Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
CIVIL PROCEDURE NOTES
PRELIMINARIES
Remedial Law
Branch of law which prescribes the method
of enforcing the rights or obtaining redress
for their invasions
1.
2.
3.
4.
Civil Procedure (Rules 1-71)
Special Proceedings (Rules 72-109)
Criminal Procedure (R110-R127)
Rules on Evidence (Rules 128-134)
What are the sources of Remedial Law?
1.
2.
Remedial Law vs Substantive Law
Substantive Law
Remedial Law
Part of the law which
creates, defines, or
regulates rights
concerning life, liberty,
or property or the
powers of agencies or
instrumentalities for the
administration of public
affairs
Refers to the legislation
providing means or
methods whereby
causes of action may be
effectuated, wrongs
redressed, and relief
obtained (adjective law)
Makes vested rights
possible
Has no vested rights
Prospective in
application
Governs rights and
transactions which took
place (retroactive)
Cannot be enacted by SC
SC is expressly
empowered to
promulgate procedural
rules
4
Main Divisions of Remedial Law:
1987 Constitution
BP 129 (Judiciary Reorganization Act of
1980) as amended by RA7691 (Act
expanding the jurisdiction of MTCs, MuTCs,
MCTCs
3. Rules of Court
4. Supreme Court Administrative Matters and
Circulars
5. Supreme Court decisions
6. New Civil Code
7. Family Code
8. Local Government Code (RA 7160),
particularly the Katarungang Pambarangay
Law
9. Special Laws and amendments
10. Rules of Procedure on Small Claims
11. Revised Manual of the Clerk of Court
Differentiate: Civil Actions, Special Proceedings,
Criminal Actions
Special
Proceedings
Criminal
Procedure
Civil Action
A remedy by
which a party
seeks to
establish a
status, a right,
or a particular
fact (Rule 1
S3c)
The State
prosecutes a
person for an
act or
omission
punishable by
law (Rule 1
S3b)
A party sues
another for
the
enforcement
or protection
of a right, or
the
prevention or
redress of a
wrong
A proceeding
wherein a
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
person is
prosecuted by
the State for
acts or
omissions
committed in
violation of
penal laws,
and to impose
the
corresponding
penalty
provided for
by penal laws
A civil action
may be
ordinary or
special. (R1
S3a)
Governed by
special rules,
and in the
absence of
special
provisions,
the rules
provided for
in ordinary
civil actions
shall be, as far
as practicable,
apply
suppletory
(R72 S2)
Governed by
the Revised
Rules of
Criminal
Procedure
Both are
governed by
the Rules for
ordinary civil
actions,
subject to
specific rules
prescribed for
a special civil
action (R1
S3a)
May involve
only one party
Involves the
State against
the accused
Involves 2 or
more parties
Initiated by
petition
Initiated by
complaint
(but filed in
court by
Information)
Initiated by
complaint, or,
in some
special civil
actions, by
petition
Based on an
act or
omission
punishable by
Based on a
cause of
action
Except
Habeas
Corpus, NOT
based on a
cause of
action
law
CONSTITUTIONAL PROVISIONS Relating to CIVIL
PROCEDURE
A8 S1
Judicial Power shall be vested in one Supreme Court
and in such lower courts as may be established by
law.
Judicial Power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there is grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
government.
What are those other Courts as may be established
by Law?
Sandiganbayan
Family Courts (RA 8369)
Court of Tax Appeals
Sharia Court
A3 S1
No person shall be deprived of life, liberty, or
property without due process of law, nor shall any
person be denied the equal protection of the laws.
A3 S9—(Basis of Rule 67)
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Private property shall not be taken for public use
without payment of just compensation
A6 S30
No law shall be passed increasing the appellate
jurisdiction of the SC as provided in this Constitution
without its advice and concurrence.
A8 S5 P1
A8 S5 P2—(Basis of Rule 56)
-
Review
Revise
Reverse
Modify
Affirm
o On appeal or certiorari, as the law
or the Rules of Court may provide,
final judgments and orders of
lower courts in:
1.
All cases in which constitutionality or
validity of any
a. treaty,
b. international or executive
agreement
c. law
d. presidential decree
e. proclamation
f. order
g. instruction
h. ordinance
i. regulation
i. is in question
2.
all cases involving the legality of any
a. tax
b. impost
c. assessment
d. toll
e. any penalty imposed in relation
thereto
3.
all cases in which the jurisdiction of any
lower court is in issue
4.
all criminal cases in which the penalty
imposed is reclusion perpetua or higher
5.
all cases in which only an error or question
of law is involved
The Supreme Court shall have the following powers:
-
-
Exercise original jurisdiction over cases
affecting:
o Ambassadors
o Other public ministers and consuls
Over petitions for
o Certiorari
o Prohibition
o Mandamus
o Quo warranto
o Habeas corpus
A7 S4
The Supreme Court en banc shall be the sole judge
of all contests relating to the election, returns, and
qualification of the President or Vice President, and
may promulgate its rules for the purpose.
A7 S18
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision
thereon within 30 days from its filing.
A8 S5 P5 (basis of Rules of Court)
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
The SC shall have the power to promulgate rules
concerning:
1.
2.
3.
4.
5.
Protection and enforcement of
constitutional rights
Pleading, practice, procedure in all courts
Admission to practice of law
Integrated Bar
Legal assistance to the underprivileged
Such rules shall (Limits to SC-rule making power):
1.
2.
3.
Provide simplified and inexpensive
procedure for speedy disposition of cases
Shall be uniform for all courts of the same
grade
Shall not diminish, increase, modify
substantive rights.
Rules of procedure of special court and quasi judicial
bodies shall remain effective unless disapproved by
the SC
No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and
the law on which it is based.
No petition for review or motion for reconsideration
of a decision of the court shall be refused due course
or denied without starting the legal basis therefor.
A9A S7 (basis of Rule 64)
Each Commission shall decide by majority of all its
Members in any case or matter brought before it
within 60 days from date of its submission for
decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing
of the last pleading, brief, or memorandum required
by the rules of the Commission or by the
Commission itself. Unless otherwise provided by
this Constitution or by law, any decision, order, or
ruling of each Commission may be brought to the SC
on certiorari by the aggrieved party within 30 days
from receipt of a copy thereof.
A8 S2
The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the
various courts but may not deprive the SC of its
jurisdiction over cases enumerated in S5 thereof.
CIVIL PROCEDURE PROPER
Jurisdiction
Authority of the court to hear and decide a
case and to implement its decision
No law shall be passed reorganizing the Judiciary
when it undermines security of tenure of its
members.
Rule 30
Rule 36
A3 S16
Rule 39
All persons shall have the right to speedy disposition
of cases before before all judicial, quasi judicial,
administrative bodies.
Venue
A8 S14—(basis for Rule 36)
Place where action is
instituted
Jurisdiction
Power of court to hear
and decide a case
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
May be waived
Jurisdiction over subject
matter and over nature
of action are conferred
by law and cannot be
waived
Procedural
Substantive
May be changed by
written agreement of
the parties
Cannot be subject of the
agreement of the parties
Not a ground for motu
proprio dismissal, except
in Summary Procedure
A ground for motu
proprio dismissal
General Jurisdiction
Power to adjudicate all controversies except
those expressly withheld from the plenary
powers of the court.
It extends to all controversies which may be
brought before a court within the legal
bounds of rights and remedies.
Special or Limited Jurisdiction
One which restricts the court’s jurisdiction
only to particular cases and subject to such
limitations as may be provided by the
governing law.
It is confined to particular causes, or which
can be exercised only under the limitations
and circumstances prescribed by the statute
Appellate Jurisdiction
Power and authority conferred upon a
superior court to rehear and determine
causes which have been tried in lower
courts, the cognizance which a superior
court takes of a case removed to it, by
appeal or writ of error, from the decision of
a lower court or the review by a superior
court of the final judgment or order of
some lower courts
Concurrent / Confluent / Coordinate
Jurisdiction
Power conferred upon different courts,
whether of the same or different ranks, to
take cognizance at the same stage of the
same case in the same or different judicial
territories
E.g. CA, SC, Sandiganbayan, RTC- in HC
cases, Writ of Amparo, Writ of Habeas Data
Original Jurisdiction
Power of the court to take judicial
cognizance of a case instituted for judicial
action for the first time under conditions
provided by law and appellate jurisdiction,
or the authority of a court higher in rank to
re-examine the final order or judgment of a
lower court which tried the case or elevated
for judicial review. It is jurisdiction
conferred upon or inherent in the first
instance
Jurisdiction conferred by law and filed at
the first instance (NOTE: all civil actions)
Exclusive Jurisdiction
Power to adjudicate a case or proceeding to
the exclusion of all other courts at that
stage
Jurisdiction of the court to the exclusion of
all other courts
Exclusive Original Jurisdiction
Power of the court to take judicial
cognizance of a case instituted for judicial
action for the first time to the exclusion of
all other courts
Territorial Jurisdiction
Refers to geographical area within which
the court’s powers can be exercised
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
In civil cases, assumes importance in case of
venue of real or mixed action
In criminal cases, consideration of territory
and locus of crime determine venue and
jurisdiction
Power conferred upon different courts,
whether of the same or different ranks, to
take cognizance at the same stage of the
same case in the same or different judicial
territories
Territorial jurisdictions:
SC and CA
National
RTC
Regional jurisdiction
Inferior courts
Territorial jurisdiction as defined by SC in
BP129
*Power of tribunal considered with reference to the
territory within which it is to be exercised.
Delegated Jurisdiction
The grant of authority to inferior courts to
hear and determine cadastral and land
registration cases under certain conditions
Doctrine of Primary Jurisdiction
courts will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal,
especially where the question demands the
exercise of sound administrative discretion
requiring special knowledge and experience
of said tribunal in determining technical and
intricate matters of fact
courts shall not take cognizance of a case
unless it has been decided at the
administrative level
Coordinate Jurisdiction
(same as Concurrent Jurisdiction)
Ancillary Jurisdiction
Power of the courts to settle issues which
are incidental to main issue
Appeal by Certiorari
Petition for Certiorari
Rule 45
Rule 65
Petition is based on
questions of law
Petition is based on
questions of jurisdiction,
whether the lower court
acted without
jurisdiction or in excess
of jurisdiction or with
grave abuse of discretion
Mode of appeal
Mode of review /
SPECIAL CIVIL ACTION
Involves review of the
judgment award or final
order on the merits
Directed against
interlocutory order of
the court or where there
is no appeal or any plain,
speedy, or adequate
remedy
Filed within 15 days from
notice of judgment, final
order, or resolution
appealed from
Filed not later than 60
days from notice of
judgment, order, or
resolution sought to be
reviewed
Stays judgment or final
order appealed from
Unless a writ of
preliminary injunction or
temporary restraining
order is issued, the
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
petition does not stay
the challenged
proceeding
Appellant and appellee
are original parties to
the action, and the lower
court or quasi judicial
agency is not impleaded
Motion for
reconsideration is not
required
Judge, court, quasi
judicial agency, tribunal,
corporation, board or
officer or person are
public respondents who
are impleaded in the
action
Motion for
reconsideration or for
new trial is required; if a
motion for
reconsideration or new
trial is filed, the period
shall not only be
interrupted but another
60 days shall be given to
petitioner (SC Admin
Matter 02-03)
3.
Over petitions for:
a.
b.
c.
d.
e.
Certiorari
Prohibition
Mandamus
Quo warranto
Habeas corpus
Appellate Jurisdiction of the Supreme Court:
A8 S5 P2
The SC may 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:
1.
All cases in which the constitutionality or
validity of any treaty, internation or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation is in question
Court is in exercise of its
appellate jurisdiction
and power of review
Court exercises original
jurisdiction
2.
All cases involving the legality of any tax,
impost, assessment or toll, or any penalty
imposed in relation thereto
Petition shall be filed
with the Supreme Court
Petition shall be filed
with the RTC, CA,
Sandiganbayan, Comelec
3.
All cases in which the jurisdiction of any
lower court is in issue
4.
All criminal cases in which the penalty
imposed is reclusion perpetua or higher
(WITHIN THE SCOPE OF CRIMINAL
PROCEDURE- RULE 45)
5.
All cases in which only an error or question
of law is imposed
JURISDICTION
SUPREME COURT
Original Jurisdiction of the Supreme Court:
A8 S5 P1- (Rule 56)
1 and 2- PURE QUESTIONS OF LAW
The SC shall have exclusive original jurisdiction over
cases involving:
1.
2.
Ambassadors
Other public ministers and consuls
Administrative Supervision of the Supreme Court:
1.
Over court personnel
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2.
3.
4.
5.
Over Justices
Over Judges
Practice of Law
Members of the Integrated Bar
CA decisions
-
1.
Rule 41- over RTC decisions in the exercise
of its ORIGINAL JURISDICTION (via Notice or
Record of Appeal)
-
RTC jurisdiction, first instance, including
Special Civil Actions
2.
Rule 42- over RTC decisions in the exercise
of its APPELLATE JURISDICTION (via Petition
for Review)
3.
Rule 43- Exclusive appellate jurisdiction
over all final judgments, resolution, orders,
or awards of quasi judicial agencies,
instrumentalities, boards, or commissions
(via Petition for Review)
Appealable to SC under Rule 45
R45 S1- a party desiring to appeal by certiorari from
a judgment or final order or resolution of the Court
of Appeals may file with the SC a verified petition for
review on certiorari. The petition shall raise only
questions of law which must be distinctly set forth.
Note that questions of law can be raised before the
CA (BP129)
RTC
Exclusive Original Jurisdiction:
COURT OF APPEALS
1.
In all actions in which the subject of
litigation is incapable of pecuniary
estimation
2.
Actions which cannot be quantified into
monetary estimation
Subject matter (BP129)
3.
In all civil actions which involve title to or
possession of real property or any interest
therein, where assessed value of property
involved exceeds 20k OMM or in MM, value
of property involved exceeds 50k
Except actions of FE and UD of lands and
buildings, original jurisdiction of which is
conferred with MTC, MuTC, MCTC
4.
In all actions in admiralty and maritime
actions where demand or claim exceeds
300k OMM or exceeds 400k MM
5.
In all matters of probate, testate or
intestate, where gross value of estate
exceeds 300k OMM or exceeds 400k MM
Original jurisdiction / Original Concurrent
Jurisdiction
Original jurisdiction to issue writs of:
-
Mandamus
Prohibition
Certiorari
Habeas corpus
Quo warranto
Auxiliary writs and processes,
o Whether or not in aid of its
appellate jurisdiction
Exclusive Original Jurisdiction:
Exclusive original jurisdiction over the
actions for annulment of judgments of RTCs
Appellate Jurisdiction:
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Gross value- assessed value of property of deceased
before deduction (NOT market value)
6.
In all actions involving the contract of
marriage and marital relations
7.
In 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
misrepresentation which may be interest of
the public and/or of the stockholders,
partners, members of associations or
organizations registered with the
Commission
2.
Controversies arising out of intracorporate
or partnership relations, between and
among stockholders, members or
associates, between any and all of them
and the corporation, partnership, or
association of which they are stockholders,
members or associates respectively, and
between such corporation, partnership or
association and the state insofar as it
concerns their individual franchise or right
to exist as such entity
3.
Controversies in election or appointment of
directors, trustees, officers or managers of
such corporations, partnerships, or
associations
4.
Petitions of corporations, partnerships or
associations to be declared in the state of
suspension of payments, in cases where the
corporation, partnership or association
possesses sufficient property to cover all its
debts but foresees the impossibility of
meeting them when the respectively fall
due or in cases where the corporation,
partnership or association has no sufficient
assets to cover its liabilities, but is under
management of a rehabilitation receiver or
management committee
(refer to 902-A below)
8.
9.
In all civil actions and special proceedings
falling within Exclusive original jurisdiction
of a Juvenile and Domestic Relations Court
and of the Court of Agrarian Relations as
now provided by law
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 property in
controversy exceeds 300k OMM or exceeds
400k MM
1996 Bar- Gross value is 200k, property located in
Pampanga. What is the jurisdiction and venue?
MTC of the place of decedent’s actual residence at
the time of his death, if a resident of the Philippines.
If a non resident, then the MTC of the place where
his estate is located.
(RA8799 S5.2 as amended by PD902-A)- exclusive
and original jurisdiction of the RTC to hear and
decide following cases:
1.
Cases involving devices or schemes
employed by or any acts of the board of
directors, business associates, its offices or
partnership, amounting to fraud or
Concurrent Original Jurisdiction:
With SC, CA, -- over petitions for certiorari,
mandamus, prohibition, quo warranto, habeas
corpus
Appellate Jurisdiction:
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Over all cases decided by MTCs, MuTCs, MCTCs in
their respective territorial jurisdictions
property or any interest therein where
assessed value of property or interest
therein does not exceed 20k OMM or does
not exceed 50k MM exclusive of interest,
damages of whatever kind, AF, litigation
expenses, costs. Provided that in cases of
land not declared for taxation purposes, the
value of such property shall be determined
by assessed value of adjacent lots
MTC
(note: baligtarin ang RTC jurisdiction, below 20-50,
300-400)
Ordinary Civil Actions:
1.
2.
3.
exclusive original jurisdiction over civil
actions and probate proceedings, testate
and intestate, including grant of provisional
remedies in proper cases, where the value
of the personal property, estate or amount
of the demand does not exceed 300k OMM
or 400k MM exclusive of interest, damages,
of whatever kind, AF, litigation expenses
and costs, the amount of which must be
specifically alleged. Provided, that interest,
damages of whatever kind, AF, litigation
expenses, and costs shall be included in the
determination of the filing fees. Provided
further that where there are several claims
or causes of actions between the same or
different parties, embodied in the same
complaint, the amount of demand shall be
the totality of the claims in all the causes of
action, irrespective of whether the cause of
action arose out of same or different
transactions
exclusive original jurisdiction over cases of
forcible entry or unlawful detainer,
provided that when, in such cases,
defendant raises questions 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 (see:
Summary Procedure)
exclusive original jurisdiction in all civil
actions involving title to or possession of
4.
civil cases where the demand does not
exceed 300k or not more than 400k MM
5.
over actions involving personal property
valued at not more than 300k OMM or not
more than 400k MM
6.
admiralty and maritime cases where the
demand or claim does not exceed 300k
OMM or does not exceed 400k MM
Summary Procedure:
1.
All cases of FE and UD, irrespective of the
amount of damages or unpaid rentals
sought to be recovered. Where AF are
awarded, the same shall not exceed 20k
2.
All other civil cases, except probate
proceedings, where the total amount of the
plaintiff’s claim does not exceed 100k OMM
or 200k MM exclusive of interests and costs
(as amended by AM 2-11-9-SC)
3.
Civil cases not higher than 100k- Subject to
the Rule on Small Claims
What if, gumitna? 150k?
Higher than 100k OMM, then subject to Regular
Proceedings in MTC
BUT, below 200k MM, hence, in such case, subject to
Summary Procedure pa rin
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Conferred by law
Why the need to discuss jurisdiction?
To know whether subject to Motion to Dismiss (Rule
S1b), that the court has no jurisdiction over the
subject matter of the case
Jurisdiction over the issue
In Civil Procedure, SC-CA-RTC-MTC
Jurisdiction over the res
Determined by allegations in the complaint
By actual or constructive seizure of property
by way of attachment or execution
In Criminal Procedure, SC-CA-SANDIGANBAYAN-RTCMTC
Commencement of a Civil Action:
Action, Cause of Action, Right of Action (Simplified
Version)
R1 S5
Civil action is commenced by the filing of the original
complaint in court and payment of the requisite
docket fees. If an additional defendant is impleaded
in a later pleading, the action is commenced with
regard to him on the date of filing of such later
pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court.
DOCKET FEES- needed to acquire jurisdiction over
the case
Jurisdiction over plaintiff
By filing of original complaint in court plus
payment of requisite docket fees
Jurisdiction over defendant
Action
Cause of Action
Right of Action
Suit to enforce
one’s right or
for the
prevention or
redress of a
wrong
Act or omission
by which a
party violates a
right of another
Remedial right
to file a suit
based on cause
of action
Original Distinctions:
Action
Cause of Action
Right of Action
Suit filed in
court for
enforcememt
or protection of
a right, or the
prevention or
redress of a
wrong (R1 S3)
Act or omission
by which a
party violate a
right of another
(R2 S2)
Remdial right
or right to relief
granted by law
to a party to
institute an
action against a
person who has
committed
delict or wrong
against him
Reason for the
action
Remedy or
means afforded
or the
By voluntary appearance or service of
summons
Jurisdiction over subject matter
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
-
consequent
relief
Formal
statement of
operative facts
that give rise to
a remedial right
Remedial right
given to a
person because
of occurrence
of the alleged
facts
Matter of
procedure and
depends on the
pleadings filed
by the parties
A matter of
right and
depends on
substantive law
Not affected by
affirmative
defenses
(fraud,
prescription,
estoppel, etc)
Affected by
affirmative
defenses
Venue: R4 S1
ND
2 GROUP: for purposes of determining
jurisdiction/service of summons
Action In Rem
-
-
Action which binds the whole world
Note: all Special Proceedings are in rem
actions
Summons/notification by PUBLICATION
Action in Personam
-
Action which binds the parties
Action Quasi In Rem
-
Action which binds interests
o Foreclosure of mortgage
o Partition
o Attachment
o Any interest or lien on real
property
Kinds of actions:
ST
1 GROUP: for purposes of venue under Rule 4
Action in rem
Action in
personam
Action Quasi in
Rem
Directed
against the
thing itself
Directed
against
particular
persons
Directed
against
particular
persons
Jurisdiction
over person of
defendant is
not required
Jurisdiction
over person of
defendant is
required
Jurisdiction
over the person
of the
defendant is
not required as
long as
jurisdiction
over the res is
acquired
Real Action
-
Actions affecting title to or possession of
real property (A415 NCC in consideration)
Venue: R4 S1
Personal Action
-
-
Involves privity of contract/personal
property (A416-417 of NCC in
consideration)
Venue: R4 S2
Mixed Action
-
Action affecting title to or possession of real
property + Privity of Contract
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
A proceeding to
determine the
state or
condition of a
thing
An action to
impose a
responsibility
or liability upon
a person
directly
A proceeding to
subject the
interest of a
named
defendant over
a particular
property to an
obligation or
lien burdening
it
Judgment is
binding on the
whole world
Judgment is
bonding only
upon the
parties
impleaded or
their successors
in interest
Judgment is
binding upon
particular
persons
Examples:
Examples:
Examples:
Probate
proceeding,
Action for
specific
performance
Action for
partition
cadastral
proceeding,
Action for
breach of
contract
Action to
foreclose real
estate
mortgage
sought
Founded on
privy of real
estate
Founded on
privity of
contract
Founded on
both
Filed in the
court where
the property or
any part
thereof is
situated (R4 S1)
Filed in the
court where
the plaintiff or
any of the
plaintiffs
resides, where
defendant or
any of the
defendants
resides, or in
case of non
resident
defendant,
where he may
be found, at
election of
plaintiff (R4 S2)
Filed in the
court where
the property or
any part
thereof is
situated (R4 S1)
Example:
Example:
Example:
Accion
reivindicatoria
Action for a
sum of money
Accion
publiciana with
a claim for
damages
special
proceedings
Real Action
Personal
Action
Mixed Action
Ownership or
possession of
real property is
involved
Personal
property is
sought to be
recovered or
where damages
for breach of
contract are
Both real and
personal
properties are
involved
Personal Action
Action in personam
Personal property is
sought to be recovered
or where damages for
breach of contract are
sought
An action directed
against particular
persons, may be real
action, personal action,
mixed action
Founded on privity of
contract
Not necessarily; because
the action may also be
real or mixed
Filed in court where
R4 S1 or R4 S2 may
13
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
plaintiff or any of
defendants reside, at
option of plaintiff (R4 S2)
govern, depending on
whether the action is
real action or personal
action
Mixed Action
Quasi In Rem Action
Both real and personal
properties are involved
Both real and personal
properties may also be
involved
Founded on both privity
of real estate and privity
of contract
Action directed against
particular persons, but
jurisdiction over
defendant is not
required as long as
jurisdiction over the res
is acquired
Rules on venue of real
actions shall govern (R4
S1)
PLEADING (R6 S1)
Sworn written statements of the respective
claims and defenses of the parties
submitted to the court for appropriate
judgment
Complaint (R6 S3)
The complaint is the pleading alleging the
plaintiff’s cause or causes of action.
Answer (R6 S4)
Pleading in which a defending party sets
forth his defenses
Rules on personal
actions govern (?)
