because the purpose of service of summons is to acquire jurisdiction over the person of the defendant and if it is by mail, it is dependent already on the mail proper. The court will not allow that. So the sheriff who is task to serve the summons will serve the same either service on the person of the defendant or substituted service. Q: After he has done that, what should he do? A: The sheriff will file a return. Q: What is this return? A: This is one of the most important words in special proceedings like habeas corpus. Ano nakalagay sa return? Alam nyo crucial yan, because when the sheriff files a return that he served summons by substituted service, it requires that he must have exerted effort and his effort is futile that is why substituted service is availed of. Like and Habeas Corpus, you recall your lessons in habeas corpus, very prominent yung return, there is a return as a plea and a return as an evidence. Q: Aside from the sheriff, who may serve summons? A: Any officer authorized by the court. Q: Can the plaintiff serve the summons? A: The rule says the sheriff, the deputy sheriff and any person authorized by law, kung susundin nyo lang yon, you rationalize. In the analysis of service of summons, you have to know to whom it must be served. So you have to consider the defendant. Remember under section 1 of Rule 3, that the defendant of parties to an action may either be a natural person, a juridical person or any entity authorized by law. You apply that in cases of defendant. In fact we discuss about necessary and indispensable party, so the first thing you have to ask “Who is the defendant?” because the mode of service somehow depend who the defendant is. Q: If the defendant is a minor to whom should the summons be served? A: To the minor and the parents or guardian as the case maybe.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: So how many summons? A: Two (2) summonses. If you only serve it to the parents, that is wrong, it will be an invalid service of summons. The rule says service on the minor AND service on the parents or guardian or guardian ad litem. Q: If the defendant is an insane or an incompetent, to whom summons must be served? A: Personally to the insane or incompetent and personally to the guardian. Q: Why will you serve the summons to an insane defendant? Loko loko na isserve mo pa ng summons? A: Because an insane person is not insane all the time. They have lucid interval. But an imbecile is different from an insane because the former is not qualified but the latter is qualified, therefore there is no provision regarding an imbecile. If you are given a choice between an imbecile and an insane, you choose the latter, must be insane. Q: If the defendant is a prisoner, to whom summons be served? A: To the prisoner himself or to the deputized sheriff. So he is not within the concept “authorized by law” because the rule says authorizes the sheriff or the warden. The rule itself authorizes the warden or one charged with the jail to serve it but it is served to the prisoner or upon the prisoner not to the sheriff. It is only the sheriff or the warden who is authorized by the rules to serve it. He is deputized. These are natural persons. The rule says it must be served upon the person of the defendant themselves but does it follow that it cannot be serve through substituted service? It can. So if ever it is served upon the warden, it is already substituted service. Take note of that. It is no longer service upon the person of the defendant but rather substituted service. Why? because that is where the defendant resides, so you serve it on the person in charge thereof. So nagiging substituted service. Magandang catch yon if it is given in the problem. Q: What kind of service is service upon the prisoner? A: The answer is the rule requires personal service or service upon the person of the prisoner because the rule says service on the prisoner through the warden. Service on the warden because he is in charge thereof. Even in cases of this special kind of defendant, service of summons may still be made through substituted service. Q: What are the requirements for substituted service? Where do you serve substituted service? A: At the residence of the defendant to a person of suitable age and discretion residing therein. The place must be the residence of the defendant and you just cannot leave it to anyone there in the residence, it must be a person residing therein and must be of suitable age and discretion. There are many cases to that effect. Q: If you cannot find his residence, or there is no residence or the residence is unknown? A: At the office of the defendant to a person in charged thereof. Q: If you leave it to a security guard in the office of the defendant, suppose in a condominium unit, the office is at the 4 th floor, pag pasok ng sheriff sabi ng guard “do ho pwede”, tapos iniwan sa kanya ng sheriff, valid? A: That is not valid because the security guard is not in charge thereof. For example are the cases of Millenium and EB Villarosa doctrine. Substituted service means the service is not anymore to the person of the defendant but rather to someone else whether residing in his residence and must be of suitable age and discretion or to someone in charge of his office at his office to be valid.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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And another basic requirement is “after complying or after exerting earnest effort to serve summons on the person of the defendant”. So that is substituted service. You will note, going to Rule 13 that substituted service of pleading is handing over the pleading to the clerk of court, personal service therein includes service in the office and in the residence. Q: You will note that in summons, it is the residence and then office, in Rule 13 it is office then residence, why is that so? Have you ever thought of that why ganun ang priority? A: Because when summons is supposed to be served, there is no counsel yet so the priority is the residence while in pleading, there is already a presumption that he is already protected or he has already a counsel of choice. Counsel de parte kaya ganun. Q: There is another defendant which is a corporation and under this heading, the corporation can either be of two kinds: A: 1. Public corporation; and 2. Private corporation a. Domestic private entity; and b. Foreign private entity Q: In public corporation, to whom must summons be served? A: Correlate this with section 17 Rule 3. In local government unit, the head of the state. If it is a province the governor, vice governor. If it is a city, the city mayor or vice mayor. If it is the municipality, the municipal mayor and in cases of the barangay, the barangay captain. You can also serve it on the vice mayor in the absence of the mayor. So any officer of that public corporation, summons may be served. But you have to establish that it was received. Yan ang importante don. That can be done through the return of course. In private corporation, if it is a foreign corporation, summons may be served to the agent of the corporation or the government entity charged with the said corporation or any agent authorized by the corporation. Q: Is there any difference among these three? Who is that Philippine government officer authorized to receive summons? A: In cases of insurance corporation, summons may be served to the insurance commissioner or if it is a bank, to the governor of the Central Bank. If the foreign corporation is authorized to do business here in the Philippines, then it is necessary that he has an agent here, so you serve it to him. But going back under Rule 11, the period to file a responsive pleading, if it is served upon the government officer, 30 days from the receipt not by the government officer but by the corporate defendant. If it is served upon the agent, 15 days lang. If it is served upon the representative, it is also 15 days. If it is a domestic private corporation, summons may be served to the president, the managing partner, general manager, corporate secretary, treasurer and the in-house counsel. Note that this is exclusive under the Villarosa doctrine. You better memorize that because the doctrine now is it is exclusive, the enumeration there is exclusive. As held in the case of Mason vs CA which reiterated the Villarosa doctrine. Let’s go back to the modes because another situation here is when the defendant is outside the country. When the defendant is outside the country, normally what comes into your mind is that service of summons must also be made outside the country as well. That is why you call it extraterritorial service of summons under section 15. You ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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connect that with section 14 and 16 because they have the same mode when the whereabouts of the defendant is unknown or when the defendant is temporarily outside the country. What is the case of Valmonte vs CA? When you speak of extraterritorial service under section 15, it does not follow that you must always have to do it with publication, No! The first mode of extraterritorial service is service on the person of the defendant. So even if she is a residence of Washington, they could have ask the sheriff by giving him a round ticket to Washington, and serve the summons there. That is within the range but of course it is very impractical, you’ll never do that because the sheriff will not accept it and ask for another ticket for his wife. The second mode is through substituted service but who will substitute for that? Now your course is through publication. Q: But look at the “any other mode that may be authorize by the court” what is this? Can you give me an example of this? A: This is upon the discretion of the court but what are the instances of doing that? Through the Philippine Embassy, through the courier (LBC, Fedex), but it must always be by leave of court, Yan ang importante. Sometimes when you ask the court for any other mode, it will tell you “send it by registered mail”. Q: So when you are asked can there be summons by registered mail? A: Ordinarily not but it can fall under any other mode directed by the court as long as you present to the court the registry receipt. That would fall under any other mode directed by the court.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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December 06, 2006 Summons is how the court acquires jurisdiction over the person of the defendant. Q: How is summons served? 1. Service on person of the defendant Note: It is not called personal service anymore to distinguish it from sec. 6 pleadings and judgment but rather it should be called “Service in person of the defendant”. In 1964 rule we call that “personal service” but under the present rule it is now known as “service in person of the defendant”. So if you say personal service it will be marked wrong because there is no more personal service of summons, technically speaking, because the rule already calls it “service in person of the defendant”. Note: There is no service by mail of summons, the rationale thereof is that the completeness of the service would be doubtful and since summons is the way by which the court acquires jurisdiction of the person of the defendant hence jurisdiction may not be acquired, and there is always a question. 2. Substituted service Q: Is there a substituted service of pleadings? How do you distinguish substituted service of summons with substituted service of pleadings? A: Yes. Substituted service of pleadings and other processes is to the clerk of court. That substituted service is at the place of residence or at the place of business or office. Q: In the office, who should received it? A: The person who is in charge thereof. Q: In the residence? A: Any person who is a resident thereof and of sufficient age and discretion. Q: May a minor receive summons? A: It depends, because what is required is a person who is of sufficient age and discretion. The age refers to one who has discretion. So even if he is a minor but he has discretion he can still received summons. Age here does not mean age of majority. Definitely a child of 2 cannot receive it due to lack of discretion but a student of 15 years old may receive it because he has discretion. Q: Can a janitor in the office receive it? Why? No, because he is not in charge of the office, such summons must be served to a person in charge of the office. Q: Can a secretary receive it? Yes, because ordinarily secretaries are the ones in charge in the office and there are a lot of jurisprudence that tells us that receipt of secretary of summons is a valid service. 3. Publication When one whose whereabouts are unknown (sec 14) or where one is temporarily outside the country (sec 16) summons by publican may be done. But in the case of Mason vs. CA, you have to consider the kind of action in order to avail that mode of service available, so that service of summons by publication is not allowed in action strictly in personam. Eg. Action for specific performance, damages, claims etc.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: If Mr. A married to Ms. B who is a nurse in Saudi Arabia and Mr. A has filed an action for annulment of their marriage, how can summons be served? A: Summons by publication may be done on the ground that annulment of marriage is a personal action but not an action in personam. The subject matter of an annulment case is the status of a party from that being married wanting to revert back to singlehood. Status as subject matter is not strictly in personam, service of summons may be done by publication and together with furnishing a copy of the summons and complaint in the last known address which is the address in fact of the plaintiff. 4. Extraterritorial Service Note: The mode of extraterritorial service is also by way of publication. Q: There are 3 ways of extraterritorial service of summons. a. Service in person of the defendant b. Publication together with the sending of the copy of the summons and the complaint at the last known address of the defendant c. any other mode as directed by the court Note: There is no service of summons by registered mail. If the court order that it must be mailed to the Philippine embassy where the defendant may be residing… that falls under sec 16. Q: What if the court ordered that summons be served by registered mail, shall it be valid? A: Yes it is valid but not because registered mail is allowed but because it is a mode of service ordered by the court. Or if the court deems it proper to order the sheriff to send the sheriff there, but that would be already service of person of the defendant. Note: Under extraterritorial service there is no substituted service under sec 15 Q: Where is service of summons deemed completed? A: Service on person of the defendant and substituted service is completed upon actual receipt. Note that in substituted service it is not the defendant who received it, it may only by representation but actual receipt of the representatives completes the service. If the service is by publication, it is deemed completed upon the completion of the publication. Q: How is the completion of the service of summons by publication proved? A: Completion thereof may be proven by affidavits of any person involved in the publication of said summons, eg the editor, circulation manager, publisher etc. any affidavit of said person will establish proof of service of summons. Q: Who are the persons or different kind of defendants to whom summons must be served? A: It must be served to the prisoner through the warden. It must be served to a minor, incompetent and its parent or guardian. It must be served to an insane and parent or guardian. When we go to another defendant, an artificial being, a corporation, we divide it into 2, which can be a foreign corporation or domestic corporation. The rule now is quite strict to a defendant of a private domestic corporation. Cases of Baliwag transit which you have studied, of Palsak enterprises, those of Phil oil, of Medialay vs Fernando no longer apply. They were all overturned by the strict provision of the rule. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: These defendant corporations, private domestic corporation are required to be served only through specific individuals who are these persons? A: Service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. In the old rules summons may be made on the cashier and agent, but in the present rules they are not included anymore. Q: What is the Villarosa doctrine? NOTE: Remember that there is no prohibition regarding substituted service when defendants are public corporation in other words substituted service is not disallowed, meaning it can be availed of. However there is an exact jurisprudence in the matter so indirectly we can apply the doctrine laid down in Mason vs CA as well as Jose vs Boyo. Q: Where it was established that in order that the service of summons be considered valid the following must concur: A: 1. that it must be actually received; 2. that the person who received it must be duly authorized; 3. and that there must be evidence to the effect of 1 and 2; 4. but most importantly you must establish the relationship of the person who received it with the corporation. Somehow, this relaxes the doctrine under Villarosa, because the doctrine in Villarosa if we strictly implement it, all the corporations could never be sued. Q: If you sue SMC and summons would be served to the 6 as enumerated under Sec 11, will you ever find them? A: Before you reach anyone of them you have to pass through several rooms, through several personalities just to serve the summons. Note: substituted service is not prohibited although there is no clear cut jurisprudence on the subject matter, as of now there is none. Q: To whom was the summons served in the Villarosa? In Millenium vs Tan to whom was it served? NOTE: Remember that if a corporation is the plaintiff, the address of the corporation should not be the branch office, it must always be the principal office. That is why MERALCO for example, there are several offices through out the country, that if you want to send summons upon MERALCO you have to serve it in the principal office and not in any of its branches. Be sure that the defendant is properly identified branch manager so that you can served it properly. The other mode in which the court acquire jurisdiction over the person of the defendant is through VOLUNTARY APPEARANCE. Q: When is a defendant deemed to have voluntarily submitted to the jurisdiction of the court? A: When the defendant files a pleading other than a motion to dismiss. Q: Is filing a motion cannot be construed that the defendant voluntary submitted to the jurisdiction of the court? Irrespective of the ground for the motion to dismiss? A: When the defendant asks for affirmative relief from the court he is considered to voluntarily submitted to the jurisdiction of the court hence there is voluntary appearance. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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It started in the case of Medialey vs Fernando when a defendant file a motion to dismiss on the ground of lack of jurisdiction he is not considered to have submitted himself to the jurisdiction of the court but if over and above the ground of lack of jurisdiction he avails of other grounds for a motion to dismiss then he is considered to have submitted himself to the jurisdiction of the court. This jurisprudence is no longer correct because in the doctrine of the La Naval case states that if a defendant files a motion to dismiss on the ground of lack of jurisdiction and other grounds he is not considered that he has submitted himself to the jurisdiction of the court. And the latest case on the matter is that of Millenium Industrial vs Tan which says that in order for the court to acquire jurisdiction over the person of the defendant by voluntary appearance, there must be an “unequivocal submission” (and intentional submission) of himself to the jurisdiction of the court. So if it is equivocal then the court does not acquire jurisdiction. These somehow modified the old doctrine which says that when a defendant secures or ask for affirmative relief he submit himself to the jurisdiction of the court. That doctrine was modified by Millenium vs Tan. Because even if you seek affirmative relief but you do not categorically submit yourself to the jurisdiction of the court. This seems contradictory, Why? Because if you are seeking affirmative relief from the court you want to the court to give you relief but at the same time you are questioning the jurisdiction of the court to give you relief. NOTE: Under the grounds enunciated in Sec 1 Rule 16, that cannot happen but remember that under said grounds are not exclusive, there are other grounds for motion to dismiss. In fact in sect 1 the filing of motion to dismiss is before filing an answer but it does not follow that after answer you can no longer file a motion to dismiss. You can still file a motion to dismiss on other grounds. Q: Where can you find that? Rule 17 sec 3 on dismissal of action those are other grounds: A: If, for no justifiable cause, the plaintiff fails to appear on the date of presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of adjudication upon the merits, unless otherwise declared by the court. In these cases you can file a motion to dismiss even after an answer has been filed even during the hearing of the case. Q: If a defendant files a motion for extension of time to file an answer, is that voluntary appearance? A: When a defendant files a motion for extension of time to file an answer, he is deemed to have submitted himself to the jurisdiction of the court. As if he has already filed an answer, because filing an answer is voluntary appearance. Even if defendant has not recieved the summons but he filed an answer to the complaint, he submits himself already to the jurisdiction of the court under Sec 20 of rule 14. and it has been construed when the defendant instead of filing an answer files a motion for extension of time to answer he has deemed to file an answer under the doctrine that he voluntary ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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submitted himself to the jurisdiction of the court but not when he files a motion to dismiss even if his motion to dismiss is grounded on other grounds other than lack of jurisdiction. With more reason therefore, that if a defendant files a motion to dismiss on the ground of lack of jurisdiction the court does not acquire jurisdiction over the person. That is not voluntary appearance. Q: Is a motion the same as a pleading? A: Sec 1 Rule 15 a motion is an application for relief other than a pleading. Meaning a motion is different from a pleading. It is not a pleading technically speaking. Q: A and B parties to a case, upon receipt of summons by B, instead of filing an answer he files a motion to dismiss, is he deemed to have voluntarily submitted himself to the jurisdiction of the court? Q: We said that motion is not a pleading because in a motion we always ask for relief. Motions are of 2 kinds they are? A: Litigated and non-litigated motions. 1. A litigated motion is one which requires a hearing while a non-litigated motion is one which does not require a hearing. 2. Non-litigated motions does not require a hearing because they are not prejudicial to other parties. Eg motion for continuance, motion for postponement although under a circular of the SC a motion for postponement may not be litigated but you have to pay P100 for the postponement. Litigated motions require hearing because they prejudice other parties. Eg motion for reconsideration NOTE: When we talk about litigated motions it does not automatically follow that the court will set it for actual hearing like presentation of evidence, it merely means that the other party is given the opportunity to answer, respond, comment. NOTE: Sec 4, 5 and 6 are mandatory under Rule 15. every motion must be set for hearing, notice of hearing shall be served upon all parties concerned, and proof of service must be presented otherwise lack of any shall make the motion a mere scrap of paper. Note that it must also comply with sec 2 that is must be in writing because it is a litigated motion. Q: What is the proof of service in motions? A: Rule 13, it depends upon how you served it. 1. If you served it personally, in actual receipt the signature of the recipient. 2. If served by registered mail, the registry receipt. 3. If served by ordinary mail in the absence of registered mail then 10 days from the deposit to the post office. Q: What is the time frame for hearing and notice? A: Notice must be given 3 days before actual hearing and hearing must be set within 10 days from filing of the motion. Suppose you file it in dec 5, hearing shall be set not later than dec 15 except if the service is by registered mail because in registered mail chances are that it would not be received by the party in that period. So it would be a case to case basis, that is a very general rule that is subject to a lot of exceptions the 10 day period. But not the 3 day notice rule, that is not subject to exception that is differentiated from the 10 day setting rule.

