Posted by: Elmer Brabante | September 30, 2009

Remedial Law Reviewer: Civil Procedure


RULES OF CIVIL PROCEDURE 

RULE 1 

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

Sec. 3. Cases governed. — These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings.

(a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.

A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action.

(b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law.

(c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. 

Civil action – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong

Criminal action – one by which the State prosecutes a person for an act or omission punishable by law.

Special proceeding – a remedy by which a party seeks to establish a status, a right, or a particular fact

Special civil actions are called so because special rules govern.

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

Cases where the Rules apply only by analogy or suppletorily

  1. election cases
  2. land registration
  3. cadastral
  4. naturalization and
  5. insolvency proceedings, and
  6. other cases not herein provided for

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

A.     Ordinary Civil Actions (Rules 2-5)

Kinds of actions

Real action – the subject matter of the action is real property (e.g. foreclosure of real mortgage)

Personal action – the subject matter of the action is personal property (e.g. foreclosure of chattel mortgage)

Action in personam – the decision is enforceable only against the parties

Action in rem – the decision is enforceable against the whole world

Action quasi in rem – A real action may still be an action in personam.

Rule 2

Section 1. Ordinary civil actions, basis of. — Every ordinary civil action must be based on a cause of action.

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

CAUSE OF ACTION  – act or omission by which a party violates a right of another. 

Sec. 3. One suit for a single cause of action. — A party may not institute more than one suit for a single cause of action.

Sec. 4. Splitting a single cause of action; effect of. — If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. 

A plaintiff can not split a single cause of action, but he may join several causes of action against the same defendant, subject to the following rules:

  1. must comply with the rules on joinder of parties

2. joinder shall not include special civil actions or actions governed by special rules (e.g. summary procedure)

3. where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided

a. one of the causes of action falls within the jurisdiction of the RTC court and

b. the venue lies within such RTC

4. where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

RULE 3 – PARTIES TO CIVIL ACTIONS

Section 1. Who may be parties; plaintiff and defendant. — Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term “plaintiff” may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term “defendant” may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant.

Sec. 2. Parties in interest. — A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

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

Sec. 4. Spouses as parties. — Husband and wife shall sue or be sued jointly, except as provided by law.

Sec. 5. Minor or incompetent persons. — A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem.

Rule on permissive joinder of parties – All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action. Misjoinder of causes of action is not a ground to dismiss a case. The proper remedy is to severe the other cause of action and to try separately. [Rule 6]

Sec. 7. Compulsory joinder of indispensable parties. — Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

Indispensable parties — parties in interest without whom no final determination can be had of an action. Failure to implead an indispensable party is ground to dismiss the case. 

Necessary party – one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. Failure to implead a necessary party is a waiver of the claim against such party. It is not ground to dismiss the case. [Sec. 8]

Sec. 9. Non-joinder of necessary parties to be pleaded. — Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party.

Sec. 10. Unwilling co-plaintiff. — If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.

Sec. 11. Misjoinder and non-joinder of parties. — Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately.

The non-joinder of a party which does not cause dismissal refers to necessary parties. Non-joinder of an indispensable party is a ground to dismiss the action.

Sec. 12. Class suit. — When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest.

Requisites of a Class Suit

  1. the subject matter of the controversy is one of common or general interest
  2. to many persons so numerous it is impracticable to join all as parties
  3. a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned sues or defends for the benefit of all
  4. Any party in interest shall have the right to intervene to protect his individual interest.

 

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

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

Sec. 15. Entity without juridical personality as defendant. — When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.

In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. 

If the defendant dies before a case may be filed

  1. for recovery of sum of money – file a claim before the estate proceedings, where the creditor will have to present evidence on the validity of his claim; because the amount sought to be collected is definite
  2. for recovery of property – file a separate case against the executor/administrator; because the amount of the claim is unliquidated
  3. for damages for injury – file a separate case before the courts. 

If the defendant dies

  1. before a case is filed
    1. for recovery of a sum of money – file a claim before the estate proceedings, where the creditor will have to present evidence on the validity of his claim
    2. real action and action for damages – file a separate case against the executor/administrator
    3. after a case is filed but before judgment
      1. for recovery of a sum of money – case shall not be dismissed but shall instead be allowed to continue until entry of final judgment; the judgment is then filed as a claim in the estate proceedings; decedent’s legal representative should be substituted for the decedent.
      2. real action and action for damages 

1)                  heirs of the deceased may be allowed to be substituted, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

2)                  If no legal representative appears, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. Priority to in the appointment to

a)            Surviving spouse, or next of kin

b)            one or more of the principal creditors, if competent and willing to serve

c)            other person as the court may select.

3)                  in case conflict of interest where a creditor being appointed administrator is to appoint a special administrator where the creditor appointed will have to file his own claim

  1. after judgment but before execution
    1. for sum of money – present the writ of execution as a claim before the probate court
    2. real action and action for damages – substitute the defendant with his administrator or executor, and enforce the writ against him without going to the probate court
    3. after levy on execution (applies only to recovery of a sum of money) – continue with the auction sale and the officer making the sale shall deliver the proceeds to the plaintiff, and account to the executor or administrator for any excess.

 

RULE 5 – UNIFORM PROCEDURE IN TRIAL COURTS 

Rules on summary procedure are applicable in the following cases before the MTCs

  1. Civil cases
    1. forcible entry and unlawful detainer, regardless of amount of damages (compensation for use of property) or unpaid rentals
    2. except probate proceedings, civil cases where the total amount of the plaintiff’s claim does not exceed P10,000 exclusive of interest and costs.
    3. Criminal cases 
      1. traffic violations
      2. rental law violations
      3. municipal or city ordinances violations
      4. damage to property through criminal negligence, where the imposable fine does not exceed P10,000
      5. penalty not exceeding 6-month imprisonment, or a P1,000 fine

Exceptions:

  1. civil case where the plaintiff’s cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure
  2. criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

Recall that criminal cases that should undergo reconciliation proceedings under the Katarungang Pambaranggay are offenses punishable by not more than 1 year or a fine not over P5,000

Therefore nearly all summary procedure criminal cases must go through the Katarungang Pambaraggay. 