INITIATORY PLEADING
A pleading that initiates an action
Real Action
In rem action
Ownership or possession
of real property is
involved
Action directed against
the thing itself
Filed in court where
property or portion
thereof is situated
Not necessarily; depends
on whether the action is
real, personal, mixed
A proceeding founded
on privity of real estate
A proceeding to
determine state or
condition of a thing
Judgment may bind
whole world, or
particular persons,
depending on whether in
rem, in personam, quasi
in rem
Judgment is binding
upon the whole world
RESPONSIVE PLEADING
A pleading that responds to allegations in
the adverse party’s pleading
Initiatory Pleadings
Original complaint
Permissive counterclaim
Cross claim
Third party complaint
th
4 party complaint
Complaint in intervention
Petition
In special civil actions
In special proceedings
Counter counter claim
14
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Counter cross claim
A motion IS NOT A PLEADING
Counter Counter Claim
Counter Cross Claim
A position paper IS NOT A PLEADING
Any claim which
defending party in a
counterclaim may have
against the original
counterclaimant
Any claim which a
defending party in a
cross claim may have
against the original cross
claimant
A memorandum IS NOT A PLEADING
COMPULSORY- Arises
out of or is necessarily
connected with the
transaction or
occurrence that is the
subject matter of the
opposing party’s claim
Can be an initiatory
pleading, if permissive
Position Paper and Memorandum only narrate facts
of the case, issues, no cause of action, no defenses,
but only contain discussions
PERMISSIVE- does not
arise of or is necessarily
connected with the
transaction or
occurrence that is the
subject matter of the
opposing party’s claim
Responsive Pleadings
Answer to original complaint
Answer to permissive counterclaim
Answer to third party complaint
Answer to fourth party complaint
Answer to complaint in intervention
Comment or objection to petition
Compulsory counterclaim
Reply
Answer to counter counter claim
Answer to counter cross claim
Why?
Motion is an application for relief other than by a
pleading (R15 S1)
Initiatory Pleading
Responsive Pleading
A pleading that
initiates an action
A pleading that responds
to allegations in the
adverse party’s pleading
Original
complaint
Answer to original
complaint
Permissive
counterclaim
Answer to
permissive
counterclaim
Cross claim
Answer to third
party complaint
Third party
complaint
Answer to fourth
party complaint
th
4 party
complaint
Complaint in
Answer to
complaint in
intervention
15
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
intervention
Petition
In special civil actions
document
Comment or
objection to
petition
Allegations of
usury
Compulsory
counterclaim
Answer to
permissive
counterclaim
In special proceedings
Reply
Counter
counter claim
Counter cross
claim
Need to be verified,
with certification
against forum
shopping, plus
payment of docket
fees
Succeeding
pleadings in
special
proceedings
Answer to counter
counter claim
Answer to counter
cross claim
Except when otherwise
provided by law or these
Rules, need not be verified
No need for certification
against forum shopping,
and not need for payment
of docket fees (Note:
compulsory counterclaim,
docket fees are
suspended)
Instances when verification
is needed:
Actionable
Complaint- a pleading alleging plaintiff’s cause and
causes of action
FLOW OF CIVIL PROCEDURE
I.
BARANGAY CONCILIATION PROCEEDINGS
General Rule with respect to Barangay Conciliation
Proceedings:
S412, LGC
No complaint, petition, action or proceedings
involving any matter within authority of the Lupon
shall be filed or instituted directly or indirectly in
court or in any other government office or
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 reacehed as certified by lupon or pangkat
chairman.
Exceptions to above rule:
16
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
S408, LGC
1.
2.
where one party is the government or any
subdivision or instrumentality thereof
where one party is a public officer or
employee, and the dispute relates to
performance of his official functions
offenses punishable by imprisonment
exceeding 1 year or a fine exceeding 5k
pesos
3.
offenses where there is no private offended
party
4.
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
5.
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
6.
such other classes of disputes which the
President may determine in the interest of
justice
7.
where one of the parties is a juridical entity
where the action may otherwise be barred
by the statute of limitations
11. in case of labor disputes
12. action to annul a judgment upon a
compromise
13. CARL disputes
14. Disputes involving traditions of an
indigenous cultural community
Does the Exclusive Original Jurisdiction of the RTC
on actions involving those incapable of pecuniary
estimation include provisional remedies as falling
within the category?
No, because provisional remedies are merely
ancillary to the main action. The category of actions
incapable of pecuniary estimation refers only to
main actions.
Purpose of Barangay Proceedings:
Reduce the number of litigations and prevent the
deterioration of the quality of justice which has been
brought about by indiscriminate filing of cases in the
courts. (Zamora vs Heirs of Izquierdo)
Venue of Barangay Conciliation Proceedings:
8.
where accused is under police custody or
detention
9.
where the person has otherwise been
deprived of personal liberty calling for
habeas corpus proceeding
Disputes between persons actually residing
in the same barangay shall be brought for
amicable settlement before the lupon of
said barangay
10. where the actions are coupled with
provisional remedies such as preliminary
injunction, attachment, delivery of personal
property, and support pendent lite
Those involving actual residents of
different barangays within the same city or
munipality shall be brought in the barangay
S409, LGC
17
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
where the respondent or any of the
respondents actually resides, at the election
of the complainant
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
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
Rules on appearance before Barangay Proceedings:
S415, LGC
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.
Effect of Amicable Settlement and Arbitration
Award:
S416, LGC
The amicable settlement and arbitration award shall
have the force and effect of a final judgment of a
court upon the expiration of 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 last paragraph of
S408 of this Code, in which case the compromise
settlement agreed upon by the parties before the
lupon shall be submitted to the court and upon
approval thereof, have the force and effect of a
judgment of said court.
Rules on execution of judgment in Barangay
Proceedings:
S417, LGC
The amicable settlement or arbitration award may
be enforced by execution by the lupon within 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.
Remedies of the parties in case of failure of
amicable settlement before the lupon:
1.
2.
3.
File the case before the proper court
Repudiate the agreement (S418, LGC)
File a petition before the MTC to nullify the
agreement (basis?)
Remedy in case of failure to comply with Barangay
Conciliation:
As defendant, file a motion to dismiss under R16 S1j
on the ground that a condition precedent has not
been complied with.
Motion to dismiss was granted, remedy of plaintiff?
Re file the case with the certification of having
undergone Barangay conciliation proceedings, as the
dismissal is without prejudice.
Motion to dismiss was denied, remedy of
defendant?
R16 S4 states that if the motion is denied, movant
shall file his answer within the balance of the period
granted by Rule 11 to which he was entitled at the
time of serving his motion, but not less than 5 days
in any event, computed from his receipt of the
18
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
notice of the denial. Proceed with the trial, and
when the decision is adverse, file an appeal raising
as error the ground for denial of the motion to
dismiss. When the denial is tainted with grave abuse
of discretion amounting to lack or excess of
jurisdiction, file petition for certiorari under Rule 65.
** In between Barangay conciliation and filing of
complaint, if real property is involved, plaintiff can
file adverse claim over the property, or can file
notice of lis pendens
(importance of knowing BP129 as amended by
RA7691 Rules on Jurisdiction)
Granted- Refile
Denied- State R16 S4 (yung BUONG SAGOT na Gusto
ni Boss Atty Tan)
Summary Procedure:
Cases covered:
1.
“buyer beware”
Notice to buyer of existence of an adverse
claim
o It is not a pleading
o There is need to register it with the
register of deeds
All cases of FE and UD, irrespective of the
amount of damages or unpaid rentals
sought to be recovered. Where AF are
awarded, the same shall not exceed 20k
2.
All other civil cases, except probate
proceedings, where the total amount of the
plaintiff’s claim does not exceed 100k OMM
or 200k MM exclusive of interests and costs
(as amended by AM 2-11-9-SC)
COMPLAINT
3.
Civil cases not higher than 100k- Subject to
the Rule on Small Claims
Notice of Lis Pendens
-
II.
Complaint (R6 S3)
The complaint is the pleading alleging the
plaintiff’s cause or causes of action.
Undergone Barangay Conciliation
Proceedings
NOTE: If the case undergone Barangay conciliation
proceedings first, there must be a specific allegation
in the complaint that there is compliance with
Barangay Conciliation proceedings
Pag wala, patay (?)- M2D S1j OR amend the
complaint (?)
GENERAL RULE on Summary Procedure: No Motion
to Dismiss is allowed (Prohibited Pleading)
EXCEPT:
1.
Lack of jurisdiction over the subject matter
of the claim
2.
Lack of jurisdiction over the person of the
defendant
3.
Failure to comply with Barangay
Conciliation Proceedings
Jurisdiction
IF, court has no jurisdiction, M2D R16 S1b
HOWEVER, with respect to SMALL CLAIMS CASES,
ABSOLUTE RULE: motion to dismiss is not allowed
19
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Reason: defeats the purpose of Small Claims
Proceedings
1.
2.
3.
-
The parties have validly agreed in writing
The agreement in writing was made before
the filing of the action
Exclusive venue is stipulated
Venue
Atty Tan’s comment:
Can be subject to stipulation of the parties
Rule 4 of the Rules of Court did not provide for MAY,
but SHALL
State: Rules on venue
R4 S1
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 unlawful detainer actions shall be
commenced and tried in the MTC of the municipality
or city wherein the real property involved or a
portion thereof is situated.
R4 S2
All other actions may be commenced and tried
where the plaintiff or any of the principal plaintiffs
resides, where the defendant or any of the
defendants resides, or in case of a non resident
defendant he may be found at the election of the
plaintiff.
R4 S3
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
EXCLUSIVITY OF VENUE- NOTE: Rule 4 SHALL NOT
APPLY... if
R4 S4
Suppose, Real property is subject of dispute (real
action). A lives in Pasay, B lives in Manila, the real
property is located in Davao. Following Rule 4 S1,
the suit should be filed in Davao, being the place
where the property or portion thereof is situated.
However, the parties can exclusively agree that the
venue can be filed in Baguio, provided that the
requisites of R4 S4 as to exclusivity of venue are
complied with
So, it means that Rule 4 S1 can be the subject of
agreement, and that the suit can be filed somewhere
else other than what S1 provides? (Parang ok lang
sana kung concern e personal action under R4 S2can be subject of agreement, pero venue of REAL
ACTION CAN BE SUBJECT OF AGREEMENT?! Labo
ata...)
Seems there is a loophole in Rule 4
If the venue is permissive,
Then the venue is in addition to the rules on
venue
Action was filed in the wrong venue:
I will file motion to dismiss under R16 S1c on the
ground that the venue is improperly laid
The motion was granted (court issues not a
judgment but an ORDER). Counsel for plaintiff.
Remedy?
20
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
I will refile the case in the court of the proper venue,
because the order of dismissal is without prejudice
(R16).
EXCEPT: if there exists grave abuse of discretion
amounting to lack or excess of jurisdiction, Certiorari
Rule 65 is the proper remedy
Plaintiff includes:
-
Defendant includes:
-
Motion to dismiss was denied. Remedy for
defendant?
Rule 16 S4
File an 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 5 days in
any event, computed from his receiving of notice of
denial. Then, go to trial. When the decision is
adverse, file an appeal raising as error the denial of
the motion to dismiss. If the denial of the motion is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction, file petition for
certiorari under Rule 65.
Motion to dismiss on the ground of improper venue
IS A PROHIBITED PLEADING under the Rules on
Summary Procedure, and more so in Small Claims
Remedy: raise the ground as an affirmative
defense
Parties
Counter counterclaimant
Counter cross claimant
Defendant in counter counterclaim
Defendant in counter cross claim
An unwilling co plaintiff or one who should
be joined as plaintiff but refuses to give
consent thereto (R3 S10)
A person necessary to a complete
determination or settlement of the
questions involved therein
Plaintiff
A person having an interest in the matter of
the action or in obtaining the relief
demanded
Defendant
A person claiming an interest in the
controversy or the subject thereof adverse
to the plaintiff
rd
3 party plaintiff
A defending party who may with leave of
court file against a third person not party to
rd th
the action called the 3 4 etc party
defendant a claim for contribution,
indemnity, subrogation, or any other relief
in respect of his opponent’s claim (R6 S11)
(R3 S1)
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,
rd th
the counterclaimant, cross claimant, or the 3 4 etc
party plaintiff. The term defendant may refer to the
original defending party, the defendant in the
rd
counterclaim, the cross defendant, or the 3 4th etc
party defendant.
Cross Claimant
A party to an original action who has a claim
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 (R6 S8)
21
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Real Party 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
provided by law or these rules, every action
must be prosecuted or defended in the
name of the real party in interest(R3 S2)
Indispensable Party
Representative party
R3 S3
Party 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. It may be:
-
An indispensable party is a party in interest
without whom no final determination can
be had of an action who shall be joined
either as plaintiff or defendant (R3 S7)
Trustee of an express trust
Guardian
Executor
Administrator
A party authorized by law or these rules
o (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)
Necessary Party
A necessary party is a party 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 (R3 S8)
Pro Forma Party
Parties who are required to be joined as co parties in
suits by or against another party as may be provided
by the applicable substantive law or procedural rule
EXAMPLE: Spouses- husband and wife shall sue or be
sued jointly, except as provided by law (R3 S4)
Who is a proper party?
Quasi Party
A proper Party is the same as a necessary party, a
party who is not indispensable but who is 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 (R3 S8)
Party those presence is necessary to adjudicate the
whole controversy, but those whose interests are so
far separable that final decree can be made in their
absence without affecting them (Quisumbing vs CA
GR 93335 9/13/1990)
Parties in whose behalf a class or representative suit
is brought
Not a real party in interest: Remedy?
MOTION TO DISMISS on the ground of failure to
state cause of action
Granted- refile
Denied:
22
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
I will file an answer within the balance of the period
prescribed by Rule 11 to which i am entitled at the
time of serving my motion, but not less than 5 days
in any event, computed from my receipt of notice of
denial. Then, proceed with the trial. In case of
adverse decision I will appeal the judgment and
assign as error the denial of the motion to dismiss.
Non joinder/Misjoinder of parties- not a ground for
motion to dismiss
IF so, remedy:
Amendment of the pleading (Rule 3 in relation to
Rule 10
However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction, then I will
file petition for certiorari under Rule 65.
Cause of Action
Act or omission by which a party violates a
right of another (R2 S2)
JOINDER OF PARTIES
Requisites:
1.
Right to relief arises out of the same
transaction or series of transactions
2.
Jurisdiction over plaintiffs and defendants
can be obtained
3.
There is question of law or fact common to
all plaintiffs or defendants
4.
Such joinder is not otherwise proscribed by
the provisions of the rules on jurisdiction
and venue
What are the elements of a cause of action?
1.
2.
3.
Plaintiff exercises a legal right
Correlative obligation the part of defendant
to respect plaintiff’s legal right
Defendant violates plaintiff’s legal right in a
manner contrary to law, morals, good
customs, public order, public policy
*STATE ALL CAUSES OF ACTION in the PLEADING!
IF NOT, remedy:
M2D R16 S1g- failure to state cause of action
R3 S6
GRANTED: refile; amend pleading
All persons in whom or against whom any right to
relief in respect to or arising out of the same or
series of transactions is alleged to exist, either
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.
Denied:
I will file an answer within the balance of the period
prescribed by Rule 11 to which i am entitled at the
time of serving my motion, but not less than 5 days
in any event, computed from my receipt of notice of
denial. Then, proceed with the trial. In case of
adverse decision I will appeal the judgment and
assign as error the denial of the motion to dismiss.
However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction, then I will
file petition for certiorari under Rule 65.
23
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Joinder of Causes of Action (R2 S5)
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. That 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 and actions governed by Special
Rules
If you are counsel for plaintiff, and the causes of
action are not joined, remedy?
File a motion to amend the complaint (as a matter or
right before a responsive pleading is filed, or with
leave of court after a responsive pleading is filed if
the amendment is substantial—Here, di ko alam
kung substantial to...) – R10 S2 and 3
Splitting a Single Cause of Action:
It is the act of dividing or indivisible cause of
action into several causes of actions and
bringing several actions thereon
Special Civil Actions:
1.
2.
3.
Interpleader (R62)
Declaratory Relief (R63)
Review of Judgments and Final orders or
resolutions of COMELEC, CoA (R64)
4. Certiorari, Prohibition, Mandamus (R65)
5. Quo Warranto (R66)
6. Expropriation (R67)
7. Foreclosure of Real Estate Mortgage (R68)
8. Partition (R69)
9. Forcible Entry and Unlawful Detainer (R70)
10. Contempt (R71)
INCLUDES: SPECIAL PROCEEDINGS
(SEGTARHHCVJCDC +)
Sum of money + Foreclosure of Mortgage = CANNOT
BE JOINED! (latter is a special civil action)
Hence, sue in alternative / either or
C.
Where the claims pertain to different
venues or jurisdictions, the joinder shall be
allowed in the RTC provided that it falls
within the jurisdiction of said court and the
venue lies therein
D. Where the claims in all causes of action are
principally for recovery of money, the
aggregate amount claimed shall be the test
of jurisdiction
R2 S3
A party may not institute more than one suit for a
single cause of action
R2 S4
If 2 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 dismissal of the others.
Supposing, the plaintiff split a single cause of
action, remedy?
As defendant, I will file a motion to dismiss on the
ground of litis pendencia or res judicata (R16 S1 e or
f)
GRANTED, remedy: APPEAL (dismissal is with
prejudice)
DENIED:
24
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
I will file an answer within the balance of the period
prescribed by Rule 11 to which i am entitled at the
time of serving my motion, but not less than 5 days
in any event, computed from my receipt of notice of
denial. Then, proceed with the trial. In case of
adverse decision I will appeal the judgment and
assign as error the denial of the motion to dismiss.
However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction, then I will
file petition for certiorari under Rule 65.
PLEADING / PARTS OF A PLEADING
Rule 7 S1
The caption sets forth:
a.
b.
c.
Name of the court
Title of the action
Docket number if assigned
statement of a single act of circumstances so far as
can be done with convenience.
A paragraph may be referred to by its number in all
succeeding pleadings.
Headings
When 2 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 second cause of action or answer to
the second cause of action and so on; and when one
or more paragraphs are addressed to several causes
of action, they shall be prefaced by words to that
effect.
Relief
The title of the action indicates the names of the
parties. They shall 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.
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 and equitable.
R7 S2
R7 S3
The body of the pleading shall set forth its:
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 certification by
him that
1.
2.
3.
4.
Designation
Allegation of the claims or defenses
Relief prayed for
Date of the pleading
Paragraph
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
Date
Every pleading shall be dated
1.
2.
3.
he has read the pleading,
that to the best of his knowledge,
information or belief there is good ground
to support it, and
that it is not interposed for delay
An unsigned pleading produces no legal effect
25
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
However, the court may, in its discretion, allow such
deficiency to be remedied if it appear that the same
was due to mere inadvertence and not intended for
delay.
1.
2.
3.
4.
Counsel who deliberately files unsigned
pleading
Signs a pleading in violation of these 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
What are the pleadings that need to be verified?
Petition for relief from judgment or order
(R38 S3)
Petition for review from RTC to CA (R42 S1)
Petition for review from CTA and q-j
agencies to the CA (R43 S5)
Appeal by certiorari from the CA to SC (R45
S4)
Petition for annulment of judgment or final
orders and resolutions (R47 S4)
R7 S4
Except when otherwise specifically required by law
or rule, pleadings need not be under oath, verified,
or accompanied by affidavit.
Complaint for injunction (R58 S4)
Application for appointment of receiver
(R59 S1)
A pleading is verified by an affidavit that
1.
2.
the affiant has read the pleading
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
1.
2.
3.
on information and belief or
upon knowledge, information and belief
or lacks a proper verification
shall be treated as an unsigned pleading
Application for support pendent lite (Rule
61 S1)
(all initiatory pleadings)
Original Complaint
Permissive Counterclaim
Cross Claim
rd
th
3 4 etc party complaint
Complaint in intervention
Petition
Is a jurat a part of a pleading?
(all Special Civil Actions)
The general rule is that pleadings need not be
verified. However, if the law or the Rules require
that a pleading be verified, verification is done by
way of affidavit. In an affidavit, there is a need for
jurat to be present. Hence, in a verified pleading, a
jurat becomes part of a pleading.
Interpleader (R62)
Declaratory Relief and Similar Remedies
(R63)
Review of Judgments and Final Orders or
26
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Writ of Habeas Data (
)
Resolutions of COMELEC, CoA (R64)
Change of Name (R103)
Petitions for certiorari, prohibition,
mandamus (R65)
Quo Warranto (R66)
Clerical Error Act (
)
Cancellation or Correction of Entries in the
Civil Registry (R108)
Expropriation (R67)
Foreclosure of Real Estate Mortgage (Rule
68)
Voluntary Dissolution of Corporations
(Corporation Code
)
Judicial Approval of Voluntary Recognition
of Minor Natural Children (Family Code,
)
Partition (R69)
Forcible Entry and Unlawful Detainer (R70)
Contempt (R71)
Constitution of the Family Home (Family
Code,
)
(all Special Proceedings)
Declaration of Absence and Presumptive
Settlement of Estate of Deceased (R73-90)
Escheat (R91)
Petition for guardianship of minors (AM ____-__-SC)
Petition for guardianship of incompetents
(R92-97)
Petition for custody of minors in relation to
habeas corpus, AM __-__-__-SC)
Trusteeship (R98)
Petition for Domestic Adoption (Domestic
Adoption Act,
)
Death (R107 in relation to Civil and Family
Code
)
Petition for declaration of Nullity and
Annulment of Marriage (
)
Petition for legal separation (
)
Pleadings not required be verified in the manner
and form prescribed by S4 of this Rule but the same
must be under oath:
Denial of genuineness and due execution of
actionable document (R8 S8)
Denial of allegations of usury (R8 S11)
Petition for inter country adoption (Inter
Country Adoption Act,
)
Motion to set aside default order (R9 S3b)
Habeas Corpus (R102)
Answer to written interrogatories (R25 S2)
Writ of Amparo (
)
Answer to request for admission (R26 S2)
27
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
The following pleadings or motion with affidavit or
affidavits of merit:
When the answer is based on an actionable
document (R8 S8)
Motion to postpone for absence of
evidence (R30 S3)
Answer under the Revised Rules on
Summary Procedure
Motion to postpone for illness of a party or
counsel (R30 S4)
Motion for summary judgment or
opposition thereto (R35 S1,2,3,5)
Answer in Small Claims Cases
Motion for new trial on the ground of fraud,
accident, mistake, or excusable negligence
or opposition thereto (r37 S2)
Petition for relief from judgment or order
(R38 S3)
Third party claim (R39 S16)
If the pleading is not verified, as counsel for
plaintiff, remedy?
File for judgment on the pleadings under Rule 34 S1,
on the ground of admission of material allegations of
the adverse party’s pleadings. Ground is based on
the fact that an answer is filed, but there is no
genuine issue because the allegations are deemed
admitted.
R34 S1
Proof required of a redemptioner (R39 S30)
Grounds for judgment on the pleadings:
Motion for preliminary attachment (R57 S3)
Motion for dissolution of preliminary
injunction (R58 S6)
Answer fails to tender an issue
Answer admits the material allegations of
the adverse party’s pleading
Application for writ of replevin (R60 S2)
Who can verify a pleading?
Claim against estate of a decedent (R86 9)
Motion for new trial on the ground of newly
discovered evidence in criminal cases (R121
S4)
Does the answer need to be verified?
A party need not sign the verification.
The following may sign verification:
Party
Party’s representative
Party’s Lawyer
Any person who personally knows the truth
of the facts alleged in the pleading
As a general rule, answers need not be verified, save
for following instances:
Answer to allegations of usury in a
complaint to recover usurious interests (R8
S11)
How about an authorized representative? Can he
verify?
Yes, if armed with proper authority from the party
(Through SPA?)
28
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R7 S5- certification against forum shopping
Plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading assisting a
claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith,
1.
that he has not theretofore commenced
any action or filed any claim involving the
same issues in any court, tribunal or quasi
judicial agency, and, to the best of his
knowledge, no such other claim or action is
pending therein
2.
if there is no 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 is filed or is
pending, he shall report that fact within 5
days therefrom to the court where 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 pleading but shall be cause for
dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing.
Forum shopping is an act of malpractice of filing
multiple suits in different courts either
simultaneously or successively, involving the same
parties, and asking the courts to rule on the same or
related causes and/or to grant the same or
substantially the same relief
3 ways of committing forum shopping:
Filing multiple cases based on the same
cause of action and with the same prayer
the previous not having been resolved (litis
pendencia)
Filing multiple cases based on the same
cause of action and with the same prayer,
the previous having been resolved with
finality (res judicata)
Filing multiple cases based on same causes
of action but with different prayers
(splitting cause of action on the ground of
litis pendencia or res judicata)
Pleadings requiring certification against forum
shopping:
Initiatory Pleadings
Original complaint
Permissive counterclaim
Cross claim
rd th
3 4 etc party complaint
Complaint in intervention
Petition
Submission of a false certification or non compliance
with any of the undertakings therein shall constitute
indirect contempt of court without prejudice to
corresponding administrative and criminal actions.
If acts of party or counsel clearly constitute wilful
and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice, direct
contempt, and cause for administrative sanctions.