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Q: What is the 3 day notice rule? A: The 3 day notice rule requires that 3 days prior to the set hearing the notice should have been received by parties. The 3 days notice rule is not about the notice but it is about the receipt of notice by the adverse party. Therefore, the 3 days notice rule requires that the notice must be received by the adverse party at least 3 days before the scheduled hearing. That would show you that the 10 day setting rule is not mandatory. Because cannot be complied with if service was done through registered mail. Note the 3 day notice rule is notice made by the movant, the court does not notify anymore. It is the movant that sets the date for hearing and the party must have received it 3 days before the scheduled hearing. Q: Oral motions are they litigated or non-litigated? A: Non-litigated Q: What is the omnibus motion rule? A: Sec 8 Rule 15 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 subject to the provisions of rule 9 sec 1. Q: Exceptions to the Omnibus Motion rule? A: 1. Court has no jurisdiction over the subject matter; 2. That there is an action pending between the same parties for the same cause; or 3. That the action is barred by a prior judgment or by the statute of limitations. Q: To whom do you address the notice of the hearing? A: To the clerk of court, however the rules says that the notice is not to the clerk of court, it must be to the adverse party who ever the counsel of the plaintiff. But jurisprudence however because it is the plaintiff who sets it in the calendar for hearing whether to approve it or not, the SC in many line of cases has decided that that kind of notification (addressed to clerk of court) is substantial compliance provided that you state copy furnished to counsel of the plaintiff by registered mail pursuant to sec 11 of rule 13 because of distance. Note: The priority of service is personal service and if by registered mail explain why you are sending it by registered mail and not personal service. Rule 16 Q: What are the grounds for a motion to dismiss? A: Rule 16 Sec 1. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: a. that the court has no jurisdiction over the person of the defending party b. that the court has no jurisdiction over the subject matter of the claim c. that venue was improperly laid d. that the plaintiff has no legal capacity to sue e. that there is another action pending between that same parties for the same cause f. that the cause of the 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

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i. that the claim on which the action is founded is unenforceable under the provisions of the statute of frauds j. that a condition precedent for filing the claim has not been complied with Q: What is the statute of frauds? Q: What are these condition precedent? A: 1. Non compliance of barangay conciliation proceedings; and 2. When the action is between relatives and no earnest effort for amicable settlement has been availed of. Under the barangay conciliation proceeding which used to under PD1508 which was later repealed but it still applies this barangay conciliation proceeding because the provisions has been granted to the local government code. It is required that before any action is filed with the court it must first pass through the barangay conciliation proceedings. Q: What are the 6 exceptions? a. an action wherein 1 of the parties is a government instrumentality b. when a public officer is involved and the action involved his public office c. where one of the parties is a corporation d. If the parties resides in different cities or municipalities except when they voluntarily submit themselves in the proper forum and the barangay in which they reside is adjacent to each other. So even if the parties reside in different cities or municipalities but they reside in a barangay who is adjacent to each other there is still a need for barangay conciliation. e. When the action avails any of the provisional remedies NOTE: So the general rule before an action be admissible in court is that there must be a certificate to file an action from the barangay attesting to the fact that it has passed through the barangay conciliation proceedings and that there was no settlement in such proceeding. The 2nd condition precedent is where an action involves member of the same family and not earnest effort for amicable settlement were availed of. Q: Who are members of the same family? How about the in-laws? A: Only family members of ascendants, descendants and collateral relatives up to the 2nd degree (brothers and sisters). In-laws are not included in family relations. Relationship by affinity are not included. Note that this is irrespective of where they reside, there must still be earnest effort for amicable settlement. NOTE: Dismissal of action on the ground of condition precedent for filing has not been complied with is without prejudice which means an action regarding the same action may be filed again. NOTE: Remember that prior to the case of Ebel vs Amin (?) barangay conciliation proceedings was jurisdictional but because of the case ……. The barangay requirement for conciliation, the absence of which is no longer jurisdictional. Which means that because it is not anymore a matter of jurisdiction, if you don’t contest it you are considered to have waived it.

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Q: Then on what is it grounded? A: It is grounded on what is called prematurity. Because of the fact that it is premature the courts now does not dismiss the case but only suspends the proceeding subject to compliance with the barangay conciliation. NOTE: There is a provision in Rule 17 regarding unlawful detainer and forcible entry, sec 12 thereof, where it specifically state that it would be premature to file an unlawful detainer or forcible entry case without complying with the condition precedent. Although it says subject to any the same, the exceptions that we’ve enumerated if that is present then there is no need for barangay conciliation. Now venue improperly laid as the 4 th ground. Venue is also not jurisdictional, it is only jurisdictional in criminal cases but in civil cases it is not jurisdictional. That is why when you look at a motion to quash under criminal procedure venue is a ground because venue is jurisdictional. Venue is also waivable, a night before the 1997 rules, if you want to invoke venue as a ground for motion to dismiss, you have to file a motion to dismiss in invoking it, now no longer even if you do not file a motion to dismiss on the ground of improper venue you are not barred from invoking improper venue as an affirmative defense in your answer. Jose vs Boyon there was no valid service of summons Jurisdiction by subject matter conferred by law specifically by the constitution, BP129, and RA7691. Q: What are the requirements of litis pendencia? What are the requirements of litis pendencia as ground for motion to dismiss? a. identity of parties b. identity of subject matter c. identity of cause of action The term same parties here identical parties. Same parties in litis pendencia and res judicata does not refer to identical parties, it only refers to identity of interest. Q: If the case is between A and B judgment rendered in favor of A over a property supposing it is an action publiciana regarding property A was the plaintiff B the defendant. 3 or 4 years after the son of A who is X filed a case against the son of B who is Y. the case now is not between A and B but between X and Y. can you ask for motion to dismiss on res judicata? A: Yes. Remember it is not identity, similarity of parties does not mean identical parties but identical subject matter, identical cause of action, and identical interest. But take note of the requirement of identity of subject matter, it is strict identity of subject matter. So that if A and B quarreled over a parcel of land located in Makati under an action publiciana case and then A and B over the same quarreled over the property located in cebu under the same cause of action which is action publiciana there is no res judicata or litis pendencia. If that is barred by prior judgment or estoppel but not under each other term which is conclusiveness of judgment because res judicata is of 2 forms, the first one is estoppel or bar by prior judgment, this is the strict kind of res judicata. The other one is conclusiveness of judgment, where do you find that? Sec 47 Rule 39 distinction by res judicata bar by prior judgment as distinguished from conclusiveness of judgment.

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If a party moved for the dismissal of the case through litis pendencia it is presumed that there is more than 1 action pending between the parties. Q: Which action should be dismissed? The 1st or the 2nd? A: It depends upon the movant. He can asked for the dismissal of either case. Any case may be prayed for the dismissal by the party. Lack of cause of action is a misnomer because as discussed before cause of action is the lack or omission. This should be lack of right of action. This should not be confused with insufficiency of cause of action. Because there are some books which says that insufficiency of cause of action is a ground for motion to dismiss, that is wrong. It is lack of cause of action which is ground for motion to dismiss. Q: Why is it so? A: Because in insufficiency of cause of action there is a cause of action but there was error only in the presentation. And because there was only error in the presentation it is subject to amendment. Remember that a motion to dismiss is not a responsive pleading and therefore amendment is still a matter of right. But if it is a lack of cause of action then definitely there is no cause of action. Q: Lack of cause of action should be distinguished from lack of legal personality to sue. A: One resides in the cause of action while the other resides with the person. A corporation example who sues without the proper board resolution that is lack of legal personality to sue. A minor who sues without the assistance of parent or guardian or guardian ad litem it is suing without legal personality to sue. In lack of legal personality it lies in the person, it is inherent with the person while the lack of cause of action is inherent in the right of the person. Q: What are the requirements of res judicata? A: 1. there must be a valid judgment must be rendered by a court of competent jurisdiction 2. valid judgment must be based on the merit of the case 3. that there is identity of parties, cause of action, and subject matter Q: What is judgment of the merits? A: Judgement based on the evidence presented to the court Q: Is it necessary that there should be a hearing? A: Judgment of the merits does not require a hearing, it merely means that all the parties were given the opportunity to defend and to assert their claim. That is why a judgment of a pleading is a judgment on the merit, a judgment by default is also a judgment on the merit. Judgment by compromise is a judgment on the merit, a summary judgment under the rules 32 33 34 are judgment on the merit even if there is no actual hearing. As long as the parties were given the opportunity to defend and to assert their claim. Q: Which of these grounds are when such are used the dismissal is always with prejudice? A: a. Res judicata; b. That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished; ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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c. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds Q: What are the statute of frauds? What are unenforceable obligation? Enumerate them. Under Rule 16 you file a motion to dismiss before an answer. You have to file an answer after receipt of summons within 15 days if regular 10 days if summary. Q: What is the effect if the motion to dismiss is denied? A: Then you must file your answer within the balance of the period. Q: Summons was received by the defendant B on dec 5, he has until dec 20 within which to file an answer. On dec 18 he filed a motion to dismiss which was later denied, when should he file his answer? A: Note the denial was dec 18, it is not receipt of such denial. Answer should be filed 5 days after the receipt of the denial. Notice of denial could be received on febraury. The rule says you have the balance of the period but not less than 5 days from notice. Q: What notice is referred to there? A: Notice of the denial of the motion to dismiss. If receipt is Feb 5 then you have till Feb 10 to file an answer. Q: If the motion to dismiss is denied, can B the movant appeal its denial? Why? A: Because it is not appealable being an interlocutory order. He must file his answer, although if there is a grave abuse of discretion he may file certiorari under rule 65. but suppose it is granted, thus favorable to B. Q: What is the remedy of A? A: You can appeal. Q: Why can you appeal an order granting but you cannot appeal an order denying? A: Because an order of granting the motion to dismiss is deemed to be a final order hence it is appealable. Q: What is appealable? A: Only final orders are appealable.

