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April 24, 2014

Last night we discussed on the
Preliminaries of an ordinary civil action;
eply for purposes on refuting new matters raised on the Answer
!" #f there are new matters raised in the Answer, is there a necessity for a eply$
A" emem%er that if you will not file a eply, under the ules, all new matters are
deemed controverted &'(&P)"
if there are actiona%le documents that are appended or raised in the Answer
to a responsive pleading*
emem%er that after the last pleading is filed, if you are the counsel for the
Plaintiff, your &+&,- is to"
.ile a motion to set the case for pre/trial
0therwise, the court will not initiate* #t is not li1e in criminal cases that the
court will %e the one to set the case for pre/trial*
#n civil cases, it should %e the plaintiff* #f the plaintiff will not move for pre/trial,
the court will not do that for you*
2o if you will not do that for one year, the court can dismiss the case for failure
to prosecute* 2o what you will do"
.ile a motion to set the case for pre/trial*
)he court will set the pre/trial* 3efore going to pre/trial, you must"
2et the case for compulsory mediation / in ordinary civil actions / %efore the
Philippine +ediation (enter 4P+(5
#f the mediation is successful"
6 #t is remanded %ac1 to the court*
emem%er, the mediation cannot render 7udgment %ased on compromise*
#f there is a compromise agreement"
6 #t is su%mitted %ac1 to the court for approval*
#f the mediation failed"
6 )hat will %e su%mitted to the so/called 8udicial ,ispute esolution 48,5*
#t is not under the ules, %ut under the law, those cases not successful at the
P+( will %e su%mitted for mediation at the 8,*
!" 9hat is this 8udicial ,ispute esolution$
A" )here are 2 7udges in that 8," the 8, 7udge and the trial 7udge* )he trial
7udge will not %e the 8, 7udge* 2o once happens in that case, once it is remanded
%ac1 to the court, that will %e referred to the 8, 7udge* )he 8, 7udge will conduct
the mediation %ut he will not %e the one to try the case*
3ut under the rules on 8,, parties can agree that the trial 7udge will %e the
8, 7udge*
&:ample" (ases not successful at the P+( will %e forwarded to 3ranch ;*
3ranch ; 8udge will %e the 8, 7udge* #f not successfully mediated %y the 8,
7udge, it will %e remanded to the court and the trial 7udge will %e the one to
conduct the trial* #n no case the trial 7udge will %e the 8, 7udge <=L&22 the
parties agree that the trial 7udge %e the 8, 7udge*
)he admissions will not form part of the proceedings* )hat cannot %e admitted
in evidence*
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8, is li1e %arangay conciliation proceedings* )he 7udge does not wear a ro%e*
#t is simple li1e an ordinary mediation* #f there is a compromise agreement, the
8, 7udge will not rule on the compromise agreement* #t will %e su%mitted to the
court for approval*
emem%er, if there is a compromise agreement and once it is su%mitted to the
court, you have"
/ 10 days to repudiate that 410 days or 1> days$5
A compromise agreement is immediately e:ecutory* 9hy$
3ecause the e:press intention of the parties is to waive the right to appeal* 3y
entering the compromise agreement, you waive the right to appeal* 2o, within the
1>/day period, from the time that the compromise agreement is approved %y the
court, there is now 7udgment, your remedy is not appeal* #f your client has %een
deceived, defrauded into entering that compromise agreement, there is vitiated
consent, there was fraud %ecause it was a matter of mista1e or accident that he
entered into that compromise agreement, your remedy is to"
.ile a motion to set aside the compromise agreement*
And if your motion is denied, the remedy is not appeal*
)he remedy is (ertiorari under ule ?>*
6 )he remedy of appeal is not availa%le in compromise agreement simply
%ecause a compromise agreement is immediately e:ecutory* #f that is immediately
e:ecutory, there is no need for an appeal %ecause appeal stays the e:ecution of the
decision e:cept in some instances*
After P+(, the 8,, the parties come into trial* )here is now a pre/trial* At the