Sec. 2. Determination of applicability

Upon filing of the initiatory pleading, the court shall declare whether the case is governed by the rule on summary procedure.

      Civil Cases

Procedure in summary civil cases

  1. complaint is filed
  2. court declares it falls under summary procedure
  3. may dismiss the case motu proprio; if not, issue summons
  4. defendant files his answer within 10 days (defenses and claims not pleaded are waived, except lack of jurisdiction over subject matter)
  5. answer to counterclaims or cross-claims within 10 days from service of the answer
  6. preliminary conference not later than 30 days after the last answer is filed; absence of
    1. plaintiff – cause for the dismissal of his complaint; defendant entitled to judgment on his counterclaim as if plaintiff did not file an answer to the counterclaim; all cross-claims dismissed
    2. sole defendant – plaintiff shall be entitled to judgment as if defendant did not file an answer
    3. 1 or some of many defendants sued under a common cause of action who had pleaded a common defense – no adverse effect on the defense
    4. the court issues record of preliminary conference, within 5 days after the termination of the preliminary conference, covering
      1. terms of any amicable settlement
      2. stipulations or admissions entered into by the parties
      3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from issuance of the order
      4. material facts which remain controverted
      5. matters intended to expedite the disposition of the case.
    5. parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers, within 10 days issuance of record of preliminary conference
    6. within 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court either
      1. renders judgment
      2. requires clarification of certain material facts, within 10 days from receipt of said order; then render judgment within 15 days from receipt of the last clarificatory affidavits, or the expiration of the period for filing the same

A. Pleadings allowed

Allowable pleadings (must all be verified)

  1. complaint
  2. compulsory counterclaims
  3. cross-claims in the answer
  4. answer

Note that permissive counterclaims and 3rd party complaints are not allowed.

Sec. 5. Answer. - Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded.

Sec. 6. Effect of failure to answer.

Failure of the defendant to answer – the court shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for; the court may in its discretion reduce the amount of damages and attorney’s fees claimed for being excessive or otherwise unconscionable.

Note that when the defendant fails to answer in summary procedure, the court may motu propio rule for the plaintiff. In ordinary civil actions, the court can do so only upon motion by the plaintiff to declare the defendant in default and after plaintiff supports his claim with evidence.

Sec. 7. Preliminary conference; appearance of parties. - Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.

* Effect of failure to appear at the preliminary conference by

  1. the plaintiff – cause for the dismissal of his complaint; defendant who appears entitled to judgment on his counterclaim as may be warranted by the facts alleged. All cross-claims shall be dismissed.
  2. the sole defendant –plaintiff entitled to judgment as may be warranted by the facts alleged in his complaint
  3. one of many defendants sued under a common cause of action who had pleaded a common defense – case continues

Sec. 8. Record of preliminary conference. - Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to:

a)   Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;

b)   The stipulations or admissions entered into by the parties;.

c)   Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order;

d)   A clear specification of material facts which remain controverted; and

e)   Such other matters intended to expedite the disposition of the case.

Sec. 9. Submission of affidavits and position papers. - Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them.

Sec. 10. Rendition of judgment. - Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment.

However should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same.

The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

      Criminal Cases

Summary Procedure in Criminal cases

  1. Initiated either by complaint or information (only by information, in Metro Manila and Chartered cities, except when the offense cannot be prosecuted de oficio)
  2. As many copies of the information or complaint, with affidavits of complainant and his witnesses, as there are accused plus 2, within 5 days from filing; otherwise the case may be dismissed
  3. Court declares if the case is covered by the rule on summary procedure
  4. If commenced by complaint and patently without basis or merit, court may dismiss the case; otherwise, court requires accused to submit his counter-affidavit and the affidavits of his witnesses and any evidence in his behalf
  5. Filing and service on prosecution of defense’s evidence within 10 days from receipt of the order
  6. prosecution may file reply affidavits within 10 days after receipt of the counter-affidavits of the defense.
  7. Court either dismisses the case, or set arraignment and trial
  8. If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.
  9. Preliminary conference
    1. no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel
    2. parties must manifest intention to present additional affidavits or counter-affidavits as part of his direct evidence, and it should be allowed by the court; filed and served within 3 days after the termination of the preliminary conference; accused may file and serve his counter-affidavits within 3 days from such service.
    3. Trial – the affidavits submitted by the parties shall constitute the direct testimonies, subject to cross-examination, redirect or re-cross examination; failure of affiant to testify will render his affidavit incompetent for the offeror, but admissible for the opposing party; witnesses must submit affidavits before testifying, except on rebuttal or surrebuttal
    4. Accused shall not be arrested, except for failure to appear when required;  Accused may be released either on bail or recognizance
    5. the court renders judgment within 30 days after the termination of trial. 

Note that preliminary conference is required in both civil and criminal cases.

In criminal cases, there is hearing and actual trial. In civil cases, only the pleadings, affidavit, evidence, and position papers are considered. There is no hearing or trial in summary civil cases.

Only those who have executed affidavits may testify on the stand, except rebuttal and sur-rebuttal witnesses. 

Sec. 11. How commenced. - The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information: Provided, however, that in Metropolitan Manila and in Chartered Cities. such cases shall be commenced only by information, except when the offense cannot be prosecuted de oficio.

The complaint or information shall be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are accused plus two (2) copies for the court’s files.  If this requirement is not complied with within five (5) days from date of filing, the case may be dismissed. 

Sec. 12. Duty of court. -

(a)  If commenced by compliant. - On the basis of the compliant and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody.

(b)  If commenced by information. - When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense.

* Ground for motu propio dismissal of criminal case covered by summary procedure initiated by complaint – patently without basis or merit.  The court can not dismiss a criminal case outright if it is commenced by information. 

Sec. 13. Arraignment and trial. - Should the court, upon a consideration of the complaint or information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial.