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December 7. 2006 Q: What are the remedies in case a motion to dismiss is denied? A: The remedies are: 1. Filing of a motion for reconsideration; 2. Filing a special action for certiorari under rule 65 in case of abuse of discretion amounting to lack of jurisdiction; and in the absence of such 3. File his answer to the complaint. Note appeal is not available in the denial of a motion to dismiss because it is an interlocutory order. Q: If the motion to dismiss is granted what is the remedy of the plaintiff? A: He may file an appeal. Q: Why does the rule allow the plaintiff to appeal but disallows the defendant to appeal? A: Because an order denying an appeal is merely an interlocutory order while an order of granting a motion to dismiss is already a final order or resolution. NOTE: It must be remembered that only final order or resolution may be appealed. And because of the fact that there is no other remedy under the ordinary course of law from the part of the plaintiff, that is why the rule gives him the right to appeal. NOTE: Remember that the enumeration stated under sec 1 of rule 16 is EXCLUSIVE. There are no other grounds of a motion to dismiss under Rule 16. In other words there are other grounds for dismissal of actions under other rules but not under rule 16 because as it is so provided this motion to dismiss under rule 16 can only be availed of BEFORE answer is filed. After that you can no longer avail unless for a very, very, very meritorious reason. Just remember that you can no longer file a motion to dismiss under sec 1 rule 16 AFTER you have filed an answer. Q: How about the omnibus motion rule where in the exemption is jurisdiction? A: It is a ground available at any time, even during certiorari or on appeal… that is exceptional, very extraordinary. Although there is an exception to the exception… unless you are estopped. Guerero v CA (?) Q: May a court not resolve a motion to dismiss and order the same to be resolved together with the case? A: No, because sec 3 rule 16 the court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. Q: What is the rationale of the rule of such non deferment of resolution of a motion to dismiss? A: To prevent delay, if the court has no jurisdiction then it would only be waste of time for the court to continue. Now if the court has no jurisdiction why would the court rule on something it has no authority? It is not even residual jurisdiction. It is a waste of time, money and effort for the court in deferring the resolution of the motion on the ground of lack of jurisdiction. After all, if he renders any judgment without jurisdiction then the judgment is totally and absolutely null and void.

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Rule 17 DISMISSAL OF ACTIONS Sections 1 and 2 are dismissal of actions by the plaintiff. Q: Why would the plaintiff who was in the first place cause the action would cause the dismissal of the action? A: It should be emphasized that in rule 17 there is no grounds stated, in all others they all speak of grounds. The rule does not state any grounds for the plaintiff to ask the dismissal of the case because it would always be good for the entire society as a whole if there are less cases. And there are one to a million grounds that a plaintiff may use to dismiss a case. He may even state that he was wrong in filing the case. Q: If A files an action against B in RTC Makati, claiming P250k and before summons has been serve to him, he realized that the trial court has no jurisdiction over the subject matter, so he filed a notice (sec 1) of the dismissal of action. And it was dismissed and he again filed the case for a sum of money against the defendant this time for P500k before the RTC because some obligations has matured. And in the end before summons has been served he found out that the defendant B, is the best friend of his former girlfriend, who asked him to drop the case. He could not refuse because several years ago, she also does not refuse….. and again A filed a notice for the dismissal of the case. Then later on he found out that B was courting his former girlfriend. Can he again filed a 3rd case against B? A: He can still file, the 2 dismissal rule will not apply if any dismissal is due to lack of jurisdiction over the subject matter. The 1 st notice of dismissal is due to lack of jurisdiction over the subject matter that therefore will deprive the adverse party to question the 2 dismissal rule. The 2 dismissal rule will apply only to causes other than jurisdictional. Q: When A files a notice of dismissal, when will the dismissal take effect? A: It will take effect upon issuance of the order of the court confirming the dismissal of the case. NOTE: That order of the court is mandatory without which the dismissal does not take effect. Unlike the rules prior to the 1997 rules, there was no need for the order of confirmation but under the present rules, the order of confirmation is necessary to effect the notice of dismissal. Notwithstanding the fact that there was no one who was prejudiced here. Don’t be confused here in what we studied about amendments, it is a matter of right which is about also the same period before answer has been served. So even if answer is filed if it has not been served still the notice is applicable. Section 2 is no longer by notice but by motion by the plaintiff. But this time answer is already been filed and served to the plaintiff. Q: So that if the answer contained a counter claim what is the effect if the motion to dismiss filed by the plaintiff is granted? A: The motion to dismiss merely affects the claim of the plaintiff and not the counter claim of the defendant. Q: What kind of counter claim is that? A: The rules apply whether compulsory or permissive counter claim

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Q: What is the nature of a compulsory counterclaim as distinguished to that of a permissive counterclaim? A: A compulsory counterclaim is one which arises from the same transaction or series of transaction as that of the claim. While a permissive counterclaim is one which does not arises from the same transaction or series of transaction as that of the claim Q: So can there be a compulsory counterclaim without a claim? A: No, a compulsory counterclaim only exists because a claim exists. Q: So if you remove the claim, on what legal footing will the compulsory counterclaim stand? So why do you say that in spite of the dismissal of the complaint, a compulsory counterclaim still exist and continues? A: Because although the plaintiff has caused for the dismissal of the original claim he has already laid the ground for the counterclaim. If the defendant filed a counterclaim and plaintiff decides to withdraw his claim he has already laid the ground for the counterclaim of the defendant. But the legal rule here under jurisprudence, because it has already caused prejudiced to the defendant that is why compulsory counterclaim continues. A file a case claiming 1M, B the defendant says “I don’t owe you in fact you owe me!” B filed counterclaim of 3M, in the claim atty fees 100k in the counterclaim, atty fees 300K. Suppose it is true, it has already caused prejudice to the defendant, the defendant already paid his lawyer. He can never go back to his lawyer and say “return to me the 300K I paid you” the lawyer would say “I will return you my wife but not my 300K” NOTE: It should be emphasized that prejudice has been caused here, that is why Sec 2 does not distinguished whether the counterclaim is compulsory or permissive. Whether the counterclaim is compulsory or permissive, the dismissal by a motion of the plaintiff is limited only to the complaint. Q: So what happens to the counterclaim? A: The defendant has the option whether the counterclaim be prosecuted in a separate action or that it be resolve in the same action by giving notice to the court within 15 days by a motion manifesting his preference to have his counterclaim resolved in the same action. Sec. 3 Dismissal by the Defendant or by the Court. These are the only instances where the dismissal can be done motu proprio. In all cases of the dismissal we have studied it must be by motion or notice but here it can be done motu proprio. Q: What are these instances? A: 1. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint; or 2. Failure to prosecute his action for an unreasonable length of time; or 3. Failure to comply with the Rules or any order of the court 4. If an action is governed by summary procedure the court can dismiss an action motu proprio, even without any motion. Q: If there is a motion filed? A: Good, it would be much better, it does not prohibit a motion to give effect.

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Q: How unreasonable is unreasonable length of time? A: The unreasonable length of time depends upon the discretion of the court, there is no hard and fast rule. It depends upon the circumstance surrounding the case. Do not be mislead by the word evidence in chief, evidence in chief is not only on the part of the plaintiff, there is also evidence in chief on the part of the defendant. NOTE: Sec 3 also applies as counterclaim, crossclaim or any other complaint even intervention. There are 3 grounds there, but let me add another under the rules on summary procedure, if an action is governed by summary procedure the court can dismiss an action motu proprio, even without any motion. Rule 18 PRE TRIAL--AMENDED PRETRIAL The term preliminary conference is not limited now in actions governed by summary procedure because in the amended Rule 18, they are now using the term preliminary conference. Now there are preliminary conferences in both actions governed by summary procedure and by the rules governed by regular procedure. Q: Is there pretrial in criminal proceedings? A: Yes, Rule 118. Both in civil and criminal cases, pretrial is mandatory. Unlike before it was mandatory only in civil cases but not criminal cases. Under the present rule pretrial is mandatory in both civil and criminal cases. Section 1 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 pretrial. Hence it is no longer the duty of the court but the duty of the plaintiff after the last pleading has been filed which is a reply, if reply is necessary. If no reply is file the plaintiff now can file a manifestation and motion to set the case for pretrial copy furnished of course. This motion is not litigated because there is no prejudice to the other party, like motion of postponement but it is still necessary to furnish a copy of your pleading/motion to the adverse party. Q: What is the purpose of pretrial? A: Under section 2: 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 necessary proof e. the limitation of number of witnesses f. the advisability of a preliminary reference of issues to the commissioner g. the propriety of rendering judgment on the pleadings, or summary judgments, or of dismissing the action should a valid ground therefore be found to exist h. the advisability or necessity of suspending the proceeding i. such other matters as may aid in the prompt disposition of the action

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Q: What is the objective of pretrial? A: The purpose is to expedite the proceeding. If the plaintiff does not file a motion for pretrial it is incumbent upon the court to set it for pretrial. So the plaintiff is now given the preference here as to when to set it. But now you don’t immediately hold the pretrial but rather you have what you call mediation and conciliation proceeding. This is the main amendment to the pretrial rule. You already went to the barangay, then to the court, the court will still refer you to a pseudo barangay, I call it pseudo barangay because the conciliators and mediators are not lawyers, some of them are retired court personnel. But it is not necessary that they have legal background because the objective here is to help the parties meet and come out with a settlement. Still the objective is to expedite the proceedings and to avoid trial in court and in effect it would declog the dockets of the court. Q: If there is no settlement what will happen? A: They will return to the court, they have the maximum of 30 days to arrived at an amicable settlement. This 30 day period is extendable to another 30 days and if there is still no settlement the conciliator will refer the case back to court. Once you go to court you proceed to preliminary conference, before the branch clerk of court. And what happens in sec 2 of rule 18 that is now the procedure in the branch clerk of court… marking of evidence, simplification of issues, stipulations and admission, naming of witnesses, agree on judicial affidavit etc… but before the clerk of court do that, he would still try to arrived at a settlement. Q: What is the meaning of judicial affidavit bago yan la pa sa rules? A: Judicial affidavit is that the parties do agree to have testimonies through judicial affidavit then submission of affidavits will suffice to constitute the direct testimonies of witnesses subject to cross examination. NOTE: Remember that those which have not been marked in the preliminary conference as a general rule shall not be admitted and those which has not been named as witnesses for the parties could not testify. After these the branch clerk of court will set a date for pretrial proper. During pretrial proper, court would again try if settlement can be made. If no settlement, records in the preliminary conference shall be the basis of the pretrial order. The pretrial order is mandatory that it can be a ground of new trial on the basis of irregularity, if the court proceeded without a pretrial order. In the pretrial order it would state the issues, the facts admitted, limiting the issues… kaya pagdating ng trial maiksing maiksi na. but despite of these umaabot pa rin ng 10 years ang mga trial. Q: Under rule 18 the parties are mandated to be present, what are the effects if a party is not present? A: If the plaintiff is not present it is ground for the dismissal of the case, this is not one of the grounds in rule 16 neither among the grounds under rule 17. In rule 18 non appearance of the plaintiff when so duly notified, in fact he was the one who set it for pretrial, then he does not appear and he does not have any representative who has SPA to settle a settlement then the defendant may move for the dismissal of the case. If the defendant is absent, the plaintiff may move to be allowed to present evidence ex parte and on the basis of which the court may render judgment. NOTE: In the old rule it is a ground for the declaration of a party as in default. Ngayon, as we were discussing rule 9, WALA NG AS IN DEFAULT ORDER.

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People v Perez Admissions in the pretrial are binding between the parties Saguid doctrine Lack of counsel is not a persuasive ground to set aside the order of as in default. It was also ruled not to belittle the pretrial because it may make or break your case. Rule 19 INTERVENTION Q: What is the rule in intervention? Q: What is the basis of intervention? A: 1. Interest over the subject matter of the litigation; 2. Interest in the plaintiffs cause; 3. Interest of the defendants cause or lack of interest in both causes of that of the plaintiff and the defendant. Q: How will you illustrate these three (3) situation? A filed a case against B for recovery of parcel of land, accion publiciana. X is intervenor, what may be the 1 st situation on the part of X who intervened? A: X is the possession of said land or he may be a tenant or he may be a mortgagee or he may be an attaching creditor. Having interest on the subject matter. Q: What about the 2nd ground? A: X is mortgagor then he has an interest. Q: 3rd instance? A: He could have been adversely affected by a distribution or disposition of the property. X is the true owner of property then the adjudication of the property to A or to B would adversely affect his right. Q: If the intervenor is interested in the success of the plaintiff, what should he file? A: Complaint in intervention Q: If the interest of the intervenor is in the success of the defendant, what should he file? A: Answer in intervention Q: If he’s interest is adverse to both plaintiff and defendant what should he file? A: Complaint in intervention NOTE: Remember that in intervention, it can only be filed by leave of court. And under the rules when you file a motion for leave of court you already attached your complaint in intervention or answer in intervention. But you cannot immediately file your compliant in intervention or answer in intervention you have 1 st to file a motion for leave to admit complaint/answer in intervention and in your motion attached already the intervention. Then that would be the basis on granting your motion. Q: If the motion is granted by the court what happens now? Who will be the plaintiff and defendants?

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A: Depends upon the interest of the intervenor, if he is interested in the cause of plaintiff, he shall be a co plaintiff and defendant is still defendant. If he is interested in the cause of defendant, co defendant. But if his interest is adverse to both he is the plaintiff and both of them are defendant. NOTE: It must be remembered that the intervenor is an outside party. Q: How can the court acquire jurisdiction over the person of the intervenor? A: By that very motion for leave you already submit yourself in the jurisdiction of the court. Take note of the payment of docket fees. Kailangan ito kasi you are an outsider here. You have to pay the docket fee especially if you have a claim depending to the amount of your claim. Q: So the intervenor now files his intervention? When can he file this intervention? A: Any time before rendition of judgment. Note: It does not say before entry of judgment, but before RENDITION of judgment. Yao vs Perello Q: Requirements of an intervention A: a. Legal interest (sec 1 rule 19); b. Whether the adjudication of the rights of the parties may be delayed or prejudiced; c. That the intervenors right cannot be protected in a different proceeding; Note: In the delay aspect here even if it can be proceeded upon or against a separate proceeding but it would only delay the resolution of the issue then it is incumbent upon the court to admit the intervention. This is what distinguishes from the doctrine laid down in the Pinlac case. You can only file an intervention in a case if it is still within the period allowed by the court but over and above, you have to establish your legal interest in the intervention, the three (3) requisites. And it would not cause delay. Q: What would have happened if Judge Perello allowed the intervention of Yao? A: It would delay the adjudication of the case. And the fact that the right invoke by Yao is not a clear right, not distinct and questionable. In an intervention your right must be clear, distinct and beyond questionable. And it can be threshed out in another proceeding, Yao may file another action. It will not prejudice him if he files another action. Pinlac vs CA Q: Service of summons through publication allowed on the following circumstances: A: 1. When the whereabout of the defendant is unknown; 2. When the defendant is temporarily outside the Philippines and 3. In extraterritorial service. Here publication was allowed because there were several parties and by leave of court service by publication was made because some of the parties whose whereabouts are unknown. Defective publication because published not in a newspaper of general publication.