Forum Shopping:
What is stated in certification against forum
shopping:
R7 S5
The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading
29
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith:
Willful and deliberate forum shopping
1.
2.
3.
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
If there is such other pending claim or
action, a complete statement of the present
status thereof
If he should thereafter learn that the same
or similar action or claim has been filed or is
pending, he shall report that fact within 5
days therefrom to the court wherein his
aforeseaid complaint or initiatory pleading
has been filed
If the acts of party or counsel clearly constitute wilful
and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice, direct
contempt, and cause for administrative sanctions.
Serves as FINAL ORDER, hence, appeal is the
proper remedy if motion to dismiss under
R16 S1j is granted
Remedies in case of failure to attach certification
against forum shopping:
As counsel for defendant, file motion to dismiss
under Rule 16 S1j on the ground that a condition
precedent has not been complied with.
States the effects of: (R7 S5)
Failure to attach certification against
forum shopping
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or pleading but shall be cause for
dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing.
Remedy is file motion to dismiss R16 S1j,
and if granted, plaintiff’s remedy is to refile
the case with the required certification,
unless if declared by the court as dismissal
with prejudice, hence, remedy is appeal
Motion to dismiss was granted, remedy?
As plaintiff, refile the case, on the ground that the
dismissal is without prejudice.
If the plaintiff committed wilful and deliberate
forum shopping, and the complaint was dismissed,
remedy?
As plaintiff, i will file notice of appeal under Rule 41,
because the dismissal is without prejudice, hence, in
the nature of a final order.
Define, enumerate, each pleadings:
Submission of a falser certification or non
compliance of any of the undertakings
therein
Submission of a false certification or non compliance
of any of the undertakings therein shall constitute
indirect contempt of court without prejudice to
corresponding administrative and criminal actions
Complaint (R6 S3)
The complaint is the pleading alleging the
plaintiff’s cause or causes of action.
Counterclaim (R6 S6)
Any claim which a defending party may
have against an opposing party
30
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Compulsory Counterclaim (R6 S7)
A counterclaim 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
Permissive Counterclaim (R6 S7)
A counterclaim which being cognizable by
the regular courts of justice does not arise
out of or is connected with the transaction
or occurrence constituting the subject
matter of the opposing party’s claim and
may require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction
Cross claim (R6 S8)
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
Answer (R6 S4)
Pleading in which a defending party sets
forth his defenses
Counter counterclaim (R6 S9)
A counterclaim that may be asserted
against an original counterclaimant
Counter crossclaim
A cross claim which may be filed against an
original cross claimant
Counterclaim
Original complaint
A
vs
B
Counterclaim
Counter Counter Claim
th
3rd 4 etc party complaint (R6 S11)
A claim that a defending party may, with
leave of court, file against a person not a
rd th
party to the action, called a 3 4 etc party
defendant for contribution, indemnity,
subrogation, or any other relief in respect of
his opponent’s claim
Complaint in intervention (R19 S1)
Pleading filed by an intervenor if he
answers a claim against either or all of the
original parties
Answer in intervention (R19 S3)
Filed by intervenor if he unites with the
defending party in resisting a claim against
the latter
Cross Claim
A
vs
B
and
C
(Original Complaint)
Cross Claim
Counter Cross Claim
Third Party Complaint
A vs B vs C (for CISA)
31
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
C is impleaded for CISA
Third party is impleaded
in the suit for CISA
Complaint In intervention
Third party has legal
interest and wants to be
impleaded in the suit
Initiatory Pleadings
A vs B
Requires payment of docket fees
C (or)
C wants to be impleaded in the action
Permissive Counterclaim vs Compulsory
Counterclaim (Simplified version)
THIRD PARTY
COMPLAINT
COMPLAINT IN
INTERVENTION
Rule 6
Rule 19
A claim that a defending
party may, with leave of
court, file against a
person not a party to the
rd th
action, called a 3 4 etc
party defendant for
contribution, indemnity,
subrogation, or any
other relief in respect of
his opponent’s claim
Pleading filed by an
intervenor if he answers
a claim against either or
all of the original parties
Intervenor is any person
who has a legal interest
in the matter in
ligitation, or in the
success of either of the
parties, or who has an
interest against both
parties, or who is so
situated as to be
adversely affected by the
distribution or other
disposition of property
in the custody of the
court or of an officer
thereof
Permissive CC
Compulsory CC
Does not arise out of or
is connected with the
transaction or
occurrence that is the
subject matter of the
opposing party’s claim
Arises out of or is
connected with the
transaction or
occurrence that is the
subject matter of the
opposing party’s claim
Needs verification and
certification against
forum shopping
Not
Docket fee is required to
be paid
Docket fees are
suspended
Failure to file answer
results in declaration of
default
not
may require for its
adjudication the
presence of third parties
over whom the court
cannot acquire
jurisdiction
Does not require for its
adjudication the
presence of third parties
over whom the court
cannot acquire
jurisdiction
Not barred even if not
set up in the action
Barred if not set up in
the action
Initiatory pleading
Not an initiatory
pleading
32
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
preservation of rights while the main action is
pending
3PC vs Third party claim
Third Party Complaint
Third Party Claim
Initiated by way of
complaint
By way of affidavit
Filed before the court
Filed before the sheriff
For CISA
Terceria
Pleading
Affidavit
Docket fees are required
to be paid
Not
PROVISIONAL REMEDIES
-
Lis Pendens vs Litis Pendencia
Lis Pendens
Litis Pendencia
“buyer beware”
Filing multiple suits in
different courts involving
same parties, same
causes of action, same
facts, same relief, the
identity of the 2 cases
such that any judgment
that may be rendered in
one case, regardless of
which party is successful,
would amount to res
judicata in the other
case
Notice to buyer of
existence of an adverse
claim
Notice
A ground for motion to
dismiss under Rule 16
Temporary, auxiliary, ancillary remedies
available to a litigant for the protection and
preservation of his rights while the main
action is pending
The following are the provisional remedies:
1.
2.
3.
4.
5.
Preliminary Attachment (Rule 57)
Preliminary Injunction (Rule 58)
Receivership (Rule 59)
Replevin (Rule 60)
Support Pendente Lite (Rule 61)
NOTE: Not Exclusive!
Protection orders
Provisional orders
Production orders
Witness protection orders
See: RA 9262, Rules on Nullity/Annulment
of Marriage/Legal Separation, Petition for
Custody of Minors, Writ of Amparo, Writ of
Habeas Data
NOTE ALSO:
Injunction and replevin can be main actions
in themselves
PROVISIONAL REMEDIES
Simultaneous or after filing of the original
complaint/pleading asserting a claim,
PROVISIONAL REMEDIES may be availed of,
ancillary to the main action for protection and
A. Preliminary Attachment (Rule 57)
When filed? (R57 S1)
At the commencement of the action or at any time
before entry of judgment, a plaintiff or any proper
party may have the property of the adverse party
33
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
attached as security for the satisfaction of judgment
that may be recovered in the following cases (See
grounds)
Grounds for preliminary
TINATANONG SA BAR!)
attachment
(NOTE:
f.
In an action against a party who does not
reside and is not found in the Phils, or on
whom summons may be served by
publication
Requirements: (Rule 57 S3)
1.
By way of motion or by way of complaint
2.
Verified application through
attached to motion or complaint
-
Stating the grounds
That there is no sufficient security
3.
Allegation of the ground necessitating the
need for preliminary attachment
4.
Posting of bond in an amount to be
determined by the court
Rule 57 S1
a.
In an action for recovery of a specified
amount of money or damages, other than
moral and exemplary, on a cause of action
arising from law, contract, quasi contract,
delict or quasi delict against a party who is
about to depart from the Phils with intent
to defraud his creditors
b. In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public
officer, or an officer of a corporation, or an
attorney, factor, broker, agent, or clerk, in
the course of his employment as such, or by
any other person in a fiduciary capacity, or
for a wilful violation of duty
c.
In an action to recover the possession of
property unjustly or fraudulently taken,
detained, or converted, when the property,
or any part thereof, has been concealed,
removed, or disposed of to prevent its
being found or taken by the applicant or an
authorized person
d. In an action against a party who has been
guilty of fraud in contracting the debt or
incurring the obligation upon which the
action is brought, or in the performance
thereof
e.
In an action against a party who has
removed or disposed of his property, or is
about to do so with intent to defraud his
creditors
Affidavit
How is attachment applied for?
By way of motion? Or by way of complaint?
EITHER
HOW?
At the commencement of the complaint
-
By verified complaint
At any time before judgment
-
By verified motion
Cany you apply for writ of attachment before the
MTC?
YES.
In all instances?
34
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
YES. Because under Summary Procedure, not a
prohibited pleading
-
That the writ was improperly or irregularly
issued or enforced
That the bond is insufficient
FE/UD- No
Amount 200k MM- yes
If the attachment is excessive, the discharge shall be
limited to the excess
100k- no
Ordinary Civil Actions- yes
Order of denial of motion to quash:
-
When is it necessary to issue summons?
INTERLOCUTORY, hence,
o M4R R65 S4
o Certiorari R65 S1, R41 S1b
In case of implementation of the preliminary
rd
attachment (3 stage)
Purpose of the bond:
-
Stages:
-
Publication
Order/Execution
o BOTH ARE EX PARTE
Implementation
o With Summons
How attached?
-
Garnishment
Levy on attachment
o Annotated on back of title, warning
on subsequent buyer subject to
outcome of the case
Remedy in case of issuance of writ of attachment:
To answer for damages incurred by the
adverse party in case writ of attachment is
improperly or irregularly enforced
Writ of Preliminary
Attachment
Covers real or personal
property
At the commencement
of the action or at any
time before entry of
judgment
Amount of the bond is
the
value
of
the
obligation (fixed by the
court)
May be resorted to even
if property is in the
possession of a third
person
Writ of Replevin
Covers only personal
property
Commencement of the
action or at any time
before answer
Amount of the bond is
double the amount of
the personal property
Can be sought only when
defendant is in actual
possession
of
the
property
R57 S12 and S13
B. Preliminary Injunction (Rule 58)
S12- Motion to discharge attachment upon giving of
counterbond
S13- Motion to quash the writ of attachment on the
ff grounds:
Injunction
-
Judicial writ, process, or proceeding
whereby a party is ordered to do or refrain
from doing a particular act
35
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
complained of, or in requiring the
performance of an act or acts, either for a
limited period or perpetually
Preliminary Injunction
-
An order granted at any stage of an action
or proceeding prior to the judgment
requiring a party or a court, agency, or a
person to refrain a particular act or acts
b.
That the commission, continuance, or non
performance of the act or acts complained
of during the litigation would probably work
injustice to the applicant, or
c.
That a party, court, agency, or a person is
doing, threatening, or is attempting to do,
or is procuring or suffering to be done,
some act or acts probably in violation of the
rights of the applicant respecting the
subject of the action or proceeding, and
tending to render the judgment ineffectual
Preliminary Mandatory Injunction
-
An order requiring the performance of a
particular act or acts
Denial- interlocutory
-
Remedy: certiorari
If FJ- appeal
Irreparable damage and injury
Can preliminary injunction be issued ex parte?
NO (?). TRO- yes
Writ of preliminary
injunction
A writ granted at any
stage of action or
proceeding prior to the
judgment or final order,
requiring a party or a
court, agency or person
from a particular act or
acts. It may also require
performance
of
a
particular act or acts, in
which case it shall be
known as a preliminary
mandatory injunction
TRO
An order to restrain
particular act or acts of a
party for a limited period
of time
How do you avail?
By way of MOTION or by way of VERIFIED
COMPLAINT
IF by verified complaint, at the commencement of
the action or before entry of judgment,
INCORPORATED IN THE BODY OF THE COMPLAINT
If by motion, then by an application for relief
complying with the Rules on Motion:
1.
In writing, [except those made upon in open
court or in the course of a hearing or trial ]
(R15 S2)
2.
Must be verified and accompanied by an
affidavit of merit if the ground for the
motion is FAME
GROUNDS for preliminary injunction (R58 S3):
a.
That the applicant is entitled to the relief
demanded, and the whole or part of such
relief consists in restraining the commission
or continuance of the act or acts
Of such constant and frequent recurrence
that no fair or reasonable redress can be
had therefore in court of law or where
there is no standard by which their amount
can be measured with reasonable accuracy
36
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
3.
Shall state the following (R15 S3)
a.
b.
c.
Relief sought to be obtained
Grounds upon which it is based
and
If required by these Rules or
necessary to prove facts alleged
therein, shall be supported by
supporting affidavits and other
papers
4.
Motion is set for hearing by applicant (R15
S4)
5.
Notice of hearing addressed to all parties
concerned, specifying the time and date of
hearing which must not be later than 10
days after the filing of the motion (R15 S5)
copy of the notice given by the postmaster to the
addressee.
8.
Effect of failure to comply with Sections, 4, 5, 6 of
Rule 15?
1.
2.
6.
7.
Motion and notice of hearing must be
served at least 3 days before the date of
hearing (3 day notice rule)
3.
4.
*the motion shall be treated as a worthless
piece of paper which the clerk of court has
no right to receive and the court has no
authority to act upon (mere scrap of paper)
It does not interrupt the running of the
prescriptive/reglementary period for the
filing of the requisite pleading
It will be ground for denial of the motion
The motion shall be considered as not filed
Proof of service of the motion
R13 S13
HOW?
Proof of personal service shall consist of:
-
If the motion is not served to the other
party by personal service, such mode
resorted to 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 (R13 S11)
Written admission of party served or
Official return of the server or
Affidavit of the party serving containing a
full statement of the date, place, and
manner of service
If by service is by ordinary mail, proof thereof shall
consist of an affidavit of the person mailing of facts
showing compliance with S7 of this Rule.
If service is by registered mail, proof shall be made
by such affidavit and registry receipt issued by the
mailing office
At the commencement of the complaint
-
By verified complaint
At any time before judgment
-
By verified motion
Status Quo Order
-
Order issued by the court to maintain the
last, peaceable, actual, uncontested
condition of the parties before the action or
proceeding
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
37
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
TRO- order restraining particular act or acts of a
party for a limited period of time; can be issued ex
parte
(RULE 58- AM 7-7-12)
Sec. 5. Preliminary injunction not granted without
notice; exception. No preliminary injunction shall be
granted without hearing and prior notice to the
party or persons sought to be enjoined. If it shall
appear from facts shown by affidavits or by the
verified application that great or irreparable injury
would result to the applicant before the matter can
be heard on notice, the court to which the
application for preliminary injunction was made,
may issue ex parte a temporary restraining order to
be effective only for a period of twenty (20) days
from service on the party or person sought to be
enjoined, except as herein provided. Within the
twenty-day period, the court must order said party
or person to show cause at a specified time and
place, why the injunction should not be granted.
The court shall also determine, within the same
period, whether or not the preliminary injunction
shall be granted, and accordingly issue the
corresponding
order.
However, subject to the provisions of the preceding
sections, if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable
injury, the executive judge of a multiple-sala court or
the presiding judge of a single-sala court may issue
ex parte a temporary restraining order effective for
only seventy-two (72) hours from issuance, but
shall immediately comply with the provisions of the
next preceding section as to service of summons
and the documents to be served therewith.
Thereafter, within the aforesaid seventy-two (72)
hours, the judge before whom the case is pending
shall conduct a summary hearing to determine
whether the temporary restraining order shall be
extended until the application for preliminary
injunction can be heard. In no case shall the total
period of effectivity of the temporary restraining
order exceed twenty (20) days, including the
original
seventy-two
hours
provided
herein.
In the event that the application for preliminary
injunction is denied or not resolved within the said
period, the temporary restraining order is deemed
automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of
any judicial declaration to that effect, and no court
shall have authority to extend or renew the same on
the same ground for which it was issued.
However, if issued by the Court of Appeals or a
member thereof, the temporary restraining order
shall be effective for sixty (60) days from service on
the party or person sought to be enjoined. A
restraining order issued by the Supreme Court or a
member thereof shall be effective until further
orders.
l
The trial court, the Court of Appeals, the
Sandiganbyan or the Court of Tax Appeals that
issued a writ of preliminary injunction against a
lower court, board, officer, or quasi-judicial agency
shall decide the main case or petition within six (6)
months from the issuance of the writ.
“Lifetime” (R57 S5 in relation to AM 7-7-12)
-
Effective only for a period of 20 DAYS from
service on the party or person sought to be
enjoined.
o Court to order said party or person
to show cause at a specified time
and place why injunction should
not be granted, w/n P injunction
should be granted, and accordingly
issue the corresponding order
-
IF the matter is of EXTREME URGENCY,
applicant will suffer grave injustice and
irreparable injury, executive judge of multi
38
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
sala court or presiding judge of single sala
court may issue EX PARTE TRO
o Effective for only 72 HOURS from
issuance,
 But shall immediately
comply with provisions of
the next preceding section
as to service of summons
and documents to be
served
-
Within the 72 hours, judge to conduct
summary hearing to determine whether the
TRO can be extended until application for
preliminary injunction can be heard,
o Total period of effectivity of TRO
shall NOT EXCEED 20 DAYS,
including the original 72 hours
provided therein
CA issues: effective for 60 DAYS from service on the
party or person sought to be enjoined
R70 S15
Court may grant preliminary injunction, in
accordance with the provisions of R58 thereof, to
prevent defendant from committing further acts of
dispossession against plaintiff.
A possessor deprived of possession through Fe or UD
may, within 5 days from filing of complaint, present
a motion in the action for FE UD for issuance of writ
of preliminary mandatory injunction to restore him
in his possession. The court shall decide the motion
within 30 days from filing thereof
R70 S20
Upon motion of plaintiff, within 10 days from
perfection of appeal to the RTC, the latter may issue
a writ of preliminary mandatory injunction to restore
plaintiff in possession if the court is satisfied that
-
SC or member issues: effective until further orders
defendant’s appeal is frivolous or dilatory,
or
that the appeal of plaintiff is prima facie
meritorious
AGAIN...
REMEDIES IN CASE OF PRELIMINARY INJUNCTION:
TRO- order restraining acts of a party for a limited
period of time
Granted: (Rule 57 S6)
-
quash the writ based on:
1.
2.
upon showing of insufficiency
on other grounds upon affidavits of the
party or person enjoined
if it appears after hearing that although
applicant is entitled to the injunction or
restraining order, the issuance or
continuance thereof, as a case may be,
would cause irreparable damage to the
party or person enjoined while applicant
can be fully compensated for such damages
he may suffer
20 days
72 hours (ex parte)- extreme urgency
20 days non extendible
Can the court issue injunction ex parte?
NO!- requires notice and hearing
Can MTC issue TRO?
3.
Ordinary Civil Actions- Pwede
Other requirements for quashal of writ:
Forcibly Entry / UnlawFul Detainer- YES
39
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1.
filing of bond in amount fixed by court
conditioned that he will pay all damages
which applicant may suffer by the denial or
dissolution of the injunction or restraining
order
Denied:
-
M4R
Certiorari Rule 65
Provisional remedy
Rule 58
An order granted at any
stage of an action or
proceeding prior to the
judgment requiring a
party or a court, agency,
or a person to refrain a
particular act or acts
Special civil action
Rule 65
Petition in case a person
exercising
J,
QJ,
Ministerial
Function
acted without jur or with
GAD amounting to lack
or excess of jurisdiction,
for respondent to desist
from
further
proceedings
Mandatory Injunction
Provisional Remedy
Rule 58
An order requiring the
performance
of
a
particular act or acts
Mandamus
Special Civil Action
Rule 65
Requires performance of
a ministerial act or to
desist from excluding
another from a right or
office (ministerial)
Directed
against
a
Judicial or quasi judicial
bodies
exercising
ministerial functions
Original action
By way of petition
Can there be injunction in criminal cases?
YES, in case of preliminary injunction with respect to
preliminary investigation (general rule, no, but the
enumerations are the exceptions)
1.
When prejudicial to the rights of the
accused
2.
When there is need for protecting the
Constitutional rights of the accused
3.
To Prevent the long arm of the law from
being vindictive
4.
When prejudicial question is involved in the
case
5.
In case of criminal prosecution under an
invalid law
Directed against a party
Provisional remedy
By way of motion
C.
Receivership (Rule 59)
-
Provisional remedy to preserve a property
subject of litigation from further loss,
wastage, damage, dissipation for the
protection of another person
Can MTC issue preliminary injunction?
YES, except in:
Where applied for?
Case falling under Summary Procedure, if the claim
being 100k (Small Claims), EXCEPT:
-
FE and UD
o R70preliminary
mandatory
injunction
and
preliminary
prohibitory injunction are allowed
Prohibitory Injunction
Prohibition
1.
2.
3.
Court where action is pending
CA
SC
Grounds: (R59 S1)
a.
When it appears from the verified
application, and such other proof
as the court may require, that the
party applying for the appointment
40
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
of receiver has an interest in the
property or fund which is the
subject of the action or
proceeding, and that such property
or fund is in danger of being lost,
removed, or materially injured
unless a receiver be appointed to
administer and preserve it
b.
c.
d.
When it appears in an action by
the mortgagee for the foreclosure
of mortgage that the property is in
danger of being wasted or
dissipated or materially injured,
and that its value is probably
insufficient to discharge the
mortgage debt, or that the parties
have so stipulated in the contract
of mortgage
After judgment, to preserve the
property during the pendency of
an appeal, or to dispose of it
according to the judgment, or to
aid execution when execution has
been returned unsatisfied or when
judgment obligor refuses to apply
his property in satisfaction of the
judgment or otherwise to carry the
judgment into effect
Whenever in other cases it appears
that the appointment of a receiver
is the most convenient and feasible
means
of
preserving,
administering, or disposing of the
property in litigation
During pendency of appeal, the appellate court may
allow an application for the appointment of a
receiver to be filed in and decided by the court of
origin and the receiver appointed to be subject to
the control of said court.
REQUIREMENTS:
1.
Verified motion in a complaint / Verified
complaint at commencement of action (R59
S1)
2.
Bond by applicant in an amount to be fixed
by the court to pay such person against
whom application is presented to pay such
party all damages he may sustain by reason
of the appointment of such receiver in case
the applicant shall have procured such
appointment without sufficient cause(R59
S2)
3.
Oath and Bond by receiver to faithfully
discharge of his duties in an action or
proceeding and obey court orders
IF pending appeal,
-
By verified complaint
IF after judgment,
-
By way of motion
NOTE: Receivership as provisional remedy applies to
all civil actions, while receivership of corporation is
an original action applicable only to corporations
under the Corporation Code of the Philippines
Receivership with appointment of receiver: pwede
Receivership with MTC: pwede, except in Small
Claims
General powers of receiver:
R59 S6
Subject to the control of the court in which the
action or proceeding is pending, a receiver shall have
the power to
41
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1.
Bring and defend, in such capacity, actions
in his own name
2.
Take and keep possession of the property in
controversy
2.
direct the delivery of the funds and other
property in his possession to the person
adjudged to be entitled to receive them,
3.
and order the discharge of the receiver
from further duty as such
3.
To receive rents
4.
To collect debts due to himself, as receiver
or to the fund, property, estate, person,
corporation to which he is the receiver
5.
To compound for and compromise the
same
D. REPLEVIN (Rule 60)
6.
To make transfers
-
7.
To pay outstanding debts
8.
To divide the money and other property
that shall remain among the persons legally
entitled to receive the same
9.
To do such acts respecting the property as
the court may authorize
The court shall allow the receiver such reasonable
compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated
party, or apportioned, as justice requires.
A provisional remedy for recovery of
personal property / reacquisition of
personal property subject of litigation
Can be a provisional remedy or a main action
-
If a main action, then it is an action for
recovery of unlawfully withheld personal
property in the possession of another
Jurisdiction/Venue:
However, funds in the hands of a receiver may be
invested only by order of the court upon the written
consent of all the parties to the action.
RTC or MTC (300k-400k OMM MM higher lower)
No action may be filed by or against a receiver
without leave of the court which appointed him
REQUIREMENTS: (R60 S2)
Termination of receivership; compensation of
receiver
Facts:
1.
a.
That applicant is the owner of the property
claimed, particularly describing it, or is
entitled to the possession thereof
b.
That the property is wrongfully detained by
adverse party, alleging cause of detention
thereof according to the best of his
knowledge, information, and belief
R59 S8
Whenever the court, motu proprio or on motion of
either party, shall determine that the necessity for
receiver no longer exists, it shall, after due notice to
all interested parties and hearing,
1.
settle the accounts of the receiver,
Verified Application (by affidavit)/complaint
before service of answer
42
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
c.
d.
That the property has not been distrained
or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of
execution or preliminary attachment, or
otherwise placed under custodia legis, or if
so seized, that it is exempt from such
seizure or custody
-
Nullity of marriage
Annulment of marriage
Legal separation
Custody of minors in relation to habeas
corpus
Criminal cases:
o Rape
o RA9262
The actual market value of the property
S1- Application
2.