If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.

 Sec. 14. Preliminary conference. - Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case.  However, no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel.  A refusal or failure to stipulate shall not prejudice the accused.

Sec. 15. Procedure of trial. - At the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose.

Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was previously submitted to the court in accordance with Section 12 hereof.

However, should a party desire to present additional affidavits or counter-affidavits as part of his direct evidence, he shall so manifest during the preliminary conference, stating the purpose thereof.  If allowed by the court, the additional affidavits of the prosecution or the counter-affidavits of the defense shall be submitted to the court and served on the adverse party not later than three (3) days after the termination of the preliminary conference. If the additional affidavits are presented by the prosecution, the accused may file his counter-affidavits and serve the same on the prosecution within three (3) days from such service. 

Sec. 16. Arrest of accused. - The court shall not order the arrest of the accused except for failure to appear whenever required.  Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court. 

Sec. 17. Judgment. - Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the termination of trial. 

Sec. 18. Referral to Lupon. - Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant.

Failure to comply with Katarungang Pambaranggay when required is ground for dismissal of the complaint, unless the accused was arrested without a warrant.

* Prohibited pleadings and motions (Section 19):

  1. Motion to dismiss the complaint or to quash the complaint or information, except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the Katarungang Pambaranggay
  2. Motion for a bill of particulars
  3. MNT, or MfR, or motion for opening of trial
  4. Petition for relief from judgment
  5. Motion for extension of time to file pleadings, affidavits or any other paper
  6. Memoranda
  7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court
  8. Motion to declare the defendant in default
  9. Dilatory motions for postponement
  10. Reply
  11. Third party complaints
  12. Interventions.

 

Sec. 20. Affidavits. - The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein.

A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record.

* Special requirement for affidavits under summary procedure: must state only admissible evidence and show their competence to testify on such matters. Otherwise, the offering party or counsel may be subject to disciplinary action and the inadmissible portion is expunged.

Sec. 21. Appeal. - The judgment or final order shall be appealable to the appropriate regional trial court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom.  Section 10 of Rule 70 (of the 1964 Rules of Court) shall be deemed repealed.

  • Summary decisions are appealable to the RTC. RTC decision in ejectment cases are immediately executory.

 

RULES 6 – 11: KINDS OF PLEADINGS 

Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

The complaint is the pleading alleging the plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.

An answer is a pleading in which a defending party sets forth his defenses.

Defenses

(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance.

A counterclaim is any claim which a defending party may have against an opposing party.

A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount.

A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

Counterclaim is any claim which a defending party may have against an opposing party

Requirements for a compulsory counterclaim:

  1. arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim
  2. does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
  3. must be within the jurisdiction of the court both as to the amount and the nature

In an original action before the RTC, a counterclaim may be considered compulsory regardless of the amount. A permissive counterclaim must also be within the jurisdiction of the court, and must not require the presence of 3rd parties over whom the court can not acquire jurisdiction. It must not be connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim, otherwise, it would be a compulsory counterclaim.

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

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

A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim.

Necessary parties – When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.

RULE 7 – PARTS OF A PLEADING 

Significance of counsel’s signature

  1. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.
  2. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay.
  3. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

Verification – affidavit by an affiant that he has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

Note that “belief” as basis for verification has been deleted by a 1 May 2000 amendment.

based on “information and belief,” or upon “knowledge, information and belief” is not sufficient verification.

Not all pleadings need to be verified. 

Certification against forum shopping (applies to initiatory pleadings; de Leon: and also to petitions for review, and petition for review on certiorari)

  1. that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein
  2. if there is such other pending action or claim, a complete statement of the present status thereof; and
  3. if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days to the court wherein his aforesaid complaint or initiatory pleading has been filed

If dismissal of a case on the ground of lack of certificate against forum shopping is silent, it is deemed to be without prejudice. If forum shopping was willful and deliberate, dismissal shall be with prejudice.

RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADING 

Manner of making averments of

  1. Fraud or mistake – particular
  2. malice, intent, knowledge, or other condition of the mind – general

If allegation of fraud or mistake is not particular, the remedy is to file a bill of particulars. 

Where an action or defense is based on a document, the substance of such document be set forth in the pleading and a copy thereof attached as an exhibit. The opposing party must specifically deny such document under oath, otherwise, the genuineness and due execution of the instrument shall be deemed admitted.

The rule applies only to “pleadings,” not motions. Hence, an actionable document in a MTD need not be denied under oath.

Note that even documents on which a defense is based must be denied under oath. This is an exception to the rule that all new matters in the answer are deemed controverted by failure to file a reply.

When denial under oath of an actionable document not required

  1. the adverse party is not a party to the instrument
  2. compliance with an order for an inspection of the original is refused  

Allegations that may be general

  1. ultimate fact, no evidentiary facts
  2. pertinent provisions of law on which a defense relies on
  3. conditions precedent
  4. capacity or authority to sue and be sued, or legal existence must be averred
  5. Malice, intent, knowledge or other condition of the mind
  6. judgment of another court or tribunal, domestic or foreign
  7. official document or official act
  8. denial of unliquidated damages

 

Allegations that must be specific

  1. Questions as to legal existence or capacity to sue and be sued
  2. circumstances constituting fraud or mistake must be stated with particularity
  3. substance of an document on which an action or defense is based
  4. contest of an actionable document (under oath) 
  5. denial of plaintiff’s allegations
  6. denial of usurious interest  (under oath)  

For an allegation that defendant is “without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint” to constitute denial, it must be shown that the defendant indeed was in no position to know the truth of the averment in the complaint. But if it can be demonstrated that he in fact was in a position to know, then the denial is ineffective and the averment is deemed admitted. 

