CIVIL PROCEDURE -JUDGE >2.

Ultimate Objective Test (UOT):

complainant.
Look at the ultimate goal of the

MARINAS >Eg. Plaintiff entrusted his certificate of stocks to the defendant because the
former had to leave for abroad. After years petitioner comes home and asks

JUNE 13, 2013 defendant to turn over the Certs of Stocks. Defendant avoids petitioner, and
the latter goes to the company that issued the stocks and gets surprised that
CIVIL ACTION
he did not have any share in the company, that these have been cancelled
>Civil Actions: Sum of Money, Recovery of Possession,
and are now in the name of the defendant. The defendant executed a DOS
>One per major island. 69 justices in the CA (1 division = 3, 23 all in all).
purportedly from the plaintiff to the defendant forging the signature of the
Head of CA is the Presiding Justice
Plaintiff making it possible the cancellation and transfer to the defendant.
Plaintiff files a case of “Cancellation of Certificates of Stocks in the name of
4.) SUPREME COURT (SC)
defendant, Declaration of Nullity of the Deed of Sale, and Damages.
>15 justices. Can sit en banc, in different divisions depending on what is
>Using the Nature of the Action test, is it now capable or incapable of PE? It
being decided. Chief Justice of the Philippines
is incapable because there is no monetary equivalent (Cancellation,
Declaration). Thus, file this with the RTC.
>Using the Ultimate Goal (End Goal). If the End Goal is money, then the
JUNE 19, 2013 case is capable of PE. What does the defendant want in the end? He wants
FIRST HOUR the certificate of stocks back to his name. What do the Certificates of Stocks

>Original- Covers both Exclusive and Concurrent and Appellate Jurisdiction represent? Shares in the company, which means money is invested in the

>In cases of Concurrent Jurisdiction, we apply the Doctrine of Hierarchy of company. The Certificates of Stocks represent an amount (shares). Thus,

Courts, which simply means that when Courts exercise concurrent the Ultimate Objective of the Plaintiff is to get back the monetary value of the

jurisdiction, then file it before the lower court (Respect for the higher courts, Certificate of Stocks. Thus if the Ultimate Objective Test is used, then the

lesser expenses (cheaper), and most important reason is that it affords more case is capable of PE

remedies of appeal.
>There is only one case under the original and exclusive jurisdiction of the > In the Philippines, the Prevailing Jurisprudence, we make use of the

CA (Annulment of RTC judgments) Nature of the Action Test.

Expropriation Cases (Exercise of the power of eminent domain). This is a
special action wherein the State takes private property for public use upon
JURISDICTION
payment of just compensation. When NAT is applied, then the case is
incapable of PE. But if we use the UOT, then we will have to go to the
RTC
assessed value of the property, and the value would then set jurisdiction.
>Does it have an original and appellate jurisdiction? YES. Under original,
But the SC settled the issue in a case saying that it is the NAT that prevails
does it have exclusive jurisdiction? Yes. How about concurrent? Yes. RTC’s
since Expropriation is incapable of PE, thus filed before the RTC regardless
concurrent jurisdiction is with the CA and the SC as to petition for Certiorari,
of the value of the property.
petitions of Mandamus for MTCs. RTC’s concurrent jurisdiction with the SC
would involve actions affecting ambassadors, consuls, and ministers.
2.) Recovery of Real Property (or ownership of real property or any interest
therein). Eg. Acion Publiciana (Recovery of Possession) vs Acion
1.) RTC’s Exclusive Jurisdiction would cover actions that are incapable of
Reinvindicatoria (Recovery of Ownership). Whether the former or later for a
pecuniary estimation (PE).Pecuniary – capable of being equated with
real property or any interest therein, the assessed value of the real
money. (eg. Specific Performance)
property must be determined(refer to the TAX DECLARATION of the
property, whether or not covered by a title. Tax declarations are not proofs
>Eg. Contract with an Engineer to build a house. Contract period expired but
of ownership; rather, they only show that they are paying taxes over said
house is still unfinished. Four posts were agreed upon but only 3 posts were
property) Shows good faith that person intends to own the property. Real
made. A year was given for the completion; however, the year has lapsed,
property taxes are paid every year. Assessed Value is not the same as
with money having been given and the house unfinished. What are the COA
Market Value. Market Value is always higher. Market value is the amount
incapable of PE? If the COA is for the Engineer to finish the house as agreed
that the seller is willing to accept and the buyer is willing to pay. It is not
upon, then it is incapable of PE, as it is Specific Performance (Principal) plus
constant (fluctuates depending on prevailing conditions). Assessed Value,
Damages (Incidental). Thus, the case is to be filed before the RTC.
however, is constant (unless tax mapping is made depending on changes,
wherein assessed value may change). Assessed Value is used to determine
>2 VIEWS/TESTS of determining whether a case is incapable of PE.
Court Jurisdiction because it is a constant figure.
>1. Nature of the Action Test (NAT): Read the complaint (Eg. Specific
Performance “I want my house completed”). Above example is incapable of
>If the assessed value is above P20,000.00, file before the RTC. If the
PE
assessed value is P20,000.00 and below, file before the MTC. This refers

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only to places outside Metro Manila.>In Metro Manila, above P50,000.00
for RTC, and P50,000.00 and below for MeTC. Standards of Living in
Manila is much higher.
>Remember, “or any interests therein”. Eg.Moving Fence. Plaintiff files a
case for Recovery of Possession of land encroached upon. Assessed value
of the entire property of the plaintiff is P50,000.00. Thus, petitioner filed
before RTC. Defendant moves for Motion to Dismiss because he alleges
that the RTC has no jurisdiction. Defendant alleges that 50m2 of land does
not amount to P50,000.00, but only P5,000.00, thus to be filed before the
MTC. Therefore, defendant alleges that the case is to be dismissed for lack
of jurisdiction. (Can the court, on its own, without any motion, dismiss a case
when it has no jurisdiction? YES). You are now the Judge. Will you grant the
motion? No. Deny the motion to dismiss because the court has jurisdiction.
The Law says that, “recovery of property or ownership or any interest therein
– the assessed value prevails.” So it doesn’t matter whether you are after
the entire property or just a portion. What you look at is the assessed value
of the entire value of the property. The law was not created in order to
provide that every time there is a portion involved, mathematical calculation
is then called for. The intent of the law is to take the entire assessed value of
the property into consideration.
>When asked in the quiz or exam about the problem above, answers
must always be authoritative (must have basis). Avoid using phrases
such as “in my opinion” because no one cares, unless you are an
expert witness. When asked to rule on a motion, either grant or deny.
NEVER DISMISS. Eg. I will deny the motion because the RTC has
jurisdiction. Under the law granting jurisdiction to courts, it states that
recovery of ownership or possession of any real property or any
interest therein, the assessed value should determine the jurisdiction
of the court. Even if he is only claiming an interest in the property, the
law (no need to give specifics) says that it is the assessed value of the
entire property to be considered. Since the assessed value of the
entire real property is P50,000.00, which is above P20,000.00, then the
RTC has jurisdiction.MAKE YOUR ANSWERS COMPLETE,
COMPREHENSIVE, and AUTHORITATIVE.Avoid qualifying if facts are
clear.
SECOND HOUR
3.) Actions in Admiralty or Maritime Jurisdiction. Law of the
Sea.Jurisdictional amount of Courts: Look at the amount of the claim. If
the claim is above P300,000.00, then it belongs to the RTC. (In Metro
Manila RTC, above P400,000.00). However, if P300,000.00 and below, then
MTC (In Metro Manila MeTC, P400,000.00 and below). Eg. Your cargo is
jettisoned off of a ship and you want the shipper to pay it. Determine the
amount of the cargo to arrive at its jurisdiction.
4.) Matters of Probate, whether testate or intestate (settlement of estates).
Apply the same Jurisdictional Amount. (No will shall pass property unless
probated. 2 stages, 1st – whether will was executed as required by law. 2nd-
). Look at the “GROSS VALUE” of the Estate of the deceased (total value).
Afterwards, apply jurisdictional amounts.
5.) Claims for damages (and Monetary claims- contracts involving money,
like a Promissory Note) or Actions involving personal property (movables).
Eg. Car borrowed but was never returned, then file Recovery of Personal
Property (No theft, because property was lent “with consent”). Basis would
be Jurisdiction Amounts (amount of damages or value of personal
property). If Monetary Claims, to determine jurisdiction, exclude the
interests, the penalties, the surcharges. It is only the principal amount that
will determine jurisdiction. But if damages, add everything to determine
jurisdiction.
>Eg. Collection of sum of money (MONEY CLAIM – PROM NOTE).
Principal obligation is P150,000.00. Since there is delay, interest is in the
amount of P50,000.00. In the Promissory Note, there are also Penalties and
Surcharges for delay amounting to P100,000.00. Attorney’s fees of
P107,000.00. Total of P407,000.00. Where to file? MTC, because we will
only consider the principal amount of the loan which is P150,000.00. The
term used by the law is “other cases where the demand exclusive of interest,
damages, attorney’s fees, litigation expenses….”.
>Eg. But if it is a claim of damages… Actual damages of P150,000, Moral
damages of P150,000, Attorney’s Fees of P107,000, amounting to
P407,000.00. File before the RTC. Include all because we are dealing with
damages. (No interests because – damages). Total amount determines
jurisdiction.
6.) All cases not falling within the jurisdiction of any other courts, tribunals,
quasijudicial agencies, or administrative agencies, file before the RTC –
Forcible Entry, Damages, Specific Performance, etc.
>Take note that no lawyer must appear as a counsel before the Lupon. What
if the plaintiff or any of the parties is incapable/ is disabled/ is incapacitated?
Then can be assisted by a next of kin who is not a lawyer.Supposing there is
an exception (eg. Residents of different Cities/ Municipalities), then state that
“this case has not been referred to the Lupon because plaintiff and defendant
are residents of different Cities/Municipalities.”
2.) SECOND EXCEPTION:
>One of the Parties is the Government or any subdivision or instrumentality
thereof. If you are suing the Gov’t, Municipality, or Brgy, then bring the action
to Court. State in the complaint that, “This has not been referred to the Lupon
because one of the parties is a Gov’t institution/subidivision/instrumentality”
3.) THIRD EXCEPTION:
>One of the Parties is an Artificial Person (A creation of law, eg. Corporation,
association, partnership, organization, etc.).State in the complaint the above
reason.
4.) FOURTH EXCEPTION:
If the properties subject of the case are located in different
Cities/Municipalities (Real Properties)
VENUE
1.) BARANGAY:
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>If parties reside in different Brgys (Same City/Municipality), then complaint
may be brought before either BrgyLupon (under the law, any of the 2
Lupons).
>For enforcement of settlement, it is much better that said complaint is
brought before a defendant’s Brgy.Eg. Plaintiff (Brgy.ABC) and Defendant
(Aurora Hill).May 1, 2013, demand letter was ignored. Plaintiff brings case
before Aurora Hill Lupon. Lupon calls for the defendant and a settlement is
reached. Plaintiff allows defendant to pay in installment (1st installment June
10, and every 10th of the month thereafter P20,000.00). Defendant binds
himself to do so. Settlement signed by plaintiff and defendant. (The moment
a settlement is reached in the Brgy, it becomes final and executory from the
execution of the settlement within 10 days. If neither would question or
repudiate the settlement after the end of the 10-day period, the agreed
settlement becomes final and has the binding force and effect of a decision
between the parties. If there is repudiation, then get a Certificate of no action
and file the case in court.
>Whose responsibility is it to enforce the settlement in the Brgy? The
Lupon.The Lupon will find it easier to enforce settlement against their own
constituent and thus avoid inconvenience and delay.
>Another scenario. Eg. Defendant pays for 2 months but then fails to pay
later. The BrgyLupon has 6 months to enforce settlement. 6 months went by
and still no payment. Brgy. Is helpless and can’t enforce. What is the
Remedy of plaintiff? He can now go to Court.File for the “Enforcement of a
Brgy Settlement”.(Like implementing a decision).If the COA arises from the
business place, workplace, or school, the case can be filed the the Lupon
where said places are located.
2.) COURT (with COA)
>Jurisdiction- Authority of a court to hear and determine a case.Authority is
given by the law (BP 129 as amended by RA 7651). Jurisdiction can either
be Original or Appellate. Original- Court can hear it for the first time.
Exclusive Original Jurisdiction- A Court that can solely hear a case.
Concurrent OJ- Several Courts can hear a case. Appellate- Case has been
decided by another court but a second look is given
LEVELS OF COURTS
1.) FIRST LEVEL COURTS(MTC)- Formerly Justice of Peace. They all
have the same jurisdiction
>Municipal Trial Court (MTC) – In capital towns. Municipal Circuit Trial Court
(MCTC)- Two or more adjoining Municipalities are circuitized and grouped
together where there is only one Court, located in the town/municipality
closest to civilization or the town that has the biggest population. (MCTC of
Municipality A, Municipality B, and Municipality C, etc). Metropolitan Trial
Court (MeTC)- Only in Metro Manila (only one court with several branches).
Municipal Trial Court in Cities- One in each city with several branches
2.) REGIONAL TRIAL COURT (RTC)- Formerly referred to as the CFI
>Country is divided into Judicial Regions (Baguio belongs to the 1st Judicial
Region). One RTC for each Judicial Region, with several branches.
3.) COURT OF APPEALS (CA)- Formerly IAC
7.) Intracorporate Controversies, Intercorporate controversies, disputes
between stockholders against stockholders, disputes between stockholders
against the corporation, etc. All under the jurisdiction of the RTC (previously
under jurisdiction of SEC)
>Appellate Jurisdiction of RTC- Over decisions of the MTC within their
respective territories.
MUNICIPAL TRIAL COURT:
>Does the MTC have Original and Exclusive Jurisdiction? Yes. How
about Original and Concurrent Jurisdiction? None. How about Appellate
Jurisdiction? None. (Ejectment Cases) Forcible Entry (Action interdictal),
Unlawful Detainer.Do not look at the assessed value. Forcible Entry-
Illegal intrusion of property, unlawful deprivation of property thru (Force,
Intimidation, Strategy, Threat, Stealth). Unlawful Detainer- Lawful entry.
Upon renewal of contract, owner refuses and asks tenant to leave. Tenant
refuses to leave even with non-renewed lease contract. Illegally detaining
property? YES. Owner can file a case of unlawful detainer. Since tenant
also refuses to pay rent, this accumulates up to P600,000.00. Can the MTC
take jurisdiction? YES. Regardless of the amount, because the case belongs
to the original and exclusive jurisdiction of the MTC. Forcible Entry and
Unlawful Detainer are also special proceedings to be discussed in meeting
before the final exams (Under Rules on Summary Proceedings). Recovery of
Possession/Ownership of Real Property with an assessed value of
P20,000.00 outside Metro Manila (P50,000.00 and below within Metro Manila
MeTC). Admiralty and Maritime Jurisdiction with a Jurisdictional Amount of
P300,000.00 and below (P400,000.00 and below MeTC). Probate of Estate
– Gross Value of the Estate as to Jurisdictional Amount.Damages –
Jurisdictional Amount.
FAMILY COURTS:
>Most cases under said courts are mostly criminal procedures or under
special proceedings, and not under civil procedures. The Family Courts, as
envisioned by the law, have not yet come into existence ( no budget daw).
So the SC designated RTCs to be Family Courts.
>There should be a Family Court in each City and Province (Capital Town) of
the Country. If the Capital Town is also a City, then that is where the FC is to
be found.
>Jurisdiction in criminal cases- Where the accused is a minor / victim is a
minor.
>RTC – 6 years, 1 day and up. MTC – 6 years and below.
>Eg. Crime is Reckless Imprudence (under Art. 365 of RPC ) resulting in
homicide. A 4-year-old was sideswiped. Parents file a criminal case.
Accused is an adult. Accused raised Motion to Dismiss for lack of jurisdiction
daw. He says that he is not a minor, and that private complainant are not
minors as well. NO. Victim is a minor (Law uses the term “victim”, not private
complainant). There is a difference between victim and private complainant.
(MTC has jurisdiction over all reckless imprudence cases regardless of the
resulting injury.
>When does the RTC have jurisdiction over Reckless Imprudence? When
accused abandons the victim, or death occurs, and at the time of Reckless
Imprudence the accused was violating any traffic laws).
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>Eg. There are 5 accused ages 16, 21, 23, 25, and 26. Where to file the
case? Family Court.
>Civil Cases- In the Family Court, a civil case may be filed as to Annulment
of Marriage, Legal Separation, etc. Anything involving the Family goes to the
Family Court.
SPECIAL JURISDICTION OF THE MTC
>In criminal law, every person has the right to bail (unless for capital
offenses and evidence of guilt is strong).
>Eg. A person is charged with homicide. Is homicide bailable? Yes. Murder
is not. But we can apply for bail and prove that the evidence of guilt is not
strong. Now accused is in jail and wants to post bail. But no judges are
available. The only one left is an MTC judge. However, the MTC has no
jurisdiction over Homicide (Reclusion Temporal – 12 years, 1 day to 20
years). Still, accused wants to post bail. (It’s easier to kill your wife than to
kill her). The MTC judge can step in – Special Jurisdiction – only in the
absence of all the RTC judges.
JUNE 20, 2013
>Land Registration – RTC (Regardless of the Assessed Value, which does
not need to be alleged). Proceedings in rem (action versus the whole world)
COA- Now, with a COA, we can now file a Civil Action
>RULE: 1 COA is equal to 1 Civil Action (1 right violated, 1 civil case to file.
Avoid Forum Shopping)
>Eg. Plaintiff files a case against defendant for “Sum of Money” based on a
PN. That was the first case filed. In this first case of “Sum of Money”, the
plaintiff in complaint was collecting the principal loan of P100,000.00. Since
it is P100,000.00, where to file? MTC. So he files it there. Judgment is
rendered in his favor. After he won, he realizes how stupid he is because he
only asked for the principal amount. He wonders about the interests, the
surcharges, the attorney’s fees, etc. So, he files a second case against
same defendant for “Sum of Money” collecting the interests, surcharges,
penalties, and attorney’s fees emanating from the principal loan. What did
he do? He broke the rule of 1COA=1CVA. What happened was
1COA=2CVA. Is that allowed? No. That is the concept of “SPLITTING A
SINGLE CAUSE OF ACTION”.
>There is a “SPLITTING” if there is only 1 right violated. There should only
be one case related to one right violated. In the first case in the above
example, the right of the plaintiff to be paid was violated. How about in the
second case? The same – The right to be paid. When we say “the right to
be paid”, it does not only include any principal amount, but all subsequent
amounts by virtue of the principal amount because when there is no principal
amount, then there are no interests, surcharges, penalties, or attorney’s fees
to talk about. The only reason why the latter came into existence is because
of the principal amount. Therefore, there is only 1 COA = 1 CVA.
>What is the result then when there is a “SPLITTING”? THE SECOND
CASE WILL BE DISMISSED. On what ground?None. (Refer to Rule 16
again and Rule 2 –Lack of COA). However, since splitting does not belong
to any of those grounds mentioned, the 2nd case is dismissed due to RES
JUDICATA in relation to the first case disposed of. If the first case is still
pending at the time the second case is filed, the GROUND FOR DISMISSAL
IS LITIS PENDENTIA.
>One COA is equivalent to only one Civil Action. For every right violated, we
can only file one case to enforce that right that has been violated.
Otherwise, if we split a single COA, the second case will be dismissed.
>However, there is also a rule that says 2 or more COA is equal to 1 CVA.
>Always remains 1 CVA, regardless whether 1 or several COA. Splitting of
COA vs Joinder of COA
>Joinder of COA: The regular Joinder – one plaintiff and one defendant, but
plaintiff has several rights violated by the defendant. Because he has
several rights violated, he can file one case for every right violated. This is to
avoid multiplicity of suits (avoid splitting).
>Eg. The plaintiff wants to sue defendant for: Unpaid loan (right to be paid),
failure to return car (recovery of personal property – right to recover
property). Two separate cases may be filed. However, under Joinder, he
can file 1 case – For collection of sum of money and recovery of personal
property.
>Eg. A, B, and C are all passengers of a bus. Along the way, the bus met an
accident (bumped the mountain) so passengers were not able to reach their
destination and also suffered injuries. Passengers wanted to file a case of
damages against bus company (each sustaining damages amounting to A-
100k, B-100k, and C-100k). Is it possible for each to separately file cases
against bus company? Yes. (All MTC due to amount). However, can the 3
passengers file together? Yes. Joinder of Actions. Where? Individually,
MTC. However, if they jointly file it and its all for damages, apply the “Totality
Rule”: In cases of monetary claims and damages, the total amount of the
claim shall determine the jurisdiction of the court (100k + 100k + 150k =
350k, thus RTC). This joinder of actions, however, is only permissive.
>Joinder of Actions rule Limitations.
>First Limitation is that there should be a proper joinder of
parties. Is there a common question of fact and law? If yes, then there is
proper joinder of parties. Second, there must be a common question of law.
Is there? Yes. Breach of contract of carriage.
>Eg. Plaintiff is an owner of a hardware store. He discovers in
his books that there are several unpaid accounts. A has an unpaid account
amounting to P10,000.00 (former employee – ran away). B also has several
unpaid amounting to P20,000.00 (loan - ran away and diszappeared). C
has an account amounting to P30,000.00 (roving salesman, did not remit
payments – agent). Can hardware store file individual cases against
defendants separately? Yes. But can he file one case pursuant to the joinder
of actions rule against A, B, and C? No. Because no common question of
fact and law. Thus, store owner must file separately.
>Second Limitation- Jurisdiction. However, such limitation
would usually come when one case belongs to the MTC while the other to
the RTC.
>Eg. Plaintiff – sum of money (P400,000.00 - RTC) and recovery
of possession of a parcel of land (assessed value of P10,000.00 -MTC ).
Since plaintiff believes that the land case is more controlling, he files both
cases in the MTC (for sum of money and recovery of possession). Is there a
proper joinder? None. The MTC will dismiss the first case (lack of
jurisdiction, and not misjoinder) and proceed against the 2nd case.
>Eg. A, B, and C. (None. Separate jurisdictions under the rule,
resulting to “Misjoinder of Causes of Action”. The rule says that Misjoinder is
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not a ground for dismissal of the case, but the court will separate the
misjoinder, and the court will proceed against each.
>Eg. Plaintiff (Recovery of Property – P30,000.00 and Sum of
Money – P100,000.00). Plaintiff wants to join these COA so he files them
before the RTC bec assessed value of the property is P30,000.00 which is in
the jurisdiction of the RTC. However, the sum of money is within the juris of
the MTC. Can this be? Yes. Because the RTC is a court of General
Jurisdiction – can award amounts lower than it’s jurisdictional amount. Is
there a limit of the amount that the RTC can award? None. The MTC has a
limit though.
>Basic Rule- Jurisdiction is conferred by law (BP 129 as amended by RA
7651), but determined by the allegations in the complaint. It is not for the
parties to decide as to what court to file the case in.
>Eg. Complainant claims total damages in the amount of P450,000.00. By
reading the complaint and applying the Nature of the Action Test, we see
that the amount is P450,000.00, which should be filed in the RTC according
to the law. Look at the allegation for determination of jurisdiction. RTC
cannot suddenly lower the allegation and pass it to the MTC. The RTC must
accept based on the allegation. After trial, a decision is rendered wherein
plaintiff has not totally proven his/her COA. RTC judge found that plaintiff is
only entitled to P100,000.00. The RTC thus may award P100,000.00 which
is lower than it’s jurisdictional amount.
>Eg. Complainant – P100,000.00 filed before the MTC. It was then found
out as supported by evidence that damages amounted to P350,000.00. Can
MTC award said amount? NO. P350,000.00 is beyond its jurisdictional
amount. Res judicata would set in, and plaintiff can’t file another case to
recover the increased amount.
>If a case is dismissed for lack of jurisdiction, said case can be filed in the
court that has jurisdiction.
JUNE 25, 2013
FIRST HOUR
> Recall Splitting and Joinder, both concerning the avoidance of multiplicity
of suits.
>Proper Joinder of Parties – There must be a common question of fact and
law (common link).
>Joinder – sum of money / damages – totality of sum of claims shall apply
(totality rule).
>Limit to joinder – Jurisdiction – Can’t join 2 COAs with different jurisdictions
– applies only in the MTC, but can be done in the RTC, so long as one COA
belongs to the RTC (Court of General Jurisdiction).
>Plaintiff (recovery of personal property – P500,000.00 – RTC). Further
claims that defendant has not paid him his salaries for the duration of his
employment as a boy Friday, claims amounting to P300,000.00. He joins
both in the RTC. Is this possible? No. Because salaries, ER-EE relationship
fall under the jurisdiction of the NLRC. You cannot use general jurisdiction of
the RTC because it has no jurisdiction over claims arising from employer-
employee relationships because such belongs to another jurisdiction. No
joinder. RTC will take cognizance over action for recovery of personal
property but dismiss the claims for unpaid salaries for lack of jurisdiction.
>Third Limitation- Venue. Do not confuse Venue with
Jurisdiction.
>Jurisdiction – What court? MTC?RTC? That is jurisdiction.
>Venue – Where is that Court? Place / Address
>Eg. RTC (jurisdiction), La Trinidad, Benguet (venue).
>Distinguish whether action is a real action or a personal action.
>Real Action – Anything involving real property. (eg. Recovery of
possession of real property / ownership / accionreinvidicatoria /
acionpubliciana / judicial forclosure of REM
>Rule for Real Action – Where the real property is located. If the
real property is in Baguio, then the venue must be in Baguio. Eg.Action for
Recovery of a Real Property. The assessed value is P10,000.00, in Baguio
City. Where to file? MTC of Baguio.
>Personal Action (A real action is any action involving real
property. All others are PERSONAL) – where no real property is involved.
Eg.Specific performance, collection of sum of money, damages, breach of
contract. As to venue, it is either plaintiff’s residence or defendant’s
residence, at the option of the plaintiff. If there are several defendants,
plaintiff must choose the majority address where most of the defendants
reside.
>Residence – Where person is actually found. As opposed to
domicile, this is where a person intends to return to.
>Plaintiff (damages – 500k). Plaintiff is a resident of Baguio and
defendant is a resident of LTB. Plaintiff must file case before the RTC, either
in Baguio or LTB.
>There are special rules on venue, eg. Settlement of estate –
multiple properties comprising estate. Where to file? Place where he stayed
upon death. The moment the court takes cognizance, excludes all other
courts. What if he died abroad but his properties are in the Philippines? How
can his heirs settle his estate? Where can they file? Where any of his
properties are located, and when such court takes cognizance, it is to the
exclusion of all other courts.
>What is the rule when there is a nonresident plaintiff/defendant?
When plaintiff is a non-resident, he may file the rule on real action (So that
court can acquire jurisdiction over the res – the thing or subject matter -
property), but as to personal action, must file it where defendant resides in
only.
>How about non-resident defendant? How can a court acquire
jurisdiction over said person? If real action, same rule. If personal action,
then where the plaintiff resides.
>How is venue a limitation on joinder of parties? Plaintiff is a
resident of BC and defendant a resident of LTB. He has a case for damages
against defendant in the amount of 500k (RTC). However, aside from the
damages, he wants to recover a parcel of land located in Bauang, LU. The
assessed value is 35k (RTC). All belong to the RTC. Can plaintiff join
damages and recovery of property? YES. But if he joins them, then where
shall he file? RTC of LU, because the “res” is located there. If venue is
wrong, then there is improper venue. He is bound by the res. But, he can
also file cases separately. Limitation arises when we join a real and a
personal action. The rules are clear as to where real actions are to be filed.
What if property is LU but the assessed value is 5k only (MTC). Can it be
joined with the case for damages in Baguio? No. RTC yung nasa Baguo.
But supposing damages in Baguio amounts to 200K (MTC), then both can be
joined in LU where the res is located. When we join a real action and a
personal action, we have to follow the rules (Place of real action).
>Fourth Limitation- There is no joinder of an ordinary civil action
and a special civil action.
5
 >Special Civil Action (Rule 62 on interpleader up to Rule 71).
Special because they have their own rules and peculiarities that are not
present in ordinary civil cases, making them impossible to join with ordinary
civil actions.Eg. Lessor files a case of unlawful detainer (Special) against
tenant, plus damages as to unpaid rent and reasonable attorney’s fees.
However, lessor discovers that tenant accumulated unpaid water bills, phone
bills, etc totaling to 200k. Is there a proper joinder? No. Unlawful detainer is
a SCVA, while damages as to bills are OCVA. The only allowable damages
under SCVA are unpaid rent and reasonable attorney’s fees, as under the
rules. SCVA are usually dealt with summary procedures (no more trial).
SECOND HOUR
>PARTIES
>Plaintiff / Petitioner – person who files the case. Plaintiff – OCVA (initiated
by the filing of a complaint, while Petitioner, as there is a right violated – as
opposed to SCVA (initiated by the filing of a petition – not that because a
right has been violated but because you want to establish a right.). Criminal
cases – Plaintiff parin (People of the Philippines).Against whom?Plaintiff as
to defendant, while petitioner as to respondent.
>Kinds of parties :
>Indispensible party- In every case, there has to be an
indispensible plaintiff (the very person who claims that his right has been
violated) and an indispensible defendant (a person who is claimed to have
violated the right)
>Necessary party- For complete relief (eg. B)
>Joint vs Solidary. X and Y are debtors of C.
>Eg. C wants to file a case against X who is a joint debtor of Y
(joint obligation with Y). Is the relief complete? No. Must include Y to
complete relief. However, to sue X is enough. Y is a necessary party.
>Nominal Party (Pro Forma)- According to rules, they should be
included because of circumstances of the law.
>Eg. If a case is filed (Certiorari, Prohibition, and Mandamus)
because a judge allegedly gravely abused his discretion. Who are the
parties? Complainant is the petitioner (indispensable plaintiff). And the
defendant (private defendant – indispensible defendant) would be the person
who benefited from the judgment of the judge (public respondent – nominal
defendant). Defendant – private respondent is the one who is supposed to
file an answer, not the public respondent. Judge may make an answer when
there are direct attacks. Otherwise, pro forma lang.
>Married woman – If the plaintiff is a married woman, she must be
assisted by the husband versus the defendant (plaintiff, assisted by husband,
versus defendant). If the married woman is the defendant, she must also be
assisted by the husband (plaintiff versus defendant, assisted by husband.
(Civil Code- husband is the administrator, head of the household, etc) In this
case, the husband is the nominal or pro forma party. A married woman can
sue alone – suits involving her husband, paraphernal properties, personal
profession, quasi-delicts, or if they have been living away from each other for
at least 1 year (separation de facto).
>Quasi-parties – Not actually a part of the suit, but suit is for their
benefit. Eg. Class suit- two requisites. First, there must be a common or
general interest among everybody. Second, they are too numerous that it
would be impracticable to bring them all to court.
>Eg. There is a factory in the middle of the community. The
factory emits heavy smoke in a radius of 100 meters, affecting 500-1000
individuals. Can they all file a complaint (abatement of nuisance)? Yes, via
class suit (Common interest is to stop the factory, and numerous parties).
There must be representatives for the class suit (specified). “President,
Secretary, and Spokesperson (indispensible plaintiffs) in a class suit (the
others who are represented – quasi-parties) versus the smoke-emitting
dragon (indispensable defendant)”. The courts shall determine whom shall
be rightfully represented. If it includes claims for damages, can’t be filed as a
class suit because there is no “common or general interest”.
>Eg. Numerous squatters are occupying a property. Can
they be sued in a class suit? No. (They may be too numerous, but
there is no common or general interest). Each squatter is interested
in the land that they are occupying. Remedy is to file cases against
them individually. Action may also be joined.
>Can domestic corporations be parties? Yes. How about
foreign corporations? Can they sue and be sued in the Philippines?
(can’t be brought to the Lupon, duh). Determine whether it is doing
business in the Philippines. If yes, is such business legal? If it is
legal, then they can sue and be sued in the Philippines. If it is
illegally doing business (no necessary authority or license), then they
can be sued but they cannot sue. Supposing it is a foreign
corporation that is not doing any business, then it cannot be sued,
but it can sue in an isolated transaction (Universal Studios versus
Pinoy pirate). Foreign corporations must state their capacity to sue.
JULY 11, 2013
>In criminal procedure, the judge has the power of outright dismissal of
cases. The moment the judge sees no probable cause, he can dismiss it
outright. But if there is, then he may order the issuance of a warrant of
arrest.
>In civil procedure, can the court dismiss the case motupropio? Yes, but only
on 2 grounds: Lack of jurisdiction over the subject matter and prescription.
>Lack of jurisdiction over the subject matter. Jurisdiction is conferred by law
and determined by allegations in the complaint. Eg. Filed in the RTC, but is
a complaint for unlawful detainer. The RTC can dismiss the case outright as
the case ought to have been filed in the MTC. Or claims for damages in the
MTC for the amount of 500k – can be dismissed outright due to lack of
jurisdiction over the subject matter.
>Prescription. Period within which to file the case, otherwise forever barred.
The court may dismiss on the grounds of prescription if the material dates
are apparent on the face of the complaint. Eg. Case of recovery
possession, and plaintiff states “sometime in 1940, the predecessor of the
defendant entered the property, which at that time was in the possession of
the plaintiff’s predecessor’s interest. After several negotiations, defendant’s
predecessor refused to vacate. Etc. It is now respectfully prayed that
defendant and all of his successors in interests be ordered to vacate the
properties. Dated July 11, 2013.”Are there material dates mentioned? Yes –
1940s. Clearly, prescription has set in (30 years for bad faith on real
properties – Open, continuous, exclusive, notorious, uninterrupted, adverse –
can ripen to ownership). Spells out that COA of plaintiff has expired.
6
>Eg. Motion for reconsideration for denial of Petition for mandamus , should >In the return, sheriff must justify substituted service of summons.
be filed 60 from denial.Filed beyond the 60 days, outright dismissal. Material >What if summons did not really reach defendant (was given to a qualified
dates were shown on the face. person at home but said person lost it or forgot about it)
>Supposing there is no allegation in the complaint as to specific dates >Date of reckoning of 15-day period – signature of the receiver on the face of
“sometimes in the distant past, defendant’s predecessor in interest took the summons
possession of the disputed land” – the court cannot immediately dismiss the
case. The court now takes cognizance of the case. However, court cannot
proceed without having jurisdiction over the person of the defendant. JULY 17, 2013
>In a criminal case, the court acquires jurisdiction over defendant via warrant
of arrest.
FIRST HOUR
>In civil cases, there is “Summons”. Summons is a writ issued by the court
>Warrant of arrest is to Criminal Procedure, whereas Summons is to Civil
directed to the defendant for the latter to answer the complaint. Once
Procedure.
properly served, writ entitles the court to have jurisdiction over the person of
>Summons is to acquire jurisdiction over a defendant.
the defendant. Defendant is ordinarily given 15 days to respond to the
>A case cannot proceed when court does not have jurisdiction over
summons (in summary procedures, rules are different).
defendant – so a summons must be served.
>Please refrain from filing a motion to dismiss. Instead, include them as
>A copy of complaint is attached to summons – served by sheriff.
affirmative defenses to the answer.
>Modes:
>How many copies of the complaint to be filed? One for the Court, and one
1) Personal Service – Priority Mode. If all efforts have been
for each summons (summons is attached to the complaint) served to the
exerted – failed – then:
defendant by the “Sheriff” of the Court.
2) Substituted Service of Summons – consist of bringing
Modes of Service of Summons:
summons to home, office, or place of work of defendant. To constitute it as
>First Mode (Priority Mode) – Personal Service of Summons: Do not
valid, home-person of sufficient age and discretion residing in the place
confuse this with personal service of pleadings. In this case, the sheriff goes
therein, office/place of work – competent person in charge. Those are the
to the defendant and hands to the latter the summons. Then, the defendant
only valid means for substituted service of summons. It doesn’t matter
signs on the summons indicating the date of signing (reckoning point of 15
whether defendant himself receives summons. Court thus acquires
days for defendant to answer – Just add 15 to that date to arrive at the
jurisdiction over the person of the defendant.
deadline). Sheriff must give this directly to the defendant. The rule says –
“By giving it personally to the defendant or by tendering him…”
>3) Constructive Service of Summons – available in any action (in
>Tender – Sufficient, even if defendant refuses to accept. The sheriff has to
personam, in rem, quasi rem) provided there is a resident defendant (the
make a “return of summons”. If able to give it to defendant personally – “this
defendant resides in the Philippines but his whereabouts are unknown, or he
is to make a return stating that the summons with the attached copy of the
is an unknown defendant .
complaint has been served to the defendant personally on July 13, 2013 as
>Criminal actions – John Doe. How about in Civil Actions? There are
can be seen on the signature of the defendant appearing on the face of the
unknowns as well. Eg. Someone builds a structure in a private property, but
summons”.
builder is unknown. Upon filing of civil action, who can be the defendant?
>Sheriff also furnishes a copy of the “return of summons” to plaintiff’s
Presumably, such person is living in the Philippines, but person is unknown
counsel – this is to guide the plaintiff’s counsel that such has been served as
or cannot be found.
well as with the 15-day period. The moment there is a lawyer, service should
>How is Constructive Service done? Via PUBLICATION. However, Leave of
be done on the lawyer. Service on the lawyer is service to the client.
Court or permission from the Court is required. What then should be filed for
>What if defendant refuses to take the summons? How should this be
such? File for “Motion for Leave of Court” followed by whatever it is that you
indicated in the return of summons? “I went to serve it on the defendant
are asking a permission for. Eg.Motion for Leave of Court to summon
personally but he refused to receive it and so I tendered it to him”.
defendant by Publication.
>Priority Mode- Sheriff must exert all efforts and exhaust all remedies
>Explanation is needed (eg. Whereabouts of defendant is unknown). If the
possible to serve it to the defendant personally.
court finds merit to motion, it will direct summons by publication (newspaper
>If all possible remedies have been exhausted, then use the next mode.
of general circulation in the Philippines –Phil Star, Daily Inquirer, Manila
>Second Mode (Substituted Service of Summons) – Since it cannot be
Bulletin, etc). Very costly.
served to the defendant personally, then to somebody else (home, office,
>First, summons is published. Next, the entire complaint. A newspaper, in
place of work/business). Sheriff must outline in detail all the approaches
order to publish legal notices, must acquire accreditation (submit a petition
done to serve the summons to the defendant personally.
for accreditation with office of executive judge in a province where they
>Home – qualification – Give it to a person of (1) sufficient age and
publish – however, if accredited in a province within a judicial region,
discretion, (2) residing therein.
newspaper can’t get accreditation in another province belonging to the same
>Office – qualification – Serve it to the competent person in charge of the
judicial region. However, city within a province is not prohibited.
office. Usually, the manager, or office secretary, managing partner, whoever
>Requirements of accreditation: Length of period of circulation – must have
is in charge.
been in circulation for the past year, and judge determines whether to be
>Prisoner – Serve it to the warden. The warden will give it to the prisoner.