Posting of bond by applicant in double the
value of the property stated in the affidavit
mentioned, for return of the property to
adverse party if such return be adjudged,
and for payment to adverse party of such
sum as he may recover from the applicant
in the action
At
-
Denied, REMEDY:
Counterbond double the amount of property
E.
SUPPORT PENDENTE LITE (Rule 61)
-
Amount of support provisionally fixed by
the court in favour of the person or persons
entitled thereto during the pendency of an
action for support
IMMEDIATELY EXECUTORY!
the commencement of the proper action or
proceeding,
or at any time prior to the judgment or final
order,
o a verified application for support
pendentee lite may be filed by any
party
 stating the grounds for
the claim and the financial
conditions of both parties,
and
 commenced by affidavits,
depositions, or other
authentic documents in
support thereof
S2- Comment
A copy of the application and all supporting
documents
Where filed?
FAMILY COURT
Why not in MTC? Because action for support is
incapable of pecuniary estimation
(Exception: Criminal cases falling under MTC
jurisdiction?)
When available?
-
shall be served upon adverse party,
o who shall have 5 days to comment
thereon
 unless a different period is
fixed by the court upon
his motion.
The comment shall be verified and shall be
accompanied by affidavits, depositions, or other
authentic documents in support thereof.
Action for support
Relief sought is support for applicant
43
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
S3- Hearing
1.
2.
After the comment is filed, or
after the expiration of the period for its
filing,
a. the application shall be set for
hearing not more than 3 days
thereafter
The facts in issue shall be proved in the same
manner as if proved for evidence on motions.
S5- enforcement of order
If the adverse party fails to comply with an order
granting support pendente lite, the court shall, motu
proprio or upon motion,
-
When the person ordered to give support pendente
lite refuses or fails to do so,
-
S4- Order
The court shall determine provisionally
1.
the pertinent facts, and
shall render such order as justice and equity may
require,
-
having due regard to the probable outcome
and such other circumstances as may aid in
the proper resolution of the question
involved.
In criminal cases
1.
the court shall fix
o the amount of money to be
provisionally paid,
o or such other forms of support as
should be provided,
 taking into account the
necessities
of
the
applicant and the
 resources or means of the
adverse party, and
 terms of payment or
mode for providing the
support.
If the application is denied, the principal case shall
be tried and decided as early as possible.
any third person who furnished that
support to the applicant may, after due
notice and hearing in the same case,
o obtain a writ of execution to
enforce his right of reimbursement
against the person ordered to
provide such support.
S6- Support in criminal cases
If the application is granted,
-
issue an order of execution against him,
o without prejudice to his liability for
contempt.
2.
where the civil liability includes support for
the offspring as a consequence of the crime
and civil aspect thereof has not been
waived, reserved, or instituted prior to its
filing,
a. the accused may be ordered to
provide support pendente lite to
the child born to the offended
party allegedly because of the
crime.
The application therefore may be filed successively
by the
-
offending party,
her parents,
grandparents,
or guardian
and the state in the corresponding criminal
case during its pendency,
44
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
o
in accordance with the procedure
established in this Rule.
-
S7- Restitution
When the judgment or final order of the court finds
that the person who has been providing support
pendente lite is not liable therefor,
-
it shall order the recipient thereof to return
to the former the amounts already paid
with legal interest from the dates of actual
payment,
o without prejudice to the right of
recipient to obtain reimbursement
in a separate action from the
person legally obliged to give the
support.
Should recipient fail to reimburse said amounts, the
-
person who provided the same may
likewise
o seek reimbursement thereof in a
separate action from the person
legally obliged to give such
support.
-
complaint
Interpleader (62)
Foreclosure of
mortgage (68)
Forcible entry /
UD (70)
Partition (69)
Expropriation
(67)
-
-
petition
declaratory
relief (62)
review
of
adjudication of
comelec, coa
(64)
c, m, p (65)
qw (66)
contempt (71)
1.
2.
Interpleader (62)
Declaratory Relief and other similar
remediesv (63)
3. Review of judgments, final orders,
resolutions of CoA, COMELEC (64)
4. Certiorari, Prohibition, Mandamus (65)
5. Quo Warranto (66)
6. Expropriation (67)
7. Foreclosure of Real Estate Mortgage (68)
8. Partition (69)
9. Forcible Entry/Unlawful Detainer (70)
10. Contempt (71)
Governed by Special Rules, Rules on ordinary civil
actions apply in a suppletory manner (OR is it the
other way? R1 states governed by rules on ordinary
civil actions, subject to specific rules prescribed in a
special civil action)
Examples:
Failure of action for support pendente lite, REMEDY:
VENUE
-
move for motion for execution
MOTION TO DISMISS
DENIED,
DEMURRER TO EVIDENCE
-
file petition for indirect contempt, for
disobedience to lawful order of the court
PARTS OF A PLEADING
INTERPLEADER (Rule 62)
SPECIAL CIVIL ACTIONS
(discussed in this stage because initiatory pleadings
are filed, by complaint or by petition, as the case
may be)
SCA initiated by
-
Initiated by way of complaint
S1- When proper
SCA initiated by
45
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
-
Whenever
-
conflicting claims upon the same subject
matter
o are or may be made against a
person who claims no interest
whatever in the subject matter or
o an interest in which in whole or in
part is not disputed by claimants,
 he may bring an action
against
conflicting
litigants to compel them
to interplead and litigate
their
several
claims
among themselves
issue an order requiring the conflicting
claimants to interplead with one another.
If the interests of justice so require,
-
the court may direct in such order
o that the subject matter be paid or
delivered to the court.
S3- Summons
Summons shall be served upon the conflicting
claimants, together with a copy of the complaint and
order.
NOTE: Person in possession has no legal interest
S4- Motion to dismiss
Interpleader
Rule 61
Without leave of court
Original / Special Civil
action
Filed by complaint for
interpleader
At any time
Intervention
Rule 19
With leave of court
Ancillary to main action
Within the time for filing an answer, each claimant
may
-
file motion to dismiss on the ground of
impropriety of the interpleader action or
on other appropriate grounds specified in
Rule 16.
If for plaintiff- complaint
in intervention
-
If for defendant- answer
in intervention
Before judgment
The period to file the answer shall be tolled and
if the motion is denied, the movant may file his
answer within the remaining period, which shall
not be less than 5 days in any event, reckoned
from the notice of denial. (See Rule 16 S4)
JURISDICTION:
RTC or MTC 20-50 real 300-400 personal higher
lower
VENUE:
Real- R4 S1
S5- Answer and other pleadings
Each claimant shall file his answer setting forth his
claim within 15 days from service of the summons
upon him,
Personal- R4 S2
-
S2- Order
Upon filing of the complaint, the court shall
serving a copy thereof upon each of the
other conflicting claimants,
o who may file their reply thereto as
provided in these Rules.
If any claimant fails to plead within the time therein
fixed, the court may, on motion,
46
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
-
declare him in default and
thereafter render judgment barring him
from any claim in respect to the subject
matter.
OTHER SIMILAR REMEDIES CONTEMPLATED which
applies the provisions of this Rule:
The parties in an interpleader action may file
rd
counterclaims, cross claims, 3 party complaints and
responsive pleading thereto, as provided in these
Rules.
NOTE: INSTRUMENT, not the elements of the
instrument—if such, e subject of another proceeding
to, annulment of contract
S6- Determination
After the pleadings of the conflicting claimants have
been filed, and pre trial has been conducted in
accordance with these Rules,
-
the court shall proceed to determine their
respective rights and adjudicate their
several claims.
-
reformation of an instrument
-
quiet title to real property or remove clouds
therefrom
-
consolidate ownership
In case of pacto de retro sale or foreclosure of
mortgage, not necessarily owner agad, hence, file for
consolidation of ownership under this Rule
(EXCLUSIVE) hence, if not, then not subject here
NOTE: DECLARATORY RELIEF is the only civil action
(special vis a vis ordinary) that can be filed even
before breach or violation thereof
In case of adverse Resolution,
JURISDICTION/VENUE:
Appeal pursuant to R40-42
Declaratory Relief:
-
DECLARATORY RELIEF AND OTHER SIMILAR
REMEDIES (R63)
Objective: (R63 S1)
RTC- incapable of pecuniary estimation
Queting of title:
-
MTC or RTC 20-50 OMM MM lower higher
Consolidation of ownership:
Interpretation/Construction of:
o
o
o
o
deed,
will,
contract, or
other written instrument, or
RTC- incapable of pecuniary estimation
Reformation of contracts:
-
RTC- incapable of pecuniary estimation
determining validity of:
o
o
o
o
o
statute,
executive order,
regulation,
ordinance, or
any other governmental regulation
Can the SC entertain petition for declaratory relief?
NO. BP129- RTC EO Jur, actions incapable of
pecuniary estimation
47
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Requirements:
S2- Parties
All persons who have or claim any interest which
would be affected by the declaration shall be made
parties, and
-
no declaration shall, except as provided in
these Rules,
o prejudice the rights of persons not
parties to the action.
S3- Notice on Sol Gen
In any action which involves validity of
-
statute,
EO, or
regulation, or
any other governmental regulation,
o The Sol Gen shall be notified by the
party assailing the same and
 shall be entitled to be
heard upon such question
REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTIONS OF THE COMELEC AND COMMISSION
ON AUDIT (Rule 64 [but applying Rule 65])
Constitutional Basis:
A9A S7 (basis of Rule 64)
Each Commission shall decide by majority of all its
Members in any case or matter brought before it
within 60 days from date of its submission for
decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing
of the last pleading, brief, or memorandum required
by the rules of the Commission or by the
Commission itself. Unless otherwise provided by
this Constitution or by law, any decision, order, or
ruling of each Commission may be brought to the SC
on certiorari by the aggrieved party within 30 days
from receipt of a copy thereof.
COVERAGE: (R64 S1)
Judgments, final orders, resolutions of COMELEC,
CoA
S4- Local government ordinances
S1- Scope
In any action involving the validity of a local
government ordinance,
Final orders or judgments of COA and COMELEC
-
the corresponding prosecutor or attorney
of the LGU involves shall be similarly
notified and entitled to be heard.
If such ordinance is alleged to be unconstitutional,
the Sol Gen shall also be notified and entitled to be
heard.
S2- Mode
SC- petition for certiorari under Rule 65
S3- Time
Within 30 days from notice of judgment
In case of adverse resolution
-
APPEAL R41
o (R40 to RTC if Quieting in MTC)
IF M4r denied, filed within remaining period and not
less than any event reckoned from notice of the
denial
NO FRESH PERIOD RULE, only in 40 41 42 43 45
48
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
S4- Docket, lawful fees
Pay, + 500 for costs
Filing of certiorari will not stay execution of
judgment, FO, resolution sought to be reviewed,
unless SC shall direct otherwise upon such terms as
may be just
Petitioner may apply for TRO or preliminary
injunction to stay execution
S5- Form/Contents
1.
2.
3.
4.
5.
6.
Verified petition, 18 copies, with certified
true copy of judgment
Respondent is Comelec or CoA, person
interested in sustaining
Finding of fact supported by substantial
evidence, final and non reviewable
State specific material dates showing it was
filed on time
Accompanied by sworn certification against
forum shopping
Proof of service of its copy on commission
and adverse party, and of payment of
docket and other lawful fees
S6- order to comment
-
Within 10 days from notice of order or
judgment, by respondent, or else, dismissed
Grounds for dismissal
1.
2.
3.
4.
Non compliance with form and contents
Non payment of docket and 500 for costs
Filed manifestly for delay
Questions are too unsubstantial to warrant
further proceedings
Rule 65
Applies to orders of
judicial, quasi judicial
court or tribunals
60 days from denial of
motion
for
reconsideration (AM 7-712-SC)
Motion
for
reconsideration
is
required
Petition filed before RTC,
CA, SC
Rule 64
Applies to judgments,
final orders, resolutions
of CoA and COMELEC
30 days from notice of
judgment or final order
or resolution sought to
be reviewed
NOT
Rule 43
Appeal/Petition
for
review of decisions of
Quasi Judicial Bodies
Rule 64
Petition for review of
judgments and final
orders or resolutions of
COMELEC and CoA
30 days from notice of
judgment or final order
sought to be reviewed
With the SC
15 days from notice of
award, final judgment,
resolution
With the CA
Petition filed before SC
CERTIORARI, PROHIBITION, MANDAMUS (Rule 65)
Constitutional Basis:
S7- Comments of respondents
-
18 copies
No other pleading may be filed unless
required or allowed by court
S8- Effect of filing
A8 S1 P2
Judicial Power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there is grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
government.
49
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
A8 S5 P2
-
6.
7.
8.
9.
What is the MATERIAL DATES RULE?
Review
Revise
Reverse
Modify
Affirm
o On appeal or certiorari, as the law
or the Rules of Court may provide,
final judgments and orders of
lower courts in:
All cases in which constitutionality or
validity of any
a. treaty,
b. international or executive
agreement
c. law
d. presidential decree
e. proclamation
f. order
g. instruction
h. ordinance
i. regulation
i. is in question
all cases involving the legality of any
a. tax
b. impost
c. assessment
d. toll
e. any penalty imposed in relation
thereto
all cases in which the jurisdiction of any
lower court is in issue
all criminal cases in which the penalty
imposed is reclusion perpetua or higher
10. all cases in which only an error or question
of law is involved
As far as Rule 65 is concerned, the following material
dates must be stated in the verified petition or else,
the petition would be denied:
1.
2.
3.
Notice of the order or judgment
Date of the filing of the motion for
reconsideration
Date of the denial of the motion for
reconsideration
Certiorari
-
Special civil action directed to an inferior
court, tribunal, board or officer directing
judicial or quasi judicial functions, to annul
or modify proceedings of such court,
tribunal, board or officer in the event that
the same has acted with grave abuse of
discretion amounting to lack or excess of
jurisdiction
o Seeks to correct errors of
jurisdiction
Prohibition
-
Special civil action directed against any
tribunal, board, officer or person exercising
judicial, quasi judicial, or ministerial
functions, to desist from further
proceedings in the event that the same
acted with grave abuse of discretion
amounting to lack or excess of jurisdiction
Mandamus
-
Special civil action directed against any
tribunal, corporation, board, officer or
person, to do the act required to be done to
protect the rights of petitioner and to pay
damages sustained by petitioner by reason
of the respondent’s wrongful act, in the
event that the same unlawfully neglected in
the performance of ministerial duty or
unlawfully excluded another from use and
50
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
enjoyment of a right or office to which such
other is entitled
2.
where question raised in the certiorari
proceedings have been duly raised and
passed upon by the lower court, or are the
same as those raised and passed upon by
the lower court
3.
where there is an urgent necessity for the
resolution of the question and any further
delay would prejudice the interest of the
government or the petitioner or the subject
of the action is perishable
4.
where under the circumstances, a motion
for reconsideration would be useless
5.
where petitioner was deprived of due
process, and there is extreme urgency for
relief
6.
where, in a criminal case, relief from an
order of arrest is urgent and the granting of
such relief by the trial court is improbable
7.
where the proceedings in the lower court
are a nullity for lack of due process
8.
where the proceeding were ex parte or in
which the petitioner had no opportunity to
object
9.
where the issue raised is one purely of law
or where public interest is involved
QUALIFICATIONS in ALL 3:
-
that there is no plain, speedy, or adequate
remedy in the ordinary course of law
Certiorari
discretionary
Mandamus
Ministerial
Prohibition
Discretionary and
ministerial
To annul order
To
order To
restrain
performance
performance
60 days from receipt of final judgment or order or from denial of
motion for reconsideration
Against entity or Against entity or Against entity or
person exercising j person exercising person exercising j,
or ej function
ministerial function
ej,
ministerial
function
Without or GAD
Unlawful neglect of Without or GAD
ministerial duty or
excluded another
from a right or
office
Correct errors of Performance of act To
restrain
or
jurisdiction
or desist from prevent usurpation
excluding another of jurisdiction
from a right or
office
Errors of Jurisdiction
Court acted with GAD
amounting to lack or
excess of jurisdiction
Action of the court
Correctible by certiorari
Rule 65
Errors of Judgment
Misapprehension of law
or facts by the court
Valid proceeding
Correctible by appeal
Rules 40-43, 45
General Rule: M4R is required to allow the court to
correct its errors
REQUIREMENTS:
1.
verified petition in 7 legible copies
2.
it should be filed not later than 60 days
from notice of judgment, order or
resolution sought to be assailed or from
denial of M4R
3.
contain full names and addresses of
petitioners and respondents, concise
statement of matters involved, factual
Exception:
1.
where the order is a patent nullity, as
where the court has no jurisdiction
51
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
background of the case, grounds relied
upon for the relief prayed for
4.
accompanied by clearly legible duplicate
originals or certified true copies of award,
judgment, order, resolution, ruling subject
5.
certification against forum shopping
6.
pay docket and lawful fees, 500 for costs
-
superior courts would not take cognizance
of a case brought before it unless the case
has been decided by the lower courts in the
exercise of its jurisdiction
Same principle in certiorari:
MTC to RTC- 60 days
RTC to CA- 60 days
CA to SC- 60 days
7.
serve copy upon adverse party or parties
and the court
8.
service and filing to be done personally,
with explanation if not done personally
65 vs 45 (simplified)
General rule:
Certiorari is not a substitute for lost appeal
Except:
-
denial of due process
-
appeal is not a remedy
o no appeal or no plain, speedy,
adequate remedy
Rule 65
60 days
Motion
for
reconsideration required
Questions of jurisdiction
SC, CA, RTC
Special civil action
Rule 45
15 Days
Not
Questions of law
SC
Mode of appeal/petition
for review
Rule 65 as amended by Am 7-7-12:
-
court without jurisdiction
-
when deprived of substantial rights
Note: in the cases, in event of denial of petition, and
in exercise of original jurisdiction, remedy is APPEAL
MTC to RTC- Rule 40
RTC to CA- Rule 41 (original), Rule 42 (appellate)
CA to SC- Rule 45
The above-stated is the PRINCIPLE OF HIERARCHY OF
COURTS
Sec. 4. When and where to file the petition.
The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or
resolution. In case a motion for reconsideration or
new trial is timely filed, whether such motion is
required or not, the petition shall be filed not later
than sixty (60) days counted from the notice of the
denial
of
the
motion.
If the petition relates to an act or an omission of a
municipal trial court or of a corporation, a board,
an officer or a person, it shall be filed with the
Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It
may also be filed with the Court of Appeals or with
the Sandiganbayan, whether or not the same is in
aid of the courts appellate jurisdiction. If the petition
involves an act or an omission of a quasi-judicial
52
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
agency, unless otherwise provided by law or these
rules, the petition shall be filed with and be
cognizable only by the Court of Appeals.
a.
a person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position, or franchise
In election cases involving an act or an omission of a
municipal or a regional trial court, the petition shall
be filed exclusively with the Commission on
Elections, in aid of its appellate jurisdiction.
b.
a public officer who does or suffers an act
which by provision of law constitutes a
ground for the forfeiture of his office
c.
an association which acts as a corporation
within the Phils without being legally
incorporated or without lawful authority to
act
NO MORE EXTENSION OF TIME IS GIVEN TO FILE
CERTIORARI!
*Sol Gen commences action (S2, S3)
Period: (S11)
M4R based on Rule 65
Of interlocutory order,
as preparation to file
certiorari
M4R based on Rule 37
Of final judgment or final
order, not including
interlocutory orders
Within 1 YEAR
-
after cause of ouster or right of petitioner
to hold such office, or position arose
Within 1 YEAR (action for damages)
QUO WARRANTO (Rule 66)
-
proceeding or writ issued by the court to
determine the right to the use or exercise of
an office, position or franchise and to oust
the person holding or exercising such office,
position or franchise if his right is
unfounded or if he had forfeited his right to
enjoy the privilege
-
after entry of judgment establishing
petitioner’s right to the office in question
in short...
within 1 YEAR from usurpation of public office
REMEDY IF DENIED: Appeal
Jurisdiction and Venue:
2 kinds of quo warranto:
1.
usurpation of public office
2.
dissolution of a de facto corporation
RTC, CA, SC
If Solicitor General files- RTC, CA, SC
If other person files- R4 S1 R4 S2
Rule 66 S1
An action for usurpation of a public office, position,
or franchise may be commenced by a verified
petition brought in the name of the Republic of the
Philippines against:
Quo Warranto Election
Code
Election Code
COMELEC, RTC. MTC
Omnibus Election Code
Not
Quo Warranto Rule 66
Rules of Court
RTC, CA, SC
Basis: A8 Consti, R66
Subject to BP129
53
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Can be filed with MTC
Contest right of elected
public officer to hold
public office
Ineligibility
or
disqualification
of
person elected to hold
the office
Within 10 days after
proclamation
of
candidate
Filed by any voter
Cannot be filed with
MTC
Show title to public
office or exercise public
franchise
Usurpation, forfeiture,
illegal association
Within 1 year from
usurpation of office
Filed by government or
person entitled to the
office
NOTE: Expropriation is an instance where multiple
appeals are filed (30 day record on appeal in case of
multiple appeal)
Why? 3 orders issued under Rule 67:
1.
2.
3.
Remedy of person after expropriation, no payment
made:
-
recover property from expropriator within 5
years after non payment
Expropriation (Rule 67)
Eminent Domain- right and authority of the State to
acquire private property for public use upon
observance of due process and payment of just
compensation
Expropriation- procedure to be observed in the
exercise of the right of eminent domain
FORECLOSURE OF MORTGAGE (Rule 68)
(Tan, Handbook on Civil Procedure and pleadings, pp
142-145)
Foreclosure
-
Constitutional Basis:
A3 S9
Private property shall not be taken for public use
without payment of just compensation
order of compensation
order of expropriation
final order of just compensation
action by which a mortgagee or pledge or
any other lien holder cuts off the right of
debtor whose property is pledged, because
of default in meeting the obligation
Foreclosure of Mortgage
-
termination of all the rights of the
mortgagor in the property covered by the
mortgage
Jurisdiction: RTC, incapable of pecuniary estimation
(BP129)
Venue: Where the property is located
Basis: (action involving title to or real property under
R4 S1)
CANNOT BE FILED WITH SC, because under EO jur of
RTC
Manner of foreclosure of mortgage:
Rule 68 S1
Contents of action:
1.
date and due execution of mortgage
2.
assignments, if any
54
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
3.
names and residences of mortgagor and
mortgagee
4.
description of mortgaged property
5.
statement of date of the note or other
documentary evidence of the obligation
secured by the mortgage
6.
amount claimed to be unpaid thereon
7.
names and residences of all persons having
of claiming interest in the property
subordinate in right to that of the holder of
the mortgage, all of whom shall be made
defendants in the action
Remedies of Mortgagee in case of default of
mortgagor/waiver of right to foreclose:
a.
Judicial or extrajudicial foreclosure of
mortgage
b.
Filing of ordinary action to collect debt
-
Here, under b, deemed to have waived his
right to proceed against the property in a
foreclosure proceeding
Right of Redemption
Exists in EJ foreclosure
By mortgagee within 1
year from registration of
the sale in the Office of
the Registry of Deeds
Nature of Action:
-
QUASI IN REM
Service of summons by publication
Equity of Redemption
Exists in J foreclosure
By mortgagor during not
less than 90 days nor
more than 120 days
from entry of judgment
or foreclosure or even
after foreclosure sale but
before
judicial
confirmation of the
same
Jurisdiciton/Venue:
MTC-RTC 20-50 OMM MM lower higher
J Foreclosure, no right of redemption, except only if
morgagee is a bank
Where real property or portion thereof is situated
(R4 S1)
PARTITION (Rule 69)
Classification of Foreclosure of Mortgage:
1.
JUDICIAL FORECLOSURE
To have the property seized and sold by the court
order to the end that the proceeds thereof be
applied to payment of plaintiff’s claim
2.
EJ FORECLOSURE
Possession of property sold may be given to
purchaser by sheriff after the period of redemption
had expired, unless there is a third person actually
holding the property adversely to the mortgagor
(Tan, Handbook on Civil Procedure and pleadings, pp
148-149)
-
Separation, division, assignment of a thing
held in common among those to whom it
may belong
Classes of partition:
1.
Voluntary- division of property by the act of
the parties themselves
2.
Compulsorypartition
by
judicial
proceedings at the instance of one or more
of the co tenants without regard to the
wishes of the other co tenants
55
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
MULTIPLE APPEALS- 30 day record on appeal (R69
S2)
Kinds of Partition
1.
Total- all the things are divided among the
participants
2.
Partial- when some of the things are
divided, the rest remaining in community
ownership
3.
Provisional- when it is temporary or
conditional, until a final or definite division
is made
4.
Definite- when the resulting division is
permanent, final, and absolute
5.
Judicial- takes place when court intervenes
and approves the petition
6.
Extrajudicial- division may be made by
testator himself or by some person named
by deceased or amicably by interested heirs
by common agreement (Rule 74 S1)
R69 S1
Why? (tingin ko lang)
Orders under Rule 69:
1.
2.
