JURISDICTION
The authority of the court to hear, try and determine a case, as well as, to
execute its decisions.
It is the Court and not the judge which is vested with jurisdiction. Judge
merely presides over the court. Hence, the continuity of a court and the
efficacy of its proceedings are not affected by the death, resignation, or
cessation from the service of the judge presiding over it.
TEST OF JURISDICTION
“Whether the court has the power to enter into the inquiry and not whether
the decision is right or wrong.”
(Has the law given the court the authority to take cognizance of a particular
case?)
ASPECTS OF JURISDICTION
a. Jurisdiction over the subject matter
b. Jurisdiction over the parties
c. Jurisdiction over the issues of the case
d. Jurisdiction over the res or the thing involved in the litigation
a. Jurisdiction over the Subject Matter
The power of a particular court to hear the type of case that is then
before it. Jurisdiction of the court over the class of cases to which a
particular case belongs.
Conferred by law which may either be by the Constitution or a Statute.
Consequences of this rules are:
1. It cannot be granted by agreement of the parties
2. It cannot be acquired, waived, enlarged, or diminished by any
act or omission of the parties; or
3. It cannot be conferred by acquiescence of the courts
4. It cannot be conferred by the administrative policy of any
court
Duty of a court to dismiss an action for lack of jurisdiction over the
subject matter
Sec. 1, Rule 9 provides that “xxx when it appears from the pleadings or
the evidence on record that the court has no jurisdiction over the subject
matter, xxx the court shall dismiss the claim”
Even if such question is neither raised by the pleadings or suggested by
counsel, the Court may recognize the want of jurisdiction and act
accordingly by staying pleadings, dismissing the action, or otherwise
noticing the defect, at any stage of the proceedings (Bureau of Customs
v. Devanadera, 08 September 2015)
Effect of Lack of Jurisdiction over the Subject Matter
General Rule: The proceedings conducted, or decisions made by a
court are legally void where there is an absence of jurisdiction over the
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subject matter. (Even if the court in good faith believes that the subject matter is within its
jurisdiction.) A judgment rendered by a body or a tribunal that has no
jurisdiction over the subject matter of the case is no judgment at all. A
court devoid of jurisdiction can only dismiss the case for want of
Jurisdiction.
XP: When the party raising the issue is barred by estoppel (Suntay v.
Gocolay; BPI v. ALS Management)
Jurisdiction
Exercise of Jurisdiction
The power or authority of the
Court to decide a case.
The exercise of the such power.
When the court acts according to
such jurisdiction, renders a
decision on the case and executes
its decision, such acts constitute
exercise of jurisdiction.
Error of Jurisdiction
Occurs when the court exercises
jurisdiction not conferred upon it by
law.
or
When the court or tribunal, although
vested with jurisdiction, acts in
excess of its jurisdiction or with
grave abuse of discretion amounting
to lack of jurisdiction.
Error of Judgment
Presupposes that the court is vested
with jurisdiction over the subject
matter of the action but, in the
process of exercising that
jurisdiction, it committed mistakes
in the appreciation of facts and the
evidence leading to an erroneous
judgment.
Mistake are mere error of judgment.
Correctible by appeal.
Correctible by certiorari.
Erroneous Judgment NOT void.
How Jurisdiction over the Subject Matter is determined
Jurisdiction over the Subject Matter is determined by the allegation in
the complaint, as well as , by the character of the relief sought.
In determining whether or not a Court has jurisdiction over the
complaint before it, court shall only consider the material allegations
in the complaint and not inquire into the truth of such allegations. The
truth shall later on be determined at the trial.
Caption of the case not controlling. The cause of action of action in a
complaint is not what the title or designation of the complaint states,
but what the allegations in the body of the complaint define and
describe. Designation or caption is not controlling for it is not even an
indispensable part of the complaint.
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Also, jurisdiction (over the subject matter) does not depend on the
amount ultimately substantiated and awarded by the trial court.
However, the same does not apply in reverse.
Objections to Jurisdiction over the Subject Matter
Jurisdiction over the subject matter may be raised at any stage of the
proceedings, even for the first time on appeals. The issue may even be
tackled motu propio for the first time on appeal.
note: prior to the amendment, earliest opportunity to raise the issue of
jurisdiction is in a motion to dismiss filed before the filing of an answer
because of lack of jurisdiction over the subject matter. (Sec. 1(b), Rule
16)
note further: Rule 16 has been deleted and incorporated in various
rules, including Rule 15, sec. 12.
Effect of Estoppel on Objections to Jurisdiction
Defense of lack of jurisdiction may be waived by estoppel through
active participation in the trial.
After voluntarily submitting a case and encountering an adverse
decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court.
In Tijam v. Sibonghanoy, the SC barred a belated objection to
jurisdiction that was raised by the party when an adverse decision was
rendered by the lower court against it, and only 15 years after seeking
affirmative relief from the court and actively participating in all stages
of the proceedings.
Reason: “The Court frowns upon the undesirable practice of a party
submitting his case for decision and then accepting the judgment, only
if favorable, and attacking it for lack of jurisdiction, when adverse.”
Jurisdiction over the Subject Matter vis-à-vis the Omnibus Motion Rule
Omnibus motion – motion attacking a pleading, order, judgment, or
proceeding, (Sec. 9, Rule 15)
General rule: All objections then available must be included and all
objections not so included are deemed waived.
Exceptions: Sec. 1, Rule 9 of the Rules of Court, non-waivable
defenses:
a. Lack of Jurisdiction over the Subject Matter
b. Litis Pendencia
c. Res Judicata; and
d. Prescription
A motion to dismiss, by seeking for the dismissal of a claim, definitely
attacks a pleading. Hence, the same is considered as an omnibus
motion. Being an omnibus motion, when a motion to dismiss is filed,
all the objections or defenses available to the movant, at the time of the
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filing of the same shall be invoked. Available defenses not invoked are
considered waived.
However, if a motion to dismiss was filed and the issue of lack of
jurisdiction over the subject matter was not raised therein, a party may
still raise the same as an affirmative defense in the answer because
such issue is not barred by the omnibus motion rule.
---- -----------------------------Doctrine of Primary Jurisdiction: remedy within the administrative
machinery must be resorted to give administrative officers every
opportunity to decide a matter within his jurisdiction.
Such remedy must be exhausted first before the court’s power of
judicial review can be sought.
Objective is to guide the court in determining whether it should refrain
from exercising its jurisdiction until after an administrative agency has
determined some question or some aspect of some question arising in
the proceedings before the court.
Doctrine of Exhaustion of administrative remedies: Courts
cannot/will not determine a controversy involving a question which is
within the jurisdiction of the administrative tribunal prior to the
resolution of the question by the administrative tribunal, where the
question demands the exercise of sound administrative discretion
requiring special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matters of
fact.
Doctrine of Adherence of Jurisdiction (continuity of jurisdiction):
Once jurisdiction has attached, it cannot be ousted by subsequent
happenings or events, although of a character which would have
prevented jurisdiction from attaching in the first instance. Once the
court acquired jurisdiction, it retains the same until it finally disposes
of the case.
Illustration: If the court has jurisdiction on a motion at the time it was
filed, that jurisdiction continues until the matter is resolved and is not
lost by the subsequent filing of a notice of appeal. (Asmala v.
COMELEC)
Finality of judgment does not totally deprive the court of jurisdiction
over the case. What the court loses is the power to amend, modify or
alter the judgment. The Court still has jurisdiction to enforce and
execute such judgment. (Echegaray v. Sec. of Justice)
Doctrine of Ancillary Jurisdiction: The authority of an office or
tribunal to do all things necessary for the administration of justice
within the scope of its jurisdiction, and for the enforcement of its
judgment and mandate. (see secs. 5 and 6, rule 135)
The power of every court to adopt such means and perform such acts
necessary to carry its jurisdiction into effect.
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Doctrine of Judicial Stability: Precludes a court from interfering by
injunction with the regular orders of a co-equal court.
Rationale behind is that a court the acquires jurisdiction over the case
and renders judgment therein has jurisdiction over its judgment, to the
exclusion of all other coordinate courts, for its execution and over all
its incidents and to control, in furtherance of justice, the conduct of
ministerial officers acting in connection with that judgment.
b. Jurisdiction over the Parties (jurisdiction in personam)
The power of the court to make decisions that are binding on persons.
The legal power of the court to render a personal judgment against a
party to an action or proceeding.
Jurisdiction over the person of a litigant is vital for the enforcement of
an order or judgment of the court against such person. A person not
within the jurisdiction of the court is not bound by the judgment of that
court.
How it is acquired depends on whether the party is the plaintiff or the
defendant
Jurisdiction over the plaintiff is acquired as soon as he filed his
complaint or petition. By the mere filing of the complaint, the plaintiff
in a civil action, voluntarily submits himself to the jurisdiction of the
court.
Jurisdiction over the person of the defendant in civil cases is acquired
either by his voluntary appearance in court and his submission to its
authority, or by service of summons.
i. Voluntary Appearance of Defendant
Sec. 23, Rule 14 states that “The defendant’s voluntary
appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance.”
To constitute voluntary appearance, it must be the kind that
amounts to a voluntary submission to the jurisdiction of the
court. Hence, a person voluntarily submits to the court’s
jurisdiction when he/she participates in the trial despite
improper service of summons.
As a rule, one who seeks an affirmative relief is deemed to have
submitted to the jurisdiction of the court.
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Conditional appearance (La naval doctrine1) is no longer
allowed in view of the 2nd sentence in Sec. 23, Rule 14 of the
2019 amendments on the Rules of Civil Procedure. Also, a
motion to dismiss on the ground of lack of jurisdiction over the
person is a prohibited motion under Sec. 12(a), Rule 15.
ii. Service of Summons
See Rule 14 of the 2019 amendments on the Rules of Civil
Procedure.
When jurisdiction over the person of the defendant is required
Jurisdiction over the person of the defendant is required in an action in
personam. It is not a prerequisite in an action in rem and quasi in rem.
Rationale: Jurisdiction over the parties is required in actions in
personam because they seek to impose personal responsibility or
liability upon a person. On the other hand, actions in rem or quasi in
rem are not directed against the person based on his or personal
liability. (p. 80, Riano)
Action in
Personam
Action
against a
person on the
basis of his
personal
liability
Jurisdiction
over the
defendant is
necessary for
the court to
validly try
and decide
the case
Action in
Rem
Action
against the
thing itself
Action Quasi in Rem
One wherein an individual is named as
defendant and the purpose of the
proceeding is to subject his interest
therein to the obligation or lien
burdening the property
Jurisdiction over the defendant is not a prerequisite.
However, summons must be served upon the
defendant for satisfying the due process requirement.
c. Jurisdiction over the Issues
Power of the court to try and decide the issues raised in the pleadings
of the parties.
Issue – disputed point or question to which parties to an action have
narrowed down their several allegations and upon which they are
desirous of obtaining a decision.
How conferred and determined
1
La naval doctrine allowed the raising of defenses in addition to lack of jurisdiction over the person
of the defendant, without creating an inference of a voluntary submission to the jurisdiction of the
court
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1. Generally conferred by the allegations in the pleadings of the
parties. (the pleadings present the issues to be tried and determine
whether or not issues are of fact or of law)
Note: Rule 31, Sec. 1 provides that a judgment on the pleading may be
rendered by the court upon a motion properly filed where an answer fails to
tender and issue or otherwise admits the material allegations of the adverse
party’s pleading.
2. May also be determined and conferred by stipulation of the parties, eg.
Pre-trial, Sec. 2(b)(c), Rule 18 – stipulation of facts or documents or
enters into an agreement simplifying the issues of the case.
3. Conferred by waiver or failure to object to the presentation of evidence
on a matter not raised in the pleadings. (1st sentence, Sec. 5, Rule 10)
Note: The consent of the parties may be inferred from the failure to interpose
an objection to the presentation of evidence on a matter not alleged in the
pleadings. (p. 86, Riano)
Question of Law
Question of Fact
When the doubt or difference arises When the doubt or difference arises
as to what the law is on a certain set as to the truth or falsehood of the
of facts.
alleged facts.
Test to determine whether the issue if of law or of fact:
Whether the court can determine the issue raised without reviewing or
evaluating the evidence. If there is no need for such evaluation, the issue
is one of law; otherwise, it is a question of fact.
d. Jurisdiction over the Res
The Court’s jurisdiction over the thing or the property which is the
subject of the action. Necessary when the action is one in rem or
quasi in rem.
How acquired by the Court
1. By placing the property or the thing under its custody (custodia
legis) or constructive seizure. eg. Attachment of property in
which the property is placed in the actual custody of the court.
2. Through statutory authority conferring upon it the power to deal
with the property or thing. eg. Suits involving the status of the
parties; suits involving the property in the Philippines of a nonresident defendant. (in this case the property may never be taken into actual custody
at all such as a proceeding to register a title of land wherein the court assumes, without taking
actual custody of the property, to exercise jurisdiction in rem over the property and to
adjudicate title in favor of the petitioner against all the world)
Extent of relief when jurisdiction is only over the res
Any relief granted in rem or in quasi in rem actions must be confined
to the res, and the court cannot lawfully render a judgment against the
defendant.
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JURISDICTION OF THE MUNICIPAL TRIAL COURTS
The MTC exercises exclusive original jurisdiction over civil actions
where the value of the personal property, estate or amount of the demand
does not exceed P300,000 outside of Metro Manila or not more than
P400,000 within Metro Manila.
When the demand exceeds the amounts mentioned, the Regional Trial
Court has exclusive
original jurisdiction.
Remember Jurisdictional Amount:
P300,000 and below – outside Metro Manila
Note: Where the
P301,000 to P400,000 – within Metro Manila
deceased is a muslim,
probate proceedings, testate or intestate, shall/may (not sure if mandatory) be
filed before shari’a courts.
Jurisdictional amount does not include the following:
i.
interest
Note: Interest on the loan is a primary and inseparable component of the
cause of action, not merely incidental thereto, and already determinable at
the time of the filing of the Complaint, it must be included in the
determination of which court has jurisdiction over the case.
ii.
damages of whatever kind
Note: Administrative Circular No. 09-94 provides that the exclusion of
damages of whatever kind applies to cases where the damages are merely
incidental or a consequence of the main cause of action.
Where the claim for damages is the main cause of action, or one of the
causes of action, the amount of such claim shall be considered in
determining the jurisdiction of the court.
iii.
iv.
v.
attorney’s fees
litigation expenses; and
costs
However, they shall be included in determining the filing fees.
Totality Rule
Presupposes that there are several claims or causes of actions between the
same or different parties, embodied in the same complaint, the amount of
the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or
different transactions. This rule is applicable only in cases where the action
is for recovery of sum of money. (P. 104, Riano)
Delegated Jurisdiction
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MTC exercises delegated jurisidiction in cadastral and land registration
cases covering lots where there is no controversy or opposition, or
contested lots the value of which does not exceed P100,000, as may be
delegated by the Supreme Court. (Sec. 34, B.P. 129, as amended)
Value of lot ascertained by: a) affidavit of the claimant, b) agreement os
the respective claimants, if there are more than one, or c) from the
corresponding tax declaration of the real property.
The decision of the MTC shall be appealable in the same manner as the
decision of the RTC. Hence, it shall be appealable to the Court of Appeals.
Special Jurisdiction
In the absence of all the RTC judges in the province or city, MTC has also
been conferred by law jurisdiction to hear and decide petitions for a writ
of habeas corpus, or authority to hear and decide applications for bail in
criminal cases.
Actions involving title to, possession of or any interest in real property
This means that the plaintiff’s main cause of action is based on a claim
that he owns the property or that he has the legal rights to have exclusive
control, possession enjoyment or disposition of the same. eg. Action for
quieting of title over a real property, action for reconveyance of real
property, cancellation of title. (see also p. 114, Sabitsana case)
Title – legal link between a person who ows the property and the property
itself. It is the claim, right or interest in the property.
General Rule: In all civil actions involving title to, possession of or any
interest in real property, the RTC has jurisdiction over the same where its
assessed value exceeds P20,000 (outside metro manila), or it exceeds
P50,000 for a real property within metro manila.
Exception: MTC has jurisdiction on actions for forcible entry into and
unlawful detainer of lands
MTC has jurisdiction over civil actions
or buildings regardless of
involving title to, possession of or any
the amount of its assessed
interest in real property when:
value.
1. Assessed value does not exceed
P20,000 for real properties
outside metro manila
2. Assessed value does not exceed
P50,000 for a real properties
within metro manila.
“the basis of jurisdiction
in real actions is the
assessed value of the
property.”
When the parties disagree
on the correct boundary
of adjacent lots, the controversy must be treated as one for ownership, not
mere possession, as it is about encroachment.
Need to allege assessed value; when failure to allege assessed value is not
fatal
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A complaint must allege the assessed value of the property to determine
which court has jurisdiction over the same. This is because the nature of
the action and which court has jurisdiction over the same is determined by
the material allegations of the complaint.
If the assessed value is not alleged in the complaint, the action should be
dismissed for lack of jurisdiction. The trial court is not afforded the means
of determining from the allegations of the basic pleading whether the
jurisdiction over the subject matter of the action pertains to it or to another
court.
In cases of land not declared for taxation purposes, the value of the
property shall be determined by the assessed value of the adjacent lot. (Sec.
33(3), B.P. 129, as amended)
However, non-inclusion of the assessed value on the face of the complaint
is not fatal if attached to the complaint is a tax declaration showing the
assessed value of the property. Annexes to the complaint is part of and
should be considered together with the complaint in determining the
jurisdiction of the court.
Note: The amount involved is immaterial for purposes of the RTC’s
appellate jurisdiction. Allegation of assessed value is immaterial on
appeal.
Accion Publiciana
Accion Reinvindicatoria
See p. 122 riano
JURISDICTION OF THE REGIONAL TRIAL COURTS
Exclusive Original Jurisdiction (Sec. 19, BP129)
Section 19. Jurisdiction in civil cases. – Regional Trial Courts shall
exercise exclusive original jurisdiction:
1. In all civil actions in which the subject of the litigation is incapable
of pecuniary estimation;
2. In all civil actions which involve the title to, or possession of, real
property, or any interest therein, where the assessed value of the
property involved exceeds Twenty thousand pesos (P20,000.00)
or for civil actions in Metro Manila, where such the value exceeds
Fifty thousand pesos (50,000.00) except actions for forcible entry
into and unlawful detainer of lands or buildings, original
jurisdiction over which is conferred upon Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts;
3. In all actions in admiralty and maritime jurisdiction where he
demand or claim exceeds One hundred thousand pesos
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(P100,000.00) or , in Metro Manila, where such demand or claim
exceeds Two hundred thousand pesos (200,000.00);
4. In all matters of probate, both testate and intestate, where the gross
value of the estate exceeds One hundred thousand pesos
(P100,000.00) or, in probate matters in Metro Manila, where such
gross value exceeds Two hundred thousand pesos (200,000.00);
5.
In all actions involving the contract of marriage and marital
relations;
6. In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising jurisdiction or any court,
tribunal, person or body exercising judicial or quasi-judicial
functions;
7. In all civil actions and special proceedings falling within the
exclusive original jurisdiction of a Juvenile and Domestic
Relations Court and of the Courts of Agrarian Relations as now
provided by law; and
8. In all other cases in which the demand, exclusive of interest,
damages of whatever kind, attorney's fees, litigation expenses, and
costs or the value of the property in controversy exceeds One
hundred thousand pesos (100,000.00) or, in such other
abovementioned items exceeds Two hundred thousand pesos
(200,000.00). (as amended by R.A. No. 7691*)
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RULE 2:
CAUSES OF ACTION
It is an act or omission by which a party violates the right of another. The
following are its elements as applied to ordinary civil actions:
a. A legal right in favor of the plaintiff
b. A correlative duty of the defendant to respect such rights; and
c. An act or omission by such defendant in violation of the right of
the plaintiff with a resulting injury or damage to the plaintiff for
which the latter may maintain an action for the recovery of relief
by the defendant.
Note: A cause of action arises only upon the occurrence of the last
element, giving the plaintiff the right to maintain an action in court
for the recovery of damages or other appropriate relief
The complaint must state the cause of action to be procedurally acceptable.
Lack of Cause of Action
Insufficiency of the factual basis
for the action.
Applies in a situation where the
evidence failed to prove the cause
of action alleged in the pleading.
It is a ground for dismissal of
action thru demurrer to evidence.
Cause of Action
It is the basis of the action filed.
Failure to State Cause of Action
Insufficiency of the allegations in
the pleadings.
Allegations in the complaint,
taken together, do not completely
spell out the elements of a
particular cause of action.
Basis for an affirmative defense.
(Sec. 12, Rule 8)
Action
The suit filed in court for the
enforcement or protection of a
right, or the prevention or redress
of a wrong
Right of action
Right to relief granted by law to a
party to institute an action against a
person who has violated his right;
the legal right to sue
Relief
Redress/measure which the plaintiff
prays the court to order or
adjudicate in his favor
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Remedy
Form or type of action which the
plaintiff may avail of in order to
obtain relief from the court
Subject Matter
The thing, act, contract or property
which is directly involved in the
action, concerning which the wrong
has been done.
Cause of Action
Formal statements of the
operational facts that give rise to
such remedial right.
Facts which give rise to a right of
action
Right of Action
Remedial right belonging to some
persons. Right to commence and
maintain an action.
The legal right to sue
Note: There may be a cause of action without a corresponding right of
action such when the latter has already been barred by prescription.
Splitting a single cause of action
The act of instituting 2 or more suits on the basis of the same cause of
action. In here, the pleader divides a single cause of action, claim or
demand into two or more parts and brings a suit for each part.
This is expressly prohibited by Sec. 2, Rule 3 of the Rules of Court. The
reason for such prohibition is because splitting a single cause of action
breeds multiplicity of suits, clogs the court dockets, leads to vexatious
litigation, operates as an instrument of harassment, and generates
unnecessary expenses to the parties.
A cause of action may give rise to several reliefs, but only one action can
be filed, not one action for each relief. (Sec. 3, Rule 2)
Note: To interpose a cause of action in a counterclaim, and again invoke
it in a complaint against the same person or party, would also be splitting
a cause of action.
Illustration: (loan contracts secured by real estate mortgage) A loan
contract is an agreement separate from the mortgage. However, both refer
to one and the same obligation. Hence, there is only one cause of action.
A remedy is deemed chosen upon the filing of the suit for collection or
upon the filing of the complaint for foreclosure. If the plaintiff had already
instituted foreclosure proceedings, he is now barred from availing of an
ordinary action for collection of a sum of money and vice versa.
3 Tests to ascertain whether two suits relate to a single or common cause
of action
a. Whether the same evidence would support and sustain both the first
and second cause of action (“same evidence test”)
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b. Whether the defenses in one case may be used to substantiate the
complaint in the other; and
c. Whether the cause of action in the second case existed at the time of
the filing of the first complaint
Illustration showing no splitting: The filing of the first unlawful detainer
case was grounded on the petitioner’s violation of the stipulations in the
lease contract. Meanwhile, the filing of the second case for unlawful
detainer was based on the expiration of the lease contract, an event not yet
in existence at the time of the filing of the first complaint.
Effect of splitting cause of action (Sec. 4, Rule 2)
If two or more suits are instituted for a single cause of action, the filing of
one or a judgment upon the merit in any one is available as a ground for
the dismissal of the others.
The remedy of the defendant is to file a motion to dismiss under Sec. 12(a2
or a3), Rule 15 of the RoC.
As to which action would be dismissed would depend upon judicial
discretion and the [revailing circumstance of the case.
Anticipatory Breach
A contract to do several things at several times is divisible in its nature.
Such authorizes successive actions and a judgment recovered for a single
breach does not bar a suit for a subsequent breach. However, if the obligor
manifests an unqualified and positive refusal to perform a contract, though
the performance of the same is not yet due, and the renunciation goes to
the whole contract, it may be treated as a complete breach, which will
entitle the injured party to bring his action at once.
The breach is thus considered a total breach and there can only be one
action and the plaintiff must recover all his damages therein.
(see p. 186, Riano and p. 117 Riguera for illustrations)
Joinder of Causes of Action (Sec. 5, Rule 2, RoC)
It is the assertion of as many causes of action as a party may have against
another in one pleading alone. It is the process of uniting 2 or more
demand/rights of action in one action.
It is not compulsory, but merely permissive.
The joinder shall not include special civil actions or actions governed by
special rules. Hence, a complainant may not join an action for sum of
money with an ejectment case, the former being an ordinary civil action
and the latter a special civil action. (see pp. 187-189, Riano for
examples/illustrations)
When there are two or more defendants, or two or more plaintiffs, the
causes of action against the defendants can only be joined if there is
compliance with the rules on joinder of parties under Sec. 9, Rule 3 RoC.
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Hence, where a party sues two or more defendants, it is necessary for the
causes of action to arise out of the same transaction or series of transactions
and that there should be a question of law or fact common to them
Totality Rule
Presupposes that there are several claims or causes of actions between the
same or different parties, embodied in the same complaint, the amount of
the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or
different transactions. This rule is applicable only in cases where the action
is for recovery of sum of money. (P. 104, Riano)
Remedy in case of misjoinder of actions (Sec. 6, Rule 2)
The erroneously joined cause of action can be severed and proceeded with
separately upon motion by a party or upon the court’s own initiative.
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RULE 3: PARTIES
Only natural or juridical persons, or entities authorized by law may be
parties in a civil action. (Sec. 1, Rule 3)
Two main categories of parties to a civil action
1. Plaintiff is the claiming party and is the one who files the
complaint. It does not exclusively apply to the original plaintiff as
it may also apply to a defendant who files a counterclaim, a crossclaim or a third-party complainant.
2. Defendant refers to the defending party. When a counterclaim is
filed against the original defending party, he becomes a defendant
and the original defendant, a plaintiff in the counterclaim.