Matters that may be stricken out from a pleading

  1. sham or false
  2. redundant
  3. immaterial
  4. impertinent
  5. scandalous

 

RULE 9 – EFFECT OF FAILURE TO PLEAD

Defenses appearing on the complaint which are not waived by failure to plead, on which the court may dismiss the claim:

  1. lack of jurisdiction over the subject matter
  2. another action pending between the same parties for the same cause (lis pendentia)
  3. action is barred by a prior judgment (res adjudicata)
  4. Statute of limitations  

Procedure for declaring a defending party in default

  1. failure to answer within the time allowed
  2. motion of the claiming party
  3. notice to the defending party
  4. court declares the defending party in default
  5. Court either
    1. requires the claimant to submit evidence (may be delegated to the clerk of court), or
    2. renders judgment granting the claimant such relief as his pleading may warrant, which shall not

1)                  exceed the amount prayed for or

2)                  be different in kind from that prayed for nor

3)                  award unliquidated damages

The court has no authority to motu proprio declare a defendant in default. If the plaintiff does not move to declare the defendant in default, the court may motu proprio dismiss with prejudice the action on the ground of failure to prosecute under Rule 17 Sec. 3.

Effects of default

  1. defaulting party still entitled to notice of subsequent proceedings, but not to take part in the trial
  2. defaulting party may move to set aside the order of default, provided
    1. filed at any time after notice of default and before judgment
    2. motion must be under oath
    3. proper showing that

1)                  his failure to answer was due to fraud, accident, mistake or excusable negligence (FAME), and

2)                  he has a meritorious defense

  1. When some of several defending parties answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.  

If Rule 38 is no longer available, then use Rule 47 (Annulment of Judgments or Final Orders and Resolutions)

Actions where no defaults allowed

  1. annulment
  2. declaration of nullity
  3. legal separation

 

RULE 11 – WHEN TO FILE RESPONSIVE PLEADINGS 

When response to the following pleadings must be filed

  1. main complaint, third or fourth party complaint – within 15 days after service of summons, unless a different period is fixed by the court
  2. if defendant is a foreign private juridical entity and service of summons is made on the government official so designated by law – within 30 days after receipt of summons by the foreign entity
  3. amended claims
    1. 15 days from service of amended complaint, if amended as a matter of right
    2. 10 days from notice of admission of amended complaint, if amended with leave of court (An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed)
    3. answer, counterclaim or cross-claim – within 10 days from service
    4. supplemental complaint – within 10 days from notice of the admitting court order, unless a different period is fixed by the court (answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed).

 

Grounds to admit an omitted counterclaim or cross-claim by amendment(before judgment)

  1. oversight
  2. inadvertence
  3. excusable neglect
  4. justice requires

 

RULE 12 – BILL OF PARTICULARS 

Bill of particulars – definite statement of any matter which is not averred with sufficient definiteness or particularity to enable the adverse party properly to prepare his responsive pleading. 

Procedure in bill of particulars

  1. application by an adverse party before responding to a pleading, or within 10 days from service of the reply
  2. clerk of court brings it to the attention of the court
  3. (no hearing necessary) the court either
    1. deny it outright
    2. grant it outright
    3. allow the parties the opportunity to be heard
    4. If the motion is granted, the compliance therewith must be effected within 10 days from notice of the order, unless a different period is fixed by the court.
    5. The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party
    6. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event.
    7. If the order is not obeyed, or in case of insufficient compliance, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just.
    8. A bill of particulars becomes part of the pleading for which it is intended.

 

RULE 13 – FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS 

Filing – the act of presenting the pleading or other paper to the clerk of court.

Service – the act of providing a party with a copy of the pleading or paper concerned.

  1. If any party has appeared by counsel, service should be upon his counsel, unless service upon the party himself is ordered by the court.
  2. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.  

Papers required to be filed and served

  1. judgment
  2. resolution
  3. order
  4. pleading subsequent to the complaint
  5. written motion
  6. notice
  7. appearance
  8. demand
  9. offer of judgment
  10. or similar papers  

Except court papers, resort to modes other than personal service must be accompanied by a written explanation why the service or filing was not done personally, otherwise it is ground to consider the paper as not filed. 

Two  ways of filing

  1. personally presenting the original copies to the clerk of court, who shall endorse on the pleading the date and hour of filing
  2. sending the original copies by registered mail, the date of the mailing as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing

Note that filing may not be by ordinary mail or substituted service. These methods are available only on service of papers, not filing. 

Proof of filing

  1. its existence in the record of the case
  2. If it is not in the record, but is claimed to have been filed
    1. Personally – written or stamped acknowledgment of its filing by the clerk of court on a copy
    2. registered mail – by the

1) registry receipt, and

2) affidavit of the person who did the mailing, containing a full statement of

a)                        the date and place of depositing the mail in the post office

b)                        in a sealed envelope

c)                        addressed to the court

d)                        with postage fully prepaid

e)   with instructions to the postmaster to return the mail to the sender after 10   days if not delivered 

Four modes of service of papers

  1. personal – complete upon delivery
  2. Registered mail – complete upon actual receipt, or after 5 days receipt of first notice of the postmaster, whichever is earlier
  3. ordinary mail – complete upon expiration of 10 days after mailing, unless the court otherwise provides
  4. substituted service – complete upon delivery to the clerk of court 

Priorities in personal service of papers

  1. leaving it in his office with his clerk or with a person having charge thereof
  2. if not possible, then by leaving the copy, between 8 a.m. to 6 p.m. at his residence, with a person of sufficient age and discretion then residing therein

Priorities in service by mail of papers

  1. registered mail to office, if known
  2. otherwise registered mail to residence, if known
  3. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail.