Order of partition
Order of accounting
NOTE: Partition is one mode of settlement of estate
of the deceased (relate to R75-77)
FORCIBLE ENTRY AND UNLAWFUL DETAINER (Rule
70 in relation to Rules on Summary Procedure)
(issue is that of possession)
(Tan, Handbook on Civil Procedure and pleadings, pp
153-158)
Real Action + Action in personam- involves
possession of real property, binding upon the parties
NOTE: 3 kinds of recovery of real property
A person having the right to compel partition of real
estate may do so as provided in this Rule, setting
forth in his complaint the nature and extent of his
title and an adequate description of the real estate
of which partition is demanded and joining as
defendants all other persons interested in the
property
1.
Accion interdictal- summary action for
recovery of physical possession of the
property where dispossession has lasted for
more than 1 year; FE or UD
2.
Accion publiciana- plenary action for
recovery of real right of POSSESSION
Covers: REAL or PERSONAL PROPERTY
3.
Accion reivindicatoria- action for recovery
of OWNERSHIP
Jurisdiction/Venue:
MTC RTC 20-50 300-400 OMM MM lower higher
R4 S1 R4 S2
Ejectment- form of action by which possessory titles
to corporeal hereditariments may be tried and
possession obtained which lies to regain possession
of real property, with damages for illegal detention
2 kinds: FE and UD
In case of adverse resolution:
Forcible Entry
Person
in
physical
Unlawful Detainer
Withholding by a person
56
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
possession of land was
deprived of possession
through FISTS
Unlawful ab initio
Not require demand to
vacate
Prove prior possession
until deprived
1 y from date of actual
entry on land
of possession of land or
building
Legal but becomes illegal
Pay
AND
vacate;
jurisdictional
No need to prove prior
physical possession
1 year from date of last
demand
Filed by: R70 S1
Person deprived of possession of land or building by
FISTS, or lessor, vendor, vendee, other person
against whom possession of any land or building is
unlawfully withheld
Jurisdiction/Venue:
MTC of the place where property or portion thereof
is situated (R4 S1)
Proceedings SUMMARY IN NATURE! (Rules on
Summary Procedure)
Pertinent Provisions of the Rules on Summary
Procedure:
(note the same... applies to all cases subject to Rules
on Summary Procedure, ESPECIALLY PROHIBITED
PLEADINGS AND MOTIONS)
S3- Pleadings
The only pleadings allowed to be filed are the:
1.
2.
3.
4.
Complaints
Compulsory counterclaims
Cross claims pleaded in the answer
Answers thereto
VERIFIED!
S4- Duty of the 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.
S5- 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 or
cross claims shall be filed and served within 10 days
from service of the answer in which they are
pleaded.
-
Within 10 DAYS from service of summons
o Rule 70
o Summ Pro
S6- Effect of Failure to answer
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. Provided, however, that the court may in its
discretion reduce the amount of damages and AF
claimed for being excessive or otherwise
unconscionable.
This is without prejudice to
applicability of R15 S4 of the Rules of Court, if there
are 2 or more defendants.
S7- 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 cause for dismissal
of the complaint. The defendant who appears in the
absence of plaintiff shall be entitled to judgment on
57
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
his counterclaim in accordance with S6 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 S6
hereof. This Rule shall not apply where one of 2 or
more defendants sued under a common cause of
action who had pleaded a common defense shall
appear at the preliminary conference.
S8- 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 into
by the parties
c.
Whether, on the basis of the pleadings and
the stipulations and admissions made by
the parties, judgment may be rendered
without the need of further proceedings, in
which effect 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
S9- 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.
S10- 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 matter to be clarified,
and require the parties to submit affidavits or other
evidence 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.
S18- Referral to Lupon
Cases requiring referral to the Lupon under the
provisions of PD1508 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.
S19- 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 a judgment, or for opening 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 defendant in default
58
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Forcibly Entry / UnlawFul Detainer- YES
i.
Dilatory motions for postponement
j.
Reply
k.
Third party complaints
l.
Interventions
R70 S15
S20- Affidavits
The affidavits required to be submitted under this
Rule shall state only facts of direct personal
knowledge of the affiants which are admissible in
evidence, and shall show their competence to testify
to the matters stated therein.
A violation of this requirement may subject the party
or the counsel who submits the same to disciplinary
action, and shall be cause to expunge the
inadmissible affidavit or portion thereof from the
record.
S21- Appeal
The judgment or final order shall be appealable to
the appropriate RTC which shall decide the same in
accordance with S22 of BP129. The decision of the
RTC in civil cases governed by this Rule including
forcible entry and unlawful detainer, shall be
immediately executor, without prejudice to a further
appeal that may be taken therefrom. S10 of Rule 70
shall be deemed repealed.
Court may grant preliminary injunction, in
accordance with the provisions of R58 thereof, to
prevent defendant from committing further acts of
dispossession against plaintiff.
A possessor deprived of possession through Fe or UD
may, within 5 days from filing of complaint, present
a motion in the action for FE UD for issuance of writ
of preliminary mandatory injunction to restore him
in his possession. The court shall decide the motion
within 30 days from filing thereof
R70 S20
Upon motion of plaintiff, within 10 days from
perfection of appeal to the RTC, the latter may issue
a writ of preliminary mandatory injunction to restore
plaintiff in possession if the court is satisfied that
-
defendant’s appeal is frivolous or dilatory,
or
that the appeal of plaintiff is prima facie
meritorious
CONTEMPT (Rule 71)
-
15 DAYS from notice of judgment or final
order, notice of appeal + bond to RTC
o NO M4R (prohibited pleading)
However, if RTC decision adverse, (in exercise of
appellate jurisdiction), M4R pwede na
-
MTC Summary Procedure, only up to MTC
level lang
o Once the case was elevated to RTC,
it is no longer summary, but is
governed by rules on Ordinary Civil
Actions
(Tan, Handbook on Civil Procedure and pleadings, pp
162-166)
Contempt
-
wilful disregard or disobedience to court,
acting in opposition to authority, justice,
dignity
Contempt of Court
-
conduct which tends to bring authority and
administration of law into disrespect or to
Injunction in FE and UD:
59
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
interfere with or prejudice parties litigant or
their witnesses during litigation
Remedy: CERTIORARI or PROHIBITION (R71 S2)
2 classifications of contempt:
1.
2.
Direct Contempt (R71 S1)
Indirect Contempt (R71 S2)
2.
INDIRECT CONTEMPT (S3)
-
Main / Original action
o Can be filed in RTC or MTC
Actions covered:
DISCUSSION:
a.
1.
DIRECT CONTEMPT (S1)
-
A remedy
Acts covered:
-
Misbehaviour in presence of or so near the
court as to obstruct or interrupt
proceedings before the same
-
Disrespect toward the court
-
Offensive personalities towards people in
court
-
Refusal to be sworn or to answer as a
witness
-
Refusal to subscribe an affidavit or
deposition when lawfully required to do so
b. Disobedience of or resistance to a
lawful writ, process, order,
judgment of a court, including act
of person who, after being
dispossessed or ejected from any
real property by the judgment or
process of any court of competent
jurisdiction, enters or attempts or
induces another to enter into or
upon such real property, for the
purpose of executing acts of
ownership or possession, or in any
manner disturbs possession given
to the person adjudged to be
entitled thereof
Punishment:
(RTC/of equivalent or higher rank)
F: not exceeding 2k OR
I: not exceeding 10 days, OR BOTH
(lower court)
Misbehaviour of an officer of a
court in the performance of his
official duties or in his official
transactions
-
Note highlighted: case in MTC where case is
pending
If after ejectment, re entered the property,
indirect contempt (relate to Rule 70)
c.
Any abuse
interference
proceedings
constituting
under S1
of or any unlawful
with the processes or
of the court not
direct contempt as
F: not exceeding 200
I: not exceeding 1 day, OR BOTH
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
d.
e.
Improper conduct tending, directly
or indirectly, to impede, obstruct,
degrade administration of justice
Assuming to be an attorney or
officer of the court and acting as
such without authority
f.
Failure to obey subpoena duly
served
g.
The rescue, or attempted rescue,
of a person or property in the
custody of an officer by virtue of
an order or process of a court held
by him
Remedy: (R71 S11)
Appeal to proper court as in criminal cases
Rule 13
Section 14
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,
Direct Contempt
In presence of a judge,
motu proprio or upon
motion
Cant initiate
In presence or so near
judge
Rem: certiorari
remedy
Indirect Contempt
or encumbrancer
of the property affected thereby,
Initiate
Not in presence of judge,
disobey court order
Rem: appeal
Original action
Upon filing of complaint, plaintiff may opt to file
notice of lis pendens with the register of deeds
be deemed to have constructive notice of the
pendency of the action, and
only its pendency against the parties designated by
their real names
The notice of the lis pendens hereinabove
mentioned
may be cancelled
Notice of Lis Pendens
“buyer beware”
Notice to buyer of existence of an adverse
claim
It is not a pleading
There is need to register it with the register
of deeds
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
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
By delivering personally a copy to the party
or his counsel or
By leaving it in his office with the clerk or a
person having charge thereof
FILING AND SERVICE of the pleading
Differentiate: Filing from service
If no person is found in his office or his office is not
known or he has no office, then,
R13 S2
Filing is the act of presenting the pleading or paper
to the clerk of court.
By leaving the copy between the hours of 8
in the morning and 6 in the evening at the
party’s or counsel’s residence, if known,
with a person of sufficient age and
discretion then residing therein
Service is the act of providing a party with a copy of
the pleading or paper concerned.
NOTE: NO TENDERING under Rule 13 S6!
What are the papers required to be filed and served
under Rule 13?
Sa summons lang yon, when defendant
refuses to accept the same
(PAMNOJDORS)
Pleading subsequent to the complaint
Appearance
Written Motion
Notice
Order
Judgment
Demand
Offer of judgment
Resolution
Similar papers
Service by mail
R13 S7
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 prepaid and with
instructions to the postmaster to return the
mail to the sender after 10 days if
undelivered
What are the modes of service of pleading? (R13
S5)
Personal Service (R13 S6)
Service by Registered Mail (R13 S7)
Substituted Service (R 13 S8)
How is it done?
If no registry service is available in the locality of
either in the sender or the addressee, service may be
done by ordinary mail.
IF defendant refuses both modes of service, resort
to:
Personal Service
R13 S6
Substituted Service
R13 S8
Service of papers may be made
62
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
If service of pleadings, motions, notices, resolutions,
orders, or other papers cannot be made under the 2
preceding section, 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.
5.
Rather, the pleading produces no legal
effect
When is service deemed completed?
Personal Service (R13 S10)
Personal service is complete upon actual delivery or
by handling a copy to defendant
Service by mail (R13 S10)
Note: Wag ipaghalo ang provisions ng Rule 13 and
Rule 14!!!
Service by ordinary mail is complete upon the
expiration of 10 days after mailing, unless the court
otherwise provides.
Effect of non compliance with personal service?
Service by registered mail is complete upon actual
receipt by the addressee or after 5 days from the
date he received the first notice of the postmaster,
whichever date is earlier.
Note: Service other than personal service
Substituted Service (R13 S8)
R13 S11
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.
Substituted service is complete at the time of
delivery of the copy to the clerk of court, with proof
of failure of both personal service or service by
mail.
What is constructive service of pleading?
R13 S10
Service by registered mail is complete..
..after 5 days from the date he received the notice of
the postmaster, whichever date is earlier
State in detail: Effects
1.
2.
3.
4.
A violation of this rule may be cause to
consider the paper as not filed (R13 S11)
The pleading/paper would not be
admissible in court
Would not toll the running of the
reglementary period
In case of defendant, it will NOT RESULT in
defendant being declared in default
FILING- Rule 13 S1- with the office with the clerk of
court
Required in ALL INITIATORY PLEADINGS
+ PAYMENT OF THE REQUISITE DOCKET FEES (See
Rule 1 Section 5)
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Pag kulang, court to order correct payment
NOTE: Docket fees are suspended in
compulsory counterclaims (SC Resolution 921-04)
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 you cannot pay docket fees, REMEDY?
File a motion to be declared as pauper
litigant (R3 S21)
If payment is not made within the time fixed by the
court,
execution shall issue or the payment thereof,
R3 S21- 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 the 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
-
without prejudice to such other sanctions as the
court may impose
After filing of the complaint and the payment of the
requisite legal fees,
III. SERVICE OF SUMMONS
Summons
docket and
other lawful fees, and
of transcript of stenographic notes
Writ or process in the name of the RP,
issued by the Branch clerk of court
informing the defendant of the filing of the
case against him, to file an answer within
the reglementary period, or else, be
declared in default
which the court may order to be furnished him
The amount of 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,
o unless the court otherwise
provides
Office of the Clerk of
Court
Branch Clerk of Court
Office
Person
Receives complaint and
payment of the docket
fees
Serves summons upon
the defending party
Any adverse party
may contest the grant of such authority
2 kinds of summons:
at any time before the judgment is rendered by the
trial court
1.
Original Summons- issued by the branch
clerk of court to the defendants upon the
filing of the complaint and the payment of
the requisite docket fees
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2.
Alias Summons- issued by the branch clerk
of court upon motion of the plaintiff in case
the summons are lost, destroyed,
improperly served, or there is defect in the
manner or form of service
Summons
Subpoena
a writ or a process issued
to a defending party by
the clerk of court,
delivered by a sheriff, his
deputy, or proper court
office, or any suitable
person authorized by the
court issuing the
summons, with the
purpose of obtaining
jurisdiction over the
person of the defendant
and giving him notice
that an action has been
commenced against him
(R21 S1)
Purpose is to obtain
jurisdiction over person
of defendant, and to give
notice to defendant that
an action has been
commenced against him,
ordering defendant to
answer the complaint
within the time fixed by
these Rules, and unless
defendant answers,
plaintiff will take
judgment by default and
may be granted the
A process directed to a
person requiring him to
attend and to testify at
the hearing or trial of an
action, or at any
investigation conducted
by competent authority
or for the taking of his
deposition. (Subpoena
ad testificandum)
A process directed to a
person requiring him to
bring with him any
books, documents, or
other things under his
control (Subpoena duces
tecum)
Order for a person to
appear and to testify at a
hearing, action,
investigation, or for
taking of his deposition
OR to produce books,
documents, or other
things under his control
(R21 S1)
relief applied for (R14
S2)
Served on the defendant
May be served to a nonparty
Does not need tender of
kilometrage and other
fees
Needs tender of
kilometrage, attendance
fee, and reasonable cost
of production fee
Original or alias
Ad testificandum or
duces tecum
Upon filing of the
complaint and payment
of requisite docket fees
During trial or
investigation
Note: significant to know whether the action is in
personam, in rem, or quasi in rem—for purpose of
service of summons
FE and UD- in personam actions
IN PERSONAM
Service in person
Substituted service
IN REM
Service in person
Substituted Service
Publication
Extraterritorial Service
QUASI IN REM
Service in person
Substituted service
Publication
65
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Can you serve summons by mail?
2.
NO
How to serve summons?
Service in person on defendant (R14 S6)
The summons shall be served by handing a copy
thereof to the defendant in person.
Through process server or upon motion- by service
of summons by substituted service
How is a person deemed of suitable age and
discretion?
1.
2.
Tendering summons to defendant (R14 S6)
In case defendant refuses to receive or sign for it, by
tendering it to him, done through:
1.
2.
Leaving copy of the summons to the
defendant who refuses to receive it
The officer serving the summons shall make
an affidavit addressed to the court stating
that the time, place, manner of service of
summons, and that despite efforts to try
and serve the summons in person on
defendant, the same refused to receive it,
as well as the manner of non-receipt
Substituted Service of Summons on
defendant (R14 S7)
Requisites;
R14 S15
Service by leave of court by publication in a
newspaper of general circulation in such place 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.
Suffices under the following instances:
1.
Upon defendant designated as unknown
owner or the like, or whenever his
whereabouts are unknown and cannot be
ascertained by diligent inquiry (R14 S14)
2.
When defendant does not reside and is not
found in the Philippines, and the action:
(AREA—R14 S15)
-
Affects personal status of the plaintiff or
Relates to, or the subject of which, is
property within the Philippines in which
To whom served / how?
By leaving copies of the summons at:
Defendant’s residence with some person of
suitable age and discretion then residing
therein or
Of legal age
With sufficient knowledge and
comprehension that what he is receiving on
behalf of defendant are summons notifying
defendant that a suit was brought against
the same, AND PREFERABLY KNOWS HOW
TO SPEAK ENGLISH
Service by publication in a newspaper of
general circulation
Impossibility of the personal service of
summons within a reasonable time
The efforts exerted to locate the person to
be served
1.
By leaving the copies at defendant’s office
or regular place of business with some
competent person in charge thereof
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
-
-
3.
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
When defendant ordinarily resides in the
Philippines but who is temporarily out of it
(R14 S16)
Can there be personal service of summons in in rem
actions?
Yes. R14 S15 states that when 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 defendant has or claims a
lien or interest, actual or contingent, or in which the
relief demanded consists, wholly or in part, in
excluding defendant from any interest therein, or
the property of defendant has been attached within
the Philippines, service may, by leave of court, be
effected out of the Philippines by:
1.
Personal service as under S6**
2.
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 defendant, or
3.
In any other manner the court may deem
sufficient
Substituted Service vs Extraterritorial Service of
Summons
Substituted Service
Requisites;
Impossibility of the
personal service of
summons within a
reasonable time
The efforts exerted to
locate the person to be
served
Arises in case defendant
is non resident, in
abroad, action in rem, by
way of personal service
outside of Phils, by
publication in a
newspaper of general
circulation, or in any
other manner the court
may deem sufficient
To whom served / how?
By leaving copies of the
summons at:
Defendant’s residence
with some person of
suitable age and
discretion then residing
therein or
By leaving the copies at
defendant’s office or
regular place of business
with some competent
person in charge thereof
Through process server
or upon motion- by
service of summons by
substituted service
R14 S14
In any action where the defendant is designated as
an unknown order, 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.
Extraterritorial Service
67
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
-
Instance where in personam, yet
publication is allowed (exception to the
general rule)
o Identity is unknown or
whereabouts are unknown
Defective service of summons, remedy:
M2D Rule 16 S1a, that the court has no jurisdiction
over the person of the defending party
Reason: the court cannot proceed with the case
without jurisdiction over the person of the defending
party
Exception to exception: SMALL CLAIMS
To whom summons are made?
1.
Upon an entity without juridical
personality
3 options of the court:
1.
2.
GRANT M2D- as plaintiff, refile the case,
unless tainted with grave abuse of
discretion
DENY M2D
As defendant, following Rule 16 S4, I will file an
answer within the balance of the period prescribed
by Rule 11 to which I am entitled at the time of
serving my motion, but not less than 5 days in any
event, computed from my receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse against me, I will file an appeal assigning as
error the denial of the motion to dismiss. And when
the denial is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of the court, I will file for certiorari under Rule
65.
3.
ISSUANCE OF ALIAS SUMMONS
R14 S8
When persons associated as an entity without a
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.
Upon Prisoners
R14 S9
When defendant is a prisoner confined in a jail or
institution, service may be effected upon him by the
officer having the management of such jail or
institution who is deputized as a special sheriff for
said purpose.
Can Rule 16 S1a be a ground for Motion to dismiss
under Rules on Summary Procedure?
YES. General rule, motion to dismiss not allowed,
except #1 instance, lack of jurisdiction over the
person of the defending party (RULES ON SUMMARY
PROCEDURE)
Ordinary defendant
Upon Minors and Incompetents
R14 S10
When defendant is a minor, insane, or otherwise an
incompetent, service shall be made upon him
personally or on his legal guardian if he has one, or
68
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
if none, upon his guardian ad litem whose
appointment shall be applied for by the plaintiff. In
case of a minor, service shall be made on his father
or mother.
Upon domestic private juridical entity
R14 S11
When the defendant is a corporation, partnership, or
association organized under the laws of the
Philippines without a juridical personality, service
may be made on the President, Managing Partner,
General Manager, Corporate Secretary, Treasurer,
or In House Counsel
NOTE: the LIST IS EXCLUSIVE!!!!!
Service upon foreign private juridical entity
R14 S12
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.
Service upon public corporations
R14 S13
When the defendant is the Republic of the
Philippines, service shall be made 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.
R14 S14
In any action where the defendant is designated as
an unknown order, 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.
Extraterritorial Service
R14 S15
When the defendant does not reside and is not
found in the Philippines, and the action affects the
personal status of 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 party, in excluding
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 S6; 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 60 days after notice, within which the
defendant must answer.
Upon residents temporarily out of the
Philippines
R14 S16
Service upon defendant whose identity or
whereabouts are unknown
69
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
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.
If summons cannot be served because non resident,
unknown, or out of the Phils, as plantiff, what is your
remedy?
1.
Complaint in intervention- because third
person submitted to jurisdiction of the
court
2.
Not in permissive counterclaim- because
defendant aka original plaintiff is already a
party to the action, jurisdiction over him in
original complaint was already taken from
the start
3.
In case of formal not substantial
amendments
Convert action in personam to quasi in rem
A vs B Corporation, action for sum of money.
Amend the complaint, action for sum of money
WITH ATTACHMENT OF PROPERTY. Hence,
summons by publication can already be made.
Court acquires jurisdiction over the RES
Because nature of the case has become
quasi in rem
(relate to Rule 10)
As far as amendment of the pleading, is summons
required to be served?
YES, in the following instances:
1.
Substantial not merely formal amendment
2.
Other parties are impleaded
3.
With respect to third party complaint, serve
upon third party defendant (relate to R6
S11)
4.
With respect to fourth party complaint,
th
serve upon 4 party defendant (relate to R6
S11)
May bayad ba summons?
WALA!
Pag pinaserve mo sa process server, meron, but not
required (abutan mo na lang para hindi kawawa, sige
ka, baka hindi i serve)
Relate Rule 14 to Rule 57
Order of attachment, writ of attachment,
issued ex parte
To implement, serve summons
Relate Rule 14 to Rule 58
Ex parte issuance of preliminary injunction
To implement, serve summons
Court not to issue injunction unless there is invalid
service of summons
Notice and hearing
NOT in:
EXCEPTION TO SERVICE OF SUMMONS:
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Voluntary appearance
1.
2.
Filed responsive pleading
Submitted to jurisdiction of the court,
EXCEPT:
When questioning the jurisdiction of the
court
Motion for Bill of Particulars (Rule 12)
Motion to amend the pleading (Rule 10)
Motion for Extension of Time to File
Responsive Pleading (Rule 11)
Motion for Summary Judgment (Rule 35)
Rule 14 S20
S20- Voluntary appearance
The defendant’s voluntary appearance 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.
Can the court dismiss a case motu proprio for lack
of jurisdiction over the person of the defending
party for defective service of summons?
NO!
Dismissal shall only be by MOTION!
Motion to dismiss
Rule 9 S1 (relate to Rule 16) provides for the
following instances when the court may dismiss a
case motu proprio:
Lack of jurisdiction over the subject matter
Litis pendencia
Res judicata
Prescription
Order of Default/Judgment by Default (Rule
9)
ONE-AT-A-TIME,
A. MOTION TO DISMISS (Rule 16)
Motion to dismiss
A motion to dismiss in an application for
relief filed by an original defendant, a
defendant in a permissive counterclaim,
rd th
cross claim, 3 4 etc party complaint,
complaint in intervention, filed within the
time for but before filing the answer to the
complaint or pleading asserting a claim
After service of summons, before filing of a
responsive pleading
NOTE: Motion to dismiss is not a pleading! It is not a
responsive pleading! Hence, if there is motion to
dismiss, the complaint may still be amended as a
matter of right even if there is a motion to dismiss!
DOES NOT INCLUDE: lack of jurisdiction over the
person of the defending party (Wala to!)
Grounds for motion to dismiss:
After service of summons,
IV. REFER TO THE FOLLOWING:
Rule 16 S1 states that 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 basis of the following grounds:
Motion to Dismiss (Rule 16)
71
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
a.
That the court has no jurisdiction over the
person of the defending party
Relate to R14
Jurisdiction over defendant may be acquired by:
voluntary appearance or by valid service of
summons, except if appearance is to question the
jurisdiction of the court
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
GRANTED:
Refile
Move for alias summons
c.
That venue is improperly laid
DENIED:
Note: Rule 4
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
GRANTED:
b. That the court has no jurisdiction over the
subject matter of the claim
Refile, except if GAD, then certiorari Rule 65
DENIED:
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
NOTE:
Subject matter (BP129- conferred by law)
Exclusive original jurisdiction of courts, if
not within, then M2D is proper
d. That plaintiff has no legal capacity to sue
GRANTED:
GRANTED:
-
DENIED:
Refile + docket fees OR
Amend complaint to confer jurisdiction (no
need for docket fees)
Refile
DENIED:
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
e.
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
That there is another action pending
between parties for the same cause
f.
aka LITIS PENDENCIA
Elements:
1.
2.
3.