Juridical Persons as Parties
Article 44 of the New Civil Code enumerates the various classes of
juridical persons, viz:
Article 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or
purpose, created by law; their personality begins as soon as they
have been constituted according to law;
(3) Corporations, partnerships and associations for private interest
or purpose to which the law grants a juridical personality,
separate and distinct from that of each shareholder, partner or
member.
Juridical persons have personalities separate and distinct from those of the
natural persons that compose them. Hence, a judgment rendered against
the corporation is not a judgment rendered against a corporate stockholder
(and vice versa)
However, even if the cause of action belongs to the corporation, if the
board refuses to sue despite demand by the stockholders to sue and protect
or vindicate corporate rights, a stockholder is allowed by law to file a
derivative suit in the corporate name. In such a suit, the real party in
interest is actually the corporation and the stockholder filing the action is
a mere nominal party.
Entities authorized by law to be parties
Please see p. 214 of Riano
Entity without a juridical personality as a defendant
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“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.” (Sec. 15, Rule 3)
Hence, the responsive pleading of the entity sued must disclose the names
and addresses of its members since they are the persons ultimately liable
to the plaintiff.
Illustration: A, B, C, D and E, without incorporating themselves or
without registering as a partnership, enter into transaction using the
common name “Sea Quest Corp.,” they may be sued as Sea Quest Corp.
when the defendant “corporation” answers, the names of A, B, C, D and
E, and their addresses must be revealed.
Effect when a party impleaded is not authorized to be a party
Sec. 12(6), Rule 8 of the 2019 amendments on the Rules on Civil
Procedure provides that when the plaintiff has no legal capacity to sue, the
same shall be raised by the defendant as an affirmative defense in his or
her answer.
Averment of capacity to sue and be sued
Facts showing the capacity of a party to sue or be sued, or the authority of
a party to sue or be sued in a representative capacity, or the legal existence
of an organized association of persons that is made a party, must be
averred. (Sec. 4, Rule 8)
Real party in interest
“A real party in interest is the party who stands to be benefitted or injured
by the judgment in the suit, or the party entitled to the avails of the suit.”
(Sec. 2, Rule 3)
To be one, the interest must be real which is a present substantial interest
and not a mere expectancy or a future or consequential interest.
General Rule: Every action must be prosecuted in the name of the real
party in interest.
Exception: Unless otherwise authorized by law or by the rules, such as
sec. 3, Rule 3 on representatives as parties.
If either of the parties is not a real party in interest, the court cannot grant
relief prayed for because that party has no legal right or duty with respect
to the other.
Determining the real party in interest
i. The owner of the right violated stands to be the real party in interest as
plaintiff and the person responsible for the violation is the real party in
interest as defendant
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ii. A mere agent is not an assignee of the principal, cannot bring suit under
a deed of sale entered into in behalf of his principal because it is the
principal, not the agent, who is the real party in interest.
Real party in interest
the party who stands to be
benefitted or injured by the
judgment in the suit, or the party
entitled to the avails of the suit
Person with locus standi
One with a personal or substantial
interest in a case such that the
party has sustained or will sustain
direct injury as a result of the
governmental act that is being
challenged
Representatives as parties
An action is allowed to be prosecuted or defended by a representative or
someone acting in fiduciary capacity provided that the beneficiary shall be
included in the title of the case and shall be deemed to be the real party in
interest. (Sec. 3, Rule 3)
Examples of representative parties (GATE):
a. Guardians
b. Party authorized by law or the rules of court
c. Trustee of an express trust
d. Executor or administrator
Hence, in an execution, the court may authorize the judgment oblige to
bring an action against a person alleged to have property of the judgment
obligor or to be indebted to him, when such person claims an adverse
interest in the property or denies the debt. The judgment oblige must
include in the title the name of the judgment obligor who is deemed to be
the real party in interest.
Joinder of beneficiary: 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 the thing belonging to the
principal. (p. 143, Riguera for ratio)
Spouses as Party
Husband and wife shall sue or be sued jointly, except as provided by law.
(Sec, 4, Rule 3) (See pp. 143-145, Riguera for illustrations)
Minor or incompetent as a party
A minor or an incompetent may sue or be sued. He can be a party with the
assistance of his father, mother, guardian, or if he has none, a guardian ad
litem. (Sec. 5, Rule 3)
Indispensable Parties
An indispensable party is a party-in-interest without whom no final
determination may be had of an action. (Sec. 7, Rule 3)
An indispensable party is one whose interest in the subject matter of the
suit and the relief sought are so inextricably intertwined with the other
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parties that his legal presence as a party to the proceeding is an absolute
necessity.
Hence, a person is not an indispensable party if his interest in the
controversy or subject matter is separable from the interest of the other
parties, so that it will not necessarily be directly or injuriously affected by
a decree which does complete justice between them. (see p. 227, Riano)
Compulsory Joinder of Indispensable Parties: The joinder of
indispensable parties is mandatory, and courts cannot proceed without
their presence.
“If there is failure to implead an indispensable party, any judgment
rendered would have no effectiveness. A decision valid on its face, cannot
attain finality where there is want of indispensable parties.”
Whenever it appears that the court in the course of the proceeding that an
indispensable arty has not been joined, it is the duty of the court to stop
the trial and order the inclusion of such party. The non-joinder of an
indispensable party is not a ground for dismissal of an action. Hence, the
court should order the amendment of the complaint by impleading the
indispensable party or allowing the intervention of the indispensable party.
However, amendment or intervention is no longer available if there has
been entry of judgment. In such a case, the judgment would be null and
void.
Declaratory relief proceedings: The non-joinder of persons who claim any
interest which may be affected by a declaratory judgment is not a
jurisdictional defect. Judgment in a declaratory relief case is merely
declaratory and not executory, hence, the rule on compulsory joinder of
indispensable parties does not apply.
Examples/illustrations of indispensable parties: pp. 226-227, Riano and
pp. 149-150, Riguera.
Necessary Parties
“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.”
(Sec. 8, Rule 3)
A final determination of the case can be had among the parties already
impleaded where a necessary party, for some justifiable reason, is not
joined. But a necessary party should be joined so those already parties may
obtain a complete relief.
Examples/Illustrations: p. 157, Riguera, p. 232 Riano
Necessity for final
determination
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Indispensable Party
No final determination
may be had of an
action if an
indispensable party is
Necessary Party
A final determination
may be had of an
action even if he us
not impleaded
19
not impleaded. His
presence is mandatory.
Effect of not
impleading despite
Court Order
The court may dismiss
the case for failure to
prosecute.
Results to the waiver
of the plaintiff’s
claim against such
necessary party (Sec.
9 par. 2, Rule 3)
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. (Sec. 9 par. 1, Rule 3)
The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party. (Sec. 9
par. 2, Rule 3)
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. 9 par. 3, Rule
3)
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. 10, Rule 3)
Misjoinder or 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 the action and on such
terms as are just. Any claim against a misjoined party may be severed and
proceeded with separately.” (Sec. 11, Rule 3)
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.” (Sec. 12, Rule 3)
It is a suit brought by or defended by a representative member or member of
a group of persons on behalf of all the members of the group.
Requisites of a class suit
a. the subject matter of the controversy is one of common or general
interest to the members of the group
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b. the persons who are members of the group are so numerous that it
is impracticable to join as parties
When the interests of the parties in the subject matter are conflicting, a
class suit will not prosper. Also, a corporation may not institute a class suit
to recover properties of its members.
(p. 245 Riano)
A group member who was not appointed as a representative may intervene
in the class suit because “any party in interest shall have the right to
intervene to protect his individual interest.” (Sec. 12 last sentence, Rule
3)
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.” (Section 13, Rule 3)
Illustration:
Mr. X, a pedestrian, was injured in the collision of two vehicles. He
suffered injuries but does not know with certainty which vehicle caused
the mishap. If he wants to sue, he should sue the vehicle drivers/owners in
the alternative. (p. 234, Riano)
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.” (Section 14, Rule 3)
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 name and addresses of the persons
composing said entity must all be revealed.” (Section 15, Rule 3)
The responsive pleading of the entity sued must disclose the names and
addresses of its members since they are the persons ultimately liable to the
plaintiff.
Illustration: A, B, C, D and E, without incorporating themselves or
without registering as a partnership, enter into transaction using the
common name “Sea Quest Corp.,” they may be sued as Sea Quest Corp.
when the defendant “corporation” answers, the names of A, B, C, D and
E, and their addresses must be revealed.
Death of Party; Duty of Counsel
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“Whenever a party to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the court within
thirty (30) days after such death of the fact thereof, and to give the name
and address of his legal representativezor representatives. Failure of
counsel to comply with his duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative or representatives
to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party,
or if the one so named shall fail to appear within the specified period, 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.
The court charges in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs.” (Section 16, Rule 3)
General rule: A person’s right and obligations are transmissible upon his
death to his heirs. However, where the rights and obligations of a party are
intransmissible by law or by stipulation or are purely personal, the party’s
death would result in the extinguishment of the claim. (p. 174, Riguera)
Section 16, Rule 3 allows the substitution of a party-litigant who dies
during the pendency of a case by his heirs, provided that the claim subject
of said case is not extinguished by his death. If the claim in an action
affects property and property rights, then the action survives the detah of
a party-litigant.
However, a formal substitution of heirs is not necessary when they
themselves voluntarily appear, participate ain the case, and present
evidence in behalf of the deceased.
Purpose and importance of substitution of the deceased
The purpose of the substitution is the protection of the right of every party
to due process. It is to ensure that the deceased would continue to be
properly represented in the suit through the duly appointed legal
representative of the estate.
Non-compliance with the rules on substitution renders the proceedings of
the trial court infirm because the court has no jurisdiction over the person
of the legal representative or heirs of the deceased.
A party to be affected by a personal judgment must have a day in court and
an opportunity to be heard.
Death or separation of a party who is a public officer
“When a public officer is a party in an action in his official capacity and
during its pendency dies, resigns, or otherwise ceases to hold office, the
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action may be continued and maintained by or against his successor if,
within thirty (30) days after the successor takes office or such time as may
be granted by the court, it is satisfactorily shown to the court by any party
that there is a substantial need for continuing or maintaining it and that the
successor adopts or continues or threatens to adopt or continue to adopt or
continue the action of his predecessor. Before a substitution is made, the
party or officer to be affected, unless expressly assenting thereto, shall be
given reasonable notice of the application therefor and accorded an
opportunity to be heard.” (Section 17, Rule 3)
Incompetency or incapacity
“If a party becomes incompetent or incapacitated, the court, upon motion
with notice, may allow the action to be continued by or against the
incompetent or incapacitated person assisted by his legal guardian or
guardian ad litem.” (Section 18, Rule 3)
Transfer of interest
“In case of any transfer of interest, the action may be continued by or
against the original party, unless the court upon motion directs the person
to whom the interest is transferred to be substituted in the action or joined
with the original party.” (Section 19, Rule 3)
Action and contractual money claims
“When the action is for recovery of money arising from contract, express
or implied, and the defendant dies before entry of final judgment in the
court in which the action was pending at the time of such death, it shall not
be dismissed but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these Rules for prosecuting
claims against the estate of a deceased person” (Section 20, Rule 3)
Indigent party
“A party may be authorized to litigate his action, claim or defense as an
indigent if the court, upon an ex parte application and hearing, is satisfied
that the party is one who has no money or property sufficient and available
for food, shelter and basic necessities for himself and his family.
Such authority shall include an exemption from payment of docket and
other lawful fees, and of transcripts of stenographic notes which the court
may order to be furnished him. The amount of the docket and other lawful
fees which the indigent was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant of such authority at any time
before judgment is rendered by the trial court. If the court should
determine after hearing that the party declared as an indigent is in fact a
person with sufficient income or property, the proper docket and other
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lawful fees shall be assessed and collected by the clerk of court. If payment
is not made within the time fixed by the court, execution shall issue or the
payment thereof, without prejudice to such other sanctions as the court
may impose.” (Section 21, Rule 3)
If one is authorized to litigate as an indigent such authority shall include
exemption from the payment of (a) docket fees; (b) other lawful fees; and
(c) transcripts of stenographic notes, which the court may order to be
furnished him.
However, the amount of docket and other lawful fees which the indigent
was exempted from paying, shall be a lien on the judgment rendered in the
case favorable to the indigent.
Notice to the Solicitor General
“In any action involving the validity of any treaty, law, ordinance,
executive order, presidential decree, rules or regulations, the court, in its
discretion, may require the appearance of the Solicitor General who may
be heard in person or a representative duly designated by him.” (Section
22, Rule 3)
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RULE 4: VENUE
Venue is the place of trial or the geographical location in which an action
or proceeding should be brought. It is intended to accord convenience to
the parties, as it relates to the place of trial. It does not equate to the
jurisdiction of the court.
In civil cases venue is procedural, not jurisdictional, and may be waived
by the defendant if not seasonably raised either in a motion to dismiss or
in the answer.
VENUE
JURISDICTION
Place where the case is to be
heard or tried
Authority of the court to hear
and determine a case
Procedural law
Substantive law
May be waived if not invoked
as an affirmative defense.
Cannot be waived by the
parties
May be conferred by the act
or agreement of the parties
Fixed by law and cannot be
conferred by the parties
Court cannot dismiss a case
motu proprio for improper
venue
Court may dismiss the case
motu proprio in case of lack
of jurisdiction over the
subject matter
The objection to an improper
venue must be raised in the
answer as an affirmative
defense. Defenses and
objections not pleaded are
deemed waived.
Jurisdiction over the subject
matter mat be raised at any
stage of the proceeding since
it is conferred by law
Venue of real actions
“Actions affecting title to or possession of real property, or interest therein,
shall be commenced and tried in the proper court which has jurisdiction
over the area wherein the real property involved, or a portion thereof, is
situated.
Forcible entry and detainer actions shall be commenced and tried in the
municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated.” (Section 1, Rule 4)
Put simply, if the action is real, the action is local, and the venue is the
place where the real property involved, or any portion thereof is situated.
In real action, the residences of the parties are irrelevant to the choice of
venue. (p.151, Riano)
Actions to recover possession/ownership of real property are real actions
and must be filed in the place where the real property is located. Hence, an
action to recover possession of the leased real property for the payment of
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accrued rentals must be filed in the place where the property is located
because the action is a real action. The primary purpose of the action is the
recovery of possession of real property and the payment of accrued rentals
being merely incidental to the main case.
Also, where a complaint is denominated as one for specific performance
but nonetheless, prays for the issuance of a deed of sale for a parcel of land
to enable the plaintiff to acquire ownership thereof, its primary objective
and nature is one to recover the parcel of land itself, thus, it is deemed a
real action. The venue, therefore, is the place where the real property is
situated.
Venue of personal actions
“All other actions may be commenced and tried where the plaintiff or any
of the principal plaintiffs resides, or where the defendant or any of the
principal defendants resides, or in the case of a nonresident defendant
where he may be found, at the election of the plaintiff.” (Section 2, Rule
4)
In personal actions, the venue is deemed transitory because it moves
depending on the residences of the parties. The venue in personal actions
is where the plaintiff or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants reside, at the election of the
plaintiff. It shall also be noted that when the defendant is a non-resident,
the venue is where the plaintiff or any of the principal plaintiffs resides, or
where the non-resident defendant may be found, at the election of the
plaintiff.
When there is more than one plaintiff or defendant in a personal action,
the residence of the principal parties should be the basis for determining
the proper venue. This is to prevent the plaintiff from choosing the
residence of a minor plaintiff or defendant as a venue because the latter
would not be expected to exhibit the degree of interest in actively
participating in the litigation.
“Resides” in this case means the place of abode, whether permanent or
temporary, of the plaintiff or the defendant.
The residence of a domestic corporation is the place, within the
Philippines, where its principal office is located as states in the articles of
incorporation.
Actions for damages and actions to collect a sum of money must either be
filed in the residence of the plaintiff or of the defendant, at the election of
the plaintiff.
Also, an action to recover deficiency after extrajudicial foreclosure of the
real property mortgaged is a personal action, for it does not affect title to,
possession of, or any interest in real property. The action is for the recovery
of money, hence. Personal action. The venue is the residence of the
plaintiff or that of the defendant, at the election of the plaintiff.
Venue of actions against nonresidents
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“If any of the defendants does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff, or
any property of said defendant located in the Philippines, the action may
be commenced and tried in the court of the place where the plaintiff
resides, or where the property or any portion thereof is situated or found.”
(Section 3, Rule 4)
This rule applies when: (a) any of the defendants is a NON-RESIDENT
and at the same time, NOT FOUND IN THE PHILIPPINES; and (b) the
action affects the personal status of the plaintiff; or (c) the action affects
any property of the non-resident defendant located in the Philippines.
In relation to the above rule, unless the court declares otherwise, a liberal
interpretation of the rule would well serve the interest of a resident
plaintiff, rather than of a possible absconding of the non-resident
defendant. Under said interpretation, the plaintiff has a choice of venue in
actions affecting any property of a NRD who is not found in the
Philippines. This would save plaintiff from going through the rigors of
travelling to a distant place just to file and prosecute the action.
TYPE OF ACTION
Personal Action
Real Action
Action Affecting
Personal Status of
Plaintiff or
Property of the
Defendant in the
Philippines
NON-RESIDENT
DEFENDANT
FOUND IN
PHILIPPINES
Venue is the
residence of the
plaintiff or where the
NRD is found, at the
election of the
plaintiff.
Venue is where the
property is located.
NON-RESIDENT
DEFENDANT NOT
FOUND IN THE
PHILIPPINES
The venue is
plaintiff’s residence
or where the property
is situated or found.
See columns above.
Illustrations: see pp. 194-195, Riguera.
When Rule not applicable
“This Rule shall not apply (a) in those cases where a specific rule or law
provides otherwise; or (b) Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue thereof.” (Sec. 4,
Rule 4)
a. In those cases where a specific rule or law provides otherwise
Examples: A quo warranto proceeding commenced by the
Solicitor General and filed with the RTC. This particular rules
does not consider the residence of the respondent.
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A petition for a continuing writ of mandamus if filed with the
RTC, other than the CA or SC, shall be filed with the RTC
exercising jurisdiction over the territory where the actionable
neglect or omission occurred.
The civil (as well as criminal) action for damages in written
defamation shall be filed with the RTC of the province or city
where the libelous article is printed and first published or where
the offended parties actually resides at the time of the commission
of the offense. (See pp. 155-156, Riano)
Stipulations on Venue
In accordance with Section 4(b), Rule 4, the parties may agree on a
specific venue which could be in a place where neither of them
resides. In one case, the parties in an unlawful detainer case
stipulated on a venue other than the place where the real property is
situated.
However, the parties may only stipulate in the venue as longs as the
agreement is in (a) in writing, (b) made before the filing of the
action, and (c) exclusive as to the venue.
With regard to the 3rd requisite, written stipulations as to venue are
either restrictive or restrictive. It is restrictive if a suit may be filed
only in the place agreed upon. Meanwhile, it is permissive in that
the parties may file their suits not only in the place agreed upon, but
also in places fixed by the rule.
In the absence of qualifying or restrictive words, venue stipulations
in a contract do not, as a rule, supersede the general rule set forth in
Rule 4. Such should be considered merely as an agreement or
additional forum, not as limiting venue to the specified place. They
are not exclusive but, rather permissive.
A stipulation that the “parties agreed to sue and be sued in the
courts of Manila” is simply permissive, but merely consented to be
sued in the courts of Manila since no qualifying or restrictive words
which would indicate that Manila, and Manila alone, is the agreed
venue. The parties did not waive their right to pursue the remedy in
places specifically mentioned in the Rules of Court.
The following are stipulations that are restrictive: “only”, “solely”,
“exclusively in this court”, “in no other court save –”, “particularly”,
“nowhere else but/except”
Where the venue stipulated in the deed of real estate mortgage
provides for a venue different from a subsequent restructuring
agreement of the loan subject of the mortgage, and the subsequent
agreement was entered into to modify the entire loan obligation,
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including the mortgage, the restrictive venue in the restructuring
agreement should prevail.
However, a complaint directly assailing the validity of the written
instrument itself should not be bound by the exclusive venue
stipulation contained therein and should be filed in accordance with
the general rules on venue.
Venue in Contract of Adhesion – contract of adhesion might
occasionally be struck down only if there was a showing that the
dominant bargaining party left the weaker party without any choice
as to be completely deprived of an opportunity to bargain. Venue
stipulations in a contract of adhesion follow the same rule. (see p.
162, Riano for illustrations)
Complementary-contracts-construed-together Rule
This rule mandates that the provisions of an accessory contract must
be read in its entirety and together with the principal contract
between the parties. Basis is Art. 1374 of the New Civil Code. (pp.
163-164, Riano and p. 209, Riguera)
Dismissal based on improper venue
A motu proprio dismissal based on improper venue is plain error and
patently incorrect. Improper venue is not one of the grounds wherein
the court may dismiss an action motu proprio on the bases of the
pleadings.
As an exception, the Court may motu proprio dismiss a complaint
(outright) based on improper venue in an action covered by the rules
on summary procedure. The Court may also motu proprio dismiss
a case outright in small claims cases. In actions for forcible entry
and unlawful detainer, the Court may dismiss the case outright
after examination of the complaint and such evidence attached
thereto.
How may the ground of improper venue be raised by the
defendant
Under the amended rules of civil procedure, improper venue may
only be raised as an affirmative defense in the answer (Sec. 12(a),
Rule 8). Hence, failure of the defendant to raise the objection of
improper venue in the answer, he is thus deemed to have waived it.
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RULE 6
KINDS OF PLEADINGS
“Pleadings are the written statements of the respective claims and defenses
of the parties submitted to the court for appropriate judgment.” (Sec. 1,
Rule 6)
Pleadings are designed to develop and present the precise points
in dispute between the parties. Their office is to inform the Court
and the parties of the facts in issue. The object of pleadings is to
notify the opposite party of the facts which the pleader expects to
prove, so that he may not be misled in the preparation of his case.
A party is strictly bound by the allegations, statements or
admissions made in his pleadings and cannot be permitted to take
a contradictory position. Hence, such admissions are conclusive to
him, and all proofs submitted by him contrary or inconsistent with
his admission should be ignored, whether objection is interposed
or not. (p. 250, Riano)
In case there are ambiguities in the pleadings, the same must be
construed most strongly against the pleader and that no
presumptions in his favor are to be indulged in.
Be it noted that before the amendment of the Rules on Civil
Procedure, what is required is that the complaint allege only the
ultimate facts or the essential facts constituting the plaintiff’s
cause of action. However, the contents of pleadings are no longer
limited to ultimate facts since under Sec. 6, Rule 7, the witnesses,
summaries of their testimonies, their judicial affidavits, and
documentary and object evidence should already be included in
the pleading. Likewise, Sec. 1 of Rule 8 also states that every
pleading must contain the ultimate facts, including the evidence
on which the party pleading relies.
Ultimate facts are essential facts constituting the plaintiff’s cause
of action. A fact is essential if it cannot be stricken out without
leaving the statement of the cause of action insufficient.
“ The claims of a party are asserted in a complaint, counterclaim, crossclaim, third (fourth, etc.)-party complaint, or complaint-in-intervention. //
The defenses of a party are alleged in the answer to the pleading asserting
a claim against him or her. // An answer may be responded to by a reply
only if the defending party attaches an actionable document to the answer.”
(Sec. 2, Rul6)
COMPLAINT.
“The complaint is the pleading alleging the plaintiff’s or claiming party’s
cause or causes of action. The names and residences of the plaintiff and
defendant must be stated in the complaint.” (Sec. 3, Rule 6)
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Note: Counterclaims, cross-claims, third-party complaints, and
complaints-in-intervention are kinds of complaints.
By filing of the complaint, the court also acquires jurisdiction over the
person of the plaintiff. Submission to the jurisdiction of the court is implied
from the very filing of the complaint where affirmative relief is prayed for
by the plaintiff. It also has the effect of interrupting the prescription of
actions. (p.290, Riano)
Allegations of the complaint determine the nature of the cause of action
and the body or court which has jurisdiction over the action [Ching vs
Subic Bay Golf and Country Club, Inc, G.R. No. 174353 (2014)]
Payment of Docket Fees and Acquisition of Jurisdiction: It is not
simply the filing of the complaint or appropriate initiatory pleading, but
the payment of the prescribed docket fee, that vests a trial court with
jurisdiction over the subject matter or nature of the action. As a general
rule, the court acquires jurisdiction over the case only upon the payment
of the prescribed docket fee.
However, its non-payment at the time of the filing does not automatically
cause the dismissal of the case, as long as the fee is paid within the
applicable prescriptive or reglementary period. Also, if the amount of
docket fees is insufficient considering the amount of the claim, the party
filing the case will be required to pay the deficiency, but jurisdiction is not
automatically lost.
Payment of Docket Fess for Cases on Appeal: Appellate docket and
other lawful fees must be paid within the same period for taking an appeal.
Payment of the docket fee within the prescribed period is mandatory for
the perfection of an appeal. Without such payment, the appellate court does
not acquire jurisdiction over the subject matter of the action and the
decision sought to be appealed from becomes final and executory
ANSWER and DEFENSES IN THE ANSWER
“An answer is a pleading in which a defending party sets forth his or her
defenses.” (Sec. 4, Rule 6)
“Defenses may either be negative or affirmative. (a) A negative defense is
the specific denial of the material fact or facts alleged in the pleading of
the claimant essential to his or her 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 or her. 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.
Affirmative defenses may also include grounds for the dismissal of a
complaint, specifically, that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment.” (Sec. 5,
Rule 6)
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A defense is negative when its purpose is to specifically deny the material
averments in the pleading of the claiming party. A negative defense is
stated in the form of a specific denial and the kinds of specific denials are
those described in Sec. 10, Rule 82 of the Rules of Court. If the denial is
not one of those described under the said provision, the denial is deemed
to be general. A general denial is considered an admission.