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SC allowed intervention of the RP when it is against the rule because filed when the case was already in the CA. SC allowed the intervention because if not allowed it will cause delay and if allowed it will not delay.

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January 04, 2007 So you must have heard in Criminal Procedure about the Speedy Trial Act, which only slowed down the administration of justice because it tended to expedite procedure that it only slowed down. Rule 30 speaks of trial. In the practice of law, trial is the easiest part. Q: There are 3 parts in the practice of law: A: 1. Preparation of the pleadings 2. Trial 3. Execution The easiest part is trial because you can always prepare. The next is pleading, because you have to research. The more difficult part is execution which is Rule 39. And even academically speaking, it’s quite difficult (Rule 39). In trial, after all the pleadings have already been accounted for, including the pre-trial order, the clerk of court now schedules trial. There are instances in the Rules where there is no more trial. But that doesn't mean that parties are denied their day in court. There are judgments that do not pass through trial and still these judgments may be considered to be subject to res judicata. In summary judgments, there is no trial. In judgment of the pleadings, there is actually no trial. And the very good example are actions governed by the rules on summary procedure in civil cases. In fact or in effect, trial is already prohibited. Because after submission of the position papers, the rule provides that judgment be rendered within 30 days from submission of the case for judgment. So trial is necessary because it provides the parties opportunities to present their side but it does not necessarily follows that without it there is denial of due process. Now, trial may either last that short or that long. It all depends upon the nature of the case. But as long as possible, you will note that the Rules already tried to expedite the proceedings by trying to cut short the trial period. One of the new laws is the Speedy Trial Act but it is not fully or truly implemented. Q: You will note that in Rule 30, that under the present rules there are only 2 grounds for postponement. What are the 2 grounds for postponement of trial? A: 1. Postponement of trial on the ground of absence of evidence. 2. Postponement of trial on the ground of illness. Remember, these two are the only grounds for postponement. Q: What kind of evidence? A: Documentary evidence, testimonial evidence, and real or object evidence. Q: When Rule 30 speaks of absence of evidence, what kind of evidence does it refer to? A: Refers to any kind of evidence, whether it is testimonial, documentary or real or object evidence.

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Q: How would you distinguish that therefore from absence of a party or counsel? Is that not equivalent to absence of testimonial evidence, if the party is not available to testify? A: Absence of party or counsel is only limited to illness. So that if a party or counsel is abroad, that is the absence of evidence. What I'm trying to drive at here is that the rule is very stringent regarding now postponement, limiting the grounds. In fact these limitations are the only limitations. Q: If you avail of illness as a ground, what is required? A: 1. A motion stating the ground relied upon must be filed; and 2. The motion must be supported by an affidavit or sworn certification showing: a. 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. Q: Whose affidavit? A: By anybody. In fact now, the practice in court is to have a medical certificate duly notarized. Although the court cannot absolutely require such certificate because there are conditions which do not require medical attention. Example: LBM of lawyers. But if you say pneumonia, then it is time that you submit a medical certificate. Q: How long should the postponement be? A: One month or three months in all. But that is not really followed, it is only in paper. Although, academically you have to know these things. At trial, the rules also provide for the order of trial. That order of trial must be distinguished from order of presentation of evidence under Rule 132. Q: What is the order of trial? (Section 5) A: 1. Plaintiffs shall adduce evidence in support of his complaint 2. Defendants shall adduce evidence in support of his defense, counterclaim, crossclaim and 3rd party complaint; 3. 3rd party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and 4th party complaint; 4. 4th party, and so forth, if any, shall adduce evidence of the material facts pleaded by them. Q: Why does the rule do not provide for an intervenor? A: Because the intervenor would present evidence after all the parties have presented their evidence. Because the intervention can be done anytime before rendition of judgment. So he cannot be provided for in the Rules because you do not know when the intervention will come. The intervention may be after the presentation of the evidence by the prosecution, it can be in the middle or after the prosecution has rested. As long as the intervention has not get into the picture, the court cannot determine as to when to present evidence.

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Q: Distinguish that from the order of the presentation of witness (Rule 132). A: 1. Direct examination. 2. Cross examination. 3. Re-direct examination. 4. Re-cross examination. Q: The court should receive evidence from the party. May the court or the judge delegate reception of evidence? A: Yes. Only in 2 instances. 1. In defaults and 2. ex parte presentation which is ordered by the court through a motion. Q: To whom? A: To the clerk of court who must be a member of the bar, which means a lawyer. Q: How should the trial be conducted? What is the guideline in the conduct of the trial? Is there something to be followed? A: The trial must be conducted as to what is stated in the pre-trial order. Pre-trial order is mandatory so that if the court does not issue a pre-trial order, that can be an irregularity which is a ground for new trial under criminal procedure and not civil procedure. Because in civil procedure, new trial is limited to FAME, newly discovered evidence. Rule 31 - Consolidation and severance Q: What is consolidation? A: Consolidation involves several actions having a common question of law or fact which may be jointly tried. Q: A files a case for specific performance against B before the RTC Manila. Can there be consolidation? A: None. Because there can only be consolidation if there are more than one case. Q: Can there be severance in the same example as above? A: Yes. Q: What are the 3 forms of consolidating cases? A: 1. Recasting 2. Consolidation proper 3. Combination of both recasting and consolidation proper Q: Give an example of a possible consolidation. A: Example given, A files a case for collection of sum of money against B before the RTC Manila. A filed another case for specific performance arising from a different performance before the RTC Makati. Q: How are you going to consolidate those cases as cited above? Paano ba ang magconsolidate? Do you file an action for consolidation, motion or petition? Paano ba ginagawa? A: Hindi ba ang caption ng kaso ay Republic of the Philippines, RTC Branch 35 Makati City. A plaintiff vs. B defendant. Civil case # so and so. Pag ni-recast mo yun, kasi 2 different kinds of action. When you grant consolidation, isa na lang ang caption. A vs. B Civil case # so and so. Then A plaintiff vs. B defendant Civil case # so and so. Isa na lang. Ni-recast mo. Parehong dramatis personae. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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It doesn't necessarily follow that you can only consolidate if A is the same plaintiff vs B is the same defendant. It can be A vs B or A vs X because the rule says common question of facts or law. The word "same parties" there is not identical parties. But how do you really consolidate in the example you have given. Collection for sum of money in RTC Manila and Specific Performance in RTC Makati. You can file in either court a MOTION FOR CONSOLIDATION on the basis of Section 1 of Rule 31. It is discretionary upon the court and it is not a matter of right. If the court finds that it will facilitate the trial, if it will amount to saving time, money and effort, there are the same evidence to be presented the court can grant it. Otherwise if it is prejudicial to the case, the court can deny it. Remember, eto ok na ito kasi parehong NCR ang cases. Even if one case is filed in Manila and another is filed in Baguio, still you can consolidate it. One case filed in Legaspi City for vehicular accident and another filed between the same plaintiffs and different defendants in Quezon City, consolidation is allowed. Q: But if the case is filed before the MTC and another case filed in RTC, consolidation is NOT POSSIBLE. Why? A: Because the issue is jurisdictional. Jurisdiction is conferred by law and not by the agreement of the parties. But if it is just a matter of venue, consolidation is allowed because venue can be subjected to the agreement of the parties. So that is recasting. NOTE: In consolidation, if the Makati court has granted the consolidation, the Manila court will bring the records to the Makati. Different pleadings but the same court which tries the same. Unlike recasting, nilalagay mo na lang sa same pleading. Complicated cases, consolidation is not allowed because it can be prejudicial. 1. There can be no consolidation if the action is cognizable by different courts of different jurisdictions neither can there be severance. 2. There can be no consolidation if there is only one action. But if there are more than one action, consolidation is possible. Provided you can establish common question of fact or law. Remember what we have studied in joinder of causes of action, it is permissive. Very common case of consolidation is ejectment or unlawful detainer under Rule 70. Q: Here is A, A files a case against X, Y, and Z who are the tenants in 3 different apartment units. The contract between A and X is different from A and Y and A and Z. Can you join causes of action? A: No, because these are different contracts. So you file different cases against them. But once you have filed them, you ask for consolidation. But chances are it cannot be recasted but can only a simple consolidation. Original cognizable by the MTC. Wherever you file it, it will be consolidated with the lowest number which was the first case you filed. Q: What is severance? What are the requirements for severance? If the case is A vs. B and there can be no consolidation, can there be severance? A: Yes, there can be a severance. Usual concept by lawyers is that the opposite of consolidation is severance. But it is not. In severance, there is only one action. In consolidation, there must be at least 2 cases.

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Q: How will severance apply in the example given? A: If there is a counterclaim filed by B against A and the court finds that it would be prejudicial to join the issues in one trial, then the court may allow a severance of action. NOTE: There can be NO consolidation between civil and criminal actions. There is even no consolidation in criminal cases. Q: You recall when we were studying joinder of causes of action, A files a case against B for sum of money in the amount of P100,000. Another cause of action in the same complaint for P200,000 and another for P300,000. Where should we file it? A: In the RTC because of the totality rule. So there is only one complaint but there are 3 causes of action kasi the obligations incurred by B are different. One was January, the other is March and the other is April. Now, A can ask for severance. Meaning to say, he asks for separate trials as far as the obligation of B with regard to P100,000, with regard to P200,000, and with regard to P300,000. That is an example of severance. Or it can happen that B files a 3rd party complaint. Isang kaso pa lang ito, hindi pa nagiging 2. Now, the 3rd party defendant may ask for severance. Or can there be cross-claim. Suppose if A files a case against B and C, then B files a cross-claim against C then C files a counter cross-claim against B. C may ask for severance of his counter cross-claim. Remember that in severance, isa lang ang kaso. In consolidation, there must at least be two. Rule 36 (separate judgments) contemplates this kind of severance. Rule 32 - TRIAL BY COMMISSIONER Q: How do you distinguish this from trial with assessor? A: Trial with assessor is not included in the present rules. The distinction is that trial with assessor is still trial by the judge with the help of the assessors while in trial by commissioner it is trial, not by the judge, but by the commissioners. Q: What are the instances of trial by commissioner? (Section 2) A: 1. Examination of a long account; 2. Taking of an account is necessary; 3. Question of fact, other than upon the pleading arises; or 4. Carrying a judgment or order into effect. NOTE: A commissioner refers to either a referee, auditor or anybody appointed by the court. The best illustration of trial by commissioner is found in Rule 67 (Expropriation) and Rule 69 (Partition) because the commissioner their is mandated by the court. Q: How would you distinguish the power of a commissioner from that of a deposition officer? A: A deposition officer cannot rule on the admissibility of the evidence while a commissioner may be allowed to rule on the admissibility of the evidence submitted. A commissioner has the judicial power, practically that of a judge. It can even issue subpoenas. It can rule on the objections. But not a deposition officer. A commissioner, before taking his job, must take an oath. That oath contains the powers entrusted to him.

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NOTE: I would like you to give emphasis to one section there regarding the 10-day period notice. Because ordinarily the period in motion is 3 days, but there in the ORDER OF REFERENCE it is 10 days. Q: Distinguish Order of Reference from Order of Confirmation. A: The order of reference is the order granted by the court appointing a commissioner to try a case while the order of confirmation which we studied under Rule 17 is the order confirming the notice of dismissal. There is an order of confirmation under Rule 68 (Foreclosure of Real Estate Mortgage). Just to illustrate, trial by commissioner, it is even mandatory under Rule 67 (Expropriation). You will note that there are 2 stages in expropriation. First stage is to determine whether the land is or may be subjected to expropriation, will be used for the common good. Second stage is the determination of just compensation. You will note from Rule 67 that the determination of just compensation is not left to the court but rather the court should appoint 3 commissioners. And these 3 commissioners will now investigate, hear, conduct hearing and arrive at a report. Take note that under Rule 32, the commissioner there also will have to submit a report. Q: And that report, is that binding upon the court? A: No. That is not binding upon the court. Q: What are the options left to the court? Go to Rule 67, there are at least 4 options. A: 1. The court may accept it. 2. The court may reject it. 3. The court may accept it in part and reject it in part. 4. The court may remand it for further proceedings to the commissioner. Ganun din dito sa Rule 32 regarding sa commissioner. So the report of the commissioner is not binding on the court. And in fact all the parties must be furnished with the report. And there is a period of time the parties can question that. But even if the parties do not question that, the court may totally reject the report. Although a commissioner is more powerful than a deposition officer. Rule 33 - DEMURRER TO EVIDENCE (VERY IMPORTANT SUBJECT MATTER IN THE BAR) Q: What is the meaning to demur? A: To impugn. To question. NOTE: Demurrer to evidence applies to both civil and criminal cases. Q: What are the similarities and what are the differences in the application of demurrer to evidence in civil and criminal cases? A: Similarities: 1. In both civil and criminal cases, you file a demurrer to evidence after the plaintiff has rested its case or after the prosecution, in criminal cases, has rested its case. 2. In both civil and criminal cases, they have the same grounds, which is the insufficiency of evidence. 3. In both civil and criminal cases, it is available only to the defendant or the accused. Differences: 1. In civil case, the quantum of evidence needed is preponderance of evidence while in criminal case, it must be proof beyond reasonable doubt. a. Q: So is it harder to file demurrer to evidence in criminal case? ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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2. 3. 4. 5.

No. It is easier because the proof needed is proof beyond reasonable doubt. Kasi mataas ang quantum of evidence needed sa criminal cases, so it is easier. b. Which is more weighty or ano'ng mas mabigat na ebidensya, e mas madaling and demurrer. In civil cases, there is no need a motion for leave of court while in criminal cases, you can file a demurrer either with leave or without leave of court. In civil cases, if the motion is granted it amounts to dismissal of the case while in criminal cases, if the motion is granted it amounts to acquittal of the accused. Because it amounts to acquittal, in criminal cases there is no appeal while in civil cases there is appeal. If the ground of the motion, in civil cases, is appealed and then it is reversed, the defendant loses the right to present evidence while in criminal case if demurrer to evidence was filed with leave of court and was denied the accused may present his evidence and if the demurrer to evidence was filed without leave of court and was denied the accused can no longer present his evidence and submits the case for decision based on he prosecution's evidence.