pre/trial, you have to su%mit your pre/trial %rief*
emem%er" .ailure to file a pre/trial %rief is e@uivalent to non/appearance
during pre/trial*
2o, if the plaintiff fails to file his pre/trial %rief, what happens$ #f the plaintiff
does not appear during the pre/trial what is the conse@uence$
-ou file a motion* -ou move that the case %e dismissed and you proceed with
your counterclaim*
emem%er, if the case is dismissed, for e:ample the court order the dismissal
of the case, you have the option*
-ou have 1> days to manifest whether you want your counterclaim to %e
litigated in the same action or you want your counterclaim to %e litigated in another
action*
emem%er, the dismissal is with pre7udice hence, the order is now final*
#f the defendant does not file his pre/trial %rief in accordance to ule 1; of the
ules of (ourt, it is the same as non/appearance during pre/trial* -our remedy is
not to move to declare the defendant as in default* #t is not sanctioned %y the
rules* 9hat will you do$
-our honor, we move that the pre/trial %e terminated and will %e allowed to
present our evidence e: parte*
And you can %e allowed that the cler1 of court %e commissioned to received
the evidence e: parte* )he cler1 of court can even do that*
#f the reception of evidence is heard %efore the cler1 of court, the cler1 of court
cannot move on the admissi%ility of evidence* 9hen you file your formal offer of
e:hi%its, it will %e su%mitted to the court for the court to appreciate* #t is not for
the cler1 of court to prove on new evidences*
P&/)#AL
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9e are now at the pre/trial* )he purpose of the pre/trial is to a%%reviate the
proceedings* 3ecause as to facts that are admitted, according to ule 12A, 7udicial
admissions need no proof*
-ou admit that there is an o%ligation* )hat is admitted* )here is no necessity of
any proof* #f the parties come into terms, remem%er that a civil case can %e
compromised even if the 7udgment %ecomes final and e:ecutory even if there is a
writ of e:ecution*
#f there is a compromise agreement, the 7udgment will %e set aside and a new
7udgment will %e entered %y the court*
All matters that are stipulated during the pre/trial will %e the one to govern* .or
e:ample" Bow many witnesses to %e presented$
9hat are the documents to %e presented$
)hat is the %ench%oo1 of the trial* )he purpose is to prevent surprises during the
trial*
)#AL
9hen trial comes, the plaintiff will %e the one to present its evidence* 2ee to it
the that the witnesses presented are named in the pre/trial order* 0therwise, you
can o%7ect*
C-our honor, he is not among those witnesses listed in the pre/trial*D
=autod cuE +etE called / show good cause
(oming into trial is not an easy tas1 especially when you are a neophyte lawyer*
3&=(B300F of P&/)#AL" As a rule, you can only present evidences stated in the
pre/trial order*
&+&+3&" 0nly matters that are not admitted or stipulated can %e the su%7ect of
trial*
#t is limited* )he proceedings in civil cases are a%%reviated* -ou have your 7udicial
affidavit* At any rate, when you %ecome lawyers you have your own style of your
pleadings, affidavits, or motion*
3A2#( <L&2 0= &G#,&=(&
)hen you present your evidence*
)hree 1inds of evidence*
415 )estimonial
425 ,ocumentary
4H5 0%7ect
9hen the Plaintiff presents his evidence, the remedy %efore he rests his case"
Be should file his formal offer of e:hi%its*
9ithin that period from that trial, in some cases trial is slow/paced* And during the
trial, an nagpresentar pala usa na testigos* After 2 years waray pa*
-ou have the remedy of motion to dismiss*
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<nder the rules, there are 4 1inds of dismissal" 4not mentioned in earlier lectures5
15 ,ismissal upon notice %y the party %efore the answered is filed
25 ,ismissal at the instance of the Plaintiff after the responsive pleading is filed %ut
with the conformity of the defendant
H5 ,ismissal for failure to prosecute / motu propio, the court can do that
45 ,ismissal on demurrer to evidence