Effect of Absence of a Specific Denial: In accordance with Sec.
11, Rule 8 of the Rules on Civil Procedure, material averments in
the complaint not specifically denied shall be deemed admitted,
except averments of the amount of unliquidated damages. Hence,
if the allegations are deemed admitted, there is no more triable
issue between the parties. (p. 294, Riano for judgment on
pleadings as consequence)
Purpose of Specific Denial: To make a defendant disclose the
matters alleged in the complaint which he succinctly intends to
disprove at the trial, together with the matter which he relied upon
to support the denial.
Kinds of Specific Denial3: (seep.295-297, Riano for illustrations)
a. Absolute Denials is made when defendant specifies each
material allegation which he does not admit and, whenever
practicable, sets forth the substance of the matters upon which
he relies to support his denial.
b. Partial Denials is made when the defendant does not make a
total denial of the material allegations, but denies only a part
of the averment. Here, he specifies which part of the truth he
admits and likewise denies.
c. Denial through Disavowal of Knowledge is made when the
defendant alleges he “is without knowledge or information
sufficient to form a belief as to the truth of the material
averments in the complaint”.
A defense is affirmative when its purpose is to prevent or bar recovery
by the claiming party even if it hypothetically admits the material
allegations in the pleading of the claimant.
An allegation presented in an answer as affirmative defense is not
automatically characterized as such. Before an allegation qualifies
as an affirmative defense, it must be of such nature as to bar the
plaintiff from claiming on his cause of action.
Section 10. Specific denial. – A defendant must specify each material allegation of fact the
truth of which he or she does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he or she relies to support his or her denial. Where a
defendant desires to deny only a part of an averment, he or she shall specify so much of it as
is true and material and shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of a material averment
made [to] the complaint, he or she shall so state, and this shall have the effect of a denial.
2
3
Id.
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When an answer asserts affirmative defenses, there is proper
joinder of issues which must be ventilated in a full-blown trial on
the merits and cannot be resolved by mere judgment on the
pleadings.
Illustration: D admits his debt in favor of P, but D denies his legal
liability because the debt has already prescribed or that the court
before which the complaint has been filed, has no jurisdiction over
the subject matter.
The following are the affirmative defenses that should be raised in
the answer: 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.
Note: The court is allowed to conduct a summary hearing
within 15 calendar days from the allegation of these
affirmative defenses in the answer. After such hearing,
they must be resolved by the court within 30 calendar days
from the end of the summary hearing. [Sec. 12(d), Rule 8]
Under the recently amended rules on civil procedure, lack of
jurisdiction over the subject matter, litis pendentia, and res
judicata were incorporated as grounds that may be raised as an
affirmative defense. However, the Amended Rules do not provide
a time for which the court must act on these grounds when they
are alleged as affirmative defenses in the answer.
Notes: Section 12, Rule 8 merely provides for a period for
the affirmative defenses listed in the first paragraph of
Sec. 5(b), Rule 6 and not for those listed under the second
paragraph of such rule.
Negative pregnant: A negative pregnant is a form of a negative
expression which carries with it an affirmation or at least an implication of
some kind favorable to the adverse party. It is in effect an admission of the
averment it is directed to.
Illustrations: (pp. 297-298, Riano)
(a) The defense alleges, “I had never borrowed money from the
plaintiff from 2011-2012.” This may imply that the pleader had
borrowed money at some other time and was only denying that he
did so during the years mentioned.
(b) The complaint alleges that “P extended a loan to D in the
amount of P500,000 on July 27, 2016 in Baguio City.” D, in his
answer, alleges that “D specifically denies that P extended a loan
to D in the amount of P500,000 in Baguio City.”
SMALL CLAIMS
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SUMMARY
PROCEDURE
ORDINARY CIVIL
ACTION
33
Reglementary period to
file a response with the
court and serve on the
plaintiff a duly
accomplished and verified
Response is within a nonextendible period of ten
(10) days from receipt of
summons.
Failure to file response,
the court shall render
judgment on the same
day, as may be warranted
by the facts alleged in the
Statement of Claim/s.
Note: Response shall be
accompanied by certified
photocopies of
documents, as well as
affidavits of witnesses and
other evidence in support
thereof. No evidence shall
be allowed during the
hearing which was not
attached to or submitted
together with the
Response, unless good
cause is shown for the
admission of additional
evidence.
When defendant
fails to file an
answer, plaintiff
files motion to
render judgment.
Note: Motion to
Declare Defendant
in Default is a
prohibited motion
Reglementary period as
a rule is 15 days from
service of summons.
Non-filing of answer,
plaintiff may file
motion to declare
defendant in default.
Note: See requirements
in Section 6, Rule 7.
COUNTERCLAIM
“A counterclaim is any claim which a defending party may have against
an opposing party.” (Sec. 6, Rule 6)
A counterclaim partakes of a complaint by the defendant against the
plaintiff. It is in itself a distinct and independent cause of action, and when
filed, there are two simultaneous actions between the parties. When the
defendant files a counterclaim against the plaintiff, the former becomes the
plaintiff in the counterclaim while the original plaintiff becomes the
defendant.
It is not intrinsically a part of the answer because it is a separate pleading.
It may, however, be included in the answer. Such inclusion is merely a
matter of form and does not have the effect of fusing the two separate
pleadings into a single pleading.
COMPULSORY COUNTERCLAIM
“A compulsory counterclaim is one which, being cognizable by the regular
courts of justice, arises out of or is connected with the transaction or
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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 compulsory counterclaim not raised in the same action is barred, unless
otherwise allowed by these Rules. (Section 7, Rule 6)
Elements: (a) arises out of (or is necessarily connected with) the
transaction or occurrence that is the subject matter of the opposing party’s
claim; (b) falls within the jurisdiction of the court; and (c) does not require
for its adjudication the presence of third parties over whom the court
cannot acquire jurisdiction.
The rulings of the court in Metropolitan Bank v. CPR Promotions4 and
Alba v. Malapajo5 that a compulsory counterclaim should be interposed at
the same time the defending party files his answer; otherwise it will be
effectively barred has been included in the 2019 Amendments on the Rules
of Civil Procedure. Relative thereto, an exception to the rule that a
compulsory counterclaim not raised in the same action is barred, sec. 10,
Rule 11 of the Rules of Court allows the filing of a counterclaim by
amendment before judgment, when the counterclaim was not set up due to
oversight, inadvertence, or excusable neglect. (omitted counterclaim, .
324, Riano)
Another exception is found under Sec. 9, Rule 11, which provides that a
[compulsory] counterclaim, which either matured or was acquired by a
party after serving his answer may, with permission of the court, be
presented as a counterclaim by supplemental pleading before judgment.
Such counterclaim must be within the jurisdiction of the court as to the
amount and the nature thereof. Hence, the mere logical connection
between the complaint and the counterclaim will not give rise to
compulsory counterclaim where the counterclaim is not within the
jurisdiction of the court. If the counterclaim exceeds the jurisdiction of the
court, it shall be deemed as a permissive counterclaim.
A counterclaim is permissive if it does not arise out of or is not
necessarily connected with the subject matter of the opposing
party’s claim. It is essentially an independent claim that may be
filed separately in another case. (see p. 320, Riano for
Illustrations)
The rule in a permissive counterclaim is that for the trial court to
acquire jurisdiction, the counterclaimant is bound to pay the
prescribed docket fees. [GSIS v. Heirs of Caballero, G.R. No.
158090 (2010)]
Note: Even if the counterclaim arises out of the subject-matter of
the opposing party's claim but it is not within the jurisdiction of
4
5
G.R. No. 200567, June 27, 2015.
G.R. No. 198752, January 13, 2016.
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the regular courts of justice, or it requires for its adjudication the
presence of third parties over whom the court cannot acquire
jurisdiction, it is considered as only a permissive counter-claim
and is not barred even if not set up in the action. (see also Sec. 2,
Rule 9)
Compelling Test of Compulsoriness: This test involves asking the
question whether there is a “logical relationship between the claim and the
counterclaim, that is, where the conducting separate trials would entail a
substantial duplication of effort and time by the parties and the court.” If
there such logical relationship, then the claim is compulsory.
Period to Answer Counterclaim: In accordance with Rule 11, Section 4
the crossclaim/counterclaim must be answered within 20 calendars days
from service.
Effect of the Dismissal of a Complaint on the Counterclaim already
Set Up: Under Sec. 2, Rule 17, the plaintiff himself files a motion to
dismiss his complaint after the defendant has pleaded his answer with a
counterclaim. The motion is granted by the court. The rule in this regard
is unequivocal – “the dismissal shall be limited to the complaint. The
dismissal shall be without prejudice to the right of the defendant to
prosecute his or her counterclaim in a separate action unless within fifteen
(15) calendar days from notice of the motion he or she manifests his or her
preference to have his or her counterclaim resolved in the same action.”
Meanwhile under Sec. 3, Rule 17, the complaint is dismissed through the
plaintiff’s fault and at a time when the counterclaim has already been set
up. Like the first two situations, the dismissal is “without prejudice to the
right of the defendant to prosecute his or her counterclaim in the same or
in a separate action.”
The above described situations have a common thread running through
them. The rules cited recognize the right of the defending party to
prosecute the counterclaim in the same or separate action notwithstanding
the dismissal of the complaint, and without the regard as to the permissive
or compulsory nature of the counterclaim.
As the rule now stands, the nature of the counterclaim notwithstanding, the
dismissal of the complaint does not ipso jure result in the dismissal of the
counterclaim If only the complaint is dismissed, not the action, the
defendant may still prosecute his counterclaim.
Preclusion if not
raised
Payment of filing
fees
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COMPULSORY
COUNTERCLAIM
If not set up in an
action, it shall be
deemed barred
PERMISSIVE
COUNTERCLAIM
Not barred even if set
up in an independent
action
Payment of filing fees
has been suspended
Counterclaimant is
bound to pay the
prescribed docket fees
36
Need to answer
Prohibition under
the Rules on
Summary
Procedure
Certification
Against Forum
Shopping
Need not be answered
Plaintiff should
answer, otherwise,
he/she could be
declared in default in
respect thereof
Allowed
Not allowed
Not required.
Required.
CROSS-CLAIM
“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 cover all or part
of the original claim.” (Section 8, Rule 6)
The crossclaim may include a claim that the party against whom it is
asserted is liable, or may be liable to the cross claimant for all or part of a
claim asserted in the action against the cross-claimant. (pp.326-327,
Riano)
A cross-claim is asserted by a defending party against a co-defending party
so that the latter may be held liable for the claim which the claimant seeks
to recover from the cross-claimant.
Illustration:If XYZ Bank sues A and B for the collection of a loan,
A, who merely acted as an accommodation party, may file a crossclaim against his co-defendant, B, by asserting that it is B who is
the actual and true debtor and, hence, should be ultimately liable
for the payment of the loan.
Note: The cross-defendant can file an answer to the cross-claim
and he may plead in the answer a counterclaim or a cross-claim.
(Section 10, Rule 6 and p. 253, Riguera) A cross-claim which
matured or arose after the defendant has served his answer is
permissive and not mandatory (Section 9, Rule 1 and p. 255,
Riguera)
A cross-claim that a party has at the time the answer is filed shall be
contained in said answer (Section 8, Rule 11). A cross-claim that is not set
up shall be barred (Section 2, Rule 9).
When a pleader fails to set up a counterclaim or cross-claim through
oversight, inadvertence, or excusable neglect, or when justice requires, he
may, by leave of court, set up the counterclaim or cross-claim by
amendment before judgment. (Section 10, Rule 11)
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No cross-claim for the first time on appeal: In compliance with Section
2, Rule 9, a cross-claim not set up shall be barred. Thus, a cross-claim
cannot be set up for the first time on appeal.
Permissive cross-claim: A cross-claim which either matured or was
acquired by a party after serving his pleading is not compulsory.
Docket Fees in a Cross-claim: A cross-claim filed before the MTC is not
subject to a docket feel, but one filed with the RTC is (Section 7(a), Rule
141).
As to whom directed
As to the connection
with the main action
As to
compulsoriness
As for need of an
answer
Counterclaim
Directed against an
opposing party
May or may not arise
of the transaction
constituting the
subject matter of the
opposing party’s
claim
May or may not be
compulsory
Need not be
answered if the
counterclaim is
compulsory
Cross-claim
Directed against a
co-party
Always arises out of
the transaction or
occurrence that is the
subject matter of the
original action or of a
counterclaim therein.
always compulsory
Must be answered,
otherwise the party
against whom it is
pleaded may be
declared in default
upon motion.
REPLY
“All 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. However, the plaintiff may file a reply only if the defending
party attaches an actionable document to his or her answer.
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 in, or relating to, said
actionable document.
In the event of an actionable document attached to the reply, the defendant
may file a rejoinder if the same is based solely on an actionable document.”
(Section 10, Rule 6)
A reply is a pleading, the function of which is to deny, or allege facts in
denial or avoidance of new matters alleged in or relating to an actionable
document attached to the answer. A reply is the responsive pleading to an
answer .
There is no need for the plaintiff to file a reply because all the new matters
alleged in the answer, including those alleged in or relating to an actionable
document attached to the answer, are deemed controverted. If the plaintiff
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wishes to interpose any claims arising out of the new matters so alleged,
in or relating to an actionable document attached to the answer, are deemed
controverted.
The filing of a reply to the answer is not mandatory and will not have an
adverse effect on the plaintiff.
When is there a need for the plaintiff to file a reply: If the defending
party attaches an actionable document to his answer and the plaintiff
wishes to contest the genuineness and due execution of the actionable
document, he should file a reply thereto. Such a reply must be verified in
accordance with Section 8, Rule 8. Otherwise, the genuineness and due
execution of the actionable document are deemed admitted by the plaintiff.
When may defendant file a rejoinder? If an actionable document is
attached to the reply, the defendant may file a rejoinder if the same is based
solely on an actionable wrong.
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RULE 9
EFFECT OF
FAILURE TO PLEAD
DEFENSES AND OBJECTIONS NOT PLEADED
“Defenses and objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has no jurisdiction over
the subject matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a prior judgment
or by statute of limitations, the court shall dismiss the claim.”(Section 1,
Rule 9)
As a general rule, available defenses not invoked are considered waived.
However, the provision provided for certain exceptions such that the court
shall dismiss the claim when it appears from the pleadings or evidence on
record that the court (a) has no jurisdiction over the subject matter; (b) that
there is another action pending between the same parties for the same
cause (litis pendentia); and (c) that the action is barred by a prior judgment
or by statute of limitations (res judicata/prescription)
Note that the failure to state a cause of action was deleted as an exception
to the waiver rule. Further, a motion to dismiss is now considered as a
prohibited motion and the only time it may be filed is when the grounds
invoked are lack of jurisdiction over the subject matter, litis pendentia, res
judicata, or prescription. Hence, this section is now limited to failure to
raise the defense or objection in the answer.
The following grounds are also deemed waived if not timely raised (1) lack
or defect in the verification requirement6 (2) Lack or defect in the
certificate of non-forum shopping requirement7 and (3) Failing to refer the
case to the lupon for barangay conciliation (in summary procedure)8.
Remember that the exceptions are grounds where the court can dismiss the
claim motu proprio, in that when these grounds appear from the pleadings
or the evidence of record, the court shall, in its own instance, even without
a motion to dismiss, dismiss the claim. Again, these are the ONLY grounds
where the court may dismiss motu proprio.
COMPULSORY COUNTERCLAIM, OR CROSS-CLAIM, NOT
SET UP BARRED
“A compulsory counterclaim, or a cross-claim, not set up shall be
barred.” (Section 2, Rule 9)
The rule is designed to achieve a resolution of the whole controversy at
one time and in one action, and to avoid multiplicity of suits. Hence, a
6
S.C. Megaworld Construction v. Parada 2013
Ibid.
8 Aquino vs Aure 2008
7
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compulsory counterclaim or a cross-claim that a party has at the time he
files his answer shall be contained therein.
When a pleader fails to set up a counterclaim or cross-claim through
oversight, inadvertence, or excusable neglect, or when justice requires, he
may, by leave of court, set up the counterclaim or cross-claim by
amendment before judgment. (Section 10, Rule 11)
DEFAULT
“If the defending party fails to answer within the time allowed therefor,
the court shall, upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the defending party in
default. Thereupon, the court shall proceed to render judgment granting
the claimant such relief as his or her pleading may warrant, unless the
court in its discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court.” (Section 3
par. 1, Rule 9)
(d) Extent of relief to be awarded. – A judgment rendered against a
party in default shall [neither] exceed the amount or be different in
kind from that prayed for nor award unliquidated damages.
Default is a procedural concept that occurs when the defending party fails
to file his answer within the reglementary period. A declaration or order
of default is issued as a punishment for unnecessary delay in joining issues.
The rule on default clearly establishes the “failure to answer within the
time allowed therefor” as the ground for a declaration of default. Hence,
from the tenor of the rule, default does not technically occur from the
failure of the defendant to attend either the pre-trial or the trial.
The failure of the defendant to attend the pretrial does not result in the
default of the defendant. Instead, the failure of the defendant to attend shall
be cause to allow the plaintiff to present his evidence ex parte and the court
to render judgment on the basis thereof.9
The following are the requisites before a defending party may be
declared in default: (a) The court has validly acquired jurisdiction over
the person of the defending party, either be service of summons or
voluntary appearance; (b) Claiming party must file a motion to declare
defendant party in default; (c) Claiming party must prove that the
defending party failed to answer within the period provided by the Rules
of Court; (d) the defending party must be notified of the motion to declare
him in default; and (e) There must be a hearing of the motion to declare
defendant in default.
Note: While a motion to declare defendant in default is a litigious
motion, a hearing is discretionary upon the court. (Section 6, Rule
15). However, defendant should be given the chance to oppose the
motion to declare him in default (Section 5(c), Rule 15).
9
Aguilar v. Lightbringers, 2015
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No motu proprio declaration of default: It has to be remember that the
court cannot motu proprio declare defendant in default. Hence, it is not
enough that the defendant failed to answer the complaint within the
reglementary period to be a sufficient ground for declaration in default.
There must be a filing of a motion and notice of such motion to the
defending party. The trial court should not act as a counsel for the claiming
party. However, in environmental cases, should the defendant fail to
answer within the period provided, the court shall declare him in default
and, upon motion of the plaintiff, shall receive the evidence ex parte and
render judgment based thereon and the reliefs prayed for. Additionally,
under the Rules on Summary Procedure, the court may motu proprio
render judgment in favor of the plaintiff if the defendant fails to timely
answer.
The defendant who files his answer in time, but failed to serve a copy
thereof upon the adverse party, may validly be declared in default. This
failure is not, however, fatal because the declaration of default may be set
aside by a timely and proper motion with the requisite affidavit of merit
and provided no loss of time occurs. (Riano, p. 305)
Action of court after the declaration/order of default: When a party is
declared in default, the court may either (a) proceed to render judgment
granting the claimant such relief as his pleading may warrant, or (b) require
the claimant to submit evidence ex parte. The choice of action is a matter
of judicial discretion.
Note: Under this rule, the court need not personally receive the
evidence if it decides to hear the evidence of the claiming party.
The reception of evidence may be delegated to the clerk of court.
EFFECT OF A DECLARATION/ORDER OF DEFAULT
“A party in default shall be entitled to notices of subsequent proceedings
but shall not take part in the trial.” (Section3(a), Rule 9)
The party declared in default loses his standing in court which prevents
him from taking part in the trial. Therefore, the defendant forfeits his rights
as a party litigant, has no right to present evidence supporting his
allegations, to control the proceedings or cross-examine witnesses.
However, the defendant is still entitled to notices of subsequent
proceedings in accordance with Section 3(a) of this rule. Also, the
defendant may participate in the trial not as a party, but as a witness of the
non-defaulted defendants. (Riano, p. 305, Riguera p. 350)
Be it noted that the order/judgment of default does not imply admission by
the defendant of the facts and causes of action against the plaintiff. Not
could it be interpreted as an admission by the defendant that the plaintiff’s
causes of action find support in the law or that the latter is entitled to the
relief prayed for.
EFFECT OF PARTIAL DEFAULT
“When a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer and the others fail
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to do so, the court shall try the case against all upon the answers thus filed
and render judgment upon the evidence presented.” (Section 3(c), Rule 9)
Under this rule, a pleading asserts a claim against several defending parties
and some file and serve their answers, but others do not, the court shall try
the case against all the defending parties based on the answers filed and
render judgment upon the evidence presented where the claim states a
common cause of action against them.
There being a common cause of action against the defending parties, where
one of them fails to answer, he may be declared in default, but the court
shall refrain from rendering a judgment by default against such party
because the case shall be tried based on the answers of the other defending
prties.
Illustration: See p. 351, Riguera
ADMISSION OF ANSWER FILED OUT OF TIME
It is within the sound discretion of the trial court to permit the defendant
to file his answer and be heard on the merits even after the reglementary
period for filing the answer expires. The Rules of Court provides for
discretion on the part of the trial court not only to extend the time for filing
an answer, but also to allow an answer to be filed after the reglementary
period.
Note: As a general rule, a motion for extension of time to file
pleading is prohibited and is treated as a mere scrap of paper
(Section 11, Rule 11 in rel. to Section 12(e), Rule 15). However,
Section 11, Rule 11 also provides that a defendant, for meritorious
reasons, be granted additional period of not more than 30 days to
file an answer. A party may only avail of 1 motion for extension.
Defendant’s answer should be admitted where it is filed before a
declaration of default and no prejudice is caused to the plaintiff. Hence,
when the answer is filed beyond the reglementary period, but before the
defendant is declared in default and there is no showing that the defendant
intends to delay the case, the answer should be admitted.
The policy of the law is to have every litigant’s case tried on the merits as
much as possible. Hence, judgments by default are frowned upon.
The issuance of orders of default should be the exception rather than the
rule. Default orders shall be allowed only in clear cases of obstinate refusal
by the defendant to comply with orders of the court.
REMEDIES OF A DEFENDING PARTY DECLARED IN
DEFAULT
“A party declared in default may at any time after notice thereof and
before judgment, file a motion under oath to set aside the order of default
upon proper showing that his or her failure to answer was due to fraud,
accident, mistake or excusable negligence and that he or she has a
meritorious defense. In such case, the order of default may be set aside on
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such terms and conditions as the judge may impose in the interest of
justice.” (Section 3(b), Rule 9)
The remedy of the defending party would depend on the following
instances:
a. Remedy after notice of order and before judgment – the party
may, at any time after notice thereof and before judgment, file
a motion under oath to set aside the order of default and
properly show that (a) the failure to answer was due to fraud,
accident, mistake or excusable negligence, and (b) he has a
meritorious defense contained in an affidavit of merit.
b. Remedy after judgment and before judgment becomes final
and executory – if judgment has already been rendered when
the defendant discovered the default, but before the same has
become final and executory, he may file a motion for new
trial. He may also appeal from the judgment as being contrary
to law or the evidence.
c. Remedy after the judgment becomes final and executory –
defendant may file file a petition for relief from judgment
Note: Certiorari will lie when said party was improperly declared
in default, such as when court prematurely declared party in
default when in fact period to file an answer had not yet lapsed.
Implied lifting of the order of default: Read Republic v. Sandiganbayan,
540 SCRA 431.
DEFAULT, WHEN NOT ALLOWED:
“If the defending party in an action for annulment or declaration of nullity
of marriage or for legal separation fails to answer, the court shall order
the order the Solicitor General or his or her deputized public prosecutor
to investigate whether or not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in order to see to it that the
evidence submitted is not fabricated.” (Section 3(e), Rule 9)
DEFAULT, EFFECT ON COUNTERCLAIM
A plaintiff who fails or chooses not to answer a compulsory counterclaim
may not be declared in default, principally because the issues raised in the
counterclaim are deemed automatically joined by the allegations of the
complaint. The same cannot be said when what is involved is a permissive
counterclaim.
DEFAULT, EFFECT ON AMENDED COMPLAINT
Under Section 3, Rule 11, “an answer earlier filed may serve as the answer
to the amended complaint if no new answer is filed.” Hence, the court
cannot declared defendant in default for failure to respond to the amended
complaint. However, the new material allegations in the amended
complaint which are not specifically denied are deemed admitted.
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RULE 11
WHEN TO FILE
RESPONSIVE PLEADINGS
ANSWER and DEFENSES IN THE ANSWER
“An answer is a pleading in which a defending party sets forth his
or her defenses.” (Sec. 4, Rule 6)
When to file an answer: An answer to a complaint should be filed
within 30 calendar days after service of summons, unless a different
period is fixed by the court. (Section 1, Rule 11)
Note: The time to answer a third (fourth, etc.)-party
complaint shall be governed by the same rule as the answer
to the complaint. (Section 5, Rule 11)
Where the defendant is a foreign private juridical entity and service
of summons is made on the government official designated by law
to receive the same, the answer shall be filed within 60 calendar days
after receipt of summons by such entity. (Section 2, Rule 11)
Plaintiff files an amended complaint as a matter of right, answer
must be made within 30 calendar days after being served with a copy
thereof. Amended complaint is not a matter of right, answer to the
amended complaint shall be made within 15 calendar days from
notice of the order of admitting the same. An answer earlier filed
may serve as the answer to the amended complaint if no new answer
is filed. (Section 3, Rule 11)
A counterclaim or crossclaim must be answered within 20 calendar
days from service. (Section 4, Rule 11)
A supplemental complaint may be answered within 20 calendar days
from notice of the order admitting the same, unless a different period
is fixed by the court. (Section 7, Rule 11)
Reply, if allowed under Section 10, Rule 6 hereof, may be filed
within fifteen (15) calendar days from service of the pleading
responded to. (Section 6, Rule 11)
Computation of time: Section 1, Rule 22 provides that “in
computing any period of time prescribed or allowed by these Rules,
or by order of the court, or by any applicable statute:
• the day of the act or event from which the designated period
of time begins to run is to be excluded and the date of
performance included.