Identity of parties or at least such parties
representing the same interests in both
actions
Aka RES JUDICATA
Elements:
There is previous final judgment or order
The previous final judgment is a judgment
upon the merits
That there is substantial identity in the
cause of action and in the relief sought, the
relief being founded on the same facts
Jurisdiction over the subject matter and the
parties by the court rendering it
Identity in the two cases would be such that
any judgment that may be rendered in one,
regardless of which party is successful,
would amount to res judicata in the other
case
Which should be dismissed in case of litis
st
nd
rd
th
pendencia? The 1 , 2 , 3 , 4 action?
That the action is barred by prior judgment
or by the statute of limitations
There must be identity of the parties, of
subject matter, and of cause of action
between the first and second actions
Aka PRESCRIPTION
The later case(s) would be dismissed.
GRANTED:
GRANTED:
Appeal
DENIED:
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
Appeal
DENIED:
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
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CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
g.
That the pleading asserting the claim
states no cause of action
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
i.
That the claim on which the action is
founded is unenforceable under the
Statute of Frauds
Aka FAILURE TO STATE CAUSE OF ACTION
(note: 1403, NCC)
GRANTED:
Refile
Amend the pleading
GRANTED:
Appeal
DENIED:
DENIED:
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
j.
h. That the claim or demand set forth in the
plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished
GRANTED:
That a condition precedent for filing the
claim has not been complied with
GRANTED:
General Rule: refile plus comply with
condition precedent, EXCEPT:
Appeal
DENIED:
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
In case of wilful and deliberate forum
shopping, which operates as dismissal with
prejudice, hence,
In the latter case, Appeal
In case of non exhaustion of administrative
remedies,
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Exhaust then refile
NOTE ALSO: Rule 7 S5
DENIED:
Hence, summing up Rule 16,
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
WITH PREJUDICE- e, f, h, i of Rule 16
MOTU PROPRIO DISMISSAL: (see underlined below)
Rule 9 S1
WITHOUT PREJUDICE- the rest of Rule 16
Rule 50 S1- Motion to dismiss appeal
An appeal may be dismissed by the CA on its own
motion or on that of appellee, on the following
grounds:
1.
Failure of the record on appeal to show on
its face that the appeal was taken within
the period prescribed by these Rules
2.
Failure to file notice of appeal or the record
on appeal within the period prescribed by
these Rules
3.
Failure of appellant to pay the docket and
other lawful fees prescribed in S5 of R40
and S4 Rule 41
4.
Unauthorized alterations, omissions, or
additions in the approved record on appeal
as provided in S4 of Rule 44
5.
Failure of appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
these Rules
6.
Absence of specific assignment of errors in
the appellant’s brief, or of page references
to the record as required in S13 par a, c, d, f
of Rule 44
Failure of appellant to take necessary steps
for the correction or completion of the
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
1.
the court has no jurisdiction over the
subject matter,
2.
that there is another action pending
between the parties for the same cause, or
3.
that the action is barred by prior judgment
or by statute of limitations,
the court shall dismiss the claim
7.
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
record within the time limited by the court
in its order
8.
9.
Failure of appellant to appear at the
preliminary conference under R48 or to
comply with orders, circulars, or directive of
the court without justifiable cause, and
The fact that the order or judgment
appealed from is not appealable
Side note: RULES ON MOTION
2.
It does not interrupt the running of the
prescriptive/reglementary period for the
filing of the requisite pleading
3.
It will be ground for denial of the motion
4.
The motion shall be considered as not filed
Execution of the act subject of the motion,
because it would be deemed as a final order
If act is adversely ruled due to non compliance with
the Rules on Motion, file M4R within 15 days (Rule
37)
Note requirements of written motion:
1.
Notice of hearing (Due process)- 3 daay
notice rule
2.
Set hearing 10 days after filing of the
motion
3.
Proof of service (different from proof of
mailing, only as far as filing)
-
To see whether the adverse party was able
to receive the motion
4.
IF by registered mail, accompanied by proof
of service, explanation why not done via
personal service (R13 S11)
Other party files comment or objection
5.
File reply to comment
IF requisites are not complied with,
1.
*the motion shall be treated as a worthless
piece of paper which the clerk of court has
no right to receive and the court has no
authority to act upon (mere scrap of paper)
NON LITIGATED
MOTION
LITIGATED MOTION
Comply with requisites
for written motion
No need to comply with
all the requirements, but
with need to hear on the
motion
If not, would affect the
right of parties
IF not, then not set for
hearing
What is a motion?
R15 S1
A motion is an application for relief other than by a
pleading
What are the kinds of motions?
Motion ex parte / Non Litigated Motion
Made without the presence of or
notification to the other party because the
question generally presented is not
debatable
Motion of course
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Movant is entitled to the relief or remedy
sought as a matter of discretion on the part
of the court
Litigated Motion
Motion made with notice to the adverse
party to give him an opportunity to oppose
it
Special Motion
A motion addressed to the discretion of the
court
Examples of non-litigated motions:
Motion to reset pre trial
Motion to postpone pre trial
Motion to extend time for filing pleadings
Motion to set case for pre trial
Motions that need to be verified:
Examples of Litigated Motions:
Motion to dismiss
Motion to declare defendant in default
Motion for summary judgment
Motion for relief from judgment
Motion to lift order of default
Motion to postpone trial
Motion for new trial on ground of FAME
Motion for judgment on the pleadings
All motions for provisional remedies:
Motion for new trial
Motion for reconsideration
Motion for preliminary attachment
Motion to dismiss complaint upon plaintiff’s
motion
Motion for dissolution of preliminary
injunction
Motion to lift order of default
Motion for writ of replevin
Motion to declare a party in direct
contempt
Motion in support pendent lite
Motion for demurrer to evidence
Motion to postpone for absence of
evidence
Motion for consolidation or severance of
case
Motion to postpone for illness of a party or
counsel
Motion for trial by commissioner
Rule 16- relate to Rule 10
Motion to strike out evidence or testimony
off the record
77
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Amendment as a matter of right if a motion to
dismiss is filed- PWEDE! Because motion to dismiss
is NOT a responsive pleading
Note: the motion is a LITIGATED MOTION
Motion to dismiss- not a pleading
Done before filing of a responsive pleading
Position paper- not a pleading
What is a bill of particulars?
Memorandum- not a pleading
Amendment if order granting motion to dismiss,
pwede, for as long as the motion is final and
executory
R12 S1 states that a bill of particulars is a more
definite statement of any matter which is not
averred with sufficient definiteness or particularity,
with the purpose of aiding in the preparation of a
responsive pleading.
OF the 10 grounds,
When do you file bill of particulars?
Motion to dismiss after a responsive
pleading,
PWEDE, raise as affirmative defense, then set the
motion to dismiss for hearing
B. MOTION FOR BILL OF PARTICULARS (R12)
(Note: Different from motion for bill of particulars in
Criminal Procedure)
Motion for Bill of
Particulars in Civ Pro
To clarify ambiguities
R12 S1 states that a bill of particulars is filed before
responding to a pleading, following the reglementary
periods provided for under R11. (If the pleading is a
reply, the motion must be filed within 10 days from
service thereof)
Requirements for filing Bill of Particulars:
(R12 S1 in relation to R15)
1.
A written motion by the defending party
before the court for a bill of particulars
2.
If the pleading is a reply, the motion must
be filed within 10 days from service
Motion for Bill of
Particulars in Crim Pro
Rule 12
R116 S9
May be filed before
responding to a pleading
May be filed before
arraignment
3.
Address any matter in
the pleading not averred
with sufficient
definiteness or
particularity
Address alleged defects
in the criminal complaint
or information
The motion shall point out the defects
complained of, the paragraphs wherein
they are contained, and the details desired
4.
The motion is to be filed before the filing of
responsive pleading
5.
In writing
Purpose is to prepare
responsive pleading
Purpose is to enable
properly to plead and
prepare for trial
6.
Hearing of motion set by applicant
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
7.
8.
9.
Notice of hearing shall be addressed to all
the parties concerned not later than 10
days from the filing of the motion
Motion and notice of hearing must be
served at least 3 days before the date of
hearing
YES!
R12 S6 provides that a bill of particulars becomes
part of the pleading for which it is intended.
C.
MOTION TO AMEND THE PLEADING (Rule
10)
Proof of service
Amendment, as provided under R10 S1, is the
process of:
The motion for bill of particulars is denied.
Remedy?
R12 S5
1.
2.
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
exceed 5 days in any event
Adding or striking out an allegation or name
of any party or
Correcting a mistake in the name of a party
or a written or inadequate allegation or
description in any other respect,
a. So that the actual merits of the
controversy may speedily be
determined,
b. Without regard to technicalities,
c. And in the most expeditious and
inexpensive manner
IN SHORT:
Effect of order of failure to comply to file Bill of
Particulars
Amendment is the process of adding or
striking out or correcting a name or
allegation
R12 S4
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 order
as it deems just.
(File a motion to strike out the pleading)
Amendment as a matter of right
-
Kinds of amendments:
1.
Motion for Bill of Particulars:
Granted: Clarify, file bill of particulars
Denied, answer within the plenary period
Amendment as a matter of right: (R10 S2)
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 10
days after it is served.
-
IS bill of particulars part of a pleading?
To correct alterations in a PLEADING (not in
a motion)
Once the pleading is amended, the old
pleading is no more, EXCEPT, admissions
made in the old pleading
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
6.
2.
Amendment by leave of court: (R10 S3)
Except as provided in the next preceding section,
substantial amendments may be made only upon
leave of court
-
Amendment is substantial
A responsive pleading had already been
served
Amendment to confer jurisdiction
Amendment as a matter of right, so far as no
responsive pleading is served
Question: Amendment as a matter of right, there is
second motion to amend (not once as a matter of
right), is the second motion to amend a matter of
right or a matter of discretion?
(Question unanswered yet)
3.
Formal Amendments (R10 S4)
A defect in the designation of the parties or 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.
If there is no responsive pleading yet- amendment as
a matter of right
Once- matter of discretion
Amendment as a matter of right
4.
Amendments to conform or to authorize
presentation of evidence (R10 S5)
When issues not raised in the pleadings are tried
with the express or implied consent of parties, they
shall be treated as if raised in the pleadings,
pleadings may be amended to conform to the
evidence, and failure to amend does not affect the
result of the trial of these issues
-
5.
With already presentation of evidence, but
as far as allegations are concerned, there is
discrepancy, so, amendment is allowed to
conform to evidence
o NOTE: meron din to sa criminal
procedure
Substantial amendments
Amendment of the pleading which would change the
original cause of action
DENIED: remedy- MANDAMUS
Amendment with leave of court (after the filing of a
responsive pleading)
DENIED: Remedy?
Certiorari Rule 65 in relation to Rule 41 S1
Order is interlocutory
Relate Rule 10 to Provisional Remedies
If the original complaint or verified
complaint has provisional remedies, and the
original is superseded by amendment, any
provisional remedy is affected by
amendment
Amendment of complaint, which includes prayer for
writ of attachment, the provisional remedy shall be
DISSOLVED.
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Amended Pleading
Relate Rule 10 to Rule 6
-
-
When the answer does not allege cross
claim, counterclaim,
o Remedy: AMENDMENT of the
pleading
Answer omitted counterclaim or cross
claim,
o Remedy is to AMEND the answer
Relate to Rule 2
-
In case of non joinder of causes of action,
o AMEND the pleading
Relate to Rule 3
-
Related to joinder of parties,
o AMEND the complaint
Related to Rule 14 and Rule 57
-
In personam to quasi in rem, publication is
allowed
Substantial amendment
o Service of summons required
Amendment of complaint to join another
party,
o Need to serve summons
Supplemental Pleading
Refers to facts existing at
the time of the
commencement of the
action
Refers to facts arising
after the filing of the
original pleading
Takes the place of the
original pleading
Taken together with the
original pleading
Can be made as matter
of right when no
responsive pleading has
yet been filed
Always with leave of
court
When amended pleading
is filed, a new copy of
the entire pleading must
be filed
A substantial pleading
does not require the
filing of a new copy of
the entire pleading
Amendment as a matter
of right is to be
answered before the
filing of the responsive
pleading, (within 15 days
after being served with a
copy thereof)—(R11 S3)
A supplemental pleading
may be answered within
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
answer to the
supplemental complaint
if no new or
supplemental answer is
filed (R11 S7)
Amendment of the answer? 3PC? 4PC? Complaint
in intervention?
Amendment by leave of
court is to be answered
within 10 days from
notice of the order
admitting the same. An
answer earlier filed may
serve as the answer to
the amended complaint
if no new answer is filed
(R11 S3)
PWEDE!- amendment of the pleadings naman ang
tinutukoy eh
Supersedes original
pleading
Supplements original
pleading
With or without leave of
court
With leave of court
-
81
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Relate to Rule 16
The court may either deny the motion to
dismiss, grant the motion to dismiss, or
ORDER THE AMENDMENT OF THE
PLEADING
no need for hearing, notice, and filing
3 day notice rule- further motion 3 days before
hearing
10 days- motion set for hearing at least 10 days
Is there amendment of the pleading in summary
procedure?
YES
Is bill of particulars allowed in Summary Procedure?
NO (Prohibited pleading)
-
As a matter of right
As a matter of discretion
o NO PROHIBITION under the Rules
on Summary Procedure
Motion to dismiss in Summary Procedure?
NO (prohibited pleading)
EXCEPT:
D. MOTION FOR EXTENSION OF TIME TO FILE
RESPONSIVE PLEADING (Rule 11)
Rule 11 S11
Section 11
1.
2.
3.
lack of jurisdiction over the person of the
defending party
lack of jurisdiction over the person of the
defendant
failure to comply with the Barangay
Conciliation Proceedings
Upon motion and on such terms as may be just,
EXCEPTION TO EXCEPTION:
the court may extend the time to plead provided in
these Rules
Small Claims Cases- motion to dismiss absolutely
hindi pwede
The court may also, upon like terms,
allow an answer or
other pleading to be filed
after the time fixed by these Rules
Extend, BASED ON CAUSE
Not a litigated motion
E.
SUMMARY JUDGMENT (Rule 35)
Summary judgment
-
judgment rendered by the court without
trial if it clearly appears that there exists no
genuine issue or controversy as to any
material fact, except as to the amount of
damages
S1 and 2- PLAINTIFF or DEFENDANT Files
Plaintiff- at any time after the pleading in answer
thereto has been served
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Defendant- at any time
1.
The court must have validly acquired
jurisdiction over the person of the
defendant either by service of summons or
voluntary appearance
2.
Proof of service of summons on the
defendant
3.
The defendant fails to answer within the
time allowed therefore
4.
Written motion by claiming party to declare
defendant in default (NOT oral motion!)
(state R15 requirements)
NOTE: LITIGATED MOTION
GRANTED:
-
remedy is APPEAL
o final judgment on the merits
DENIED:
-
plead
o
there is issue, but there is no
genuine issue
Maganda ka? Maganda ka nga
ORDER OF DEFAULT / JUDGMENT BY
DEFAULT (Rule 9)
Order of Default
Order issued by the
court where defendant
failed to file answer
Plaintiff failed to file answer, be declared in default
(R9 in relation to Rule 6)
Judgment by Default
Decision or judgment by
the court after order of
default and presentation
of evidence ex parte by
plaintiff
NATURE OF ORDER OF DEFAULT: interlocutory
(making reference to R41)
REMEDY:
MOTION TO LIFT ORDER OF DEFAULT
Verified, FAME, Affidavit of Merit (note
what it is, and in what instances required
[all FAME])
ORDER OF DEFAULT
Rule 9 S3 provides that a defending party who fails
to file an answer to an initiatory pleading within the
time allowed therefor may be declared in default.
Granted: File answer
Denied,
DEFENDING PARTY INCLUDES:
In a permissive counterclaim- original
plaintiff
rd
In a 3PC- 3 party defendant
In a cross claim- co defendant
Requirements for declaration of default: (R9 S3)
FILE MOTION FOR RECONSIDERATION
-
S4 R65
Interlocutory
o NOT Rule 37 as basis (because Rule
37 applies only to Final orders)
Denied,
83
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
CERTIORARI RULE 65 with TRO or injunction
-
Dahil pag wala, at may order of default,
tuloy tuloy na + judgment of default
DOCTRINE OF HIERARCHY OF COURTS
Higher courts will not entertain any case
brought before it unless the same is
decided before the lower courts
NOTE: umaakyat to hanggang SC- Ordinary and
Special Civil actions (from MTC), [not Spec Pro]
Effect of order of default:
MTC
(all special civil actions, original actions in exercise of
original jurisdiction, final judgment)
-
ORDINARY CIVIL ACTION
Lose standing
Not to participate at the trial but shall be
entitled to notices
Entitled to 2 copies of decision, resolution,
substantially amended pleadings
Order of default
DENIED,
Motion for reconsideration
R9 S3 in relation to Rule 10
-
DENIED,
Certiorari Rule 65 RTC with TRO (S7 R9 amended by
AM 7-7-12)
DENIED,
R9 in relation to Modes of Discovery
-
R29
o
Motion for reconsideration Rule 37 with RTC
DENIED,
Notice of appeal with CA Rule 41 (original
jurisdiction of RTC ang certiorari Rule 65)—apply
Neypes, doctrine of hierarchy of courts
Order of default issued by court, there is
amendment of the pleading, order of
default is dissolved
Due to refusal to comply with the
modes of discovery, the refusing
party may be declared in default
In case of motion to declare defendant in default,
there is one more remedy:
DENIED,
CA M4R Rule 52
DENIED,
File motion to admit answer
o Mawawala ang motion to declare
defendant in default dahil may
answer na eh
SC R45 Petition for Review on Certiorari apply
Neypes, Hierarchy of courts
DENIED,
Summary Proceedings
SC M4R Rule 52
84
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Motion to declare defendant in default is a
PROHIBITED PLEADING
Motion for reconsideration
Denied,
As plaintiff in such a case, file MOTION TO RENDER
JUDGMENT
CERTIORARI Rule 65 with TRO/injunctionPREFERRED over appeal
As defendant, don’t file motion to admit answer
-
It is equal to motion for extension of time
to file pleadings
o PROHIBITED PLEADING
ETO DISKARTE MO, ikaw ang defendant
-
Go to office of the clerk of court, file your
answer, at pag ayaw tanggapin, file it by
registered mail
o Pag nag argue ang kalaban, motion
to strike out answer, WEH!
 R1 S6- Liberal application
of the rules, HENCE, you
can file answer
Summary Procedure
Given 10 days to answer from receipt of
service of summons
Because appeal is not the adequate, speedy
remedy
o Judgment kasi is based on
evidence ex parte- no evidence to
review because no evidence in the
first place is presented by
defendant
GENERAL RULE: certiorari is not a substitute for lost
appeal;
EXCEPTION: when appeal is not a speedy, adequate
remedy
Denied. Remedy?
File a motion for reconsideration of the judgment or
final resolution within 15 days from service thereof
before the CA, with proof of service on the adverse
party.
Basis: R52 S1
JUDGMENT BY DEFAULT
Denied. Remedy?
Nature: Final Judgment
File a petition for review on certiorari before the SC
raising only questions of law which must be distinctly
set forth, within 15 days from notice of the denial of
petitioner’s motion for reconsideration filed in due
time after notice of the judgment.
R9 in relation to R11
Based on presentation of evidence ex parte
BEFORE JUDGMENT BECOMES FINAL AND
EXECUTORY:
Basis: R45 S2 and R45 S1-- CA judgment,
final order, or resolution can be elevated to
the SC raising only questions of law
REMEDY:
Motion to set aside judgment or final order due to
FAME
Denied,
Denied. Remedy?
File a motion for reconsideration of the judgment or
final resolution within 15 days from service thereof
85
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
before the SC, with proof of service on the adverse
party.
Answer to cross claim
rd
th
Answer to 3 4 etc party complaint
Basis: R52 S1
Answer to complaint in intervention
AFTER FINALITY OF JUDGMENT:
Reply
Any of the following remedies:
Answer to amended complaint
1.
2.
File petition for relief from judgment, order,
or other proceeding on the ground of entry
of such judgment or final order, or any
other proceeding is thereafter taken against
a party in a court through FAME (Rule 38
S1)
Answer to amended counterclaim
File petition for annulment of judgment or
final order or resolution on the ground of
extrinsic fraud (R47 S1 and 2)
Answer to amended complaint in
intervention
Answer to amended cross claim
rd
th
Answer to amended 3 4 etc party
complaint
Answer to supplemental complaint
3.
File petition for certiorari (Rule 65)
Rejoinder
4.
Collateral Attack
Answer to counter counterclaim
Answer to counter cross claim
V. FILING OF ANSWER
Answer- the pleading setting forth the defending
party’s defenses
Answer to amended counter counterclaim
Answer to amended counter cross claim
(Bears the same parts of a pleading)
WITHIN WHEN?
What are the responsive pleadings?
Rule 6 of the Rules of Court in relation to Rule 11
provides for the following responsive pleadings:
Answer to the original complaint
Compulsory counterclaim
Discuss the periods to answer to responsive
pleadings under Rule 11 of the Rules of Court:
1.
Answer to the original complaint
R13 S1
Defendant shall file answer to the complaint within
15 days after service of summons, unless a different
period is fixed by the court
Answer to the permissive counterclaim
R13 S2
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CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Where the defendant is a foreign private juridical
entity and service of summons is made:
-
to a resident agent, answer shall be filed
within 15 days from service of summons to
him
-
when it has no resident agent but has an
agent or officer in the Philippines, answer
shall be filed within 15 days after service of
summons to said agent or officer
-
if it has no resident agent nor an agent or
officer, and summons is made on the
proper government office designated by
law to receive the same (SEC), which will
then send a copy thereof by registered mail
within 10 days to the home office of the
foreign private corporation, answer shall be
filed within 30 days after receipt of
summons by the home office of the foreign
private entity
R14 S15
3.
R11 S4
A permissive counterclaim must be answered within
10 days from service
4.
In case of a non resident defendant in whom
extraterritorial service of summons is made, the
period to answer should be at least 60 days.
Answer to cross claim
R11 S4
A cross claim must be answered within 10 days from
service
5.
In case of summons by publication, answer shall be
filed within the time specified in the order granting
leave to serve summons by publication which shall
not be less than 60 days after notice, within which
the defendant must answer.
Answer to permissive counterclaim
rd
th
Answer to 3 4 etc party complaint
R11 S5
rd
th
Time to answer a 3 4 etc party complaint shall be
governed by the same rule as the answer to the
complaint (hence, follow R11 S1, 2 plus
amendments)
6.
Answer to complaint in intervention
R19 S4
2.
Compulsory counterclaim
(note above periods?)
The answer to the complaint in intervention shall be
filed within 15 days from notice of the order
admitting the same, unless a different period is fixed
by the court
7.
Reply
R11 S6
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
A reply may be filed within 10 days from service of
the pleading responded to
8.
Answer to amended complaint
R11 S3
Where plaintiff files amended complaint as a matter
of right, the defendant shall answer the same within
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 10 days from notice of the order admitting
the same
R11 S4 (?)
Answer within 10 days from service
9.
Amended CC, Amended 34etc PC,
Amended CII
R11 S3 (note the period) shall apply to the answer to
an amended counter claim, amended cross claim,
rd th
amended 3 4 etc party complaint, amended
complaint in intervention
17-18.
R11 S3 (?)—note the periods
Answer may raise counterclaim or cross claim
10. Answer to supplemental complaint
R11 S7
A supplemental complaint may be answered within
10 days of the order admitting the same, unless a
different period is fixed by the court. The answer to
the complaint shall serve as answer to the
supplemental complaint if no new or supplemental
answer is filed.
11. Rejoinder
(?)
Answer in third party complaint- Can you raise
Counterclaim or cross claim?
YES!
But, if counterclaim against counterclaim, counter
counterclaim
IF cross claim against cross claim, then counter cross
claim
Counterclaim
Any claim which a
defending party may
have against the
opposing party
Cross Claim
Any claim by one party
against a co party arising
out of the transaction or
occurrence that is the
subject matter either of
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CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
the original action or of a
counterclaim therein
Counterclaim with respect to Rule 17
Pwede, proceed after service of answer
(Rule 17 S1 and 2)
Compulsory
Counterclaim
Permissive Counterclaim
Counterclaim with respect to Rule 18
Arises out of or is
necessarily connected
with the transaction or
occurrence that is the
subject matter of the
opposing party’s claim
Does not arise out of nor
is necessarily connected
with the subject matter
of the opposing party’s
claim
Does not require for its
adjudication the
presence of third parties
over whom the court
cannot acquire
jurisdiction
It may require for its
adjudication the
presence of third parties
over which the court
cannot acquire
jurisdiction
Barred if not set up in
the action
Not barred even if not
set up in the action
Need not be answered,
not result in default
Must be answered or
else defendant can be
declared in default
Plaintiff failed to appear in pre trial, case is
dismissed with prejudice, without prejudice
to counterclaim
DEFENSES and DENIALS
Not an initiatory
pleading
Initiatory pleading
Docket fees are
suspended
With docket fees
Omitted counterclaim or cross claim
REMEDY: amend the answer
Motion to dismiss with counterclaim
If permissive counterclaim, PWEDE
Kasi, independent sa main action
What are the types of defenses?