Q: Which court? A: In criminal cases, the trial court while in civil cases, the appellate court. NOTE: Remember it is always available to the defendant or the accused. And in civil cases, after the presentation of plaintiff's evidence and then the defendant files a demurrer to evidence and it is granted the plaintiff will not take that sitting down. Definitely the plaintiff will appeal, if the appellate court affirms it well and good but if it is reversed then the defendant loses its right to present evidence. Radiowealth v. Del Rosario doctrine: When the Court of Appeals reverses the trial court and denies the demurrer to evidence, it is the duty of the CA to proceed with the trial and render judgment. The CA cannot remand the case to the trial court for further proceedings. Also, Radiowealth loses the right to present evidence. You do not even have to file a writ of execution with the appellate court except in execution pending appeal under Section 2 of Rule 39. But even if you file it with the appellate court, the appellate court will have to order the trial court to issue the writ of execution. NOTE: Do not confuse this with execution because the appellate court cannot execute judgments but always the trial court. Radiowealth is now the ruling with regard to reversal of the appellate court of the demurrer to evidence. NOTE: Remember that demurrer now is under Section 23 of Rule 119 of the new criminal procedure. It is wrong to state in criminal cases you can only file demurrer with leave of court because Section 23 of Rule 119 specifically provide that while the accused may file demurrer to evidence with or without leave of court. What you have to look here into is if the accused files a demurrer to evidence without leave of court he files it at his own risk. Why? Because in case of denial he loses his right to present evidence. However, Radiowealth is a civil case. In case of reversal or an order of dismissal, in a demurrer to evidence, the appellate court must now render judgment and does not have to remand it because there is no more evidence to receive. The defendant having lost his right to present evidence.

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Demurrer in criminal cases is illustrated in the case of Bernardo vs. Court of Appeals. And it is here in this case that the distinction between criminal and civil cases has been established. Bernardo v. CA doctrine: Atty. Miravite had a heated argument with the judge. The lawyer asked to file for a demurrer to evidence, in open court. The judge denied the demurrer. Then the lawyer again asked for a demurrer to evidence but was again denied. The doctrine here in this case is that when you file a motion for a demurrer to evidence without leave of court you risk of waiving your right to present evidence. You better be careful in filing a motion for a demurrer to evidence especially in civil cases. In criminal cases, as long as you file a motion for leave and remember what did we study on Rule 15 on motions that when you file a motion for leave you have to already attach a copy of your demurrer. So that under the present practice, when your motion for leave to file demurrer to evidence is denied, do not insist because your demurrer will just be denied. Rule 34 - JUDGMENT ON THE PLEADINGS Q: When may the court render a judgment on the pleadings? A: When an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading. We have studied one of the cases the Allied case. We have studied it under modes of discovery a request for admission. The defendant files an answer. Therefore the one who asks for judgment on the pleadings should be the plaintiff. Q: May a defendant ever ask a judgment on the pleadings? A: Yes. With regard to permissive counterclaim. Why? Because a permissive counterclaim requires an answer while a compulsory counterclaim does not require an answer because the allegations therein are deemed controverted. Q: How would you distinguish summary judgments (Rule 35) from judgment on the pleadings (Rule 34)? A: 1. In judgment on the pleadings, it simply means that the judgment is based solely on the pleadings. And what are these pleadings, it is the complaint, the answer and sometimes the reply. Those are the only bases. That's why a judgment on the pleadings is not availed of in the Allied case but rather summary judgment. In summary judgments, the judgment is based not only on the pleadings but on affidavits, depositions and admissions. 2. While in Rule 34, it is totally bereft of an issue while in Rule 35 there is an issue, only that the issue is not genuine. There are issues but the issues are irrelevant and immaterial. In summary judgments, apparently, although an expanded judgment on the pleadings by even saying that there can be judgment on the pleading to be moved even by the defendant as far as permissive counterclaim is concerned. But take note that specifically in Rule 35, it speaks of a claim by the plaintiff as well as in Section 2 principally by the defendant.

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In the Allied case which illustrates a summary judgment, there is a request for admission but the request was never answered. There was an order from the court to answer the request. It was never complied with. Therefore a summary judgment may be asked. Rule 36 - JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF A judgment may be final but not executory. But once it is executory it must necessarily be final. Q: So what is a final judgment as distinguished from an executory judgment? A: A judgment may be final but not executory but once a judgment is executory is must necessarily be final. Because a final judgment is one where the trial court is left with nothing else to do. The court has completed its task. It has nothing else to do on the part of the court. It has disposed of the case. Judgment has become final. But it is not yet executory because the period to appeal or to reconsider or to retry the case has not expired yet. Only after the expiration of the period for new trial, reconsideration or appeal will the judgment become final and executory. NOTE: Graphically, if you write a circle, that circle represents an executory judgment. Within that circle is another smaller circle representing a final judgment. Two circles, one inside the other. if you have the bigger circle, necessarily you have the smaller circle. But you can have the smaller circle without the bigger circle. Is that a sufficient analogy? Want a stronger analogy? If the smaller circle represents sex, the bigger circle represents love, once there is love necessarily there must be sex but there can be sex without love. In Rule 36, the final order referred to in here is executory not just final. Q: What are the requirements for a judgment? A: 1. It must be in writing (walang judgment na oral); 2. The judgment must be personally written by the judge; and 3. The judgment must be entered. Because a judgment which is not entered has only become final but not executory. 4. That every judgment the facts and the law on which its disposition was anchored and based. It is not just a procedural requirement, but this is even a constitutional requirement. Section 2, second sentence, Rule 36 is IMPORTANT which is "THE DATE OF FINALITY OF THE JUDGMENT OR FINAL ORDER SHALL BE DEEMED TO BE THE DATE OF ITS ENTRY". Q: Explain this sentence. A: It means that when the judgment has become executory, the date where the judgment has become executory shall be the date of its entry. Q: What do you mean by entry of judgment? A: An entry of judgment is the recording of the judgment by the clerk of court in the book of entries of judgment. Bawat korte may libro ng entries of judgment.

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If the judgment was rendered by the RTC Manila on January 5, 2005, let us assume that all the parties to that case received a copy of the judgment on January 10, so the parties have until January 25 (15 days) to file Motion for New Trial, Motion for Reconsideration, or Appeal. After January 25, the judgment has become executory. Q: Suppose the clerk of court entered or recorded the judgment in March 15, 2007, when is the entry of judgment? A: The entry of judgment is January 25. Ito ang ibig sabihin ng second sentence of section 2 of Rule 36. Hindi kabaliktaran. So the judgment was entered January 25 and not March 15. Q: What is the rationale of the law? A: Otherwise if it is the actual recording which is the entry of judgment then the finality of the judgment and its executory character will depend upon the will of the clerk of court. The entry, when the period to appeal has expired. Q: Why is the entry of judgment is important? A: It is very important because there are procedural actions which is counted from its entry of judgment. Q: Why execution? A: Judgment can be executed only by motion within a period of 5 years from entry of judgment. Petition to relief can only be done within a period of 6 months from entry of judgment. Kaya importante yun. Kaya hindi yung actual recording although the meaning of entry is the actual recording but the entry is reckoned when the judgment has become final and executory. When the period for reconsideration, or appeal has not been availed of and has expired. Q: What are the different kinds of judgment? A: 1. Judgment upon compromise; 2. Judgment upon confession; 3. Judgment upon the merits; 4. Clarificatory judgment; 5. Judgment non pro tunc (now for then); 6. Judgment sin perjuicio; 7. Judgment by defaulty (Sec. 3, Rule 9); 8. Judgment on the pleadings (Rule 34); 9. Summary judgment (Rule 35); 10. Several judgment (Sec. 4, Rule 36); 11. Separate judgment (Sec. 5, Rule 36); 12. Special judgment (Sec. 11, Rule 39); 13. Judgment for specific acts (Sec. 10, Rule 39); 14. Judgment on demurrer to evidence (Rule 33); 15. Conditional judgment; and 16. Final judgment