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•
If the last day of the period, as thus computed, falls on a
Saturday a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day.”
Note: If there is an extension of time, the counting will begin
from the original deadline regardless of whether such day falls
under s Saturday, Sunday or a legal holiday. Thus, if the
defendant is served with summons on June 1, he has until June
16 (June 1 + 15) within which to file his answer. If the defendant
receives a copy of the adverse decision on October 1, he has until
October 16 within which to file a notice of appeal.
Should an act be done which effectively interrupts the running of the
period, the allowable period after such interruption shall start to run
on the day after notice of the cessation of the cause thereof. The day
of the act that caused the interruption shall be excluded in the
computation of the period. (Section 2, Rule 22)
Defenses: “Defenses may either be negative or affirmative. (a) A
negative defense is the specific denial of the material fact or facts
alleged in the pleading of the claimant essential to his or her 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 or her. 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.
Affirmative defenses may also include grounds for the dismissal of
a complaint, specifically, that the court has no jurisdiction over the
subject matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a prior
judgment.” (Sec. 5, Rule 6)
A defense is negative when its purpose is to specifically deny the
material averments in the pleading of the claiming party. A negative
defense is stated in the form of a specific denial and the kinds of
specific denials are those described in Sec. 10, Rule 810 of the Rules
of Court. If the denial is not one of those described under the said
provision, the denial is deemed to be general. A general denial is
considered an admission.
Section 10. Specific denial. – A defendant must specify each material allegation of fact the
truth of which he or she does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he or she relies to support his or her denial. Where a
defendant desires to deny only a part of an averment, he or she shall specify so much of it as
is true and material and shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of a material averment
made [to] the complaint, he or she shall so state, and this shall have the effect of a denial.
10
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Effect of Absence of a Specific Denial: In accordance with
Sec. 11, Rule 8 of the Rules on Civil Procedure, material
averments in the complaint not specifically denied shall be
deemed admitted, except averments of the amount of
unliquidated damages. Hence, if the allegations are deemed
admitted, there is no more triable issue between the parties.
(p. 294, Riano for judgment on pleadings as consequence)
Purpose of Specific Denial: To make a defendant disclose
the matters alleged in the complaint which he succinctly
intends to disprove at the trial, together with the matter
which he relied upon to support the denial.
Kinds of Specific Denial11: (seep.295-297, Riano for
illustrations)
d. Absolute Denials is made when defendant specifies each
material allegation which he does not admit and,
whenever practicable, sets forth the substance of the
matters upon which he relies to support his denial.
e. Partial Denials is made when the defendant does not
make a total denial of the material allegations, but denies
only a part of the averment. Here, he specifies which part
of the truth he admits and likewise denies.
f. Denial through Disavowal of Knowledge is made when
the defendant alleges he “is without knowledge or
information sufficient to form a belief as to the truth of
the material averments in the complaint”.
A defense is affirmative when its purpose is to prevent or bar
recovery by the claiming party even if it hypothetically admits the
material allegations in the pleading of the claimant.
An allegation presented in an answer as affirmative defense
is not automatically characterized as such. Before an
allegation qualifies as an affirmative defense, it must be of
such nature as to bar the plaintiff from claiming on his cause
of action.
When an answer asserts affirmative defenses, there is proper
joinder of issues which must be ventilated in a full-blown
trial on the merits and cannot be resolved by mere judgment
on the pleadings.
Illustration: D admits his debt in favor of P, but D denies his
legal liability because the debt has already prescribed or that
11
Id.
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the court before which the complaint has been filed, has no
jurisdiction over the subject matter.
The following are the affirmative defenses that should be
raised in the answer: 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.
Note: The court is allowed to conduct a summary
hearing within 15 calendar days from the allegation
of these affirmative defenses in the answer. After
such hearing, they must be resolved by the court
within 30 calendar days from the end of the summary
hearing. [Sec. 12(d), Rule 8]
Under the recently amended rules on civil procedure, lack of
jurisdiction over the subject matter, litis pendentia, and res
judicata were incorporated as grounds that may be raised as
an affirmative defense. However, the Amended Rules do not
provide a time for which the court must act on these grounds
when they are alleged as affirmative defenses in the answer.
Notes: Section 12, Rule 8 merely provides for a
period for the affirmative defenses listed in the first
paragraph of Sec. 5(b), Rule 6 and not for those listed
under the second paragraph of such rule.
Negative pregnant: A negative pregnant is a form of a negative
expression which carries with it an affirmation or at least an
implication of some kind favorable to the adverse party. It is in effect
an admission of the averment it is directed to.
Illustrations: (pp. 297-298, Riano)
(a) The defense alleges, “I had never borrowed money from
the plaintiff from 2011-2012.” This may imply that the
pleader had borrowed money at some other time and was
only denying that he did so during the years mentioned.
(b) The complaint alleges that “P extended a loan to D in the
amount of P500,000 on July 27, 2016 in Baguio City.” D, in
his answer, alleges that “D specifically denies that P
extended a loan to D in the amount of P500,000 in Baguio
City.”
SMALL CLAIMS
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PROCEDURE
ORDINARY CIVIL
ACTION
48
Reglementary period to
file a response with the
court and serve on the
plaintiff a duly
accomplished and verified
Response is within a nonextendible period of ten
(10) days from receipt of
summons.
Failure to file response,
the court shall render
judgment on the same
day, as may be warranted
by the facts alleged in the
Statement of Claim/s.
Note: Response shall be
accompanied by certified
photocopies of documents,
as well as affidavits of
witnesses and other
evidence in support
thereof. No evidence shall
be allowed during the
hearing which was not
attached to or submitted
together with the
Response, unless good
cause is shown for the
admission of additional
evidence.
When defendant
fails to file an
answer, plaintiff
files motion to
render judgment.
Note: Motion to
Declare Defendant
in Default is a
prohibited motion
Reglementary period as
a rule is 15 days from
service of summons.
Non-filing of answer,
plaintiff may file
motion to declare
defendant in default.
Note: See requirements
in Section 6, Rule 7.
REPLY
“All 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. However, the plaintiff may file a reply only
if the defending party attaches an actionable document to his or her
answer.
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 in, or
relating to, said actionable document.
In the event of an actionable document attached to the reply, the
defendant may file a rejoinder if the same is based solely on an
actionable document.” (Section 10, Rule 6)
A reply is a pleading, the function of which is to deny, or allege facts
in denial or avoidance of new matters alleged in or relating to an
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actionable document attached to the answer.
responsive pleading to an answer .
A reply is the
There is no need for the plaintiff to file a reply because all the new
matters alleged in the answer, including those alleged in or relating
to an actionable document attached to the answer, are deemed
controverted. If the plaintiff wishes to interpose any claims arising
out of the new matters so alleged, in or relating to an actionable
document attached to the answer, are deemed controverted.
The filing of a reply to the answer is not mandatory and will not have
an adverse effect on the plaintiff.
When is there a need for the plaintiff to file a reply: If the
defending party attaches an actionable document to his answer and
the plaintiff wishes to contest the genuineness and due execution of
the actionable documemnt, he should file a reply thereto. Such a
reply must be verified in accordance with Section 8, Rule 8.
Otherwise, the genuineness and due execution of the actionable
document are deemed admityted by the plaintiff.
When may defendant file a rejoinder? If an actionable document
is attached to the reply, the defendant may file a rejoinder if the same
is based solely on an actionable wrong.
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RULE 12
BILL OF PARTICULARS
WHEN TO FILE
Before responding to a pleading, a party may move for a definite
statement or for a bill of particulars of any matter, which is not averred
with sufficient definiteness or particularity, to enable him or her properly
to prepare his or her responsive pleading. If the pleading is a reply, the
motion must be filed within ten (10) calendar days from service thereof.
Such motion shall point out the defects complained of, the paragraphs
wherein they are contained, and the details desired.
WHEN TO COMPLY
If the motion is granted, either in whole or in part, the compliance
therewith must be effected within ten (10) calendar days from notice of the
order, unless a different period is fixed by the court. The bill of particulars
or a more definite statement ordered by the court may be filed either in a
separate or in an amended pleading, serving a copy thereof on the adverse
party.
WHEN TO FILE ANSWER
After service of the bill of particulars or of a more definite pleading, or
after notice of denial of his or her motion, the moving party may file his or
her responsive pleading within the period to which he or she was entitled
at the time of filing his or her motion, which shall not be less than five (5)
calendar days in any event.
EFFECT OF NON-COMPLIANCE OR INSUFFICIENT
COMPLIANCE
If the pleading is a reply, the motion must be filed within ten (10) calendar
days from service thereof. Such motion shall point out the defects
complained of, the paragraphs wherein they are contained, and the details
desired.
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RULE 13
FILING & SERVICE OF PLEADINGS,
JUDGMENTS & OTHER PAPERS
This rule also covers motions and other court submissions, in addition to
pleadings. (Section 1, Rule 13)
(Section 2, Rule 13)
FILING
act of submitting the
pleading or other
papers to the court.
(Section 2, Rule 13)
DEFINITION
HOW MADE
Note: Before the
amendment, the entity
with whom the filing is
done is with the Clerk
of Court.
• Submitting
personally the
original thereof,
plainly indicated as
such, to the court;
• Sending them by
registered mail;
• Sending them by
accredited courier;
or
• Transmitting them
by e-mail or other
electronic means as
may be authorized
by the Court in
places where the
court is
electronically
equipped.
Note: See discussion
below
SERVICE
act of providing a
party with a copy of
the pleading or any
other court
submission. (Section
2, Rule 13)
• Personally
• by registered mail
• accredited courier
• electronic mail
• facsimile
transmission
• other
electronic
means as may be
authorized by the
court, or as provided
for in international
conventions
to
which
the
Philippines is a
party.
Note: See discussion
below
Basic rule when it comes to filing and service: Every time you file
something with the court, it is your duty to serve a copy to all parties
Party appeared by counsel: If a party has appeared by counsel, service
upon such party shall be made upon his counsel or one of them, unless
service upon the party and the party’s counsel is ordered by the court.
Where one counsel appears for several parties, such counsel shall only be
entitled to one copy of any paper served by the opposite side. (Section 2,
Rule 13)
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The rule is that when a party is represented by counsel in an action in court,
notices of all kinds, including motions, pleadings, and orders must be
served on said counsel and notice to him is notice to the client. However,
a notice to a client and not his counsel is not notice in law.
Service upon counsel representing several parties: where several
counsels appear for one party, such party shall be entitled to only one copy
of any pleading or paper to be served upon the lead counsel if one is
designated, or upon any one of them if there is no designation of a lead
counsel. (Section 2, Rule 13)
Priority in modes of service and filing: The service and filing of
pleadings and other papers shall be done personally, whenever practicable.
This is the preferred mode of service.
MANNER OF FILING
As a rule, the filing of a pleading or any other court submission shall be
proved by its existence in the record of the case. (Section 16, Rule 13)
• Submitting personally the original thereof, plainly indicated as such, to
the court;
- In this case, the CoC shall endorse on the pleading the date and
hour of filing.
If the pleading or any other court submission is not in the
record, but is claimed to have been filed personally, the
filing shall be proven by the written or stamped
acknowledgment of its filing by the clerk of court on a copy of
the pleading or court submission. (Section 16(a), Rule 13)
• Sending by registered mail;
- Date of mailing (as shown in post office stamp or registry
receipt), is the date of filing. Envelope must be attached to the
record of the case.
The filing shall be proven by the registry receipt and by the
affidavit of the person who mailed it, containing a full
statement of the date and place of deposit of the mail in the post
office in a sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster to return
the mail to the sender after 10 calendar days if not delivered.
(Section 16(b), Rule 13)
• Sending them by accredited courier; or
- Date of deposit to the courier (as shown in the
acknowledgment receipt), is the date of filing. Envelope must
be attached to the record of the case.
Administrative Order No. 242-A-2020 provides that a courier
service (Private Express and/or Messenger Delivery Service)
refers to the service provided by any natural or juridical
persons, for hire or compensation, with general or limited
clientele, whether permanent, occasional or accidental, and
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done for general business purposes, for the express delivery
and/or messengerial delivery of letters or written messages, and
other mailable matters.
Supreme Court has considered service/filing by private courier
as equivalent to service/filing by ordinary mail (PSBank vs.
Papa, G.R. No. 200469, 15 January 2018).
The filing shall be proven by an affidavit of service of the
person who brought the pleading or other document to the
service provider, together with the courier’s official receipt and
document tracking number. (Section 16(c), Rule 13)
• Transmitting them by e-mail or other electronic means as may be
authorized by the Court in places where the court is electronically
equipped.
- The date of electronic transmission shall be considered as the
date of filing.
The same shall be proven by an affidavit of electronic filing of
the filing party accompanied by a paper copy of the pleading
or other document transmitted or a written or stamped
acknowledgment of its filing by the clerk of court. If the paper
copy sent by electronic mail was filed by registered mail,
paragraph (b) of this Section applies. (Section 16(d), Rule 13)
-
If the pleading or any other court submission was filed through
other authorized electronic means, the same shall be proven by
an affidavit of electronic filing of the filing party accompanied
by a copy of the electronic acknowledgment of its filing by the
court. (Section 16(e), Rule 13)
MODES OF SERVICE
i.
By personal delivery: Court submissions may be served by
personal delivery of a copy to the party or to the party’s counsel,
or to their authorized representative named in the appropriate
pleading or motion, or by leaving it in his or her office with his or
her clerk, or with a person having charge thereof. If no person is
found in his or her office, or his or her office is not known, or he
or she has no office, then by leaving the copy, between the hours
of eight in the morning and six in the evening, at the party’s or
counsel’s residence, if known, with a person of sufficient age and
discretion residing therein. (Section 6, Rule 13)
Personal service is complete upon actual delivery. (Section 15,
Rule 13) 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 statement of the
date, place, and manner of service. (Section 17, Rule 13)
Note: If there is a written acknowledgment of receipt by
the party served, an affidavit of service is no longer
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necessary, since the written acknowledgment is in effect
a written admission.
ii.
Service by mail: service by registered mail shall be made by
depositing the copy in the post office, in a sealed envelope, plainly
addressed to the party or to the party’s counsel at his or her office,
if known, otherwise at his or her residence, if known, with postage
fully pre-paid, and with instructions to the postmaster to return the
mail to the sender after 10 calendar days if undelivered. (Section
7, Rule 13)
- Proof shall be made by the affidavit mentioned above
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. (Section 17 (b), Rule 13)
iii.
Service by Ordinary mail: If no registry service is available in
the locality of either the sender or the addressee, service may be
done by ordinary mail. (Section 7, Rule 13)
Service by ordinary mail is complete upon the expiration of ten
(10) calendar days after mailing, unless the court otherwise
provides. Service by registered mail is complete upon actual
receipt by the addressee, or after five (5) calendar days from the
date he or she received the first notice of the postmaster,
whichever date is earlier. (Section 15, Rule 13)
Proof shall consist of an affidavit of the person mailing stating the
facts showing compliance with Section 7 of this Rule. (Section 17
(a), Rule 13)
iv.
Service by accredited courier is complete upon actual receipt by
the addressee, or after at least two (2) attempts to deliver by the
courier service, or upon the expiration of five (5) calendar days
after the first attempt to deliver, whichever is earlier. (Section 15,
Rule 13) Proof shall be made by an affidavit of service executed
by the person who brought the pleading or paper to the service
provider, together with the courier’s official receipt or document
tracking number. (Section 17 (c), Rule 13)
Note: Supreme Court has considered service/filing by
private courier as equivalent to service/filing by ordinary
mail (PSBank vs. Papa, G.R. No. 200469, 15 January
2018).
v.
Substituted Service: If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be made under the two
preceding Sections, the office and place of residence of the party
or his or her counsel being unknown, service may be made by
delivering the copy to the clerk of court, with proof of failure of
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both personal service and service by mail. The service is complete
at the time of such delivery. (Section 8, Rule 13)
vi.
Service by electronic means and facsimile: Service by electronic
means and facsimile shall be made if the party concerned consents
to such modes of service. Service by electronic means shall be
made by sending an e-mail to the party’s or counsel’s electronic
mail address, or through other electronic means of transmission as
the parties may agree on, or upon direction of the court. Service
by facsimile shall be made by sending a facsimile copy to the
party’s or counsel’s given facsimile number. (Section 9, Rule 13)
The subject of the electronic mail and facsimile must
follow the prescribed format: case number, case title
and the pleading, order or document title.
The title of each electronically-filed or served
pleading or other document, and each submission
served by facsimile shall contain sufficient
information to enable the court to ascertain from
the title: (a) the party or parties filing or serving
the paper, (b) nature of the paper, (c) the party or
parties against whom relief, if any, is sought, and
(d) the nature of the relief sought. (Section 12,
Rule 13)
Electronic service is complete at the time of the electronic
transmission of the document, or when available, at the
time that the electronic notification of service of the
document is sent. Electronic service is not effective or
complete if the party serving the document learns that it
did not reach the addressee or person to be served.
(Section 15, Rule 13)
Service by facsimile transmission is complete upon
receipt by the other party, as indicated in the facsimile
transmission printout. (Section 15, Rule 13)
Proof of service shall be made by an affidavit of service
executed by the person who sent the e-mail, facsimile, or
other electronic transmission, together with a printed
proof of transmittal. (Section 17 (d), Rule 13)
Note that a party who changes his or her electronic mail
address or facsimile number while the action is pending
must promptly file, within 5 calendar days from such
change, a notice of change of e-mail address or facsimile
number with the court and serve the notice on all other
parties. Service through the electronic mail address or
facsimile number of a party shall be presumed valid unless
such party notifies the court of any changes, as
aforementioned. (Section 11, Rule 13)
PRESUMPTIVE SERVICE
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“There shall be presumptive notice to a party of a court setting if such
notice appears on the records to have been mailed at least 20 calendar days
prior to the scheduled date of hearing and if the addressee is from within
the same judicial region of the court where the case is pending, or at least
30 calendar days if the addressee is from outside the judicial region.”
(Section 10, Rule 13)
The purpose of this provision is to minimize delays caused by cancellation
and rescheduling of court settings, even if the other party was absent,
where there was no proof of service upon such other party.
CONVENTIONAL SERVICE OR FILING OF ORDERS,
PLEADINGS AND OTHER DOCUMENTS
GR: Under Section 14 of this rule, the following orders, pleadings, and
other documents must be served or filed personally or by registered mail
when allowed, and shall not be served or filed electronically, viz:
a.
Initiatory pleadings and initial responsive pleadings, such as an
answer;
b. Subpoena, protection orders, and writs;
c. Appendices and exhibits to motions, or other documents that are
not readily amenable to electronic scanning may, at the option of
the party filing such, be filed and served conventionally; and
d. Sealed and confidential documents or records.
XP: unless express permission is granted by the court:
HOW ARE JUDGMENTS, FINAL ORDERS OR RESOLUTIONS
SERVED?
“Judgments, final orders, or resolutions shall be served either personally
or by registered mail. Upon ex parte motion of any party in the case, a
copy of the judgment, final order, or resolution may be delivered by
accredited courier at the expense of such party. When a party summoned
by publication has failed to appear in the action, judgments, final orders or
resolutions against him or her shall be served upon him or her also by
[means of] publication at the expense of the prevailing party.” (Section
13, Rule 13)
If a party served with summons subsequently absconds and his present
address is unknown, the court may order that judgments, final orders, or
resolutions shall be served upon him by publication. (Riguera, p. 393)
Illustration: Judgment on the Pleadings sent by registered mail
2002 at the building where defendant’s counsel held office and
was received by S/G on 15 March, but the judgment was received
by the Defendant’s counsel only on 13 June 2002. The Supreme
Court pronounced that the service of judgment on the S/G of
building where counsel’s office is located is valid and binding.
The counsel should devise a system to ensure a prompt receipt of
official communications and cannot hide behind the S/G’s
negligence. (Riguera)
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Service of judgment to the party upon death of her counsel is valid. It
is the duty of the party to inform the court of the fact of her counsel’s death.
Her failure to do so means that she is negligent in the protection of her
cause, and she cannot pass the blame to the court which is not tasked to
monitor the changes in the circumstances of the parties and their counsels.
(Salting vs. Velez12)
COURTS MAY ELECTRONICALLY SERVE ORDERS AND
OTHER DOCUMENTS TO THE PARTIES
“The court may electronically serve orders and other documents to all the
parties in the case which shall have the same effect and validity as provided
herein. A paper copy of the order or other document electronically served
shall be retained and attached to the record of the case.” (Section 18, Rule
13)
NOTICE OF LIS PENDENS
“In an action affecting the title or the right of possession of real property,
the plaintiff and the defendant, when affirmative relief is claimed in his or
her answer, may record in the office of the registry of deeds of the province
in which the property is situated a notice of the pendency of the action.
Said notice shall contain the names of the parties and the object of the
action or defense, and a description of the property in that province
affected thereby. Only from the time of filing such notice for record shall
a purchaser, or encumbrancer of the property affected thereby, be deemed
to have constructive notice of the pendency of the action, and only of its
pendency against the parties designated by their real names.
The notice of lis pendens hereinabove mentioned may be cancelled only
upon order of the court, after proper showing that the notice is for the
purpose of molesting the adverse party, or that it is not necessary to protect
the rights of the party who caused it to be recorded.” (Section 19, Rule 13)
Purpose: to serve as a constructive notice to those not parties to the case
that the real property is the subject of a pending litigation.
Cancellation of notice of lis pendens: (a) upon order of the court, after
proper showing that the notice is for the purpose of molesting the adverse
party, or that it is not necessary to protect the rights of the party who caused
it to be recorded; (b) by the register of deed, upon verified petition of the
If a party to a case has appeared by counsel, service of pleadings and judgments shall be
made upon his counsel or one of them, unless service upon the party himself is ordered by
the court.10 Thus, when the MeTC decision was sent to petitioner’s counsel, such service of
judgment was valid and binding upon petitioner, notwithstanding the death of her counsel. It
is not the duty of the courts to inquire, during the progress of a case, whether the law firm or
partnership continues to exist lawfully, the partners are still alive, or its associates are still
connected with the firm.11 Litigants, represented by counsel, cannot simply sit back, relax,
and await the outcome of their case.12 It is the duty of the party-litigant to be in contact with
her counsel from time to time in order to be informed of the progress of her case.13 It is
likewise the duty of the party to inform the court of the fact of her counsel’s death. Her failure
to do so means that she is negligent in the protection of her cause, and she cannot pass the
blame to the court which is not tasked to monitor the changes in the circumstances of the
parties and their counsels.
12
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party who cause its registration (see P.D. 1529) and (c) after final judgment
in favor of the defendant, or other disposition of the action such as to
terminate finally all rights of the plaintiff in and to the land and/or
buildings involved, in any case in which a memorandum or notice of lis
pendens has been registered as provided in the preceding section, the
notice of lis pendens shall be deemed canceled upon the registration of a
certificate of the clerk of court in which the action or proceeding was
pending stating the manner of disposal thereof.
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RULE 14
SUMMONS
WHAT IS SUMMONS
It is the writ by which the defendant is notified of the action brought
against him or her.
WHO ISSUES SUMMONS
Section 1 of Rule 14 states that unless the complaint is on its face
dismissible under Sec. 1, Rule 9, the court shall, within 5 calendar days
from receipt of the initiatory pleading and proof of payment of the requisite
legal fees, direct the clerk of court to issue the corresponding summons
to the defendant/s.
WHO SERVES SUMMONS
Section 3 of Rule 14 states that the summons may be served by the
sheriff, his or her deputy, or other proper court officer, and in case the
failure of service of summons by them, the court may authorize the
plaintiff, to serve the summons, together with the sheriff.
In cases where summons is to be served outside the judicial region of
the court where the case is pending, the plaintiff shall be authorized to
cause the service of summons.
If the plaintiff is a juridical entity, it shall notify the court, in writing, and
name its authorized representative therein, attaching a board resolution or
secretary’s certificate thereto, as the case may be, stating that such
representative is duly authorized to serve the summons on behalf of the
plaintiff.
Note: If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was served, the
case shall be dismissed with prejudice, the proceedings shall be
nullified, and the plaintiff shall be meted appropriate sanctions
If summons is returned without being served on any or all the defendants,
the court shall order the plaintiff to cause the service of summons by other
means available under the Rules.
Failure to comply with the order shall cause the dismissal of the initiatory
pleading without prejudice
ISSUANCE
AND
AMENDMENT
SERVICE
OF
SUMMONS
AFTER
“Although it is well-settled that an amended pleading supersedes the
original one, which is thus deemed withdrawn and no longer considered
part of the record, it does not follow ipso facto that the service of a new
summons for amended petitions or complaints is required. Where the
defendants have already appeared before the trial court by virtue of a
summons on the original complaint, the amended complaint may be served
upon them without need of another summons, even if new causes of action
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are alleged. After it is acquired, a court’s jurisdiction continues until the
case is finally terminated. Conversely, when defendants have not yet
appeared in court and no summons has been validly served, new summons
for the amended complaint must be served on them. It is not the change of
cause of action that gives rise to the need to serve another summons for
the amended complaint, but rather the acquisition of jurisdiction over the
persons of the defendants. If the trial court has not yet acquired jurisdiction
over them, a new service of summons for the amended complaint is
required.” (VLASON ENTERPRISES CORPORATION v. COURT OF
APPEALS, G.R. Nos. 121662-64, July 06, 1999)
KINDS OF SERVICE OF SUMMONS
Personal Service: Section 5, Rule 14 states that whenever practicable, the
summons shall be served by handling a copy thereof to the defendant in
person and informing the defendant that he or she is being served, or if he
or she refuses to serve and sign for it, by leaving the summons within the
view and presence of the defendant.