7
accredited or not – submit all that have been put into circulation plus
accreditation fees. Actions affecting public interest – need for publication.
Accreditation needs to be renewed every 5 years (subject to yearly
compliance with fees). Valid business permit.
>If last known address cannot be determined, then Newspaper of General
Circulation “in the Philippines”.
>Publication – once a week for three consecutive weeks
>Substituted Service – 15 days to answer. But for Publication – 60 days
from the last publication to answer.
>Does it matter whether defendant reads publication? Is jurisdiction
acquired? No, jurisdiction is not acquired. But why bother with publication?
TO COMPLY WITH REQUIREMENT OF DUE NOTICE.
>4) Extraterritorial Service of Summons – Outside of our territory. This
mode of service only applies to nonresident defendants. As compared to
constructive summons which applies to resident defendants, extraterritorial
service has limitations. Applies only to actions affecting the STATUS of
CLAIM.
>Eg. Plaintiff files a case for Sum of money (Personal Action). 1 million.
Defendant is out of the country (nonresident). Files a Motion for Leave of
Court to issue summons by Publication. Does the action affect the personal
status? No because it is a Personal Action. It does not affect the status of
the plaintiff, neither does it relate to the property of the defendant in the
Philippines.
>Eg. A Filipina meets a foreigner. Latter meets the former in the
Philippines. Foreigner leaves with promises of bullshit and stuff, but he was
never heard of again. The marriage was valid, so Filipina’s status remain as
“married”. She no longer can’t marry another. She then files for Annulment.
But defendant is not a resident. Can an extraterritorial summons then be
served and resorted to? Yes, because her status is affected. She wants to
go back to having a single status.
>ESS is also applicable to those that relate to PROPERTY OF DEFENDANT
IN THE PHILIPPINES.
>Eg. Recovery of possession of property against defendant (nonresident).
ESS can be resorted to, so long as Res is within the Philippines.
>How can ESS be resorted to then in a Personal Action (Claim for sum of
money)? Apply for a Writ of Preliminary Attachment – look for properties of
defendant in the Philippines and ask Court to bring properties of defendant in
the Philippines under Custodia Legis. Then, Personam action becomes
Quasi-Rem (because properties are now involved). Once attached,
defendant cant do anything about the properties. Upon favorable action of
Court, such properties may now be sold in a public auction to the highest
bidder. The proceeds shall now pay the obligation of the defendant.
>The above are the only 2 actions where ESS is allowed.
>How can ESS be done?
>1)Personal Service – Send sheriff to where the defendant can be found
(impractical). Or, resort to PUBLICATION. However, a copy of the
summons with the attached complaint must be sent to the last address of the
defendant (WON defendant receives it – doesn’t matter). Almost similar with
the summons via publication. Motion for Leave of Court must still be
acquired. ESS via publication – Newspaper of general circulation in the last
known area of residence of defendant. Once a week for 3 consecutive
weeks, defendant has 60 days from the last date of publication to file a reply.
Doesn’t matter WON defendant reads it, so long as due process requirement
(notice) has been complied with.
>The moment summons is served on defendant, Court acquires jurisdiction
over defendant.
>In a criminal court, how can the Court acquire jurisdiction over an accused
even without a warrant of arrest? Via voluntary surrender (goes to
Court).Commitment Mitimus.
>How about in Civil Procedure, is there a voluntary surrender? >>>
VOLUNTARY APPEARANCE.
>VOLUNTARY APPEARANCE- Any act of defendant by which he submits
himself to the jurisdiction of the court, without the court having acquired
jurisdiction over him.
>Eg. Defendant hears of a case filed against him. He has not received any
summons yet but he immediately files an answer. That would be considered
as a voluntary appearance.
>Or, summons was issued (but defective), and defendant files an answer. Is
the defect cured? YES. Tantamount to voluntary appearance.
>Eg. Counsel of defendant enters an appearance with Motion for extension
of time to file an answer. Extension was then granted. Thereafter, counsel of
defendant files a motion to dismiss grounded on invalid substituted of
summons because it was served to a visitor of the defendant’s house.
Should the motion to dismiss be granted? NO. Because when the counsel
entered his appearance as counsel of defendant to file motion for extension
of time, it was TANTAMOUNT TO VOLUNTARY APPEARANCE. You
cannot go to court and ask for a relief and subsequently question jurisdiction
over defendant’s person. Any act of defendant which would tend to show
that he is accepting jurisdiction over his person either by voluntarily filing an
answer or asking for a relief – Tantamount to voluntary appearance.
SECOND HOUR
>Now that court has jurisdiction over defendant, anona?
>Defendant has four choices:
1) Ignores (Doesn’t file an answer)
2) File a Motion for a Bill of Particulars (MBOP)
3) File a Motion to Dismiss
4) File an answer
>1) Ignores- 15-day period has lapsed and there is no answer filed. Would
plaintiff know that no answer has been filed? Yes. Based on Sheriff’s
“Return of Summons” – date of service of summons indicated therein, along
with mode of service. Copy is furnished to Plaintiff’s counsel.
>Eg. Served on July 1. Just add 15. Defendant has until July 16 to answer.
By the way, what if plaintiff was never able to serve summons? Unserved
summons – plaintiff must furnish the court new address, else case is going to
be dismissed- failure to prosecute. In crim case – archived. In civil cases –
no archiving- case is dismissed. Since it is the plaintiff who comes to court to
allege violation of his right, it is his duty to furnish the court the address of the
defendant for the court to furnish Alias Summons (Contains new address). If
defendant still can’t be found in the new address, then Second Alias
Summons (third summons). Is there such a thing as Alias Warrant of Arrest?
Yes. Why? Warrant of Arrest is addressed to the police of a certain territory.
Eg. Warrant of Arrest issued to PNP Baguio-valid anywhere in the country,
but police officers of Baguio can’t go to Ifugao with such warrant because
they are encroaching in a different territory. They have to coordinate with
Ifugao police officers. The Court can issue a warrant of arrest to Ifugao
8
police officers (Alias Warrant of Arrest). It contains a new address of the
accused which is outside the territorial jurisdiction of the first warrant of
arrest.Similar to Alias Summons, until able to serve on the defendant.
>Finally able to serve to defendant, but no answer beyond July 16. What will
plaintiff do? Can now file a Motion to Declare defendant in default (MDDD).
>Motion vs Pleading. A complaint is a pleading. An answer is a pleading.
What is a Motion? It is not a pleading, vice versa. A motion is any
application for relief other than a pleading. What does it mean? A pleading is
also asking for a relief. A motion is more specific, however. Eg.Motion for
postponement, Motion for Extension of time to file an answer, MDDD,
etc.Specific.
>MOTIONS –
Non Litigated Litigated (need to go to court)
-Does not affect the rights of the -Affects the rights of the adverse
adverse party. party
-The court can act on this ex parte. -A hearing is required. Due
NO NEED FOR A HEARING. Court process- Give both sides a chance
can act on it right away. to be heard. Movant- one who
files a motion against whom the
motion is filed.
-Eg. Motion for Extension of Time to -Eg. Motion to Dismiss
File an Answer, Motion for
Postponement (sometimes)
>After stating the Motion (Non-Litigated) Notice to the “branch clerk of court”:
Please submit the foregoing motion immediately for the consideration of the
court. (then signed by the lawyer).
>The Rules require that every pleading, motion, manifestation – furnish the
Adverse Party (number 1 req)
>Adverse Party refers to the “counsel”. Service to the lawyer is service to
the client, but service to the client is not a service to the lawyer.
>Eg. Motion to Declare a Defendant in Default.
>Service of Pleadings vs. Filing of Pleadings.
>Service of Pleadings is the act of furnishing the adverse party all copies of
pleadings, motions, etc.
>Only pleading not served to adverse party – “Complaint”. The court via the
sheriff serves the complaint (attached to summons) to the defendant.
Court’s job, aside from gaining jurisdiction over defendant.
>Filing of Pleadings is the act of pleadings to Court.
>What comes first, service or filing? Service comes first, because what is
filed in court should bear the proof of service. If “Proof of Service” of
pleading is not present, the court is not bound to accept pleading. It is the
first thing that the court looks for.
>How do we serve pleadings to the adverse party? Similar to summons.
>(1) Personal Service of Pleadings (Priority Mode)- Delivering pleading to
the adverse party (lawyer), which is different from personal service of
summons (wherein summons is served to defendant himself).
>Eg. Copy Furnished –Let adverse party sign the motions. The one that
bears lawyer’s signature is the one that is filed (proof of service).
>Aside from the lawyer, is there anybody else who can receive? Yes. If in
the lawyer’s office, anybody in charge or working in the office can receive
such (still considered Personal service of pleading, unlike in summons –
substituted). Received, date, and signature of secretary (one who receives
in the office) –Still personal – proof of service. How about in the lawyer’s
home? Yes. Must it be to a person of sufficient age and discretion? The
rules require that when such is served to the house, hours are observed
(8am-6pm) and privacy is respected, unlike service of summons.
>(2) Registered Mail – Post office. Registry Receipt (attached near where
lawyer signs). The one that bears the Registry Receipt is the one filed in
court because it bears the proof of service. Is that sufficient? No. The rules
say that when it comes to service of pleadings, priority mode is always
personal service. If other modes are resorted to, there is a required WRITEN
EXPLANATION (TO OBVIATE DELAY) as to why it was not served
personally. Put explanation below registry receipt (eg. Service was done
through registered mail due to the distance between the plaintiff counsel’s
office, or due to lack of personnel in the defendant counsel’s office to make
service). Without explanation, pleading is treated as a mere scrap of paper.
As if nothing was ever filed. Failed to comply with the rule (if no personal
service, then via registered mail, with written explanation). Such rule was
incorporated was to OBVIATE DELAY. Date of mailing is the date of filing.
15 days to file an answer. Eg.July 16 deadline to file an answer. Served to
plaintiff’s counsel, and a copy is filed in court. Court receives it July 27. Is it
late? No because via registered mail. Because the date of mailing will be the
date of filing, provided via REGISTERED MAIL.
JULY 18, 2013
>RECAP:
>Defendant may not opt to file anything at all, or proceed with the 3 other
moves.
>Plaintiff can file a Motion to Declare Defendant in Default.
>Motion- Anything asking for relief from court aside from a pleading
>Litigated and Non-litigated Motion – How they affect rights – necessitating
hearing
>Furnish adverse party every pleading, motion, etc.
>Service of Pleadings- Priority Mode is Personal Service (to the lawyer).
Second mode is via registered mail. With the second mode, explanation is
required as to why service was not done personally.
>Service of Pleading comes first prior to filing of pleadings because the latter
should contain the “proof of service”. Registered Mail- date of mailing is the
date of filing.
>LESSON PROPER:
>Even envelopes are attached to the records because they contain the date
of mailing (stamped on the face of the envelope), showing likewise the date
of filing.
>Pleadings may be served via ORDINARY MAIL BUT THE DATE OF
RECEIPT IS THE DATE OF SERVICE AND FILING. Private couriers are
equivalent to ordinary mail.
>(3) Substituted Service of Pleadings (vs Substituted Service of Summons)-
If pleadings cannot be served via the first 2 modes (eg. Address of Plaintiff’s
counsel cannot be determined). Substituted service is furnishing a copy of
pleading to the CLERK OF COURT. Furnishing is not sufficient- Attached to
the pleading must be an explanation. Explain why such is being done via
Substituted Service. Supposedly, a complaint prepared by a Plaintiff’s
lawyer contains the lawyer’s address, just below his signature. But in case
9
address cannot be determined, then Substituted Service of Pleadings may
now be done.
> If nonlitigated, notice is addressed to the clerk of court (please submit the
foregoing motion for the consideration of the court immediately upon receipt
thereof. .Copy Furnish Adverse Party’s Counsel). Clerk then submits to
court.
>If litigated, since it affects rights of party, notice of hearing is needed.
Instead of being addressed to the Clerk of Court, NOTICE OF HEARING IS
NOW ADDRESSED TO THE LAWYER OF THE ADVERSE PARTY. Not to
the Clerk of Court, as if to be treated ex parte. For movant, after addressing
adverse party’s counsel should say (Please take notice that this motion will
be submitted for hearing on __date__) –Motion Days should be Friday at
2pm, as the rules say.
>Notice of Hearing (Litigated) must comply with the 3-DAY NOTICE RULE
and THE 10-DAY HEARING RULE.
>3-day notice rule – refers to the service of motion to the adverse party. The
adverse party must receive the motion at least 3 days before the intended
hearing. In other words, the proof of service must show that the counsel of
the adverse party received it before 3 days the scheduled hearing. This is to
give them time to prepare for hearing. (Eg. Hearing is set July 26, 2013.
Adverse Party must receive notice not later than July 23).
>10-day hearing rule – Created to obviate delay. Hearing should be set
within 10 days from the date of filing. (Eg. Hearing is on July 26. Filing
should have been from July 16 and up). Take note, filing comes AFTER
service. So if it has been filed on the 16th, a proof of service should be
existent. Can the date of service be the same with the date of filing? Yes.
Naturally, if 10-day hearing rule is complied with, automatically the 3-day
notice rule would have been complied with because service comes first prior
to filing.
>Motion Day – why Friday? Because – fly-day. Potanginah.Tuesdays-
Thursdays daw ay hearing day.Right to a neutral and impartial judge.
Judges fly back to their homes. However, the rule as to appointment in
home stations has been relaxed. According with the Rules Committee,
motions should not be heard together with the trial of the case. Motions are
disposed off quickly, except when there is a witness.
>Eg. Accused was convicted and sentenced to suffer imprisonment for 1
year (double registration during the election). His counsel (defense) filed an
MR and asked that it be set for a hearing; however, he never addressed it to
the adverse party (prosecutor), but to the clerk of court. The defense lawyer
only “copy furnished” the prosecutor, but never addressed it to him. The
court regarded it as a mere scrap of paper. Within 15 days after
promulgation, decision may be appealed. But if acquittal, final. When
decision becomes final, it becomes executor. In the case at bar, the 15 days
lapsed and decision became final, thus a warrant of arrest was issued.
Notice of hearing should always be addressed to the adverse party
(Prosecutor).
>MDDD- Technically, it is a nonlitigated motion because defendant had 15
days and he did not make use of it and therefore he no longer has any right,
letting the 15-day period lapse. Can the court act on it immediately? Yes.
However, rules say that they should be given a liberal interpretation kanu ta
decide on the merits. If MDDD is granted, the court issues an order
declaring defendant in default.
>What is the effect when a defendant is declared in default? Defendant
LOSES HIS STANDING IN COURT. A defendant declared in default is
entitled to notices but he cannot do anything – he can also be present in
hearings but he cannot object, because he loses his standing. He cannot do
anything anymore already. Two things can happen when he is declared in
default and loses standing: (1) Court can render judgment by default. Since
there is no longer a defendant, the court looks at the contents of the
complaint. If allegations in the complaint are sufficient to warrant a
judgment, judgment is rendered, usually in favor of plaintiff. Otherwise, court
will direct plaintiff to present evidence ex parte. Court can even authorize
clerk of court to receive evidence ex parte, provided COC is a member of the
bar. In the MTCs, COCs are not required to be lawyers. It is only in the
RTCs that COCs and Branch COCs are required to be lawyers.
>What if a case is for damages? Can there be a judgment by default? Or
must there be a presentation of evidence ex parte? The latter. Cardinal rule
in damages – Must be proven with certainty. Not everything alleged in a
complaint is a gospel truth. Eg. Actual damages – receipts .He must show
that he suffered. In every case where damages is involved, sum of money
with damages, sum of money arising from contracts, plaintiff is always
required to present evidence ex parte.
>If defendant loses his standing, can he regain it? Yes. The defendant, in
order to regain his standing, has to file a motion to lift order of default.
>Is this motion litigated? YES, definitely. Because it will affect the plaintiff.
JULY 23, 2013
VN-20130723-00001
1ST HOUR
>2nd QUIZ – From summons up to what is to be finished by July 27, 2013
(Summons, service of summons, declaration of default, service and filing of
pleadings, motions, etc.)
>Tim Burton’s (Canadian Coffee shop namalayongsosyalkumparasa
Starbucks daw)
>MDDD- This is filed by plaintiff if defendant does not file an answer within
the reglementary period of 15 days. Technically, nonlitigated motion.
Defendant already lost all his rights so there is no adverse party to be
affected. Rules of court are to be construed liberally to fully thresh out all
cases filed in court.
>2 things can happen when defendant is declared in default. (1) Judgment in
default based on plaintiff’s complaint if the court believes that allegations in
the complaint are sufficient to warrant judgment. (2) If allegations in the
complaint are not sufficient to warrant judgment, or when there is a claim for
damages, then Court asks plaintiff to present evidence ex parte to prove
allegations. As to damages, they have to be proven with certainty. Clerks of
Courts (lawyers) are authorized by court to receive evidence ex parte, but it
is the judge who makes decision. Thereafter, there can be a judgment in
default (with evidence. The first judgment of default is without evidence).
>The only thing a defendant can do is to file a motion to lift order of default.
This motion is a litigated motion as it would affect plaintiff’s rights. Thus, has
to comply with 3-day notice rule, 10-day hearing rule, and addressing
pleading to adverse party.
>Ground for motion to lift order of default- FAME (Fraud, Accident, Mistake,
and Excusable Negligence). Should always be accompanied with Affidavit of
Merits. It is the lawyer who prepares the pleading, but it is defendant who
personally knows about the grounds mentioned. So a sworn statement
(affidavit) is needed. Eg. Defendant met plaintiff. Defendant willing to pay
and wonders why friend plaintiff files a case. Plaintiff then promises to
withdraw case, but defendant is surprised by a motion to declare defendant
in default. This can be an extrinsic fraud. The defendant has to execute an
affidavit of merits about this. He has to state that he has a meritorious
defense. Not all 4 grounds can be raised altogether. Circumstances must
be stated. Excusable negligence may be because of lawyer or client.
Mistake, accident, whatever you call it, an affidavit of merits must be made
and attached to the motion to lift order declaring defendant in default.
>Can the court motupropio declare defendant in default? NO. Every litigant
has the right a cold neutrality of an impartial judge. If judge declares default
motupropio, judge is siding with plaintiff. (15-day period has lapsed-
10
determined from sheriff’s return of summons wherein date of receipt by
defendant is shown). Plaintiff’s counsel is also guided of said date for him to
know to file a motion to declare defendant in default.
>If court finds merit in affidavit, then court will grant the motion and lifts the
order of default, wherein defendant regains his standing in court and directed
to file his answer.
>If there is already a judgment rendered by the court which doesn’t become
final and executory, can defendant file for a motion to lift order of default?
YES. What happens to the judgment? It will be vacated because it has
become a one-sided judgment.
>If the first thing a defendant can do is not to do anything, THE SECOND
thing a defendant can do is to FILE A MOTION FOR A BILL OF
PARTICULARS (MBOP)
>Particulars- details. MBOP because there are complaints that are vague,
ambiguous, or unclear.Defendant cannot understand what plaintiff wants.
An MBOP can both be a litigated and nonlitigated motion, depending on how
judge would see it. RULES FOR LITIGATED MOTIONS NEED TO BE
COMPLIED WITH. Setting of hearing would then be discretionary upon the
judge.
>If the judge looks at the MBOP and looks at the complaint and agrees with
the defendant that complaint cannot be understood, the judge would grant
MBOP immediately and asks plaintiff to comply with the BOP (nonlitigated).
>However, if judge finds the complaint clear, the judge would then set the
motion for hearing (litigated).
2ND HOUR
01:04:40
>MBOP- on the hearing because court believes that complaint is clear
enough but giving benefit of the doubt to defendant, court now tries to clarify
with defendant allegedly vague complaints (eg. “defendant acted in bad faith
thus plaintiff is entitled to damages” and defendant wishes this clarified).
>How does plaintiff comply with MBOP? First, he can file an amended
complaint. If it is an amended complaint, how can it be shown that there is
an amended. Underline the amendments (or capitalize, bold, italicized,
open-close quotation, etc). Eg. Plaintiff wants to explain bad faith so goes
“that the bad faith consists of chorvachorva” (notice underline- to show
amendment).
>Must an amended complaint be served again with summons to defendant?
No need. A summons is served just for the court to acquire jurisdiction over
defendant. Since jurisdiction has already been acquired, plaintiff would just
furnish a copy of the amended complaint to the defendant follow the priority
mode.
>Second way is for plaintiff to submit a “compliance” or a “manifestation”. He
says, “in compliance with the order of the court granting the MBOP, the
plaintiff submits compliance. As the details to the bad faith,
“chorvachorvachorva”. Fully explain ambiguous provisions. Such is then
furnished to the adverse counsel via personal or registered mail.
>What if the court has granted MBOP but plaintiff did not comply? First, the
court can order that all those vague allegations in the complaint will be
stricken off of the complaint. Worse, the court can direct the plaintiff to show
cause why his case should not be dismissed because he failed to comply
with the order.
>If COA is stricken off, then defendant may file an MD on the grounds of
Lack of COA. So plaintiff should comply with MBOP.
>THIRD THING A DEFENDANT CAN DO IS TO FILE A MOTION TO
DISMISS (Rule 16, A-J)
>This is always a litigated motion, thus requirements must be complied with.
>Summons discourages filing of motion to dismiss. It asks defendant to put
grounds for MD as affirmative defenses in the answer. Affirmative defenses
are actually grounds for MD.
>If answer is filed and there are affirmative defenses, the court conducts a
preliminary hearing.
>The discouragement of filing of MD is for the quicker administration of
justice. Thing is, if you still wish to push through with an MD, a counterclaim
may not be filed along with it. There is no such animal. If MD is granted,
whatever claim that defendant has over plaintiff may also disappear.
>Can the defendant also have a claim against plaintiff? Of course –
Counterclaim.
>But if in the ANSWER THE AFFIRMATIVE DEFENSES ARE GRANTED
and the case is dismissed, such dismissal is only limited to the complaint of
the plaintiff. How about the defendant’s claim? It can now be pursued.
>GROUNDS FOR MD:
>(1) Lack of Jurisdiction over the subject matter. Jurisdiction is conferred by
law and determined by allegations in the complaint. This is a
NONWAIVABLE ground. Jurisdiction of the court over the subject matter
canbe questioned anytime during the proceedings. Opposition to such must
be raised as early as possible.
>Eg. Jurisdiction over damages more than 300k belongs to jurisdiction of
RTC (BP 129). In the complaint, “and incurred damages in which defendant
is to be made to pay 500k of damages to plaintiff”. The plaintiff files it in the
RTC. Does the RTC now have jurisdiction? Yes, in line with the law and the
allegation. Court says, “Huff!!! How ambitious naman this plaintiff. He just
suffered bruises. He cannot do anything about his face if it is in the first
place deformed. Too much!!! The way I look at it, he is only entitled to 10k.
And thus, I don’t have jurisdiction so I will dismiss the case”. Can the judge
do that? NO. Because he has jurisdiction according to law and what is
spelled out in the complaint. And true enough, at the end of the trial, plaintiff
only proves 10k. Can the RTC award 10k only? YES. Because that was
what was proven.
>Eg. Opposite. The law says 300k and below, MTC. After trial, the plaintiff
is able to prove that he incurred more than 300k – 400k in fact. Can the
MTC award 400k? No. Such is beyond its jurisdiction. Its limitation is only
up to 300k. It can never go beyondit’s limit, unlike the RTC that can go
below coz it is a court of general jurisdiction. Plaintiff kase is so bobo he
should have filed it before the RTC. Moral Lesson of the story, bloat your
damages to be able to bring it to the RTC.
>You can question the court’s jurisdiction over the subject matter at any
stage of the proceedings even on the first time on appeal, unless jurisdiction
by estoppel has set in.
>Jurisdiction of Estoppel- Person is aware that court has no jurisdiction, but
this was never questioned. In fact, person took advantage of this and
participated in all proceedings. However, upon promulgation of decision,
person loses and now raises the question of jurisdiction.
>Ground’s basis is on BP 129.
>The court should only not have jurisdiction over the subject matter but also
over the person of the defendant.
>(2) Lack of jurisdiction over the person of the defendant. In order for
court to acquire jurisdiction over defendant, it has to issue summons which
has to be validly served to defendant via person, substituted, constructive, or
extraterritorial service (actions affecting status of plaintiff, or relating to
property of defendant in the Philippines).
11
>Is this ground waivable? YES, this is a waivable ground. Must be
questioned at the earliest possible opportunity, otherwise he is deemed to
have waived said ground for motion to dismiss.
>Eg. Defendant can’t be located despite all efforts. And sooooooOOO, the
sheriff resorted to substituted service of summons. The defendant was
made aware that there was a summons issued against him so he goes to a
lawyer. Upon receipt, lawyer files his favorite motion – MFEFA. Needs time
to prepare an intelligent answer daw, so asks for 15 more days from
tomorrow. Court grants motion. Then lawyer finds out that summons was
served to anusineighbor via substituted, so within the 15 days of extension,
lawyer files an MD on the ground of Lack of Jurisdiction over the person of
the defendant. Grant or Deny? Deny the MD. He is deemed to have waived
the second ground because he already asked for a relief, and thus cannot go
back and question jurisdiction of court. By asking for relief (MFEFA), lawyer
has waived 2nd ground. Instead of MFEFA, lawyer should have immediately
filed MD grounded on MFEFA.
>In Crim Pro – Voluntary Surrender. Just like in Civ Pro – voluntary
appearance - asking for relief. Jurisdiction upon this time could no longer be
questioned. Another voluntary appearance is filing of an answer even
without receiving a summons.
>Is filing of MD for lack of jurisdiction over subject matter asking for relief
from court? Yes. All motions ask for relief. So, Aside from Lack of
Jurisdiction over person of defendant (eg.MD for lack of jurisdiction over subj
matter, lack of juris over person of defendant, and LOJ bec of improper
venue, all in one motion). The MD based on the first ground was denied.
Are the other grounds deemed to have been waived by seeking these 3
together? NO. OMNIBUS MOTION RULE.
>Omnibus Motion Rule states that any and all grounds for a motion to
dismiss should be indicated in only one motion, otherwise you are deemed to
have deemed those grounds except for those that are nonwaivable.
>What if defendant only alleges 2 and doesn’t include a 3rdnonwaivable
ground, and the court denies the 2, can defendant raise the 3rd? NO.
JULY 24, 2013
VN-20130724-00001
1ST HOUR
>Waivable – should be raised at the earliest possible opportunity.
>Deemed waiver- voluntary appearance in court to ask for relief, or filing of
an answer without summons.
>Any waivable grounds not raised would be considered waived. Note the
omnibus motion rule.
>There are 4 nonwaivable grounds- Lack of jurisdiction over subject matter,
litispendentia, res judicata, and prescription.
>(3) Improper Venue- Must be raised at the first possible opportunity,
otherwise deemed waived.
>Can venue be agreed upon? Yes, provided it is in (1)writing, (2)executed
before any case is filed, and (3) should be couched in mandatory terms
(shall, should, will) Eg. Venue should be in the proper court of Baguio City.
>Eg. Bus ticket – venue fixed in Pasay (shall be in the corporate offices of
the bus corp in Pasay City). Passenger was unable to reach destination.
Passenger files a case in Baguio City against bus company, and the latter
files an MD on the grounds of Improper Venue. Shall the courts grant or
deny the motion? Deny the MD, because it is a contract of adhesion. There
is only one party making the terms. There should be consent between the 2
parties. In a contract of adhesion, the other party is just asked to consent.
>(4) Lack of Capacity to Sue- Personal character of the parties. When
such is raised as a ground by defendant, he is targeting the plaintiff. Rules
require that all civil actions should be executed in the name of the real party
in interest.
>Real Party in Interest- Party who stands to be benefited, injured, or
prejudiced by whatever decision that the court makes. In other words, all
civil actions must be prosecuted by a real party in interest. Refers to the
indispensible party (someone who should bring the case) vs indispensible
defendant (someone who is to be sued).
>Eg. O entrusted the title of a property to X. O discovers that X sold the
property to Y, the latter selling it to Z. Now O wants to get back his title;
however, the title is now in the name of Z. Who is the indispensible plaintiff
(real party in interest)? It is O, because he is the owner of the property, and
whatever the court decides, he stands to be either benefited or injured
(prejudiced). Who is the indispensible defendant? It is Z because the title is
in his name. A case filed against X or Y will not return title to O. If against Z,
title may be recovered, making him the indispensible defendant. However, O
may also include X as an indispensible defendant for DAMAGES. But simply
for recovery of title, then against Z would be sufficient.
>Necessary Party (Proper)-Indispensible (can’t be done without) vs
Necessary (for complete relief).
>Eg. Landowner mortgages his property to X (1st mortgage). However, he
again mortgages it to Y (2n mortgage). He doesn’t his loan to X or Y. Now,
X, the first mortgagee, wants to forclose the property. If he files “X vs
Landowner”, is that sufficient? Yes, contains indispensible parties. Sufficient,
however there is still the issue with Y who also has a justified claim, being
the 2nd mortgagee. So in order to have complete relief to settle issue once
and for all, X should include Y. X is the indispensible plaintiff, Landowner is
the indispensible defendant, and Y is the necessary defendant. Because
even without Y, there can still be a case. However, the issue of 2nd
mortgage must be settled so include Y.
>Pro Forma (Nominal) Party- For form, needed because the law requires so.
Eg. A married woman sues. The rules require that she should be assisted
by the husband. Married woman is the indispensible plaintiff, while the
husband is the Pro Forma Party. Such is the case except as provided by law
(concerns paraphernal property, profession, career, tort or quasi-delict, civil
liability arising from crime, separation de facto for 1 year, etc). Another eg. In
a petition for certiorari, prohibition, and mandamus, the Judge is a pro forma
party and is not required to file an answer, else ignorance of the law. Private
respondent is the person who will file an answer because said party stands
to benefit or be prejudiced by a decision.
>Quasi-Party- Those who really do not appear in court but are affected by
the decision that the court makes. Why? Kasinagadu da.Class suit.2
requisites. (1) Common or General Interest. (2) The parties are too
numerous that it is impracticable to bring them all to court. A representative
few is then selected (sufficient enough to represent common and general
interest). Eg. A, B, C, D, and F and all others similarly situated in a class
suit.
>Eg. New company brings out a new car. Unknown to the customers, there
is a defect in the car (explodes). A complainant files a case, but discovers
numerous complainants with the same complaint – 2000 complainants.
Common General Interest- give back money or new car.Class suit. If
damages is to be included, this now can’t be taken in a class suit, as each
complainant would have a differing interest – no more common interest
among complainants to constitute a class suit. Only a few will go to court,
while the thousand others will be the quasi-parties. They will not go to court,
12
but when the court renders judgment, they stand to be benefited or
prejudiced.
>Eg. Landowner wants to evict all squatters from his property. Landowner
vs X, Y, Z, and all other persons occupying land. Will this prosper as a class
suit? No. Because there is no common or general interest among the
defendants. This is because they are only interested in their particular
portion of land occupied. So landowner’s remedy is to sue each and every
iskwater.
2ND HOUR
>Lack of Capacity to Sue vs Lack of Personality to Sue. Different from each
other. General Rule – All actions must be prosecuted in the name of the real
party in interest. Eg. Principal (owner of car) commissions agent to sell his
car. Agent finds a buyer and sells it to the latter. However, buyer doesn’t
pay full price so agent files a case against the former. Buyer files an MD.
Who is the real party in interest (RPII)? In other words, who gets to be
affected by a decision? Of course, the Principal. So, if “Agent vs. Buyer”, is
the action in the name of the real party in interest? No. Buyer can now file
an MD on the ground Lack of capacity to sue (agent not a real party in
interest). However, agent may amend the complaint and state, “Principal, as
represented by the agent” to cure defect. Now, action is in the name of the
real party in interest. The agent now becomes the representative party
because he acts in representation of another person. But what would be a
better ground? Lack of Cause of Action. Why? Go over the elements. As to
right, agent doesn’t have any; rather, the principal. First element
palangwaleyna.
>Whom else can be a representative party? Guardian over ward.Fiduciary
Capacity.
>Lack of Capacity to Sue- We speak more of characteristic of plaintiff.
Eg.Minority. A minor cannot sue. However, minor must be assisted by
parents or a guardian. Must reach the age of emancipation (21 daw).
Insanity. Civil Interdiction (accessory penalty) – regains capacity when
penalty is served and all rights are restored.
>As to juridical persons: Domestic Corporation must state in its complaint for
capacity that it is a “corporation organized and operating under the laws of
the Republic of the Philippines, and duly registered under the Securities and
Exchange Commission”. As an artificial person, it can sue and be sued just
like a natural person. Supposing it is a foreign corporation: Can it sue and
be sued? Qualify. Yes, can sue and be sued if it is engaged in a legal
business in the Philippines. No, it cannot sue but it can be sued if it is doing
illegal business in the Philippines.
>So what should corporation state to give it legal capacity to sue? It should
state that it is legally engaged in business in the Philippines, and it’s authority
to do so can be seen in the etc. etc. whatever authority gives it authority.
For a foreign corp illegally doing business, since it cannot sue, in a complaint
against it there it must be stated that it is a foreign corporation illegally
engaged in business in the Philippines.
>What if foreign corp is not engaged in business in the Philippines? It can
only sue in an isolated transaction. Eg. Marvel Comics against pirates.
What should be alleged? That it is a foreign corporation, not engaged in
business in the Philippines, but suing in an isolated capacity.
>Where are corporate cases filed? Used to belong to the SEC, but now
transferred to the RTC. In Manila, there are RTCs designated as
Corporate/Commercial Courts.
>Lack of Capacity to sue is WAIVABLE. Thus it must be raised at the
earliest possible opportunity, else deemed to have been waived.
>Legal capacity is stated and alleged in the complaint, also citing its
authority. Defendant can verify. If capacity is fictitious, then file MD based
on lack of capacity to sue because their documents are spurious. Same may
apply for other grounds used for lack of capacity to sue. Defendant must
prove that basis for capacity are inexistent, fake, etc.
>Can a plaintiff be subjected to a psychiatric exam? Modes of discovery is
applicable if the physical or mental condition of a person is in issue. If it is
not in issue (eg.For sum of money), then no.But if psychological incapacity
as a ground for annulment, then modes of discovery may be applied.Or
..appointment as a guardian over an insane person. The person may then
be subjected since it is in issue.
>(5) Failure to State a Cause of Action- This is different with LACK OF
COA (rule 2). Failure to State a COA is more of how complaint was stated.
More external.Form and substance of the complaint. This is also a
WAIVABLE GROUND. Can the defect be cured by plaintiff if said ground
was not raised in the earliest possible opportunity? Yes.
>Eg. In the complaint of plaintiff who claims ownership over land, he stets
(sic) – he states that “I erected a swimming pool and planted palm trees and
cattages (sic) and benches over the land. I own all these improvements”,
and thus files a quieting of title against a defendant also claiming ownership
over property. His title is noisy jeje. Plaintiff alleges that since he put up all
the improvements on the land, therefore he owns the land. What is wrong?
There is a failure to state a cause of action.
JULY 25, 2013
VN-20130725-00001
>Failure to State a COA is not the same as Lack of COA. Form and
Substance.
>Back to the earlier case of quieting. Defendant files an MD for failure to
state a COA. Grant or Deny? Go back to the complaint. Plaintiff states that
since he introduced improvements, it means that he owns the land. Going
back to the laws of property, the land is the principal and the improvements
are the accessories. Accessories follow the principal. So whoever owns the
principal owns the accessories. But what plaintiff is trying to say is that since
he owns the accessories, therefore he owns the principal. Plaintiff’s mistake
is the failure to allege by what right he has to introduce improvements over
the land. Therefore, there is a failure to state a COA.
>Test. Look at allegations. Do you believe all of it? Can you give the plaintiff
what he wants? If both gets a YES, then there is a COA. But if YES as to
allegations but NO to giving of what plaintiff wants, then there is failure to
state COA. Said ground is waivable.
>What if defendant files an answer and does not question failure to state
COA nor includes it in his affirmative defenses, and then during trial plaintiff
is now showing evidence that he owns land which is why he made
improvements, can defendant now raise the abovementioned ground? The
defendant is too late. Ground has been waived. Must have been questioned
at the earliest possible time.
>Lack of Capacity to Sue vs Lack of Personality to Sue. Different from each
other. General Rule – All actions must be prosecuted in the name of the real
party in interest. Eg. Principal (owner of car) commissions agent to sell his
car. Agent finds a buyer and sells it to the latter. However, buyer doesn’t
13
pay full price so agent files a case against the former. Buyer files an MD.
Who is the real party in interest (RPII)? In other words, who gets to be
affected by a decision? Of course, the Principal. So, if “Agent vs. Buyer”, is
the action in the name of the real party in interest? No. Buyer can now file
an MD on the ground Lack of capacity to sue (agent not a real party in
interest). However, agent may amend the complaint and state, “Principal, as
represented by the agent” to cure defect. Now, action is in the name of the
real party in interest. The agent now becomes the representative party
because he acts in representation of another person. But what would be a
better ground? Lack of Cause of Action. Why? Go over the elements. As to
right, agent doesn’t have any; rather, the principal. First element
palangwaleyna.
>Whom else can be a representative party? Guardian over ward.Fiduciary
Capacity.
>Lack of Capacity to Sue- We speak more of characteristic of plaintiff.
Eg.Minority. A minor cannot sue. However, minor must be assisted by
parents or a guardian. Must reach the age of emancipation (21 daw).
Insanity. Civil Interdiction (accessory penalty) – regains capacity when
penalty is served and all rights are restored. As to juridical persons:
>(6) LitisPendentia- A pending case. One of the NONWAIVABLE
GROUNDS.Can be raised at any stage in the proceedings. Check
Certificate of Non-Forum Shopping, as it would state the presence or
absence of similar cases filed in other courts and speak of their status.
>In order to know that there is LitisPendentia, (1) There must be an identity
of the parties, (2) There must be identity of the subject matter, and (3)
identity of the relief sought: These are in relation to previous cases.
>Eg. Plaintiff vs Defendant for recovery of possession of a parcel of land.
During the proceedings, defendant gave said land to defendant’s son. Now,
plaintiff files a second case (P vs D’s son) for recovery of the parcel of land.
Can D’s son file an MD on the ground of LitisPendentia? Is there identity of
parties? Yes. Identity of parties refers to the identity of interests that parties
represent, and not the literal identity. The interest is over the parcel of land.
Since said interest is found in both cases, there is identity of parties. Now, is
there an identity of subject matter? Yes. As to relief? Yes! So is there a
LitisPendentia now? YES. There is a pending case (P vs D). What is
plaintiff’s remedy? Amend the first case and include Defendant’s son as
another defendant to resolve issues in one case. Further, this is to avoid
multiplicity of suits. What is the danger of allowing the 2 separate cases?
Conflicting decisions.
>Eg. Plaintiff vs Defendant for Forcible Entry. Subsequently, Defendant files
a case against Plaintiff for quieting of title. Plaintiff files an MD on the ground
of LitisPendentia. Grant? NO. Is there identity of parties? Yes, they just
exchanged roles, but interest is the same. Is there identity of subject matter?
Yes. Is there identity as to reliefs sought? NO. Forcible Entry (better right to
possess) is different from Quieting (ownership is the issue). Thus, these are
2 separate cases. So deny the MD. Can these cases proceed
simultaneously? Yes. Can there be 2 different judgments? Yes.
>As a rule, what gives rise to LitisPendentia? A second case. But it is not
always true that the second case is always the one to be dismissed due to
LitisPendentia.
>Eg. Both P and D claims ownership of land, and D is in possession of said
land. 1 year period is over so forcible entry - ejectment can no longer be
filed, so plaintiff files a case of accion publiciana or recovery of possession
(1st case). Then, in the 2nd case, the defendant files a MD on the ground of
LitisPendentia and quieting of title. There is LitisPendentia, but the 1st case
is to be dismissed and the 2nd case is retained, because this is the case that
will thresh out the issues between the parties. Defendant is already in
possession and thus files quieting. Retain the case that will resolve all the
issues between parties and Dismiss the other under the ground of LP.
However, P may file a counterclaim for recovery of possession.
>Supposing the first case is on Appeal, then a second case is filed. Can
defendant’s son raise LitisPendentia? Yes. For as long as a decision as to
the first case has not yet become final, there is still LitisPendentia. If
decision becomes final and executor, ground now becomes “Res Judicata”.
>RES JUDICATA– Law of the case. Decision is final and executor. For Res
Judicata to set in, the above 3 requirements must be present in addition to
(4) a judgment that has become final and executory, (5) rendered by a court
of competent jurisdiction, (6) and court rendered judgment under trial on the
merits.
>Trial on the merits- parties were given equal opportunity to present their
respective evidence (unlike judgment by default where evidence are
presented ex parte).
>Because these are the additional requirements, there is no longer an issue
as to what case is to be dismissed. The decision in the first case is already
the law of the case, and therefore that law of the case will prevail all
throughout. Any other subsequent cases shall be dismissed. Will result in
the dismissal of the 2nd and subsequent cases.
>Eg. P vs D for accionreinvindicatoria (recovery of ownership). Defendant
filed his answer. Case went to trial and a judgment was rendered in favor of
P. Thus, he recovers ownership. Judgment becomes final and executory,
rendered by a court of competent jurisdiction after trial on the merits.
Subsequently, P and D died. Their children now have grown up. (well no
body watches Dallas). D’s son now files a case against P’s son for recovery
of possession of P’s property where P was declared as the owner. P’s son
then files an MD on the grounds of Res Judicata. Let’s check, in the first
case: (1) Is there ID of parties? Yes, they both represent interests of their
fathers. (2) Is there ID of subject matter? Yes – parcel of land. (3) ID of
relief sought? Yes, both want the property. (4) Has a judgment become final
and executory? YES. P has been declared an owner. (5) Has the judgment
been rendered by a court of competent jurisdiction? YES. (6) Was judgment
rendered under trial on the merits? YES. Therefore, grant MD of the 2nd
case on the ground of Res Judicata. No longer necessary to determine as to
what case shall thresh out all issues. LAW OF THE CASE: PLAINTIFF IS
THE OWNER. THUS PLAINTIFF’S SON IS ALSO THE OWNER,
DERIVING FROM HIS FATHER.
>There are 2 aspects of Res Judicata: (1) Barred by Former Judgment –
Law of the case. Example is given above (regular Res Judicata). (2)
Conclusiveness of judgment – different from Law of the case. All but 2 of the
6 requisites must be present.
>Eg. P vs. D for cancellation of DOS. P claims he never executed such
DOS and the signature appearing in the DOS is a forgery, and further, the
property is a conjugal property requiring consent of wife, and consent in the
DOS was also a forgery. After trial on the merits, the court renders a
decision dismissing the case, because the plaintiff’s claim of forgery has not
been proven and therefore the DOS is a genuine document. Since in said
DOS the P sold the property to D, the latter becomes the owner. Hence, this
first case became final and executory. After several years, P and D died.
D’s son then leased the property to X, and the latter built a factory on the
premises in question, paying rentals to the former. Here comes P’s son,
filing a 2nd case (P vs X for damages). X files an MD on the ground of Res
Judicata basing on the first case, settling issue over said property. Is there
Res Judicata? All requisites are present, except: ID of parties (D’s interest is
as an owner, and X’s interest is as a lessee) and ID of Reliefs sought (P –
cancellation of DOS, P’s son – damages, different COAs). THUS, THERE
IS RES JUDICATA AS TO THE 2ND ASPECT – CONCLUSIVENESS OF
JUDGMENT.
JULY 27, 2013
VN-20130727-00001
First Hour
>STATUTE OF FRAUDS (refer to notes of classmates)
14
>WAIVABLE
>Sale of MV must always be in writing in order to effect a transfer.
>How about on the internet? Person orders red Ferrari but gets a yellow
pickup truck and pays with credit card. Is there a breach? Yes. How does
person prove that he did order a red Ferrari considering the Statutes of
Frauds in consideration of the E-commerce Act? The E-commerce Act
provide that for those transactions that require written documents under
Statutes of Frauds, these requirements are deemed to have been complied
with provided there are documents that can be produced that can be
authenticated – what of an electronic transaction? Credit Card Statement of
Transaction. Proofs – website is credible. It is where the person made a
purchase. Person used credit card to make purchase as evidenced by
Credit Card Statement. If these can be authenticated, then deemed to have
complied with Statute of Frauds.
>(10)Failure to Comply with a Condition Precedent (waivable)– Before
one goes to court, all other requirements must have been complied with (Eg.
Referral to Lupon as provided by the LGC). Other cases – Actions between
family members require earnest efforts towards compromise. If in Barangay,
certificate to file an action. What about suits between family members? State
allegations in the complaint, “this is a suit between family members and
earnest efforts were exerted via several family meetings in order to arrive at
a compromise; however, all efforts failed” – to be proven in a trial. Family
would refer to cases involved parents and children – immediate family
members (parents vs children, children vs children). What if Brother vs.
Brother and Brother’s Wife? No need to exhaust all efforts because a
stranger is involved (wife). Another case, Administrative cases – exhaustion
of administrative remedies. Outline in the complaint the steps taken to
exhaust all administrative remedies.
>MOTION TO DISMISS – CAN EITHER BE GRANTED OR DENIED.
>IF GRANTED, CASE WILL BE DISMISSED. However, the remedy of
appeal is available to a plaintiff.
>IF DENIED, DEFENDANT WILL BE REQUIRED TO FILE HIS ANSWER,
within the remaining period he has left after he filed the motion to dismiss.
>Eg. Defendant receives summons July 1, 2013. Thus, he had 15 days to
file an answer. Instead of filing an answer, D files an MD on July 5. Since
an MD is a litigated motion, this was heard on July 12. However, the court
denied it on July 22. However, D’s counsel received this on July 26. How
many days does D have left to file an answer? and up to when? According
to NCC, exclude the 1st day and include the last day. Also, the filing of the
motion interrupts the period. When counting the days, we include weekends
and holidays. And if the last day falls on a weekend or on a holiday, it does
not continue to run until the next working day. Thus, based on said rules,
what are the answers?
>Supposedly, he had up to July 16 to file an answer. So we exclude July 1
when summons was received, according to the NCC, and also exclude filing
of MD on July 5, since this interrupts running of period. Given so, 3 days has
lapsed (July 2, 3, and 4). 15 -3 = 12.Thus, he had 12 remaining days.
Then, count 12 days from July 26 (again, exclude July 26 from counting
since it is a 1st day). We arrive at August 7 after counting 12 days, including
the 12th day (last day as according to the NCC). Thus, he has 12 days left to
file an answer, and he has up to August 7 to file an answer.
>Why start counting from July 26? Because it was the date when defendant
received notice of the denial of the MD.
>Supposing a Motion for a Bill of Particulars? Same.Anything that interrupts.
General rule- do not include the day you received the summons or the day
that interrupted the period. Start counting again from the time of the receipt
(not the denial per se) of the denial.
>However, if Motion for Reconsideration, we have a fresh 15 days from
denial of said motion.
>DEFENDANT NOW FILES AN ANSWER.
>Remember that Plaintiff files the initiatory pleading (starts the ball rolling),
which requires a CONFS and Verification.
>What about an Answer? This is a RESPONSIVE PLEADING. Will this
require a CONFS? No. This is only mandatory in initiatory pleading. How
about a verification? Not necessarily; however, there are instances where
such is required in an answer.
>Answer contains the defenses of the defendant. These defenses can either
be Negative Defenses (ND) or Affirmative Defenses (AD).
>ADs are all the grounds for MD. “Yes, even if all those things that you are
saying are true, still you cannot recover from me because – GROUND”. ADs
are hypothetical admissions of plaintiff’s allegations.
>Instead of filing an MD, D might as well include AD in his answer.
>Can a D’s answer include both AD and ND? YES. Why? Just in case his
AD are denied, then the ND can compensate.
>ND are specific denials.
>Right after an answer is filed containing AD, a hearing is conducted
(litigated) to determine whether grounds are sustainable. If the court denies
the AD, the hearing continues and looks at the remaining defenses, the ND
(Specific Denials).
>An answer may both have AD and ND, or only the ND.
>Answers, defenses, etc are numbered for easier reference.
>If it is an ABSOLUTE DENIAL, must state reason behind denial.
>Eg. In an allegation, it says that D signed a PN. The D then absolutely
denies said allegation by stating that D does not know how to write.
Absolute Denial + Explanation. What if only the absolute denial was given
but was never explained? This is what is called a Negative Pregnant (Open
to multiple interpretations).
>PARTIAL DENIAL may also be given (admit some, deny some).
>Eg. In the allegation- “That defendant appeared in the house of the plaintiff
and signs promissory note.” The D can make a partial denial, “That
defendant admits being in the house of the plaintiff but denies signing the
promissory note because the defendant does not know how to write”.
>LITERAL DENIAL – Denial is made because there is no sufficient
knowledge to form a belief as to the truth or falsity of plaintiff’s statement.
>Eg. In an allegation, it says- “Because of the act of defendant, Plaintiff
suffered depression and couldn’t eat or sleep, thus defendant must be made
to pay damages”. Defendant has no knowledge of such so he makes a
LITERAL DENIAL, having no basis to say whether such are true or not.
>Look at the answers filed by defendants and try to identify what kind of
denials are made.
>Avoid blanket denial. “The defendant denies everything!!!”. A blanket
denial is deemed an admission.
15
>Who brings out the issues in every case? It is the DEFENDANT. Why? forgery. Lack of consideration is a different matter and has nothing to do
Because defendant is the one who denies or admits. In the plaintiff’s with (DEG). Consideration refers to the intrinsic part, unlike DEG which
complaint, we just have a story about how his right is violated. We still don’t refers to the extrinsic part. The actionable document rule only presupposes
have an issue because we do not know whether such allegations are true or due execution and genuineness of the document itself and does not talk of
false. Upon the answer of the defendant, admissions and denials are made. any other thing aside from that.
Upon admission, there is no issue; however, upon denial, a conflict is >Every signature is MONEY! Absurd.
created giving birth to an issue. If defendant admits everything, then a >All allegations must be captured in one statement and sworn in the
judgment based on the pleadings may be rendered, there being no issues. verification, which is signed by the D.
>If complaint is not based on an actionable document (eg. Damages- I
promise not to run you over, or Specific Performance), is verification
Second Hour
necessary in an answer? OF COURSE NOT. However, if it is based on an
>The answer of the defendant usually need not contain verification. But
actionable document, a verification is necessary in order to show that the
when should an answer contain a verification? Verification becomes
requirement of a specific denial under oath has been complied with. What
necessary when the complaint is based on an actionable document (any
we are saying is that if it is an actionable document, you have to specifically
instrument that becomes the basis of the case, eg. Promissory Note –
deny that document, that it is untrue, and saying that needs to be under oath,
collection of sum of money from an unpaid loan based on a Promissory Note.
presupposing telling the truth.
Breach of Contract – Contract is the actionable document). So what if it is
>The defendant must execute a statement under oath in the verification to
based on an actionable document? A document contains an agreement put
the effect that everything his lawyer wrote was the truth. Again, if not under
in writing, which could be a gospel truth unless proven otherwise. What is its
oath, the D is deemed to have admitted the DEG of a document. Thus, P
connection with the verification? The rules require that when such document
can now file a Motion for Judgment on the pleadings.
is to be denied, then it is to be specifically denied under oath. How? In
>Must the D furnish a copy of his answer to the P? YES. How? Same with
verifications, there must be a sworn statement to the effect that everything
service of pleadings – Personal, Registered Mail, etc.
stated by the lawyer is the truth and that client can prove such claims as
>Supposing D furnished a copy to P’s counsel via registered mail, and
truth, and signed by the client. To determine that the specific denials of
acquired a proof of service. D then files the same in Court, however absent
defendant are under oath, there must be a verification. If there is no
the “explanation”. P now files a Motion to declare D in default. Must the
verification to a specific denial, then the defendant is deemed to have
Court grant the motion? YES. Why? Because D failed to include a written
admitted the due execution of and genuineness of the actionable document.
explanation as to why personal service was not done and registered mail
>Eg. P vs D based on a Promissory Note. In the complaint, P alleges that D
was resorted to. The answer is deemed a mere scrap of paper, as if no
borrowed 100k for which he executed a PN stating that, “I, D, promise to pay
answer was filed.
P the amount of 100k on or before June 1, 2013”. Is the PN an actionable
>Aside from the answer, the D may also couple another pleading with his
document? Yes, because it is the basis for the sum of money, showing that a
answer – COUNTERCLAIM (CC). Is there a CC that goes on its own? None.
loan has been incurred. In the D’s answer, he says, “I specifically deny that I
It must be coupled with an answer. Answer will merely contain D’s
signed the PN because that signature on the PN is a forgery. That is not
defenses, but the CC contains the COA of the D. For plaintiff, COA against
how I sign my name. I just scribble my initials, and yet in the PN, my name is
defendant is embodied in a complaint, while for defendant, COA against
clearly spelled out.” Did the D specifically deny it? YES. However, there is
plaintiff is embodied in a CC (not another complaint).
no verification (because the lawyer forgot). Plaintiff files a Motion for
>SOOOoooOOooww, it’s like dot! You think you are di only one? Me I also
Judgment on the Pleading (available only to a Plaintiff, based on an answer
have!
filed by defendant that tenders no issue). What is the effect? Defendant is
>Recoupment – another term for CC.
deemed to have accepted the due execution and genuineness of the
>How will the plaintiff file the CC? By coupling it with the answer. “Answer
document. He can no longer question this. Due execution – done willingly
with Counterclaim”.
(under no duress) and Genuineness – Real signature, and he was the one
>In one document, the D has 2 pleadings: 1st pleading is the answer
who signed it. If this would be the case, as a judge, should you grant the
containing all his defenses, while the 2nd pleading is the CC containing the
motion for judgment on the pleading? YES. Why? Because defendant
COA.
brought out an issue but admitted it, because he did not make a specific
>What if D forgot to include the CC in the answer? Can he bring it in the
denial under oath.
same case? Depends on the court, but must be brought before judgment is
>What if in D’s answer, he says, “yes, I signed the PN in his presence, but P
rendered. Also, there are 2 kinds of CCs, either compulsory or permissive.
did not give me the money”. In effect, what D is saying is that there is no
>Compulsory Counterclaim (CCC)- One that arises from the same
consideration for the PN.
transaction subject matter of the complaint. Meaning, it is compulsory
because it is related to the complaint filed by plaintiff. If there is no complaint
from the plaintiff, then there is no ground for the CCC of the defendant.
>The given denial was not supported with a verification, so the P files for a
>”Because this case was filed against me, my reputation in the community
Motion for Judgment on the Pleadings. Grant or Deny? Deny. Why?
got besmirched”
Because denial was merely partial. Verification is needed for denials where
>”Because of a ruined reputation, I should be entitled to moral damages in
“due execution and genuineness” (DEG) is involved. D never raised fraud or
the amount of P20.00”

