civil procedure tan notes

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE

Notes by: Paul Lemuel E. Chavez

1

CIVIL PROCEDURE NOTES

PRELIMINARIES

Remedial Law

Branch of law which prescribes the method

of enforcing the rights or obtaining redress

for their invasions

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:

1. Civil Procedure (Rules 1-71)

2. Special Proceedings (Rules 72-109)

3. Criminal Procedure (R110-R127)

4. Rules on Evidence (Rules 128-134)

What are the sources of Remedial Law?

1. 1987 Constitution

2. 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 proceeding

wherein a

A party sues

another for

the

enforcement

or protection

of a right, or

the

prevention or

redress of a

wrong



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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

Except

Habeas

Corpus, NOT

based on a

Based on an

act or

omission

punishable by

Based on a

cause of

action

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)

1987 Constitution



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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

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 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

A8 S5 P5 (basis of Rules of Court)



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The SC shall have the power to promulgate rules

concerning:

1. Protection and enforcement of

constitutional rights

2. Pleading, practice, procedure in all courts

3. Admission to practice of law

4. Integrated Bar

5. Legal assistance to the underprivileged

Such rules shall (Limits to SC-rule making power):

1. Provide simplified and inexpensive

procedure for speedy disposition of cases

2. Shall be uniform for all courts of the same

grade

3. 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

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.

No law shall be passed reorganizing the Judiciary

when it undermines security of tenure of its

members.

A3 S16

All persons shall have the right to speedy disposition

of cases before before all judicial, quasi judicial,

administrative bodies.

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.

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.

CIVIL PROCEDURE PROPER

Jurisdiction

Authority of the court to hear and decide a

case and to implement its decision

Rule 30 Rule 36

Rule 39

Venue Jurisdiction

Place where action is

instituted

Power of court to hear

and decide a case



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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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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

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)

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

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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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

Judge, court, quasi

judicial agency, tribunal,

corporation, board or

officer or person are

public respondents who

are impleaded in the

action

Motion for

reconsideration is not

required

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)

Court is in exercise of its

appellate jurisdiction

and power of review

Court exercises original

jurisdiction

Petition shall be filed

with the Supreme Court

Petition shall be filed

with the RTC, CA,

Sandiganbayan, Comelec

JURISDICTION

SUPREME COURT

Original Jurisdiction of the Supreme Court:

A8 S5 P1- (Rule 56)

The SC shall have exclusive original jurisdiction over

cases involving:

1. Ambassadors

2. Other public ministers and consuls

3. Over petitions for:

a. Certiorari

b. Prohibition

c. Mandamus

d. Quo warranto

e. 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

2. All cases involving the legality of any tax,

impost, assessment or toll, or any penalty

imposed in relation thereto

3. All cases in which the jurisdiction of any


4. All criminal cases in which the penalty


(WITHIN THE SCOPE OF CRIMINAL

PROCEDURE- RULE 45)

5. All cases in which only an error or question

of law is imposed

1 and 2- PURE QUESTIONS OF LAW

Administrative Supervision of the Supreme Court:

1. Over court personnel



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2. Over Justices

3. Over Judges

4. Practice of Law

5. Members of the Integrated Bar

CA decisions

- 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)

COURT OF APPEALS

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:

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)

RTC

Exclusive Original Jurisdiction:

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



9

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

(refer to 902-A below)

8. 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

9. 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

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

Concurrent Original Jurisdiction:

With SC, CA, -- over petitions for certiorari,

mandamus, prohibition, quo warranto, habeas

corpus

Appellate Jurisdiction:



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Over all cases decided by MTCs, MuTCs, MCTCs in

their respective territorial jurisdictions

MTC

(note: baligtarin ang RTC jurisdiction, below 20-50,

300-400)

Ordinary Civil Actions:

1. 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

2. 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)

3. exclusive original jurisdiction in all civil

actions involving title to or possession of

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

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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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

In Civil Procedure, SC-CA-RTC-MTC

In Criminal Procedure, SC-CA-SANDIGANBAYAN-RTC-

MTC

Commencement of a Civil Action:

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

By voluntary appearance or service of

summons

Jurisdiction over subject matter

Conferred by law

Jurisdiction over the issue

Determined by allegations in the complaint

Jurisdiction over the res

By actual or constructive seizure of property

by way of attachment or execution

Action, Cause of Action, Right of Action (Simplified

Version)

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



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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

Kinds of actions:

1ST

GROUP: for purposes of venue under Rule 4

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

- Venue: R4 S1

2ND

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

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



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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:

Probate

proceeding,

cadastral

proceeding,

special

proceedings

Examples:

Action for

specific

performance

Action for

breach of

contract

Examples:

Action for

partition

Action to

foreclose real

estate

mortgage

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

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:

Accion

reivindicatoria

Example:

Action for a

sum of money

Example:

Accion

publiciana with

a claim for

damages

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



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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)

Rules on personal

actions govern (?)

