CIVIL
PROCEDURE
PART I
COMPREHENSIVE NOTES ON AND OUTLINE OF DEAN RIANO’S BOOK
CODAL — BP 129 AS AMENDED, ON JURISDICTION
CODAL — RULES ON FILING FEES, RULE 141
CODAL — RULES OF CIVIL PROCEDURE, RULES 1 TO 36
CODAL — SUMMARY PROCEDURE, SMALL CLAIMS AND BRGY. CONCILIATION RULES
LAWS, SC ISSUANCES RELATED TO CIVIL PROCEDURE
NOTES ON PROF. INGLES REVIEWER
JURISPRUDENCE BASED ON PROF. TRANQUIL SALVADOR'S REMEDIAL LAW SYLLABUS
NOTES ON PROF. TRANQUIL SALVADOR’S REMEDIAL LAW LECTURES
IT
BEGINS WITH FAITH
&
CONVICTION, PERSEVERES WITH HARD WORK
&
DISCIPLINE, AND
ENDS WITH AN IMPASSIONED TRIUMPH WITHIN, WHEN WE REALIZE THAT WE CAN DO ANYTHING
[SEE EPH. 3:20]
#EMBRACETHEGRIND
TABLE OF CONTENTS
FILING FEES
8
MANDATORY AND JURISDICTIONAL NATURE OF THE PAYMENT OF FILING FEES
EFFECTS OF FAILURE TO PAY FILING FEES
PARTIES EXEMPT FROM THE PAYMENT OF FILING FEES
TIME WHEN FILING FEES MUST BE PAID
DETERMINING THE PROPER AMOUNT OF FILING FEES
8
8
9
10
11
JURISDICTION
28
OVERVIEW OF JURISDICTION
28
JURISDICTION OVER THE SUBJECT-MATTER
JURISDICTION OVER THE PERSON OF THE PARTIES
JURISDICTION OVER THE RES OR THING INVOLVED IN THE LITIGATION
30
40
42
JURISDICTION OVER THE ISSUES OF THE CASE
42
RULE 1: GENERAL PROVISIONS
43
APPLICABILITY OF THE RULES OF COURT
CASES GOVERNED BY THE RULES OF COURT
COMMENCEMENT OF AN ACTION
43
43
46
LIBERAL APPLICATION OF THE RULES
46
RULE 2: CAUSE OF ACTION
48
OVERVIEW OF “CAUSE OF ACTION”
BASIS OF ORDINARY CIVIL ACTIONS
SPLITTING OF CAUSES OF ACTION
48
51
51
JOINDER OF CAUSES OF ACTION
MISJOINDER OF CAUSES OF ACTION
54
55
RULE 3: PARTIES TO CIVIL ACTIONS
57
WHO MAY BE PARTIES
REAL PARTIES IN INTEREST
57
58
REPRESENTATIVES AS PARTIES
SPOUSES AS PARTIES
60
60
MINORS OR INCOMPETENT PERSONS AS PARTIES
PERMISSIVE JOINDER OF PARTIES
INDISPENSABLE AND NECESSARY PARTIES
61
61
61
UNWILLING CO-PLAINTIFF
MISJOINDER AND NON-JOINDER OF PARTIES
CLASS SUIT
64
64
64
ALTERNATIVE DEFENDANTS
UNKNOWN DEFENDANTS
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
66
66
66
SUBSTITUTION IN CASE OF DEATH OF ANY PARTY
ACTION ON CONTRACTUAL MONEY CLAIMS IN WHICH THE DEFENDANT DIES
SUBSTITUTION IN CASE OF DEATH OR SEPARATION OF A PARTY WHO IS A PUBLIC OFFICER
67
69
70
INCOMPETENCY OR INCAPACITY OF PARTY
TRANSFER OF INTEREST
INDIGENT PARTIES
70
70
71
NOTICE TO SOLICITOR GENERAL
72
RULE 4: VENUE OF ACTIONS
73
OVERVIEW OF VENUE
VENUE OF REAL ACTIONS
VENUE OF PERSONAL ACTIONS
73
73
74
VENUE OF ACTIONS AGAINST NON-RESIDENTS NOT FOUND IN THE PHILIPPINES
WHEN RULES ON VENUE ARE NOT APPLICABLE
75
76
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RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS
UNIFORM PROCEDURE
MEANING OF “MTC”
78
78
78
RULES ON SUMMARY PROCEDURE
79
RULES ON SMALL CLAIMS CASES
84
KATARUNGANG PAMBARANGAY (BARANGAY CONCILIATION)
93
RULE 6: KINDS OF PLEADINGS
97
OVERVIEW OF PLEADINGS
97
PLEADINGS DEFINED
PLEADINGS ALLOWED
COMPLAINT
97
98
98
ANSWER
DEFENSES
COUNTERCLAIM
99
99
100
KINDS OF COUNTERCLAIMS
CROSS-CLAIM
COUNTER-COUNTERCLAIMS AND COUNTER-CROSS-CLAIMS
101
103
104
REPLY
THIRD-PARTY COMPLAINT
BRINGING NEW/NECESSARY PARTIES IN COUNTER-CLAIMS OR CROSS-CLAIMS
104
105
106
ANSWER TO THIRD-PARTY COMPLAINT
107
RULE 7: PARTS OF A PLEADING
108
CAPTION
BODY
SIGNATURE OTHER FORMAL REQUIREMENTS OF PLEADINGS
108
108
109
VERIFICATION
CERTIFICATION AGAINST FORUM-SHOPPING (CERTIFICATE OF NON-FORUM SHOPPING)
110
112
RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
119
WHAT A PLEADING SHOULD GENERALLY CONTAIN
119
ALTERNATIVE CAUSES OF ACTION OR DEFENSES
CONDITIONS PRECEDENT
CAPACITY OF PARTIES
119
120
120
PLEADING INVOLVING FRAUD, MISTAKE, OR CONDITION OF THE MIND
PLEADING A JUDGMENT, OR DECISION
ACTION OR DEFENSE BASED ON A WRITTEN INSTRUMENT OR DOCUMENT
121
121
122
PLEADING AN OFFICIAL DOCUMENT OR ACT
SPECIFIC DENIAL
STRIKING OUT OF PLEADING OR MATTER CONTAINED THEREIN
123
123
126
RULE 9: EFFECT OF FAILURE TO PLEAD
127
DEFENSES AND OBJECTIONS NOT PLEADED
127
FAILURE TO SET-UP THE COMPULSORY COUNTER-CLAIM OR CROSS-CLAIM
EFFECTS OF THE FAILURE TO FILE ANSWER; DEFAULT OF DEFENDANT
127
128
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
134
AMENDMENT OF PLEADINGS
AMENDMENTS A MATTER OF RIGHT
134
134
AMENDMENT WITH LEAVE OF COURT
FORMAL AMENDMENTS
AMENDMENT TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE
136
137
137
PROCEDURE TO AMEND PLEADINGS
140
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141
EFFECT OF AMENDED PLEADINGS
SUPPLEMENTAL PLEADINGS
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
143
SUMMARY OF THE PERIODS TO FILE RESPONSIVE PLEADINGS
143
ANSWER TO THE COMPLAINT
ANSWER OF A DEFENDANT FOREIGN PRIVATE JURIDICAL ENTITY
ANSWER TO AMENDED COMPLAINT
143
144
144
ANSWER TO COUNTERCLAIM OR CROSS-CLAIM
ANSWER TO THIRD-PARTY COMPLAINT
REPLY
145
145
145
ANSWER TO SUPPLEMENTAL COMPLAINT
EXISTING COUNTERCLAIM OR CROSS-CLAIM
COUNTERCLAIM OR CROSS-CLAIM ARISING AFTER THE ANSWER
145
145
145
OMITTED COUNTERCLAIM OR CROSS-CLAIM
EXTENSION OF TIME TO PLEAD
146
146
RULE 12: BILL OF PARTICULARS
147
OVERVIEW OF BILL OF PARTICULARS
PURPOSE OF A BILL OF PARTICULARS; WHEN IT SHOULD BE APPLIED FOR
147
147
RESPONSE BY THE COURT TO A BILL OF PARTICULARS
COMPLIANCE WITH THE GRANT
NON-COMPLIANCE
148
149
149
STAY OF PERIOD TO FILE RESPONSIVE PLEADING
BILL OF PARTICULARS BECOMES PART OF PLEADING
149
150
RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND OTHER PAPERS
151
COVERAGE OF THIS RULE
151
DEFINITION OF “FILING” AND “SERVICE”
MODES OF FILING
PAPERS REQUIRED TO BE FILED AND SERVED
151
152
153
MODES OF SERVICE
COMPLETENESS OF SERVICE
PRIORITIES IN MODES OF SERVICE AND FILING
153
155
156
PROOF OF FILING
PROOF OF SERVICE
NOTICE OF LIS PEDENS
157
157
158
RULE 14: SUMMONS
161
OVERVIEW OF SUMMONS
161
DUTY OF CLERK TO ISSUE SUMMONS
FORM AND CONTENTS OF THE SUMMONS
WHO SHOULD SERVE THE SUMMONS
162
163
164
RETURN AND PROOF OF SERVICE WHEN SERVICE OF THE SUMMONS IS COMPLETED
ISSUANCE OF ALIAS SUMMONS IN CASE SERVICE OF SUMMONS FAILS
HOW TO OBTAIN LEAVE OF COURT UNDER THIS SECTION
164
165
165
VOLUNTARY APPEARANCE BY DEFENDANT
MODES OF SERVICE OF SUMMONS
165
166
A. SERVICE OF SUMMONS TO NATURAL PERSONS
167
SERVICE IN PERSON
SUBSTITUTED SERVICE
167
168
SERVICE UPON ENTITIES WITHOUT JURIDICAL PERSONALITY
SERVICE UPON PRISONERS
171
171
SERVICE UPON MINORS, INSANE AND INCOMPETENTS
SERVICE UPON DEFENDANT WHOSE IDENTITY OR WHEREABOUTS ARE UNKNOWN
171
171
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SERVICE UPON RESIDENTS TEMPORARILY OUT OF THE PHILIPPINES
B. SERVICE OF SUMMONS TO JURIDICAL PERSONS
TABLE OF CONTENTS
172
173
174
SERVICE UPON DOMESTIC PRIVATE JURIDICAL ENTITY
174
SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY
SERVICE UPON THE GOVERNMENT AND PUBLIC CORPORATIONS
VOLUNTARY APPEARANCE
175
177
177
RULE 15: MOTIONS
178
DEFINITION OF A MOTION
178
FORM OF A MOTION
CONTENTS OF A MOTION
HEARING OF MOTION, OTHER REQUIREMENTS
178
178
178
OMNIBUS MOTION RULE
MOTION FOR LEAVE
181
182
RULE 16: MOTION TO DISMISS
183
OVERVIEW OF A MOTION TO DISMISS
GROUNDS FOR A MOTION TO DISMISS
183
184
HEARING OF MOTION
RESOLUTION OF MOTION
TIME TO PLEAD IF MTD IS DENIED
188
189
190
EFFECT OF DISMISSAL
PLEADING GROUNDS AS AFFIRMATIVE DEFENSES
190
191
RULE 17: DISMISSAL OF ACTIONS
192
DISMISSAL BY THE PLAINTIFF OF HIS OWN ACTION
DISMISSAL DUE TO FAULT OF PLAINTIFF
192
193
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD PARTY COMPLAINT
194
RULE 18: PRE-TRIAL
195
WHEN PRE-TRIAL IS CONDUCTED
NATURE AND PURPOSE OF PRE-TRIAL
195
196
NOTICE OF PRE-TRIAL
APPEARANCE OF PARTIES AT THE PRE-TRIAL; FAILURE TO APPEAR
PRE-TRIAL BRIEF
197
197
199
RECORD OF PRE-TRIAL
COMPROMISE IN CIVIL CASES
GUIDELINES TO BE OBSERVED IN PRE-TRIAL AND COMPROMISE
200
201
203
RULE 19: INTERVENTION
206
WHO MAY INTERVENE
206
TIME TO INTERVENE
PLEADINGS-IN-INTERVENTION
207
207
RULE 20: CALENDAR OF CASES
208
CALENDAR OF CASES
ASSIGNMENT OF CASES
208
208
RULE 21: SUBPOENA
209
DEFINITION OF SUBPOENA
209
ISSUANCE OF SUBPOENA
FORM AND CONTENTS OF A SUBPOENA
QUASHING A SUBPOENA
209
210
210
SUBPOENA FOR DEPOSITIONS
SERVICE OF A SUBPOENA
211
211
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COMPELLING ATTENDANCE AND CONTEMPT IN CASE OF FAILURE TO OBEY THE SUBPOENA
RULE 22: COMPUTATION OF TIME
TABLE OF CONTENTS
211
211
212
HOW TO COMPUTE TIME
212
EFFECT OF INTERRUPTION
212
OVERVIEW OF THE MODES OF DISCOVERY
213
RULE 23: DEPOSITIONS PENDING ACTION
214
OVERVIEW OF DEPOSITIONS
DEPOSITIONS PENDING ACTION, WHEN MAY BE TAKEN
SCOPE OF EXAMINATION
214
215
216
EXAMINATION AND CROSS-EXAMINATION
USE OF DEPOSITIONS
EFFECT OF SUBSTITUTION OF PARTIES
216
216
219
OBJECTIONS TO ADMISSIBILITY
EFFECT OF TAKING AND USING DEPOSITIONS
REBUTTING DEPOSITION
219
219
219
PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
COMMISSION OR LETTERS ROGATORY
220
220
A. ORAL DEPOSITIONS
221
DEPOSITION UPON ORAL EXAMINATION; NOTICE AND PLACE
OBJECTIONS TO THE DEPOSITION
221
221
DUTY OF THE OFFICER TAKING THE ORAL DEPOSITION
FAILURE OF PARTY GIVING NOTICE TO ATTEND AND TO SERVE SUBPOENA
223
225
B. DEPOSITION UPON WRITTEN INTERROGATORIES
225
WRITTEN INTERROGATORIES
EFFECT OF ERRORS AND IRREGULARITIES IN DEPOSITIONS
225
226
RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
227
A. DEPOSITIONS BEFORE ACTION
227
VERIFIED PETITION FOR DEPOSITIONS BEFORE ACTION
227
CONTENTS OF THE PETITION
NOTICE AND SERVICE; ORDER OF THE COURT
227
227
B. DEPOSITIONS PENDING APPEAL
228
RULE 25: INTERROGATORIES TO PARTIES
229
SERVICE OF WRITTEN INTERROGATORIES TO PARTIES
229
RESPONSE BY THE RECIPIENT OF THE WRITTEN INTERROGATORIES: ANSWER OR OBJECT
NUMBER OF INTERROGATORIES
SCOPE AND USE OF INTERROGATORIES
230
230
230
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
230
RULE 26: ADMISSION BY ADVERSE PARTY
232
REQUEST FOR ADMISSION
EFFECT OF FAILURE TO FILE A REQUEST FOR ADMISSION
RESPONSE OF THE PARTY AGAINST WHOM THE REQUEST IS DIRECTED; FAILURE TO ANSWER
232
233
233
WITHDRAWAL
234
RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
MOTION FOR PRODUCTION OR INSPECTION
235
RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS
WHEN EXAMINATION MAY BE ORDERED
REPORT OF FINDINGS; WAIVER OF PRIVILEGE
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RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
239
REFUSAL TO ANSWER
CONTEMPT OF COURT
239
239
OTHER CONSEQUENCES
EXPENSES ON REFUSAL TO ADMIT
FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS
239
240
240
EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES
240
SUMMARY OF THE SANCTIONS/REMEDIES AGAINST THE PERSON REFUSING TO COMPLY WITH THE MODE OF DISCOVERY
RULE 30: TRIAL
243
OVERVIEW OF A “TRIAL”
NOTICE OF TRIAL
243
244
ADJOURNMENTS AND POSTPONEMENTS
POSTPONEMENT OF TRIAL
ORDER OF TRIAL
244
244
245
AGREED STATEMENT OF FACTS
STATEMENT OF JUDGE
SUSPENSION OF ACTIONS
246
247
247
JUDGE TO RECEIVE EVIDENCE; DELEGATION TO CLERK OF COURT
247
RULE 31: CONSOLIDATION OR SEVERANCE
248
CONSOLIDATION
SEPARATE TRIALS/ SEVERANCE
248
249
RULE 32: TRIAL BY COMMISSIONER
250
REFERENCE TO COMMISSIONER
ORDER OF REFERENCE; POWERS OF THE COMMISSIONER
250
250
OATH OF COMMISSIONER
PROCEEDINGS BEFORE COMMISSIONER
251
251
FAILURE OF PARTIES TO APPEAR BEFORE COMMISSIONER
REFUSAL OF WITNESS
DUTY OF COMMISSIONER; TO AVOID DELAYS AND FILE A REPORT
251
251
251
NOTICE TO PARTIES OF THE FILING OF REPORT
HEARING UPON REPORT
STIPULATIONS AS TO FINDINGS
251
252
252
COMPENSATION OF COMMISSIONER
252
RULE 33: DEMURRER TO EVIDENCE
253
OVERVIEW OF JUDGMENTS
255
RULE 34: JUDGMENT ON THE PLEADINGS
257
RULE 35: SUMMARY JUDGMENTS
258
SUMMARY JUDGMENT FOR CLAIMANT OR DEFENDING PARTY
MOTIONS AND PROCEEDINGS
PARTIAL JUDGMENT
258
260
260
AFFIDAVITS AND SUPPORTING PAPERS
261
RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
262
RENDITION OF JUDGMENTS AND FINAL ORDERS
ENTRY OF JUDGMENTS AND FINAL ORDERS
KINDS OF JUDGMENTS
262
264
265
JUDGMENT AGAINST ENTITY WITHOUT JURIDICAL PERSONALITY
EFFECTS OF FINAL JUDGMENTS OF PHILIPPINE COURTS
EFFECTS OF FINAL JUDGMENTS OF FOREIGN COURTS
267
267
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FILING FEES
FILING FEES
MANDATORY AND JURISDICTIONAL NATURE OF THE PAYMENT OF FILING FEES
‣
‣
RULE — PAYMENT IN FULL OF THE PROPER DOCKET FEES IS MANDATORY AND JURISDICTIONAL
‣
Docket Fees is Jurisdictional. Court acquires jurisdiction over any case only upon the payment of the prescribed
docket fee; Payment of docket fees is not only mandatory, but also jurisdictional. 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. (Ruby Shelters vs Fomaran 2009)
‣
Without the payment of the correct docket or filing fees, jurisdiction over the subject-mater or nature of the action will
not vest in the trial court. (Rizal vs Laredo 2012)
‣
Any defect in the original pleading resulting in underpayment of the docket fee cannot be cured by amendment, such
as by the reduction of the claim as, for all legal purposes, since there is no original complaint over which the court has
acquired jurisdiction
‣
The requirement of the filing fee is not a mere technicality of law or procedure and should not be undermined except
for the most persuasive of reasons.
‣
In appeals. the non-payment of filing fees would be tantamount to no appeal being filed thereby rendering the
challenged decision, resolution or order final and executory
‣
RATIONALE — The important of filing fees cannot be overemphasised for they are intended to take care of court
expenses in the handling of cases in terms of costs of supplies, use of equipment, salaries and fringe benefits of
personnel, and others. (Home Guaranty Corp vs R-II Builders, 2011)
How can the non-payment of filing fees by a party be challenged?
‣
‣
Jurisprudence has recognized that it can be assailed by the adverse party through a motion to dismiss or in the
answer based on the ground of “lack of jurisdiction over the subject-matter”.
What if the adverse party fails to object to the non-payment of filing fees, is it deemed waived?
‣
NO. The ground of “lack of jurisdiction over the subject-matter” is non-waivable and may even be raised by the court
motu proprio. (Rule 9, Sec. 1)
‣
SEE — Do-All Metals Industries, Inc. v. Security Bank Corporation, et al., G.R. No. 176339, January 10, 2011
‣
In this case, the Defendant Bank itself raised the issue of non-payment of additional filing fees only after the RTC
had rendered its decision in the case. The implication is that the Bank should be deemed to have waived its
objection to such omission. But it is not for a party to the case or even for the trial court to waive the payment of
the additional filing fees due on the supplemental complaint. Only the Supreme Court can grant exemptions to the
payment of the fees due the courts and these exemptions are embodied in its rules.
EFFECTS OF FAILURE TO PAY FILING FEES
‣
Either failure to pay or what was paid was insufficient
‣
RULE — IF THE PLAINTIFF FAILS TO PAY FILING FEES, THE COMPLAINT CAN BE DISMISSED IMMEDIATELY. THE COURT HAS NO
JURISDICTION TO CONTINUE WITH THE CASE
‣
EXCEPT — it has in some instances, been made subject to the rule on liberal interpretation. While the payment
of the required docket fee is a jurisdictional requirement, even its nonpayment at the time of filing does not
automatically cause the dismissal of the case, as long as the fee is paid within a reasonable period or the
applicable prescriptive OR reglamentary period. (Sun Insurance Case, Rivera vs Del Rosario)
‣
Failure to pay those fees within the reglementary period allows only discretionary, not automatic
‣
Such power to allow the party to still pay his filing fees should be used by the court in conjunction with its exercise
of sound discretion in accordance with the tenets of justice and fair play, as well as with a great deal of
circumspection in consideration of all attendant circumstances
‣
This is especially true when the party involved demonstrates a willingness to abide by the rules prescribing such
payment and there is no intent to defraud the government. (Unicapital vs Consing 2013)
‣
EXCEPTION TO EXCEPTION — If there is intent to defraud the government, then the rule on liberal
interpretation does NOT apply and the complaint should be dismissed outright for failure to pay docket fees.
(Proton v. Banque Nacional de Paris 2005; Manchester Development Corporation v. CA 1987)
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Example — if the party filing the case paid less than the correct amount for the docket fees because of the wrong
assessment of the clerk of court, the responsibility of making a deficiency assessment lies with the same clerk. Party
cannot be penalized for such, so court will continue to have jurisdiction over the case. But party will still have to pay
the fees (Montaner v Shari’a District, 2009) This also happened in Bautista v Unangst (2008) which involved the
deficient assessment in the Court of Appeals. SC said that it was not the appellant’s fault but he still has to pay the
deficient fees within the reglementary period.
‣
‣
What if upon the filing of the complaint, the proper docket fees were paid (thus vesting the court with
jurisdiction), however, subsequently, the plaintiff filed an amended or supplemental pleading and failed to pay
the additional docket fees, is the court divested of jurisdiction?
‣
NO. The failure to pay the additional filing fees due on additional claims does not divest the court of jurisdiction it
already had over the case. Once jurisdiction is obtained by the court, it cannot be divested of such jurisdiction.
The court acquired jurisdiction over plaintiffs’ action from the moment they filed their original complaint
accompanied by the payment of the filing fees due on the same. The plaintiffs’ non-payment of the additional filing
fees due on their additional claims did not divest the RTC of the jurisdiction it already had over the case. BUT it
will divest the court over jurisdiction over the supplemental complaint unless filing fees are paid within a
reasonable amount of time or it will constitute a lien on the judgment award, depending on the case. (See
PAGCOR v. Lopez 2005; Do-All Metals Industries Inc vs Security Bank Corp 2011).
PARTIES EXEMPT FROM THE PAYMENT OF FILING FEES
PARTIES EXEMPTED FROM THE PAYMENT OF FILING FEES
1. THE REPUBLIC OF THE PHILIPPINES, ITS AGENCIES AND INSTRUMENTALITIES (SEC. 22, RULE 141)
‣
BUT — Local governments and government-owned or controlled corporations with or without independent charters
are NOT exempt from paying such fees.
2. RECIPIENTS OF THE SERVICE OF THE NATIONAL COMMITTEE ON LEGAL AID AND OF THE LEGAL AID OFFICES OF THE IBP (RE:
REQUEST FOR NCLA, 2009)
3.
INDIGENT LITIGANTS
‣
BUT — ln case of a favorable judgment, the proper docket fees will constitute a lien on any judgment rendered in the
case, unless the court otherwise provides.
‣
Kinds of Indigent Litigants (See Algura vs LGU of Naga 2006) —
Indigent litigant as a matter of right under Rule 141, Sec. 19
a.
‣
If the indigent fits within the parameters set out by Rule 141, Sec. 19, it is mandatory upon the court to declare
him an indigent.
‣
REQUISITES — the litigant must have the following requisites —
1.
Gross income and immediate family income does not exceed twice of monthly minimum wage
2.
Does not own real property with FMV (as stated in current tax declaration) of more than P300,000
b. Indigent litigant as a matter of discretion under Rule 3, Sec. 21
‣
‣
‣
If the litigant does not have the requisites under Rule 141, the court is given the discretionary to determine
whether he is an indigent or not based on Rule 3, Section 21
‣
Court may declare parties who have no money or property sufficient and available for food, shelter, and basic
necessities for himself and his family, as indigent litigants.
What if a party is declared as an Indigent Party but later was found out to lack the requirements?
‣
Rule 141, Sec. 19 — Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to
dismiss the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal
liability may have been incurred.
‣
Rule 3, Sec. 21 — The proper docket and other 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.
Can juridical persons (such as those organised for charitable purposes) be considered indigent litigants?
‣
NO. SEE — Query of Mr. Roger C. Prioreschi re exemption form legal and filing fees of the Good Shepherd
Foundation, Inc., A.M. No. 09-6-9-SC
‣
In implementation of the right of free access under the Constitution, the Supreme Court promulgated rules,
specifically, Sec. 21, Rule 3, Rules of Court, and Sec. 19, Rule 141, Rules of Court. The clear intent and precise
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language of these provisions of the Rules of Court indicate that only a natural party litigant may be regarded
as an indigent litigant. The Good Shepherd Foundation, Inc., as a juridical person cannot be accorded the
exemption from legal and filing fees granted to indigent litigants. That the Good Shepherd Foundation, Inc. is
working for indigent and underprivileged people is of no moment. Clearly, the Constitution has explicitly
premised the free access clause on a persons poverty, a condition that only a natural person can suffer.
Extending the exemption to a juridical person on the ground that it works for indigent and underprivileged
people may be prone to abuse (even with the imposition of rigid documentation requirements), particularly by
corporations and entities bent on circumventing the rule on payment of the fees
TIME WHEN FILING FEES MUST BE PAID
‣
RULE — DOCKET FEES MUST BE PAID UPON THE FILING OF AN INITIATORY PLEADING OR OTHER APPLICATION WHICH
INITIATES AN ACTION OR PROCEEDING
‣
Such as — when you file a complaint, compulsory counterclaim, permissive counterclaim, cross-claim, and in appeals,
etc. (See Rule 141, Sec. 7 for more details)
‣
BUT — the SC has SUSPENDED the payment of Filing Fees for compulsory counterclaims even though its required
to be paid by the Rules. (See AM. No. 04-2-04-SC dated September 21, 2004, and OCA CIRCULAR NO. 96-2009
clarifying the Korean Technologies Case)
‣
Clerk will look at prayer and then determine how much you have to pay.
‣
For Appeals —
‣
Appellate docket and other lawful fees must be paid within the same period for taking an appeal. Within the
period for taking an appeal, the appellant must pay to the clerk of court which rendered the judgment or final order
appealed from, the full amount of the appellate court docket and other lawful fees. (Sec. 4, Rule 41)
‣
The Supreme Court has consistently held that 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
(Regalado v. Go, 514 SCRA 616, 634).
‣
‣
Hence, non- payment is a valid ground for the dismissal of an appeal (M.A. Santander Construction, Inc. v.
Villanueva ). However, delay in the payment of the docket fees confers upon the court a discretionary, not a
mandatory power to dismiss an appeal.
EXCEPT — IN THE FOLLOWING CASES, DOCKET FEES MAY BE PAID AFTER THE FILING OF THE INITIATORY PLEADING —
1.
Additional docket fees will serve as a lien on the judgment award — This applies to the following cases where
damages or relief is awarded after the filing of the complaint —
Court awards a claim or relief not alleged, different from or in excess of that claimed (Sec. 2, Rule 141)
a.
‣
Such as when the court awards exemplary damages, a form of unliquidated damages. Amount of exemplary
damages need not be pleaded in the complaint because the same cannot be predetermined. The amount of
docket fees to be paid should be computed on the basis of the amount of the damages stated in the
complaint. But subsequently however the judgment awarded a claim not specified in the pleading, or if
specified, the same was left for the determination of the court, an additional filing fee therefor may be
assessed and considered to constitute a lien on the judgment. (Benguet Cooperative vs CA 1999)
b.
Interest accruing after the filing of the complaint (Proton v BNP)
c.
If the complaint is amended and new damages are alleged
d.
For indigent parties when the judgment is favourable to them (Rule 141, Sec. 19; Rule 3, Sec. 21)
‣
NOTE — In these cases, the filing fees is not immediately paid since it cannot be assessed at the time of the filing but
instead, it will be deducted from the judgment award later on.
2.
The docket fees are allowed to be paid within a reasonable time or within the applicable reglamentary period
—
a.
If the complaint is amended and new damages or actions are alleged (PAGCOR v. Lopez 2005)
b.
If a supplemental complaint is filed and new damages or actions are alleged (Do-All Metals vs Security Bank Corp
2011)
c.
For incomplete or absence of payment and late payment is justified — the court has the discretion to apply the
rule on liberal interpretation of the Rules and allow payment within a reasonable amount of time or within the
applicable reglamentary period.
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‣
d.
FILING FEES
Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may
allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or
reglementary period. (Ruby Shelters vs Fomaran 2009)
If the clerk makes a wrong assessment — the full amount must be paid within the applicable prescriptive period or
reglementary period. (Sun Insurance Case, Rivera vs Del Rosario)
DETERMINING THE PROPER AMOUNT OF FILING FEES
‣
NOTE — See Rule 141, for exact amounts, depending on the nature of the action
1.
ACTIONS CAPABLE OF PECUNIARY ESTIMATION
Real Actions/ Actions involving Real Property — Depends on the fair market value stated in the current tax
declaration or current zonal valuation of the BIR (whichever is higher), or if there is none, the stated value of the
property in litigation
a.
‣
Other actions not involving real property but are capable of pecuniary estimation — Depends on the stated
value of property in litigation or the value of the personal property in litigation as alleged
b.
2.
These pertains to actions involving real property in litigation, if the action affects title, possession or interest in real
property
ACTIONS INCAPABLE OF PECUNIARY ESTIMATION — FLAT RATE
‣
TEST —The test for determining whether the subject matter of an action is incapable of pecuniary estimation —
ascertain the nature of the principal action or remedy sought. If the action is primarily for recovery of a sum of money,
the claim is considered capable of pecuniary estimation. Whether the trial court has jurisdiction would depend upon
the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money,
where the money claim is only incidental or a consequence of the principal relief sought, the action is incapable of
pecuniary estimation. (FEBTC vs Shemberg 2006 citing Singsong v. Isabela Sawmill 1979)
FILING FEES IN MONEY CLAIMS
‣
In money claims, the following rules must be observed —
1.
Docket fees computation INCLUDE interests, penalties, surcharges, damages of whatever kind, attorney’s
fees, court expenses.
‣
‣
2.
EXCEPT — Claims that may arise after the filing of the complaint or similar pleading. For then it will not be
possible for the claimant to specify nor speculate as to the amount thereof. (this will constitute a lien on the
judgment award)
‣
Such as — interests accruing AFTER the filing of the complaint as this can only be determined after a final
judgment has been handed down. (Proton vs Banque Nacional de Paris 2005)
‣
But if the plaintiff fails to pay the docket fees for alleged interest payments accruing BEFORE the complaint is
filed, plaintiff cannot recover such
NOTE — Compare this with amount for jurisdictional purposes: only the principal claim is considered for
jurisdiction (the interests, penalties, etc. is NOT considered)
All complaints, petitions, answers and similar pleadings must specify the amount of damages being prayed for
both in the body of the pleading and in the prayer; otherwise such pleading shall NOT be accepted for filing or
shall be EXPUNGED from the record. (Manchester Development Corporation v. CA 1987)
‣
EXCEPT — Claims that may arise after the filing of the complaint or similar pleading
‣
It is the duty of the parties claiming such damages to specify the amount sought on the basis of which the court
may make a proper determination and for the proper assessment of the appropriate fees.
‣
Where the complaint or similar pleading sets out a claim purely for money and damages and there is no statement
of the amounts being claimed. In this event the rule is that the pleading will "not be accepted nor admitted, or shall
otherwise be expunged from the record." In other words, the complaint or pleading may be dismissed, or the
claims as to which amounts are unspecified may be expunged, although the Court may, on motion, permit
amendment of the complaint and payment of the fees provided the claim has not in the meantime become timebarred. (Philippine First Insurance v. First Logistics 2008)
*For reference —
RULE 141 — LEGAL FEES
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AS REVISED BY A.M. No. 04-2-04-SC (July 20, 2004) — RE: PROPOSED REVISION OF RULE 141, REVISED RULES OF
COURT LEGAL FEES
SECTION 1. Payment of fees; modes and effects. — Upon the filing of the pleading or other application which initiates an
action or proceeding, the fees prescribed therefor shall be paid in full, unless a staggered basis of payment is allowed by
the Rules.
The legal fees may be paid in cash or through check, subject to the provisions herein stated.
The legal fees may be paid in cash when the same does not exceed (P5,000.00). When the legal fees exceed P5,000,
payment shall be in check which may be personal, company or manager's check. When the legal fees exceed P50,000,
payment shall be in manager's check. All checks shall be crossed.
Payment for the Legal Research Fund, Victim's Compensation Fund, Cadastral Fees and other fees not accruing to the
Judiciary Development Fund or Special Allowance for the Judiciary shall be in cash.
Any official receipt issued for the check shall indicate the following notation: 'Payment credited only upon check being
cleared.
In case of dishonor of the check and upon receipt of such notice from the depository bank, the Clerk of Court or the
accountable officer shall immediately inform in writing the court to where the case was raffled. The court shall forthwith
issue an order dismissing the case, without prejudice to the filing of a case or cases against the drawer of the dishonored
check
SECTION 2. Fees in lien. — Where the court in its final judgment awards a claim not alleged, or a relief different from, or
more than that claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on
the judgment in satisfaction of said lien. The clerk of court shall assess and collect the corresponding fees.
SECTION 3. Persons authorized to collect legal fees. — Except as otherwise provided in this rule, the officers and
persons hereinafter mentioned, together with their assistants and deputies, may demand, receive, and take the several
fees hereinafter mentioned and allowed for any business by them respectively done by virtue of their several offices, and
no more. All fees so collected shall be forthwith remitted to the Supreme Court. The persons herein authorized to collect
legal fees shall be accountable officers and shall be required to post bond in such amount as prescribed by the law.
SECTION 4. Clerks of the Supreme Court, Court of Appeals, Sandiganbayan and Court of Tax Appeals.
(a) For filing an action or proceeding with the Supreme Court, Court of Appeals and Sandiganbayan, for each action or
proceeding INCLUDING A PETITION OR MOTION FOR INTERVENTION — P3,000.00 SaICcT
(b) FOR FILING AN ACTION OR PROCEEDING WITH THE COURT OF TAX APPEALS
1. FOR FILING AN ACTION OR PROCEEDING, INCLUDING PETITION FOR INTERVENTION, AND FOR ALL SERVICES
IN THE SAME, IF THE SUM CLAIMED OR THE AMOUNT OF DISPUTED TAX OR CUSTOMS ASSESSMENT, INCLUSIVE
OF INTEREST, PENALTIES AND SURCHARGES, DAMAGES OF WHATEVER KIND AND ATTORNEY'S FEES OR VALUE
OF THE ARTICLE OF PROPERTY IN SEIZURE CASES, IS:
A)
LESS THAN P50,000.00 — P750.00
B) P50,000.00 OR MORE BUT LESS THAN P200,000.00 — 1,000.00
C) P200,000.00 OR MORE BUT LESS THAN P400,000.00 — 1,500.00
D) P400,000.00 OR MORE BUT LESS THAN P600,000.00 — 2,500.00
E)
P600,000.00 OR MORE BUT LESS THAN P800,000.00 — 4,000.00
F)
P800,000.00 OR MORE BUT LESS THAN P1,000,000.00 — 5,000.00
G) P1,000,000.00 OR MORE BUT LESS THAN — P7,500,000.00
ON THE FIRST P1,000,000.00, THE FEE SHALL BE P5,000.00 AND FOR EACH P1,000.00 IN EXCESS OF
P1,000,000.00 BUT NOT MORE THAN P7,500,000.00 — 7.00
H) P7,500,000.00 OR MORE ON THE FIRST P7,500,000.00, THE FEE SHALL BE P50,500.00 AND FOR EACH
P1,000.00 IN EXCESS OF P7,500,000.00 — 10.00
PROVIDED THAT FOR ASSESSMENTS BEYOND P50 MILLION, THE FILING FEE FOR THE EXCESS SHALL BE
THE EQUIVALENT OF ONE-HALF (1/2) OF ONE (1%) PER CENTUM
I) WHEN THE VALUE OF THE SUBJECT MATTER CANNOT BE ESTIMATED — 5,000.00
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2. FOR FILING A PETITION FOR REVIEW FROM A DECISION OF THE REGIONAL TRIAL COURT OR OF THE CENTRAL
BOARD OF ASSESSMENT APPEALS OR A SPECIAL CIVIL ACTION WITH THE CTA OR AN APPEAL FROM A
DECISION OF A CTA DIVISION TO THE CTA EN BANC — THREE THOUSAND (P3,000.00) PESOS
(c) For the performance of marriage ceremony, including issuance of certificate of marriage — THREE THOUSAND
(P3,000.00) PESOS
(d) FOR THE CERTIFIED COPIES OF ANY RECORD, JUDGMENT OR ENTRY THEREOF FOR EACH PAGE — TEN (P10.00)
PESOS AND FOR ANY CERTIFICATION — ONE HUNDRED (P100.00) PESOS.
(e) For every search FEE OF ARCHIVED CASES or these above a year's standing and reading the same — ONE
HUNDRED (P100.00) PESOS
(f) FOR FILING A MOTION FOR SPECIAL RAFFLE — FIVE HUNDRED (P500.00) PESOS
(g) FOR FILING A MOTION FOR EXTENSION TO FILE A PLEADING WHEN ALLOWED BY THE RULES — THREE
HUNDRED (P300.00) PESOS
(h) FOR FILING A MOTION FOR POSTPONEMENT — FIVE HUNDRED (P500.00) PESOS
(i) FOR FILING A MOTION OR ASKING IN THE PRAYER OF THE PLEADING THE ISSUANCE OF PROVISIONAL
REMEDIES UNDER RULES 57, 58, 59, 60 AND 61 LIKE TEMPORARY RESTRAINING ORDER (TRO), WRIT OF
PRELIMINARY INJUNCTION AND OTHERS — ONE THOUSAND (P1,000.00) PESOS
(j) FOR PERSONAL SERVICE OF WRITS, ORDERS AND DECISIONS OUTSIDE METRO MANILA — ONE THOUSAND
(P1,000.00) PESOS
(k) FOR PERSONAL REMAND OF RECORDS TO THE LOWER COURTS — FIVE HUNDRED (P500.00) PESOS
(l) FOR PROCESSING OF TRAVEL PERMIT — ONE THOUSAND (P1,000.00) PESOS
(m) For a commission on all money coming into his hands by these rules, order or writ of the court and caring for the
same — two (2%) per centum on all sums not exceeding FORTY THOUSAND (P40,000.00) PESOS and one and a half
(1 1/2%) per centum on all sums in excess of FORTY THOUSAND (P40,000.00) PESOS.
SECTION 5. Fees to be paid by the advancing party. — The fees of the clerk of the Court of Appeals, Sandiganbayan and
Court of Tax Appeals or of the Supreme Court shall be paid to him at the same time of the entry of the action or
proceeding in the court by the party who enters the same. The clerk shall in all cases give a receipt for the same and shall
enter the amount received upon his book, specifying the date when received, person from whom received, name of action
in which received and the amount received. If the fees are not paid, the court may refuse to proceed with the action until
they are paid and may dismiss the action or proceedings.
SECTION 6. Fees of bar candidates. —
(a) For filing the application for admission to the bar, whether admitted to the examination or not, TWO THOUSAND AND
TWO HUNDRED FIFTY (P2,250.00) PESOS for new applicants, and for repeaters, plus the additional amount of TWO
HUNDRED (P200.00) PESOS multiplied by the number of times the applicants has failed in the bar examinations;
(b) For admission to the bar, including oath taking, signing of the roll of attorneys, the issuance of diploma of admission
to the Philippine Bar, TWO THOUSAND AND TWO HUNDRED FIFTY (P2,250.00) PESOS;
(c) Other Bar Fees. — For the issuance of:
1. Certification of admission to the Philippine Bar — P100.00
2. Certificate of good standing (local) — P100.00
3. Certificate of good standing (foreign) — P500.00
4. Verification of membership in the bar — P100.00
5. Certificate of grades in the bar examinations — P100.00
6. Other certification of records at the Bar Office, per page — P50.00
7. A duplicate diploma of admission to the Philippine Bar — P500.00
For services in connection with the return of examination notebooks to examinees, a fee of ONE HUNDRED (P100.00)
PESOS shall also be charged. (6a)
SECTION 7. Clerks of Regional Trial Courts. —
a) For filing an action or a permissive OR COMPULSORY counter-claim, CROSS-CLAIM, or money claim against an estate
not based on judgment, or for filing a third-party, fourth-party, etc. complaint, or a complaint-in-intervention, if the total
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sum claimed, INCLUSIVE OF INTERESTS, PENALTIES, SURCHARGES, DAMAGES OF WHATEVER KIND, AND
ATTORNEY'S FEES, LITIGATION EXPENSES AND COSTS and/or in cases involving property, the FAIR MARKET value of
the REAL property in litigation STATED IN THE CURRENT TAX DECLARATION OR CURRENT ZONAL VALUATION OF THE
BUREAU OF INTERNAL REVENUE, WHICHEVER IS HIGHER, OR IF THERE IS NONE, THE STATED VALUE OF THE
PROPERTY IN LITIGATION OR THE VALUE OF THE PERSONAL PROPERTY IN LITIGATION AS ALLEGED BY THE
CLAIMANT, is:
From effectivity Nov. 11, 2004 to Nov. 11, 2005 to Effective
to Nov. 10, 2004* Nov. 10, 2005**
Nov. 10, 2006*** Nov. 11, 2006****
1.
Less than P100,000.00
P625.00 P750.00 P875.00 P1,000.00
2.
P100,000.00 or more but 1,000.00 1,200.00 1,400.00 1,600.00
less than P150,000.00
3.
P150,000.00 or more but 1,250.00 1,500.00 1,750.00 2,000.00
less than P200,000.00
4.
P200,000.00 or more but 1,875.00 2,250.00 2,625.00 3,000.00
less than P250,000.00
5.
P250,000.00 or more but 2,190.00 2,630.00 3,070.00 3,500.00
less than P300,000.00
6.
P300,000.00 or more but 2,500.00 3,000.00 3,500.00 4,000.00
less than P350,000.00
7.
P350,000.00 or more but 2,820.00 3,380.00 4,000.00 4,500.00
not than P400,000.00
8.
For each P1,000.00 in
12.50
15.00
17.50
20.00
excess of P400,000.00
IF THE ACTION INVOLVES BOTH A MONEY CLAIM AND RELIEF PERTAINING TO PROPERTY, THEN THE FEES WILL BE
CHARGED ON BOTH THE AMOUNTS CLAIMED AND VALUE OF PROPERTY BASED ON THE FORMULA PRESCRIBED IN
THIS PARAGRAPH A.
(b)
For filing:
From effectivity Nov. 11, 2004 to Nov. 11, 2005 to Effective
1.
to Nov. 10, 2004* Nov. 10, 2005**
Nov. 10, 2006*** Nov. 11, 2006****
Actions where the value of
P750.00 P1,000.00
P1,500.00
P2,000.00
the subject matter cannot
be estimated
2.
Special civil actions, except
750.00 1,000.00 1,500.00 2,000.00
judicial foreclosure of
mortgage, EXPROPRIATION
PROCEEDINGS, PARTITION
AND QUIETING OF TITLE
which shall be governed by
paragraph (a) above
3.
All other actions not involving
750.00 1,000.00 1,500.00 2,000.00
property
(c) For filing requests for extrajudicial foreclosure of real estate or chattel mortgage BY THE SHERIFF OR NOTARY
PUBLIC, if the amount of the indebtedness, or the mortgagee's claim is:
From effectivity Nov. 11, 2004 to Nov. 11, 2005 to Effective
to Nov. 10, 2004* Nov. 10, 2005**
Nov. 10, 2006*** Nov. 11, 2006****
1.
Less than P50,000.00
P350.00 P420.00 P490.00 P550.00
2.
P50,000.00 or more but
500.00 600.00 700.00 800.00
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less than P100,000.00
3.
P100,000.00 or more but 625.00 750.00 875.00 1,000.00
less than P150,000.00
4.
P150,000.00 or more but 820.00 975.00 1,140.00 1,300.00
less than P200,000.00
5.
P200,000.00 or more but 1,250.00 1,500.00 1,750.00 2,000.00
less than P250,000.00
6.
P250,000.00 or more but 1,570.00 1,875.00 2,190.00 2,500.00
less than P300,000.00
7.
P300,000.00 or more but 1,875.00 2,250.00 2,625.00 3,000.00
not more than P400,000.00
8.
P400,000.00 or more but 2,190.00 2,630.00 3,070.00 3,500.00
less than P500,000.00
9.
P500,000.00 or more but not
2,500.00 3,000.00 3,500.00 4,000.00
more than P1,000,000.00
10.
For each P1,000.00 in
12.50
15.00
17.50
20.00
excess of P1,000,000.00
* The proposed rates be 25% of the pre-2004 legal fees composed of the Judiciary Development Fund and the original
fees.
** The proposed rates correspond to the sum of the current amounts accruing to the general fund and the Judiciary
Development Fund; and 50% thereof effective from 2004 up to Nov. 10, 2005.
*** The proposed rates for the period from Nov. 11, 2005 to Nov. 10, 2006 correspond to the sum of the pre-2004 amounts
accruing to the general fund and the Judiciary Development Fund; and 75% thereof.
**** The proposed rates for the period from Nov. 11, 2006 to Nov. 10, 2007 correspond to the sum of the pre-2004
amounts accruing to the general fund and the Judiciary Development Fund; and 100% thereof.
(d) For initiating proceedings for the allowance of wills, granting letters of administration, appointment of guardians,
trustees, and other special proceedings, the fees payable shall be collected in accordance with the value of the property
involved in the proceedings, which must be stated in the application or petition, as follows:
From effectivity Nov. 11, 2004 to Nov. 11, 2005 to Effective
to Nov. 10, 2004* Nov. 10, 2005**
Nov. 10, 2006*** Nov. 11, 2006****
1.
Not more than P100,000.00
P2,000.00
2..
More than P100,000.00 but
2,500.00 3,000.00 3,500.00 4,000.00
P2,500.00
P3,000.00
P3,500.00
less than P150,000.00
3.
P150,000.00 or more but 2,820.00 3,400.00 4,100.00 4,700.00
less than P200,000.00
4.
P200,000.00 or more but 3,125.00 3,750.00 4,375.00 5,000.00
less than P250,000.00
5.
P250,000.00 or more but 3,440.00 4,125.00 4,820.00 5,500.00
less than P300,000.00
6.
P300,000.00 or more but 3,750.00 4,500.00 5,250.00 6,000.00
less than P350,000.00
7.
P350,000.00 or more but 4,070.00 4,875.00 5,690.00 6,500.00
not more than P400,000.00
8.
For each P1,000.00 in excess
12.50
15.00
17.50
20.00
of P400,000.00
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If the value of the estate as definitely appraised by the court is more than the value declared in the applications, the fees
on the difference shall be paid: Provided, HOWEVER, that a certificate from the clerk of court that the proper fees had
been paid shall be required prior to the closure of the proceedings.
(e) For filing petitions for naturalization or other modes of acquisition of citizenship, TEN THOUSAND (P10,000.00) PESOS;
(f) For filing petitions for adoption, support, annulment of marriage, legal separation and other actions or proceedings
under the DOMESTIC ADOPTION ACT OF 1998, THE INTER-COUNTRY ADOPTION ACT OF 1995 AND THE Family Code,
AS FOLLOWS:
(1) WHEN PETITIONER FOR ADOPTION IS A FILIPINO CITIZEN, TWO THOUSAND (P2,000.00) PESOS;
(2) WHEN PETITIONER FOR ADOPTION IS A FOREIGN NATIONAL, TEN THOUSAND (P10,000.00) PESOS;
(3) SUPPORT, FIVE HUNDRED (P500.00) PESOS;
(4) ANNULMENT OF MARRIAGE, DECLARATION OF NULLITY OF MARRIAGE, OR LEGAL SEPARATION, THREE
THOUSAND (P3,000.00) PESOS; AND
(5) CUSTODY OF MINORS, ONE THOUSAND (P1,000.00) PESOS;
If the proceedings involve separation of property, an additional fee corresponding to the value of the property involved
shall be collected, computed in accordance with the rates for special proceedings. (Letter d of this section)
(g) For all other special proceedings not concerning property, FIVE HUNDRED (P500.00) PESOS;
(h)
For the performance of marriage ceremony, including THE issuance of THE certificate of marriage, TWO
THOUSAND (P2,000.00) PESOS in cities and ONE THOUSAND (P1,000.00) PESOS in other areas;
(i)
For filing an application for commission as notary public, TWO THOUSAND (P2,000.00) PESOS;
(j)
For certified copies of any paper, record, decree, judgment or entry thereof for each page, TEN (P10.00) PESOS;
(k)
For a commission on all money (excluding cash bond) coming into the clerk's hands by law, rule, order or writ of
court, TWO (2%) per centum on all sums not exceeding FORTY THOUSAND (P40,000.00) PESOS, and ONE AND A HALF
(1.5%) per centum on all sums in excess of FORTY THOUSAND (P40,000.00) PESOS;
(l)
FOR APPEALS FROM REGIONAL TRIAL COURTS TO COURT OF APPEALS, SANDIGANBAYAN, OR SUPREME
COURT — THREE THOUSAND (P3,000.00) PESOS;
(m)
FOR FILING A MOTION FOR OR ASKING IN THE PRAYER OF THE PLEADING THE ISSUANCE OF PROVISIONAL
REMEDIES UNDER RULE 57, 58, 59, 60 AND 61 LIKE TEMPORARY RESTRAINING ORDER (TRO), WRIT OF
PRELIMINARY INJUNCTION OR ATTACHMENT AND OTHERS — AN ADDITIONAL FIVE HUNDRED (P500.00) PESOS
SHALL BE COLLECTED;
(n)
FOR CLEARANCES AND CERTIFICATIONS ISSUED — FIFTY (P50.00) PESOS;
(o)
FOR SERVICES PERFORMED AS EX-OFFICIO NOTARY PUBLIC — TWO HUNDRED (P200.00) PESOS;
(p)
For any other services as clerk not provided in this section, TWO HUNDRED (P200.00) PESOS shall be collected.
SECTION 8.
Clerks of Court of the First Level Courts. —
(a) For each civil action or proceeding where the value of the subject matter involved, or the amount of the demand,
inclusive of interests, PENALTIES, SURCHARGES, damages of whatever kind, attorney's fees, litigation expenses and
costs is:
From effectivity Nov. 11, 2004 to Nov. 11, 2005 to Effective
to Nov. 10, 2004* Nov. 10, 2005**
Nov. 10, 2006*** Nov. 11, 2006****
1.
Not more than P20,000.00P190.00 P225.00 P270.00 P300.00
2.
More than P20,000.00 but 625.00 750.00 875.00 1,000.00
not more than P100,000.00
3.
More than P100,000.00 but
1,570.00 1,875.00 2,190.00 2,500.00
not more than P200,000.00
4.
More than P200,000.00 but
2,190.00 2,630.00 3,070.00 3,500.00
not more than P300,000.00
5.
More than P300,000.00 but
3,125.00 3,750.00 4,375.00 5,000.00
not more than P400,000.00
In a real action, other than for forcible entry and unlawful detainer, the FAIR MARKET value of the property STATED IN
THE CURRENT TAX DECLARATION OR CURRENT ZONAL VALUATION OF THE BUREAU OF INTERNAL REVENUE or, if
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not declared for taxation purposes, the estimated value thereof shall be alleged by the claimant and shall be the basis in
computing the fees.
(b) For initiating proceedings for the allowance of wills, granting the letters of administration and settlement of estates of
small value, where the value of the estate is:
From effectivity Nov. 11, 2004 to Nov. 11, 2005 to Effective
to Nov. 10, 2004* Nov. 10, 2005**
Nov. 10, 2006*** Nov. 11, 2006****
1.
Not more than P20,000.00
P320.00 P375.00 P440.00 P500.00
2.
More than P20,000.00 but 1,690.00 2,025.00 2,370.00 2,700.00
not more than P100,000.00
3.
More than P 100,000.00 but
2,500.00 3,000.00 3,500.00 4,000.00
not more than P200,000.00
4.
For each proceeding other
250.00 300.00 350.00 400.00
than the allowance of wills
(probate) granting of the
letter of administration,
settlement of estates of
small value
(c) For forcible entry and unlawful detainer cases WHERE NO DAMAGES/COSTS ARE PRAYED FOR, FIVE HUNDRED
(P500.00) PESOS; AND
IN CASES WHERE INTERESTS, PENALTIES, SURCHARGES, DAMAGES OF WHATEVER KIND, AND ATTORNEY'S FEES
ARE PRAYED FOR, AN AMOUNT EQUIVALENT TO THAT INDICATED IN THE SCHEDULE OF PAYMENTS UNDER
SUBSECTION (A) OF THIS SECTION SHALL BE COLLECTED, IN ADDITION TO THE AMOUNT OF FIVE HUNDRED
(P500.00) PESOS PROVIDED FOR IN THIS SUBSECTION.
(d) FOR ALL OTHER ACTIONS NOT COVERED BY PRECEDING PARAGRAPHS:
From effectivity Nov. 11, 2004 to Nov. 11, 2005 to Effective
to Nov. 10, 2004 Nov. 10, 2005
Nov. 10, 2006
Nov. 11, 2006
400.00 P500.00 P600.00 P700.00
(e) FOR FILING A MOTION OR ASKING IN THE PRAYER OF THE PLEADING THE ISSUANCE OF PROVISIONAL
REMEDIES UNDER RULES 57, 58, 59, 60 AND 61 LIKE TEMPORARY RESTRAINING ORDER (TRO), WRIT OF
PRELIMINARY INJUNCTION OR ATTACHMENT, AN ADDITIONAL TWO HUNDRED (P250.00) PESOS SHALL BE
COLLECTED;
(f) For appeals in all actions or proceedings, including forcible entry and detainer cases, taken from the courts of first
level and petitions to the 2nd level courts — ONE THOUSAND (P1,000.00) PESOS;
(g) For the performance of marriage ceremony, including THE issuance of THE certificate of marriage, TWO THOUSAND
(P2,000.00) PESOS in cities and ONE THOUSAND (P1,000.00) PESOS in other areas;
(h) For taking affidavit, ONE HUNDRED (P100.00) PESOS;
(i) For taking acknowledgement, TWO HUNDRED (P200.00) PESOS;
(j) For taking and certifying depositions, including oaths, per page, TWENTY (P20.00) PESOS;
(k) For certified copies of any PAPER, RECORD, DECREE, JUDGMENT OR ENTRY THEREOF FOR EACH PAGE, TEN
(P10.00) PESOS;
(l) For stamping and registering books as required by Articles Nineteen and Thirty-Six of the Code of Commerce, each
book, FIFTY (P50.00) pesos;
(m) For services performed as ex-officio notary public — ONE HUNDRED (P100.00) PESOS;
(n) FOR A COMMISSION ON ALL MONEY (EXCLUDING CASH BOND) COMING INTO THE CLERK'S HANDS BY LAW,
RULE, ORDER OR WRIT OF COURT, TWO (2%) PER CENTUM ON ALL SUMS NOT EXCEEDING FORTY THOUSAND
(P40,000.00) PESOS, AND ONE AND A HALF (1.5%) PER CENTUM ON ALL SUMS IN EXCESS OF FORTY THOUSAND
(P40,000.00) PESOS;
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(o) For clearances and certifications issued — FIFTY (P50.00) PESOS;
(p) FOR ANY OTHER SERVICES AS CLERK NOT PROVIDED IN THIS SECTION, ONE HUNDRED (P100.00) PESOS SHALL
BE COLLECTED.
SECTION 9. Mediation Fees. —
A. Trial Courts
The Clerks of Court of the Regional Trial Courts and the First-Level Courts shall collect the amount of FIVE HUNDRED
PESOS (P500.00) (1) upon the filing of a Complaint or an Answer with a mediatable permissive or compulsory
counterclaim or cross-claim, complaint-in-intervention, third-party complaint, fourth-party complaint, etc. in civil cases, a
Petition, an Opposition and a Creditors' Claim in Special Proceedings; (2) upon the filing of a Complaint/Information for
offenses covered by the Katarungang Pambarangay Law, violation of B.P. Blg. 22, estafa and libel cases where damages
are sought; and (3) upon the filing of a Complaint/Information for quasi-offenses under Title 14 of the Revised Penal Code.
The Clerks of Court of the First Level Courts shall collect the amount of FIVE HUNDRED PESOS (P500.00) upon the filing
of a Notice of Appeal to the Regional Trial Court.
The Clerks of Court of the Regional Trial Court shall collect the amount of ONE THOUSAND PESOS (P1,000.00) upon the
filing of a Notice of Appeal to the Court of Appeals or the Sandiganbayan.
B. Court of Appeals, Sandiganbayan and Court of Tax Appeals
The Clerks of Court of the Court of Appeals, Sandiganbayan and Court of Tax Appeals shall collect the amount of ONE
THOUSAND PESOS (P1,000.00) upon the filing of a mediatable case, petition, special civil action, a comment/answer to
the petition or action and the appellee's brief. The Clerk of Court of the Court of Tax Appeals shall also collect the amount
of ONE THOUSAND PESOS (P1,000.00) for the appeals from the decision of a CTA Division to the CTA En Banc. EIDTAa
Provided that in all cases, a pauper litigant shall be exempt from contributing to the Mediation Fund. Despite such
exemption, the court shall provide that the unpaid contribution to the Mediation Fund shall be considered a lien on any
monetary award in a judgment favorable to the pauper litigant.
And provided further, that an accused-appellant shall also be exempt from contributing to the Mediation Fund.
The amount collected shall be receipted and separated as part of a special fund to be known as the "Mediation Fund"
and shall accrue to the SC-PHILJA-PMC Fund, disbursements from which are and shall be pursuant to guidelines
approved by the Supreme Court.
The Fund shall be utilized for the promotion of court-annexed mediation and other relevant modes of alternative dispute
resolution (ADR), training of mediators, payment of mediator's fees, and operating expenses of the Philippine Mediation
Center (PMC) units including expenses for technical assistance and organizations/individuals, transportation/
communication expenses, photocopying, supplies and equipment, expense allowance and miscellaneous expenses,
whenever necessary, subject to auditing rules and regulations. In view thereof, the mediation fees shall not form part of
the Judiciary Development Fund (JDF) under P.D. No. 1949 nor of the special allowances granted to justices and judges
under Republic Act No. 9227.
SECTION 10. Sheriffs, Process Servers and other persons serving processes. —
(a) For serving summons and copy of complaint, for each defendant, TWO HUNDRED (P200.00) PESOS;
(b) For serving subpoenas in civil action or OTHER proceedings, for each witness to be served, ONE HUNDRED (P100.00)
PESOS;
(c) For executing a writ of attachment against the property of defendant, FIVE HUNDRED (P500.00) PESOS per
defendant;
(d) For serving and implementing a temporary restraining order, or writ of injunction, preliminary or final, of any court,
THREE HUNDRED (P300.00) PESOS per defendant;
(e) For executing a writ of replevin, FIVE HUNDRED (P500.00) PESOS;
(f) For filing bonds or other instruments of indemnity or security in provisional remedies, for each bond or instrument,
ONE HUNDRED (P100.00) PESOS;
(g) For executing a writ or process to place a party in possession of real PROPERTY OR estates, THREE HUNDRED
(P300.00) PESOS per property;
(h) For SERVICES RELATING TO THE POSTING AND PUBLICATION REQUIREMENTS UNDER RULE 39 (EXECUTION,
SATISFACTION AND EFFECT OF JUDGMENTS) AND IN EXTRAJUDICIAL FORECLOSURE OF MORTGAGE BY
SHERIFF OR NOTARY PUBLIC besides the cost of publication, ONE HUNDRED AND FIFTY (P150.00) PESOS;
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(i) For taking inventory of goods levied upon when the inventory is ordered by the court, THREE HUNDRED (P300.00)
PESOS per day or actual inventory;
(j) For levying on execution on personal or real property, THREE HUNDRED (P300.00) PESOS;
(k) For issuing a notice of garnishment, for each notice, ONE HUNDRED (P100.00) PESOS;
(l) For money collected by him ACTUAL OR CONSTRUCTIVE (WHEN HIGHEST BIDDER IS THE MORTGAGEE AND
THERE IS NO ACTUAL COLLECTION OF MONEY) by order, execution, attachment, or any other process, judicial or
extrajudicial which shall immediately be turned over to the Clerk of Court, the following sums shall be paid to the clerk
of court to wit:
(1) On the first FOUR THOUSAND (P4,000.00) PESOS, FIVE AND A HALF (5.5%) per centum;
(2) On all sums in excess of FOUR THOUSAND (P4,000.00) PESOS, THREE (3%) per centum;
IN ADDITION TO THE FEES HEREINABOVE FIXED, THE AMOUNT OF ONE THOUSAND (P1,000.00) PESOS SHALL BE
DEPOSITED WITH THE CLERK OF COURT UPON FILING OF THE COMPLAINT TO DEFRAY THE ACTUAL TRAVEL
EXPENSES OF THE SHERIFF, PROCESS SERVER OR OTHER COURT-AUTHORIZED PERSONS IN THE SERVICE OF
SUMMONS, SUBPOENA AND OTHER COURT PROCESSES THAT WOULD BE ISSUED RELATIVE TO THE TRIAL OF THE
CASE. IN CASE THE INITIAL DEPOSIT OF ONE THOUSAND (P1,000.00) PESOS IS NOT SUFFICIENT, THEN THE
PLAINTIFF OR PETITIONER SHALL BE REQUIRED TO MAKE AN ADDITIONAL DEPOSIT. THE SHERIFF, PROCESS
SERVER OR OTHER COURT AUTHORIZED PERSON SHALL SUBMIT TO THE COURT FOR ITS APPROVAL A STATEMENT
OF THE ESTIMATED TRAVEL EXPENSES FOR SERVICE OF SUMMONS AND COURT PROCESSES. ONCE APPROVED,
THE CLERK OF COURT SHALL RELEASE THE MONEY TO SAID SHERIFF OR PROCESS SERVER. AFTER SERVICE, A
STATEMENT OF LIQUIDATION SHALL BE SUBMITTED TO THE COURT FOR APPROVAL. AFTER RENDITION OF
JUDGMENT BY THE COURT, ANY EXCESS FROM THE DEPOSIT SHALL BE RETURNED TO THE PARTY WHO MADE THE
DEPOSIT.
IN CASE A REQUEST TO SERVE THE SUMMONS AND OTHER PROCESSES IS MADE TO THE CLERK OF COURT AND
EX-OFFICIO SHERIFF WHO HAS JURISDICTION OVER THE PLACE WHERE THE DEFENDANT OR THE PERSON
SUBJECT OF THE PROCESS RESIDES, A REASONABLE AMOUNT SHALL BE WITHDRAWN FROM SAID DEPOSIT BY
THE CLERK OF THE COURT ISSUING THE PROCESS FOR THE PURCHASE OF A POSTAL MONEY ORDER TO COVER
THE ACTUAL EXPENSES OF THE SERVING SHERIFF.
With regard to sheriff's expenses in executing writs issued pursuant to court orders or decisions or safeguarding the
property levied upon, attached or seized, including kilometrage for each kilometer of travel, guards' fees, warehousing
and similar charges, the interested party shall pay said expenses in an amount estimated by the sheriff, subject to the
approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the
clerk of court and ex-officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process,
subject to liquidation within the same period for rendering a return on the process. THE LIQUIDATION SHALL BE
APPROVED BY THE COURT. Any unspent amount shall be refunded to the party making the deposit. A full report shall be
submitted by the deputy sheriff assigned with his return, and the sheriff's expenses shall be taxed as costs against the
judgment debtor.
SECTION 11. Stenographers. — Stenographers shall give certified transcript of notes taken by them to every person
requesting the same upon payment to the Clerk of Court of (a) TEN (P10.00) PESOS for each page of not less than two
hundred and fifty words before the appeal is taken and (b) FIVE (P5.00) PESOS for the same page, after the filing of the
appeal, provided, however, that one-third (1/3) of the total charges shall accrue to the Judiciary Development Fund (JDF)
and the remaining two-thirds (2/3) to the stenographer concerned. (10a)
SECTION 12. Notaries. — No notary public shall charge or receive for any service rendered by him any fee, remuneration
or compensation in excess of those expressly prescribed in the following schedule:
(a) For protests of drafts, bills of exchange, or promissory notes for non-acceptance or non-payment, and for notice
thereof, ONE HUNDRED (P100.00) PESOS;
(b) For the registration of such protest and filing or safekeeping of the same, ONE HUNDRED (P100.00) PESOS;
(c) For authenticating powers of attorney, ONE HUNDRED (P100.00) PESOS;
(d) For sworn statement concerning correctness of any account or other document, ONE HUNDRED (P100.00) PESOS;
(e) For each oath of affirmation, ONE HUNDRED (P100.00) PESOS;
(f) For receiving evidence of indebtedness to be sent outside, ONE HUNDRED (P100.00) PESOS;
(g) For issuing a certified copy of all or part of his notarial register or notarial records, for each page, ONE HUNDRED
(P100.00) PESOS;
(h) For taking depositions, for each page, ONE HUNDRED (P100.00) PESOS; and
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(i) For acknowledging other documents not enumerated in this section, ONE HUNDRED (P100.00) PESOS. (11a)
SECTION 13. Other officers taking depositions. — Other officers taking depositions shall receive the same compensation
as above provided for notaries public for taking and certifying depositions.
SECTION 14. Witness fees. —
(a) Witnesses in the Supreme Court, in the Court of Appeals and in the Regional Trial Courts and in the 1st level courts,
either in actions or special proceedings, shall be entitled to TWO HUNDRED (P200.00) PESOS per day, inclusive of
ALL EXPENSES;
(b) Fees to which witnesses may be entitled in a civil action shall be allowed on the certification of the clerk of court or
judge of his appearance in the case. A witness shall not be allowed compensation for his attendance in more than one
case or more than one side of the same case at the same time, but may elect in which of several cases or on which
side of a case, when he is summoned by both sides, to claim his attendance. A person who is compelled to attend
court on other business shall not be paid as a witness.
SECTION 15. Fees of appraisers. — Appraisers appointed to appraise the estate of a ward of a deceased person shall
each receive a compensation to be fixed by the court of NOT LESS THAN THREE HUNDRED (P300.00) PESOS per day for
the time actually and necessarily employed in the performance of their duties and in making their reports, which fees, in
each instance, shall be paid out of the estate of the ward or deceased person, as the case may be. Any actual and
necessary traveling expenses incurred in the performance of their duties of such appraisers may likewise be allowed and
paid out of the estate.
SECTION 16. Fees of commissioners in eminent domain proceedings. — The commissioners appointed to appraise land
sought to be condemned for public uses in accordance with these rules shall each receive a compensation to be fixed by
the court of NOT LESS THAN THREE HUNDRED (P300.00) PESOS per day for the time actually and necessarily employed
in the performance of their duties and in making their report to the court, which fees shall be taxed as a part of the costs
of the proceedings.
SECTION 17. Fees of commissioners in the proceedings for partition of real estate. — The commissioners appointed to
make partition of real estate shall each receive a compensation to be fixed by the court of NOT LESS THAN THREE
HUNDRED (P300.00) PESOS per day for the time actually and necessarily employed in the performance of their duties
and in making their report to the court, which fees shall be taxed as a part of the costs of the proceedings.
SECTION 18. Fees and the account thereof . — The clerk, under the direction of the judge, shall keep a book in which
shall be entered the items of fees which have accrued for the transaction of businesses covered by the provisions of this
rule, for which fees are payable, specifying for what business each time of fees have accrued. Receipts shall be given for
all fees received and they shall be accounted for in the manner provided in relation to the fees of clerks of courts in
actions. The book of fees kept by the clerk shall be accounted for in the manner provided in relation to the fees of the
clerk of court in inspection of auditing officer and other interested therein.
SECTION 19. Indigent litigants exempt from payment of legal fees. — INDIGENT LITIGANTS (A) WHOSE GROSS INCOME
AND THAT OF THEIR IMMEDIATE FAMILY DO NOT EXCEED AN AMOUNT DOUBLE THE MONTHLY MINIMUM WAGE OF
AN EMPLOYEE AND (B) WHO DO NOT OWN REAL PROPERTY WITH A FAIR MARKET VALUE AS STATED IN THE
CURRENT TAX DECLARATION OF MORE THAN THREE HUNDRED THOUSAND (P300,000.00) PESOS SHALL BE EXEMPT
FROM THE PAYMENT OF LEGAL FEES.
The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court
otherwise provides.
To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do
not earn a gross income abovementioned, nor they own any real property with the fair value aforementioned, supported
by an affidavit of a disinterested person attesting to the truth of the litigant's affidavit. The current tax declaration, if any,
shall be attached to the litigant's affidavit.
Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or
to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred. (16a)
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SECTION 20. In addition to the fees imposed in the preceding sections, a victim-compensation fee of FIVE (P5.00) PESOS
pursuant to Rep. Act No. 7309 shall be assessed and collected for the filing of every complaint or petition initiating an
ordinary civil action, special civil action or special proceeding in the trial courts including civil actions impliedly instituted
with criminal actions under Rule 111 of the Revised Rule of Criminal Procedure where filing fee is likewise collected. All
sums collected shall be remitted to the Department of Justice every quarter by the Clerk of Court concerned. (18-A)
SECTION 21. Other fees. — The following fees shall also be collected by the clerks of the Regional Trial Courts or courts
of the first level, as the case may be:
(a) In estafa cases where the offended party fails to manifest within fifteen (15) days following the filing of the information
that the civil liability arising from the crime has been or would be separately prosecuted, OR IN VIOLATIONS OF B.P.
NO. 22 IF THE AMOUNT INVOLVED IS:
From effectivity Nov. 11, 2004 to Nov. 11, 2005 to Effective
to Nov. 10, 2004* Nov. 10, 2005**
Nov. 10, 2006*** Nov. 11, 2006****
1.
Less than P100,000.00
P625.00 P750.00 P875.00 P1,000.00
2.
P100,000.00 or more but 1,000.00 1,200.00 1,400.00 1,600.00
less than P150,000.00
3.
P150,000.00 or more but 1,250.00 1,500.00 1,750.00 2,000.00
less than P200,000.00
4.
P200,000.00 or more but 1,875.00 2,250.00 2,625.00 3,000.00
less than P250,000.00
5.
P250,000.00 or more but 2,190.00 2,630.00 3,070.00 3,500.00
less than P300,000.00
6.
P300,000.00 or more but 2,500.00 3,000.00 3,500.00 4,000.00
less than P350,000.00
7.
P350,000.00 or more but 2,820.00 3,400.00 4,100.00 4,700.00
not more than P400,000.00
8.
For each P1,000.00 in
12.50
15.00
17.50
20.00
excess of P400,000.00
(b) For motions for postponement (whether verbal or written) after completion of the pre-trial stage, TWO HUNDRED
(P200.00) PESOS for the first, and an additional FIFTY (P50.00) PESOS for every motion for postponement thereafter
based on that for the immediately preceding motion. For any other motion, TWO HUNDRED (P200.00) PESOS;
(c) For ALL TYPES OF bonds (cash, surety and property) in criminal and civil cases, FIVE HUNDRED (P500.00) PESOS per
each bond;
(d) For entries of certificates of sale and final deeds of sale in extra judicial foreclosures of mortgages, FIVE HUNDRED
(P500.00) PESOS;
(e) FOR RECEPTION OF EVIDENCE BY THE CLERK OF COURT, FIVE HUNDRED (P500.00) PESOS;
(f) FOR APPLICATIONS FOR ACCREDITATION OF NEWSPAPERS AND PERIODICALS SEEKING TO PUBLISH JUDICIAL
AND LEGAL NOTICES AND OTHER SIMILAR ANNOUNCEMENTS, FIVE THOUSAND (P5,000.00) PESOS; FOR
APPEALS FROM DECISIONS OF EXECUTIVE JUDGE — ONE THOUSAND (P1,000.00) PESOS; AND FOR FILING AN
ACTION FOR REVOCATIONS OR SUSPENSION OF ACCREDITATION — ONE THOUSAND (P1,000.00) PESOS;
(g) FOR ELECTION CONTESTS INCLUDING ELECTION PROTESTS, COUNTER-PROTESTS, PROTESTS-ININTERVENTION AND QUO WARRANTO PROCEEDINGS INVOLVING MUNICIPAL OFFICES — THREE THOUSAND
(P3,000.00) PESOS; AND BARANGAY OFFICES — ONE THOUSAND FIVE HUNDRED (P1,500.00) PESOS. IN
ADDITION, THE FILING FEES PRESCRIBED BY THE COMELEC RULES OF PROCEDURES FOR THESE ACTIONS
SHALL ALSO BE COLLECTED AND INDICATED IN THE RECEIPT.
(h) FOR PETITIONS FOR INCLUSION, EXCLUSION OR CORRECTION OF NAMES OF VOTERS, ONE HUNDRED (P100.00)
PESOS;
For petitions for rehabilitation, under the Interim Rules of Procedure on Corporate Rehabilitation, the fees payable shall
be based on the value of the assets of, or amount of monetary claims against the debtor, whichever is higher, which must
be declared in the Petition, as follows:
1.
FEES PAYABLE. —
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From effectivity Nov. 11, 2004
to
to
Nov. 10, 2004
to
Nov. 11, 2005
Effective
Nov. 11, 2006
Nov. 10, 2005
Nov. 10, 2006
01.
Less than P10,000,000.00 P12,500.00
02.
P10,000,000.00 or more but
P15,000.00
P17,500.00
P20,000.00
P25,500.00
P30,000.00
P35,000.00
P40,000.00
P37,500.00
P45,000.00
P52,500.00
P60,000.00
P50,000.00
P60,000.00
P70,000.00
P80,000.00
P62,500.00
P75,000.00
P87,500.00
P100,000.00
P75,000.00
P90,000.00
P105,000.00
P120,000.00
P87,500.00
P105,000.00
P122,500.00
P140,000.00
P100,000.00
P120,000.00
P140,000.00
P160,000.00
P112,500.00
P135,000.00
P157,500.00
P180,000.00
P125,000.00
P150,000.00
P175,000.00
P200,000.00
less than P20,000,000.00
03.
P20,000,000.00 or more but
less than P30,000,000.00
04.
P30,000,000.00 or more but
less than P40,000,000.00
05.
P40,000,000.00 or more but
less than P50,000,000.00
06.
P50,000,000.00 or more but
less than P60,000,000.00
07.
P60,000,000.00 or more but
less than P70,000,000.00
08.
P70,000,000.00 or more but
less than P80,000,000.00
09.
P80,000,000.00 or more but
less than P90,000,000.00
10.
P90,000,000.00 or more but
not more than
P100,000,000.00
11.
For each P10,000.00 in
P12.50 P15.00 P17.50 P20.00
excess of P100,000,000.00
2.
MANNER OF PAYMENT. —
2.1
FEES AMOUNTING TO P100,000.00 OR LESS SHALL BE PAID UPON THE FILING OF THE PETITION.
2.2
FEES IN EXCESS OF P100,000.00 MAY BE PAID ON STAGGERED BASIS AS FOLLOWS:
2.2.1
P100,000.00 SHALL BE PAID UPON FILING OF THE PETITION
2.2.2
THE BALANCE SHALL BE PAID IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
2.2.2.1 25% SHALL BE PAID UPON THE ISSUANCE OF AN ORDER GIVING DUE COURSE TO THE PETITION;
EaIcAS
2.2.2.2 25% SHALL BE PAID UPON THE APPROVAL OF THE REHABILITATION PLAN; AND
2.2.2.3 THE BALANCE OF 50% SHALL BE INCLUDED AS PART OF THE PREFERRED PAYABLES TO BE SETTLED IN
THE REHABILITATION PLAN.
The value of the assets shall be based on the fair market value of the real properties of the petitioner stated in the tax
declaration or the zonal value thereof fixed by the Bureau of Internal Revenue, whichever is higher, or, if there is none, the
stated value of the assets in the petition. In case of personal property, the value shall be stated by the petitioner in the
petition. aASEcH
If during trial, the court finds that the value of the assets is more or the monetary claims are higher than the amounts
stated in the complaint or petition, then it shall order the payment of additional fees based thereon.
(i) FOR PETITIONS FOR THE COMPULSORY CONFINEMENT OF A DRUG DEPENDENT UNDER SECTION 61 OF THE
"COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002", THREE HUNDRED (P300.00) PESOS;
(j) For petitions for insolvency or other cases involving intra-corporate controversies, the fees prescribed under letter a,
section 7 shall apply.
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SECTION 22. Government exempt. — The Republic of the Philippines, its agencies and instrumentalities are exempt from
paying the legal fees provided in the rule. Local governments and government-owned or controlled corporations with or
without independent charters are not exempt from paying such fees.
HOWEVER, ALL COURT ACTIONS, CRIMINAL OR CIVIL, INSTITUTED AT THE INSTANCE OF THE PROVINCIAL, CITY OR
MUNICIPAL TREASURER OR ASSESSOR UNDER SEC. 280 OF THE LOCAL GOVERNMENT CODE OF 1991 SHALL BE
EXEMPT FROM THE PAYMENT OF COURT AND SHERIFF'S FEES. (page 211 of the Manual for Clerks of Court)
A.M. No. 04-2-04-SC (September 3, 2007) — GUIDELINES IN THE IMPLEMENTATION OF SECTION 1 OF RULE 141 OF
THE RULES OF COURT, AS AMENDED
Section 1. Payment of Fees. — Upon filing of any initiatory pleading, all prescribed fees such as but not limited to filing
fees accruing to the Judiciary Development Fund and Special Allowance for the Judiciary Fund, and other fees accruing
to the Legal Research Fund, Victim Compensation Fund and Mediation Fund, shall be paid in full, provided that, in
petitions for rehabilitation under the Interim Rules of Procedure on Corporate Governance, filing fees in excess of One
Hundred Thousand Pesos (P100,000.00) may be paid on a staggered basis, subject to the provisions of Section 2 hereof,
in accordance with the schedule provided under the Resolution of the Court in A.M. No. 04-2-04-SC dated September 19,
2006.
Section 2. Modes of Payment. — The filing fees may be paid in cash or check, as follows:
(a) Cash Payment:
(1) Fees not accruing to the Judiciary Development Fund or Special Allowance for the Judiciary Fund such as but not
limited to the Legal Research Fee, Victim Compensation Fee, Mediation Fee, and Cadastral Fee.
(2) Initial deposit of One Thousand Pesos (P1,000.00) to defray actual travel expenses in the service of summons,
subpoena and other court processes.
(b) Cash or Check Payment:
(1) Fees accruing to the Judiciary Development Fund amounting to Five Thousand Pesos (P5,000.00) or less.
(2) Fees accruing to the Special Allowance for the Judiciary Fund amounting to Five Thousand Pesos (P5,000.00) or
less.
(c) Check Payment:
(1) Fees accruing to the Judiciary Development Fund exceeding Five Thousand Pesos (P5,000.00).
(2) Fees accruing to the Special Allowance for the Judiciary Fund exceeding Five Thousand Pesos (P5,000.00).
Check payments may be in the form of personal, company or manager's check, provided that, if the amount exceeds Fifty
Thousand Pesos (P50,000.00), it shall be paid in manager's check.
Section 3. When Payment is Made in Check. — All checks shall be crossed. No postdated, altered, or third-party check
shall be accepted. Only checks in the account name of the lawyer (or law firm) or the party (individual or corporate) filing
an action shall be accepted.
The fees accruing to the Judiciary Development Fund or the Special Allowance for the Judiciary Fund shall be paid in
separate checks payable to the "SUPREME COURT, JUDICIARY DEVELOPMENT FUND ACCOUNT" or to the "SUPREME
COURT, SPECIAL ALLOWANCE FOR THE JUDICIARY FUND ACCOUNT," respectively. The docket number, title of the
case, and the court where the case was filed shall be indicated in the dorsal/back portion of the check.
The official receipts issued for payment by check shall be stamped with the following notation: "PAYMENT CREDITED
ONLY UPON CHECK BEING CLEARED." The official receipts shall reflect accurately the name of the party on whose
behalf the payment is made, the docket number and title of the case, the amount paid in words and in figures, the check
number, the name of the bank and the branch where the checking account is maintained. The official receipt must be duly
signed by the Clerk of Court. Pending clearance of the check, the Clerk of Court retains the official receipt and issues a
certified true copy thereof to the payor.
Section 4. When Check is Dishonored. — Upon receipt of the notice of dishonor of the check from the depository bank by
the Supreme Court, the Fiscal Management and Budget Office (FMBO) shall inform in writing the Clerk of Court
concerned within five (5) days from receipt of the notice of dishonor. In multiple-sala courts, the Clerk of Court shall
inform in writing the Branch Clerk of Court where the case was raffled of the dishonor of the check within twenty-four (24)
hours from receipt of the notice. TDCAIS
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The court shall forthwith issue an order dismissing the case, in consonance with Section 3 of Rule 17. Upon the dismissal
of the case, the official receipt is automatically considered cancelled. No motion for reconsideration of the order of
dismissal shall be entertained. The dismissal of the case shall be without prejudice to the filing of a case against the
drawer of the dishonored check.
Section 5. Duty of the Clerk of Court, Officer-in-Charge or Accountable Officer. — The Clerk of Court, the Officer-inCharge in the Office of the Clerk of Court, or the duly authorized accountable officer designated in writing shall strictly
observe the procedural guidelines in the collection of fees accruing to the Judiciary Development Fund and the Special
Allowance for the Judiciary Fund, provided under Amended Administrative Circular No. 35-2004 dated August 20, 2004.
Section 6. Submission of Monthly Report. — The Clerk of Court shall accomplish a Monthly Report of Dismissed Cases
due to Dishonored Checks using Form LF-1 (a copy of which is hereto attached as Annex "A") to be submitted to the
Accounting Division, Financial Management Office, Office of the Court Administrator within ten (10) days after the end of
each month, attaching thereto the certified true copies of the following documents:
(a) cancelled official receipts;
(b) deposit slips;
(c) monthly report of collections and deposits of check; and
(d) court orders dismissing the case.
In the Cashbooks and Monthly Reports of the Judiciary Development Fund and the Special Allowance for the Judiciary
Fund, two sub-columns bearing the headings "Checks Received" and "Cleared as of _________ (date)" shall be added
under the column of "Official Receipt/Remittance Advice.”
Section 7. Judicial Nature of Assessment and Collection of Docket Fees. — Matters relating to the propriety and
correctness of the assessment and collection of docket fees are judicial in nature and should only be determined by the
regular courts, pursuant to the Resolution of the Court dated March 8, 2005 in A.M. No. 05-3-03-0.
Section 8. Refund of Filing Fees. — The refund of filing fees paid to the court on account of orders issued by the judges
shall be referred to the Chief Justice through the Court Administrator, pursuant to the Resolution of the Court dated
October 12, 2005 in A.M. No. 05-9-256-MeTC.
Section 9. Effectivity. — These Guidelines shall take effect on October 1, 2007 in designated areas as the Court, by
resolution, may direct.
A.M. NO. 04-2-04-SC (September 21, 2004)
The Court further Resolved to AFFIRM the actions of the Honorable Associate Justices, in its informal meeting held on 20
September 2004, and SUSPEND the new rates of the legal fees under Rule 141, effective 21 September 2004, viz.:
(a) Solemnization of marriage;
(b) Motions; and
(c) Compulsory counterclaims.
A.M. No. 08-11-7-SC (IRR) (September 10, 2009) — RULE ON THE EXEMPTION FROM THE PAYMENT OF LEGAL FEES
OF THE CLIENTS OF THE NATIONAL LEGAL AID COMMITTEE (NCLA) AND OF THE LEGAL AID OFFICES IN THE
LOCAL CHAPTERS OF THE INTEGRATED BAR OF THE PHILIPPINES (IBP)
ARTICLE I — Purpose
Section 1. Purpose. - This Rule is issued for the purpose of enforcing the right of free access to courts by the poor
guaranteed under Section 11, Article III of the Constitution. It is intended to increase the access to justice by the poor by
exempting from the payment of legal fees incidental to instituting an action in court, as an original proceeding or on
appeal, qualified indigent clients of the NCLA and of the legal aid offices in local IBP chapters nationwide.
ARTICLE II — Definition of Terms
Section 1. Definition of important terms. - For purposes of this Rule and as used herein, the following terms shall be
understood to be how they are defined under this Section:
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(a) "Developmental legal aid" means the rendition of legal services in public interest causes involving overseas workers,
fisherfolk, farmers, laborers, indigenous cultural communities, women, children and other disadvantaged groups and
marginalized sectors;
(b) "Disinterested person" refers to the punong barangay having jurisdiction over the place where an applicant for legal
aid or client of the NCLA or chapter legal aid office resides;
(c) "Falsity" refers to any material misrepresentation of fact or any fraudulent, deceitful, false, wrong or misleading
statement in the application or affidavits submitted to support it or the affidavit of a disinterested person required to
be submitted annually under this Rule which may substantially affect the determination of the qualifications of the
applicant or the client under the means and merit tests;
(d) "Legal fees" refers to the legal fees imposed under Rule 141 of the Rules of Court as a necessary incident of
instituting an action in court either as an original proceeding or on appeal. In particular, it includes filing or docket
fees, appeal fees, fees for issuance of provisional remedies, mediation fees, sheriff’s fees, stenographer’s fees (that is
fees for transcript of stenographic notes) and commissioner’s fees;
(e) "Means test" refers to the set of criteria used to determine whether the applicant is one who has no money or
property sufficient and available for food, shelter and basic necessities for himself and his family;
(f) "Merit test" refers to the ascertainment of whether the applicant’s cause of action or his defense is valid and whether
the chances of establishing the same appear reasonable and
(g) "Representative" refers to the person authorized to file an application for legal aid in behalf of the applicant when the
said applicant is prevented by a compelling reason from personally filing his application. As a rule, it refers to the
immediate family members of the applicant. However, it may include any of the applicant’s relatives or any person or
concerned citizen of sufficient discretion who has first-hand knowledge of the personal circumstances of the
applicant as well as of the facts of the applicant’s case.
ARTICLE III — Coverage
Section 1. Persons qualified for exemption from payment of legal fees. - Persons who shall enjoy the benefit of
exemption from the payment of legal fees incidental to instituting an action in court, as an original proceeding or on
appeal, granted under this Rule shall be limited only to clients of the NCLA and the chapter legal aid offices.
The said clients shall refer to those indigents qualified to receive free legal aid service from the NCLA and the chapter
legal aid offices. Their qualifications shall be determined based on the tests provided in this Rule.
Section 2. Persons not covered by the Rule. - The following shall be disqualified from the coverage of this Rule. Nor may
they be accepted as clients by the NCLA and the chapter legal aid offices.
(a) Juridical persons; except in cases covered by developmental legal aid or public interest causes involving juridical
entities which are non-stock, non-profit organizations, non-governmental organizations and people’s organizations
whose individual members will pass the means test provided in this Rule;
(b) Persons who do not pass the means and merit tests;
(c) Parties already represented by a counsel de parte;
(d) Owners or lessors of residential lands or buildings with respect to the filing of collection or unlawful detainer suits
against their tenants and
(e) Persons who have been clients of the NCLA or chapter legal aid office previously in a case where the NCLA or chapter
legal aid office withdrew its representation because of a falsity in the application or in any of the affidavits supporting
the said application.
Section 3. Cases not covered by the Rule. - The NCLA and the chapter legal aid offices shall not handle the following:
(a) Cases where conflicting interests will be represented by the NCLA and the chapter legal aid offices and
(b) Prosecution of criminal cases in court.
ARTICLE IV — Tests of Indigence
Section 1. Tests for determining who may be clients of the NCLA and the legal aid offices in local IBP chapters. - The
NCLA or the chapter legal aid committee, as the case may be, shall pass upon requests for legal aid by the combined
application of the means and merit tests and the consideration of other relevant factors provided for in the following
sections.
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Section 2. Means test; exception. (a) This test shall be based on the following criteria: (i) the applicant and that of his immediate family must have a gross
monthly income that does not exceed an amount double the monthly minimum wage of an employee in the place
where the applicant resides and (ii) he does not own real property with a fair market value as stated in the current tax
declaration of more than Three Hundred Thousand (P300,000.00) Pesos. In this connection, the applicant shall
execute an affidavit of indigency (printed at the back of the application form) stating that he and his immediate family
do not earn a gross income abovementioned, nor own any real property with the fair value aforementioned, supported
by an affidavit of a disinterested person attesting to the truth of the applicant’s affidavit. The latest income tax return
and/or current tax declaration, if any, shall be attached to the applicant’s affidavit.