 

Requisites for substituted service of papers

  1. service can not be made personally or by mail
  2. the office and residence of the party or his counsel being unknown
  3. deliver a copy to the clerk of court
  4. with proof of failure of both personal service and service by mail (certified or sworn copy of the notice given by the postmaster to the addressee) 

Sec. 13. Proof of service. — Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

RULE 14 – SUMMONS 

Contents of a summons

  1. names of the court and parties to the action
  2. a direction that the defendant answer within the time fixed by these Rules
  3. a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.
  4. copy of the complaint and order for appointment of guardian ad litem, if any  

Procedure in summons

  1. filing of the complaint and the payment of the requisite legal fees
  2. the clerk of court issues the corresponding summons to the defendants
  3. summons served by
    1. the sheriff
    2. his deputy
    3. other proper court officer, or
    4. any suitable person authorized by the court issuing the summons, for justifiable reasons
    5. If
      1. service has been completed – within 5 days from service, the server shall

1)                  serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel and

2)                  return the summons to the clerk who issued it, accompanied by proof of service

  1. If a summons is returned without being served on any or all of the defendants

1)                  server shall serve a copy of the return on the plaintiff’s counsel, stating the reasons for the failure of service within 5 days therefrom

2)                  the clerk, on demand of the plaintiff, may issue an alias summons (also if summons has been lost)

the rules on summons on defendant who is a

  1. resident
    1. Present in the Philippines

1)                  Personal service (Rule 14, Sec. 6)

2)                  Substituted service (Rule 14, Sec. 7)

3)                  Publication, but only if 

a)                  his identity or whereabouts is unknown (Rule 14, Sec. 14), AND

b)                  the action is in rem or quasi in rem [Citizen Surety v. Melencio-Herrera, 38 SCRA 369 (1971)]

  1. Absent from the Philippines

1)                  Substituted service (Rule 14, Sec. 7)

2)                  Extraterritorial service {Rule 14, Sec. 16 and 15; action need not be in rem or quasi in rem [Valmonte v. CA, 252 SCRA 92 (1996)]}

  1. non-resident
    1. Present in the Philippines

1)                  Personal service (Rule 14, Sec. 6)

2)                  Substituted service (Rule 14, Sec. 7)

  1. Absent from the Philippines

1)                  Action in rem or quasi in rem – only Extraterritorial service (Rule 14, Sec. 15)

2)                  Action in personam, and judgment can not be secured by attachment (e.g. action for injunction)

a)                  wait for the defendant to come to the Philippines and to serve summons then

b)                  bait the defendant to voluntarily appear in court (Rule 14, Sec. 20)

c)                  plaintiff can NOT resort to extraterritorial service of summons [Kawasaki Port Services v. Amores, 199 SCRA 230 (1991), and Dial Corporation v. Soriano, 161 SCRA 737 (1988)]. 

Requisites for service by publication

  1. the action is in rem or quasi in rem
  2. defendant’s identity or whereabouts
    1. are unknown and
    2. cannot be ascertained by diligent inquiry
    3. with leave of court

 

Requisites for extraterritorial service

  1. Either
    1. defendant does not reside and is not found in the Philippines, or
    2. defendant ordinarily resides within the Philippines, but who is temporarily out of it
    3. action either
      1. affects the personal status of the plaintiff or
      2. relates to, or the subject of which is, property within the Philippines

1)                  in which the defendant has or claims a lien or interest, or

2)                  in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or

3)                  belongs to the defendant and has been attached

  1. leave of court
  2. the order shall specify a reasonable time, which shall not be less than 60 days after notice, within which the defendant must answer

Actions in rem or quasi in rem

  1. affects the personal status of the plaintiff or
  2. relates to, or the subject of which is, property within the Philippines
    1. in which the defendant has or claims a lien or interest, actual or contingent, or
    2. in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or
    3. belonging to the defendant and has been attached

How extraterritorial service of summons effected – with leave of court

  1. by personal service out of the Philippines
  2. by publication with copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or
  3. in any other manner the court may deem sufficient
    1. e.g. service by registered mail where registry return shows actual receipt [Carriaga, Jr. v. Malaya, 143 SCRA 441 (1986)]
    2. must be made outside the Philippines [Valmonte v. CA, 252 SCRA 92 (1996)]

 

RULE 16 – MOTION TO DISMISS

Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party;

(b) That the court has no jurisdiction over the subject matter of the claim;

(c) That venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

(e) That there is another action pending between the same parties for the same cause;

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

(g) That the pleading asserting the claim states no cause of action;

(h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;

(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and

(j) That a condition precedent for filing the claim has not been complied with.

RULE 17 – DISMISSAL OF ACTIONS 

Grounds for dismissal that bar refiling

  1. cause of action is barred by a prior judgment
  2. cause of action is barred by the statute of limitations
  3. claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished
  4. claim is unenforceable under the statute of frauds

 

Grounds to dismiss that the court may invoke motu proprio

  1. the action is barred by a prior judgment
  2. the action is barred by statute of limitations
  3. no jurisdiction over the subject matter
  4. there is another action pending between the same parties for the same cause

 

RULE 18 – PRE-TRIAL 

Section 1. When conducted. — After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20)

It is now the plaintiff who moves ex parte that the case be set for pre-trial.

Sec. 2. Nature and purpose. — The pre-trial is mandatory. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

(h) The advisability or necessity of suspending the proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action.

Grounds for excused absence of a party at the pre-trial

  1. valid cause is shown, or
  2. a representative appears in his behalf fully authorized in writing to
    1. enter into an amicable settlement
    2. submit to alternative modes of dispute resolution, and
    3. enter into stipulations or admissions of facts and of documents

 

Distinctions between pre-trial in civil and criminal cases

Civil Pre-trial Criminal Pre-trial
Mandatory Mandatory
Presence of defendant and counsel mandatory Accused need not be present, but his counsel must be present, otherwise he may be sanctioned
Amicable settlement is discussed Amicable settlement is not discussed, unless the criminal case is covered by summary procedure
Agreement included in pre-trial order need not be in writing Agreements or admissions must be written and signed by the accused and counsel to be admissible against him.
Can have proffer of evidence Proffer of evidence only after trial

 

RULE 21 – SUBPOENA 

Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. 