1.
Negative defense
R6 S5
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.
2.
Affirmative defense
R6 S5
An affirmative defense is an allegation of 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:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
Fraud
Statute of limitations
Release
Payment
Illegality
Statute of frauds
Estoppel
Former recovery
Discharge in bankruptcy
Any other matter by way of confession and
avoidance
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Ground for motion to dismiss (if M2D not filed or
M2D denied), may be pleaded as an affirmative
defense in the answer
Motion to set affirmative defense for hearing,
-
Equivalent to motion to dismiss
o During hearing, defending party to
present evidence first
 INVERTED TRIAL
Affirmative defense is granted, case is dismissed.
Remedy?
Specifically deny par 2 __ for being untrue, the truth
of the matter is that...
2.
Partial specific denial
-
Part admission and part denial
With support dapat
3.
Disavowal of knowledge
-
By an allegation of lack of knowledge or
information sufficient to form a belief as to
the truth or falsity of the averment in the
opposing party’s pleading
APPEAL (Because trial is on the merits)
In good faith, or else, deemed an admission
With respect too negative defenses, note SPECIFIC
DENIALS
Specific denial in par __ __ __ for lack of knowledge
to truth or belief of the same
What is a negative pregnant?
Specific not necessarily Specific Denial
-
General denials are deemed admissions
Answer- no need to verify
EXCEPT:
Plaintiff’s remedy in such a case?
-
JUDGMENT ON THE PLEADINGS (Rule 34)
Kinds of Denials:
1.
Actionable Document
-
Document which creates rights, which
serves as basis for filing of the complaint
2.
Usury in a complaint
1.
Specific Absolute Denial
3.
Summary procedure
-
By specifically denying the averment and
whenever practicable, setting forth the
substance of the matters relied upon for
such denial
4.
Answer with permissive counterclaim
With support dapat
Not denied under oath an actionable document such
as deed of sale or mortgage,
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Failure to verify = deemed admitted
HENCE, judgment on the pleadings
Except:
1.
2.
1.
Scope of examinations:
Fraud/forgery
Not a party to the actionable document
1.
2.
3.
After jurisdiction is acquired by court, parties may
resort to:
VI. MODES OF DISCOVERY
Rules 23-28
-
Depositions pending action (under R23)
Depositions before action or pending
appeal (R24)
Interrogatories to parties under R25
Admission by adverse party (R26)
Production or inspection of documents or
things under (Rule 27)
Physical and mental examination of persons
under (Rule 28)
2.
-
-
Depositions pending action (R23)
Deposition- a written testimony of a witness given in
the course of a judicial proceeding in advance of the
trial or hearing upon oral examination or in response
to written interrogatories and where an opportunity
is given for cross examination
Aka depositions de bene esse
May be taken with leave of court when:
1.
2.
After jurisdiction has been obtained over
any defendant or over the property which is
the subject of the action but before an
answer has been filed
Deposition of a person confined in prison
Matter which is relevant to the subject of
the pending action
Not privileged
Not restricted by a protective order
Depositions before action or pending
appeal (Rule 24)
Aka perpetuam rei memoriam
Discussing each:
1.
After answer and deponent is not confined
in prison
Objective is to perpetuate testimony of a
witness for future use
o Taken conditionally, to be used at
the trial only in case deponent is
not available
Do not prove existence of any right and the
testimony perpetuated is not in itself
conclusive proof, either of the existence of
any right nor even of the facts to which they
relate, as it can be controverted at the trial
in the same manner as though no
perpetuation of testimony was ever had
BUT, in the absence of any objection to its
taking, and even if the deponent did not
testify at the hearing, the perpetuated
testimony constitutes prima facie proof of
facts referred to in the deposition
3.
Interrogatories to parties (R25)
-
Purpose is to elicit facts from any adverse
party
Answers may also be used as admissions of
the adverse party
Written interrogatories and the answers
thereto must be both filed and served,
hence, the answers may constitute as
judicial admissions
-
May be taken without leave of court:
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
4.
Admission by Adverse Party under Rule 26
-
Purpose 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
An admission made is for the purpose of
the pending action only and cannot be used
in other proceedings
-
5.
Production or inspection of documents or
things under Rule 27
condition of a party is in controversy,
usually arising in controversy in proceedings
for guardianship over an imbecile or insane
person, while the physical condition of the
party is generally involved in physical
injuries cases
-
Use of depositions:
1.
-
Applies only to a pending action and the
documents or things subject of the motion
must only be those within the possession,
control, or custody of a party
Since the results of the examination are
intended to be made public, the same are
not covered by physician-patient privilege
2.
Impeach adverse party’s witness (relate to
evidence)
Residing 100 km away, sick or infirm
R23 R24- Relate to R134 (Deposition)
The documents to be produced must have the
following requisites:
1.
2.
3.
Should not be privileged
Should constitute or contain evidence
material to any matter involved in the
action and which are in the party’s
possession, custody, or control
In a petition for production of papers and
documents, they must be sufficiently
described and identified, or else, the
petition will not prosper
This mode of discovery does not authorize the
opposing party or clerk or other functionaries of the
court to distrain the articles or deprive the person
who produced the same of their possession, even
temporarily
6.
-
Physical and Mental Examination of
Persons under Rule 28
This mode of discovery is available in an
action in which the mental or physical
Interrogatories/Admission by adverse party
1.
File answer or comment, or else, the facts
are deemed admitted, no issue, hence,
judgment on the pleadings
Production/Inspection of documents or things
For photographing, copying, inspecting
Production or Inspection
of Documents or Things
Subpoena
Mode of discovery
Process
By motion
By request
Production or Inspection
of Documents or Things
Original of Evidence in
Custody of Adverse
Party
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Mode of discovery
Exception to the best
evidence rule
-
By motion
By notice
Before filing responsive pleading or motion for
summary judgment
If there is no original
document, because such
is in the presence of
adverse party, the
requesting party can ask
for production of the
original by way of notice
2.
Without prior knowledge
as to contents
With answer, by way of motion without
prejudice to counterclaim
May be filed independently or separately
3.
Hospitalization of
Insane Persons
Physical and Mental
examination of persons
Governed by Rule 101
Governed by Rule 28
Special proceeding
Mode of discovery
File a petition
File a motion
Filed by Regional
Director of DOH
Any party may avail of
Another remedy which may be availed of:
MOTION TO DISMISS BY PLAINTIFF (Rule
17)
Dismissal upon motion by plaintiff (R17 S2)
Upon approval of the court and
Upon such terms and conditions as the
court deems proper
With prior knowledge of
contents of the
document, because the
requesting party has the
secondary evidence
Mental and Physical examination of Persons vs
Hospitalization of Insane Persons
At any time before service of the answer or
of a motion for summary judgment
Dismissal due to fault of plaintiff, when for
justifiable cause,
Plaintiff fails to appear on the date of the
presentation of his evidence in chief on the
complaint
Plaintiff fails to prosecute his action for an
unreasonable length of time
Plaintiff fails to comply with these Rules or
any order of the court
What is the 2 dismissal rule? What are its
elements?
(R17 S1) -..the notice of dismissal by plaintiff
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
What are the grounds for dismissal under Rule 17?
1.
Dismissal upon notice by plaintiff (R17 S1)
Elements of 2 dismissal rule: (R17 S1)
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1.
2.
3.
4.
First complaint filed by plaintiff before court
of competent jurisdiction
At any time before service of answer or of
motion for summary judgment, plaintiff
filed notice of dismissal of the first
complaint, which the court granted (effect
without prejudice)
Second complaint filed by plaintiff involving
an action based on or including the same
claim before court of competent jurisdiction
At any time before service of answer or of
motion for summary judgment, plaintiff
filed notice of dismissal of the second
complaint based on or including the same
claim as the first complaint
The dismissal shall be without prejudice,
unless otherwise specified in the order
(S3), due to fault of plaintiff
The dismissal shall have the effect of an
adjudication upon the merits unless
otherwise declared by the court
What are your remedies, as plaintiff, in such cases?
S1- dismissal upon notice by plaintiff
refile the case (unless the 2-dismissal rule
applies [?])
Effect of 2 dismissal rule (R17 S1):
or if so declared with prejudice, appeal the
dismissal
The second notice of dismissal shall operate as an
adjudication upon the merits.
Exceptions to 2 Dismissal Rule:
S2- dismissal upon motion of plaintiff
st
1.
1 action is not related to the second action
Refile the case
2.
Court dismissing the second action is a
court not of competent jurisdiction
If the court declares that the dismissal is
with prejudice, appeal the dismissal
S3- dismissal due to fault of plaintiff
Nature of Dismissal of actions under Rule 17:
Appeal the dismissal
(S1), upon notice by plaintiff
If the court declares that the dismissal is
without prejudice, refile the case
Unless otherwise stated in the notice, the
dismissal is without prejudice,
(*2 dismissal rule) ..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
Another:
JUDGMENT ON THE PLEADINGS (Rule 34)
S1
Where the answer
(S2), upon motion of plaintiff
-
fails to tender an issue or
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
-
otherwise admits the material allegations of
the adverse party’s pleading,
the court may, on motion of that party, direct
judgment on such pleading
On the merits
Interlocutory or on the
merits
There is answer filed
If filed by plaintiff, filed
at any time before
answer is served
However, in an action for declaration of
-
nullity or
annulment of marriage or
for legal separation,
If filed by defendant,
may be filed at any time
even before answer
the material facts alleged in the complaint shall
always be proved
VII. REPLY (R6 S10)
Exception that JoP be on motion:
-
if at pre trial court finds that judgment on
the pleadings is proper, it can render such
judgment motu proprio
Allegations not deemed admitted by filing of
judgment on the pleadings:
-
irrelevant allegations
immaterial allegations
allegations of damages in the complaint
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.
R11- may be filed within 10 days from service of the
pleading responded to
VIII. REJOINDER
Judgment on the
Pleadings
Summary Judgment
3 day notice rule
10 day notice rule
Filed by plaintiff
Filed by defendant
Based solely on the
pleadings
Based on pleadings,
depositions, admissions,
affidavits
Answer fails to tender an
issue or there is an
admission of material
allegations
No genuine issue
between the parties
Second pleading on the party on the part of
defendant being his answer to the plaintiff’s
replication
Another form of responsive pleading
IX. PRE TRIAL (Rule 18)
Rule 18 S1 COMPLETE:
AFTER the LAST PLEADING ASSERTING A CLAIM has
been served and filed, or AFTER the EXPIRATION OF
THE TIME FOR FILING THE LAST PLEADING
ASSERTING A CLAIM, a pre trial is to be conducted
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
upon motion ex parte by plaintiff that the case be
set for pre trial
Pre Trial in Criminal
Cases
Pre Trial in Civil Cases
Mandatory requirement
Pre Trial Conference- yes
Answer
Answer to permissive counterclaim
Answer to cross claim
Answer to third party complaint
Answer to complaint in intervention
Reply to answer
After arraignment,
within 30 days from the
date the court acquires
jurisdiction over the
accused
After the last pleading
asserting a claim has
been served and filed
Rule 118
Rule 18
No pre trial brief
Pre trial brief is required
to be filed and served
Counsel of accused and
prosecutor are required
to appear
Parties and counsel are
required to appear
Reply to answer to permissive counterclaim
Non appearance may be
excused only if valid
cause is shown, or
representative shall
appear in behalf duly
authorized in writing to
enter into amicable
settlement, submit to
ADR, enter into
stipulations of facts and
of document
Reply to answer to cross claim
Reply to answer to third party complaint
Reply to answer to complaint in
intervention
Rejoinder
By MOTION
If the motion is not filed, is the case dismissed for
failure to prosecute?
-
Techinically, yes, but ff R1 S6 (liberal
construction,
o It is not dismissed
Hence, if plaintiff failed to file motion ex parte that
the case be set for pre trial, the clerk of court shall
issue notice of pre trial conference
Failure of counsel of
accused or prosecutor to
appear, and without
acceptable excuse for
lack of cooperation,
court may impose
proper sanctions or
penalties
Presence of private
offended party is not
required (as only
required to appear at
Failure of plaintiff to
appear, dismissal of the
case with prejudice,
unless otherwise
ordered by the court
Failure of defendant to
appear, plaintiff to
present evidence ex
parte
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
of the criminal
and civil aspects
of the case
arraignment)
Prê trial agreement is in
writing, signed by
accused and counsel, or
else, cannot be used
against accused
Signed by parties and
counsel (?)
Considerations in pre
trial conference:
Considerations in pre
trial:
Plea bargaining
Stipulation of
facts
Marking of
identification of
evidence of the
parties
Advisability of
preliminary
conference of
issues to
commissioner
Possibility of
amicable
settlement or
submission to
alternative
modes of
dispute
resolution
Propriety of
rendering
judgment on
the pleadings,
summary
judgment,
dismissing the
action should a
valid ground
therefor be
found to exist
Simplification of
the issues
Waiver of
objections to
admissibility of
evidence
Modification of
order of trial if
accused admits
the charge but
interposes a
lawful defense
Such matters as
will promote a
fair and
expeditious trial
Advisability or
necessity of
suspending the
proceedings
Necessity or
desirability of
amendments to
the pleadings
Possibility of
obtaining
stipulations or
admissions of
facts and of
documents to
avoid
unnecessary
proof
Limitation on
the number of
witnesses
Such other
matters as may
aid in the
prompt
disposition of
the action
(simplified)
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Pre Trial In Criminal
After arraignment
No pre trial brief
Pre Trial in Civil
After last pleading
asserting a claim has
been served and filed
The advisability of a preliminary conference
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
therefore the found to exist
h.
The advisability or necessity of suspending
the pleadings
i.
Such other matters as may aid in the
prompt disposition of the action
With pre trial brief
Order of pre trial signed
by accused and counsel
so admissions are
binding
Failure to appear,
sanctions against
counsel and prosecutor
f.
Failure to appear by
plaintiff, dismissal of
case with prejudice
S6- Pre trial brief
Failure to appear by
defendant, plaintiff to
present evidence ex
parte
What are the purposes of pre-trial?
The parties shall file with the court and serve on the
adverse party, in such manner as shall ensure their
receipt thereof at least 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 stipulated 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
f.
The number and names of the witnesses,
and the substance of their respective
testimonies
(Rule 18 S2)
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 of
admissions of facts and of documents to
avoid necessary proof
e.
The limitation of the number of witnesses
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Failure to file the pre trial brief shall have the same
effect as failure to appear at the pre trial.
Effects of failure to appear at the pre trial:
Plaintiff fails to appear
PRE TRIAL BRIEF
R18 S5
Required to be filed at least 3 days before
the Pre Trial Conference
Ensure na really good, for filing memoranda
(all remedies, may bayad, bawat pleading)—
pagkakitaan
The failure of plaintiff to appear at the pre trial
conference when so required shall be cause for the
dismissal of the action. The dismissal shall be with
prejudice, unless otherwise ordered by the court.
Defendant fails to appear
Failure to file at pre trial brief = failure to appear at
pre trial, same effect
Requisites for appearance at the pre trial:
R18 S5
The failure of defendant to appear at the pre trial
conference shall be cause to allow the plaintiff to
present his evidence ex parte and the court to
render judgment on the basis thereof.
(R18 S4)
1.
Duty of the parties and their counsel to
appear at the pre trial
2.
The non-appearance of a party may be
excused only if a valid cause is shown
therefor or IF A REPRENTATIVE SHALL
APPEAR IN HIS BEHALF FULLY AUTHORIZED
IN WRITING
Remedies in case of failure to appear by plaintiff /
defendant:
Plaintiff fails to appear
Plaintiff can file an appeal, unless the
dismissal is ruled to be without prejudice,
which in such a case, defendant would be
avail of the remedy of refiling the case or
filing a petition for certiorari under Rule 65
If party a NATURAL PERSON- representative is armed
with SPECIAL POWER OF ATTORNEY
If party is a JURIDICAL PERSON (corporations or
partnerships)- representative is armed with BOARD
RESOLUTION (Board resolution is binding upon the
entire corporation, because the Board of Directors
[in case of stock corporations] or the Board of
Trustees [in case of non stock corporations] are the
ones who make the decisions of the corporation
through Board Resolution-- note that Board
Resolution prevails over SPA)
Defendant fails to appear
NOTE: Defendant WILL NOT BE DECLARED IN
DEFAULT! Likewise, there is no such thing under the
1997 Rules on Civil Procedure AS IN DEFAULT (sa
luma to)
When defendant fails to appear, 4 SCENARIOS ARE
CONTEMPLATED:
-
Issuance of order allowing ex parte
presentation of evidence/before
presentation of evidence
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
-
-
Order allowing ex parte presentation of
evidence was issued, plaintiff presents ex
parte evidence
Before judgment becomes final and
executory
After judgment becomes final and
executory
BAWAL accdg sa Manual of Clerk of Court (ugat ng
corruption)
The only time na pwede is when he is not
an employee of a court
REMEDIES:
File a motion for reconsideration + Set aside the
Evidence Ex parte
-
ORDER ALLOWING PLAINTIFF’S
PRESENTATION OF EVIDENCE EX PARTE
-
REMEDIES: The order is interlocutory, hence,
-
File motion for reconsideration, based on
R65 S4 and R41 S1
R65 (4)- ..whether such m4r is required or
not..
R41 (1)- the order allowing ex parte
presentation of evidence is an interlocutory
order, hence, no appeal may be taken from
it
If the motion for reconsideration + motion to set
aside is denied, file a petition for certiorari under
Rule 65
R41 (1)- the order allowing ex parte
presentation of evidence is an interlocutory
order, no appeal may be taken from it,
hence, aggrieved party may file the
appropriate special civil action under Rule
65, which includes certiorari
If M4R denied, file petition for certiorari under Rule
65
-
on the ground that the order is contrary to
law [R37]? OR,
that, the order allowing ex parte
presentation of evidence is an interlocutory
order)
if you fail this, the evidence shall form part
of the records of the case – kawawa ka cge
R41 (1)- the order allowing ex parte
presentation of evidence is an interlocutory
order, no appeal may be taken from it,
hence, aggrieved party may file the
appropriate special civil action under Rule
65, which includes certiorari
Before judgment becomes final and
executory
REMEDIES:
PRESENTATION OF EVIDENCE EX PARTE
Conducted by Court of CLERK OF COURT
-
Clerk of court, a LAWYER
o Hence, if judge delegated to clerk
of court who is not a lawyer,
BAWAL
-
Appeal the judgment (Rule 41) or
-
File motion for reconsideration (Rule 37) or
Ground: that the evidence is insufficient to justify
the decision or final order
-
File a motion for new trial (Rule 37)
Can clerk of court charge Commissioner’s Fee?
100
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Ground: FAME which ordinary prudence could not
have guarded against and by reason of which such
aggrieved party has been impaired in his right
-
Deemed admitted
Cause of action admitted by defendant,
-
After judgment becomes final and
executory
Rule 18 in relation to Rule 34
 JUDGMENT ON THE
PLEADINGS
Conclusive on part of admitter, for purposes
of substantial justice
REMEDIES:
-
-
-
-
File Relief from judgment, order, or other
proceedings under Rule 38 or
o GROUND: any proceeding is
thereafter taken against the party
in any court through FAME
File for annulment of judgment, final
order, or resolution under Rule 47 or
o GROUND: extrinsic fraud
File petition for certiorari under Rule 65 or
o GROUND: GAD amounting to lack
or excess of jurisdiction on the part
of the tribunal exercising judicial
functions, and there is no appeal
nor any plain, speedy and
adequate remedy in the ordinary
course of law
Make a collateral attack on the judgment
Pre Trial
-
May be delegated to clerk of court who is a
lawyer
After PRE TRIAL,
X. TRIAL
The best part of law practice
(Rule 30 in relation to Rule 132 S4, 5, 6, 7, 8)
A proceeding where parties present
evidence and ends in oral argument
With respect to examination of witnesses
Pre trial brief (see above) presented in trial
Pre Trial Order
-
Order issued by the court stating what
transpired during the pre trial conference
o Can be amended accordingly
o By filing motion to amend or
correct the pre trial order, within 5
days after receipt of the pre trial
order
o NO NEED for counsel to sign the
pre trial order
Pre Trial conference- relates to judicial admissions
under Rule 129
All witnesses in pre trial brief to be presented
Before witness is presented, offer of testimony, in
accordance with purpose in pre trial brief
1.
PROPONENT’S / PLAINTIFF’S TESTIMONIES
AND EVIDENCE IN CHIEF as well as that of
witnesses
With respect to Rule 7 (parts of a pleading) stating
the cause of action in the body of the pleading
Adverse party admits your proposals/stipulations
101
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Ultimate facts to be proven during the trial of the
case
Line of questioning:
Is it not a fact you are 1 of... YES
ORDER:
Executed sometime, etc... YES
Direct Examination
NOTE: Lead mo papunta sayo
-
Transform allegations of the complaint in
the body of the pleading
Cause of action
Direct testimony
Show sinumpaang salaysay
HOW, WHEN, WHERE, WHAT, WHY
CONSIDER violations and exceptions:
Leading Questions
-
Avoid except in preliminary matters
Propound answers which proponent desires
NOTE EXCEPTIONS: hostile witnesses, minors,
adverse party, preliminaries
Is your name Ms X? Leading
Is your age 27? Leading
Misleading questions
-
Test credibility of witness, test credibility of
testimony
Not from the mouth of credible witness, but
from credible testimony
o WHY? Asa TSN- pag may mali, ipa
correct
 TSN is best evidence of
what transpired during
trial
 To impleach
testimony of
witness
 To refresh
memory of the
witness
 Ididiscuss din to
isa isa sa
memorandum
Re Direct Examination
Re establish what was destroyed during the
cross examination
Re Cross Examination
Cross Examination
Requires knowledge of:
-
Facts
Evidence
Defenses
Leading questions are allowed
Totoo bang ikaw ay maganda? Leading
Destroy what was re established in the re
direct examination
NOTE: Identify all witnesses
Offer of Testimony
Made at the time the
witness is presented on
the witness stand
Offer of Evidence
After termination of
presentation of evidence
of prosecution
Obtain affirmative answers- GOOD
102
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
case
responsive pleading
That plaintiff has shown
no right of relief
10 grounds
If granted, case
dismissed
If granted, case
dismissed, remedy
depends:
Evidence in chief
Evidence supporting allegations in the
complaint
After presentation of all witnesses,
Offer of evidence
If granted but on appeal
order of dismissal is
reversed, defendant is
deemed to have waived
the right to present
evidence
With prejudice- appeal
Without prejudice- refile
Then,
Both by way of motion
Comment or objection
-
Secondary
Not identical
NOTE: in summary proceedings, no trial, no
demurrer to evidence
In Criminal Cases,
Then,
Order of admission/Exclusion of evidence
Admitted; Exh A, Exh B
There is demurrer to evidence in Summary
Procedure
-
Constitutional Right to Due process
Excluded: Exh C, etc
TENDER OF EXCLUDED EVIDENCE
Considered by CA in appeal
After PLAINTIFF RESTS ITS CASE,
(defendant may file) DEMURRER TO
EVIDENCE (Rule 33)
D2E vs M2D (simplified)
D2E
M2D
Rule 33
Rule 16
After plaintiff rests its
Before filing of
Demurrer to evidence in
Civil Procedure
Demurrer to evidence in
Criminal Procedure
Rule 33
Rule 119 S23
No leave of court
required
With or without leave of
court
If with leave of court,
accused could present
evidence if demurrer is
denied
103
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
If without leave of court,
accused could not
present evidence if
demurrer is denied
If court finds that
evidence is insufficient
(plaintiff has shown no
right to relief), complaint
dismissed as demurrer is
granted
If court finds that
prosecution’s evidence is
insufficient, demurrer
granted, accused is
acquitted
no longer present
evidence and submits
case for decision based
on prosecution’s
evidence
(simplified version)
D2E Civil
Judgment of acquittal
not appealable, hence,
DJ sets in
Judgment of dismissal is
appealable
Judgment of acquittal is
not appealable; DJ sets
in
Rule 33
Rule 119 S23
With or without leave of
court
With LoC- if denied,
accused presents
evidence
If granted, but on appeal
is reversed, defendant
loses the right to present
evidence, case
submitted for decision
If demurrer is granted
but on appeal, order of
dismissal is reversed,
defendant is deemed to
have waived the right to
present evidence
D2E Criminal
Without LoC- if denied,
defendant cannot
present evidence
After plaintiff rests its case, no D2E or D2E denied no
appeal,
(NO res judicata in
dismissal due to
demurrer)
2.