(b) The means test shall not be applicable to applicants who fall under the developmental legal aid program such as
overseas workers, fisherfolk, farmers, laborers, indigenous cultural communities, women, children and other
disadvantaged groups.
Section 3. Merit test. - A case shall be considered meritorious if an assessment of the law and evidence at hand
discloses that the legal service will be in aid of justice or in the furtherance thereof, taking into consideration the interests
of the party and those of society. A case fails this test if, after consideration of the law and evidence presented by the
applicant, it appears that it is intended merely to harass or injure the opposite party or to work oppression or wrong.
Section 4. Other relevant factors that may be considered. - The effect of legal aid or of the failure to render the same
upon the rule of law, the proper administration of justice, the public interest involved in a given case and the practice of
law in the locality shall likewise be considered.
ARTICLE VI — Withdrawal of Legal Aid and Termination of Exemption
Section 1. Withdrawal of legal aid. - The NCLA or the chapter legal aid committee may, in justifiable instances as
provided in the next Section, direct the handling lawyer to withdraw representation of a client’s cause upon approval of
the IBP Board of Governors (in the case of the NCLA) or of the chapter board of officers (in the case of the chapter legal
aid committee) and through a proper motion filed in Court.
Section 2. Grounds for withdrawal of legal aid. - Withdrawal may be warranted in the following situations:
(a) In a case that has been provisionally accepted, where it is subsequently ascertained that the client is not qualified for
legal aid;
(b) Where the client’s income or resources improve and he no longer qualifies for continued assistance based on the
means test. For this purpose, on or before January 15 every year, the client shall submit an affidavit of a disinterested
person stating that the client and his immediate family do not earn a gross income mentioned in Section 2, Article V,
nor own any real property with the fair market value mentioned in the same Section;
(c) When it is shown or found that the client committed a falsity in the application or in the affidavits submitted to support
the application;
(d) When the client subsequently engages a de parte counsel or is provided with a de oficio counsel;
(e) When, despite proper advice from the handling lawyer, the client cannot be refrained from doing things which the
lawyer himself ought not do under the ethics of the legal profession, particularly with reference to their conduct
towards courts, judicial officers, witnesses and litigants, or the client insists on having control of the trial, theory of the
case, or strategy in procedure which would tend to result in incalculable harm to the interests of the client;
(f) When, despite notice from the handling lawyer, the client does not cooperate or coordinate with the handling lawyer
to the prejudice of the proper and effective rendition of legal aid such as when the client fails to provide documents
necessary to support his case or unreasonably fails to attend hearings when his presence thereat is required; and
(g) When it becomes apparent that the representation of the client’s cause will result in a representation of conflicting
interests, as where the adverse party had previously engaged the services of the NCLA or of the chapter legal aid
office and the subject matter of the litigation is directly related to the services previously rendered to the adverse
party.
Section 3. Effect of withdrawal. - The court, after hearing, shall allow the NCLA or the chapter legal aid office to
withdraw if it is satisfied that the ground for such withdrawal exists.
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Except when the withdrawal is based on paragraphs (b), (d) and (g) of the immediately preceding Section, the court shall
also order the dismissal of the case. Such dismissal is without prejudice to whatever criminal liability may have been
incurred if the withdrawal is based on paragraph (c) of the immediately preceding Section.
ARTICLE VII — Miscellaneous Provisions
Section 1. Lien on favorable judgment. - The amount of the docket and other lawful fees which the client was exempted
from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise
provides.
In case, attorney’s fees have been awarded to the client, the same shall belong to the NCLA or to the chapter legal aid
office that rendered the legal aid, as the case may be. It shall form part of a special fund which shall be exclusively used
to support the legal aid program of the NCLA or the chapter legal aid office. In this connection, the chapter board of
officers shall report the receipt of attorney’s fees pursuant to this Section to the NCLA within ten (10) days from receipt
thereof. The NCLA shall, in turn, include the data on attorney’s fees received by IBP chapters pursuant to this Section in
its liquidation report for the annual subsidy for legal aid.
Section 3. Effect of Rule on right to bring suits in forma pauperis. - Nothing in this Rule shall be considered to preclude
those persons not covered either by this Rule or by the exemption from the payment of legal fees granted to clients of the
Public Attorney’s Office under Section 16-D of RA 9406 to litigate in forma pauperis under Section 21, Rule 3 and Section
19 Rule 141 of the Rules of Court.
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JURISDICTION
OVERVIEW OF JURISDICTION
NATURE AND CONCEPT OF JURISDICTION
‣
What is “jurisdiction”?
‣
Jurisdiction is the power and authority of the court to hear, try and decide a case
‣
It has also been referred to as the power or capacity given by the law to a court or tribunal to entertain, hear, and
determine certain controversies
‣
It is also considered as an authority to execute the decisions rendered by the court — The power to control the
execution of its decision is an essential aspect of jurisdiction and that the most important part of a litigation, whether
civil or criminal, is the process of execution of decisions where supervening events may change the circumstance of
the parties and compel courts to intervene and adjust the rights of litigants to prevent unfairness (Echegaray vs Sec. of
Justice)
‣
TEST — The test of jurisdiction is whether the court has the power to enter into the inquiry and not whether the
decision is right or wrong
‣
‣
The question, therefore, of whether a court has jurisdiction over the subject matter, calls for interpretation and
application of the law of jurisdiction which distributes the judicial power among the different courts in the
Philippines (Reyes v. Diaz)
What are the important aspects of jurisdiction in Civil Cases?
‣
SEE — City of Lapu-Lapu vs PEZA, G.R. No. 184203, November 26, 2014
1.
Jurisdiction over the subject matter — is the power to hear and determine cases of the general class to which
the proceedings in question belong. It is conferred by law, which may either be the Constitution or a statute.
Jurisdiction over the subject matter means "the nature of the cause of action and the relief sought.”
2.
Jurisdiction over the person — It is "the power of a court to render a personal judgment or to subject the parties
in a particular action to the judgment and other rulings rendered in the action.
3.
a.
Jurisdiction over the person of the plaintiff
b.
Jurisdiction over the person of the defendant
Jurisdiction over the res or the thing under litigation — is necessary in actions in rem or those actions
"directed against the thing or property or status of a person and seek judgments with respect thereto as against
the whole world.” The proceedings in an action in rem are void if the court had no jurisdiction over the thing under
litigation
EXISTENCE OF JURISDICTION VERSUS THE EXERCISE OF JURISDICTION
‣
Jurisdiction is the power or authority of the court (Arranza v. B.F. Homes, Inc.). The exercise of this power or authority is
called the exercise of jurisdiction.
‣
Jurisdiction is NOT the same as the exercise of jurisdiction — As distinguished from the exercise of jurisdiction,
jurisdiction is the authority to decide a case, and not the decision rendered therein. Where there is jurisdiction over the
person and the subject matter, the decision on all other questions arising in the case is but an exercise of the jurisdiction.
The errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper
subjects of an appeal. Such does not affect its authority to decide the case, much less divest the court of the jurisdiction
over the case. (Navida vs Dizon)
‣
SEE — Luis Gonzales vs GJH Land G.R. No. 202664, November 20, 2015
‣
In this case, the petitioners filed a commercial case, i.e., an intra-corporate dispute, with the Office of the Clerk of
Court in the RTC of Muntinlupa City, which is the official station of the designated Special Commercial Court, in
accordance with A.M. No. 03-03-03-SC. It is, therefore, from the time of such filing that the RTC of Muntinlupa City
acquired jurisdiction over the subject matter or the nature of the action. Unfortunately, the commercial case was
wrongly raffled to a regular branch, e.g., Branch 276, instead of being assigned to the sole Special Commercial Court
in the RTC of Muntinlupa City, which is Branch 256
‣
SC held that that the erroneous raffling to a regular branch instead of to a Special Commercial Court is only a matter
of procedure - that is, an incident related to the exercise of jurisdiction - and, thus, should not negate the jurisdiction
which the RTC of Muntinlupa City had already acquired. In such a scenario, the proper course of action was not for
the commercial case to be dismissed; instead, Branch 276 should have first referred the case to the Executive Judge
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for re-docketing as a commercial case; thereafter, the Executive Judge should then assign said case to the only
designated Special Commercial Court in the station, i.e., Branch 256. Note that the procedure would be different
where the RTC acquiring jurisdiction over the case has multiple special commercial court branches; in such a
scenario, the Executive Judge, after re-docketing the same as a commercial case, should proceed to order its reraffling among the said special branches.
‣
Meanwhile, if the RTC acquiring jurisdiction has no branch designated as a Special Commercial Court, then it
should refer the case to the nearest RTC with a designated Special Commercial Court branch within the judicial
region. Upon referral, the RTC to which the case was referred to should re-docket the case as a commercial case, and
then: (a) if the said RTC has only one branch designated as a Special Commercial Court, assign the case to the sole
special branch; or (b) if the said RTC has multiple branches designated as Special Commercial Courts, raffle off the
case among those special branches.
‣
The designation of Special Commercial Courts was merely intended as a procedural tool to expedite the resolution of
commercial cases in line with the court's exercise of jurisdiction. This designation was not made by statute but only
by an internal Supreme Court rule under its authority to promulgate rules governing matters of procedure and its
constitutional mandate to supervise the administration of all courts and the personnel thereof. Certainly, an internal
rule promulgated by the Court cannot go beyond the commanding statute. But as a more fundamental reason, the
designation of Special Commercial Courts is, to stress, merely an incident related to the court's exercise of
jurisdiction, which, as first discussed, is distinct from the concept of jurisdiction over the subject matter. The RTC's
general jurisdiction (as provided by law) over ordinary civil cases is therefore not abdicated by an internal rule
streamlining court procedure.
‣
SALVADOR — This is an important case. The designation of special commercial courts is NOT jurisdictional, it is
merely procedural. On the other hand, jurisdiction over the subject-matter is conferred by law. In this case, the court
said that all RTCs have jurisdiction over intra-corporate disputes as provided by law. If the case is wrongly filed in an
RTC branch which is not a special commercial court, this is NOT a ground to dismiss the case based on lack of
jurisdiction. The court should just refer the case to the proper commercial court. Distinguish “jurisdiction over the
subject-matter” and “exercise of jurisdiction”. “Special jurisdiction” pertains to the exercise of jurisdiction rather than
the existence of subject-matter jurisdiction.
ERROR OF JURISDICTION VERSUS ERROR OF JUDGMENT
1.
Error of jurisdiction — An error of jurisdiction is one where the act complained of was issued by the court without or in
excess of jurisdiction (Cabrera v. Lapid). Errors of jurisdiction occur when the court exercises a jurisdiction not conferred
upon it by law. It may also occur when the court or tribunal although with jurisdiction, acts in excess of its jurisdiction or
with grave abuse of discretion amounting to lack of jurisdiction
2.
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 the facts and the evidence leading
to an erroneous judgment. Errors of judgment include errors of procedure or mistakes in the court’s findings.
Jurisprudence considers an error of judgment as one which the court may commit in the exercise of its jurisdiction. As
long as the court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to
nothing more than mere errors of judgment.
‣
NOTE — While an erroneous judgment is NOT a void judgment, a judgment tainted with an error of jurisdiction
either because of a toted absence of jurisdiction to take cognizance of an action OR because of a grave abuse of
discretion, amounting to lack or excess of jurisdiction is VOID.
‣
Where a court has jurisdiction, an erroneous decision cannot be deemed void. It has been ruled in a very early case,
that if the court has jurisdiction, it is altogether immaterial how grossly irregular or manifestly erroneous its
proceedings may have been. The judgment cannot be considered a nullity, and cannot therefore, be collaterally
impeached. Such a judgment is binding on the parties unless it is reversed or annulled in a direct proceeding (Herrera
v. Barretto).
‣
In contrast, if there is a total want of jurisdiction in a court, its proceedings are an absolute nullity, confer no right and
afford no protection but will be pronounced void when collaterally attacked
LACK AND EXCESS OF JURISDICTION
1. Lack of jurisdiction — this is when the court or tribunal is not vested by law with authority or power to take cognizance
of a case
2. Excess of jurisdiction — presupposes the existence of an authority for the court to assume jurisdiction over a case but in
the process of the exercise of that authority, it acts beyond the power conferred upon it.
‣
A court or tribunal acts without jurisdiction if it does not have the legal power to determine the case; where the
respondent, being clothed with the power to determine the case, oversteps its authority as determined by law, it is
performing a function in excess of its jurisdiction. (Vette Industrial Sales Company, Inc. v. Cheng)
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PRINCIPLE OF ADHERENCE OF JURISDICTION OR CONTINUING JURISDICTION
‣
The jurisdiction of the court is referred to as “continuing” in view of the general principle that once a court has acquired
jurisdiction, that jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction
‣
Once a court acquires jurisdiction over a controversy, it shall continue to exercise such jurisdiction until the final
determination of the case and it is NOT affected by subsequent legislation vesting jurisdiction over such proceedings in
another tribunal.
‣
EXCEPT —
1.
When the statute expressly so provides
2.
When the statute is construed to the effect that it is intended to operation upon actions pending before its
enactment
‣
Court cannot be divested of jurisdiction it has already acquired. Once vested by law, on a particular court or body, the
jurisdiction over the subject matter or nature of the action cannot be dislodged by anybody other than by the legislature
through the enactment of a law. (Navida vs Dizon)
‣
The settled rule is that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is
terminated. Certainly, it would be the height of injustice to allow parties that disagree with the decision of a judicial
tribunal to annul the same through the expedient of transferring their interests or rights involved in the case. (Heritage
Park Management v. CIAC 2008)
‣
Generally, the jurisdiction of a court is determined by the statute in force at the commencement of the action, unless such
statute provides for its retroactive application. Once the jurisdiction of a court attaches, it continues until the case is finally
terminated. The trial court cannot be ousted therefrom by subsequent happenings or events, although of a character that
would have prevented jurisdiction from attaching in the first instance. (Baritua vs Mercader 2001)
JURISDICTION OVER THE SUBJECT-MATTER
BP 129 (1981) AS AMENDED BY RA 7691 — AN ACT REORGANIZING THE JUDICIARY, APPROPRIATING FUNDS
THEREFOR, AND FOR OTHER PURPOSES
Section 1. Title. – This Act shall be known as "The Judiciary Reorganization Act of 1980."
Section 2. Scope. – The reorganization herein provided shall include the Court of Appeals, the Court of First Instance, the
Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the
Municipal Courts, and the Municipal Circuit Courts.
Section 9. Jurisdiction. – The Court of Appeals shall Exercise:
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and
auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;
2. Exclusive original jurisdiction over actions for annulment of judgements of Regional Trial Courts; and
3. Exclusive appellate jurisdiction over all final judgements, resolutions, orders or awards of Regional Trial Courts and
quasi-judicial agencies, instrumentalities, boards or commission, including the Securities and Exchange Commission,
the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission,
Except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the
Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and subparagraph 4 of the fourth paragraph of Section 17 of the Judiciary Act
of 1948.
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;
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(3) In all actions in admiralty and maritime jurisdiction where he demand or claim exceeds One hundred thousand pesos
(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)
Section 21. Original jurisdiction in other cases. – Regional Trial Courts shall exercise original jurisdiction:
(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may
be enforced in any part of their respective regions; and
(2) In actions affecting ambassadors and other public ministers and consuls.
Section 22. Appellate jurisdiction. – Regional Trial Courts shall exercise appellate jurisdiction over all cases decided by
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial
jurisdictions. Such cases shall be decided on the basis of the entire record of the proceedings had in the court of origin
and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Courts. The
decision of the Regional Trial Courts in such cases shall be appealable by petition for review to the Court of Appeals
which may give it due course only when the petition shows prima facie that the lower court has committed an error of fact
or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed.
Section 23. Special jurisdiction to try special cases. – The Supreme Court may designate certain branches of the
Regional Trial Courts to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban
land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies, and/or such other special
cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice.
Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil
cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does
not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or
amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive of interest damages of
whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged:
Provided, That where there are several claims or causes of action 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;
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases,
the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of
possession.
(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest
therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos
(P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided,
That value of such property shall be determined by the assessed value of the adjacent lots. (as amended by R.A. No.
7691)
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Section 34. Delegated jurisdiction in cadastral and land registration cases. – Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts may be assigned by the Supreme Court to hear and determine cadastral or land
registration cases covering lots where there is no controversy or opposition, or contested lots the where the value of
which does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the affidavit of the
claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax
declaration of the real property. Their decisions in these cases shall be appealable in the same manner as decisions of the
Regional Trial Courts. (as amended by R.A. No. 7691)
Section 35. Special jurisdiction in certain cases. – In the absence of all the Regional Trial Judges in a province or city,
any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ
of habeas corpus or applications for bail in criminal cases in the province or city where the absent Regional Trial Judges
sit.
Section 36. Summary procedures in special cases. – In Metropolitan Trial Courts and Municipal Trial Courts with at least
two branches, the Supreme Court may designate one or more branches thereof to try exclusively forcible entry and
unlawful detainer cases, those involving violations of traffic laws, rules and regulations, violations of the rental law, and
such other cases requiring summary disposition as the Supreme Court may determine. The Supreme Court shall adopt
special rules or procedures applicable to such cases in order to achieve an expeditious and inexpensive determination
thereof without regard to technical rules. Such simplified procedures may provide that affidavits and counter-affidavits
may be admitted in lieu of oral testimony and that the periods for filing pleadings shall be non-extendible.
RA 7691 (1994) — AN ACT EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS, AND MUNICIPAL CIRCUIT TRIAL COURTS, AMENDING FOR THE PURPOSE BATAS PAMBANSA,
BLG. 129, OTHERWISE KNOWN AS THE "JUDICIARY REORGANIZATION ACT OF 1980”
Section 5. After five (5) years from the effectivity of this Act, the jurisdictional amounts mentioned in Sec. 19(3), (4), and
(8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this Act, shall be adjusted to Two hundred thousand
pesos (P200,000.00). Five (5) years thereafter, such jurisdictional amounts shall be adjusted further to Three hundred
thousand pesos (P300,000.00):
‣
Provided, however, That in the case of Metro Manila, the abovementioned jurisdictional amounts shall be adjusted
after five (5) years from the effectivity of this Act to Four hundred thousand pesos (P400,000.00).
ADMINISTRATIVE CIRCULAR NO. 09-94 (June 14, 1994) — GUIDELINES IN THE IMPLEMENTATION OF REPUBLIC ACT
NO. 7691. ENTITLED "AN ACT EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS AND MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS, AMENDING FOR THE
PURPOSE BATAS PAMBANSA BLG. 129, OTHERWISE KNOWN AS THE 'JUDICIARY REORGANIZATION ACT OF 1980.”
For the guidance of the bench and the Bar, the following guidelines are to be followed in the implementation of Republic
Act No. 7691, entitled "An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa Blg. 129, Otherwise Known as the 'Judiciary
Reorganization Act of 1980”:
1.
XXXXXX
2.
The exclusion of the term "damages of whatever kind" in determining the jurisdictional amount under Section 19 (8)
and Section 33 (1) of B.P. Blg. 129, as amended by R.A. No. 7691, applies to cases where the damages are merely
incidental to or a consequence of the main cause of action. However, in cases 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. XXXX
1987 CONSTITUTION
ARTICLE 8 —JUDICIAL DEPARTMENT
Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
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(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
DETERMINATION OF JURISDICTION OVER THE SUBJECT-MATTER
‣
‣
RULE — J URISDICTION OVER THE SUBJECT MATTER IS —
1.
Conferred by law; and
2.
Determined by —
a.
The allegations of the complaint; and
b.
The character of the relief sought
What is “Jurisdiction over the Subject-Matter” of the case?
‣
Jurisdiction over the subject matter is referred to as the power of a particular court to hear the type of case that is
then before it.
‣
The term also refers to the jurisdiction of the court over the class of cases to which a particular case belongs
‣
How do you determine if a court has jurisdiction over the subject-matter of the complaint?
1.
STEP 1 — Look at the allegations of the complaint and the reliefs sought therein. Determine the subject-matter raised
in such pleading (Look at the jurisdictional facts which must be alleged in the complaint)
2.
STEP 2 — Look at the laws which confer jurisdiction (such as BP 129 as amended) and determine if the court where
the complaint was filed has jurisdiction.
‣ Jurisdiction over the Subject-Matter is conferred by law
‣
This pertains to the Jurisdiction of the court regarding the subject-matter of the case.
‣
The parties, the court or the rules CANNOT confer jurisdiction over the subject-matter. It cannot be granted by the
agreement of the parties; acquired, waived, enlarged, or diminished by any act or omission of the parties; or conferred
by the acquiescence of the courts
‣
It is a matter of substantive law. Whether a court has jurisdiction over the subject matter, calls for interpretation and
application of the law of jurisdiction which distributes the judicial power among the different courts in the Philippines
‣ Jurisdiction over the Subject-Matter is determined by the allegations of the complaint
‣
Jurisdiction over the subject matter of a case “is conferred by law and determined by the allegations in the complaint
which comprise a concise statement of the ultimate facts constituting the plaintiff’s cause of action.
‣
The nature of an action, as well as which court or body has jurisdiction over it, is determined based on the allegations
contained in the complaint of the plaintiff, irrespective of whether or not the plaintiff is entitled to recover upon all or
some of the claims asserted therein.
‣
The averments in the complaint and the character of the relief sought are the ones to be consulted.
‣
Once vested by the allegations in the complaint, jurisdiction also remains vested irrespective of whether or not the
plaintiff is entitled to recover upon all or some of the claims asserted therein
‣
The court’s jurisdiction CANNOT be made to depend upon defenses set up in the answer or in a motion to dismiss.
‣
‣
The settled rule is that jurisdiction is based on the allegations in the initiatory pleading and the defenses in the
answer are deemed irrelevant and immaterial in its determination
Jurisdiction does not depend on the amount ultimately substantiated and awarded by the tried court
‣
Example — Where a complaint seeking for the payment of PI million is filed in the Regional Trial Court, but after
considering the evidence presented, the court rendered a judgment for only P300,000, an amount within the
jurisdiction of the Municipal Trial Court if originally filed, the Regional Trial Court did not lose jurisdiction over the
action. It therefore, has the authority to render a judgment for P300,000.
‣
BUT — the rule does not apply in the reverse. Where a complaint for the recovery of a loan of P300,000 is filed
in the MTC, but after consideration of the evidence, it is shown that the amount recoverable is PI million, it
cannot render judgment for PI million for lack of jurisdiction.
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KINDS OF JURISDICTION OVER THE SUBJECT-MATTER
1.
General or ordinary jurisdiction — when the law confers, upon a court, jurisdiction over a general class of cases
2.
Special jurisdiction —when the law confers, upon a court, “additional” jurisdiction to exercise power in addition to or
over and above its ordinary jurisdiction.
‣
SEE — Land Bank of the Philippines v. Corazon M. Villegas, G.R. No. 180384, March 26, 2010
‣
By "special" jurisdiction, Special Agrarian Courts exercise power in addition to or over and above the ordinary
jurisdiction of the RTC, such as taking cognizance of suits involving agricultural lands located outside their regular
territorial jurisdiction, so long as they are within the province where they sit as Special Agrarian Courts.
‣
R.A. 6657 requires the designation by the Supreme Court before an RTC Branch can function as a Special Agrarian
Court. The Supreme Court has not designated the single sala courts of RTC, Branch 64 of Guihulngan City and RTC,
Branch 63 of Bayawan City as Special Agrarian Courts. Consequently, they cannot hear just compensation cases just
because the lands subject of such cases happen to be within their territorial jurisdiction.
‣
Since RTC, Branch 32 of Dumaguete City is the designated Special Agrarian Court for the province of Negros Oriental,
it has jurisdiction over all cases for determination of just compensation involving agricultural lands within that
province, regardless of whether or not those properties are outside its regular territorial jurisdiction.
JURISDICTION OF COURTS AS PROVIDED UNDER BP 129 AS AMENDED BY RA 7691
‣
1.
NOTE — BP 129 as amended is the main authority on jurisdiction of courts, however, there are also other laws which
provide for such jurisdiction.
REGIONAL TRIAL COURTS
a.
Original and Exclusive Jurisdiction
i.
Actions incapable of Pecuniary Estimation
‣
When the action cannot be measured in money. This depends on the nature of the action
‣
NOTE — Where the basic issue is something other than the right to recover a sum of money, where the money
claim is only incidental or a consequence of the principal relief sought, the action is incapable of pecuniary
estimation.
‣
Examples — rescission, reformation of contract, specific performance
ii.
Real Actions
‣
Actions involving title to, or possession of, real property, or any interest therein, where the assessed value of
the property involved exceeds P20,000,00 or exceeds P50,000 if in Metro Manila
‣
EXCEPT — actions for forcible entry and unlawful detainer irrespective of the amount of damages and unpaid
rentals sought to be recovered. (original jurisdiction over which is conferred upon the MTC, MeTC, MTCC)
‣
Assessed value is the worth or value of property established by taxing authorities on the basis of which the tax
rate is applied. (Vda de Barrera v Heirs of Legaspi, 2008)
iii.
Actions in admiralty and maritime jurisdiction
‣
iv.
Where the demand or claim exceeds P300,000.00 or, in Metro Manila, exceeds P400,000.00
Matters of probate, both testate and intestate
‣
v.
Where the gross value of the estate exceeds P300,000.00 or, in Metro Manila, exceeds P400,000.00
Actions involving the contract of marriage and marital relations
‣
Like support, annulment, nullity
‣
Courts will act as Family Courts with special jurisdiction
vi.
All cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any
court, tribunal, person or body exercising judicial or quasi-judicial functions
vii.
All civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic
Relations Court and of the Court of Agrarian Relations as now provided by law
viii. 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 P300,000, or in Metro Manila, exceeds
P400,000
b.
Original and Concurrent Jurisdiction with SC and CA
‣
To issues writs of Habeas corpus, habeas data, writ of amparo, quo warranto, certiorari, mandamus, prohibition vs
lower courts
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‣
c.
Appellate Jurisdiction
‣
2.
Cases decided by the MTC
MUNICIPAL TRIAL COURTS
a.
3.
Original and Exclusive Jurisdiction
i.
Opposite of RTC (See values under RTC, if it does not exceed those, it falls under the MTC)
ii.
Forcible Entry and Unlawful Detainer irrespective of the amount of damages and unpaid rentals sought to be
recovered.
COURT OF APPEALS
a.
Original and Exclusive Jurisdiction
‣
To annul judgments of the RTC based on extrinsic fraud or lack or jurisdiction
b.
Concurrent Jurisdiction with the RTC and SC
To issues writs of habeas corpus, habeas data, writ of amparo, quo warranto, certiorari, mandamus, prohibition
against lower courts
‣
c.
Concurrent Jurisdiction with the SC
‣
d.
Petitions for the issuance of writs of certiorari, prohibition and mandamus against the NLRC, CSC, RTC
Appellate Jurisdiction
‣
4.
JURISDICTION
BUT — always remember the rule on hierarchy of courts, if you can file with the RTC first, then go ahead. Also
remember rule that once a court acquires jurisdiction, it excludes all other courts.
Over RTC and Quasi-Judicial Agencies
SUPREME COURT
a.
Original and Exclusive Jurisdiction
i.
Petitions for the issuance of writs of certiorari, prohibition and mandamus against the CA, COMELEC, COA, SB,
CTA
ii.
Declaratory relief only when there is a question of constitutionality, like treaties or law
b.
Concurrent Jurisdiction with the RTC
‣
c.
Cases affecting ambassadors
Concurrent Jurisdiction with the RTC and CA
‣
d.
To issues writs of Habeas corpus, habeas data, writ of amparo, quo warranto, certiorari, mandamus, prohibition vs
lower courts
Concurrent Jurisdiction with the RTC and CA
‣
e.
Petitions for the issuance of writs of certiorari, prohibition and mandamus against the NLRC, CSC, RTC
Concurrent Jurisdiction with the RTC and CA
‣
f.
Actions against members of the Bar
Appellate Jurisdiction
‣
RTC exercising original jurisdiction by petition for review on certiorari (rule 45) on pure questions of law
‣
CA, SB, CTA
OBJECTION TO JURISDICTION OVER THE SUBJECT-MATTER
‣
How can an objection against lack of jurisdiction over the subject-matter be raised?
1. Raised by the court — Court can motu proprio dismiss the case if it appears from the pleadings or evidence on
record that the court has no jurisdiction over the subject matter. (R9, S1)
‣
Lack of jurisdiction is one of those excepted grounds where the court may dismiss a claim or a case at any time
when it appears from the pleadings or the evidence on record that any of those ground exists, even if they were
not raised in the answer or in a motion to dismiss.
2. Raised by party through a motion to dismiss — Party can also raise the issue of jurisdiction in a motion to dismiss
filed before the filing or service of an answer because lack of jurisdiction over the subject matter is a ground for a
motion to dismiss. (R16, S1[b])
3. Raised by party through a answer — If no motion to dismiss is filed, the defense of lack of jurisdiction may be raised
as an affirmative defense in the answer. (R16, S6)
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‣
When can it be raised?
‣
‣
‣
RULE — Lack of jurisdiction over the subject matter may be raised at any stage of the proceedings, even for
the first time on appeal
‣
The reason is that jurisdiction is conferred by law, and lack of it affects the very authority of the court to take
cognizance of and to render judgment on the action
‣
Even if petitioner had not raised the issue of jurisdiction on appeal, the reviewing court would still not be precluded
from ruling on the matter of jurisdiction
EXCEPT — When the party invoking the court’s lack of jurisdiction over the subject-matter may be barred by
estoppel or laches (See Tijam vs Sibonghanoy)
‣
Laches is defined as the "failure or neglect for an unreasonable and unexplained length of time, to do that which,
by exercising due diligence, could or should have been done earlier, it is negligence or omission to assert a right
within a reasonable length of time, warranting a presumption that the party entitled to assert it either has
abandoned it or declined to assert it. (Regalado v. Go)
‣
A party who has invoked the juridiction of the court over a particular matter to secure affirmative relief cannot be
permitted afterwards to deny that same jurisdiction to escape liability. Court frowns upon the undesirable practice
of a party submitting a case for decision and then accepting judgment only if favorable, and attacking it for lack of
jurisdiction when adverse
NOTE — the doctrine in Tijam vs Sibonghanoys only the exception rather than the rule, laches should have
been clearly present and that the lack of jurisdiction must have been raised so belatedly as to warrant the
presumption that the party entitled to assert it had abandoned or declined to assert it
‣
SEE — Vda. De Herrera v. Bernardo, et al., G.R. No. 170251, June 01, 2011
‣
In Tijam vs Sibonghanoy, the jurisdiction was questioned only after 15 years. Court later said that the facts
should have been analogous to Tijam in order to give rise to estoppel. Thus, this case is merely exceptional.
‣
The landmark doctrine enunciated in Tijam v. Sibonghanoy on the matter of jurisdiction by estoppel is the
exception rather than the rule. Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in
cases in which the factual milieu is analogous to that in the cited case. In such controversies, laches should
have been clearly present; that is, lack of jurisdiction must have been raised so belatedly as to warrant the
presumption that the party entitled to assert it had abandoned or declined to assert it.
‣
In Sibonghanoy, the defense of lack of jurisdiction was raised for the first time in a motion to dismiss filed by
the Surety almost 15 years after the questioned ruling had been rendered. At several stages of the
proceedings, in the court a quo as well as in the Court of Appeals, the Surety invoked the jurisdiction of the
said courts to obtain affirmative relief and submitted its case for final adjudication on the merits. It was only
when the adverse decision was rendered by the Court of Appeals that it finally woke up to raise the question of
jurisdiction.
‣
In this case, the factual settings attendant in Sibonghanoy are not present that would justify the application of
estoppel by laches against the petitioner. Here, petitioner assailed the jurisdiction of the COSLAP when she
appealed the case to the CA and at that time, no considerable period had yet elapsed for laches to attach.
Therefore, petitioner is not estopped from assailing the jurisdiction of the COSLAP. Additionally, no laches will
even attach because the judgment is null and void for want of jurisdiction.
EFFECTS OF LACK OF JURISDICTION OVER THE SUBJECT-MATTER
‣
RULE — Where there is an absence of jurisdiction over the subject matter the proceedings conducted or
decisions made by a court are legally VOID.
‣
This is true even where the court in good faith believes that the subject matter is within its jurisdiction
‣
EXCEPT — When the party raising the issue is barred by estoppel (See Tijam vs Sibonghanoy)
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MUNICIPAL
TRIAL
COURTS
(MTC)
Original and
Exclusive
Jurisdiction
1.
2.
REGIONAL TRIAL COURTS (RTC)
Opposite
of RTC
(See
values
under
RTC, if it
does not
exceed
those, it
falls under
the MTC)
1.
Actions incapable of Pecuniary Estimation
2.
Real Actions where the assessed value of the
property involved exceeds P20,000,00 or
exceeds P50,000 if in Metro Manila EXCEPT
actions for forcible entry and unlawful
detainer
3.
Actions in admiralty and maritime jurisdiction
where the demand or claim exceeds
P300,000.00 or, in Metro Manila, exceeds
P400,000.00
Actions
for
Forcible
Entry and
Unlawful
Detainer
irrespectiv
e of the
amount of
damages
and
unpaid
rentals
sought to
be
recovered.
4.
Matters of probate, both testate and intestate
where the gross value of the estate exceeds
P300,000.00 or, in Metro Manila, exceeds
P400,000.00
Original and
Concurrent
Jurisdiction
5.
Actions involving the contract of marriage
and marital relations
6.
All cases not within the exclusive jurisdiction
of any court, tribunal, person or body
exercising jurisdiction of any court, tribunal,
person or body exercising judicial or quasijudicial functions
7.
All civil actions and special proceedings
falling within the exclusive original jurisdiction
of a Juvenile and Domestic Relations Court
and of the Court of Agrarian Relations as now
provided by law
8.
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 P300,000, or in Metro Manila,
exceeds P400,000
COURT OF
APPEALS (CA)
1.
Petition for
Annulment of
Judgment
against RTC
SUPREME COURT (SC)
1.
Cases affecting
ambassadors,
other public
ministers and
consuls
2.
Petitions for the
issuance of writs of
certiorari,
prohibition and
mandamus against
the CA,
COMELEC, COA,
SB, CTA
3.
Cases involving
questions of
constitutionality of
laws, treaties,
ordinances,
executive orders
(relate this with
SC’s expanded
certiorari
jurisdiction)
Petitions/Complaints for —
1.
Writ of Habeas Corpus
2.
Writ of Habeas Data
3.
Writ of Amparo
4.
Quo warranto
5.
Certiorari, mandamus, or prohibition against lower courts
Petitions for the issuance of writs of certiorari,
prohibition and mandamus against the —
Appellate
Jurisdiction
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1.
NLRC
2.
CSC
3.
RTC
Cases decided by
1.
RTC
2.
QuasiJudicial
Agencies
1.
Petition for review
on certiorari (rule
45) against cases
decided by RTC
exercising original
jurisdiction on pure
questions of law
2.
Cases decided by
the CA, SB, CTA
CIVIL PROCEDURE
REMEDIAL LAW REVIEWER
CONCURRENT JURISDICTION; DOCTRINE OF HIERARCHY OF COURTS
‣
‣
‣
JURISDICTION
What if a case falls under the concurrent jurisdictions of two or more courts (such as both the CA and SC), can
the parties just file the case with any of such courts?
‣
NO. The Doctrine of Hierarchy of Courts must be followed. In case of concurrent jurisdictions, the case must first be
filed before the courts of lower rank.
‣
Such concurrence of jurisdiction, does NOT give a party unbridled freedom to choose the venue of his action lest he
ran afoul of the doctrine of hierarchy of courts. Instead, a becoming regard for judicial hierarchy dictates that petitions
for the issuance of writs of certiorari against first level courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals, before resort may be had before the Supreme Court. (A.L Ang Network
vs Mondejar 2014)
‣
EXCEPT — If the case is exceptional in nature, then the direct recourse to the SC may be made. (see exceptions
provided in jurisprudence)
What if a case falls under the concurrent jurisdiction of two or more quasi-judicial agencies, what agency may
exercise jurisdiction?
‣
The quasi-judicial agency where the case is first filed and which decides to take cognisance of the case will exercise
jurisdiction to the exclusion of other agenciess having concurrent jurisdiction.
‣
The rule is that initial acquisition of jurisdiction by a court of concurrent jurisdiction divests another of its own
jurisdiction. (Flores vs Montemayor 2011)
‣
SEE — Ombudsman vs Rodriguez, G.R. No. 172700, July 23, 2010
‣
In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities, the body in
which the complaint is filed first, and which opts to take cognizance of the case, acquires jurisdiction to the
exclusion of other tribunals exercising concurrent jurisdiction.
‣
In this case, since the complaint was filed first in the Ombudsman, and the Ombudsman opted to assume
jurisdiction over the complaint, the Ombudsman’s exercise of jurisdiction is to the exclusion of the sangguniang
bayan exercising concurrent jurisdiction.
‣
It is a hornbook rule that jurisdiction is a matter of law. Jurisdiction, once acquired, is not lost upon the instance of
the parties but continues until the case is terminated. When herein complainants first filed the complaint in the
Ombudsman, jurisdiction was already vested on the latter. Jurisdiction could no longer be transferred to the
sangguniang bayan by virtue of a subsequent complaint filed by the same complainants.
What if two courts are given by two laws, respectively, “exclusive jurisdiction” over a subject-matter of cases,
does the new law supersede the old law?
‣
NO. Both are understood as having concurrent jurisdiction.
‣
SEE — In the Matter of Application for the Issuance of a Writ of Habeas Corpus Richard Thornton (2004)
‣
‣
Family courts have CONCURRENT jurisdiction with the Court of Appeals and the Supreme Court in petitions for
habeas corpus where the custody of minors is at issue.
‣
The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and
Supreme Court to issue writs of habeas corpus relating to the custody of minors.
‣
Further, it cannot be said that the provisions of RA 8369, RA 7092 and BP 129 are absolutely incompatible
since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas
corpus in cases involving the custody of minors.
‣
Thus, the provisions of RA 8369 must be read in harmony with RA 7029 and BP 129—that family courts have
concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where
the custody of minors is at issue.
Court basically said that “EXCLUSIVE” does NOT mean foreclosing to resort to another jurisdiction. If a court has
exclusive jurisdiction, another court can still have jurisdiction if delegated by law as well
JURISPRUDENCE ON THE DOCTRINE OF HIERARCHY OF COURTS
‣
SEE — Banez vs Concepcion, G.R. No. 159508, August 29, 2012
‣
Although the Court, the CA and the RTC have concurrence of jurisdiction to issue writs of certiorari, the petitioner had
no unrestrained freedom to choose which among the several courts might his petition for certiorari be filed in. In other
words, he must observe the hierarchy of courts.
‣
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to
be ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to
deal with causes that are also well within the competence of the lower courts, and thus leave time to the Court to deal
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with the more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act on
petitions for the extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or when
serious and important reasons exist to justify an exception to the policy.
‣
‣
‣
The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned
to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be
exercised only where absolutely necessary or where serious and important reasons exist therefor. Hence, that
jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not controllable by the
Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals
or a Regional Trial Court, it is in either of these courts that the specific action for the writ’s procurement must be
presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly
observe.
‣
There is a growing tendency on the part of litigants and lawyers to have their applications for the so-called
extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and immediately by the
highest tribunal of the land," the Court has cautioned lawyers and litigants against taking a direct resort to the highest
tribunal
‣
A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there
are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It
is a policy that is necessary to prevent inordinate demands upon the Court’s time and attention which are better
devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket.
Indeed, the removal of the restriction on the jurisdiction of the Court of Appeals in this regard, supra— resulting from
the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" — was evidently intended precisely to relieve
this Court pro tanto of the burden of dealing with applications for the extraordinary writs which, but for the expansion
of the Appellate Court corresponding jurisdiction, would have had to be filed with it.
SEE — Dy v. Bibat-Palamos, G.R. No. 196200, September 11, 2013
‣
Under the principle of hierarchy of courts, direct recourse to the Supreme Court is improper because it is a court of
last resort and must remain to be so in order for it to satisfactorily perform its constitutional functions, thereby allowing
it to devote its time and attention to matters within its exclusive jurisdiction and preventing the overcrowding of its
docket.
‣
Nonetheless, the invocation of this Court’s original jurisdiction to issue writs of certiorari has been allowed in certain
instances on the ground of special and important reasons clearly stated in the petition, such as,
1.
When dictated by the public welfare and the advancement of public policy
2.
When demanded by the broader interest of justice
3.
When the challenged orders were patent nullities; or
4.
When analogous exceptional and compelling circumstances called for and justified the immediate and direct
handling of the case.
SEE — Diocese of Bacolod vs COMELEC, G.R. No. 205728, January 21, 2015
‣
The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of the
judiciary performs its designated roles in an effective and efficient manner. Trial courts do not only determine the facts
from the evaluation of the evidence presented before them. They are likewise competent to determine issues of law
which may include the validity of an ordinance, statute, or even an executive issuance in relation to the Constitution.
To effectively perform these functions, they are territorially organized into regions and then into branches. Their writs
generally reach within those territorial boundaries. Necessarily, they mostly perform the all-important task of inferring
the facts from the evidence as these are physically presented before them. In many instances, the facts occur within
their territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a determination of the
constitutionality of such action. The consequences, of course, would be national in scope. There are, however, some
cases where resort to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.
‣
The doctrine of hierarchy of courts is NOT an iron-clad rule. This court has full discretionary power to take cognizance
and assume jurisdiction over special civil actions for certiorari filed directly with it for exceptionally compelling reasons
or if warranted by the nature of the issues clearly raised in the petition. Such as —
1.
When there are genuine issues of constitutionality that must be addressed at the most immediate time — A
direct resort to this court includes availing of the remedies of certiorari and prohibition to assail the
constitutionality of actions of both legislative and executive branches of the government.
2.
When the issues involved are of transcendental importance — In these cases, the imminence and clarity of
the threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine relating to
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constitutional issues of transcendental importance prevents courts from the paralysis of procedural niceties when
clearly faced with the need for substantial protection.
3.
Cases of first impression — where no jurisprudence yet exists that will guide the lower courts on this matter.
(such as the issue of bail in extradition proceedings)
4.
When constitutional issues raised are better decided by the Supreme Court — it will be prudent for such
courts, if only out of a becoming modesty, to defer to the higher judgment of this Court in the consideration of its
validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of
the majority of those who participated in its discussion
5.
When the time element presented cannot be ignored
6.
When the act challenged is of a constitutional organ (such as the constitutional commissions)
7.
When there is no other plain, speedy, and adequate remedy in the ordinary course of law that could free
them from the injurious effects of acts in violative of fundamental rights.
8.
When dictated by public welfare and the advancement of public policy, or demanded by the broader
interest of justice, or the orders complained of were found to be patent nullities, or the appeal was
considered as clearly an inappropriate remedy
DOCTRINE OF PRIMARY JURISDICTION
‣
‣
SEE — Euro-Med Laboratories vs Province of Batangas, G.R. No. 148106, July 17, 2006
‣
The doctrine of primary jurisdiction holds that if a case is such that its determination requires the expertise,
specialized training and knowledge of an administrative body, relief must first be obtained in an administrative
proceeding before resort to the courts is had even if the matter may well be within their proper jurisdiction.
‣
It applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim
requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence
of an administrative agency. In such a case, the court in which the claim is sought to be enforced may suspend the
judicial process pending referral of such issues to the administrative body for its view or, if the parties would not be
unfairly disadvantaged, dismiss the case without prejudice.
SEE — Heirs of Nisperos v. Nisperos-Ducusin, G.R. No. 189570, July 31, 2013
‣
The doctrine of primary jurisdiction does not allow a court to arrogate unto itself authority to resolve a controversy, the
jurisdiction over which is initially lodged with an administrative body of special competence. To assume the power is
to short-circuit the administrative process, which has yet to run its regular course.
‣
The proper administrative agency must be given a chance to correct its administrative and procedural lapses.
Moreover, it is in a better position to resolve the particular issue at hand, being the agency possessing the required
expertise on the matter and authority to hear the same.
‣
In this case, considering that the allegations in the complaint negate the existence of an agrarian dispute among the
parties, the DARAB is bereft of jurisdiction to take cognizance of the same as it is the DAR Secretary who has
authority to resolve the dispute raised by petitioners. The DAR must be given a chance to correct its administrative
and procedural lapses in the issuance of the CLOA. Moreover, it is in a better position to resolve the particular issue at
hand, being the agency possessing the required expertise on the matter and authority to hear the same.
‣
NOTE — The SC set aside the resolutions of the CA here but did not dismiss the case, it ordered it to refer to the DAR
JURISDICTION OVER THE PERSON OF THE PARTIES
‣
What is “Jurisdiction over the Person of the Parties” of the case?
‣
Jurisdiction over the person (in personam) is the legal power of the court to render a personal judgment against a
party to an action or proceeding
‣
Jurisdiction in personam is the power which a court has over the defendant’s person and which is required before a
court can enter a personal or an in personam judgment
WHEN JURISDICTION OVER THE PERSON OF THE DEFENDANT IS REQUIRED
‣
RULE — JURISDICTION OVER THE PERSON OF THE DEFENDANT IS REQUIRED ONLY IN AN ACTION IN PERSONAM.
JURISDICTION OVER THE PERSON OF THE DEFENDANT IS NOT A PREREQUISITE IN AN ACTION IN REM AND QUASI IN REM
‣
For the plaintiff, its never an issue since he voluntarily submits himself to the jurisdiction of the court through the filing
of the complaint
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Kinds of actions in relation to the Effect of Judgment —
1.
Action in personam — an action against a person on the basis of his personal liability
2.
Action in rem — an action against the thing itself instead of against the person.
3.
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
‣
NOTE — These kinds of actions should be distinguished from the kinds of actions for purposes of venue under Rule 4
(Real or Personal actions). When the kinds action of action pertain to the effects of judgment it goes to who is bound
by the judgment. For in personam actions, only the parties are bound, for in rem and quasi in rem actions, the whole
world is bound
‣
In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and
decide the case. On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over the person of the
defendant is NOT a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over
the res.
HOW JURISDICTION OVER THE PERSONS OF THE PARTIES IS ACQUIRED
‣
NOTE — The manner by which the court acquires jurisdiction over the parties depends on whether the party is the
plaintiff or the defendant.
Jurisdiction over the plaintiff — is acquired by his filing of the complaint or petition
1.
‣
By doing so, he submits himself to the jurisdiction of the court
Jurisdiction over the defendant — acquired either by —
2.
a.
b.
Voluntary appearance in court and his submission to its authority
‣
Submission to the court’s jurisdiction takes the form of an appearance that seeks affirmative relief except when
the relief sought is for the purpose of objecting to the jurisdiction of the court over the person of the defendant.
As a rule, an appearance in whatever form without expressly objecting to the jurisdiction of the court over the
person, is a submission to the jurisdiction of the court
‣
BUT — when the appearance is precisely to object to the jurisdiction of the court over his person, it is not
considered an appearance in court
By service of summons
OBJECTION TO JURISDICTION OVER THE PERSON OF THE DEFENDANT
‣
How to raise an objection?
‣
‣
‣
The defendant must raise it either in a —
1.
Motion to dismiss — An objection to the jurisdiction over the person of the defendant may be raised as a ground
for a motion to dismiss
2.
As an affirmative defense in the answer — If no motion to dismiss has been filed, the objection may be pleaded
as an affirmative defense in the answer
Can the Court motu proprio dismiss the case because of the lack of jurisdiction over the Person of the
Defendant?
‣
NO. Court cannot raise waivable grounds, it must be raised by the defendant otherwise it is deemed waived
‣
NOTE — for non-waivable grounds (such as lack of jurisdiction over the subject-matter, it is not waived even if not
raised by the defendant, court can raise this by itself and dismiss the case motu proprio. (See Rule 9, Sec. 1)
What if the defendant fails to raise the Jurisdiction over his person?
‣
If the objection is NOT raised either in a motion to dismiss or in the answer, the objection to the jurisdiction over the
person of the defendant is deemed waived (See Rule 9, Sec. 1)
‣
NOTE — Unlike Jurisdiction over the subject-matter, jurisdiction over the person of the defendant is waivable if not
pleaded through an MTD or the answer
‣
It can also be waived under the Omnibus Motion Rule in that if a motion to dismiss has been filed, the defense of
lack of jurisdiction over the person of the defendant must be pleaded in the same motion where such ground is
available at the time the motion is filed, otherwise it is deemed waived (Rule 15, Sec. 8)
‣
NOTE — If you file an MTD, you need to raise all grounds which are available at the time the motion is filed,
otherwise those grounds not raised (such as lack of jurisdiction over the person of the defendant) is deemed
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waived, except of course, the non-waivable grounds under R9, S1 (such as lack of jurisdiction over the subjectmatter)
JURISDICTION OVER THE RES OR THING INVOLVED IN THE LITIGATION
‣
What is “Jurisdiction over the Res or thing involved in the litigation”?
‣
Res” in civil law is a ‘thing,’ an ‘object.’ It means everything that may form an object of rights in opposition to
‘persona’ which is the subject of rights. It includes an object, subject- matter or status. Jurisdiction over the res refers
to the court’s jurisdiction over the thing or the property which is the subject of the action.
WHEN JURISDICTION OVER THE RES IS REQUIRED
‣
RULE — THIS TYPE OF JURISDICTION IS NECESSARY WHEN THE ACTION IS AN ACTION IN REM OR QUASI IN REM
‣
Jurisprudence holds that if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not
required. What is required is jurisdiction over the res although summons must also be served upon the defendant in
order to satisfy the requirements of due process
‣
Remember the distinctions between actions in personam, in res, and quasi in res
‣
Actions in personam and actions in rem or quasi in rem differ in that actions in personam are directed against specific persons
and seek personal judgments. On the other hand, actions in rem or quasi in rem are directed against the thing or property or
status of a person and seek judgments with respect thereto as against the whole world
HOW JURISDICTION OVER THE RES IS ACQUIRED
‣
RULE — J URISDICTION OVER THE RES MAY BE ACQUIRED BY THE COURT BY EITHER —
1.
Placing the property or thing under its custody (custodia legis) or constructive seizure
‣
2.
Such as attachment or publication and service of notice
Through statutory authority conferring upon it the power to deal with the property or thing within the court’s
territorial jurisdiction.
‣
Such as suits involving the status of the parties or suits involving the property in the Philippines of non-resident
defendants. In this case, the property, though at all times within the potential power of the court, may never be
taken into actual custody at all.
JURISDICTION OVER THE ISSUES OF THE CASE
‣
What is “Jurisdiction over the Issues of the case”?
‣
Jurisdiction over the issue is the power of the court to try and decide issues raised in the pleadings of the parties
‣
‣
An issue is a 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
Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading,
a judgment on the pleadings may be rendered by the court upon a motion properly filed.
HOW JURISDICTION OVER THE ISSUE IS CONFERRED AND DETERMINED
‣
RULE — J URISDICTION OVER THE ISSUES IS CONFERRED AND DETERMINED BY EITHER —
1.
Pleadings of the parties — The pleadings present the issues to be tried and determine whether or not the issues are
of fact or of law
‣
An issue arises because a material allegation of a claiming party is specifically denied by the defending party. The
denial to be specific must be one which conforms to any of the denials prescribed in Sec. 10 of Rule 8. A denial
made not in accordance with the said rule is to be construed as an admission, a circumstance which does not give
rise to an issue. Thus, where the defendant admits all the material allegations of fact of the claiming party, there is
no controverted issue between the parties.
2.
Stipulation of the parties — As when in the pretrial, the parties enter into stipulations of facts and documents or
enter into an agreement simplifying the issues of the case
3.
Waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings
‣
Here the parties try with their express or implied consent issues not raised by the pleadings. The issues tried shall
be treated in all respects as if they had been raised in the pleadings (Rule 10, Sec. 5)
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RULE 1: GENERAL PROVISIONS
APPLICABILITY OF THE RULES OF COURT
SECTION 1. Title of the Rules. - These Rules shall be known and cited as the Rules of Court. (1)
SECTION 2. In what courts applicable. - These Rules shall apply in all the courts, except as otherwise provided by the
Supreme Court. (n)
CASES GOVERNED BY THE RULES OF COURT
SECTION 3. Cases governed. - These Rules shall govern the procedure to be observed in actions, civil or criminal, and
special proceedings.
a. A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong. (1a, R2) A civil action may either be ordinary or special. Both are governed by the rules for
ordinary civil actions, subject to the specific rules prescribed for a special civil action. (n)
b. A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (n)
c. A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (2a, R2)
SECTION 4. In what cases not applicable. - These Rules shall not apply to election cases, land registration, cadastral,
naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory
character and whenever practicable and convenient. (R143a)
OVERVIEW OF ACTIONS
‣
What is an “action”?
‣
‣
‣
What are the kinds of actions?
1.
Civil action — one by which a party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong”
2.
Criminal action — one by which the State prosecutes a person for an act or omission punishable by law.
Proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is
primarily compensatory or remedial.
Is an “action” different from a “special proceeding”?
‣
‣
An action is the legal and formal demand of one’s right from another person made and insisted upon in a court of
justice
YES. The purposes are different
1.
Civil action — the purpose is either to protect a right or prevent or redress a wrong
2.
Criminal action — the purpose is to prosecute a person for an act or an omission punishable by law.
3.
Special Proceeding — the purpose is to establish a status, a right, or a particular fact
What are the kinds of actions for purposes of venue (under Rule 4)?
1. Real action — An action is ‘real’ when it affects title to or possession of real property, or an interest therein
2. Personal action — All other actions which are not real are personal actions
‣
‣
NOTE — This is also significant for determining jurisdiction
What are the kinds of actions for purposes of the effect of judgment (in relation to Jurisdiction over the Person or
the Res and Service of Summons under Rule 14)?
1.
Action in Personam — An action against a person on the basis of his personal liability. It is a proceeding to enforce
personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it
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may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose
of it in accordance with the mandate of the court.
‣
The purpose of a proceeding in personam is to impose through the judgment of a court, some responsibility or
liability directly upon the person of the defendant No one other than the defendant is sought to be held liable, not
the whole world. Judgment will be binding against the parties only
‣
Such as —
2.
Action for damages
‣
Action to recover possession of real property
‣
Action for ejectment (Forcible entry or unlawful detainer)
Action in Rem — An action against the thing itself, instead of against the person. It is binding against the whole
world.
‣
The phrase, "against the thing," to describe in rem actions is a metaphor. It is not the "thing" that is the party to an
in rem action; only legal or natural persons may be parties even in in rem actions. "Against the thing" means that
resolution of the case affects interests of others whether direct or indirect. It also assumes that the interests — in
the form of rights or duties — attach to the thing which is the subject matter of litigation. In actions in rem, our
procedure assumes an active vinculum over those with interests to the thing subject of litigation. (De Pedro vs
Romasan Dev’t Corp. 2014)
‣
Such as —
3.
‣
Declaration of nullity of marriage (Note it is a personal action because it is not founded on real property; but it is
also an in rem action because the issue of the status of a person is one directed against the whole world. One’s
status is a matter that can be set up against anyone in the world.)
‣
Land registration proceeding
‣
Probate of a will
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. It deals with the status, ownership or
liability of a particular property but which are intended to operate on these questions only as between the particular
parties to the proceedings and not to ascertain or cut-off the rights or interests of all possible claimants
‣
‣
‣
Such as —
‣
Action to recover title and ownership of real property
‣
Action for partition
‣
Action for accounting
‣
Attachment
‣
Foreclosure of mortgage
Why is it important to distinguish whether an action is (1) in personam, (2) in rem, or (3) quasi in rem?
‣
The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and
consequently to determine the type of summons to be employed.
‣
In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and
decide the case. In a proceeding in rem or quasi in rem. jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.
‣
Summons is one of the ways of how the court acquires jurisdiction. In all kinds of actions summons is needed, but for
different purposes.
‣
‣
Actions in Personam — for purposes of jurisdiction over the person of the defendant.
‣
Actions in Rem or Quasi in Rem — for purposes only to satisfy due process
NOTE — An in personam or an in rem action is a classification of actions according to the object of the action. A
personal and real action is a classification according to foundation. It is in rem when directed against the whole world
and in personam when directed to a particular person
‣
When an action is real because it affects title to or possession of land, it does not automatically follow that the
action is already in rem. It can be both a personal action and an action in rem
CASES GOVERNED BY THE RULES OF COURT
1. CIVIL ACTIONS
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One by which a party sues another for either —
1. The enforcement or protection of a right, or
2. The prevention or redress of a wrong
‣
Kinds of Civil Actions —
a.
Ordinary Civil Actions — governed by the Rules of Civil Procedure
b.
Special Civil Actions — primarily governed by its own specific rules, but the Rules of Civil Procedure apply
suppletorily. Thise are -i.
Interpleader (Rule 62)
ii.
Declaratory relief and similar remedies (Rule 63)
iii. Review of judgments and final orders or resolutions of the Commission on Elections and the Commission on
Audit (Rule 64)
iv. Certiorari, prohibition, and mandamus (Rule 65)
v.
Quo warranto (Rule 66)
vi. Expropriation (Rule 67)
vii. Foreclosure of real estate mortgage (Rule 68)
viii. Partition (Rule 69)
ix. Forcible entry and unlawful detainer (Rule 70)
x. Contempt (Rule 71)
2. CRIMINAL ACTIONS
•
One by which the State prosecutes a person for an act or omission punishable by law
•
Governed by the Rules on Criminal Procedure
3. SPECIAL PROCEEDINGS
‣
Remedy by which a party seeks to establish either a —
a. Status,
b. Right,
c. Particular fact.
‣
These are governed by the Rules on Special Proceedings
‣
‣
BUT — The rules of ordinary civil actions have suppletory application in special proceedings. It is provided that: “In
the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable,
applicable in special proceedings” (Rule 72, Sec. 2)
Kinds of Special Proceedings (Rule 72, Sec. 1) —
a. Settlement of estate of deceased persons;
b. Escheat
c. Guardianship and custody of children;
d. Trustees;
e. Adoption, Rescission and revocation of adoption;
f.
Hospitalization of insane persons;
g. Habeas corpus, amparo and habeas data proceedings
h. Change of name;
i.
Voluntary dissolution of corporations;
j.
Judicial approval of voluntary recognition of minor natural children;
k. Constitution of family home;
l.
Declaration of absence of death;
m. Cancellation or correction of entries in the civil registry.
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CASES NOT GOVERNED BY THE RULES OF COURT
1. Election cases
2. Lands Registration
3. Cadastral proceedings
4. Naturalization proceedings
5. Insolvency proceedings
6. Other cases not herein provided for
‣
EXCEPT — by analogy or in a suppletory character and whenever practicable and convenient.
COMMENCEMENT OF AN ACTION
SECTION 5. Commencement of action. - A civil action is commenced by the filing of the original complaint in court. If an
additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing
of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (6a)
‣
RULE — CIVIL ACTIONS COMMENCE UPON FILING OF THE ORIGINAL COMPLAINT IN THE COURT
‣
‣
‣
This is the date of the filing of the amended complaint joining the additional defendant
‣
You only file a motion for the admission of such amended complaint when then here has been an answer served
on the plaintiff.
‣
In cases where the amended complaint is attached to the motion for its admission, the date of filing thereof is the
date of the commencement of the action with regard to the additional defendant, irrespective of the action of the
court on the motion.
What is the effect of the commencement of an action?
‣
‣
BUT — if an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the
date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by
the court
In civil cases, the commencement of an action interrupts the period of prescription as to all the parties to the action
Does the filing of the complaint alone vest the court with jurisdiction over the subject matter?
‣
NO. One must also pay the docket fees.
‣
It is important to remember that it is not simply the filing of the complaint or appropriate initiatory pleading but also the
payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the
action.
‣
Without the payment of the docket fees, no original complaint or pleading is considered.
‣
If the complete amount of the docket fee is not paid, the prescriptive period continues to run as the complaint is
deemed not filed.
LIBERAL APPLICATION OF THE RULES
SECTION 6. Construction. - These Rules shall be liberally construed in order to promote their objective of securing a
just, speedy, and inexpensive disposition of every action and proceeding. (2a)
‣
The promotion of objective of securing a just, speedy and inexpensive disposition of every action and proceeding takes
precedence over strict application of the rules
‣
SALVADOR — Lawyers always use this rule but beware because it gives the Court the indication that you didn’t follow the
Rules and you’d lose if the court does not dispense with a strict application. Based on a case-to-case basis, Courts has
discretion
‣
REQUISITES — Liberal application of procedural rules is allowed only when two requisites are present —
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RULE 1: GENERAL PROVISIONS
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1.
There is a justifiable cause or plausible explanation for the non-compliance
2.
The outright dismissal would defeat the administration of justice. (Domingo vs CA 2010)
GROUNDS — The Court adopted a policy of liberally construing its rules in order to promote a just, speedy and
inexpensive disposition of every action and proceeding. The rules can be suspended on the following grounds —
1.
Matters of life, liberty, honor or property
2.
The existence of special or compelling circumstances
3.
The merits of the case
4.
A cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules
5.
A lack of any showing that the review sought is merely frivolous and dilatory, and (6) the other party will not be
unjustly prejudiced thereby. (De Lima vs Gatdula 2013)
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RULE 2: CAUSE OF ACTION
RULE 2: CAUSE OF ACTION
OVERVIEW OF “CAUSE OF ACTION”
SECTION 2. Cause of action, defined. - A cause of action is the act or omission by which a party violates a right of
another. (n)
NATURE AND ELEMENTS OF A CAUSE OF ACTION
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It is an act or omission of one party in violation of the legal right or rights of the other.
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It is based on the number of breaches, for every breach (act or omission in violation of the rights of the plaintiff) there is
one cause of action
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Elements of a Cause of Action —
1. Legal right — A right in favor of the plaintiff by whatever means and under whatever law it arises or is created;
2. Legal obligation — An obligation on the part of the named defendant to respect or not to violate such right;
3. Breach — Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of
damages or other appropriate relief
‣
NOTE — Although the first two elements may exist, 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 recovery of damages or other appropriate relief.
(Turner vs Lorenzo Shipping 2010)
WHEN MUST THE CAUSE OF ACTION EXIST?
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RULE — THE CAUSE OF ACTION MUST EXIST AT THE TIME THE COMPLAINT IS FILED
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What if the cause of action has NOT yet accrued when the complaint was filed, but arose after such filing, was
the defect cured?
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NO. This defect cannot be cured, even by amendment or supplemental pleading.
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SEE — Philip Turner, et al. v. Lorenzo Shipping Corporation, G.R. No. 157479, November 24, 2010
‣
An action prematurely brought is a groundless suit. Unless the plaintiff has a valid and subsisting cause of action
at the time his action is commenced, the defect cannot be cured or remedied by the acquisition or accrual of one
while the action is pending, and a supplemental complaint or an amendment setting up such after-accrued cause
of action is NOT permissible.
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Subject to certain qualification, and except as otherwise provided by law, an action commenced before the cause
of action has accrued is prematurely brought and should be dismissed.
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The fact that the cause of action accrues after the action is commenced and while the case is pending is of no
moment. It is a rule of law to which there is, perhaps no exception, either in law or in equity, that to recover at all
there must be some cause of action at the commencement of the suit.
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There are reasons of public policy why there should be no needless haste in bringing up litigation, and why people
who are in no default and against whom there is as yet no cause of action should not be summoned before the
public tribunals to answer complaints which are groundless.
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In this case, neither did the subsequent existence of unrestricted retained earnings after the filing of the complaint
cure the lack of cause of action in the Civil Case. The petitioners right of action could only spring from an existing
cause of action. Thus, a complaint whose cause of action has not yet accrued cannot be cured by an amended or
supplemental pleading alleging the existence or accrual of a cause of action during the pendency of the action.
For, only when there is an invasion of primary rights, not before, does the adjective or remedial law become
operative. Verily, a premature invocation of the courts intervention renders the complaint without a cause of action
and dismissible on such ground. In short, Civil Case, being a groundless suit, should be dismissed. Even the fact
that the respondent already had unrestricted retained earnings more than sufficient to cover the petitioners claims
did not rectify the absence of the cause of action at the time of the commencement of Civil Case. The petitioners
did not meet the requirement of the Rules of Court that a cause of action must exist at the commencement of an
action, which is commenced by the filing of the original complaint in court.
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RULE 2: CAUSE OF ACTION
FAILURE TO ASSERT OR STATE A CAUSE OF ACTION
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What is the effect of the failure to “assert” or “state” a Cause of Action in the complaint?
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The mere existence of a cause of action is not sufficient for a complaint to prosper.
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Even if in reality the plaintiff has a cause of action against the defendant, the complaint may be dismissed if the
complaint or the pleading asserting the claim “states no cause of action” (Rule 16, Sec. 1[g]). This means that the
cause of action must unmistakably be stated or alleged in the complaint or that all the elements of the cause of action
required by substantive law must clearly appear from the mere reading of the complaint.
‣
Where there is a defect or an insufficiency in the statement of the cause of action, a complaint may be dismissed not
because of an absence or a lack of a cause of action but because the complaint “states no cause of action”
FAILURE TO STATE A CAUSE OF ACTION VS LACK OF CAUSE OF ACTION
‣
Note the difference between “absence or lack of cause of action” with “complaint states no cause of action”. The ground
for dismissal based on the fact that the pleading asserting the claim states no cause of action is different from the ground
that the case of the claimant should be dismissed for lack of a cause of action.
1.
Pleading containing the claim states no cause of action — refers to the insufficiency of the pleading, and is a
ground for dismissal under Rule 16 of the Rules of Court.
2.
Lack of a cause of action — refers to a situation where the evidence does not prove the cause of action alleged in
the pleading.
FAILURE TO STATE A CAUSE OF ACTION
LACK OF A CAUSE OF ACTION
Defect
contemplated
Refers to the insufficiency of the pleading
Refers to the insufficiency of the evidence
How raised
Raised in a motion to dismiss under Rule 16 before
a responsive pleading is filed and can be
determined only from the allegations of the
pleading and not from evidentiary matters.
Raised in a demurrer to evidence under Rule 33 after the
plaintiff has rested his case and can be resolved only on the
basis of the evidence he has presented in support of his
claim
RULES TO OBSERVE IN DETERMINING WHETHER THE PLEADING ASSERTING THE CLAIM ‘STATES NO CAUSE OF ACTION’
1.
2.
WHETHER OR NOT THE PLEADING STATES A CAUSE OF ACTION MUST BE DETERMINED ONLY FROM THE FACTS ALLEGED IN THE
PLEADING, AND THE COURT CANNOT CONSIDER OTHER MATTERS ALIUNDE
‣
Matters outside the pleading are NOT to be considered in the determination of whether the pleading states a cause of
action.
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EXCEPT — Inquiry is not confined to the complaint if culled from (Aquino vs Quiazon 2015) —
1.
Annexes and other pleadings submitted by the parties — In some cases, the court considered the documents
attached to the complaint to truly determine sufficiency of 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 is that such annexes are considered parts of the complaint
2.
Documentary evidence admitted by stipulation which disclose facts sufficient to defeat the claim
3.
Evidence admitted in the course of hearings related to the case — this pertains to hearings other than the
hearing on a motion to dismiss on the ground of failure to state a cause of action, such as a prior hearings
conducted on provisional remedies.
THE TEST IS WHETHER, ASSUMING THAT THE ALLEGATIONS OF FACT IN THE COMPLAINT TO BE “HYPOTHETICALLY” TRUE, A
VALID JUDGMENT COULD BE RENDERED IN ACCORDANCE WITH THE PRAYER STATED THEREIN
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SEE — Aquino vs Quiazon G.R. No. 201248, March 11, 2015
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The familiar test for determining whether a complaint did or did not state a cause of action against the defendants
is whether or not, admitting hypothetically the truth of the allegations of fact made in the complaint, a judge may
validly grant the relief demanded in the complaint.
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The rule is that a defendant moving to dismiss a complaint on the ground of lack of cause of action is regarded as
having hypothetically admitted all the averments thereof. The test of the sufficiency of the facts found in a petition
as constituting a cause of action is whether or not, admitting the facts alleged, the court can render a valid
judgment upon the same in accordance with the prayer thereof
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In determining the existence of a cause of action, only the statements in the complaint may properly be
considered. It is error for the court to take cognizance of external facts or hold preliminary hearings to determine
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RULE 2: CAUSE OF ACTION
their existence. If the allegation in a complaint furnish sufficient basis by which the complaint may be maintained,
the same should not be dismissed regardless of the defenses that may be assessed by the defendants.
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Thus, in determining the existence of a cause of action, only the allegations in the complaint may properly be
considered. For the court to do otherwise would be a procedural error and a denial of the plaintiff’s right to due
process.
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It is already well-settled that in a motion to dismiss a complaint based on lack of cause of action, the question
submitted to the court for determination is the sufficiency of the allegations of fact made in the complaint to
constitute a cause of action, and not on whether these allegations of fact are true, for said motion must
hypothetically admit the truth of the facts alleged in the complaint; that the test of the sufficiency of the facts
alleged in the complaint is whether or not, admitting the facts alleged, the court could render a valid judgment
upon the same in accordance with the prayer of said complaint.
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Stated otherwise, the insufficiency of the cause of action must appear in the face of the complaint in order to
sustain a dismissal on this ground, for in the determination of whether or not a complaint states a cause of action,
only the facts alleged therein and no other matter may be considered, and the court may not inquire into the truth
of the allegations, and find them to be false before a hearing is had on the merits of the case; and it is improper to
inject in the allegations of the complaint facts not alleged or proved, and use these as basis for said motion
SEE — NM Rothschild & Sons Limited, v. Lepanto Consolidated Mining, G.R. No. 175799, November 28, 2011
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The rule is that in a Motion to Dismiss, a defendant hypothetically admits the truth of the material allegations of the
ultimate facts contained in the plaintiff's complaint.
‣
EXCEPT — However, this principle of hypothetical admission admits of exceptions. The flaw in this conclusion is
that, while conveniently echoing the general rule that averments in the complaint are deemed hypothetically
admitted upon the filing of a motion to dismiss grounded on the failure to state a cause of action, it did not take
into account the equally established limitations to such rule, i.e., that a motion to dismiss does NOT admit the
following matters—
1.
Truth of mere epithets of fraud
2.
Allegations of legal conclusions
3.
An erroneous statement of law
4.
Mere inferences or conclusions from facts not stated; nor mere conclusions of law
5.
Allegations of fact the falsity of which is subject to judicial notice
6.
Matters of evidence
7.
Surplusage and irrelevant matters
8.
Scandalous matters inserted merely to insult the opposing party
9.
Legally impossible facts
10. Facts which appear unfounded by a record incorporated in the pleading, or by a document referred to
11. General averments contradicted by more specific averments
12. Facts inadmissible in evidence
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3.
A more judicious resolution of a motion to dismiss, therefore, necessitates that the court be not restricted to the
consideration of the facts alleged in the complaint and inferences fairly deducible therefrom. Courts may consider
other facts within the range of judicial notice as well as relevant laws and jurisprudence which the courts are
bound to take into account, and they are also fairly entitled to examine records/documents duly incorporated into
the complaint by the pleader himself in ruling on the demurrer to the complaint.
THE CAUSE OF ACTION IN A COMPLAINT IS NOT WHAT THE DESIGNATION OF THE COMPLAINT STATES, BUT WHAT THE
ALLEGATIONS IN THE BODY OF THE COMPLAINT DEFINE AND DESCRIBE
‣
4.
The designation or caption is not controlling, more than the allegations in the complaint themselves are, for it is not
even an indispensable part of the complaint
IF THE GROUND FOR DISMISSAL IS RAISED AS AN AFFIRMATIVE DEFENSE IN THE ANSWER (INSTEAD OF RAISING IT IN A
MOTION TO DISMISS), THE COURT CANNOT HOLD A PRELIMINARY HEARING.
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SEE — Aquino vs Quaizon G.R. No. 201248, March 11, 2015
‣
The trial court may indeed elect to hold a preliminary hearing on affirmative defenses as raised in the answer under
Section 6 of Rules 16 of the Rules of Court. It has been held, however, that such a hearing is not necessary
when the affirmative defense is failure to state a cause of action, and that it is, in fact, error for the court to
hold a preliminary hearing to determine the existence of external facts outside the complaint.
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RULE 2: CAUSE OF ACTION
The reception and the consideration of evidence on the ground that the complaint fails to state a cause of action,
has been held to be improper and impermissible. Thus, in a preliminary hearing on a motion to dismiss or on the
affirmative defenses raised in an answer, the parties are allowed to present evidence except when the motion is
based on the ground of insufficiency of the statement of the cause of action which must be determined on the
basis only of the facts alleged in the complaint and no other.
Section 6, therefore, does not apply to the ground that the complaint fails to state a cause of action. The trial
court, thus, erred in receiving and considering evidence in connection with this ground.
BASIS OF ORDINARY CIVIL ACTIONS
SECTION 1. Ordinary civil actions, basis of . - Every ordinary civil action must be based on a cause of action. (n)
‣
Note that the rule makes no reference to a special civil action. Most SCAs need not be based on a cause of action.
SPLITTING OF CAUSES OF ACTION
SECTION 3. One suit for a single cause of action. - A party may not institute more than one suit for a single cause of
action. (3a)
SECTION 4. Splitting a single cause of action; effect of . - If two or more suits are instituted on the basis of the same
cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the
others. (4a)
SPLITTING AND JOINDER OF CAUSES OF ACTION
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One action/suit at most for a single cause of action, but, a suit can have many causes of action. Splitting prohibited but
Joinder is allowed subject to certain rules
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Splitting — Multiple actions/suits based on one cause of action. It is the act of instituting two or more suits for the
same cause of action
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Joinder — One action/suit based on multiple causes of actions
SPLITTING OF A CAUSE OF ACTION
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RULE — IF TWO OR MORE SUITS ARE INSTITUTED ON THE BASIS OF THE SAME CAUSE OF ACTION, THE FILING OF ONE OR A
JUDGMENT UPON THE MERITS IN ANY ONE IS AVAILABLE AS A GROUND FOR THE DISMISSAL OF THE OTHERS
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‣
RATIONALE — The purpose of this rule is to prevent repeated litigation. The same subject matter should not be the
subject of controversy in courts more than once, in order that possible conflicting judgments may be avoided for the
sake of the stability of the rights and status of persons, and also to avoid the costs and expenses incident to
numerous suits.32 Consequently, a party will not be permitted to split up a single cause of action and make it a basis
for several suits as the whole cause must be determined in one action. (Marilag vs Martinez 2015)
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NOTE — The rule applies not only to complaints but also to counterclaims and cross-claims.
How do you determine whether a cause of action is single or separate?
‣
The question of whether a cause of action is single and entire or separate is not always easy to determine and the
same must often be resolved, not by the general rules, but by reference to the facts and circumstances of the
particular case. The true rule, therefore, is whether the entire amount arises from one and the same act or contract
which must, thus, be sued for in one action, or the several parts arise from distinct and different acts or contracts,
for which a party may maintain separate suits. (Marilag vs Martinez 2015)
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Example — The act of a defendant in taking possession of the plaintiffs land by means of force and intimidation
constitutes a single act of dispossession but gives rise to two reliefs: (a) recovery of possession, and (b) damages
arising from the loss of possession. Both of these reliefs result from a single wrong hence, constitute but a single
cause of action. Each of them cannot be the subject of two separate actions. It is procedurally erroneous for the
plaintiff to file an action to recover possession and another action for damages. Both remedies must be alleged and
claimed in only one complaint. To file a separate action for each relief is to split a single cause of action.
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RULE 2: CAUSE OF ACTION
Where there is only one delict or wrong, there is only one cause of action regardless of the number of rights that may
have been violated belonging to one person.
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Example — If a car owner sustains injuries to his person and damage to his car as a result of the negligent driving
of the defendant, two rights of the plaintiffs have been violated, namely, his personal right to be safe in his person
and his property right to have his car intact and free from any damage. Under the circumstances, the plaintiff can
only file a single action for the recovery of damages for both types of injuries. Filing an action to recover damages to his
person and later for damages to his car would be splitting a single cause of action. If however, a passenger in the same car was
also injured, the injuries to the passenger gives rise to a cause of action separate and distinct from those sustained by
the car owner because distinct rights belonging to different persons have been violated. The injured passenger may
file a suit against the defendant separate from the suit filed by the car owner.
‣
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Examples of causes of actions which cannot be split —
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Recovery of property and damages
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Annulment of foreclosure sale and damages (Chua v MBTC, 2009)
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Recovery of ownership of and income from same land
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Installments due and unpaid
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Non-payment of debt secured by a mortgage (you can’t split it to payment of debt and foreclosure of mortgage,
you have to choose one)
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Recovery of income/rentals of co-owned property and the partition of the property itself
What if a single act of the defendant violates a number of rights of the plaintiff, are there multiple causes of
action?
‣
NO. While there are separate and distinct sources of obligations involved, there is only one cause of action which
cannot be split into multiple actions.
‣
SEE — Chua v. Metrobank, et al., G. R. No.182311, August 19, 2009
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‣
‣
A cause of action is understood to be the delict or wrongful act or omission committed by the defendant in
violation of the primary rights of the plaintiff. It is true that a single act or omission can violate various rights at the
same time, as when the act constitutes juridically a violation of several separate and distinct legal obligations.
However, where there is only one delict or wrong, there is but a single cause of action regardless of the
number of rights that may have been violated belonging to one person.
RIANO — A single act may sometimes violate several rights of a person. Nevertheless, the plaintiff has only one cause
of action regardless of the number of rights violated. If a car owner sustains injuries to his person and damage to his
car as a result of the negligent driving of the defendant, two rights of the plaintiffs have been violated, namely, his
personal right to be safe in his person and his property right to have his car intact and free from any damage. Under
the circumstances, the plaintiff can only file a single action for the recovery of damages for both types of injuries.
Filing an action to recover damages to his person and later for damages to his car would be splitting a single cause of
action. If however, a passenger in the same car was also injured, the injuries to the passenger gives rise to a cause of
action separate and distinct from those sustained by the car owner because distinct rights belonging to different
persons have been violated. The injured passenger may file a suit against the defendant separate from the suit filed by
the car owner.
How can the defendant object to when the plaintiff splits his cause of action?
‣
Splitting can be raised either by means of —
1. A motion to dismiss
2. Affirmative defense in the answer
‣
What ground? Is “splitting of a cause of action” a ground?
‣
NO. This is not one of the grounds provided for under Rule 16. Instead, raise either of the following grounds —
1. Res judicata (One case decided, others are pending)
2. Litis pendentia (all cases are pending)
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NOTE — If the first action is pending when the second action is filed, the latter may be dismissed based on litis
pendencia, If a final judgment had been rendered in the first action when the second action is filed, the latter may be
dismissed based on res judicata. (Rule 16, Sec. 1)
Is “splitting of cause of action” different from forum shopping?
‣
They are not exactly similar. Rather, splitting a cause of action is a mode of forum shopping by filing multiple cases
based on the same cause of action, but with different prayers, where the round of dismissal is litis pendentia for res
judicata, as the case may be). (Marilag vs Martinez 2015)
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What is the adverse consequence of forum-shopping?
1.
If the forum shopping is NOT considered willful and deliberate — the subsequent case shall be dismissed without
prejudice, on the ground of either litis pendentia or res judicata.
2.
If the forum shopping is willful and deliberate — both (or all, if there are more than two) actions shall be dismissed
with prejudice. (Chua vs Metrobank 2009)
In case of non-deliberate forum shopping, what action will be dismissed, is it the second/latest one?
‣
Not necessarily. It need not be the second action filed that should be dismissed. The phraseology of the present rule
(Rule 2, Sec. 4) does not necessarily confine the dismissal to the second action. As to which action should be
dismissed would depend upon judicial discretion and the prevailing circumstances of the case.
CONCEPT OF FORUM-SHOPPING (IN RELATION TO SPLITTING)
‣
SEE — Chua v. Metrobank, et al., G. R. No.182311, August 19, 2009
‣
Forum shopping exists when a party repeatedly avails himself of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some
other court.
‣
Ultimately, what is truly important in determining whether forum shopping exists or not is the vexation caused the
courts and party-litigant by a party who asks different courts to rule on the same or related causes and/or to grant the
same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered
by the different fora upon the same issue
‣
Forum shopping can be committed in three ways:
1.
Filing multiple cases based on the same cause of action and with the same prayer, the previous case not having
been resolved yet (where the ground for dismissal is litis pendentia)
2.
Filing multiple cases based on the same cause of action and the same prayer, the previous case having been
finally resolved (where the ground for dismissal is res judicata)
3.
Filing multiple cases based on the same cause of action, but with different prayers (splitting of causes of action,
where the ground for dismissal is also either litis pendentia or res judicata)
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Forum shopping occurs although the actions seem to be different, when it can be seen that there is a splitting of a
cause of action. A cause of action is understood to be the delict or wrongful act or omission committed by the
defendant in violation of the primary rights of the plaintiff. It is true that a single act or omission can violate various
rights at the same time, as when the act constitutes juridically a violation of several separate and distinct legal
obligations. However, where there is only one delict or wrong, there is but a single cause of action regardless of the
number of rights that may have been violated belonging to one person.
‣
Even if it were assumed that the two cases contain two separate remedies that are both available to petitioners, these
two remedies that arose from one wrongful act cannot be pursued in two different cases. The rule against splitting a
cause of action is intended to prevent repeated litigation between the same parties in regard to the same subject of
controversy, to protect the defendant from unnecessary vexation; and to avoid the costs and expenses incident to
numerous suits. It comes from the old maxim nemo debet bis vexari, pro una et eadem causa (no man shall be twice
vexed for one and the same cause).
TESTS TO ASCERTAIN WHETHER TWO OR MORE SUITS RELATE TO A SINGLE OR COMMON CAUSE OF ACTION
1. Whether the same evidence would support and sustain both the first and second causes of action (also known as the
“same evidence” test)
2. Whether the defenses in one case may be used to substantiate the complaint in the other
3. Whether the cause of action in the second case existed at the time of the filing of the first complaint. (Urn- ale v. Canoga
Park Development Corporation, July 20,2011).
‣
Apply test which is most applicable to the circumstances of each case.
BREACH OF CONTRACT AS A CAUSE OF ACTION
‣
As a general rule, a contract to do several things at several times is divisible, and a judgment for a single breach of a
continuing contract is not a bar to a suit for a subsequent breach.
‣
‣
BUT — where the contract is entire, and the breach total, there can be only one action in which plaintiff must recover
all damages.
What about cases of anticipatory/expected breach of contract?
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RULE 2: CAUSE OF ACTION
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.
In this case, the breach is considered a total breach and there can only be one action and the plaintiff must recover all
his damages therein
MERE INCIDENTS OF A CAUSE OF ACTION
‣
If there is a claim of money and there are claims of damages (moral, exemplary) arising from the claim of money, there is
only one cause of action. The claims for damages are mere incidents of the breach (failure to pay). If mere incidents, there
is still one cause of action
PROMISSORY NOTES
‣
If there are several promissory notes, but only one loan, and no payment on all notes, there are several causes of action
(since based on each promissory notes)
JOINDER OF CAUSES OF ACTION
SECTION 5. Joinder of causes of action. - A party may in one pleading assert, in the alternative or otherwise, as many
causes of action as he may have against an opposing party, subject to the following conditions:
a. The party joining the causes of action shall comply with the rules on joinder of parties;
b. The joinder shall not include special civil actions or actions governed by special rules;
c. Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder
may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said
court and the venue lies therein; and
d. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall
be the test of jurisdiction. (5a)
RULE 3, SECTION 6. Permissive joinder of parties. - All persons in whom or against whom any right to relief in respect to
or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the
alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the
action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed
or put to expense in connection with any proceedings in which he may have no interest.
CONCEPT OF JOINDER OF CAUSES OF ACTION
‣
What does “Joinder of Causes of Action” mean?
‣
It is the assertion of as many causes of action (in the alternative or otherwise) as a party may have against another in
one pleading alone. It is the process of uniting two or more demands or rights of action in one action.
‣
NOTE — Joinder of causes of action is permissive and not mandatory. It’s up to the litigant if he wants to avail of
such. But when he decides to do a joinder, he must comply with the requirements. The rule uses the word “may,” not
“shall”. (Perez vs Hermano, 2005)
‣
Example — D is the debtor of C for P350,000.00 due on January 5, 2011. D likewise owes C P350,000.00 due on
February 13, 2011. Both debts are evidenced by distinct promissory notes and incurred for different reasons. D has not
paid the debts despite demand. Each debt is a separate cause of action because each is the subject of a different
transaction. However, under the rule on joinder of causes of action, C may file a single suit against D for the collection
of both debts, despite the claims being actually separate causes of action and having arisen out of different
transactions.
RULE IN CASE OF JOINDER OF CAUSES OF ACTION
‣
RULE — A PARTY MAY IN ONE PLEADING ASSERT, IN THE ALTERNATIVE OR OTHERWISE, AS MANY CAUSES OF ACTION AS HE
MAY HAVE AGAINST AN OPPOSING PARTY, SUBJECT TO THE FOLLOWING CONDITIONS —
1. HE MUST COMPLY WITH THE RULES ON JOINDER OF PARTIES (RULE 3, SEC. 6)
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RULE 2: CAUSE OF ACTION
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The party joining the causes of action shall comply with the rules on joinder of parties;
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BUT — This must only be followed if there are multiple defendants. If there are just between two parties, no need
for this rule.
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2 parties only — can join as many causes of action, even if totally unrelated
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Multiple parties — can only join the causes of action if it complies with the rule on joinder, meaning series of
actions arising from the same or series of transactions involving a common question of law.
Rules on Joinder of Parties —
1.
The cause of action arises from the same series of transactions
2.
It involves a common question of law
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NOTE — To determine identity of cause of action, it must be ascertained whether the same evidence which
is necessary to sustain the second cause of action would have been sufficient to authorize a recovery in the
first. (Pantranco v Standard)
2. ORDINARY CIVIL ACTIONS, SPECIAL CIVIL ACTIONS OR ACTIONS GOVERNED BY SPECIAL RULES CANNOT BE JOINED
TOGETHER
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Civil actions cannot be joined with —
1.
Special civil actions
2.
Actions governed by special rules (such as actions under summary procedure or small claims)
Thus, two special civil actions cannot be joined together, one ordinary and one SCA cannot be joined, two actions
governed by special rules cannot be joined.
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BUT — You can join certiorari, prohibition and mandamus in one action since they are all covered by Rule 65.
(Salvador)
Example — You can’t join an ejectment case with money claims because ejectment cases are governed by special
rules on summary procedure.
3. AT LEAST ONE CAUSE OF ACTION MUST FALL WITHIN THE PROPER JURISDICTION AND VENUE OF THE RESPECTIVE COURT
WHERE THE PLEADING WAS FILED
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Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the
joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction
of said court and the venue lies therein
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In cases of different venues or jurisdiction between the SAME parties, the joinder may be made in the RTC,
provided it has jurisdiction over one of the causes of action and the venue lies therein.
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If one cause of action falls within the RTC and the other in the MTC, the action should be filed in the RTC.
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If the causes of action have different venues, they may be joined in any of the courts of proper venue.
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Apply the “Totality Rule” in case of money claims — Where the claims in all the causes of action are principally
for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.
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This totality rule will only apply if ALL cases of action are for recovery of money. The totality of the principal
claims for money determines which court has jurisdiction.
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Does this mean we can’t have joinder of real action and personal action?
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NO. You can still do it, using Sec 5(c), but you just don’t use the totality rule.
ALTERNATIVE CAUSES OF ACTION
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Can you do alternative causes of action against multiple/different parties?
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YES.
1.
Alternative causes of actions are allowed — See Rule 3, Sec. 6
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2.
Example — First cause of action is based on contract. Second cause of action is based on tort. Both are
pleaded in the alternative.
Alternative defendants are also allowed — See Rule 3, Sec. 13
MISJOINDER OF CAUSES OF ACTION
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RULE 2: CAUSE OF ACTION
SECTION 6. Misjoinder of causes of action. - Misjoinder of causes of action is not a ground for dismissal of an action. A
misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with
separately. (n)
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What is the remedy of the plaintiff in case of Misjoined of Causes of Action?
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He can file a motion with the court to have the misjoined cause of action to be severed
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NOTE — Misjoinder is NOT a ground for the dismissal of an action. Distinguish “dropping” and “dismissal of the
case”, in case of misjoinder, the party or the court on its own can drop the erroneously joinder cause of action, but
it is not dismissed
Example — if an action for forcible entry is joined in one complaint with the causes of actions based on several
promissory notes, the complaint should not be dismissed based on the misjoinder of the forcible entry case. Instead,
the cause of action predicated on forcible entry may be severed from the complaint upon motion of a party or by the
court motu proprio and proceeded with separately in another action.
What if the court or defendant does not or fails to object to the misjoined causes of action?
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The defect is waived. If neither the court nor the adverse party objects, it will be adjudicated together with the other
causes of action. Thus, the defendant must raise an objection.
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RULE 3: PARTIES TO CIVIL ACTIONS
RULE 3: PARTIES TO CIVIL ACTIONS
WHO MAY BE PARTIES
SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities authorized by law
may be parties in a civil action.
The term "plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) party plaintiff.
The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or
the third (fourth, etc.) - party defendant. (1a)
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Who is the “plaintiff”?
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It may refer to either the —
1.
Claiming party
2.
Counter-claimant
3.
Cross-claimant
4.
Third (fourth, etc.) - party plaintiff
Who is the “defendant”?