Grounds for quashing a subpoena duces tecum

  1. unreasonable and oppressive, or
  2. relevancy of the object does not appear, or
  3. the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production of the object
  4. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served  

Grounds for quashing a subpoena ad testificandum

  1. the witness is not bound thereby
  2. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served

 

RULES 23 – 29: MODES OF DISCOVERY 

Kinds of depositions

  1. Depositions Pending Actions
  2. Depositions Before Action or Pending Appeal
  3. Interrogatories to Parties
  4. Admission by Adverse Party
  5. Production or Inspection of Documents of Things

6.   Physical and Mental Examination of Persons 

The deponent may be examined regarding any matter

  1. not privileged, and
  2. is relevant to the subject of the pending action 

After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that

  1. deposition shall not be taken
  2. it may be taken only at some designated place other than that stated in the notice
  3. it may be taken only on written interrogatories
  4. certain matters shall not be inquired into
  5. the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel
  6. after being sealed the deposition shall be opened only by order of the court
  7. secret processes, developments, or research need not be disclosed
  8. the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court
  9. any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. 

Requisites for a court order to terminate or limit the scope and manner of taking of the deposition

  1. motion or petition of any party or of the deponent
  2. At any time during the taking of the deposition
  3. showing that the examination is being conducted in bad faith or to unreasonably to annoy, embarrass, or oppress the deponent or party
  4. issued by the court in which the action is pending or the RTC of the place where the deposition is being taken

If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending.

Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order.

In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable.

The deposition may be used against any party who

  1. was present or represented at the taking of the deposition, or
  2. who had due notice

When deposition may be used

  1. At the trial or
  2. upon the hearing of
    1. a motion or
    2. an interlocutory proceeding

Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. 

Instances when the deposition of any witness may be used by the adverse party for any purpose

  1. the deponent is a party
  2. the deponent, at the time of taking the deposition, was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party

Instances when the deposition of any witness may be used by any party for any purpose

  1. the witness is dead; or
  2. the witness resides at a distance more than 100 kilometers from the place of trial or hearing
  3. the witness is out of the Philippines, unless it appears that his absence was procured by the offeror 
  4. the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment
  5. offeror has been unable to procure the attendance of the witness by subpoena; or
  6. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used;

7.   if only part of a deposition is offered in evidence by a party

RULES 30-32:  TRIAL 

Order of trial – the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows

  1. plaintiff shall adduce evidence in support of his complaint
  2. defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint
  3. third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint;
  4. fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;
  5. parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court;
  6. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and
  7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. 

Exceptions to the order of trial

  1. when separate trial of any claim or issue is ordered
  2. court otherwise directs for special reasons
  3. as determined by the court in case of several defendants or third-party defendants, and so forth, having separate defenses who appear by different counsel

 

RULE 33 – DEMURRER TO EVIDENCE 

Distinguish demurrer to evidence in civil and criminal cases

Demurrer to Evidence in Civil Cases Demurrer to Evidence in Criminal Cases
Ground is: Facts and law show no right to relief ground is: Insufficient evidence
On motion On motion or motu proprio
If denied – he has right to present evidence, no prior leave of court required; If granted but reversed on appeal it is a waiver of the right to present evidence If denied and MTD was filed without leave of court – waiver of right to present evidence; If denied and MTD was filed with leave of court – the accused may adduce evidence in his defense

 

 

RULE 35 – SUMMARY JUDGMENT 

Procedure in summary judgments

  1. motion served at least 10 days before the time specified for the hearing
  2. any opposing affidavits, depositions, or admissions must be served by the adverse party at least 3 days before the hearing
  3. hearing
  4. judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that
    1. except as to the amount of damages, there is no genuine issue as to any material fact and
    2. the moving party is entitled to a judgment as a matter of law.
    3. if judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court ascertains what material facts
      1. exist without substantial controversy, and
      2. are actually and in good faith controverted
    4. Court makes an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just.
    5. The facts specified as without substantial controversy shall be deemed established, and the trial shall be conducted only on the controverted facts.

 

Distinguish between judgment on the pleadings and summary judgment

Judgment on the Pleadings Summary Judgment
Available only a claimant Available to both claimant and defending parties
There is no tender of issue There is no genuine issue
Judgment based on pleadings only Judgment based on pleadings, affidavits, depositions, admissions
Motion for judgment on the pleadings must be served at least 3 days prior to the scheduled hearing Motion for summary judgment must be served at least 10 days prior to the scheduled hearing

RULES 37-39 – POST JUDGMENT 

Grounds for new trial — Within the period for taking an appeal when the following causes materially affects the substantial rights of the aggrieved party

  1. FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or
  2. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result.

Grounds for reconsideration – Within the same period

  1. the damages awarded are excessive
  2. the evidence is insufficient to justify the decision or final order, or
  3. the decision or final order is contrary to law

 

RULES 40-43 – APPEALS  

There are 7 modes of appeal under the Civil Procedure

  1. to the RTC from the MTC – notice of appeal (Rule 40)
  2. to the CA from
    1. the RTC in its original jurisdiction – notice of appeal (Rule 41)
    2. the RTC in its appellate jurisdiction – petition for review (Rule 42)
    3. quasi-judicial agencies – petition for review (Rule 43)
    4. to the SC – petition for review on certiorari (Rule 45)
    5. Annulment of Judgments or Final Orders and Resolutions (Rule 47) 

Period to appeal – interrupted by MNT or MfR

  1. by notice of appeal – within 15 days after notice to appellant of judgment
  2. by record on appeal – within 30 days after notice to appellant of judgment

No extension of time to file MfR or MNT shall be allowed 

Contents of the notice of appeal from MTC

  1. the parties to the appeal
  2. the judgment or final order or part thereof appealed from, and
  3. the material dates showing the timeliness of the appeal.

Note that in notice appeal from MTC, the court to which the appeal is taken need not be stated. In notice of appeal from the RTC, the court to which the appeal is taken is required to be stated. 

A record on appeal shall be required only in

  1. in special proceedings and
  2. other cases of multiple or separate appeals. 