Plaintiff files motion to
deny motion due to
demurrer to evidence
Court may motu proprio
deny motion
If court denies demurrer,
defendant will present
evidence
If court denies demurrer,
DEFENDANT’S EVIDENCE IN CHIEF
Prove allegations in the body of the answer
(R7 S1)
Order:
Direct Examination
Cross Examination
Re Direct Examination
With LoC- accused may
present evidence
Re Cross Examination
Formal offer of evidence
W/O LoC- accused can
Comment
104
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Objection
A judgment or final order determines the merits of a
case, shall be
Offer
Tender of excluded evidence
DEFENDANT RESTS ITS CASE
Note: No more D2E- Rule 33- after PLAINTIFF rests
its case...
3.
-
in writing,
personally and directly prepared by the
judge,
stating clearly and distinctly the facts and
the law on which it is based,
must contain a dispositive part,
signed by him, and
filed with the clerk of court
REBUTTAL EVIDENCE
Purpose is to rebut defendant’s evidence in
chief
Order: (same as previously stated)
4.
-
CONSTITUTIONAL BASIS:
A8 S14—(basis for Rule 36)
No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and
the law on which it is based.
SUR REBUTTAL EVIDENCE
Purpose is to rebut the rebuttal
No petition for review or motion for reconsideration
of a decision of the court shall be refused due course
or denied without starting the legal basis therefor.
Order: (Same as previously stated)
Kinds of Judgments:
5.
MEMORANDUM
JUDGMENT UPON A COMPROMISE
Narration of facts of the case, issues, no
cause of action, no defenses, but only
contain discussions
-
After trial,
XI. JUDGMENT (Rule 36)
Declares rights/reliefs of parties
Final consideration and determination of a
court of competent jurisdiction upon the
matters submitted to it in an action or
proceeding
-
Judgment rendered by the court on the
basis of compromise agreement entered
into by the parties
Immediately executory upon signing of
compromise agreement in absence of
motion to set aside on the ground of FAME
Has effect of res judicata
Compromise agreement May be submitted
to by parties at any stage of a case, even
after F and E, even without court approval
(A2028-2046, NCC)
S1- Rendition of judgments and final orders:
105
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Court could render judgment upon a compromise,
and, in case of breach of any of the conditions, the
party may ask the court for execution of judgment.
Remedies to judgment by consent, confession,
compromise:
File motion to set aside
JUDGMENT UPON CONFESSION
Judgment rendered by court when a party
expressly agrees to the other party’s claim
or acknowledges validity of the claim
against him
Judgment upon
compromise
Judgment by confession
Provisions and terms are
settled and agreed upon
by the parties to the
action and which is
entered by the consent
of the court
An affirmative and
voluntary act of
defendant himself. The
court exercises a certain
amount of supervision
over the entry of
judgment
If denied, file petition for certiorari under
Rule 65 (R41 S1)
JUDGMENT UPON THE MERITS
Judgment that is rendered after
consideration of the evidence submitted by
the parties during the trial of the case
CLARIFICATORY JUDGMENT
Judgment rendered to clarify an ambiguous
judgment or one difficult to comply with
JUDGMENT NON PRO TUNC
2 kinds of judgment by confession:
Judgment by Cognovit actionem
Defendant after service instead of entering
a plea, acknowledged and confessed that
plaintiff’s cause of action was just and
rightful
Judgment by Confession Relicta
Verificatione
After pleading and before trial, defendant
both confesses the plaintiff’s cause of
action and withdrew or abandoned his plea
or other allegations, whereupon judgment
was entered against him without
proceeding to trial
Now for then
Judgment intended to enter into the record
the acts which had already been done, but
which do not appear in the records
JUDGMENT SIN PERJUICIO
Without prejudice
Refers to dismissal of a case without
prejudice to its being refiled
JUDGMENT BY DEFAULT (R9 S3)
Judgment rendered by the court following
an order of default, granting the claiming
106
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
party the relief prayed for on the basis of
his evidence presented ex parte by plaintiff
particular claim and all counterclaims
arising out of the transaction or occurrence
which is the subject matter of said claim
JUDGMENT ON THE PLEADINGS (R34)
SPECIAL JUDGMENT
Judgment rendered by the court upon motion by
plaintiff where the answer of defendant
R39 S11
fails to tender an issue or
otherwise admits the material allegations of
the adverse party’s pleading
Judgment requiring performance of an act
other than execution of judgments for
money execution of judgments for a specific
act,
a certified copy of the judgment shall be
attached to the writ of execution and shall
be served by the officer upon the party
against whom the same is rendered, or
upon any other person required thereby, or
by law, to obey the same, and such party or
person can be held liable for contempt for
disobedience of such special judgment
SUMMARY JUDGMENT (R35)
Judgment rendered by the court if the
pleadings, supporting affidavits, depositions
and admissions of plaintiff or defendant
show that:
except as to the amount of damages, there
is no genuine issue as to any material fact
and that the moving party is entitled to
judgment as a matter of law
JUDGMENT FOR SPECIFIC ACTS
R39 S10
Judgment of a court directing a party to
execute a conveyance of land or personal
property or to deliver deeds or other
documents, or to perform any other specific
act in connection therewith
SEVERAL JUDGMENT
R36 S4
Judgment rendered by the court where in
an action against several defendants, the
court renders judgment against one or
more of them, leaving the action to proceed
against the others
SEPARATE JUDGMENT
R36 S5
Judgment rendered disposing of a claim
among several others presented in a case
after a determination of issues material to a
JUDGMENT ON DEMURRER TO EVIDENCE
R33
judgment rendered by court dismissing case
upon motion of defendant, made after
plaintiff rested his case, on the ground that
upon the facts presented by plaintiff and
the law on the matter, plaintiff has not
shown any right to relief
107
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
CONDITIONAL JUDGMENT
Judgment wherein effectivity of such
depends upon occurrence or non
occurrence of an event
Obiter Dictum
FINAL JUDGMENT
Law of the Case
Judgment which disposes of the whole
subject matter or terminates the particular
proceedings or action, leaving nothing to be
done by the court but to enforce in
execution what has been determined
AMENDED JUDGMENT
If after judgment is promulgated, the judgment is
ambiguous and difficult to comply,
MOTION FOR CLARIFICATORY JUDGMENT
Aka clarified judgment; it is an entirely new
judgment, which supersedes an original
judgment rendered by the court
XII. REMEDIES BEFORE JUDGMENT BECOMES
FINAL AND EXECUTORY:
SUPPLEMENTAL JUDGMENT
Motion for reconsideration (Rule 37)
Judgment of the court which serves to
bolster or add to the original judgment, and
does not take place nor extinguish the
original judgment
Motion for New Trial (Rule 37)
Reopening of Trial (Rule 119)
Appeal (Rules 40-43, 45)
Conclusiveness of judgment
1.
Motion for Reconsideration (Rule 37)
R37 S1
Res Judicata (note above)
Stare Decisis
Within the period for taking an appeal, a motion for
reconsideration may move for reconsideration on
the grounds that:
a.
Damages awarded are excessive
b.
Evidence is insufficient to justify the
decision or final order
108
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Civil- for reasons of EQUITY
c.
That the decision or order is contrary to law
NOTE: M4R here is directed against judgment or
final order, not an interlocutory order which
preceded petition for certiorari (R41 S1 in relation to
R65 yon)
NOTE: Interlocutory orders are non appealable (AM
7-7-12-SC)
Under Summary Procedure, BAWAL ang M4R and
MNT R37 (General Rule)
Exception: If against interlocutory order
2.
Motion for New Trial (Rule 37)
-
Motion to Rehear a case already decided by
court but before judgment thereon
becomes final and executory,
For criminal cases- for reason of admission of
additional evidence
4.
APPEAL (Rules 40-43, 45)
-
from the judgment, order of denial,
assignment of errors
o FINAL ORDER- decision or the
denial of M4R or MNT
15 days- ordinary appeal
30 days- record on appeal (Spec Pro, Multiple
Appeals- Expropriation, Partition)
Neypes vs CA
Fresh Period to Appeal:
15 days from denial of M4R/MNT
filed within the period for taking an appeal, to
set aside the judgment or final order order and
grant a new trial based on the ff grounds
materially affecting substantial rights of a party:
(R37 S1)
1.
2.
3.
FAME which ordinary prudence could not
have guarded against and by reason of
which such aggrieved party has probably
been impaired in his right or
Newly discovered evidence which he could
not, with reasonable diligence, have
discovered and produced at the trial and
which if presented would probably alter the
result
Reopening of Trial (civil in relation to
criminal procedure- R119 S24)
Reopening of the proceedings to avoid miscarriage
of justice
30 days from denial of M4R/MNT
MTC decisions
MTC
RTC
Notice /
Record
on
Appeal
under
R40
Petition for
Review
under Rule
42
(from RTC
decisions in
exercise of
appellate
jurisdiction)
M4R
Under
Rule 37
M4R
Under
Rule 52
CA
Petition 4
review on
certiorari
under
Rule 45
SC
SC
M4R
Rule
52
109
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Notice/Record on Appeal
In case of Record on Appeal, appellant’s Brief 45
days to file record on appeal
RTC decisions in exercise of original jurisdiction
Rule 40
Rule 41
Rule 42
Rule 43
Rule 45
Memorandu
m of appeal
Appellant’
s Brief
Petition
for Review
Petition
For
Review
Petition for
Review on
Certiorari
Notice or
Record on
appeal
Notice or
record on
appeal
Petition
for Review
Petition
for
Review
(Appeal?)
Petition for
Review on
Certiorari
Of MTC
decisions
Of RTC
Decisions
original
jurisdictio
n
Of RTC
decisions
appellate
jurisdictio
n
Of quasi
judicial
bodies
Of CA,
Sandiganbayan
, CTA, RTC
decisions
Questions of
fact law or
both
Questions
of fact law
or both
Questions
of fact
law, or
both
Question
s of fact
law or
both
Questions of
law
To RTC
To CA
To CA
To CA
To SC
RTC
General Rule:
M4R
Under
Rule 37
Notice or
Record
on appeal
under
Rule 41
Finding of fact of CA are final and conclusive and
cannot be reviewed on appeal to SC:
CA
EXCEPTIONS:
M4R
Under
Rule 52
SC
Petition 4
review on
certiorari
under
Rule 45
SC
M4R
Rule
52
1.
When finding is grounded entirely on
speculations, surmise, conjecture
2.
When inference is manifestly absurd,
mistaken, or impossible
3.
When judgment is premised on a
misrepresentation of facts
4.
When there is GAD in appreciation of facts
5.
When findings of fact are conflicting
110
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
6.
When CA in making its findings went
beyond the issues of the case and the same
is contrary to both the admissions of
appellants and appellees
7.
When findings of fact of CA are at variance
with those of the trial court, the SC has to
review the evidence in order to arrive at the
correct findings based on record
8.
When findings of fact are conclusions
without citation of specific evidence on
which they are based
9.
When facts set forth in the petition as well
as in the petitioner’s main and reply briefs
are not disputed by respondents
10. when findings of fact of the CA is premised
on supposed evidence and is contradicted
by evidence on record
S2- Petition for relief from denial of appeal
When judgment or final order is rendered by court in
any case, and a party thereto, by FAME, has been
prevented from taking an appeal, he may file a
petition in such court and in the same case and
praying that the appeal be given due course.
Filed within 60 days from knowledge of judgment
and within 6 months from entry of judgment
-
Relate to appeal
o Failure to appeal due to FAME
2.
Petition for Annulment of judgment (Rule
47)
RTC exclusive original jurisdiction to CA
11. when certain material facts and
circumstances which have been overlooked
by the trial court which, if taken into
account, would alter the result of the case
in that they would entitle accused to
acquittal
REMEDIES AFTER JUDGMENT BECOMES FINAL AND
EXECUTORY:
1.
MTC exclusive original jurisdiction to RTC
Ground: extrinsic fraud
Annulment of judgment
-
Petition for relief from Judgment (Rule 38)
S1- Petition for relief from judgment, orders, other
proceedings
When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party
in any court through FAME, he may file a petition in
such court and in the same case praying that the
judgment, order, or proceeding be set aside
-
OTHER PROCEEDING INCLUDES:
o Order or writ of execution
o Order dismissing appeal
Remedy in law independent of the case
where the judgment sought to be annulled
was rendered and may be availed of though
the judgment has been executed
Important condition:
-
Petitioner failed to move for MNT, appeal
from, file petition for relief against, or take
other appropriate remedies assailing
questioned judgment or final order or
resolution through no fault attributable to
him
111
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
a.
S2- Grounds
1.
2.
Extrinsic or collateral fraud
Lack of jurisdiction over subject matter and
over the person
upon expiration of period to
appeal therfrom if no appeal has
been duly perfected
NOTE: (rules on motion)
-
ministerial on the part of the court
IF DENIED, mandamus or appeal is the proper
remedy
3.
Certiorari under Rule 65
Nature of writ of execution:
R39 S8
4.
Collateral Attack
The writ of execution is issued in the name of RP and
shall state:
EXECUTION OF JUDGMENT
-
-
Name of court which granted the
motion
f.
Case number
g.
Dispositive
portion
of
the
judgment or order subject of the
execution
h.
Shall require the sheriff or other
proper officer to whom it is
directed to enforce the writ
according to its terms
Nothing left for the court but to enforce its
decision
Execution
-
e.
remedy afforded by law for the
enforcement of a judgment
object is to obtain satisfaction of the
judgment on which the writ is issued
BY MOTION- 5 years
AFTER 5 years
Rule: Matter of right on part of winning party
(execution), and court cannot refuse
Revival of Judgment- 10 YEARS, by MOTION
Except:
1.
When judgment turns out to be incomplete
or conditional
2.
Judgment is novated by parties
Execution as a matter of right (R39 S1)
Execution shall issue as a matter of right, on motion,
1.
upon judgment or order that disposes of
the action or proceeding
112
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
3.
Equitable grounds like change in situation
of the parties which makes execution
inequitable
4.
Execution is enjoined
5.
Judgment has become dormant
6.
Execution is unjust or impossible
May issue before lapse
of period to appeal, and
even during appeal
Discretionary upon the
court; there is inquiry on
whether there is good
reason for execution
right
Period to appeal has
already
lapsed,
no
appeal is perfected
Ministerial duty of the
court provided there are
no supervening events
S2- Discretionary execution
a.
When proper to Quash Writ of Execution:
Execution of a judgment or a final order
pending appeal
On motion of the prevailing party with notice to the
adverse party filed in the trial court
1.
Change in situation of parties renders
execution inequitable
2.
Issued against the wrong party
3.
Issued without authority
4.
Improvidently issued
5.
Defective in substance
6.
Judgment is already satisfied
7.
Controversy was never submitted to the
court
After the trial court has lost jurisdiction, the motion
for execution pending appeal may be filed in the
appellate court.
Rule: Dispositive portion of decision is the part that
becomes subject of execution
Discretionary execution may only issue upon good
reasons to be stated in a special order after due
hearing.
-
while it has jurisdiction over the case and
is in possession of either the original record
or the record on appeal, as the case may be,
o at the time of the filing of such
motion, said court may, in its
discretion,
 order execution of a
judgment or final order
even
before
the
expiration of the period to
appeal
Except:
1.
When there is ambiguity in the dispositive
portion
2.
Where extensive and explicit discussion and
settlement of the issue is found in the body
of the decision
b.
Execution of several, separate, or partial
judgments
A several, separate, or partial judgment may be
executed under the same terms and conditions as
execution of a judgment or final order pending
appeal.
S2- Discretionary Execution
Discretionary Execution
Execution as a matter of
Grounds:
113
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1.
2.
Insolvency of judgment debtor
Wastage of asset by judgment debtor
Court may, in its discretion, order an execution
before expiration of the time within which to appeal,
provided,
5.
Other judgments declared to be
immediately executory unless otherwise
ordered by trial court
S6- Execution by motion or independent action
Modes of enforcement:
1.
There is motion for execution filed by
winning party
2.
There is notice of said motion to the
adverse party
3.
There are good reasons stated in a special
order after due hearing
Supersedeas Bond
-
Bond filed by petitioner and approved by
court before the judgment becomes final
and executor and conditioned upon
performance of the judgment appealed
from, in case it be affirmed wholly or in part
Remedy in case of execution as matter of discretion,
-
CERTIORARI
o Interlocutory, without prejudice to
the outcome of appeal
S4- Judgments not stayed by appeal
(Exception to general rule)
In the following cases:
1.
2.
3.
4.
Injunction
Receivership
Accounting
Support
1.
By motion within 5 years from date of entry
2.
By independent action for revival of
judgment after 5 years from entry and
before it is barred by statute of limitations
which is 10 years from entry under 1144,
NCC
Revival of judgment S6
Independent action
Assumes there is no
execution within first 5
years
Party who files the
action is the judgment
creditor himself, or his
assignee,
or
his
successor in intereest
Filed due to lapse of 5
year period
Revival of judgment S34
Carried out through
filing of a motion in
court
Assumes that judgment
is executed within first 5
years
Party who files such
motion is not the original
judgment creditor but he
is the highest bidder in
the public auction
Filed because movant is
deprived of property
purchased
S6 N/A to:
1.
2.
3.
4.
Judgments for support
Contempt orders in unauthorized re-entry
on land by ejected defendant
Issuance of writs of possession and
Special proceedings and land registration
cases
S9- Award of judgments of money, how enforced
114
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1.
2.
3.
Immediate payment on demand
Satisfaction by levy
Garnishment of debts and credits
Levy
-
Act by which officer sets apart or
appropriates part of whole property of
judgment debtor for purposes of execution
sale
Garnishment
-
Act of appropriation by the court when
property of debtor is in the hands of a third
person
Attachment
Refers to corporate
property in possession of
judgment debtor
Garnishment
Refers to money, stocks,
credits,
other
incorporeal
property
which
belong
to
judgment debtor but is
in the possession or
under control of a third
person
S10- Execution of judgments for specific act
1.
2.
3.
4.
5.
Conveyance, delivery of deeds, other
specific acts vesting title
Sale of real or personal property
Delivery or restitution of real property
Removal of improvements on property
subject of execution
Delivery of personal property
S13- Property Exempt from Execution:
1.
Judgment obligor’s family home as provided
by law, or the homestead in which he
resides, and the land necessarily used in
connection therewith
2.
Ordinary tools and implements personally
used by him in his trade, employment, or
livelihood
3.
3 horses, 3 cows, 3 carabaos, other beasts
of burden such as judgment obligor may
select necessarily used by him in his
ordinary occupation
4.
Necessary clothing and articles for ordinary
personal use, including jewelry
5.
Household furniture and utensils necessary
for housekeeping, and used for that
purpose by the judgment obligor and his
family, such as the judgment obligor may
select, of a value not exceeding 100k pesos
6.
Provisions for individual or family use
sufficient for 4 months
7.
Professional libraries and equipment of
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, other professionals, not exceeding
300k pesos in value
8.
One fishing boat and accessories not
exceeding total value of 100k pesos owned
by a fisherman and by the lawful use of
which he earns his livelihood
9.
So much of the salaries, wages, or earnings
of the judgment obligor for his personal
services within the 4 months preceding the
levy as are necessary for support of his
family
10. Lettered gravestones
115
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
11. Monies, benefits, privileges, annuities
accruing or in any manner growing out of
any life insurance
12. Right to receive legal support, or money or
property obtained as such support, or any
pension or gratuity from government
Ordinary sale on
execution
Need not be confirmed
by court
13. Persons specially exempted by law
BUT not article or species of articles of property
mentioned in this section shall be exempt from
execution issued upon a judgment recovered for its
price or upon a judgment of foreclosure of a
mortgage thereon.
Right
exists
of
redemption
Title is acquired after
expiration of redemption
period when final deed
of
conveyance
is
executed
Sale in judicial
foreclosure of mortgage
Must be confirmed by
court in order to divest
rights in the property of
the parties and to vest
the
rights
in
the
purchaser
No right of redemption
except when mortgagee
is a bank or a banking
institution
Title is acquired upon
confirmation
and
registration
of
the
foreclosure sale
S16- Proceedings where property claimed by third
person
rd
Remedies of 3 party claimant:
S30- Proof required of redemption
1.
Summary hearing before
competent jurisdiction
court
of
2.
Terceria or third party claim filed with
sheriff
3.
Action for damages on the bond posted by
judgment creditors
4.
Independent reivindicatory action
Terceria
-
A person claiming property levied upon may
execute affidavit of title or right of
possession over the property
o Such affidavit must state the
grounds of such right or title
o The affidavit shall be served upon
officer making a levy and a copy
thereof must also be served upon
the judgment oblige
Note: Cumulative remedies
Redemptioner must produce to officer, or person
from whom he seeks to redeem, and serve with his
notice to the officer:
1.
A copy of the judgment or final order
certified by the clerk of court wherein the
judgment or final order is entered
2.
If he redeems upon a mortgage or other
lien, a memorandum of the record thereof,
certified by RD, or
3.
An original or certified copy of any
assignment necessary to establish his claim,
or
4.
An affidavit executed by him or his agent
showing the amount then actually due on
the lien
S32- Rents, Earnings, Income of property pending
redemption
Rights of judgment debtor:
116
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1.
Remain in possession of property
2.
Cannot be ejected
3.
Use the property in the same manner it was
previously used
4.
Make necessary repairs to buildings
thereon while he occupies the property
5.
Use it in the ordinary course of business
6.
Collect rents, earnings, and income derived
from the property until expiration of the
period of redemption
5.
Court may appoint a receiver for the
property of the judgment debtor not
exempt from execution or forbid a transfer
or disposition or interference with such
property
6.
If court finds that the judgment debtor has
an ascertainable interest in real property
either as mortgagor, mortgagee or
otherwise, and his interest can be
ascertained without controversy, the court
may order the sale of such interest
7.
If the person alleged to have the property
of the judgment debtor or be indebted to
him, claims an adverse interest in the
property or denies the debt, the court may
authorize judgment creditor to institute an
action to recover the property, forbid is
transfer and may punish disobedience for
contempt
S35- Remedies of judgment creditor in aid of
execution
1.
If execution is returned unsatisfied, he may
cause examination of judgment debtor as to
his property and income
2.
He may cause examination of debtor of the
judgment debtor as to any debt owed by
him or to any property of the judgment
debtor in his possession
S47- Effect of judgment or final order
Res judicata
-
3.
If after examination, the court finds
property of the judgment debtor, either in
his own hands or that of any person, the
court may order the property applied to the
satisfaction of the judgment
Bar by former judgment/direct estoppel by
judgment
Conclusiveness of judgment
-
A party or other person may be compelled, by order
or subpoena, to attend before the court or
commissioner to testify as provided by S36 and S37
Estoppel by verdict, estoppel by record,
collateral estoppel by judgment or
preclusion of issues or rule of auter accion
pendent, covers par c
Public Policy Principle
4.
If court finds the earnings of the judgment
debtor are more than sufficient for his
family’s needs, it may order payment in
instalments
-
Inalterability
judgment
of
final
and
executory
117
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Decisions of court must be immutable at some
definite period of time
-
Judgment by a court is enforceable only
within its territorial jurisdiction
Effect of foreign judgments
Conclusiveness of judgment
-
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
Bar by former judgment
Identity
of
parties,
subject matter, causes of
action
First
judgment
constitutes absolute bar
to all matters directly
adjudged and those that
might
have
been
adjudged
Has the effect
preclusion of claims
of
Provided that the tribunal has jurisdiction
1.
In case of judgment against a specific thing,
a. Judgment is conclusive upon title
to the thing
2.
In case of judgment against a person,
a. Judgment is presumptive evidence
of a right as between the parties
and their successors in interest by
a subsequent title
Conclusiveness of
judgment
Identity of parties and
subject matter
First
judgment
is
conclusive only as to
matters
directly
adjudged and actually
litigated in the first
action. Second action
can be prosecuted
Has the effect of
preclusion only to issues
Law of the case
-
-
Refers to the legal conclusions announced
on a first appeal, whether on the general
law or the law as applied to the concrete
facts, not only prescribe the duty and limit
the power of the trial court to conduct
obedience and conformity thereto, but they
become and remain the law of the case in
all other steps, whether in the lower court
or in the appellate court on a subsequent
appeal
S48- Effect of foreign judgment or final orders
2 ways of giving effect to a foreign judgment:
1.
Ordinary action to enforce the foreign
judgment may be filed in court or
2.
It may be pleaded in an answer or motion
to dismiss
In both instances, judgment may be repelled by
evidence of:
1.
2.
3.
4.
Want of jurisdiction
Want of notice
Collusion
Fraud
Effect of foreign judgment:
R39 S8
The effect of a foreign judgment or final order of a
tribunal of a foreign country, having jurisdiction to
render judgment or final order is as follows:
Public policy principle
118
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
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, a judgment or final order may be
repelled by evidence of:
1.
2.
3.
4.
5.
Want of jurisdiction
Want of notice to a party
Collusion
Fraud
Clear mistake of law or fact
LAST NOTES ON CIVIL PROCEDURE
Note latest Rules on ADR (2009) in relation to Rule
18
119