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January 10, 2007 RULE 37 NEW TRIAL OR MOTION FOR RECONSIDERATION. This is the remedy of the judgment obligor after the judgment has become final but not executory. Q: Is it mandatory? A: No. It is not mandatory except in certiorari as special civil action. NOTE: A motion for reconsideration is not mandatory. The remedy is available but you may or may not avail of it unless the rule asks that you must first file a motion for reconsideration. Ordinarily, if the case is pending before the appellate court, a motion for reconsideration is advisable. Q: The time frame, when can one file a motion for reconsideration or a motion for new trial? A: In cases of notice of appeal, within 15 days or in cases of record on appeal, within 30 days. When you go to special civil action, you will note that there are certain appeals which must be taken by record on appeal because there are several stages in an action. In fact the best example for a record on appeal is special proceedings in settlement of estates. Q: But ordinarily it is 15 days. What is the point of reference of the 15 days? A: From receipt or notice of judgment. You file an appeal or motion for reconsideration or motion for new trial. We are dealing only with motion for new trial or reconsideration. Under the present rules, the grounds have been delineated. They have been separated unlike before prior to the 1997 rules they have the same grounds. But now if you file a motion for new trial, you have to file it on a valid ground. If you file a motion for reconsideration, you have to file it on a valid ground. NOTE: If you file a motion for new trial on the ground of either under a motion for reconsideration, your motion will be considered as a motion for reconsideration. On the other hand, if you file a motion for reconsideration on any of the grounds under new trial, your motion will be treated as a motion for new trial. So your ground is crucial because they have been separated already. But both speak of different grounds. Q: What are the grounds for motion for reconsideration? A: 1. Excessive award of damages; 2. Evidence is insufficient to justify the decision or final order; or 3. Decision or final order is contrary to law. Q: What are the grounds for a motion for new trial? A: 1. 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 2. 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. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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In answering the grounds for a motion for new trial, you have to complete the grounds as stated under Section 1 Rule 37. Kulang daw pag fraud, mistake, accident, or excusable negligence or newly-discovered evidence lang. You have to qualify and that qualification is the complete sentence under the two paragraphs of Section 1 of Rule 37. Q: When is negligence excusable? A: It is excusable: First, as to subject matter. If the subject matter is not that serious, it can be excused. But watch out for that kind of explanation of excusable negligence because you must have read certain jurisprudence saying that procedural rules should not be a deterrent to the proper administration of justice. So that it should give way to the substantive rights of individuals. That is a very sweeping statement because there are certain procedural rules that must be complied with. So there is no hard and fast rule as to when negligence is excusable. It must be considered on a case to case basis. Q: What mistake is referred here? A: Mistake of fact and not mistake of law. Because in mistake of law it amounts to ignorance of the law. So it must be mistake of fact or misappreciation of facts. In criminal law you have studied aberratio ictus. Because in civil law, it says ignorance of the law excuses no one. Q: How about accident? A: Unforeseen, unexpected, or sudden occurrences. How about death, is it accident? Death is not an accident. Death is the most certain uncertainty. So it can never be accidental. Sometimes it becomes accidental because you don't know when it will strike. How about missing the bus, train or airplane? No. Now let's go to a very important ground which is fraud. Fraud here is not any kind of fraud but rather an extrinsic fraud to be differentiated from intrinsic fraud. Q: When is there extrinsic and when is there intrinsic fraud? A: Extrinsic fraud connotes any fraudulent scheme executed by a prevailing party outside of the trial against the losing party who because of such fraud is prevented from presenting his side of the case while an intrinsic fraud refers to acts of a party during the trial which does not affect the presentation of the case. Q: Give an example. A: Extrinsic fraud: If A (witness) was paid not to appear before the court for trial. Intrinsic fraud: When the signature of the party was forged. Remember: we are talking here of new trial. Meaning to say there has been a trial because you are asking for another trial. If you are asking for another trial because of fraud, the fraud must have happened outside the proceeding. That is what is meant by extrinsic, outside the proceeding. Q: But if it is intrinsic, it is within the proceeding. Why is it not a ground for new trial? A: Because you should have questioned it right there and then but you did not. So you waive your right. For example, during the proceeding the other party presents a forged document or a fictitious document and it was admitted. Because right there and then you should have questioned it but because you didn't question it the evidence has been admitted, you have considered to have waived your right. That is the meaning of intrinsic fraud.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: The other ground is newly-discovered evidence, but how do you qualify that newlydiscovered evidence? A: Use the wordings of the rule. Paragraph b, Section 1 of Rule 37 states that "Newlydiscovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result." There are two cases, which I have assigned, illustrating the specific requirements for newly-discovered evidence. One is a civil case and the other is a criminal case. Mendezona v. Ozamis doctrine (Civil Case): Requisites of newly-discovered evidence: 1. The evidence had been discovered after trial; 2. The evidence could not have been discovered and produced during trial even with the exercise of reasonable diligence: and 3. The evidence is material and not merely corroborative, cumulative or impeaching and is of such weight that if admitted, would probably alter the result. NOTE: All 3 requisites must characterize the evidence sought to be introduced at the new trial. People v. Li Ka Kim doctrine (Criminal case): Requisites of newly-discovered evidence: 1. The evidence is discovered after trial; 2. Such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and 3. The evidence is material, not merely cumulative, corroborative, or impeaching, and of such weight that, if admitted, would likely change the judgment. The ground of newly-discovered evidence for a motion for new trial is not only available in civil cases but also to criminal cases under Rule 121. Q: What kind of evidence does the rule refer to? A: Any kind of evidence may be used. Either testimonial, documentary or real evidence may be used. Q: But there is a requirement, if it is testimonial evidence, when you file a motion what is required? A: When you file for the motion for new trial, you have to attach the affidavits. Q: How about documentary? A: You have to attach a certified copy of the document that was newly-discovered. Q: How about real evidence? A: Describe the real evidence. If it is capable of manual delivery, bring it in court. So any kind of evidence may be newly-discovered. But in applying for that newlydiscovered evidence, you have to comply with the affidavit. NOTE: Also, in the ground of FAME, you also have to comply with an affidavit requirement of affidavit of merits. You have to state in your affidavit what constituted fraud, accident, mistake or excusable negligence. The court may either deny or grant your motion. Q: If it is denied, what is the remedy? A: You appeal from the judgment. Because this is an ad interim remedy.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: If it is granted, what is the effect of that? A: Previous judgment is vacated. But this trial de novo must not be understood as trial de novo prior to the 1997 rules because trial de novo back then was complete setting aside of the decision or judgment or final order. Under the present rules it is relative, you set aside the dispositive portion of the judgment but the evidence which have been admitted will remain and there is no need for retaking them. This is different from motion for reconsideration. Because if your motion for reconsideration was denied, your remedy was appeal also or even new trial as the case may be if you want to because they have different grounds already. Q: But if it was granted, does it set aside the judgment? A: No. It only corrects the judgment. Because look at the grounds for motion for reconsideration, it is more of an amendment. There is no trial de novo here. Q: Can you file a second motion for reconsideration? A: No. Except the Supreme Court, where you can file a second, third or even fourth motion for reconsideration. Q: Can you file a second motion for new trial? A: Yes. Only grounded on newly-discovered evidence. You cannot file a second motion for new trial on FAME because they were already present or forms part within the the proceeding not outside the proceeding. So if you are given a problem, always remember that the second motion for new trial is solely grounded on newly-discovered evidence. Because when you file a motion for new trial on the ground of newlydiscovered evidence for the first time, FAME was already existent. But if you file a motion for new trial on the ground of FAME, for the first time and it was denied, it is possible that you will still file a second motion for new trial on the ground of newlydicovered evidence. Q: But not in a motion for reconsideration. And that is precisely the rationale why there is no second motion for reconsideration. Why? A: Because all the grounds are there already. So why don't you include it in your first motion for reconsideration. If you find out that the judgment is contrary to law, that the award of damages is excessive, that the evidence is insufficient, aren't they all present when you file your first motion for reconsideration (answer was yes), then why didn't you include it? So there is no second motion for reconsideration. Question from a student: When your motion for new trial was denied your remedy is appeal. When you want to question the denial of the motion for new trial, you can file a special civil action of certiorari. Now, if your certiorari was given due course, ordinarily the SC will remand the case for further proceedings to the trial court. If your appeal was also given in due course, the appellate court will take cognizance of it. So technically there are two cases pending before two different courts but with the same issues, subject matter and same parties. How are we going to consolidate or resolve this issue? Atty. Brondial did not squarely answer this question. Though he recognized that for academic reasons, this is allowed because they have different grounds. But practically speaking, it is a waste of time because if you file a petition for certiorari under Rule 65, the SC, ordinarily, does not resolve such issue within 15 days. So you run the risk of having the period prescribed. So why bother filing for a special civil action of certiorari when it does not interrupt the running of the reglementary period for appeal from the denial of the motion for new trial. It is how these cases can be consolidated that problem arises. Anong kaso ang pipiliin mo? RULE 38 ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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PETITION FOR RELIEF JUDGMENTS, ORDERS OR OTHER PROCEEDINGS Q: There are two forms of petition for relief: A: 1. Petition for relief from judgment (Section 1) and 2. Petition for relief from denial of an appeal (Section 2). Q: What are the grounds? A: Fraud, accident, mistake, or excusable negligence. The same grounds as the motion for new trial. And because we have the same grounds, the limitation is "had you the opportunity to file a motion for new trial and you did not file a motion for new trial due to your own fault or negligence, you lose your right even of filing a petition for relief." These are not alternative remedies. Remove from your mind that once you lose in your motion for new trial or reconsideration and you did not appeal you can file a petition for relief because it is wrong. They have the same grounds. Q: What is important here is the time frame. When? A: 1. Within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside; AND 2. Not more than 6 months after such judgment or final order was entered, or such proceeding was taken. Q: We studied under Rule 36 regarding entry of judgment. When is judgment entered? A: The entry of judgment is the date of finality. It is not the actual recording of the judgment in the book of entries. Judgment becomes final when the period for appeal, new trial or reconsideration has already expired and one did not avail it, the judgment becomes final and executory. And when the judgment has become final and executory it is the date of entry. And from that date of entry, you count 6 months within which to file your petition for relief from judgment. Q: A was a judgment obligor (in other words he lost in the case). No motion for new trial, reconsideration or appeal was filed. Judgment was entered on January 10. If you have 6 months therefrom, you have until July 10. But A came to know of the judgment only on July 5. The rule says he has 60 days from knowledge of the judgment within which to file petition for relief from judgment. Can A still file, in this instance, a petition for relief from judgment? A: Yes, A can still file a petition for relief from judgment. A has only 5 days to file such petition. Because both periods (60 days and 6 months) must be complied with. Q: If the entry of judgment was January 10 and A came to know of it in January 20, until when can he file a petition for relief from judgment? A: March 20 or March 22 (if leap year). In other words, 60 days lang. Hindi na bibilangin from January 10 up to July 10 because you came to know of the judgment on January 20. So both periods must be complied with. The rationale of the law is don't sleep on your rights. You came to know of it already, you should make a move. In other words, you must know it within the 6 month period. Yan and ibig sabihin ng batas.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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NOTE: If you come to know of it, in our example, by August, you can no longer file because the entry of judgment was made on January 10. The defense for lack of knowledge is unavailing because the 6 month period must be complied with. One student wanted to clarify something: The 60 day and 6 month period were relaxed by the SC in the case of Argana v. Republic (November 19, 2004). That's new, Atty. Brondial will check on that. Q: The other one is petition for relief from denial of appeal. How is this? A: The grounds (FAME) are the same. But prayer here is that the appeal be given due course. Q: What happens if the petition for relief was granted (either Sec 1 or Sec 2)? A: In effect as if the court grants a new trial under Section 1. Under Section 2, Rule 4042 apply already. Since the appeal has been granted, you have to elevate the records to the appellate court. NOTE: Please take note that when a party files a petition for relief from judgment, the judgment is already executory. In other words, by filing a petition for relief from judgment, it will not stop the executory character of the judgment. So the judgment can be executed because the judgment has become final and executory. Q: So what is your remedy? A: Together with your petition for relief, you avail of the provisional remedy of the preliminary injunction or TRO. Otherwise, if you don't do that, the petition for relief will become useless because it will not change the executory character of the judgment. Remember here that the petitioner for relief from judgment, chances are would be the judgment obligor. And because you were not able to get an injunctive relief the judgment is executed. Q: What happens now if the judgment is executed and then the petition for relief was granted without preliminary injunction? A: Let me give a concrete example. Mr. A files an action for the recovery of sum of money against B for P1M. Judgment was rendered in favor A. B did not file a motion for new trial, reconsideration or appeal without his fault. So his remedy is petition for relief from judgment. But the judgment in favor of A was already executory. B's injunctive relief was denied. So the judgment was executed. Thereafter B was granted the injunctive relief. Now what will happen? B can file for claim for damages or restitution. That's why petition for relief is not often granted. Mesina v. Meer doctrine: "Any court" only means the MTC and RTC. It does not extend to CA or SC. The CA and SC are governed by separate rules. The SC said that Rule 38 is only available before the MTC and RTC. The SC cited the historical background for this. Because prior to the 1997 rules, if the judgment is rendered by an inferior court, the petition for relief is filed with the RTC. If the decision is rendered by the RTC, it is filed with the RTC. Under the 1997 rules, petition for relief under Rule 38, you file it where the case was decided. So if it was decided with the MTC, you file it with the MTC. If it was decided with the RTC, you file it with the RTC. NOTE: But take note, it is not a motion but a petition. In other words, it is a separate ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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action. With that qualification that while it is a separate action where you can file it anywhere, the limitation is you file it in the court where the judgment was rendered. Suppose, if it's the MTC, you file it with the MTC and if it's the RTC, you file it with the RTC. Unlike before, prior to the 1997 Rules, if it is decided by the MTC, you file the petition for relief with the RTC. If the decision emanates from the RTC, you file it with the RTC. Ngayon, pinantay na lang yan. And it was because of Rule 5 on uniform procedure before the court. Mercury Drug v. CA doctrine: Q: When do you count the 60-day period? From notice. Notice to whom? Yun ang doctrine dito. Notice to counsel is notice to client. Thus, when there was already a lapse of period within which to file the petition for relief, the client is already barred from filing such petition. Q: Incidentally, do you understand this notice? Di ba, sabi sa petition for relief, you file it within 60 days when you learn of the judgment. Hindi ba when you learn of the judgment, your remedy is appeal? When do you learn the judgment, when you receive a copy of the judgment. So, does it follow that when you receive the copy of the judgment, you don't appeal na lang but file a petition for relief? A: No. you cannot do that. Notice referred to there, to the party who will file a petition for relief is notice other than the regular notice coming from the court. In other words, the petitioner came to know of it other than the regular way. Because an ordinary party or any party for that matter, once you receive a copy of the judgment, the natural and usual reaction would be to appeal. RULE 39 EXECUTION, SATISFACTION AND EFFECTS OF JUDGMENT This is execution of judgment and final order. I told you before that there are 3 stages in the process of law: preparation of pleadings, trial and execution. And the most difficult is Rule 39 as well as the most important in practice. Because no matte how good you are in the 1st two stages but you cannot execute, you only win by paper. NOTE: A judgment which can be executed is only a judgment which is not just final but also executory. Q: There are 2 kinds of execution: 1. As a matter of right and 2. Leave of court, otherwise known as discretionary, or execution pending appeal. Section 1 which is execution as a matter of right. Q: When do you execute it? That is the most important element there. You can execute it only within a period of 5 years from entry of judgment. You can execute that judgment only within a period of 5 years. Thereafter you can no longer execute the judgment, you have to first revive the judgment. That's why some books say that there are two ways to execute the judgment, either by motion or by action. You find that in Section 6 of Rule 39. So if the 5-year period is counted from entry of judgment, the time of entry of judgment is very very important. That's why we discussed that in Section 2, second sentence of Rule 36. Pina-underline ko sa inyo. Because this is where you count the judgment to be executed by motion. So when the judgment has become final and executory, the judgment obligee (winner in the case) will have to file a motion with the trial court (where the main action was filed). In matters of execution, no appellate court can issue a writ of ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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execution. Whether that appellate court is the RTC, the CA or the SC, they cannot issue a writ of execution. It must always go back to the court of origin. So there are 2 instances therefore. If the case is filed with the MTC and judgment was rendered by the MTC and the judgment was not appealed and therefore became final and executory, you file your motion for the issuance of the writ of execution with the MTC. If the judgment was appealed to the RTC. You cannot execute it, as a matter of right because it is not yet executory. And as long as the appellate court is concerned, the judgment is not yet final because the appellate court has something else to do yet. Now suppose, the appellate court affirm in toto the decision of the MTC and there is no more appeal to the CA, the judgment becomes final and executory. Q: Which judgment? A: The judgment affirming the decision of the MTC. Q: But what is the judgment that you are going to execute? What you are going to execute is the judgment of the MTC. So where will you file the motion? A: You file it with the MTC and not with the RTC. The old rule says that in order for the trial court to rule on your motion for the issuance of your writ of execution, it must have the copies of the records of the case because as you will find out in Rules 40-42, when the case is appealed, one of the requirements for appeal is to elevate the records to the appellate court. And when the appellate court affirms and it becomes final and executory, ibabalik yung records sa baba. Now, you don't have to wait anymore for the records from the appellate court. You can file a motion even if the records are still with the appellate court in the trial court. But the requirement is you get a certified true copy of the judgment of the appellate court together with the entry of judgment. And then you file it with the trial court. So motion for the issuance of the writ of execution must strictly comply with Rule 15 on motion, otherwise it must be in writing, it must be set for hearing, and it must be served on the adverse party (Sec 4 of Rule 15). Q: Rationale? A: To give the judgment obligor the chance to contest it. Q: And what is the basis for contesting? A: Because remember, it is not discretionary on the part of the court to issue or not to issue a writ of execution. The issuance of the writ of execution is ministerial on the part of the trial court. So that if the trial court does not issue the writ of execution, the trial court may be subjected to mandamus. But under the present rule, you don't have to recourse to mandamus anymore because you file your motion with the trial court simply attaching a certified copy of the decision of the appellate court together with the entry of judgment. Set it for hearing. And as a matter of course, the trial court will issue the writ of execution.

January 11, 2007 ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Argana v Republic of the Philippines (443 SCRA 184) November 19, 2004 So it is wrong to say. That statement is wrong in the book because of that decision. I went over it. I've read it. You must have read it too. And I admonish you to read that case so you would know. FACTS: This is the case against the heirs of the former mayor of Muntinlupa Argana and company. Marami ito. 8 individuals and 2 corporations are the defendants here in the original case. This is a case filed before the Sandiganbayan. And the nature of the action was ill-gotten wealth of former Mayor Argana of Muntinlupa City. Now in the course of the hearing, definitely, because this is an ill-gotten wealth case under EO 14-A in relation to the creation of the PCGG. This particular case, while it was in progress before the Sandiganbayan, several pleadings were filed. And you know before the Sandiganbayan, the complainant or the plaintiff was the PCGG. The PCGG was later on represented by the OSG. In the course of the hearing, after several pleadings, motions and postponements filed, they came out with a compromise agreement. There was a compromise agreement between the Arganas and the PCGG. This compromise agreement principally states that 75% of the properties of the Arganas will be ceded in favor of the government and only 25% will remain with the Arganas. Take note, percentage ang pinaguusapan. 75% of the properties subject matter of the case of ill-gotten wealth will be given back to the government and only 25% will remain with the Arganas.. The PCGG agreed and the compromise agreement was executed and even approved by President Fidel Ramos. And so, on the basis of the compromise agreement submitted to the Sandiganbayan, the Sandiganbayan rendered a judgment on compromise. So there was a judgment on compromise. Later on, the OSG, upon review of the compromise agreement, even after the judgment of compromise has already been rendered, found out that it was entered fraudulently. In other words, the compromise agreement was very very unfavorable to the government. Why? Because the 75% property ceded to the government was worth only about Php 4 million. The 25% remaining with the Arganas was worth Php 3.++ BILLION. In other words, the 75% was only .15% worth of the entire property while the 25% was worth 99.85%. So this was very unconscionable. It was entered into in connivance with the PCGG Commissioners and the heirs of Argana. So upon the review of the OSG, the government filed a motion to rescind together with a prayer of annulment of the judgment on compromise. Remember that a judgment on compromise is immediately executory, it is not appealable. But because this was entered in fraud of the government, what the OSG did was to file a motion to rescind the compromise agreement with prayer of cancellation or nullification on the judgment on compromise. Hindi pwedeng i-appeal, certiorari has already lapsed because in certiorari you have only 60 days. Matagal na ito. The Sandiganbayan, looking into it, did not dismiss the case but treated the motion to rescind as a petition for relief from judgment. Yun ang catch. The motion to rescind was treated as a petition for relief from judgment because there was a prayer for annulment of the judgment on compromise. The respondent this time (Arganas) says, if this is a petition for relief, it was filed out of time, because under Section 3 of Rule 38, it must be filed within 60 days from knowledge of the judgment and 6 months from entry of judgment. Matagal na ito e. It is already outside of the reglementary period. When the Sandiganbayan went over the case, they discovered that it was filed 67 days from knowledge but within the 6 month period from entry of judgment or from judgment. Because a judgment on compromise, being immediately executory, has no entry of judgment or the entry of judgment becomes immaterial. So that the 60 day period being a judgment on compromise and the 6 month period cannot be counted from knowledge or entry but it must be counted (both 60 days and 6 month period) from rendition of judgment. And counting from the rendition judgment, being the time that the parties came to know of it, 67 days have lapsed outside of the 60 day period. SUPREME COURT DECISION: The SC, on certiorari, said (and i would emphasize this statement) both periods provided for in Sec 3 of Rule 38 must be STRICTLY complied with but nonetheless, it does not mean that there is no exception to the rule. So the rule remains that it must be complied with STRICTLY. The 60 day period and the 6 month period from knowledge and from entry of judgment. This Argana case is an exception. And in fact the rule in Section 3 of Rule 38 will not strictly apply. Why? Because first, there is no point from which knowledge should be counted from or from which entry should be counted from because it is a judgment on compromise. And secondly, it was not a petition for relief per se but it was a motion to rescind taken as a petition for relief.