16
>Hyat: Ma’am, time na…. is outside of its jurisdiction. If the D insists on maintaining his CC there, the
>Judge M: uuuUUoooOOhhh you just let me finish dis! That’s the problem. MTC can dismiss it outright. So even if it arises from the same transaction,
You should have never let me start. to be compulsory it must be within the jurisdiction of the same court.
>”I have to defend myself, which is why I hired a lawyer to whom I promise to >Are we saying then that the D can file another separate case in the RTC,
give P500,000.00 because he took the bar 5 times” this time the D as P, and the P as D as a CC? YES, provided that he has
>And that is a CC. Is it compulsory? Yes, because it would not have arisen if grounds. Will it be for sum of money? No. Damages, based on Malicious
not for the suit filed by the P. Prosecution.
>I’ll see you on Tuesday for the quiz, and Ariel, thank you so much for the >Supposing the first case was dismissed in the MTC because the D was
pens. Next time bring them again. able to prove that he paid. How about the case filed in the RTC? Will it
continue or will it be dismissed? Since it is now a separate case, the RTC
can decide accordingly (either dismiss it because the case from where it
JULY 31, 2013
arose was dismissed, or can continue to hear it if there are indeed grounds
VN-20130731-00002 for malicious prosecution).
>But the point is, if it is really a CCC, it must be within the jurisdiction of the
court.
FIRST HOUR
>Eg. P vs D for sum of money (300k). D has a CC claiming that for the past
>RECAP:
2 years, he worked as a caretaker for P and has never been paid for 2 years
>Negative defenses- Specific Denials
amounting to 200k. Further, D asks for offsetting which would amount now
>Affirmative denials – Grounds for MD
to 100k. Is this now a CCC and within the jurisdiction of the MTC? The
>Must they be verified? General Rule, NO. But if answer is based on an
amount is within the jurisdiction of the MTC, BUT THE NATURE IS NOT.
actionable document, then specific denial must be under oath. Via sworn
Why? Employer-employee relationship is involved, unpaid salaries, wages,
statement of defendant in the verification.Based on an answerable document
belong to the NLRC and not the regular courts. So is it a CCC? No, because
– verified.
the regular courts have no jurisdiction.
>What is a CCC? If it is a CCC, it has to be included in the main case,
>The answer can be coupled with a counterclaim. A CC is the claim of the
otherwise it may never be filed anymore.
defendant against the plaintiff.
>What if the CCC was not included in the answer, will you be allowed to
>Eg. Defendant files a claim against Plaintiff if D himself has a claim against
raise it anytime? Yes, the court will allow anytime before judgment. On what
the P. That is called a CC.
grounds?FAME.
>In other words, a CC is the claim of the D against the P.
>EG. P vs D for recovery of personal property (car). D just files an answer
>How about the Answer, is that also a CC? No, the A contains the defenses.
without a CCC. Decision – D, return the car to the P, the latter is the rightful
From the word itself, it is an answer against the complaint. But for a CC, it
owner of the car. Decision becomes final and executory. After returning the
also contains a complaint against P.
car, D realizes that he forgot about all the improvements he made on the car.
>It is called “Recoupment” in other books (to get back).
So D now files for damages against P to recover the expenses he incurred
>A CC can either be Compulsory or Permissive.
when he made improvements on the car. As the P, have the case dismissed
>If Compulsory, it arises from the same transaction subject matter of the
and grounded on RES JUDICATA. There is now a law of the case from the
complaint.
1st case. The D should have raised the damages in the CC, because it
>Regular CC, “Because of this case filed against me by the P, I was
would have been a CCC as it arises from the same transaction subject
constrained to hire the services of a lawyer for which the P should be made
matter of the complaint.
to pay. I suffered sleepless nights thinking about what this case is going to
>GUIDE QUESTION: Will the evidence needed in the first case (in the
do to me, for which the P should be made to pay moral damages. My
complaint filed) be the same evidence that will have to be produced in the 2nd
reputation in the community is now destroyed because everyone is talking
case? In fthe first case, P had to prove that he owned the car, and therefore
about me. Etc…”
was entitled to it. What about D? D also had to prove that he had a reason
>Those are all compulsory complaints because they arise from the same
to own and thus keep the car in order for the case to be dismissed. So,
subject matter of the complaint. Because it is compulsory, what is the
those are the sets of evidence needed – proof that P owned the car and that
requirement? To be compulsory, it must be within the jurisdiction of the
D also had a right to the car. You go to the next case for damages. What
court.
evidence now does the D have to prove? He will have to prove that he was
>Eg. P vs D for sum of money. Because this was only for 300k, it was filed
the owner of the car which is why he installed all the improvements. And
in the MTC. However, the D had a CC. In his CC, he says that, “I am an
what does the P have to prove so that he won’t be liable for damages? He
outstanding citizen in my community, and I already paid that measly 300K.
would have to prove that he was the owner of the car so the D would have
Now, because of what you did, you should pay me. But since I am not only
no right to introduce improvements.
worth 300k and more than that, my counterclaim is now 1M.”
>Are those sets of evidence the same with the 1st case? YES. Thus, a CCC
>Is that a compulsory CC? NO. Why not? It may arise from the same
and should be raised in the main complaint with the answer or anytime
subject matter of the complaint but definitely it is outside the jurisdiction of
before judgment. If filed with the answer, then OK. But if filed before
the MTC. So can the MTC take cognizance of the CC? It cannot because it