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

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

INITIATORY PLEADING

A pleading that initiates an action

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

4th

party complaint

Complaint in intervention

Petition

In special civil actions

In special proceedings

Counter counter claim



15

Counter cross claim

Counter Counter Claim Counter Cross Claim

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

COMPULSORY- Arises

out of or is necessarily

connected with the

transaction or

occurrence that is the

subject matter of the

opposing party’s claim

PERMISSIVE- does not

arise of or is necessarily

connected with the

transaction or




Can be an initiatory

pleading, if permissive

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

A motion IS NOT A PLEADING

A position paper IS NOT A PLEADING

A memorandum IS NOT A PLEADING

Why?

Motion is an application for relief other than by a

pleading (R15 S1)

Position Paper and Memorandum only narrate facts

of the case, issues, no cause of action, no defenses,

but only contain discussions

Initiatory Pleading Responsive Pleading

A pleading that

initiates an action

A pleading that responds

to allegations in the

adverse party’s pleading

Original

complaint

Permissive

counterclaim

Cross claim

Third party

complaint

4th

party

complaint

Complaint in

Answer to original

complaint

Answer to

permissive

counterclaim

Answer to third

party complaint

Answer to fourth

party complaint

Answer to

complaint in

intervention



16

intervention

Petition

In special civil actions

In special proceedings

Counter

counter claim

Counter cross

claim

Comment or

objection to

petition

Compulsory

counterclaim

Reply

Answer to counter

counter claim

Answer to counter

cross claim

Need to be verified,

with certification

against forum

shopping, plus

payment of docket

fees

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

document

Allegations of

usury

Answer to

permissive

counterclaim

Succeeding

pleadings in

special

proceedings

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:



17

S408, LGC

1. where one party is the government or any

subdivision or instrumentality thereof

2. 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

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

10. where the actions are coupled with

provisional remedies such as preliminary

injunction, attachment, delivery of personal

property, and support pendent lite

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:

S409, LGC

Disputes between persons actually residing

in the same barangay shall be brought for

amicable settlement before the lupon of

said barangay

Those involving actual residents of

different barangays within the same city or

munipality shall be brought in the barangay



18

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. File the case before the proper court

2. Repudiate the agreement (S418, LGC)

3. 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



19

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

Notice of Lis Pendens

- “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

II. COMPLAINT

Complaint (R6 S3)



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 (?)

Jurisdiction

IF, court has no jurisdiction, M2D R16 S1b

(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. 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

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

HOWEVER, with respect to SMALL CLAIMS CASES,

ABSOLUTE RULE: motion to dismiss is not allowed



20

Reason: defeats the purpose of Small Claims

Proceedings

Venue

- Can be subject to stipulation of the parties

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

1. The parties have validly agreed in writing

2. The agreement in writing was made before

the filing of the action

3. Exclusive venue is stipulated

Atty Tan’s comment:

Rule 4 of the Rules of Court did not provide for MAY,

but SHALL

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 S2-

can 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?



21

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

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

(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,

the counterclaimant, cross claimant, or the 3rd

4th

etc

party plaintiff. The term defendant may refer to the

original defending party, the defendant in the

counterclaim, the cross defendant, or the 3rd

4th etc

party defendant.

Plaintiff includes:

- Counter counterclaimant

- Counter cross claimant

Defendant includes:

- 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

3rd

party plaintiff

A defending party who may with leave of

court file against a third person not party to

the action called the 3rd

4th

etc party

defendant a claim for contribution,

indemnity, subrogation, or any other relief

in respect of his opponent’s claim (R6 S11)

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)



22

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

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)

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)

Who is a proper 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)

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:

- 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)

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)

Quasi Party

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:



23

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.

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

R3 S6

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.

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

Cause of Action

Act or omission by which a party violates a

right of another (R2 S2)

What are the elements of a cause of action?

1. Plaintiff exercises a legal right

2. Correlative obligation the part of defendant

to respect plaintiff’s legal right

3. 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

GRANTED: refile; amend pleading

Denied:













24

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

Special Civil Actions:

1. Interpleader (R62)

2. Declaratory Relief (R63)

3. 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

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

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:



25











PLEADING / PARTS OF A PLEADING

Rule 7 S1

The caption sets forth:

a. Name of the court

b. Title of the action

c. Docket number if assigned

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.

R7 S2

The body of the pleading shall set forth its:

1. Designation

2. Allegation of the claims or defenses

3. Relief prayed for

4. 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

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 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.

