RULE 16 to 22 - Reveiw Notes for Long Quiz

Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

RULE 16 – MOTION TO DISMISS Motion to dismiss must be filed within 15 days after service of summons, AND before filing the answer answer to to the complaint of pleading pleading asserting asserting a claim. claim. • •

GROUNDS FOR MOTION TO DISMISS: 1. Lack of jurisdiction jurisdiction over the person person of the defendant 2. No jurisdiction jurisdiction over the subject subject matter of the claim 3. Improper venue (court may not dismiss motu propio case propio case on improper venue.) 4. Plaintiff has no capacity to sue 5. Litis pendentia Requisites for Lis Pendens (or ( or is it Litis Pendentia?) Pendentia? ) a. Same parties parties or at least represent same interest interest b. Same right right asserted asserted and same relief relief prayed prayed for c. Relief founded on the same facts d. Identity in these particulars should should be such that if the the pending case has already been disposed of it could be pleaded as a bar to present litigation e. Claim is is barred by prior judgment and statute of limitations limitations 6. Res judicata or prescription Requisites of Res Judicata a. Former judgment or order order must must be final b. Court rendering rendering judgment must have jurisdiction jurisdiction over the parties and subject matter c. Judgment must be on the merits d. Identity of parties, of subject matter and causes of action 7. Pleading states no causes causes of action 8. Claim has been Paid, Extinguished, Abandoned or Waived 9. Claim is unenforceable under the provisions of the statute of frauds 10. Condition precedent has not complied with Evidence must be adduced in order to prove complied of fact raised in a motion to dismiss. Such evidence shall be reproduced automatically if the case goes on trial. Resolutions of Motions: 1. Dismiss the action – final act thus appealable 2. Deny the motion to dismiss dismiss – interlocutory interlocutory hence not appealable except by certiorari under Rule 65 3. Order the amendment of pleading IF the motion is denied then the movant has the balance of the period to file a responsive pleading to file his answer, but it should not be less than 5 days. Motion to dismiss granted based on the following is a bar from refilling of the same action 1. Action is barred from prior action 2. Claim has been paid, waived, waived, abandoned or extinguished extinguished

Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

3. Claim is unenforceable 4. Res judicata If a motion to dismiss is based on failure to state cause of action, the rule is – if detect may be corrected by amendment, court should allow amendment; however of plaintiff cannot or does not amend, dismissal is with prejudice. Grounds for motion to dismiss may be pleaded as an affirmative defense during trial even if the motion to dismiss has been denied. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.  A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. The demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible facts. Note from Regalado: If the same motion also raised other grounds or invoked some affirmative relief which necessarily involves the exercise of jurisdiction of the court, such special appearance will be of no avail and the party is thereby deemed to have submitted himself to the jurisdiction of the court. Where summons was not served on two of the defendants and a lawyer filed, in their behalf but without their authority, a motion for extension of time to answer the court does not acquire jurisdiction over said defendants. Where a party invokes the jurisdiction of a court to obtain affirmative relief and fails, he cannot thereafter repudiate such jurisdiction. It has been held that even if the claim in the complaint was below the  jurisdictional limit for the then CFI, if the defendant, instead of moving to dismiss, filed a counterclaim for P12,000 which was then within the exclusive original  jurisdiction of said CFI, such counterclaim cured the defect. It is submitted, however, that said resolution, under the facts therein, was more properly sustainable under the principle of estoppel by laches on the part of the defendant, as discussed in the preliminary chapter of this book, and which principle was also relied on by the Supreme Court in its aforesaid resolution in that case. Where the owner of a condominium corporation sold a unit thereof on installments with reservation of ownership  until the price is fully paid, and the buyer defaults, the courts, and not the SEC, have jurisdiction over the nature of the action because the owner remains as stockholder for the unit sold, hence no intra-corporate issue is involved. Xxx An action to compel a corporation to issue shares of its capital stock in payment of its contractual obligation is and undertaking in favor the plaintiff will not be dismissed on the ground that the court has no jurisdiction over the nature of the action since such situation does not involve an intra-corporate matter contemplated in PD 902-A and is not within •

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Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