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It may refer to either the —
1.
Original defending party
2.
The defendant in a counterclaim
3.
The cross-defendant
4.
Third (fourth, etc.) - party defendant.
CAPACITY TO BE PARTIES TO A CIVIL ACTION
1. NATURAL PERSONS
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Provided, such person has full legal capacity and capacity to act.
2. JURIDICAL PERSONS
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SEE — Art. 44 of the Civil Code
a. The State and its political subdivisions — but remember the doctrine of state immunity from suit
b. Other corporations, institutions and entities for public interest or purpose, created by law
c. 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
3. ENTITIES AUTHORIZED BY LAW
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One need not be a natural or a juridical person to be a party to a civil action. As long as an entity is authorized by law
to be a party, such entity may sue or be sued or both
a. Foreign Corporations
i.
Isolated transaction — can sue and be sued
ii.
Doing business and not licensed here — can NOT sue, but can be sued
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EXCEPT — if other party is estopped because he benefitted from dealing with such corporation.
iii. Doing business and licensed — can sue and be sued
b. Political parties
c. Labor unions
d. Roman Catholic Church
e. Estate (Rule 3, Sec. 20)
f.
Entities without a juridical personality, as defendants (Rule 3, Sec. 15)
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RULE 3: PARTIES TO CIVIL ACTIONS
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Cannot sue, but can be sued
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Can NOT institute under the name of the non-juridical entity. They have to sue individually.
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But they can be parties as defendants, and named as such.
g. Executors or Administrators (Rule 87, Section 1)
h. Corporation by Estoppel — Under the corporation code, a corporation by estoppel is precluded from denying its
existence and the members thereof can be sued and be held liable as general partners.
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i.
Dissolved Corporation — A dissolved corporation may prosecute and defend suits by or against it provided that the
suits (i) occur within three (3) years after its dissolution, and (ii) the suits are in connection with the settlement and
closure of its affairs
j.
Partnership— having a capital of three thousand pesos or more but which fails to comply with the registration
requirements is nevertheless liable as a partnership to third person
Must the capacity of the parties be averred in the pleadings?
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YES. 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 in the complaint (Rule 8, Sec. 4)
What are the remedies when the person has no legal capacity to be a party?
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Again, MTD or affirmative defense in the answer. The proper grounds are —
1. If Plaintiff has no capacity — the ground that “the plaintiff has no legal capacity to sue” (Rule 16, Sec. 1[d])
2. If Defendant has no capacity — the ground that the “pleading asserting the claim states no cause of action” or
“failure to state a cause of action”, because a complaint cannot possibly state a cause of action against one who
cannot be a party to a civil action. (Rule 16, Sec. 1[g])
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Are sole proprietorships capacitated as parties?
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NO. There is no law authorizing sole proprietorships like petitioner to bring suit in court. The law merely recognizes the
existence of a sole proprietorship as a form of business organization conducted for profit by a single individual, and
requires the proprietor or owner thereof to secure licenses and permits, register the business name, and pay taxes to
the national government. It does not vest juridical or legal personality upon the sole proprietorship nor empower it to
file or defend an action in court. (Navarro vs Escobedo 2009)
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BUT — Under Rule 3, Sec. 15, entities without juridical personalities can be sued as such.
REAL PARTIES IN INTEREST
SECTION 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit.
Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real
party in interest. (2a)
SECTION 19. 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. (20)
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RULE — EVERY ACTION MUST BE PROSECUTED OR DEFENDED IN THE NAME OF THE REAL PARTY IN INTEREST (RPI)
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Who is the “real party in interest”?
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The party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the
suit.
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To be a real party-in-interest, the interest must be ‘real,’ which is a present substantial interest as distinguished
from a mere expectancy or a future, contingent subordinate or consequential interest
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It is an interest that is material and direct, as distinguished from a mere incidental interest
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Thus, when the managing director of a hotel files a complaint pertaining to a contract entered into by the
corporation, it is the corporation which is the RPI, not the managing director. Her interest is merely incidental.
(Republic v Coalbrine International 2010)
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RULE 3: PARTIES TO CIVIL ACTIONS
The rules uses “party” here so it applies to defendants, third party-defendants, etc., anyone who is impleaded and
who will be benefited or be injured.
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The determination of who the real party-in-interest is requires going back to the elements of a cause of action. A
cause of action involves the existence of a right and a violation of such right
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NOTE — This is different from having the capacity to be a party, one may have a capacity to be a party to a civil
action but he may not be the real party in interest. A person may have capacity to sue but he is not necessarily the
RPI.
What is the difference between RPI and Legal Standing (Locus Standi)?
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RPI — will only apply in suits between private parties
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Locus standii — usually applies to public suits (constitutional suits) filed by a private party against the
governmental party It pertains to government actions wherein a person may suffer injury.
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Example — You can base your legal standing as a taxpayer, voter, congressman, or citizens suit (for environment
cases –even generations yet unborn can be parties based on a citizens suit. In fact, plaintiffs don’t need any
interest in filing a citizens suit. As long as he’s a Filipino, he can file.)
What is the remedy if the suit is NOT prosecuted or defended in the name of the RPI?
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File a Motion to Dismiss or raise it as an affirmative defense in the answer based on the ground that the “pleading
states no cause of action. (Rule 16, Sec. 1[g]). Thus, if the plaintiff for instance has capacity to sue but he is not the
‘real party in interest,’ the ground for dismissal is a ‘failure to state a cause of action’ or that the complaint ‘states
no cause of action.
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NOTE — This is the same ground is used when the defendant has no capacity to be sued. This ground
absorbs the situation wherein the party impleaded is not the RPI.
EXCEPT — IN THE FOLLOWING CASES, THE RULE ON REAL PARTIES IN INTEREST IS RELAXED —
1.
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 property belonging to the principal is involved. (Rule 3, Sec. 3)
2.
In case of class suits (Rule 3, Sec. 12)
3.
In case of transfers of interest (Rule 3, Sec. 19)
JURISPRUDENCE ON REAL PARTIES IN INTEREST
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NLMK-OLALIA-KMU vs Keihin (2010) — when a labor union fails to include the name of the employee that they
represent in the caption of their petition for certiorari, the court rightly dismissed the petition based on the formal defect.
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Republic vs Coalbrine — When the suit is against a government employee (like the zone administrator of an economic
zone), the nature of the suit is one against the State, and the Republic is the RPI.
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Cua vs Tan (2009) — In a derivative suit, the corporation is the RPI and the suing stockholder is only a nominal party
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When two sets of stockholders file a derivate suits based on the same facts, alleging the same causes of action, and
praying for the same reliefs, it’s tantamount to allowing the corporation to file the same suit twice. This results to
forum-shopping which is not allowed.
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In Cua, the Court noted that the indispensable parties were not only the Board of Directors, but also the majority
stockholders who approved and ratified the action that was the subject of the controversy.
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In an action for inspecting corporate books and records, it is the stockholder demanding for the inspection that is the
RPI. The right to inspect corporate books is personal
Manila International Airport Authority vs Rivera Village Lessee Homeowners Association (2005)
•
The 1997 Rules of Civil Procedure requires that every action must be prosecuted or defended in the name of the real
party-in-interest, i.e., the party who stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit.
•
A case is dismissible for lack of personality to sue upon proof that the plaintiff is not the real party-in-interest, hence
grounded on failure to state a cause of action.
•
It is a settled rule that every action must be prosecuted or defended in the name of the real party-in-interest. Where
the action is allowed to be prosecuted or defended by a representative acting in a fiduciary capacity, the beneficiary
must be included in the title of the case and shall be deemed to be the real party-in- interest. The name of such
beneficiaries shall, likewise, be included in the complaint
•
In this case, although the names of the individual members of the homeowners association who are the beneficiaries
and real parties-in-interest in the suit were not indicated in the title of the petition, this defect can be cured by the
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simple expedient of requiring the association to disclose the names of the principals and to amend the title and
averments of the petition accordingly.
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Navarro vs Escobido, G.R. No. 153788, November 27, 2009
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In suits to recover properties, all co-owners are real parties in interest. However, pursuant to Article 487 of the Civil
Code and relevant jurisprudence, any one of them may bring an action, any kind of action, for the recovery of coowned properties. Therefore, only one of the co-owners, namely the co-owner who filed the suit for the recovery of the
co-owned property, is an indispensable party thereto. The other co-owners are not indispensable parties. They are not
even necessary parties, for a complete relief can be accorded in the suit even without their participation, since the suit
is presumed to have been filed for the benefit of all co-owners.
REPRESENTATIVES AS PARTIES
SECTION 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a representative
or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to
be the real party in interest.
A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by
law or these Rules.
An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging to the principal. (3a)
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Is an action allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity?
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YES. But the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.
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If the beneficiary’s name is not included in the title, the defect can be cured by the simple expedient of requiring
the association to disclose the names of the principals and to amend the title and averments of the petition
accordingly (MIAA vs Rivera, 2005)
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Impleading the beneficiary as a party is mandatory since said beneficiary is deemed to be the real party-in-interest.
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EXCEPT — An agent acting in his own name AND for the benefit of an undisclosed principal may sue or be sued
without joining the principal
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EXCEPTION TO EXCEPTION — when the contract involves things belonging to the principal.
Who may be representatives?
1. Trustee of an express trust
2. Guardian
3. Executor or Administrator
4. Parties authorized by law or Rules of Court (such as the parent of a minor)
SPOUSES AS PARTIES
SECTION 4. Spouses as parties. - Husband and wife shall sue or be sued jointly, except as provided by law. (4a)
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This is the case as generally both are co-administrators of the community property.
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EXCEPT — As provided by law, such as —
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Suit against each other
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Based on a criminal act
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If they are suing as owners of their exclusive property
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If their properties are governed by complete separation of property
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Abandonment
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If against the exclusive property of spouses
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RULE 3: PARTIES TO CIVIL ACTIONS
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Suits involving the practice of one’s profession
MINORS OR INCOMPETENT PERSONS AS PARTIES
SECTION 5. Minor or incompetent persons. - A minor or a person alleged to be incompetent, may sue or be sued, with
the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. (5a)
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A person need not be judicially declared to be incompetent. It is enough that he be alleged to be incompetent
PERMISSIVE JOINDER OF PARTIES
SECTION 6. Permissive joinder of parties. - All persons in whom or against whom any right to relief in respect to or arising
out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative,
may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where
any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court
may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in
connection with any proceedings in which he may have no interest. (6)
RULE ON PERMISSIVE JOINDER OF PARTIES
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RULE — Persons may be joined as plaintiffs or as defendants in one complaint, whether jointly, severally, or
alternatively, provided the following requisites are present —
1. The cause of action or claim involved arises out of the same transaction or series of transactions
2. The question of law or fact involved is common to all the plaintiffs or defendants
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NOTE — This is permissive and not mandatory as indicated by the word “may”. It is permissive from the standpoint of the
party initiating the cause of action.
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EXCEPT — as otherwise provided in these Rules
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See the next section where the joinder of parties is mandatory and compulsory.
INDISPENSABLE AND NECESSARY PARTIES
SECTION 7. Compulsory joinder of indispensable parties. - Parties in interest without whom no final determination can be
had of an action shall be joined either as plaintiffs or defendants. (7)
SECTION 8. Necessary party. - A necessary party is 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. (8a)
SECTION 9. Non-joinder of necessary parties to be pleaded. - Whenever in any pleading in which a claim is asserted a
necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted.
Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party
if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim
against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment
rendered therein shall be without prejudice to the rights of such necessary party. (8a, 9a)
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RULE 3: PARTIES TO CIVIL ACTIONS
SECTION 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor non-joinder of parties is ground for dismissal
of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any
stage of the action and on such terms as are just.
Any claim against a misjoined party may be severed and proceeded with separately. (11a)
INDISPENSABLE AND NECESSARY PARTIES
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Kinds of parties for purposes of joining them as parties —
1.
Indispensable party — One who has such an interest in the controversy or subject matter that a final adjudication
cannot be made, in his absence, without injuring or affecting that interest. They are real parties in interest without
whom no final determination can be had of an action.
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2.
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Such as —
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Co-owners in an action for partion of an undivided interest in land.
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Vendee in an action for annulment of a contract of sale.
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Those with titled claims over the land in a petition for reconstitution of title.
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.
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Their interest is distinct and divisible from the interest of the other parties; will not necessarily be prejudiced by a
judgment which does complete justice to the parties in court. They should be joined whenever possible; his
presence would merely permit complete relief between him and those already parties to the action, or simply avoid
multiple litigation
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NOTE — The plaintiff may choose to file a separate case against the necessary party not impleaded, but they
ought to be joined to avoid multiple litigation.
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Example — In an action to recover possession of property, the holder of the title is a necessary party while the
actual possessor is an indispensable party
Are the parties’ successors-in-interest (in case of transfers pending litigation), indispensable parties?
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NO. They are not even necessary parties. Rather, the rule in case of transfers pending litigation in Rule 3, Sec. 19
applies — 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.
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SEE — Constantino v. Heirs of Pedro Constantino, G.R. No. 181508, October 2, 2013
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By the term "privies" is meant those between whom an action is deemed binding although they are not literally
parties to the said action. Privity in estate denotes the privity between assignor and assignee, donor and donee,
grantor and grantee, joint tenant for life and remainderman or reversioner and their respective assignees, vendor
by deed of warranty and a remote vendee or assignee. A privy in estate is one, it has been said, who derives his
title to the property in question by purchase; one who takes by conveyance.”
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Successors-in-interest, derive their right from and are in the same position as their predecessor in whose shoes
they now stand. The situation is analogous to that of a transferee pendente lite. As such, he stands exactly in the
shoes of his predecessor in interest, the original defendant, and is bound by the proceedings had in the case
before the property was transferred to him. He is a proper, but not an indispensable, party as he would, in any
event, have been bound by the judgment against his predecessor
COMPULSORY JOINDER OF INDISPENSABLE PARTIES
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RULE — INDISPENSABLE PARTIES MUST BE JOINED EITHER AS PLAINTIFFS OR DEFENDANTS. THE ABSENCE OF AN
INDISPENSABLE PARTY RENDERS ALL SUBSEQUENT ACTIONS OF THE COURT NULL AND VOID FOR WANT OF AUTHORITY TO ACT,
NOT ONLY AS TO THE ABSENT PARTIES BUT EVEN AS TO THOSE PRESENT.
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Without them, there will be no resolution of the case, no judgment at all or the judgment of a court cannot attain real
finality. The joinder of indispensable parties is mandatory. This is a jurisdictional requirement.
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The purpose of the rules on joinder of indispensable parties is a complete determination of all issues not only between
the parties themselves, but also as regards other persons who may be affected by the judgment. A decision valid on
its face cannot attain real finality where there is want of indispensable parties. (Go vs Distinction Properties 2012)
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The general rule with reference to the making of parties in a civil action requires the joinder of all indispensable parties
under any and all conditions, their presence being a sine qua non of the exercise of judicial power. (Borlasa v.
Polistico)
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The burden of procuring the presence of all indispensable parties is on the plaintiff
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RATIONALE — Basic is the rule in procedural law that no man can be affected by any proceeding to which he is a
stranger and strangers to a case cannot be bound by a judgment rendered by the court. It would be a violation of the
constitutional guarantee that no person shall be deprived of property without due process of law. (Cagatao vs Almonte
2013)
What is the consequence of the failure to join indispensable parties to a civil action? Should the case be
dismissed?
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NO. An outright dismissal is not the immediate remedy authorized by the Rules because under the Rules, a nonjoinder (or misjoinder) of parties is not a ground for dismissal of an action. Instead the court should order the plaintiff
to join the indispensable parties as defendants.
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Whenever it appears to the court in the course of a proceeding that an indispensable party has not been joined, it
is the duty of the court to stop the trial and to order the inclusion of such party. The responsibility of impleading all
the indispensable parties rests on the plaintiff.
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When it appears of record that there are other persons interested in the subject matter of the litigation, who are not
made parties to the action, it is the duty of the court to suspend the trial until such parties are made either plaintiffs
or defendants. (Pobre, et al. v. Blanco)
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The failure to join an indispensable party does NOT result in the outright dismissal of the action. Instead, parties
may be dropped or added by the court on motion of any party or on its own initiative at any stage of the action
and on such terms as are just. It is when the order of the court to implead an indispensable party goes unheeded
may the case be dismissed. (See Sec. 11)
SEE — Navarro vs Escobido, G.R. No. 153788, November 27, 2009
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The proper remedy when a party is left out is to implead the indispensable party at any stage of the action. The
court, either motu proprio or upon the motion of a party, may order the inclusion of the indispensable party or give
the plaintiff opportunity to amend his complaint in order to include indispensable parties. If the plaintiff to whom
the order to include the indispensable party is directed refuses to comply with the order of the court, the complaint
may be dismissed upon motion of the defendant or upon the court's own motion. Only upon unjustified failure or
refusal to obey the order to include or to amend is the action dismissed.
What if the plaintiff, despite the court’s order to join and implead the indispensable parties, fails to obey such
order?
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The court may, in its discretion, choose to dismiss a complaint due to the fault of the plaintiff when he does not
comply with any order of the court. (Dismissal of the complaint due to the plaintiffs own fault; See Rule 17)
JOINDER OF NECESSARY PARTIES
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RULE — THE COURT MAY, IN ITS DISCRETION, CHOOSE TO ORDER NECESSARY PARTIES TO BE JOINED IN THE ACTION.
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The joinder of necessary parties is not mandatory, but is discretionary on the court.
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Duty of pleader if a necessary party is not joined — Whenever in any pleading in which a claim is asserted, a
necessary party is not joined, the pleader shall set forth the name of the necessary party, if his name is known, and
shall state why such party is omitted
When it comes to necessary parties, observe the following rules —
1. If the court finds the reason for the omission meritorious (the court didn’t order the joinder of the necessary
party) — The judgment rendered against the impleaded parties will NOT prejudice the rights of the necessary parties
not impleaded.
2. If the court finds the reason for the omission unmeritorious — It may order the inclusion of the omitted necessary
party if jurisdiction over his person may be obtained.
3. If, after the order (if it found the omission unmeritorious), the pleader fails to comply, without justifiable cause,
with the order of the court (and provided that jurisdiction over the person may be obtained) — Then it will be
deemed a waiver of the claim against such necessary party.
‣
Jurisdiction over the necessary party omitted should be obtainable
‣
NOTE — This is an exception to Section 3, Rule 17 which allows the dismissal of the complaint for failure to
comply with an order of the court, as Section 9, Rule 3 specifically provides for the effect of such non-inclusion: it
shall 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. (Carandang vs De Guzman 2006)
‣
Section 11, Rule 3 likewise provides that the non-joinder of parties is not a ground for the dismissal of the action.
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UNWILLING CO-PLAINTIFF
SECTION 10. Unwilling co-plaintiff . - If the consent of any party who should be joined as plaintiff cannot be obtained, he
may be made a defendant and the reason therefor shall be stated in the complaint. (10)
MISJOINDER AND NON-JOINDER OF PARTIES
SECTION 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor non-joinder of parties is ground for dismissal
of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any
stage of the action and on such terms as are just.
Any claim against a misjoined party may be severed and proceeded with separately. (11a)
‣
RULE — MISJOINDER NOR NON-JOINDER OF PARTIES ARE NOT GROUNDS FOR DISMISSAL
‣
Misjoinder — A party is misjoined when he is made a party to the action although he should not be impleaded.
‣
Non-Joinder — A party is not joined when he is supposed to be joined but is not impleaded in the action.
‣
Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of
the action and on such terms as are just.
‣
If there is any claim against a party misjoined, the same may be severed and proceeded with separately
‣
BUT — the court should order the joinder of such party and non-compliance with the said order would be a ground for
the dismissal of the action. (It’s the non-compliance with the order which is the ground for dismissal under Rule 17,
not the misjoinder itself)
SUMMARY OF THE EFFECTS OF NON-JOINDER OF PARTIES
Non-Joinder of Indispensable Party with Court Order — Failure to comply with the order constitutes ground for
dismissal of the action
1.
‣
BASIS — Failure to comply with an order of the court. (Rule 17, Sec. 3)
‣
What if the court fails to order the joinder of indispensable parties?
‣
The absence of an indispensable party renders all subsequent actions of the court null and VOID for want of
authority to act, not only as to the absent parties but even as to those present. The fact that the court failed to
notice will not validate the judgment.
Non-Joinder of Necessary Party with Court Order to join such party — The failure to comply with the order for his
inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.
2.
‣
This is only if jurisdiction over the person of the party ordered to be joined can be obtained. If jurisdiction cannot be
obtained, no waiver, but the judgment rendered against the impleaded joint obligor will not prejudice the rights of the
joint obligor not impleaded. This is an exception to Section 3, Rule 17 which allows the dismissal of the complaint for
failure to comply with an order of the court
CLASS SUIT
SECTION 12. Class suit. - When the subject matter of the controversy is one of common or general interest to many
persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be
sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. (12a)
‣
What is a class suit?
‣
It is an action where a number of persons may bring the suit as representatives of a certain class of people who share
the same interests.
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In a class suit, a number of persons 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.
‣
The class suit will bind all members of the class, despite the fact that they are not really parties to the case.
‣
BUT — Any party in interest shall have the right to intervene to protect his individual interest
When is a class suit available and applicable?
‣
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
‣
REQIUSITES —
a.
Subject matter of the case is one of common or general interest to many persons
b.
The interested persons are so numerous that it is impracticable to join them all as parties
c.
The parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the
interests of all concerned. (Adequacy of representation) (Lascona Land Co. vs CIR 2012)
How is the requisite of “adequacy of representation” determined?
‣
SEE — Banda v. Eduardo R. Ermita G.R. No. 166620, April 20, 2010
‣
‣
‣
‣
‣
In determining the question of fair and adequate representation of members of a class, the court must consider —
1.
Whether the interest of the named party is coextensive with the interest of the other members of the class
2.
The proportion of those made a party, as it so bears, to the total membership of the class
3.
Any other factor bearing on the ability of the named party to speak for the rest of the class.
Where the interests of the plaintiffs and the other members of the class they seek to represent are diametrically
opposed, the class suit will not prosper. In this case, there is a clear indication that there is a divergence of
opinions and views among the members of the class sought to be represented, and not all are in favor of filing the
present suit. There is here an apparent conflict between petitioners interests and those of the persons whom they
claim to represent. Since it cannot be said that petitioners sufficiently represent the interests of the entire class, the
instant case cannot be properly treated as a class suit.
Does the mere fact that the complaint designates itself as a class suit convert the action into such?
‣
NO. Allowing a class suit depends on the discretion of the court.
‣
An action does not become a class suit merely because it is designated as such in the pleadings . It must depend on
the facts of the case. Just because a person represents a number of people doesn’t mean it’s a class suit. It has to
comply with the requisites which will be determined by the court. (Banda vs Ermita 2010)
‣
NOTE — Courts exercise caution before allowing a class suit, which is the exception to the joinder of indispensable
parties. This is because if the judgment against the class represented is not favorable, the represented would certainly
claim denial of due process. (MIAA v Rivera 20052)
What’s the difference between “class suits” and “derivative suits”?
1.
Class suits — these are instituted when the wrong is done to a group of, let’s say, stockholders. An example would
be a violation of the rights of preferred stockholders. The wrong here is done to the a certain group or class.
2.
Derivative suits — these are instituted by an individual stockholder on behalf of the corporation in order to protect or
vindicate corporate rights. These are usually filed when there is an allegation of mismanagement or wrongful acts
committed by the directors or trustees. The wrong here is done to the corporation itself.
In an action instituted by homeowner’s association on behalf of the homeowners is this a class suit?
‣
NO. It is an action in an representative capacity under Rule 3, Sec. 3. (MIAA vs Rivera, 2005)
SUITS BY STOCKHOLDERS BASED ON WRONGFUL OR FRAUDULENT ACTS OF DIRECTORS OR OTHER PERSONS
‣
SEE — Legaspi Towers 300 v. Amelia Muer, et al., G.R. No. 170783, June 18, 2012
1.
Individual suits — Where a stockholder or member is denied the right of inspection, his suit would be individual
because the wrong is done to him personally and not to the other stockholders or the corporation.
2.
Class or representative suit — Where the wrong is done to a group of stockholders, as where preferred
stockholders' rights are violated, a class or representative suit will be proper for the protection of all stockholders
belonging to the same group.
3.
Derivative suit —
‣
Generally, where the acts complained of constitute a wrong to the corporation itself, the cause of action belongs to
the corporation and not to the individual stockholder or member. Although in most every case of wrong to the
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corporation, each stockholder is necessarily affected because the value of his interest therein would be impaired,
this fact of itself is not sufficient to give him an individual cause of action since the corporation is a person distinct
and separate from him, and can and should itself sue the wrongdoer. Otherwise, not only would the theory of
separate entity be violated, but there would be multiplicity of suits as well as a violation of the priority rights of
creditors. Furthermore, there is the difficulty of determining the amount of damages that should be paid to each
individual stockholder.
‣
However, in cases of mismanagement where the wrongful acts are committed by the directors or trustees
themselves, a stockholder or member may find that he has no redress because the former are vested by law with
the right to decide whether or not the corporation should sue, and they will never be willing to sue themselves. The
corporation would thus be helpless to seek remedy. Because of the frequent occurrence of such a situation, the
common law gradually recognized the right of a stockholder to sue on behalf of a corporation in what eventually
became known as a "derivative suit." It has been proven to be an effective remedy of the minority against the
abuses of management. Thus, an individual stockholder is permitted to institute a derivative suit on behalf of the
corporation wherein he holds stock in order to protect or vindicate corporate rights, whenever officials of the
corporation refuse to sue or are the ones to be sued or hold the control of the corporation. In such actions, the
suing stockholder is regarded as the nominal party, with the corporation as the party-in- interest.
‣
Since it is the corporation that is the real party-in-interest in a derivative suit, then the reliefs prayed for must be for
the benefit or interest of the corporation. When the reliefs prayed for do not pertain to the corporation, then it is an
improper derivative suit
DERIVATIVE SUITS
‣
‣
REQUISITES —
1.
The party bringing suit should be a shareholder as of the time of the act or transaction complained of, the number of
his shares not being material
2.
He has tried to exhaust intra-corporate remedies, i.e., has made a demand on the board of directors for the
appropriate relief but the latter has failed or refused to heed his plea
3.
The cause of action actually devolves on the corporation, the wrongdoing or harm having been, or being caused to
the corporation and not to the particular stockholder bringing the suit. (Legaspi Towers 300 vs Muer 2012)
Must the corporation, for whom the derivative suit pertains to, be impleaded as a party?
‣
YES. For a derivative suit to prosper, it is required that the minority stockholder suing for and on behalf of the
corporation must allege in his complaint that he is suing on a derivative cause of action on behalf of the corporation
and all other stockholders similarly situated who may wish to join him in the suit. It is a condition sine qua non that the
corporation be impleaded as a party because not only is the corporation an indispensable party, but it is also the
present rule that it must be served with process. The judgment must be made binding upon the corporation in order
that the corporation may get the benefit of the suit and may not bring subsequent suit against the same defendants
for the same cause of action. In other words, the corporation must be joined as party because it is its cause of action
that is being litigated and because judgment must be a res judicata against it. (Go vs Distinction Properties 2012)
ALTERNATIVE DEFENDANTS
SECTION 13. Alternative defendants. - Where the plaintiff is uncertain against who of several persons he is entitled to
relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be
inconsistent with a right of relief against the other. (13a)
‣
NOTE — Just be careful, because this will open yourself up to counter-suits.
UNKNOWN DEFENDANTS
SECTION 14. Unknown identity or name of defendant. - Whenever the identity or name of a defendant is unknown, he
may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require; when his
identity or true name is discovered, the pleading must be amended accordingly. (14)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
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SECTION 15. Entity without juridical personality as defendant. - When two or more persons not organized as an entity
with juridical personality enter into a transaction, they may be sued under the name by which they are generally or
commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must
all be revealed. (15a)
‣
Entities without juridical personality (such as an unregistered partnership or unincorporated corporation) cannot sue as an
entity they will have to file as individuals. But they can be sued as an entity.
‣
Service of summons 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 under such name.
‣
Their answer must reveal the names and addresses of the persons composing it, so that the judgment rendered
against them shall set out their individual or proper names.
SUBSTITUTION IN CASE OF DEATH OF ANY PARTY
SECTION 16. Death of party; duty of counsel. - 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 representative or representatives. Failure of counsel to comply with
this 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. (16a, 17a)
PROCEDURE OF SUBSTITUTION IN CASE OF DEATH OF ANY PARTY
‣
What are the rules to observe when a party (plaintiff or defendant) to a pending action dies?
1.
STEP 1 — DETERMINE IF THE ACTION IS STILL PENDING
‣
The action must be pending, meaning there is still no final and executory judgment for Rule 3, Sec. 16 to apply
‣
When party dies when the action has already reached the execution stage, apply Rule 39 Sec. 7 instead.
2.
STEP 2 — DETERMINE WHETHER THE PENDING ACTION SURVIVES OR NOT (SEE RULE 87)
‣
TEST — The question as to whether an action survives or not depends on the nature of the action and the damage
sued for. In the causes of action which survive, the wrong complained of affects primarily and principally property
and property rights, the injuries to the person being merely incidental, while in the causes of action which do not
survive, the injury complained of is to the person, the property and rights of property affected being incidental. If
the case affects primarily and principally property and property rights, then it survives the death of the plaintiff or
petitioner. (Bonilla vs Barcena 1976; Cruz vs Cruz 2010)
a. If the injury complained of affects primarily and principally property or property rights and the injuries to the
person being merely incidental — the action will survive and is NOT extinguished
‣
Example — Money claims, actions to recover real and personal property from the estate, actions to enforce a
lien thereon, actions to recover damages for an injury to person or property, actions to recover damages arising
from delicts, ejectment cases, action for quieting title, actions based on negligence
‣
A Petition for Declaration of Nullity of Deed of Sale of Real Property is one relating to property and property
rights, and therefore, survives the death of the petitioner. (Sumaljag vs Literato 2008)
b. If the injury complained of is to the person and the injuries to the property are incidental — then the action
will NOT survive and will be extinguished upon the death of such party.
‣
Example — Annulment of marriage, legal separation – even if it involves changes in the property relations,
action for support
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3. STEP 3 — ONCE YOU DETERMINE WHETHER THE ACTION IS PENDING AND THE CLAIM IS NOT EXTINGUISHED, THEN NOTICE
OF DEATH MUST BE GIVEN TO THE COURT
‣
The counsel of the deceased party has duty to inform the court within thirty (30) days after such death of the fact
thereof. He also has to give the name and address of the legal representative of the deceased to the Court
‣
NOTE — 30 days after the fact of death, and not knowledge thereof.
‣
The failure of counsel to comply with this duty shall be a ground for disciplinary action.
4. STEP 4 — THE COURT WILL ISSUE AN ORDER THE REPRESENTATIVE TO APPEAR AND ISSUE AN ORDER OF SUBSTITUTION
‣
Upon receipt of Notice of Death- Court will then order the legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
‣
Who should the substitutes be?
‣
‣
‣
‣
1.
Legal Heirs (without requiring the appointment of an executor or administrator)
2.
Administrator
3.
Executor
4.
Guardian
NOTE — This is an important list, the substitution of someone who does not fall into this list is an invalid
substitution. (Sumaljag v Literato, 2008)
‣
The substitutes cannot be held liable personally, they merely represent the interests of the deceased
‣
The heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator
or executor. However, if within the specified period a legal representative fails to appear, the court may order the
opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall
immediately appear for the estate of the deceased
‣
Court must order both substitution and appearance. If the court merely orders substitution but the heirs were not
notified and did not appear, the substitution was defective
‣
Service of summons is NOT required to effect a substitution.
‣
RATIONALE — The purpose behind the rule on substitution of parties 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. (Sumaljag vs Literato 2008)
What is the effect of death of a party on the attorney-client relationship?
‣
‣
Those who are “authorized by law”, who are either —
The death of the client extinguishes the attorney-client relationship and divests a counsel of his authority to represent
the client. Accordingly, a dead client has no personality and cannot be represented by an attorney. Neither does he
become the counsel of the heirs of the deceased unless his services are engaged by said heirs.
What 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 (assuming there was a notice of death filed)?
‣
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.
‣
Also, the court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.
NOTE — Know which party died, plaintiff or defendant, although these rules applies to both. Relate this rule with Rule 3,
Sec. 20 regarding death of the defendant when there is a pending contractual money claim.
EFFECT OF FAILURE TO OBSERVE THE PROCEDURE FOR SUBSTITUTION
‣
What are the consequences when there was no valid substitution because of either the fault of the counsel to
notify the court of the death or the failure of the court to order a substitution?
‣
RULE — THE PROCEEDINGS IS INVALIDATED AND THE JUDGMENT IS VOID FOR VIOLATION OF DUE PROCESS
‣
Non-compliance with the rules on substitution of a deceased party renders the proceedings of the trial court infirm
because the court acquired no jurisdiction over the person of the legal representative of heirs of the deceased
because no man should be affected by a proceeding to which he is a stranger.
‣
SEE — Carandang vs Heirs of Heirs of De Guzman, G.R. No. 160347, November 29, 2006
‣
Unlike jurisdiction over the subject matter which is conferred by law and is not subject to the discretion of the
parties, jurisdiction over the person of the parties to the case may be waived either expressly or impliedly; Lack
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of jurisdiction over the person, being subject to waiver, is a personal defense which can only be asserted by
the party who can thereby waive it by silence.
‣
‣
The underlying principle behind the rule requiring a formal substitution of heirs is not really because it is a
jurisdictional requirement, but because non-compliance therewith results in the undeniable violation of the right
to due process of those who, though not duly notified of the proceedings, are substantially affected by the
decision rendered therein
‣
Another reason for holding that proceedings that take place after the death of the party are void is the fact that
attorney for a party ceased to be the attorney upon the death of such party, the principal
What if there are multiple parties, and only some died, but the court did not order substitution?
‣
‣
Judgment will be valid as to the parties who did not die. But void as to parties who were not validly
substituted. (Brioso vs Mariano)
EXCEPT — WHEN THE PARTY TO BE SUBSTITUTED ACTIVELY PARTICIPATES AND VOLUNTARILY SUBMITS HIMSELF TO THE
JURISDICTION OF THE COURT, SUCH THAT THERE IS NO DENIAL OF DUE PROCESS
‣
Formal substitution is not necessary when the heirs themselves voluntarily appeared in the action, participated
therein and presented evidence in defense of deceased defendant. (Brioso vs Mariano)
‣
SEE — Napere v. Barbarona, G.R. No. 160426, January 31, 2008
‣
Mere failure to substitute a deceased party is not sufficient ground to nullify a trial court’s decision. The party
alleging nullity must prove that there was an undeniable violation of due process.
‣
Strictly speaking, the rule on substitution by heirs is not a matter of jurisdiction, but a requirement of due
process. The rule on substitution was crafted to protect every party’s right to due process.It was designed to
ensure that the deceased party would continue to be properly represented in the suit through his heirs or the
duly appointed legal representative of his estate.
‣
Moreover, non-compliance with the Rules results in the denial of the right to due process for the heirs who,
though not duly notified of the proceedings, would be substantially affected by the decision rendered therein.
Thus, it is only when there is a denial of due process, as when the deceased is not represented by any legal
representative or heir, that the court nullifies the trial proceedings and the resulting judgment therein.
‣
Formal substitution by heirs is not necessary when they themselves voluntarily appear, participate in the case,
and present evidence in defense of the deceased. In such case, there is really no violation of the right to due
process. The essence of due process is the reasonable opportunity to be heard and to submit any evidence
available in support of one’s defense. When due process is not violated, as when the right of the representative
or heir is recognized and protected, noncompliance or belated formal compliance with the Rules cannot affect
the validity of a promulgated decision
ACTION ON CONTRACTUAL MONEY CLAIMS IN WHICH THE DEFENDANT DIES
SECTION 20. Action on 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 the 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. (21a)
‣
When does Rule 3, Sec. 20 apply?
‣
REQUISITES —
1. Money claim from contract
2. Defendant dies (not the plaintiff) before before entry of final judgment in the court in which the action was pending
‣
What is the consequence 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?
‣
The action shall NOT be dismissed but shall instead be allowed to continue until the entry of final judgment.
‣
So, no substitution but the action still continues. This operates as an exception to the rule in Rule 3, Sec. 16.
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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. Once a final judgment is entered against the
estate of the deceased, it shall be enforced as a claim without need of proving the same.
‣
If based on a contract — file money claim against the estate in the probate court.
‣
If based on tort or delict — file the claim against the executor or administrator.
NOTE — Differentiate this from Section 16 (where either of the party dies and no need for it to be a money claim, as
long as the action survives)
‣
Sec. 20 applies only when the defendant dies and the action is a money claim from a contract, in Sec. 16 it can be
either party and any kind of pending civil action which survives the death of a party. Sec. 20 applies as an
exception to Sec. 16
SUBSTITUTION IN CASE OF DEATH OR SEPARATION OF A PARTY WHO IS A PUBLIC OFFICER
SECTION 17. 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 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 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. (18a)
‣
When does the rule in Rule 3, Sec. 17 apply?
‣
REQUISITES —
1. A public officer is a party in an action in his official capacity, and
2. During the pendency he either —
a. Dies
b. Resigns
c. Ceases to hold office
‣
So what happens 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?
‣
Substitution is allowed and the action may be continued and maintained by or against the successor of the Public
Officer provided —
1. 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
2. The successor adopts or continues or threatens to adopt or continue the action of his predecessor
3. The successor (party or officer to be affected) is given reasonable notice of the application therefor and accorded
an opportunity to be heard.
‣
Unless he expressly assented
INCOMPETENCY OR INCAPACITY OF PARTY
SECTION 18. 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. (19a)
TRANSFER OF INTEREST
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SECTION 19. 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. (20)
‣
RULE — WHEN THERE IS TRANSFER OF INTEREST, THE ACTION MAY BE CONTINUED BY OR AGAINST THE ORIGINAL PARTY
‣
EXCEPT — when the court, upon motion, directs the transferee, to either be —
1. Substituted in the action
2. Joined with the original party
‣
Joinder in this case is discretionary on the part of the court, upon a motion of the adverse party.
‣
The adverse party must file a motion to either substitute or implead the person to whom the interest is transferred
‣
BUT — the substitution should be done —
1. During the lifetime of the transferor of the interest; and
2. While the manifesting counsel is still the effective and authorized counsel for the client-transferor. (Sumaljag vs Literato
2008)
‣
NOTE — Distinguish from Rule 3, Sec. 16. There is no conflict since that Sec. 16 involves death of parties. In Sec. 19, the
transferor of interest must be alive.
‣
Should transferees pendente lite be joined in actions as indispensable parties?
‣
NO. They are not even necessary parties.
‣
A transferee pendente lite stands in exactly the same position as its predecessor-in-interest, the original defendant,
and is bound by the proceedings had in the case before the property was transferred to it. It is a proper but not an
indispensible party as it would in any event be bound by the judgment against his predecessor. This would follow even
if it is not formally included as a defendant through an amendment of the complaint. The Rules of Court specifically
allows the proceedings to proceed with the original parties while binding the transferee. (Heritage Park Management v.
CIAC 2008)
INDIGENT PARTIES
SECTION 21. 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 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. (22a)
RULE 141 — LEGAL FEES
SECTION. 19. Indigent litigants exempt from payment of legal fees. - Indigent litigants (a) whose gross income and that
of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do
not own real property with A FAIR MARKET VALUE AS STATED IN THE CURRENT TAX DECLARATION of more than
THREE hundred thousand (P300,000.00) pesos shall be exempt from the payment of legal fees.
The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court
otherwise provides.
To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do
not earn a gross income above-mentioned, nor they own any real property with the fair value aforementioned, supported
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by an affidavit of a disinterested person attesting to the truth of the litigant’s affidavit. The current tax declaration, if any,
shall be attached to the litigant’s affidavit.
Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or
to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred. (16a)
‣
Who are considered as indigent parties/litigants?
‣
SEE — Algura v. LGU of the City of Naga, G.R. No. 150135, October 30, 2006
‣
Observe the following two-tier test —
1. Indigent litigant as a matter of right under Rule 141, Sec. 9
‣
If the indigent fits within the parameters set out by Rule 141, Sec. 9, it is mandatory upon the court to
declare him an indigent.
‣
REQUISITES — the litigant must have the following requisites —
1. Gross income and immediate family income does not exceed twice of monthly minimum wage
2. Does not own real property with FMV (as stated in current tax declaration) of more than P300,000
2. Indigent litigant as a matter of discretion under Rule 3, Sec. 21
‣
‣
If the litigant does not have the requisites under Rule 141, the court is given the discretionary to determine
whether he is an indigent or not based on Rule 3, Section 21
‣
Court may declare parties who have no money or property sufficient and available for food, shelter, and
basic necessities for himself and his family, as indigent litigants.
What are the benefits given to indigent litigants?
1. Exemption from payment of transcripts of stenographic notes — This is free
2. Exemption from Docket/Filing and other lawful fees — But lien on any judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
‣
Can the status of a party as an indigent litigant be challenged by the adverse party?
‣
‣
YES. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial
court. Then, the court should determine after hearing that the party declared as an indigent is in fact a person with
sufficient income or property
What if a party is declared as an Indigent Party but later was found out to lack the requirements?
‣
Rule 141, Sec. 19 — Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss
the complaint or action or to strike out the pleading of that party, without prejudice to whatever criminal liability may
have been incurred.
‣
Rule 3, Sec. 21 — The proper docket and other 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.
NOTICE TO SOLICITOR GENERAL
SECTION 22. 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 through a representative duly designated by him. (23a)
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RULE 4: VENUE OF ACTIONS
RULE 4: VENUE OF ACTIONS
OVERVIEW OF VENUE
‣
‣
What is “venue”?
‣
Venue is the place, or the geographical area in which a court with jurisdiction may hear and determine a case or the
place where a case is to be tried
‣
Venue is procedural and not substantive. Because it is merely procedural, the parties can waive the venue of a case.
‣
In civil cases, unlike in criminal cases, venue is NOT a matter of jurisdiction
What are the consequences when a civil action is filed in the wrong venue (improper venue)?
‣
Venue is procedural, NOT jurisdictional, and hence may be waived. It is meant to provide convenience to the parties,
rather than restrict their access to the courts as it relates to the place of trial
‣
This also means that the Court can dismiss an action motu proprio for lack of jurisdiction over the subject-matter but
NOT for improper venue
‣
‣
What is the remedy to assail improper venue?
‣
‣
BUT — The court may however, effect a motu proprio dismissal of the complaint based on improper venue in
actions covered by the rules on summary procedure and in small claims cases
The defendant may raise it in a motion to dismiss or in the answer. If he fails to do so, then such defect is considered
waived under Rule 9, Sec. 1
How do you determine the proper venue?
‣
In order to know the venue of a particular action, the basic and initial step is to determine if the action is Personal or
Real.
1. Personal actions — the venue is deemed transitory and thus, generally depends upon the residences of the
parties.
2. Real actions — the venue is local and thus, generally, the venue is the place where the property or where any
portion of the same is situated.
‣
What is the difference between “venue” and “jurisdiction”?
JURISDICTION
VENUE
Authority to hear and determine a case
Place where the case is to be heard or tried
Matter of substantive law
Matter of procedural law
Establishes a relation between the court and the subjectmatter
Establishes a relation between plaintiff and defendant, or
petitioner or respondent
Fixed by law and cannot be conferred by the parties
May be conferred by the act or agreement of the parties
VENUE OF REAL ACTIONS
SECTION 1. 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. (1[a], 2[a]a)
‣
What are “real actions”?
‣
These are actions affecting —
1. Title to real property
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2. Possession of real property
3. Any interest in real property
‣
‣
The principal objective or relief sought is either ownership or possession of real property.
‣
Look for the true nature of the action, if its primary purpose directly affects the title, possession or interest in the
property, it is still a real action.
‣
NOTE — Remember that you also need to determine the nature of the action for purposes of Docket Fees
‣
Examples of real actions —
‣
Actions to recover ownership of real property
‣
Action for the annulment or rescission of sale of land (unless the title has not yet passed to the vendee)
‣
Actions for unlawful detainer, forcible entry and accion publiciana
‣
An action to recover possession of the leased real property and for the payment of accrued rentals
‣
Actions for specific performance, but which, prays for the issuance of a deed of sale for a parcel of land, to enable
plaintiff to acquire ownership thereof (Since the nature of the action is still to recover the land itself)
What is the rule on venue of real actions?
‣
RULE — Real Actions 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
VENUE OF PERSONAL ACTIONS
SECTION 2. 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. (2[b]a)
‣
‣
What are “personal actions”?
‣
All actions which are not real actions, are necessarily personal actions
‣
Such as —
‣
Action for Damages
‣
Recovery of personal property
‣
Cancellation of real estate mortgage (to compel the mortgagee to accept payment of the mortgage debt)
‣
Where the allegations as well as the prayer of the complaint do not claim ownership of the lots in question or ask
for possession of the same but instead merely seeks for the execution of a deed of sale by the defendants in favor
of the plaintiff
‣
Where an award of a house and lot to the plaintiff was unilaterally cancelled, an action that seeks to annul the
cancellation of the award over the said house and lot
‣
An action to compel the mortgagee to accept payment of the mortgage debt and to release the mortgage
‣
An action to annul a contract of loan and its accessory real estate mortgage
What is the rule on venue of personal actions?
‣
RULE — Either in any of the following, at the choice of the plaintiff (since he is the one who files the case) —
1. Place of residence of the plaintiff or any of the principal plaintiffs
2. Place of residence of the defendant or any of the principal defendants
3. In the case of a non-resident defendant, where he may be found, at the election of the plaintiff
‣
NOTE —
‣
Plaintiff can always file it in his place of residence regardless whether the defendant is a resident or non-resident
‣
Use of the word “principal” means that if there are multiple plaintiffs or defendants, the residence of the
“principal” plaintiff/defendant is to be considered — Sec. 2 of Rule 4 indicates quite clearly that when there is
more than one plaintiff in a personal action case, the residences of the “principal” parties should be the basis for
determining proper venue. The word “principal” has been added in order to prevent the plaintiff from choosing the
residence of a minor plaintiff or defendant as the venue. Eliminate the qualifying term principal and the purpose of
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the Rule would be defeated where a nominal or formal party is impleaded in the action since the latter would not
have the degree of interest in the subject of the action which would warrant and entail the desirably active
participation expected of litigants in a case. (Marcos-Araneta vs CA 2008)
‣
What does “residence” mean?
‣
Residence means actual residence, where there is personal, actual and physical habitation.
‣
For purposes of venue, the less technical definition of "residence" is adopted; Residence simply requires bodily
presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention
to make it one’s domicile; A man can have but one domicile for one and the same purpose at any time, but he may
have numerous places of residence (Saludo vs Amex 2006)
VENUE OF ACTIONS AGAINST NON-RESIDENTS NOT FOUND IN THE PHILIPPINES
SECTION 3. Venue of actions against non-residents. - 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. (2[c]a)
‣
When does Rule 3, Sec. 4 apply?
‣
REQUISITES —
1. Any of the defendants does not reside and is not found in the Philippines and
2. The action is in rem or quasi in rem in that it either —
a. Affects the personal status of the plaintiff
‣
Such as — annulment of marriage
b. Affects any property of the defendant located in the Philippines
‣
‣
Such as — foreclosure of real mortgage
What is the venue when 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?
‣
RULE — The action in any of the above situations may be commenced and tried in either the court of —
1.
The place where the plaintiff resides, or
2.
Where the property or any portion thereof is situated or found
‣
Example — If an action for partition of real property is filed by the plaintiff, a resident of Manila, naming his co- owner
brothers, all residents of Los Angeles, California as defendants, and involving a property located in Makati City, the
plaintiff has a choice of venue. He may commence and have the action tried either in Manila, the place where he
resides OR in Makati City, the place where the property is situated.
‣
NOTE — Jurisdiction is limited to the res, namely, the personal status of the plaintiff or the property of the defendant
located in the Philippines. This can only be a action in res/ quasi in res where the jurisdiction of the court is confined
to the res. Action in personam against non-resident defendant not in the Philippines cannot be made since the court
does not have jurisdiction over his person. The judgment must be confined to the res, and no personal judgment can
be rendered against the defendant, unless he submits to the jurisdiction of the court.
VENUE OF REAL ACTIONS
These are actions affecting —
1. Title to real property
VENUE OF PERSONAL ACTIONS
All actions which are not real actions, are
necessarily personal actions
2. Possession of real property
3. Any interest in real property
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1.
Any of the defendants does not reside
and is not found in the Philippines; and
2.
The action is in rem or quasi in rem in
that it either —
a.
Affects the personal status of the
plaintiff
b.
Affects any property of the
defendant located in the Philippines
CIVIL PROCEDURE
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RULE 4: VENUE OF ACTIONS
VENUE OF REAL ACTIONS
VENUE OF PERSONAL ACTIONS
VENUE OF ACTIONS AGAINST NONRESIDENTS NOT IN THE PHILIPPINES
Commenced and tried in the proper
court which has jurisdiction over the area
wherein the real property involved, or a
portion thereof, is situated
In either any of the following, at the choice
of the plaintiff —
Commenced and tried in either the court of
—
1. Place of residence of the plaintiff
or any of the principal plaintiffs
2. Place of residence of the
defendant or any of the principal
defendants
1.
The place where the plaintiff resides, or
2.
Where the property or any portion
thereof is situated or found
3. In the case of a non-resident
defendant, where he may be
found, at the election of the
plaintiff
WHEN RULES ON VENUE ARE NOT APPLICABLE
SECTION 4. 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. (3a, 5a)
EXCEPTIONS TO THE RULES ON VENUE
‣
RULE — THE RULES ON VENUE ARE NOT APPLICABLE IN ANY OF THE FOLLOWING CASES —
1. IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES OTHERWISE
‣
Such as —
a. Quo warranto proceedings — RTC of the residence of the defendant.
b. Action for nullity of marriage — where plaintiff residents, where the defendant resides or where their conjugal
home is located
c. Adoption — where the prospective adoptive parents reside
d. Probate/Settlement of Estate— where the deceased last resided at his time of death
e. Contempt in quasi-judicial agencies — RTC where the contempt was committed
f.
Petition for perpetration of testimony — court of the place where the prospective defendant resides
g. Writ of habeas corpus on custody of minors — RTC where the minor is supposed to be found
‣
g.
EXCEPT — when place is unknown or minor cannot be found, can be filed in the CA or SC
Extra-judicial foreclosure sales — Said sale cannot be made legally outside of the province in which the
property sold is situated; and in case the place within said province in which the sale is to be made is subject
to stipulation, such sale shall be made in said place or in the municipal building of the municipality in which
the property or part thereof is situated. Act No. 3135, as amended, applies, it being a special law dealing
particularly with extrajudicial foreclosure sales of real estate mortgages, and not the general provisions of the
Rules of Court on Venue of Actions. (Ochoa vs Chinabank 2011)
2. WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE
THEREOF
‣
REQUISITES — For a valid stipulation as to an exclusive venue —
a. Must be in writing
b. Must be made before the filing of the action, and
c. Must be exclusive as to the venue
d. Must not be contrary to the rules, law, or public policy
‣
A written agreement of the parties as to venue before the filing of an action is not only binding upon the parties but
also on the courts.
‣
How should stipulations on venue be written?
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RULE 4: VENUE OF ACTIONS
The parties must employ categorical and suitably limiting language that they wish the venue of the action be
laid only and exclusively at a definite place.
‣
SEE — San Miguel Corporation v. Monasterio, G.R. No. 151037, June 23, 2005
‣
Exclusive venue stipulation embodied in a contract restricts or confines parties thereto when the suit relates
to breach of the said contract. But where the exclusivity clause does not make it necessarily all
encompassing, such that even those not related to the enforcement of the contract should be subject to
the exclusive venue, the stipulation designating exclusive venues should be strictly confined to the specific
undertaking or agreement. Otherwise, the basic principles of freedom to contract might work to the great
disadvantage of a weak party-suitor who ought to be allowed free access to courts of justice.
‣
Restrictive stipulations are in derogation of the general policy of making it more convenient for the parties
to institute actions arising from or in relation to their agreements. Thus, the restriction should be strictly
construed as relating solely to the agreement for which the exclusive venue stipulation is embodied.
Expanding the scope of such limitation on a contracting party will create unwarranted restrictions which the
parties might find unintended or worse, arbitrary and oppressive.
‣
Moreover, since convenience is the raison detre of the rules on venue, venue stipulation should be deemed
merely permissive, and that interpretation should be adopted which most serves the parties convenience.
Contrawise, the rules mandated by the Rules of Court should govern
What if the parties stipulated a venue but failed to employ categorical and suitably limiting words that it is
to be the exclusive venue?
‣
In the absence of such qualifying or restrictive words, the stipulation on venue should be deemed as merely an
agreement on an additional forum, not as limiting venue to the specified place. (Lantin v Lantion, 2006)
‣
NOTE — If there’s a specific rule or law, that rule or law will govern over the stipulation.
‣
A venue stipulation does NOT apply when the party is contesting the very validity of the contract containing
the venue stipulation — 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.To be sure, it would be inherently consistent for a complaint of this nature to recognize the
exclusive venue stipulation when it, in fact, precisely assails the validity of the instrument in which such stipulation
is contained. (Briones vs CA 2015)
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RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS
RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS
UNIFORM PROCEDURE
SECTION 1. Uniform procedure. - The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial
Courts, except
(a) Where a particular provision expressly or impliedly applies only to either of said courts, or
(b) In civil cases governed by the Rule on Summary Procedure. (n)
MEANING OF “MTC”
SECTION 2. Meaning of terms. - The term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. (1a)
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RULES ON SUMMARY PROCEDURE
NOTE — For civil procedure part only
1991 REVISED RULES OF SUMMARY PROCEDURE
I. APPLICABILITY
SECTION 1. Scope- This rule shall govern the summary procedure in the Metropolitan Trial Courts, Municipal Trial Courts
in Cities, Municipal Circuit Trial Courts, and Municipal Trial Courts in the following cases falling within their jurisdiction:
A. Civil Cases
(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages and unpaid rentals sought to
be recovered. Where attorney’s fees are awarded, the same shall not exceed 20,000.00
(2) All other cases, except probate proceedings, where the total amount of plaintiff’s claim does not exceed 100,000.00
or 200,000.00 in Metro Manila, exclusive of interests and costs. (As amended by A.M. 02-11-09-SC, effective
November 25, 2002)
II. CIVIL CASES
SECTION 3- Pleadings
A. Pleadings Allowed- The only pleadings allowed to be filed are: Complaints, Compulsory Counterclaims and crossclaims pleaded in the answer; and the answers thereto.
B. Verification– All pleadings shall be verified.
SECTION 4- Duty of Court- After the court determines that the case falls under summary procedure, it may, from an
examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of
the grounds apparent therefrom for the dismissal of a civil action.
If no ground for dismissal is found, it shall forthwith issue summons which shall state that the summary procedure under
this Rule shall apply.
SECTION 5- Answer- Within 10 days from service of summons, the defendant shall file his answer to the complaint and
serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived,
except for lack of jurisdiction over the subject matter.
Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred.
The answer to counterclaims and cross-claims shall be filed and served within 10 days from the service of the answer in
which they are pleaded.
SECTION 6- Effect of failure to answer- Should the defendant fail to answer the complaint within the period above
provided, (10days), the court, motu proprio or on motion of the plaintiff shall render judgment as may be warranted by the
facts alleged in the complaint and limited to what is prayed for therein.
‣
Provided, however, that the court may, in its discretion, reduce the amount of damages and attorney’s fees claimed
for being excessive or otherwise, unconscionable. This is without prejudice to the applicability of Section 4, Rule 18
of the Rules of Court, if there are two or more defendants.
SECTION 7- Preliminary conference; appearance of parties– Not later than 30 days after the last answer is filed, a
preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary
conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The
defendant who appears in the absence of the plaintiff shall be entitled to judgment of his counterclaim in accordance with
section 6 hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with section 6 hereof. This
rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a
common defense shall appear at the preliminary conference.
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SECTION 8-Record of Preliminary Conference- Within 5 days after the termination of the preliminary conference, the
court shall issue an order stating the matters taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
(b) The stipulations or admissions entered thereto;
(c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be
rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from
issuance of the order;
(d) A clear specification of material facts which remain controverted;
(e) Such other matters intended to expedite the disposition of the case.
SECTION 9- Submission of affidavits and position papers– Within 10 days from receipt of the order mentioned in the next
preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues
defined in the order, together with their position papers setting forth the law and the facts relied upon by them.
SECTION 10- Rendition of judgment- Within 30 days after receipt of the last affidavits and position papers, or the
expiration of the period for filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order
specifying the matters to be clarified, and require the parties to submit affidavits or other evidences on the said matters
within 10 days from receipt of said order.
Judgment shall be rendered within 15 days after the receipt of the last clarificatory affidavits, or the expiration of the
period for filing the same.
The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.
IV. COMMON PROVISIONS
SECTION 18- Referral to Lupon– Cases requiring referral to Lupon for conciliation under the provisions of PD 1508, where
there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only
after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused
was arrested without a warrant.
SECTION 19- Prohibited pleadings and motions– The following pleadings, motions or petitions shall not be allowed in the
cases covered by this rule.
(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction
over the subject matter or failure to comply with the preceding section.
(b) Motion for a bill of particulars
(c) Motion for new trial, or for reconsideration of judgment, or for reopening of trial.
(d) Petition for relief from judgment
(e) Motion for extension of time to file pleadings, affidavits, or any other paper
(f) Memoranda
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court.
(h) Motion to declare the defendant in default
(i) Dilatory motions for postponement
(j) Reply
(k) Third-party complaints
(l) Interventions
SECTION 20- Affidavits– The affidavits required to be submitted under this rule shall state only facts of direct personal
knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters
stated therein.
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A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and
shall be cause to expunge the inadmissible affidavit or portion thereof from the record.
SECTION 21- Appeal- The judgment or final order shall be appealable to the appropriate RTC which shall decide the
same in accordance with Section 22 of BP Blg. 129. The decision of the RTC in civil cases governed by this Rule,
including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that
may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed.
SECTION 22- Applicability of the regular rules- The regular procedure prescribed in the Rules of Court shall apply to the
special cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith.
SECTION 23- Effectivity– This revised rule on summary procedure shall be effective on November 15, 1991.
IMPORTANT JURISPRUDENCE ON SUMMARY PROCEDURE
‣
MACADANGDANG V. GAVIOLA, G.R. NO. 156809, MARCH 4, 2009
‣
Appeal after judgment on Summary Procedure no longer covered by Rules on Summary Procedure
‣
‣
The appeal before the RTC is no longer covered by the Rules on Summary Procedure. The Rules on Summary
Procedure apply before the appeal to the RTC. Hence, respondents motion for reconsideration filed with the RTC
is not a prohibited pleading.
REPUBLIC V. SUNVAR REALITY DEVELOPMENT CORPORATION, G.R. NO. 194880, JUNE 20, 2012
‣
Petition for Certiorari against an Interlocutory Order is a prohibited pleading in Summary Procedure
‣
The general rule is that no special civil action for certiorari may be filed with a superior court from cases covered
by the Revised Rules on Summary Procedure. Under the Rules on Summary Procedure, a certiorari petition under
Rule 65 against an interlocutory order issued by the court in a summary proceeding is a prohibited pleading.
‣
EXCEPTIONS —
If the party would suffer grave injustice and irreparable injury (Bayog v. Natino)
1.
‣
In Bayog, Alejandro Bayog filed with the Municipal Circuit Trial Court (MCTC) of Patnongon-BugasongValderama, Antique an ejectment case against Alberto Magdato, an agricultural tenant-lessee who had built
a house over his property. When Magdato, an illiterate farmer, received the Summons from the MCTC to file
his answer within 10 days, he was stricken with pulmonary tuberculosis and was able to consult a lawyer in
San Jose, Antique only after the reglementary period. Hence, when the Answer of Magdato was filed three
days after the lapse of the 10-day period, the MCTC ruled that it could no longer take cognizance of his
Answer and, hence, ordered his ejectment from Bayogs land. When his house was demolished in January
1994, Magdato filed a Petition for Relief with the RTC-San Jose, Antique, claiming that he was a duly
instituted tenant in the agricultural property, and that he was deprived of due process. Bayog, the
landowner, moved to dismiss the Petition on the ground of lack of jurisdiction on the part of the RTC, since
a petition for relief from judgment covering a summary proceeding was a prohibited pleading. The RTC,
however, denied his Motion to Dismiss and remanded the case to the MCTC for proper disposal. In
resolving the Rule 65 Petition, we ruled that although a petition for relief from judgment was a prohibited
pleading under the Revised Rules on Summary Procedure, the Court nevertheless allowed the filing of
the Petition pro hac vice, since Magdato would otherwise suffer grave injustice and irreparable injury
Where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford
adequate and expeditious relief (Go vs CA)
2.
‣
In that case, the preliminary conference in the subject ejectment suit was held in abeyance by the Municipal
Trial Court in Cities (MTCC) of Iloilo City until after the case for specific performance involving the same
parties shall have been finally decided by the RTC. The affected party appealed the suspension order to the
RTC. In response, the adverse party moved to dismiss the appeal on the ground that it concerned an
interlocutory order in a summary proceeding that was not the subject of an appeal. The RTC denied the
Motion to Dismiss and subsequently directed the MTCC to proceed with the hearing of the ejectment suit, a
ruling that was upheld by the appellate court. In affirming the Decisions of the RTC and CA, the Supreme
Court allowed the filing of a petition for certiorari against an interlocutory order in an ejectment suit,
considering that the affected party was deprived of any recourse to the MTCCs erroneous suspension of a
summary proceeding. Where the assailed interlocutory order is patently erroneous and the remedy of
appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of
redress.
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FAIRLAND KNITCRAFT VS PO, G.R. NO. 217694, JANUARY 27, 2016
‣
RULES ON SUMMARY PROCEDURE
Judgment is rendered based on the complaint in Summary Procedure when no answer is filed
‣
The summons, together with the complaint and its annexes, was served upon Po on December 28, 2012. This
presupposes that the MeTC found no ground to dismiss the action for unlawful detainer. Nevertheless, Po failed to
file his answer on time and the MeTC had the option to render judgment motu proprio or on motion of the plaintiff.
In relation thereto, Sections 5 and 6 of the Rules on Summary Procedure provide:
‣
Section 6 is clear that in case the defendant failed to file his answer, the court shall render judgment, either motu
proprio or upon plaintiff’s motion, based solely on the facts alleged in the complaint and limited to what is
prayed for. The failure of the defendant to timely file his answer and to controvert the claim against him
constitutes his acquiescence to every allegation stated in the complaint. Logically, there is nothing to be done in
this situation except to render judgment as may be warranted by the facts alleged in the complaint.
‣
Similarly, under Section 7, Rule 70 of the Rules of Court, which governs the rules for forcible entry and unlawful
detainer, if the defendant fails to answer the complaint within the period provided, the court has no authority to
declare the defendant in default. Instead, the court, motu proprio or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for
‣
This has been enunciated in the case of Don Tino Realty and Development Corporation v. Florentino, citing Bayog
v. Natino, where the Court held that there was no provision for an entry of default under the Rules of Summary
Procedure if the defendant failed to file his answer.
‣
In this case, Po failed to file his answer to the complaint despite proper service of summons. He also failed to
provide a sufficient justification to excuse his lapses. Thus, as no answer was filed, judgment must be rendered
by the court as may be warranted by the facts alleged in the complaint.
1âwphi1
‣
‣
Considering that Po failed to file an answer within the prescribed period, he was deemed to have admitted all the
allegations in the complaint including Fairland’s claim of ownership. To reiterate, the failure of the defendant to
timely file his answer and controvert the claim against him constituted his acquiescence to every allegation
stated in the complaint.
‣
Before the issuance of the record of preliminary conference, the parties are not yet required to present their
respective evidence. Accordingly, it is only at this part of the proceedings that the parties will be required to
present and offer their evidence before the court to establish their causes and defenses.
‣
These specific provisions under the Rules of Summary Procedure which are also reflected in Rule 70 of the Rules
of Court, serve their purpose to immediately settle ejectment proceedings. “Forcible entry and unlawful detainer
cases are summary proceedings designed to provide for an expeditious means of protecting actual possession or
the right to possession of the property involved. It does not admit of a delay in the determination thereof. It is a
‘time procedure’ designed to remedy the situation. Thus, as a consequence of the defendant’s failure to file an
answer, the court is simply tasked to render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein.
‣
As the complaint contains a valid cause of action, a judgment can already be rendered. In order to achieve
an expeditious and inexpensive determination of unlawful detainer cases, a remand of this case to the
lower courts is no longer necessary and the case can be determined on its merits by the Court.
‣
To recapitulate, as Po failed to file his answer on time, judgment shall be rendered based only on the complaint of
Fairland without the need to consider the weight of evidence. As discussed above, the complaint of Fairland had a
valid cause of action for unlawful detainer. Consequently, there is no more need to present evidence to establish
the allegation of Fairland of its ownership and superior right of possession over the subject property. Po’s failure
to file an answer constitutes an admission of his illegal occupation due to his non-payment of rentals, and
of Fairland’s rightful claim of material possession. Thus, judgment must be rendered finding that Fairland
has the right to eject Po from the subject property.
Failure to attach annexes is not fatal if the complaint alleges a sufficient cause of action; evidence need not be
attached to the complaint
‣
‣
The lower courts erroneously dismissed the complaint of Fairland simply on the ground that it failed to establish by
preponderance of evidence its ownership over the subject property. As can be gleaned above, the rules do not
compel the plaintiff to attach his evidence to the complaint because, at this inception stage, he only has to file his
complaint to establish his cause of action. Here, the court was only tasked to determine whether the complaint of
Fairland alleged a sufficient cause of action and to render judgment thereon.
ANGELINA SORIENTE V. ESTATE OF ARSENIO CONCEPCION, G.R. NO. 160239, NOVEMBER 25, 2009
‣
Under Section 7 of the 1991 Revised Rules on Summary Procedure, if a sole defendant shall fail to appear in the
preliminary conference, the plaintiff shall be entitled to judgment in accordance with Section 6 of the Rule, that is, the
court shall render judgment as may be warranted by the facts alleged in the Complaint and limited to what is prayed
for therein. However, this Rule (Sec. 7) shall not apply where one of two or more defendants sued under a
common cause of action, who had pleaded a common defense, shall appear at the preliminary conference.
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Petitioner claims that the preceding provision applies to her as a defendant, since the ejectment cases were
consolidated by the trial court, and she and Caballero filed the same Answer to the Complaint; hence, the trial court
should not have rendered judgment against her when she failed to appear in the preliminary conference.
‣
The Court holds that the italicized provision above does not apply in the case of petitioner, since she and Caballero
were not co-defendants in the same case. The ejectment case filed against petitioner was distinct from that of
Caballero, even if the trial court consolidated the cases and, in the interest of justice, considered the Answer filed by
Caballero in Civil Case No. 17974 as the Answer also of petitioner since she affixed her signature thereto. Considering
that petitioner was sued in a separate case for ejectment from that of Caballero and Sadol, petitioners failure to
appear in the preliminary conference entitled respondent to the rendition of judgment by the trial court on the
ejectment case filed against petitioner, docketed as Civil Case No. 17973, in accordance with Section 7 of the 1991
Revised Rules on Summary Procedure.
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RULES ON SMALL CLAIMS CASES
A.M. No. 08-8-7 SC — RULE OF PROCEDURE FOR SMALL CLAIMS CASES
SECTION 1. Title.– These Rules shall be known as “The Revised Rules of Procedure for Small Claims Cases.”
SEC.2. Scope.–These Rules shall govern the procedure in actions before the Metropolitan Trial Courts (MeTCs), Municipal
Trial Courts in Cities (MTCCs), Municipal Trial Courts (MTCs) and Municipal Circuit Trial Courts (MCTCs) for payment of
money where the value of the claim does not exceed Two Hundred Thousand Pesos (P200,000.00) exclusive of interest
and costs.
SEC. 3. Objectives
(a) To protect and advance the constitutional right of persons toa speedy disposition of their cases;
(b) To provide a simplified and inexpensive procedure for the disposition of small claims cases; and,
(c) To introduce innovations and best practices for the benefit of the underprivileged.
SEC. 5. Applicability.– The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall apply this Rule in all actions that are purely civil in nature where the claim or relief prayed for by
the plaintiff is solely for payment or reimbursement of sum of money.
The claim or demand may be:
(a) For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For liquidated damages arising from contracts;
(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this
Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as The Local Government Code of 1991.
SEC.6. Commencement of Small Claims Action.–A small claims action is commenced by filing with the court an
accomplished and verified Statement of Claim (Form 1-SCC) in duplicate, accompanied by a Certification Against Forum
Shopping, Splitting a Single Cause of Action, and Multiplicity of Suits (Form 1-A-SCC), and two (2) duly certified
photocopies of the actionable document/s subject of the claim, as well as the affidavits of witnesses and other evidence
to support the claim. No evidence shall be allowed during the hearing which was not attached to or submitted together
with the Statement of Claim, unless good cause is shown for the admission of additional evidence.
The plaintiff must state in the Statement of Claim if he/she/it is engaged in the business of lending, banking and similar
activities, and the number of small claims cases filed within the calendar year regardless of judicial station.
No formal pleading, other than the Statement of Claim/s described in this Rule, is necessary to initiate a small claims
action.
SEC. 7. Venue.– The regular rules on venue shall apply.
However, if the plaintiff is engaged in the business of lending, banking and similar activities, and has a branch within the
municipality or city where the defendant resides, the Statement of Claim/s shall be filed where that branch is located.
SEC.8. Joinder of Claims.–Plaintiff may join in a single statement of claim one or more separate small claims against a
defendant provided that the total amount claimed, exclusive of interest and costs, does not exceed Two Hundred
Thousand Pesos (P200,000.00).
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SEC. 9. Affidavits.– The affidavits submitted under this Rule shall state only facts of direct personal knowledge of the
affiants or based on authentic records, which are admissible in evidence.
A violation of this requirement shall subject the party, and the counsel who assisted the party in the preparation of the
affidavits, if any, to appropriate disciplinary action. The inadmissible affidavit(s) or portion(s) thereof shall be expunged
from the record.
The non-submission of the required affidavits will cause the immediate dismissal of the claim or counterclaim.
SEC. 10. Payment of Filing Fees.– The plaintiff shall pay the docket and other legal fees prescribed under Rule 141 of the
Revised Rules of Court, unless allowed to litigate as an indigent. Exemption from the payment of filing fees shall be
granted only by the Supreme Court.
However, if more than five (5) small claims are filed by one party within the calendar year, regardless of the judicial station,
an additional filing fee of 500.00 shall be paid for every claim filed after the fifth (5th) claim, and an additional 100.00 or a
total of 600.00 for every claim filed after the tenth (10th) claim, and another 100.00 or a total of 700 for every claim filed
after the fifteenth (15th) claim, progressively and cumulatively.
If the plaintiff is engaged in the business of banking, lending and similar activities, the amount of filing and other legal
fees shall be the same as those applicable to cases filed under the regular rules.
A claim filed with a motion to sue as indigent (Form 6-SCC) shall be referred to the Executive Judge for immediate action
in case of multi- sala courts. If the motion is granted by the Executive Judge, the case shall be raffled off or assigned to
the court designated to hear small claims cases. If the motion is denied, the plaintiff shall be given five (5) days within
which to pay the docket fees, otherwise, the case shall be dismissed without prejudice. In no case shall a party, even if
declared an indigent, be exempt from the payment of the P1,000.00 fee for service of summons and processes.
SEC. 11. Dismissal of the Claim.– After the court determines that the case falls under these Rules, it may, from an
examination of the allegations of the Statement of Claim/s and such evidence attached thereto, by itself, dismiss the case
outright on any of the grounds for the dismissal of the case. The order of dismissal shall state if it is with or without
prejudice.
If, during the hearing, the court is able to determine that there exists a ground for dismissal of the Statement of Claim/s,
the court may, by itself, dismiss the case even if such ground is not pleaded in the defendant’s Response.
If plaintiff misrepresents that he/she/ it is not engaged in the business of banking, lending or similar activities when in fact
he/she/it is so engaged, the Statement of Claim/s shall be dismissed with prejudice and plaintiff shall be meted the
appropriate sanctions, such as direct contempt.
However, if the case does not fall under this Rule, but falls under summary or regular procedure, the case shall not be
dismissed. Instead, the case shall be re-docketed under the appropriate procedure, and returned to the court where it
was assigned, subject to payment of any deficiency in the applicable regular rate of filing fees. If a case is filed under the
regular or summary procedure, but actually falls under this Rule, the case shall be referred to the Executive Judge for
appropriate assignment.
SEC. 12. Summons and Notice of Hearing.– If no ground for dismissal is found, the court shall forthwith issue Summons
(Form 2-SCC) on the day of receipt of the Statement of Claim/s, directing the defendant to submit a verified Response.
The court shall also issue a Notice of Hearing (Form 4-SCC) to both parties, directing them to appear before it on a
specific date and time for hearing, with a warning that no unjustified postponement shall be allowed, as provided in
Section 21 of this Rule.
The Summons to be served on the defendant shall be accompanied by a copy of the Statement of Claim/s and
documents submitted by plaintiff, and a blank Response Form (Form 3-SCC) to be accomplished by the defendant.
A Notice of Hearing shall accompany the Summons and shall contain: (a) the date of the hearing, which shall not be more
than thirty (30) days from the filing of the Statement of Claim/s; and (b) the express prohibition against the filing of a
motion to dismiss or any other motion under Section 16 of this Rule.
If Summons is returned without being served on any or all of the defendants, the court shall order the plaintiff to cause
the service of summons and shall inform the court within thirty (30) days from notice if said summons was served or not;
otherwise, the Statement of Claim/ s shall be dismissed without prejudice as to those who were not served with
summons.
SEC. 13. Response.– The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified
Response within a non-extendible period of ten (10) days from receipt of summons. The Response shall be accompanied
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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.
SEC. 14. Effect of Failure to File Response.– Should the defendant fail to file his/her/its Response within the required
period, and likewise fail to appear on the date set for hearing, the court shall render judgment on the same day, as may be
warranted by the facts alleged in the Statement of Claim/s.
Should the defendant fail to file his/her/its Response within the required period but appears on the date set for hearing,
the court shall ascertain what defense he/she/it has to offer which shall constitute his/ her/its Response, and proceed to
hear or adjudicate the case on the same day as if a Response has been filed.
SEC. 15. Counterclaims Within the Coverage of this Rule.– If at the time the action is commenced, the defendant
possesses a claim against the plaintiff that (a) is within the coverage of this Rule, exclusive of interest and costs; (b)
arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; (c) does not require for its
adjudication the joinder of third parties; and (d) is not the subject of another pending action, the claim shall be filed as a
counterclaim in the Response; otherwise, the defendant shall be barred from suing on the counterclaim.
The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or
occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket
and other legal fees are paid.
SEC. 16. Prohibited Pleadings and Motions.– The following pleadings, motions, or petitions shall not be allowed in the
cases covered by this Rule:
(a) Motion to dismiss the Statement of Claim/s;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply and rejoinder;
(k) Third-party complaints; and
(l) Interventions.
SEC. 17. Availability of Forms; Assistance by Court Personnel.– The Clerk of Court or other court personnel shall
provide such assistance as may be requested by a plaintiff or a defendant regarding the availability of forms and other
information about the coverage, requirements as well as procedure for small claims cases.
SEC. 18. Appearance.– The parties shall personally appear on the designated date of hearing.
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 next-of-kin 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 (Form 7-SCC) to enter into an amicable
settlement of the dispute and to enter into stipulations or admissions of facts and of documentary exhibits.
SEC. 19. Appearance of Attorneys Not Allowed.– No attorney shall appear in behalf of or represent a party at the
hearing, unless the attorney is the plaintiff or defendant.
If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may,
in its discretion, allow another individual who is not an attorney to assist that party upon the latter’s consent.
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SEC. 20. Non-appearance of Parties.– Failure of the plaintiff to appear shall be cause for the dismissal of the Statement
of Claim/s without prejudice. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on a
permissive counterclaim.
Failure of the defendant to appear shall have the same effect as failure to file a Response under Section 14 of this Rule.
This shall not apply where one of two or more defendants who are sued under a common cause of action and have
pleaded a common defense appears at the hearing.
Failure of both parties to appear shall cause the dismissal with prejudice of both the Statement of Claim/s and the
counterclaim.
SEC. 21. Postponement When Allowed.– A request for postponement of a hearing may be granted only upon proof of the
physical inability of the party to appear before the court on the scheduled date and time. A party may avail of only one (1)
postponement.
SEC.22. Duty of the Court.– At the beginning of the court session, the judge shall read aloud a short statement explaining
the nature, purpose and the rule of procedure of small claims cases.
SEC. 23. Hearing.– At the hearing, the judge shall first exert efforts to bring the parties to an amicable settlement of their
dispute. If efforts at settlement fail, the hearing shall immediately proceed in an informal and expeditious manner and be
terminated within the same day.
Any settlement (Form 8-SCC) or resolution of the dispute shall be reduced into writing, signed by the parties and
submitted to the court for approval (Form 9-SCC and Form 10-SCC).
SEC. 24. Decision.– After the hearing, the court shall render its decision based on the facts established by the evidence
(Form 11- SCC), within twenty-four (24) hours from termination of the hearing. The decision shall immediately be entered
by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties.
The decision shall be final, executory and unappealable.
SEC. 25. Execution.– When the decision is rendered, execution shall issue upon motion (Form 12-SCC) of the winning
party.
SEC. 26. Certification of documents.– All documents attached to the Statement of Claim/s or Response that are required
to be certified, except public or official documents, shall be certified by the signature of the plaintiff or defendant
concerned.
SEC. 27. Applicability of the Rules of Civil Procedure.– The Rules of Civil Procedure shall apply suppletorily insofar as
they are not inconsistent with this Rule.
SEC. 28. Non-applicability.– The rules on mediation/judicial dispute resolution shall not apply, inasmuch as the parties
may enter into compromise at any stage of the proceedings.
SEC. 29. Effectivity.– These Revised Rules shall take effect on February 1, 2016 following their publication in two
newspapers of general circulation. They shall govern all cases filed after their effectivity, and also all pending
proceedings, except to the extent that in the opinion of the court, their application would not be feasible or would work
injustice, in which case the procedure under which the cases were filed shall govern.
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COMPARISON — RULE ON SUMMARY PROCEDURE AND SMALL CLAIMS
1991 REVISED RULES OF SUMMARY PROCEDURE
ON CIVIL ACTIONS
Courts
governed
REVISED RULES OF PROCEDURE FOR SMALL CLAIMS
CASES (A.M. NO. 08-8-7 SC)
1. Metropolitan Trial Courts
2. Municipal Trial Courts
3. Municipal Circuit Trial Courts
Actions
governed
Civil Cases
Only claims for for payment of money where the value of the
claim does not exceed Two Hundred Thousand Pesos
(P200,000.00) exclusive of interest and costs.
1. All cases of Forcible Entry and Unlawful Detainer
irrespective of the amount of damages or unpaid
rentals sought to be recovered.
2. Other civil cases EXCEPT probate proceedings,
where the total amount of the plaintiff’s claim does
not exceed P100,000 or P200,000 in Metro Manila,
exclusive of interests and costs
•
Probate proceedings have their own rules, it
never falls under Summary Procedure
•
NOTE: See AM No. 02-11-09 (2002)
amended Revised Rules on Summary
Procedure
Actions covered — actions which are purely civil in nature
where the claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money
These claims or demands may be —
1. For money owned under any of the following —
a. Contract of Lease;
b. Contract of Loan;
c. Contract of Services;
d. Contract of Sale; or
Criminal Cases
e. Contract of Mortgage
1. Violations of Traffic laws, rules and regulations
2. For liquidated damages arising from contracts
2. Violations of the rental law
3. The enforcement of a barangay amicable settlement or an
arbitration award involving a money claim covered by this
Rule pursuant to Sec. 417 of Republic Act 7160, otherwise
known as the Local Government Code of 1991.
3. Violations of municipal or city ordinances
4. Penalty prescribed is Imprisonment not exceeding
6 months or fine not exceeding P1k or both, if
criminal negligence, not exceeding P10k
BUT — Rules DOES NOT apply to a civil case where
the plaintiff’s cause of actions is pleaded in the same
complaint with another cause of action subject to
ordinary procedure nor to a criminal case where the
offense charged is necessarily related to another
criminal case subject to the ordinary procedure
Determin
ation of
Applicabi
lity
Upon the filing of a civil or criminal action, the court
shall issue an order declaring whether or not the case
shall be governed by this Rule A patently erroneous
determination to avoid the application of the Rule on
Summary Procedure is a ground for disciplinary action.
If the case does not fall under this Rule, but falls under
summary or regular procedure, the case shall not be dismissed.
Instead, the case shall be re-docketed under the appropriate
procedure, and returned to the court where it was assigned,
subject to payment of any deficiency in the applicable regular
rate of filing fees. If a case is filed under the regular or summary
procedure, but actually falls under this Rule, the case shall be
referred to the Executive Judge for appropriate assignment.
Institutio
n of the
Action
Instituted also by filing of the complaint
Instituted by filing a Statement of Claim
Pleadings allowed — The only pleadings allowed to be
filed are the —
A small claims action is commenced by filing with the court —
1.
Complaints
2.
Compulsory counterclaims and cross-claims
pleaded in the answer
3.
Answers
NOTE — Pleadings must be verified
Is a permissive counterclaim allowed?
Yes. It’s not a prohibited pleading. But you must
comply with the jurisdiction of the MTC and it must
also fall under the rules on summary procedure
1. Accomplished and verified Statement of Claim in duplicate,
accompanied by a
2. Certification of Non-forum Shopping, and
3. Two (2) duly certified photocopies of the actionable
document/s subjects of the claim
4. Affidavits of witnesses and other evidence to support the
claim
NOTE —
‣
No evidence shall be allowed during the hearing which was
not attached to or submitted together with the Claim,
‣
‣
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EXCEPT — Unless good cause is shown for the
admission of additional evidence.
The affidavits submitted under this Rule shall state only
facts of direct personal knowledge of the affiants which are
admissible in evidence. The inadmissible affidavits or
portions thereof shall be expunged from the record.
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1991 REVISED RULES OF SUMMARY PROCEDURE
ON CIVIL ACTIONS
REVISED RULES OF PROCEDURE FOR SMALL CLAIMS
CASES (A.M. NO. 08-8-7 SC)
Joinder
of Claims
Rules DOES NOT apply to a civil case where the
plaintiff’s cause of actions is pleaded in the same
complaint with another cause of action subject to
ordinary procedure nor to a criminal case where the
offense charged is necessarily related to another
criminal case subject to the ordinary procedure
Plaintiff may join in a single statement of claim one or more
separate small claims against a defendant provided that the
total amount claimed, exclusive of interest and costs, does not
exceed P200,000.00.
Duty of
the Court
upon
receipt of
the
complain
t/claim
After the court determines that the case falls under
summary procedure, it may, from an examination of the
allegations therein and such evidence as may be
attached thereto:
After the court determines that the case falls under this Rule, it
may, from an examination of the allegations of the Statement of
Claim and such evidence attached thereto, by itself:
1.
DISMISS: Dismiss the case outright on any of the
grounds apparent therefrom for the dismissal of a
civil action.
2.
SUMMONS- If no ground for dismissal is found it
shall forthwith issue summons which shall state
that the summary procedure under this Rule shall
apply
NOTE — Cases requiring referral to the Lupon for
conciliation under the provisions of the Local
Government Code where there is no showing of
compliance with such requirement, shall be dismissed
without prejudice and may be revived only after such
requirement shall have been complied with.
Answer/
Respons
e by
Defenda
nt
‣
Parties must reside in the same barangay or
adjoining barangays in the same city.
‣
In criminal cases, the penalty for the offense must
not exceed 1 year. (Such as slight physical injuries
and malicious mischief)
‣
BUT — This provision shall not apply to criminal
cases where the accused was arrested without a
warrant
1.
DISMISS- After the court determines that the case falls
under these Rules, it may, from an examination of the
allegations of the Statement of Claim/s and such evidence
attached thereto, by itself, dismiss the case outright on any
of the grounds for the dismissal of the case. The order of
dismissal shall state if it is with or without prejudice.
‣
NOTE — If, during the hearing, the court is able to
determine that there exists a ground for dismissal of the
Statement of Claim/s, the court may, by itself, dismiss the
case even if such ground is not pleaded in the defendant’s
Response.
2.
SUMMONS AND NOTICE- If no ground for dismissal is
found, the court shall forthwith issue Summons on the day
of receipt of the Statement of Claim, directing the
defendant to submit a verified Response.
‣
The court shall also issue a Notice to both parties,
directing them to appear before it on a specific date
and time for hearing, with a warning that no unjustified
postponement shall be allowed, as provided in Section
19 of this Rule.
‣
A request for postponement of a hearing may be
granted only upon proof of the physical inability of the
party to appear before the court on the scheduled date
and time. A party may avail of only one (1)
postponement.
‣
The summons and notice to be served on the
defendant shall be accompanied by a copy of the
Statement of Claim and documents submitted by
plaintiff, and a copy of the Response to be
accomplished by the defendant.
ANSWER
RESPONSE
Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and
serve a copy thereof on the plaintiff.
The defendant shall file with the court and serve on the plaintiff
a duly accomplished and verified Response within a non extendible period of ten (10) days from receipt of summons.
‣
‣
The 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.
Affirmative and negative defenses not pleaded
therein shall be deemed waived, EXCEPT for lack
of jurisdiction over the subject matter.
The grounds for the dismissal of the claim, under Rule 16 of the
Rules of Court should be pleaded
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RULES ON SMALL CLAIMS CASES
1991 REVISED RULES OF SUMMARY PROCEDURE
ON CIVIL ACTIONS
Counterc
laim
Defendant may set up his counterclaims provided they
are within the jurisdiction of the MTC.
REVISED RULES OF PROCEDURE FOR SMALL CLAIMS
CASES (A.M. NO. 08-8-7 SC)
If at the time the action is commenced, the defendant
possesses a claim against the plaintiff that meets the following
requisites, the claim shall be filed as a counterclaim in the
Response; otherwise, the defendant shall be barred from suing
on the counterclaim.—
Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred.
The answer to counterclaims or cross-claims shall be
filed and served within ten (10) days from service of the
answer in which they are pleaded
1.
It is within the coverage of this Rule, exclusive of interest
and costs;
2.
Arises out of the same transaction or event that is the
subject matter of the plaintiff’s claim;
3.
Does not require for its adjudication the joinder of third
parties; and
4.
It is not the subject of another pending action
NOTE — The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same
transaction or occurrence, provided that the amount and nature
thereof are within the coverage of this Rule and the prescribed
docket and other legal fees are paid.
Effect of
Failure to
file
Answer/
Respons
e
Appeara
nce
Should the defendant fail to answer the complaint
within the period above provided, the court, motu
proprio, or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for therein:
Should the defendant fail to file his/her/its Response within the
required period, and likewise fail to appear on the date set for
hearing, the court shall render judgment on the same day, as
may be warranted by the facts alleged in the Statement of
Claim/s.
‣
Provided, however, that the court may in its
discretion reduce the amount of damages and
attorney's fees claimed for being excessive or
otherwise unconscionable.
‣
This is without prejudice to the applicability of
Section 4, Rule 15 of the Rules of Court, if there
are two or more defendants.
Should the defendant fail to file his/her/its Response within the
required period but appears on the date set for hearing, the
court shall ascertain what defense he/she/it has to offer which
shall constitute his/ her/its Response, and proceed to hear or
adjudicate the case on the same day as if a Response has been
filed.
PRELIMINARY CONFERENCE
HEARING
Not later than thirty (30) days after the last answer is
filed, a preliminary conference shall be held.
The parties shall appear at the designated date of hearing
personally
‣
Appearance through a representative must be for a valid cause.
The rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
The representative of an individual-party must NOT be a lawyer,
and must be related to or of-kin of the individual party.
NOTE — Case can also be referred to the Philippine
Mediation Unit of the Province or Judicial Dispute
Resolution.
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 itno an amicable settlement of the dispute
and to enter into stipulations of facts and of documentary
exhibits.
The failure of the plaintiff to appear in the preliminary
conference shall be a cause for the dismissal of his
complaint. The defendant who appears in the absence
of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof.
‣
No attorney shall appear in behalf of or represent a party at the
hearing, unless the attorney is the plaintiff or defendant
All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall
be entitled to judgment in accordance with Section 6
hereof.
‣
If the court determines that a party cannot properly present his/
her claim or defense and needs assistance, the court may, in its
discretion, allow another individual who is not an attorney to
assist that party upon the latter's consent.
This Rule shall not apply where one of two or more
defendants sued under a common cause of action
who had pleaded a common defense shall appear
at the preliminary conference.
Failure of the plaintiff to appear shall be cause for the dismissal
of the claim without prejudice. The defendant who appears shall
be entitled to judgement on a permissive counterclaim
Within five (5) days after the termination of the
preliminary conference, the court shall issue an
ORDER stating the matters taken up therein, including
but not limited to —
Failure of the defendant to appear shall have the same effect as
failure to file a Response under Section 12 of this Rule. This
shall not apply where one of two or more defendants who are
sued under a common cause of action and have pleaded a
common defense appears at the hearing.
1. Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the
parties;.
3. Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
CLARENCE TIU
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Failure of both parties to appear shall cause the dismissal with
prejudice of both the claim and counterclaim.
At the beginning of the court session, the judge shall read aloud
a short statement explaining the nature, purpose and the rule of
procedure of small claims cases.
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1991 REVISED RULES OF SUMMARY PROCEDURE
ON CIVIL ACTIONS
3. Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
judgment may be rendered without the need of
further proceedings, in which event the judgment
shall be rendered within thirty (30) days from
issuance of the order;
4. A clear specification of material facts which remain
controverted; and
5. Such other matters intended to expedite the
disposition of the case
REVISED RULES OF PROCEDURE FOR SMALL CLAIMS
CASES (A.M. NO. 08-8-7 SC)
procedure of small claims cases.
At the hearing, the judge shall first exert efforts to bring the
parties to an amicable settlement of their dispute. If efforts at
settlement fail, the hearing shall immediately proceed in an
informal and expeditious manner and be terminated within the
same day.
Any settlement or resolution of the dispute shall be reduced into
writing, signed by the parties and submitted to the court for
approval.
NO HEARING FOR Civil Cases involving SUMMARY
PROCEDURE, ONLY SUBMISSION OF AFFIDAVITS
AND POSITION PAPERS (after Prelim Conference). But
classificatory hearing is allowed in the court’s
discretion.
Within ten (10) days from receipt of the order
mentioned in the next preceding section (Order of the
Prelim Conf), the parties shall submit the affidavits of
their witnesses and other evidence on the factual
issues defined in the order, together with their position
papers setting forth the law and the facts relied upon
by them.
1. Affidavits and other evidence
2. Position papers
The affidavits required to be submitted under this Rule
shall state only facts of direct personal knowledge of
the affiants which are admissible in evidence, and shall
show their competence to testify to the matters stated
therein.
A violation of this requirement may subject the party or
the counsel who submits the same to disciplinary
action, and shall be cause to expunge the inadmissible
affidavit or portion thereof from the record.
Prohibite
d
Pleading
s and
Motions
The following pleadings, motions or petitions shall not
be allowed in the cases covered by this Rule:
The following pleadings, motions or petitions shall not be
allowed in the cases covered by this Rule
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground of
lack of jurisdiction over the subject matter, or
failure to comply with the preceding section;
1. Motion to dismiss the statement of claim
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
•
Note: But NOT court order (which is merely
interlocutory)
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
•
Note: But NOT judgment
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or
for opening of trial;
•
Note:But NOT court order (which is merely
interlocutory)
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or
any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
•
Note: But NOT judgment
8. Motion to declare the defendant in
9. Dilatory motions for postponement;
10. Reply;
11. Third- party complaints;
12. Interventions
11. Third-party complaints;
12. Interventions
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RULES ON SMALL CLAIMS CASES
1991 REVISED RULES OF SUMMARY PROCEDURE
ON CIVIL ACTIONS
Judgmen
t/
Decision
Appeal
REVISED RULES OF PROCEDURE FOR SMALL CLAIMS
CASES (A.M. NO. 08-8-7 SC)
Within thirty (30) days after receipt of the last affidavits
and position papers, or the expiration of the period for
filing the same, the court shall render judgment.
After the hearing, the court shall render its decision based on
the facts established by the evidence, within twenty-four (24)
hours from termination of the hearing.
However should the court find it necessary to clarify
certain material facts, it may, during the said period,
issue an order specifying the matters to be clarified,
and require the parties to submit affidavits or other
evidence on the said matters within ten (10) days from
receipt of said order.
The decision shall immediately be entered by the Clerk of Court
in the court docket for civil cases and a copy thereof forthwith
served on the parties.
The decision shall be final, executory and unappealable. It’s not
appealable
‣
Judgment shall be rendered within fifteen (15) days
after the receipt of the last clarificatory affidavits,
or the expiration of the period for filing the same.
‣
The court shall not resort to the clarificatory
procedure to gain time for the rendition of the
judgment.
The judgment or final order shall be appealable to the
appropriate regional trial court which shall decide the
same in accordance with Section 22 of Batas
Pambansa Blg. 129.
When the decision is rendered, execution shall issue upon
motion of the winning party.
Remedy of loser? Petition for Certiorari based on R65 on the
judgment.
‣
This is allowed, only petition for certiorari on interlocutory
orders are prohibited
‣
NOTE — This is an exception to the general rule that a
Motion for Reconsideration is required before filing a R65
certiorari. Note that an MR on the judgment is a prohibited
pleading
Appeal NOT allowed
The decision of the regional trial court in civil cases
governed by this Rule, including forcible entry and
unlawful detainer, shall be immediately executory,
without prejudice to a further appeal that may be taken
therefrom. R70, S10 shall be deemed repealed.
‣
Applicabi
lity of the
Ordinary
Rules of
Civil
Procedur
e
The regular procedure prescribed in the Rules of Court
shall apply to the special cases herein provided for in a
suppletory capacity insofar as they are not inconsistent
herewith.
The Rules of Civil procedure shall apply suppletorily insofar as
they are not inconsistent with this rule.
Effectivit
y
November 15, 1991
February 1, 2016
SALVADOR — Since both summary procedure and small claims over money claims not exceeding P200,000. Then both
can apply, at the option of the plaintiff. But small claims is faster.
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KATARUNGANG PAMBARANGAY (BARANGAY CONCILIATION)
KATARUNGANG PAMBARANGAY (BARANGAY CONCILIATION)
RA 7160 — LOCAL GOVERNMENT CODE
Section 399. Lupong Tagapamayapa. -
(a) There is hereby created in each barangay a lupong tagapamayapa, hereinafter referred to as the lupon, composed of
the punong barangay, as chairman and ten (10) to twenty (20) members. The lupon shall be constituted every three (3)
years in the manner provided herein.
(b) Any person actually residing or working, in the barangay, not otherwise expressly disqualified by law, and possessing
integrity, impartiality, independence of mind, sense of fairness, and reputation for probity, may be appointed a
member of the lupon.
(c) A notice to constitute the lupon, which shall include the names of proposed members who have expressed their
willingness to serve, shall be prepared by the punong barangay within the first fifteen (15) days from the start of his
term of office. Such notice shall be posted in three (3) conspicuous places in the barangay continuously for a period of
not less than three (3) weeks;
(d) The punong barangay, taking into consideration any opposition to the proposed appointment or any
recommendations for appointment as may have been made within the period of posting, shall within ten (10) days
thereafter, appoint as members those whom he determines to be suitable therefor. Appointments shall be in writing,
signed by the punong barangay, and attested to by the barangay secretary.
(e) The list of appointed members shall be posted in three (3) conspicuous places in the barangay for the entire duration
of their term of office; and
(f) In barangays where majority of the inhabitants are members of indigenous cultural communities, local systems of
settling disputes through their councils of datus or elders shall be recognized without prejudice to the applicable
provisions of this Code.
Section 400. Oath and Term of Office. - Upon appointment, each lupon member shall take an oath of office before the
punong barangay. He shall hold office until a new lupon is constituted on the third year following his appointment unless
sooner terminated by resignation, transfer of residence or place of work, or withdrawal of appointment by the punong
barangay with the concurrence of the majority of all the members of the lupon.
Section 401. Vacancies. - Should a vacancy occur in the lupon for any cause, the punong barangay shall immediately
appoint a qualified person who shall hold office only for the unexpired portion of the term.
Section 402. Functions of the Lupon. - The lupon shall:
(a) Exercise administrative supervision over the conciliation panels provided herein;
(b) Meet regularly once a month to provide a forum for exchange of ideas among its members and the public on matters
relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one
another their observations and experiences in effecting speedy resolution of disputes; and
(c) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.
Section 403. Secretary of the Lupon. - The barangay secretary shall concurrently serve as the secretary of the lupon. He
shall record the results of mediation proceedings before the punong barangay and shall submit a report thereon to the
proper city or municipal courts. He shall also receive and keep the records of proceedings submitted to him by the
various conciliation panels.
Section 404. Pangkat ng Tagapagkasundo. (a) There shall be constituted for each dispute brought before the lupon a conciliation panel to be known as the pangkat
ng tagapagkasundo, hereinafter referred to as the pangkat, consisting of three (3) members who shall be chosen by
the parties to the dispute from the list of members of the lupon. Should the parties fail to agree on the pangkat
membership, the same shall be determined by lots drawn by the lupon chairman.
(b) The three (3) members constituting the pangkat shall elect from among themselves the chairman and the secretary.
The secretary shall prepare the minutes of the pangkat proceedings and submit a copy duly attested to by the
chairman to the lupon secretary and to the proper city or municipal court. He shall issue and cause to be served
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notices to the parties concerned. The lupon secretary shall issue certified true copies of any public record in his
custody that is not by law otherwise declared confidential.
Section 405. Vacancies in the Pangkat. - Any vacancy in the pangkat shall be chosen by the parties to the dispute from
among the other lupon members. Should the parties fail to agree on a common choice, the vacancy shall be filled by lot
to be drawn by the lupon chairman.
Section 406. Character of Office and Service of Lupon Members. (a) The lupon members, while in the performance of their official duties or on the occasion thereof, shall be deemed as
persons in authority, as defined in the Revised Penal Code.
(b) The lupon or pangkat members shall serve without compensation, except as provided for in Section 393 and without
prejudice to incentives as provided for in this Section and in Book IV of this Code. The Department of the Interior and
Local Government shall provide for a system of granting economic or other incentives to the lupon or pangkat
members who adequately demonstrate the ability to judiciously and expeditiously resolve cases referred to them.
While in the performance of their duties, the lupon or pangkat members, whether in public or private employment,
shall be deemed to be on official time, and shall not suffer from any diminution in compensation or allowance from
said employment by reason thereof.
Section 407. Legal Advice on Matters Involving Questions of Law. - The provincial, city legal officer or prosecutor or the
municipal legal officer shall render legal advice on matters involving questions of law to the punong barangay or any
lupon or pangkat member whenever necessary in the exercise of his functions in the administration of the katarungang
pambarangay.
Section 408. Subject Matter for Amicable Settlement; Exception Thereto. - The lupon of each barangay shall have
authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all
disputes except:
(a) Where one party is the government, or any subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree
to submit their differences to amicable settlement by an appropriate lupon;
(f) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such
barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by
an appropriate lupon;
(g) Such other classes of disputes which the President may determine in the interest of Justice or upon the
recommendation of the Secretary of Justice.
The court in which non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any
time before trial motu propio refer the case to the lupon concerned for amicable settlement.
Section 409. Venue. (a) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the
lupon of said barangay.
(b) Those involving actual residents of different barangays within the same city or municipality shall be brought in the
barangay where the respondent or any of the respondents actually resides, at the election of the complaint.
(c) All disputes involving real property or any interest therein shall be brought in the barangay where the real property or
the larger portion thereof is situated.
(d) Those arising at the workplace where the contending parties are employed or at the institution where such parties are
enrolled for study, shall be brought in the barangay where such workplace or institution is located.
Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall
be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein
referred to may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling thereon shall
be binding.
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Section 410. Procedure for Amicable Settlement. (a) Who may initiate proceeding - Upon payment of the appropriate filing fee, any individual who has a cause of action
against another individual involving any matter within the authority of the lupon may complain, orally or in writing, to
the lupon chairman of the barangay.
(b) Mediation by lupon chairman - Upon receipt of the complaint, the lupon chairman shall within the next working day
summon the respondent(s), with notice to the complainant(s) for them and their witnesses to appear before him for a
mediation of their conflicting interests. If he fails in his mediation effort within fifteen (15) days from the first meeting of
the parties before him, he shall forthwith set a date for the constitution of the pangkat in accordance with the
provisions of this Chapter.
(c) Suspension of prescriptive period of offenses - While the dispute is under mediation, conciliation, or arbitration, the
prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing the complaint
with the punong barangay. The prescriptive periods shall resume upon receipt by the complainant of the complainant
or the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary: Provided,
however, That such interruption shall not exceed sixty (60) days from the filing of the complaint with the punong
barangay.
(d) Issuance of summons; hearing; grounds for disqualification - The pangkat shall convene not later than three (3) days
from its constitution, on the day and hour set by the lupon chairman, to hear both parties and their witnesses, simplify
issues, and explore all possibilities for amicable settlement. For this purpose, the pangkat may issue summons for the
personal appearance of parties and witnesses before it. In the event that a party moves to disqualify any member of
the pangkat by reason of relationship, bias, interest, or any other similar grounds discovered after the constitution of
the pangkat, the matter shall be resolved by the affirmative vote of the majority of the pangkat whose decision shall
be final. Should disqualification be decided upon, the resulting vacancy shall be filled as herein provided for.
(e) Period to arrive at a settlement - The pangkat shall arrive at a settlement or resolution of the dispute within fifteen (15)
days from the day it convenes in accordance with this section. This period shall, at the discretion of the pangkat, be
extendible for another period which shall not exceed fifteen (15) days, except in clearly meritorious cases.
Section 411. Form of settlement. - All amicable settlements shall be in writing, in a language or dialect known to the
parties, signed by them, and attested to by the lupon chairman or the pangkat chairman, as the case may be. When the
parties to the dispute do not use the same language or dialect, the settlement shall be written in the language known to
them.
Section 412. Conciliation. (a) Pre-condition to Filing of Complaint in Court. - No complaint, petition, action, or proceeding involving any matter
within the authority of the lupon shall be filed or instituted directly in court or any other government office for
adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat,
and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as
attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto.
(b) Where Parties May Go Directly to Court. - The parties may go directly to court in the following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings;
(3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of
personal property and support pendente lite; and
(4) Where the action may otherwise be barred by the statute of limitations.
(c)
Conciliation among members of indigenous cultural communities. - The customs and traditions of indigenous
cultural communities shall be applied in settling disputes between members of the cultural communities.
Section 413. Arbitration. (a) The parties may, at any stage of the proceedings, agree in writing that they shall abide by the arbitration award of the
lupon chairman or the pangkat. Such agreement to arbitrate may be repudiated within five (5) days from the date
thereof for the same grounds and in accordance with the procedure hereinafter prescribed. The arbitration award shall
be made after the lapse of the period for repudiation and within ten (10) days thereafter.
(b) The arbitration award shall be in writing in a language or dialect known to the parties. When the parties to the dispute
do not use the same language or dialect, the award shall be written in the language or dialect known to them.
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Section 414. Proceedings Open to the Public; Exception. - All proceedings for settlement shall be public and informal:
Provided, however, That the lupon chairman or the pangkat chairman, as the case may be, may motu proprio or upon
request of a party, exclude the public from the proceedings in the interest of privacy, decency, or public morals.
Section 415. Appearance of Parties in Person. - In all katarungang pambarangay proceedings, the parties must appear
in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted
by their next-of-kin who are not lawyers.
Section 416. Effect of Amicable Settlement and Arbitration Award. - The amicable settlement and arbitration award shall
have the force and effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless
repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or
municipal court.
However, this provision shall not apply to court cases settled by the lupon under the last paragraph of Section 408 of this
Code, in which case the compromise or the pangkat chairman shall be submitted to the court and upon approval thereof,
have the force and effect of a judgment of said court.
Section 417. Execution. - The amicable settlement or arbitration award may be enforced by execution by the lupon within
six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in
the appropriate city or municipal court.
Section 418. Repudiation. - Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate
the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by
fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a
complaint as hereinabove provided.
Section 419. Transmittal of Settlement and Arbitration. - Award to the Court. - The secretary of the lupon shall transmit
the settlement or the arbitration award to the appropriate city or municipal court within five (5) days from the date of the
award or from the lapse of the ten-day period repudiating the settlement and shall furnish copies thereof to each of the
parties to the settlement and the lupon chairman.
Section 420. Power to Administer Oaths. - The punong barangay, as chairman of the lupong tagapamayapa, and the
members of the pangkat are hereby authorized to administer oaths in connection with any matter relating to all
proceedings in the implementation of the katarungang pambarangay.
Section 421. Administration; Rules and Regulations. - The city or municipal mayor, as the case may be, shall see to the
efficient and effective implementation and administration of the katarungang pambarangay. The Secretary of Justice shall
promulgate the rules and regulations necessary to implement this Chapter.
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RULE 6: KINDS OF PLEADINGS
OVERVIEW OF PLEADINGS
NATURE OF PLEADINGS
‣
Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for
appropriate judgment
‣
Under the Rules of Court, pleadings cannot be oral because they are clearly described as “written” statements. Also, the
pleadings contain the “claims” and “defenses” of the parties.
‣
Pleadings are the allegations made by the parties to an action or proceeding for the purpose of presenting the issue to be
tried and determined, whether such issue is of law or of fact.
‣
Pleadings are also considered the formal statements by the parties of the operative facts which constitute their respective
claims and defenses
NECESSITY AND PURPOSE OF PLEADINGS
‣
It is necessary, in order to confer jurisdiction on a court, that the subject matter be presented for its consideration in a
mode sanctioned by law and this is done by the filing of a complaint or other pleading.
‣
Unless a complaint or other pleading is filed, the judgment of a court of record is void and subject to collateral attack
even though it may be a court which has jurisdiction over the subject matter referred to in the judgment
‣
Pleadings are intended to secure a method by which the issues may be properly laid before the court
‣
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 in a more restricted and commonly accepted sense 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
CONSTRUCTION OF PLEADINGS
‣
All pleadings shall be liberally construed so as to do substantial justice
‣
Pleadings should receive a fair and reasonable construction in accordance with the natural intendment of the words and
language used and the subject matter involved.
‣
The intention of the pleader is the controlling factor in construing a pleading and should be read in accordance with its
substance, not its form
‣
While it is the rule that pleadings should be liberally construed, it is also a rule that a party is strictly bound by the
allegations, statements or admissions made in his pleadings and cannot be permitted to take a contradictory position.
‣
‣
Thus, it has been held that an admission in the pleadings cannot be controverted by the party making such admission
and are conclusive as to him, and that all proofs submitted by him contrary thereto or inconsistent therewith, should
be ignored, whether objection is interposed or not
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.
‣
This rule proceeds from the theory that it is the pleader who selects the language used and if his pleading is open to
different constructions, such ambiguities must be at the pleader’s peril
PLEADINGS DEFINED
SECTION 1. Pleadings defined. - Pleadings are the written statements of the respective claims and defenses of the
parties submitted to the court for appropriate judgment. (1a)
‣
Pleadings must be —
1. Written
2. Contain the claims or defenses of either party
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PLEADINGS ALLOWED
SECTION 2. Pleadings allowed. - The claims of a party are asserted in a complaint, counterclaim, cross- claim, 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. An answer may be
responded to by a reply. (n)
CLAIMS
1. Complaint
2. Counterclaim
3. Cross-claim
4. Third-Party Complaint
5. Complaint-in-intervention
DEFENSES
1. Answer (to the pleading asserting a claim)
2. Reply
HOW TO DETERMINE THE NATURE OF THE PLEADING
‣
RULE — It is to be determined by the averments (substance or contents) in it and not by its title
‣
If there is a variance between the caption and allegations in the pleading
‣
The allegations of the pleading and not the title of the pleading determine the cause of action
‣
It is not the caption of the pleading but the allegations therein which determine the nature of the action and the court
shall grant relief warranted by the allegations and proof even if no such relief is prayed for
COMPLAINT
SECTION 3. Complaint. - The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and
residences of the plaintiff and defendant must be stated in the complaint. (3a)
‣
What is a Complaint?
‣
‣
It is the pleading alleging the plaintiff's cause or causes of action.
What should be in the complaint? (Substance of the Complaint)
1. The names and residences of the plaintiff and defendant must be stated in the complaint.
2. A concise statement of the ultimate facts constituting the plaintiff’s cause of action, not evidentiary facts or
legal conclusions.
‣
Only essential facts constituting the plaintiff’s cause of action need to be averred, Not legal conclusions or
evidentiary/immaterial facts
‣
BUT — in actionable documents, you have to put the substance of the document or its whole contents (See Rule
8, Sec 7)
‣
NOTE — In case of allegations of “fraud and mistake”, there is a need aver with particularity. For the rest, general
allegations will suffice.
3. The relief prayed for
‣
This is the prayer
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It is the relief based on the facts alleged, and not the relief demanded, which is the taken into consideration in
determining the cause of action.
What is the significance of filing the original complaint?
1. Signifies the commencement of the civil action
2. 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.
3. It also has the effect of interrupting the prescription of actions under the civil code
‣
BUT — remember that 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
ANSWER
SECTION 4. Answer. - An answer is a pleading in which a defending party sets forth his defenses. (4a)
‣
‣
What is an Answer?
‣
The pleading in which a defending party sets forth his defenses.
‣
Failure to file the Answer within the reglamentary period may lead to default on the part of the defendant (See Rule 9)
When should it be filed?
‣
‣
See Rule 11.
Can the court extend the period to file the answer?
‣
YES. The trial court has the discretion not only to extend the time for filing an answer but also to allow an answer to
be filed after the reglamentary period (Rule 11, Sec. 11)
‣
It is erroneous for the appellate court to rule that the trial court has no recourse but to declare the defending party in
default for failure to file a timely answer
‣
Under the Rules, the court may extend the time to plead upon motion and upon such terms as are just. The court may
also allow an answer or other pleading to be filed after the time fixed by the Rules. (Sablas vs Sablas)
DEFENSES
SECTION 5. 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 cause or causes of action.
b. An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in
the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include
fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of confession and avoidance. (5a)
KINDS OF DEFENSES
1. NEGATIVE DEFENSE
‣
A defense is negative when the material averments alleged in the pleading of the claimant are specifically denied.
‣
It is a specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause/causes
of action.
‣
A negative defense is stated in the form of a specific denial and the kinds of specific denials are described in Sec. 10
of Rule 8.
‣
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.
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Note that material averments in the complaint (other than those as to the amount of unliquidated damages), not
specifically denied shall be deemed admitted (Rule 8, Sec. 11)
SEE — Rule 8, Sec. 10 and 11 for more details on Specific Denial
2. AFFIRMATIVE DEFENSE
‣
It is an allegation of a new matter which, while hypothetically admitting the material averments in the pleading of the
claimant, would prevent or bar recovery.
‣
An affirmative defense is one which is not a denial of an essential ingredient in the plaintiffs cause of action, but one
which, if established, will be a good defense, i.e., an “avoidance” of the claim.
‣
Example — 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
‣
Allegations presented in the answer as affirmative defenses are 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
‣
If you hypothetically admit, without raising any defense, then there’s no issue. This will lead to a judgment on the
pleadings. (Rule 34 – when the answer does not tender an issue or admits the material allegations)
‣
Better to raise affirmative defences first in a motion to dismiss filed before an answer
COUNTERCLAIM
SECTION 6. Counterclaim. - A counterclaim is any claim which a defending party may have against an opposing party.
(6a)
‣
‣
‣
‣
What is a Counterclaim?
‣
Any claim which a defending party may have against an opposing party. It is a distinct and independent cause of
action.
‣
A counterclaim is described by the Rules of Court as any claim. This may refer to a claim for (a) money, or (b) some
other relief against an opposing party
Why are Counterclaims permitted?
‣
A counterclaim is permitted by the Rules as a way of preventing multiplicity of suits by allowing in one action the
determination of the entire controversies between the parties.
‣
The rules of counterclaim are designed to enable the disposition of a whole controversy of interested parties'
conflicting claims, at one time and in one action, provided all parties be brought before the court and the matter
decided without prejudicing the rights of any party.
What are the effects of the filing of a Counterclaim?
‣
Upon its filing, the same proceedings are had as in the original complaint.
‣
When the defendant files a counterclaim against the plaintiff, the defendant becomes the plaintiff in the counterclaim
while the original plaintiff becomes the defendant. The filing of a counterclaim gives rise to two complaints, namely,
the one filed by the plaintiff by way of an original complaint and the one filed by the defendant by way of a
counterclaim. A counterclaim is not intrinsically a part of the answer because it is a separate pleading.
What is the period to respond to a Counterclaim (file an answer against the counterclaim)?
‣
‣
‣
Within 10 days from service. (See Rule 11)
Can a counterclaim be incorporated in the Answer?
‣
YES. This is common practice. It may be included in the answer.
‣
This inclusion is merely a matter of form and does not have the effect of fusing the two separate pleadings into a
single pleading. Thus, it is not uncommon to denominate these two pleadings as: “Answer With A Counterclaim.”
Can a counterclaim be incorporated in a Motion to Dismiss?
‣
NO. A compulsory counterclaim and a motion to dismiss by the defendant are incompatible
‣
A “Motion To Dismiss With A Counterclaim” is NOT an accepted way of pleading a counterclaim
‣
A party who desires to plead a compulsory counterclaim should not file a motion to dismiss. If he files a motion to
dismiss and the complaint is dismissed, there will be no chance to invoke the counterclaim.
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‣
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A counterclaim presupposes the existence of a claim against the party filing the counterclaim. Hence, where there is
no claim against the counterclaimant, the counterclaim is improper and it must dismissed, more so where the
complaint is dismissed at the instance of the counterclaimant. In other words, if the dismissal of the main action
results in the dismissal of the counterclaim already filed, it stands to reason that the filing of a motion to dismiss the
complaint is an implied waiver of the compulsory counterclaim because the grant of the motion ultimately results in
the dismissal of the counterclaim.
‣
Thus, the filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. In
the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must
choose only one remedy. If he decides to file a motion to dismiss, he will lose his compulsory counterclaim. But if he
opts to set up his compulsory couterclaim, he may still plead his ground for dismissal as an affirmative defense in his
answer.
Are there cases where counterclaims are prohibited?
‣
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RULE 6: KINDS OF PLEADINGS
This is because a compulsory counterclaim is auxiliary to the proceeding in the original suit and derives its
jurisdictional support therefrom. A counterclaim presupposes the existence of a claim against the party filing the
counterclaim
YES. There are cases where the law or rules itself provides that counterclaims are prohibited. Such as in expropriation
cases
What are the kinds of counterclaims?
1. Compulsory Counterclaims — one which, being cognizable by the regular courts of justice, arises out of or is
connected with the transaction or occurrence constituting the subject matter of the opposing party's claim
2. Permissive Counterclaims — those which are not compulsory counterclaims. There is an absence of a logical
connection with the subject matter of the complaint, i.e., it does not arise out of, or is not connected with the
plaintiffs cause of action
‣
What if the original complaint is dismissed, will the counterclaim be dismissed also?
‣
‣
NO. A counterclaim will stand on its own merits, it will NOT be automatically dismissed if the principal claim is
dismissed (Rule 17, Sec. 2) The rules 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 regard as to the permissive or
compulsory nature of the counterclaim
Do you need leave of court to file a counterclaim?
‣
NO. There is no need for leave of court for a counterclaim. It’s up to the party involved. This rule applies to both
compulsory and permissive counterclaims
KINDS OF COUNTERCLAIMS
SECTION 7. 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 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. (n)
COMPULSORY COUNTERCLAIMS
‣
What is a Compulsory Counterclaim?
‣
It is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing party's claim. It arises from the suit itself or from the same
transactions or occurrences
‣
Such as — Exemplary damages, moral damages, attorney’s fees
‣
REQUISITES —
1. It must arise out of, or be necessarily connected with, the transaction or occurrence that is the subject matter of
the opposing party’s or co-party’s claim
2. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction
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3. It is cognizable by the regular courts of justice and the court has jurisdiction to entertain the counterclaim both as
to the amount and nature
‣
‣
What if the counterclaim exceeds the jurisdiction of the court where the main action is pending?
‣
The counterclaim should be deemed permissive, not compulsory.
‣
‣
‣
Counterclaim must be under the jurisdiction of regular courts. So if the counterclaim is a labor claim, it cannot
be considered compulsory because it is the NLRC who has jurisdiction, not the regular courts. The mere logical
connection between the complaint and the counterclaim will not give rise to a compulsory counterclaim where
the counterclaim is not within the jurisdiction of the court.
Thus, a counterclaim for P500,000.00 in the Metropolitan Trial Court of Manila cannot be considered a compulsory
counterclaim since the amount exceeds the court’s jurisdiction even if assuming, it is intimately connected with the
subject matter of the complaint.
NOTE — Despite the lack of jurisdiction of the court to adjudicate on the counterclaim, the same may nevertheless, be
pleaded in the same action, not to obtain affirmative relief because the court, for want of jurisdiction, cannot do so.
The purpose would merely be to weaken the plaintiff’s claim
‣
If the counterclaim in excess of the jurisdiction of the court is interposed in the same action, and the court finds
both the complaint and the counterclaim meritorious, it will not grant the relief in the complaint on the ground that
the defendant has a bigger credit
‣
If the defendant desires to have affirmative relief on his counterclaim, he may waive the amount in excess of the
jurisdiction of the court.
When should a Compulsory Counterclaim be asserted?
‣
It should be asserted in the answer. If you don’t file a compulsory counterclaim in your answer, it is deemed waived
and barred forever. (but the rule is different in the case of permissive counterclaims)
TESTS TO DETERMINE IF A COUNTERCLAIM IS A COMPULSORY COUNTERCLAIM
1. Are the issues of fact and law raised by the claim and the counterclaim largely the same?
2. Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute plaintiffs claim as well as the defendant’s counterclaim?
4. Is there any logical relation between the claim and the counterclaim?
‣
NOTE — A positive answer to all of these four questions would indicate the counterclaim is compulsory
RULE ON JURISDICTION OF COURT OVER COUNTERCLAIMS
1.
In the RTC — there is no limit to the counterclaim.
2.
In the MTC — the counterclaim is limited to the jurisdiction of the inferior court. If the amount counterclaim is beyond the
jurisdiction of the MTC, file it in the RTC as a separate action
PERMISSIVE COUNTERCLAIM
‣
If it’s not a Compulsory Counterclaim, then its permissive
‣
The most commonly treated feature of a permissive counterclaim is its absence of a logical connection with the subject
matter of the complaint, i.e., it does not arise out of, or is not connected with the plaintiffs cause of action
‣
REQUISITES —
1. Does NOT arise out of or is not necessarily connected with the transaction or occurrence that is the subject matter of
the opposing party’s claim;
2. It requires for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; and
3. Must be within the jurisdiction of the court, and is cognizable by the regular courts of justice
Necessity
to be filed
with the
Answer
COMPULSORY COUNTERCLAIM
PERMISSIVE COUNTERCLAIM
A compulsory counterclaim which a party has at the
time the answer is filed shall be contained in the
answer because a compulsory counterclaim not set
up shall be barred (R11, S8 and R9, S2)
May be set up as an independent action and will not be
barred if not contained in the answer to the complaint.
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COMPULSORY COUNTERCLAIM
PERMISSIVE COUNTERCLAIM
Certificate
of Forum
Shopping
NO need for certificate of non-forum shopping since
it’s not an initiatory pleading
Need for certificate of non-forum shopping because it is an
initiatory pleading
Docket
Fees
Docket fees are now required for BOTH compulsory
and permissive counterclaims. But its payment for
compulsory counterclaims is suspended.
Before, docket fees are only required for permissive
counterclaims, but effective August 16. 2004, under Sec. 7
of Rule 141. as amended by A.M. No. 04-2-04-SC. docket
fees are now required to be paid in compulsory
counterclaim or cross-claims
Necessity
to be
responded
to by an
Answer
Failure to answer a compulsory counterclaim is not a
cause for a default declaration. A compulsory
counterclaim that merely reiterates special defenses
are deemed controverted even without a reply, or
raises issues which are deemed automatically joined
by the allegations of the complaint, need not be
answered. In such a case, failure to answer a
compulsory counterclaim may not be a cause for a
declaration of default
A permissive counterclaim must be answered by the party
against whom it is interposed otherwise, he may be
declared in default as to the counterclaim.
This is because it was ruled that “Any pleading asserting a
claim must be answered and the failure to do so by the
party against whom the claim is asserted renders him to be
declared in default in respect of such clai
CROSS-CLAIM
SECTION 8. 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 include a claim that the party against whom it is asserted is or may be liable to the cross-claimant
for all or part of a claim asserted in the action against the cross-claimant. (7)
CROSS-CLAIM
‣
‣
What is a Cross-Claim?
‣
It is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein.
‣
Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the cross-claimant
‣
While a counterclaim is asserted by a defending party against a claimant, 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.
‣
Example — If XYZ Bank sues A and B for the collection of a loan, A, who merely acted as an accommodation party
may file a cross-claim 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
How should a Cross-Claim be asserted?
‣
A cross-claim that a party has at the time the answer is filed should be contained in said answer (R11, S8). This means
that the cross-claim must be set up in the same action.
‣
‣
‣
BUT — If through oversight, inadvertence, or excusable negligence, it is not asserted, it may still be set up with leave
of court, by amendment of the pleadings
‣
NOTE — The cross-claim that shall be barred if not asserted is the cross-claim already existing at the time the answer
is filed, not the cross-claim that may mature or may be acquired after service of the answer. As to the latter, Sec. 9 of
Rule 11 declares that it may, by permission of the court, be presented by supplemental pleading before judgment.
What is the period to respond a cross-claim (period to file answer against a cross-claim)?
‣
‣
It has to be set up in the action because if not set up it shall be barred (R9, S2)
See Rule 11 also
May a Cross-Claim be asserted on appeal?
‣
NO. While a defendant may have a definite cause of action against a co-defendant, it cannot succeed in seeking
judicial sanction against the latter if the records disclose that no cross-claim was interposed, nor was there a prayer
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that the co-defendant should be liable for all claims that may be adjudged in favor of the plaintiff. Under the Rules, a
cross-claim not set up shall be barred. Thus, a cross-claim cannot be set up for the first time on appeal
‣
Is leave of court required for a Cross-Claim to be asserted?
‣
‣
NO. No need for leave of court also needed, similar to counterclaims. This is because crossclaims are against a
person already a party to the case, so the court already has jurisdiction over him
What is the difference between a counterclaim and a cross-claim?
CROSS-CLAIM
COUNTERCLAIM
A claim against a co-party
A claim against an opposing party
It must arise from the transaction or occurrence that is the subject
matter of the original complaint or counterclaim.
It may or may not arise out of the subject matter of the
complaint. It may be compulsory or permissive.
COUNTER-COUNTERCLAIMS AND COUNTER-CROSS-CLAIMS
SECTION 9. Counter-counterclaims and counter-cross-claims. - A counterclaim may be asserted against an original
counter-claimant.
A cross-claim may also be filed against an original cross-claimant. (n)
‣
This only applies to permissive counterclaims, because it would be useless to file a counterclaim against a compulsory
counterclaim since it would still pertain to the same transaction.
1.
Counter-Counterclaim — A counterclaim may be asserted against an original counter-claimant.
2.
Counter-Crossclaim — may be filed against an original cross-claimant.
REPLY
SECTION 10. Reply. - A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance
of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters.
If a party does not file such reply, all the new matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an
amended or supplemental complaint. (11)
‣
‣
What is a Reply?
‣
A pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by
way of defense in the answer and thereby join or make issue as to such new matters
‣
It is filed by the plaintiff after the defendant files his answer
‣
It is the responsive pleading to an answer. It is not a responsive pleading to a counterclaim or a cross-claim. The
proper response to a counterclaim or a cross-claim is an answer to the counterclaim or answer to the cross-claim
‣
The proper function of a reply is to allege new matters in avoidance of any affirmative defense
‣
It also further defines the issues and specifies matter for trial.
When should a reply be filed?
‣
‣
See Rule 11
What if the plaintiff fails to file a reply?
‣
RULE — Filing a reply is NOT mandatory. Plaintiff is NOT prejudiced by not filing a reply If there is no reply, all
the new matters alleged in the answer are deemed controverted.
‣
Hence, if the answer to the complaint alleges as a defense the prescription of the action, the failure of the plaintiff
to specifically deny the prescription will not amount to an admission that the debt has prescribed because the rule
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already denies the matter of prescription without the plaintiff making a specific denial. It is already, as the rule says,
“deemed controverted”
‣
Contrast this with the rule that the failure to specifically deny the material allegations of the complaint shall mean
the implied admission of such material allegations (R8, S11)
‣
Thus, the gist of the rule is — The material allegations of a complaint must be specifically denied but the
allegations of new matters or material allegations of the answer need not be denied because they are deemed
denied by the Rules for the plaintiff.
‣
EXCEPT — When the defense in the answer is based upon a written instrument or document, said
instrument is considered an actionable document, in this case, the plaintiff HAS TO file a reply if he desires
to deny specifically the genuineness and due execution of the actionable document and if he wants to
avoid an admission of such matters
‣
The plaintiff must file a reply and specifically deny the genuine and due execution of the actionable document
under oath, otherwise, it will be deemed admitted.
‣
Rule 8, Sec. 8 provides, “The genuineness and due execution of the instrument shall be deemed admitted
unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts”
THIRD-PARTY COMPLAINT
SECTION 11. Third, (fourth, etc.)-party complaint. - A third (fourth, etc.)-party complaint is a claim that a defending party
may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant, for
contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (12a)
THIRD-PARTY COMPLAINT
‣
What is a Third-Party Complaint?
‣
It is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the
third (fourth, etc.)-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim.
‣
This is filed against any person NOT yet a party to the case, so you need leave of court because the court has yet to
acquire jurisdiction over him
‣
A third-party complaint is actually a complaint independent of, and separate and distinct from the plaintiffs complaint.
Were it not for the above rule, such third-party complaint would have to be filed independently and separately from the
original complaint.
‣
‣
The purpose is to avoid circuitry of action and unnecessary proliferation of lawsuits and of disposing
expeditiously in one litigation all the matters arising from one particular set of facts.
‣
The third-party complaint is a procedural device whereby a ‘third party who is neither a party nor privy to the act or
deed complained of by the plaintiff, may be brought into the case with leave of court, by the defendant, who acts as
third-party plaintiff to enforce against such third-party defendant a right for contribution, indemnity, subrogation or any
other relief, in respect of the plaintiffs claim
‣
A third-party complaint must allege facts which prima facie show that the defendant is entitled to contribution,
subrogation, etc. from the third-party defendant.
NOTE — Prior leave of court is necessary to file a third-party complaint
‣
Trial courts are not especially enjoined by law to admit a third-party complaint. They are vested with discretion to allow
or disallow a party to an action to implead an additional party.
‣
Thus, a defendant has no vested right to file a third-party complaint
‣
RATIONALE — Prior leave of Court is necessary, so that where the allowance of a third-party complaint would delay
the resolution of the original case, such as when the third-party defendant cannot be located or where matters
extraneous to the issue of possession would unnecessarily clutter a case of forcible entry, or the effect would be to
introduce a new and separate controversy into the action, the salutary object of the rule would not be defeated, and
the court should in such cases require the defendant to institute a separate action
‣
NOTE — this is an exception to the general rule that you don’t need leave of court to file pleadings. In third-party
complaints. You NEED leave of court.
‣
To obtain leave of court, file a motion under Rule 15.
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If motion is denied, such a claim may still be enforced in a separate action. The action is not lost
‣
Remember that leave of court is not required in filing a counterclaim or a cross-claim.
What is the test to determine propriety of a third-party complaint?
‣
TEST — Does it arise out of the same transaction on which the plaintiff’s claim is based, or does the third-party’s
claim arising out of another or different contract or transaction, connected with the plaintiff’s claim?
‣
SEE — Sy Tiong v. Sy Chim, G.R. No. 174168, March 30, 2009
‣
‣
‣
‣
‣
1.
On an allegation of liability of the latter to the defendant for contribution, indemnity, subrogation or any other
relief
2.
On the ground of direct liability of the third-party defendant to the plaintiff
3.
The liability of the third-party defendant to both the plaintiff and the defendant.
In determining the sufficiency of the third-party complaint, the allegations in the original complaint and the thirdparty complaint must be examined. A third-party complaint must allege facts which prima facie show that the
defendant is entitled to contribution, indemnity, subrogation or other relief from the third-party defendant
What are the jurisdictional implications of a third party complaint?
‣
If a court has jurisdiction over the main action, it has jurisdiction over a third-party complaint which is ancillary thereto.
‣
BUT — it must yield to the jurisdiction and venue of the main action.
‣
Summons still needed to obtain jurisdiction over the third-party defendant
Can third party complaints be filed on appeal?
‣
‣
A prerequisite to the exercise of such right is that some substantive basis for a third-party claim be found to exist,
whether the basis be one of indemnity, subrogation, contribution or other substantive right. The bringing of a thirdparty defendant is proper if he would be liable to the plaintiff or to the defendant or both for all or part of the
plaintiff’s claim against the original defendant, although the third-party defendant’s liability arises out of another
transaction. The defendant may implead another as third-party defendant —
NO. Third-party complaints are NOT allowed in appellate courts
Period to file an answer to a third party complaint — See Rule 11 also
‣
It’s treated as an entirely new complaint.
‣
The time to answer a third-party complaint shall be governed by the same rule as the answer to the complaint. Hence,
within 15 days from service of summons (R11, S1,5)
What is the effect of a dismissal of the complaint on the third-party complaint?
‣
If the complaint is dismissed, the third-party complaint will also necessarily be dismissed.
JOINING OF THE THIRD-PARTY DEFENDANT IN THE ORIGINAL CLAIM
‣
The original plaintiff/claimant may amend his pleadings to assert against the third-party defendant any claim which the
former might have asserted against the latter had he been joined originally as a party.
‣
The bringing of a third-party defendant is proper if he would be liable to the plaintiff or the defendant or both for all or part
of the plaintiff’s claim against the original defendant, although the third-party defendant’s liability arises out of another
transaction.
BRINGING NEW/NECESSARY PARTIES IN COUNTER-CLAIMS OR CROSS-CLAIMS
SECTION 12. Bringing new parties. - When the presence of parties other than those to the original action is required for
the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be
brought in as defendants, if jurisdiction over them can be obtained. (14)
RULE 3 — PARTIES TO CIVIL ACTIONS
SECTION 8. Necessary party. - A necessary party is 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. (8a)
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BRINGING NECESSARY PARTIES TO THE COUNTERCLAIM OR CROSS-CLAIM
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What if the presence of parties other than those to the original action is required for the granting of complete
relief in the determination of a counterclaim or cross-claim?
‣
‣
RULE 6: KINDS OF PLEADINGS
The court shall order them to be brought in as defendants, if jurisdiction over them can be obtained
‣
Read this with R3, S8 and 9, this is the rule on joinder of necessary parties (But this is in original actions)
‣
This rule applies when the presence of parties other than those to the original action is required for the granting of
complete relief in the determination of a counterclaim or cross-claim
What is the difference of Sec. 12 with third-party complaints?
‣
In a third party complaint, one of the third-party defendants is not a party to the main action.
‣
In this section, one or more of the defendants in a counterclaim or cross-claim is already a party to the action. They
can be brought as other necessary parties under this section.
ANSWER TO THIRD-PARTY COMPLAINT
SECTION 13. Answer to third (fourth, etc.)-party complaint. - A third (fourth, etc.)-party defendant may allege in his answer
his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)-party plaintiff may have
against the original plaintiff's claim.
In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the
third-party plaintiff. (n)
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RULE 7: PARTS OF A PLEADING
CAPTION
SECTION 1. Caption. - The caption sets forth the name of the court, the title of the action, and the docket number if
assigned.The title of the action indicates the names of the parties. They shall all be named in the original complaint or
petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an
appropriate indication when there are other parties.
Their respective participation in the case shall be indicated. (1a, 2a)
CONTENTS OF THE CAPTION
1. The name of the court
2. The title of the action
‣
This indicates the names of the parties.
‣
They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the
name of the first party on each side be stated with an appropriate indication when there are other parties.
‣
Their respective participation in the case shall be indicated.
‣
Although the general rule requires the inclusion of the names of all the parties in the title of a complaint, the noninclusion of one or some of them is not fatal to the cause of action of a plaintiff, provided there is a statement in the
body of the petition indicating that a defendant was made a party to such action. The inclusion of the names of all the
parties in the title of a complaint is a formal requirement under Section 3, Rule 7. However, the rules of pleadings
require courts to pierce the form and go into the substance, and not to be misled by a false or wrong name given to a
pleading. The averments in the complaint, not the title, are controlling. Mere failure to include the name of a party in
the title of a complaint is not fatal by itself. (Vlason Enterprises Corporation vs. CA 1999)
3. The docket number if assigned.
‣
Assigned once you pay the docket/filing fees
BODY
SECTION 2. The body. - The body of the pleading sets forth its designation, the allegations of the party's claims or
defenses, the relief prayed for, and the date of the pleading. (n)
a. Paragraphs. - The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily
identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a)
b. Headings. - When two or more causes of action are joined, the statement of the first shall be prefaced by the words,
"first cause of action," of the second by "second cause of action," and so on for the others.
When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they
shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so
on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be
prefaced by words to that effect. (4)
c. Relief . - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as
may be deemed just or equitable. (3a, R6)
d. Date. - Every pleading shall be dated. (n)
CONTENTS OF THE BODY
1. ITS DESIGNATION
2. THE ALLEGATIONS OF THE PARTY’S CLAIMS OR DEFENSES
‣
The allegations in the body of the pleading must be —
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Divided into paragraphs — Each paragraph shall contain a statement of a single set of circumstances so far as
that can be done with convenience
Numbered for ready identification — This numbering scheme is significant because in subsequent pleadings, a
paragraph may be referred to only by its number without need for repeating the entire allegations in the
paragraph.
‣
When two or more causes of action are joined — the first cause of action shall be prefaced with the words, “first
cause of action,” or the second cause of action by the words, “second cause of action,” and so on for the others
‣
Only the ultimate facts should be alleged, not conclusions — Every pleading, including the complaint, is not
supposed to allege conclusions. A pleading must only aver facts because conclusions are for the courts to make. Not
all facts may be allowed as averments in a pleading. Every pleading shall omit from its allegations statements of mere
evidentiary facts. (R8, S1)
‣
The ultimate facts are to be stated in a methodical and logical form and in a plain, concise and direct manner (R8, S1)
3. THE RELIEF PRAYED FOR
‣
Following the averments of the cause of action of the plaintiff, the complaint must contain a statement of the relief
sought from the court and to which he believes he is entitled. This portion of the complaint is oftentimes referred to as
the “prayer.”
‣
The pleading shall specify the relief sought although the statement may include a “general prayer for such further or
other relief as may be deemed just or equitable.”
‣
‣
A court can grant the relief warranted by the allegation and the proof even if it is not specifically sought by the
injured party; the inclusion of a general prayer may justify the grant of a remedy different from or together with the
specific remedy sought, if the facts alleged in the complaint and the evidence introduced so warrant” (Prince
Transport, Inc. v. Garcia 2011)
The relief or prayer, although part of the complaint, does not constitute a part of the statement of the cause of action
and the plaintiff is entitled to as much relief as the facts may warrant
4. THE DATE OF THE PLEADING
SIGNATURE OTHER FORMAL REQUIREMENTS OF PLEADINGS
SECTION 3. Signature and address. - Every pleading must be signed by the party or counsel representing him, stating in
either case his address which should not be a post office box.
The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge,
information, and belief there is good ground to support it; and that it is not interposed for delay.
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to
mere inadvertence and not intended for delay.
Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or
indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate
disciplinary action. (5a)
‣
RULE — EVERY PLEADING MUST BE SIGNED BY THE PLAINTIFF OR COUNSEL REPRESENTING HIM. IF THE PLEADING IS NOT
SIGNED IT HAS NO LEGAL EFFECT
‣
BUT — Can be cured if due to mere inadvertence or not intended for delay
‣
‣
Only the counsel of the party should sign it. It is personal to him. He cannot delegate it to anyone, especially non-lawyers
‣
‣
In this case, the party needs to explain and justify to the court why it was not signed
However, if a law firm represents the party, any partner can sign
The signature of counsel certifies that —
1. He read the pleading
2. There is good ground to support it
3. Not interposed for delay
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REQUIREMENTS OTHER THAN THE SIGNATURE
1. Address
‣
Counsel must also inform the court of his change of address
‣
In the absence of a proper notice to the court of a change of address, service upon the parties must be made at the
last address of their counsel of record
‣
The address should not be a post office box.
2. Roll Number
3. Counsel’s IBP Official Receipt Number indicating its date of issue.
4. Counsel’s Professional Tax Receipt Number (PTR)
5. MCLE Certificate of Compliance or Certificate of Exemption
6. Verification (when required, see sec. 4)
‣
These requirements pertaining to the counsel was meant to protect the public by making it easier to detect impostors
who represent themselves as members of the bar.
‣
Failure to comply with requirements may result to disciplinary actions such as contempt of court, and the pleadings be
stricken off.
WHEN COUNSEL IS SUBJECT TO DISCIPLINARY ACTION IN CONNECTION WITH THE FILING OF PLEADINGS
1. When he deliberately files an unsigned pleading
2. When he signs a pleading in violation of the Rules
3. When he alleges in the pleading scandalous or indecent matter
4. When he fails to promptly report to the court a change of his address
VERIFICATION
SECTION 4. Verification. - Except when otherwise specifically required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic records.
A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge,
information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (4a) (As amended by SC
Circular No. 48-00, effective May 1, 2000.)
REQUIREMENT OF VERIFICATION
‣
RULE — PLEADINGS NEED NOT BE VERIFIED
‣
EXCEPT — IF SPECIFICALLY REQUIRED BY LAW OR RULE
‣
Usually it is required when the asserted facts are hard to prove and can be easily claimed. verification exposes the
party to perjury
‣
RATIONALE - The purpose of verification is simply to secure an assurance that the allegations of the petition (or
complaint) have been made in good faith; or are true and correct, not merely speculative. This requirement is
simply a condition affecting the form of pleadings, and noncompliance therewith does not necessarily render it
fatally defective. Indeed, verification is only a formal, not a jurisdictional requirement. (INC vs Ponferrada 2006)
‣
NOTE — Compare this with the rule on the requirement of a Certificate of Non-Forum Shopping which is required
in all complaints, petitions, applications, and other initiatory pleadings.
‣
Examples of pleadings that require verification—
1.
All pleadings filed in civil cases under the 1991 Revised Rules on Summary Procedure
2.
Petition for review from the Regional Trial Court to the Supreme Court raising only questions of law under Rule
41, Section 2;
3.
Petition for review of the decision of the Regional Trial Court to the Court of Appeals under Rule 42, Section 1
4.
Petition for review from quasi-judicial bodies to the Court of Appeals under Rule 43, Section 5
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5.
Petition for review before the Supreme Court under Rule 45, Section 1
6.
Petition for annulment of judgments or final orders and resolutions under Rule 47, Section 4
7.
Complaint for injunction under Rule 58, Section 4
8.
Application for preliminary injunction or temporary restraining order under Rule 58, Section 4
9.
Application for appointment of a receiver under Rule 59, Section 1
10. Application for support pendente lite under Rule 61, Section 1
11. Petition for certiorari against the judgments, final orders or resolutions of constitutional commissions under
Rule 64, Section 2
12. Petition for certiorari, prohibition, and mandamus under Rule 65 (in relation to Rule 46)
13. Petition for quo warranto under Rule 66, Section 1
14. Complaint for expropriation under Rule 67, Section 1
15. Petition for indirect contempt under Rule 71, Section 4, all from the 1997 Rules of Court
16. All complaints or petitions involving intra-corporate controversies under the Interim Rules of Procedure on IntraCorporate Controversies
17. Complaint or petition for rehabilitation and suspension of payment under the Interim Rules on Corporate
Rehabilitation
18. Petition for declaration of absolute nullity of void marriages and annulment of voidable marriages as well as
petition for summary proceedings under the Family Code.
COMPLIANCE WITH THE VERTIFICATION REQUIREMENT
‣
How do you comply with the verification requirement?
‣
By executing an affidavit, which declares that —
1. The affiant has read the pleading
2. The allegations therein are true and correct based on either —
a. His personal knowledge
b. On authentic records
‣
‣
‣
NOTE — The verification requirement is “deemed substantially complied with when one who has an ample knowledge
to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in
the petition have been made in good faith or are true and correct”
‣
A verification is not proper when the verification does not comply with the requirement of the rule — Means pleading
is required to be verified but contains a verification based on "information and belief", or upon "knowledge,
information and belief," or it lacks a proper verification
Who executes the verification?
‣
It is the party who verifies the pleading, NOT the lawyer. Because it is he who knows the genuineness.
‣
EXCEPT — the lawyer can sign it under compelling reasons, Court has said this is substantial compliance as it is
presumed that facts alleged by him are true to his knowledge and belief (Santos vs CA 2001)
‣
NOTE — Under the rules on Alternative Dispute Resolution the lawyer can verify.
What if their are multiple parties and verification is required?
‣
All of them must sign the verification
‣
EXCEPT — When they all share a communality of interest and invoke a common cause of action or defense,
the signature of only one of them will substantially comply with the rules. (INC vs Ponferrada 2006)
‣
Such as — in the cases of (1) co-owners, (2) spouses as to conjugal parties (3) beneficiaries of a family home
with regard to the family home
‣
SALVADOR — But there are mere exceptions where the court applied the liberal application of the rules
EFFECT OF LACK OF A VERIFICATION WHEN REQUIRED
‣
RULE — IT SHALL BE TREATED AS AN UNSIGNED PLEADING, IT PRODUCES NO LEGAL EFFECT
‣
BUT — It can be cured by amendment or requiring an oath, case will NOT be dismissed.
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Verification is only a formal requirement. It is not jurisdictional. Failure to attach is not fatal.
‣
Court has declared that as to verification, non- compliance therewith or a defect therein does not necessarily
render the pleading fatally defective. The Court may order its submission or correction or act on the pleading if the
attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the
ends of justice may be served thereby. (Vallacar Transit vs Catubig)
‣
NOTE — Compare this with there requirement of a Certificate of Non-Forum Shopping which is generally not
curable by mere amendment of the complaint, but shall be a cause for the dismissal of the case without prejudice.
NOTE — in the SC and CA, they dismiss without prejudice it for failure to comply with procedural
requirements.
‣
In appeals there is also verification when required. In a sense it cannot anymore be cured if there is failure to verify
because in appealing, there is a reglementary period within which to file the appeal. If the party files an unverified
pleading which is required to be verified, it produces no legal effect, hence the period to appeal will lapse, and it
cannot be cured anymore.
CERTIFICATION AGAINST FORUM-SHOPPING (CERTIFICATE OF NON-FORUM SHOPPING)
SECTION 5. Certification against forum shopping. - The plaintiff or principal party shall certify under oath in the complaint
or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed
therewith:
a. That he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein;
b. If there is such other pending action or claim, a complete statement of the present status thereof;
c. If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that
fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon
motion and after hearing.
The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions.
If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground
for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative
sanctions. (n)
CONCEPT OF FORUM-SHOPPING
‣
It is the filing of multiple suits in different courts, either simultaneously or successively
‣
It involves the same parties to ask the courts to —
1. Rule on the same or related causes; and/or
2. Grant the same or substantially same relief
‣
SEE — Chua vs Metrobank 2009
‣
Forum shopping exists when a party repeatedly avails himself of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some
other court.
‣
What is important in determining whether forum shopping exists or not is the vexation caused the courts and partylitigant by a party who asks different courts to rule on the same or related causes and/or to grant the same or
substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the
different forums upon the same issue
‣
Forum shopping can be committed in three ways —
1. Litis pendencia - Filing multiple cases based on the same cause of action and with the same prayer,
the previous case not having been resolved yet (where the ground for dismissal is litis pendentia);
2. Res judicata — Filing multiple cases based on the same cause of action and the same prayer, the previous
case having been finally resolved (where the ground for dismissal is res judicata); and
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3. Splitting of causes of action — Filing multiple cases based on the same cause of action, but with different
prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata).
‣
How to Determine Existence of Forum-Shopping
‣
The test is to see whether in the two or more cases pending, there is —
1. Identity of parties
2. Identity of rights or causes of action, and
3. Identity of reliefs sought
‣
NOTE — The concept of forum shopping applies not only with respect to suits filed in the courts but also in connection
with litigations commenced in the courts while an administrative proceeding is pending in order to defeat administrative
processes and in anticipation of an unfavorable administrative ruling
CERTIFICATION AGAINST FORUM-SHOPPING
‣
RULE — THE PLAINTIFF OR PRINCIPAL PARTY, IN THE COMPLAINT OR OTHER INITIATORY PLEADING ASSERTING A CLAIM FOR
RELIEF SHALL CERTIFY UNDER OATH OR IN A SWORN CERTIFICATION A STATEMENT AGAINST FORUM-SHOPPING
‣
‣
Called the Certificate against Forum Shopping or Certificate on Non-Forum Shopping
What should the certificate contain?
‣
The certification against forum shopping is a sworn statement in which the plaintiff or principal party certifies in a
complaint or initiatory pleading to the following matters —
1. That he has not filed a similar complaint involving the same issues in any court, tribunal or quasi-judicial agency
and, to the best of his knowledge, no such other action or claim is pending therein
2. If there is such other pending action or claim, a complete statement of the present status thereof;
3. If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report
that fact within five (5) days to the court
‣
When is a certificate of non-forum shopping required?
‣
RULE — A certificate of non-forum shopping is required in every initiatory pleading
‣
‣
These initiatory pleadings include not only the original complaint but also a permissive counterclaim, cross-claim,
third (fourth, etc.) -party complaint, complaint-in- intervention, petition or any application in which a party asserts
his claim for relief.
‣
This includes also special civil actions
‣
The requirement of a certification against forum shopping has likewise been adopted in Rules 42, 43, 45, 46,
47, 64 and 65. (Republic vs Carmel Development 2002)
BUT — It is NOT needed in every motion NOR required in a compulsory counterclaim — because it cannot be
the subject of a separate and independent adjudication as when the counterclaim is for damages, moral,
exemplary or attorney’s fees, by reason of the alleged malicious and unfounded suit filed against the defendant. It
is therefore, not an initiatory pleading.
‣
An answer is not an initiatory pleading which requires a certification against forum shopping under Sec. 5 of
Rule 7, 1997 Revised Rules of Civil Procedure. It is a responsive pleading. (Korean Technologies vs Lerma
2008)
‣
It bears stressing that a certification on non-forum shopping is required only in a complaint or a petition which
is an initiatory pleading. In this case, the subject petition for the issuance of a writ of possession filed by private
respondent is not an initiatory pleading. Although private respondent denominated its pleading as a petition, it
is more properly a motion. What distinguishes a motion from a petition or other pleading is not its form or the
title given by the party executing it, but its purpose. The purpose of a motion is not to initiate litigation, but to
bring up a matter arising in the progress of the case where the motion is filed. (PTA of St. Matthew Academy v.
Metrobank 2010)
SIGNATURE ON THE CERTIFICATE OF NON-FORUM SHOPPING (WHO SIGNS IT?)
‣
NOTE — These seems to be the same rules to apply to the execution of the verification requirement
1.
FOR NATURAL PERSONS — THE CERTIFICATE MUST BE SIGNED BY THE PARTY HIMSELF, NOT THE COUNSEL
‣
RATIONALE — The reason for requiring that it must be signed by the principal party himself is that he has actual
knowledge, or knows better than anyone else, whether he has initiated similar action/s in other courts, agencies or
tribunals.
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The requirement in Rule 7, §5 that the certification should be executed by the plaintiff or the principal means that
counsel cannot sign the certificate against forum-shopping. The reason for this is that the plaintiff or principal
knows better than anyone else whether a petition has previously been filed involving the same case or
substantially the same issues. Hence, a certification signed by counsel alone is defective and constitutes a valid
cause for dismissal of the petition. (Santiago Eslaban vs Clarita vda De Onorio 2001)
‣
‣
It is true that insofar as verification is concerned, we have held that there is substantial compliance if the same is
executed by an attorney, it being presumed that facts alleged by him are true to his knowledge and belief. However,
the same does not apply as regards the requirement of a certification against forum shopping. (Santos vs CA 2001)
‣
The certification of non-forum shopping must be signed by the plaintiff or any of the principal parties and not
only the legal counsel — The certification of non-forum shopping must be signed by the plaintiff or any of the
principal parties and not only the legal counsel. The CA held that there was substantial compliance with the Rules of
Court, citing Dimagiba vs. Montalvo, Jr., to the effect that a lawyer who assumes responsibility for a client’s cause has
the duty to know the entire history of the case, especially if any litigation is commenced. This view, however, no longer
holds authoritative value in the light of Digital Microwave Corporation vs. CA, where it was held that the reason the
certification against forum shopping is required to be accomplished by petitioner himself is that only the petitioner
himself has actual knowledge of whether or not he has initiated similar actions or proceedings in other courts or
tribunals. Even counsel of record may be unaware of such fact. (Mendigorin vs Cabantog 2002)
2.
FOR MULTIPLE PARTIES — THEY ALL HAVE TO SIGN
‣
EXCEPT — When they all share a communality of interest and invoke a common cause of action or defense, the
signature of only one of them will substantially comply with the rules. (INC vs Ponferrada 2006)
‣
SEE — Iglesia ni Kristo v. Ponferrada, G.R. No. 168943, October 27, 2006
‣
3.
The general rule is that the certification must be signed by all plaintiffs in a case and the signature of only one
of them is insufficient. However, the Court has also stressed in a number of cases that the rules on forum
shopping were designed to promote and facilitate the orderly administration of justice and thus should not be
interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. The rule of
substantial compliance may be availed of with respect to the contents of the certification. This is because the
requirement of strict compliance with the provisions merely underscores its mandatory nature in that the
certification cannot be altogether dispensed with or its requirements completely disregarded.
FOR JURIDICAL PERSONS — SIGNATURE MAY BE DONE EITHER BY —
a.
A person authorized by a board resolution embodied in a secretary's certificate — which authorizes an officer
OR the corporation’s counsel, who has personal knowledge of the facts attested to in the certificate, to sign for it.
‣
‣
SEE — Cosco Philippines Shipping v. Kemper Insurance Company, G.R. No. 179488, April 23, 2012
‣
A corporation has no power, except those expressly conferred on it by the Corporation Code and those that
are implied or incidental to its existence. In turn, a corporation exercises said powers through its board of
directors and/or its duly authorized officers and agents. Thus, it has been observed that the power of a
corporation to sue and be sued in any court is lodged with the board of directors that exercises its corporate
powers. In turn, physical acts of the corporation, like the signing of documents, can be performed only by
natural persons duly authorized for the purpose by corporate by-laws or by a specific act of the board of
directors.
‣
With respect to a corporation, the certification against forum shopping may be signed for and on its behalf, by
the following —
A specifically authorized lawyer — who has personal knowledge of the facts required to be disclosed in
such document.
2.
Individuals vested with authority by a valid board resolution — may sign the certificate of non-forum
shopping on behalf of a corporation and proof of such authority. (The petition is subject to dismissal if a
certification was submitted unaccompanied by proof of the signatory's authority.)
Can the authority to sign given to the person by the board be delegated further?
‣
b.
1.
YES. This was recognized by the SC in the case of Fuji Television vs Espiritu 2014 where it cited the laws on
agency — “The agent may appoint a substitute if the principal has not prohibited him from doing so.” (Art.
1892, Civil Code). It said that the secretary’s certificate does not state that authorized person is prohibited from
appointing a substitute. In fact, he is empowered to do acts that will aid in the resolution of this case. Thus, he
may validly delegated such authority delegated to him.
Certain corporate officers, even without a board resolution
‣
SEE — Fuji Television vs Arlene Spiritu, G.R. No. 204944, December 3, 2014
‣
This court has recognized that there are instances when officials or employees of a corporation can sign the
verification and certification against forum shopping without a board resolution. The following officials or
employees of the company can sign the verification and certification without need of a board resolution —
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4.
1.
The Chairperson of the Board of Directors
2.
The President of a corporation
3.
The General Manager or Acting General Manager
4.
Personnel Officer
5.
Employment Specialist in a labor case.
While the above cases do not provide a complete listing of authorized signatories to the verification and
certification required by the rules, the determination of the sufficiency of the authority was done on a case to
case basis. The rationale applied in the foregoing cases is to justify the authority of corporate officers or
representatives of the corporation to sign the verification or certificate against forum shopping, being ‘in a
position to verify the truthfulness and correctness of the allegations in the petition
FOR FOREIGN CORPORATIONS
‣
SALVADOR — a managing director’s certificate will do, or whatever their own laws consider the equivalent of a
secretary’s certificate.
EFFECT OF FAILURE TO FILE A CERTIFICATE OF NON-FORUM SHOPPING OR FILING A DEFECTIVE CERTIFICATE
‣
‣
‣
RULE — CASE WILL BE DISMISSED WITHOUT PREJUDICE
‣
The defect CANNOT be cured by an amendment. Distinguish this from verification where the court can order it to be
cured by amendment.
‣
Dismissal without prejudice so just re-file, but you need to pay filing fees again.
‣
Failure may also mean (most of the time) that the one who signed it was the lawyer and not the party himself
How should the dismissal for failure to file a certificate be done?
‣
Only after motion of the adverse party and hearing. The dismissal for failure to comply with the certification
requirement is NOT to be done by the court motu proprio. The rule requires that the dismissal be upon motion and
after hearing
‣
Where the dismissal is silent as to the character of the dismissal, the dismissal is presumed to be without prejudice to
the refiling of the complaint.
‣
NOTE — The failure to submit a certification against forum shopping is a ground for dismissal, separate and distinct
from forum shopping as a ground for dismissal.
‣
A complaint may be dismissed for forum shopping even if there is a certification attached and conversely, a
complaint may be dismissed for lack of the required certification even if the party has not committed forum
shopping.
‣
Compliance with the certification against forum shopping is separate from, and independent of, the avoidance of
forum shopping itself
Is the requirement of the lack or defect in the certificate of non-forum shopping jurisdictional (meaning even if it
is not raised at the earliest opportunity by the adverse party, it is not deemed waived)?
‣
NO. It is not jurisdictional, it must be raised at the earliest opportunity otherwise, it is deemed waived
‣
SEE — S.C. Megaworld Construction v. Parada, G.R. No. 183804, September 11, 2013
‣
‣
The verification AND certification of non-forum shopping in the complaint is NOT a jurisdictional but a formal
requirement, and any objection as to non-compliance therewith should be raised in the proceedings below and not
for the first time on appeal.
‣
In Young v. John Keng Seng, it was also held that the question of forum shopping cannot be raised in the CA and
in the Supreme Court, since such an issue must be raised at the earliest opportunity in a motion to dismiss or a
similar pleading. The high court even warned that "invoking it in the later stages of the proceedings or on appeal
may result in the dismissal of the action.
BUT — SEE — Cosco Philippines Shipping v. Kemper Insurance Company, G.R. No. 179488, April 23, 2012
‣
The lack of certification against forum shopping is generally not curable by mere amendment of the complaint, but
shall be a cause for the dismissal of the case without prejudice. The same rule applies to certifications against
forum shopping signed by a person on behalf of a corporation which are unaccompanied by proof that said
signatory is authorized to file the complaint on behalf of the corporation. (Cosco vs Kemper 2012)
‣
A complaint is filed for and in behalf of the plaintiff who is not authorized to do so, the complaint is not
deemed filed. An unauthorized complaint does not produce any legal effect. Hence, the court should
dismiss the complaint on the ground that it has no jurisdiction over the complaint and the plaintiff. Since the
court has no jurisdiction over the complaint and respondent, petitioner is not estopped from challenging the trial
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court's jurisdiction, even at the pre-trial stage of the proceedings. This is so because the issue of jurisdiction may
be raised at any stage of the proceedings, even on appeal, and is not lost by waiver or by estoppel.
‣
‣
NOTE — It seems like the the implication in Cosco says that the lack of or defect in the Certificate means that the
complaint is deemed not to have been filed at all, and this must be dismissed, for the Court never acquired jurisdiction
in the first place. But the better ruling seems to be the SC Megaworld Case.
EXCEPT — WHEN THERE IS SUBSTANTIAL OR SUBSEQUENT COMPLIANCE COUPLED WITH THE PRESENCE OF SPECIAL
CIRCUMSTANCES OR COMPELLING REASONS, THE CASE MAY PROCEED.
JURISPRUDENCE ON SUBSTANTIAL AND SUBSEQUENT COMPLIANCE IN THE VERIFICATION AND CERTIFICATION REQUIREMENT
‣
‣
SEE — Cosco Philippines Shipping v. Kemper Insurance Company, G.R. No. 179488, April 23, 2012
‣
In Republic v. Coalbrine International Philippines, Inc., the Court cited instances wherein the lack of authority of the
person making the certification of non-forum shopping was remedied through subsequent compliance by the
parties therein. Thus, while there were instances where we have allowed the filing of a certification against non-forum
shopping by someone on behalf of a corporation without the accompanying proof of authority at the time of its filing,
we did so on the basis of a special circumstance or compelling reason. Moreover, there was a subsequent
compliance by the submission of the proof of authority attesting to the fact that the person who signed the
certification was duly authorized.
‣
In China Banking Corporation v. Mondragon International Philippines, Inc., the CA dismissed the petition filed by China
Bank, since the latter failed to show that its bank manager who signed the certification against non-forum shopping
was authorized to do so. We reversed the CA and said that the case be decided on the merits despite the failure to
attach the required proof of authority, since the board resolution which was subsequently attached recognized
the pre-existing status of the bank manager as an authorized signatory.
‣
In Abaya Investments Corporation v. Merit Philippines, where the complaint before the Metropolitan Trial Court of
Manila was instituted by petitioner's Chairman and President, Ofelia Abaya, who signed the verification and
certification against non-forum shopping without proof of authority to sign for the corporation, we also relaxed the
rule. We did so taking into consideration the merits of the case and to avoid a re-litigation of the issues and
further delay the administration of justice, since the case had already been decided by the lower courts on the
merits. Moreover, Abaya's authority to sign the certification was ratified by the Board.
SEE — Fuji Television vs Arlene Spiritu, G.R. No. 204944, December 3, 2014
‣
‣
‣
Although the general rule is that failure to attach a verification and certification against forum shopping is a ground for
dismissal, there are cases where this court allowed substantial compliance.
‣
In Loyola v. Court of Appeals, petitioner Alan Loyola submitted the required certification one day after filing his
electoral protest. This court considered the subsequent filing as substantial compliance since the purpose of filing
the certification is to curtail forum shopping.
‣
In LDP Marketing, Inc. v. Monter, Ma. Lourdes Dela Peña signed the verification and certification against forum
shopping but failed to attach the board resolution indicating her authority to sign. In a motion for reconsideration,
LDP Marketing attached the secretary’s certificate quoting the board resolution that authorized Dela Peña. Citing
Shipside, this court deemed the belated submission as substantial compliance since LDP Marketing complied with
the requirement; what it failed to do was to attach proof of Dela Peña’s authority to sign.
‣
Havtor Management Phils., Inc. v. National Labor Relations Commission and General Milling Corporation v. National
Labor Relations Commission87 involved petitions that were dismissed for failure to attach any document showing
that the signatory on the verification and certification against forum-shopping was authorized. In both cases, the
secretary’s certificate was attached to the motion for reconsideration. This court considered the subsequent
submission of proof indicating authority to sign as substantial compliance.
SEE — Narciso vs Pacific Traders, G.R. No. 194176, September 10, 2014
‣
The subsequent compliance with the requirement does not excuse a party's failure to comply therewith in the first
instance. While the Court, in certain cases, has excused non-compliance with the requirement to submit a certificate
of non-forum shopping, such liberal posture has always been grounded on special circumstances or compelling
reasons which made the strict application of the rule clearly unjustified or inequitable.
‣
Here, the reasons cited by the petitioners for their failure to attach the certificate in their appeal memorandum can
hardly be considered as special circumstances or compelling reasons to warrant a liberal application of the rules of
procedure. Moreover, based on the facts of the case, a strict application of a technical rule will not prejudice the
administration of justice in view of the petitioners' unmeritorious claims.
‣
It is true that in labor cases, technical rules are not necessarily fatal and they can be liberally applied. However, this
principle can only operate if, all things being equal, any doubt or ambiguity would be resolved in favor of labor. Should
the case be substantively unmeritorious, technicalities and limitations in procedural rules must be fully enforced.
SEE — General Milling Corp vs NLRC (2002)
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There was at least substantial compliance with, and that there was no attempt to ignore, the prescribed procedural
requirements.—Unlike the case of Melo vs. Court of Appeals where there was a complete failure to attach a
Certification of Non-forum Shopping, in this instance, however, petitioner complied with this procedural requirement
except that it was not accompanied by a board resolution or a secretary’s certificate that the person who signed it
was duly authorized by petitioner to represent it in the case. It would appear that the signatory of the certification was,
in fact, duly authorized as so evidenced by a board resolution attached to petitioner’s motion for reconsideration
before the appellate court. It could thus be said that there was at least substantial compliance with, and that there
was no attempt to ignore, the prescribed procedural requirements.
The rules of procedure are intended to promote, rather than frustrate, the ends of justice, and while the swift
unclogging of court dockets is a laudable objective, it, nevertheless, must not be met at the expense of substantial
justice. Technical and procedural rules are intended to help secure, not suppress, the cause of justice and a deviation
from the rigid enforcement of the rules may be allowed to attain that prime objective for after all the dispensation of
justice is the core reason for the existence of courts.
SEE — Altres vs Empleo, 594 Phil. 246 (2008)
‣
For the guidance of the bench and bar, the Court restates in capsule form the jurisprudential pronouncements . . .
respecting non-compliance with the requirement on, or submission of defective, verification and certification against
forum shopping:
1.
A distinction must be made between non-compliance with the requirement on or submission of defective
verification, and non-compliance with the requirement on or submission of defective certification against forum
shopping.
2.
As to verification, non-compliance therewith or a defect therein does not necessarily render the pleading fatally
defective. The court may order its submission or correction or act on the pleading if the attending circumstances
are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be
served thereby.
3.
Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of
the allegations in the complaint or petition signs the verifcation, and when matters alleged in the petition have
been made in good faith or are true and correct.
4.
As to certification against forum shopping, non-compliance therewith or a defect therein, unlike in verification, is
generally not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule
on the ground of “substantial compliance” or presence of “special circumstances or compelling reasons.”
5.
The certification against forum shopping must be signed by all the plaintiffs or petitioners in a case; otherwise,
those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstances,
however, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of action
or defense, the signature of only one of them in the certification against forum shopping substantially complies
with the Rule.
6.
Finally, the certification against forum shopping must be executed by the party-pleader, not by his counsel. If,
however, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special
Power of Attorney designating his counsel of record to sign on his behalf.
NON-COMPLIANCE WITH THE CERTIFICATE OF NON-FORUM SHOPPING
‣
NOTE — This is when you filed but it was a False certificate or you failed to comply with it. This Happens when the
certificate of non-forum shopping was false or the party failed to comply with the undertakings therein
‣
RULE — In case of non-compliance with the certificate of non-forum shopping or filing a false certificate, the
erring party will suffer the following consequences —
‣
1.
The case will be dismissed WITHOUT prejudice UNLESS the order of dismissal otherwise provides.
2.
Indirect contempt (failure to comply with order or process of court)
3.
Administrative and criminal cases (such as for falsification or perjury since you lied under oath)
If there are two pending cases, what case will be dismissed?
‣
Generally, the later case, but the first case may be the one dismissed if the later action is the more appropriate vehicle
for the ventilation of the issues between the parties. (UCPB vs Spouses Beluso 2007)
EFFECT OF WILFUL AND DELIBERATE FORUM SHOPPING
‣
NOTE — This is when you filed a false certificate and failed to comply with it deliberately
‣
RULE — In case of DELIBERATE non-compliance with the certificate of non-forum shopping or filing a false
certificate, the erring party will suffer the following consequences —
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1.
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The case will be summarily be dismissed WITH prejudice
‣
Means court can motu proprio dismiss it, no motion to dismiss and hearing are required.
‣
The acts of the party or his counsel must clearly constitute wilful and deliberate ground for dismissal
‣
Such as — If you file identical complaints in two courts
2.
Direct contempt
3.
Administrative and criminal cases
NOTE — Non- compliance with the certification against forum shopping is separate from and independent of the
avoidance of the act of forum shopping itself. There is a difference in the treatment between failure to comply with the
certification requirement and violation of the prohibition against forum shopping not only in terms of imposable sanctions
but also in the manner of enforcing them. The former constitutes sufficient cause for the dismissal without prejudice to the
filing of the complaint or initiatory pleading upon motion and after hearing, while the latter is a ground for summary
dismissal thereof and for direct contempt. (Abbot Laboratories v. Alcaraz 2013)
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RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
WHAT A PLEADING SHOULD GENERALLY CONTAIN
SECTION 1. In general. - Every pleading shall contain in a methodical and logical form, a plain, concise and direct
statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting
the statement of mere evidentiary facts. (1)
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and
concisely stated. (n)
‣
RULE — EVERY PLEADING SHALL CONTAIN IN A METHODICAL AND LOGICAL FORM, A PLAIN, CONCISE AND DIRECT STATEMENT
OF THE ULTIMATE FACTS ON WHICH THE PARTY PLEADING RELIES FOR HIS CLAIM OR DEFENSE
‣
‣
‣
It should NOT contain —
1.
Mere evidentiary facts
2.
Mere conclusions, whether of fact or law (because conclusions are not facts)
BUT — If the defense relied on is based on law, legal provisions may be cited
What are “ultimate facts”?
‣
The ultimate facts refer to the essential facts of the claim. A fact is essential if it cannot be stricken out without leaving
the statement of the cause of action inadequate
‣
The ultimate facts are the important and substantial facts which form the basis of the primary right of the plaintiff and
which make up the wrongful act or omission of the defendant. The ultimate facts do not refer to the details of
probative matter or to the particulars of evidence by which the material elements are to be established. They are the
principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests
ALTERNATIVE CAUSES OF ACTION OR DEFENSES
SECTION 2. Alternative causes of action or defenses. - A party may set forth two or more statements of a claim or
defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or
defenses.
When two or more statements are made in the alternative and one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2)
‣
RULE — A PARTY MAY SET FORTH TWO OR MORE STATEMENTS OF A CLAIM OR DEFENSE ALTERNATIVELY OR HYPOTHETICALLY,
EITHER IN ONE OR SEPARATE CAUSES OF ACTION OR DEFENSES
‣
This rule is permissive
‣
When two or more statements are made in the alternative and one of them if made independently would be sufficient,
the pleading is not made insufficient by the insufficiency of one or more of the alternative statements
‣
So, a party may plead two or more alternative reliefs based on one cause of action
‣
‣
Example — Action for specific performance and rescission can be alternative reliefs to a breach of contract
The rules recognize that the liability of the defendant may possibly be based on either one of two or more possible
causes of action.
‣
The plaintiff may, for example, believe that the liability of the carrier may be based either on a breach of contract of
carriage or on a quasi-delict, but he may not be certain which of the causes of action would squarely fit the set of
facts alleged in the complaint, although he is certain that he is entitled to relief.
‣
He may therefore, state his causes of action in the alternative.
‣
The rules in effect, also relieves a party from being compelled to choose only one cause of action.
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ALTERNATIVE CLAIMS BY PLAINTIFF
‣
What is the plaintiff’s remedy in cases where facts, essential to the plaintiff’s cause of action, are within the
knowledge of the defendant, but of which the plaintiff is so imperfectly informed that he cannot state with
certainty, even on information or belief?
‣
The plaintiff may state the facts within his knowledge with certainty, but to plead in the ALTERNATIVE the doubtful
facts which are wholly within the defendant’s knowledge, and call upon the defendant to make the full disclosure of
the facts.
ALTERNATIVE DEFENSES BY DEFENDANT
‣
RULE — Defendant has the right to set up negative defense in one cause of action and affirmative defense in
another in the same action.
‣
The affirmative matter in a separate defense does NOT operate as a withdrawal of a defense in another portion of his
answer.
‣
Those different defenses may be inconsistent with each other, but it is sufficient that each is consistent with itself.
CONDITIONS PRECEDENT
SECTION 3. Conditions precedent. - In any pleading a general averment of the performance or occurrence of all
conditions precedent shall be sufficient. (3)
‣
RULE — WHEN A CLAIM IS SUBJECT TO A CONDITION PRECEDENT, THE COMPLIANCE OF THE SAME MUST BE ALLEGED IN THE
PLEADING
‣
A general averment is sufficient
‣
Such as —
‣
‣
Barangay conciliation process
‣
A tender of payment is required before making a consignation
‣
Exhaustion of administrative remedies
‣
Earnest efforts toward a compromise must be undertaken when the suit is between members of the same family
‣
Arbitration may be a condition precedent when the contract between the parties provides for arbitration first before
recourse to judicial remedies.
NOTE — The failure to comply with a condition precedent is an independent ground for a motion to dismiss — “that a
condition precedent for filing the claim has not been complied with”
CAPACITY OF PARTIES
SECTION 4. Capacity. - 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.
A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly
within the pleader's knowledge. (4)
‣
Should facts showing the capacity of a party to sue or be sued be averred?
‣
YES. 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.
‣
NOTE — Remember that lack of capacity to sue or be sued is a ground for dismissal, either on the grounds of the
“plaintiff has no capacity to sue” or “the complaint states no cause of action” if the defendant has no capacity to be
sued.
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What if a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or
be sued in a representative capacity?
‣
He should do so by a SPECIFIC DENIAL, which should include such supporting particulars as are peculiarly within the
pleader’s knowledge.
1.
If the defendant wishes to raise an issue as to the plaintiff’s legal capacity to sue — He may file a motion to
dismiss on that ground, or set it up as an affirmative defense in the answer.
2.
If the defendant wishes to raise an issue as to his legal capacity to be sued — He may question the jurisdiction
of the court over his person.
‣
NOTE — In either case, the defendant may deny the allegation of capacity.
PLEADING INVOLVING FRAUD, MISTAKE, OR CONDITION OF THE MIND
SECTION 5. Fraud, mistake, condition of the mind. - In all averments of fraud or mistake, the circumstances constituting
fraud or mistake must be stated with particularity.
Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (5a)
WHAT MUST BE AVERRED WITH PARTICULARITY
‣
RULE — IF FRAUD OR MISTAKE IS TO BE ALLEGED IN THE PLEADINGS THE CIRCUMSTANCES CONSTITUTING IT MUST BE STATED
WITH PARTICULARITY
‣
It is not enough for the complaint to allege that he was defrauded by the defendant.
‣
The complaint must state with particularity the fraudulent acts of the adverse party.
‣
These particulars which would necessarily include the specific acts of fraud or mistake committed against the plaintiff
would help apprise the judge of the kind of fraud or mistake involved in the complaint.
‣
‣
Note that under the Civil Code of the Philippines, there are various types of frauds, each of which has its own legal
effects
What if the complaint fails to state fraud or mistake with particularity, should it be dismissed?
‣
NO. The failure to specifically allege the fraudulent acts does not constitute a ground for dismissal since such
defect can be cured by a bill of particulars. But, in cases governed by the Interim Rules of Procedure on IntraCorporate Controversies, however, a bill of particulars is a prohibited pleading. It is essential, therefore, for the
complaint to show on its face what are claimed to be the fraudulent corporate acts if the complainant wishes to
invoke the courts special commercial jurisdiction. (Reyes vs RTC of Makati 2008)
WHAT MAY BE AVERRED GENERALLY
‣
RULE — IF MALICE, INTENT, KNOWLEDGE OR OTHER CONDITION OF THE MIND OF A PERSON IS TO BE ALLEGED IN THE
PLEADINGS, IT MAY BE AVERRED GENERALLY
‣
Unlike in fraud or mistake, they need not be stated with particularity.
‣
The rule is borne out of human experience. It is difficult to state the particulars constituting these matters. Hence, a
general averment is sufficient.
PLEADING A JUDGMENT, OR DECISION
SECTION 6. Judgment. - In pleading a judgment or decision of a domestic or foreign court, judicial or quasi- judicial
tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing
jurisdiction to render it. (6)
‣
Under R131, S3, there is a presumption, though disputable, that “a court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful exercise of jurisdiction.
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ACTION OR DEFENSE BASED ON A WRITTEN INSTRUMENT OR DOCUMENT
SECTION 7. Action or defense based on document. - Whenever an action or defense is based upon a written instrument
or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy
thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy
may with like effect be set forth in the pleading. (7)
SECTION 8. How to contest such documents. - When an action or defense is founded upon a written instrument, copied
in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of
the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth
what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to
be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)
WHEN AN ACTION OR DEFENSE IS BASED UPON A WRITTEN INSTRUMENT OR DOCUMENT (ACTIONABLE DOCUMENTS)
‣
RULE — THE SUBSTANCE OF SUCH INSTRUMENT OR DOCUMENT SHALL BE SET FORTH IN THE PLEADING AND THE ORIGINAL
OR A COPY THEREOF SHALL BE ATTACHED TO THE PLEADING AS AN EXHIBIT
‣
‣
The attached document shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in
the pleading
Examples of Actionable Documents —
‣
In an action for collection of a sum of money, the actionable document would be the promissory note executed by the
defendant in favor of the plaintiff.
‣
In an action for foreclosure of a mortgage, the actionable document would be the deed of mortgage.
‣
On the other hand, if the defendant alleges that the debt has been paid, the receipt of payment issued by the
plaintiff would be the actionable document.
CONTESTING THE GENUINENESS AND DUE EXECUTION OF THE ACTIONABLE DOCUMENT
‣
How does a party contest the genuineness or due execution of an actionable document?
‣
He must —
1. Specifically deny the genuineness and due execution of such actionable document
2. He must do so under oath; and
3. Set forth what he claims to be the facts
‣
SEE — Permanent Savings Bank v. Velarde, G.R. No. 140608, September 23, 2004
‣
The genuineness and due execution of the actionable document must be specifically denied. Hence, when the
defendant merely states that the signature “seems to be his.” This is an admission of the document’s genuineness
and due execution
‣
A specific denial of the genuineness and due execution of the actionable document means that the
defendant must declare under oath that “he did not sign the document or that it is otherwise false or
fabricated”.
‣
‣
Neither does the statement of the answer to the effect that the instrument was procured by fraudulent
representation raise any issue as to its genuineness or due execution. On the contrary such a plea is an
admission both of the genuineness and due execution thereof, since it seeks to avoid the instrument upon a
ground not affecting either.
A mere specific denial of the actionable document is insufficient. The denial must be coupled with an oath.
‣
In current usage, this means that the denial must be verified. The absence of an oath will result in the implied
admission of the due execution and genuineness of the document
‣
BUT — an oath is NOT required when either —
1. The adverse party does not appear to be a party to the instrument (such as when he is a mere successor-ininterest)
2. When compliance with an order for an inspection of the original instrument is refused.
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FAILURE TO CONTEST AN ACTIONABLE DOCUMENT
‣
‣
RULE — THE GENUINENESS AND DUE EXECUTION OF THE INSTRUMENT SHALL BE DEEMED ADMITTED IF NOT CONTESTED (NOT
SPECIFICALLY DENIED UNDER OATH) BY THE ADVERSE PARTY
‣
BUT — the admission ONLY pertains to the document’s genuineness and due execution
‣
Genuineness means nothing more than the instrument is not spurious, counterfeit or of different import on its face
from the one executed
‣
Due execution means that it was done with authority
What are the consequences of the admission of genuine and due execution of an actionable document?
‣
‣
Certain defences are cut-off by the admission of genuiness and due execution. These are the effects when the
adverse party does not contest it —
1.
He waives the authenthication process. No need for proof of execution and authenticity with respect to the
documents
2.
He admits that he voluntarily signed the document or it was signed by another for him and with his authority
3.
He admits that at the time it was signed, it was in words and figures exactly as set out in the pleading of the party
relying upon it
4.
He admits that the document was delivered
5.
He admits that any formalities required by law, such as a seal, an acknowledgment or revenue stamp, which it
lacks, are waived by him. (Filipinas Textile Mills vs CA 2003)
6.
He effectively eliminates any defense relating to the authenticity and due execution of the document, e.g., that the
document was spurious, counterfeit, or of different import on its face as the one executed by the parties; or that
the signatures appearing thereon were forgeries; or that the signatures were unauthorized. (Permanent Savings vs
Velarde 2004)
BUT — he does NOT admit (Defenses NOT cut-off despite the implied admission of the genuineness and due
execution of the document) —
1. The true nature or true intention
2. Payment or non-payment
3. Want of consideration
4. Illegality of consideration
5. Usury
6. Fraud
7. Mistake
8. Compromise
9. Prescription
10. Estoppel
‣
These defenses are NOT inconsistent with the admission of the genuineness and due execution of the instrument
and are not therefore, barred. For example, in fraudulent misrepresentation, you admit that your signature is
genuine but you can contest “why” you signed the document.
PLEADING AN OFFICIAL DOCUMENT OR ACT
SECTION 9. Official document or act. - In pleading an official document or official act, it is sufficient to aver that the
document was issued or the act done in compliance with law. (9)
SPECIFIC DENIAL
SECTION 10. Specific denial. - A defendant must specify each material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial.
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Where a defendant desires to deny only a part of an averment, he 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 in the complaint, he shall so state, and this shall have the effect of a denial. (10a)
SECTION 11. Allegations not specifically denied deemed admitted. - Material averment in the complaint, other than those
as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied.
Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (1a, R9)
PURPOSE OF A SPECIFIC DENIAL
‣
The purpose of requiring the defendant to make a specific denial is to make him 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.
‣
The parties are compelled to lay their cards on the table
‣
NOTE — this is made by the defendant in his “answer” to the complaint or to the permissive counter-claim
KINDS OF SPECIFIC DENIAL
1. ABSOLUTE DENIAL — The defendant specifies each material allegation of fact the truth of which he does not admit and,
whenever practicable, sets forth the substance of the matters upon which he relies to support his denial.