Contents of the record on appeal (same as in appeals from RTC)

  1. full names of all the parties stated in the caption
  2. include the judgment or final order from which the appeal is taken
  3. in chronological order, copies of only such related pleadings, petitions, motions and all interlocutory orders
  4. such data as will show that the appeal was perfected on time.
  5. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the related evidence, testimonial and documentary
  6. Subject index when the record on appeal exceeds 20 pages

 

In ejectment judgments, execution is stayed only if an appeal is made to the RTC, supersedeas bond is filed and rentals continues to be paid pending appeal. Failure to pay rentals means execution ensues. The amount of supersedeas bond should be the amount of back rentals. But further appeal from the RTC to the CA, execution can no longer be stayed.

Cases that go to the SC are by petition for review on certiorari. The only instance when a case can go to the SC on notice of appeal is in criminal cases where the penalty imposed is reclusion perpetua, or life imprisonment.

From quasi-judicial agencies to the CA, the appeal is by petition for review. Appeal by itself does not stay execution of the decision. It is stayed only if the CA issues a preliminary injunction.

On pure questions of law decided by RTC in its original jurisdiction, the appeal is directly to the SC by petition for review on certiorari. Pure questions of law decided by RTC in its appellate jurisdiction, the appeal is still to the CA.

 

Appeal from the RTC (Rule 41)

 

An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

(f) An order of execution;

(g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(h) An order dismissing an action without prejudice.

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.

 

Period of ordinary appeal

  1. within 15 days from notice of the judgment or final order appealed from
  2. where a record on appeal is required, within 30 days from notice of the judgment or final order.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration.

No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

 

Petition for Review from the RTC to the CA (Rule 42

Period to file and serve petition for review from RTC to CA – 15 days from notice of the decision sought to be reviewed or of the denial of petitioner’s MNT or MfR; extendible by another 15 days; further extension of 15 days only with compelling reason

A party has a fresh 15 days to file a petition for review from denial of the MFR or MNT, but only the remaining period to file a notice of appeal.

The period to file a petition for review may be extended by the appellate court, but the period to file a notice of appeal may not be extended by the court a quo.

The period to file MNT or MfR is always non-extendible. The period to file a notice of appeal is also not extendible.[Habaluyas v. Jabson, 138 SCRA 46 (1985)] However, a period to file a petition for review may be extended by 15 days, and for the most compelling reason, another 15 days. 

Grounds for motu propio dismissal of the petition for review

  1. patently without merit
  2. prosecuted manifestly for delay, or
  3. the questions raised therein are too unsubstantial to require consideration

 

Petitions for review, whether from quasi-judicial agencies or from the RTC Ordinary appeals
Petitioner has fresh 15 days from notice of denial of MNT or MfR to petition for review Petitioner has only the remainder of the original 15 days from notice of denial of MNT or MfR to appeal
Period may be extended Non-extendible
Requires certificate of non-forum shopping Does not require certificate of non-forum shopping
CA may dismiss motu propio CA has to entertain the appeal

 

 

RULE 45 – APPEAL BY CERTIORARI TO THE SUPREME COURT

 

Findings of the CA may be reviewed by the SC when:

(a)          the conclusion is a fining grounded entirely on speculations, surmises or conjectures;

(b)          the inference made is manifestly mistaken, absurd, or impossible;

(c)          there is grave abuse of discretioin;

(d)          the judgment is based on misapprehension of facts;

(e)          finding of facts are conflicting;

(f)           the CA, in making the findings, went beyond the issues of the case and the same is contrary to the admissions made;

(g)          CA manifestly overlooked certain relevant facts not disputed by the parties and which if properly considered would justify a different conclusion

 

 

Distinctions between Rule 45 and Rule 65

Rule 45 – Appeal by Certiorari Rule 65 – Special Civil Action for Certiorari
Only questions of law may be raised The only question that may be raised is whether or not the respondent has acted with grave abuse of discretion, or acted without or in excess of jurisdiction
Required to be filed within 15 days from notice of the judgment or final order or resolution appealed from or of denial of motion for new trial or consideration Must be filed not later than 60 days from notice of the judgment or order or resolution
The parties are the appellants and the appellees as petitioners and respondents, respectively The parties are the aggrieved party and the respondent, the tribunal exercising judicial function

 Requirements for petitions filed with the Supreme Court and the Court of Appeals

 1. Petitioner has not commenced any other action or proceeding involving the same issues in the SC, CA or other tribunal or agency;

2. To the best of his knowledge, no such action or proceeding is pending before the SC, CA or other tribunal or agency;

3. If there is such other action or proceeding pending, he must state the status of the same;

4. If he should thereafter learn that a similar action or proceeding has been filed or is pending before the SC, etc., he undertakes to promptly inform said courts and such other tribunal or agency within 5 days therefrom.

 Cases where multiple appeals are allowed:

 1. Actions for recovery of property with accounting

2. Eminent domain

3. Foreclosure mortgage

RULE 48 – PRELIMINARY CONFERENCE

 Section 1. At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference:

(a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised;

(b) To define, simplify and clarify the issues for determination;

(c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and

(d) To take up such other matters which may aid the court in the prompt disposition of the case.

GROUNDS FOR DISMISSAL OF APPEAL (RULE 50):

 (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41;

(d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules;

(f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;

(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and

(i) The fact that the order or judgment appealed from is not appealable.

 Requisites for Motion for New Trial before the CA (Rule 53):

  1. filed after appeal has been perfected and before the CA loses jurisdiction.
  2. Ground is newly discovered evidence which
    1. could not have been discovered prior to the trial in the court below by the exercise of due diligence and
    2. is of such a character as would probably change the result.
    3. accompanied by affidavits showing
      1. the facts constituting the grounds therefore; and
      2. the newly discovered evidence.

Original cases cognizable before the SC (Rule 56):

  1. petitions for
    1. certiorari
    2. prohibition
    3. mandamus
    4. quo warranto
    5. habeas corpus
    6. disciplinary proceeding against members of the judiciary and attorneys, and
    7. cases affecting ambassadors, other public ministers and consuls

 An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Hence for any civil decision by the CA to go to the SC, it must be by pettion for review on certiorari.