Substituted Service: Section 6, Rule 14 states that if, for justifiable
causes, the defendant cannot be served personally after at least 3 attempts
on 2 different dates, service shall be affected by:
i.
leaving copies of the summons at the defendant’s residence to a
person of at least eighteen years of age and of sufficient discretion
residing therein;
ii.
leaving copies of the summons at the defendant’s office or regular
place of business with some competent person in charge thereof.
A competent person includes, but not limited to, one who
customarily receives correspondences for the defendant.
iii.
leaving copies of the summons, if refused entry upon making his
or her authority and purpose known, with any of the officers of the
homeowners’ association or condominium corporation, or its chief
security officer in charge of the community or building where the
defendant may be found
iv.
sending an electronic mail to the defendant’s electronic mail
address, if allowed by the court.
Extraterritorial Service: Section 17, Rule 14 states that “when the
defendant does not reside AND is not found in the Philippines and the
action affects the personal status of the plaintiff or relates to, or the subject
of which is, property within the Philippines, in which the defendant has or
claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from any
interest therein, or the property of the defendant has been attached within
the Philippines, service may, by leave of court, be effected out of the
Philippines by personal service under section 6; or as provided for in
international conventions to which the Philippines is a party; or by
publication in a newspaper of general circulation in such places and for
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such tie as the court may order, in which case a copy of the summons and
order of the court shall be sent by registered mail to the last known address
of the defendant, or in any other manner the court may deem sufficient.
Any order granting such leave shall specify a reasonable tie, which shall
not be less than 60 calendar days after notice within which the defendant
must answer.
HOW IS SUMMONS SERVED
Domestic Private Juridical Entity: Section 14, Rule 14 states that when
the defendant is a corporation, partnership, or association organized under
the laws of the Philippines with a juridical personality, service may be
made on the president, managing partner, general manager, corporate
secretary, treasurer, or in-house counsel of the corporation wherever they
may be found, or in their absence or unavailability, on their secretaries.
If such service cannot be made upon any of the forgoing persons, it shall
be made upon the person who customary receives the correspondence for
the defendant at its principal office.
In case the domestic juridical entity is under receivership or liquidation,
service of summons shall be made on the receiver or liquidator, as the case
may be.
Should there be a refusal on the part of the persons above-mentioned to
receive summons despite at least three attempts on two different dates,
service may be made electronically, if allowed by the court, as provided
under Section 6, Rule 14.
Defendant Without Juridical Entity: Section 7, Rule 14 states that when
persons associated in an entity without juridical personality are sued under
the name by which they are generally or commonly known, service may
be effected upon all the defendants by serving upon any one of them, or
upon the person in charge of the office or place of business maintained in
such name. But such service shall not bind individually any person whose
connection with the entity has, upon due notice, been served before the
action was filed.
Foreign Private Juridical Entity: When the defendant is a foreign private
juridical entity which has transacted or is doing business in the Philippines,
as defined by law, service may be made on its resident agent designated in
accordance with law for that purpose, or, if there be no such agent, on the
government official designated by law to that effect, or on any of its
officers, agents, directors or trustees within the Philippines. If the foreign
private juridical entity is not registered in the Philippines, or has no
resident agent but has transacted or is doing business in it, as defined by
law, such service may, with leave of court, be affected outside of the
Philippines through any of the following means:
a. By personal service coursed through the appropriate court in the
foreign country with the assistance of the department of foreign
affairs;
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b. By publication once in a newspaper of general circulation in the
country where the defendant may be found and by serving a copy
of the summons and the court order by registered mail at the last
known address of the defendant;
c. By facsimile;
d. By electronic means with the prescribed proof of service; or
e. By such other means as the court, in its discretion, may direct.
Public Corporation: When the defendant is the Republic of the
Philippines, service may be effected on the Solicitor General; in case of a
province, city or municipality, or like public corporations, service may be
effected on its executive head, or on such other officer or officers as the
law or the court may direct.
Prisoner: When the defendant is a prisoner confined in a jail or institution,
service shall be effected upon him or her by the officer having the
management of such jail or institution who is deemed as a special sheriff
for said purpose. The jail warden shall file a return within 5 calendar days
from service of summons to the defendant.
Minor or Incompetent Person: When the defendant is a prisoner
confined in a jail or institution, service shall be effected upon him or her
by the officer having the management of such jail or institution who is
deemed as a special sheriff for said purpose. The jail warden shall file a
return within 5 calendar days from service of summons to the defendant.
Identity or Whereabout Is Unknown - In any action where the defendant
is designated as an unknown owner, or the like, or whenever his or her
whereabouts are unknown and cannot be ascertained by diligent inquiry,
within 90 calendar days from the commencement of the action, service
may, by leave of court, be effected upon him or her by publication in a
newspaper of general circulation and in such places and for such time as
the court may order.
Resident But Temporarily Outside the Philippines: When any action is
commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of court,
be also effected out of the Philippines, as under the preceding Section (on
extraterritorial service).
By Publication: If the service has been made by publication, service may
be proved by the affidavit of the publisher, editor, business or advertising
manager, to which affidavit a copy of the publication shall be attached and
by an affidavit showing the deposit of a copy of the summons and order
for publication in the post office, postage prepaid, directed to the defendant
by registered mail to his or her last known address
VOLUNTARY APPEARANCE
The defendant's voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to dismiss of other grounds
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aside from lack of jurisdiction over the person of the defendant shall be
deemed a voluntary appearance
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RULE 15
MOTIONS
“A motion is an application for relief other than by a pleading.” (Section
1, Rule 15)
FORM OF MOTIONS
As a general rule all motions shall be in writing 13. However, exceptions
were laid down by the section 2 of the same rule, such as those made in
open court or in the course of a hearing or trial.
Note that under the amendments, a motion made in open court or in the
course of a hearing or trial should immediately be resolved in open court,
after the adverse party is given the opportunity to argue his or her
opposition thereto. (Section 2 par. 2, Rule 15)
Further, when a motion is based on facts not appearing on record, the
court may hear the matter on affidavits or depositions presented by the
respective parties, but the court may direct that the matter be heard wholly
or partly on oral testimony or depositions (Section 2 par. 3, Rule 15).
This provision is also taken from Section 7, Rule 133 of the Rules
on Evidence on motion.
Also Section 2 of the Judicial Affidavit Rule14 applies also to
hearings with motions and incidents. It is submitted that Section
2, Rule 15 prevails, but the court may direct that the matter be
heard on judicial affidavits instead of oral testimony or
depositions.
The Rules applicable to pleadings shall apply to written motions so far as
concerns caption, designation, signature, and other matters of form.
(Section 11, Rule 15)
MANIFESTATION v. MOTION
13
Section 2, Rule 15.
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct
testimonies. - (a) The parties shall file with the court and serve on the adverse
party, personally or by licensed courier service, not later than five days before
pre-trial or preliminary conference or the scheduled hearing with respect to
motions and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take the place
of such witnesses' direct testimonies; and
(2) The parties' documentary or object evidence, if any, which shall be
attached to the judicial affidavits and marked as Exhibits A, B, C, and so
on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3,
and so on in the case of the respondent or the defendant.
x x x.
14
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A manifestation is usually made merely for the information of the court,
unless otherwise indicated. In a manifestation, the manifesting party
makes a statement to inform the court, rather than to contest or argue.
Meanwhile, a motion is an application for relief from the court other than
by a pleading and must be accompanied by a notice of hearing and proof
of service to the other party, unless the motion is not prejudicial to the
rights of the adverse party.
CONTENTS OF A MOTION
“A motion shall state the relief sought to be obtained and the grounds upon
which it is based, and if required by these Rules or necessary to prove facts
alleged therein, shall be accompanied by supporting affidavits and other
papers.” (Section 3, Rule 15)
As can be gleaned from the rules, a motion shall contain the following: (a)
a statement of the relief sought to be obtained; (b) the grounds upon which
the motion is based; and (c) supporting affidavits and other papers, if
necessary or required by the rules. Non-compliance thereto, the motion
produces no legal effect and should not be acted upon by the court.
Notice of Hearing:
“The court may, in the exercise of its discretion, and if deemed
necessary for its resolution, call a hearing on the motion. The
notice of hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing.” (Section 6, Rule
15)
Note: The new rules deleted the provision requiring the
observance of the 3-day notice rule, as well as the 10-day
notice rule. Under the new rules, a litigious motion may be
set for hearing upon the discretion of the court. Hence, no
hearing on the motion has been conducted, the court shall
resolve the litigious motion only after the opposing party has
been given the opportunity to file his opposition.
a. 3-day notice rule
Under the previous rule, notice as regards the
motion should be received by the other party 3 days
before the hearing which should be set not later
than 10 days after the filing of the motion. As to
ensure its receipt by the other party” and not merely
“served” — the other party must have actually
received the notice of hearing 3 days before. As an
integral component of the procedural due process,
the three-day notice required by the Rules is not
intended for the benefit of the movant. Rather, the
requirement is for the purpose of avoiding surprises
that may be sprung upon the adverse party, who
must be given time to study and meet the arguments
in the motion before a resolution of the court.
Principles of natural justice demand that the right of
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a party should not be affected without giving it an
opportunity to be heard.15A notice of hearing is
conceptualized as an integral component of
procedural due process intended to afford the
adverse parties a chance to be heard before a motion
is resolved by the court. Through such notice, the
adverse party is permitted time to study and answer
the arguments in the motion.16
The 3-day notice rule, however, is NOT absolute. A
liberal construction is proper where the lapse in the
literal observance of the rule has not prejudiced the
adverse party. The following are the instances
where the 3-day notice rule would not apply: (a)
Where rigid application will result in a manifest
failure or miscarriage of justice especially if a party
successfully shows that the alleged defect in the
questioned final and executory agreement is not
apparent on its face or from the recitals contained
therein; (b) Where the interest of substantial will be
served; (c) Where the resolution of the motion is
addressed solely to the sound and judicious
discretion of the court; and (d) Where the injustice
to the adverse party is not commensurate with the
degree of his thoughtfulness in not complying with
the procedure prescribed.
The test on whether the three-day notice rule has
been followed is the presence of opportunity to be
heard, as well as to have time to study the motion
and meaningfully, oppose to controvert the grounds
upon which it is based.17
b. 10-day notice rule
Prior to the amendments, every written motion
shall be set for 3. hearing by the applicant. The
time and date of the hearing must not be later than
ten (10) days after the filing of the motion. As can
be inferred therefrom, the 10-day “no later” rule
is mandatory to prevent dilatory tactics by the
movant.18 Also, prior to the amendments, the
Rules of Court do not fix any period within which
the said party may file his reply or opposition, the
trial court would have no way of determining
whether the adverse party agrees or objects to the
motion and, if he objects, to hear him on his
Preysler vs Manila Southcoast Dev’t 2010
Vlason Enterprises vs CA 1999
17 Anama v Philippine Savings Bank, 2012
18 Bacelonia v CA, 2010
15
16
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objection. Hence, the need for the movant to set
the time and place of hearing of its motion.19
Note: Sec. 5(c), Rule 15 of the 2020
Rules of Civil Procedure provides that
“the opposing party shall file his or her
opposition to a litigious motion within
five (5) calendar days from receipt
thereof.”
Effects of Non-Compliance:
Failure to comply with Sections 2, 3, 5(b), and 7, Rule 15 of the
2020 Rules of Civil Procedure means the motion is but a mere
scrap of paper which produces no legal effect and should not be
acted upon by the Court. (Riguera, p. 458)
▪
▪
▪
▪
▪
▪
▪
The clerk of court has no right to receive;
The court has no right to act upon;
It is considered as a mere pro-forma motion. A
motion that does not comply with the rules on
motion is considered pro forma and thus, will be
treated as one filed merely to delay the
proceedings.
It is considered as not filed;
It is a ground for the denial of the motion;
It presents no question which the court could
decide;
It will not toll the running of the prescriptive
period to appeal to file pleadings.
The requirements entombed in Sections 4 and 5 of Rule 15 of the
(1997) Rules of Court are mandatory and non-compliance
therewith is fatal and renders the motion pro forma; a worthless
piece of paper which the clerk of court has no right to receive and
which the court has no authority to act upon. In cases of motions
for a new trial or for the reconsideration of a judgment, the running
of the period for appeal is not tolled by the mere filing or pendency
of said motion.20
However, compliance thereto is still subject to certain exceptions
similar to that of the 3-day notice rule. Moreover, the prohibition
on pro forma motion applies only to a final resolution order and
not to interlocutory order.
KINDS OF MOTIONS
Under the new rules, the motion may either be non-litigious or
litigious.
19
Republic vs Peralta 2003
20
Ibid.
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1. Section 4, Rule 15 defined non-litigious motion as motions which
the court may act upon without prejudicing the rights of adverse
parties. This includes the following:
a.
b.
c.
d.
e.
f.
g.
Motion for the issuance of an alias summons;
Motion for extension to file answer;
Motion for postponement;
Motion for the issuance of a writ of execution;
Motion for the issuance of an alias writ of execution;
Motion for the issuance of a writ of possession;
Motion for the issuance of an order directing the
sheriff to execute the final certificate of sale; and
h. Other similar motions.
Note: The list is not exclusive. Furthermore, prior to the
amendments, the rules did not provide with particularity
which motions are considered non-litigious (ex-parte).
Hence, it is the court who concludes whether a motion is a
litigious one or not.
These motions shall not be set for hearing and shall be resolved by
the court within five (5) calendar days from receipt thereof.
(Section 4 par. 2, Rule 15)
Note: Non-litigious motions still needs to be served pursuant
to Sec. 5(b), Rule 15 of the 2020 Rules of Court. However,
such requirement does not apply to ex parte motions
governed by specific provisions and where the efficacy of the
relief sought would be compromised if notice were given, as
in an ex parte motion for issuance of a writ of preliminary
attachment, or a temporary restraining order.
2. Section 5, Rule 15 of the 2020 Rules of Court provides that
litigious motions include:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
Motion for bill of particulars;
Motion to dismiss;
Motion for new trial;
Motion for reconsideration;
Motion for execution pending appeal;
Motion to amend after a responsive pleading has been
filed;
Motion to cancel statutory lien;
Motion for an order to break in or for a writ of
demolition;
Motion for intervention;
Motion for judgment on the pleadings;
Motion for summary judgment;
Demurrer to evidence;
Motion to declare defendant in default; and
Other similar motions.
All motions shall be served by personal service, accredited private
courier or registered mail, or electronic means so as to ensure their
receipt by the other party. (Section 5(b), Rule 15)
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Note: A motion without proof of service shall not be
acted upon by the court. (Section 7, Rule 15).
The opposing party shall file his or her opposition to a litigious
motion within five (5) calendar days from receipt thereof. No other
submissions shall be considered by the court in the resolution of
the motion. (Section 5(c), Rule 15)
The motion shall be resolved by the court within fifteen (15)
calendar days from its receipt of the opposition thereto, or upon
expiration of the period to file such opposition. (Section 5 last
par., Rule 15)
OMNIBUS MOTION RULE
This rule requires that a motion that attacks a pleading, judgment, order or
proceeding shall include all grounds then available, and all objections not
so included are deemed waived. (Section 9, Rule 15) However, the
objections mentioned in Section 1, Rule 9 shall not be deemed waived even
if not included in the motion.
A motion to dismiss is a typical example of a motion subject to the
omnibus motion rule, since a motion to dismiss attacks a complaint which
is a pleading. Following the omnibus motion rule, if a motion to dismiss is
filed, then the motion must invoke all objections which are available at the
time of the filing of said motion. If the objection which is available at the
time is not included in the motion, that ground is deemed waived. It can
no longer be invoked as an affirmative defense in the answer which the
movant may file following the denial of his motion to dismiss. (Riano,
353)
Note: Under the new rules, a motion to dismiss is generally a
prohibited motion. An an exception, it may only be filed if the grounds
to be invoked are lack of jurisdiction over the subject-matter, litis
pendentia (that there is another action pending between the same parties
for the same cause), res judicata (that the action is barred by a prior
judgment, statute of limitations or prescription.
PROHIBITED MOTIONS
•
2020 Rules of Civil Procedure (Section 12, Rule 15)
a. Motion to dismiss except on the following grounds:
- That the court has no jurisdiction over the subject matter
of the claim;
- That there is another action pending between the same
parties for the same cause; and
- That the cause of action is barred by a prior judgment or
by the statute of limitations;
b. Motion to hear affirmative defenses;
c. Motion for reconsideration of the court’s action on the affirmative
defenses;
d. Motion to suspend proceedings without a temporary restraining
order or injunction issued by a higher court;
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e. Motion for extension of time to file pleadings, affidavits or any
other papers, except a motion for extension to file an answer as
provided by Section 11, Rule 11; and
f. Motion for postponement intended for delay, except if it is based
on acts of God, force majeure or physical inability of the witness
to appear and testify. If the motion is granted based on such
exceptions, the moving party shall be warned that the presentation
of its evidence must still be terminated on the dates previously
agreed upon.
- This is the same as III.2.c of the Revised Guidelines for
Continuous Trial of Criminal Cases.
- This is done to discourage litigants from securing
postponements, as well as to ensure that cases are
disposed of with dispatch. The rule now is that if the
motion is granted, the postponement shall be deducted
from the allotted schedule that the party is to present
his/her witness. (1 day, 1 witness rule)
- A motion for postponement, whether written or oral, shall,
at all times, be accompanied by the original official
receipt from the office of the clerk of court evidencing
payment of the postponement fee under Section 21(b),
Rule 141, to be submitted either at the time of the filing
of said motion or not later than the next hearing date. The
clerk of court shall not accept the motion unless
accompanied by the original receipt. (last paragraph)
•
SUMMARY PROCEDURE
a. Motion to dismiss the complaint or to quash a criminal complaint
or information. Exception if the ground is lack of jurisdiction
over the subject matter or failure to comply with the rule
requiring referral to the Lupon for conciliation.
b. Motion for a bill of particulars;
c. Motion for new trial;
d. Motion for reconsideration of a judgment;
e. Motion for reopening of trial;
f. Motion for extension of time to file pleadings, affidavits or any
other paper;
g. Motion to declare the defendant in default; and
h. Dilatory motions for postponement (Sec. 19, 1991 Revised Rules
on Summary Procedure)
•
SMALL CLAIMS CASES
a.
b.
c.
d.
e.
f.
Motion to dismiss the complaint;
Motion for a bill of particulars;
Motion for new trial;
Motion for reconsideration of a judgment;
Motion for reopening of trial;
Motion for extension of time to file pleadings, affidavits or any
other paper
g. Motion to declare the defendant in default;
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h. Dilatory motions for postponements (Sec. 16, Rules of Procedure
for Small Claims Cases, as amended)
•
CONTINUOUS TRIAL GUIDELINES
a. Motion for judicial determination of probable cause;
b. Motion for preliminary investigation filed beyond the five-day
reglementary period in inquest proceedings under Sec. 6 Rule 112
or when preliminary investigation is required under Sec. 8 Rule
112 or allowed in inquest proceedings and the accused failed to
participate in the preliminary investigation despite due notice.
c. Motion for reinvestigation of the prosecutor recommending the
filing of the information once the information has been filed with
the court:
1. If the motion is filed without prior leave of court;
2. When preliminary investigation is not required under Sec.
8 Rule 112; and
3. When the regular preliminary investigation is required
and has been actually conducted, and the grounds relied
upon in the motion are not meritorious, such as issues of
credibility, admissibility of evidence, innocence of the
accused, or lack of due process when the accused was
actually notified, among others.
d. Motion to quash information when the ground is not one of those
stated in Sec. 3 Rule 117
e. Motion for bill of particulars that does not conform to Sec. 9 Rule
116.
f. Motion to suspend the arraignment based on the grounds not stated
under Sec. 11 Rule 116.
g. Petition to suspend the criminal action on the ground of prejudicial
question, when no civil case has been filed, pursuant to Sec. 7 Rule
111.
•
WRITS OF AMPARO AND HABEAS CORPUS
a. Motion to dismiss;
b. Motion for extension of time to file opposition, affidavit,
position paper and other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Motion to declare respondent in default; and
f. Motion for reconsideration of interlocutory orders or interim
relief orders. (Sec.11, WOA, Sec. 13 WHD)
•
ENVIRONMENT CASES
a. Motion to dismiss the complaint;
b. Motion for a bill of particulars;
c. Motion for extension of time to file pleadings except to file
answer, the extension not to exceed 15 days; and
d. Motion to declare the defendant in default. (Sec. 2, Rule 2, Part
II, Rules of Procedure for Environmental Cases)
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MOTION TO DISMISS
(Provisions of Rule 16 were either deleted or transposed)
*discussion for academic purposes*
A MOTION TO DISMISS is now a PROHIBITED MOTION under
Section 12 of Rule 15, except if the motion is based on these grounds:
a. court has no jurisdiction over the subject matter
b. litis pendentia
Litis Pendentia is a Latin term which literally means “a
pending suit.” It refers to the situation where two actions are
pending between the same parties for the same cause of
action, so that one of them becomes unnecessary and
vexatious. It is based on the policy against multiplicity of
suits.
Requisites of litis pendentia: (a) identity of parties, or at least
such as representing the same interest in both actions; (b)
identity of rights asserted and relief prayed for, the relief
being founded on the same facts; and (c) identity of the two
cases such that judgment in one, regardless of which party is
successful, would amount to res judicata in the other. (Riano,
p.411)
c. res judicata
This doctrine provides that a final judgment or decree on the
merits rendered by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all
later suits and on all points and matters determined in the
previous suit. The principle upon which the doctrine rests is
that the parties ought not to be permitted to litigate the same
issues more than once.
The concept of res judicata has the following elements: (a)
the former judgment must be final, (b) the court which
rendered it had jurisdiction over the subject matter and the
parties; (c) the judgment must be on the merits; and (d) there
must be between the first and the second actions, identity of
parties, subject matter, and causes of action.
The application of the doctrine of res judicata does not require
absolute identity of parties but merely substantial identity of
parties. There is substantial identity of parties when there is
community of interest or privity of interest between a party in
the first and a party in the second case even if the first case
did not implead the latter.
The rule on res judicata applies as well to quasi-judicial
proceedings. Meanwhile, it has no bearing on criminal
proceedings since the rule is a doctrine of civil law. (Riano,
pp. 408-411)
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d. prescription.
It must be noted that the failure to allege these in a motion to dismiss will
NOT constitute their waiver in accordance with Section 1, Rule 9.
WHEN FILED
With the deletion of Rule 16, it is submitted that the motion to dismiss
may be filed at any time WITHIN the period for filing an answer and
even AFTER an answer has been filed. The reason is that the grounds
for dismissal under Section 12(1), Rule 15 are the very same defenses
under Section 1, Rule 9 which are not deemed waived if not set up in a
motion to dismiss or in an answer.
▪
Suppose the motion to dismiss was filed within the period for
filing an answer and it was subsequently denied, when shall
the defendant file his answer?
With the deletion of Rule 16, the rule on “effect of interruption”
under Sec. 2 of Rule 22 shall now be applicable. Under the said
section, “should an act be done which effectively interrupts the
running of the period, the allowable period after such interruption
shall start to run on the day after notice of the cessation of the
cause thereof.” As such, the defendant only has the balance of the
period to file the answer, counted from the notice of denial.
Thus, if the defendant filed the motion to dismiss on the 29th day,
he only has one (1) day to file the answer upon receipt of the denial
of his motion to dismiss. The 5-day minimum period found in the
former Sec.4, Rule 16 no longer applies.
EFFECT IF GRANTED
The complaint is dismissed. Plaintiff, however, may re-file the complaint
if the ground upon which the motion to dismiss was based is that court has
no jurisdiction over the subject matter. This is not applicable where the the
ground for dismissal is prescription, unenforceability of the claim, res
judicata, and extinguishment of the claim as provided for in Section 13,
Rule 15. (PURE) (Riguera, p. 468)
REMEDIES IF DENIED
The remedy of the defendant is proceed with trial and if he loses, appeal
and assign failure to dismiss as reversible error. It is submitted that the
defendant cannot avail of certiorari, prohibition, or mandamus under
Rule 65, applying by analogy Section 12(e), Rule 8. (Riguera, p. 469)
The defendant may appeal from the order of dismissal where the ground
relied upon is one which bars the refiling of the complaint like res
judicata, and prescription. Since the complaint cannot be refiled, the
dismissal is with prejudice. Under Sec.1(g) of Rule 41, it is the order
dismissing an action without prejudice which cannot be appealed from.
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Conversely, where the dismissal is with prejudice, an appeal from the order
of dismissal is not precluded. (Riano, p. 413)
Where the ground for dismissal is lack of jurisdiction over the subject
matter, the dismissal is without prejudice to the refiling of the complaint
following the tenor of Sec. 1(g) of Rule 41, hence, no appeal may be had
from the order of dismissal. As an exception, appeal may, nevertheless, be
taken from the order dismissing an action for lack of jurisdiction over the
subject matter in a situation contemplated under Sec. 8 of Rule 40. This
provision specifically allows, by necessary implication, an appeal from
orders dismissing cases on the ground of lack of jurisdiction over the
subject matter. This situation, it must be noted, applies in a dismissal made
in the Municipal Trial Court and not dismissal in the Regional Trial Court.
(Riano, p. 413)
The plaintiff may also avail of a petition for certiorari under Rule 65.
This remedy is available if the court gravely abuses its discretion in a
manner amounting to lack of jurisdiction and is the appropriate remedy in
those instances when the dismissal is without prejudice – lack of
jurisdiction over the subject matter (Sec, 1, Rule 41). (Riano, p. 413)
NOTE: Keep in mind that we are talking about a situation where
the abovementioned grounds are raised in a Motion to Dismiss.
The rule is different when they are raised as affirmative defense/s
wherein denial cannot be subjected to motion for reconsideration
or petition for certiorari.
Remember that a motion for reconsideration of the court’s action
on the affirmative defenses is a prohibited motion under Section
12(c), Rule 15.