‣
Example — “Defendant denies the truth of the allegations in par. 7 of the complaint alleging that he owes the plaintiff
P450,000.00, the truth of the matter being that it is the Plaintiff who owes the defendant the same amount.”
2. PARTIAL/QUALIFIED DENIAL — The defendant does not make a total denial of the material allegations in a specific
paragraph. In this type of denial, he denies only a part of the averment. If he chooses this type of denial, he specifies that
part the truth of which he admits and denies only the remainder.
‣
Example — In an action for damages, the defendant avers: “Defendant admits the allegations in paragraph 5 of the
complaint, that Plaintiff sustained injuries when his car collided with the herein Defendant’s car, but denies the
allegation that the collision occurred through Defendant’s fault.”
3. DISAVOWAL OF KNOWLEDGE — Defendant alleges that he “is without knowledge or information sufficient to form a
belief as to the truth of a material averment made in the complaint.
‣
‣
This also has the effect of a denial
‣
Be careful with this, the defendant must have a lack of capability to know whether or not the allegation are true or
false. This is not applicable if it is still within his knowledge in that he knows it is false. The allegations must be
completely beyond the defendant’s knowledge
‣
Example — Plaintiff alleges that he suffered besmirched reputation and sleepless nights and thus, claims moral
damages, the defendant can claim disavowal of knowledge because he cannot possibly know of whether this is true or
not. Also, for exemplary damages and attorney’s fees.
‣
BUT — If the averment was in fact within the knowledge of the defendant and he still disavows knowledge
(such that it is plainly within his knowledge), it is deemed admitted as a mere general denial.
‣
When the defendant alleges having no knowledge or information sufficient to form a belief as to the truth of the
allegations of the other party but such matters are plainly and necessarily within the defendant’s knowledge, a
claim of “ignorance or lack of information” will not be considered as a specific denial
‣
Defenses of “lack of knowledge” for “lack of privity” or “inability to recall because it happened a long time ago” are
insufficient defences
‣
Example — Mr. D signs a promissory note in favor of Mr. P. Since Mr. D failed to pay despite demand, suit was
brought against him. The complaint duly pleaded the promissory note as an actionable document. Mr. D denies the
alleged promissory note by averring lack of knowledge of the note. This averment appears to be one in bad faith
and shall be considered as an admission because it is absurd for Mr. D not to know of the promissory note he
himself signed
NOTE — A denial is not specific simply because it is so qualified by the defendant. A general denial does not become
specific by the use of the word “specifically.” Merely uttering “specific denial” is ineffective if the denial does not conform
to the methods of denial provided for by the Rules of Court. It amounts to an admission under Rule 8, Sec. 11 of the
Rules of Court. There is no need for the other party to present evidence to support its allegations because of petitioner’s
implied admission thereof
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RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
The use of the word “specific” does not make it specific. The blanket denial is actually a general denial which in effect,
is an admission.
He cannot just say “Defendant specifically denies all the material allegations of the complaint”. In making a specific
denial, reference must be made to the paragraph sought to be denied
NEGATIVE PREGNANT
‣
A negative pregnant does not qualify as a specific denial. It is conceded to be actually an admission
‣
In a pleading, it is a negative implying also an affirmative and which although is stated in a negative form really admits the
allegations to which it relates
‣
Example — A complaint alleges: “Plaintiff extended a loan to Defendant in the amount of P500,000 on July 27, 2006 in
Baguio City.” The defendant in his answer alleges: “Defendant specifically denies that Plaintiff extended a loan to
Defendant in the amount of P500,000 on July 27, 2006 in Baguio City.”
‣
The answer is a mere repetition of the allegations made in the complaint. The answer is vague as to what it really
denies. Is it the existence of a loan that is denied? Is it the amount? The date? The place? The effect of this kind of
denial is an admission.
WHEN A SPECIFIC DENIAL MUST BE COUPLED WITH AN OATH
‣
As a rule, a negative defense is sufficient if made in the form of a specific denial of the material allegations alleged in the
pleading of the claimant.
‣
There are however, instances when a mere specific denial is not sufficient for a negative defense. In certain cases, the
specific denial must be made under oath and in these instances a mere specific denial is not enough to produce the kind
of denial under the Rules. These are —
1. A denial of an actionable document (R8, S8)
‣
See Sec. 8 of this Rule for more details
2. A denial of allegations of usury in a complaint to recover usurious interest (R8, S11)
‣
Allegations of usury will be deemed admitted if not denied under oath. However, not every allegation of usury
requires a denial under oath.
‣
The allegations of usury which requires a specific denial under oath must be:
1. Allegations of usury in a complaint (not allegations of usury in the answer)
2. The complaint is filed to recover usurious interests
‣
Note that the Usury Law is currently suspended
CONSEQUENCES WHEN ALLEGATIONS ARE NOT SPECIFICALLY DENIED
‣
RULE — MATERIAL AVERMENTS IN THE COMPLAINT SHALL BE DEEMED ADMITTED WHEN NOT SPECIFICALLY DENIED
‣
EXCEPT — The following are nonetheless NOT admitted even if they are not specifically denied —
1. The amount of unliquidated damages
2. Immaterial averments (allegations by way of anticipation of defense or conclusions of law)
‣
‣
Conclusions in a pleading which do not have to be denied at all because only ultimate facts need be alleged in
a pleading. Non-material averments or allegations are not deemed admitted because only material allegations
have to be denied
Remember that 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.
‣
If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions
appear in the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under Rule 34.
‣
An admission in a pleading cannot be controverted by the party making such admission because the admission is
conclusive as to him.
‣
All proofs submitted by him contrary thereto or inconsistent therewith should be ignored whether an objection is
interposed by a party or not
‣
Said admission is a judicial admission, having been made by a party in the course of the proceedings in the same
case, and does not require proof.
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RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
A party who desires to contradict his own judicial admission may do so only by either of two ways —
1. By showing that the admission was made through palpable mistake, or
2. That no such admission was made
STRIKING OUT OF PLEADING OR MATTER CONTAINED THEREIN
SECTION 12. Striking out of pleading or matter contained therein. - Upon motion made by a party before responding to a
pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days
after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading
to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out
therefrom. (5, R9)
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RULE 9: EFFECT OF FAILURE TO PLEAD
DEFENSES AND OBJECTIONS NOT PLEADED
SECTION 1. 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. (2a)
‣
RULE — DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO DISMISS OR IN THE ANSWER ARE DEEMED
WAIVED
‣
‣
The waivable grounds should be raised in the first motion to dismiss (if ever subsequent ones are filed as
supplement), and not in supplemental motions to dismiss. If they are raised only in a supplemental motion to dismiss,
it is deemed waived. (Anunciacion v Bocanegra, 2009)
‣
RATIONALE — The spirit that surrounds the foregoing statutory norm is to require the party filing a pleading or motion
to raise all available exceptions for relief during the single opportunity so that single or multiple objections may be
avoided. (Aquino vs Aure 2008)
‣
SEE — Rule 16 for the grounds to motion to dismiss, all those grounds will be waived if not raised in the motion to
dismiss or in the answer
‣
Also, the following grounds are also deemed waived if not timely raised —
1.
Lack or defect in the verification requirement (S.C. Megaworld Construction v. Parada 2013)
2.
Lack or defect in the certificate of non-forum shopping requirement (S.C. Megaworld Construction v. Parada 2013)
3.
Failing to refer the case to the lupon for barangay conciliation (in summary procedure) (Aquino vs Aure 2008)
EXCEPT — THESE GROUNDS NOT WAIVED EVEN IF NOT PLEADED IN THE MTD OR ANSWER
1. Lack of jurisdiction over the subject-matter
2. Litis Pendentia
3. Res judicata
4. Statute of limitations/ Prescription
‣
‣
These are the non-waivable grounds
NOTE — These grounds are also the 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. These are the ONLY grounds where the court may dismiss motu proprio
FAILURE TO SET-UP THE COMPULSORY COUNTER-CLAIM OR CROSS-CLAIM
SECTION 2. Compulsory counterclaim, or cross-claim not set up barred. - A compulsory counterclaim, or a cross-claim,
not set up shall be barred. (4a)
FAILURE OF DEFENDANT TO SET-UP THE COMPULSORY COUNTER-CLAIM OR CROSS-CLAIM
‣
RULE — A COMPULSORY COUNTERCLAIM, OR A CROSS-CLAIM, NOT SET UP SHALL BE BARRED
‣
EXCEPT — if you still want to set up a compulsory counterclaim or counterclaim after failing to, it can still be set up
WITH LEAVE OF COURT, before judgment by filing —
1. An amended answer — provided that the counter claim or cross claim already existed at the time the original
answer was filed, but due to oversight, inadvertence or excusable neglect, it was not set up.
2. A supplemental answer — if the counterclaim or cross-claim matures or is acquired after the original answer is
filed.
‣
NOTE — Permissive counterclaims are NOT included because they can be set up separately and thus, are not barred.
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EFFECTS OF THE FAILURE TO FILE ANSWER; DEFAULT OF DEFENDANT
SECTION 3. Default; declaration of . - 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 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. (1a, R18)
a. Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings but not to take part
in the trial. (2a, R18)
b. Relief from order of 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 failure to answer was due to fraud,
accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default
may be set aside on such terms and conditions as the judge may impose in the interest of justice. (3a, R18)
c. 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 to do so, the court shall try the case against all upon the
answers thus filed and render judgment upon the evidence presented. (4a, R18)
d. Extent of relief to be awarded. - A judgment rendered against a party in default shall not exceed the amount or be
different in kind from that prayed for nor award unliquidated damages. (5a, R18)
e. Where no defaults 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 prosecuting attorney 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. (6a, R18)
NATURE OF DEFAULT
‣
Default is a procedural concept that occurs when the defending party fails to file his answer within the reglamentary
period
‣
It is different from the failure of the defendant to attend either the pre-trial or the trial.
‣
The failure of the defendant to appear at the pre-trial while a cause for the court to order the plaintiff to present his
evidence ex parte and for the court to render judgment on the basis thereof, is not a ground for a default. (R18, S5)
‣
Under the Rules, this consequence is not to be called a declaration of default.
‣
The failure of the defendant to attend the hearings for the presentation of the evidence of the adverse party amounts
not to a default, but to a waiver of the defendant’s right to object to the evidence presented during such hearings and
to cross-examine the witnesses presented.
‣
It is error for the court to issue an order not denominated as an order of default but provides for the application of the
effects of default as when the defendant who has filed an answer is not allowed to present evidence because of her
absence during the presentation of evidence by the plaintiff
‣
It is error to declare a defendant in default where an answer has already been filed
‣
NOTE — The current judicial trend is to avoid defaults and thus, courts are enjoined to be liberal in setting aside
orders of default
‣
The issuance of orders of default should be the exception rather than the rule and to be allowed only in clear cases of
obstinate refusal by the defendant to comply with the orders of the trial court
‣
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 general rule is that courts should proceed with deciding cases on the merits and set aside orders of default as
default judgments are "frowned upon.” As much as possible, cases should be decided with both parties "given every
chance to fight their case fairly and in the open, without resort to technicality.” (Lui Enterprises vs Zuellig 2014)
‣
The Supreme Court has often admonished courts to be liberal in setting aside orders of default as default judgments
are frowned upon; Since the rules of procedure are mere tools designed to facilitate the attainment of justice, the
Supreme Court is empowered to suspend its operation when the rigid application thereof tends to frustrate rather than
promote the ends of justice. Suits should as much as possible be decided on the merits and not on technicalities.
(Diaz vs Diaz 2000)
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DEFAULT OF DEFENDANT
‣
RULE — IF THE DEFENDING PARTY FAILS TO ANSWER WITHIN THE TIME ALLOWED, THE COURT SHALL DECLARE THE DEFENDING
PARTY IN DEFAULT
‣
REQUISITES —
1. There must be a motion to declare the defending party in default filed by the claiming party
‣
The present rule on default requires the filing of a motion and notice of such motion to the defending party, 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.
‣
The court has NO authority to motu proprio declare the defendant in default. A motion to declare the defending
party must be filed by the claiming party before a declaration of default is made by the court.
2. Summons has been validly and previously served upon him
‣
See Rule 14 on service of summons
‣
This presupposes that court has validly acquired jurisdiction over the person of the defending party either by
service of summons or voluntary appearance
3. The defending party must have failed to file his answer within the reglamentary period or within the period
fixed by the court
‣
Note that it is within the sound discretion of the trial court to permit the defendant to file his answer and to 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 (R11, S11)
‣
So the rules are not strict for the defendant to file his answer, he can still do so even if the period lapses as
long as allowed by the court. Declaring he defendant in default is strongly discouraged. Default judgments are
generally disfavored
‣
Different periods for filing answer, depending on mode of service of summons
‣
See R6, S4
4. There must be proof of the failure to file the answer
5. The defending party must be notified of the motion to declare him in default
‣
The present rule expressly requires that the motion of the claiming party should be with notice to the defending
party.
‣
The purpose of a notice of a motion is to avoid surprises on the opposite party and to give him time to study and
meet the arguments. The notice of a motion is required when the party has the right to resist the relief sought by
the motion and principles of natural justice demand that his right be not affected without an opportunity to be
heard.
6. There must be a hearing set for the motion to declare the defendant in default.
‣
‣
Note that except for motions which the court may act upon without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the applicant” (R15, S4)
BUT — The rule is that a default order and consequently a default judgment is triggered by the failure of the
defending party to file the required answer. By way of exception, a judgment by default may be rendered in the
following cases despite an answer having been filed —
1. If a disobedient party refuses to obey an order requiring him to comply with the various modes of discovery (R29,
S3c)
2. If a party or officer or managing agent of a party willfully fails to appear before the officer who is to take his
deposition or a party fails to serve answers to interrogatories (R29, S5)
EFFECTS OF ORDER OF DEFAULT
1. THE COURT SHALL PROCEED TO RENDER JUDGMENT GRANTING THE CLAIMANT SUCH RELIEF AS HIS PLEADING MAY WARRANT
(THIS IS WITHOUT EVIDENCE PRESENTED)
‣
EXCEPT — when the court in its discretion requires the claimant to submit evidence ex parte.
‣
‣
Such reception of evidence may be delegated to the clerk of court
The choice of which action to take is a matter of judicial discretion. Court has discretion wether to require evidence or
not
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2. THE PARTY DECLARED IN DEFAULT LOSES HIS STANDING IN COURT. THE LOSS OF SUCH STANDING PREVENTS HIM FROM TAKING
PART IN THE TRIAL
‣
‣
Defendant in default CANNOT take part in the trial as a defendant
‣
BUT — he shall be entitled to notice of subsequent proceedings and he may still participate in the trial, but only as a
witness.
NOTE — A declaration of default is NOT an admission of the truth or the validity of the plaintiffs claims
‣
A judgment of default does not imply a waiver of rights except that of being heard and presenting evidence in
defendant’s favor.
‣
It does not imply admission by the defendant of the facts and causes of action of the plaintiff, because the codal
section requires the latter to adduce evidence in support of his allegations as an indispensable condition before final
judgment could be given in his favor.
‣
Nor could it be interpreted as an admission by the defendant that the plaintiffs causes of action find support in the law
or that the latter is entitled to the relief prayed for
‣
A declaration of default is not an admission of the truth or the validity of the plaintiff’s claims. The claimant must still
prove his claim and present evidence. In this sense the law gives defaulting parties some measure of protection
because plaintiffs, despite the default of defendants, are still required to substantiate their allegations in the complaint.
The judgment of default against defendants who have not appeared or filed their answers does not imply a waiver of
all their rights, except their right to be heard and to present evidence in their favor. Their failure to answer does not
imply their admission of the facts and the causes of action of the plaintiffs, because the latter are required to adduce
evidence to support their allegations. (Vladson Enterprises vs CA)
EFFECT OF PARTIAL DEFAULT (IN CASE OF SEVERAL DEFENDANTS, SOME DEFAULTING, SOME NOT)
‣
RULE — When a pleading asserting a claim states a common cause of action against several defending parties,
some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus
filed and render judgment upon the evidence presented
‣
BUT — This rule does NOT apply when the defenses are personal
‣
Under this rule, the plaintiff will not be given the chance to present evidence ex parte since the other defendants are
not in default.
‣
Means the non-defaulting defendants can still present evidence but the defaulting defendants cannot. However, the
defaulting defendants can rely on the evidence presented by the non-defaulting defendants
REMEDIES OF THE DEFENDANT DECLARED IN DEFAULT
1.
Motion to set aside the order of default — at any time after discovery thereof and before judgment on the ground that
the defendants failure to file an answer was due to fraud, accident, mistake or excusable neglect and that the defendant
has a meritorious defense
2.
Motion for new trial — within 15 days from receipt of judgment by default, if judgment had already been rendered
before the defendant discovered the default, but before said judgment has become final and executory
3.
Appeal — within 15 days from receipt of judgment by default
4.
Petition for relief from judgment — within 60 days from notice of judgment and within 6 months from entry thereof
5.
Petition for certiorari under Rule 65 — in exceptional circumstances where there is a grave abuse of discretion
amounting to lack or excess of jurisdiction
REMEDIES OF THE DEFENDANT DECLARED IN DEFAULT (EXPOUNDED)
‣
NOTE — The court discussed these remedies in the landmark case of Lina vs CA 1985 cited in Cerezo vs Tuazon
1. REMEDY BEFORE JUDGMENT
Motion to set aside order of 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 failure to answer was
due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense.
a.
‣
REQUISITES —
1. Motion under oath
2. Filed before judgment
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3. The defendant must have been prevented from filing his answer due to fraud, accident, mistake or excusable
negligence (FAME)
‣
NOTE — “Excusable negligence” is one which ordinary diligence and prudence could not have guarded
against.
4. He has a meritorious defense
Default “deemed lifted” even without motion to lift — There are cases when the defendant has been declared in
default and yet the court would later grant a motion to file a responsive pleading from such defaulting defendant,
even without a motion to lift or set aside order of default, in such cases, the Supreme Court has held that it is as if
the trial court had lifted the default by implication.
‣
‣
SEE — Republic v. Sandiganbayan, G.R. No. 148154, December 17, 2007
‣
Where the defendants failed to file a motion to lift the order of default. Nevertheless, defendants later filed a
motion for leave to file a responsive pleading, three motions for extensions to file an answer, and a motion
for bill of particulars all of which were granted by the anti-graft court. Given the existence of the default
order then, what is the legal effect of the granting of the motions to file a responsive pleading and bill of
particulars? SC held that the effect is that the default order against the former president is deemed lifted.
‣
While it is true that there was no positive act on the part of the court to lift the default order because there
was no motion nor order to that effect, the anti-graft courts act of granting respondent the opportunity to
file a responsive pleading meant the lifting of the default order on terms the court deemed proper in the
interest of justice. It was the operative act lifting the default order and thereby reinstating the position of the
original defendant whom respondent is representing, founded on the courts discretionary power to set
aside orders of default.
‣
It is noteworthy that a motion to lift a default order requires no hearing; it need be under oath only and
accompanied by an affidavit of merits showing a meritorious defense. And it can be filed at any time after
notice thereof and before judgment. Thus, the act of the court in entertaining the motions to file a
responsive pleading during the pre-trial stage of the proceedings effectively meant that respondent has
acquired a locus standi in this case. That he filed a motion for a bill of particulars instead of an answer does
not pose an issue because he, as party defendant representing the estate, is allowed to do so under the
Rules of Court to be able to file an intelligent answer. It follows that petitioners filing of a bill of particulars in
this case is merely a condition precedent to the filing of an answer.
‣
Indeed, failure to file a motion to lift a default order is not procedurally fatal as a defaulted party can even
avail of other remedies mentioned above.
2. REMEDY AFTER JUDGEMENT BUT BEFORE IT BECOMES FINAL AND EXECUTORY
a.
Motion for New Trial — If the 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 under Rule 37
b.
Appeal — He may also appeal from the judgment as being contrary to the evidence or the law
‣
A defendant party declared in default retains the right to appeal from the judgment by default on the ground that
the plaintiff failed to prove the material allegations of the complaint, or that the decision is contrary to law, even
without need of the prior filing of a motion to set aside the order of default. (Martinez vs Republic 2006)
‣
What is the downside of availing of an appeal instead of the other remedies?
‣
With an appeal, however, the defendant has no right to present evidence on his or her behalf and can only
appeal the judgment for being contrary to plaintiff’s evidence or the law. Compare this with the others
remedies where upon the grant of a motion to set aside order of default, motion for new trial, or a petition for
relief from judgment, the defendant is given the chance to present his or her evidence against that of
plaintiff’s. Similar to an appeal, a petition for certiorari does not allow the defendant to present evidence on his
or her behalf. The defendant can only argue that the trial court committed grave abuse of discretion in
declaring him or her in default. Thus, should a defendant prefer to present evidence on his or her behalf,
he or she must file either a motion to set aside order of default, motion for new trial, or a petition for
relief from judgment, and NOT an appeal nor a petition for certiorari. (Lui Enterprises vs Zuellig Pharma
Corp. 2014)
3. REMEDY AFTER THE JUDGEMENT BECOMES FINAL AND EXECUTORY
‣
4.
Petition for relief from judgment under Rule 38 — based on fraud, accident, mistake, or excusable negligence
(FAME)
REMEDY IF THERE IS GRAVE ABUSE OF DISCRETION
‣
Petition for Certiorari under Rule 65 — Such as where the defendant has, been wrongly or improvidently declared in
default, as when a timely answer has been served and filed, the court can be considered to have acted with grave
abuse of discretion amounting to lack of jurisdiction, an act correctible by a petition for certiorari under Rule 65.
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How should these remedies be availed of?
‣
SEE — Lui Enterprises vs Zuellig Pharma, G.R. No. 193494, March 7, 2014
‣
The remedies of the motion to set aside order of default, motion for new trial, and petition for relief from judgment
are mutually exclusive, not alternative or cumulative. This is to compel defendants to remedy their default at
the earliest possible opportunity. Depending on when the default was discovered and whether a default
judgment was already rendered, a defendant declared in default may avail of only one of the three
remedies.
‣
Thus, if a defendant discovers his or her default before the trial court renders judgment, he or she shall file a
motion to set aside order of default. If this motion to set aside order of default is denied, the defendant declared in
default cannot await the rendition of judgment, and he or she cannot file a motion for new trial before the judgment
becomes final and executory, or a petition for relief from judgment after the judgment becomes final and executory.
‣
Also, the remedies against default become narrower and narrower as the trial nears judgment. The defendant
enjoys the most liberality from this court with a motion to set aside order of default, as he or she has no default
judgment to contend with, and he or she has the whole period before judgment to remedy his or her default.
EXTENT OF RELIEF TO BE AWARDED IN CASE OF A JUDGMENT BY DEFAULT
‣
RULE — A judgment rendered against a party in default shall NOT exceed the amount or be different in kind from
that prayed for NOR award unliquidated damages
‣
Even if the judge orders more evidence to be presented, the award should still not exceed the amount prayed for.
‣
Unliquidated damages not allowed since there is no evidence presented to support it
‣
The court acts in excess of jurisdiction if it awards an amount beyond the claim made in the complaint or beyond that
proved by the evidence. (Republic vs Hidalgo 2007)
‣
The trial court is not allowed by the Rules to receive evidence that tends to show a relief not sought or specified in the
pleadings. The plaintiff cannot be granted an award greater than or different in kind from that specified in the
complaint. (Vladson Enterprises vs CA)
WHEN DEFAULTS ARE NOT ALLOWED
1. Annulment of marriage
2. Declaration of nullity of marriage
3. Legal separation
4. Motion to declare defendant in default is also a prohibited pleading in Summary Procedure and Small Claims cases
WHEN THE EFFECTS OF DEFAULT ARE APPLIED
‣
‣
The effects of default are followed only in three instances —
1.
When there is an actual default for failure to file a responsive pleading
2.
Failure to appear in the pre-trial conference or file and serve pre-trial briefs (as-in default)
3.
Refusal to comply with modes of discovery under the circumstance in Sec. 3(c), Rule 29.
What if a party fails to attend the hearings, is that a ground for a declaration of actual default or “as-in” default?
‣
NO. SEE — Monzon vs Relova, G.R. No. 171827, September 17, 2008
‣
Failure to file a responsive pleading within the reglementary period, and not failure to appear at the hearing, is
the sole ground for an order of default, except the failure to appear at a pre-trial conference wherein the
effects of a default on the part of the defendant are followed, that is, the plaintiff shall be allowed to present
evidence ex parte and a judgment based thereon may be rendered against the defendant
‣
Mere non-appearance of defendants at an ordinary hearing and to adduce evidence does not constitute default,
when they have already filed their answer to the complaint within the reglementary period. It is error to default a
defendant after the answer had already been filed. It should be borne in mind that the policy of the law is to have
every litigants case tried on the merits as much as possible; it is for this reason that judgments by default are
frowned upon.
‣
Does this mean that defendants can get away with failing to attend hearings despite due notice? No, it will not. We
agree with petitioner that such failure to attend, when committed during hearing dates for the presentation of the
complainants evidence, would amount to the waiver of such defendants right to object to the evidence
presented during such hearing, and to cross-examine the witnesses presented therein. However, it would not
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amount to a waiver of the defendants right to present evidence during the trial dates scheduled for the reception of
evidence for the defense. It would be an entirely different issue if the failure to attend of the defendant was on a
hearing date set for the presentation of the evidence of the defense, but such did not occur in the case at bar.
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RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
AMENDMENT OF PLEADINGS
SECTION 1. Amendments in general. - Pleadings may be amended by adding or striking out an allegation or the name of
any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any
other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities,
and in the most expeditious and inexpensive manner. (1)
‣
When is an amendment proper?
‣
They are proper in order to allege facts which occurred prior to the filing of the original pleadings, but which for some
reason, such as oversight, inadvertence, or subsequent discovery, were not alleged therein
‣
‣
‣
‣
NOTE — Compare this with Supplemental Pleadings which are proper in order to allege facts which occurred
AFTER the filing of the original pleadings.
What are the kinds of amendments as to whether leave of court is required?
1.
Amendments as a matter of right — amendment is allowed and court is compelled to accept it
2.
Amendments with leave of court — amendment is subject to the discretion of the court
How do you amend pleadings?
‣
When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed. (Rule 10, Sec. 7)
‣
Pleadings may be amended by —
1.
Adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party
or a mistaken or inadequate allegation or description in any other respect — so that the actual merits of the
controversy may speedily be determined, without regard to technicalities, and in the most expeditious and
inexpensive manner. (Rule 10, Sec. 1)
2.
Submitting an entirely new pleading which effectively supersedes the pleading it amends (substantial
amendments) (Rule 10, Sec. 3)
3.
Summary correction of clearly clerical or typographical errors through a formal amendment (Rule 10, Sec 4)
4.
Amendments to conform to the evidence (Rule 10, Sec. 5)
What is the policy with regard to allowing amendments?
‣
The courts should be liberal in allowing amendments to pleadings to avoid a multiplicity of suits and in order that the
real controversies between the parties are presented, their rights determined, and the case decided on the merits
without unnecessary delay. This liberality is greatest in the early stages of a lawsuit, especially in this case where the
amendment was made before the trial of the case, thereby giving the petitioners all the time allowed by law to answer
and to prepare for trial. Furthermore, amendments to pleadings are generally favored and should be liberally allowed
in furtherance of justice in order that every case, may so far as possible, be determined on its real facts and in order to
speed up the trial of the case or prevent the circuity of action and unnecessary expense. That is, unless there are
circumstances such as inexcusable delay or the taking of the adverse party by surprise or the like, which might justify
a refusal of permission to amend. (Tiu vs PBCOM 2009)
AMENDMENTS A MATTER OF RIGHT
SECTION 2. Amendments as a matter of right. - A party may amend his pleading once as a matter of right at any time
before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a)
‣
RULE — A PARTY MAY AMEND HIS PLEADING ONCE AS A MATTER OF RIGHT AT ANY TIME BEFORE A RESPONSIVE PLEADING IS
SERVED
‣
BUT — in the case of a reply, at any time within ten (10) days after it is served.
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RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
Thus, before an answer is served on the plaintiff, the latter may amend his complaint as a matter of right. The
defendant may also amend his answer, also as a matter of right, before a reply is served upon him
‣
All you need is a “notice to amend”. You can amend both in form or substance.
‣
Any subsequent amendments after the service of a responsive pleading or after 10 days after filing a reply needs
leave of court.
Parties can only amend as a matter of right ONCE. — Any subsequent amendment afterwards, even before a
responsive pleading is served, needs leave of court.
‣
‣
‣
YES if the dismissal is not yet final. The plaintiff may file an amended complaint even after the original complaint was
ordered dismissed if the order is not yet final and the amendment is before the answer.
‣
So, an amendment to the complaint sought to be made one month after notice of the order dismissing the
complaint can NO longer be allowed because the order of dismissal has already become final due to the failure to
perfect an appeal.
‣
As a rule, the aggrieved party must perfect his appeal within the period as provided for by the law. The rule is
mandatory in character. A party’s failure to comply with the law will result in the decision becoming final and
executory and, as such, can no longer be modified or reversed.
‣
Thus, it is beyond the power or jurisdiction of the court which rendered the decision or order to amend or revoke
the same after the lapse of the fifteen-day reglementary period to file an appeal
What is the party’s remedy when the Court refuses to admit an amended pleading when its exercise is a matter of
right?
‣
‣
NO. A motion to dismiss is NOT a responsive pleading. If a motion to dismiss is filed, an amendment to the complaint
would still be a matter of right during the pendency of the motion to dismiss. Such a motion is not a responsive
pleading and its filing does not preclude the exercise of the plaintiff’s right to amend his complaint
What is a motion to dismiss was granted by the trial court, can the plaintiff still amend his complaint?
‣
‣
Sec. 2 refers to an amendment made before the trial court, not to amendments before the Court of Appeals. The
Court of Appeals is vested with discretion to admit or deny amended petitions filed before it
Is a “motion to dismiss” considered a responsive pleading?
‣
‣
Hence, even if no responsive pleading has yet been served, if the amendment is subsequent to a previous
amendment made as a matter of right, the subsequent amendment must be with leave of court
Petition for Mandamus under Rule 65, because the trial court’s duty to admit an amended complaint made as a matter
of right is purely ministerial.
Can the amendment of pleadings cover a substantial changes or alterations in the cause of action?
‣
YES, provided that the original cause of action existed at the time the complaint was filed. In this case, the
amendment can still be a matter of right or with leave of court, depending on whether a responsive pleading has been
filed or not
‣
‣
NOTE — remember that every action must be based on an existing cause of action, this defect CANNOT be cured
by amendment. (Turner vs Lorenzo Shipping 2010)
SEE — PAGCOR v. Lopez, A.M. RTJ-04-1848, October 25, 2005 citing Valenzuela vs. CA
‣
The Court finds no gross ignorance of law committed by respondent when he admitted the amended complaint
notwithstanding that such amended complaint substantially altered the cause of action of plaintiffs FILGAME and
BELLE. This is allowed under Section 3, Rule 10 of the Rules of Court
‣
As held in Valenzuela vs. CA, Interestingly, Section 3, Rule 10 of the 1997 Rules of Civil Procedure amended the
former rule in such manner that the phrase "or that the cause of action or defense is substantially altered" was
stricken-off and not retained in the new rules. The clear import of such amendment in Section 3, Rule 10 is
that under the new rules, "the amendment may (now) substantially alter the cause of action or defense."
This should only be true, however, when despite a substantial change or alteration in the cause of action or
defense, the amendments sought to be made shall serve the higher interests of substantial justice, and
prevent delay and equally promote the laudable objective of the rules which is to secure a "just, speedy and
inexpensive disposition of every action and proceeding.
‣
In this case, the original complaint filed by the plaintiffs was for specific performance and injunction with prayer for
damages and for TRO and writ of preliminary injunction against complainant while the amended complaint was for
recovery of sum of money. Such amendment to the original complaint was filed by plaintiffs FILGAME and BELLE
after the Supreme Court decision declared that complainant could not enter into a joint agreement with other
corporations to operate the Jai-Alai, and that the Agreement dated June 17, 1999 entered into between
complainant and the plaintiffs is null and void. However, since plaintiffs had provided funds for complainants preoperating expenses and working capital, plaintiffs had to file an amended complaint which seeks the recovery of
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their expenses. Although the amended complaint substantially changed the cause of action of plaintiffs FILGAME
and BELLE, the admission thereof by respondent is allowed under Section 3, Rule 10 and jurisprudence.
‣
‣
SALVADOR — If you amend your complaint and the amount of the claim changes, such as if it increased, then you
have to pay filing fees within a reasonable period/reglementary period and the proper prescriptive period.
Is an amendment which substantially changes the cause of action considered a new action?
‣
‣
YES. SEE — Versoza vs CA (1998)
‣
For purposes of determining the commencement of a suit, the original complaint is deemed abandoned and
superseded by the amended complaint only if the amended complaint introduces a new or different cause of
action or demand. An amendment to a complaint which introduces a new or different cause of action, making a
new or different demand, is equivalent to a fresh suit upon a new cause of action, and the statute of limitations
continues to run until the amendment is filed. The Court held that “the suit will be deemed to have been
commenced upon the date of amendment
‣
It follows that when the amended complaint does not introduce new issues, causes of action, or demands, the suit
is deemed to have commenced on the date the original complaint was filed, not on the date of the filing of the
amended complaint. In other words, for demands already included in the original complaint, the suit is deemed to
have commenced upon the filing of such original complaint. In short, for purposes of determining the
commencement of a suit, the original complaint is deemed abandoned and superseded by the amended
complaint only if the amended complaint introduces a new or different cause of action or demand.
‣
It has been held that “an amendment which merely supplements and amplifies the facts originally alleged relates
back to the date of the commencement of the action and is not barred by the statute of limitations, the period of
which expires after service of the original complaint but before service of amendment.” It is the actual filing in court
that controls and not the date of the formal admission of the amended pleading.
BUT — An amendment will not be considered as stating a new cause of action if the facts alleged in the amended
complaint show substantially the same wrong with respect to the same transaction, or if what are alleged refer to the
same matter but are more fully and differently stated, or where averments which were implied are made in expressed
terms, and the subject of the controversy or the liability sought to be enforced remains the same. (ARB Construction
vs Molina 2000)
AMENDMENT WITH LEAVE OF COURT
SECTION 3. Amendments by leave of court. - Except as provided in the next preceding section, substantial amendments
may be made only upon leave of court.
But such leave may be refused if it appears to the court that the motion was made with intent to delay.
Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to
the adverse party, and an opportunity to be heard. (3a)
‣
RULE — IN THE FOLLOWING CASES, THE PARTIES NEED LEAVE OF COURT IN AMENDING THEIR PLEADINGS —
1. After the service of the responsive pleading (Rule 10, Sec. 2)
‣
A plaintiff cannot, after defendant’s answer, amend his complaint by changing the cause of action or adding a new
one without previously obtaining leave of court.
‣
After a responsive pleading is filed, an amendment to the complaint may be substantial and will correspondingly
require a substantial alteration in the defenses of the adverse party. The amendment of the complaint is not only
unfair to the defendant but will cause unnecessary delay in the proceedings. Leave of court is thus, required. On
the other hand, where no responsive pleading has yet been served, no defenses would be altered. The
amendment of the pleading will not then require leave of court
‣
What if the amendment is substantial but it is sought to be amended before a responsive pleading is filed?
(Note that Sec. 3 provides that substantial amendments may only be made with leave of court it did not
distinguish whether before or after a responsive pleading is filed)
‣
The amendment is still a matter of right — The general rule on substantial amendments is embodied in Sec. 3
of Rule 10. The rule provides that “substantial amendments may be made only upon leave of court.” This
general rule is however, by the very tenor of Sec. 3 of Rule 10, subject to Sec. 2 of Rule 10 which in turn
governs an amendment as a matter of right. Under the latter provision, a party may amend his pleading once
as a matter of right at any time before a responsive pleading is served, or in the case of a reply, at any time
within ten (10) days after it is served. At this stage, a party has the absolute right to amend his pleading
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substantially as when he introduces a new cause of action or a change in theory. In other words, the
amendment at this stage may be made as a matter of right even if the amendment is substantial.
‣
What if only some of the defendants have filed responsive pleadings, and the others have not?
‣
Where some but not all of the defendants have answered, plaintiffs may amend their complaint once, as a
matter of right, in respect to claims asserted solely against the non-answering defendants, but not as to claims
asserted against the other defendants. (Republic vs Africa 2007)
‣
Where some but not all the defendants have answered, plaintiffs may amend their Complaint once, as a matter
of right, in respect to claims asserted solely against the non-answering defendants, but not as to claims
asserted against the other defendants. After a responsive pleading has been filed, an amendment may be
rejected when the defense is substantially altered since such amendment does not only prejudice the rights of
the defendant but also delays the action. (Siasoco vs CA 1999)
2. Before the responsive pleading is served, but the right to amend has already been exercised (Rule 10, Sec. 2)
3. If what is sought to be amended is a reply, if 10 days has passed after it is served (Rule 10, Sec. 2)
FORMAL AMENDMENTS
SECTION 4. Formal amendments. - A defect in the designation of the parties and other clearly clerical or typographical
errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse party. (4a)
‣
What is a Formal Amendment?
‣
‣
When can you do a Formal Amendment?
‣
‣
At any stage of the action, provided no prejudice is caused thereby to the adverse party.
How should Formal Amendments be raised?
‣
‣
A summary correction of a defect in the designation of the parties and other clearly clerical or typographical errors
Either —
1.
At the court’s initiative
2.
On motion
In summary, what are the instances when the court, in its own instance, may order an amendment?
1.
In pleadings in general — the court can order mere formal amendments
2.
In case a bill of particulars is filed — the court can either order compliance or an amendment
3.
In case a motion to dismiss is filed — the court can either grant, deny, or order an amendment
4.
In criminal case, in case a motion to quash is filed — the court can grant, deny or order an amendment.
AMENDMENT TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE
SECTION 5. Amendment to conform to or authorize presentation of evidence. - When issues not raised by the pleadings
are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised
in the pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the
result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the
ends of substantial justice will be subserved thereby.
The court may grant a continuance to enable the amendment to be made. (5a)
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AMENDMENTS TO CONFORM TO THE EVIDENCE
‣
RULE — WHEN ISSUES NOT RAISED BY THE PLEADINGS ARE TRIED WITH THE EXPRESS OR IMPLIED CONSENT OF THE PARTIES,
THEY SHALL BE TREATED IN ALL RESPECTS AS IF THEY HAD BEEN RAISED IN THE PLEADINGS.
‣
‣
Common reason dictates that a party cannot breach the basic procedural rule that the trial can deal only with matters
raised by the parties in their pleadings. Neither can a court render judgment on a matter not in issue because a
judgment must conform to the pleadings and the theory of the action under which the case was tried.
‣
In the event that a party presents evidence on a matter not in issue, the adverse party has a reason to object.
‣
This rule pertains to the Jurisdiction of the Court over the issues of the case
But when issues not raised in the pleadings are tried with the express or implied consent of the parties, such as when
no objection is made by either, such issues not raised shall be treated as if they had been put in issue by the
pleadings.
‣
‣
In a situation where issues NOT raised in the pleadings are tried with the express or implied consent of the parties,
Sec. 5 of Rule 10 authorizes the amendment of the pleadings to conform to the evidence upon motion of a party at
any time, even after judgment.
‣
‣
Parties cannot go beyond the issues of the case. If they do (by presenting evidence) and there is no objection, the
pleadings may be expressly amended or are impliedly amended to conform to what was proven.
This is because the issues tried shall be treated in all respects as if they had been raised in the pleadings even if
not actually previously raised in the pleadings.
If the parties fail to amend the pleadings, such failure will not affect the trial of these issues because such issues are
deemed to have been raised in the pleadings of the parties. This provision under the Rules virtually authorizes an
implied amendment of the pleadings.
CASES WHERE THE PARTIES GO BEYOND THE ISSUES PRESENTED IN THE PLEADINGS
1. NO OBJECTION- IF NO OBJECTION BY THE PARTIES (THERE IS EXPRESS OR IMPLIED CONSENT OF THE PARTIES)
‣
RULE — The issues not raised by the pleadings but tried in the Court shall be treated in all respects as if they
had been raised in the pleadings. And the court will render judgment and will just order the amendment (upon
motion at any time, even after judgment) so that the complaint will conform with the evidence presented and
the judgment rendered.
‣
This talks about a situation where a party presents evidence and no one objects, either expressly or impliedly.
Where what was alleged was different from what was proven. When issues not raised by the pleadings are tried
with the express or implied consent of the parties
‣
How can one not-object, impliedly?
‣
‣
By cross-examining or by providing evidence in contra
2 scenarios —
a. Party went beyond the issues raised in the pleadings by presenting evidence beyond the issues
‣
Any objection to the admissibility of evidence should be made at the time such evidence is offered or as
soon thereafter as the objection to its admissibility becomes apparent, otherwise the objection will be
considered waived and such evidence will form part of the records of the case as competent and admissible
evidence. Rule 10, §5 of the Rules of Civil Procedure allows the amendment of the pleadings in order to make
them conform to the evidence in the record. (Chua vs CA 1999)
‣
Example — Where the pleadings of the parties disclose that the only issue presented before the court is merely
the right of ownership over a certain property, any evidence to show right to possession may be objected to as
irrelevant to the issue of the case, the concept of ownership being different from the concept of possession. An
owner may not have the right of possession as when the property owned is the object of a lease contract.
However, where evidence of right to possession was offered without objection, the issue of possession shall
now be treated as if the same was raised in the pleadings.
b. Where the complaint insufficiently states the cause of action (complaint was defective, but a cause of
action really exists)
‣
Example — A complaint filed by a guarantor to collect a sum of money from the debtor fails to state a cause of
action if the complaint does not allege that the creditor of the debtor has been paid by the guarantor even if in
fact there was payment. However, if during the course of the proceedings, evidence is offered on the fact of
payment without objection from the debtor, the defect in the complaint was cured by the evidence. The plaintiff
may then move for the amendment of his complaint to conform to the evidence
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Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not
affect the result of the trial of these issues.
‣
So, it’s like a waiver of the defect of the pleadings particularly the complaint, which will be just cured afterwards to
conform to the issues not raised and the evidence presented
‣
The rule treats the issues as having been raised in the pleadings even if not actually raised.
‣
Also, if a complaint failed to aver the fact that certain conditions precedent were undertaken and complied with, the
failure to so allege the same may be corrected by evidence of compliance of said conditions without objection from
the other party.
2. OBJECTION INTERPOSED- IF THE OTHER PARTY OBJECTS (IF EVIDENCE IS OBJECTED TO AT THE TRIAL ON THE GROUND
THAT IT IS NOT WITHIN THE ISSUES MADE BY THE PLEADINGS)
‣
RULE — The amendment is left to the sound discretion of the court. The court may allow the pleadings to be
amended and shall do so with liberality if the presentation of the merits of the action and the ends of
substantial justice will be subserved
‣
The court will shall allow the pleadings to be amended when the presentation of the merits of the action will be
subserved thereby and the admission of such evidence would not prejudice the objecting party in maintaining his
action or defense upon the merits.
‣
So, in order for the objecting party to successfully oppose the amendment, he must prove that he will be
prejudiced (either in his action or in his defense)
‣
After the amendment, the evidence objected to may be presented.
AMENDMENT TO CURE THE LACK OF A CAUSE OF ACTION AT THE TIME THE COMPLAINT IS FILED
‣
Is an amendment allowed to cure an absence of a cause of action (and not merely the failure to state it) at the
time the pleading was filed?
‣
NO. If the complaint does NOT really have a cause of action, then Sec. 5 does NOT apply. That cannot be cured
‣
SEE — Swagman Hotels, G.R. No. 161135. April 8, 2005
‣
The curing effect under Section 5 is applicable only if a cause of action in fact exists at the time the complaint is
filed, but the complaint is defective for failure to allege the essential facts. For example, if a complaint failed to
allege the fulfillment of a condition precedent upon which the cause of action depends, evidence showing that
such condition had already been fulfilled when the complaint was filed may be presented during the trial, and the
complaint may accordingly be amended thereafter.
‣
Thus, in Roces v. Jalandoni, this Court upheld the trial court in taking cognizance of an otherwise defective
complaint which was later cured by the testimony of the plaintiff during the trial. In that case, there was in fact a
cause of action and the only problem was the insufficiency of the allegations in the complaint.
‣
It thus follows that a complaint whose cause of action has not yet accrued cannot be cured or remedied by an
amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is
pending. Such an action is prematurely brought and is, therefore, a groundless suit, which should be dismissed by
the court upon proper motion seasonably filed by the defendant. The underlying reason for this rule is that a
person should not be summoned before the public tribunals to answer for complaints which are immature.
‣
It is a rule of law to which there is, perhaps, no exception, either at law or in equity, that to recover at all there must
be some cause of action at the commencement of the suit. As observed by counsel for appellees, there are
reasons of public policy why there should be no needless haste in bringing up litigation, and why people who are
in no default and against whom there is yet no cause of action should not be summoned before the public
tribunals to answer complaints which are groundless. We say groundless because if the action is immature, it
should not be entertained, and an action prematurely brought is a groundless suit.
‣
NOTE — Remember the rule in Rule 2, Sec. 1 that every ordinary civil action must be based on a cause of action and
such must necessarily exist at the time the complaint is filed.
‣
Example — Filing a suit for collection when the loan is not yet due and demandable, the defect cannot be cured even if
the loan has now matured
AMENDMENT TO CORRECT A JURISDICTIONAL DEFECT
‣
NOTE — This is not always allowed, depends on whether it would need a positive act from the court to allow the
amendment
1. Amendment as a Matter of Right — This is allowed since the court does not act.
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RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
The admission of the amendment is a ministerial duty of the court. It requires no positive action from the court. Since
it would not be acting in this regard, it could not be deemed as acting without jurisdiction.
2. Amendment as a Matter of Discretion — This is NOT allowed since it would require a positive act from the court to
allow the amendment. It cannot act since it has no jurisdiction in the first place
‣
‣
An amendment of the complaint to correct a jurisdictional error cannot be validly done after a responsive pleading is
served. The amendment this time would require leave of court, a matter which requires the exercise of sound judicial
discretion.
‣
The exercise of this discretion requires the performance of a positive act by the court. If it grants the amendment, it
would be acting on a complaint over which it has no jurisdiction. Its action would be one performed without
jurisdiction.
‣
Example — In an action for damages filed before the RTC against a sheriff for an alleged illegal levy upon the property
of the plaintiff, the latter sought to amend his complaint after an answer has been served by the defendant. The
amendment was made when the plaintiff realized that the amount alleged as damages was below the jurisdiction of the
court. The Supreme Court held that it was error to admit the amendment because the court must first acquire
jurisdiction over the subject matter of the complaint in order to act validly on the same including its amendment
Is an amendment alleging compliance with a condition precedent a jurisdictional defect?
‣
NO. The failure of a party to comply with a condition precedent is not a jurisdictional defect. Such defect does not
place the controversy beyond the courts power to resolve. If a party fails to raise such defect in a motion to dismiss,
such defect is deemed waived. Such defect is curable by amendment as a matter of right without leave of court, if
made before the filing of a responsive pleading. A motion to dismiss is not a responsive pleading. More importantly, an
amendment alleging compliance with a condition precedent is not a jurisdictional matter. Neither does it alter the
cause of action of a petition for habeas corpus. We have held that in cases where the defect consists of the failure to
state compliance with a condition precedent, the trial court should order the amendment of the complaint. (Tribiana vs
Tribiana 2004)
PROCEDURE TO AMEND PLEADINGS
SECTION 7. Filing of amended pleadings. - When any pleading is amended, a new copy of the entire pleading,
incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7a)
‣
NOTE — It should first be served on the defendant
EFFECT OF AMENDED PLEADINGS
SECTION 8. Effect of amended pleadings. - An amended pleading supersedes the pleading that it amends. However,
admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged
therein not incorporated in the amended pleading shall be deemed waived. (n)
EFFECT OF AMENDED PLEADINGS
‣
RULE — AN AMENDED PLEADING SUPERSEDES THE PLEADING THAT IT AMENDS
‣
It has been held however, that the original complaint is deemed superseded and abandoned by the amendatory
complaint only if the latter introduces a new or different cause of action (Verzosa v. Court of Appeals)
‣
Claims or defences alleged in the superseded pleadings, but NOT incorporated in the amended pleading, are deemed
waived
‣
Admissions made in the original pleadings cease to be judicial admissions. They are to be considered as extrajudicial
admissions
‣
BUT — Admissions in superseded pleadings may be received in evidence against the pleader, as extra-judicial
admissions.
‣
Original pleadings can have no effect unless offered in evidence.
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RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
RESPONSE TO AN AMENDED COMPLAINT
‣
‣
RULE — AN ANSWER EARLIER FILED MAY SERVE AS THE ANSWER TO THE AMENDED COMPLAINT IF NO NEW ANSWER IS FILED
(R11, S3)
‣
So, courts cannot declare the defendant in default for failure to respond to the amended complaint.
‣
BUT — New material allegations in the amended complaint which are not specifically denied are deemed admitted
Is summons still required to be served again when the Complaint has been amended?
‣
NO. Unless it has not been previously served.
‣
Where the defendants have already appeared before the trial court by virtue of a summons in the original complaint or
voluntary appearance, the amended complaint may be served upon them without need of another summons, even if
new causes of action are alleged.
‣
This is despite the fact that original pleading is deemed superseded by the pleading that amends it. It does not
ipso facto follow that service of new summons is required.
‣
A court’s jurisdiction continues until the case is finally terminated once it is acquired.
‣
BUT — when the defendants have not yet appeared in court, new summons on the amended complaint
must be served on them.
‣
‣
It is not the change of a 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 summons for the amended complaint is required
However, where a new defendant is impleaded, summons must be served upon him so that the court may acquire
jurisdiction over his person because logically, the new defendant cannot be deemed to have already appeared by
virtue of summons under the original complaint in which he was not yet a party
SUPPLEMENTAL PLEADINGS
SECTION 6. Supplemental pleadings. - Upon motion of a party the court may, upon reasonable notice and upon such
terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which
have happened since the date of the pleading sought to be supplemented.
The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.
(6a)
‣
‣
When is the submission of a Supplemental Pleading proper?
‣
They are proper in order to allege facts which occurred AFTER the filing of the original pleadings.
‣
They are filed pursuant to new transactions, occurrences or events which have happened since the date of the
pleading sought to be supplemented. But the original complaint must have a valid and subsisting cause of action to
begin with.
‣
A supplemental pleading was meant to supply deficiencies in aid of the original pleading, and not to dispense with the
latter. As a supplemental pleading, it served to aver supervening facts which were then not ripe for judicial relief when
the original pleading was filed. (Spouses Mercader vs DBP 2000)
‣
BUT — in the Supreme Court, they will not admit unless they ask for it.
‣
NOTE — The provisions states “pleading” so there can be a supplemental complaint, answer, reply, petition.
Do Supplemental Pleadings supersede the pleading which they supplement?
‣
‣
‣
NO. Unlike amendment of pleadings, supplemental complaints do not supersede the original complaints (R10, S8).
Supplemental pleadings are NOT new complaints
How do you file it?
‣
Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, order its admission
‣
NOTE — Court order needed, so ALWAYS with leave of court
Can Supplemental Pleadings be amended?
‣
YES. Supplemental Pleadings can be amended, but with leave of court also
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RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
What if the cause of action in the supplemental complaint is different from the cause of action mentioned in the
original complaint?
‣
‣
‣
RULE — Court should NOT admit the supplemental complaint
‣
As its very name denotes, a supplemental pleading only serves to bolster or add something to the primary
pleading.
‣
A supplemental pleading exists side by side with the original. It does not replace that which it supplements.
‣
Moreover, a supplemental pleading assumes that the original pleading is to stand and that the issues joined with
the original pleading remained an issue to be tried in the action.
‣
It is but a continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the
kind of relief with respect to the same subject matter as the controversy referred to in the original complaint
What is the difference between Amended and Supplemental Pleadings?
SUPPLEMENTAL PLEADINGS
AMENDMENT OF PLEADINGS
When the
facts to be
alleged
happened
Transactions, occurrences or events which have
happened AFTER the date of the pleading sought to be
supplemented.
Omission of a fact that happened BEFORE filing; it was there at
the time of the pleading
Requirement
of Leave of
Court
Always with leave of court
It may be filed without leave of court (if to be done before
service responsive pleading or within 10 days after filing of
reply)
RESPONSE TO A SUPPLEMENTAL PLEADING
‣
RULE — THE FILING OF AN ANSWER TO THE SUPPLEMENTAL PLEADING IS NOT MANDATORY. IF NO NEW OR SUPPLEMENTAL
ANSWER IS FILED, THE ANSWER TO THE COMPLAINT SHALL SERVE AS THE ANSWER TO THE SUPPLEMENTAL COMPLAINT.
‣
The adverse party MAY plead thereto within ten (10) days from notice of the order admitting the supplemental
pleading.
‣
Hence, Court cannot declare the respondents in default simply because the latter opted not to file their answer to the
supplemental petition
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RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
SUMMARY OF THE PERIODS TO FILE RESPONSIVE PLEADINGS
WHEN THE “ANSWER” SHOULD BE FILED BY THE DEFENDANT
1. Ordinary service of summons (R11 S1)
Within 15 days from notice
2. Extraterritorial Service
At least 60 days after notice
3. Summons by publication
At least 60 days after date of last publication
4. In response to an amended complaint, if
amendment is a matter of right (R11 S3)
Within 15 days from notice
5. In response to an amended complaint, if
amendment is not a matter of right (R11 S3)
Within 10 days from notice of the order admitting the
same
6. In response to a supplemental complaint (R11 S7)
Within 10 days from notice of the order admitting the
same, unless a different period is fixed by the court
7. In response to a counterclaim and cross-claim (R11
S4)
Within 10 days from service
8. In response to a third-party complaint (R11 S5)
Within 15 days from notice
9. Where defendant is a foreign private juridical entity
and service
a. Made on its resident agent designate in accordance
with law for that purpose: Within 15 days
b. Made on the government official designated by law to
receive the same (R11 S2): Within 30 days after
receipt of summons by such entity
10.After service of the bill of particulars, or after
Within the period remaining to which he was entitled at
notice of denial of one’s motion for a bill of particulars the time of filing his motion, which shall not be less than 5
(R12 S5)
days in any event
11. After denial of a motion to dismiss (R15 S4)
Within the period remaining to which he was entitled at
the time of filing his motion, which shall not be less than 5
days in any event, computed from his receipt of the
notice of denial
WHEN THE “REPLY” SHOULD BE FILED BY THE PLAINTIFF
1. Response to an answer (R11, S6)
Within 10 days from service
2. Response to a supplemental answer
Within 10 days from notice of order admitting the same
3. After service of the bill of particulars, or after notice
of denial of one’s motion for a bill of
Within the period remaining to which he was entitled at
the time of filing his motion, which shall not be less than 5
days in any event
ANSWER TO THE COMPLAINT
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RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
SECTION 1. Answer to the complaint. - The defendant shall file his answer to the complaint within fifteen (15) days after
service of summons, unless a different period is fixed by the court. (1a)
WHEN SHOULD THE DEFENDANT FILE HIS ANSWER TO THE COMPLAINT?
1. Ordinary Service of Summons — Within 15 days
2. Extra-Territorial service — At least 60 days after notice
3. Summons by Publication — At least 60 days after date of the last publication
ANSWER OF A DEFENDANT FOREIGN PRIVATE JURIDICAL ENTITY
SECTION 2. Answer of a defendant foreign private juridical entity. - 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 thirty (30) days after receipt of summons by such entity. (2a)
WHEN A FOREIGN PRIVATE JURIDICAL ENTITY (DEFENDANT) SHOULD FILE ITS ANSWER:
1. If service of summons is made on the government official designated by law to receive it — Within 30 days after
receipt of summons by such entity
‣
If sent to the government official, the counting only starts after receipt of summons by such entity
‣
Service of summons to the designated government official should be made only in the absence of a designated
resident agent
2. If service of summons is made on its resident agent designated in accordance with law for that purpose —Within
15 days
ANSWER TO AMENDED COMPLAINT
SECTION 3. Answer to amended complaint. - Where the plaintiff files an amended complaint as a matter of right, the
defendant shall answer the same within fifteen (15) days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) 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.
This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)-party
complaint, and amended complaint-in-intervention. (3a)
Rule 10, SECTION 2. Amendments as a matter of right. - A party may amend his pleading once as a matter of right at any
time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a)
WHEN SHOULD THE DEFENDANT FILE HIS ANSWER TO AN AMENDED COMPLAINT
1. If amendment a matter of right — Within 15 days
2. If amendment NOT a matter of right — Within 10 days from notice of the order admitting the same
‣
NOTE — Rule applies to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)party complaint, and amended complaint-in-intervention.
RESPONSE TO AN AMENDED COMPLAINT
‣
RULE — AN ANSWER EARLIER FILED MAY SERVE AS THE ANSWER TO THE AMENDED COMPLAINT IF NO NEW ANSWER IS FILED
‣
BUT — new material allegations in the amended complaint which are not specifically denied are deemed admitted
‣
So, court cannot declare the defendant in default for failure to file answer to amended complaint
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RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
ANSWER TO COUNTERCLAIM OR CROSS-CLAIM
SECTION 4. Answer to counterclaim or cross-claim. - A counterclaim or cross-claim must be answered within ten (10)
days from service. (4)
ANSWER TO THIRD-PARTY COMPLAINT
SECTION 5. Answer to third (fourth, etc.)-party complaint. - The time to answer a third (fourth, etc.)-party complaint shall
be governed by the same rule as the answer to the complaint. (5a)
‣
So also within 15 days
REPLY
SECTION 6. Reply. - A reply may be filed within ten (10) days from service of the pleading responded to. (6)
‣
Response to an answer — Within 10 days from service
‣
If in response to a amended or supplemental answer — Within 10 days from notice of order
ANSWER TO SUPPLEMENTAL COMPLAINT
SECTION 7. Answer to supplemental complaint. - A supplemental complaint may be answered within ten (10) days from
notice of the order admitting the same, unless a different period is fixed by the court.
The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer
is filed. (n)
EXISTING COUNTERCLAIM OR CROSS-CLAIM
SECTION 8. Existing counterclaim or cross-claim. - A compulsory counterclaim or a cross-claim that a defending party
has at the time he files his answer shall be contained therein. (8a, R6)
‣
An existing compulsory counterclaim or cross-claim should be included in the answer — If not, it shall be barred unless
with leave of court, it is set up in an amended answer before judgment.
COUNTERCLAIM OR CROSS-CLAIM ARISING AFTER THE ANSWER
SECTION 9. Counterclaim or cross-claim arising after answer. - A counterclaim or a cross-claim which either matured or
was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim
or a cross-claim by supplemental pleading before judgment. (9, R6)
‣
This is a Supplemental Answer
‣
This must be done with leave of court and before judgment.
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RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
OMITTED COUNTERCLAIM OR CROSS-CLAIM
SECTION 10. Omitted counterclaim or cross-claim. - When a pleader fails to set up a counterclaim or a 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. (3a, R9)
‣
This is an Amended Answer
‣
It must be done with leave of court and before judgment.
EXTENSION OF TIME TO PLEAD
SECTION 11. Extension of time to plead. - Upon motion and on such terms as may be just, the court may extend the time
to plead provided in these Rules.
The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (7)
‣
RULE — A motion of extension of time to plead should be filed before the expiration of the time sought to be
extended
‣
‣
Remedy — If the time sought to be extended has expired, you can file a motion for leave to file a pleading or motion,
along with the pleading or motion sought to be admitted. (Rule 15, Sec 9)
NOTE — Any extension of time to file the same should be counted from the expiration of the period regardless of the fact
that said due date is a Saturday, Sunday or legal holiday.
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RULE 12: BILL OF PARTICULARS
RULE 12: BILL OF PARTICULARS
OVERVIEW OF BILL OF PARTICULARS
MOTION FOR BILL OF PARTICULARS AS ONE OF THE REMEDIES OF THE DEFENDANT UPON RECEIPT OF COMPLAINT
‣
Four options are available to the defendant upon receipt of the complaint —
1. Filing of a motion for bill of particulars
2. Filing of a motion to dismiss
3. Filing of an answer to the complaint.
4. Filing a motion for summary judgment
‣
Although under the Rules, the defendant is required to answer the complaint within fifteen (15) days from service of
summons, the defendant need not file his answer to the complaint within the required period if there are matters in the
complaint, which are vague or ambiguous or not averred with sufficient definiteness. Instead, he may file a motion for
bill of particulars
‣
As long as the allegations of a complaint make out a cause of action, the ambiguity in some allegations of the
complaint or the failure to allege facts with sufficient particularity does not justify the filing of a motion to dismiss.
The proper remedy is to file a motion for bill of particulars.
‣
A motion for bill of particulars is not directed only to a complaint. It is a motion that applies to any pleading which in the
perception of the movant contains matters which are not alleged with sufficient definiteness or particularity.
PURPOSE OF A BILL OF PARTICULARS; WHEN IT SHOULD BE APPLIED FOR
SECTION 1. When applied for; purpose. - 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
properly to prepare his responsive pleading.
If the pleading is a reply, the motion must be filed within ten (10) days from service thereof.
Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details
desired. (1a)
PURPOSE OF A BILL OF PARTICULARS
‣
The purpose of the motion is to seek an order from the court directing the pleader to submit a bill of particulars which
avers matters with “sufficient definiteness or particularity” to enable the movant to properly prepare his responsive
pleading
‣
‣
It is NOT to enable the movant to prepare for trial — where the purpose of the movant is to enable him to prepare for
trial, the appropriate remedy is to avail of the discovery procedures from Rules 23 to 29 and also of the purposes of
the mandatory pre-trial under Rule 18 of the Rules of Court.
The function of a bill of particulars is to clarify the allegations in the pleading so an adverse party may be informed with
certainty of the exact character of the cause of action or a defense. Without the clarifications sought by the motion, the
movant may be deprived of the opportunity to submit an intelligent responsive pleading.
‣
Such as — the failure to specifically allege the fraudulent acts does not constitute a ground for dismissal since such
defect can be cured by a bill of particulars. (Reyes vs RTC of Makati 2008)
‣
You only move for a bill of particulars when what’s ambiguous are the material allegations/essential acts or omissions The
matters sought to be obtained should be the ultimate facts
‣
So, know and remember the rules on how to prepare pleadings, if those rules are not observed resulting to a vague or
ambiguous pleading, a Bill of Particulars is the appropriate remedy
‣
BUT — Note that in a criminal case, the purposes of a motion for bill of particulars are (a) to enable the movant to
properly plead AND (b) to prepare for trial
‣
SEE — Tatuico vs Republic (1991)
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RULE 12: BILL OF PARTICULARS
Where the allegations of the complaint are vague, indefinite or in the form of conclusions, the proper recourse would
be not a motion to dismiss but a motion for a bill of particulars Allegations in the complaint are deficient in that they
merely articulate conclusions of law and presumptions unsupported by factual premises.
‣
The particulars prayed for are not evidentiary in nature. The purpose or object of a bill of particulars is—“to amplify or
limit a pleading, specify more minutely and particularly a claim or defense set up and pleaded in general terms, give
information, not contained in the pleading, to the opposite party and the court as to the precise nature, character,
scope, and extent of the cause of action or defense relied on by the pleader, and apprise the opposite party of the
case which he has to meet, to the end that the proof at the trial may be limited to the matters specified, and in order
that surprise at, and needless preparation for, the trial may be avoided, and that the opposite party may be aided in
framing his answering pleading and preparing for trial. It has also been stated that it is the function or purpose of a bill
of particulars to define, clarify, particularize, and limit or circumscribe the issues in the case, to expedite the trial, and
assist the court. A general function or purpose of a bill of particulars is to prevent injustice or do justice in the case
when that cannot be accomplished without the aid of such a bill.”
‣
In a motion for a bill of particulars the only question to be resolved is whether or not the allegations of the complaint
are averred with sufficient definiteness or particularity to enable the movant properly to prepare his responsive
pleading and to prepare for trial.
What is the difference between filing a Motion for Bill of Particulars and Filing a Motion to Dismiss based on the
ground that the pleading fails to state a cause of action?
‣
Where the complaint states ultimate facts that constitute the three (3) essential elements of a cause of action, namely:
(1) the legal right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the
defendant in violation of said legal right, the complaint states a cause of action, OTHERWISE, the complaint must
succumb to a motion to dismiss on that ground of failure to state a cause of action. However, where the allegations of
the complaint are vague, indefinite, or in the form of conclusions, the proper recourse would be, not a motion to
dismiss, but a motion for a bill of particulars. (Tatuico vs Republic 1991)
WHAT IT SHOULD CONTAIN
‣
Such motion shall point out —
1. The defects complained of
2. The paragraphs wherein they are contained, and
3. The details desired
WHEN A BILL OF PARTICULARS SHOULD BE APPLIED FOR
‣
RULE — A MOTION FOR BILL OF PARTICULARS SHOULD BE FILED BEFORE RESPONDING TO A PLEADING
‣
Either responding to a complaint or an answer
‣
Thus, where the motion for bill of particulars is directed to a complaint, the motion should be generally filed within
fifteen (15) days after service of summons (R11, S1)
‣
If the motion is directed to a counterclaim or a cross- claim, then the same must be filed within ten (10) days from
service of the counterclaim or crossclaim (R11, S4)
‣
If the bill of particulars is to clarify a reply, 10 days from service thereof.
‣
A motion for bill of particulars becomes moot and academic where, prior to its filing, the defendant has already filed
his answer and several other pleadings. (Baritua v Mercader 2001)
RESPONSE BY THE COURT TO A BILL OF PARTICULARS
SECTION 2. Action by the court. - Upon the filing of the motion, the clerk of court must immediately bring it to the
attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard. (n)
‣
RULE — THE CLERK OF COURT MUST IMMEDIATELY BRING IT TO THE ATTENTION OF THE COURT WHICH MAY EITHER —
1. DENY the motion outright,
2. GRANT it outright, or
3. Allow the parties the opportunity to be HEARD
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RULE 12: BILL OF PARTICULARS
The options available to the court disclose that a hearing is NOT mandatory before it denies or grants the motion, the
holding of a hearing being one that is addressed to judicial discretion.
SALVADOR — This is an exception to the general rule that all motions are litigated (there is hearing). The court can grant
or dismiss the motion outright. Hearing is merely discretionary.
COMPLIANCE WITH THE GRANT
SECTION 3. Compliance with order. - If the motion is granted, either in whole or in part, the compliance therewith must be
effected within ten (10) 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. (n)
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RULE — If the motion for Bill of Particulars is granted, either in whole or in part, compliance therewith must be
effected within ten (10) days from notice of the order
‣
‣
EXCEPT — a different period is fixed by the court
How do you comply with the order?
‣
The pleader may file the bill of particulars or a more definite statement either in a —
1. Separate pleading
2. In the form of an amended pleading
‣
NOTE — In either case, a copy thereof is required to be served upon the adverse party
NON-COMPLIANCE
SECTION 4. Effect of non-compliance. - If the order is not obeyed, or in case of insufficient compliance therewith, the
court may order the striking out of the pleading or the portions thereof to which the order was directed or make such
other order as it deems just. (1[c]a)
‣
RULE — If the order is not obeyed, or in case of insufficient compliance therewith, the court may either —
1. Order the striking out of the pleading
2. Order the striking out of the portions of the pleading to which the order was directed, or
3. Make such other order it may deem just
4. Dismiss the case based on non-compliance with a court order. (Rule 17, Sec 3)
STAY OF PERIOD TO FILE RESPONSIVE PLEADING
SECTION 5. Stay of period to file responsive pleading. - After service of the bill of particulars or of a more definite
pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to
which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (1[b]a)
‣
A motion for bill of particulars is NOT a pleading, hence, not a responsive pleading. Whether or not his motion is
granted, the movant may file his responsive pleading.
‣
Period to file responsive pleading (on the part of the moving party) after service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion
‣
Rules —
1. The filing of a motion of a bill of particulars SUSPENDS the running of the period to file an answer or a motion to
dismiss.
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2. The moving party may file his responsive pleading within the period to which he was entitled at the time of filing
his motion, which shall not be less than five (5) days in any event.
•
So the minimum period will always be 5 days
•
A party has at least 5 days to file answer after receipt of the order denying his motion for a bill of particulars.
(Aruelo vs CA 1993)
BILL OF PARTICULARS BECOMES PART OF PLEADING
SECTION 6. Bill a part of pleading. - A bill of particulars becomes part of the pleading for which it is intended. (1[a]a)
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RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND OTHER
PAPERS
COVERAGE OF THIS RULE
SECTION 1. Coverage. - This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof,
except those for which a different mode of service is prescribed. (n)
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RULE — Rule 13 shall govern the filing AND service of all pleadings and other papers
‣
EXCEPT — Those for which a different mode of service is prescribed. Such as service of summon which is governed
by Rule 14.
MANDATORY NATURE OF RULE 13
‣
The basic rules on modes of service of pleadings, motions, notices, orders, judgments, and other papers are mandatory
in nature and, therefore, must be strictly observed. The Court is not unaware of the inherent power of courts to control its
proceedings. Nonetheless, the exercise of such inherent power must not violate basic court procedures. More
importantly, it must not disregard ones basic constitutional right to procedural due process. (Aberca vs Ver 2012)
DEFINITION OF “FILING” AND “SERVICE”
SECTION 2. Filing and service, defined. - Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper concerned.
If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service
upon the party himself is ordered by the court.
Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the
opposite side. (2a)
‣
Filing — It is the act of presenting the pleading or other paper to the clerk of court.
‣
Service — It is the act of providing a party with a copy of the pleading or paper concerned.
‣
‣
NOTE — Filing and Service are different. Different set of rules apply
What is the 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.
‣
‣
EXCEPT — Ex parte proceedings
Upon whom should service be made?
1. When party has NOT appeared by counsel — Service must be made upon him
2. When party has appeared by counsel — Service upon him shall be made upon his counsel or one of them.
‣
EXCEPT — Unless service upon the party himself is ordered by the court
‣
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
‣
Subject to compelling reasons involving substantial justice, service of a petition upon a party, when that party is
represented by counsel of record, is a patent nullity and is not binding upon the party wrongfully served.
‣
As a rule, notice to the client and not to his counsel of record is not notice in law unless for instance when the
court or tribunal orders service upon the party or when the technical defect in the manner of notice is waived
‣
Service upon the parties’ counsels of record is tantamount to service upon the parties themselves, but service
upon the parties themselves is not considered service upon their lawyers.
‣
RATIONALE — This is because the parties, generally, have no formal education or knowledge of the rules of
procedure, specifically, the mechanics of an appeal or availment of legal remedies; thus, they may also be
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unaware of the rights and duties of a litigant relative to the receipt of a decision. More importantly, it is best for
the courts to deal only with one person in the interest of orderly procedure — either the lawyer retained by the
party or the party himself if he does not intend to hire a lawyer
3. When one counsel appears for several parties — Service shall be made upon such counsel
‣
BUT — the counsel shall only be entitled to one copy of any paper served upon him by the opposite side
4. Service when two or more counsels appear for one party — The notice of hearing may be made either upon both
attorneys or upon one of them, regardless of whether they belong to the same law firm or are practicing one
independently of the other.
MODES OF FILING
SECTION 3. Manner of filing. - The filing of pleadings, appearances, motions, notices, orders, judgments and all other
papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court
or by sending them by registered mail.
In the first case, the clerk of court shall endorse on the pleading the date and hour of filing.
In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown
by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or
deposit in court.
The envelope shall be attached to the record of the case. (1a)
‣
How should pleadings, appearances, motions, notices, orders, judgments and all other papers be filed in court?
‣
There are 2 modes of filing, present the plainly indicated original copies either —
1. PERSONAL FILING
‣
The clerk of court shall endorse on the pleading the date and hour of filing. Clerk of court stamps, dates and
signs it.
‣
NOTE — When filed by a private courier, the actual receipt by the clerk of court, and not the private courier is
the date counted for filing.
2. BY REGISTERED MAIL
‣
The date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the
post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing,
payment, or deposit in court.
‣
‣
‣
‣
The date of filing is determinable from two sources —
1.
From the post office stamp on the envelope, or
2.
From the registry receipt
‣
Either of which may suffice to prove the timeliness of the filing of the pleadings. If the date stamped on one
is earlier than the other, the former may be accepted as the date of filing.
‣
This presupposes, however, that the envelope or registry receipt and the dates appearing thereon are duly
authenticated before the tribunal where they are presented
NOTE — There is no filing by ordinary mail
‣
Because there is no way the court to determine when you filed it.
‣
BUT — service is allowed through ordinary mail
How about filing by email?
‣
‣
The envelope shall be attached to the record of the case
SALVADOR — Now, only the SC accepts filing of petitions by email (See Efficient Use of Paper Circular)
How about express mail services? (such as LBC, DHL, etc)
‣
SALVADOR — Not recognized yet, but if you don't have time, you can send the documents to be filed through
express mail then also send copy by registered mail with manifestation to this effect
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PAPERS REQUIRED TO BE FILED AND SERVED
SECTION 4. Papers required to be filed and served. - Every judgment, resolution, order, pleading subsequent to the
complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court,
and served upon the parties affected.
‣
Papers required to be FILED in court and SERVED upon the parties affected —
1. Judgment
2. Resolution
3. Order,
4. Pleading subsequent to the complaint
5. Written motion
6. Notice,
7. Appearance
8. Demand
9. Offer of judgment
10. Similar papers
MODES OF SERVICE
SECTION 5. Modes of service. - Service of pleadings, motions, notices, orders, judgments and other papers shall be
made either personally or by mail. (3a)
SECTION 6. Personal service. - Service of the papers may be made by delivering personally a copy to the party or his
counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his
office, or his office is not known, or he 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 then
residing therein. (4a)
SECTION 7. 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 his counsel at his office, if known, otherwise at his residence, if known,
with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if
undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by
ordinary mail. (5a) (Corrected by Bar Matter No. 803, Supreme Court Resolution dated February 17, 1998)
SECTION 8. 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 counsel being unknown,
service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service
by mail. The service is complete at the time of such delivery. (6a)
SECTION 9. Service of judgments, final orders or resolutions. - Judgments, final orders or resolutions shall be served
either personally or by registered mail. When a party summoned by publication has failed to appear in the action,
judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the
prevailing party. (7a)
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Does NOT cover Service of Summons, it has its own rules in Rule 14
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MODES OF SERVICE OF PLEADINGS, MOTIONS, NOTICES, ORDERS, AND OTHER PAPERS
‣
NOTE — These are documents which are served by the parties to each other
1. PERSONAL SERVICE
‣
This is the preferred mode of service
‣
The service and filing of pleadings and other papers shall be done personally, whenever practicable. This is the
preferred mode of service
‣
If another mode of service is used other than personal service, the service must be accompanied by a written
explanation why the service or filing was not done personally.
‣
‣
Exempt from this explanation are the service of papers emanating from the court.
‣
A violation of this explanation requirement may be cause for the paper to be considered as not having been filed
How is personal service effected?
‣
Service of the papers may be made by delivering personally a copy to either the —
Party or his counsel
1.
‣
Remember rules on service if represented by counsel or not in Sec. 2
‣
Normally, it should be served to the counsel and not the party himself
2.
By leaving it in his office with his clerk or with a person having charge thereof —
3.
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 then residing therein
‣
BUT — This applies only if number 2 does not apply, in that no person is found in his office, or his office is
not known, or he has no office
2. SERVICE BY MAIL (REGISTERED OR ORDINARY)
‣
This is subordinate to Personal Service — The preferred service by mail is by registered mail. Service by ordinary mail
may be done only if no registry service is available in the locality of either the sender or the addressee
‣
How is this effected?
‣
‣
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 his counsel at his office, if known, otherwise at his residence, if known.
‣
With postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten
(10) days if undelivered.
‣
If no registry service is available in the locality of either the sender or the addressee, service may be done by
ordinary mail.
NOTE — Registered mail takes precedence
3. SUBSTITUTED SERVICE
‣
This is subordinate to Personal Service and Service by Mail — If service cannot be made personally or through
mail because the office and place of residence of the party or his counsel is unknown in this case
‣
How is this effected?
‣
Service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and
service by mail.
‣
The service is complete at the time of such delivery.
MODES OF SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS
‣
NOTE — These are papers from the Court. When you talk of “Service” it is not just service from one party to another, it
can also mean service by the court to the parties
1. PERSONAL SERVICE
‣
Same rules as above
2. SERVICE BY REGISTERED MAIL (NEVER ORDINARY MAIL)
‣
Same rules as above
3. PUBLICATION
‣
When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions
against him shall be served upon him also by publication at the expense of the prevailing party.
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Only if the party was summoned by publication also
‣
‣
NOTE — Judgment is not considered final or executory and neither does the period to appeal start to run until validly
served
IMPORTANT THINGS TO NOTE
1.
Substituted service is NOT applicable for judgments, final orders or resolutions (these emanate from the Court)
‣
In this case, apply section 9, only personal service, service by mail, or publication
‣
There is NO substituted service for judgments, final orders or resolutions. So distinguish if papers by parties or papers
emanating from the court
2.
Service by publication is NOT allowed when it is the parties who are serving to each other pleadings, motions,
notices, etc.
‣
3.
SEE — Aberca et al. v. Ver, et al., G.R. No. 166216, March 14, 2012
‣
In this case, the RTC erred when it ruled that the publication of a notice to file answer to the respondents
substantially cured the procedural defect equivalent to lack of due process. The RTC cannot just abandon the
basic requirement of personal service and/or service by mail.
‣
The only modes of service of pleadings, motions, notices, orders, judgments and other papers allowed by the rules
are personal service, service by mail and substituted service if either personal service or service by mail cannot be
made, as stated in Sections 6, 7 and 8 of Rule 13 of the Rules of Court. Nowhere under this rule is service of
notice to file answer by publication is mentioned, much less recognized.
‣
Furthermore, the Court would like to point out that service by publication only applies to service of summons
stated under Rule 14 of the Rules of Court where the methods of service of summons in civil cases are: (1)
personal service; (2) substituted service; and (3) service by publication. Similarly, service by publication can apply
to judgments, final orders and resolutions as provided under Section 9, Rule 13 of the Rules of Court
For service of judgments, final orders, and resolutions, substituted service and service by ordinary mail are NOT
allowed
SERVICE UNDER RULE 13 DISTINGUISHED WITH SERVICE OF SUMMONS UNDER RULE 14
‣
Service of summon is necessary in order that the court may acquire jurisdiction over the person of the defendant.
‣
Once the court has acquired such jurisdiction either by service of summons or voluntary appearance, the defendant may
be served copies of the pleadings, either personally or by mail.
‣
NOTE — Rule 13 is different from Rule 14, they are INDEPENDENT of each other
‣
Example — service at the party's office or house is personal service under Rule 13 but it it considered Substituted
Service for Rule 14
COMPLETENESS OF SERVICE
SECTION 10. Completeness of service. - Personal service is complete upon actual delivery. Service by ordinary mail is
complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of
the postmaster, whichever date is earlier. (8a)
COMPLETENESS OF SERVICE
1. Personal Service — complete upon actual delivery.
2. Service by Mail
a. Registered Mail — complete upon either of the following, whichever date is earlier
i.
Actual receipt by the addressee, or
ii.
After five (5) days from the date he received the first notice of the postmaster
‣
So after 5 days from notice from the postmaster, the addressee is presumed to have read it and service is
completed
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This presupposes that the addressee has actually received the mail on said date. If he didn’t, then the
presumption cannot apply.
b. Ordinary Mail — complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides
3. Substituted Service — complete at the time of delivery of the copy to the clerk of court
‣
Why is this important?
‣
To know when the reglamentary period starts to run, to file a responsive pleading
PRIORITIES IN MODES OF SERVICE AND FILING
SECTION 11. Priorities in modes of service and filing. - Whenever practicable, the service and filing of pleadings and
other papers shall be done personally.
Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written
explanation why the service or filing was not done personally.
A violation of this Rule may be cause to consider the paper as not filed. (n)
‣
RULE — WHENEVER PRACTICABLE, THE SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS SHALL BE DONE PERSONALLY
‣
‣
The priority is for Personal Filing or Service
What if Personal Filing or Service cannot be done?
‣
A resort to other modes must be accompanied by a written explanation why the service or filing was not done
personally.
‣
‣
NOTE — A violation of this Rule may be cause to consider the paper as NOT filed. This applies to BOTH filing and
service
‣
‣
Personal service effectively ensures that the notice desired under the constitutional requirement of due process is
accomplished. If, however, efforts to find the party concerned personally would make prompt service impossible,
service may be completed by substituted service, that is, by leaving a copy, between the hours of eight in the
morning and six in the evening, at the partys or counsels residence, if known, with a person of sufficient age and
discretion then residing therein. Substituted service derogates the regular method of personal service. It is
therefore required that statutory restrictions for effecting substituted service must be strictly, faithfully and fully
observed. Failure to comply with this rule renders absolutely void the substituted service along with the
proceedings taken thereafter. The underlying principle of this rigid requirement is that the person, to whom the
orders, notices or summons are addressed, is made to answer for the consequences of the suit even though
notice of such action is made, not upon the party concerned, but upon another whom the law could only presume
would notify such party of the pending proceedings. (FEU-NRMF v. FEU-NRMF AFW 2006)
What if the party fails to attach a written explanation why personal service or filing was not done?
‣
‣
EXCEPT — With respect to papers emanating from the court
Where no explanation is offered to justify the resort to other modes, the discretionary power of the court to expunge
the pleading becomes mandatory. In this case, the CA should have considered the Petition as not having been filed, in
view of the failure of respondent to present a written explanation of its failure to effect personal service. (Zulueta vs
Asia Brewery 2001)
SEE — Domingo v. Court of Appeals, G.R. No. 169122, February 2, 2010
‣
Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action or resolution on a
pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely to be incurred if service or
filing is done by mail, considering the inefficiency of postal service. Likewise, personal service will do away with the
practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices: (1) serving
or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare,
for instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that the
registered parcel containing the pleading of or other paper from the adverse party may be claimed, unduly
procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the
disposition of such pleading or other papers.
‣
If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal service
whenever practicable, Section 11 of Rule 13 then gives the court the discretion to consider a pleading or paper as not
filed if the other modes of service or filing were resorted to and no written explanation was made as to why personal
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service was not done in the first place. The exercise of discretion must, necessarily, consider the practicability of
personal service, for Section 11 itself begins with the clause "whenever practicable."
‣
We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal
service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth,
whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal
service or filing is mandatory.
‣
Only when personal service or filing is not practicable may resort to other modes be had, which must then be
accompanied by a written explanation as to why personal service or filing was not practicable to begin with. In
adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the
case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of
Section 11. This Court cannot rule otherwise, lest we allow circumvention of the innovation introduced by the 1997
Rules in order to obviate delay in the administration of justice.
PROOF OF FILING
SECTION 12. Proof of filing. - The filing of a pleading or paper shall be proved by its existence in the record of the case.
If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped
acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt
and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing 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 ten (10) days if not delivered. (n)
HOW TO PROVE FILING
‣
RULE — THE FILING OF A PLEADING OR PAPER SHALL BE PROVED BY ITS EXISTENCE IN THE RECORD OF THE CASE
‣
BUT — If it is NOT in the record of the case, it may be proved either by —
1. If personally filed to the Clerk of Court — The filing shall be proved by the written or stamped
acknowledgment of its filing by the clerk of court on a copy of the same
2. If filed by registered mail — The filing shall be proved by the registry receipt AND by the affidavit of the person
who did the mailing
‣
NOTE — The affidavit should contain a full statement of the date and place of depositing 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 ten (10) days if not delivered.
PROOF OF SERVICE
SECTION 13. Proof of service. - Proof of personal service shall consist of a written admission of the party served, or the
official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner
of service.
If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing
compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the
registry receipt issued by the mailing office.
The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the notice given by the postmaster to the addressee. (10a)
IMPORTANCE OF PROOF OF SERVICE
‣
SALVADOR — No court will accept a pleading to be filed if there is no proof of service, so attach the proof of service to
what you file in court
PROOF OF SERVICE
1. Personal Service — Consists of either —
a. A written admission of the party served, or
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b. The official return of the server, or
c. The affidavit of the party serving, containing a full statement of the date, place and manner of service
2. Service by Mail
a. Registered Mail — ALL of the following —
1. Affidavit of the person mailing containing a full statement of the date, place, and manner of service
‣
If the service is by registered mail, the affidavit should be by the person who “actually mailed” the pleading and
not merely the person who “directed” the mailing. (Romulo v Peralta, 2007)
2. The registry receipt issued by the mailing office
‣
The receipt must indicate that the mail is a copy of the pleading, decision, etc.
‣
Actual knowledge of a decision cannot be attributed to the addressee of a registered matter where there is no
showing that the registry notice itself contains any indication that the registered matter is a copy of the
decision or that the registry notice refers to the case being ventilated. (Romulo v Peralta 2007)
3. Filing of Return Card
‣
This is to 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 give by the postmaster to the addressee
b. Ordinary Mail — Affidavit of the person mailing of facts showing compliance with Section 7
‣
Who has the burden of proof of proof of service?
‣
‣
When service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact
of service. The burden of proving notice rests upon the party asserting its existence.
What is the effect of the failure to serve a judgment? (If there is no proof of service of the decision or judgment)
‣
The period of 15 days within which a party may file its motion for new trial does NOT begin to run against such party,
neither does the judgment attain finality.
‣
‣
BUT — if the party admits that it received the copy of the decision on a certain date despite the absence of proof
of service, that date would be the reckoning date of the 15-day period. (Republic vs BPI 2013)
SEE — Spouses Topacio v. Banco Filipino, G.R. No. 157644, November 17, 2010
‣
As a rule, judgments are sufficiently served when they are delivered personally, or through registered mail to the
counsel of record, or by leaving them in his office with his clerk or with a person having charge thereof. After
service, a judgment or order which is not appealed nor made subject of a motion for reconsideration within the
prescribed 15-day period attains finality.
‣
However, if there was no proof of actual receipt of the notice of the registered mail by the defendant’s counsel,
there is an absence of a reckoning date of the period provided by law for the filing of the petition, thus, the Court
could not assume that it was improperly or belatedly filed.
‣
A decision of the Regional Trial Court did not become final and executory where, from the records, the respondent
had not received a copy of the resolution denying her motion for reconsideration. If there was no sufficient proof
that the respondent actually received a copy of the said Order or that she indeed received a first notice, there
could be no valid basis for the issuance of the writ of execution as the decision never attained finality.=
‣
In the present case, we note that the December 16, 1986 Dismissal Order cannot be deemed to have become final
and executory in view of the absence of a valid service, whether personally or via registered mail, on the
respondents counsel. We note in this regard that the petitioners do not dispute the CA finding that the records
failed to show that the private respondent was furnished with a copy of the said order of dismissal. Accordingly,
the Dismissal Order never attained finality.
NOTICE OF LIS PEDENS
SECTION 14. 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 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.
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RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND OTHER PAPERS
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. (24a, R14)
NATURE OF A NOTICE OF LIS PEDENS
‣
Lis pendens, which literally means pending suit, refers to the jurisdiction, power or control which a court acquires over
property involved in a suit, pending the continuance of the action, and until final judgment. Founded upon public policy
and necessity, lis pendens is intended —
1.
To keep the properties in litigation within the power of the court until the litigation is terminated and to prevent the
defeat of the judgment or decree by subsequent alienation; and
2.
To announce to the whole world that a particular property is in litigation and serves as a warning that one who
acquires an interest over said property does so at his own risk, or that he gambles on the result of the litigation over
said property. (St. Mary of the Woods School v. Registry of Deeds 2009)
‣
The doctrine of lis pendens is based on consideration of public policy and convenience, under the view that once a court
has taken cognizance of a controversy, it should be impossible to interfere with the consummation of the judgment by any
ad interim transfer, encumbrance, or change of possession. (St. Mary of the Woods School v. Registry of Deeds 2009)
‣
A notice of lis pendens neither affects the merits of a case nor creates a right or a lien. It serves to protect the real rights
of the registrant while the case involving such rights is pending resolution. While the notice of lis pendens remains on a
certificate of title, the registrant could rest secure that he would not lose the property or any part of it during the litigation.
Once a notice of lis pendens has been duly registered, any subsequent transaction affecting the land involved would have
to be subject to the outcome of the litigation. For this reason, the Court has pronounced that a purchaser who buys
registered land with full notice of the fact that it is in litigation between the vendor and a third party stands in the shoes of
his vendor and his title is subject to the incidents and result of the pending litigation. (Vicente vs Avera 2009)
WHEN A NOTICE OF LIS PEDENS CAN BE AVAILED OF
‣
RULE — 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 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.
‣
So, applicable only in actions affecting the title or the right of possession of real property
‣
‣
The real property must be DIRECTLY affected, not merely incidental. So, action must be a real action.