17
judgment, LEAVE OF COURT IS NEEDED. Done via MOTION FOR LEAVE
OF COURT TO FILE CC. Attach a CC with the motion.
>When you file a motion for leave of court, you have to attach what you want
the court to consider (CC).
>This is because the Court must first read the CC to determine whether they
would grant the motion.
>If meritorious, MOTION FOR LEAVE OF COURT may be granted. The CC
attached to the Motion may now be admitted and made part of the records of
the case.
>Is a CC an initiatory pleading? It depends. If it is compulsory, it is not an
initiatory pleading because it is a continuation of the first case. But if it is a
permissive CC, it is an initiatory pleading.
>Eg. Refer to a pleading with a CC.
Prayer
1) That the complaint is to be dismissed
2) That on his CC, the Court order the P to pay the Defendant
>D is asking for the dismissal of the case and is also asking for P to pay.
>Does a prayer need to be verified? Yes, because it has a complaint. And
complaints always need to be verified.
>Must there be a certificate of nonforum shopping? Depends.
>CCC doesn’t need a CNFS. But for PCC, CNFS is needed, plus docket
fees.
>A PCC is separate and independent, and does not arise from the same
transaction subject matter of the case.
>Eg. P vs D for recovery of real property. However, D alleges that when
they were good friends, P borrowed money from him for which P signed a
PN the amount of which is 500k. Therefore, D now wants P to pay him the
500k loan. Is there a connection between the recovery of real property with
the PN? None. So meaning, can the D file an entirely separate case? YES.
But in order to avoid multiplicity of suits, D can include it as a Counterclaim
via PCC + Verification + CNFS + Docket Fees (A separate complaint
altogether).
>For CCC, initially there is no docket fees, but upon judgment on the CCC in
favor of D, the docket fees will constitute the first lien on the judgment in
favor of the D. At first, the D need not pay because it’s a CCC, but if he
wins, docket fees are deducted from what is to be awarded to him.
>PCC, may be included in the first case, or may also be filed entirely
separate from the main case.
>Eg. Interesting case daw. A truck and a van had a collision along a bend in
the road. Van landed in the ravine and was totally wrecked, while the truck
only suffered some damages on the front part. The first one who filed the
case was the truck owner against the van owner, claiming that the damages
amounted to 120k, thus filing it in the MTC. The van owner, upon filing of the
case against him, also filed a case against truck owner. Because the van
was totally wrecked, the van owner filed a claim of 450k against truck owner
before the RTC. The truck owner filed an MD based on litispendentia. Same
parties, subject matter, and reliefs sought in both cases. Truck owner said
that D should have instead filed a CCC, because his claim arises from the
same transaction subject matter of the complaint. But van owner questioned
the possibility of this since his claims was outside the jurisdiction of the MTC.
Truly, D’s case is a CCC, but because of the amount, it is taken out of the
jurisdiction of the RTC. If 2 cases are allowed to continue, there may be
conflicting decisions. What then can be done? CASES ARE TO BE
CONSOLIDATED IN ONE COURT. WHERE? RTC – COURT OF
GENERAL JURISDICTION.
>Consolidation is allowed in the RTC provided one of the cases is
cognizable by the RTC.
>If it is a CCC and is included with the answer, and the main complaint is
dismissed, is it automatic that the CCC is also dismissed? Not necessarily.
When a complaint is dismissed, it does not carry with it the dismissal of a
CC. Remember, affirmative defenses contain grounds for MD. Upon
hearing and court finds merit in the affirmative defenses in the answer and
dismisses the case, the dismissal is only limited to the complaint.
>The decision further continues, “The D is given 15 days from the receipt of
this order/resolution stating whether he will pursue his CC in the same case,
or choose to separately pursue.”
>If D pursues it in the same case, such is set for reception of evidence.
>That is why do not file an MD else you foreclose (once MD is granted) your
chance to file a CC. Because there is no such animal as a MD with CC.
Instead, file an Answer with CC so that you can pursue the CC even if the
case is dismissed by merit of affirmative defenses.
SECOND HOUR
>Students: Ma’am rest, REEEST!!!
>Judge M: No. I’ll finish this.
>Another Eg. 1st case was filed by P against H&W for cancellation of a deed
of sale (DOS) claiming that the DOS was not signed by the W, the property
being conjugal, and that any disposition thereof needed wife’s consent. In
the DOS, it is alleged that the W’s signature was a forgery. Another ground
that was mentioned was that the DOS was null and void because the H&W
are members of the indigenous people. Under the NCIP, for the disposition
of a land by someone from the IP, it should bear the approval of the NCIP.
Why? To show that IP understand what they are disposing of – that it is an
ancestral land. Anyway, as alleged, the DOS had no approval from the
NCIP. However, the case was dismissed because it turned out that there
was no forgery and that the NCIP approved it. The H&W was able to
produce a DOS with the approval of the NCIP. What was attached to the
complaint was a DOS without the NCIP approval. The P, not contented,
filed a case (2nd case) against the H (W passed away) for damages because
H rented out the property to somebody else, and that P was claiming the
rentals alleging that he was the owner. But because of Res Judicata, the
case was dismissed. The H then also died, and the P filed a 3rd case against
H&W’s children, reiterating the above-2 claims (which landed in Judge M’s
court). The children filed an Answer with CC. Their answer contained
affirmative defenses – Res Judicata, while the CC (enough is enough)- “we
incurred several expenses because of these expenses from the time of our
parents by the same old man. Thus we should be entitled to damages.”
Thus, the 3rd case was dismissed, and the children of H&W were allowed to
manifest whether they would like to pursue the CC in the same case or file
another case. The children decided on the former, thus the court set the CC
for hearing to receive evidence. No more pretrial. Was P notified? Yes.
However, during the presentation of the evidence of the CC, the P did not
appear. The children testified about the cases filed by the old disgruntled
fellow. Now the children were claiming for attorney’s fees and damages.
The court rendered favorable judgment on their CC.
>Was that a CCC? Yes. So far, that is the only CCC I granted in favor of the
D. All the other CCCs had no basis.
18
>Weak Heart Doctrine – Dismiss CCC hahaha. It takes more than saying >Judge M: You know, you don’t call it a CC because the CC is only against
“you could not eat or sleep” to prove moral damages. Anxiety and the person who filed the case. E can file 2 answers- Answer to a complaint,
depression must be shown. and ANSWER TO XC. Not “Answer to the XC with CC”.
>P vs D1 and D2. P (complaint), D (counterclaim). But is it possible for a D
to have a claim against another D? Yes. It is called a Cross Claim (XC). It
is a claim of one defendant against a co-defendant arising from the same
transaction subject matter of the complaint.
>If it is a CC, it can be compulsory or permissive. What about a XC? By its
very nature, it can only be compulsory. It is just called an XC. If a D has an
XC against another D, then they should have different lawyers.
>P lends money (1M) to D and E. But since D is the thinker and doer
(manager), E takes care of the finances. Their arrangement as far as the 1M
is concerned, D manages the business while E manages the finances in
order to pay P. D gives money to E for the latter to pay their debt to P. But
then, D receives a complaint from P for collection of sum of money so D
goes to E and asks him about the finances. D asks, “what have you been
doing with the money, bitch?” D files his answer and also files an XC against
E for the latter to take responsibility.
>Answer + XC. Check sample pleadings. D says, if the court finds me liable
for my share, then by way of XC, I want E to shoulder everything (that E be
made to pay all the loan including what I may be liable for).
>XC, by its very nature, is compulsory. So, if the main case is dismissed, will
it carry with the dismissal of the XC? YES, because it has no more legs to
stand on. The complaint gives rise to the XC. Were it not for the complaint,
there would not be an XC. So when you dismiss the main complaint, then
there would no longer be an XC to speak of. The XC is dependent on the
main case.
>Must an XC be verified? An XC is a COMPLAINT by one D against a Co-
D. So must it be verified? YES.
>Does an XC require a CNFS? An XC, as a general rule, is not an initiatory
pleading. HOWEVER, in a Supreme Court Circular, they consider an XC an
initiatory pleading for the purposes of DOCKET FEES.
>If taxes are the lifeblood of the nation, docket fees are the lifeblood of the
courts.
>Thus, being included among those considered as an initiatory pleading, an
XC require a CNFS.
>Also, because it concerns matters separate from the P but only between 2
Ds, then it would also need CNFS.
>Despite that, an XC derives its life from the main complaint. No main
complaint, no XC.
>Otherwise, dismissing the main complaint and letting E pay D would be
UNJUST ENRITSMENT.
>Since by its very nature a XC is compulsory, it then has be raised in the
main case.
>Can it be raised at any time before judgment (like a CC)? YES, but with
Leave of Court. The court will allow filing of XC on grounds of FAME, before
the judgment is rendered. If XC not raised in the same case, then it is
forever barred. That is why an XC has the same effect as a CCC.
>Question? Yes Valentine’s Day.
>Val: Ma’am can E file a CC against the XC filed by D against him?
>Judge M: So can E have a CC also against D?
>Val: Yes ma’am.