The petitions for certiorari, prohibition, and mandamus are not
proper remedies because the defendant still has an adequate
remedy – i.e., to proceed to trial and to subsequently file an appeal
if he loses the case.
EFFECT OF FAILURE TO RAISE DEFENSE
Failure to allege the grounds for motion to dismiss in the answer as
affirmative defense/s will NOT constitute their waiver. When it appears
from the pleadings or the evidence on record that any of the said grounds
are present, the court shall dismiss the claim (Sec. 1, Rule 9)
FAILURE TO STATE A CAUSE OF ACTION V. LACK OF CAUSE
OF ACTION (see p. 12 of this Reviewer)
Failure to state a cause of action refers to the insufficiency of the
allegations in the pleadings, while the lack of cause of action is the
insufficiency of the factual basis for the action.
Failure to state cause of action: The failure of a complaint to state a cause
of action does not mean that the plaintiff has “no cause of action.” It only
means that the complaint’s allegations are insufficient for the court to
know that the rights of the plaintiff were violated by the defendant. Thus,
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even if it be actually true that the defendant violated the rights of the
plaintiff, if the elements constituting such violation are not set forth in the
complaint, the pleading will state no cause of action.
NOTE: Under the revision, failure to state a cause of
action is no longer a ground for motion to dismiss.
Instead, it may be raised as an affirmative defense in
an answer (Rule 8, Section 12). Failure to raise this
affirmative defense at the earliest opportunity is shall
constitute a waiver thereof. The court shall motu
proprio resolve the affirmative defense within thirty
(30) calendar days from the filing of the answer.
▪
If denied, it shall not be the subject of a motion
for reconsideration or petition for certiorari,
prohibition, or mandamus [Rule 15, Section
12(c)], but may be among the matters to be
raised on appeal after a judgment on the merits.
▪
If granted, it is without prejudice to the refiling
of the amended complaint.
Test to determine whether or not the complaint states a cause
of action (Riano, p.174)
“Admitting the truth of the facts alleged, can the court render a
valid judgment in accordance with the prayer?”
To be taken into account are only the material allegations in the
complaint; extraneous facts and circumstances or other matters
aliunde are not considered.
The principle, that other matters aside from the allegations in the
complaint are not to be considered, is not, however, a hard and fast
rule. In some cases, the Court considered the documents attached
to the complaint to truly determine sufficiency of the cause of
action. The court may consider, in addition to the complaint, the
appended annexes or documents, other pleadings of the plaintiff,
or admissions in the records. The reason that is that such annexes
are considered parts of the complaint.
Absence or Lack of Cause of Action: The lack of cause of action applies
to a situation where the evidence failed to prove the cause of action alleged
in the pleading. It is a ground for dismissal, using a demurrer to evidence
under Rule 33, after the plaintiff has completed presenting his evidence.
The dismissal constitutes res judicata on the issue and will bar future suits
based on the same cause of action.
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RULE 17
DISMISSAL OF ACTIONS
DISMISSAL UPON NOTICE OF PLAINTIFF
“A complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for
summary judgment. Upon such notice being filed, the court shall issue an
order confirming the dismissal. Unless otherwise stated in the notice, the
dismissal is without prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the same
claim.” (Section 1, Rule 17)
Before service of an answer or a motion for summary judgment, a
complaint may be dismissed by the plintiff by filing a notice of dismissal.
Upon filing of the said notice, the court shall issue an order confirming the
dismissal. In such a case, the dismissal by the plaintiff by the filing of the
notice of dismissal is a matter of right. Hence, it is submitted that the
dismissal should occur as of the date the notice is filed by the plaintiff.
The order of dimisssal merely confirms a dismissal already
effected by the filing of the notice of dismissal. Since said order
merely confirms the dismissal, it follows that the court does not
have to approve the dismissal because it has no discretion on
the matter.
Dismissal without Prejudice: Aa a general rule, a dismissal made by the
filing of a notice of dismissal is a dismissal without prejudice (i.e.
complaint can be refiled.) As an exception, the dismissal will be one with
prejudice in any of the following situations:
(a) Notice of Dismissal provides that the dismissal is with
prejudice; and
(b) Plaintiff has previously dismissed the same case in a court of
competent jurisdiction based on or including the same claim.(this
is otherwise known as the two-dismissal rule)
Note: If the plaintiff files a notice of dismissal
providing therein a reason that prevents the refiling
of the complaint, the dismissal must be deemed one
with prejudice even if the notice does not state that
the dismissal is with prejudice.
Reckoning date: The dismissal should occur as of the date of filing of
notice of dismissal, not the date the court issues the order confirming the
dismissal.
TWO-DISMISSAL RULE
The two-dismissal rule applies when the plaintiff has (a) twice dismissed
the actions, (b) based on or including the same claim, (c) in a court of
competent jurisdiction.
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The second notice of dismissal will bar the refiling of the action because
it will operate as an adjudication of the claim upon the merits. In other
words, if the refiled claim or complaint is dismissed again through a
second notice of dismissal, that second notice triggers the application of
the two-dismissal rule and the dismissal is deemed one with prejudice
because it is considered as an adjudication upon the merits.
Note: For this rule to apply, the complaints must have been
dismissed in a court of competent jurisidiction. (Illustration p.
418, Riano and p. 473, Riguera).
Also note that the two-dismissal rule under Sec. 1, Rule 17 will
not apply if the prior dismissal was done at the instance of the
defendant.
Lastly, it must be remembered that the two-dismissal rule applies
only if the second dismissal was by notice.
DISMISSAL UPON MOTION OF PLAINTIFF
“Except as provided in the preceding Section, a complaint shall not be
dismissed at the plaintiff’s instance save upon approval of the court and
upon such terms and conditions as the court deems proper. If a
counterclaim has been pleaded by a defendant prior to the service upon
him or her of the plaintiff’s motion for dismissal, the dismissal shall be
limited to the complaint. The dismissal shall be without prejudice to the
right of the defendant to prosecute his or her counterclaim in a separate
action unless within fifteen (15) calendar days from notice of the motion
he or she manifests his or her preference to have his or her counterclaim
resolved in the same action. Unless otherwise specified in the order, a
dismissal under this paragraph shall be without prejudice. A class suit
shall not be dismissed or compromised without the approval of the court.”
(Section 2, Rule 17)
Answer or a Motion for Sumary Judgement has been Served on the
Plaintiff, the dismissal is no longer a matter of right on the part of the
plaintiff, but a matter of judicial discretion and will require the filing of a
motion to dismiss. The motion to dismiss will now be subject to the
approval of the court which will decide on the motion upon such terms and
conditions as are just.(Riano, p. 419)
Note: Under, Rule 15 of the 2020 Rules on Civil Procedure, a
motion to dismiss is a prohbited motion except when the
grounds upon which it is based are lack of jurisidiction of the court
over the subject matter, litis pendentia, res judicata and
prescription.
(Based on the illustrations given by Riguera [p. 475], plaintiff
may instead file a motion to withdraw complaint/petition.
Dismissal without Prejudice: The dismissal upon plaintiff’s motion is
without prejudice, except otherwise specified in the order of dismissal.
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Dismisssal of Actions in respect of a Class Suit: A class suit shall not be
dismissed or compromised without the approval of the court. The reason
is for the court to protect the interests of the members of the class.
Complaint Dismissed upon Plaintiff’s Motion, Effects on the
Counterclaim pleaded by the Defendant: If the counterclaim was
pleaded by the Defendant after service upon him of Plaintiff’s motion for
dimissal,21 the dismissal of the complaint shall likewise result to the
dismissal of the counterclaim.
If the counterclaim was pleaded by the Defendant before service upon him
of the Plaintiff’s motion for dismissal, the dismissal shall be limited to the
complaint. Hence, the dismissal of the complaint shall be without
prejudice to Defendant’s right to prosecute his counterclaim in the same
or in a separate action.
Note: The counterclaim is not dismissed, whether it is a
compulsory or a permissive counterclaim because the rule makes
no distinction.
If defendant within 15 days from notice of plaintiff’s motion for dismissal
manifests his preference to have his counterclaim resolved in the same
action, the court shall reslove the counterclaim even if it dismisses the
Plaintiff’s complaint. If defendant fails to make such manifestation, he can
prosecute his counterclaim only in a separate action.22
Rationale for this Rule: The passing of the 15-day period triggers
the finality of the court’s dismissal of the complaint and hence,
bars the conduct of further proceedings (i.e. the prosecution of
respondent’s counterclaim) in the same action. Thus, in order to
obviate this finality, the defendant is required to file the required
manifestation within the aforesaid period; otherwise, the
counterclaim may be prosecuted only in a separate action.23
DISMISSAL DUE TO FAULT OF PLAINTIFF
“If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his or her evidence in chief on the complaint, or to
prosecute his or her action for an unreasonable length of time, or to
comply with these Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the court’s own motion,
without prejudice to the right of the defendant to prosecute his or her
counterclaim in the same or in a separate action. This dismissal shall have
the effect of an adjudication upon the merits, unless otherwise declared by
the court.” (Section3, Rule 17)
This could happen say for the instance, if the defendant files an answer, the plaintiff files
a motion for dismissal, and then the defendant files an amended/supplemental answer with
counterclaims. The grant of the plaintiff's motion for dismissal will also result in the dismissal
of the counterclaims pleaded In the amended/supplemental answer.
22 Pinga v. Santiago, G.R. No. 170354, June 30, 2006.
23 Blay v. Baña, G.R. No. 232189, March 7, 2018, J. Perlas-Bernabe.
21
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[The above provision, which applies to actions, should not be
unqualifiedly applied to special proceedings, especially a
guardianship proceeding over a minor, wherein the court
should observe the “best interests of the minor” standard.]
(Riguera, p. 479)
A complaint may be dismissed even of the plaintiff has no desire to have
the same dismissed. The dismissal in this case will be through reasons
attributed to his fault, viz:
(a) Failure of Plaintiff to appear, without justifiable reasons, on the
date of the presentation of his evidence in chief;
Note: When there are no justifiable reasons that explain
the plaintiff’s absence during the presentation of his
evidence in chief, the court may dismiss the complaint.
The use of the word “may” denotes its discretionary
nature and operates to confer upon the court the discretion
to decide between the dismissal of the case on this
technicality.24
Also, this ground speaks of the initial presentation of
plaintiff’s evidence. Hence, failure of the plaintiff, despite
due notice to him and his counsel, to present his third and
last witness on the date scheduled for presentation of the
said witness shall deemed waiver of further presentation
of evidence and he is also deemed to have rested his case.
It would be erroneous for the court to dismiss the
complaint for failure to prosecute. (Riguera, p. 479)
Also, this shall not be confused with absence of the
plaintiff and his counsel, despite due notice, during the
date of the presentation of Defendant’s witness. The
Court’s proper action is not to dimiss Plaintiff’s complaint
for failure to prosecute. Instead, the Court should simply
consider the plaintiff to have waived his righ to object to
and/or cross-examine the witness presented.
(b) Failure to prosecute his action for unreasonable length of time
(also called “non prosequitur”)
Note: A dismissal under this ground means that the
plaintiff is chargeable with want of due diligence in failing
to proceed with reasonable promptness, or unwillingness
on the part of the plaintiff to prosecute.
[The fundamental test for non prosequitur
is whether, under the circumstances, the
plaintiff is chargeable with want of due
diligence in failing to proceed with
reasonable promptitude. There must be
unwillingness on the part of the plaintiff to
prosecute.]
24
Republic v. Diaz-Enriquez, 694 SCRA 102, March 20, 2013.
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The failure to prosecute must be for unreasonable length
of time. If the delay or the continuance sought is not for
unreasonable length of time, a dismissal on the basis of
non prosequitur is not proper.25
If the case is dismissed under this ground, the order of
dismissal is deemed a final order. The remedy of the
plaintiff is to appeal from the order of dismissal and not
to file a petition for certiorari.26
(c) Failure to comply with the Rules of Court
(d) Failure to comply with any order of the court
Note: The non-exercise of a right will not amount to a
violation of a court order. (Riguera, pp. 481-483)
Moto Proprio Dismissal by the Court: Under such circumstance, the
dismissal due to the fault of the plaintiff may be done by the court on its
own, or upon the motion filed by the defendant.
Effect of Dismissal under this Section: Dismissal shall have the effect of
an adjudication upon the merits, unless otherwise declared by the court.
Note: The dismisssal is without prejudice to the right of the
defendant
to prosecute his counterclaim in the same or in a separate
action.
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRDPARTY COMPLAINT
“The provisions of this Rule shall apply to the dismissal of any
counterclaim, crossclaim, or third-party complaint. A voluntary dismissal
by the claimant by notice as in Section 1 of this Rule, shall be made before
a responsive pleading or a motion for summary judgment is served or, if
there is none, before the introduction of evidence at the trial or hearing.”
(Section 4, Rule 17)
RULE 18
PRE-TRIAL
Pre-trial has not been defined by the rules. But jurisprudence defines pretrial as a [mandatory] procedural device used prior to the trial after the
last [responsive] pleading has been filed for the purpose of narrowing
down issues to be tried, securing stipulations as to matters and evidence to
Laurel v. Vardeleon, G.R. No. 202967, August 5, 2015.
Systems and Plan Integrator and Development Corporation v. Municipal Government of
Murcia, G.R. No. 217121, March 16, 2016.
25
26
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be heard, and taking all steps necessary for the disposition of the case. The
actions taken at the conference are made the subject of an order which
controls the future course of action.
Note: The purposes found above are considered as general
purposes, from which stemmed the specific purposes found in
Section 2 of this rule.
Effect of Failure to Conduct Pre-trial: The failure of the judge to
conduct a pre-trial conference in a civil case is contrary to elementary rules
of procedure. When the law or procedure is so elementary, not to know it
or to act as if one does not know it constitutes gross ignorance of the law.
Such ignorance of a basic rule in court procedure, as failing to conduct pretrial, amounts to gross ignorance and warrants a corresponding penalty.
(Riano, pp. 425-425)
[But if there is no pre- trial, and the parties failed to object, then there is
waiver. It is not a jurisdictional defect.]
WHEN CONDUCTED
“After the last responsive pleading has been served and filed, the branch
clerk of court shall issue, within five (5) calendar days from filing, a notice
of pre-trial which shall be set not later than sixty (60) calendar days from
the filing of the last responsive pleading.” (Section 1, Rule 18)
When to Conduct: After the last responsive pleading has been served and
filed.
Note: What happens when the period for filing the last responsive
pleading had lapsed and it was shown that defendant (answer) or
plaintiff (reply) was duly served with the initiatory pleadings?
Will the Court proceed with setting the case for pre-trial without
said responsive pleadings?
Duty of the Branch Clerk of Court: To issue a notice of pre-trial within
5 calendar days from the filing of the last responsive pleading.
When shall Pre-trial be Set: [a notice of pre-trial which shall set] Not
later than 60 calendar days from the filing of the last responsive pleading.
Note: Under the 2020 Rules of Civil Procedure, it is no longer the
duty of the plaintiff to move that the case be set for pre-trial. The
rule now made it incumbent upon the court, through the BCC to
set case for pre-trial.
The rule making it the duty of the branch clerk of court to set case
for pre-trial may be said to have been adopted from I.A.1
paragraph 2 of A.M. No. 03-1-09-SC (Guidelines to be Observed
by the Trial Court Judges and Clerk of Court in the Conduct of the
Pre-trial and Use of Deposition-Discovery Measures).
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It is possible that the amendment was introduced because the old
provision [which made it incumbent upon the plaintiff to set the
case for pre-trial] was used by the parties to delay the case. The
change is thus effected to comply with the speedy disposition of
cases.
The Rules of Civil Procedure is silent on when to terminate the pre-trial.
What the rules provide is that it shall be terminated promptly.
NATURE AND PURPOSE
“The pre-trial is mandatory and should be terminated promptly. 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 possibility of obtaining stipulations or admissions of facts and
of documents to avoid unnecessary proof;
d. The limitation of the number and identification of witnesses and
the setting of trial dates; 27
e. The advisability of a preliminary reference of issues to a
commissioner;
f. 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;
g. The requirement for the parties to:
1. Mark their respective evidence if not yet marked in the
judicial affidavits of their witnesses;
2. Examine and make comparisons of the adverse parties’
evidence vis-a-vis the copies to be marked;
3. Manifest for the record stipulations regarding the
faithfulness of the reproductions and the genuineness and
due execution of the adverse parties’ evidence;
4. Reserve evidence not available at the pre-trial, but only in
the following manner:
i.
For testimonial evidence, by giving the name or
position and the nature of the testimony of the
proposed witness;
ii.
For documentary evidence and other object
evidence, by giving a particular description of the
evidence.
No reservation shall be allowed if not made in the
manner described above.
Subject to the rule under Section 6(b), Rule 7 that only witnesses whose judicial affidavits
are attached to the pleading shall be presented by the parties during the trail, except if there
are meritorious reasons for the admission of additional witnesses.
27
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h. Such other matters as may aid in the prompt disposition of the
action.
The failure without just cause of a party and counsel to appear during pretrial, despite notice, shall result in a waiver of any objections to the
faithfulness of the reproductions marked, or their genuineness and due
execution.
The failure without just cause of a party and/or counsel to bring the
evidence required shall be deemed a waiver of the presentation of such
evidence.
The branch clerk of court shall prepare the minutes of the pre-trial, which
shall have the following format: (See prescribed form)” (Section 2, Rule
18)
May testimonial evidence not available at the pre-trial be presented
during the trial?
As a rule no, since the judicial affidavit should have been attached to the
party’s pleading in accordance with Section 6(b), Rule 7. However, such
presentation would be allowed provided that there are meritorious reasons
for the non-availability and provided that the party intending to present
such evidence has reserved the same during the pre-trial by giving the
name or position and the nature of the testimony of the porposed witness
in accordance with Section 2(g)(4)(i) of this rule.
May documentary and object evidecnce not available at the pre-trial
be presented during the trial?
As a rule no, it is deemed a waiver of the presentation of such evidence.
However, if there is just cause, the party may be allowed to do so provided
that he has reserved the documentary evidence during the pre-trial by
giving a particular description of the evidence in accordance with Section
2(g)(4)(ii) of this rule.
Prior to the 2020 Rules of Civil Procedure, A.M. No. 03-1-09-SC
already provided that no evidence shall be presented and offered
during the trial other than those that had been earlier identified and
pre-marked during the pre-trial. An exception to this is when the
court allows it for good cause, either because (a) it is in the interest
of justice or (b) it is a newly discovered evidence
Counsel and Party Failed to Appear at the Pre-trial Despite Due
Notice and Without Just Cause: Such failure will result in a waiver of
any objections to the faithfulness of the reproductions marked, or their
genuineness and due execution.
Party/Counsel Failed to Bring the Evidence Required: Such failure
shall be deemed waiver of the presentation of such evidence.
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DISCLOSURE OF ISSUES DURING PRE-TRIAL
Pre-trial is primarily intended to insure that the parties properly raise all
issues necessary to dispose of a case. The parties must disclose during pretrial all issue they intend to raise during the trial, except those involving
privileged communication or impeaching matters.
The court disallows a change in one’s defense after the termination of the
period of testimony and after the exhibits of both parties have already been
admitted by the court because the non-inclusion of the belated defense in
the pre-trial barred its consideration during the trial.
Parties are therefore, bound by the delimitation in the pre-trial
NOTICE OF PRE-TRIAL
“The notice of pre-trial shall include the dates respectively set for:
(a) Pre-trial;
(b) Court-Annexed Mediation; and
(c) Judicial Dispute Resolution, if necessary.
The notice of pre-trial shall be served on counsel, or on the party [if he]
or she has no counsel. The counsel served with such notice is charged with
the duty of notifying the party represented by him or her.
Non-appearance at any of the foregoing settings shall be deemed as nonappearance at the pre-trial and shall merit the same sanctions under
Section 5 hereof.” (Section 3, Rule 18)
1st Paragraph provides for the inclusions that must be found in a notice
of pre-trial. Hence, it shall now include the date when pre-trial is to be
conducted and date when parties must be referred to CAM. Notably, the
inclusion of the date for a JDR is to be included only if necessary. Under
the present rules (Section 9, Rule 18), the case may only be referred to JDR
if the judge [where the case was originally raffled] is convinced that
settlement is possible.
2nd Paragraph: The notice of pre-trial shall be served on the counsel of
the party, if the latter is represented by counsel. Otherwise, the notice shall
be served on the party himself. The counsel is charged with the duty of
notifying his/her client of the date, time and place of the pre-trial.
3rd Paragraph, Non-appearance at PTC, CAM and JDR: the rule under
Section 5 shall apply in case the parties failed to appear at any of the
foregoing settings.
APPEARANCE OF PARTIES and EFFECT OF FAILURE TO
APPEAR
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“It shall be the duty of the parties and their counsel to appear at the pretrial, court-annexed mediation, and judicial dispute resolution, if
necessary. The non-appearance of a party and counsel may be excused
only for acts of God, force majeure, or duly substantiated physical
inability.
A representative may appear on behalf of a party, but must be fully
authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and documents.” (Section 4, Rule 18)
“When duly notified, the failure of the plaintiff and counsel to appear
without valid cause when so required[,] pursuant to the next preceding
[S]ection, shall cause the dismissal of the action. The dismissal shall be
with prejudice, unless otherwise ordered by the court. A similar failure on
the part of the defendant and counsel shall be cause to allow the plaintiff
to present his or her evidence ex-parte within ten (10) calendar days from
termination of the pre-trial, and the court to render judgment on the basis
of the evidence offered.” (Section 5, Rule 18)
Who are Required to Appear?
Under Section 4 in reation to Section 5 of this rule the it shall be the duties
of the parties and their counsel, if duly notified, to appear at the pre-trial,
CAM and JDR, if necessary.
A representative may appear on behalf of the party, but he shall be fully
authorized in writing to:
(a) Enter into amicable settlement;
(b) Submit to alternative modes of dispute resolution; and
(c) Enter into stipulations or admissions of facts and of
documents.
An incomplete authority does not satisfy the requirements of the Rules and
should be deemed the equivalent of having no authority at all.
The written authority given to the representative must also be coupled with
an explanation showing a valid cause for a party’s non-appearance.
Does this rule on excusing non-appearance also applicable to Summary
Procedure?
➢ YES. While provisions of the Rules of Summary Procedure are silent
on the matter the rules on ordinary procedure apply suppletorily to
summary procedure. Thus, Rule 18, Sec. 4 and the spirit behind the
exception to personal appearance under the rules on pretrial is
applicable to the preliminary conference in cases under summary
procedure. (Macasaet vs Macasaet 2004)
How about in Small Claims cases?
➢ It has its own similar provision. Under Sec. 14, the appearance through
a representative must be for a valid cause. The representative of an
individual-party must not be a lawyer, and must be related to or nextofkin of the individual-party. Juridical entities shall not be represented
by a lawyer in any capacity. The representative must be authorized
under a Special Power of Attorney to enter into an amicable settlement.
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Common reason suggests that having a written authority but without a
justification for a party’s absence or vice versa would not be in accord with
the spirit of the rules. (Riano, p.429)
Requirements for Validity of the Authorization: It must be written. It
must also be a special power of attorney [under Art. 1878(3) of the Civil
Code.] There is not express requirement that the same be notarized, but in
practice, the Courts require that the SPA be notarized.
In case of a corporation, there must be a board resolution specifically
authorizing the representative to enter into an amicable settlement, to
submit to alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and documents.
Effects of Non-appearance at PTC, CAM and JDR [if necessary]
without valid cause:
▪
Plaintiff and Counsel, duly notified - action shall be dismissed
with prejudice, unless otherwise ordered by the court.
Since the dismissal of the action shall be with prejudice, unless
otherwise provided, the same shall have the effect of adjudication
on the merits, thus, final.
The remedy of the plaintiff, therefore, is to appeal [under Rule 41]
from the order of dismissal.
▪
Defendant and Counsel, duly notified – shall be cause to allow
plaintiff to present his evidence ex parte within 10 days from the
termination of the pre-trial, and the court to render judgment on
the basis of the evidence offered.
The order of the court allowing the plaintiff to present his evidence
ex parte does not dispose of the case with finality. Being merely
an interlocutory order, it may not be appealable.
The remedy of the defendant is to move for the reconsideration of
the order, and if the denial is tainted with grave abuse of
discretion, he may file a petition for certiorari.
Note: When the court does not impose the penalty
of dismissal or ex parte presentation of evidence,
the failure without just cause of a party and his
counsel to appear during the pre-trial, des pite
notice, shall result in a waiver of any objections
to the faithfulness of the reproductions marked, or
their genuineness and dues execution. (Riguera,
p. 489)
It is submitted that the “failure of the plaintiff and
the counsel to appear… shall cause the dismissal
of the action”, should mean failure of both
plaintiff and counsel to appear shall casue the
dismissal of the action. It would be harsh to
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dismiss the case where the plaintiff is present, but
his counsel is not around. A show-cause order to
the absent counsel is would have been the more
cautious and reasonable course of action. A
similar interpretation applies to the failure of the
defendant’s counsel to appear. However, if only
the counsel is present, the punitive sanctions shall
apply if the counsel is not armed with the requisite
authorization. (Riguera, p. 488)
Nothing in Rules of Court sanctions the dismissal
of the action/presentation of evidence ex-parte
when counsel for the plaintiff/defendant is absent
during pre-trial.
Non-appearance, When Excused: The non-appearance of a party and
counsel may be excused only for (a) acts of God, (b) force majeure, or (c)
duly substantiated physical inability.
PRE-TRIAL BRIEF
“The parties shall file with the court and serve on the adverse party, in
such manner as shall ensure their receipt thereof at least three (3)
calendar days before the date of the pre-trial, their respective pre-trial
briefs which shall contain, among others:
a.
b.
c.
d.
e.