Only instances where a Notice of Lis Pedens may be availed of —
1. Action to recover possession of real estate
2. An action for judicial partition
3. An action to remove clouds thereon
4. An action to quiet title
5. Any other court proceedings that directly affect the title to the land or the building thereon or the use or the
occupation thereof
6. Establish a right to, or an equitable estate or interest in, a specific real property
7. To enforce a lien, a charge or an encumbrance against it
‣
‣
NOTE — Resorting to lis pendens not necessarily confined to cases that involve title to or possession of real
property. This annotation also applies to suits seeking to establish a right to, or an equitable estate or interest in, a
specific real property; or to enforce a lien, a charge or an encumbrance against it. It is essential that the property
be directly affected, as where the relief sought in the action or suit includes the recovery of possession, or the
enforcement of a lien, or an adjudication between conflicting claims of title, possession, or the right of possession
to specific property, or requiring its transfer or sale (Atlantic Erectors vs Herbal Cove 2003)
Lis pendens has NO application in the following cases, even if title or right of possession to property be
incidentally affected —
‣
Preliminary attachments
‣
Proceedings for the probate of wills
‣
Levies on execution
‣
Proceedings for administration of estate of deceased persons, and
‣
Proceedings in which the only object is the recovery of a money judgment. (Atlantic Erectors vs Herbal Cove 2003)
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RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND OTHER PAPERS
What if a case, when commenced, may justify a resort to lis pendens, but during the progress thereof, it develops
to be purely a personal action for damages or otherwise?
‣
In such event, the notice of lis pendens has become functus officio. It is rendered nugatory. (Atlantic Erectors vs
Herbal Cove 2003)
HOW TO ANNOTATE A NOTICE OF LIS PEDENS
‣
RULE — Send a written memo to the Register of Deeds regarding the existence of the case directly affecting the
land
‣
No need for court approval to effect a notice of lis pendens
‣
All you need to send is a memorandum or letter, attaching the complaint, to the Register of Deeds
‣
BUT — you need court approval when you intend to cancel the notice
‣
So, easy to cause annotation, hard to cancel
‣
The trial court has the inherent power to cancel a notice of lis pendens.
‣
Notice of lis pendens only applies to judicial cases, not quasi-judical cases. (Heirs of Lopez)
‣
Movants are not entitled to file a notice of lis pendens
‣
ROD has no discretion, its duty is ministerial
WHAT THE NOTICE OF LIS PEDENS SHOULD CONTAIN
‣
The notice shall contain —
1. The names of the parties
2. The object of the action or defense
3. A description of the property in that province affected thereby.
•
And the reference to the number of the certification of title, description of the land, and registered owner
4. The court where the action is pending,
5. The date of the institution of the action
EFFECT OF THE NOTICE
‣
RULE — Anyone who touches (acquires some right) a proper annotated with a Notice of Lis Pedens is affected by
the litigation
‣
A notice of lis pendens affects a transferee pendente lite, who by virtue of the notice, is bound by any judgment,
which may be rendered for or against the transferor, and his title is subject to the results of the pending litigation.
(Vicente vs Avera 2009)
‣
A notice of lis pendens concerns litigation between a transferor and a third party, where the transferee who acquires
land with a notice of lis pendens annotated on the corresponding title stands in the shoes of his predecessor and in
which case the transferee’s title is subject to the results of the pending litigation. (Vicente vs Avera 2009)
‣
A notice of lis pendens is NOT a lien on the property subject of the notice.
‣
If the property is transferred, the transferree steps into the shoes of the transferor
‣
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.
CANCELLING THE NOTICE
‣
RULE — The Notice may be cancelled only upon order of the court, after proper showing that either —
1. The purpose was to molest other party
2. It is not necessary to protect the rights of the party who caused it to be recorded.
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RULE 14: SUMMONS
RULE 14: SUMMONS
OVERVIEW OF SUMMONS
NATURE OF SUMMONS
‣
Summons is a mode, writ, process, notice, or warning, the service of which confers jurisdiction to the court over the
person of the defendant.
‣
A summons is a writ by which the defendant is notified of the action brought against him or her. In a civil action,
jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant's voluntary
appearance in court. When the defendant does not voluntarily submit to the court's jurisdiction, or when there is no valid
service of summons, any judgment of the court, which has no jurisdiction over the person of the defendant, is null and
void. (Sansio vs Mogol 2009)
‣
Also, strict compliance with the Rules is necessary to make the service valid. Compliance with the rules regarding the
service of summons is as much an issue of due process as of jurisdiction. The essence of due process is to be found in
the reasonable opportunity to be heard and submit any evidence one may have in support of his defense. It is elementary
that before a person can be deprived of his property, he should first be informed of the claim against him and the theory
on which such claim is premised. (National Petroleum Gas vs RCBC 2015)
‣
Fundamentally, it is a notice to the defendant that a particular person named therein has commenced an action against
him in a particular court.
‣
An important part of that notice is a direction that the defendant answer the complaint within the period fixed by the
Rules and that unless he so answers, plaintiff will take judgment by default and may be granted the relief applied for.
PURPOSES OF SUMMONS
1. IN ACTIONS IN PERSONAM — TO ACQUIRE JURISDICTION OVER THE PERSON OF THE DEFENDANT
‣
Since it is a writ by which the defendant is notified of the action brought against him, the most basic purpose of
summons, whatever be the nature of the action involved, is to satisfy the requirements of procedural due process.
‣
However, in an action in personam, the purpose of summons is not only to comply with due process but also to
acquire jurisdiction over the person of the defendant.
‣
It needs to be noted at this point that the mere filing of the complaint does not enable the court to acquire
jurisdiction over the person of the defendant. By the filing of the complaint and the payment of the required filing
and docket fees, the court acquires jurisdiction only over the person of the plaintiff, not over the person of the
defendant.
‣
Service of such summons is the means by which the court acquires jurisdiction over his person and is acquired
through coercive process, generally by the service of summons issued by the court, or through the defendant’s
voluntary appearance or submission to the court
‣
Where the action is in personam, that is, one brought against a person on the basis of her personal liability, jurisdiction
over the person of the defendant is necessary for the court to validly try and decide the case
2. IN ACTIONS IN REM/ QUASI IN REM — TO SATISFY TO REQUIREMENTS OF PROCEDURAL DUE PROCESS
‣
In actions in rem and quasi in rem, the court is not concerned with the acquisition of jurisdiction over the person of the
defendant. In these actions, it is the acquisition by the court of jurisdiction over the res which principally matters.
‣
The service of summons or notice to the defendant is NOT for the purpose of vesting the court with jurisdiction but
merely for satisfying the “due process requirements”
‣
In an action in rem or quasi in rem, jurisdiction over the defendant is not a prerequisite to confer jurisdiction on the
court provided that the court acquires jurisdiction over the res.
‣
‣
This does not, however, mean that the service of summons may be dispensed with. The Court adds that summons
must still be served upon the defendant in order to satisfy the due process requirements
The phrase, "against the thing," to describe in rem actions is a metaphor. It is not the "thing" that is the party to an in
rem action; only legal or natural persons may be parties even in in rem actions. "Against the thing" means that
resolution of the case affects interests of others whether direct or indirect. It also assumes that the interests — in the
form of rights or duties — attach to the thing which is the subject matter of litigation. In actions in rem, our procedure
assumes an active vinculum over those with interests to the thing subject of litigation. (De Pedro vs Romasan Dev’t
Corp. 2014)
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REMEDY IN CASE OF ABSENCE OF OR DEFECTIVE SERVICE SUMMONS AND JUDGMENT WAS RENDERED
‣
RULE — If the defendant is not summoned or the service of summons was defective and he has not voluntarily
appeared, judgment against him is VOID
‣
What is the remedy of the defendant agains the judgment?
‣
‣
He can file a petition for annulment of judgment under Rule 47. Based on the following grounds —
1.
Lack of jurisdiction over the person of the defendant — if the action is in personam
2.
Violation of due process — if the action is in rem or quasi in rem
What if the action against the defendant is quasi in rem, and the service of summons was defective, a judgment
was subsequently rendered against the defendant, but instead of filing a petition for annulment of judgment, he
filed a motion for new trial (where the proper grounds are not available), can he subsequently avail of annulment
of judgment?
‣
NO. SEE — De Pedro v. Romasan Development, G.R. No. 194751, November 26, 2014
‣
In this case, a annulment of certificate of title (quasi in rem) was filed against the defendant and the service of
summons was defective.
‣
Petitioner insisted in her motion for new trial that the trial court did not acquire jurisdiction over her person. She did
not allege that fraud, accident, mistake, or excusable negligence impaired her rights. Neither did she allege that
she found newly discovered evidence that could have altered the trial court decision. When her motion for new trial
was denied, she filed a petition for certiorari, insisting that her motion for new trial should have been granted on
the ground of lack of jurisdiction over her person. The Court of Appeals denied the petition for her failure to allege
any ground for new trial. We cannot attribute error on the part of the Court of Appeals for this denial because,
indeed, lack of jurisdiction is not a ground for granting a new trial.
‣
What cannot be denied is the fact that petitioner was already notified of respondent’s action for annulment of
petitioner’s title when she filed a motion for new trial and, later, a petition for certiorari. At that time, petitioner was
deemed, for purposes of due process, to have been properly notified of the action involving her title to the
property. Lack of jurisdiction could have already been raised in an action for annulment of judgment.
‣
Thus, when petitioner erroneously filed her motion for new trial and petition for certiorari instead of an action for
annulment of judgment, she was deemed to have voluntarily participated in the proceedings against her title. The
actions and remedies she chose to avail bound her. Petitioner’s failure to file an action for annulment of judgment
at this time was fatal to her cause. We cannot conclude now that she was denied due process.
DUTY OF CLERK TO ISSUE SUMMONS
SECTION 1. Clerk to issue summons. - Upon the filing of the complaint and the payment of the requisite legal fees, the
clerk of court shall forthwith issue the corresponding summons to the defendants. (1a)
SECTION 20. 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 aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. (23a)
MANDATORY RULE OF ISSUANCE OF SUMMONS
‣
RULE — THE ISSUANCE OF SUMMONS ON THE PART OF THE THE CLERK OF COURT IS MANDATORY
‣
‣
Service of Summons is mainly for purposes of jurisdiction over the person of the defendants. But it can be waived, if
the defendants voluntarily appeared or submitted themselves to the jurisdiction of the court.
‣
In this case, even if there is no summons or there was a defect in its service, a valid judgment can still arise.
‣
An absence of service of summons or even an invalid service of summons will not prevent the court from acquiring
jurisdiction over the defendant as long as he performs acts that could be construed as a voluntary appearance.
This is because under R14, S20, the defendant’s voluntary appearance in the action shall be EQUIVALENT to service
of summons.
‣
But mere knowledge it NOT enough. Knowledge by the defendant or by its agents of an action filed against it does
not dispense with the need for summons. There must be voluntary appearance through filing of motions in court
asking for affirmative reliefs.
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RULE 14: SUMMONS
Filing of answer without objection is voluntary appearance, Also filing of motion for extension of time to file answer is
voluntary appearance. It connotes acts through which the defendant submits himself to the jurisdiction of the court
‣
BUT — the defending party may file a motion to dismiss a claim for lack of jurisdiction over his person and add to
such ground other grounds for dismissal. The defendant may for example, include failure to state a cause of
action, prescription, improper venue and other authorized defenses and objections under the Rules, aside from
lack of jurisdiction over the person of the defendant. The addition of such grounds aside from lack of jurisdiction
over the person of the defendant shall NOT be considered a voluntary appearance
‣
‣
If MTD of grounds other than lack of jurisdiction over the person of the defendant, this is considered voluntary
appearance
When should the Clerk of Court should issue the summons to the defendants?
‣
Upon —
1. Filing of the Complaint
2. Payment of the Filing Fees
‣
When the Court should issue the summons?
‣
‣
Within one day from receipt of the complaint
What if an additional defendant is joined?
‣
He must be served with summons as if he were an original party defendant
‣
‣
EXCEPT — In substitution of an administrator or one’s heirs to a deceased party (service of order of substitution is
sufficient in this case) (See Rule 3, Sec. 16)
When should service of new summons should be done in case of an amended complaint?
1. If a new cause of action is alleged in an amended complaint BEFORE the defendant has appeared in court —
another summons must be served on the him with the amended complaint.
2. If the defendant is in default as to the original complaint, and an amended complaint is filed while such default
exists — a new summons (with regard to the amended complaint) must be filed.
‣
NOTE — Basically, when the defendant has yet to appear in court (court still has no jurisdiction over him), a new
summons must be filed if the complaint is amended. When court already has jurisdiction over him, even if the
amendment states a new case of action, no new service of summons is required
FORM AND CONTENTS OF THE SUMMONS
SECTION 2. Contents. - The summons shall be directed to the defendant, signed by the clerk of court under seal, and
contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer
within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by
default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each
copy of the summons. (3a)
FORM OF THE SUMMONS
1. It should be directed to the defendant
2. Signed by the Clerk of Court under Seal
CONTENTS OF THE SUMMONS
1. The name of the court and the names of the parties to the action
2. A direction that the defendant answer within the time fixed by these Rules;
3. A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief
applied for
4. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and
each copy of the summons.
‣
BUT — a defendant is still bound to comply with the summons even if service was made without attaching a copy of
the complaint.
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In one case, the summons was not accompanied by a copy of the complaint. The defendant did not appear and file
her answer as ordered. The trial court then issued an order declaring her in default. A principal issue raised in the
Supreme Court was whether or not the proceedings in the trial court should be annulled on the ground that the
defendant had never been summoned pursuant to the Rules because she was not served a copy of the complaint. In
sustaining the lower court’s refusal to revoke its decision, the Supreme Court, while admitting that the service of
summons was defective, treated the defect as having been waived by the defendant’s failure to seasonably challenge
the trial court’s jurisdiction over her person. (Pagalaran vs Bal-latan)
‣
WHO SHOULD SERVE THE SUMMONS
SECTION 3. By whom served. - The summons may be served by the sheriff, his deputy, or other proper court officer, or for
justifiable reasons by any suitable person authorized by the court issuing the summons. (5a)
‣
The summons may be served by either —
1. The Sheriff
2. Sheriff’s deputy
3. Other proper court officer
4. Any suitable person authorized by the court issuing the summons if there are justifiable reasons
5. Officer having the management of such jail or institution (In case of Service upon prisoners under Sec. 9) — He is
deemed deputized by the Court as a special sheriff
‣
NOTE — Service by other than those enumerated in Section 3 is invalid.
RETURN AND PROOF OF SERVICE WHEN SERVICE OF THE SUMMONS IS COMPLETED
SECTION 4. Return. - When the service has been completed, the server shall, within five (5) days therefrom, serve a copy
of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk who
issued it, accompanied by proof of service. (6a)
SECTION 18. Proof of service. - The proof of service of a summons shall be made in writing by the server and shall set
forth the manner, place, and date of service; shall specify any papers which have been served with the process and the
name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his
deputy. (20)
SECTION 19. Proof of service by publication. - If the service has been made by publication, service may be proved by the
affidavit of the printer, his foreman or principal clerk, or of the 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 last known address.
(21)
DUTIES OF THE PROCESS SERVER WHEN THE SERVICE OF SUMMONS HAS BEEN COMPLETED
‣
RULE — THE SERVER SHALL, WITHIN FIVE (5) DAYS FROM SERVICE OF SUMMONS —
1. Serve a copy of the return, personally or by registered mail, to the plaintiff's counsel; and
2. Return the summons to the clerk who issued it, accompanied by proof of service
‣
How should service of summons be proved (proof of service)?
1.
Proof of Service if made by Service in Person or Substituted Service
a. Be made in writing by the server; and
b. Specify the —
i.
Manner, place, and date of service
ii.
Any papers which have been served with the process
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iii. Name of the person who received the same
c. Sworn to when made by a person other than a sheriff or his deputy.
2. Proof when the service has been made by Publication
a. Affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager
b. A copy of the publication attached to the affidavit, and
c. 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 last known address.
ISSUANCE OF ALIAS SUMMONS IN CASE SERVICE OF SUMMONS FAILS
SECTION 5. Issuance of alias summons. - If a summons is returned without being served on any or all of the defendants,
the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service,
within five (5) days therefrom.
In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a)
WHEN THE PLAINTIFF CAN DEMAND THE CLERK OF COURT TO ISSUE AN ALIAS SUMMONS
1. Summons unserved — If a summons is returned without being served on any or all of the defendants
‣
In this case, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure
of service, within five (5) days therefrom.
‣
Sheriff must describe in the return the facts and circumstances surrounding the attempted personal service
‣
The efforts made to find the defendant and the reasons behind the failure must be clearly narrated.
2. Lost summons — If the summons has been lost
HOW TO OBTAIN LEAVE OF COURT UNDER THIS SECTION
SECTION 17. Leave of court. - Any application to the court under this Rule for leave to effect service in any manner for
which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds for the application. (19)
‣
Normally you need leave of court for the special modes of service of summons. This is, if the summons will be served by
a mode other than service upon person or substituted service.
VOLUNTARY APPEARANCE BY DEFENDANT
SECTION 20. 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 aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. (23a)
‣
RULE — THE DEFENDANT'S VOLUNTARY APPEARANCE IN THE ACTION SHALL BE EQUIVALENT TO SERVICE OF SUMMONS
‣
The defending party may file a motion to dismiss a claim for lack of jurisdiction over his person and add to such
ground other grounds for dismissal. The defendant may for example, include failure to state a cause of action,
prescription, improper venue and other authorized defenses and objections under the Rules, aside from lack of
jurisdiction over the person of the defendant. The addition of such grounds aside from lack of jurisdiction over the
person of the defendant shall NOT be considered a voluntary appearance
‣
Considered voluntary appearance —
1. Filing of a motion to dismissed based on grounds other than lack of jurisdiction over the person of the defendant is
2. Fling of answer without objection is voluntary appearance
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3. Filing of motion for extension of time to file answer
‣
SEE — National Petroleum Gas Incorporated, et al. v. RCBC, G.R. No. 183370, August 17, 2015
‣
In this case, despite improper service of summons upon their persons, the individual petitioners are deemed to have
submitted to the jurisdiction of the court through their voluntary appearance. The individual petitioners prayed, among
others, for the following: (1) discharge of the writ of attachment on their properties; (2) denial of the motion to declare
them in default; (3) admission of the Comment/Opposition (to the motion to declare them in default) filed on December
19, 2006; and (4) denial of respondent's motion to strike off from the records (their opposition to the motion to declare
them in default).
‣
By seeking affirmative reliefs from the trial court, the individual petitioners are deemed to have voluntarily submitted to
the jurisdiction of said court. A party cannot invoke the jurisdiction of a court to secure affirmative relief against
his opponent and after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction.
MODES OF SERVICE OF SUMMONS
‣
NOTE — Section 6 to 16 deals with the different kinds of modes of service of summons
‣
AS TO THE MEANS OF SERVICE —
1. Service in person
a. Persons in the Philippines (Sec. 6)
b. Service to defendant who does not reside and is not found in the Philippines and the action is in rem or quasi in
rem (Rule 14, Sec. 15)
2. Substituted Service
a. Persons in the Philippines when service upon person cannot be effected (Sec. 7)
b. Service upon residents temporarily out of the Philippines (Rule 14, Sec. 16)
3. Service by publication
a. Defendants with unknown identities or whereabouts (Rule 14, Sec. 14)
4. Service by publication AND registered mail
a. Service to defendant who does not reside and is not found in the Philippines and the action is in rem or quasi in
rem (Rule 14, Sec. 15)
b. Service upon residents temporarily out of the Philippines (Rule 14, Sec. 16)
c. Service upon a foreign private juridical entity is not registered in the Philippines or has no resident agent (Rule 14,
Sec. 12)
6. Other manner the court may deem sufficient
a. Service to defendant who does not reside and is not found in the Philippines and the action is in rem or quasi in
rem (Rule 14, Sec. 15)
b. Service upon residents temporarily out of the Philippines (Rule 14, Sec. 16)
c. Service upon a foreign private juridical entity is not registered in the Philippines or has no resident agent (Rule 14,
Sec. 12)
7. Service to the proper corporate officers
a. Service upon a private domestic juridical entity (Rule 14, Sec. 11)
8. Service to the Solicitor-General
a. Service upon the national government (Rule 14, Sec. 13)
9. Service to the executive head, or on such other officer or officers as the law or the court may direct
a. Service upon the local government units and public corporations (Rule 14, Sec. 13)
10. Personal service coursed through the appropriate court in the foreign country with the assistance of the
Department of Foreign Affairs
a. Service upon a foreign private juridical entity is not registered in the Philippines or has no resident agent (Rule 14,
Sec. 12)
11. Facsimile and other recognized electronic means that could general proof of service
a. Service upon a foreign private juridical entity is not registered in the Philippines or has no resident agent (Rule 14,
Sec. 12)
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AS TO THE PERSON ON WHOM SERVICE IS TO BE MADE —
RULE 14: SUMMONS
1. Natural Persons
a. Service in person (Rule 14, Sec. 6)
b. Substituted service (Rule 14, Sec. 7)
c. Service upon entities without juridical personality (Rule 14, Sec. 8)
d. Service to prisoners (Rule 14, Sec. 9)
e. Service upon Minors, Insane and Incompetents (Rule 14, Sec. 10)
f.
Service upon defendant whose identity or whereabouts are unknown (Rule 14, Sec. 14)
g. Extraterritorial service — service to defendant who does not reside and is not found in the Philippines and the
action is in rem or quasi in rem (Rule 14, Sec. 15)
h. Service upon residents temporarily out of the Philippines (Rule 14, Sec. 16)
2. Juridical Persons
a. Service upon a private domestic juridical entity (Rule 14, Sec. 11)
b. Service upon a foreign private juridical entity registered in the Philippines or has a resident agent (Rule 14, Sec. 12)
c. Service upon a foreign private juridical entity is not registered in the Philippines or has no resident agent (Rule 14,
Sec. 12)
d. Service upon the Government and Public Corporations (Rule 14, Sec. 13)
A. SERVICE OF SUMMONS TO NATURAL PERSONS
SERVICE IN PERSON
SECTION 6. Service in person on defendant. - Whenever practicable, the summons shall be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (7a)
‣
RIANO — that under the present rule, Sec. 6 of Rule 14 refers to the mode of service therein as “Service in person on
defendant,” not ‘personal service.’ The latter is a mode by which pleadings, motions, notices, orders, judgments and
other papers are served under Sec. 6 of Rule 13 of the Rules of Court. In short, ‘personal service’ is primarily a concept
actually found in Rule 13 and not Rule 14. The terms are often used interchangeably because the mode of service in Sec.
6 of Rule 14 used to be referred to in Sec. 7 of Rule 14 of the 1964 Rules as ‘personal service of summons.
PRIORITY OF SERVICE IN PERSON
‣
RULE — Service in Person is PRIORITIZED over the other modes
‣
Summons should be personally served on the defendant.
‣
Personal service of summons most effectively ensures that the notice desired under the constitutional requirement of
due process is accomplished. The essence of personal service is the handing or tendering of a copy of the summons
to the defendant himself,, wherever he may be found; that is, wherever he may be, provided he is in the Philippines.
(Sansio vs Mogol 2009)
‣
Only if service in person cannot be made promptly can the process server resort to substituted service.
‣
Moreover, the proof of service of summons must —
1. Indicate the impossibility of service of summons within a reasonable time;
2. Specify the efforts exerted to locate the defendant; and
3. State that the summons was served upon a person of sufficient age and discretion who is residing in the
address, or who is in charge of the office or regular place of business of the defendant.
‣
It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in
the officer’s return.
‣
The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service
renders the service of summons ineffective
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RULE 14: SUMMONS
HOW PERSONAL SERVICE IS MADE
‣
Either by —
1. Handing a copy thereof to the defendant in person
‣
Summons need not be served in the residence of the defendants, it may be handed to him wherever he may be
found, provided it is in the Philippines. (Sansio vs Mogol 2009)
2. Tendering it to him (f he refuses to receive and sign for it)
‣
If the defendant refuses the service, the sheriff is not supposed to resort to substituted service immediately. The
sheriff or the appropriate officer is required by the Rules to “tender” the summons to the defendant. ‘Tender of
summons’ is not a separate mode of service. It is a part of service in person and applies when the defendant
refuses to receive and sign for the summons. Tendering only applies to personal service, not substituted service
SERVICE OF SUMMONS UPON A PERSON OUTSIDE THE PHILIPPINES
‣
NOTE — Service upon person in Sec. 6 only applies when the defendant is in the Philippines (Sansio vs Mogol 2009), if
the person is abroad, observe the following rules —
1. Philippine resident —
a. Substituted service (Sec. 7) — If the defendant is out of the country, he cannot be expectedly served within a
reasonable time. The fact that “for justifiable causes, the defendant cannot be served within a reasonable time,”
constitutes the operative fact that triggers the application of substituted service.
b. Extraterritorial service (Sec. 16, 15) — 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 rules on extra-territorial service (Sec. 16)
‣
i.
Publication in a newspaper of general circulation in such places and for such time as the court may order and
Registered Mail
ii.
In any other manner the court may deem sufficient.
BUT — extraterritorial service only applies if the action is in rem or quasi in rem
2. Foreign resident — follow rules on extra-territorial service
3. Unknown whereabouts — By publication in a newspaper of general circulation and in such places and for such time
as the court may order. (Sec. 14)
SUBSTITUTED SERVICE
SECTION 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's
residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at
defendant's office or regular place of business with some competent person in charge thereof. (8a)
WHEN SUBSTITUTED SERVICE CAN BE MADE
‣
RULE — ONLY IF SERVICE IN PERSON CANNOT BE MADE PROMPTLY CAN THE PROCESS SERVER RESORT TO SUBSTITUTED
SERVICE
‣
‣
Personal service of summons should and always be the first option, and it is only when the said summons cannot be
served within a reasonable time can the process server resort to substituted service. (Pascual vs Pascual 2009)
‣
There must be impossibility of prompt personal service
‣
The impossibility of personal service justifying availment of substituted service should be explained in the proof of
service; why efforts exerted towards personal service failed. The pertinent facts and circumstances attendant to the
service of summons must be stated in the proof of service or Officer’s Return; otherwise, the substituted service
cannot be upheld.
What does “Reasonable Time” mean?
‣
Section 8, Rule 14 provides that the plaintiff or the sheriff is given a reasonable time to serve the summons to the
defendant in person, but no specific time frame is mentioned.
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Reasonable time is defined as so much time as is necessary under the circumstances for a reasonably prudent and
diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights
and possibility of loss, if any, to the other party.
‣
NOTE — Under the Rules, the service of summons has no set period. However, when the court, clerk of court, or the
plaintiff asks the sheriff to make the return of the summons and the latter submits the return of summons, then the
validity of the summons lapses. The plaintiff may then ask for an alias summons if the service of summons has failed.
(Pascual vs Pascual 2009 citing Manotoc vs CA)
What then is a reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of
prompt service?
1.
To the plaintiff — reasonable time means no more than seven (7) days since an expeditious processing of a
complaint is what a plaintiff wants. (Pascual vs Pascual 2009 citing Manotoc vs CA)
2.
To the sheriff — reasonable time means 15 to 30 days because at the end of the month, it is a practice for the
branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The
Sheriffs Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be
submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus, one
month from the issuance of summons can be considered reasonable time with regard to personal service on the
defendant.
‣
‣
RULE 14: SUMMONS
Within a “reasonable time” contemplates a period of time longer than that demarcated by the word “prompt,” and
presupposes that a prior attempt at personal service, within a justifiable time frame as would be necessary to bring
the defendant within the jurisdiction of the court, had failed. (Pascual vs Pascual 2009 citing Manotoc vs CA)
‣
Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and
reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are
enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the
defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering,
canny, and diligent in serving the process on the defendant. (Pascual vs Pascual 2009 citing Manotoc vs CA)
‣
For substituted service of summons to be available, there must be several attempts by the sheriff to personally
serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove
impossibility of prompt service. Several attempts means at least three (3) tries, preferably on at least two different
dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of
service can be confirmed or accepted. (Pascual vs Pascual 2009 citing Manotoc vs CA)
NOTE — If you file a complaint and you don’t see to it that the summons is served within a reasonable time, your
complaint can be dismissed for failure to prosecute. So, the Plaintiff must act accordingly once the Summons is
returned by the Sheriff for failure to deliver. (See Sec. 5)
How many times should the attempted personal service been done?
‣
At least 3 times, on at least 2 different dates. For substituted service of summons to be available, there must be
several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which
eventually resulted in failure to prove impossibility of prompt service. Several attempts means at least three (3) tries,
preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is
only then that impossibility of service can be confirmed or accepted. (Pascual vs Pascual 2009 citing Manotoc vs CA)
HOW SUBSTITUTED SERVICE IS MADE
‣
Either by —
1. LEAVING THEM AT THE DEFENDANT’S RESIDENCE
‣
This is by leaving copies of the summons at the defendant's residence with some person of suitable age and
discretion then residing therein
‣
Residence refers to the place where the person named in the summons is living at the time when the service is
made, even though he may be temporarily out of the country at the time. (Palma vs Galvez 2010)
‣
The summons must be left with a person with —
a. Suitable Age — he must have attained the age of full legal capacity (18 years old)
b. Sufficient Discretion — He is considered to have enough discernment to understand the importance of a
summons.
‣
Discretion is defined as the ability to make decisions which represent a responsible choice and for which an
understanding of what is lawful, right or wise may be presupposed. Thus, to be of sufficient discretion, such
person must know how to read and understand English to comprehend the import of the summons, and
fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time
for the person to take appropriate action. (Pascual vs Pascual 2009 citing Manotoc vs CA)
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c.
d.
‣
RULE 14: SUMMONS
Relation of confidence to the defendant — The person must have the relation of confidence to the
defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. (Pascual
vs Pascual 2009 citing Manotoc vs CA)
Must reside at the Defendant’s Residence — There must be permanence, cannot be a temporary guest
NOTE — The sheriff must therefore determine if the person found in the alleged dwelling or residence of
defendant is of legal age, what the recipients relationship with the defendant is, and whether said person
comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the
defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and
specifically described in the Return of Summons.
2. LEAVING THEM AT THE DEFENDANT’S OFFICE OR PRINCIPAL PLACE OF BUSINESS
‣
This is by leaving the copies at defendant's office or regular place of business with some competent person in
charge thereof
‣
Competent Person in Charge — Must be the one managing the office or business of the defendant and Must have
sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the
prejudicial effects arising from inaction on the summons.
‣
It is not necessary that the person in charge of the defendant’s regular place of business be specifically
authorized to receive the summons. It is enough that he appears to be in charge
‣
NOTE — The rule does not allow leaving the summons with anyone else other than with those mentioned here
‣
What is the effect if defendant does not actually receive the summons which was served through substituted
service?
‣
As long as substituted service was properly effected there is no adverse effect. Where the substituted service has
been validly served, its validity is NOT affected by the defendant’s failure to actually receive the summons from the
person with whom the summons had been left. It is immaterial that the defendant does not in fact receive actual
notice. The rule does not require the sheriff or any authorized server to verify that the summons left in the defendant’s
residence or office was actually delivered to the defendant
PROOF OF COMPLIANCE WITH THE REQUIREMENTS OF SUBSTITUTED SERVICE
‣
How should the compliance with the requirements of substituted service be proved?
‣
‣
1.
Facts and circumstances surrounding the attempted personal service.
2.
The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the
Return.
3.
The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of
the occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the
summons on defendant must be specified in the Return to justify substituted service.
‣
The form on Sheriffs Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs published by
the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact
of failure. Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that impossibility of prompt
service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts,
which should be made in the proof of service. (Pascual vs Pascual 2009 citing Manotoc vs CA)
‣
RATIONALE — This is necessary because substituted service is in derogation of the usual method of service. It is a
method extraordinary in character and, hence, may be used only as prescribed and in the circumstances authorized
by statute. Here, no such explanation was made. Failure to faithfully, strictly, and fully comply with the requirements of
substituted service renders said service ineffective. (Pascual vs Pascual 2009 citing Manotoc vs CA)
‣
Given the fact that the substituted service of summons may be assailed, by a Motion to Dismiss, it is imperative that
the pertinent facts and circumstances surrounding the service of summons be described with more particularity in the
Return or Certificate of Service. (Manotoc vs CA 2006)
What if there was defective substituted service but the defendant had notice of such service?
‣
‣
Through the sheriff’s return. The sheriff must describe in the Return of Summons the following —
The defect is NOT cured. The service is still defective. The inquiry must be as to whether the requisites of the statute
have been complied with, and such compliance must appear on the record. The fact that the defendant had actual
knowledge of attempted service does not render the service effectual if in fact the process was not served in
accordance with the requirements of the statute. (Manotoc vs CA 2006)
Can the presumption of regularity apply to the sheriff’s return?
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RULE 14: SUMMONS
For the presumption to apply, the Sheriffs Return must show that serious efforts or attempts were exerted to
personally serve the summons and that said efforts failed. These facts must be specifically narrated in the Return. To
reiterate, it must clearly show that the substituted service must be made on a person of suitable age and discretion
living in the dwelling or residence of defendant. Otherwise, the Return is flawed and the presumption cannot be
availed of. The presumption of regularity in the performance of official functions by the sheriff is not applicable where it
is patent that the sheriffs return is defective. (Manotoc vs CA 2006)
SERVICE UPON ENTITIES WITHOUT JURIDICAL PERSONALITY
SECTION 8. Service upon entity without juridical personality. - 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
severed before the action was brought. (9a)
‣
RULE — 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 either —
1. Upon any one of them, or
2. 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
severed before the action was brought
‣
NOTE — Remember that under Sec. 15 of Rule 3, 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.
‣
Example — If A, B and C enter into a transaction under the name, ABC Corporation, an entity which has actually no
juridical personality, A, B, and C may be sued under the name, ABC Corporation.
SERVICE UPON PRISONERS
SECTION 9. Service upon prisoners. - When the defendant is a prisoner confined in a jail or institution, service shall be
effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special
sheriff for said purpose. (12a)
‣
The officer is deemed deputized as a special sheriff for said purpose.
SERVICE UPON MINORS, INSANE AND INCOMPETENTS
SECTION 10. Service upon minors and incompetents. - When the defendant is a minor, insane or otherwise an
incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his
guardian ad litem whose appointment shall be applied for by the plaintiff.
In the case of a minor, service may also be made on his father or mother. (10a, 11a)
‣
RULE — Service shall be made upon BOTH —
1. The minor, insane or incompetent personally, and
2. On his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by
the plaintiff.
‣
NOTE — In the case of a minor, service may also be made on his father or mother.
SERVICE UPON DEFENDANT WHOSE IDENTITY OR WHEREABOUTS ARE UNKNOWN
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RULE 14: SUMMONS
SECTION 14. Service upon defendant whose identity or whereabouts are unknown. - In any action where the defendant is
designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by
diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation
and in such places and for such time as the court may order. (16a)
APPLICABILITY OF SEC. 14
‣
Sec. 14 applies in any action where the defendant is designated as either —
1. Unknown identity — An unknown owner, or the like, or
2. Unknown whereabouts — Whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry
MODE OF SERVICE IN SEC. 14
‣
RULE — Service may, by leave of court, be effected upon him by publication in a newspaper of general circulation
and in such places and for such time as the court may order.
‣
No need for personal service since you don’t know who the defendant is or where he is anyway.
‣
NOTE — Distinguish this from extraterritorial service (Sec. 15) and service to residents temporarily out of the
Philippines (Sec. 16)
‣
Unlike extraterritorial service (Sec. 15) and service to residents temporarily out of the Philippines (Sec. 16), Sec. 14
only requires publication. No need to send the summons by registered mail to the last known address.
‣
Similar to Sec. 16, Sec. 14 can apply to ANY kind of action (whether in personam, in rem or quasi in rem). Unlike in
extraterritorial service (Sec. 15) which only applies to in rem and quasi in rem actions.
EXTRATERRITORIAL SERVICE
SECTION 15. Extraterritorial service. - 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 as under Section 6;
or by publication in a newspaper of general circulation in such places and for such time 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 time, which shall not be less than sixty (60) days after notice,
within which the defendant must answer. (17a)
PURPOSE OF EXTRATERRITORIAL SERVICE
‣
Service of summons in the manner provided in this section is not for the purpose of vesting it with jurisdiction over the
person of the defendant but for complying with the requirement of fair play or due process, so that he will be informed of
the pendency of the action against him.
‣
In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires jurisdiction over the res. Nevertheless, summons is served upon
the defendant not for the purpose of vesting the court with jurisdiction over the person of the defendant but merely for
satisfying the due process requirement. Compliance with due process is actually the underlying purpose of all modes of
extraterritorial service
APPLICABILITY OF EXTRATERRITORIAL SERVICE
1. Defendant is a natural person who does NOT reside and is NOT found in the Philippines; and
‣
This section does NOT apply to corporations, apply Sections 11 and 12 in case of corporations
2. The action is in rem or quasi in rem in that it affects either the —
a. Personal status of the plaintiff
b. Property within the Philippines, in which —
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RULE 14: SUMMONS
1. The defendant has or claims a lien or interest, actual or contingent, or
2. In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein,
or
3. The property of the defendant has been attached within the Philippines
MODES OF EXTRATERRITORIAL SERVICE
‣
RULE — Service may, by leave of court, be effected out of the Philippines by either —
1. Personal service outside the country as under Section 6
2. Service by publication in a newspaper of general circulation in such places and for such time as the court
may order AND registered mail
‣
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.
‣
Normally publication is effected in the Philippines, but it’s up to the court, it can order publication in that foreign
country if it wants
3. Any other manner the court may deem sufficient
‣
NOTE —
‣
There is NO substituted service to a non-resident.
‣
A fundamental concept to be remembered in extraterritorial service of summons is that it does not apply to a
defendant who is a resident of the Philippines. It does not also apply to an action in personam. If the action is in
personam, extraterritorial service of summons will not be available
‣
So how do you acquire jurisdiction over a non-resident if the action is in personam?
1. Through voluntary appearance
2. Through conversion of the action to an action quasi in rem through preliminary attachment (if the nonresident defendant has properties in the Philippines)
‣
Under Sec. l[f] of Rule 57, one ground upon which the writ of preliminary attachment may issue is in “an action
against a party who does not reside and is not found in the Philippines.”
‣
Following established principles, jurisdiction over the person of the defendant would no longer be required
when there is a writ of preliminary attachment of the defendant’s properties because the suit has assumed the
character of an action quasi in rem which merely requires jurisdiction over the res.
‣
After availing of extraterritorial service of summons, the suit can then proceed despite the absence of the
defendant because in this case, the property of the defendant would now be the object of the judicial power.
SERVICE UPON RESIDENTS TEMPORARILY OUT OF THE PHILIPPINES
SECTION 16. Residents temporarily out of 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. (18a)
APPLICABILITY OF SEC. 16
‣
It apples in any action is commenced against a defendant who ordinarily resides within the Philippines, but who is
temporarily out of it
MODES OF SERVICE UNDER SEC. 16
‣
RULE — Service may, by leave of court, be also effected out of the Philippines, as under the preceding section.
(So, just follow Sec. 15 on Extraterritorial Service)
1. Personal Service outside the country
2. Publication in a newspaper of general circulation in such places and for such time as the court may order and
Registered Mail
‣
A copy of the summons and order of the court shall be sent by registered mail to the last known address of the
defendant
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RULE 14: SUMMONS
3. In any other manner the court may deem sufficient
4. Substituted Service, if there is impossibility and there are earnest efforts to serve
‣
‣
See Sec. 7 Take note that the section uses “may”, so resorting to Sec 15 is not mandatory before going for
substituted service. This is allowed because the defendant still resides in the Philippines. But it is not allowed in
extraterritorial service
‣
SEE — Palma v. Galvez, G.R.No. 165273, March 10, 2010
‣
Because Section 16 of Rule 14 uses the words may and also, it is not mandatory. Other methods of service of
summons allowed under the Rules may also be availed of by the serving officer on a defendant-resident who is
temporarily out of the Philippines. Thus, if a resident defendant is temporarily out of the country, any of the
following modes of service may be resorted to: (1) substituted service set forth in section 7 ( formerly Section
8), Rule 14; (2) personal service outside the country, with leave of court; (3) service by publication, also with
leave of court; or (4) in any other manner the court may deem sufficient.
‣
A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a
local base, so to speak, to which any inquiry about him may be directed and where he is bound to return.
Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably
expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate
with him from time to time any incident of importance that may affect him or his business or his affairs. It is
usual for such a man to leave at his home or with his business associates information as to where he may be
contacted in the event a question that affects him crops up. If he does not do what is expected of him, and a
case comes up in court against him, he cannot just raise his voice and say that he is not subject to the
processes of our courts. He cannot stop a suit from being filed against him upon a claim that he cannot be
summoned at his dwelling house or residence or his office or regular place of business. Not that he cannot be
reached within a reasonable time to enable him to contest a suit against him. There are now advanced facilities
of communication. Long distance telephone calls and cablegrams make it easy for one he left behind to
communicate with him.
NOTE — unlike in Sec. 15, under this section the action can be in personam
‣
So, while this section refers to Sec. 15, there is still a different rule since substituted service is available in this Section
but not in Sec. 15; and Sec. 15 is confined to actions in rem and quasi in rem, while this section does not distinguish.
B. SERVICE OF SUMMONS TO JURIDICAL PERSONS
SERVICE UPON DOMESTIC PRIVATE JURIDICAL ENTITY
SECTION 11. Service upon domestic private juridical entity. - 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. (13a)
APPLICABILITY OF SEC. 11
‣
It applies when the defendant is a corporation, partnership or association organized under the laws of the Philippines with
a juridical personality. In other words, it is a Philippine corporation or other juridical entity.
MODE OF SERVICE IN SEC. 11
‣
RULE — Service may be made on either the following —
1. President
2. Managing partner
3. General manager
4. Corporate secretary
5. Treasurer
6. In-house counsel
‣
However, one should look at the functions of the officer, not the nomenclature.
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RULE 14: SUMMONS
‣
Is this list exclusive?
‣
‣
‣
YES. SEE — National Petroleum Gas Incorporated, et al. v. RCBC, G.R. No. 183370, August 17, 2015
‣
When the defendant is a domestic corporation service of summons may be made only upon the persons
enumerated in Section 11, Rule 14 of the Rules. The enumeration of persons to whom summons may be served is
restricted, limited and exclusive following the rule on statutory construction expressio unios est exclusio alterius.
Substantial compliance cannot be invoked. Service of summons upon persons other than those officers
specifically mentioned in Section 11, Rule 14 is void, defective and not binding to said corporation
‣
NOTE — Person in charge of office NOT included here
EXCEPT — Summons may be served on persons not in the list if they acted as agents or representatives of the
persons authorized to receive it.
‣
A corporation may be served summons through its agents or officers who under the Rules are designated to
accept service of process. A summons addressed to a corporation and served on the secretary of its president
binds that corporation. This is based on the rationale that service must be made on a representative so integrated
with the corporation sued, that it is safe to assume that said representative had sufficient responsibility and
discretion to realize the importance of the legal papers served and to relay the same to the president or other
responsible officer of the corporation being sued. The secretary of the president satisfies this criterion. This rule
requires, however, that the secretary should be an employee of the corporation sought to be summoned. Only in
this manner can there be an assurance that the secretary will “bring home to the corporation the notice of the filing
of the action” against it. (Vlason Enterprises vs CA 1999)
‣
In this case, it is clear, therefore, that Abante, in so receiving the summons, did so in representation of Ang who, as
corporate secretary, is one of the officers competent under the Rules of Court to receive summons on behalf of a
private juridical person. Thus, while it may be true that there was no direct, physical handing of the summons to
Ang, the latter could at least be charged with having constructively received the same, which in Our view, amounts
to a valid service of summons. Having herself instructed Abante to receive the summons, Ang, and for that matter,
petitioner corporation, is thus now precluded from impugning the jurisdiction of the trial court on the ground of
invalid service of summons. In point in this regard is the principle of estoppel which, under our remedial laws, is an
effective bar against any claim of lack of jurisdiction. Under said doctrine, an admission or representation is
rendered conclusive upon the person making it and cannot be denied or disproved as against the person relying
thereon. (National Petroleum Gas Incorporated, et al. v. RCBC 2015)
What about service to Government-owned or controlled corporations?
1. If created by law — See the charter who are authorized to receive summons.
2. If created through the corporation code — Follow Sec 11.
SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY
SECTION 12. Service upon foreign private juridical entity. - When the defendant is a foreign private juridical entity which
has transacted business in the Philippines, 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 or agents within the Philippines.
If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of
court, be effected out 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;
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 or any recognized electronic means that could generate proof of service; or
d. By such other means as the court may in its discretion direct. (14a)
APPLICABILITY OF SEC. 12
‣
Sec. 12 covers either —
1. Service when the defendant is a foreign private juridical entity which has transacted business in the Philippines and is
registered in the Philippines or has a resident agent
2. Service when the foreign private juridical entity is NOT registered in the Philippines or has NO resident agent
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RULE 14: SUMMONS
MODES OF SERVICE UNDER SEC. 12
1. FOREIGN PRIVATE JURIDICAL ENTITY WHICH HAS TRANSACTED BUSINESS IN THE PHILIPPINES AND IS REGISTERED IN THE
PHILIPPINES OR HAS A RESIDENT AGENT
‣
Service may be made to —
a. Its resident agent designated in accordance with law for that purpose
‣
When a foreign corporation has designated a person to receive summons on its behalf pursuant to the
Corporation Code. That designation is exclusive and service of summons on any other person is inefficacious
b. If there be no such agent, service can be made on either —
‣
i.
The government official designated by law to that effect, or
ii.
Any of its officers or agents within the Philippines
NOTE — when the foreign corporation has a subsidiary incorporated under the SEC, and the subsidiary is the one being
sued, then use Sec. 11, since the subsidiary is a domestic corporation.
2. FOREIGN PRIVATE JURIDICAL ENTITY IS NOT REGISTERED IN THE PHILIPPINES OR HAS NO RESIDENT AGENT
‣
Service may, with leave of court, be effected out 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
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 or any recognized electronic means that could generate proof of service
d. By such other means as the court may in its discretion direct.
‣
Remember — Rule 11, Sec. 2 (Filing of Answer by the Foreign Private Juridical Entity)
SUMMARY OF SERVICE BY PUBLICATION AS A MODE OF SERVICE
‣
Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded
to make an objection of any sort against the right sought to be established.
‣
It is the publication of such notice that brings in the whole world as a party in the case and vests the court with
jurisdiction to hear and decide it
‣
Service by Publication is one of the recognized mode of service in these instances —
1. Against a defendant who is a foreign private juridical entity not registered and with no resident agent in the Philippines
(Sec. 12)
2. Against a defendant who is a resident when his identity or whereabouts are unknown (Sec. 14)
3. Extraterritorial Service — when the defendant is a natural person who does NOT reside and is NOT found in the
Philippines and the action is in rem or quasi in rem (Sec. 15)
4. Against a defendant who is a resident when he is temporarily out of the Philippines (Sec. 16)
‣
BUT — Sec. 14 only requires publication, whereas the others require publication AND registered mail
‣
Is service by publication allowed in actions in personam?
‣
GENERALLY NO. Where the action is in personam, i.e., one that seeks to impose some responsibility or liability
directly upon the person of the defendant through the judgment of a court, and the defendant is in the Philippines, the
service of summons may be made through personal or substituted service. (Sansio vs Mogol 2009) In actions in rem
or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to conferring jurisdiction on the
court, provided that the court acquires jurisdiction over the res. Nonetheless, summons must be served upon the
defendant in order to satisfy the requirements of due process. For this purpose, service may be made by publication
as such mode of service is allowed in actions in rem and quasi in rem. (Republic vs Glasgow 2008)
‣
EXCEPT — It is allowed if it the action falls under Sec. 14 and 16.
1. Against a defendant who is a resident when his identity or whereabouts are unknown (R14, S14)
‣
Where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained despite a diligent inquiry, service may, by leave of court, be effected upon
him by publication in a newspaper of general circulation and in such places and for such time as the court may
order
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‣
RULE 14: SUMMONS
The rule in Sec. 14 of Rule 14 authorizes summons by publication in any action and the rule obviously does not
distinguish whether the action is in personam, in rem or quasi in rem. The tenor of the rule authorizes summons
by publication whatever the action may be as long as the identity of the defendant is unknown or his
whereabouts are unknown.
2. Against a defendant who is a resident when he is temporarily out of the Philippines (R14, S16)
‣
‣
Under Sec. 16 of Rule 14, “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 effected out of the
Philippines, as under the preceding section.
‣
The ‘preceding section’ referred to in Sec. 16 is necessarily Sec. 15 on extraterritorial service of summons.
Significantly, one of the modes of service of summons under Sec. 15 is “by publication in a newspaper of
general circulation...” Summons by publication, therefore, applies to a resident of the Philippines who is
temporarily out of the country.
‣
Like in the case of an unknown defendant or one whose whereabouts are unknown, the rule affecting residents
who are temporarily out of the Philippines applies in any action.
‣
BUT — this rule authorizing summons by publication appears superfluous and unnecessary. Without such
provision, a resident defendant temporarily outside of the Philippines may still be served through the
substituted service under Sec. 7 of Rule 14.
BUT — if the action falls under Sec. 12 and 15, it is submitted that it is NOT allowed
‣
It is not allowed Sec. 15 (Extraterritorial service) because the section expressly provides that it only applies to
actions in rem or quasi in rem
‣
It is not allowed in Sec. 12 (defendant who is a foreign private juridical entity not registered and with no resident
agent in the Philippines) as the defendant here has no minimum contact established in the Philippines. (See
Washington Shoe case)
‣
In case of actions in personam against a non-resident defendant who is a foreign private juridical entity not
registered and with no resident agent in the Philippines, service by publication is NOT allowed, it must still be
by service upon person or substituted service, but since that is not possible, as it is a non-resident, then you
can only acquire jurisdiction over him by his voluntary appearance Service by publication and the other modes
recognized in Sec. 12, Rule 14 is only available if the action is in rem or quasi in rem (Villareal vs CA 1998,
Macasaet vs Francisco 2013)
‣
BUT — It is important to note that Sec. 12 does not distinguish, hence, it may be argued that it may apply to
actions in personam
SERVICE UPON THE GOVERNMENT AND PUBLIC CORPORATIONS
SECTION 13. Service upon public corporations. - 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. (15)
1. Service when the defendant is the Republic of the Philippines — Service may be effected on the Solicitor General
2. Service when the defendant is an LGU or like public corporations — Service may be effected on either —
a. Its executive head, or
b. On such other officer or officers as the law or the court may direct
VOLUNTARY APPEARANCE
SECTION 20. 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 aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. (23a)
‣
SALVADOR — Note that the defendant cannot apply for affirmative reliefs and assert additionally “lack of jurisdiction over
the person of the defendant”. As long as he applies for affirmative reliefs from the court, this is deemed voluntary
appearance.
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RULE 15: MOTIONS
RULE 15: MOTIONS
DEFINITION OF A MOTION
SECTION 1. Motion defined. - A motion is an application for relief other than by a pleading. (1a)
‣
A motion is an application for relief other than by a pleading
‣
A motion may be final or interlocutory. There are also motions which pray for a judgment on the merits.
‣
A motion seeks relief, but is not a pleading.
‣
It is different from a pleading, in that it does not go into the merits of the case (except a MTD)
‣
It does not raise a claim, nor does it raise defenses in an answer.
FORM OF A MOTION
SECTION 2. Motions must be in writing. - All motions shall be in writing except those made in open court or in the course
of a hearing or trial. (2a)
SECTION 10. Form. - The Rules applicable to pleadings shall apply to written motions so far as concerns caption,
designation, signature, and other matters of form. (9a)
RULES AS TO THE FORM OF MOTIONS
1. All motions shall be in writing
‣
EXCEPT — Motions made —
a. In open court or
b. In the course of a hearing or trial
2. The rules that apply to pleadings shall also apply to written motions with respect to caption, designation,
signature, and other matters of form
CONTENTS OF A MOTION
SECTION 3. Contents. - 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. (3a)
‣
What should the motion contain?
1. The relief sought to be obtained
2. Grounds upon which it is based
3. If required by the Rules or necessary to prove facts alleged therein, it should be accompanied by supporting
affidavits and other papers
‣
When are they necessary? If the facts alleged in the motion are not of record or of judicial notice.
HEARING OF MOTION, OTHER REQUIREMENTS
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RULE 15: MOTIONS
SECTION 4. Hearing of motion. - Except for motions which the court may act upon without prejudicing the rights of the
adverse party, every written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to
ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause
sets the hearing on shorter notice. (4a)
SECTION 5. Notice of hearing. - The notice of hearing shall be addressed to all parties concerned, and shall specify the
time and date of the hearing which must not be later than ten (10) days after the filing of the motion. (5a)
SECTION 6. Proof of service necessary. - No written motion set for hearing shall be acted upon by the court without proof
of service thereof. (6a)
SECTION 7. Motion day. - Except for motions requiring immediate action, all motions shall be scheduled for hearing on
Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. (7a)
SC ADMNISTRATIVE CIRCULAR 3-99 — STRICT OBSERVANCE OF SESSION HOURS OF TRIAL COURTS AND
EFFECTIVE MANAGEMENT OF CASES TO ENSURE THEIR SPEEDY DISPOSITION.
To insure speedy disposition of cases, the following guidelines must be faithfully observed:
I. The session hours of all Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Court, and Municipal Circuit Trial Courts shall be from 8:30 A.M. to noon and from 2:00 P.M. to 4:30 P.M., from Monday to
Friday. The hours in the morning shall be devoted to the conduct of trial, while the hours in the afternoon shall be utilized
for [1] the conduct of pre-trial conferences; [2] writing of decisions, resolutions, or orders; or [3] the continuation of trial
on the merits whenever rendered necessary as may be required by the Rules of Court, statutes, or circulars in specified
cases.
However, in multi-sala courts in places where there are few practicing lawyers, the schedule may be modified upon
request of the Integrated Bar of the Philippines such that one-half of the branches may hold their trial in the morning and
the other half in the afternoon. Except those requiring immediate action, all motions should be scheduled for hearing on
Friday afternoons, or if Friday is a non-working day, in the afternoon of the next business day. The unauthorized
practice of some judges of entertaining motions or setting them for hearing on any other day or time must be
immediately stopped.
KINDS OF MOTIONS
1. LITIGATED MOTIONS — one which requires the parties to be heard before a ruling on the motion is made by the
court. It will necessary prejudice the rights of the other party
‣
The general rule is that every written motion is deemed a litigated motion
‣
Such as: Motion to Dismiss, Motion for Summary Judgment, Motion for Reconsideration, Motion to set aside order of
default, preliminary injunction, temporary restraining order (with exceptions)
2. EX-PARTE MOTIONS — one which does not require that the parties be heard and which the court may act upon
without prejudicing the rights of the other party
‣
‣
These kinds of motions are the exceptions, generally all motions are litigated
‣
Ex parte motions are frequently permissible in procedural matters, and also in situations and under circumstances of
emergency; and an exception to a rule requiring notice is sometimes made where notice or the resulting delay
might tend to defeat the objective of the motion
‣
Such as — motion filed by the plaintiff pursuant to Sec. 1 of Rule 18 in which he moves promptly that the case be set
for pre-trial, motion for extension of time, preliminary attachment
NOTE —
‣
It is the court who will conclude whether a motion is a litigious one or not, so just put a notice of hearing on ALL
motions.
‣
As long as in the trial court (either original or appellate capacity), you need a notice of hearing
‣
BUT — No notice of hearing in appellate courts, See Rule 49 and Rule 56
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RULE 15: MOTIONS
REQUIREMENTS WHEN PARTY FILES A WRITTEN LITIGATED MOTION
1. Hearing
2. Notice of Hearing to be served
3. Proof of Service
REQUIREMENTS WHEN PARTY FILES A WRITTEN LITIGATED MOTION (EXPOUNDED)
1. HEARING — Every written motion shall be set for 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.
a. Hearing must not be later than ten (10) days after the filing of the motion
‣
So, maximum of 10 days after filing of motion
‣
The 10-day “no later” rule is mandatory to prevent dilatory tactics by the movant. (Bacelonia v CA, 2010)
‣
NOTE — Distinguish when you need to give the other parties the Notice of Hearing and when you need to
schedule the hearing itself
‣
Since 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 objection. Hence, the need for the movant to set the time and place of hearing of its
motion. (Republic vs Peralta 2003)
b. Hearing must be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the
afternoon of the next business day
‣
So, it should be served to the other parties by Tuesday at the latest.
‣
This is mandatory on the courts (See Administrative Circular 3-99)
2. NOTICE OF HEARING — Notice of the hearing thereof shall be served in such a manner as to ensure its receipt by
the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing
on shorter notice.
‣
But also give notice to the clerk of court because he schedules the hearing.
‣
The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing
‣
Notice 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.
‣
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. (Presyler v Manila Southcoast, 2010)
‣
“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
‣
NOTE — Some motions does not follow the 3-day rule, such as a Motion for Summary Judgment, which must be
served 10 days before the hearing
‣
RATIONALE — 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 a party should not be affected without
giving it an opportunity to be heard. (Preysler vs Manila Southcoast Dev’t 2010) A 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. (Vlason Enterprises vs CA 1999)
3. PROOF OF SERVICE — There must be proof that the other party received the notice of hearing
‣
No written motion set for hearing shall be acted upon by the court without proof of service thereof (Sec. 6)
FAILURE TO COMPLY WITH THE REQUISITES
‣
Why is the consequent of the failure to comply with these requisites?
‣
A motion which fails to comply with the requirements under Secs. 4, 5 and 6 of Rule is a mere scrap of paper.
‣
If filed, such motion is not entitled to judicial cognizance and does not stop the running of the period for filing the
requisite pleading
‣
A motion which 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
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‣
RULE 15: MOTIONS
The requirements entombed in Sections 4 and 5 of Rule 15 of the 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.
(Republic vs Peralta 20013)
SEE — Vlason Enterprises vs CA (1999)
‣
The Court has consistently held that a motion which does not meet the requirements of Sections 4 and 5 of Rule
15 of the Rules of Court is considered a worthless piece of paper, which the clerk of court has no right to receive
and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and
the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these
requirements renders their motions fatally defective. However, there are exceptions to the strict application of this
rule.
‣
EXCEPTIONS — Liberal construction of this rule has been allowed by this Court in cases —
1. Where a 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 judgment is not apparent on
its face or from the recitals contained therein
2. Where the interest of substantial justice will be served
3. Where the resolution of the motion is addressed solely to the sound and judicious discretion of the court; and
4. Where the injustice to the adverse party is not commensurate to the degree of his thoughtlessness in not
complying with the procedure prescribed.
‣
SEE — Preysler v. Manila Southcoast, G.R. No. 171872, June 28, 2010
‣
The three-day notice rule is not absolute. A liberal construction of the procedural rules is proper where the lapse in
the literal observance of a rule of procedure has not prejudiced the adverse party and has not deprived the court of
its authority. Indeed, Section 6, Rule 1 of the Rules of Court provides that the Rules should be liberally construed
in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and
proceeding. Rules of procedure are tools designed to facilitate the attainment of justice, and courts must avoid
their strict and rigid application which would result in technicalities that tend to frustrate rather than promote
substantial justice.
REMEDY OF PARTY AGAINST A COURT ORDER ARISING FROM A MOTION
1. Final order (like an order granting a motion to dismiss, judgment on the pleadings, demurrer, summary judgment) —
Remedy is by appeal
2. Interlocutory order (like an order not granting a motion to dismiss) — Remedy is by motion for reconsideration, then
petition for certiorari under Rule 65
OMNIBUS MOTION RULE
SECTION 8. Omnibus motion. - Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed
waived. (8a)
RULE 9 — EFFECT OF FAILURE TO PLEAD
SECTION 1. 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. (2a)
‣
RULE — A MOTION ATTACKING A PLEADING, ORDER, JUDGMENT, OR PROCEEDING SHALL INCLUDE ALL OBJECTIONS THEN
AVAILABLE, AND ALL OBJECTIONS NOT SO INCLUDED SHALL BE DEEMED WAIVED
‣
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.
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‣
‣
‣
RULE 15: MOTIONS
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.
EXCEPT — Since the rule is subject to the provisions of Sec. 1 of Rule 9, the objections mentioned therein are
NOT deemed waived even if not included in the motion. These are —
1. Lack of jurisdiction over the subject-matter
2. Litis Pendentia (that there is another action pending between the same parties for the same cause)
3. Res judicata (that the action is barred by a prior judgment)
4. Statute of limitations/ Prescription
‣
Example — In a case filed with the RTC, the defendant filed a motion to dismiss invoking the following as objections: (a)
the complaint’s failure to state a cause of action, (b) lack of jurisdiction over the person of the defendant, and (c) that the
contract violates the statute of frauds. Two objections available at the time the motion is filed, namely, improper venue and
prescription were not included in the motion. The motion to dismiss was denied. May the defendant in his answer, filed
after the denial of his motion to dismiss, invoke the affirmative defenses of improper venue and prescription? Answer:
Improper venue is deemed waived. It was available as a defense at the time the motion was filed and should have been
invoked. Failure to so include the same in the motion is to be construed as waiver of the objection. Prescription, on the
other hand, is not waived and can still be interposed as an affirmative defense in the answer.
‣
NOTE — The ‘Omnibus Motion rule’ applies only when a motion is filed.
‣
Such that If no “motion to dismiss” is filed, any of the grounds for dismissal under Rule 16 may be pleaded as an
affirmative defense in the answer and in the discretion of the court, a preliminary hearing may be had thereon as if a
motion to dismiss had been filed.
‣
No defense is waived in this case because no motion to dismiss was filed.
‣
There is indeed an unmistakable difference in the legal effects between filing and not filing a motion to dismiss in
relation to the waiver of defenses.
MOTION FOR LEAVE
SECTION 9. Motion for leave. - A motion for leave to file a pleading or motion shall be accompanied by the pleading or
motion sought to be admitted. (n)
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RULE 16: MOTION TO DISMISS
RULE 16: MOTION TO DISMISS
OVERVIEW OF A MOTION TO DISMISS
MOTION TO DISMISS
‣
Assuming that the allegations in the complaint have been made clear and particularized by the filing of a bill of particulars,
the defendant may elect not to file his answer immediately. He may first explore the possibility of filing a motion to
dismiss under Rule 16. If there is no ground for a motion to dismiss, he has to file his answer.
‣
While the filing of a motion to dismiss is not prohibited, the remedy being an integral part of the Rules of Court, the
current policy of the Supreme Court is not to encourage the filing of a motion to dismiss but to instead file an
answer to the complaint. Thus, within one day from receipt of the complaint, summons shall be prepared which shall
contain a reminder to the defendant to observe restraint in filing a motion to dismiss and instead allege the grounds
thereof as defenses in the answer (A.M. No. 03-1-09-SC [IA1.1], July 13, 2004).
‣
A motion to dismiss is not a pleading. It is merely a motion. Under the Rules, a motion is an application for relief other
than by a pleading. (R15, S1)
HYPOTHETICAL ADMISSIONS OF A MOTION TO DISMISS
‣
A motion to dismiss hypothetically admits the truth of the factual allegations of the complaint
‣
However, the hypothetical admission extends only to such matters of fact that have been sufficiently pleaded and not
to mere epithets charging fraud, allegations of legal conclusions or erroneous statements of law, inferences from facts not
stated, matters of evidence or irrelevant matters
‣
‣
Only deemed hypothetically admitted are material allegations, not conclusions
The filing of a motion to dismiss does not amount to an actual admission of the material allegations of the complaint. The
admission is not the judicial admission contemplated in Sec. 4 of Rule 129 of the Rules of Court. As the jurisprudence
cited above puts it, the admission is merely “hypothetical.”
REMEMBER THE “OMNIBUS MOTION RULE”
‣
When a motion to dismiss is filed, all grounds for objection available at the time the motion is filed must be invoked
in the motion. This is required under the “omnibus motion rule.” The objections which are not invoked are deemed
waived.
‣
‣
Section 8 of Rule 15 provides that “a motion attacking a pleading, order, judgment or proceeding shall include all
objections then available, and all objections not so included shall be deemed waived.” A motion to dismiss is an
“omnibus motion” and thus is covered by the “omnibus motion rule” because by its nature, it attacks a
pleading by praying for its dismissal.
There are, however, grounds which are not waived even if not invoked in the motion to dismiss (Sec. 8, Rule 15; Sec.
1, Rule 9). These are:
1. Lack of jurisdiction over the subject matter,
2. The pendency of another action between the same parties for the same cause or litis pendentia,
3. A prior judgment which bars the action or res judicata, and
4. The statute of limitations or prescription
CONTENTS AND FORM OF THE MOTION TO DISMISS (REMEMBER RULES ON MOTION IN RULE 15)
‣
The motion to dismiss, like any other motion, shall state the relief sought and the grounds upon which it is based and if
required by the Rules or is necessary to prove the facts alleged therein, shall be accompanied by supporting affidavits
and papers
‣
The motion shall be set for hearing by the applicant and shall contain a notice of hearing addressed to all parties
concerned. Such notice shall specify the time and date of the hearing which must not be later than ten (10) days after
the filing of the motion
‣
Remember that the notice requirement in a motion is mandatory and its absence renders the motion defective. As a
rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the
filing of the requisite pleading
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KINDS OF MOTION TO DISMISS (MTD) IN CIVIL CASES
1. MTD by the Defendant (Rule 16)
2. MTD by the Plaintiff (Rule 17)
‣
Also covers failure to prosecute, which is another form of MTD
3. Demurrer to Evidence (Rule 33)
GROUNDS FOR A MOTION TO DISMISS
SECTION 1. Grounds. - Within the time for but before filing the answer to the complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the following grounds:
a. That the court has no jurisdiction over the person of the defending party;
b. That the court has no jurisdiction over the subject matter of the claim;
c. That venue is improperly laid;
d. That the plaintiff has no legal capacity to sue;
e. That there is another action pending between the same parties for the same cause;
f.
That the cause of action is barred by a prior judgment or by the statute of limitations;
g. That the pleading asserting the claim states no cause of action;
h. That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise
extinguished;
i.
That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds;
j.
That a condition precedent for filing the claim has not been complied with. (1a)
WHEN SHOULD A MTD BE FILED
‣
RULE — A MOTION TO DISMISS SHOULD BE FILED BEFORE FILING THE ANSWER TO THE COMPLAINT OR PLEADING ASSERTING A
COMPLAINT
‣
‣
So, within the time for filing the answer but before filing said answer
‣
A motion to dismiss that is filed after the answer has been filed, is considered filed out of time and the defending party
is estopped from filing the MTD
EXCEPT — A motion to dismiss may be filed even AFTER the filing of the answer and will not be considered filed
out of time if the ground raised in the motion is either of the following and such ground appears from the
pleadings or the evidence on record —
1. Lack of jurisdiction over the subject matter
2. Litis Pendentia- that there is another action pending between the same parties for the same cause;
3. Res Judicata- that the action is barred by a prior judgment; or
4. Prescription- that the action is barred by the statute of limitation
‣
These are the grounds not waived even if not raised in the MTD or answer under R9, S1)
‣
These grounds do not only supply exceptions to the rule that defenses and objections not pleaded either in a
motion to dismiss or in an answer are deemed waived. They are also the grounds which allow courts to dismiss
cases motu proprio on any of such grounds, provided that the ground for dismissal is apparent from the pleadings
or the evidence on record
GROUNDS FOR MOTION TO DISMISS
1. No Jurisdiction over the Person of Defendant
2. No Jurisdiction over Subject-Matter
3. Improper Venue
4. Incapacity of Plaintiff to Sue
5. Litis Pendentia
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6. Res Judicata
7. Prescription or Statute of Limitations
8. Pleading states no cause of action
9. The claim or demand has been paid, waived, abandoned, or otherwise extinguished
10. The claim is unenforceable under the provisions of the statute of frauds
11. A condition precedent for filing the claim has not been complied with
GROUNDS FOR MOTION TO DISMISS (EXPOUNDED)
1. NO JURISDICTION OVER THE PERSON OF DEFENDANT
‣
That the court has no jurisdiction over the person of the defending party;
‣
Looks into the proper service of summons or voluntary appearance
2. NO JURISDICTION OVER SUBJECT-MATTER
‣
That the court has no jurisdiction over the subject matter of the claim
‣
Look at the allegations of the complaint and the reliefs sought and the laws which confer jurisdiction of courts, such
as BP 129 as amended by RA 7651
3. IMPROPER VENUE
‣
See Rule 4, or special rules under specific laws
‣
NOTE — Venue is generally waivable in civil cases
4. INCAPACITY OF PLAINTIFF TO SUE
‣
See who can be parties to an action, Rule 3, Sec. 1
a. Natural person — must be age of majority
b. If minor or incompetent — must be assisted
c. Corporation — must be duly organized and existing in the laws of country where it was organized
d. Attorney-in-fact/ Agent — look into the scope of authority
5. LITIS PENDENTIA — THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE SAME CAUSE
‣
REQUISITES —
a. Identity of parties, or at least such parties as represent the same interests in both actions
b. Identity of rights asserted and relief prayed for, the relief being founded on the same facts
c. identity of the two preceding particulars is such that any judgment rendered in the pending case, regardless of
which party is successful would amount to res judicata in the other
‣
TEST — The identity of the two cases should be such that judgment in one, regardless of which party is successful,
would amount to res judicata in the other
‣
Examples — Thus, it has been held that there is forum shopping (1) whenever as a result of an adverse decision in one
forum, a party seeks a favorable decision (other than by appeal or certiorari) in another; or (2) if, after he has filed a
petition before the Supreme Court, a party files another before the CA since in such case said party deliberately splits
appeals "in the hope that even as one case in which a particular remedy is sought is dismissed, another case(offering a
similar remedy) would still be open"; or (3) where a party attempts to obtain a preliminary injunction in another court
after failing to obtain it from the original court. (Brown-Araneta vs Amanita 2013)
‣
NOTE — Forum shopping is NOT a ground. You usually use litis pendentia or res judicata when forum shopping or
splitting cause of action occurs. (R2, S4)
‣
What if the role of the parties are reversed in the two cases, can there still be forum shopping and thus, limits
pendentia?
‣
YES. Brown –Araneta v. Araneta, G.R. No. 190814, October 9, 2013
‣
In a long line of cases on forum shopping, the Court has held that absolute identity of the parties is not
required, it being enough that there is substantial identity of the parties or at least such parties represent the
same interests in both actions. It does not matter, as here, that in the Petition for Custody, Juan Ignacio is the
petitioner and Michelle is the respondent while in the Petition for Protection Order, their roles are reversed. That
a party is the petitioner in one case and at the same time, the respondent in the other case does not, without
more, remove the said cases from the ambit of the rules on forum shopping. So did the Court hold, for example
in First Philippine International Bank v. Court of Appeals, that forum shopping exists even in cases like this
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where petitioners or plaintiffs in one case were impleaded as respondents or defendants in another.41
Moreover, this Court has constantly held that the fact that the positions of the parties are reversed, i.e., the
plaintiffs in the first case are the defendants in the second case or vice versa, does not negate the identity of
parties for purposes of determining whether the case is dismissible on the ground of litis pendentia.
‣
If there are two pending cases, what case will be dismissed?
‣
SEE — UCPB v. Beluso, G.R. No. 159912, August 17, 2007
‣
It is indeed the general rule that in cases where there are two pending actions between the same parties on the
same issue, it should be the later case that should be dismissed.
‣
BUT — However, this rule is not absolute. According to this Court in Allied Banking Corporation v. Court of
Appeals: In these cases, it is evident that the first action was filed in anticipation of the filing of the later action
and the purpose is to preempt the later suit or provide a basis for seeking the dismissal of the second action.
Even if this is not the purpose for the filing of the first action, it may nevertheless be dismissed if the later
action is the more appropriate vehicle for the ventilation of the issues between the parties. Thus, in Ramos v.
Peralta, it was held: The rule on litis pendentia does not require that the later case should yield to the earlier
case. What is required merely is that there be another pending action, not a prior pending action. Considering
the broader scope of inquiry involved in Civil Case No. 4102 and the location of the property involved, no error
was committed by the lower court in deferring to the Bataan court's jurisdiction.
‣
Given, therefore, the pendency of two actions, the following are the relevant considerations in determining
which action should be dismissed —
a.
The date of filing, with preference generally given to the first action filed to be retained
b.
Whether the action sought to be dismissed was filed merely to preempt the later action or to anticipate its
filing and lay the basis for its dismissal
c.
Whether the action is the appropriate vehicle for litigating the issues between the parties.
6. RES JUDICATA — THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR JUDGMENT
‣
Under the rule of res judicata, a final judgment or decree on the merits 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 term literally means a “matter adjudged, judicially acted upon, or settled by judgment.” The principle bars a
subsequent suit involving the same parties, subject matter, and cause of action.
‣
The rationale for the rule is that “public policy requires that controversies must be settled with finality at a given point
in time
‣
SEE — National Housing Authority v. Baello, G.R. No. 200858, August 07, 2013
‣
The rule is that when material facts or questions, which were in issue in a former action and were admitted or
judicially determined are conclusively settled by a judgment rendered therein, such facts or questions become res
judicata and may not again be litigated in a subsequent action between the same parties or their privies regardless
of the form of the latter.
‣
Jurisprudence expounds that the concept of res judicata embraces two aspects —
‣
‣
a.
“Bar by prior judgment” or “estoppel by verdict” — is the effect of a judgment as a bar to the prosecution
of a second action upon the same claim, demand or cause of action.
b.
“Conclusiveness of judgment” otherwise known as the “rule of auter action pendent” or “preclusion of
issues” — ordains that issues actually and directly resolved in a former suit cannot again be raised in any
future case between the same parties involving a different cause of action
Conclusiveness of judgment does not require identity of the causes of action for it to work. If a particular point or
question is in issue in the second action, and the judgment will depend on the determination of that particular
point or question, a former judgment between the same parties will be final and conclusive in the second if that
same point or question was in issue and adjudicated in the first suit; but the adjudication of an issue in the first
case is not conclusive of an entirely different and distinct issue arising in the second. Hence, facts and issues
actually and directly resolved in a former suit cannot again be raised in any future case between the same parties,
even if the latter suit may involve a different claim or cause of action.
REQUISITES —
a. The former judgment or order must be final
b. The judgment or order must be on the merits
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Generally this requires a trial, considering the evidence
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EXCEPT — Judgment on the pleadings, default judgments, order of dismissal by the court with prejudice, etc.
– these are still res judicata
c. Decision must have been rendered by a court having jurisdiction over the subject matter and the parties
d. Identity of parties, subject matter and cause of action
‣
NOTE — 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
7. PRESCRIPTION OR STATUTE OF LIMITATIONS
‣
See periods in Civil Code
a. Real action over immovables: 30 years (but if acquired with good faith and just title, only 10 years to acquire
ownership)
b. Real actions over movables: 8 years (but if acquired with good faith and just title, only 4 years to acquire
ownership)
c. Mortgage action, Written contract, Obligation created by law, Judgment: 10 years
d. Oral contract and Quasi-contract: 6 years
e. Injury to the rights of the plaintiff and Quasi-delict: 4 years
f.
Forcible entry, Unlawful detainer, and Defamation: 1 year
g. All others not fixed by other laws: 5 years
8. PLEADING STATES NO CAUSE OF ACTION — THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE OF ACTION
‣
This does not go into the falsity or truthfulness of the claim.
‣
This is different from the “lack of cause of action”.The resolution on this matter should stem from an analysis on
whether or not the complaint is able to convey a cause of action; and not that the complainant has no cause of action.
‣
Use “Pleading states no cause of action” as a ground for motion to dismiss.
‣
‣
‣
Usually the complaint is incomplete, defective or lacks allegations. It’s based on preliminary objections.
Use “no cause of action” in the answer as a defense or as a demurrer.
‣
But if used as a demurrer (Rule 33), it must be filed after the plaintiff has presented evidence and rested its
case
‣
Ground for demurrer in this case is insufficiency of evidence
This ground is used when —
a. Pleading, on its face, does not appear to state a cause of action
b. The plaintiff is NOT the Real Party of Interest
c. The defendant has no capacity to be sued
‣
‣
TEST — Hypothetically admitting the facts alleged, can the court render a valid judgment in accordance with the relief
prayed for?
‣
This must be determined from the allegations of fact in the complaint alone.
‣
This is the only ground of a motion to dismiss which must appear on the face of the complaint.
‣
In a motion to dismiss due to failure to state a cause of action, the trial court can consider all the pleadings filed,
including annexes, motions and the evidence on record. However in so doing, the trial court does not rule on the
truth or falsity of such documents. It merely includes such documents in the hypothetical admission. Any review of
a finding of lack of cause of action based on these documents would not involve a calibration of the probative
value of such pieces of evidence but would only limit itself to the inquiry of whether the law was properly applied
given the facts and these supporting documents. Therefore, what would inevitably arise from such a review are
pure questions of law, and not questions of fact. (Corales vs Republic 2013)
SEE — Heirs of Loreto Maramag v. Maramag, G.R. No. 181132, June 5, 2009 and Aquino v. Quiazon, G.R. No.
211248, March 11, 2015
‣
When a motion to dismiss is premised on this ground, the ruling thereon should be based only on the facts alleged
in the complaint. The court must resolve the issue on the strength of such allegations, assuming them to be true.
The test of sufficiency of a cause of action rests on whether, hypothetically admitting the facts alleged in the
complaint to be true, the court can render a valid judgment upon the same, in accordance with the prayer in the
complaint. This is the general rule.
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However, this rule is subject to well-recognized exceptions, such that there is no hypothetical admission of the
veracity of the allegations if:
a.
If their falsity is subject to judicial notice —
b.
Allegations that are legally impossible
c.
Acts inadmissible in evidence; and
d.
Facts which appear, by record or document included in the pleadings, to be unfounded.28
Also, inquiry is not confined to the complaint if culled —
a.
From annexes and other pleadings submitted by the parties
b.
From documentary evidence admitted by stipulation which disclose facts sufficient to defeat the claim; or
c.
From evidence admitted in the course of hearings related to the case
How to know whether to file Bill of Particulars or Motion to Dismiss based on pleading states no cause of
action?
‣
Where the complaint states ultimate facts that constitute the three (3) essential elements of a cause of action,
namely: (1) the legal right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission
of the defendant in violation of said legal right, the complaint states a cause of action, otherwise, the complaint
must succumb to a motion to dismiss on that ground of failure to state a cause of action. (Tatuico vs Republic
(1991)
‣
So if on its face, the pleading states no cause of action, MTD is proper. However, where the allegations of the
complaint are vague, indefinite, or in the form of conclusions, the proper recourse would be, not a motion to
dismiss, but a motion for a bill of particulars.
9. THE CLAIM OR DEMAND HAS BEEN PAID, WAIVED, ABANDONED, OR OTHERWISE EXTINGUISHED
‣
Laches can fall under this, but the parties shall submit not only their arguments on the questions of law but also their
evidence on the questions of fact involved.
‣
Being factual in nature, the elements of laches must be proved or disproved through the presentation of evidence
by the parties
10. THE CLAIM IS UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF FRAUDS
‣
See Art. 1403 of the Civil Code, these are contracts which are required to be in writing or in a memorandum to be
enforceable
11. A CONDITION PRECEDENT FOR FILING THE CLAIM HAS NOT BEEN COMPLIED WITH
‣
Such as —
a. Failure to refer to katarungang pambarangay
b. Earnest efforts to compromise (In family related cases)
c. Exhaustion of administrative remedies
‣
The general rule is that before a party may seek the intervention of the court, he should first avail himself of all
the means afforded him by administrative processes. The issues which administrative agencies are authorized
to decide should not be summarily taken from them and submitted to the court without first giving such
administrative agency the opportunity to dispose of the same after due deliberation. If resort to a remedy within
the administrative machinery can still be made by giving the administrative officer concerned every opportunity
to decide on a matter that comes within his or her jurisdiction, then such remedy should be exhausted first
before the court’s judicial power can be sought. The premature invocation of the intervention of the court is
fatal to one’s cause of action. The doctrine of exhaustion of administrative remedies is based on practical and
legal reasons. The availment of administrative remedy entails lesser expenses and provides for a speedier
disposition of controversies. Furthermore, the courts of justice, for reasons of comity and convenience, will shy
away from a dispute until the system of administrative redress has been completed and complied with, so as to
give the administrative agency concerned every opportunity to correct its error and dispose of the case.
(Corales vs Republic 2013)
HEARING OF MOTION
SECTION 2. Hearing of motion. - At the hearing of the motion, the parties shall submit their arguments on the questions of
law and their evidence on the questions of fact involved except those not available at that time.
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Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the
party presenting the same. (n)
‣
Rules to observe at the hearing on the MTD —
1. The parties shall submit their arguments on the questions of law and their evidence on the questions of fact
involved except those not available at that time — The parties are allowed to submit their respective evidence, and
even rebut the opposing parties’ evidence. The hearings should provide the parties the forum for full presentation of
their sides. Moreover, from the trial court’s perspective, the extent of such hearings would depend on its satisfaction
that the ground in filing the motion to dismiss has been established or disestablished. (Capiral vs Robles)
2. Evidence presented during the MTD hearing is automatically part of the evidence of the party presenting the
same — this is if the MTD is denied and the case goes to trial
RESOLUTION OF MOTION
SECTION 3. Resolution of motion. - After the hearing, the court may dismiss the action or claim, deny the motion, or order
the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a)
‣
After the hearing, the Court can Either —
1. Dismiss the action/claim (MTD approved)
2. Deny the MTD
3. Order the amendment of the pleading
‣
NOTE —
‣
The court shall NOT defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In
every case, the resolution shall state clearly and distinctly the reasons therefor.
‣
A complaint should not be dismissed for failure to state a cause of action if the defect may be corrected by
amendment.
‣
But, if the plaintiff cannot or does not amend the complaint, the dismissal operates as an adjudication upon the
merits, unless, otherwise ordered by the court. (Failure to Comply with order of court, Rule 17, Sec 3)
‣
A dismissal because the cause of action had not yet accrued at the time the complaint was filed is NOT a bar to a
subsequent action after the cause of action accrues.
REMEDIES OF PLAINTIFF TO DISMISSED ACTION (WHEN MTD IS GRANTED)
‣
His remedy will depend on what ground the MTD is based (If ground will lead to dismissal with or without prejudice)
1. If dismissed WITHOUT prejudice — Plaintiff must simply REFILE the complaint and correct the defect
‣
For instance, if the ground for dismissal was anchored on improper venue, the plaintiff may file the action in the proper
venue.
‣
If the dismissal is without prejudice, generally an appeal is not allowed. Under Sec. 1(g) of Rule 41, an order
dismissing an action without prejudice cannot be appealed from
‣
An exception is that an 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.
‣
The tenor of Sec. 8 of Rule 40, therefore, operates to furnish an exception to the general rule enunciated in
Sec. 1 of Rule 41. Inis situation, it must be noted, applies in a dismissal made in the Municipal Trial Court and
not to a dismissal in the Regional Trial Court.
2. If dismissed WITH prejudice — Plaintiff may APPEAL from the order of dismissal
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This is when the ground relief upon in the MTD bars the refiling of the complaint like res judicata, prescription,
extinguishment of the obligation or violation of the statute of frauds
‣
Under Sec. 1(g) of Rule 41, it is an order dismissing an action without prejudice which cannot be appealed from.
Conversely, where the dismissal is with prejudice, an appeal from the order of dismissal is not precluded
‣
3. If there is grave abuse of discretion on the part of the court — Plaintiff may avail of a Petition for Certiorari under
Rule 65
REMEDIES OF DEFENDANT TO (WHEN MTD DENIED)
1. Just continue with the case, raise the grounds in the MTD as defences in the answer
‣
The ordinary procedure to be followed is to file an answer and interpose as defenses the objections raised in the
motion, proceed to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment.
2. Motion for reconsideration then a Petition for Certiorari under Rule 65
‣
But take note that even if there is a pending petition for certiorari, the main proceedings will NOT be suspended
unless you obtain a TRO. No more judicial courtesy.
‣
Appeal is not allowed because the order of denial is interlocutory (R41)
TIME TO PLEAD IF MTD IS DENIED
SECTION 4. Time to plead. - If the motion is denied, the movant shall file his answer within the balance of the period
prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any
event, computed from his receipt of the notice of the denial.
If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from
service of the amended pleading, unless the court provides a longer period. (4a)
TIME TO OF DEFENDANT TO PLEAD (FILE HIS ANSWER) WHEN MTD IS DENIED/ PLEADING ORDERED TO BE AMENDED
1. MTD DENIED —The movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the
notice of the denial.
‣
So, within the balance of the period to which he was entitled at the time of filing his motion, which shall not be less
than 5 days in any event
‣
Always at least 5 days
2. PLEADING ORDERED TO BE AMENDED — Within the period prescribed by Rule 11 counted from service of the
amended pleading, unless the court provides a longer period.
a. Amendment matter of right — 15 days
b. Amendment NOT a matter of right — 10 days from service of amended pleading
‣
NOTE — See Rule 11, and remember that MTD is to be filed before filing the answer to the complaint or pleading
asserting a complaint, so if the MTD is denied the defendant now has to file his answer
‣
When should the defendant file his answer to the complaint —
1. Ordinary Service of Summons — Within 15 days
2. Extra-Territorial service — At least 60 days after notice
3. Summons by Publication — At least 60 days after date of the last publication
‣
BUT — The fresh period rule (Neypes rule) does NOT apply to MTD. It applies to MR/MNT
EFFECT OF DISMISSAL
SECTION 5. Effect of dismissal. - Subject to the right of appeal, an order granting a motion to dismiss based on
paragraphs (f), (h) and (i) of Section 1 hereof shall bar the refiling of the same action or claim. (n)
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EFFECT OF DISMISSAL (IF THE MTD IS APPROVED)
‣
RULE —An order granting a motion to dismiss based on paragraphs (f), (h) and (i) of Section 1 hereof shall BAR
the refiling of the same action or claim. These grounds are —
1. Res Judicata
2. Prescription
3. The claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise
extinguished
4. Unenforceable under Statute of Frauds
‣
BUT — Subject to the right of appeal
PLEADING GROUNDS AS AFFIRMATIVE DEFENSES
SECTION 6. Pleading grounds as affirmative defenses. - If no motion to dismiss has been filed, any of the grounds for
dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the
court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a)
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer. (n)
IF NO MOTION TO DISMISS HAS BEEN FILED
‣
RULE — Any of the grounds for dismissal provided for in this rule may be pleaded as an affirmative defense in the
answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had
been filed.
‣
‣
A preliminary hearing may be had thereon as if a motion of dismiss had been filed.
‣
The preliminary hearing authorized on the affirmative defenses raised in the answer, applies only if no motion to
dismiss has been filed. A preliminary hearing is not authorized when a motion to dismiss has been filed. When
filed, the hearing to be conducted would be the regular hearing of the motion
‣
Its up to the court if it wants a preliminary hearing.
‣
Answer is treated like an MTD, if no MTD is filed and the grounds are asserted as affirmative defences
‣
SALVADOR — The reason for this new rule is that when the court issues summons, it persuades the parties not to
file an MTD, but to file an answer with an affirmative defense. The court attitude is that issues will be joined in an
answer and pre-trial comes where parties can compromise. MTD is discouraged since it is usually filed to delay
the proceedings
BU T— A preliminary hearing cannot be conducted if —
1. MTD had been previously filed — If a MTD had been previously filed, you can’t ask for a preliminary hearing
anymore since that was already done. BUT, you can still use the grounds as affirmative defenses.
2. The ground for dismissal asserted is that the pleading asserting the claim states no cause of action — A
preliminary hearing is not necessary when the affirmative defense is failure to state a cause of action, and that it is,
in fact, error for the court to hold a preliminary hearing to determine the existence of external facts outside the
complaint. The reception and the consideration of evidence on the ground that the complaint fails to state a cause
of action, has been held to be improper and impermissible. Thus, in a preliminary hearing on a motion to dismiss
or on the affirmative defenses raised in an answer, the parties are allowed to present evidence except when the
motion is based on the ground of insufficiency of the statement of the cause of action which must be determined
on the basis only of the facts alleged in the complaint and no other. (Aquino vs Quaizon 2015)
‣
May a ground previously invoked in a denied motion to dismiss be invoked anew?
‣
‣
YES. The ground may still be invoked. The denial of a motion to dismiss does not preclude any future reliance on the
grounds relied thereupon
NOTE — In case there is a compulsory claim by the defendant, better option is to allege the grounds of the motion
to dismiss as affirmative defenses in his answer and allege the compulsory counterclaim
‣
A preliminary hearing may be held and in the event the complaint is dismissed, the defendant can prosecute his
counterclaim.
‣
The codal provides that the dismissal of the complaint is without prejudice to the prosecution of said counterclaim in
the same or separate action.
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RULE 17: DISMISSAL OF ACTIONS
RULE 17: DISMISSAL OF ACTIONS
DISMISSAL BY THE PLAINTIFF OF HIS OWN ACTION
SECTION 1. Dismissal upon notice by 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. (1a)
SECTION 2. 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 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 counterclaim in a separate action
unless within fifteen (15) days from notice of the motion he manifests his preference to have his 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. (2a)
1. DISMISSAL AS A MATTER OF RIGHT — BY NOTICE OF DISMISSAL
‣
‣
RULE — 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.
‣
It is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the order
implies, said order merely confirms a dismissal already effected by the filing of the notice of dismissal. Since the
order issued by the court merely confirms the dismissal, it follows that the court does not have to approve the
dismissal because it has no discretion on the matter.
‣
Before an answer or a motion for summary judgment has been served upon the plaintiff, the dismissal by the
plaintiff by the filing of a notice is a matter of right.
‣
The dismissal should occur as of the date the notice is filed by the plaintiff and not as of the date the court issues
the order confirming the dismissal.