19

FINALS
AUGUST 29, 2013
AMENDMENT
-Any correction, substitution, alteration of the original pleading.
-Underline the “amended” in the heading “Amended Complaint”
-“Went to the house” is changed to “Went to the store”
-This is done for the Court to see what exactly are the changes
made. It can also be put in bold letters (consider etiquette), but
underlining is sufficient.
-What’s important is that the Court immediately notices the changes
made.
-Can the Plaintiff amend his complaint? Yes. Can the Defendant
amend his answer? Yes. When? It depends on the kinds of
amendments made.
-1) Amendment as a Matter of Right- A matter of right. You can
put any amendment. It is only a matter of right if done once before a
responsive pleading is served (not “filed”). There is a difference
between “served” and “filed”.
-For the plaintiff, he can amend his complaint as a matter of right
before he receives the answer, and not when it is filed.
-Eg. Today, you receive the answer. [Since service comes before
filing (what is filed in court is one that shows proof of service)]
However, the defendant won’t be able to bring the answer to Court
tomorrow. He is only able to bring it to Court on Monday. From
today and tomorrow, can you still amend your complaint as a matter
of right? No more. Because you received the answer today
(served to you).
-If as a matter of right, you can amend anything. Eg.P vs. D for
Forcible Entry. The assessed value of the property is 50K and P files
the case before the RTC. Right away, the Court can dismiss it
outright. On what ground?Lack of Jurisdiction.Even if the amount is
50K. Why? Because Forcible Entry is under the exclusive jurisdiction
of the MTC. But, the RTC was not able to see that. It took
cognizance of the case. When summons was served on defendant,
he saw that it was for Forcible Entry and was filed before the RTC.
Thus, D filed an MD grounded upon LOJ. Plaintiff receives MD. This
time, P files an amended complaint. The MD is set for hearing on
Friday next week, Sept 6. He thus files an amended complaint, and
underlines “amended” and changes complaint “Recovery of
Possession” and underlines it. Is this amendment allowed? (an
amendment conferring jurisdiction to a court that had previously no
jurisdiction – super super substantial). Yes, the amendment is
allowed. Because it is an amendment as a matter of right. ONLY
ONCE BEFORE A RESPONSIVE PLEADING IS SERVED. But wait!
There was a Motion to Dismiss! No, an MD is not a responsive
pleading. What is a responsive pleading to the complaint?
ANSWER. Was there an answer filed? None. What was filed by D
was an MD.
-Thus, under this, any kind of amendment can be made provided it is
done only once.
-Based on the above-example, when the Court receives the
amended complaint (which confers jurisdiction now to the RTC
because of the assessed value of 50K as to Recovery of Possession)
and finds that the MD no longer has a basis (LOD – Forcible Entry),
the MD is denied without hearing and Defendant is given 15 days to
file an answer to the amended complaint.
-Again, before being served the answer, P tries to make a 2nd
amended complaint adding damages and makes the proper
underlining. Now it becomes, “Recovery of Possession and
Damages”. Will the second amendment be allowed? NO MORE.
Why? Because it is already the 2nd amendment and that the P is only
entitled once before service of a responsive pleading.
-Supposing the MD was set for hearing on September 6, and on that
day the Court says, “ok we will consider the Motion submitted for
resolution”. Before the Court could even resolve the MD, here
comes the amended complaint “For Recovery of Possession”. Can
the court still accept it? Take note that the MD was heard already,
and is submitted for resolution. But before the Court could issue a
resolution, the amended complaint is submitted. Will it still be
accepted? YES, because there is no resolution yet. Again, a MD is
not a responsive pleading.
-Suppose the Court Dismisses the case based on the MD. After the
P receives the decision, he files an amended complaint on the next
day. Should this be accepted? YES. The decision is not yet final (15
days from receipt). Therefore, P can still amend complaint before
expiry of said period, provided he does it once before a responsive
pleading is served.
-Amendments should be done within the time given the D to file an
answer (15 days).
-ASSIGNMENT: PERIODS WITHIN WHICH TO FILE RESPONSIVE
PLEADINGS.
-Answer- 15 days.
-Foreign juridical entity licensed to do business in the Philippines- 15
days if summons is served to a resident agent, but 30 days if served
to a Gov’t office entitled to receive the same.
-How many days to file a reply? ASSIGNMENT. Memorize the
periods and the dates.
-So, P is to be guided by the 15-day period in filing his amended
complaint.
-How about D? He wants to amend his answer as a matter of right.
Can this be done? Yes. When? Once before a responsive pleading
is served. What is the responsive pleading to an answer? A reply.
How many days does the P have to file a reply? 10 days from receipt
of the answer (That is your assignment but I am giving it to you as a
bonus).
-Isn’t it that the filing of a reply is optional? (Except when answer is
based on an actionable document – mandatory, so D can deny under
oath). Whether or not a reply is filed, the effect is the same. When
would it be considered as a Matter of Right when a D wants file an
answer (considering that usually responsive pleading to an answer –
reply is optional)? When will we recon it? 10 days from receipt of
the answer. Therefore, if the D wants to amend his answer as a
20
matter of right, he has 10 day from the time he served his answer to
the P. But if the period expires, no longer a matter of right because P
will no longer file a reply.
-Summary- If its for the P, no problem because there will always be
an answer – thus, 15 days. But, for the D who wants to amend his
answer but is unsure whether P is going to file a reply, then it is to be
based on the 10-day period from service of answer to P. After the
10-day period, even if there is no reply filed, it is no longer a matter of
right. It will already have to be with leave of court.
- record. It’s just that it will no longer be considered because it has
-2) Amendment with Leave of Court- Needs a Motion for a Leave
of Court. “Motion to File an Amended Pleading”. When does this
come in? After a responsive pleading is served. Or, second
amendment before a responsive pleading is served. Or,
substantial amendments.Discretion of Court.
-What are considered substantial amendments? Eg.Increasing the
liability of a D from 500k to 1M.Or including another defendant.Or,
changing of COA.
-Motion for Leave to File an Amended Complaint / Answer is a
litigated motion. At all times when you ask permission from the
court, it is always a litigated motion because the court before
exercising its discretion has to listen to what the adverse party has to
say to the motion. Then, depending on the ruling of the court, it will
accept amended complaint/answer.
-3) FORMAL AMENDMENTS – Simplest. Only refers to clerical and
typographical errors. Can be done during the pre-trial
stage.Eg.Grammatical errors. You can just cross out such error and
insert correction, signature on top, and date. (instead of filing a whole
new complaint) Eg.“Okay madam witness, when was you born?”
-Non submission of a verification. How do you cure absence of
verification? Just make a formal amendment including a verification.
What if complaint has no CONFS, can it still be amended to include
such? NO. Absence of a CONFS is not curable by amendment.
-Any clerical or typographical error, or the absence of a verification
can be cured by a formal amendment.
-4) AMENDMENT TO CONFORM TO EVIDENCE- P vs D (damages
based on quasidelict). However, in the complaint, P only spells out
hospital bills, loss of income, professional fees (all of which are
actual damages) amounting to 500K. Thus, D files an answer and
they proceed to trial. In the trial, the only issue raised was WON the
P is entitled to her claim of actual damages in the amount of 500K.
That is only the issue. During the trial, P takes witness stand and
she testifies and presents all her receipts, bills, pay slips, etc. After
such, the P starts to give testimony regarding her ugly scar (run on
her stocking) and tries to prove moral damages. At that point, can
D’s counsel object? YES. If D’s counsel does not object and Court
believes there are grounds for Moral Damages even without such
having been stated in the complaint, can the Court award Moral
Damages? YES. The court will have to order the P to amend her
complaint in order to conform with the evidence.
-But despite the order, the P does not amend her complaint. Can the
Court still award Moral Damages? YES because the evidence is
already on record. Order is just for the increase of docket fees. If
there is no payment and there is no amendment, the additional
docket fees shall serve as the first lien on the award.
-EFFECTS of Amendments:
1) It supersedes the pleading it intends to amend. Supersedes –
prevails. Prevailing complaint / answer, superseding the old
ones.Now controlling. Original complaint / answer remains on
been superseded.
AUGUST 31, 2013
+++FIRST PARTS WERE NOT RECORDED+++
-That marked document now becomes part of the judicial affidavit of
the witness and must therefore be attached to the judicial affidavit.
What do we attach? The original copy. You will learn in your rules on
evidence that the best exhibit is the original document itself. At the
end, the witness signs.Since it must be under oath – then Jurat.
-NOT YET COMPLETE. The lawyer who took the statement must
also prepare an attestation clause. He will state that he, as the
lawyer, was the one who propounded the questions to the witness,
received the answers, recorded it, and did not in any way coach the
witness. He also has to appear before a notary public and he himself
will testify to the notary public as to the truth of his attestation clause.
-So in the Judicial Affidavit, you will see 2 Notaries Public. (The
lawyer who took the statement and the lawyer who subscribed to the
oath of the first lawyer).
-Judicial Affidavit must be submitted together with pretrial brief. If not
submitted, or a wrong JudA is submitted, the judge can fine you.
Finest Judges.
-In trial, the witness who has a JudA is presented. He will take the
witness stand and will be sworn in. Will be shown and asked about
the JudA for direct testimony. This cuts down the proceedings.
-JudAare attached together with the exhibits. It is submitted to the
court and furnished to the adverse party, for the latter to be ready for
the cross. (photocopies of the JA and exhibits
-JDR IS MANDATORY IN ALL CIVIL CASES. However, in criminal
cases, if the penalty is 6 years and below, it is mandatory (MTC has
jurisdiction). Thus, all criminal cases before the MTC requires the
use of JDR. But if penalty is 6 years, one day and up, the JDR will
apply only if the accused gives his consent. In these criminal cases,
who will get the testimony of witnesses? The prosecutors. Huge
implication, as it cuts short their gulf gulf time.
-For criminal cases, JDR is not applicable until January 1, 2014.
They have a 1 year reprieve to arrange logistics in their office.
However, if there is a private prosecutor, JDR applies. The private
prosec has to prepare the JudA.
21
-Supposing the lawyer is lazy and puts things straight in English?
Upon cross-exam of said witness and English is used, testimony can
be objected against. Once the court sustains this, the witness can
no longer be presented. JudA was wrong from the start because it
was prepared in English. So make sure you put it in the dialect of the
witness.
-Lawyer’s perception, not the witness’.
-The JudA of witnesses must be submitted together with the pretrial
brief, at least 5 days before the pretrial date.
-On the day of the pretrial, we do not have the pretrial. Why?
Because we will have the Court Annexed Mediation (CAM). File it
first in Court then go to Mediation.
-In the Philippines, there is a referral to the Lupon but it doesn’t work
because it is very political so they go to court anyway.
-Under the new rules (which will take effect probably next year), you
have to show that you have undergone 2 mediations before going to
Court (patterned from Canadian system). Under the new rules, you
go first to mediation. If it fails, go for arbitration.
-Right now we have mediation, but it is not in the Rules of Court. So
what is it’s authority? Check Rule 18 (Pretrial), under Section 2
(Things to consider during pretrial)- Alternative Modes of Dispute
Resolution. There must be other ways to resolve the case without
going to court. What would this be? Mediation.
-Accredited mediator is one who has undergone the necessary
training conducted by the SC under the Philippine Judicial Academy.
Qualification – At least 30 years of age.
-All civil cases require mediation.
-As to criminal cases- only the civil aspect of theft, estafa, qualified
theft, BP 22. Under the rules, the criminal aspect can never be
compromised. During settlement of the civil aspect, we still proceed
with the pretrial of the criminal aspect.
-It can also happen that upon compromise, the complainant would no
longer like to testify against the accused because of the settlement of
the civil aspect in the mediation. What happens then? The criminal
case would be dismissed because there is no longer any testimony-
not because it was compromised but because there is no more
evidence against accused. This is because the only who can give
evidence (private complainant) refuses. That is the reason why the
above-criminal cases are allowable for mediation as to the civil
aspect, and not other crimes such as murder, rape, etc.
-In said criminal cases, may parties refuse to mediate on civil
aspect? YES.
-Lupon – lawyers not allowed. Mediation – allowed.
-If parties enter a compromise agreement in a mediation, said
agreement is signed by parties. If lawyers are there, they also sign.
Then it is signed by the mediator, as well as by the staff of the
Philippine Mediation Center.
-If successful, the agreement is submitted to the Court. The moment
it is submitted to the Court, the court renders a judgment. What is
the judgment? It copies exactly the compromise agreement
verbatim.
-“Wherefore, finding the compromise agreement not contrary to law,
morals, public policy, etc. the court approves the compromise
agreement and renders judgment in accordance with the terms and
conditions of the agreement, and the parties are directed to comply
with the terms and conditions faithfully and religiously.” That would
now be the judgment.
-Judgment becomes final and executory on the day of the judgment
itself, because it is based on a compromise agreement. There is no
more trial. Therefore, since it was agreed upon by the parties, it
becomes final and executory on the day the judgment is rendered.
Therefore, case is over. YEHEY! However, it is easier said than
done.
-Mediation – win some and lose some
-If mediation fails, they go back to the same court. Now arrives
Judicial Dispute Resolution. Still, no pretrial. Now, the judge
becomes the mediator (not as a judge). All testimonies and
admissions are confidential. Cannot be used in court.Bawal
stenographers. Judge and parties lang.
-Stories about how awesome Canada’s Judicial system. Jury system
and whatnot.High tech facilities and stuff. You will cry daw. Enjoy
the fantasy before you go back to reality.
SEPTEMBER 3, 2013
FIRST HOUR
-Because we have CAM, on the day of the pretrial, we refer the
matter to mediation. If it is settled, then they have a compromise
agreement, the court issues a judgment based on the comp-ag which
becomes final and executory on the day it is executed. However, if
mediation fails, we go to judicial dispute resolution where the judge
acts as a mediator. We get the parties to come to a resolution of
their problems.
-In JDR, you do not look at the rights of the parties, but rather at their
interests. There may be rights that may be disregarded. If they
agree, the judge drafts out the comp-ag and lets the parties sign it.
The moment the comp-ag is approved, it becomes final and
executory on that same day.
-In JDR, there is an Early Neutral Evaluation. Both parties are hard-
headed and would not like to look at proposals. Judge gives a
neutral evaluation of the “outcome” of the case based on their
evidence. Eg. “You know, basing on your evidence, I think I will
judge in favor of the plaintiff.”
-If JDR fails and then goes to court, a different judge will handle the
case. The parties have the right to the cold neutrality of a judge.
With an ENE, impartiality is destroyed.
-If JDR fails, all discussed matter remain confidential and may not be
used against each other in trial. Then, Judge will have the case re-
raffled in other courts. Sometimes, this is the Pre-Trial proper but will
be conducted by another court.
-Supposing there is only 1 MTC judge and 1 RTC judge? That is
why JDR is not jurisdictional. In single sala courts, if it is JDR, the
RTC judge does the JDR of MTC cases vice versa.
22
-2 judges – Judge to whom the case was filed for JDR and the Judge
who conducts PT up to issuance of decision.
-Are all cases mediatable? Yes, except when it comes to probate.
-All civil cases, regardless of what kind of parties (natural or juridical),
are to undergo JDR. Regardless of their residence, undergo JDR.
PRETRIAL PROPER
-PT judge handles everything from PT to issuance of judgment.
-During the PT, the presence of all the parties is mandatory. It is not
enough that only the lawyers are present. However, if the parties
cannot be physically present, they execute a special power of
attorney in favor of a lawyer or whoever is going to represent them in
the pretrial.
-SPA, for purposes of pretrial, the authority of the attorney-in-fact
must be stated as contained in the rules (RULE 18, Sec 2). This rule
shows things to be considered during pre-trial.
-Right now, mediation and JDR are not covered by the rules. But
where do we derive authority? Look at Rule 18 – alternative rules of
dispute resolution. One of the things to be considered during pretrial.
-Alternative ways of dispute resolution – other steps to be taken
aside from relying on the court .
-If you cannot be personally present, the SPA should contain the
authority to enter into any of those listed from letters A to I. “I hereby
give my attorney-in-fact the power to a…b…c… copy all”
-If it is not all included, it merely becomes a regular SPA, and does
not contain the proper authority necessary.
-Can an SPA also be used in mediation and JDR? Yes. However, it
must also contain not only all those mentioned in Rule 18, but also
the authority to enter into settlement in mediation or JDR.
-The presence of the parties is more important than the presence of
the lawyer in the pretrial. If plaintiff is absent or has an AIF whose
authority is not complete, what is the effect? If plaintiff is the one
who is absent, the complaint is dismissed. What if the lawyer is
present? Still, the complaint is dismissed (unless the lawyer has a
complete SPA). However, the dismissal is only limited to the
complaint. What happens if there is a counterclaim? The defendant
is allowed to present evidence on the counterclaim.
-Why? Presence of the parties is mandatory.
-If it is the defendant who is absent, or the lawyer is not armed with
an authority, or there is an authority but does not comply with the
rules, the plaintiff will be allowed to present evidence ex parte (before
the branch clerk of court who is a lawyer – just like in default). What
happens to the CC of the D? It will be dismissed as well.
-If their lawyers are present, but the parties are absent, the case will
be dismissed.
-But if vice versa, the court will reset the pretrial and cite the lawyers
in contempt, or fine them for failure to appear.
-If it is a corporation or juridical person, usually the president or the
CEO represents. But, such authority must be contained in a board
resolution authorizing the former (or even their lawyer) to represent
them during the pretrial.
-If the defendant with the XC is the one present, he will be allowed to
present evidence ex parte against the absent defendant. But if the
defendant against whom the XC is filed is present and the defendant
who filed the XC is absent, then the XC will be dismissed.
-During the PT, the court will now issue a PT Order (PTO). Usually,
the first paragraph of the PTO will contain the authority given to
representatives (which shall be attached and made part of the record
of the case). Then, there is a brief summary of the case. Then,
there is the stipulation of facts. Under this, there are those that are
admitted and those that are disputed (Take note of stipulations of
proposals).
-You have to be smart enough to know what and what not to admit.
When it comes to admissions, be very careful. Under the admitted
facts, presentation of evidence is no longer necessary, because they
have already been admitted. If not admitted, put it under disputed.
During trial, these are now called “Judicial Admissions” because they
were admitted during the proceedings conducted in court. No need
to present proof as they are the evidence in themselves. However,
those that are disputed shall be subjected to the trial. Eg. Disputing
against the signing of the promissory note – has to be disproved.
That’s why in the stipulation of facts, be careful with what you admit
or deny.
-After stipulation of facts, we go to the issues. The issue is
sometimes factual (detailed – eg. WON the defendant signed the
PN), but more often than not, shortened (eg. WON the plaintiff is
entitled to his cause of action).
-Because of the JAR, the parties identify and mark the exhibits. Prior
to the JAR, the exhibits are listed in a documentary manner. But
now, documentary exhibits are no longer included. Testimonial
nalang.
-Trial Dates- In civil cases, the plaintiff always presents the evidence
first. In criminal cases, the prosecution is to present evidence first
because of the accused person’s constitutional right to presumption
of innocence. However, accused may present evidence first when
he pleads a justifying circumstance.
-Is there an instance where defendant presents evidence first in civil
cases? NONE. In civil cases, it is the plaintiff that claims his right is
violated. He has to be the one to present evidence.
-Usually, in JAR, 1 day = 1 witness.
-The PTO shall guide the trial. No other witnesses can be included.
Should have been included in the PTO. All witnesses should have
been named in the beginning. No surprise attacks. Should appraise
each other of evidence.
-These can now give rise to the Motion for Summary Judgment.
This motion is filed only after pretrial. You want the court to resolve
the case already, based on the pleadings, the complaint, the
admissions, etc.
-If a legal issue is what remains, no need to present evidence.
Judge’s job is to look for applicable law.
-Factual issue vs Legal Issue: Factual – won a certain incident
happened, won D signed a PN, etc. factual – needing evidence
because the judge is not a god that knows everything that happened.
23
As to Legal Issue- What law is applicable? Or the law is there but
both parties have different views on how the law is to be applied. No
need for evidence.
-MSJ- all the facts have been admitted and now only legal issues
remain.
-MSJ is filed either by the P or the D. On what ground? There is no
longer any factual issue. MSJ is a litigated motion.
-Eg. P vs. D, E, F, and G. P is the owner of a parcel of land. D and
E wanted to buy the property. But to pay it, the property had to be
mortgaged in order to pay for the property. But, the bank did not
want to accept said property because the ones applying for the loan
are D and E, since the property is in the name of P. If it was P who
would secure the loan, then there would not have been a problem.
So this is where the problem started. D and E told P to make a
simulated sale. In the said DOS, the property is to be sold to D and
E. Upon registration of the property in the latter’s name, they would
now apply for a loan. Once the loan is released, the money goes to
P in payment of the property and then D and E shall pay the bank.
However, there is a side contract saying that the property is not yet
paid, and that the loan is to be used to pay for the sale. P agreed.
So, there was a DOS, and the title of the property was cancelled and
registered in D and E’s name. So, D and E mortgaged the property
to the bank (F), the latter releasing the loan to D and E. However, D
and E did not pay P. Worse, they disappeared. So, F foreclosed the
mortgage since the loan was not paid. During the foreclosure sale, G
was the highest bidder. Therefore the property was transferred to G.
P, upon knowing all of this, filed a case against F and G (didn’t want
to file a constructive summons against D and E). So F and G filed an
answer. What P wanted was the return of the property in his name.
During the PT, the parties were there. In the proposals for
stipulation, P admitted that during the mortgage, the property was
already in the name of D and E. P also admitted that the title was
clean (no memorandum of encumbrance). P also admitted that the
sale was foreclosed, and that G was the highest bidder, and that G
was not a privy or a party to the transaction between P and D&E, nor
a party bet transactions bet D&E and the bank, and that G was an
innocent purchaser for value and in good faith. Thus, counsel for F
and G filed a Motion for Summary Judgment. The only recourse of P
is against D and E. Was there a factual issue? None. There was
only a legal issue. So, the Motion was filed and then was granted.
No longer needed trial.
-Summary Judgment comes in after pre-trial because the court takes
into consideration the admitted facts. When the court allows
summary judgment, it will direct the parties to submit their respective
position papers.
-However, in the above-case, P opposed the Motion for Summary
Judgment, claiming that there is a need to prove that F and G knew
about the transactions with D and E. However, P has already made
all the above admissions.
-Motion for Judgment on the Pleadings is different from Motion for
Summary Judgment because the former is filed by the P alone on the
ground that there is no more issue (because defendant admitted
everything in his answer). In the latter, it can be filed by either party.
In the former, it can be filed after answer has been filed but before
pretrial. For the latter, it is filed after pretrial. For the former, the
judgment will only be based on the complaint, answer, and reply. As
for the latter, this will be based on the pleadings, the admissions
during the PTO, and will take into account the position papers of the
parties.
SECOND HOUR
-After Pre-Trial, we now go to Trial. So what happens during Trial?
This is the time where parties present their evidence.
-Eg. P vs D and E. D has a CC (vs P) and an XC (vs E). E has a 3 rd
PC against F (E as 3rd PP vs F as 3rd PD). F has a CC against E.
-The P presents evidence first, of the allegations in his complaint. He
can’t defend himself against CC yet. Next, D presents evidence as
to 1) defenses in his answer, 2) his CC against P, and then 3) his XC
against E. D presents evidence all at once. After he presents
evidence, is he done? Yes. Then, it is E’s turn – 1) defenses against
the Complaint, 2) defenses against the XC, 3) his evidence of his
allegations in his 3rd PC. Next, F as to his 1) defenses in his answer
to the 3rd PC from E, 2) and his CC against the 3rd Party (E).
-After everyone has presented evidence, who goes next again? It
would be P, presenting his rebuttal against the CC of D or any other
allegations. As for D, he can file a surrebuttal against the rebuttal.
There is no longer rebuttal against surrebuttal.
-There is also what we call Separate Trials. On motion of the
parties, the court may allow upon its discretion separate trials. Same
as above. First trial would be for P to present evidence as above.
Second trial would involve D as above. And so on. In separate trials,
there can only be one judgment if there is one case.
-In the first approach, all the parties have to be present, unlike in the
separate trials, the parties involved will need to be present. The first
method is the procedure adopted now. The separate trials are
discretionary upon the court.
-All witnesses are subjected to direct, cross, redirect, recross. But
now, JDR takes its place.
-This time, upon filing of postponement, there is now a fee.
-Illness – Med Cert subscribed by a notary.
-Subpoena- a Court writ/process directed to a person to appear and
testify in court under penalty of law.
-Subpoena ad testificandum and Subpoena ducestecum. The first
one refers to the act of testifying. As to the latter, it is directed to a
witness to bring certain documents, books, or records to the court.
Must he testify on them? Not necessarily. Because these are just
records in his possession, and he would not necessarily know about
it or its contents.
-A subpoena is a coercive process. “Fail not under penalty of law”.
-For criminal cases, a witness who disregards a subpoena can be
arrested and can be made to pay a bond.
-In civil cases, the court can have the witness show cause as to why
he should not be cited in contempt for refusal to honor the subpoena.
But as an exception, a witness may be allowed to ignore the
subpoena upon invocation of Viatory Right.
-Viatory Right- if he lives more than 100 kilometers from where he is
to testify.
-However, if Kilometrage has been paid, viatory right cannot be
invoked. Subpoena must be honored.
24
-What if you can’t afford the kilometrage of an important witness?
Check modes of discovery.
-COVERAGE OF THE QUIZ ON THURSDAY IS FROM 3rd PARTY
COMPLAINT UP TO SUBPOENA. WHAT IS TO BE TAKEN UP
TOMORROW (SEPT 4) SHALL NOT BE INCLUDED.
-What if the body is in conflict with the dispositive portion? Which will
prevail? Dispositive portion will prevail, unless there is a glaring error
that dispositive portion is wrong.
-Judgment must be very clear as to leave no doubt, else a party may
file a Motion for Clarificatory Judgment.
-Judgment can either be without presentation of evidence or with
presentation of evidence.