A concise statement of the case and the reliefs prayed for;
A summary of admitted facts and proposed stipulation of facts;
The main factual and legal issues to be tried or resolved;
The propriety of referral of factual issues to commissioners;
The documents or other object evidence to be marked, stating the
purpose thereof;
f. The names of the witnesses, and the summary of their respective
testimonies; and
g. A brief statement of points of law and citation of authorities.
Failure to file the pre-trial brief shall have the same effect as failure to
appear at the pre-trial.” (Section 6, Rule 18)
Filing and Servie of Pre-trial Brief: The Pre-trial brief shall be filed with
court and served on the adverse party, in such a manner as shall ensure
their receipt thereof at least 3 calendar days before the date of the pre-trial.
Contents of a Pre-trial Brief: The parties’ respective pre-trial brief shall
contain, among others:
(a)
(b)
(c)
(d)
(e)
Concise statement of the case and the reliefs prayed for;
Summary of admittes facts and proposed stiupulation of facts;
Main factual and legal issues to be tried or resolved;
The propriety of referral of factual issues to the commisioners;
Documents or other object evidence to be marked, stating the
purpose thereof;
(f) Names of witnesses, and the summary of their respective
testimonies; and
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(g) Brief statement of points of law and citation of authorities.
Effect of the Failure to File the Pre-trial Brief: It shall have the same
effect as failure to appear at the pre-trial.
➢ Failure to file a pre-trial brief of the plaintiff shall have the same
effect as failure to appear at the pre-trial.
The complaint shall be dismissed with prejudice, unless
otherwise ordered by the court. The remedy of the
plaintiff, therefore, is to appeal [under Rule 41] from the
order of dismissal.
Note that the dismissal of a complaint for failure to file a
pre-trial brief is discretionary on the part of the court.
(Ramos v. Spouses Lavendia, 568 SCRA 239)
➢ Failure to file a pre-trial brief of the defendant shall have the
same effect as failure to appear at the pre-trial.
The plaintiff may present his evidence ex parte and the
court shall render judgment on the basis thereof. The
remedy of the defendant is to file a motion for
reconsideration showing that his failure is due to fraud,
accident, mistake, or excusable negligence. But the reason
that he is not represented by a counsel is not justifiable.
He chose at his own risk not to be represented by a
counsel. (Sauig v. Court of Appeals)
Legal Effect of Representation and Statements in the Pre-trial Brief:
Under A.M. No. 03-1-09-SC provides that the parties shall be bound by the
representation and statements in their respective pre-trial briefs. Such
representations and statements are in the nature of judicial admissions.
(Riano, p. 431)
PRE-TRIAL ORDER
“Upon termination of the pre-trial, the court shall issue an order within
ten (10) calendar days which shall recite in detail the matters taken up.
The order shall include:
(a)
(b)
(c)
(d)
(e)
(f)
An enumeration of the admitted facts;
The minutes of the pre-trial conference;
The legal and factual issue/s to be tried;
The applicable law, rules, and jurisprudence;
The evidence marked;
The specific trial dates for continuous trial, which shall be within
the period provided by the Rules;
(g) The case flowchart to be determined by the court, which shall
contain the different stages of the proceedings up to the
promulgation of the decision and the use of time frames for each
stage in setting the trial dates;
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(h) A statement that the one-day examination of witness rule and most
important witness rule under A.M. No. 03-1-09-SC (Guidelines for
Pre-Trial) shall be strictly followed; and
(i) A statement that the court shall render judgment on the pleadings
or summary judgment, as the case may be.
The direct testimony of witnesses for the plaintiff shall be in the form of
judicial affidavits. After the identification of such affidavits, crossexamination shall proceed immediately.
Postponement of presentation of the parties’ witnesses at a scheduled date
is prohibited, except if it is based on acts of God, force majeure or duly
substantiated physical inability of the witness to appear and testify. The
party who caused the postponement is warned that the presentation of its
evidence must still be terminated within the remaining dates previously
agreed upon.
Should the opposing party fail to appear without valid cause stated in the
next preceding paragraph, the presentation of the scheduled witness will
proceed with the absent party being deemed to have waived the right to
interpose objection and conduct cross-examination.
The contents of the pre-trial order shall control the subsequent
proceedings, unless modified before trial to prevent manifest injustice. ”
(Section 7, Rule 18)
The pre-trial order of the court is issued upon the termination of the pretrial. Under A.M. No. 03-1-09-SC, the pre-trial order shall be issued within
10 days after the termination of the pre-trial.
The admissions embodied in the pre-trial order are binding upon the parties
and conclusive upon them. (Heirs of Cohanap v. Regaña, 458 SCRA 741)
Implied issues are deemed included in the pre-trial order: A pre-trial
order is not intended to be a detailed catalogue of each and every issue that
is to be taken during the trial, for it is unavoidable that there are issues that
are impliedly included among those listed or that may be inferable from
those listed by necessary implication which are as much integral parts of
the pre-trial order as those expressly listed. (Riano, p.434)
One Day Examination of Witness Rule: A witness has to be fully
examined in one (1) day only. This rule shall be strictly adhered, subject
to the court’s discretion during trial on whether or not to extend the direct
and/or crossexamination for justifiable reasons. (Section 7(h), Rule 18)
Note: On the last hearing day allotted for each party, he is required
to make his formal offer of evidence after the presentation of his
last witness and the opposing party is required to immediately
interpose his objection thereto. Thereafter, the Judge shall make
the ruling on the offer of evidence in open court. However the
judge has the discretion to allow the offer of evidence in writing
in conformity with Section 35, Rule 132.
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Most Important Witness Rule: Where no settlement has been effected,
the court shall follow this rule, where the court shall determine the most
important witnesses, limit the number of such witnesses and require the
parties and/or counsels to submit to the branch clerk of court the names,
addresses and contact numbers of the witnesses to be summoned by
subpoena.
Questions are to be asked by the judge: During the conduct of the pretrial, the judge shall be the one to ask questions on issues raised by the
parties, and all questions or comments by the counsel or parties must be
directed to the judge to avoid hostilities between the parties. This is still in
accordance to A.M. No. 03-1-09-SC
COURT ANNEXED MEDIATION (CAM)
“After pre-trial and, after issues are joined, the court shall refer the
parties for mandatory court-annexed mediation.
The period for court-annexed mediation shall not exceed thirty (30)
calendar days without further extension.” (Section 8, Rule 18)
Referral to CAM is Mandatory. (Administrative Circular No. 20-2002)
Note: Prior to the amendment, the judge is mandated to refer the
the parties to Court Annexed Mediation through the unit of
Philippine Mediation Center. It is only after the CAM failed will
the case proceed with the JDR. After the conduct of the JDR and
parties still failed to reach an amicable settlement, the case shall
be reraffle to another court for pre-trial, except when the parties
agreed that the pre-trial be conducted by the JDR Judge, or by the
judge of the court where the case was originally raffled.
Illustration under the OLD Rules:
Case filed → Raffled to RTC 40 → Judge refer the
case/parties to mediation → Mediation failed → JDR to
be conducted by the RTC 40 as JDR Court → JDR Failed
→ Case re-raffled to another branch for mediation
Illustration under the NEW Rules:
Case filed → Raffled to RTC 40 → Judge Conduct Pretrial → Pre-trial Order shall contain a referral to
Mediation → Mediation failed → Judge convinced
convinced that case can still be settled, JDR Shall ensue
→ raffle the case to another branch for JDR → JDR
failed, case shall be raffled back to RTC 40 for trial
proper.
Period for Completion of CAM: Mediator shall have a period of not
exceeding 30 days to complete the mediation process. Such period shall be
computed from the date when the parties first appeared for the initial
conference as stated in the Order to appear.
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Under the 2020 Rules of Civil Procedure, the period of CAM can no longer
be extended.
Note: Rules on CAM provided that an extended period of another
thirty (30) days may be granted by the court, upon motion filed by
the Mediator, with the conformity of the parties. It is submitted
that the 2020 Rules of Civil Procedure shall apply.
What happens when the Mediation is Succesful?
The mediator will officially inform the court that mediation succeeded. The
court shall be furnished with either:
a. The original copy of the compromise agreement signed by the
parties and counsel for approval by the court.
Note: The agreement will be the basis of a rendition of a
judgment by compromise.
b. The parties shall instead submit a satisfaction of claims or a
mutual withdrawal of the case where compliance is forthwith
made. Thereafter, the court shall enter an order dismissing the
case.
What happens when the If Mediation Fails?
The mediator shall immediately issue a certificate of failed mediation
returning it to the court for further proceedings. The court then, shall upon
receipt of the notice of failure, refer the case for JDR (if necessary), or
proceed with the trial as previously scheduled.
Suspension of Periods: The period during which the case is undergoing
mediation shall be excluded from the regular and mandatory periods for
trial and rendition of judgment in ordinary cases and in cases under
summary proceeding.
Mediatable Cases: The following are the cases that may be reffered to
mediation:
1. All civil cases and the civil liability of criminal cases covered by
the Rule on Summary Procedure, including the civil liability for
violation of B.P. 22, except those which by law may not be
compromised;
2. Special proceedings for the settlement of estates;
3. All civil and criminal cases filed with a certificate to file action
issued by the Punong Barangay or the Pangkat ng
Tagapagkasundo under the Revised Katarungang Pambarangay
Law.
4. The civil aspect of Quasi-Offenses under Title 14 of the Revised
Penal Code;
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5. The civil aspect of less grave felonies punishable by correctional
penalties not exceeding 6 years imprisonment, where the offended
party is a private person;
6. The civil aspect of estafa, theft and libel;
7. All civil cases and probate proceedings, testate and intestate,
brought on appeal from the exclusive and original jurisdiction
granted to the first level courts under Section 33, par. (1) of the
Judiciary Reorganization Act of 1980;
8. All cases of forcible entry and unlawful detainer brought on appeal
from the exclusive and original jurisdiction granted to the first
level courts under Section 33, par. (2) of the Judiciary
Reorganization Act of 1980;
9. All civil cases involving title to or possession of real property or
an interest therein brought on appeal from the exclusive and
original jurisdiction granted to the first level courts under Section
33, par.(3) of the Judiciary Reorganization Act of 1980; and
10. All habeas corpus cases decided by the first level courts in the
absence of the Regional Trial Court judge, that are brought up on
appeal from the special jurisdiction granted to the first level courts
under Section 35 of the Judiciary Reorganization Act of 1980.
Cases NOT Subject of Mediation: The following cases shall not be
referred to CAM, viz:
1. Civil cases which by law cannot be compromised (Article 2035,
New Civil Code);
2. Other criminal cases not covered under paragraphs 3 to 6 above;
3. Habeas Corpus petitions;
4. All cases under Republic Act No. 9262 (Violence against Women
and Children); and
5. Cases
with
pending
application
for
Restraining
Orders/Preliminary Injunctions.
JUDICIAL DISPUTE RESOLUTION (JDR)
“Only if the judge of the court to which the case was originally raffled is
convinced that settlement is still possible, the case may be referred to
another court for judicial dispute resolution. The judicial dispute
resolution shall be conducted within a non-extendible period of fifteen (15)
calendar days from notice of failure of the court-annexed mediation.
If judicial dispute resolution fails, trial before the original court shall
proceed on the dates agreed upon.
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All proceedings during the court-annexed mediation and the judicial
dispute resolution shall be confidential.” (Section 9, Rule 18)
When to conduct JDR? Only if the judge of the court to which the case
was originally raffled is convinced that settlement is still possible
How may the JDR be conducted? The case may be reffered ro another
court for JDR.
The parties and/or their counsels shall appear before the JDR Judge during
the pre-set date for JDR indicated in the pre-trial order.
The JDR Judge will then conduct the JDR process as mediator, neutral
evaluator and/or conciliator in order to actively assist and facilitate
negotiations among the parties for them to settle their dispute. As mediator
and conciliator, the judge facilitates the settlement discussions between the
parties and tries to reconcile their differences. As a neutral evaluator, the
judge assesses the relative strengths and weaknesses of each party's case
and makes a non-binding and impartial evaluation of the chances of each
party's success in the case. On the basis of such neutral evaluation, the
judge persuades the parties to a fair and mutually acceptable settlement of
their dispute.
The JDR judge shall not preside over the trial of the case when the parties
did not settle their dispute at JDR.
Rationale for the Rule: Parties will be more spontaneous once
they are assured that the JDR judge will not be the one to try the
case. This is so because, the JDR judge may have elicited
confidential information that may create bias and partiality that
could affect the judgment.
Note: Under the JDR Rules, the parties may file a joint written
motion requesting that the JDR Court be the one to preside over
the Pre-trial proper and the trial proper, as well.
The cases that can and cannot be subject of the JDR are the same cases as
those of the CAM.
Period to Conduct JDR: The judicial dispute resolution shall be
conducted within a non-extendible period of fifteen (15) calendar days
from notice of failure of the court-annexed mediation.
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CONFIDENTIALITY OF CAM AND JDR PROCEEDINGS
Any and all matters discussed or communications made,
including requests for mediation, and documents presented during
the mediation proceedings before the Philippine Mediation Center
or the JDR proceedings before the trial judge, shall be privileged
and confidential, and the same shall be inadmissible as evidence
for any purpose in any other proceedings. However, evidence or
information that is otherwise admissible does not become
inadmissible solely by reason of its use in mediation or
conciliation.
Further, the JDR judge shall not pass any information obtained
in the course of conciliation and early neutral evaluation to the
trial judge or to any other person. This prohibition shall include
all court personnel or any other person present during such
proceedings. All JDR conferences shall be conducted in private.
JUDGMENT AFTER PRE-TRIAL
“Should there be no more controverted facts, or no more genuine issue as
to any material fact, or an absence of any issue, or should the answer fail
to tender an issue, the court shall, without prejudice to a party moving for
judgment on the pleadings under Rule 34 or summary judgment under Rule
35, motu proprio include in the pre-trial order that the case be submitted
for summary judgment or judgment on the pleadings, without need of
position papers or memoranda. In such cases, judgment shall be rendered
within ninety (90) calendar days from termination of the pre-trial.
The order of the court to submit the case for judgment pursuant to this
Rule shall not be the subject to appeal or certiorari.” (Section 10, Rule
18)
Under the 2020 Rules of Civil Procedure, the court can make its own
determination whether or not to render judgment on the pleadings or
summary judgment.
Reason for the Rule: Compliance with Speedy Disposition of
Cases. By rendering a judgment motu proprio, the court thereby
dispenses with further trial.
In such cases, judgment shall be rendered within 90 calendar days from
termination of the pre-trial.
A party is not allowed to appeal the court's determination to the Court of
Appeals, such determination being merely interlocutory. But if there is
later on judgment on the case, then it can be assailed by appeal such
judgment being an adjudication on the merits.
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This is without prejudice to a party moving for judgment on the pleadings
or summary judgment.
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RULE 19
INTERVENTION
Intervention is a remedy by which a third party, not originally impleaded
in the proceedings, becomes a litigant therein to enable him/her/it to
protect/preserve a right or interest which may be affected by such
proceedings.
It is a proceeding in a suit or action by which a third person is permitted
by the court to make himself a party, either joining the plaintiff or
defendant, or demanding something adverse to both of them.
Purpose: To enable such third party to protect or preserve a right or
interest being actual, material, direct, and immediate, not simply
contingent and expectant.
Discretionary: Intervention is not a matter o right, but may be permitted
when the applicant shows facts which satisfy the requirements of the
statute authorizing intervention.
The allowance/disallowance of a motion for intervention rests on the
sound discretion of the court after consideration of the appropriate
circumstances. It is not an absolute right. (Riano, pp.330-331)
Not an independent proceeding: Intervention is ancillary and
supplemental to an existing litigation and insubordination to the main
proceeding. It cannot alter the nature of the action and the issues already
joined; hence, such intervention will not be alowed where it would enlarge
the issues in the action and expand the scope of the remedies.
WHO MAY INTERVENE
“A person who has a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or is so situated
as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave
of court, be allowed to intervene in the action. The court shall consider
whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not the
intervenor’s rights may be fully protected in a separate proceeding.”
(Section 1, Rule 19)
Under the above rule, the intervention shall be allowed when a person has:
(See also p. 496, Riguera for illutsration per numbering)
1.
2.
3.
4.
Legal interest in the matter in litigation; or
Legal interest in the success of any of the [arties; or
Interest against both parties; or
When he is so situated as to be adversely affected by a distribution
or disposition of property in the custody of the court or an officer
thereof.
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Legal interest: The legal interest under this rule must be one that is actual,
material, direct and of an immediate character, so that intervenor will
either gain or lose by the direct legal operation of the judgment.
Illustration: When the title to the property had been already
declared void by final judgment, intervention will not revive or
reinstate the movant’s title derived from the title declared void
because there is no more legal interest in the matter in litigation.
(Riano, p. 333 for more illustrations)
TIME TO INTERVENE
“The motion to intervene may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties” (Section 2, Rule
19)
The motion to intervene may be filed at any time before rendition of
judgment by the trial court. Hence, intervention after the trial and decision
can no longer be permitted.
Note: Motion for Intervention is a litigious motion.
However, Section 5(ix), Rule 15 provides for an exception, such as when
the intervenor is an indispensable party. As held in Rodriguez v. Court of
Appeals, intervention may be allowed after judgment when the rights of
the intervenor arise only after the finality of the judgment. This is
especially true when the rights of the intervenor and the rights of one of
the parties are intimately connected and intertwined.
Hence, Interventions will be allowed even after judgment to afford the
indispensable parties, who have not been impleaded, the right to be heard
even after the decision has been rendered by the trial court, when the
petition for review of the judgment has already been submitted for decision
before the Supreme Court, and even where the assailed order has already
become final and executory.
It must be remembered that indispensable parties can be impleaded or may
intervene anytime or at any stage of the proceedings. This is because there
can no final determination of the case without the indispensable parties.
(Pacana-Contreras v Rovila Water Supply)
Note: In Director of Lands vs. Court of Appeals, intervention was
allowed even when the petition for review of the assailed
judgment was already submitted for decision in the Supreme
Court. Recently in Mago vs. Court of Appeals, the Court granted
intervention despite the case having become final and executory.
o
Director of Lands vs. Court of Appeals - motions for
intervention were filed when the case had already reached
the Supreme Court, it was declared: It is quite clear and
patent that the motions for intervention filed by the
movants at this stage of the proceedings where trial had
already been concluded x x x and on appeal x x x the same
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was affirmed by the Court of Appeals and the instant
petition for certiorari to review said judgment is already
submitted for decision by the Supreme Court, are
obviously and manifestly late, beyond the period
prescribed under x x x Section 2, Rule 12 of the Rules of
Court. But Rule 12 of the Rules of Court, like all other
Rules therein promulgated, is simply a rule of procedure,
the whole purpose and object of which is to make the
powers of the Court fully and completely available for
justice. The purpose of procedure is not to thwart justice.
Its proper aim is to facilitate the application of justice to
the rival claims of contending parties. It was created not
to hinder and delay but to facilitate and promote the
administration of justice. It does not constitute the thing
itself which courts are always striving to secure to
litigants. It is designed as the means best adopted to obtain
that thing. In other words, it is a means to an end.
PLEADINGS-IN-INTERVENTION
“The intervenor shall file a complaint-inintervention if he or she asserts a
claim against either or all of the original parties, or an answer-inintervention if he or she unites with the defending party in resisting a claim
against the latter.” (Section 3, Rule 19)
Pleadings to be filed by the Intervenor in relation to his intervention:
➢ Complaint for Intervention -intervenor asserts a claim against
either or all ofbthe original parties; or
➢ Answer-in-Intervention – if intervenor unites with the defending
party in resisting a claim against the latter.
Unlawful Detainer and Forcible Entry: Intervention is a prohibited
pleading under Section 13, Rule 70 of the Rules of Court.
Summary Proceedings: Take note that Intervention prohibited in
summary proceedings. All interventions are discretionary as to the court.
There is no mandatory intervention.
Execution Proceedings: Intervention is also not available in execution
proceedings, the proper remedy being a third-party claim.
ANSWER TO COMPLAINT-IN-INTERVENTION.
“The answer to the complaintin-intervention shall be filed within fifteen
(15) calendar days from notice of the order admitting the same, unless a
different period is fixed by the court.” (Section 4, Rule 19)
When filed? It shall be filed within 15 calendar days from notice of the
order admitting the complaint-in-intervention, unless a different period is
fixed by the court.
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Note: It appears that a shorter period may be fixed. In Lim v.
National Power Corporation28, a 10-day period was fixed by the
trial court and the default order arising therefrom was upheld by
the Supreme Court.
Effects of Failure of the Original Party to File an Asnwer: If the
original party fails to file an answer to the complaint-in-intervention, the
Court can declare him in default with respect to such complaint since the
filing of such an answer is mandatory. (Riguera, p. 502)
Is an order denying a motion for leave to intervene appealable? If so
what is the period for appealing the order? Yes, an order denying a
motion for leave to intervene may be appealed. The appeal period would
be 30ys from notice of the order, taken by filing a notice of appeal and a
record on appeal.
However, if at the time it denied the motion for leave, the court had already
rendered judgment and has thus disposed of the case, the appeal period
would be 15 days taken by filing a notice of appeal alone. (Foster-Gallego
v. Spouses Galang29).
28
29
G.R. No. 178789, November 14, 2012.
G.R. No. 130228, July 27, 2004.
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RULE 20
CALENDAR OF CASES
CALENDAR OF CASES
“The clerk of court, under the direct supervision of the judge, shall keep a
calendar of cases for pre-trial, for trial, those whose trials were adjourned
or postponed, and those with motions to set for hearing. Preference shall
be given to habeas corpus cases, election cases, special civil actions, and
those so required by law.” (Section 1, Rule 20)
Who shall keep a calendar of cases? The Clerk of Court under the direct
supervision of the judge.
Preference on the calendar of cases: preference shall be given to Habeas
Corpus cases, Election Cases, Special Civil Actions, and those so required
by law.
ASSIGNMENT OF CASES
“The assignment of cases to the different branches of a court shall be done
exclusively by raffle. The assignment shall be done in open session of
which adequate notice shall be given so as to afford interested parties the
opportunity to be present.” (Section 2, Rule 20)
A case, once raffled to a branch, belongs to that branch uless re-raffled or
otherwise transferred to another branch in accordance with established
procedure. The primary responsibility over the case belongs to the
presiding judge of the brnach to which it has been raffle/re-raffled or
assigned.
At present, with the implementation of the e-court system last 2017, the
raffle of cases has been done electronically.
Note: Cases falling within the jurisdiction of the special
commercial court or family court would be assigned to these courts
without need of raffle, unless two or more branches have been designated
as speacial courts, in which case it shall be raffled only among them.
Limited Raffle. (Riguera, p. 506)
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RULE 21
SUBPOENA
SUBPOENA AND SUBPOENA DUCES TECUM
Subpoena is a process directed to a person requiring him or her 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 or her
deposition. It may also require him to bring with him or her any books,
documents, or other things under his or her control, in which case it is
called a subpoena duces tecum. (Section 1, Rule 21)
BY WHOM ISSUED
“The subpoena may be issued by –
a. the court before whom the witness is required to attend;
b. the court of the place where the deposition is to be taken;
c. the officer or body authorized by law to do so in connection with
investigations conducted by said officer or body; or
d. Any Justice of the Supreme Court or the Court of Appeals in any
case or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer
shall examine and study carefully such application to determine whether
the same is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life imprisonment
and who is confined in any penal institution shall be brought outside the
penal institution for appearance or attendance in any court unless
authorized by the Supreme Court. (2a)” (Section 2, Rule 21)
Officers/Body Authorized by Law to issue Subpoenas in Connection
with Investigations Conducted by Said Officer or Body [Section 2(c)]:
a. An investigating prosecutor for purposes of preliminary
investigation. (Section 3(a), Rule 112 of the Rules on Criminal
Procedure)
b. The Commission as found under Section 3, Rule 32 of the Rules
of Civil Procedure
c. The NBI has the power to issue subpoena for the appearance of
any person for investigation or production of documents, through
its officers from the ranks of Regional Director to Director.
[Section 4(b), R.A. 10867]
Subpoena to prisoners: When application for a subpoena to a prisoner is
made, the judge or officer shall examine and study carefully such
application to determine whether the same is made for a valid purpose.
[Section 2 pargraph 2]
No prisoner sentenced to death, reclusion perpetua, or life imprisonment
and who is confined in any penal institution shall be brought outside the
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penal institution for appearance or attendance in any court unless
authorized by the Supreme Court. [Section 2 pargraph 3]
Further, a detention prisoner cannot be compelled to attend under a
subpoena if no permission of the court in which his case is pending was
obtained. (Section 10, Rule 21)
Subpoena duces tecum: A subpoena which requires a person to bring
with him or her any books, documents, or other things under his or her
control.
Subpoena ad testificandum: A subpoena which requires a person to
attend and to testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the taking of his or
her deposition.
FORM AND CONTENTS
“A subpoena shall state the name of the court and the title of the action or
investigation, shall be directed to the person whose attendance is required,
and in the case of a subpoena duces tecum, it shall also contain a
reasonable description of the books, documents or things demanded which
must appear to the court prima facie relevant.” (Section 3, Rule 21)
See table below
QUASHING A SUBPOENA
“The court may quash a subpoena duces tecum upon motion promptly
made and, in any event, at or before the time specified therein if it is
unreasonable and oppressive, or the relevancy of the books, documents or
things does not appear, or if the person in whose behalf the subpoena is
issued fails to advance the reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on the ground that the
witness is not bound thereby. In either case, the subpoena may be quashed
on the ground that the witness fees and kilometrage allowed by these Rules
were not tendered when the subpoena was served.” (Section 4, Rule 21)
See table below
form and contents
(Section 3, Rule 21)
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SUBPOENA DUCES
TECUM
a. shall state the name of
the court and the title
of the action or
investigation
SUBPOENA AD
TESTIFICANDUM
a. shall state the name
of the court and the
title of the action or
investigation; and
b. shall be directed to the
person whose
attendance is required;
and
b. shall be directed to
the person whose
attendance is
required.