 Grounds for dismissal of appeal before the SC  

  1. Failure to take the appeal within the reglementary period;
  2. Lack of merit in the petition;
  3. Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs;
  4. Failure to comply with the reauirements regarding proof of service and contents of and the documents which should accompany the petition;
  5. Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause;
  6. Error in the choice or mode of appeal; and
  7. The fact that the case is not appealable to the Supreme court.

 

PROVISIONAL REMEDIES (RULES 57-61):

 1. Preliminary Attachment

 Preliminary Attachment – a provisional remedy, incidental and ancillary to a principal action or proceeding, by which the property of an adverse party is taken into legal custody as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party, the granting of which lies within the sound discretion of the judge taking cognizance of the principal case upon whose existence it depends.

Purpose of attachment – to secure a contingent lien on defendant’s property until plaintiff can obtain a judgment and have such property applied to its satisfaction or to make provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction or improperly disposed of or concealed or placed beyond the reach of creditors.

 Kinds of attachment

  1. Preliminary attachment – given at the beginning or during the pendency of the action, or before judgment becomes final
  2. Final attachment – given upon termination of the case to enforce or satisfy a final and executory judgment

 Attachment generally refers to corporeal property in the possession of a party. Garnishment is a form of attachment which refers to money, stocks, credits or other ncorporeal property which belongs to the party but is in the possession or under the control of 3rd persons.

Attachment – property is attached at any time before entry of judgment. Execution – property is levied after entry of judgment.

 Instances upon which attachment may issue

  1. In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;
  2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer or a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
  3. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;
  4. In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof;
  5. In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or
  6. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.

 2. Preliminary Injunction (Rule 58)

 Kinds of injunction

  1. Prohibitory
    1. preliminary
    2. final
    3. Mandatory – an order which requires the performance of a particular act or acts
      1. Preliminary 
      2. final

 Preliminary Injunction – an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction.

 Grounds for issuance of preliminary injunction

  1. the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually;
  2. the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
  3. a party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

 Requisites for preliminary injunction or temporary restraining order

  1. verified application showing facts entitling the applicant to the relief demanded
  2. bond conditioned on paying the party enjoined all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto
  3. GR: hearing. Exception: court may issue TRO if plaintiff may suffer grave or irreparable injury

 When prior or contemporaneous service of summons is not required

  1. summons could not be served personally or by substituted service despite diligent efforts
  2. the adverse party is a resident of the Philippines temporarily absent
  3. the adverse party is a nonresident of the Philippines

 Stages of injunction

 72 hour TRO

  1. if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury
  2. issued by executive judge of a multiple-sala court or the presiding judge of a single-sala court
  3. issued ex parte, without hearing
  4. thereafter must

1)                  serve summons and other documents

2)                  conduct summary hearing to determine whether the TRO shall be extended to 20 days until the application for preliminary injunction can be heard

20-day TRO

  1. If it shall appear from the facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice
  2. If application is included in initiatory pleading

1)                  Notice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

2)                  Raffled only after notice to and in the presence of the adverse party or the person to be enjoined

  1. issued with summary hearing (to determine whether the applicant will suffer great or irreparable injury) within 24 hours after sheriff’s return of service and/or records are received by the branch selected by raffle
  2. Within 20-day period court must

- order said party or person to show cause why the injunction should not be granted

- determine whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.

  1. including the original 72 hours, total effectivity of TRO shall

1)                  not exceed 20 days, if issued by a RTC or MTC

2)                  not exceed 60 days, if issued by the CA or a member thereof

3)                  until futher orders, if issued by the SC

  1. TRO is automatically vacated upon expiration of the period and without granting of preliminary injunction
  2. effectivity is not extendible without need of any judicial declaration to that effect
  3. no court shall have authority to extend or renew the same on the same ground for which it was issued.
  4. Preliminary injunction
    1. Hearing and prior notice to the party sought to be enjoined
    2. If application is included in initiatory pleading

1)                  Notice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

2)                  Raffled only after notice to and in the presence of the adverse party or the person to be enjoined

  1. Applicant posts a bond
  2. Final injunction

Note that a bond is required only in preliminary injunctions, but is not required in TROs.

After lapse of the 20 day TRO, the court can still grant a preliminary injunction.

Note that irreparable injury is always a requisite in TROs. But in the 72 hour TRO, grave injustice must also be shown. In the 20 day TRO, the ground is great or irreparable injury.

Paras v. Roura, 163 SCRA 1 (1988) Without a preliminary injunction, a TRO issued by the CA expires without necessity of court action.

* Note that TROs issued by the SC are effected until further orders.

 Grounds for objection to, or for motion of dissolution of, injunction or restraining order

  1. upon showing of insufficiency of the application
  2. other grounds upon affidavit of the party or person enjoined
  3. appears after hearing that irreparable damage to the party or person enjoined will be caused while the applicant can be fully compensated for such damages as he may suffer, and the party enjoined files a counterbond
  4. insufficiency of the bond
  5. insufficiency of the surety or sureties

 1.      Receivership (Rule 59)

 Receiver – an indifferent person between the parties to a case, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it

Purpose of receivership – to preserve, administer, or dispose of property in litigation, pendente lite

 Instances when receivership may be granted

  1. the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, or materially injured unless a receiver be appointed to administer and preserve it
  2. in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;
  3. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;
  4. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

 General powers of receiver

  1. to bring and defend, in such capacity, actions in his own name
  2. to take and keep possession of the property in controversy
  3. to receive rents
  4. to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver
  5. to compound for and compromise the same
  6. to make transfer
  7. to pay outstanding debts
  8. to divide the money and other property that shall remain among the persons legally entitled to receive the same
  9. to do such acts respecting the property as the court may authorize.

However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action.

No action may be filed by or against a receiver without leave of the court which appointed him.

2.      Replevin (Rule 60)

 A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided

 Support Pendente Lite (Rule 61)

 Provisions of the Family Code:

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a)

Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and

(5) Legitimate brothers and sisters, whether of full or half-blood

 Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence.

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Responses

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