Q: Why did the SC make this as an exception? A: First, because the government is involved. For it will be disadvantageous to the government. Second, Fraud was the reason. Against the government. Therefore, petition denied. Panalo ang gobyerno. What do you expect?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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NOTE: The Supreme Court can always relax cases. Because the SC is not governed by the Rules. Because one time the SC can decide one way while on another time, the SC can decide on another way. Like for example the execution pending appeal we are dealing here. Before, Old Age is not a good reason for execution pending appeal, but later on, i think it is 403 SCRA in the case of Far East Bank and Trust Co. vs. Toh, Sr., the SC said that old age is a good reason for execution pending appeal. See? Bakit ganoon? You try to read the case and look also who was the lawyer for Toh. The lawyer for Toh was the very famous Mike Arroyo. Those doctrinal cases never change. May side changes but these are not ratio decidendi decisions but an obiter dictum. Settled? So we maintain na tama pa din ang lecture ko. Villamor case 441 SCRA. Read it. So let's proceed with execution. Q: I was telling you yesterday that there are two kinds of execution of a judgment. A: GENERAL RULE is that a judgment which can be executed must be a judgment not just final but executory. In other words, the right to appeal as well as the right for reconsideration or new trial, the period has already lapsed. So under Section 1, it is execution as a matter of right. Under Section 2, it is execution by leave of court, otherwise known as discretionary execution or execution pending appeal. So when you read those 3 terms, pare-pareho lang yun. Q: Under Section 1, when is it a matter of right? A: When the judgment has become executory, it is ministerial on the part of the trial court to issue the writ of execution. Ministerial to issue the writ of execution. Q: If it is ministerial, why is it required on the part of the judgment obligee or the judgment creditor to file a motion? A: In order to afford the judgment obligor due process. Because he may still file an objection. Q: And what is the possible ground for objection? A: The finality of the judgment. Because as I was saying, as far as the court is concerned the judgment may become already executory but as far as the judgment obligor the judgment is not executory yet because it was not received by him or he did not know about the judgment having been received by other party or persons other than himself. NOTE: Another thing we should remember here is that only the trial court that can issue the writ of execution. Whether that case has already reached the SC, the SC cannot and should not issue the writ of execution. So if it started with the MTC, and it reached the SC, when it comes to execution, it is still the MTC which should execute. Q: If it is the MTC or if it is the trial court, as the case may be, which should execute? What is necessary? A: Simply a motion for the issuance of the writ of the execution complying with Rule 15 particularly Sections 4-6. By then it is ministerial on the part of the judge or the court to issue the writ of execution. Q: But suppose the case started with the MTC but upon finality of the judgment, the ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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judgment was appealed to the RTC. And then the RTC affirms the judgment, and the judgment obligor never went up to the CA, therefore, the judgment has become final and executory. Which judgment has become final and executory? A: Technically, it is the judgment affirming the decision of the MTC. Q: But what are we suppose to execute? A: Not the judgment of the RTC but the judgment of the MTC. Q: How do you go about it? A: You still file your motion for execution with the MTC. Never with the RTC. As a matter of procedure, the MTC, which should now issue the writ of execution, should await the records from the RTC. But under the present rules there is no need for that. Because by simply getting a copy of the entry of judgment (which judgment? the judgment affirming the judgment of the MTC) as well as the judgment of the RTC, affirming the judgment of the MTC, attaching the same to your motion for execution filed in the MTC on that basis, the MTC can already issue the writ of execution. Q: Suppose the MTC does not issue the writ of execution, what is now your remedy? A: Ordinarily, the remedy is mandamus. Because the issuance of the writ of execution is only a ministerial act. But under the present rules, you don't have to file mandamus. It is very easy now, you simply file a motion with the RTC (which is the appellate court here) praying that an order be issued directing the MTC to issue the writ of execution. No need for mandamus. Although mandamus is a remedy, but it is a very lengthy procedure as a remedy. Section 2 speaks of Execution pending Appeal. So in the same example that I gave, the MTC renders judgment, under Rule 40, that judgment is appealable within a period of 15 days with the RTC. Within that period, the judgment obligee wants to execute it pending appeal he may file a motion for execution pending appeal with the MTC. Q: Suppose the appellant has already filed his notice of appeal, since the notice of appeal under Rule 40 must be filed with the Trial Court, when should the motion for execution pending appeal be filed? A: Notwithstanding the filing of the notice of appeal, the motion for the issuance of the writ of execution must still be filed with the trial court, in this instance the MTC, as long as the records of the case have not been transmitted to the RTC. This is what you call exercise of residual jurisdiction. Q: Suppose the records of the case, pursuant to the notice of appeal, have already been transmitted to the RTC, where will you file? A: Since the notice of appeal renders loss of jurisdiction over the subject matter as far as the MTC is concerned, you file your motion for execution pending appeal with the RTC. Should the RTC resolve your motion in your favor, nevertheless the RTC cannot issue the writ of execution. It can only issue an order directing the MTC to issue the writ of execution pending appeal. Q: How do you stay the execution of a judgment? A: You stay that by filing a supersedeas bond. This is one meaning of a supersedeas bond found in the Rules. Don't confuse that with the supersedeas bond found in Rule 70 (unlawful detainer and forcible entry). Because the supersedeas bond referred to in Rule 70 is equivalent to the amount of unpaid rentals. The supersedeas bond here is in the amount subject to the discretion of the court. We should answer for any damages that the judgment or the appellant might incur. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: What are the instance when a judgment cannot be stayed? Why? A: Because of their very nature. You find that in Section 4. Injunction, Receivership, Accounting, Support or such other judgments declared to be immediately executory unless otherwise ordered by the trial court. To illustrate: If you get an injunctive relief, it is a matter of urgency. So if you stay the implementation of a writ of preliminary injunction then you defeat the very purpose for an injunctive relief. That is why it cannot be stayed. The same thing with support. Humihingi ng support kasi mamamatay na sa gutom. But if you can still stay that, you defeat the very purpose of order of support. NOTE: The writ of execution is not addressed to any party but rather it is addressed to the sheriff, that is why a party, for not complying with the writ of execution, cannot be held liable for contempt. Only the sheriff may be liable for contempt because the writ of execution is addressed to the sheriff. And the sheriff must implement the writ of execution immediately. If he does not implement the writ of execution, he may be held liable for contempt of court. Q: But suppose the sheriff found out that the judgment obligee is dead? A: Therefore the sheriff may cause, still, the implementation of the writ of execution through the executor, administrator or successor-in-interest of the judgment obligee. Q: But in the case the judgment obligor is dead? A: The writ of execution can only be implemented against the executor or administrator of the judgment obligor if the action is for recovery of real or personal property or for enforcement of a lien thereon. Why is this so? Because of Section 1 of Rule 86 and because of Section 20 of Rule 3 which we have studied. Money claims, specially if it is based on contracts, Section 20 - Contractual Money Claims of Rule 3. Upon the death of the defendant, the case shall not be dismissed but it should continue up to entry of judgment. And no writ of execution can issue because it will be charged as a money claim against the estate under Rule 86. NOTE: That is why it's said there if a writ of execution is supposed to be implemented against a deceased judgment obligor, take note, that it can be implemented against the executor or administrator only, if the action is recovery of real or personal property or enforcement of a lien thereon. Otherwise, it should be filed as a claim against the estate. The sheriff, who is implementing the writ, is bound to make a return. And the return must be made copy furnished the judgment obligee within a period of 30 days. And every 30 days thereafter, if there is no full satisfaction yet of the judgment. Section 6 is important. Q: These are the 2 ways by which a judgment may be executed or a writ of execution may be implemented. A: The first way is by motion. And the second is by action. The writ can only be executed by motion, meaning to say you get a writ of execution which you seek to implement by motion from the date of the entry of judgment and 5 years therefrom. So the time limit is only 5 years. Thereafter, you can no longer secure a writ by motion, but if you want to implement the judgment you have to file an action. And the action that you have to file will be an action to revive the judgment. Let me illustrate: ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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If on January 1, 2000, judgment was entered, the judgment obligee can only execute the judgment by applying for the issuance of the writ of execution through a motion which he can file up to December 31, 2005 only. So 5 years ha, from entry of judgment. So he can file it either in 2001, 2002, 2003, 2004 or 2005 because the judgment was entered on January 1, 2000. If it is already January 5, 2006, he can no longer ask for the issuance of the writ of execution because the writ will no longer issue through motion. Q: So what can he do? A: He files an action to revive judgment. He files an action. Q: Where should he file it? A: It depends. It does not necessarily mean that it is the trial court because this action is a different action. You are seeking for a different judgment, the judgment that you seek to revive, once revived, is a separate and distinct judgment from the original judgment. So if a decision for money in the amount of the Php 500,000 was rendered by the RTC and entered January 1, 2000, and you were able to secure a writ of execution on December 2001 you can only implement that writ of execution up to December 31, 2005. If by January 5, 2006, you were able to collect only Php 400,000 you cannot use anymore the writ of execution issued in 2001 to have it implemented in 2006. Q: So what do you have to do? A: Because there is still a deficiency judgment, you file an action to revive judgment. Q: Where will you file it? A: Not with the RTC, because your claim is only Php 100,000. NOTE: Let me warn you again that there are 2 books in remedial law that say otherwise. They say that the judgment is the same and therefore it must be filed in the same court. I DISAGREE! You better qualify what kind of judgment it is. If it is a judgment for money, your claim is already within the jurisdiction of a different court. But if it is a judgment which is not capable of pecuniary estimation, no choice, but you have to file it with the RTC. But not in the same court. I'll not mention to you the book. Kayo ng bahalang maghanap dun. I've talked already to the author of that book and he said he'll revise it. So if by January 2006, the judgment obligee files an action to revive judgment. And it was revived, the revived judgment is separate and distinct from the original judgment. This judgment must again be entered and the entry of the revived judgment must be the basis for execution of the judgment either by motion or by action. Suppose you file your action to revive judgment in January 20, 2006, and it was revived by the Court in February 5, 2006, and the entry of judgment was entered 15 days after. The 5 year period will start from February 20, 2006 and you will have until February 19, 2011 within which you can get a writ of execution by motion. If by February 19, 2011 you have not gotten taking writ of execution by motion, you can again avail file an action to revive judgment. The judgment that you seek to revive is the revived judgment. This is a second revival of judgment. This is possible. There is no limit as to the number of revival of judgment unless the prescription of 10 years sets in. Q: And where do you count the 10 year period? ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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A: From entry, not of the original judgment but of the judgment that you seek to implement. So you can only revive the original judgment which was entered January 1, 2000 up until December 31, 2010. The judgment which you have revived on January 2006 and entered in February 20, 2006, you still have until 2011 within which to revive it by motion. But you can revive it either by motion or by action only up to February 2016 because you count the prescription from the entry of the revived judgment. Tuloy-tuloy yan basta hindi lang mag-expire yung 10-year period. But the 10-year period must never be counted from the original one because as i said a revived judgment is separate and distinct from the original judgment. Going back to the old doctrine of Luzon, kasi binago yun, you can only revive once. But latest jurisprudence has gone back to the original ruling that you can revive as many times as possible provided it does not prescribe. Section 9. The writ of execution is addressed to the sheriff. Then the sheriff must implement the writ according to the tenor of the writ. That's why it is required now that when you file a motion for a writ of execution, you should state what you want and the writ of execution must also state what is to be executed. Walang generalities dito. You cannot say, for example, "I move for the execution of the judgment entered January 10, 2005." No, you have to state specifically that you are praying for the issuance of the writ of execution in the amount of Php 100,000 as principal obligation, 20,000 as interest thereto, 10,000 as attorney's fees, 5,000 as cost of suit. In other words, it must be specific, because the writ of execution will also follow your motion. And this is addressed to the sheriff. Aside from the sums of money, if it is for sum of money halimbawa, stated in the writ of execution, the sheriff is also entitled to his legal fees. Bago na ngayon, dati Php 4 per 100,000 or 1M. Q: So, let's say it's a judgment for money. The sheriff now, armed with a writ of execution, goes to judgment obligor B. The judgment obligee is A. A was able to get a writ of execution addressed to the Sheriff X. So X now would go to B. The sheriff implements the writ of execution which the judgment amounts to Php 1M. Then B goes in his room and gets his Php 1M cash and pays directly to the sheriff. Is that a valid satisfaction of judgment? A: That is condition. Because payment to the sheriff may not be a valid satisfaction of judgment. It is only payment to judgment of obligee. But in the course of the execution, if the judgment obligee is not there, once the sheriff receives the money in satisfaction of the judgment, the rule provides that the sheriff should turn the money over to the clerk of court or deposit it with a reputable bank within a period of 24 hours. So when you get to become lawyers, never execute a judgment in the afternoon. Because the bank closes at 3pm and the clerk of court closes, supposedly at 5pm but at 2pm the clerk of court is not there anymore. So the sheriff might keep it. That is not satisfaction of judgment. In the case of PAL, it was handed out to the sheriff and the sheriff did not remit it to the judgment obligee. PAL contended that there was execution already but the judgment obligee denied. The sheriff is nowhere to be found. The SC said there is no satisfaction of judgment. It must be given to the judgment obligee. So if you're the judgment obligor, be careful. If you're the judgment obligee, accompany the sheriff. This is if it is in cash. Q: If obligor, B, pays a check in the name of the sheriff Juan Dela Cruz, is it valid? ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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A: No, it is invalid. It must be paid to the order of the judgment obligee. Q: Suppose it is payable to cash? A: No it is not valid, because it is not handed to the judgment obligee. If it is handed to the sheriff, the sheriff will encash it, for sure. The sheriffs now are like the tax collectors in the Bible, most of them. Rule 39 is the Bible of the Sheriffs. They know it. Most lawyers usually rely on the sheriffs. The sheriffs abuse their power. So we must be educated by studying it. JOKE TIME by Atty. Brondial I. Atty. Brondial reiterates and educates his students to become GOOD and CHRISTIAN Lawyers. Kaya maraming nagsasabi na walang lawyers sa langit. Man: (Pagdating dun) St. Peter, nandiyan ba si Atty. Dela Cruz? St. Peter: Wala dito, baka nasa impiyerno. Man: (Punta ng impiyerno) Satan, nandiyan ba si Atty. Dela Cruz? Satan: Wala rin dito e, baka nasa purgatoryo. Itanong mo kay St. Gabriel. Man: (Punta ng purgatoryo) St. Gabriel, nandiyan ba si Atty. Dela Cruz? St. Gabriel: Wala! Man: (Balik kay St. Peter) St. Peter wala siya sa impiyerno, wala siya sa purgatoryo, wala rin dito, nasan kaya yun? St. Peter: Wala? Ano bang trabaho nun? Man: Lawyer ho. St. Peter: E yun naman pala. Walang kaluluwa yun. (Section C laughed!) Astig! Galing ng delivery ni Brondial! II. St. Peter: Hoy Satanas, nasira yung bakod natin dito. Marami kang engineer diyan, ipaayos mo naman ito. Satanas: Ayoko nga! St. Peter: Sige ayaw mo ha. Ihahabla kita. Satanas: Saan ka naman kukuha ng abogado? E andito lahat sila. (Again, Section C laughed) Astig! So when you try to execute a judgment, then accompany your client whether he is a judgment creditor or debtor. Up to the end. Walang iwanan. There is another way of satisfaction of judgment, and we call this GARNISHMENT. Garnishment is much better that Levy. Q: What is granishment? A: It is taking legal custody of money, ordinarily from a bank or financial institution. Under the Rules, paragraph c of Section 9, in garnishment, you simply furnish a copy of the writ of execution and the entry of judgment together with a copy of the judgment to the branch manager of the bank or a financial institution. And when he receives that, under the rule, he is bound, within a period of 5 days, to inform the sheriff or the court whether or not the judgment debtor has money in the bank. And thereafter, 10 days after, he has to remit the money to the judgment obligee. Mas madali ang garnishment kaysa sa levy.