1) Judgment WITHOUT presentation of evidence

a) Judgment by default
SEPT 4
-Allegations in complaint are sufficient
FIRST HOUR
-Can also be with presentation of evidence. When? If the
-Presentation of Evidence- After Plaintiff presents evidence, the D
court feels that
may file a demurer to evidence (DTE)
-Allegations in the complaint are not sufficient for
-What is a Motion to Acquit? Criminal case = Motion for DTE
judgment; or
-MD based on insufficiency of evidence = Motion for DTE
-There is a claim for damages (proven beyond
-There is no demurer if prosecution or Plaintiff has not yet presented
certainty)
evidence.
b)Judgment on the pleadings
-Criminal Case – DTE- must ask for LOC
-Based on complaint and answer
-There is presentation of exhibits.
c) Judgment by Compromise Agreement during CAM or JDR
-Parties are given 10 days to make comments.
-If with Comp Ag, no need to present evidence.
-Court would either admit evidence or not.
d) Summary Judgment
-Court won’t admit on the following grounds:
-Comes after pretrial
-Not material to the case
-Not competent
2) Judgment WITH presentation of evidence
-Not relevant,
a) Some instances in Judgment by Default (check above)
b)Full-blown trial with Judgment on the merits
-Now, with the JDR, all exhibits shall be contained.
-Each party is given opportunity to give evidence.
-If Plaintiff is convinced that the evidence presented is not sufficient
3) Demurer to Evidence
to reach a degree required to have preponderance of evidence, he
may file a Motion for DTE. No need for LOC in civil cases.
SECOND HOUR
-In criminal cases, if the Court grants demurer, this is tantamount to
acquittal.
-If in criminal cases there are promulgations of judgment, there is no
-If the court denies the DTE, the accused is made to present
such thing in civil cases.
evidence.
-So what happens if Judgment is rendered in Civil Cases? It is just
-If Motion for DTE is filed without LOC, or Motion for LOC was denied
given to the lawyers of the parties. This is served personally; or by
and still a DTE was filed, this can still be either granted or denied.
Regular mail.
-If denied, the case is deemed submitted for decision. No chance to
-All orders, resolutions, notices, and decisions emanating from the
present evidence because it is not with LOC. If it is a criminal case,
court are served to lawyers personally by an employee of the court
always ask for an LOC before filing an LTE.
called a “process server”. If the office of the lawyer is far, then via
registered mail.
>CIVIL CASES, for DTE, no need for LOC.
-Does the court pay for the registered mail? No. The court has
-Once court makes its ruling on the formal offer of evidence, then file
“Franking Privileges”.
the DTE right away. This can either be granted or denied.
-Basic Rule: Service to counsel is service to client.
-If granted, this leads to the dismissal of the case.
-Furnish parties as well.
-If denied, the Defendant is made to present evidence. No har no
foul.
-WHEN JUDGMENT BECOMES FINAL AND EXECUTORY
-If the case is dismissed, does the P have a remedy? Yes. Via
-In criminal cases – 15 days from promulgation. If it is an acquittal,
Appeal.Unlike in an acquittal (Final and Executory) where double
then on the same day.
jeopardy would arise.
-In Civil Cases- since given to lawyers of Plaintiff and Defendant, it is
-On appeal, if the appellate court agrees with the trial court, the
rare that they receive it on the same day.
former will affirm resolution of the trial court and thus dismiss the
-Eg. P’s lawyer receives decision on Sept 4. D’s lawyer receives it
case.
via registered mail on Sept 12. When will the judgment become FE?
-if The appellate court disagrees with the trial court, it will reverse the
Add 15 days for each. So, P can avail of remedies before Sept 19,
ruling of the latter, which is tantamount to denial.
while D before Sept 27.
-Will the defendant be allowed to present evidence? No more. That
-On Sept. 20, P’s counsel files a notice of appeal. Will the Court
is the danger. No longer allowed to present evidence.
entertain this? No. Beyond 15 days. But if it is Defendant that files
-Case will be decided based on P’s evidence alone.
notice of appeal on Sept 20, this will be allowed – up to Sept 27.
-Will the appellate court decide on the case or remand? The AC will
-Finality of decision for a civil case depends on the date of receipt by
decide on the case on its own. This is because the D is already
the party’s counsel. But for purposes of finality for entry of
depreived of his chance to present evidence. Plaintiff wins.
Judgment, then up to Sept 27. Meaning, by that time, it can be
executed. The decision becomes FE on Sept 28.
JUDGMENT DAY
-If decision has lapsed into finality without parties availing of
-Some use the word decision. Once it becomes FE – judgment.
remedies, such decision is entered into the Judgment Book.
-Rules require judgment must be personally prepared by the judge,
-Date of entry in the Judgment book is the date of finality, and date of
must be in writing, and must clearly state the facts and the law upon
finality is the date of entry. The dispositive portion is entered.
which it is based.
-What if the clerk is delayed in entering the judgment and enters it on
-Decision: Facts, law, body, and dispositive (decretal) portion –
October 3? Follow the principle above. If the decision becomes final
wherefore.
on September 28, then that is the date of finality, which shall also be
-Decretal / Dispositive portion is the judgment because it is the one
considered as the date of entry. Thus, in the book, the date indicated
that will be executed.
is Sept 28.

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26
 FINALS COVERAGE
REMEDIES BEFORE FINALITY
When must be done: Must be done within the 15 day period.If such
remedies are not availed of, the decision becomes final.
1. MOTION FOR RECONSIDERATION (MR)
It is always a Litigated Motion. Be aware that it needs notice of
hearing. Consider the 3 day notice and 10 day hearing rule. Address
adverse party’s counsel, and not the clerk of court, otherwise pro
forma motion.
Grounds for Motion for Reconsideration:
a) Excessive or insufficient award of damages.
b) Evidence does not justify the decisions, or decision contra
evidence.
c) Decision is contrary to law.
The moment MR is filed, the court may set it on the date filed for
hearing or the court sets it on its own. If the court sets the hearing,
notice of hearing is sent to person who filed the motion.
On the hearing day, the adverse party is given opportunity to file
comment to the MR.
After comment/opposition, the MR is submitted for resolution. It can
either be denied or granted. If MR is denied, the decision stands.
Such decision now denying the MR can be appealed. FRESH
PERIOD RULE (FPR) now applies.
In denial of MD, the person has the remaining days to file an answer,
but if it is less than 5 days, automatically 5 days, if MD is denied.
FPR gives a new 15-day period from receipt of order of denial.
Example:The decision was received on September 4. On
September 10, losing party files an MR. OnSeptember 13,
sets the hearing of MR. October 1 - resolution denying MR.
Oct 5- receipt of denial. Thus, party has up to October 20
to file an appeal because of the FPR.
What if MR is granted?The decision is then modified to suit whatever
it is being prayed for.
If the party is not contented with modification of the decision, such
can be appealed. The FPR does not apply, but still will have 15 days
because the modified decision is considered as a new decision.
Note that in FPR, the decision is not changed, but the rules give a
15-day fresh period and only applies if an MR is denied.
If an MR is denied, can a second MR be filed? NO. There’s no such
thing as a second MR. Parties are only entitled to 1 MR. Both parties
may file separate, but both are only entitled to 1 MR.
Exception: Supreme Court may allow more than 1 MR, since it is
discretionary upon them.
What if a second MR is based on a different ground? Still no, all
grounds must be placed together in 1 motion.
NOTE: 15-DAY PERIOD IS NON-EXTENDABLE.
2. MOTION FOR NEW TRIAL (MNT)
It is a motion asking thecourt to go back to trial because party is
unable to present evidence.
Grounds for a Motion for New Trial:
a) Fraud, Accident, Mistake, Excusable Negligence. (FAME)
Note: FAME is the same ground for Motion to Lift Order of Default. If
such grounds were already used in MTLO, such ground can no
longer be used in MNT. Use a different one (from FAME)
Fraud as a ground pertains to Extrinsic Fraud.
Problem: The plaintiff P presents evidence, and subsequently tells
defendant D that he will withdraw the case. As such, the defendant
did not present evidence.However, P suddenly pushes through with
the case. The case was then decided against D. Upon receipt of
decision, can Defendant file an MNT?
Answer: Yes. D must file not an MR, but an MNT. He is asking the
court that he be allowed to present evidence because he was not
able to do so. His motion shall be based on the ground of extrinsic
fraud, a scheme or a machination on the part of P, so that D would
not be able to present evidence.
Excusable negligence
Problem: The lawyer fails to appear every time. As a result, the
Judge gets angry, so judgment is rendered against the party. Party
changes lawyer and files for a MNT. Will the motion prosper?
Answer: Whether or not the case is with excusable negligence is
upon the discretion of the court.
The court may accept excusable negligence as a ground and they
may say that they will not allow the negligence of the lawyer to affect
the rights of a client. On the other hand the court may deny such
ground and impute the negligence of the lawyer to the client.
Note: Procedural requirement for FAME as a ground for any motion:
Affidavit of Merits (under oath) and MNT is always a litigated motion.
b) Newly Discovered Evidence
NDE pertains to new evidence and not a newly manufactured one.
Such evidence has been present all along, although could not be
found even with due diligence and with all effort. It only surfaced after
a decision was made. The movant was not able to present this
before because it was misplaced, lost, or for whatever reason.
Note: In order for this to be allowed as a ground, the NDE must be of
such character that if it is allowed to be presented, it will change
result of decision.
In the motion, it must be explained why the evidence was not
presented in time, and how it would affect the decision.
Example: Recovery of possession. PlaintiffP has a Deed of
Sale (DOS) executed by D’s predecessors in interest in
favor of P’s predecessors in interest. Both predecessors
died.
P alleges that the said DOS has been shown to him by his
father, however, they were not able to register the same,
and therefore the DOS is in their name but the tax
declaration was still in the name of the D.
P was not able to produce the DOS so the court dismisses
the case. The only evidence needed for the action is
missing. In this case the DOS has to be shown. After
decision was rendered, the P was able to find the DOS
within the 15-day period. P can now file a MNT based on
Newly Discovered Evidence. Such NDE can alter decision
of the court.
May a second MNT be allowed? Yes, provided it is not based on the
same ground. (It can’t be Fraud, then Accident, then Mistake, etc.)
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MNT can either be denied or granted.

If denied, the decision should be appealed. Fresh Period Rule can

be applied here as well (15 days from receipt of the denial of the
MNT). Point out (Assignment of Errors) the errors in the denial of the
MNT.

If granted, that means that the party is allowed to present

evidence.The decision which was rendered is vacated. The court will
go back to trial. Supposing it is only the defendant who ought to
present evidence, do we let Plaintiff present his evidence all over
again? Not anymore. Previously presented evidence is adopted. It is
now D’s turn to present evidence. Based on such, the Court renders
a new decision.Such new decision is appealable.