103
c. shall contain a
reasonable description
of the books,
documents, or things
demanded which must
appear to the court
prima facie relevant.
The court may quash a
subpoena duces tecum upon
motion promptly made
and, in any event, at or The court may quash a
before the time specified subpoena ad testificandum
on the ground:
therein if:
quashing a subpoena
(Section 4, Rule 21)
a) it is unreasonable
and oppressive or
b) the relevancy of the
books, documents
or things does not
appear, or
c) if the person in
whose behalf the
subpoena is issued
fails to advance the
reasonable cost of
the
production
thereof.
d) the witness fes and
kilometrage
allowed by the
Rules of Court were
not tendered when
the subpoena was
served. (Section 6
par. 2, Rule 21)
a. That the witness
in not bound
thereby; or
b. The witness fees
and kilometrage
allowed by the
Rules were not
tendered when the
subpoena
was
served.
Note: for (a), under
Section 10, Rule 21, a
witness is not compelled
to attend by virtue of the
service of a subpoena if he
resides more than 100 KM
from the place where he is
to testify by the ordinary
course of travel.
Section 5. Subpoena for depositions. – Proof of service of a notice to take
a deposition, as provided in [S]ections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance of subpoenas for the
persons named in said notice by the clerk of the court of the place in which
the deposition is to be taken. The clerk shall not, however, issue a
subpoena duces tecum to any such person without an order of the court.
(5)
SERVICE OF SUBPOENA
“Service of a subpoena shall be made in the same manner as personal or
substituted service of summons. The original shall be exhibited and a copy
thereof delivered to the person on whom it is served. The service must be
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made so as to allow the witness a reasonable time for preparation and
travel to the place of attendance.
Costs for court attendance and the production of documents and other
materials subject of the subpoena shall be tendered or charged
accordingly.” (Section 6, Rule 21)
Section 14(b), Rule 13 expressly provided that a subpoena, among others,
must be served personally or by registered mail when allowed, and shall
not be served electronically, unless express permission is granted by the
court. Hence, the cited rule gives the impression that a subpoena may be
served by registered mail or by electronic means if express permission is
granted by the court… (confusing discussion by Riguera, p. 510-511,
please see)
PERSONAL APPEARANCE IN COURT
“A person present in court before a judicial officer may be required to
testify as if he or she were in attendance upon a subpoena issued by such
court or officer.” (Section 7, Rule 21)
COMPELLING ATTENDANCE
“In case of failure of a witness to attend, the court or judge issuing the
subpoena, upon proof of the service thereof and of the failure of the
witness, may issue a warrant to the sheriff of the province, or his or her
deputy, to arrest the witness and bring him or her before the court or
officer where his or her attendance is required, and the cost of such
warrant and seizure of such witness shall be paid by the witness if the court
issuing it shall determine that his or her failure to answer the subpoena
was willful and without just excuse.” (Section 8, Rule 21)
The warrant to be issued herein is what is commonly known as the bench
arrant. As exception to this provision, see Section 10, Rule 21.
CONTEMPT
“Failure by any person without adequate cause to obey a subpoena served
upon him or her shall be deemed a contempt of the court from which the
subpoena is issued. If the subpoena was not issued by a court, the
disobedience thereto shall be punished in accordance with the applicable
law or Rule.” (Section 9, Rule 21)
If the person directed by the court to appear before it falls within the
contemplation of Section 10, Rule 21, then the court may not issue a bench
warrant to compell him/her to attend and testify. Such being an exception
to this rule on issuance of bench warrant.
EXCEPTIONS
“The provisions of [S]ections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred (100) kilometers from his or
her residence to the place where he or she is to testify by the ordinary
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course of travel, or to a detention prisoner if no permission of the court in
which his or her case is pending was obtained.” (Section 10, Rule 21)
This is what is known as the viatory right of a witnes, whereas, he may
not be compelled to attend in court under a subpoena if he resides more
than 100 KM from his residence to the place where he is to testifyby
ordinary course of travel. Howeve, this right is not available in criminal
cases
May the viatory right be invoked against a subpoena duces tecum? It
is submitted that the said right may not be invoked against a subpoena
duces tecum. Section 10 of this rule speaks of a witness who resides more
than 100km from his residence to the place where he is to testify, evidently
referring to subpoena ad testificandum.
The first paragraph of Section 4, Rule 21which provides for the grounds
of quashing a subpoena duces tecum does not mention the viatory right
unlike the second paragraph which provides for the grounds of quashing a
subpoena ad testificandum.
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RULE 22
COMPUTATION OF TIME
Section 1. How to compute time. – In computing any period of time
prescribed or allowed by these Rules, or by order of the court, or by any
applicable statute, the day of the act or event from which the designated
period of time begins to run is to be excluded and the date of performance
included. If the last day of the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in the place where the court sits,
the time shall not run until the next working day. (1)
Section 2. Effect of interruption. – Should an act be done which effectively
interrupts the running of the period, the allowable period after such
interruption shall start to run on the day after notice of the cessation of the
cause thereof.
The day of the act that caused the interruption shall be excluded in the
computation of the period. (2)
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RULE 33
DEMURRER TO EVIDENCE
DEMURRER TO EVIDENCE
“After the plaintiff has completed the presentation of his or her evidence,
the defendant may move for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. If his or her motion
is denied, he or she shall have the right to present evidence. If the motion
is granted but on appeal the order of dismissal is reversed, he or she shall
be deemed to have waived the right to present evidence.” (Section 1, Rule
33)
A demurrer to evidence is availed of by the defendant after the plaintiff
has completed the presentation of his/her evidence.
G.R. No. 174673January 11, 2016
REPUBLIC vs. FE ROA GIMENEZ
In Oropesa v. Oropesa where this court affirmed the dismissal of the case on demurrer to evidence due to
petitioner’s non-submission of the Formal Offer of Evidence, demurrer to evidence was defined as:
"an objection by one of the parties in an action, to the effect that the evidence which his adversary produced
is insufficient in point of law, whether true or not, to make out a case or sustain the issue." We have also held
that a demurrer to evidence "authorizes a judgment on the merits of the case without the defendant having to
submit evidence on his part, as he would ordinarily have to do, if plaintiff’s evidence shows that he is not
entitled to the relief sought."
This court has laid down the guidelines in resolving a demurrer to evidence:
A demurrer to evidence may be issued when, upon the facts and the law, the plaintiff has shown no right to
relief. Where the plaintiff’s evidence together with such inferences and conclusions as may reasonably be
drawn therefrom does not warrant recovery against the defendant, a demurrer to evidence should be sustained.
A demurrer to evidence is likewise sustainable when, admitting every proven fact favorable to the plaintiff
and indulging in his favor all conclusions fairly and reasonably inferable therefrom, the plaintiff has failed to
make out one or more of the material elements of his case, or when there is no evidence to support an
allegation necessary to his claim. It should be sustained where the plaintiff’s evidence is prima facie
insufficient for a recovery.
Furthermore, this court already clarified what the trial court determines when acting on a motion to dismiss
based on demurrer to evidence:
What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is
entitled to the relief based on the facts and the law. The evidence contemplated by the rule on demurrer is
that which pertains to the merits of the case, excluding technical aspects such as capacity to sue. . . .
It is a motion to dismiss filed by the defendant after the plaintiff has
completed the presentation of his evidence on the ground that upon the
facts and the law, the plaintiff has shown no right to relief. (Riguera, p.
575) It is an objection by one of the parties in an action, to the effect that
the evidence which his adversary produced is insufficient to make out a
case or sustain the issue. (Riano, p. 467)
Note: The plaintiff is considered to have completed the
presentation of his evidence (or rested its case) when the
court already ruled on whether to admit or not the pieces of
evidence formally offered by the plaintiff. (not sure if may
jurisprudence, but in one hearing, Justice Ampuanreminded
a defendant who insisted on filing his Demurrer to Evidence
[in open court same day plaintiff manifested his intention to
FOE his evidence in writing] even if the Court had yet to rule
on the written formal offer of evidence [2 thick folders
kasi yung documents na i-offer nya and umabot ng
AAA
with submarkings yung exhibits] of the plaintiff.)
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Grounds for a Demurrer to Evidence: the defendant may move for the
dismissal om the ground that upon the facts and the law, the plaintiff has
shown no right to relief. This ground is equivalent to insufficiency of
evidence.
Note: It must be remembered that res judicata cannot be a ground
for sustaining demurrer to evidence. Res judicata present themselves
even before the presentation of evidence, not after the plaintiff has
rested its case.
Also, when the complaint states no cause of action, the defendant
may file a demurrer to evidence after the plaintiff has rested its case.
This is so since lack of cause of action applies in a situation where
evidence failed to prove the cause of action alleged in the
pleading. (Riano, p. 171-172 on Causes of Action)
Effect of Denial of the Demurrer to Evidence: The defendant
shall (still) have the right to present his evidence. Hence, the court denying
the demurrer to evidence shall set the date for the reception of evidence in
chief. It should not proceed to grant the relief demanded by the plaintiff.
Note: This shall be compared in criminal cases wherein the denial
of accused’s demurrer to evidence (without leave of court) results to
the waiver of the latter’s presentation of his/her evidence.
It shall be remembered that the Rules of Court under Section 1, Rule
1 “shall not apply to election cases, land registration, naturalization
and insolvency proceeding x x x.” Hence, a party who files a
demurrer to evidence that is subsequently denied in an election case
cannot insist on the right to present evidence. Clearly, the provision
of the Rules of Court governing demurrer to evidence does not apply
to an election case.
Effect of Granting Demurrer to Evidence: If the demurrer to evidence
is granted, the case shall be dismissed. However, if the order granting the
demurrer is reversed on appeal, the defendant loses his right to present
evidence. Hence, the appellate court should render judgment on the basis
of the evidence submitted by the plaintiff.
Note: In case the order of dismissal was reversed on appeal,
defendant is deemed to have waived the right to present evidence.
Appellate Court shall forthwith render judgment for the plaintiff on
the basis of his evidence alone. It is erroneous for the appellate court
to remand the case.
To remand the case for the defendant to present evidence before the
court a quo would be tocircumvent the provision of Section 1, Rule
33 which provides that the defendant is deemed to have waived the
right to present evidence. (Riguera, p. 576 and p. 578)
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ACTION ON DEMURRER TO EVIDENCE
“A demurrer to evidence shall be subject to the provisions of Rule 15.
The order denying the demurrer to evidence shall not be subject of an
appeal or petition for certiorari, prohibition or mandamus before
judgment.” (Section 2, Rule 33)
1st Paragraph: Demurrer to Evidence is treated as a litigious motion.
Thus, the procedure in Rule 15 on litigious motion shall apply. (Matrix of
Amendments, Judge Gito)
Hence, in accordance with Section 5(c), Rule 33, there must proof that the
opposing party had been served with the demurrer to evidence.
Thereafter, the opposing party shall file his opposition thereto within
5 calendar days from receipt thereof. No other submissions shall be
considered by the court in the resolution of the demurrer. The Court shall
then resolve the demurrer to evidence within 15 calendar days from its
receipt of the opposition thereto, or upon expiration of the period to file
such opposition.
Note: What should be resolved in a motion to dismiss based on a
demurrer to evidence is whether the plaintiff is entitled to the relief
based on the facts and the law. The “facts” referred to should include
all the means sanctioned under the Rules of Court in ascertaining
matters in judicial proceedings. These include judicial admissions,
matters of judicial notice, stipulations made during the pre-trial and
trial, admissions, and presumptions, the only exclusion being the
defendant’s evidence. (Riguera, p. 578)
Be it noted that under Section 6, Rule 15, the Court may call a hearing on
the demurrer to evidence.
2nd Paragraph: An order denying a demurrer to evidence is interlocutory
and is, therefore, not appealable. (Riano, p. 469)
Ordinarily, where the order was rendered with grave abuse of discretion
or in an oppressive exercise of judicial authority, the defendant may file
a Petition for Certiorari under Rule 65. However, paragraph two of this
section expressly prohibits the filing of the same before judgment.
Note: the remedy, then, is to proceed to trial. If defendant loses, he
may appeal the judgment and include in the assignment of errors the
denial of the demurrer to evidence by the court a quo.
DISTINGUISH DEMURRER TO EVIDENCE IN A CIVIL
ACTION FROM CRIMINAL ACTION
(found this on my Notes sa Crim Procedure and I used Tan, Riano and
Herrera that time so not sure anong material dun sa 3 ko ‘to nakuha)
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CIVIL ACTION
CRIMINAL ACTION
Anchored upon the failure of the
plaintiff to show that he is entitled Predicated upon prosecution’s insufficiency of
Ground/s
to relief, upon the facts and the
evidence.
law
When to
file
After the plaintiff/prosecution rested its case
Manner of
Requires no prior leave of court
filing
May be filed with or without leave of court
Effects
when
denied
When the demurrer was filed without leave of
court and the same was denied, the accused is
The defendant may still present
deemed to have waived his right to present his
his/her evidence
evidence. The case shall now be submitted
for judgment.
Effects
when
granted
Plaintiff may appeal and if the
dismissal is reversed, the
defendant is deemed to have
waived his right to present his
evidence.
The grant of the demurrer is tantamount to an
acquittal. Hence, no appeal is allowed.
It is the defendant who invokes
for the demurrer to evidence by
Who
moving for the dismissal of the The Court may motu propriodismiss the action
invoked
action/complaint against him.
after giving the prosecution an opportunity to
demurrer
be heard.
to evidence
The Court cannot do so on its
own.
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RULE 34
JUDGMENT ON THE PLEADINGS
JUDGMENT ON THE PLEADINGS (Riano, pp. 496-497)
“Where an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party’s pleading, the court may, on
motion of that party, direct judgment on such pleading. However, in
actions for declaration of nullity or annulment of marriage or for legal
separation, the material facts alleged in the complaint shall always be
proved.” (Section 1, Rule 34)
A judgment on the pleadings is a judgment based solely on the relief
prayed for in the complaint without plaintiff adducing any evidence.
Question for Clarification: Is judgment on the pleadings available
to defendants only? Diba plaintiff also has to file an answer when
the defendant filed a permissive counterclaim.
It is appropriate when an answer to a claim fails to tender an issue, or
otherwise admits the material allegations of the adverse party’s pleading.
An answer fails to tender an issue if it does not comply with the
requirements of a specific denial resulting in the admission of the material
allegations of the adverse party’s pleadings. As such, it is a judgment that
is exclusively based on the submitted pleadings without the introduction
of evidence as the factual issue remains uncontroverted.30 A trial, in this
case, is dispensed with.
Note: In First Leverage and Services Group, Inc. v. Solid Builders,
Inc., the Court held that where a motion for judgment on the
pleadings is filed, the essential question is whether there are
issues generated by the pleadings. In a proper case for judgment
on the pleadings, there is no ostensible issue at all because of the
failure of the defending party’s answer to raise an issue. The
answer would fail to tender an issue, of course, if it does not deny
the material allegations in the complaint or admits said material
allegations of the adverse party’s pleadings by confessing the
truthfulness thereof and/or omitting to deal with them at all.
Note further that one who prays for judgment on the pleadings
without offering proof as to the truth of his own allegations, and
without giving the opposing party an opportunity to introduce
evidence, impliedly admits the truth of all the material and
relevant allegations of the opposing party, and to rest his motion
for judgment on those allegations taken together with such of his
own as are admitted in the pleadings. (Riguera, p. 583)
When in appears that not all the material allegations of the complaint were
admitted in the answer, because some were either denied or disputed, and
the defendant has set up certain special defenses which, if proven, would
30Government
Service Insurance System v. Prudential Guarantee and Assurance, Inc.,
G.R. No. 165585, November 20, 2013
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have an effect of nullyfying plaintiff’s main cause of action, judgment on
the pleading cannot be rendered.31
Non-applicability: A judgment on the pleadings is not allowed in actions
for declaration of nullity or annulment of marriage or for legal separation.
It is also inaplicable in unliquidated damages as well as insufficiency of
fact, whereas the remedy on the latter is amendment. (Riguera, p. 582;
Own notes, 2018)
ACTION ON MOTION FOR JUDGMENT ON THE PLEADINGS
“The court may motu proprio or on motion render judgment on the
pleadings if it is apparent that the answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party’s pleadings.
Otherwise, the motion shall be subject to the provisions of Rule 15 of these
Rules.
Any action of the court on a motion for judgment on the pleadings shall
not be subject of an appeal or petition for certiorari, prohibition or
mandamus.” (Section 2, Rule 34)
Motu proprio, judgment on the pleadings: Under the 2020 Rules of
Civil Procedure, the Court may now motu proprio render a judgment on
the pleadings if it is apparent that the answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party’s pleadings.
Note: Under Section 10, Rule 18, the Court may also motu proprio
include in the pre-trial order that the case be submitted for judgmnt
on the pleadings.
By way of motion: When a plaintiff wishes that a judgment on the
pleadings be rendered, he may, on motion, ask for the same in accordance
with Rule 15.
Note: Section 5, Rule 15 treats a motion for judgment on the
pleadings as a litigious motion.
Prohibition on filing an appeal, or petition for certiorari, prohibition
or mandamus: The prohibition applies only on the order of the Court
denying the motion for judgment on the pleadings or on the order of the
court submitting the case for judgment on the pleadings. (Riguera, p. 583)
31
Philippine National Bank v. Aznar. G.R. No. 17105, May 30, 2011
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RULE 35
SUMMARY JUDGMENT
(Riano, pp. 498-500)
SUMMARY JUDGMENT FOR CLAIMANT or DEFENDING
PARTY
“A party seeking to recover upon a claim, counterclaim, or cross-claim or
to obtain a declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits, depositions or
admissions for a summary judgment in his or her favor upon all or any
part thereof.” (Section 1, Rule 35)
“A party against whom a claim, counterclaim, or cross-claim is asserted
or a declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his or her
favor as to all or any part thereof.” (Section 2, Rule 35)
A summary judgment is a judgment rendered by a court without a fullblown trial, if the court finds that there is no genuine issue as to any
material fact and the plaintiff or the defendant is entitled to a judgment as
a matter of law. The judgment need not be on the entire case but only on
specidied factual issues, with the court proceeding to try other factual
issues. Even if there is a legal question remaining but there is no material
factual issue, a summary judgment may be rendered. (Rigura, p. 584)
It is proper where, upon a motion filed after the issues had been joined and
on the basis of the pleadings and papers filed, the Court finds that there is
no genuine issues as to any material fact except as to the amount of
damages. Hence, a summary judgment is permitted only if there is no
genuine issue as to any material fact and a moving party is entitled to a
judgment as a matter of law because while the pleadings, on their face,
appear to raise issues, the affidavits, deposition, and admissions presented
by the movng party are not genuine issues. (Riano, p. 498)
Note: It is to be remembered that what triggers a summary
judgment is the absence of a genuine factual issue. As such, even
when there is a complicated question of law, if there is no issue as
to the facts, a summary judgment is not barred.
On the other hand, where only the genuineness and the due
execution of the promissory note are the matters deemed admitted
for the failure of the defendant to deny the same under oath, a
summary judgment is not proper. (Riano, pp. 498-499)
Motion for summary judgment: Trial court cannot motu proprio [see
Section 10, Rule 18. Court can have the case be submitted for summary
judgment motu proprio] decide that summary judgment on an action is in
order. The defending party or the claimant, as the case may be, must
invoke the rule on summary judgment by filing a motion. The adverse
party must be notified of the motin for summary judgment and furnishd
with supporting affiavits, depositions, or admissions before hearing is
conducted. (Riano, p. 499)
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Note: Under Section 5, Rule 15, a motion for summary judgment
is considered as a litigious motion. Hence, it shall be served to the
other party and the latter has 5 days from receipt thereof to file his
comment/opposition to the said motion.
Note further that under Section 10, Rule 18 of the Rules of Court
“should there be no more no more genuine issue as to any
material fact, the court shall, without prejudice to a party moving
for judgment on the pleadings under Rule 34 or summary
judgment under Rule 35, motu proprio include in the pre-trial
order that the case be submitted for summary judgment...”
When to file? Under Section 1 of this rule, a party seeking for summary
judgment must file the proper motion at “anytime after the pleading in
answer thereto has been served.” This means that it may be filed at any
stage of the litigation. (Riguera, p. 586)
Whenever it becomes evident at any stage of the litigation that no triable
issue exists, or that the defenses raised by the defendants are sham or
frivolous, plaintiff may move for summary judgment. A contrary
interpretation would go against the very objective of the rule which is to
weed out sham claims or defenses thereby avoiding the expense and
loss of tim involved in a trial. (Riguera, p. 586)
Section 2 of this rule clearly provides that the defendant may file a motion
for summary judgment “at any time.”
MOTION AND PROCEEDINGS THEREON
“The motion shall cite the supporting affidavits, depositions or
admissions, and the specific law relied upon. The adverse party may file a
comment and serve opposing affidavits, depositions, or admissions within
a non-extendible period of five (5) calendar days from receipt of the
motion. Unless the court orders the conduct of a hearing, judgment sought
shall be rendered forthwith if the pleadings, supporting affidavits,
depositions and admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Any action of the court on a motion for summary judgment shall not be
subject of an appeal or petition for certiorari, prohibition or mandamus.”
(Section 3, Rule 35)
Genuine issue: It is an issue of fact which requires the presentation of
evidence. When the facts, as pleaded, appeared uncontested or undisputed,
then there is no real or genuine issue or question as to the facts, and
summary judgment is called for.
The party who moves for summary judgment has the burden of
demonstrating clearly he absence of any genuine issue of fact, or tthat the
issue posed in the complaint is patently unsubstantial so as not to constitute
a genuine issue for trial. Trial courts have limited authority to render
summary judgment since it may only be do so when there is clearly no
genuine issue as to any material fact. Hence, when the facts are disputed
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or contested by the parties, summary judgment is not proper and cannot
take place of trial. (Riano, p. 499)
In the case of a summary judgment, issues apparently exist – i.e.. facts are
asserted in the complaint regarding which there is as yet no admission,
disavowal or qualification; or specific denials or affirmative defenses are
in truth set out in the answer – but the issues thus arising from the
pleadings are sham, fictitious, not genuine, as shown by [affidavits],
depositions or admissions. In other words, as a noted authority remarks, x
x x a summary judgment is a judgment on the facts as summarily proven
by affidavits, depositions or admissions.32
Note: Under the 2020 Rules of Civil Procedure, the hearing on the
motion for summary judgment is dicretionary upon the court.
Also, while the rules expressly mention only supporting affidavits,
depositions or admission, there is no bar to supporting the motion
with documents or exhibits. Relative thereto, Section 5 of this rule
provides for the attachment of certifie true copies of all papers
attached to the motion. (Riguera, p. 592)
Prohibition on filing an appeal, or petition for certiorari, prohibition
or mandamus: The prohibition applies only on the order of the Court
denying the motion for summary judgment or on the order of the court
submitting the case for summary judgment. (Riguera, p. 594)
CASE NOT FULLY ADJUDICATED ON MOTION
“If on motion under this Rule, judgment is not rendered upon the whole
case or for all the reliefs sought and a trial is necessary, the court may, by
examining the pleadings and the evidence before it and by interrogating
counsel[,] ascertain what material facts exist without substantial
controversy, including the extent to which the amount of damages or other
relief is not in controversy, and direct such further proceedings in the
action as are just. The facts so ascertained shall be deemed established,
and the trial shall be conducted on the controverted facts accordingly.”
(Section 4, Rule 35)
This particular section of this rule provides for a partial summary
judgment.
May a partial summary judgment be appealed separately from the
judgment in the entire case? No. A partial summary judgment is an
interlocutory order that was never meant to be treated separately from the
main case. It is merely a pre-trial adjudication that certain issues in the
case shall be deemed established for the trial of the case. Hence, the failure
to appeal separately from a partial summary judgment or to challenge it
by a special civil action for certiorari does not make the same final and
executory. (Riguera, p. 593)
32
Diman vs. Alumbres, G.R. No. 131466, November 27, 1998
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May a partial summary judgment be executed if the entire case has
not yet been resolved? No. What Section 4, Rule 35 contemplates is that
an appeal from a partial summary judgment shall be taken together with
the judgment that the trial court may render in the netire case after the trial
has been conducted on the controverted facts. Inasmuch as a partial
summary judgment does not finally dispose of the action, exection thereof
shall not issue conformably with Section 1, Rule 39 of the Rules of court.
(Riguera, p. 593)
FORM OF AFFIDAVITS AND SUPPORTING PAPERS
“Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto or served therewith.”
(Section 5, Rule 35)
AFFIDAVITS IN BAD FAITH.
“Should it appear to its satisfaction at any time that any of the affidavits
presented pursuant to this Rule are presented in bad faith, or solely for the
purpose of delay, the court shall forthwith order the offending party or
counsel to pay to the other party the amount of the reasonable expenses
which the filing of the affidavits caused him or her to incur, including
attorney’s fees[,i]t may, after hearing, further adjudge the offending party
or counsel guilty of contempt.” (Section 6, Rule 35)
JUDGMENT ON THE PLEADINGS
SUMMARY JUDGMENT
Anchored on the failure of the answer to
Predicated upon absence of genuine
tender an issue, or otherwise admits the
Ground/s
issue as to any material fact except
material allegations of the adverse party’s
as to the amount of damages.
pleading
Basis
Based upon pleadings and
Based exclusively upon the pleadings
supporting affidavits, deopsitions,
without the presentation of any evidence
and admissions
Actions
available
In any actions except for annulment o
marriage or legal separation
Who may
avail
Generally, available only to the plaintiff,
unless the defendant presents a
counterclaim
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Available to both plaintiff and the
defendant.
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