After the plaintiff presented its evidence, what is the remedy of the defendant if
you thin1 that the evidence is insufficient$
,emurrer to evidence
#s there a need for a prior leave of court$
emem%er the distinction %etween demurrer to evidence in civil cases and
demurrer to evidence in criminal cases*
#n criminal cases, there must %e prior leave of court* #n civil cases, there is no need
for a prior leave of court* )hat is not re@uired under the rules*
(onse@uences"
#f the demurrer is granted in civil case, the plaintiff has the remedy of appeal
%ecause the dismissal does not constitute res 7udicata* 3ut in a criminal case, if the
demurrer is granted, the accused is ac@uitted* =o appeal will govern there %ecause
of dou%le 7eopardy e:cept on the civil aspect where the private complainant can
appeal on the civil aspect of the case*
(opied from reviewer"
In a civil case, the defendant has the right to file a demurrer to evidence without
leave of court. If his demurrer is denied, he has the right to present evidence. If
his demurrer is granted and on appeal by the plaintiff, the appellate court reverses
the order and renders judgment for the plaintiff, the defendant loses his right to
present evidence. (Rule 33)
In a criminal case, the accused has to obtain leave of court to file a demurrer to
evidence. If he obtains leave of court and his demurrer to evidence is denied, he
has the right to present evidence in his defense. If his demurrer is granted, he is
acquitted and the prosecution cannot appeal.
If the accused does not obtain leave of court and his demurrer to evidence is
denied, he waives his right to present evidence and the case is decided on the
basis of the evidence for the prosecution.
he court may also dismiss the action on the ground of insufficiency of the
evidence on its own initiative after giving the prosecution the opportunity to be
heard. (!ec. "3 of Rule ##$)
#n civil cases, if there is no prior permission / leave of court is the permission that
you %e allowed to file a motion* -ou file your motion within > days and you have a
10/day period* ule 11A 2ec* 2H of the ules of (ourt to file demurrer to evidence*
#n civil cases, it is lac1 or insufficiency of evidence* Lac1 of cause of action*
(opied from codal"
he motion for leave of court to file demurrer to evidence shall specifically state its
grounds and shall be filed within a non%e&tendible period of five (') days after the
prosecution rests its case. he prosecution may oppose the motion within a non%
e&tendible period of five (') days from its receipt.
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If leave of court is granted, the accused shall file the demurrer to evidence within
a non%e&tendible period of ten (#() days from notice. he prosecution may oppose
the demurrer to evidence within a similar period from this receipt.
he order denying the motion for leave of court to file demurrer to evidence itself
shall not be reviewable by appeal or certiorari before judgment. (!ec. "3 Rule ##$)
.A#L<& )0 2)A)& (A<2& 0. A()#0= vs LA(F 0. (A<2& 0. A()#0= 4)hese
grounds are often interchanged5
Lac1 of cause of action is not a ground of a motion to dismiss under ule 1?, %ut
that is a ground for demurrer to evidence*
9hen your affirmative defense is premised on lac1 of cause of action, that is the
su%7ect of demurrer to evidence* #t is not a su%7ect of a motion to dismiss %ecause
that is not one of the grounds* +ay%e that is your special affirmative defense*
emem%er" ,emurrer denied* #f the demurrer is sustained, what happens$ )he
plaintiff has the remedy of appeal* 2o, it does not constitute res 7udicata*
=ow, %efore appeal, the ruling of the lower court is reversed* 9hat happens now$
)he defendant is %arred from presenting evidence*
9ho will now decide$
#t will not %e remanded %ac1 to the egional )rial (ourt for )rial* #t is the appellate
court who will render 7udgment on the merits*
)ranslation" ,ire gin%a%ali1 ha u%os*
0therwise stated" #t will not %e remanded %ac1 to the lower court of origin*
#f that is denied, so the trial will continue* )he defendant will present evidence* 9e
have the same procedure*