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3. MOTION FOR REOPENING OF TRIAL (MRT)
Differences between New Trial and Reopening of Trial
First, as to basis: MNT is under Rule 37 whereas MRT cannot be
found in the Rules. What is its basis? MRT is based on
Jurisprudence and usage. It has been practiced and thus allowed
ever since.
Second, as to when filed: MNT comes in after a decision has been
rendered. In MRT, there is no decision yet, but the case has already
been submitted for decision. It is filed when both parties rest their
case. Before the judge resolves the case,MRT can be filed. If the
judge already rendereda decision, the remedy is MNT.
Third, as to the grounds: In a Motion for Reopening of Trial, it may
be any ground upon the discretion of the court. FAME can be used
and even Newly Discovered Evidence, whereas in MNT, it is based
on its 2 original grounds only.
Example: In a case,D asks the witness if he can testify in
his behalf, that he did not receive any money from P since
the witness was there. But the witness says, “Sorry but
both of you are my friends. I’d rather remain neutral”. As
such, D loses in the case. After decision was rendered, the
witness goes to him and offers to testify. Can the witness’
testimony be considered an NDE? No. Witness’ sudden
change of mind is not considered New. However, said
witness can be presented as a ground for MRT.
4. APPEAL
An appeal is a statutory right. It is not a matter of right.What the rules
and procedures prescribe for it must be followed strictly and
construed against appellant.
It must be made within 15 days from receipt of the decision, or denial
of an MR, or the denial of a MNT.
Can a Motion for Extension be allowed for period of filing of an
appeal? No. Such is tantamount to extending the period of appeal.
The rule is that the 15 day period is non-extendable.
Who can appeal? Only parties to the case may appeal the decision.
A non-party has no ground to appeal.
Example:D did not file a third party complaint. Judgment is
rendered and 100K is within the indemnity agreement
between D and the insurance company. D does not appeal
within the period. Can insurance company appeal? No,
because it is not a party to the case. The judgment was
now to be executed.
D says that they cannot collect from him but instead, from
the insurance company because of the indemnity. So the
lawyer of D files a motion that the writ of execution should
be executed against the insurance company. The court
grants the motion, with an order directing the issuance of a
writ of execution against the insurance comp to pay liability
of D to the P. This time, can the insurance company
appeal? Yes. But what will it appeal? The decision? No.
Again, it is not a party to the case. Rather, appeal the
order, because that is where it got involved.
Note: A theory of the case cannot be changed on appeal.
Example: Recovery of Possession. D refuses to surrender
possession because he says he has been in possession of it longer
than P ever did. D lost and was ordered to surrender property to P.
D appeals and now says that he bought the property and thus he is
entitled to it. Is the contention of D proper?
Note that there is a change in the theory, from an adverse possessor
to a buyer. Change in theory is not allowed.
MODES OF APPEAL
1. Ordinary Appeal
How done: by filing a Notice of Appeal.
If the case emanates from MTC and it is to be appealed to the RTC,
the mode is via ordinary appeal. (notice of appeal)
If it emanates from the RTC and is to be appealed to the CA the
mode is also via ordinary appeal. (notice of appeal)
How is this done? Upon receipt of the decision and a party chooses
not to file an MR or a MNT, just prepare notice of appeal.
“Appealing the decision of the court dated (date of
decision), which the undersigned counsel received on (date
received) to the (appellate court).”
The date of receipt of decision must be indicated because the court
has to determine whether it was filed within the 15-day period.
Notice of appeal is only a notice, not a motion. Appeal fees mustbe
paid to the court of origin.
The court will just look at the notice of appeal, find out about the date
of receipt, and start counting 15 days from there. If it is filed within
the 15-day period, the court gives it due course.If it is out of the
reglementary period, then the court denies it.
If given due course, it is then forwarded to the appellate court.
What do you appeal?Only final orders are subjects of an appeal. A
final order is one that disposes of the case.
Final Order v. Interlocutory Order
A final order disposes of the case, while an Interlocutory order does
not dispose of the case, there is still something that the court has to
do.
In a FO remedy is appeal. In an IO, the remedy is a petition for
certiorari under Rule 65.
Problem: P presents witnesses. On said date, D’s counsel
was not around despite notice. No cross examination
because D’s counsel was absent.Waived said right.Same
thing happened with other witnesses without cross exam
from the D. P rests case. D changes lawyer, and the latter
files a Motion to recall P’s witnesses for cross-exam. Court
denies. D’s counsel files an MR, but this was again denied.
What should D’s counsel do? File an appeal or a petition
for Certiorari under Rule 65?
Answer: The order denying the D’s Motion is an
interlocutory order. Thus, D’s counsel should petition for
certiorari under Rule 65.
If P’s complaint was dismissed, is the said order FO or an IO? It is
an FO. The court has nothing else to do now. What if the D has a
counterclaim? Yes it is still an FO. If a case is dismissed, it is only
limited to the CC. And a D may pursue his counterclaim in the same
case, or in a separate course of action.
When the court gives an appeal due course, the court has 5 days to
transmit the entire records of the case to the respective court.
What if within the 5-day period, the winning party files a motion for
execution pending appeal? Can the court still act on it? Winning
party fears that loser might be disposing of properties while appeal is
being made. From the time the court gives due course to the appeal,
29
it no longer has jurisdiction to hear the case, because it would now
be the job of the appellate court. Here comes a motion for execution
pending appeal and the court has already given due course. But
then, the records are still with the said court. Can the court no longer
act on the motion of execution? YES it can, by virtue of residual
jurisdiction.
-Residual jurisdiction- remaining jurisdiction of the court because said
court is still in possession of the records of the case. Thus, said
court can act on a motion of execution pending appeal so long as it
still has the records via residual jurisdiction.
-Appellant- brings appeal. Appellee- person whom the case is
appealed.
-Under ordinary appeal, maintain title (Plaintiff- Appellant/Appellee,
Defendant- Appellant/Appellee).
-Case eg. A decision is rendered by a court. Since P received it first,
he only had up to Augus 20, while D had only up September 6 to file
an appeal. On August 20, the P, he files a notice of appeal. On
September, the D files an MR. What will the trial court do? Should it
give due course to the appeal or to the MR? The trial court acts first
on motions that are still within its jurisdiction. The court must act on
any and all incidents while it has jurisdiction of a case. If the period
within which to appeal by either parties has expired and there is a
pending appeal, that is the time that the court gives due course to the
appeal. Appellate court will not act on any MR or MNT. It will only
act on appeals. That is why the trial court has to wait up to the last
day for any remedies from the parties prior to giving due course to an
appeal.
SEPTEMBER 11
-Ordinary Appeal
-If appeal is made before the RTC, appellant will be direct to submit
his memorandum on appeal (written statement about errors
committed by lower court and what appellant is asking for).
-Memorandum on appeal – Discuss the errors, why they are errors,
and how the court should resolve the errors.
-Copy of Memo should be furnished to Appellee. The appellee has
15 days to file own Memo on Appeal from date of receipt of
Appellant’s Memo.
-Appellant is directed to submit Memo on Appeal first, lest it result to
dismissal of appeal. Likewise, failure to submit within 15 days –
dismissal.
-Filing of the Memo on Appeal is mandatory.
-What if Appellee disregards submission of Memo on Appeal? Will
the case be automatically decided against appellee’s favor? NO.
Won’t affect decision. It is up to the appellee WON he submits
Memo. Some appellees may even make a manifestation adopting
the decision of the lower court as his memorandum on appeal
(because appellee won in the lower court)
-As a rule, appeal is submitted for decision. No trial. But now, the
court sets case to JDR on appeal. Usually doesn’t work. Reraffled
to court that will resolve the appeal.
-In a crim case, accused appeals but does not submit a memo on
appeal. Will appeal be dismissed? NO. Here is where it varies. If it
is a crim case that is being appealed to the RTC from the MTC, the
accused and the prosec are given 15 days to SIMULTANEOUSLY
submit their respective memoranda. After 15 days, WON a memo is
submitted by either party, the RTC will decide the case based on the
records from the MTC. The appellate court will still have to go over
the entire records, unlike in a civil case.
-Is there a JDR on appeal in a crim case? Yes, as to the Civil aspect
only in cases of violations against BP 22, estafa, and theft.
-Eg. P vs D in the MTC. D files an MD grounded on LOJ. MTC
grants the MD. D wins. What is the remedy of P? Appeal or Rule
65?Appeal. MD is a final order, and not an interlocutory order.
Where will P file his appeal? Before the RTC.
-If the MTC dismisses it for LOJ, who then has a jurisdiction over the
case? Naturally, the RTC. Thus, if the case was dismissed by the
MTC for LOJ, and is appealed before the RTC, then the latter will
take cognizance of the case as if it was filed with it originally. No
need for RTC to ask the P to file the case before it again. It treats
the appeal as if the case has been originally filed before it. RTC will
require the P to pay additional docket fees.
-When the case is already before the RTC, it will no longer look at
the LOJ. It will now direct the D to file answer. However, if the LOJ
is an affirmative defense in the answer previously submitted to the
MTC, then the RTC will set the case for pre-trial. But if there was no
answer in the MTC, only an MD based on LOJ, then in the RTC the
court will ask the D to file an answer.
-In the same case, the D files an answer; however, after pre-trial,
trial, and finally in the decision of the MTC, it discovers that it has no
jurisdiction (or D includes LOJ as an affirmative defense but MTC
denies it), and D keeps insisting that MTC has no jurisdiction. What
will the MTC do? Will it decide the case on the merits? NO.
Because a court that has no jurisdiction cannot render a decision on
a subject case. Any decision it renders is null and void. Thus, the
MTC shall dismiss the case.
-In the above-case, if P files an appeal before the RTC and the latter
agrees that the MTC indeed did not have jurisdiction, the RTC shall
accept the case as if it has been originally filed before it. The MTC
trial shall be adopted.
-How about presentation of witnesses? The RTC did not get
opportunity to observe the demeanor of the witnesses? The RTC will
have to base it on the written transcripts, but may require the parties
to submit respective position papers to aid the court in the decision.
Then, the case will be decided on the merits.
-Take note: This is applicable only if the ground is LOJ and it is from
the MTC to the RTC in an ordinary appeal.
-Single salaMTC, bring the JDR on appeal to the nearest RTC.
-What about if it is from RTC to CA? Docket fees to be paid before
the RTC, and if notice of appeal is filed before the RTC within the
reglementary period, the court gives it due course and transmits the
entire record of the case to the CA. However, for as long as the
records are still with the court of origin, said court may still act on any
pending incidents that do not go to the merits of the case (Motion for
Execution pending appeal). This is based on a court’s residual
jurisdiction.
-When the case is before the CA, the latter shall require parties to
submit their briefs (from MTC to RTC – Memo on Appeal).
Submission of briefs has to be simultaneous. Afterwards, case is
submitted for decision. What is the basis of the CA in deciding the
case? First, the entire records.Second, the briefs of the parties.
-Can an extension to file an appellant’s brief be asked? Yes. How
about in the RTC? Discretionary won to grant extension.
B) Second Mode of Appeal is the Petition for Review
-If it is a case emanating from the MTC and is appealed before the
RTC, what is used is the ordinary appeal. However, if the RTC
renders an unsatisfactory decision? This can still be appealed before
the CA. But do we use an ordinary appeal? NO. File a petition for
review.
-In other words, a petition for review is a mode of appeal from the
RTC to the CA of decisions rendered by the RTC by virtue of its
appellate jurisdiction.
-15 days to file. Regardless of what mode, so long as it is an appeal,
15 days are is always given from receipt of the decision of the RTC.
-Can an MR be filed before the RTC (a case that originated from the
MTC)? YES. How about an MNT? No such thing in an appellate
court. An MNT can only be done in the court of origin.
-Upon receipt of an RTC by virtue of its appellate jurisdiction, then
you can file an MR or a Petition for Review. If an MR is denied,
apply fresh period for Pet for Rev.
-Pet for Rev, pay docket fees to the CA. It is no longer a notice. It
contains what has been discussed in the memorandum.
-Can a motion for extension of time to file a notice of appeal be
submitted? NO. 15-day period is strictly applied. Tantamount to
extending time to file an appeal. You only have 1 page for a notice of
appeal.
-How about for a Pet for Rev? Yes. Petition can be voluminous. But
fees necessary need to be paid for the CA to have jurisdiction. If a
motion for extension has been filed without payment of fees, the
court will not act on the appeal, and thus the 15-day period expires.
30
-Note changes of title. When it is a petition for review- eg.Defendant-
Petitioner vs. Hon Judge and Plaintiff-Respondents. Include judge
as nominal party (public respondent) because it is his decision that is
under review. The winning party is the private respondent.
-Will the petition require a CNFS? YES, because the rules require
that the petition filed before the CA should have a verification and a
CNFS.
-Before anything else, the CA will determine whether petitions are
sufficient in form and substance. If not with proper form and
substance (kunwari dilatory langdaw), can the CA dismiss it outright?
YES. But if it finds the form and substance to be appropriate, CA will
direct private respondent to file a comment to the petition for review.
Then, Petition may be required to submit a reply. Then, submitted
for decision.
C) The third mode is an Appeal by Certiorari (Rule 45) aka
Petition for Review on Certiorari.
-MTC to RTC- Ordinary Appeal
-RTC (origin) to CA- Ordinary Appeal
-RTC (appellate) to CA- Petition for Review
-CA to SC – Appeal by Certiorari
-The only way to reach the SC is by the third mode of appeal.
-Appeal fees are to be paid before the SC.
-How many days to file? 15 days from receipt of the CA decision.
-Before going to the SC, can an MR be filed before the CA? Yes. If it
is denied, does the FPR apply? Yes. 15 days again.
-Can a motion for extension to file a petition for review on certiorari
be made before the SC? Yes. Subject to payment of appeal fees, for
SC to cognizance.
-Title: Defendant-Petitioner vs. Hon. CA and Plaintiff-Respondent
-Must the petition contain a verification and CNFS? YES.
-Subject of Petition: QUESTIONS OF LAW.
-If SC finds petition to be insufficient as to form and substance, it can
be dismissed outright. Eg. Notice of appeal was filed before the SC
– DISMISS! Wrong form! Dilatory eklavu- DISMISS! No substance!
-When SC gives due course, the SC directs Petitioner to file
comment. If SC decides one unfavorable, can an MR be filed? Yes.
How about a 2nd one? Depends on the SC. It may foreclose any
further MR.
-For Mode 2, must the RTC forward the entire records to the CA?
Only if the CA requires. Sometimes the petition is complete in itself
so the CA won’t have to rely on the records.
-How about for Mode 3, from CA to SC, must the entire records of
the case be submitted to the latter? YES.
-Are there decisions of the RTC directly appealable to the SC via
Mode 3? Yes. Decisions involving constitutionality of law, executive
agreements, Pres decree, etc. Or, WON a tax should be imposed.
Jurisdiction of the court. Pure questions of law. CA may be
bypassed.
-Once the SC’s decision becomes final and executory, is there a
mode of appeal left? None. You pray.
-After judgment becomes final, supposedly for execution. However,
there are remedies after Finality of Judgment (Acts of Grace,
Consuelo de bobo) Construed strictly against party availing of this
remedy. If court finds out there could have been remedies before
finality, court dismisses this outright.
REMEDIES AFTER FINALITY
1) Petition for Relief from Judgment
-Asking to be relieved from judgment.
-To be filed before the same court that rendered the decision.
-Grounds: FAME (+AFFIDAVIT OF MERITS). However, if this has
been used in a Motion to Lift Order of Default, or has been used in a
Motion for a New Trial, this can no longer be used here.
-Act of grace. Complied with strictly.
-Must be filed within 60 days from notice of judgment AND within 6
months from entry of judgment.
-Eg. D’s counsel receives decision on Feb 5, 2013. He had 15 days.
He did not do anything about it, nor informed D about it. Because
there was no appeal, the decision became F&E on March 1, 2013.
Thus, P filed a motion for issuance of a writ of execution. Court
grants it. On April 1, the sheriff, with the writ, goes to the D. Sheriff
tells D the latter has to pay P 1M, according to the decision. D only
finds out about it, so he has notice of the judgment. His lawyer never
bothered informing him about it. D goes to another counsel on May
1. On May 15, D files a petition for relief from judgment. Was it filed
in time? YES. May 15 is still within 60 days from April 1. It is
likewise within 6 months from entry of judgment (March 1). Date of
entry is date of finality.
-What if D only goes to a lawyer on May 1, and it is only on July 1
that the PRFJ was filed. Is it still within the reglementary period? No
more. Even if it is within 6 months from entry of judgment, it is
beyond the 60-day period from date of notice of judgment. Thus,
filed out of time.
-What if he only found out about it on September 1, and files a PRFJ
on October 1. Was it filed on time? No. Within 60 days from notice,
but the 6-month period ended in August.
-Take note, the 60 days from notice and the 6 months from entry
should coincide.
-In an SC decision, PRFJ filed within the 6-month period and on the
61st day after notice of decision. The SC allowed this, saying that the
1-day lapse is negligible.
-In another case, PRFJ was filed within the 62nd day and within the 6-
month period. The SC ruled against this, saying that the trial court is
correct in dismissing the petition because the rules are clear.
-Do not be misled by the decisions as they apply in those cases only.
Always be guided by the rules.
SEPTEMBER 12
-If PRFJ is denied, can this be appealed? No. Denial of a PRFJ is
not a final order, but rather, interlocutory. Thus, the remedy is
Petition for Certiorari under Rule 65. It is not a final order because
what comes next? An execution of the order. The decision has
already become final.
-When a PRFJ is filed, a restraining order or prelim inj may be prayed
for- for the court not to issue a writ of execution, to avoid the defeat
of the PRFJ.
-If PRFJ is granted, it is the same as if a MNT has been granted.
This means that the judgment is vacated (even if it has attained
finality). Thus, back to court to present the evidence which were not
presented due to FAME.
-Take note. Rule 38, sec 6. There’s something wrong. MR.
-Afterwards, a new decision may be issued, allowing for the remedies
before finality of a judgment.
-That is why a provisional remedy to stop execution may be asked
for.
2)Annulment of Judgment (Rule 47)
-Only case which is under the original and exclusive jurisdiction of
the CA.
-If it is an MTC decision, AJ may be filed before the next higher court
(RTC).
-If it is an RTC decision, an AI may be filed before the CA.
-Why go to the next higher court when this action is not an appeal?
-Annulment of Judgment is an original action. All MTCs are all of
equal jurisdiction. Likewise with the RTC. Therefore, to annul the
judgment of a court, the next court in the higher level needs to be
approached.
-Supposing the CA renders an adverse decision, an appeal can be
made before the SC. Mode 3 (Petition for review on certiorari), even
if decision has been rendered by CA by virtue of its original and
exclusive jurisdiction.
-GROUNDS FOR AJ:
1) Extrinsic Fraud- Happens outside the court litigation (fraudulent
schemes that P had the case dismissed yunpalahindi). Intrinsic fraud
– perjury, use of forged document as evidence, etc.has something to
do with the trial.
-Prescriptive period – 4 years from discovery of the fraud. (Fraud –
Four.In any case where fraud is involved).
2) LOJ- Can be raised at any time.
-IMPRESCRIPTIBLE, but it can be defeated by jurisdiction by
estoppel and laches.
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-laches- unreasonable delay in asserting one’s right. (“delay” is not
sufficient. )
-Since this is an original action, will the CA conduct a trial? If the CA
finds necessity of receiving an evidence, it will assign an RTC judge
(not the origin) to receive the evidence of FAME or LOJ. After
receiving the evidence, such will be returned to the CA for the latter’s
decision.
EXECUTION
-Most awaited portion of civil procedure, in real life and not in the
classroom (ugh-ugh-ugh)
-GR: Only Final Judgments can be executed.
-Winning party files a motion for execution or motion for the issuance
of a writ of execution before the court. This motion is nonlitigated.
Ex parte.
-Once judgment becomes final- issuance of a writ of exec becomes a
ministerial function.
-The above is the GR, however, there is the concept of Motion for
execution pending appeal. Filed by the winning party.Very excited.
Litigated, because judgment is not yet final and the adverse party is
still to be affected.
-Final- nonlitigated. Not yet final- litigated.
-Writ of exec pending appeal is a discretionary function (unlike the
ministerial upon FJ).
-Movant will have to establish good cause, which are:
a) The losing party is disposing of his properties right and left. Even
if the winning party wins, he won’t be able to get anything.
b) Losing party is in the verge of bankruptcy.
c) The appeal is dilatory.
d) The advanced age or poor/deteriorating health of the winning
party.
e) Nature of the product to be delivered.
-Once good cause has been established, the court will require the
movant to post BOND. Money.To answer for damages which the
losing party might suffer because of the execution of the decision
when it is still on appeal.(Eg. Appeal was granted, but due to the
execution of the judgment he loses property and suffers damages.
The bond shall answer for the damages). Amount is under the
discretion of the court.
-Note: Establish good cause first, before being made to pay the
bond. The court will not allow posting of bond without first
establishing good cause. Cash bond, Surety bond. Property bond
(limitation – within the jurisdiction of the court)
-If there is no more reason for the bond, this shall be returned.
-After posting bond, the decision will be executed.
-What if the Appellant wins? Restitution (return back – former
condition) if possible.
-Back to Execution of Judgment. Prescriptive period for execution of
decision by a motion is 5 years from entry of judgment.
-Eg. Decision became final March 8, 2011 (same with date of entry).
On Sept 12, 2013, winning party files a motion for execution. Grant?
Yes, still within 5 years. Period ends March 7, 2016.
-Supposing 5 years has lapsed. September 12, 2016, winner files for
a motion for execution. Grant? No. The 5 year period has lapsed.
The decision can still be executed but not by mere motion. Rather,
through an action. Revival of judgment.
-Eg. P vs D for recovery of possession. P wins up to SC. P forgets
about it for 5 years, and suddenly remembers that he won. Can he
file a motion for execution of judgment? No more. File an action for
revival of judgment.
-Revival- docket fees need to be paid. Motion for execution – no
docket fees.
-Action for revival – verification + CNFS.
-File revival before the RTC (incapable of pecuniary estimation). Will
the court go about trial once again? No need. “The decision of the
court in the recovery of possession case is revived. –quoting the
dispositive portion---“. Wait again for 15-day period for it to be F&E
(DOUBLE FINALITY OF A JUDGMENT)
- DOUBLE FINALITY OF A JUDGMENT- Judgment in the previous
case became F&E but was never executed in 5 years by virtue of a
motion and is revived by an action and becomes final once again.
Thus, another 5 years for execution by motion.
-Supposing another 5 years lapsed and revived judgment was not
executed. Can an action for the revival of a revived judgment be
filed? Allowed, provided it does not prescribe (10 years from first
revival).
-If the delay for issuance of writ of execution is caused by the losing
party, the other party will be favored.
-A writ of execution has no prescriptive period.
SEPTEMBER 25, 2013
MODES OF DISCOVERY
-Modes of discovery- shortens proceedings
-One mode – not expressly disallowed (sometimes turns out to be a
mere hearsay) such as private investigation. For personal purposes.
1) Deposition
A) ORAL: -Made outside the court. Testimony – made within the
court.
-Either oral examination or written interrogatories.
-Deposition is used to preserve witnesses’ statements.
-Taken outside the court before a Notary Public or a Judge (different
from the judge in charge of the case)
-Expenses- to be paid by the one having the statements taken.
-If no answer has been filed yet, then a deposition is to be taken with
leave of court.
-If an answer has been filed, taking of deposition is now a matter of
right.
-In both cases, the other party has to be notified. If lawyer of adverse
party does not appear despite notification, said party deemed to have
waived right to cross-examine.
-If there are objections during deposition, these will be noted by the
NP/judge and put on record. The judge in the trial will rule on these
objections if such are presented as evidence. After transcription,
parties and witness need to meet again and verify. Both parties are
entitled to a copy of the deposition.
B) Deposition through Written Interrogatories
-Prepare the questions and send it to the Notary Public. The latter
will summon the deponent and swear him under oath. The Notary
Public now asks the questions while the stenographer transcribes the
records. A copy of the questions with the answers are then sent
back to the P’s counsel and to D’s counsel. Upon receipt, D’s
counsel prepares cross written interrogatories and sends it back to
the NP. The NP calls for the deponent once again asks him the
cross-exam questions. Stenographer transcribes. NP sends back
questions and answers back to parties. Same happens with redirect
and recross. All the results are provided for both parties.
-During trial, can P decide not to present depositions in court? Yes.
However, adverse party can present it.
-Substitution- substitute can use deposition (father- son).
-Can a party give their deposition? Yes. Annulment.
2) Interrogatories to Parties.
-Distinguish from written interrogatories - can refer to a party or a
non-party. In Interrogatories to Parties – it refers to parties alone.
Party to party.
-This is used to elicit information from the adverse party. Thus,
prepare a set of questions which you will request for the other party
to answer.
-No need for LOC, just send it to the other party.
-Limit to factual questions. What – Where – When – How
-Avoid “Why”
-Answers must always be in writing and under oath.
-If a party refuses to answer, the court can direct a party to answer
under pain of contempt.
-Can the P present the D as his own witness? Yes – however, a
hostile witness. But before he can be presented as a hostile witness,
as a condition, interrogatories to parties must first be used.
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3) Request for admission:
-Refers to parties alone
-For the other party to admit the authenticity of a document, or admit
pertinent facts.
-Supposing a party denies genuineness of a document in an answer
with a specific denial under oath? And then here comes a request
for admission.
-Some authors say this can be denied again. Others say this is just a
redundancy.
-If there is a request for admission which has already been denied in
an answer, state that such has already been denied in the answer.
-If no action is taken on the request for admission – Implied
Admission.
-Limit- applicable only to the case where the request is made.
-Eg. Same document questioned in 2 different cases. Admissions
used in first case cannot be applied in the other or for any other case.
-Party to Party only.
4) Production of Records / Inspection of Things
-can apply to parties and non-parties.
-Used when there is voluminous amounts of records to examine.
-Non-admission of liability – settlement without admission of fault
(doctors)
-Always through a motion. Court grants it and orders person who
has possession and control of such documents to bring it to court.
Such documents have to be photocopied.
-LIMIT- not under privileged communication (Priest, attorney and
client, doctor and patient).
-Purpose of production: To copy and reproduce for records.
-For inspection of things – if party refuses- contempt of court.
5) Physical and Mental Examination of Party
-Party to Party (not on witnesses)
-LIMIT- only when the physical or mental condition of a party is in
issue
-Eg. Annulment – psych incapacity, legal separation – sterility,
damages – scars within daw.
-If court allows examination, the person availing of the mode shall
provide doctor and pay for expenses. The person who asked for the
examination is entitled to the results. If the defendant gets a copy of
the result, the effect is that he can no longer present any other
examination that will refute the earlier one.
-If person examined had results of exams prior to the exam
requested by the other party, then the former can present said results
in evidence even when he requests for results of the latter one.
-What if he does not request for the results? Can he present
subsequent results? Yes, provided he proves he has no inkling about
the results of the exam requested for by the other party.
-Can the deposition of a witness be used to destroy the credibility of
said deponent? YES. Point out contradictions.
-Affidavit vs Deposition. An affidavit is self-serving, but not
necessarily the truth. A deposition gives the other party to test
whether statements of the deponent are true. Affidavits usually has
no probative value, unless affiant is presented as a witness. Such
affidavit is useless when no affiant is presented for cross-exam. A
deposition shall be admitted outright.
BACK TO EXECUTION
-Revival – 5 – 10 rule.
-The court prepares a writ of execution addressed to the sheriff. In
the writ, the dispositive portion of the decision is copied verbatim.
-Writ can never go beyond the dispositive portion of the decision,
which is why it is quoted verbatim. If it is not, then the writ is null and
void. Thus, the aggrieved party may ask the court to declare said
writ null and void.
-The moment a writ is issued, the sheriff has to make a report every
30 days about the execution of the judgment.
-Eg. Sheriff receives a writ. Brings it to D and presents writ – 1M.
The sheriff issues a receipt that he got 1M from defendant and the
sheriff brings the 1M to the P and the latter acknowledges it.
Afterwards, the sheriff makes a report stating that he collected,
delivered, and attached receipt of P. The writ of execution is
returned duly satisfied. The moment the court receives that, the case
is over. The court issues an order considering the case closed and
terminated. Such case is stored in the archive for 10 years.
September 26, 2013
-Execution- anything that has a monetary claim- Sheriff has to make
a kada-30-day update. But what if the defendant really doesn’t have
any money or doesn’t want to give any?
-Garnishment – You put garlic, vinegar, into your salad
-Notice of Garnishment authorizes the sheriff to issue notices of
garnishment to the banks in hopes that the defendant has cash in
said banks.
-Violates bank secrecy act? A bank cannot be compelled to reveal
how much a person has in a bank (except – anti-money laundering
law)
-Notice of garnishment does not go against said statute. The notice
just lets the bank know that if said defendant has money in that bank,
then the latter should hold the money. The bank doesn’t have to
reveal the amount of money.
-“If this person has an account in your bank and has money in it,
please hold it. It is under custodialegis because a decision has
already been rendered against him”
-The recipient may deny or confirm that the defendant indeed has an
account there.
-The sheriff may ask whether the account is sufficient to satisfy the
judgment.
-The bank may say yes or no (dormant account).
-Notice of Garnishment may also be issued against persons who owe
money to the defendant. Eg.Employer.
1) Levy
-Supposing there is no cash at all? Levy.
-Levy – to take hold into custodialegis
-First, personal properties of judgment debtor
-(NOTE Sec. 13 Rule 39, properties exempt from execution)
-Sheriff gets everything of value.
-Lawyering books – safe. Objects of profession
-Sold to public auction in order to satisfy debt.
-Judgment creditor can participate, and when he gets the highest bid,
the property will be credited against the debt.
-If personal properties are not sufficient, real properties are now
levied upon for execution sale.
-Sheriff issues a certificate of sale in favor of the highest bidder which
must be registered with the register of deeds where the property is
located.
-It is the registration that starts the 1-year redemption period.
-If this is not registered, the 1 year redemption period will never start-
thus, can be redeemed anytime. The judgment debtor, along with
the heirs, can redeem the property even beyond 1 year.
-Who pays for all the fees? Kawawang creditor.
-In case the judgment creditor bids the highest and receives the
certificate of sale, he still has to pay for registration.
-You pay for every document. And where does it go? Pork Barrel.
-If the 1-year redemption period lapses, the sheriff issues a final
certificate of sale. The owner’s duplicate copy of the title is canceled
and the new one will be issued in the name of the judgment creditor
or whoever is the highest bidder in the auction sale.
-If judgment debtor exercises right of redemption, has to pay
additional payments (fees involved in the proceedings during the
redemption sale) on top of the highest bid.
-Sheriff issues a certificate of redemption and would no longer be
transferred to the name of the highest bidder.
-During the 1-year redemption period, the registered owner is entitled
to possession of the property. Thus, entitled to the rentals, fruits,
expenses for repairs.
-However, he cannot make improvements on said property during the
redemption period. He cannot claim his improvements if property
goes to highest bidder. A builder in bad faith loses everything.
33