Effect of Dismissal — without prejudice
‣
EXCEPT — The dismissal will be one with prejudice in any of the following situations —
a. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice — 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. Such as
when the notice provides that the plaintiff recognizes the fact of prescription or res judicata.
b. The plaintiff has previously dismissed the same case in a court of competent jurisdiction based on or
including the same claim
‣
The ‘two-dismissal’ rule applies when the plaintiff has
i.
Twice dismissed actions,
ii. Based on or including the same claim
iii. In a court of competent jurisdiction
‣
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.
2. DISMISSAL AS A MATTER OF DISCRETION OF THE COURT — BY MOTION TO DISMISS
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‣
RULE 17: DISMISSAL OF ACTIONS
RULE — Once either an answer or a motion for summary judgment has been served on the plaintiff, the
dismissal is no longer a matter of right and will require the filing of a motion to dismiss, not a mere notice of
dismissal. The MTD will now be subject to the approval of the court which will decide on the motion upon such
terms and conditions as are just
‣
The dismissal under Sec. 2 of Rule 17 is no longer a matter of right on the part of the plaintiff but a matter of judicial
discretion.
‣
There are two ways by which an action may be dismissed upon the instance of the plaintiff. First, dismissal is a matter
of right when a notice of dismissal is filed by the plaintiff before an answer or a motion for summary judgment has
been served on him by the defendant. Second, dismissal is discretionary on the court when the motion for the
dismissal of the action is filed by the plaintiff at any stage of the proceedings other than before service of an answer or
a motion for summary judgment. While the dismissal in the first mode takes effect upon the mere notice of plaintiff
without need of a judicial order, the second mode requires the authority of the court before dismissal of the case may
be effected. This is so because in the dismissal of an action, the effect of the dismissal upon the rights of the
defendant should always be taken into consideration. (Limaco v Shonan Gakuen 2005)
‣
Effect of Dismissal — without prejudice
‣
EXCEPT — If the order of dismissal specifies that it is with prejudice
EFFECT OF DISMISSAL ON THE COUNTERCLAIM
‣
What is the effect of Dismissal upon a counterclaim already pleaded?
‣
It survives. Defendant has the option of prosecuting it in either the same or in a separate action.
‣
BUT — if he wants to protection it in the same action, he must, within 15 days from notice of the motion, manifest
his preference to have his counterclaim resolved in the same action.
‣
If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiffs motion
to dismiss, and the court grants the said motion to dismiss, the dismissal “shall be limited to the complaint. The
counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim
‣
NOTE — This rule applies regardless of whether the counterclaim is compulsory or permissive
DISMISSAL DUE TO FAULT OF PLAINTIFF
SECTION 3. Dismissal due to fault of plaintiff . - If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute his 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 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. (3a)
‣
Can the complaint be dismissed even if the plaintiff has no desire to have it dismissed?
‣
‣
YES. A complaint may be dismissed even if the plaintiff has no desire to have the same dismissed. The dismissal in
this case will be through reasons attributed to his fault.
Grounds for dismissal due to plaintiff’s fault —
1. Failure to appear on date of presentation of evidence in chief — The failure of plaintiff, without justifiable reasons,
to appear on the date of the presentation of his evidence in chie
2. Failure to prosecute — the failure of the plaintiff to prosecute his action for an unreasonable length of time
‣
‣
3.
Failure to comply with the Rules — The failure of the plaintiff to comply with the Rules of Court
4.
Failure to comply with a court order — The failure of the plaintiff to comply with any order of the court
The dismissal due to the fault of the plaintiff may be done by —
1.
The court on its own motion (motu proprio) or
2.
Upon a motion filed by the defendant
What is the effect of such dismissal?
‣
With prejudice. Dismissal will have the same effect as an adjudication upon the merits
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RULE 17: DISMISSAL OF ACTIONS
‣
‣
EXCEPT — Unless otherwise declared by the court.
What is the effect of dismissal of the principal action on the counterclaim (permissive or compulsory)?
‣
It survives and will stand on its own merits. The defendant has the option of prosecuting it in either the same or in a
separate action.
‣
SALVADOR — He should manifest his choice to prosecute it in the same action within 15 days, otherwise he can only
prosecute it in a separate action. But if it’s a compulsory counterclaim and he prosecutes it in a separate action, then
he would need to pay filing fees.
‣
SEE — Pinga v. Heirs of Santiago, G.R. No. 170354, June 30, 2006
‣
The dismissal of the complaint due to the fault of plaintiff does not necessarily carry with it the dismissal of the
counterclaim, compulsory or otherwise. In fact, the dismissal of the complaint is without prejudice to the right of
defendants to prosecute the counterclaim in the same action or in a separate action.
‣
In Sec. 3, the issue of whether defendant has a pending counterclaim, permissive or compulsory, is not of
determinative significance. The dismissal of plaintiff's complaint is evidently a confirmation of the failure of
evidence to prove his cause of action outlined therein, hence the dismissal is considered, as a matter of evidence,
an adjudication on the merits. This does not, however, mean that there is likewise such absence of evidence to
prove defendant's counterclaim although the same arises out of the subject matter of the complaint which was
merely terminated for lack of proof. To hold otherwise would not only work injustice to defendant but would be
reading a further provision into Section 3 and wresting a meaning therefrom although neither exists even by mere
implication.
‣
Thus understood, the complaint can accordingly be dismissed, but relief can nevertheless be granted as a matter
of course to defendant on his counterclaim as alleged and proved, with or without any reservation therefor on his
part, unless from his conduct, express or implied, he has virtually consented to the concomitant dismissal of his
counterclaim.
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD PARTY COMPLAINT
SECTION 4. Dismissal of counterclaim, cross-claim, or third-party complaint. - The provisions of this Rule shall apply to
the dismissal of any counterclaim, cross-claim, 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.
(4a)
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RULE 18: PRE-TRIAL
RULE 18: PRE-TRIAL
WHEN PRE-TRIAL IS CONDUCTED
SECTION 1. When conducted. - After the last pleading has been served and filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set for pre-trial. (5a, R20)
SECTION 2. Nature and purpose. - The pre-trial is mandatory.
“MANDATORY” RULE ON PRE-TRIAL
‣
RULE — THE PRE-TRIAL IS MANDATORY IN CIVIL CASES
‣
In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Court, pre-trial is also mandatory
‣
A pre-trial conference is likewise mandatory in both civil and criminal cases under the Rules on Summary Procedure
‣
What is the effect of failure to Conduct a Pre-Trial?
‣
Rule 18 of the Rules of Court imposes a duty upon the plaintiff to promptly move ex parte that the case be set for
pre-trial. “It is elementary and plain that the holding of such a pre-trial conference is mandatory and failure to do so
is inexcusable.”
‣
Judge can be administratively liable
HOW PRE-TRIAL IS SET; NOTICE OF PRE-TRIAL
‣
RULE — AFTER THE LAST PLEADING HAS BEEN SERVED AND FILED, IT SHALL BE THE DUTY OF THE PLAINTIFF TO PROMPTLY
MOVE EX PARTE THAT THE CASE BE SET FOR PRE-TRIAL
‣
In a civil case, it is not the court which initiates the setting of the case for a pre-trial. It is set at the instance of the
plaintiff. Under the Rules, it shall be the duty of the plaintiff, not of the defendant, to promptly file a motion to set the
case for pre-trial.
‣
This motion is an ex parte motion. This means that the motion need not be the subject of a hearing
‣
The ex parte motion to set the case for pre-trial is to be made by the plaintiff after the last pleading has been served
and filed
‣
Specifically, the motion is to be filed within 5 days after the last pleading joining the issues has been served and filed
(Administrative Circular No. 3-99, January 15, 1999).
‣
What if the plaintiff fails to promptly move for pre-trial? Will the case be dismissed?
‣
NO. If the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of
pre-trial. (A.M. No. 03-1-09-SC, July 13, 2004). But before, when the 1997 Rules was new, this was a ground for
dismissal.
‣
‣
BUT — While the present rule is that if the plaintiff fails to file a motion to set the case for pre-trial within five (5)
days from the filing of a reply, the duty to set the case for pre-trial falls upon the branch clerk of court.
However, this does not relieve the plaintiff of his own duty to prosecute the case diligently. For a plaintiff, as
herein respondent, to be excused from its burden to promptly prosecute its case, it must convince the court
that its failure to do so was due to justifiable reasons. If the neglect is justified, then a dismissal of the case
on said ground is not warranted. (LBL Industries vs City of Lapu-Lapu 2013)
What does last pleading mean?
‣
The answer, or the reply, depending on the case
‣
Where the last pleading has not yet been served and filed, the case is not yet ready for pre-trial
‣
However, the ‘last pleading” need not be literally construed as one having been served and filed. For purposes of
the pre-trial, the expiration of the period for filing the last pleading without it having been served and filed is
sufficient
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RULE 18: PRE-TRIAL
PROCEEDINGS BEFORE PRE-TRIAL
‣
Note that before Pre-trial there can be —
1.
MEDIATION
‣
Before the actual pre-trial, Judge is mandated to refer the parties to Mediation
‣
At the start of the pre-trial, the judge is mandated to refer the parties and/or their counsels to the mediation unit of
the Philippine Mediation Center (PMC) for purposes of mediation.
‣
If mediation fails, the judge will schedule the continuance of the pre-trial
‣
This rule applies to Metro Manila, Cebu, Davao City, and other places where Philippine Mediation Center Units
may be further organized and designated
‣
The parties will pay the fees for the mediator.
‣
The pre-trial proceedings are suspended for 30-60 days.
‣
If this fails, the case can now proceed to pre-trial stage proper
2.
PRELIMINARY CONFERENCE
‣
If mediation fails, preliminary conference will be set with the branch clerk of court
‣
SALVADOR — normally before pre-trial there is a preliminary conference where the parties meet with the clerk of
court for purposes of marking evidence, submission of witnesses, etc. Basically this is to speed up things to be
settled in pre-trial
3.
‣
The preliminary conference is like a mini pre-trial.
‣
In the preliminary conference, the branch clerk of court shall explore the possibility of compromise, ascertain
admission of facts and due execution & genuineness of the documents, etc.
JUDICIAL DISPUTE RESOLUTION
‣
SALVADOR — There is now JDR in Makati and in Manila.
‣
After preliminary conference, the case is referred to a JDR judge for judicial dispute resolution
‣
The judge will study all the pleadings and try to reduce and limit the issues.
‣
The judge, with all tact, patience, impartiality and with due regard to the rights of the parties, shall try to
persuade them to settle.
‣
He talks to counsel and parties first. If it fails, he will talk to the parties only.
‣
If this fails, the case can now proceed to pre-trial proper. The case will be re-raffled to a new judge, unless the
parties agree to retain the JDR judge.
NATURE AND PURPOSE OF PRE-TRIAL
SECTION 2. Nature and purpose. - The pre-trial is mandatory. The court shall consider:
a.
The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
b.
The simplification of the issues;
c.
The necessity or desirability of amendments to the pleadings;
d.
The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
e.
The limitation of the number of witnesses;
f.
The advisability of a preliminary reference of issues to a commissioner;
g.
The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a
valid ground therefor be found to exist;
h.
The advisability or necessity of suspending the proceedings; and
i.
Such other matters as may aid in the prompt disposition of the action. (1a, R20)
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RULE 18: PRE-TRIAL
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 pre-trial 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
‣
Although a pre-trial is not meant to catalogue each issue that the parties may take up during the trial, issues not included
in the pre-trial order may be considered only if they are impliedly include in the issues raised or inferable from the issues
raised by necessary implication
‣
NOTE — if evidence is not pre-marked during pre-trial, then it can no longer be presented. Same rule with witnesses,
witnesses not named during pre-trial will not be allowed to testify
‣
EXCEPT — if the court allows it either because —
1. It is in the interest of justice or
2. If newly discovered evidence
NOTICE OF PRE-TRIAL
SECTION 3. Notice of pre-trial. - The notice of pre-trial shall be served on counsel, or on the party who has no counsel.
The counsel served with such notice is charged with the duty of notifying the party represented by him. (n)
‣
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 client of the date, time
and place of the pre-trial
‣
Notice is so important that it would be grave abuse of discretion for the court for example, to allow the plaintiff to
present his evidence ex parte for failure of the defendant to appear before the pre-trial who did not receive through
his counsel a notice of pre-trial.
‣
There are two dates in the notice, the date of preliminary conference and the date of pre-trial itself
APPEARANCE OF PARTIES AT THE PRE-TRIAL; FAILURE TO APPEAR
SECTION 4. Appearance of parties. - It shall be the duty of the parties and their counsel to appear at the pre-trial. The
non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his
behalf 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 of documents. (n)
SECTION 5. Effect of failure to appear. - The failure of the plaintiff to appear when so required pursuant to the next
preceding section shall be cause for 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 shall be cause to allow the plaintiff to present his
evidence ex parte and the court to render judgment on the basis thereof. (2a, R20)
MANDATORY RULE ON “APPEARANCE” OF BOTH THE PARTIES THEMSELVES
‣
RULE — It shall be the duty of BOTH the parties and their counsels to appear at the pre-trial.
‣
BUT — If only the party but not his counsel appears, there is no adverse effect. It’s only when the party himself does
not appear that there will be dire consequences
‣
SALVADOR — If the counsels fail to appear, but their client does, the court will just admonish the counsel.
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RULE 18: PRE-TRIAL
EFFECT OF FAILURE TO APPEAR BY THE PARTIES IN PRE-TRIAL
1. Failure of the plaintiff to appear — shall be cause for dismissal of the action. This dismissal shall be WITH prejudice
except when the court orders otherwise
‣
Since the dismissal of the action shall be with prejudice, unless otherwise provided, the same shall have the effect of
an adjudication on the merits, thus, final.
‣
The remedy of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with prejudice is
appealable. Under the Rules, it is only when the order of dismissal is without prejudice, that appeal cannot be availed
of. Since appeal is available, certiorari is not the remedy because the application of a petition for certiorari under Sec.
65 of the Rules of Court is conditioned upon the absence of appeal or any plain, speedy and adequate remedy in the
ordinary course of law. (Chingkoe vs Republic 2013)
2. Failure of defendant to appear — shall be cause to allow the plaintiff to present his evidence ex parte and for the court
to render judgment on the basis of the evidence presented by the plaintiff
‣
The order of the court allowing the plaintiff to present his evidence ex parte does not dispose of the case with finality.
The order is, therefore, merely interlocutory, hence, not appealable. Under Sec. 1(b) of Rule 41, no appeal may be
taken from an interlocutory order.
‣
‣
SALVADOR — This was called “as in” default as called by the previous rules. The effects are as default, but no
motion for and declaration of default is necessary.
What is the remedy of the defendant?
‣
The defendant may file motion for reconsideration of the order based on fraud, accident, mistake, or excusable
neglect (FAME); and if the denial is tainted with grave abuse of discretion, he may file a petition for certiorari.
COMPARISON — ORDINARY PROCEDURE, SUMMARY PROCEDURE AND SMALL CLAIMS
ORDINARY PROCEDURE
SUMMARY PROCEDURE
PROCEDURE ON SMALL CLAIMS
How
instituted
Filing of a complaint
Filing of a verified complaint
Filing of an accomplished and verified
Statement of Claim
Action of the
court upon
filing of the
complaint
The clerk of court shall forthwith
issue summons to the defendants.
(Rule 14, Sec. 1)
Action of the
defendant
upon receipt
of the
complaint/
summons
Defendant has option to either file
the following within the periods in
Rule 11 (generally within 15 days
from receipt of summons) —
1.
Motion to dismiss based on
the grounds in Rule 16
2.
Answer
3.
Motion for bill of particulars
4.
Motion for summary judgment
Extension of
Time to File
Answer
Upon motion and on such terms as
may be just, the court may extend
the time to plead. (Rule 11, Sec. 11)
Effect of
non-filing of
the answer
(or response)
The plaintiff can move to declare
the defendant in default, the court
can then proceed to render
judgment granting the claimant
such relief as his pleading may
warrant, unless the court in its
discretion requires the claimant to
submit evidence (Rule 9, Sec 3)
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Court has the option to —
1.
Dismiss the case outright on any of the grounds apparent therefrom for the
dismissal of a civil action, or
2.
Issue summons
Defendant has option to either file
the following within 10 days from
receipt of summons —
1.
Verified answer
2.
Motion to dismiss but only
based on (a) lack of
jurisdiction over the subjectmatter, or (b) failure to refer
the case to the lupon
Filing a verified response within 10 days from
receipt of summons
Not extendible (prohibited pleading
Should the defendant fail to
answer the complaint within the
period above provided, the court,
motu proprio or on motion of the
plaintiff shall render judgment as
may be warranted by the facts
alleged in the complaint and
limited to what is prayed for
therein. But the court may, in its
discretion, reduce the amount of
damages and attorney’s fees
claimed for being excessive or
otherwise, unconscionable. (Sec.
6, Rules of Summary Procedure)
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Should the defendant fail to file his/her/its
Response within the required period, the court
shall render judgment on the same day, as
may be warranted by the facts alleged in the
Statement of Claim.
BUT — Should the defendant fail to file his
Response within the required period but
appears on the date set for hearing, the court
shall ascertain what defense he has to offer
which shall constitute his Response, and
proceed to hear or adjudicate the case on the
same day as if a Response has been filed. (Sec.
14, Rules of Procedure on Small Claims Cases)
CIVIL PROCEDURE
REMEDIAL LAW REVIEWER
RULE 18: PRE-TRIAL
ORDINARY PROCEDURE
Effect of
nonappearance
in pre-trial
(or
preliminary
conference
in summary
procedure or
the hearing
in small
claims
cases)
1.
2.
Failure of the plaintiff to
appear — shall be cause for
dismissal of the action. This
dismissal shall be WITH
prejudice except when the
court orders otherwise. The
defendant who appears will
be entitled to judgment on his
counterclaims.
Failure of the defendant to
appear — shall be cause to
allow the plaintiff to present
his evidence ex parte and for
the court to render judgment
on the basis of the evidence
presented by the plaintiff.
(Rule 18, Sec. 5)
SUMMARY PROCEDURE
1.
2.
Failure of the plaintiff to
appear — shall be a cause
for the dismissal of his
complaint. The defendant
who appears in the absence
of the plaintiff shall be
entitled to judgment of his
counterclaim as may be
warranted by the facts
alleged in the complaint and
limited to what is prayed for
therein.
PROCEDURE ON SMALL CLAIMS
1.
Failure of the plaintiff to appear — shall
be cause for the dismissal of the
Statement of Claim/s WITHOUT prejudice.
2.
Failure of the defendant to appear — the
court shall render judgment on the same
day, as may be warranted by the facts
alleged in the Statement of Claim/s.
3.
Failure of BOTH parties to appear —
shall cause the dismissal WITH prejudice
of both the Statement of Claim/s and the
counterclaim. (Sec. 20, Rules of Procedure
on Small Claims Cases)
Failure of the defendant to
appear — the court shall
render judgment as may be
warranted by the facts
alleged in the complaint and
limited to what is prayed for
therein. (Sec. 7, Rules of
Summary Procedure)
HOW NON-APPEARANCE IS EXCUSED
‣
RULE — THE NON-APPEARANCE OF A PARTY MAY BE EXCUSED IN THE FOLLOWING CASES —
1. Valid cause is shown for such non-appearance
2. A representative shall appear in his behalf fully authorized in writing to enter into any of the following matters
‣
‣
‣
An amicable settlement
b.
Alternative modes of dispute resolution, and
c.
Stipulations and admissions of facts
NOTE — The written authority must be in the form of a special power of attorney (SPA)
Jurisprudence has held that the “or” in Sec. 4 must be read to be as “and”
‣
Although Sec. 4 uses the disjunctive “or,” the logical meaning of the rule dictates that the written authority given to the
representative be coupled with an explanation showing a valid cause for a party’s non-appearance.
‣
While the phraseology of the provision suggests that it is not sufficient for the written authority to give to the
representative the power to enter into one of the matters mentioned in Sec. 4 of Rule 18. The authority must cover
ALL three of those enumerated. An incomplete authority is equivalent to no authority at all
‣
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.
‣
So both justifiable cause and SPA are needed
Does this rule on excusing non-appearance on excusing non-appearance is also applicable to Summary
Procedure?
‣
‣
a.
YES. While provisions of the Rules of Summary Proeedure 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.
(See 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 next-of-kin 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 of the dispute and to enter into stipulations or
admissions of facts and of documentary exhibits.
PRE-TRIAL BRIEF
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SECTION 6. 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) days before the date of the pre-trial, their respective pre-trial briefs which
shall contain, among others:
a.
A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution,
indicating the desired terms thereof;
b.
A summary of admitted facts and proposed stipulation of facts;
c.
The issues to be tried or resolved;
d.
The documents or exhibits to be presented, stating the purpose thereof;
e.
A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to
commissioners; and
f.
The number and names of the witnesses, and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n)
‣
The parties shall FILED with the court their respective pre- trial briefs which shall be received at least three (3) days before
the date of the pre-trial. This pre-trial brief shall be SERVED on the adverse party in such manner that will ensure his
receipt also at least three (3) day before the date of the pre- trial
‣
So there should be FILING and SERVICE, at least 3 days before the pre-trial.
‣
NOTE — Service here must be in such manner as it was “received” 3 days before the date of pre-trial. Date of actual
receipt is important
IDENTIFICATION AND MARKING OF EVIDENCE
‣
It is vital to have documents and exhibits identified and marked during the pre-trial. The current rule establishes the policy
that no evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in- chief
other than those that had been earlier identified and pre-marked during the pre- trial, except if allowed by the court for
good cause shown (A.M. No. 03-1-09-SC, July 13, 2004).
‣
This is normally done during the preliminary conference
EFFECT OF THE PRE-TRIAL BRIEF
‣
The parties are bound by the representations and statements in their respective pre-trial briefs (A.M. 03-1-09-SC, July 13,
2004).
‣
Hence, such representations and statements are in the nature of judicial admissions in relation to Sec. 4 of Rule 129.
EFFECT OF FAILURE TO FILE A PRE-TRIAL BRIEF
‣
RULE — The failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial
‣
Hence, if it is the plaintiff who fails to file a pre- trial brief, such failure shall be cause for dismissal of the action. If it is
the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present his evidence ex parte.
RECORD OF PRE-TRIAL
SECTION 7. Record of pre-trial. - The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the
court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the
amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters
considered.
Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried.
The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent
manifest injustice. (5a, R20)
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MATTERS DURING PRE-TRIAL
‣
The judge should not allow the termination of pretrial simply because of the manifestation of the parties that they cannot
settle the case. Instead, he should expose the parties to the advantages of pre-trial. He must also be mindful that there
are important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case
‣
If all efforts to settle fail, the trial judge shall endeavor to achieve the other purposes of a pre-trial like, among
others, obtaining admissions or stipulations of fact. — To obtain admissions, the judge shall ask the parties to submit
whatever depositions have been taken under Rule 23, the answers to written interrogatories under Rule 25 and the
answers to request for admissions by the adverse party under Rule 26. He may also require the production of documents
or things requested by a party under Rule 27 and the results of the physical and mental examination of persons under
Rule 28
‣
The court shall ask the parties to agree on the specific dates for continuous trial, adhere to the case flow chart
determined by the court and use the time frame for each stage in setting the trial dates.
‣
Adherence to the One Day Examination of Witness Rule shall be required — where the witness shall be fully
examined in one (1) day only, subject to the court’s discretion during the trial on whether or not to extend the examination
for justifiable reasons
‣
Where no settlement has been effected, the court shall follow the Most Important Witness Rule — Where the court
shall determine the most important witnesses and 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.
‣
‣
NOTE — however, that the court may also refer the case to a trial by commissioner under Rule 32
During the pre-trial, the judge shall be the one to ask questions on issues raised by the parties and all questions or
comments by counsel or parties must be directed to the judge to avoid hostilities between the parties
PRE-TRIAL ORDER
‣
This order of the court is issued by the court upon the termination of the pre-trial.
‣
Under A.M. No. 03-1-09-SC dated July 13, 2004, the pre-trial order shall be issued within ten (10) days after the
termination of the pre-trial
‣
This order recites in detail the following:
‣
1.
The matters taken up in the conference;
2.
The action taken thereon;
3.
The amendments allowed to the pleadings; and
4.
The agreements or admissions made by the parties as to any of the matters considered
Should the action proceed to trial, the pre-trial order DEFINES AND LIMITS the issues to be tried, and CONTROLS
the subsequent course of the action except if it is modified before trial to prevent manifest injustice
‣
The admissions embodied in the pre-trial order are binding upon the parties and conclusive upon them
‣
It is true that the issues to be tried between the parties in a case shall be limited to those defined in the pre-trial order.
This rule should not, however, be construed to refer only to those issues mentioned in the pre-trial order. It also
includes issues that are implied from those written in the order.
COMPROMISE IN CIVIL CASES
CIVIL CODE
Article 2028. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put
an end to one already commenced. (1809a)
Article 2029. The court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise. (n)
Article 2030. Every civil action or proceeding shall be suspended:
(1) If willingness to discuss a possible compromise is expressed by one or both parties; or
(2) If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a
possible compromise but the other party refused the offer.
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The duration and terms of the suspension of the civil action or proceeding and similar matters shall be governed by such
provisions of the rules of court as the Supreme Court shall promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders. (n)
Article 2031. The courts may mitigate the damages to be paid by the losing party who has shown a sincere desire for a
compromise. (n)
Article 2032. The court's approval is necessary in compromises entered into by guardians, parents, absentee's
representatives, and administrators or executors of decedent's estates. (1810a)
Article 2033. Juridical persons may compromise only in the form and with the requisites which may be necessary to
alienate their property. (1812a)
Article 2034. There may be a compromise upon the civil liability arising from an offense; but such compromise shall not
extinguish the public action for the imposition of the legal penalty. (1813)
Article 2035. No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)
Article 2036. A compromise comprises only those objects which are definitely stated therein, or which by necessary
implication from its terms should be deemed to have been included in the same.
A general renunciation of rights is understood to refer only to those that are connected with the dispute which was the
subject of the compromise. (1815)
Article 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution
except in compliance with a judicial compromise. (1816)
Article 2038. A compromise in which there is mistake, fraud, violence, intimidation, undue influence, or falsity of
documents, is subject to the provisions of article 1330 of this Code.
However, one of parties cannot set up a mistake of fact as against the other if the latter, by virtue of the compromise, has
withdrawn from a litigation already commenced. (1817a)
Article 2039. When the parties compromise generally on all differences which they might have with each other, the
discovery of documents referring to one or more but not to all of the questions settled shall not itself be a cause for
annulment or rescission of the compromise, unless said documents have been concealed by one of the parties.
But the compromise may be annulled or rescinded if it refers only to one thing to which one of the parties has no right, as
shown by the newly-discovered documents. (n)
Article 2040. If after a litigation has been decided by a final judgment, a compromise should be agreed upon, either or
both parties being unaware of the existence of the final judgment, the compromise may be rescinded.
Ignorance of a judgment which may be revoked or set aside is not a valid ground for attacking a compromise. (1819a)
Article 2041. If one of the parties fails or refuses to abide by the compromise, the other party may either enforce the
compromise or regard it as rescinded and insist upon his original demand. (n)
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RULE 18: PRE-TRIAL
GUIDELINES TO BE OBSERVED IN PRE-TRIAL AND COMPROMISE
A.M. No. 03-1-09-SC (August 16, 2004) —GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES
The use of pre-trial and the deposition-discovery measures are undeniably important and vital components of case
management in trial courts. To abbreviate court proceedings, ensure prompt disposition of cases and decongest court
dockets, and to further implement the pre-trial guidelines laid down in Administrative Circular No. 3-99 dated January 15,
1999 and except as otherwise specifically provided for in other special rules, the following guidelines are issued for the
observance and guidance of trial judges and clerks of court:
I. PRE-TRIAL
A. Civil Cases
1. Within one day from receipt of the complaint:
a.
Summons shall be prepared and shall contain a reminder to defendant to observe restraint in filing a motion to
dismiss and instead allege the grounds thereof as defenses in the Answer, in conformity with IBP-OCA
Memorandum on Policy Guidelines dated March 12, 2002. A copy of the summons is hereto attached as Annex
"A;" and
b.
The court shall issue an order requiring the parties to avail of interrogatories to parties under Rule 25 and request
for admission by adverse party under Rule 26 or at their discretion make use of dispositions under Rule 23 or
other measures under Rules 27 and 28 within five days from the filing of the answer. 1 A copy of the order shall be
served upon the defendant together with the summons and upon the plaintiff.
Within five (5) days from date of filing of the reply, 2 the plaintiff must promptly move ex parte that the case be set for pretrial conference. 3 If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of
pre-trial.
2. The parties shall submit, at least three (3) days before the pre-trial, pre-trial briefs containing the following:
a. A statement of their willingness to enter into an amicable settlement indicating the desired terms thereof or to
submit the case to any of the alternative modes of dispute resolution;
b. A summary of admitted facts and proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented, stating the purpose thereof. (No evidence shall be allowed to be
presented and offered during the trial in support of a party's evidence-in-chief other than those that had been
earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown);
e. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to
commissioners; and
f.
The number and names of the witnesses, the substance of their testimonies, and the approximate number of hours
that will be required by the parties for the presentation of their respective witnesses.
A copy of the Notice of Pre-trial Conference is hereto attached as Annex "B."
The rule on the contents of the pre-trial brief must strictly be complied with.
The parties are bound by the representations and statements in their respective pre-trial briefs.
3.
At the start of the pre-trial conference, the judge shall immediately refer the parties and/or their counsel if authorized
by their clients to the PMC mediation unit for purposes of mediation if available. 5 If mediation fails, the judge will
schedule the continuance of the pre-trial conference. Before then, the Judge may refer the case to the Branch COC
for a preliminary conference to assist the parties in reaching a settlement, to mark the documents or exhibits to be
presented by the parties and copies thereof to be attached to the records after comparison and to consider such
other matters as may aid in its prompt disposition.
During the preliminary conference, the Branch COC shall also ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of the documents marked as exhibits. The proceedings during the
preliminary conference shall be recorded in the "Minutes of Preliminary Conference" to be signed by both parties and/
or counsel, the form of which is hereto attached as Annex "C".
The minutes of preliminary conference and the exhibits shall be attached by the Branch COC to the case record
before the pre-trial
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4.
Before the continuation of the pre-trial conference, the judge must study all the pleadings of the case, and determine
the issues thereof and the respective positions of the parties thereon to enable him to intelligently steer the parties
toward a possible amicable settlement of the case, or, at the very least, to help reduce and limit the issues. The judge
should not allow the termination of pre-trial simply because of the manifestation of the parties that they cannot settle
the case. He should expose the parties to the advantages of pre-trial. He must also be mindful that there are other
important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case.
The Judge with all tact, patience, impartiality and with due regard to the rights of the parties shall endeavor to
persuade them to arrive at a settlement of the dispute. 8 The court shall initially ask the parties and their lawyers if an
amicable settlement of the case is possible. If not, the judge may confer with the parties with the opposing counsel to
consider the following:
a. Given the evidence of the plaintiff presented in his pre-trial brief to support his claim, what manner of compromise
is considered acceptable to the defendant at the present stage?
b. Given the evidence of the defendant described in his pre-trial brief to support his defense, what manner of
compromise is considered acceptable to the plaintiff at the present stage?
If not successful, the court shall confer with the party and his counsel separately.
If the manner of compromise is not acceptable, the judge shall confer with the parties without their counsel for the
same purpose of settlement.
5.
If all efforts to settle fail, the trial judge shall:
a. Adopt the minutes of preliminary conference as part of the pre-trial proceedings and confirm markings of exhibits
or substituted photocopies and admissions on the genuineness and due execution of documents;
b. Inquire if there are cases arising out of the same facts pending before other courts and order its consolidation if
warranted;
c. Inquire if the pleadings are in order. If not, order the amendments if necessary;
d. Inquire if interlocutory issues are involved and resolve the same;
e. Consider the adding or dropping of parties;
f.
Scrutinize every single allegation of the complaint, answer and other pleadings and attachments thereto and the
contents of documents and all other evidence identified and pre-marked during pre-trial in determining further
admissions of facts and documents. To obtain admissions, the Court shall ask the parties to submit the
depositions taken under Rule 23, the answers to written interrogatories under Rule 25 and the answers to request
for admissions by the adverse party under Rule 26. It may also require the production of documents or things
requested by a party under Rule 27 and the results of the physical and mental examination of persons under Rule
28;
g. Define and simplify the factual and legal issues arising from the pleadings. Uncontroverted issues and frivolous
claims or defenses should be eliminated. For each factual issue, the parties/counsel shall state all the evidence to
support their positions thereon. For each legal issue, parties/counsel shall state the applicable law and
jurisprudence supporting their respective positions thereon. If only legal issues are presented, the judge shall
require the parties to submit their respective memoranda and the court can proceed to render judgment; 9
h. Determine the propriety of rendering a summary judgment dismissing the case based on the disclosures made at
the pre-trial or a judgment based on the pleadings, evidence identified and admissions made during pre-trial; 10
i.
Ask parties to agree on the specific trial dates for continuous trial in accordance with Circular No. 1-89 dated
January 19, 1989; adhere to the case flow chart determined by the court, which shall contain the different stages
of the proceedings up to the promulgation of the decision and use the time frame for each stage in setting the trial
dates. The One-Day Examination of Witness Rule, that is, a witness has to be fully examined in one (1) day only,
shall be strictly adhered to subject to the courts' discretion during trial on whether or not to extend the direct and/
or cross-examination for justifiable reasons. 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;
j.
Determine the most important witnesses to be heard and limit the number of witnesses (Most Important Witness
Rule). The facts to be proven by each witness and the approximate number of hours per witness shall be fixed;
k. At his discretion, order the parties to use the affidavits of witnesses as direct testimonies subject to the right to
object to inadmissible portions thereof and to the right of cross-examination by the other party. The affidavits shall
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be based on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein. The affidavits shall be in question
and answer form, and shall comply with the rules on admissibility of evidence;
l.
Require the parties and/or counsel to submit to the Branch COC the names, addresses and contact numbers of
the witnesses to be summoned by subpoena;
m. Order the delegation of the reception of evidence to the Branch COC under Rule 30; and
n. Refer the case to a trial by commissioner under Rule 32
During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all questions or
comments by counsel or parties must be directed to the judge to avoid hostilities between the parties.
6.
The trial judge shall schedule the pre-trial in the afternoon sessions and set as many pre-trial conferences as may be
necessary.
7.
All proceedings during the pre-trial shall be recorded. The minutes of each pre-trial conference shall contain matters
taken up therein more particularly admissions of facts and exhibits and shall be signed by the parties and their
counsel.
8.
The judge shall issue the required Pre-Trial Order within ten (10) days after the termination of the pre-trial. Said Order
shall bind the parties, limit the trial to matters not disposed of and control the course of the action during the trial. A
sample Pre-Trial Order is hereto attached as Annex "D."
However, the Court may opt to dictate the Pre-Trial Order in open court in the presence of the parties and their
counsel and with the use of a computer, shall have the same immediately finalized and printed. Once finished, the
parties and/or their counsel shall sign the same to manifest their conformity thereto.
9.
The court shall endeavor to make the parties agree to an equitable compromise or settlement at any stage of the
proceedings before rendition of judgment.
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RULE 19: INTERVENTION
RULE 19: INTERVENTION
WHO MAY INTERVENE
SECTION 1. 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. (2[a], [b]a,
R12)
‣
In intervention, a third party takes part in a case between other parties because of either —
1.
Legal interest
a.
In the matter in litigation
b.
In the success of either parties
c.
Against both
2.
Situated as to be adversely affected by a distribution or other disposition of property in the custody of the
court or an officer thereof
‣
NOTE — Basically, the intervenor must have his/her own cause of action
‣
What if the the original action is dismissed? Will the intervention be dismissed?
‣
‣
‣
YES. Dismissal of original action will result into dismissal of the intervention (unlike in counterclaims) The jurisdiction of
the intervention is governed by the main action. So if the court has no jurisdiction over the principal action, then it has
no jurisdiction over an intervention.
‣
Intervention is merely collateral or accessory or ancillary to the principal action, and not an independent proceeding; it
is an interlocutory proceeding dependent on or subsidiary to the case between the original parties.[16] Where the
main action ceases to exist, there is no pending proceeding wherein the intervention may be based. (Looyuko vs CA
2001)
‣
SEE — Asian Terminals v. Ricafort, G.R. No. 166901, October 27, 2006
‣
In this case, the RTC cannot be faulted for dismissing petitioners complaint-in-intervention. Considering that it had
no jurisdiction over respondents action and over the shipment subject of the complaint, all proceedings before it
would be void. The RTC had no jurisdiction to take cognizance of the complaint-in-intervention and act thereon
except to dismiss the same.
‣
Moreover, considering that intervention is merely ancillary and supplemental to the existing litigation and never an
independent action, the dismissal of the principal action necessarily results in the dismissal of the complaint-inintervention. Likewise, a court which has no jurisdiction over the principal action has no jurisdiction over a
complaint-in-intervention. Intervention presupposes the pendency of a suit in a court of competent jurisdiction.
Jurisdiction of intervention is governed by jurisdiction of the main action.
How should intervention be done?
‣
Intervention must be done with leave of court
‣
Court will check whether —
1.
It will unduly delay or prejudice the adjudication of the rights of the original parties, and
2.
If intervenor’s rights may be fully protected in a separate proceeding
What is the difference between intervention and interpleader?
‣
In intervention, intervenor must have legal interest
‣
In interpleader, the interpleading plaintiff has no legal interest in the property in possession, or if he has, his interest is
not disputed by the parties. Note that interpleader is a special civil action
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RULE 19: INTERVENTION
TIME TO INTERVENE
SECTION 2. 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. (n)
‣
RULE — INTERVENTION CAN BE DONE AT ANY TIME BEFORE RENDITION OF JUDGMENT BY THE TRIAL COURT
‣
Intervention is legally possible only before or during a trial, hence a motion for intervention filed after trialand, a fortiori,
when the case has already been submitted, when judgment has been rendered, or worse, when judgment is already
final and executoryshould be denied. (Looyuko vs CA 2001)
‣
EXCEPT — In exceptional cases where the intervenors are indispensable parties, it may be allowed even after
the rendition of judgment by the trial court
‣
‣
SEE — Looyuko v. Court of Appeals, G.R. No. 102696, July 12, 2001
‣
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.
‣
In Director of Lands v. Court of Appeals where the motions for intervention were filed when the case had
already reached this 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 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.
‣
In Tahanan Development Corp. v. Court of Appeals this Court allowed intervention almost at the end of the
proceedings. Accordingly, there should be no quibbling, much less hesitation or circumvention, on the part of
subordinate and inferior courts to abide and conform to the rule enunciated by the Supreme Court.
SALVADOR — Take note of this Looyuko case. The concept of “indispensable parties” also has an effect on
intervention. Indispensable parties are exceptionally given standing to intervene even after the rendition of
judgment by the trial court.
PLEADINGS-IN-INTERVENTION
SECTION 3. Pleadings-in-intervention. - The intervenor shall file a complaint-in-intervention if he asserts a claim against
either or all of the original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim
against the latter. (2[c]a, R12)
SECTION 4. Answer to the complaint-in-intervention. - The answer to the complaint-in-intervention shall be filed within
fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (2[d]a, R12)
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RULE 20: CALENDAR OF CASES
RULE 20: CALENDAR OF CASES
CALENDAR OF CASES
SECTION 1. 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. (1a,
R22)
ASSIGNMENT OF CASES
SECTION 2. 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. (7a, R22)
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RULE 21: SUBPOENA
RULE 21: SUBPOENA
DEFINITION OF SUBPOENA
SECTION 1. Subpoena and subpoena duces tecum. - Subpoena is a process directed to a person requiring him to attend
and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the
taking of his deposition. It may also require him to bring with him any books, documents, or other things under his
control, in which case it is called a subpoena duces tecum. (1a, R23)
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2 kinds of Subpoena
1.
Ad testificandum — to appear and testify
2.
Duces tecum — to appear and bring with him the documents, records or things specified therein.
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The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum with the exception that
it concludes with an injunction that the witness shall bring with him and produce at the examination the books,
documents, or things described in the subpoena. (H.C. Liebenow vs. The Philippine Vegetable Oil Company)
‣
NOTE — Person with the documents must appear too. He just can’t mail the things or documents.
ISSUANCE OF SUBPOENA
SECTION 2. 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 of 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, R23)
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Who can issue a subpoena?
1.
The court where witness must attend
2.
Court where deposition is taken
3.
Officer/body authorized by law in connection with investigations conducted by officer/body
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4.
‣
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SC/CA justice in any case or investigation pending within the Philippines
Can a subpoena be issued in the absence of any pending action?
‣
‣
Ombudsman, NBI and prosecutor can issue subpoenas
NO. Absent any proceedings, suit, or action commenced or pending before a court, a subpoena may not issue. In this
case, respondent knew there was no case filed against complainant. Neither had complainant commenced any
proceeding against the Baterinas for whose benefit the subpoena was issued. Respondent, then, had absolutely
neither the power nor the authority nor the duty to issue a subpoena to the complainant. (Collado vs Bravo 2001)
Can a clerk of court issue a subpoena?
‣
Ad testificandum — yes, as long as there is a pending case.
‣
Duces tetum — yes, as long as there is a pending case but only if there is a court order to do so.
Can judge issue a subpoena to a convicted prisoner?
‣
YES. But it must be for a valid purpose.
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BUT — For those under death/RP/life, SC must authorize the appearance
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FORM AND CONTENTS OF A SUBPOENA
SECTION 3. 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. (3a, R23)
‣
‣
Requisites for issuance of subpoenas duces tecum — the items sought to be brought must be RELEVANT to the
case and must be DEFINITELY described with reasonableness
1.
Test of Relevancy — the things requested must appear prima facie relevant to the issue subject of the controversy
2.
Test of Definiteness — such must be reasonably described by the parties to be readily identified
SEE — Roco vs Contreras, G.R. No. 158275. June 28, 2005
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Well-settled is the rule that before a subpoena duces tecum may issue, the court must first be satisfied that the
following requisites are present: (1) the books, documents or other things requested must appear prima facie relevant
to the issue subject of the controversy (test of relevancy); and (2) such books must be reasonably described by the
parties to be readily identified
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In determining whether the production of the documents described in a subpoena duces tecum should be enforced
by the court, it is proper to consider, first, whether the subpoena calls for the production of specific documents,
or rather for specific proof, and secondly, whether that proof is prima facie sufficiently relevant to justify
enforcing its production. A general inquisitorial examination of all the books, papers, and documents of an
adversary, conducted with a view to ascertain whether something of value may not show up, will not be enforced.
‣
Well-settled is Our jurisprudence that, in order to entitle a party to the issuance of a subpoena duces tecum, it must
appear, by clear and unequivocal proof, that the book or document sought to be produced contains evidence relevant
and material to the issue before the court, and that the precise book, paper or document containing such evidence
has been so designated or described that it may be identified.
‣
Going by established precedents, it thus behooves the petitioner to first prove, to the satisfaction of the court, the
relevancy and the definiteness of the books and documents he seeks to be brought before it.
QUASHING A SUBPOENA
SECTION 4. 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. (4a, R23)
‣
Grounds for quashing a subpoena —
1.
AD TESTIFICANDUM
a.
Witness is NOT bound thereby
‣
Like when the witness is not qualified, or would fall under a known privilege
‣
This means that the person must be meet the qualifications of a witness under Rule 130, Sec. 20 to be bound.
He must be qualified as a witness under the rules on evidence
b.
Witness fees and kilometrage allowed by the Rules were not tendered
‣
100 km rule (witness must live 100km within the place where the hearing is conducted)
‣
2.
If witness refuses, he can be arrested to compel him to appear
DUCES TECUM
a.
Unreasonable and oppressive
b.
Relevancy of the books, documents, things does not appear
c.
Failure to tender the costs of production
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d.
Kilometrage/witness fees not tendered
e.
Failure to describe with particularity the items to be brought
SUBPOENA FOR DEPOSITIONS
SECTION 5. Subpoena for depositions. - Proof of service of a notice to take a deposition, as provided in Sections 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. (5a, R23)
‣
SALVADOR — this is a weak provision since the in practice, the court cannot issue a subpoena when it doesn’t have the
records of the case. So, the court of the place in which the deposition is to be taken must first have the records of the
case
SERVICE OF A SUBPOENA
SECTION 6. Service. - 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, tendering to
him the fees for one day's attendance and the kilometrage allowed by these Rules, except that, when a subpoena is
issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made.
The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of
attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things
demanded shall also be tendered. (6a, R23)
PERSONAL APPEARANCE IN COURT
SECTION 7. Personal appearance in court. - A person present in court before a judicial officer may be required to testify
as if he were in attendance upon a subpoena issued by such court or officer. (10, R23)
‣
Remember this provision in practice, if the witness is present in court, he may be called to testify even without a
subpoena.
COMPELLING ATTENDANCE AND CONTEMPT IN CASE OF FAILURE TO OBEY THE SUBPOENA
SECTION 8. 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
deputy, to arrest the witness and bring him before the court or officer where his 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 failure
to answer the subpoena was willful and without just excuse. (11, R23)
SECTION 9. Contempt. - Failure by any person without adequate cause to obey a subpoena served upon him 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. (12a, R23)
SECTION 10. Exceptions. - The provisions of Sections 8 and 9 of this Rule shall not apply to a witness who resides more
than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel,
or to a detention prisoner if no permission of the court in which his case is pending was obtained. (9a, R23)
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Bench warrant is not a warrant of arrest, which can only be issued in criminal cases by the court once an information is
filed
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Contempt in Sec. 9 refers to indirect contempt in Rule 71, Sec. 3(f)
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RULE 22: COMPUTATION OF TIME
RULE 22: COMPUTATION OF TIME
Read this with Rule 11
HOW TO COMPUTE 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. (n)
EFFECT OF INTERRUPTION
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. (n)
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OVERVIEW OF THE MODES OF DISCOVERY
OVERVIEW OF THE MODES OF DISCOVERY
MEANING OF DISCOVERY
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In general, a discovery is a device employed by a party to obtain information about relevant matters on the case from the
adverse party in preparation for the trial.
‣
As contemplated by the Rules, the device may be used by ALL the parties to the case.
PURPOSE OF DISCOVERY
‣
The broad purpose of discovery procedures is to permit mutual knowledge before trial of all relevant facts gathered by
both parties so that either party may COMPEL the other to disgorge facts whatever he has in his possession
‣
In the practical sense, the modes of discovery are designed to serve as an additional device aside from a pretrial.
‣
Remember that a pre-trial is designed to narrow and clarify the basic issues between the parties, to ascertain the facts
relative to the issues and to enable the parties to obtain the fullest possible knowledge of the issues and facts before
civil trials and thus prevent the said trials to be carried on in the dark. It is intended to make certain that all issues
necessary to the disposition of a case are properly raised.
‣
Thus, to obviate the element of surprise, parties are expected to disclose at a pretrial conference all issues of law and
fact that they intend to raise at the trial, except such as may involve privileged or impeaching matters
DUTY OF THE COURT IN RELATION TO THE MODES OF DISCOVERY
‣
The modes of discovery are considered by the Supreme Court as vital components of case management in pre-trial
courts.
‣
Hence, aside from preparing the summons within one (1) day from the receipt of the complaint, the court is required to
issue an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by
adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rules
27 and 28 within five (5) days from the filing of the answer. A copy of this order shall be served upon the defendant
together with the summons. A copy of the order shall also be served upon the plaintiff (A.M. No. 03-1-09-SC, July 13,
2004).
‣
The policy now is to encourage the use of the modes of discovery
MODES OF DISCOVERY UNDER THE RULES OF COURT
1.
Depositions pending action (Rule 23)
2.
Depositions before action or pending appeal (Rule 24)
3.
Interrogatories to parties (Rule 25)
4.
Admission by adverse party (Rule 26)
5.
Production or inspection of documents and things (Rule 27)
6.
Physical and mental examination of persons (Rule 28)
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RULE 23: DEPOSITIONS PENDING ACTION
RULE 23: DEPOSITIONS PENDING ACTION
OVERVIEW OF DEPOSITIONS
NATURE AND CONCEPT OF DEPOSITIONS
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‣
‣
‣
What is a deposition?
‣
A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party
to the action. This testimony is taken out of court.
‣
A deposition is chiefly a mode of discovery whose primary function is to supplement the pleadings for the purpose of
disclosing the real points of dispute between the parties and affording an adequate factual basis during the
preparation for trial. Since depositions are principally made available to the parties as a means of informing
themselves of all the relevant facts, depositions are not meant as substitute for the actual testimony in open court of a
party or witness. Generally, the deponent must be presented for oral examination in open court at the trial or hearing.
This is a requirement of the rules on evidence under Section 1, Rule 132. (Republic vs Sandiganbayan 2011)
The rule provides for either of two methods for taking deposition. It may be either by —
1.
An oral examination
2.
A written interrogatory
SEE — Jonathan Landoil vs Mangudadatu, G.R. No. 155010. August 16, 2004
‣
In keeping with the principle of promoting the just, speedy and inexpensive disposition of every action and
proceeding, depositions are allowed as a departure from the accepted and usual judicial proceedings of examining
witnesses in open court where their demeanor could be observed by the trial judge. Depositions are allowed, provided
they are taken in accordance with the provisions of the Rules of Court (that is, with leave of court if the summons have
been served, without leave of court if an answer has been submitted); and provided, further, that a circumstance for
their admissibility exists.
‣
The Rules of Court vests in the trial court the discretion to order whether a deposition may be taken or not under
specified circumstances that may even differ from those the proponents have intended. However, it is well-settled that
this discretion is not unlimited. It must be exercised -- not arbitrarily, capriciously or oppressively -- but in a
reasonable manner and in consonance with the spirit of the law, to the end that its purpose may be attained.
‣
The Rules of Court provides adequate safeguards to ensure the reliability of depositions. The right to object to their
admissibility is retained by the parties, for the same reasons as those for excluding evidence if the witness were
present and had testified in court; and for errors and irregularities in the deposition. As a rule, depositions should be
allowed, absent any showing that taking them would prejudice any party.
‣
As a mode of discovery resorted to before trial, deposition has advantages, as follows —
1.
It is of great assistance in ascertaining the truth and in checking and preventing perjury.
2.
It is an effective means of detecting and exposing false, fraudulent, and sham claims and defenses.
3.
It makes available in a simple, convenient, and often inexpensive way facts which otherwise could not have been
proved, except with great difficulty and sometimes not at all.
4.
It educates the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging
settlements out of court.
5.
It expedites the disposal of litigation, saves the time of the courts, and clears the docket of many cases by
settlements and dismissals which otherwise would have to be tried.
6.
It safeguards against surprise at the trial, prevents delays, and narrows and simplifies the issues to be tried,
thereby expediting the trial.
7.
It facilitates both the preparation and the trial of cases.
Does Rule 23 or the Modes of Discovery in general apply in criminal cases?
‣
NO. SEE — Manguerra vs Risos, G.R. No. 152643, August 28, 2008
‣
While it is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all
actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory
application to criminal cases. However, it is likewise true that the criminal proceedings are primarily governed by
the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation
in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise.
‣
The conditional examination of a prosecution witness for the purpose of taking his deposition should be made
before the court, or at least before the judge, where the case is pending. Such is the clear mandate of Section 15,
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Rule 119 of the Rules. If the deposition is made elsewhere, the accused may not be able to attend, as when he is
under detention. More importantly, this requirement ensures that the judge would be able to observe the witness
deportment to enable him to properly assess his credibility. This is especially true when the witness testimony is
crucial to the prosecutions case. While we recognize the prosecutions right to preserve its witness testimony to
prove its case, we cannot disregard rules which are designed mainly for the protection of the accused
constitutional rights.
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SALVADOR — Take note of this case. It says that you cannot apply the rules on depositions in Rule 23 in criminal
cases since you have to follow the rules on conditional examination of witnesses under Rule 119 there. Thus, you
can’t apply for depositions before the action is instituted in criminal cases as Rule 119 requires that the criminal
action must already be pending. So, if the criminal compliant is still at the office of the prosecutor, they can’t apply
for conditional examination to protect his testimony.
TIMELINE OF AVAILING OF DEPOSITIONS
‣
A deposition may be sought for use either —
1.
In a pending action (Rule 23)
2.
A future action (Rule 24), or
3.
For use in a pending appeal (Rule 24).
‣
If the deposition is for use during a pending action — it is commonly called a deposition de benne esse and is
governed by Rule 23.
‣
If it is to perpetuate a testimony for use in future proceedings — as when it is sought before the existence of an
action, or for cases on appeal, it is called a deposition in perpetuam rei memoriam and is governed by Rule 24 and
134.
‣
The Rules of Court and jurisprudence, do not restrict a deposition to the sole function of being a mode of discovery
before trial. Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced
and may be used without the deponent being actually called to the witness stand. Depositions may be taken at any time
after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to
the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. There can be no valid
objection to allowing them during the process of executing final and executory judgments, when the material issues of
fact have become numerous or complicated. (Jonathan Landoil vs Mangudadatu 2004)
DEPOSITIONS PENDING ACTION, WHEN MAY BE TAKEN
SECTION 1. Depositions pending action, when may be taken. - By leave of court after jurisdiction has been obtained over
any defendant or over property which is the subject of the action, or without such leave after an answer has been served,
the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral
examination or written interrogatories.
The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be
taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of
court on such terms as the court prescribes. (1a, R24)
WHEN A DEPOSITION PENDING ACTION IS TAKEN
‣
‣
RULE — DEPOSITIONS MAY BE TAKEN ANY TIME AFTER INSTITUTION OF ANY ACTION.
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Difference lies if leave of court is necessary
‣
It can even be used in a hearing for a motion to quash execution. (Jonathan Land Oil v Mangudadatu, 2004)
Can non-resident foreign corporations use depositions for their witnesses who live abroad?
‣
YES, Rule 23, Sec. 1 does not make any distinction or restriction as to who can avail of deposition. Thus, this Court
found it immaterial that the plaintiff was a non-resident foreign corporation and that all its witnesses were Americans
residing in the United States. (Santamaria vs Cleary 2016 citing San Luis vs Rojas)
HOW A DEPOSITION PENDING ACTION IS TAKEN
1.
After jurisdiction over any defendant or over property — By Motion with Leave of Court
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You need to file a motion
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When else do you need leave of court?
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2.
If deposition of a prisoner is needed
Leave of court is not required after an answer has been served but leave of court is required before the service of an
answer but after jurisdiction has been acquired over any defendant or over the property subject of the action
After an answer has been served — By Mere Notice
‣
This becomes a mater of right, since issues have already been joined
‣
What if what was filed was an answer ad cautelam, with leave of court or by mere notice?
‣
‣
By mere notice. An answer ad cautelam is still an answer. It doesn’t make it less of an answer. (Rosete v Lim, 2006)
So, it's like the reverse of an amendment. The line whether its a matter of right or a matter of discretion is also the
filing of the answer
SCOPE OF EXAMINATION
SECTION 2. Scope of examination. - Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule,
the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending
action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible things and the identity and location of persons having
knowledge of relevant facts. (2, R24)
‣
RULE — The deponent may be examined regarding any matter, provided such matter is —
1.
Not privileged, and
2.
Relevant to the subject of the pending action
EXAMINATION AND CROSS-EXAMINATION
SECTION 3. Examination and cross-examination. - Examination and cross-examination of deponents may proceed as
permitted at the trial under , Sections 3 to 18 of Rule 132. (3a, R24)
‣
The deponent may be examined or cross examined following the procedures for witnesses in a trial.
‣
He may be asked questions on direct, cross, re-direct or re-cross.
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He has the same rights as a witness and may be impeached like a court witness because Secs. 3 to 18 of Rule 132 apply
to a deponent
USE OF DEPOSITIONS
SECTION 4. Use of depositions. - At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or
all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following
provisions:
a.
Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent
as a witness;
b.
The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing
agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party
for any purpose;
c.
The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
1.
That the witness is dead; or
2.
That the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing,
or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition;
or
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3.
That the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
4.
That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
5.
Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of
justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to
allow the deposition to be used; and
d.
If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it
which is relevant to the part introduced, and any party may introduce any other parts. (4a, R24)
RULES ON EVIDENCE
RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE
Section 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or
unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject
matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (41a)
AGAINST WHOM CAN YOU USE THE DEPOSITION?
‣
Any part or all of the deposition, so far as admissible under the rules of evidence, may be used against —
1.
Against any party who was present or represented at the taking of the deposition, or
2.
Against one who had due notice of the deposition
WHEN CAN YOU USE THE DEPOSITION?
‣
The deposition or any of its parts, may be used at the trial or upon the hearing of a motion or an interlocutory proceeding.
‣
NOTE — If a part of a deposition is offered in evidence, the adverse party may require the party to introduce ALL of it.
FOR WHAT PURPOSE CAN YOU USE THE DEPOSITION?
1.
For contradicting or impeaching the testimony of the deponent as a witness
‣
See rule 132, Sec. 11 and 13. There are 3 ways to impeach a witness. Impeach his credibility, by contrary evidence,
and on prior inconsistent statement.
‣
This falls under the third way of impeaching a witness. You use his deposition (which is a prior statement) to impeach
what such deponent is now telling the court as a witness.
2.
For any purpose by the adverse party where the deponent is a party or at the time of the deposition was an
officer, director, or managing agent of a public or private corporation, partnership or association which is a party
3.
For any purpose by any party, where the deponent is a witness, whether or not a party, if the court finds that the
witness —
‣
a.
Is dead
b.
Lives more than 100KM from the place of trial or is out of the Philippines
‣
Unless the absence was procured by the party offering the deposition
‣
This is the case, even if the witnesses are not sick or infirm. In this case, it is of no moment that respondent was
not suffering from any impairment. Rule 23, Section 4(c)(2) of the Rules of Court, which was invoked by
respondent, governs the use of depositions taken. This allows the use of a deposition taken when a witness is "out
of the Philippines.” (Santamaria vs Cleary 2016)
c.
Unable to testify or attend due to age, sickness, imprisonment
d.
Could not be compelled to attend through a subpoena
e.
Exceptional cases
NOTE — The general rule is that you still have to put the witness in the stand. That’s the priority. While depositions may
be used as evidence in court proceedings, they are generally not meant to be a substitute for the actual testimony in open
court of a party or witness. Stated a bit differently, a deposition is not to be used when the deponent is at hand. Indeed,
any deposition offered during a trial to prove the facts therein set out, in lieu of the actual oral testimony of the deponent
in open court, may be opposed and excluded on the ground of hearsay. However, depositions may be used without the
deponent being called to the witness stand by the proponent, provided the existence of certain conditions is first
satisfactorily established. Five (5) exceptions for the admissibility of a deposition are listed in Section 4, Rule 23. (Sales vs
Sabino 2005)
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RULE 23: DEPOSITIONS PENDING ACTION
SALVADOR — The mere failure to appear after a subpoena was issued is insufficient to prove inability to testify. The
court can exercise its coercive power to arrest. There must be efforts to have the witness arrested.
USE OF DEPOSITIONS IN ANOTHER PROCEEDING
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Can you use a deposition in another case to impeach the testimony of a witness in your case?
‣
‣
YES. But only if the witness is dead or unable to testify and there was an opportunity to cross-examine him. Rule 130,
Sec. 47
SEE — Republic vs Sandiganbayan, G.R. No. 152375, December 16, 2011
‣
Before a party can make use of the deposition taken at the trial of a pending action, Section 4, Rule 23 of the Rules of
Court does not only require due observance of its sub-paragraphs (a) to (d); it also requires, as a condition for
admissibility, compliance with the rules on evidence. Thus, even Section 4, Rule 23 of the Rules of Court makes an
implied reference to Section 47, Rule 130 of the Rules of Court before the deposition may be used in evidence.
‣
In this case, by reading Rule 23 in isolation, the petitioner failed to recognize that the principle conceding admissibility
to a deposition under Rule 23 should be consistent with the rules on evidence under Section 47, Rule 130. In
determining the admissibility of the Bane deposition, therefore, reliance cannot be given on one provision to the
exclusion of the other; both provisions must be considered. This is particularly true in this case where the evidence in
the prior proceeding does not simply refer to a witness testimony in open court but to a deposition taken under
another and farther jurisdiction.
‣
Indeed, any deposition offered to prove the facts set forth therein, in lieu of the actual oral testimony of the deponent
in open court, may be opposed by the adverse party and excluded under the hearsay rule i.e., that the adverse party
had or has no opportunity to cross-examine the deponent at the time that his testimony is offered. That opportunity
for cross-examination was afforded during the taking of the deposition alone is no argument, as the opportunity for
cross-examination must normally be accorded a party at the time that the testimonial evidence is actually presented
against him during the trial or hearing of a case. However, under certain conditions and for certain limited purposes
laid down in Section 4, Rule 23 of the Rules of Court, the deposition may be used without the deponent being actually
called to the witness stand.
‣
Section 47, Rule 130 of the Rules of Court is an entirely different provision. While a former testimony or deposition
appears under the Exceptions to the Hearsay Rule, the classification of former testimony or deposition as an
admissible hearsay is not universally conceded. A fundamental characteristic of hearsay evidence is the adverse
partys lack of opportunity to cross-examine the out-of-court declarant. However, Section 47, Rule 130 explicitly
requires, inter alia, for the admissibility of a former testimony or deposition that the adverse party must have had an
opportunity to cross-examine the witness or the deponent in the prior proceeding.
‣
This opportunity to cross-examine though is not the ordinary cross-examination afforded an adverse party in usual
trials regarding matters stated in the direct examination or connected therewith. Section 47, Rule 130 of the Rules of
Court contemplates a different kind of cross-examination, whether actual or a mere opportunity, whose adequacy
depends on the requisite identity of issues in the former case or proceeding and in the present case where the former
testimony or deposition is sought to be introduced.
‣
Section 47, Rule 130 requires that the issues involved in both cases must, at least, be substantially the same;
otherwise, there is no basis in saying that the former statement was - or would have been - sufficiently tested by
cross-examination or by an opportunity to do so. (The requirement of similarity though does not mean that all the
issues in the two proceedings should be the same. Although some issues may not be the same in the two actions, the
admissibility of a former testimony on an issue which is similar in both actions cannot be questioned.[122])
‣
These considerations, among others, make Section 47, Rule 130 a distinct rule on evidence and therefore should not
be confused with the general provisions on deposition under Rule 23 of the Rules of Court. In other words, even if the
petitioner complies with Rule 23 of the Rules of Court on the use of depositions, the observance of Section 47, Rule
130 of the Rules of Court cannot simply be avoided or disregarded.
‣
Section 47, Rule 130 of the Rules of Court lays down the following requisites for the admission of a testimony or
deposition given at a former case or proceeding —
‣
1.
The testimony or deposition of a witness deceased or otherwise unable to testify
2.
The testimony was given in a former case or proceeding, judicial or administrative
3.
Involving the same parties
4.
Relating to the same matter
5.
The adverse party having had the opportunity to cross-examine him
The reasons for the admissibility of testimony or deposition taken at a former trial or proceeding are the necessity for
the testimony and its trustworthiness. However, before the former testimony or deposition can be introduced in
evidence, the proponent must first lay the proper predicate therefor, i.e., the party must establish the basis for the
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admission of the Bane deposition in the realm of admissible evidence. This basis is the prior issue that we must now
examine and resolve.
EFFECT OF SUBSTITUTION OF PARTIES
SECTION 5. Effect of substitution of parties. - Substitution of parties does not affect the right to use depositions
previously taken; and, when an action has been dismissed and another action involving the same subject is afterward
brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and
duly filed in the former action may be used in the latter as if originally taken therefor. (5, R24)
‣
RULE — THE SUBSTITUTION OF PARTIES DOES NOT AFFECT THE RIGHT TO USE THE DEPOSITIONS PREVIOUSLY TAKEN
‣
When an action has been dismissed and another action involving the same subject and between the same parties or
their representatives or successors in interest, is afterwards brought, all the depositions lawfully taken and duly filed in
the former action may be used in the latter as if originally taken.
OBJECTIONS TO ADMISSIBILITY
SECTION 6. Objections to admissibility. - Subject to the provisions of Section 29 of this Rule, objection may be made at
the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the
exclusion of the evidence if the witness were then present and testifying. (6, R24)
EFFECT OF TAKING AND USING DEPOSITIONS
SECTION 7. Effect of taking depositions. - A party shall not be deemed to make a person his own witness for any purpose
by taking his deposition. (7, R24)
SECTION 8. Effect of using depositions. - The introduction in evidence of the deposition or any part thereof for any
purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party
introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in
paragraph (b) of Section 4 of this rule. (8, R24)
EFFECT OF “TAKING” DEPOSITIONS
‣
RULE — A person whose deposition is taken by a party does NOT, by reason of such deposition, make such
person the witness of said party.
EFFECT OF “USING” DEPOSITIONS
‣
RULE — If you use the deposition of a deponent, the deponent becomes your witness.
‣
‣
EXCEPT — if it for the purpose of contradicting or impeaching.
‣
You are not compelled to use the deposition in court if you don’t want.
‣
If you use a deposition, the opposing lawyer can cross-examine on the deposition again, so it’s a matter of need
and strategy.
NOTE — the taking a deposition is different from using one. The difference between the taking of depositions and the
use of depositions taken is apparent in Rule 23, which provides separate sections to govern them. The right to take
statements and the right to use them in court have been kept entirely distinct. The utmost freedom is allowed in taking
depositions; restrictions are imposed upon their use. As a result, there is accorded the widest possible opportunity for
knowledge by both parties of all the facts before the trial. Such of this testimony as may be appropriate for use as a
substitute for viva voce examination may be introduced at the trial; the remainder of the testimony, having served its
purpose in revealing the facts to the parties before trial, drops out of the judicial picture. (Santamaria vs Cleary 2016)
REBUTTING DEPOSITION
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SECTION 9. Rebutting deposition. - At the trial or hearing, any party may rebut any relevant evidence contained in a
deposition whether introduced by him or by any other party. (9, R24)
PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
SECTION 10. Persons before whom depositions may be taken within the Philippines. - Within the Philippines, depositions
may be taken before any judge, notary public, or the person referred to in Section 14 hereof. (10a, R24)
SECTION 14. Stipulations regarding taking of depositions. - If the parties so stipulate in writing, depositions may be taken
before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so
taken may be used like other depositions. (14a, R24)
SECTION 11. Persons before whom depositions may be taken in foreign countries. - In a foreign state or country,
depositions may be taken
a.
On notice before a secretary of embassy or legation, consul general, consul, vice- consul, or consular agent of the
Republic of the Philippines
b.
Before such person or officer as may be appointed by commission or under letters rogatory; or
c.
The person referred to in Section 14 hereof. (11a, R24)
SECTION 13. Disqualification by interest. - No deposition shall be taken before a person who is a relative within the sixth
degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same
degree, or employee of such counsel; or who is financially interested in the action. (13a, R24)
‣
‣
‣
‣
In the Philippines, who can take Depositions?
1.
Any judge
2.
Notary public, or
3.
Person authorized to administer oaths stipulated and agreed upon in writing by the parties
Abroad, who can take Depositions?
1.
Secretary of an embassy/legation, consul general, consul, vice-consul or consular agent
2.
Such person or officer as appointed by a commission or under letters rogatory, or
3.
Person authorized to administer oaths stipulated and agreed upon in writing by the parties
Who are disqualified from taking depositions? (Disqualified Deposition Officers)
1.
Sixth degree of consanguinity or affinity from party
2.
Sixth degree of consanguinity or affinity from counsel or employee of counsel
3.
One financially interested in the action
When should objections based on a disqualification be raised?
1.
Before the taking of the deposition, or
2.
As soon as the disqualification becomes known or could be discovered with reasonable diligence.
‣
If not, waived.
COMMISSION OR LETTERS ROGATORY
SECTION 12. Commission or letters rogatory. - A commission or letters rogatory shall be issued only when necessary or
convenient, on application and notice, and on such terms and with such direction as are just and appropriate.
Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be
addressed to the appropriate judicial authority in the foreign country. (12a, R24)
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NOTE — No order of preference before you use this mode.
1.
Commission — Issued by the court as a directive to an official of the Philippines, authorizing him to take the deposition
of the witness. The deposition is taken in accordance with the rules of the court issuing the commission. Philippine rules
are observed.
2.
Letters Rogatory — Form of request to foreign tribunals to give its aid in securing the desired information. Rules of the
foreign jurisdiction are observed. It is basically a request from local court to a foreign court
‣
SEE — Dulay vs Dulay, G.R. No. 158857, November 11, 2005
‣
Leave of court is not required when the deposition is to be taken before a secretary of embassy or legation, consul
general, consul, vice-consul or consular agent of the Republic of the Philippines and the defendants answer has
already been served. However, if the deposition is to be taken in a foreign country where the Philippines has no
secretary of embassy or legation, consul general, consul, vice-consul or consular agent, it may be taken only before
such person or officer as may be appointed by commission or under letters rogatory.
‣
In this case, letters rogatory were sent to Boston but was ignored, so the deposition was taken before a NY notary,
who was duly certified by the Philippine Consul and under Philippine rules. It was allowed by the SC beads on
substantial compliance because there was no consular office in Boston and it wasn’t the fault of the respondent that
the Boston court ignored the letters rogatory.
‣
While the letters rogatory issued by the trial court specifically directed the Clerk of Court of Boston to take the
depositions needed in the case, it became impossible to follow the directive since the Clerk of Court of Boston merely
brushed it aside and refused to cooperate. Respondent cannot be faulted for the resultant delay brought about by this
circumstance. Neither can the trial court be faulted for allowing the admission of the depositions taken not in strict
adherence to its original directive, nor for directing the petitioner to have the depositions authenticated. Obviously, it
was not within the trial courts power, much less the respondents to force the Clerk of Court of Boston to have the
deposition taken before it. It would be illogical and unreasonable to expect respondent to comply with the letters
rogatory without the cooperation of the very institution or personality named in the letters rogatory and requested to
examine the witnesses. The Court finds that respondent substantially complied with the requirements for depositions
taken in foreign countries.
A. ORAL DEPOSITIONS
DEPOSITION UPON ORAL EXAMINATION; NOTICE AND PLACE
SECTION 15. Deposition upon oral examination; notice; time and place. - A party desiring to take the deposition of any
person upon oral examination shall give reasonable notice in writing to every other party to the action.
The notice shall state the time and place for taking the deposition and the name and address of each person to be
examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or
group to which he belongs.
On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15,
R24)
‣
RULE — A party desiring to take the deposition of any person upon oral examination shall give reasonable notice
in writing to every party to the action stating the time and place for taking the deposition and the name and
address of each person to be examined
‣
After the notice is served, the court may make any order for the protection of the parties and the deponents (Sec. 16)
‣
All objections with the notice must be promptly served in writing upon the party giving the notice, or else it is WAIVED
OBJECTIONS TO THE DEPOSITION
SECTION 16. Orders for the protection of parties and deponents. - After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown,
the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken
only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories,
or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no one present
except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened
only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties
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shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by
the court; or the court may make any other order which justice requires to protect the party or witness from annoyance,
embarrassment, or oppression. (16a, R24)
SECTION 18. Motion to terminate or limit examination. - At any time during the taking of the deposition, on motion or
petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in
such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is
pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the
deposition, as provided in Section 16 of this Rule.
If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the
action is pending.
Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary
to make a notice for an order.
In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay
such costs or expenses as the court may deem reasonable. (18a, R24)
OBJECTIONS TO TAKING OF THE DEPOSITION; ORDERS FOR THE PROTECTION OF PARTIES AND DEPONENTS
‣
NOTE — This presupposes that the deposition hasn’t been conducted yet
‣
RULE — ANY PARTY OR THE PERSON TO BE EXAMINED, WHO OBJECTS TO THE DEPOSITION, MAY FILE A MOTION BASED ON
GOOD CAUSE TO THE COURT IN WHICH THE ACTION IS PENDING. SUCH COURT MAY EITHER —
1.
Order that the deposition shall NOT be taken
2.
Limit the manner of taking the deposition by providing that —
a.
It may be taken only at some designated place other than that stated in the notice,
b.
It may be taken only on written interrogatories
c.
Certain matters shall not be inquired into,
d.
The scope of the examination shall be held with no one present except the parties to the action and their officers
or counsel.
e.
After being sealed the deposition shall be opened only by order of the court,
f.
Secret processes, developments, or research need not be disclosed
g.
The parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be
opened as directed by the court
h.
Any other order which justice requires to protect the party or witness from annoyance, embarrassment, or
oppression.
OBJECTIONS DURING THE EXAMINATION; MOTION TO TERMINATE OR LIMIT THE EXAMINATION
‣
NOTE — This presupposes that the deposition is in the process of being conducted
‣
RULE — AT ANY TIME DURING THE TAKING OF THE DEPOSITION, ON MOTION OR PETITION OF ANY PARTY OR OF THE
DEPONENT, THE COURT MAY ORDER THE OFFICER CONDUCTING THE EXAMINATION TO —
‣
‣
‣
1.
Cease from taking the deposition
2.
Limit the scope and manner of the taking of the deposition
This may be based on the following grounds —
1.
To protect the party or witness from annoyance, embarrassment, or oppression, or
2.
That what is sought is irrelevant in the action.
This may applied for either in the —
1.
Court in which the action is pending or
2.
RTC of the place where the deposition is being taken
NOTE —
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If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which
the action is pending.
Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time
necessary to make a notice for an order.
See also Sec. 29 for grounds to contest a defective deposition
DUTY OF THE OFFICER TAKING THE ORAL DEPOSITION
SECTION 17. Record of examination; oath; objections. - The officer before whom the deposition is to be taken shall put
the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the
testimony of the witness.
The testimony shall be taken stenographically unless the parties agree otherwise.
All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the
manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the
proceedings, shall be noted by the officer upon the deposition.
Evidence objected to shall be taken subject to the objections.
In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17, R24)
SECTION 19. Submission to witness; changes; signing. - When the testimony is fully transcribed, the deposition shall be
submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived
by the witness and by the parties.
Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer
with a statement of the reasons given by the witness for making them.
The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill
or cannot be found or refuses to sign.
If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of
the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and
the deposition may then be used as fully as though signed, unless on a motion to suppress under Section 29(f) of this
Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(19a, R24)
SECTION 20. Certification and filing by officer. - The officer shall certify on the deposition that the witness was duly sworn
to by him and that the deposition is a true record of the testimony given by the witness.
He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of
(here insert the name of witness)" and shall promptly file it with the court in which the action is pending or send it by
registered mail to the clerk thereof for filing. (20, R24)
SECTION 21. Notice of filing. - The officer taking the deposition shall give prompt notice of its filing to all the parties. (21,
R24)
SECTION 22. Furnishing copies. - Upon payment of reasonable charges therefor, the officer shall furnish a copy of the
deposition to any party or to the deponent. (22, R24)
DUTIES OF THE OFFICER IN CONDUCTING THE ORAL DEPOSITION
1.
The officer before whom the deposition is taken shall put the witness on oath;
2.
The testimony of the witness or deponent must be recorded and shall be taken stenographically unless the party agree
otherwise;
3.
All objections made at the time of the examination shall be noted;
4.
Evidence objected to shall be taken but subject to the objections.
5.
In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to the witness and record the answers verbatim.
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OBJECTIONS DURING THE ORAL DEPOSITION
‣
RULE — ANY EVIDENCE THAT IS OBJECTED TO SHALL STILL BE TAKEN BUT SUBJECT TO THE OBJECTION. ANY OBJECTIONS
SHALL BE NOTED BY THE OFFICER UPON THE DEPOSITION.
‣
The officer before whom the deposition is taken has no authority to rule on the objections interposed during the
course of the deposition
‣
Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are NOT
waived, unless the ground of the objection is one which might have been obviated or removed if presented at
that time.
‣
SEE — Sales vs Sabino, G.R. No. 133154, December 9, 2005
‣
It matters not that opportunity for cross-examination was afforded during the taking of the deposition; for normally,
the opportunity for cross-examination must be accorded a party at the time the testimonial evidence is actually
presented against him during the trial or hearing. In fine, the act of cross-examining the deponent during the taking
of the deposition cannot, without more, be considered a waiver of the right to object to its admissibility as
evidence in the trial proper. In participating, therefore, in the taking of the deposition, but objecting to its
admissibility in court as evidence, petitioner did not assume inconsistent positions. He is not, thus, estopped from
challenging the admissibility of the deposition just because he participated in the taking thereof.
‣
Lest it be overlooked, Section 29, Rule 23 of the Rules of Court, no less, lends support to the conclusion just
made. In gist, it provides that, while errors and irregularities in depositions as to notice, qualifications of the officer
conducting the deposition, and manner of taking the deposition are deemed waived if not objected to before or
during the taking of the deposition, objections to the competency of a witness or the competency, relevancy, or
materiality of testimony may be made for the first time at the trial and need not be made at the time of the taking of
the deposition, unless they could be obviated at that point.
DUTIES OF THE OFFICER AFTER THE ORAL EXAMINATION
1.
When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be
read to or by him, unless such examination is waived by the witness and by the parties.
2.
The witness may desire some changes in form and substance, in which case such changes shall be entered upon the
deposition by the officer with a statement of the reasons of the witness for making such changes.
3.
The deposition shall be signed by the witness unless the signing is waived by the parties by stipulation or the deposition
cannot be signed because the witness is ill, cannot be found or if he refuses to sign
4.
If the deposition is not signed by the witness, the officer shall sign it and state on the record the attendant facts together
with the reason given for the non-signing of the deposition.
‣
This having been done, the deposition may be used as fully as though it was signed unless on a motion to suppress
under Sec. 29[f] of Rule 23 and the court holds that the reasons given for the refusal to sign require rejecting the
deposition in whole or in part
5.
The officer is required to certify on the deposition that the witness was duly sworn to by him and that the deposition is a
true record of the testimony given by the witness.
6.
He shall then securely seal the deposition in an envelope indorsed with the title of the action “Deposition of (name of
witness).”
7.
He shall likewise promptly file it with the court in which the action is pending or send it by registered mail to he clerk
thereof for filing
8.
All parties shall promptly be notified of its filing by the officer taking the deposition and upon payment of reasonable
charges, the officer shall furnish a copy of the deposition to any party or to the deponent
SIGNATURE OF THE WITNESS
‣
RULE — The deposition must be signed by the witness.
‣
‣
EXCEPT —
1.
Parties stipulated the waiver of the signing, or
2.
Witness is ill,
3.
Cannot be found, or
4.
Refuses to sign
In these cases, the officer will sign instead, and it can be used. Unless a motion to suppress is granted.
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FAILURE OF PARTY GIVING NOTICE TO ATTEND AND TO SERVE SUBPOENA
SECTION 23. Failure to attend of party giving notice. - If the party giving the notice of the taking of a deposition fails to
attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the
party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in
so attending, including reasonable attorney's fees. (23a, R24)
SECTION 24. Failure of party giving notice to serve subpoena. - If the party giving the notice of the taking of a deposition
of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another
party attends in person or by counsel because he expects the deposition of that witness to be taken, the court may order
the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his
counsel in so attending, including reasonable attorney's fees. (24a, R24)
B. DEPOSITION UPON WRITTEN INTERROGATORIES
WRITTEN INTERROGATORIES
SECTION 25. Deposition upon written interrogatories; service of notice and of interrogatories. - A party desiring to take
the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the
name and address of the person who is to answer them and the name or descriptive title and address of the officer
before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve crossinterrogatories upon the party proposing to take the deposition. Within five (5) days thereafter the latter may serve redirect interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with redirect interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (25, R24)
SECTION 26. Officers to take responses and prepare record. - A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the deposition to the officer designated in the notice,who shall proceed
promptly, in the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response
to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and
the interrogatories received by him. (26, R24)
SECTION 27. Notice of filing and furnishing copies. - When a deposition upon interrogatories is filed, the officer taking it
shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of
reasonable charges therefor. (27, R24)
SECTION 28. Orders for the protection of parties and deponents. - After the service of the interrogatories and prior to the
taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or
a deponent, and for good cause shown, may make any order specified in Sections 15, 16 and 18 of this Rule which is
appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it
shall not be taken except upon oral examination. (28a, R24)
DEPOSITIONS UPON WRITTEN INTERROGATORIES
‣
A deposition need not be conducted through an oral examination. It may be conducted through written interrogatories
‣
A party desiring to take the deposition of any person upon written interrogatories shall serve the interrogatories upon
every other party with a notice stating the name and address of the person who is to answer them, the name and
descriptive title and address of the officer before whom the deposition is to be taken
‣
The party served with the interrogatories may also serve cross-interrogatories upon the party proposing to take the
deposition within ten (10) days from service of the written interrogatories.
‣
The latter may, within five (5) days, serve re-direct interrogatories. Within three (3) days after being served with redirect interrogatories, a party may serve recross interrogatories upon the party proposing to take the deposition
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EFFECT OF ERRORS AND IRREGULARITIES IN DEPOSITIONS
RULE 23: DEPOSITIONS PENDING ACTION
SECTION 29. Effect of errors and irregularities in depositions.
a.
As to notice. - All errors and irregularities in the notice for taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.
b.
As to disqualification of officer. - Objection to taking a deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable diligence.
c.
As to competency or relevancy of evidence. - Objections to the competency of a witness or the competency,
relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the
deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that
time.
d.
As to oral examination and other particulars. - Errors and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct
of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived
unless reasonable objection thereto is made at the taking of the deposition.
e.
As to form of written interrogatories. - Objections to the form of written interrogatories submitted under Sections 25
and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories
authorized.
f.
As to manner of preparation. - Errors and irregularities in the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer
under Sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part
thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
(29a, R24)
OBJECTIONS TO A DEFECTIVE DEPOSITION
‣
RULE — PARTY MAY FILE A MOTION TO SUPPRESS THE DEFECTIVE DEPOSITION BASED ON THE GROUNDS IN SEC. 29,
OTHERWISE SUCH ERROR AND IRREGULARITIES IN TERMS OF THE PREPARATION ARE DEEMED WAIVED
‣
Note that objections to errors and irregularities are waivable.
‣
Error and irregularities in terms of the preparation are waived unless a motion to suppress the deposition or some part
thereof is made with reasonable promptness after discovery of the error.
‣
Can counsel object to the admissibility of a deposition if he actively cross-examined in the taking of the deposition?
‣
‣
Yes. Taking is different from using.
EXCEPT — Objections to the competency or relevancy of evidence during the taking of the deposition. These are
not waived
‣
UNLESS — the ground of the objection is one which might have been obviated or removed if presented at that time.
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RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
A. DEPOSITIONS BEFORE ACTION
VERIFIED PETITION FOR DEPOSITIONS BEFORE ACTION
SECTION 1. Depositions before action; petition. - A person who desires to perpetuate his own testimony or that of
another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in
the court of the place of the residence of any expected adverse party. (1a, R134)
NATURE OF DEPOSITIONS BEFORE ACTIONS; PERPETUATION OF TESTIMONY
‣
Depositions before actions are also called perpetuation of testimony.
‣
This type of depositions is availed of when a person desires to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the Philippines
‣
Rule 24 has already superseded Rule 134 (Also on Perpetuation of Testimony)
‣
There is no pending case, so if you want to perpetuate testimony, you file a case for the purpose of such.
‣
Usually availed of when the petitioner expects to be a party to an action in a court in the Philippines but is presently
unable to bring it cause it to be brought.
HOW TO AVAIL OF DEPOSITIONS BEFORE ACTIONS
‣
RULE — The perpetuation of a testimony, is done by filing a verified petition in the place of the residence of any
expected adverse party
CONTENTS OF THE PETITION
SECTION 2. Contents of petition. - The petition shall be entitled in the name of the petitioner and shall show:
a.
That the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or
cause it to be brought;
b.
The subject matter of the expected action and his interest therein;
c.
The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;
d.
The names or a description of the persons he expects will be adverse parties and their addresses so far as known;
and
e.
The names and addresses of the persons to be examined and the substance of the testimony which he expects to
elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating their testimony. (2, R134)
NOTICE AND SERVICE; ORDER OF THE COURT
SECTION 3. Notice and service. - The petitioner shall serve a notice upon each person named in the petition as an
expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time
and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing,
the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for
service of summons. (3a, R134)
SECTION 4. Order and examination. - If the court is satisfied that the perpetuation of the testimony may prevent a failure
or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and
specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or
written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. (4a, R134)
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RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
SECTION 5. Reference to court. - For the purpose of applying Rule 23 to depositions for perpetuating testimony, each
reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for
such deposition was filed.
SECTION 6. Use of deposition. - If a deposition to perpetuate testimony is taken under this Rule, or if, although not so
taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently
brought in accordance with the provisions of Sections 4 and 5 of Rule 23. (6a, R134)
‣
RULE — After the verified petition is filed, notices shall be sent. If the court is satisfied that the perpetuation of
the testimony may prevent a failure or delay of justice, it shall make the appropriate order for the taking of the
deposition.
‣
The notice shall be sent according to the rules
‣
Such deposition taken is admissible in evidence in any action subsequently brought involving the same subject matter
B. DEPOSITIONS PENDING APPEAL
SECTION 7. Depositions pending appeal. - If an appeal has been taken from a judgment of a court, including the Court of
Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the
judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the
event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make
a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was
pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of
the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds
that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the
depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same
conditions as are prescribed in these Rules for depositions taken in pending actions. (7a, R134)
DEPOSITIONS PENDING APPEAL
‣
RULE — THE COURT IN WHICH THE JUDGMENT WAS RENDERED OR THE COURT OF APPEALS, MAY ALLOW THE TAKING OF
DEPOSITIONS OF WITNESSES TO PERPETUATE THEIR TESTIMONY FOR USE IN THE EVENT OF FURTHER PROCEEDINGS IN THE
FOLLOWING CASES
—
1.
If an appeal has been taken from a judgment of a court
2.
Before the taking of an appeal if the time therefor has not expired,
‣
This pertains to depositions after judgment in the trial court has been rendered
‣
Basically, it must be availed of before judgment becomes final and executory
‣
It is also called perpetuation of testimony.
‣
What if pending case for certiorari, can you take a deposition pending appeal?
‣
No, because it’s not an appeal. Just go for Rule 23 or Rule 25
HOW TO AVAIL OF DEPOSITIONS PENDING APPEAL
‣
RULE — THE PARTY WHO DESIRES TO PERPETUATE THE TESTIMONY MAY MAKE A MOTION IN THE COURT WHICH RENDERED
THE JUDGMENT FOR LEAVE TO TAKE THE DEPOSITIONS
‣
Notice and service thereof should be made as if the action was pending therein
‣
If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an
order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner
and under the same conditions as are prescribed in the Rules for depositions taken in pending actions.
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RULE 25: INTERROGATORIES TO PARTIES
RULE 25: INTERROGATORIES TO PARTIES
SERVICE OF WRITTEN INTERROGATORIES TO PARTIES
SECTION 1. Interrogatories to parties; service thereof . - Under the same conditions specified in Section 1 of Rule 23, any
party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written
interrogatories to be answered by the party served or, if the party served is a public or private corporation or a
partnership or association, by any officer thereof competent to testify in its behalf. (1a)
NATURE OF SERVICE OF WRITTEN INTERROGATORIES TO PARTIES
‣
This mode of discovery is availed of by a party to the action for the purpose of eliciting material and relevant facts from
any adverse party
‣
Limited application. Does not cover oral depositions
‣
Not a deposition per se, but requesting information from adverse party. Party will just prepare a written set of questions to
the adverse party who is then obliged to answer them.
‣
‣
No opportunity to cross-examine
Existing rules consider this mode of discovery as important because within one day from receipt of the complaint, the rule
mandates not only the preparation of the summons but also the issuance of an order requiring the parties to avail of
interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26. The parties however,
may use at their discretion, depositions under Rule 23 or other measures under Rule 27 and 29 within five (5) days from
the filing of the answer (A.M. No. 03-1-09-SC, IA, 1,1.1,1.2).
WRITTEN INTERROGATORIES TO PARTIES DISTINGUISHED WITH OTHER MODES OR PLEADINGS
DIFFERENCE WITH DEPOSITIONS PENDING ACTION UNDER RULE 23
Rule 23 —Depositions Pending Action
Rule 25 — Interrogatories to Parties
To whom
addressed?
To parties or witnesses, any person
To parties, always and only to parties
How must
questions be
answered?
Direct, cross, re-direct and re- cross
It’s just one set of questions to be answered by
the other party
Time to answer
No fixed time to answer (depends on the
officer taking the deposition)
15 days to respond
Uses
‣
‣
10 days to oppose
Same
Difference with “Bill of Particulars” under Rule 12
1.
Bill of particulars — is directed to a pleading and is designed to seek for a more definite statement or for particulars
of any matter not averred with sufficient definiteness in a pleading.
2.
Interrogatories to parties — are not directed against a particular pleading. Instead, they seek the disclosure of all
material and relevant facts from a party
Difference with “Written Interrogatories in a Deposition”
1.
Written interrogatories in a deposition — are not served upon the adverse party directly. They are instead delivered
to the officer designated in the notice
2.
Service of written interrogatories — is a mode of deposition separate and distinct from interrogatories to parties.
Interrogatories to parties are served directly upon the adverse party
HOW TO AVAIL OF WRITTEN INTERROGATORIES
‣
RULE — The mode of discovery is availed of by filing and serving upon the adverse party written interrogatories to
be answered by the party served.