Now the other one is what you call LEVY. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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Q: How do you levy? A: Levy is taking legal custody of either real or personal properties. Q: What can be subject of levy? A: Real or personal properties. If it is personal property, then the sheriff takes actual custody of it if it is capable of manual delivery. If it is not capable of manual delivery, then the personal property must be duly ascertained that it is in the place. By giving a copy of the writ of execution to the one in charge of that property and by that the property becomes in CUSTODIA LEGIS. If it is real property, it is a matter of annotation in the office of the register of deeds of the place where the property is located. That is how to levy. This example that I’ve given is judgment for money, but not all judgments are judgment for money. So if this is a judgment for specific performance, the sheriff must undertake that the judgment obligor does something as ordered by the court. Suppose it is a judgment to withdraw money, it is not a judgment for money but a judgment for specific performance. So the sheriff must accompany the judgment obligor and ask him to withdraw money from the bank. And that in one case, this is considered as a special kind of judgment. In other words, it is a judgment which cannot be performed by any other person except the judgment obligor because if this can be performed by other persons other than the judgment obligor, and he does not want to do it, then the Sheriff can ask other persons to do it at the expense of the judgment obligor. Example: A judgment to build a house. That is a judgment for specific performance. But the judgment obligor does not want to build the house. Ask someone to build the house at the expense of the judgment obligor. If it is a judgment for delivery of specific property, then if the judgment obligor does not want to deliver, then ask someone to deliver it in behalf of the judgment obligor, and at the expense of the judgment obligor. Special mention must be made regarding unlawful detainer. This is a judgment to vacate and delivery of the property to the judgment obligee. Remember that under Rule 70 the execution of that judgment, you have to give at least 3 or 5 days, in the case of residence and 3 or 5 days in the case of lot. So you cannot just immediately oust the judgment obligor. You have to implement the written execution by telling the judgment obligor to vacate the premises within 3 - 5 days. Q: If after 5 days, the sheriff goes back to the judgment obligor and the judgment obligor is still there, will the judgment obligor be liable for contempt? A: No. The sheriff must ask police officers or must secure help from public authorities (NBI) to forcibly eject the judgment obligor. But the sheriff cannot cite the judgment in contempt because the writ of execution is addressed to the sheriff. Now the property is already vacated. Then after 10 - 30 days the sheriff came back and saw the judgment obligor occupying the same property, the sheriff can now cite the judgment obligor in contempt. Suppose in this ejectment case again, the property owned by the judgment obligee is a land. On the land is built a barong-barong built by the judgment obligor. So you have to ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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demolish the premises. Q: When you execute the judgment to vacate, can you demolish the premises right away? A: No you cannot do that. You have to secure from the court a writ of demolition. These are specific ways by which to execute a judgment. Q: So the sheriff, for sum of money in the amount of P 1M, was not able to collect it from judgment obligor B. So what should the sheriff do? A: He levies on the properties of the judgment obligor. Q: What properties should the sheriff levy on? A: Either real or personal properties. But under the rules now, the judgment obligor has the option as to which property should first be levied. And that privilege or option does not belong to the judgment obligee or the sheriff but belong to the judgment obligor. So when the sheriff goes to the house and determines that the judgment obligor cannot pay in cash or check, the sheriff has no other choice but to levy on his property. If the sheriff chooses the judgment obligor's car (Mercedes Benz) to be levied, the judgment obligor can oppose or contest. The judgment obligor can point to other properties to satisfy his judgment debt. Like the JVC flat screen TV which is already P299,000, or the 15 cubic feet freezer which is already P 100,000, or the other car (Toyota, model 1965). In other words, the judgment obligor has the option. The problem is when the judgment obligor is not present. Considering that no one can exercise the option, so it is now incumbent upon the sheriff to levy on any property that he sees. But the sheriff must first levy personal properties over real properties. Q: If what the sheriff was able to levy only was a Toyota 1965 Corolla, which is only P30,000 (out of P 1M), the sheriff levies on real properties. How does he go about it? A: The sheriff goes to the register of deeds and tries to examine whether there are properties in the name of the judgment obligor. If there are, the sheriff furnishes the register of deeds of a copy of the writ of execution, together with the judgment, and ask the register of deeds to annotate on the original transfer certificate of title belonging or in the name of the judgment debtor. And by that levy, that is what you call levy on real property. By that annotation, that property is now in CUSTODIA LEGIS. Suppose the property is not titled. So the sheriff goes to the office of the Municipal or City Assessor and get a copy of the tax declarations in the name of the judgment obligor. And armed with the copy of the tax declarations, the sheriff goes back to the register of deeds and have it recorded in the book of unregistered properties. So that is how to levy an unregistered property. Otherwise, if it is personal property, capable of manual delivery, the sheriff takes it. So the sheriff levies a Toyota Corolla car, he takes actual custody of the car and drives it to the court and keeps it there. The sheriff should not keep it at home and use it for personal matters. If the sheriff personally uses the car and he was accosted by a TMG Officer, and the latter finds out that the car is a levied property, and the sheriff uses the judge as an excuse (dinamay ang judge). Both the sheriff and the judge were administratively charged. The sheriff was discharged and the judge was suspended. Decided case yan ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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by the SC. So keep the property in the premises of the court, and considering that you have levied on this property, you have now to set the auction sale of the property. Section 13 are those properties which are exempt from execution. You just go over them. Madaling tandaan because Section 13 of Rule 39 have 13 exempt properties. Q: Have you ever wondered why it uses 3 horses, 3 carabaos, or 3 cows? A: 1 kay tatay, 1 kay nanay at 1 para sa anak. Because it is an ideal family and the perfect family is the holy family (Joseph, Mary and Jesus). The horses contemplated herein are for the use of the family. They are not race horses. Because if you can keep race horses, the race horse's value would be P 500K - P 1M. Several years ago, Brondial gave an exam and gave a question about levy. A very rich person with 3 race horses. Pina-levy ni Brondial yun. He asked kung pwedeng i-exempt yun. - The race horses can be levied and what is contemplated by the rules are horses used for livelihood. Even if the horses, in kalesa, were used to be race horses. They are still exempt. Tools and implements in paragraph b of Section 13 have a decided case. Here is a security agency, was sued and judgment was rendered for money. The agency could not pay so the sheriff levied properties. The properties levied were guns and ammunitions. The agency filed a motion to quash the writ of execution on the ground that these are tools in the implement of the business. The SC said that these are not exempt from execution because they are not tools and implements contemplated by the rules. Because the guns and ammunitions were used for business. What the rules contemplate are tools and implements used for livelihood. Take note that there is no limit in annuities but regarding libraries of lawyers, doctors, engineers and teachers, the limit is P 300,000. That is very small, one SCRA costs P 860. Let me proceed to execution proper. Auction sale. Section 15. Notices. Q: What are the requirements before auction can be undertaken? A: Remember 3 requirements and qualify them as to what they are required. 1. Notice 2. Posting 3. Publication Notice, irrespective of what is to be auctioned, is mandatory. Q: Notice to whom? A: Notice to the judgment obligor. So that if there is no notice to the judgment obligor, the auction becomes irregular and may even be invalidated. Q: When is posting necessary depending on what is to be auctioned? A: Because the date of posting depends on the object of auction. If it is perishable goods, posting may be required but only for a day or two. If it is personal properties, capable of manual delivery, it may be 5 days, otherwise, it may be more depending now on the court. Q: Where should the posting be done? ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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A: There are places stated in the rules and they are not mandatory. They are only suggestions. The rationale behind the law is where as many people as possible that can read it. Municipal building, public market, post offices. Di ba may public market din sa SM, pwede and posting dito. Although the problem is when the post is being defaced or removed. The person who defaced the post is liable for the amount of not more than P 5,000. But it is very hard to search or even identify the person who defaced the post. Now, if the auction is of a real property, publication is not needed. But when the property is worth more than P50,000 then publication is needed once a week in 2 consecutive weeks in a newspaper of general circulation. In the case I have assigned to you, in Pinlac v. CA, the SC described what is a newspaper of general circulation. Because if you don't comply with that, then there is no valid publication, the auction is irregular and may be invalidated. It is further said that the auction sale must be done between the hours of 9am - 2pm. And it can be adjourned from time to time depending on the agreements of the parties or if the parties are not around, depending on the sheriff after giving notice to the parties. Have you attended an auction sale? You better attend one because there are auction sales that do not comply with the rules. Not that the sheriff who does not comply with it but because of the absentee lawyers, absentee obligors, or even the absentee obligees. As lawyers, you must be present so you can oppose if there are irregularites because there are prices which are unconscionable. Aside from the fact that the judgment obligor has the option as to which should be first sold. TV set, Freezer or other properties that can easily satisfy his debt. If the judgment obligor is absent, there can be connivance between the sheriff and the judgment obligee and connive with what property to be auctioned and on what amount the property can be auctioned at. As when there are no other bidders, the sheriff may allow the obligee to bid at a very low amount thus there would still be a insufficiency judgment. GENERAL RULE: If the judgment obligee is the purchaser at the auction sale, the judgment obligee is not bound to pay. EXCEPTION: Section 16, where there is a 3rd party claim. The judgment obligee, even if he is the highest bidder, must pay because there is a question as to ownership of property auctioned. Q: A 3rd party claim is different from a 3rd party complaint. We've studied 3rd party complaint already. A: A 3rd party claim happens on auction sale on execution, foreclosure, or attachment. We have the rules which are inter-related. In Rule 39, inter-relate it with Rule 57 on attachment and Rule 68 on foreclosure of real estate mortgage. Lahat ng ito ay may rule on 3rd party claim. And they have practically the same provisions. Q: So that if there is a 3rd party claim, how does the 3rd party claim must go about it? A: He must execute an affidavit stating that he is the owner of the property. He gives that to the sheriff. The sheriff copy furnishes the judgment obligee. If the judgment obligee does not put up a bond, then the sheriff will not be liable for the delivering the property to the 3rd party claimant. In replevin (recovery of personal property), under Rule 60, there is also a 3rd party claim. Remember, that before you can be granted the writ of replevin, you have to file a ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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bond. Q: How much is the bond? T A: Twice the value of the property. We will study that once we get to Rule 60. What Brondial is trying to say is that in replevin there is a 3rd party claim. Aside from putting a bond twice the value of the property, you have to, still, put up another bond equivalent to the value of the property. Example: Mercedes Benz car is worth P1M. Then in replevin you have to put up a bond in the amount of P3M (twice the value of the bond and the another bond equivalent to the value of the property) because of the 3rd party claim. But in Rule 39, the bond must be equivalent to the value of the property. No damages may be filed against the sheriff after a period of 120 days. 120 days means prescription. So if you want to file for damages, you have to file it within 120 days. The case is Young v. Valdez. So this is 3rd party claim, Section 16. Then notices filed in Secs. 17, 18 and 19. If what is auctioned is a real property, the judgment obligor has the right of redemption. If what is auctioned is personal property, there is no right of redemption. A car is a personal property, so if it is sold in an auction, the purchaser of the property may ask for a deed of sale. And the deed of sale must be executed by the sheriff and not the owner anymore, because the property is in custodia legis. The right and interest of the purchaser retroacts to the time of the judgment or preliminary attachment. Correlate it with the rule on preliminary attachment. If what is sold is real property, it is mandatory that a deed of sale must be executed and a certificate of sale must be issued and registered in the office of the register of deeds. That is very important because the right of redemption begins from the time that the certificate of sale is registered with the office of the register of deeds. The period, therefore, starts to run from the registration of a certificate of sale and not from the sale, auction or the levy. That is the right of redemption. In foreclosure of real estate mortgage under Rule 68, there is no right of redemption. There is only equity of redemption. And equity of redemption is different from right of redemption. Right of redemption is the authority or privilege or right of the judgment debtor or obligor or redemptioner to redeem the property within a period of 1 year from the registration of certificate of sale. Q: Section 27, who may redeem? A: 2 lang ang pwedeng mag-redeem. 1. judgment obligor or his succesors-in-interest. 2. redemptioner. Please memorize the meaning or rather the definition or description of what a redemptioner is. A redemptioner is one who has a lien over the property subsequent to the lien under which the property is sold. Brondial said he is just paraphrasing the provision in ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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paragraph b under Section 27 of Rule 39. Ang importanteng word ay ang "subsequent".

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

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