2) 3rd Party Claim
-Supposing one of the properties levied upon belongs to a 3rd person,
what is the said person’s remedy? Execute a 3rd party claim. Do not
confuse this with a 3rd party complaint.
-The 3rd party claim is actually an affidavit executed by the 3rd party
stating that he is the owner of the property taken by
The sheriff. He can also attach proof of ownership to the affidavit,
and ask why/explain it is in the possession of the judgment debtor.
-Gives copy to the sheriff, to the court, and to the winning party.
Once sheriff receives 3rd party claim, he shall no longer take said
property.
-If winning party would like the sheriff to take hold of the alleged
property of the 3rd party, the 3rd party would have to post bond, which
is more or less the equivalent value of the subject property. Bond
answers for damages in case erroneous levy.
3) Recovery of possession
-Recovery of possession- judgment as follows: “…directing
defendant to turn over possession to the plaintiff”. How can sheriff
execute this?
-Eg. Parcel of land. Sheriff would just present said land to plaintiff.
That’s it. If there are plants there, the defendant may be allowed to
uproot said plants without prejudice to allowing the defendant to
harvest crops when ripe for harvest.
-Supposing there is a house on said property? Remove all the stuff
and padlock the house. Tapos give the key to the plaintiff. That’s it.
-Supposing plaintiff says he doesn’t need the house and wants it
demolished? The sheriff can’t demolish. The plaintiff has to file a
motion for the issuance of a writ of demolition. This is clitigated-
notify the defendant to give him a chance to demolish it himself.
-When writ is issued and is to be executed, law enforcers should be
at hand to keep the peace.
-Supposing it is reconveyance?
-If after the 1-year redemption period lapses and the title of the
highest bidder – registered owner becomes incontrovertible and
indefeasible, the remedy is reconveyance.
-Reconveyance respects indefeasibility or incontrovertibility, but asks
court to convey property to person who files the action.
-Deed of reconveyance- executed by loser (defendant) in favor of
winner (plaintiff- the one who brought and won the action for
reconveyance). Must include technical description of property.
-The title along with the deed of reconveyance is submitted to the
register of deeds. Cancels the previous one and issues a new one in
favor of the winner.
-Supposing defendant doesn’t want to execute a deed of
reconveyance? He can’t be cited for contempt. However, the court
can order another (usually the clerk of court) to execute said deed of
reconveyance in favor of plaintiff.
-Defendant possesses owner’s duplicate copy of the title, however, is
given 10 days to surrender said title to court or register of deed from
the date of the execution of the deed.
-No registration of any deed concerning registered property will be
effected unless the owner’s duplicate copy of the title is surrendered.
Else, there will forever be a cloud of doubt with such floating title.
-If not surrendered, court orders said duplicate copy to be declared
null and void and orders registrar to issue a new owner’s duplicate
copy of title in the name of the “registered owner” (defendant). As if
a new duplicate has been issued kasingaayawisurrenderyungunang
duplicate, which was thus declared null and void. Now with the new
duplicate, along with the deed of conveyance, shall be surrendered
to the register of deeds. Said copy will be cancelled, and a TCT shall
be issued in the name of the plaintiff. Now reconveyed.
OCTOBER 1, 2013
4) Special Judgment
-One where defendant-obligor can perform the obligation alone. (eg.
Mandamus – BAWADI to reconnect water supply.
AlangannaBeneco)
-If they refuse- contempt of court.
-Another is “support”.
-Action for support- one filed by minor child assisted by parent.
-Petition for support can be coupled with provisional remedy of
support pendent lite.
-No need to post bond.
-In initial hearing, if a ground is found to exist, may grant pendent lite
while case goes on (pending litigation)
-Why is it a special judgment? Because only the father can give the
support. If the father dies, the case dies as well. If the child dies, the
case dies as well.
-This is also a continuing judgment. The court may grant increase
even after 5 years from finality of judgment (eg. Growing child needs
bigger support)
-What if mother of child refuses support because she has a stable job
but then loses her job and files an action for the execution of the
judgment on support? Grant, because this is a continuing judgment.
Past support can be waived, but never future support.
-At the end of the trial it was found out that the defendant is not
actually the father (group project daw). He has been giving support
pendente lite. Can he get it back? No. But he can get it from the
real father, and not from the child.
-Support pendente lite can also be found in criminal cases such as
rape, seduction, abduction, etc. as civil liabilities.
5) Foreign Judgments
-How can this be executed in the Philippines? Not through a motion,
but through an action
-An action for enforcement of a foreign judgment.
-Present the foreign judgment.
-The only proof needed is that the claimants show that the court that
rendered the judgment had jurisdiction to do so, and that there was
no fraud or collusion in securing the judgment, and that there was
due notice to the parties (due process requirements complied with).
-If defendant resists such foreign judgment, then he proves the
opposite of the above. Court had no jurisdiction, that there was fraud
or collision, or that there was a violation of the due process.
-Foreign divorce – enforcement of a foreign decree of divorce – filed
before the family court. Same as above.
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 PROVISIONAL REMEDIES
Provisional means temporary.
These remedies cannot be filed on their own. They have to be
coupled with the main action.
Again, remember why a person files a civil case, because there is a
cause of action.
How will you get temporary relief or resolution to keep defendant
from violating your right?Through provisional remedies.
Kinds of Provisional Remedies (Rules 56-60):
1. Attachment
2. Preliminary Injunction
3. Receivership
4. Replevin
5. Support Pendente Lite
What is common among the first four remedies? It may be obtained
through the mere execution of an affidavit (why he is availing of
such remedy).
As for Pendente Lite, a petition must be filed and not an affidavit.
Other requirements: Bond to be posted by the applicant to answer
for the damages that the defendant-respondent may suffer due to the
provisional remedy.
Just in case the defendant-respondent is not actually violating any
right and was asked to stop and as a result he suffers damages,
such bond will answer for the damages. In Support Pendente Liteno
bond required.
1. Attachment (Rule 56)
Main action (may be collection of sum of money.)
Plaintiff feels that defendant is about to abscond or defraud creditors.
He may file with the court, example:Sum of money with prayer for a
Writ of Preliminary Attachment. (Main action is sum of money and
provisional remedy is preliminary attachment)
Such may be conducted ex parte.Even without conducting a hearing.
Once the prayer is granted, the court may issue a writ of preliminary
attachment, with or without respect to an attachment bond
(Discretionary upon the court).
Attachment bond shall be returned to applicant in full when not used
in favor of defendant-respondent.
Plaintiff-petitioner may file a surety bond or property bond (within
jurisdiction of the court). Determine the assessed value of the
property attached since the latter is constant unlike market value.
Upon posting of bond, the writ will now be issued.
It may be issued ex parte but cannot be implemented without the
court having jurisdiction of the defendant. Thus the implementation
must be contemporaneous with service of summons. In other words,
the writ cannot be implemented without having jurisdiction over the
person of the defendant.
Attached properties do not make any distinction. All taken into
custodia legis.
Properties exempt from execution are also exempt from
attachment.
Sheriff would now bring attached properties to the court.
Philippine setting: No storage for attached properties, especially
movables, which is why sheriffs usually attach on real properties.
After serving summons, and then providing a copy of the writ of
preliminary attachment, he goes to the register of deeds and
attaches on all properties of the defendant subject of the attachment.
It shall be the responsibility of plaintiff-applicant to identify and
provide for said properties. At his own expense
In case of Real Properties, title will be attached. It serves as a burden
on the Property. Suchproperty may be sold, but the attachment will
follow (It is a more superior lien). If there is a notice of a writ of
preliminary attachment, prima facie evidence that there is no buyer in
good faith. Thus, WPA serves as a warning.
Said attachment may be sustained until case is over, thus
attachment may either be cancelled at the end of the case or levied
upon.
Note: At any stage after an answer has been filed, an application for
a writ of preliminary attachment is always LITIGATED. There must be
proper hearing, as the rights of the adverse party can be affected.
Remember extraterritorial service of summons. Attach upon his
properties, convert in personam to in rem.
What is a Counter bond? It is posted by Defendant to dissolve the
WPA. It answers for damages which plaintiff may suffer because
there is no longer any attachment.
2. Preliminary Injunction (PI)
It means to enjoin or to stop.
Kinds:
1. Prohibitory Injunction – mere prohibition or stoppage
(Ordinary Preliminary Injunctions)
2. Mandatory Injunction – prohibition coupled with something
to do. (Mandatory Preliminary Injunction)
PI may be a provisional remedy that may be a main action in itself.
Example: BAWADI disconnects your water pipes. In order to stop
them, remedy is prohibitory injunction.File a main action of injunction,
plus preliminary prohibitory injunction.
TRO until the case is closed.
What if water got disconnected? Main action of injunction plus
preliminary mandatory injunction for BAWADI to reconnect water
immediately pending the case.
If attachment can be issued ex parte, preliminary injunction will
always have a hearing, even for a TRO.
Exception:72 hour TRO (Issued by an executive judge.)
Example: An association threatened with demolition of their houses
because they are on a titled property belonging to someone else.
The association claims that they bought it from an owner with
Spanish title. Thus, the owner complains at the city hall and
complains that there are squatters there.
The zoning finds that the buildings didn’t have any building permit.
Thus the local government can demolish houses.30 days for
squatters to demolish own property. They refuse, so a writ of
demolition is scheduled the following day. Thus, they go to court for
a TRO to stop the demolition to be carried out the next day. If the
executive judge believes this to be an urgent matter, (there must be a
35
grave and irreparable injury as well as an urgency) he can issue it
without hearing, effective 72 hours (3 days) preventing the LGU from
demolishing the houses.
File an action for injunction with a prayer for the issuance of a TRO.
Attached to their complaint is the required affidavit (as to why they
need the injunction). Since this is issued ex parte, can’t be enforced
by sheriff unless court acquires jurisdiction over defendant. The clerk
of court issues the summons to prevent delay. Summons addressed
to the local government officials along with the 72-hour TRO. If the
judge believes that there is no urgency, will not issue the 72-hour
TRO but direct the case raffled. The court that is chosen in the raffle
must determine whether it should issue a TRO (magulo to). But take
note: If the executive judge issues the TRO, within 72 hours the
case must be raffled to a court, and the court upon which the case is
raffled to must immediately conduct a hearing to determine whether
the 72-hour TRO must be extended to a Full TRP which is good for
20 days. Any extension is null and void. No extension for a TRO.
Take note that the 20 days includes the 72 hours (so bale 17 days
extension nalang). Posting of bond is required. If judge finds no
urgency and does not issue a TRO (reconcile this with notes
highlighted in blue), the judge will set the case for hearing to
determine whether a writ of preliminary injunction will issue. The
applicant plaintiff has to prove that he really has a right that will be
protected by the injunction. Upon issuance of preliminary injunction,
it will mean that defendant can’t do what he is doing while case is
pending. If plaintiff can’t prove that they really have a right, the
injunction becomes permanent.
-Extended TRO for CA – 60 days. For SC- until lifted.
-There is a law that prohibits courts from issuing TRO or prelim
injunction against public infrastructure projects.
-Unconstitutional tax measure- no injunction. Rather, pay tax under
protest.
3) Receivership
-Receiver- 3rd party appointed and tasked by the court to administer
the property subject of the litigation.
-Main action –
-Eg. Husband mismanages properties so wife wants to be appointed
as administrator so she files a petition for appointment as
administrator of conjugal properties (main action) and asks a
provisional remedy for receivership to prevent all properties from
dissipating while case is pending. The court will appoint a receiver to
manage the properties, to preserve it up to end of trial.
-Who can the court appoint? Both the wife and husband may
recommend, but the court chooses. Receiver answers only to the
court.
-2 bonds- Receivership’s bond and receiver’s bond.
-Receivership bond – posted by wife which husband might sustain
because of deprivation of administrative powers.
-Receiver’s bond- posted by receiver supposing he might mismanage
the property.
-Receivers get a salary chargeable against expenses of
administration. If job is done, accounting and inventory is conducted
by said receiver. Afterwards, get bond back.
-Receiver manages property while case is pending.
-Receivership bond cannot be applied for ex parte. Always with
hearing.
-Provisional remedy of receivership may be provided at a latter stage
or at the end (eg when conjugal partnership of gains is dissolved and
remaining is put in trust for children) – receiver in aid of execution.
4) Replevin
-Main action- Recovery of personal property with prayer for the writ of
replevin.
-The first 3 provrems- the court sets the bond.
-In replevin, the applicant himself sets the bond based on the affidavit
he executes.
-Eg. Car company sells car to buyer via downpayment and then
installment. Buyer defaults in installment, so acceleration clause
occurs. Since full purchase price not paid, ownership still belongs to
company. Thus, company files recovery of personal prop with prayer
for writ of replevin. In its affidavit, it will state that it is the owner of
the car, along with the market value of the car, the latter becoming
the basis of the bond. However, the bond will be twice the amount of
the fair market value. When the company files the complaint along
with the affidavit, this must contain the bond, because replevin is
issued ex parte. All that is issued ex parte cannot be executed
without acquiring jurisdiction over defendant. The court needs
-If in attachment there is a counter-bond, here there is a redelivery
bond.
-The defendant is given 5 days to file redelivery bond which is the
same amount as the bond.
-Where to file for recovery of personal property- depends on the
value of the personal property (jurisdictional amount)
OCTOBER 5, 2013
6) Expropriation
-Eminent Domain is the right (substantive). This is how it used to be
called.
-How is it enforced? Through expropriation proceedings.
-Filed before the RTC- incapable of pecuniary estimation.
-2 stages of trial:
a) propriety of expropriation
-plaintiff- RP or gov’t institution vs private individual
-What does plaintiff have to prove? That the property is for public
use. Prove in the first stage.
-If private individual has no objection to the taking, then there is no
need to file an answer. Just file a manifestation and state that there
is no objection to the taking.
-If no objection, must the government still prove that it is for public
use? Yes, it has to. Because there is disbursement of public funds.
-What if defendant objects? Then he must file an answer.
-Motion to Dismiss is not allowed in expropriation proceedings.
-If he has valid grounds to file a motion to dismiss, then defendant
has to put this in his affirmative defense.
-After first stage, can the court render a decision? Yes.
-Whether or not for public use.
b) Second Stage- Just compensation
-Will come in only when court determines that it is for public use. If
the taking is only for the building of a gold course for napoles and
friends, then the court will deny, and there will no longer be a 2 nd
stage.
-Can defendant appeal decision even if there is a second stage?
Yes. There is where record on appeal comes in.
-Record on Appeal- reproduction of the record of the original trial.
Note that second stage commences so records must remain with the
court dealing with the expropriation proceedings.
-The Record on Appeal is the one forwarded to the appellate court
for purposes of appeal.
-Thus, there are 2 records: The first one stays in the original court
for purposes of proceeding with the second stage, while the second
one is sent to the appellate court for purposes of appeal.
-Who is responsible for the production of record on appeal?
Appellant. He will be given 30 days to produce record on appeal.
-Contains all the pleadings and all the records. If the original court is
satisfied, it will approve the record on appeal and forward it to the
appellate court.
-While the CA goes about with the appeal, the RTC determines the
just compensation in the 2nd stage.
-Trial by Commissioners. Court cannot be saddled with the nitty
gritty of determining value of each mango tree and whatnot, then it
will appoint commissioners, usually 3: One appointed by the
government, another by the defendant, and the third (chairman) is
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chosen by the court. Commissioners are answerable only to the
court.
-Usual commissioners - assessors, real estate brokers, anybody from
the treasurer’s office or register of deeds.
-They have the right to subpoena persons who can testify.
-They submit their report – only recommendatory. Not binding on the
court. Furnish to plaintiff government, defendant private individual,
and the court.
-The court sets the report for hearing and gets their comment, and
then decide. Court can adopt, modify, alter, or disregard entire
report.
-Determination of just compensation can be appealed.
-No need for record on appeal because second stage is over and
none follows after, so the court can transmit the entire records to the
CA.
-Can the government enter the private property without filing an
expropriation proceeding? Yes. By depositing the assessed value of
the property- thereafter, they can enter. Deposit is to be made in the
name of the private person. Forms part of the just compensation.
Thereafter they can initiate expropriation proceedings.
7) Foreclosure of Real Estate Mortgage (JUDICIAL)
-Extrajudicial foreclosure is governed by Act 3135.
-Judicial – A special civil action under the Rules.
-Where does this come in? In the decision.
-Court to determine the total amount of debt.
-To be settled within a period not less than 90 days or more than
120 days from the finality of the judgment.
-Instead of ordering the sale of the property, it will give the mortgagor
the chance to get back the property by paying the debt.
-This is called “Equity of redemption”. Allows you to get back
property without such being sold in public auction. (within 90 to 120
days)
-If there is no payment within said period, the court will order the sale
of the real estate at a public auction to the highest bidder.
Thereafter, sheriff issues a certificate of sale which is registered with
the appropriate register of deeds (place where property is located)
and such is the operative act that will start the 1-year right of
redemption.
-Distinguish Equity of redemption vs Right of redemption.
-If not redeemed in 1 year, the sheriff issues a final cert of sale which
consolidates title.
-Supposing the real property is sold at 900K during public auction
(but the debt was at 1M), so there is still a balance of 100K. Ask the
court for a deficiency judgment. Orders defendant still to be liable for
100k, in spite of the sale.
-How is deficiency judgment executed? Through an ordinary action
for sum of money.
-What you should only know is the what is equity of redemption and
what is right of redemption- kunana.
-Mam: Question?
-Franco: Ma’am what is the…
-Sorry guysnakakabaliw mag-type ng derederetso
-If paid in the given time (within equity of redemption), then there is a
cancellation of the mortgage, and title becomes clean again.
8) Partition
-This provision is for real property. But can you partition personal
property? Yes if it is divisible (kabans of rice)
-What if indivisible, such as a vehicle? Then sell it and partition the
money.
-The partition in special civil action usually covers real estate.
-There are 2 stages in partition.
a) First Stage: (not named)
-Establish propriety of partition.
-Prove co-ownership. The reason for partition is because there is a
co-ownership. Co-owners have no specific ownership.
-Prescriptive period within which to file a case of partition?
Imprescriptible.
-Eg. Co-owners A, B, and C. A repudiates co-ownership. A says,
“excuse me, I am the only owner of the property because I spent on
it, made improvements upon it, and paid taxes for it. And you B and
C, you did nothing – NOTHING! You just enjoyed the fruits of my
labor. Therefore, I am now the owner of this property”. In short, A is
repudiating the co-ownership, declaring that he is the sole owner.
Yet, the title is in the name of A, B, and C. Can B and C still file
partition? No more because A repudiated the co-ownership. So
what’s the remedy? AccionReinvindicatoria to recover ownership.
And if it is to recover ownership, what happens? Prescription can set
in. Prescriptive period for AR is 10 years.
-For as long as co-ownership is recognized among all co-owners,
partition is the appropriate action, which is imprescriptible. But for as
long as a co-owner repudiates the co-ownership and declares that he
is the sole owner, then then AR – prescriptible.
-So that is the first stage.
-After the first stage, the court decides that there is a co-ownership.
Is this appealable? Yes. Record on appeal.
b) Second Stage: Partition itself.
-Can be left to commissioners, or the co-owners themselves have
their partition agreement (equivalent to a compromise agreement-
Court will just approve it and renders judgment in accordance with
said agreement).
-Commissioners help them thresh out division.
-Is oral partition valid? (eg. When parents point and talk – bagim jay
aggapu jay kayo ijayngatoingganaijayniyog, etc. tapnuhan kayo ag-
aapa nu nataykamin)
-VALID, provided it has been consummated during the lifetime of
said parents (each sibling takes possession).
-Thus, there is no longer co-ownership to establish. Another sibling
can’t file a case for partition.
9) Ejectment Cases – Forcible Entry / Unlawful Detainer
-Original and exclusive jurisdiction of the MTC.
-Prescriptive period – 1 year from illegal detention / forcible entry.
-MTC, regardless of the amount to be collected.
-SOLE ISSUE is possession. “Who has a better right of
possession?” Thus, can the court make a determination of
ownership? Yes only to determine who has the better right of
possession. Such finding of ownership is only conclusive in said
ejectment case. Can’t be used in a different case.
-Eg. P vs D for Forcible Entry. Court finds that D is the owner and
thus has better right of possession. Thus, D files a case of quieting
against P. Is there res judicata from the first case? None. Different
issues (1st case- possession, 2nd case- ownership). The finding of
ownership is only conclusive to the first case and will not affect any
other case subsequent.
a) Forcible Entry- dispossessed of property through FISTS. So you
won’t forget, they fisted you out of your property. (Forcible
Entry…FISTing…sounds so wrong. Try watching extreme fisting
videos)
-Because that is what the rules say, said ground/s must be specified
in the complaint.
-If ground not specified, the case may be dismissed because the
court can’t acquire jurisdiction.
-Eg. P vs D for forcible entry. In the complaint, what is alleged is,
“Plaintiff wakes up one morning finding defendant leveling and
bulldozing his property. Defendant doing it under a contract.“ MTC
rules in favor of P, so D appeals to the RTC claiming that there was
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no clear allegation of any of the FISTS. Then, the RTC says that
MTC did not acquire allegation, as FISTS put a case under the
mantle of forcible entry which is within the jurisdiction of the MTC.
Thus, the decision appealed from is reversed and the case is
dismissed. D wins. The P went on a petition for review before the
CA. The CA ruled that RTC is wrong and MTC is right, that the acts
of leveling and bulldozing are forms of stealth and strategy. Thus, D
loses. The P now goes to the SC on a petition for review on
certiorari – SC says that the MTC and the CA are wrong, and that the
RTC is correct because there is no clear allegation of any FISTS.
Case dismissed. Judge M was actually the RTC judge in this case.
-Is there a need to make a demand before filing a forcible entry
case? No need.
-What provisional remedy can be availed of? Preliminary Mandatory
Injunction.
-If the decision is granted and order the D to vacate, what else can
the P ask for? Will there be damages in forcible entry case? Yes,
reasonable rentals and attorney’s fees.
-Any question? We finish this first before we eat ok?
9) Unlawful Detainer
-Common in Baguio City.
-Every right to remain in the property, but upon losing right, you are
asked to leave.
-Must a demand be made for the person to vacate?
-If ground is expiration of an express contract, NO DEMAND is
necessary (Eg. Contract of lease with specific date, nonrenewable)
-Upon end of contract, there is now illegal detention of the property,
the person being aware of the conditions of the contract, thus not
necessitating notice or demand.
-Supposing there is no written contract? Period will depend on
payment of rent (eg. Monthly, edi monthly.Weekly, edi weekly.Daily,
etc. Hourly, ibanayan. Short time)
-Implied contract- There is NEED OF DEMAND, so that lessee will
be aware that he is no longer authorized to occupy.
-What if the ground of the unlawful detainer is nonpayment of rent? 2
demands must be made: A demand to pay and a demand to vacate.
-What if the grounds are based on other violations of the contract?
(eg. Subleasing, overcapacity, turned into a sari sari store, etc) if the
grounds are violations of other provisions of the lease contract, then
demand is necessary.
-What kind of damages can be collected in unlawful detainer?
Rentals and reasonable attorney’s fees.None other.
-What if lessee has not been paying city services. Will a case for
unlawful detainer and damages (covering elec bill, water, phone bills,
etc) prosper? No. A special civil action and an ordinary civil action
cannot be joined (remember limitations?)
-This is not a ground to dismiss. Since it is a misjoinder, the court
will just sever and proceed against cases separately (consider
jurisdictional amount of ordinary civil action as well).
-Besides, Forcible Entry and Unlawful Detainer are under rules on
summary procedure.
-The MTC issues an order that says “this is a case covered by rules
on summary procedure” (for FE or UD)
-What are the rules?
-Referral to Lupon. If not referred, an MD can be filed on the ground
of NONREFERAL TO LUPON (not on failure to comply with rules
precedent under Rule 16. Rules on Summary Procedure is
different).
-The only allowable grounds for dismissal of case in Summary
Procedure – Nonreferral to Lupon and Lack of Jurisdiction. Those 2
only.
-How about other grounds? File an answer and include them in the
affirmative defenses.
-When court makes a finding that the case is under summary
procedure, it will direct the issuance of summons and the D is given
10 days to file an answer (not 15, because this is a summary
proceeding).
-At the end of the 10-day period and there is no answer, there is no
declaration of default in summary procedure.
-The court on its own (or on motion of the P) can consider the case
submitted for decision.
-However, if D files an answer in 10 days, the Court will set the case
for preliminary conference in 10 days.
-Preliminary conference is similar to pretrial. However, there is no
trial.
-10 days therefrom, the court directs the parties to submit their
respective position papers.
-If the court finds there is a need for a clarificatory hearing, the court
will set the case for that purpose.
-Clarificatory hearing- because upon reading the position papers and
affidavits, the court finds ambiguity needing clarification.
-If clear, then cases are submitted for decision, and the court has 30
days to decide the case (unlike regular cases 90 days).
-As a total, FE and UD have to be decided in 60 days. That short?
Yes. Does it happen that way?.......sometiiiiimes!!! kunana.
Sometimes 60 months.
-What if there is no answer? Edi 40 days.Summary procedure nga,
which makes these cases peculiar.
-Demand- must this be oral or written? Any.Hoooy, your rent! And
you vacate! Such demand is valid. But for probative value, a written
demand is needed (added to the position paper).
-And finally, let me hurry this because you might cite me for contempt
of stomach.
10) Contempt of Court
-This is the only provision in your entire Rules on Civil Procedure that
is criminal in nature. Why? Because it provides for a penalty: Fine,
imprisonment, and even both, especially if the judge does not like
your face.
-Contempt- disrespect and disobedience of the court. The court
deserves every respect it can get. Judiciary is among the 3 pillars of
the government.
a) Direct contempt- if sign of disrespect is done within the sight and
hearing of the judge. Anything that serves disrespect or
disturbs/disrupts the proceedings.
-Summary. No need for a proper charge or hearing.
-Will there be a service of sentence right away? Yes. Brought to jail,
pay, or both.
-Eg. Honking lawyer, drunk janitor.
-Penalties in MTC is different from that of the higher courts.
-Higher penalty in direct contempt, vs indirect.
b) Indirect contempt- opposite of direct.
-If it is not within sight and hearing, or disobedience (eg. TRO).Or
refusal to allow inspection/ survey.
-Indirect contempt needs a proper charge or petition.
-All the special civil actions are original / initiatory actions, so
they require verification and CNFS, and payment of docket fees
(except Direct contempt. Summary)
-In indirect contempt, you have to have a petition. But if it is in
connection to the main case, then a motion is fine.
-There will be a hearing.
-Remedies of person cited in contempt.
-Direct contempt:
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-File a petition for certiorari under rule 65.
-Judge is pikon, thus grave abuse of discretion.
-Indirect contempt:
-Appeal the decision in the hearing of the indirect contempt case.
-Read on the penalties of contempt.

-Ended the lecture with the story of the weird and wild prosecutor
who ended up being decided upon by Judge M.

Super verbatim: “coverage of exam… from judgment..ay no nonono,

from remedie - from remedies before finality up to special civil
actions. Bring your notebook but DO NOT WRITE anything on it.
Leave it blank, leave it blank from back to front. And bring your
permit. Ok? So, can we have lunch now? Okay, so let’s have
lunch….”

END OF CIVIL
PROCEDURE

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