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‣
RULE 25: INTERROGATORIES TO PARTIES
If the party is a juridical entity, the written interrogatories shall be answered by any of its officers competent to
testify in its behalf
RESPONSE BY THE RECIPIENT OF THE WRITTEN INTERROGATORIES: ANSWER OR OBJECT
SECTION 2. Answer to interrogatories. - The interrogatories shall be answered fully in writing and shall be signed and
sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a
copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof, unless the
court, on motion and for good cause shown, extends or shortens the time. (2a)
SECTION 3. Objections to interrogatories. - Objections to any interrogatories may be presented to the court within ten
(10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are
resolved, which shall be at as early a time as is practicable. (3a)
‣
RULE — THE ADVERSE PARTY UPON WHOM THE WRITTEN INTERROGATORY IS ADDRESSED MAY EITHER —
1.
Answer within 15 days from service of the interrogatories
2.
Object within 10 days from service of the interrogatories
‣
Once the objections are resolved, he is then required to file an answer if the court doesn’t find the objections
meritorious
‣
The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making
them.
‣
The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) days after service thereof.
‣
‣
This period may, upon motion and for good cause shown, be extended or shortened by the court
The party against whom it is directed may make objections to the interrogatories. If he does so, said objections shall
be presented to the court within ten (10) days after service of the interrogatories.
‣
The filing of the objections shall have the effect of deferring the filing and service of the answer to the
interrogatories until the objections are resolved
NUMBER OF INTERROGATORIES
SECTION 4. Number of interrogatories. - No party may, without leave of court, serve more than one set of interrogatories
to be answered by the same party. (4)
SCOPE AND USE OF INTERROGATORIES
SECTION 5. Scope and use of interrogatories. - Interrogatories may relate to any matters that can be inquired into under
Section 2 of Rule 23, and the answers may be used for the same purposes provided in Section 4 of the same Rule. (5a)
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
SECTION 6. Effect of failure to serve written interrogatories. - Unless thereafter allowed by the court for good cause
shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending appeal. (n)
‣
RULE — A PARTY NOT SERVED WITH WRITTEN INTERROGATORIES MAY NOT BE COMPELLED BY THE ADVERSE PARTY TO GIVE
TESTIMONY IN OPEN COURT, OR TO GIVE DEPOSITION PENDING APPEAL
‣
EXCEPT — If allowed by the court for good cause shown and to prevent a failure of justice
‣
Once you receive an interrogatory, you should be alerted because the other party will probably call you to testify in
court
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‣
‣
What is the effect of failure to serve written interrogatories?
‣
‣
A party not served may NOT be compelled by the adverse party to give either —
1.
Testimony in open court or
2.
A deposition pending appeal
What is the effect of failure to answer specific questions in written interrogatories? (Read with Rule 29)
‣
‣
RULE 25: INTERROGATORIES TO PARTIES
Interrogatories are served so that the one serving them can call the adverse party to testify in court. Because if an
interrogatory was not served on the party, such party cannot be called to testify in court, unless court allows it for
good cause.
Not default yet, Proponent must first move to compel the other party to answer. (Jaravata v Karolus, 2007. See Rule
29, Sec 1 & 3)
What is the effect of failure to answer ALL questions in written interrogatories?
‣
Rule 29, Sec 5 should apply, NOT Rule 29, Sec 3. (Zepeda v China Banking, 2006)
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RULE 26: ADMISSION BY ADVERSE PARTY
RULE 26: ADMISSION BY ADVERSE PARTY
REQUEST FOR ADMISSION
SECTION 1. Request for admission. - At any time after issues have been joined, a party may file and serve upon any other
party a written request for the admission by the latter of the genuineness of any material and relevant document
described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the
request. Copies of the documents shall be delivered with the request unless copies have already been furnished. (1a)
PURPOSE OF A REQUEST FOR ADMISSION
‣
The purpose of this mode of discovery is to allow one party to request the adverse party in writing to admit certain
material and relevant matters which most likely will not be disputed during the trial.
‣
To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may
request the other to:
‣
‣
‣
1.
Admit the genuineness of any material and relevant document described in and exhibited with the request; or
2.
Admit the truth of any material and relevant matter of fact set forth in the request
BUT — NO request for admission are allowed on matters which are —
1.
Precisely the issues in the cases, or
2.
Irrelevant matters
3.
Opinions,or
4.
Conclusions of law
5.
Privileged matters, or
6.
Merely reiterations of allegations in the complaint. (Sime Darby v NLRC, 2006; DBP v CA, 2005; Limos v Spouses)
SEE — Sime Darby vs NLRC, G.R. No. 148021, December 6, 2006
‣
Petitioners’ Request for Admission does not fall under Rule 26 of the Rules of Court. A review of said Request for
Admission shows that it contained matters which are precisely the issues in the consolidated cases, and/or irrelevant
matters; for example, the reasons behind the lockout, the company’s motive in the CBA negotiations, lack of notice of
dismissal, the validity of the release and quitclaim, etc. Rule 26 as a mode of discovery contemplates of
interrogatories that would clarify and tend to shed light on the truth or falsity of the allegations in a pleading. That is its
primary function. It does not refer to a mere reiteration of what has already been alleged in the pleadings.
‣
Otherwise stated, petitioner's request constitutes "an utter redundancy and a useless, pointless process which the
respondent should not be subjected to." The rule on admission as a mode of discovery is intended "to expedite trial
and to relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be
ascertained by reasonable inquiry." Thus, if the request for admission only serves to delay the proceedings by abetting
redundancy in the pleadings, the intended purpose for the rule will certainly be defeated
SEE — Limos v. Spouses Odones, G.R. No.186979, August 11, 2011
‣
The matters set forth in petitioners Request for Admission were the same affirmative defenses pleaded in their Answer
which respondents already traversed in their Reply. The said defenses were likewise sufficiently controverted in the
complaint and its annexes. In effect, petitioners sought to compel respondents to deny once again the very matters
they had already denied, a redundancy, which if abetted, will serve no purpose but to delay the proceedings and thus
defeat the purpose of the rule on admission as a mode of discovery which is to expedite trial and relieve parties of the
costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable
inquiry.
‣
A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s
pleading but should set forth relevant evidentiary matters of fact described in the request, whose purpose is to
establish said party’s cause of action or defense. Unless it serves that purpose, it is pointless, useless, and a mere
redundancy.Verily then, if the trial court finds that the matters in a Request for Admission were already admitted or
denied in previous pleadings by the requested party, the latter cannot be compelled to admit or deny them anew. In
turn, the requesting party cannot reasonably expect a response to the request and thereafter, assume or even demand
the application of the implied admission rule in Section 2, Rule 26.
‣
In this case, the redundant and unnecessarily vexatious nature of petitioners Request for Admission rendered it
ineffectual, futile, and irrelevant so as to proscribe the operation of the implied admission rule in Section 2, Rule 26 of
the Rules of Court.
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RULE 26: ADMISSION BY ADVERSE PARTY
WHEN ADMISSIONS MAY BE REQUESTED
‣
‣
RULE — A PARTY MAY FILE AND SERVE THE WRITTEN REQUEST ONLY AFTER THE ANSWER IS FILED.
‣
This is when the issues are joined
‣
Compare to depositions, which can be before or after answer if filed
Who do you address it to?
‣
The adverse party not the counsel
IN REQUESTS FOR ADMISSION, WHAT IS IT THAT YOU WANT ADMITTED?
1.
The genuineness of any material/relevant document
‣
Not the contents of the document, just the genuineness.
‣
When you want to present a document, you should first authenticate and prove it is genuine but its substance is a
different matter
‣
There is a long procedure on how to authenticate documents under Rule 132
‣
Genuineness is different from the substance of the document. Even if the adverse party admits the genuineness of the
document, he can still contest the substance and circumstances of the document (Same rule as in Actionable
Documents)
‣
Party requesting must attach the document
2.
Truth of any material and relevant matter
EFFECT OF FAILURE TO FILE A REQUEST FOR ADMISSION
SECTION 5. Effect of failure to file and serve request for admission. - Unless otherwise allowed by the court for good
cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse
party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall
not be permitted to present evidence on such facts. (n)
‣
‣
RULE — THE PARTY WHO FAILS TO FILE AND SERVE THE REQUEST SHALL NOT BE PERMITTED TO PRESENT EVIDENCE ON FACTS
THAT ARE —
1.
Material and relevant; and
2.
Those which are, or ought to be within the personal knowledge of the other party
EXCEPT — Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice
‣
NOTE — within one day from receipt of the complaint, the rule mandates not only the preparation of the summons but
also the issuance of an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for
admission by adverse party under Rule 26. The parties, however, may use at their discretion, depositions under Rule
23 or other measures under Rules 27 and 29 within five (5) days from the filing of the answer (A.M. No. 03-1-09- SC,
IA, 1,1.1, 1.2, July 13, 2004).
RESPONSE OF THE PARTY AGAINST WHOM THE REQUEST IS DIRECTED; FAILURE TO ANSWER
SECTION 2. Implied admission. - Each of the matters of which an admission is requested shall be deemed admitted
unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or
within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon
the party requesting the admission a sworn statement either denying specifically the matters of which an admission is
requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.
Objections to any request for admission shall be submitted to the court by the party requested within the period for and
prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall
be deferred until such objections are resolved, which resolution shall be made as early as practicable. (2a)
SECTION 3. Effect of admission. - Any admission made by a party pursuant to such request is for the purpose of the
pending action only and shall not constitute an admission by him for any other purpose nor may the same be used
against him in any other proceeding. (3)
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RULE 26: ADMISSION BY ADVERSE PARTY
RESPONSE OF THE PARTY AGAINST WHOM THE REQUEST IS DIRECTED
‣
‣
He can either file an answer or object
RULE — THE PARTY TO WHOM THE WRITTEN REQUEST IS DIRECTED MAY EITHER —
1.
ANSWER BY SWORN STATEMENT OF ADMISSION OR DENIAL WITHIN 15 DAYS FROM SERVICE OF THE REQUEST
‣
He should file and serve upon the party requesting the admission a sworn statement either —
a.
Admitting the matters requested to be so admitted
b.
Specifically denying the matters of which admission is requested, or
c.
If he does not deny the same, to set forth in detail the reasons why he cannot truthfully admit or deny those
matters.
‣
This sworn statement shall be filed and served within the period designated in the request but which shall not be
less than fifteen (15) days from the service of such request, or within such further time as the court may allow
‣
Note that the answer must be under oath
2.
OBJECT WITHIN 15 DAYS FROM SERVICE OF THE REQUEST
‣
The party requested may have the compliance of the filing and service of the sworn statement deferred (This is to
avoid the adverse consequences of the failure to file the sworn statement of denial, which amounts to an implied
admission)
‣
Compliance shall be deferred until such objections are resolved by the court
‣
NOTE — compare the period to objection with opposing written interrogatories to parties under Sec. 25, which
gives only 10 days
EFFECT OF FAILURE TO ANSWER TO THE REQUEST
‣
RULE — IF THE PARTY TO WHOM THE WRITTEN REQUEST FOR ADMISSION DOES NOT FILE THE REQUIRED SWORN STATEMENT,
EACH OF THE MATTERS OF WHICH AN ADMISSION IS REQUESTED SHALL BE DEEMED ADMITTED
‣
‣
It amounts to an implied judicial admission (remember Rule 129?, remember that this is made in the course of the
proceedings)
‣
Under these rules, a party who fails to respond to a Request for Admission shall be deemed to have impliedly
admitted all the matters contained therein. It must be emphasized, however, that the application of the rules on modes
of discovery rests upon the sound discretion of the court. As such, it is the duty of the courts to examine thoroughly
the circumstances of each case and to determine the applicability of the modes of discovery, bearing always in mind
the aim to attain an expeditious administration of justice. The determination of the sanction to be imposed upon a
party who fails to comply with the modes of discovery also rests on sound judicial discretion. Corollarily, this
discretion carries with it the determination of whether or not to impose the sanctions attributable to such fault. (Limos
vs Odones 2011)
‣
In this case, respondent having failed to discharge what is incumbent upon her under Rule 26, that is, to deny under
oath the facts bearing on the main issue contained in the Request for Admission, she was deemed to have admitted
that she received the construction materials, the cost of which was indicated in the request and was indebted to
petitioner in the amount of P184,610.50 (P314,610.50 less the partial payment of P130,000.00). (Manzano v.
Despalidares 2004)
BUT — Any admission made by a party as a consequence of the failure to comply with the request is only for the
purpose of the pending action
‣
It shall not be deemed an admission for any other purpose.
‣
The admission cannot be used against the admitting party in any other proceeding
‣
Facts or documents admitted need not be proved anymore in trial
WITHDRAWAL
SECTION 4. Withdrawal. - The court may allow the party making an admission under this Rule, whether express or
implied, to withdraw or amend it upon such terms as may be just. (4)
‣
Admissions made under this mode of discovery, whether express or implied are not final and irrevocable. The court may
allow the party making the admission to withdraw or amend the admission upon such terms as may be just
‣
To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission.
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RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
MOTION FOR PRODUCTION OR INSPECTION
SECTION 1. Motion for production or inspection; order. - Upon motion of any party showing good cause therefor, the
court in which an action is pending may
a.
Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving
party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter involved in the action and which are in his
possession, custody or control; or
b.
Order any party to permit entry upon designated land or other property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation
thereon.
The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may
prescribe such terms and conditions as are just. (1a)
PURPOSE OF AN ORDER FOR PRODUCTION OR INSPECTION
‣
The purpose of this mode of discovery is to allow a party to seek an order from the court in which the action is pending
to:
1.
Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are
in his possession, custody or control;
2.
Order any party to permit entry upon designated land or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or
operation thereon
‣
This mode of discovery is not only for the benefit of a party, but also for the court and for it to discover all the relevant and
material facts in connection with the case before it.
‣
Thus, while the granting of a motion for production or inspection is discretionary on the court, it should be liberally
construed as to provide the litigants with information essential to the fair and amicable settlement or expeditious trial of
the case.
‣
The court cannot be arbitrary or unreasonable in denying the motion because it would bar access to relevant evidence
that may be used by the party and thus impair his fundamental right to due process.
‣
The test to be applied by the judge should be one of reasonableness and practicability
APPLYING FOR THE ORDER OF PRODUCTION OR INSPECTION
‣
RULE — A MOTION SHOWING GOOD CAUSE MUST BE FILED BY THE PARTY SEEKING THE PRODUCTION OR INSPECTION OF
DOCUMENTS AND THINGS.
‣
‣
If the court grants it, the order shall specify the time, place and manner of making the inspection and taking copies
and photographs, and may prescribe such terms and conditions as are just
What is applied for?
1.
Production and permission to inspect documents, papers, objects, other tangible things
2.
Permit entry into a place under control of the other party and allow inspections
‣
The documents to be produced should be described with particularity — It should not be a blanket request or
inspection. In this case, Solidbank’s motion was fatally defective and must be struck down because of its failure to
specify with particularity the documents it required Gateway to produce. Solidbank's motion for production and
inspection of documents called for a blanket inspection. Solidbank's request for inspection of "all documents pertaining
to, arising from, in connection with or involving the Back-end Services Agreement” was simply too broad and too
generalized in scope. (Solidbank v Gateway, 2008)
‣
Requirements of the Documents Requested —
1.
It should NOT be privileged
2.
It should contain or constitute evidence material to any matter involved in the action
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RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
It should be in the possession, custody, or control of the other party
3.
‣
What are privileged documents?
‣
‣
‣
Communication between husband and wife
2.
Communication between attorney and client
3.
Communication between physician and patient
4.
Communication between priest and penitent; and
5.
Public officers and public interest.
There are, however, other privileged matters that are not mentioned by Rule 130. Among them are the following —
1.
Editors may not be compelled to disclose the source of published news;
2.
Voters may not be compelled to disclose for whom they voted;
3.
Trade secrets;
4.
Information contained in tax census returns; and
5.
Bank deposits
No obligation to present.
If you want to, how do you present it in court?
‣
‣
1.
Are you required to present the evidence which you obtained using Rule 27 in court?
‣
‣
See Section 24 of Rule 130 which draws the types of disqualification by reason of privileged communication,
A document cannot speak for itself, there must be a witness who will testify and report on it and identify it
NOTE —
‣
The writ of amparo is likened to a production order. (Sec of National Defense v Manalo, 2008) It is not an
unreasonable search under the Constitution.
‣
The production order is not the same as a subpoena duces tecum. Subpoena is a form of compulsion. Production
order is a mode of discovery
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RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS
RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS
WHEN EXAMINATION MAY BE ORDERED
SECTION 1. When examination may be ordered. - In an action in which the mental or physical condition of a party is in
controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental
examination by a physician. (1)
SECTION 2. Order for examination. - The order for examination may be made only on motion for good cause shown and
upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and
scope of the examination and the person or persons by whom it is to be made. (2)
APPLICABILITY OF “PHYSICAL AND MENTAL EXAMINATION OF PERSONS”
‣
RULE — THIS MODE OF DISCOVERY APPLIES TO AN ACTION IN WHICH THE MENTAL OR PHYSICAL CONDITION OF A PARTY IS IN
CONTROVERSY
‣
Examples of this action would be —
1.
An action for annulment of a contract where the ground relied upon is insanity.
2.
A petition for guardianship of a person alleged to be insane;
3.
An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff.
HOW TO OBTAIN AN ORDER FOR EXAMINATION?
‣
RULE — COURT CAN MOTU PROPRIO ISSUE AN ORDER OR ANY PARTY MAY FILE A MOTION SHOWING GOOD CAUSE FOR THE
EXAMINATION,
‣
This must be with notice to the other parties as well aside from the party to be examined.
‣
Note that this is the only mode where the court can motu propio issue (Sec. 1)
‣
‣
The others, you always have to apply for.
It can also be by motion of any party (Sec. 2)
‣
The motion shall likewise specify the time, place, manner, conditions and scope of the examination and by the
person or persons by whom it is to be made
‣
Such motion is to be filed with the court where the action is pending
REPORT OF FINDINGS; WAIVER OF PRIVILEGE
SECTION 3. Report of findings. - If requested by the party examined, the party causing the examination to be made shall
deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions.
After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive
from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical
condition.
If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery
on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if
offered at the trial. (3a)
SECTION 4. Waiver of privilege. - By requesting and obtaining a report of the examination so ordered or by taking the
deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the
same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in
respect of the same mental or physical examination. (4)
REQUEST OF THE FINDINGS BY THE PARTY EXAMINED
‣
RULE — THE PARTY EXAMINED MAY REQUEST THE PARTY CAUSING THE EXAMINATION TO BE MADE TO DELIVER TO HIM A COPY
OF A DETAILED WRITTEN REPORT OF THE EXAMINING PHYSICIAN SETTING OUT HIS FINDINGS AND CONCLUSIONS.
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RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS
After such request and delivery, the party causing the examination to be made shall be entitled upon request to
receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or
physical condition
‣
If the party examined refuses to deliver the report, the court may make an order requiring the delivery on such terms
as are just.
‣
If it is the physician who fails or refuses to make a report, the court may exclude his testimony if offered at the trial
CONSEQUENCE OF REQUESTING OF THE FINDINGS BY THE PARTY EXAMINED
‣
RULE — By requesting and obtaining a report of the examination or by taking the deposition of the examiner, the
party examined waives any privilege he may have in that action or any other involving the same controversy,
regarding the testimony of every other person who has examined or may thereafter examine him in respect of the
same mental or physical examination
‣
Because of the request of the party examined and his obtaining of the findings, the other party can now also ask for
previous or subsequent examination.
‣
If the requesting party refuses and his physicians were allowed to testify, their testimonies can be excluded.
‣
The moment you request, you practically open all previous and subsequent examinations
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RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
REFUSAL TO ANSWER
SECTION 1. Refusal to answer. - If a party or other deponent refuses to answer any question upon oral examination, the
examination may be completed on other matters or adjourned as the proponent of the question may prefer.
The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an
deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a
witness refuses to answer any interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory
and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or
deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable
expenses incurred in obtaining the order, including attorney's fees.
If the application is denied and the court finds that it was filed without substantial justification, the court may require the
proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent
the amount of the reasonable expenses incurred in opposing the application, including attorney's fees. (1a)
‣
What if there was a refusal to answer any question upon an oral deposition or written interrogatory?
‣
Proponent must first apply to the proper court of the place where the deposition is being taken for an order to compel
an answer.
‣
If granted and court finds that there was no justification for the refusal, the deponent or the counsel (or both) will
pay the expenses.
‣
If denied and the application was unjustified, it is the proponent who will pay.
‣
NOTE — A trial courts commits an error in rendering a judgment by default against the defendants for refusal or
failure to answer written interrogatories, without first requiring an application by the proponent to compel an
answer. This is the requisite procedure under Section 1 of Rule 29 of the 1997 Rules of Civil Procedure. (Javarata
vs Karolus 2007)
CONTEMPT OF COURT
SECTION 2. Contempt of court. - If a party or other witness refuses to be sworn or refuses to answer any question after
being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a
contempt of that court. (2a)
‣
Refusal to be sworn in or refusal to answer after being ordered to do so will bring about contempt
OTHER CONSEQUENCES
SECTION 3. Other consequences. - If any party or an officer or managing agent of a party refuses to obey an order made
under Section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any
document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land
or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court
may make such orders in regard to the refusal as are just, and among others the following:
a.
An order that the matters regarding which the questions were asked, or the character or description of the thing or
land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall
be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the
order
b.
An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting
him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence
of physical or mental condition
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RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
c.
An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient
party; an
d.
In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a
party for disobeying any of such orders except an order to submit to a physical or mental examination. (3a)
‣
Upon refusal to comply with an order (like to answer a specific question), the court can also order the following:
1.
Contempt
2.
Dismissal of the case if refusal by plaintiff
3.
Judgment by default if refusal by defendant
4.
Pleadings be stricken out
‣
In lieu of all of this, the disobeying party can be arrested
‣
Except if based on refusal to submit to a physical or mental examination
EXPENSES ON REFUSAL TO ADMIT
SECTION 4. Expenses on refusal to admit. - If a party after being served with a request under Rule 26 to admit the
genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof and if the party requesting
the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply
to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof,
including reasonable attorney's fees.
Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial
importance, such order shall be issued. (4a)
FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS
SECTION 5. Failure of party to attend or serve answers. - If a party or an officer or managing agent of a party wilfully fails
to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and
notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof,
or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees. (5)
‣
If the party refuses to appear or fails to serve answers to interrogatories (here, no need for order, the violation is more
blatant), the court can order —
1.
Dismissal of the case if refusal by plaintiff
2.
Judgment by default if refusal by defendant
3.
Pleadings be stricken out
4.
Pay reasonable expenses
EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES
SECTION 6. Expenses against the Republic of the Philippines. - Expenses and attorney's fees are not to be imposed
upon the Republic of the Philippines under this Rule. (6)
SUMMARY OF THE SANCTIONS/REMEDIES AGAINST THE PERSON REFUSING TO COMPLY WITH
THE MODE OF DISCOVERY
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RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
NOTE — The matter of how, and when, the sanctions should be applied is one that primarily rests on the sound discretion
of the court where the case is pending, having always in mind the paramount and overriding interest of justice.
‣
1.
For while the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not
contemplated, however, to be ultimate causes of injustice. It behooves trial courts to examine well the circumstances
of each case and to make their considered determination thereafter
REFUSAL TO ANSWER ANY QUESTION UPON ORAL EXAMINATION (SEC. 1 AND 2)
a.
Order to Compel Answer
‣
If a party refuses to answer any question upon oral examination, the proponent (person applying for the mode of
discovery), may apply for an order to compel answer
‣
He can also avail of this if the person refuses to answer any interrogatory submitted
‣
If the application is granted, the court shall ORDER the refusing person to answer the question or
interrogatory
Pay for Reasonable Expenses
b.
‣
If the refusal was unjustified, the court may require the refusing party or deponent or the counsel advising the
refusal, or both of them, to pay the proponent the amount of reasonable expenses incurred in obtaining the order,
including attorney's fees.
‣
2.
The reverse also applies in that if the application for an order to compel was unjustified, the court may require
the person applying or his counsel to pay.
REFUSAL TO ANSWER PARTICULAR QUESTIONS OR REFUSAL TO PRODUCE DOCUMENTS OR THINGS OR TO SUBMIT TO
PHYSICAL OR MENTAL EXAMINATION (SEC. 3)
a.
The court may order that the matters regarding which the questions were asked shall be taken as established for
purposes of the action in accordance
b.
The court may issue an order refusing to allow the disobedient party to refuse or support designated claims or
defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or
from introducing evidence of physical or mental condition
c.
The court may issue an order striking out pleadings or parts thereof
d.
The court may issue an order staying further proceedings until the order is obeyed
e.
The court may issue an order dismissing the action or proceeding or any part thereof
f.
The court may issue an order rendering a judgment by default against the disobedient party; or
g.
The court may direct the arrest of any party or agent of a party for disobeying any of the orders of the court, except
an order to submit to a physical or mental examination
3.
REFUSAL TO BE SWORN (SEC. 2)
A refusal of a party to be sworn after being directed by the court may be considered as contempt of court
‣
4.
REFUSAL TO ADMIT, IF THE OTHER PARTY LATER ON PROVES THE GENUINENESS OF THE DOCUMENT OR THE TRUTH OF SUCH
MATTER OF FACT (SEC. 4)
‣
5.
If a party refuses to admit the genuineness of any document or the truth of any matter of fact and serves a sworn
denial thereof and if the other party later on proves the genuineness of the document or the truth of such matter of
fact, the court upon proper application, may order the former to pay the reasonable expenses in making such proof,
including attorney’s fees
FAILURE TO ATTEND DEPOSITIONS OR TO SERVE ANSWERS TO INTERROGATORIES (SEC. 5)
‣
‣
The court may —
a.
Strike out all or any part of the pleading of that party,
b.
Dismiss the action or proceeding or any part thereof,
c.
Enter a judgment by default against that party, and in its discretion,
d.
Order him to pay reasonable expenses incurred by the other, including attorney’s fees
NOTE — The consequences under Sec. 5 of Rule 29 will apply if a party refuses to answer the WHOLE set of
written interrogatories, and not just a particular question. Where the party upon whom the written
interrogatories is served, refuses to answer a PARTICULAR question in the set of written interrogatories and
despite an order compelling him to answer the particular question, still refuses to obey the order, Sec. 3(c) of
Rule 29 will apply
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‣
‣
RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
The following are the consequences provided for in Sec. 3(c) of Rule 29 —
a.
The court may issue an order striking out pleadings or parts thereof;
b.
The court may issue an order staying further proceedings until the order is obeyed;
c.
The court may issue an order dismissing the action or proceeding or any part thereof; or
d.
The court may issue an order rendering a judgment by default against the disobedient party.
SEE — Zepeda vs Chinabank, G.R. No. 172175, October 9, 2006
‣
The consequences enumerated in Section 3(c) of Rule 29 would only apply where the party upon whom the
written interrogatories is served, refuses to answer a particular question in the set of written interrogatories and
despite an order compelling him to answer the particular question, still refuses to obey the order.
‣
In the instant case, petitioners refused to answer the whole set of written interrogatories, not just a particular
question. Clearly then, respondent bank should have filed a motion based on Section 5 and not Section 3(c) of
Rule 29.
Refusal to
Answer
Questions in Oral
Examination
Provision
Sanctions/
Remedies
against the
person that
eye be
issued by
the Court
Refusal to —
1.
Answer questions
2.
Produce document/things
3.
Submit to physical or mental
examination
Sec. 1 and 2
1.
Order to
compel
answer
2.
Order to pay
for
reasonable
expenses
Sec. 3
1.
Matters will be taken as
established
2.
Court may refuse to allow the
disobedient party to refuse or
support designated claims or
defenses or prohibiting him from
introducing in evidence
designated documents or things
or items of testimony, or from
introducing evidence of physical
or mental condition
3.
Order striking out pleadings or
parts thereof;
4.
Order staying further
proceedings until the order is
obeyed;
5.
Order dismissing the action or
proceeding or any part thereof; or
6.
Order rendering a judgment by
default against the disobedient
party
7.
Order arrest of any party or agent
of a party for disobeying any of
the orders of the court, except an
order to submit to a physical or
mental examination
Refusal to be
Sworn
Refusal to
Admit*
Failure to attend
depositions or Serve
answers to
Interrogatories
Sec. 2
Sec. 4
Sec. 5
Contempt
Order to pay
for reasonable
expenses
1.
Order striking out
pleadings or
parts thereof;
2.
Order dismissing
the action or
proceeding or
any part thereof;
or
3.
Order rendering
a judgment by
default against
the disobedient
party
4.
Order to pay for
reasonable
expenses
* If the other party later on proves the genuineness of the document or the truth of such matter of fact
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RULE 30: TRIAL
RULE 30: TRIAL
OVERVIEW OF A “TRIAL”
NATURE
‣
A trial is the judicial examination and determination of the issues between the parties to the action
‣
It is the judicial process of investigating and determining the legal controversies between or among the parties.
‣
During the trial the parties present their respective evidence of their claims and defenses. Such claims and defenses shall
constitute the bases for the judgment of the court.
‣
A trial is not equivalent to a “hearing”, although a trial involves a hearing, a hearing may also be conducted when there is
no trial such as a hearing for a motion. A hearing is a broader term
‣
Trial takes place mainly to resolve questions of facts
WHEN TRIAL IS UNNECESSARY
‣
A civil case may be adjudicated upon without the need for a trial in any of the following cases:
1.
JUDGMENT ON THE PLEADINGS — Where the pleadings of the parties tender no issue at all, a judgment on the
pleadings may be directed by the court (Rule 34)
2.
SUMMARY JUDGMENT — Where from the pleadings, affidavits, depositions and other papers, there is actually no
genuine issue, the court may render a summary judgment (Rule 35)
3.
COMPROMISE OR SETTLEMENT — Where the parties have entered into a compromise or an amicable settlement
either during the pre-trial or while the trial is in progress (Rule 18)
4.
WHEN CASE IS DISMISSED WITH PREJUDICE — Where the complaint has been dismissed with prejudice or when
the dismissal has the effect of an adjudication on the merits (Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, last par., Rule 7)
‣
Instances where the case may be dismissed by the court WITH prejudice:
a.
Rule 16: Motion to Dismiss is granted upon grounds that lead a bar of the refiling of the case
b.
Rule 17: Dismissal due to plaintiff’s fault
c.
Rule 7: If the acts of the party or his counsel constitute wilful and deliberate forum shopping
d.
Rule 18: Failure by the plaintiff to attend pretrial or to submit his pretrial brief
5.
SUMMARY PROCEDURE — Where the case falls under the operation of the Rules on Summary Procedure.
6.
AGREED STATEMENT OF FACTS — Where, the parties agree in writing, upon the facts involved in the litigation,
and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If, however, there is
no agreement as to all the facts in the case, trial may be held only as to the disputed facts (Sec. 6, Rule 30)
7.
JUDGMENT BY DEFAULT — But the court may require the plaintiff to submit evidence at its discretion. (Sec. 3, Rule
9)
STANDARD OF PROOF IN CIVIL CASES; WITNESSES AND EVIDENCE TO BE PRESENTED
‣
‣
RULE — In civil actions, only the plaintiff only needs to meet the standard of Preponderance of Evidence to be
entitled to the reliefs sought (Rule 133, Sec. 1)
‣
Number of witnesses to be presented may be a factor
‣
Remember that the witnesses to be presented in trial is made known during the Pre-Trial stage through the Pre-Trial
Brief. (Rule 18, Sec. 6)
Importance of the Formal Offer of Evidence
‣
Remember that the evidence to be presented during trial must be pre-marked during Pre-Trial.
‣
After a party presents his case during trial, he is required to formally present his evidence. No evidence will be
considered by the court if it’s not formally offered.
‣
When it comes to presenting evidence during trial, it can either be offer of testimonials or offer of exhibits.
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RULE 30: TRIAL
NOTICE OF TRIAL
SECTION 1. Notice of trial. - Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its
trial in such manner as shall ensure his receipt of that notice at least five (5) days before such date. (2a, R22)
PREFERENCE IN CALENDARING CASES
‣
Remember Rule 20, in calendaring cases, the clerk of court shall give preference to habeas corpus cases, election cases,
special civil actions and those so required by law to be preferred
SESSION HOURS OF TRIAL
‣
The session hours of trial courts shall be from 8:30 A.M. to noon and from 2:00 P.M. to 4:30 P.M. from Monday to Friday.
‣
The hours in the morning shall be devoted to the conduct of the trial, while the hours in the afternoon shall be utilized for
the conduct of (1) pre-trial conferences; (2) writing of decisions, resolutions, or orders; or (3) the continuation of the trial on
the merits, whenever rendered necessary as may be required by the Rules of Court, statute, or circulars in specified
cases.
‣
This schedule may be modified upon request of the Integrated Bar of the Philippines in multi-sala courts in places where
there are few practicing lawyers (Administrative Circular No. 3-39, January 15,1999).
‣
Unless the docket of the court requires otherwise, not more than four (4) cases shall be scheduled for trial daily
(Administrative Circular No. 3-39, January 15,1999).
ADJOURNMENTS AND POSTPONEMENTS
SECTION 2. Adjournments and postponements. - A court may adjourn a trial from day to day, and to any stated time, as
the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a
longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing
by the Court Administrator, Supreme Court. (3a, R22)
‣
RULE — The general rule is that a court may adjourn a trial from day to day, and to any stated time, as the
expeditious and convenient transaction of business may require.
‣
BUT — the court has no power to adjourn a trial for a period longer than one month from each adjournment,
nor more than three (3) months in all EXCEPT when authorized in writing by the Court Administrator
‣
A motion for postponement should not be filed on the last hour especially when there is no reason why it could not
have been presented earlier. It is the basic duty of a litigant to move for postponement before the day of the hearing,
so that the court could order its resetting and timely inform the adverse party of the new date. This was not the case
at bar for the subject motion was presented only on the day of the trial without any justification. We thus hold that the
trial court did not abuse its discretion in denying the motion for postponement. The motion should have been
presented long in advance of the hearing, so that the court could have taken steps to postpone the trial without
inconvenience to the adverse party. (De Castro vs De Castro 2009)
‣
SALVADOR — Note that a party asking for postponement has absolutely no right that its motion would be granted.
POSTPONEMENT OF TRIAL
SECTION 3. Requisites of motion to postpone trial for absence of evidence. - A motion to postpone a trial on the ground
of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that
due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he
objects or reserves the right to object to their admissibility, the trial shall not be postponed. (4a, R22) (Corrected by Bar
Matter No. 803, Resolution of the Supreme Court dated July 21, 1998)
SECTION 4. Requisites of motion to postpone trial for illness of party or counsel. - A motion to postpone a trial on the
ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence
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of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his nonattendance excusable. (5a, R22)
GROUNDS AND REQUISITES FOR POSTPONING A TRIAL
Absence of evidence
1.
a.
A motion for postponement must be filed
b.
The motion must be supported by an affidavit showing the —
‣
2.
i.
Materiality or relevancy of the evidence, and
ii.
That due diligence has been used to procure it
NOTE — that if the adverse party admits the facts to be given in evidence, the trial shall not be postponed even if he
reserves the right to object to the admissibility of the evidence
Illness of a party or counsel
a.
A motion for postponement must be filed
b.
The motion must be supported by an affidavit or sworn certification showing that —
i.
The presence of the party or counsel at the trial is indispensable, and
ii.
That the character of his illness is such as to render his non- attendance excusable
POSTPONEMENT IS NOT A MATTER OF RIGHT
‣
A motion for postponement must be based on either something that is unavoidable or something that could not have
been foreseen. (De Castro v de Castro, 2009, where SC held that absence of the party due to being abroad and absence
of the doctor witness due to a convention was neither unavoidable or unforeseeable given that the hearing was set a
month before)
‣
As a rule, the grant or denial of a motion for postponement is addressed to the sound discretion of the court which should
always be predicated on the consideration that more than the mere convenience of the courts or of the parties, the ends
of justice and fairness should be served thereby. Furthermore, this discretion must be exercised intelligently (Milwaukee
Industries v. Court of Tax Appeals)
ORDER OF TRIAL
SECTION 5. Order of trial. - Subject to the provisions of Section 2 of Rule 31, and unless the court for special reasons
otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:
a.
The plaintiff shall adduce evidence in support of his complaint
b.
The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party
complaint;
c.
The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth- party
complaint;
d.
The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;
e.
The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of
their defense, in the order to be prescribed by the court;
f.
The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon their original case; and
g.
Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the
parties to argue or to submit their respective memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the
court shall determine the relative order of presentation of their evidence. (1a, R30)
RULE 31, SECTION 2. Separate trials. - The court, in furtherance of convenience or to avoid prejudice, may order a
separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number
of claims, cross-claims, counterclaims, third-party complaints or issues. (2a)
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ISSUES IN THE TRIAL
‣
RULE — The trial shall be limited to the issues stated in the pretrial order. This is the general rule unless the court
so directs for special reasons
ORDER OF THE TRIAL
1.
Plaintiff, in the usual and ordinary course of things, presents his claim before the defendant.
2.
Then the defedants present their defense and claims (principal defendant first, then third party defendant, and so on)
‣
This is in support of their defense, counterclaim, cross-claim and third-party complaint, as the case may be
3.
The parties against whom any counterclaim or cross-claim shall then adduce evidence in support of their defense, in the
order to be prescribed by the court
4.
The parties then adduce rebutting evidence, unless the court, for good reasons and in the furtherance of justice, permits
them to adduce evidence upon their original case
5.
Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further pleadings.
‣
EXCEPT —
‣
1.
When separate trials are ordered; or
2.
There are special reasons
NOTE—
‣
‣
The normal order of trial may be modified if the court, in furtherance of convenience and to avoid prejudice, orders
a separate trial of any claim, cross-claim, counterclaim, or third-party complaint.
‣
It may also order, for the same reasons, a separate trial of any separate issue or of any number of claims, crossclaims, counterclaims, third-party complaints or issues.
‣
Under the same rule, the court may likewise order a modification of the order of trial if it so directs for “special
reasons.”
Every party has an opportunity to present his witnesses through direct examination
‣
‣
Then such witness will be subject to cross-examination by the adverse counsel
After you present documents and witnesses you can now submit your formal offer of evidence under Rule 132 and the
court has to approve it. After this, the next party can now start presenting his case
ADDUCING EVIDENCE OF A PARTY AFTER THE PRESENTATION OF THEIR ORIGINAL EVIDENCE
‣
RULE — The parties may be permitted by the court to adduce evidence on their original case EVEN AFTER the
presentation of their original evidence provided (Sec. 5[f]) —
1.
There are good reasons, and
2.
Such reasons are in furtherance of justice
‣
Generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through
inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered.
‣
But it should not be allowed if the evidence has been kept back by a trick, and for the purpose of deceiving the
defendant and affecting his case injuriously.
AGREED STATEMENT OF FACTS
SECTION 6. Agreed statement of facts. - The parties to any action may agree, in writing, upon the facts involved in the
litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence.
If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the
court shall prescribe. (2a, R30)
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DISPENSING WITH TRIAL IN CASE OF AGREED STATEMENT OF FACTS
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RULE 30: TRIAL
RULE — The parties to any action may agree, IN WRITING, upon the FACTS INVOLVED in the litigation, and
SUBMIT the case for judgment on the facts agreed upon, WITHOUT the introduction of evidence
‣
BUT — if the parties agree only on some facts in issue, the trial shall be held as to the disputed facts in such order as
the court shall prescribe
‣
If the parties have agreed to submit the case for judgment based on the facts agreed upon, a trial need not be
conducted because evidence would no longer be presented.
‣
Based on the fact that no questions of fact are disputed anymore, only questions of law
STATEMENT OF JUDGE
SECTION 7. Statement of judge. - During the hearing or trial of a case any statement made by the judge with reference to
the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes. (3a, R30)
SUSPENSION OF ACTIONS
SECTION 8. Suspension of actions. - The suspension of actions shall be governed by the provisions of the Civil Code. (n)
JUDGE TO RECEIVE EVIDENCE; DELEGATION TO CLERK OF COURT
SECTION 9. Judge to receive evidence; delegation to clerk of court. - The judge of the court where the case is pending
shall personally receive the evidence to be adduced by the parties.
However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of the bar.
The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which
objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n)
RECEPTION OF EVIDENCE
‣
RULE — The judge of the court where the case is pending shall PERSONALLY RECEIVE the evidence to be
adduced by the parties.
‣
EXCEPT — Clerk of court can receive in either —
1.
In default proceedings
‣
‣
Remember in default proceedings, the adverse party is not entitled to present evidence, he loses his standing
in court. However, this doesn’t mean that trial is dispensed with. Court can still order a trial, but it’s not
adversarial anymore
2.
Ex-parte hearings
3.
Parties agree in writing
BUT — Clerk however has no power to rule on objections
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RULE 31: CONSOLIDATION OR SEVERANCE
RULE 31: CONSOLIDATION OR SEVERANCE
CONSOLIDATION
SECTION 1. Consolidation. - When actions involving a common question of law or fact are pending before the court, it
may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated;
and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (1)
NATURE AND KINDS OF CONSOLIDATION
‣
‣
SEE — Republic vs Sandiganbayan, G.R. No. 152375, December 16, 2011
‣
Consolidation is a procedural device granted to the court as an aid in deciding how cases in its docket are to be
tried so that the business of the court may be dispatched expeditiously and with economy while providing justice to
the parties. To promote this end, the rule permits the consolidation and a single trial of several cases in the courts
docket, or the consolidation of issues within those cases
‣
A reading of Rule 31 of the Rules of Court easily lends itself to two observations. First, Rule 31 is completely silent on
the effect/s of consolidation on the cases consolidated; on the parties and the causes of action involved; and on the
evidence presented in the consolidated cases. Second, while Rule 31 gives the court the discretion either to order a
joint hearing or trial, or to order the actions consolidated, jurisprudence will show that the term consolidation is used
generically and even synonymously with joint hearing or trial of several causes.
‣
In fact, the title consolidation of Rule 31 covers all the different senses of consolidation, as discussed below. These
observations are not without practical reason. Considering that consolidation is basically a function given to the court,
the latter is in the best position to determine for itself (given the nature of the cases, the complexity of the issues
involved, the parties affected, and the courts capability and resources vis--vis all the official business pending before
it, among other things) what consolidation will bring, bearing in mind the rights of the parties appearing before it.
‣
In the context of legal procedure, the term consolidation is used in three different senses:
1.
Quasi-Consolidation — Where all, except one of several of actions are stayed until one is tried, in which case the
judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such
2.
Actual Consolidation — Where several actions are combined into one, lose their separate identity, and become a
single action in which a single judgment is rendered. Involves a situation where several actions are pending
between the same parties stating claims which might have been set out originally in one complaint
3.
Consolidation for Trial — Where several actions are ordered to be tried together, but each retains its separate
character, and requires the entry of separate judgment. This type of consolidation does not merge the suits into a
single action, or cause the parties to one action to be parties to the other.
Consolidation of cases, when proper, results in the simplification of proceedings, which saves time, the resources of the
parties and the courts, and a possible major abbreviation of trial. It is a desirable end to be achieved, within the context of
the present state of affairs where court dockets are full and individual and state finances are limited. It contributes to the
swift dispensation of justice, and is in accord with the aim of affording the parties a just, speedy, and inexpensive
determination of their cases before the courts. Another compelling argument that weighs heavily in favor of consolidation
is the avoidance of the possibility of conflicting decisions being rendered by the courts in two or more cases which would
otherwise require a single judgment. Consolidation, when appropriate, also contributes to the declogging of court
dockets. (Roque vs Magno Construction 2006)
WHEN CONSOLIDATION MAY BE DONE
‣
RULE — WHEN ACTIONS THAT INVOLVE A COMMON QUESTION OF LAW OR FACT ARE PENDING BEFORE THE COURT, THE
COURT MAY ORDER A JOINT HEARING OR TRIAL OF ANY OR ALL THE MATTERS IN ISSUE IN THE ACTIONS AND MAY ORDER THE
CONSOLIDATION OF ALL THE ACTIONS
‣
Provided the court has jurisdiction over the case to be consolidated and that a joint trial will not give one party
undue advantage or prejudice the other.
‣
When two or more cases involve the same parties and affect closely related subject matters, they must be
consolidated and jointly tried, in order to serve the best interests of the parties and to settle expeditiously the issues
involved.
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‣
‣
‣
In short, consolidation aims to attain justice with the least expense and vexation to the parties-litigants. It
contributes to the swift dispensation of justice, and is in accord with the aim of affording the parties a just, speedy,
and inexpensive determination of their cases before the courts.
‣
Further, it results in the avoidance of the possibility of conflicting decisions being rendered by the courts in two or
more cases, which would otherwise require a single judgment”
Where the earlier case was filed or in the court having the case with the lowest docket number.
Can consolidation be done in cases filed in different judicial regions?
‣
‣
The purpose of this rule is to avoid multiplicity of suits, guard against oppression and abuse, prevent delays, clear
congested dockets, and simplify the work of the trial court.
Where will the cases be consolidated?
‣
‣
RULE 31: CONSOLIDATION OR SEVERANCE
In other words, consolidation is proper wherever the subject matter involved and relief demanded in the different
suits make it expedient for the court to determine all of the issues involved and adjudicate the rights of the parties
by hearing the suits together.
Yes. In Zulueta, the two cases were in Iloilo and Makati.
NOTE — Consolidation is NEVER a remedy for forum shopping. Generally, the later case will be dismissed.
SEPARATE TRIALS/ SEVERANCE
SECTION 2. Separate trials. - The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of
any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party complaints or issues. (2a)
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RULE 32: TRIAL BY COMMISSIONER
RULE 32: TRIAL BY COMMISSIONER
REFERENCE TO COMMISSIONER
SECTION 1. Reference by consent. - By written consent of both parties, the court may order any or all of the issues in a
case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these
Rules, the word "commissioner" includes a referee, an auditor and an examiner. (1a, R33)
SECTION 2. Reference ordered on motion. - When the parties do not consent, the court may, upon the application of
either, or of its own motion, direct a reference to a commissioner in the following cases:
a.
When the trial of an issue of fact requires the examination of a long account on either side, in which case the
commissioner may be directed to hear and report upon the whole issue or any specific question involved therein;
b.
When the taking of an account is necessary for the information of the court before judgment, or for carrying a
judgment or order into effect;
c.
When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or
for carrying a judgment or order into effect. (2a, R33)
‣
A commissioner is a person authorized by the court
‣
Any matter can be referred to the commissioner if both parties consent to it in writing.
‣
If parties do not agree, the court, upon motion of either of the parties or motu propio, can still refer the case to a
commissioner if:
1.
Case requires examination of a long account
2.
Taking of account is necessary for court’s information for it to render judgment/execute such judgment
3.
There is question of fact, other then upon the pleadings, arising from motion
‣
Commissioners are mandatory in expropriation cases (second stage: just compensation part)
‣
In partition cases, commissioners MAY be availed of if the parties do not agree on the partition.
ORDER OF REFERENCE; POWERS OF THE COMMISSIONER
SECTION 3. Order of reference; powers of the commissioner. - When a reference is made, the clerk shall forthwith furnish
the commissioner with a copy of the order of reference.
The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues,
or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing
the hearings and for the filing of his report.
Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to
regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the
efficient performance of his duties under the order.
He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of
reference, he may rule upon the admissibility of evidence.
The trial or hearing before him shall proceed in all respects as it would if held before the court. (3a, R33)
‣
The order of reference outlines the powers of the commissioner.
‣
Can a commissioner issue a subpoena?
‣
‣
Yes. He can even issue a subpoena duces tecum. He can even rule on objections (unless this power is taken away by
the order of reference)
That is the difference between a clerk and a commissioner?
‣
Clerk can NOT issue subpoena duces tecum without court order. Commissioner can issue a subpoena duces tecum.
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‣
Clerk can NOT rule on objections. Commissioner can.
OATH OF COMMISSIONER
SECTION 4. Oath of commissioner. - Before entering upon his duties the commissioner shall be sworn to a faithful and
honest performance thereof. (14, R33)
PROCEEDINGS BEFORE COMMISSIONER
SECTION 5. Proceedings before commissioner. - Upon receipt of the order of reference unless otherwise provided
therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be
held within ten (10) days after the date of the order of reference and shall notify the parties or their counsel. (5a, R33)
FAILURE OF PARTIES TO APPEAR BEFORE COMMISSIONER
SECTION 6. Failure of parties to appear before commissioner. - If a party fails to appear at the time and place appointed,
the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the
absent party or his counsel of the adjournment. (6a, R33)
REFUSAL OF WITNESS
SECTION 7. Refusal of witness. - The refusal of a witness to obey a subpoena issued by the commissioner or to give
evidence before him, shall be deemed a contempt of the court which appointed the commissioner. (7a, R33)
DUTY OF COMMISSIONER; TO AVOID DELAYS AND FILE A REPORT
SECTION 8. Commissioner shall avoid delays. - It is the duty of the commissioner to proceed with all reasonable
diligence. Either party, on notice to the parties and commissioner, may apply to the court for an order requiring the
commissioner to expedite the proceedings and to make his report. (8a, R33)
SECTION 9. Report of commissioner. - Upon the completion of the trial or hearing or proceeding before the
commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference.
When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report.
He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence
presented before him. (9a, R33)
NOTICE TO PARTIES OF THE FILING OF REPORT
SECTION 10. Notice to parties of the filing of report. - Upon the filing of the report, the parties shall be notified by the
clerk, and they shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report, if
they so desire.
Objections to the report based upon grounds which were available to the parties during the proceedings before the
commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the
court unless they were made before the commissioner. (10, R33)
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HEARING UPON REPORT
SECTION 11. Hearing upon report. - Upon the expiration of the period of ten (10) days referred to in the preceding
section, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the
report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before
the commissioner or the court. (11a, R33)
‣
After the hearing on the report, the court can either:
1.
Adopt, modify or reject the commissioner’s report in whole or in part,
2.
Recommit it with instructions, or
3.
Require parties to present further evidence before the commissioner or the court.
STIPULATIONS AS TO FINDINGS
SECTION 12. Stipulations as to findings. - When the parties stipulate that a commissioner's findings of fact shall be final,
only questions of law shall thereafter be considered. (12a, R33)
COMPENSATION OF COMMISSIONER
SECTION 13. Compensation of commissioner. - The court shall allow the commissioner such reasonable compensation
as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice
requires. (13, R33)
‣
The loser pays for the cost, unless the court apportions, as justice requires.
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RULE 33: DEMURRER TO EVIDENCE
RULE 33: DEMURRER TO EVIDENCE
SECTION 1. Demurrer to evidence. - After the plaintiff has completed the presentation of his 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 motion is
denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence. (1a, R35)
NATURE OF A DEMURRER TO EVIDENCE
‣
The regular order of trial requires the plaintiff to adduce evidence in support of his complaint. During the trial the plaintiff
presents all the evidences available to him — object, documentary and testimonial Normally, after the plaintiff has
completed the presentation of his evidence, the defendant shall then adduce evidence in support of his defense,
counterclaim or third-party complaint as the case may be
‣
The defendant, however, may sincerely feel that the plaintiff has not lived up to his burden of proving the material
allegations of his claim and is, therefore, not entitled to the relief sought for in his complaint. Instead of presenting
his 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. This motion for dismissal is called a demurrer to evidence.
‣
“No right to relief” — means that there is an actual ABSENCE of a cause of action since the plaintiff has not proved it
exists
‣
This means that the plaintiff’s case is weak.
‣
Distinguish this from when the pleading states no cause of action which is a ground of Motion to Dismiss under
Rule 16.
‣
A demurrer to evidence is 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 plaintiffs evidence shows that he is not entitled to the
relief sought. (Oropesa vs Oropesa 2012)
‣
Basically, a Demurrer to Evidence is a MOTION TO DISMISS based on the ground that the plaintiff has no right to
relief or that there is an absence of a cause of action.
‣
A demurrer to evidence under Rule 33 is in effect, a motion to dismiss but is not the motion to dismiss described
under Rule 16.
‣
A Demurrer is also called a “motion to dismiss on the ground of insufficiency of evidence.” (People v Cachola, 2004)
WHEN A DEMURRER CAN BE AVAILED OF
‣
RULE — IN CIVIL CASES, A DEMURRER TO EVIDENCE IS AVAILED OF BY THE DEFENDANT AFTER THE PLAINTIFF HAS COMPLETED
THE PRESENTATION OF HIS EVIDENCE
‣
It is only when the trial court issues the order on whether to accept or reject the formal offer of evidence will the
plaintiff be deemed to have completed the presentation of his evidence.
‣
Note that in Criminal Cases, a demurred is availed of after prosecution rests its case.
‣
So when it comes to when a Demurrer can be availed of, it is at the same stage in both civil and criminal cases
GROUNDS FOR A DEMURRER
‣
RULE — The defendant may move for dismissal on the ground that upon the facts and the law, the plaintiff has
shown no right to relief
EFFECT OF DENIAL OF THE DEMURRER
‣
RULE — NO ADVERSE EFFECT, IF THE DEMURRER IS DENIED, THE DEFENDANT SHALL HAVE THE RIGHT TO PRESENT HIS
EVIDENCE
‣
This means that the denial of the demurrer to evidence does not deprive the defendant to adduce evidence in his
behalf.
‣
Where a court denies a demurrer to evidence, it should set the date for the reception of the defendant’s evidence in
chief.
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RULE 33: DEMURRER TO EVIDENCE
Remedy in case of denial — An order denying a demurrer to the evidence is interlocutory and is, therefore, not
appealable. It can however, be the subject of a petition for certiorari in case of grave abuse of discretion or an
oppressive exercise of judicial authority
EFFECT OF GRANTING OF THE DEMURRER TO EVIDENCE
‣
RULE — IF THE DEMURRER IS GRANTED, THE CASE SHALL BE DISMISSED
‣
BUT — if on appeal the order granting the motion is REVERSED, the defendant LOSES his right to present
evidence
‣
Dismissal is with prejudice since the complaint cannot be refiled.
‣
So no possible adverse effects on the defendant if his demurrer is denied, however, there can be an adverse effect if
the demurrer is granted and it is subsequently reversed by the appellate court, in that he LOSES his right to present
evidence
‣
The appellate court, upon reversal of the grant of a Demurrer, should proceed to render judgment on the basis of
the evidence submitted by the plaintiff. It must rule on the merits of the case. It cannot remand the case for further
proceedings
‣
Granting or denying a Demurer is a final order, there is nothing further to be done by the trial court. Hence, it can be
subject of an appeal.
DIFFERENCE OF A DEMURRER TO EVIDENCE WITH A MOTION TO DISMISS UNDER RULE 16
Demurrer to Evidence
Motion to Dismiss under Rule 16
When made
Made after the plaintiff rests his case or after the
completion of the presentation of his evidence
Generally before the filing of the answer
Grounds
Only one ground, that the plaintiff is not entitled to
relief
Many grounds under Rule 16
Consequence of
Denial
Defendant may present his evidence
Defendant proceeds to file his responsive pleading
(answer)
Consequence of
Grant
The complaint may not be refiled and the remedy of
the plaintiff is to appeal from the order of dismissal.
The complaint may generally be refiled
DIFFERENCE OF A DEMURRER TO EVIDENCE IN CIVIL CASES FROM THAT IN CRIMINAL CASES
Requirement as to
Leave of Court
Demurrer in Civil Cases
Demurrer in Criminal Cases
Not required
Can be with or without leave of court
*So generally in criminal cases, it’s a two-step
process. You need to seek leave first
Whether or not a
grant can be
appealed
Order of Dismissal is Appealable
Not appealable due to double jeopardy
Consequence of
Denial
Defendant can just proceed to the presentation of his
evidence
The accused may adduce his evidence only if the
demurrer is filed with leave of court. He cannot
present his evidence if he filed the demurrer without
leave of court
Need for a Motion
Necessity of a motion to be filed by the defendant
Court itself can make its own demurrer or the
accused can also file a motion
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OVERVIEW OF JUDGMENTS
OVERVIEW OF JUDGMENTS
WHAT IS A “JUDGMENT”?
‣
A judgment is the final ruling by a court of competent jurisdiction regarding the rights or other matters submitted to it in
an action or proceeding
‣
A judgment is the court’s official and final consideration and determination of the respective rights and obligations of the
parties
REQUISITES OF A VALID JUDGMENT IN CIVIL CASES
1.
The court or tribunal must be clothed with authority to hear and determine the matter before it
2.
The court must have jurisdiction over the parties and the subject matter;
3.
The parties must have been given an opportunity to adduce evidence in their behalf
4.
The evidence must have been considered by the tribunal in deciding the case
5.
The judgment must be in writing, personally and directly prepared by the judge.
6.
The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed with the clerk of
court
‣
NOTE — A decision with nothing to support it is a patent nullity and should be struck down and set aside as void
*Judgments will be discussed in-depth in Rule 36.
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OVERVIEW OF JUDGMENTS
Agreed Statement of
Facts (Rule 30, Sec. 6)
Judgment on the
Pleadings (Rule 34)
Summary Judgment
(Rule 35)
Judgment by Default
(Rule 9, Sec. 3)
There is an absence of a
factual issue because
the parties do not
dispute the facts
There is an absence of a
factual issue in the case
because the answer
tenders no issue at all.
Failure of Defendant to
file an Answer
When the parties agree,
in writing, upon the facts
involved in the litigation
This is when an answer
either —
1. Fails to tender an
issue, or
2. Admits the material
allegations of the
adverse party's
pleading
There is an issue, but
the issue is not genuine.
In reality, the issue is
only as to the amount of
damages but not as to
any material fact
How to avail
Filed a joint
manifestation to submit
the case for judgment on
the facts agreed upon
By Motion
By Motion
By Motion
Who can avail
Both parties jointly
Plaintiff or the Defendant
as a counterclaimant
Either Plaintiff or
Dendant
Plaintiff or the Defendant
as a counterclaimant
When can it be
availed?
Before trial
Only after an answer is
served
For plaintiff: After an
answer is served
For defendant: Anytime
When defendant fails to
file an answer
Consequences
No need for the
introduction of evidence,
thus no trial takes place
Court can already
render judgment based
on the pleadings. No
trial takes place
No trial anymore, unless
the summary judgment
is only partial
Court can proceed to
render judgment
granting the claimant
such relief as his
pleading may warrant,
unless the court in its
discretion requires the
claimant to submit
evidence.
Defendant loses his
standing in court, thus
he cannot take part in
the trial and present
evidence
Basis of
Judgment
On the facts agreed
upon
Pleadings alone
Pleadings, affidavits,
depositions, and
admissions
The complaint, and it the
court requires it,
evidence submitted by
the plaintiff
The standard 3-day
notice, before the
hearing, in motions to
the adverse party is
required
10-day notice, before
the hearing, to the
adverse party is required
The standard 3-day
notice, before the
hearing, in motions to
the adverse party is
required
Basis
Other
requisites
Plaintiff must show proof
of defendant to file an
answer
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RULE 34: JUDGMENT ON THE PLEADINGS
RULE 34: JUDGMENT ON THE PLEADINGS
SECTION 1. Judgment on the pleadings. - 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. (1a, R19)
APPLICABILITY OF JUDGMENT ON THE PLEADINGS (JOP)
‣
RULE — A JUDGMENT ON THE PLEADINGS WILL NOT APPLY WHEN NO ANSWER IS FILED. IT WILL COME INTO OPERATION ONLY
WHEN AN ANSWER IS SERVED AND FILED BUT SUCH ANSWER EITHER —
1.
FAILS to tender an issue or
2.
ADMITS the material allegations of the adverse party’s pleading
‣
An answer fails to tender an issue when the material allegations of the other party are admitted or not specifically
denied by the pleader.
‣
‣
Remember that material allegations of the complaint not specifically denied are deemed admitted
The failure to tender an issue or admission of material allegation must pertain to the cause of action
HOW JOP SHOULD BE AVAILED OF
‣
RULE — BY MOTION OF THE PLAINTIFF OR THE DEFENDANT IN A PERMISSIVE COUNTERCLAIM
‣
A judgment on the pleadings cannot be rendered by the court motu proprio. It can be done only where there is a prior
motion to the effect filed by the appropriate party
‣
So both the plaintiff and the defendant (on his counterclaim) can file
‣
As a plaintiff, you file AFTER the answer.
‣
‣
You can file it during pre-trial (Rule 18, Sec 2g), but better to do it earlier.
As a defendant (on a permissive counterclaim)
‣
Why only in permissive counterclaims? it is only in these kinds of counterclaims will the plaintiff need to file an
answer. Since if it’s a compulsory counterclaim, matters alleged are deemed controverted in that case.
CASES WHERE JOP IS NOT ALLOWED
1.
Actions for the declaration of nullity of a marriage
2.
Actions for annulment of marriage
3.
Actions for legal separation
‣
In these cases, the material facts alleged in the complaint shall always be proved
PARTIAL JOP NOT ALLOWED
‣
RULE — There must always be FULL judgment on the pleadings.
‣
Differentiate with summary judgment which can be partial.
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RULE 35: SUMMARY JUDGMENTS
RULE 35: SUMMARY JUDGMENTS
SUMMARY JUDGMENT FOR CLAIMANT OR DEFENDING PARTY
SECTION 1. Summary judgment for claimant. - 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 favor upon all or any part thereof. (1a, R34)
SECTION 2. Summary judgment for defending party. - 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 favor as to all or any part thereof. (2a, R34)
WHEN SUMMARY JUDGMENT IS PROPER
‣
RULE — A SUMMARY JUDGMENT IS PROPER WHERE ON THE BASIS OF THE PLEADINGS AND PAPERS FILED, THE COURT FINDS
THAT THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT EXCEPT AS TO THE AMOUNT OF DAMAGES
‣
What triggers a summary judgment is the absence of a genuine factual issue. It is not proper where there are factual
issues to be resolved by the presentation of evidence. Even if there is a complicated question of law if there is no
issue as to the facts, a summary judgment is not barred
‣
What does “genuine issue” mean?
‣
‣
‣
A “genuine issue” is an issue of fact which requires the presentation of evidence as distinguished from a sham,
fictitious, contrived or false claim.
‣
When the facts as pleaded appear 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 the absence of any genuine
issue of fact, or that 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 judgments and may do so only when there is clearly no
genuine issue as to any material fact. When the facts as pleaded by the parties are disputed or contested,
proceedings for summary judgment cannot take the place of trial
‣
There are no important issues of fact involved except the amount of damages
‣
When there are genuine issues (because of DULY disputed and contested facts), no summary judgments can take
place.
Examples —
‣
In an action for foreclosure of mortgage for example, the material issues are the existence of the debt and its
demandability. When the defendant admits the existence of the debt and raises an issue as to the demandability of
the debt or the interest rate involved because of an alleged contemporaneous agreement between the parties, the
issue tendered is sham, fictitious, or patently unsubstantial. A summary judgment would be proper because there is
no genuine issue
‣
In an action for a sum of money, where the debt and the fact of its nonpayment is admitted and the only issue
raised is the rate of interest or the damages payable, there is no genuine issue
‣
BUT — 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
‣
This can also apply in Declaratory Relief
SALVADOR — In practice, judges rarely grant a motion for summary judgment. They want a trial. Judges want to protect
themselves from administrative charges
JURISPRUDENCE ON SUMMARY JUDGMENT
‣
NOTE — The propriety of summary judgment depends on the facts of each case
‣
Wood Technology Corporation vs Equitable Bank, G.R. No. 153867. February 17, 2005
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‣
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RULE 35: SUMMARY JUDGMENTS
Summary judgment is a procedure aimed at weeding out sham claims or defenses at an early stage of the litigation.
The proper inquiry in this regard would be whether the affirmative defenses offered by petitioners constitute genuine
issues of fact requiring a full-blown trial.
‣
In a summary judgment, the crucial question is: are the issues raised by petitioners not genuine so as to justify a
summary judgment? A genuine issue means an issue of fact which calls for the presentation of evidence, as
distinguished from an issue which is fictitious or contrived, an issue that does not constitute a genuine issue for trial.
‣
We note that this is a case for a sum of money, and petitioners have admitted that they obtained the loan. They also
admitted the due execution of the loan documents and their receipt of the final demand letter made by the
respondent. These documents were all attached to the Complaint. Petitioners merely claimed that the obligation has
not matured. Notably, based on the promissory note, the RTC and the Court of Appeals found this defense not a
factual issue for trial, the loan being payable on demand. When respondent made its demand, in our view, the
obligation matured. We agree with both the trial and the appellate courts that this matter proferred as a defense could
be resolved judiciously by plain resort to the stipulations in the promissory note which was already before the trial
court. A full-blown trial to determine the date of maturity of the loan is not necessary. Also, the act of leaving blank the
maturity date of the loan did not necessarily mean that the parties agreed to fix it later. If this was the intention of the
parties, they should have so indicated in the promissory note. They did not show such intention.
Eland Philippines vs Garcia, G.R. No. 173289, February 17, 2010
‣
Summary judgment is not only limited to solving actions involving money claims. Under Rule 35 of the 1997 Rules of
Court, except as to the amount of damages, when there is no genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law, summary judgment may be allowed. The term "genuine issue" has
been defined as an issue of fact which calls for the presentation of evidence as distinguished from an issue which is
sham, fictitious, contrived, set up in bad faith and patently unsubstantial so as not to constitute a genuine issue for
trial.
‣
Thus, under the aforecited rule, summary judgment is appropriate when there are no genuine issues of fact, which call
for the presentation of evidence in a full-blown trial. Thus, even if on their face the pleadings appear to raise issues,
but when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment
as prescribed by the rules must ensue as a matter of law.
‣
In this case, the facts pleaded by the respondents in their motion for summary judgment have been duly disputed and
contested by petitioner, raising genuine issues that must be resolved only after a full-blown trial. When the facts as
pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial. In
the present case, the petitioner was able to point out the genuine issues. A "genuine issue" is an issue of fact that
requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim.
Smart Communications vs Aldecoa, G.R. No. 166330, September 11, 2013
‣
For a summary judgment to be proper, the movant must establish two requisites: (a) there must be no genuine issue
as to any material fact, except for the amount of damages; and (b) the party presenting the motion for summary
judgment must be entitled to a judgment as a matter of law. Where, on the basis of the pleadings of a moving party,
including documents appended thereto, no genuine issue as to a material fact exists, the burden to produce a genuine
issue shifts to the opposing party. If the opposing party fails, the moving party is entitled to a summary judgment.
‣
A genuine issue is an issue of fact which requires the presentation of evidence as distinguished from an issue which is
a sham, fictitious, contrived or a false claim. The trial court can determine a genuine issue on the basis of the
pleadings, admissions, documents, affidavits or counter affidavits submitted by the parties. When the facts as
pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to any fact and
summary judgment called for. On the other hand, where the facts pleaded by the parties are disputed or contested,
proceedings for a summary judgment cannot take the place of a trial. The evidence on record must be viewed in light
most favorable to the party opposing the motion who must be given the benefit of all favorable inferences as can
reasonably be drawn from the evidence.
‣
Courts must be critical of the papers presented by the moving party and not of the papers/documents in opposition
thereto. Conclusory assertions are insufficient to raise an issue of material fact. A party cannot create a genuine
dispute of material fact through mere speculations or compilation of differences. He may not create an issue of fact
through bald assertions, unsupported contentions and conclusory statements. He must do more than rely upon
allegations but must come forward with specific facts in support of a claim. Where the factual context makes his claim
implausible, he must come forward with more persuasive evidence demonstrating a genuine issue for trial. (Emphases
supplied; citations omitted.)
‣
Judging by the aforequoted standards, summary judgment cannot be rendered in this case as there are clearly factual
issues disputed or contested by the parties.
HOW IS SUMMARY JUDGMENT AVAILED OF?
‣
RULE — BY MOTION BY EITHER THE PLAINTIFF OR DEFENDANT
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RULE 35: SUMMARY JUDGMENTS
‣
‣
It’s available to BOTH to the claimant and the defendant.
‣
Plaintiff — after answer has been served
‣
Defendant — anytime
Is an answer needed before summary judgment can be availed of?
‣
It depends. There can be summary judgment filed by the defendant even if he does not file an answer. But if the
plaintiff files the summary judgment, there should be an answer first
DIFFERENCE BETWEEN JOP AND SUMMARY JUDGMENT
‣
In JOP — there is no issue at all because the answer does not tender an issue or it admits the material allegations on the
claim. There’s no dispute at all.
‣
In SJ — there is an issue, but it’s fictitious, it’s ostensible
‣
Issue apparently exist (facts are asserted in the complaint, there are denials), but the issues are sham and not genuine
as shown by affidavits, depositions, or admissions.
‣
In SJ, the court goes beyond the pleadings, as it relies on documents, papers, affidavits, and depositions.
MOTIONS AND PROCEEDINGS
SECTION 3. Motion and proceedings thereon. - The motion shall be served at least ten (10) days before the time specified
for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days
before the hearing.
After the hearing, the 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 a judgment as a matter of law. (3a, R34)
REQUIREMENT AS TO THE SERVICE OF THE MOTION
‣
RULE — The motion for summary judgment must be served at least 10 days before the hearing.
‣
Take note: normally, a motion (like one for JOP) must be served to the adverse party at least 3 days before the
hearing.
‣
But the the adverse party to the SJ has 3 days opposing affidavits, depositions, or admissions
BASIS OF JUDGMENT IF MOTION FOR SJ IS GRANTED
‣
RULE — Judgment can be rendered based on pleadings, supporting affidavits, depositions, and admissions
PARTIAL JUDGMENT
SECTION 4. 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 at the hearing of the motion, by examining the
pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without
substantial controversy and what are actually and in good faith controverted.
It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to
which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as
are just.
The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts
accordingly. (4a, R34)
‣
Another difference between POJ and SJ —
‣
POJ — always full judgment
‣
SJ — partial judgment is allowed
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RULE 35: SUMMARY JUDGMENTS
AFFIDAVITS AND SUPPORTING PAPERS
SECTION 5. 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. (5a, R34)
SECTION 6. 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 to incur, including attorney's fees. It may, after hearing, further adjudge the offending party or
counsel guilty of contempt. (6a, R34)
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RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
RENDITION OF JUDGMENTS AND FINAL ORDERS
SECTION 1. Rendition of judgments and final orders. - A judgment or final order determining the merits of the case shall
be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him, and filed with the clerk of the court.
1987 CONSTITUTION; ARTICLE 8 — JUDICIAL DEPARTMENT
Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the
law on which it is based. XXXX
RENDITION OF JUDGMENT (SEC. 36)
‣
‣
RULE — A JUDGMENT OR FINAL ORDER DETERMINING THE MERITS OF THE CASE SHALL BE —
1.
In writing
2.
Personally and directly prepared by the judge
3.
State clearly and distinctly the facts and the law on which it is based
4.
Signed by the judge; and
5.
Filed with the clerk of court
A judgment or final can only be made by a judge who has authority or is currently sitting in the court.
‣
‣
Hence, once a judge resigns or steps down, he can no longer render judgment.
Is it required that the judge who heard the case be the same one who renders the decision?
‣
NO. But the judge must personally review it.
‣
Rule 36 pertains to the trial courts, for appellate courts its Rule 51
‣
How are Judgments served?
‣
See Rule 13, Sec. 9. Only personally, by registered mail, or publication.
SUBSTANCE OF THE JUDGMENT
‣
RULE — It should state clearly and distinctly the facts and the law on which it is based
AMBIGUITY IN THE JUDGMENT
‣
Where the judgment is difficult to execute because of ambiguity in its terms, it is suggested that the remedy to avail of is
to have the court remove the ambiguity by the filing of a MOTION FOR CLARIFICATORY JUDGMENT and not to assail
the judgment as void.
‣
What if there is a conflict between the dispositive portion and the body of the decision?
‣
The dispositive portion (fallo) controls irrespective what appears in the body of the decision (ratio). The only portion of
the decision which becomes the subject of execution and determines what is ordained is the dispositive part, the
body of the decision being considered as the reasons or conclusions of the Court, rather than its adjudication. (CIR vs
Fortune Tobacco 2013)
“ACT” OF RENDITION
‣
RULE — RENDITION OF A JUDGMENT IS THE FILING OF THE SAME WITH THE CLERK OF COURT.
‣
It is not the pronouncement of the judgment in open court that constitutes the rendition.
‣
Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been
filed with the clerk of court and before its filing does not yet constitute the real judgment of the court
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RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
PERIOD WITHIN WHICH TO RENDER A DECISION
‣
All cases filed must be decided or resolved by the Supreme Court within twenty-four (24) months from the date of their
submission for decision, and unless reduced by the Supreme Court, within twelve (12) months for all lower collegiate
courts and three (3) months for all other lower courts
‣
A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by
the Rules of Court or by the court
‣
The ninety (90) day period for lower courts for deciding the case commences from the submission of the case for
decision without memoranda.
‣
In case the court requires or allows its filing, the case shall be considered submitted for decision upon the filing of the
last memorandum, or the expiration of the period to do so, whichever is earlier.
‣
In cases where the court allows the filing of memoranda, no further orders announcing the submission of the case for
decision is necessary before they are deemed submitted for decision
EXTENSION OF THE PERIOD TO RENDER A DECISION
‣
An extension of the period may be set by the Supreme Court within which to decide a case upon request by the judge
concerned on account of heavy caseload or by other reasonable excuse.
‣
Without an extension granted by the court, a delay in the disposition of cases is tantamount to gross inefficiency on
the part of the judge
CONCLUSIVENESS OF JUDGMENTS (IMMUTABILITY OF JUDGMENTS)
‣
RULE — JUDGMENTS ARE IMMUTABLE, THEY CANNOT BE MODIFIED ONCE FINAL AND EXECUTORY.
‣
When a judgment is final and executory, it becomes immutable and unalterable.
‣
Under the doctrine of conclusiveness or immutability of judgments, a judgment that has attained finality can no longer
be disturbed.
‣
The doctrine which is sometimes referred to as “preclusion of issues” or “collateral estoppel,” holds that issues
actually and directly resolved in a former suit cannot again be raised in any future case between the same parties.
‣
As a rule, a final judgment may no longer be altered, amended or modified, even if the alteration, amendment or
modification is meant to correct what is perceived to be an erroneous conclusion of fact or law and regardless of what
court, be it the highest Court of the land, rendered it
‣
Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of
justice that once a judgment has become final, the issue or cause involved therein should be laid to rest.
‣
‣
‣
The basic rule of finality of judgment is grounded on the fundamental principle of public policy and sound practice
that at the risk of occasional error, the judgment of courts and the award of quasi-judicial agencies must become
final at some definite date fixed by law
Public policy and sound practice demand that at the risk of occasional errors, judgments of courts should become
final and irrevocable at some definite date fixed by law.
‣
This is better observed if the court executing the judgment would refrain from creating further controversy by
effectively modifying and altering the dispositive portion of the decision, thus further delaying the satisfaction of
the judgment.
‣
No matter how just the intention of the trial court, it cannot legally reverse what has already been settled
EXCEPT — IN THESE CASES ESTABLISHED BY JURISPRUDENCE —
1.
The correction of clerical errors
2.
The so-called nunc pro tunc entries (judgment does not speak the truth) which cause no prejudice to any party and
void judgment
3.
Whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable
4.
In cases of special and exceptional nature as when facts and circumstances transpire which render the judgment’s
execution impossible or unjust, when necessary in the interest of justice to direct its modification to harmonize the
disposition with prevailing circumstances
5.
In case of void judgments
6.
When there is a strong showing that a grave injustice would result from the application of the rules
7.
When there are grounds for annulment of the judgment or a petition for relief
8.
Judgments which do not obtain finality (like support or custody)
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RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
‣
What is the remedy against a final and executory decision?
1.
Petition to annul a judgment on the ground of extrinsic fraud and lack of jurisdiction (Rule 47)
2.
Petition for relief from a final order or judgment (Rule 38)
ENTRY OF JUDGMENTS AND FINAL ORDERS
SECTION 2. Entry of judgments and final orders. - If no appeal or motion for new trial or reconsideration is filed within the
time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of
judgments.
The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the
dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or
final order has become final and executory.
WHEN A JUDGMENT BECOMES FINAL
1.
“FINAL” Judgment — A judgment that disposes of a case in a manner that leaves nothing more to be done by the court
in respect thereto.
‣
In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose
of the case
‣
The finality of a judgment in this sense, has the effect of ending the litigation, and an aggrieved party may then appeal
from the judgment.
2.
“FINAL AND EXECUTORY” Judgment — The “final” may refer to a judgment that is no longer appealable and is
already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal
or if there has been an appeal, it has already been resolved by a highest possible tribunal.
“Final” Judgment
“Final and Executory”
One that finally disposes of a case, leaving nothing more for a
court to do in respect thereto
“Final” judgment becomes “final and executory” upon expiration
of the period to appeal (and no appeal perfected), or when an
appeal is perfected, judgment by the appellate court is rendered
and becomes final
Execution is discretionary (execution pending appeal)
Execution follows as a matter of right
JUDGMENT VS INTERLOCUTORY ORDERS
‣
Interlocutory orders are those that determine incidental matters that do not touch on the merits of the case or put an end
to the proceedings Interlocutory orders are not decisions or judgments within the constitutional definition. It was, thus,
held that judgments as referred to in Sec. 1 of Rule 36 do not include resolutions which are interlocutory orders
‣
SEE — Intramuros Tennis Club vs Philippine Tourism Authority, G.R. No. 135630. September 26, 2000
‣
A final judgment or order is one that finally disposes of a case, leaving nothing more for the court to do in respect
thereto - such as an adjudication on the merits which, on the basis of the evidence presented at the trial, declares
categorically what the rights and obligations of the parties are and which party is in the right, or a judgment or order
that dismisses an action on the ground of res judicata or prescription, for instanceIt is to be distinguished from an
order that is interlocutory, or one that does not finally dispose of the case, such as an order denying a motion to
dismiss under Rule 16 of the Rules of Court, or granting a motion for extension of time to file a pleading. As such, only
final judgments or orders (as opposed to interlocutory orders) are appealable.
‣
In the instant case, the RTC order dated August 5, 1997 which granted private respondents motion to dismiss, lifted
the writ of preliminary injunction and held private respondents entitled to possess the Victoria Tennis Courts is a final
order within the contemplation of Section 2, Rule 39 of the Revised Rules of Court, inasmuch as it makes an
adjudication on the merits of the case and dismisses petitioners action.
ENTRY OF JUDGMENT
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RULE — IF NO APPEAL OR MOTION FOR NEW TRIAL OR RECONSIDERATION IS FILED WITHIN THE TIME PROVIDED IN THESE
RULES, THE JUDGMENT OR FINAL ORDER SHALL THEN BE ENTERED BY THE CLERK IN THE BOOK OF ENTRIES OF JUDGMENTS.
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Once final and executory, the judgment will be entered by the clerk in the book of entries.
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What is reflected in the book of entries is the dispositive portion. Same as in writs of execution. What's important here
is the dispositive portion
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Date of finality shall be deemed to be the date of its entry.
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So,the date when the period expires (and no appeal taken) is considered “entry of judgment”.
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Entry of judgment is important because a petition for relief from judgment (Rule 38) can only be availed of once
entry of judgment is made
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But the reglamentary period to appeal will only start to run upon RECEIPT of the judgment by the parties
KINDS OF JUDGMENTS
SECTION 3. Judgment for or against one or more of several parties. - Judgment may be given for or against one or more
of several plaintiffs, and for or against one or more of several defendants.
When justice so demands, the court may require the parties on each side to file adversary pleadings as between
themselves and determine their ultimate rights and obligations.
SECTION 4. Several judgments. - In an action against several defendants, the court may, when a several judgment is
proper, render judgment against one or more of them, leaving the action to proceed against the others.
SECTION 5. Separate judgments. - When more than one claim for relief is presented in an action, the court, at any stage,
upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or
occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim.
The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the
remaining claims.
In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent
judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party
in whose favor the judgment is rendered.
SEVERAL JUDGMENT
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This refers to judgments when there are many parties
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Court can render judgment to one party, and go on with trial with another
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A several judgment is one rendered by a court against one or more defendants, but not against all, leaving the action to
proceed against the others
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A several judgment is proper when the liability of each party is clearly separable and distinct from that of his co-parties,
such that the claims against each of them could have been the subject of separate suits, and judgment for or against one
of them will not necessarily affect the other
SEPARATE JUDGMENT
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If there are many claims, the court can render judgment on one, and the action proceeds with the other claims.
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Applies when there is a partial judgment such as in summary judgments
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Such as in Expropriation (authority to expropriate and just compensation)
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Also in summary judgment (judgment over one claim which has no genuine issue, other parts will be threshed out in
trial)
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This kind of judgment presupposes that there are several claims for relief presented in a single action. Aside from the
original complaint for instance, the defendant may have interposed a counterclaim or a cross-claim or a third- party
complaint.
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The court may, after determining the issues relative to a claim and considering other circumstances, may render separate
judgment let us say, on the cross-claim or the counterclaim.
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The judgment will terminate the action with respect to that claim and the action shall proceed as to the remaining claims.
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Despite the rendition of a separate judgment, the court may, stay the execution of the separate judgment until the
rendition of a judgment on all the other claims
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RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
JUDGMENT ON THE MERITS
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A judgment is “on the merits” when it amounts to a legal declaration of the respective rights and duties of the parties,
based upon the disclosed facts.
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“Merits” has been as a matter of substance in law, as distinguished from a matter of form refers to the real or substantial
grounds of action or defense, as contrasted with some technical or collateral matter raised in the course of the suit.
‣
There could be a judgment on the merits even if there is no trial. A ruling based on a motion to dismiss, without any trial
or formal presentation of evidence, can still be a judgment on the merits. A judgment ruling that the defense was
substantial enough to overcome the relief sought is a judgment on the merits.
‣
Dismissal on the ground of failure to state a cause of action is still a judgment on the merits and operates as res judicata
on a subsequent case involving the same parties, subject matter and cause of action as long as the dismissal ruled on the
issues raised.
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What appears to be essential to a judgment on the merits is that it be a reasoned decision, which clearly states the facts
and the law on which it is based.
‣
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Thus, where the court, for example, ruled on the right of the petitioner to foreclose the property, that the debtor was in
default and that the foreclosure was valid by looking into the law and the facts and pleadings and applied the law
accordingly, the judgment settled the controversy between the parties
Jurisprudence does not require that a judgment on the merits be one rendered after a full blown trial
CONDITIONAL JUDGMENT
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A conditional judgment is one the effectivity of which depends upon the occurrence or the non-occurrence of an event.
Such a judgment is generally VOID because of the absence of a disposition
JUDGMENT SIN PERJUICIO
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A judgment sin perjuicio is traditionally understood to be a brief judgment containing only the dispositive portion, without
prejudice to the making of a more extensive discussion of the findings of fact and law to support it.
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This is not actually a final decision, should be avoided and should not be looked with favor
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Its current use may also refer to a dismissal of an action without prejudice to its being refiled on a later date as in a
dismissal in Sec. 1 of Rule 17 and Sec. 5 of Rule 7.
JUDGMENT NUNC PRO TUNC
‣
This is a judgment intended to enter into the record acts which had already been done, but which do not yet appear in the
record.
‣
It is a judgment which orders the entry of something which was actually previously done. Its purpose is not to supply an
omitted action by the court but to enter into the record an action previously done but which was not reflected in the
record by reason of inadvertence or mistake
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A nunc pro tunc entry in practice is an entry made now of something which was actually previously done, to have effect
as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of
action really had, but omitted through inadvertence or mistake.
JUDGMENT UPON A COMPROMISE
‣
This is a judgment rendered by the court on the basis of a compromise agreement entered into between the parties to the
action
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A compromise has upon the parties the effect of res judicata, and under the principle of res judicata, an issue which had
already been laid to rest by the parties themselves can no longer be relitigated.
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Substantive law does not require a court approval for the res judicata effect of a compromise agreement to attach.
However, there shall be no execution of the compromise agreement except in compliance with a judicial compromise
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A compromise is perfected by mere consent, manifested by the meeting of the offer and the acceptance upon the thing
and the cause which constitutes the contract. It is perfected upon the meeting of the minds and does not need a judicial
approval for its perfection
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Once approved by the court, a judicial compromise is not appealable and it thereby becomes immediately executory.
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The law affords complying parties with remedies in case one of the parties to an compromise agreement fails to abide by
its terms. A party may file a motion for execution of judgment. Execution is a matter of right on final judgments.
JUDGMENT AGAINST ENTITY WITHOUT JURIDICAL PERSONALITY
SECTION 6. Judgment against entity without juridical personality. - When judgment is rendered against two or more
persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if
known.
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If judgment rendered against an entity without juridical entity, it will be against the members, not the entity itself.
EFFECTS OF FINAL JUDGMENTS OF PHILIPPINE COURTS
*This is in Rule 39, but it’s better to read it in conjunction with Rule 36
RULE 39 — EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS
SECTION 47. Effect of judgments or final orders. - The effect of a judgment or final order rendered by a court or of the
Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:
a.
In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration
of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular
person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or
administration, or the condition, status or relationship of the person; however, the probate of a will or granting of
letters of administration shall only be prima facie evidence of the death of the testator or intestate;
b.
In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter
that could have been raised in relation thereto, conclusive between the parties and their successors in interest by
title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under
the same title and in the same capacity; and
c.
In any other litigation between the same parties or their successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was
actually and necessarily included therein or necessary thereto. (49a)
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RULE — WHEN A COURT OF THE PHILIPPINES HAS RENDERED JUDGMENT WITH JURISDICTION, THE FOLLOWING ARE THE
EFFECTS IF ITS JUDGMENT OR FINAL ORDER —
1.
If the judgment or final order is on a specific thing — the same is CONCLUSIVE upon the title to the thing
2.
If the judgment or final order is in respect to the probate of a will, or the administration of the estate of a
deceased person — the same is CONCLUSIVE upon the will or administration, BUT the probate of the will or
granting of letters or administration, shall only be prima facie evidence of the death of the testator or intestate, and
not a conclusive presumption
‣
‣
Why only a disputable presumption? This is because these kinds of proceedings can be conducted while the
testator or intestate is still alive
3.
If the judgment or final order is in respect to the personal, political, or legal condition or status of a particular
person or his relationship to another — the judgment or final order is CONCLUSIVE between the parties and their
successors in interest by title and subsequent commencement of the action or special proceeding, litigating for the
same thing and under the same title and the same capacity
4.
In other cases, if the judgment be with respect to the matter directly adjudged or as to any other matter that
could have been raised in relation thereto — the judgment or final order is CONCLUSIVE between the parties and
their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating
for the same thing and under the same title and same capacity.
5.
In any other litigation between the same parties or their successors in interest — that only is deemed to have
been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary thereto.
IN SUMMARY —
1.
As against a specific thing, condition/status/relationship of a person (in rem) — conclusive upon it
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RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
BUT — in matters of probate, the death of the party is only presumed
In other cases, with respect to the matter directly adjudged or to any other matter related thereto (in
personam) — res judicata
‣
Bars prosecution of the same claim, demand, or cause of action
‣
Precludes the re-litigation of a particular fact or issue in another action between the same parties
3.
In any other litigation between the same parties or their successors-in-interest — conclusiveness of judgment
only to that which was adjudged, or those which are actually and necessarily included therein
‣
The judgments rendered are enforceable only between the parties and their successors-in-interest, but not against
strangers thereto
CONCEPT OF RES JUDICATA
‣
SEE — Gadrinab vs Salamanca, G.R. No. 194560, June 11, 2014
‣
There are two rules that embody the principle of res judicata.
1.
“Bar by prior judgment” — which means that actions on the same claim or cause of action cannot be relitigated.
This rule is embodied in Rule 39, Section 47, paragraph (b)
2.
“Conclusiveness of judgment” or “Preclusion of Issues”— This means that facts already tried and determined in
another action involving a different claim or cause of action cannot anymore be relitigated. This rule is embodied in
Rule 39, Section 47, paragraph (c).
EFFECTS OF FINAL JUDGMENTS OF FOREIGN COURTS
RULE 39 — EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS
SECTION 48. Effect of foreign judgments or final orders. - The effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final order is as follows:
a.
In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to
the thing; and
b.
In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. (50a)
‣
‣
What are the effects of foreign judgments?
1.
Upon a specific thing — conclusive
2.
Upon a person, or rights between parties — presumptive only
How do you enforce foreign judgments?
‣
‣
File a verified petition in the RTC, averring that the court who ruled over it had jurisdiction over the parties and the
subject matter. You need to aver the requirements under Sec. 48, last sentence
‣
RTC has jurisdiction because this action is incapable of pecuniary estimation (even if the foreign judgment itself
was one which is capable of pecuniary estimation, such as a money judgment)
‣
Seen in St. Aviation v Grand International, 2006, where proper service of summons was deemed made
because in procedural manners, lex fori will govern (and according to Singapore law, the service was valid.)
NOTE — The party seeking to enforce the foreign judgment must prove the law of that foreign court, otherwise, the
doctrine of processual presumption applies, foreign law is presumed to be the same as Philippine law.
‣
For foreign arbitral awards, you file an action for recognition under the New York Convention on Recognition and
Enforcement of Foreign Arbitral Awards, since it’s not treated as a foreign judgment.
‣
What are the grounds to impugn a foreign judgment?
1.
Want of jurisdiction/notice to party
2.
Collusion
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3.
Fraud
4.
Clear mistake of law or fact
Can a foreign judgment be executed in the foreign country?
‣
Yes, it's not prohibited by the Rules
‣
A foreign judgment is not limited by the fact that it was rendered in a foreign country
‣
But it's not immediately executory, nor is there a need to be tried and heard again. You just need to institute an action
to enforce it
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The foreign judgment must be authentic
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