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the jurisdiction of SEC. xxx However, an action to compel the defendant corporation to render an accounting and distribution of the shares of stock, with the dividends due thereon, of plaintiffs’ predecessor-in-interest is an intracorporate conflict and is not within the jurisdiction of the courts but the SEC. Where a motion to dismiss for improper venue is erroneously denied, the remedy is prohibition. Where the plaintiff is not the real party in interest, the ground for the motion to dismiss is lack if cause of a ction. Res judicata, as a ground for dismissal, requires a previous final judgment in a case prosecuted between the same parties involving the same subject-matter and cause of action. If the allegations of the complaint, or evidence presented, clearly indicate that the action has prescribed, or where there is no issue in fact as to prescription, the defense of prescription cannot be invoked against the State. Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action. Same doctrinal rules will apply where the case was covered by the Katarungang Pambaragay Law (PD 1508) and not excepted from the compulsory process of arbitration required therein as precondition for filing a complaint in court. The complaint may be dismissed where the complainant, after due notice, willfully fails to appear on the date set for mediation, conciliation or arbitration. A compromise of the controversy is not permitted by law, as where it involves civil status, validity of marriage or legal separation, grounds for legal separation, future support, jurisdiction and future legitime!  family relations shall include those: Between husband and wife o Between parent and child o Among other ascendants and their descendants; and o Among brothers and sisters. o Failure to allege in the complaint that earnest efforts had been made by the plaintiff before filing the action is not a ground for a motion to dismiss if one of the parties is a stranger or o where the suit between collateral relatives who are not brothers or sisters o and, therefore, not members of the same family. The doctrine of forum non conveniens us bit a ground for a motion to dismiss. The omnibus motion rule provides that defenses or objections not pleaded either in a motion to dismiss or in the answer are deemed waived, except objections specified therein which are considered not waivable. Lack of jurisdiction over the subject-matter may be invoked as a defense at any stage of the action. An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. Courts will still decide cases, otherwise moot and academic, if There is grave violation of the Constitution; o

Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

An exceptional character of the situation and paramount public interest is involved The constitutional issue raised requires formulation of controlling o principles to guide the bench, the bar and the public The case is capable of repetition yet evading public review. o An order denying a motion to dismiss is interlocutory and not appealable!  but an order granting a motion to dismiss is final and appealable. While an order denying a motion to dismiss is interlocutory, and non-appealable, if the denial was with grave abuse of discretion or is without or in excess of  jurisdiction, prohibition will lie!  Certiorari and prohibition are proper remedies from such order of denial. The plaintiff must move for leave to amend the complaint before the dismissal order becomes final. The action cannot be refilled if it was dismissed on any of these grounds: Res judicata; o Prescription; o  Extinguishment of the claim or demand; and o Unenforceability under the Statute of Frauds o A motion to dismiss is not a responsive pleading, hence the filing thereof does not preclude the plaintiff from doing what he can lawfully do before the defendant files his answer, i.e. amend his complaint. Affirmative defenses: Fraud o  Illegality and estoppel o And by jurisprudence, ultra vires acts and unconstitutionality o o

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RULE 17 – DISMISSAL OF ACTION Plaintiff may cause the dismissal of an action by filing of a notice thereof before the service of the answer or of a motion of summary judgment. Such dismissal is without prejudice except: 1. It is stated in the notice that dismissal is with prejudice 2. Plaintiff has once dismissed in a competent court an action based on the same claim (TWO-DISMISSAL RULE) Dismissal of the action does not count as a bar to the institution of an action by the defendant which he could have brought as a cross claim or counter claim. *National Coconut Corp. v. Kalaw, et al., 94 Phil 282 (1954) – When two dismissal rule does not apply. Rule 17 contemplates a case wherein the first action was dismissed finally, followed by the dismissal of a second action base on or including the claim covered by the first action. The Rules does not apply to a situation where the first action is still pending, and the claim involved was merely reinstated in the pending first action.

Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

If a counterclaim has been pleaded before the plaintiff’s motion to dismiss, dismissal is only limited to the complaint. Dismissal due to the fault of the plaintiff may be motioned by the defendant or upon court’s own order, such is with prejudice to filing a new action. Instances of plaintiff’s own fault (hence, dismissal is with prejudice to the filing of a new action): 1. Failure of the plaintiff to appear without justifiable cause on date of presentation of evidence (does not apply to probate of wills) 2. Failure of the plaintiff to prosecute his action for an unreasonable length of time 3. Failure of plaintiff to comply with the Rules of Court or any court order The same rules apply to counter claim cross or third party complaint but must be made before a responsive pleading or motion for summary judgment is served or if none, before introduction of evidence. However, the dismissal of a petition for probate of a will in a previous special proceedings due to the failure of the petitioner and his counsel to appear on the date and time set for the hearing thereof is not an adjudication on the merits. Notes from Regalado Dismissal is effected not by motion but by mere notice of dismissal which is a matter of right! such dismissal is without prejudice, except: Where the notice of dismissal so provides o Where the plaintiff has previously dismissed the same case in a court of o competent jurisdiction; and Even where the notice of dismissal does not provide that it is with o prejudice but it is premised on the fact of payment by the defendant of the claim involved. The two-dismissal rule requires that both dismissals are granted by a court of competent jurisdiction. Where the  plaintiff moves for the dismissal of his complaint to which a counterclaim has been interposed, the dismissal shall be limited to the complaint. Such dismissal shall be without prejudice to the right of the defendant to either prosecute his counterclaim in a separate action or to have the same resolved in the same action. Secs 1 and 2 of this rule refers to the dismissal of the entire case. The dismissal of the case for failure of the plaintiff to appear at the trial, to be valid, now requires that His non-appearance is without justifiable cause, and o Such prejudicious absence is limited to the date or dates when the o presentation of his evidence in chief on the complaint was scheduled or expected. !  since the plaintiff’s presence is now required only during the presentation of his evidence in chief, his absence during the presentation of the evidence of the •

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Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

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defendant or the other parties, or even at the rebuttal or subsequent stages of the trial, is not a ground for dismissal. When the dismissal does not contain any condition at all, it has the effect of an adjudication on the merits as it is understood to be with prejudice. Failure to comply with a court order is a ground for dismissal of the case. Unjustifiable inaction on the part of the plaintiff to have the case set for trial is ground for dismissal for failure to prosecute. It is plaintiff’s failure to appear at the trial, and not the absence of his lawyer, which warrants dismissal. A motion for reconsideration of an order dismissing the case for failure to prosecute need not be accompanied by affidavits of merits. The principle that the dismissal of the complaint carries with it the dismissal of the counterclaim applies to instances where the court has no jurisdiction over the main case.

RULE 18 – PRE TRIAL PRE-TRIAL – a MANDATORY conference and personal confirmation before the judge between the party litigants and their respective counsel. Pre-trial is done after the last pleading is served and filed, plaintiff must move ex parte that case be set for pre-trial. Court considers the following during pre-trial: a. Possibility of amicable settlement or arbitration b. Simplification of the issues c. Amendments to the pleadings d. Stipulations or admissions of facts and documents e. Limitation of number of witness f. Preliminary reference of issues to a commissioner g. Propriety of judgment on the pleadings, summary judgments, or dismissal of action h. Advisability or necessity of suspending the proceedings i. Other matters for the prompt disposition of the action Non-appearance during pre-trial must be for valid cause shown or if the party is represented by a person authorized by him in writing to enter into an amicable settlement, submit to alternative modes of dispute resolution or enter stipulations and admissions. Failure to appear during pre-trial will cause: If plaintiff – dismissal with prejudice, unless otherwise ordered by the Court.

Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

If defendant – plaintiff may be allowed to present evidence ex parte  and the Court to render judgment on the basis thereof. Parties must file a pre-trial brief and ensure receipt of such at least 3 d ays before date of pre-trial. The pre-trial brief shall contain, among others: a. A statement of their willingness to enter into an amicable settlement b. The summary of admitted facts and proposed stipulation of facts c. The issues to be tried or resolved d. The documents or exhibits to be presented, stating the purpose thereof e. A manifestation of their having availed of or their intention to avail themselves of discovery procedures or referral to commissioners f. The number and names of the witnesses, and the substance of their respective testimonies Failure to file the pre-trial brief shall have the same effect as failure to appear at the pretrial. There shall be a record of the pre-trial where in the court issues an order which recites matters taken up during the pre-trial.

Notes from Regalado The pre-trial and trial on the merits of the case must be held on separate dates/ The pre-trial may be properly scheduled even if the plaintiff had not yet filed his answer to the defendant’s compulsory counterclaim since no answer is required to be filed thereto. The trial court has discretion to declare a property non-suited Where the defendant is declared in default for his failure to appear at the pre-trial, his remedy is to file a motion for reconsideration ! If denied with grave abuse of discretion, certiorari is the remedy !  The remedy of the plaintiff who is non-suited, on the other hand, is to appeal from the order of dismissal. Where the defendant was present at the pre-trial, the court has no authority to thereafter call a second pre-trial and declare defendant in default for his absence therein. •

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RULE 19 – INTERVENTION Intervenor must: 1. Have legal interest in the matter of controversy 2. Have legal interest in the success of either of the parties 3. Have legal interest against both

Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

4. Be so situated as to be adversely affected by a disposition or distribution of the property by a separate proceeding Motion to intervene may be files at any time before judgment is rendered by the trial court.  Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint. Complaint in intervention is merely collateral to the principal action. Hence, it will be dismissed it main action is dismissed.  A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative relief. The petition will be preserved and heard regardless of the disposition of the main action. INTERVENTION INTERPLEADER  An ancillary action. An original action. Proper in the situations enumerated in the Presupposes that the plaintiff has no Rule. interest in the subject matter of the action or has an interest therein which in whole or in part is not disputed by the other parties to the action. Defendants are already original parties to Defendants are being sued to implead the pending suit. them. Denial of motion for intervention is final and appealable. Remedy for allowing or denying motion for intervention-  either certiorari or mandamus (to prevent multiplicity of suits)

Notes from Regalado: Intervention will not be allowed where it would enlarge the issues in the action and expand the scope of the remedies. When an intervenor has become a party to a suit , the trial court cannot dismiss the intervention suit on the basis of an agreement between the original parties to the action unless the intervenor is a party in such agreement. When an intervening petition has been filed, a plaintiff may not dismiss the action in any respect to the prejudice of the intervenor. Where the intervenor’s rights are interwoven in the pending case and he had due notice of the proceedings, he will thereafter be estopped from questioning the decision rendered therein through another action. An improper denial of a motion for intervention is correctible by appeal ! but if there is grave abuse of discretion, mandamus will lie ! on the other •

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Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

hand, an improper granting of a motion for intervention may be controverted by certiorari and prohibition.

RULE 20 – CALENDAR OF CASES Clerk of court keeps a calendar of cases for pre-trial, trial, those whose trials have been adjourned or postponed and those motions set for hearing. Preference of dates shall be given to habeas corpus, election, special civil action and those cases so required by law.  Assignment of cases shall be done exclusively by raffle in open session with notice, so parties or counsel will be prevented from choosing judges to hear their case. Notes from Regalado Four separate calendars reflecting the cases for pre-trial, for trial, those whose trials were adjourned and postponed and those those requested to be set for hearing. •

RULE 21 – SUBPOENA SUBPOENA – is a process directed to a person requiring him to attend and testify at a hearing or trial or investigation or for the taking of his deposition. SUBPOENA DUCES TECUM – process which requires a person to bring with him books, documents or other things under his control. SUBPOENA AD TESTIFICATION - process which requires a person to attend and to testify at the hearing or the trial of an action or at any investigation conducted by competent authority or for the taking of his deposition.

SUBPOENA

SUMMONS

 An order to appear and testify or to Order to answer a complaint produce books and documents May be served to a non-party Served on the defendant Needs tender of kilometrage, attendance Does not need tender of kilometrage and and reasonable cost of production fees other fees

Subpoena may be issued by: a. The court before whom witness is required to attend; b. The court of the place where the deposition is to be taken;

Civil Procedure Review Notes for 12 March 2015 Long Quiz By Troy Colmenares 3/10/15 3:31:34 PM

c. The officer or body authorized by law to do so in connection with its investigations; d. Any Justice of the SC or CA in any case or investigation pending within the Philippines Prisoner may be issued a subpoena a but for prisoners sentenced to death, reclusion  perpetua or life imprisonment and confined in a penal institution, authorized by the Supreme Court is necessary. Subpoena shall state the name of the court and title of the action and directed to the person required to attend. If it is a subpoena duces tecum then it must contain a reasonable description of the books, documents or things demanded which must appear  prima facie relevant.

GROUNDS FOR QUASHING SUNPOENA DUCES TECUM  a. It is unreasonable or oppressive b. The articles sought to be produced do not appear to be relevant. c. Person asking for subpoena does not advance cost of production GROUND FOR QUASHING SUBPOENA AD TESTIFICANDUM a. The witness is not bound thereby – if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending. (known as VITIATORY RIGHT , applicable only in civil cases). b. Witness fees and kilometrage allowed by rules not tendered when subpoena served. Service of subpoena shall be made in the same manner as personal or substituted service of summons. Tender of fees and kilometrage is not necessary if subpoena is served by or on behalf of the Republic of the Philippines.  Attendance may be compelled by issuance of a warrant of arrest against the witness and the sheriff to bring the witness before court where attendance is required. Failure without valid cause to obey a subpoena shall be deemed contempt.