Date

Every pleading shall be dated

R7 S3

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. he has read the pleading,

2. that to the best of his knowledge,

information or belief there is good ground

to support it, and

3. that it is not interposed for delay

An unsigned pleading produces no legal effect



26

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. Counsel who deliberately files unsigned

pleading

2. Signs a pleading in violation of these rule,

3. or alleges scandalous or indecent matter

therein,

4. Or fails to promptly report to the court a

change of his address, shall be subject to

appropriate disciplinary action

R7 S4

Except when otherwise specifically required by law

or rule, pleadings need not be under oath, verified,

or accompanied by affidavit.

A pleading is verified by an affidavit that

1. the affiant has read the pleading

2. 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. on information and belief or

2. upon knowledge, information and belief

3. or lacks a proper verification

shall be treated as an unsigned pleading

Is a jurat a part of a pleading?

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.

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)

Complaint for injunction (R58 S4)

Application for appointment of receiver

(R59 S1)

Application for support pendent lite (Rule

61 S1)

(all initiatory pleadings)

Original Complaint

Permissive Counterclaim

Cross Claim

3rd

4th

etc party complaint


Petition

(all Special Civil Actions)

Interpleader (R62)

Declaratory Relief and Similar Remedies

(R63)

Review of Judgments and Final Orders or



27

Resolutions of COMELEC, CoA (R64)

Petitions for certiorari, prohibition,

mandamus (R65)

Quo Warranto (R66)

Expropriation (R67)

Foreclosure of Real Estate Mortgage (Rule

68)

Partition (R69)

Forcible Entry and Unlawful Detainer (R70)

Contempt (R71)

(all Special Proceedings)

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, )

Petition for inter country adoption (Inter

Country Adoption Act, )

Habeas Corpus (R102)

Writ of Amparo ( )

Writ of Habeas Data ( )

Change of Name (R103)

Clerical Error Act ( )

Cancellation or Correction of Entries in the

Civil Registry (R108)

Voluntary Dissolution of Corporations

(Corporation Code )

Judicial Approval of Voluntary Recognition

of Minor Natural Children (Family Code,

)

Constitution of the Family Home (Family

Code, )

Declaration of Absence and Presumptive

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)

Motion to set aside default order (R9 S3b)

Answer to written interrogatories (R25 S2)

Answer to request for admission (R26 S2)



28

The following pleadings or motion with affidavit or

affidavits of merit:

Motion to postpone for absence of

evidence (R30 S3)

Motion to postpone for illness of a party or

counsel (R30 S4)

Motion for summary judgment or

opposition thereto (R35 S1,2,3,5)

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)

Proof required of a redemptioner (R39 S30)

Motion for preliminary attachment (R57 S3)

Motion for dissolution of preliminary

injunction (R58 S6)

Application for writ of replevin (R60 S2)

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?

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)

When the answer is based on an actionable

document (R8 S8)

Answer under the Revised Rules on

Summary Procedure

Answer in Small Claims Cases

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

Grounds for judgment on the pleadings:

Answer fails to tender an issue

Answer admits the material allegations of


Who can verify a pleading?

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

How about an authorized representative? Can he

verify?

Yes, if armed with proper authority from the party

(Through SPA?)



29

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.

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:

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:


Original complaint

Permissive counterclaim

Cross claim

3rd

4th

etc party complaint


Petition

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



30

asserting 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 action or claim is

pending therein

2. If there is such other pending claim or

action, a complete statement of the present

status thereof

3. If he should thereafter learn that the same

or similar action or claim has been filed or is

pending, he shall report that fact within 5

days therefrom to the court wherein his

aforeseaid complaint or initiatory pleading

has been filed

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

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

Willful and deliberate forum shopping

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.

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:

Complaint (R6 S3)



Counterclaim (R6 S6)

Any claim which a defending party may

have against an opposing party



31

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

3rd 4th

etc party complaint (R6 S11)

A claim that a defending party may, with

leave of court, file against a person not a

party to the action, called a 3rd

4th

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

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

Cross Claim

A vs B and C

(Original Complaint)

Cross Claim

Counter Cross Claim

Third Party Complaint

A vs B vs C (for CISA)



32

C is impleaded for CISA

Complaint In intervention

A vs B

C (or)

C wants to be impleaded in the action

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

action, called a 3rd

4th

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

Third party is impleaded

in the suit for CISA

Third party has legal

interest and wants to be

impleaded in the suit


Requires payment of docket fees

Permissive Counterclaim vs Compulsory

Counterclaim (Simplified version)

Permissive CC Compulsory CC

Does not arise out of or

is connected with the

transaction or




Arises out of or is

connected with the

transaction or




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


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



33

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

Lis Pendens vs Litis Pendencia

Lis Pendens Litis Pendencia

“buyer beware”

Notice to buyer of

existence of an adverse

claim

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 A ground for motion to

dismiss under Rule 16

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

preservation of rights while the main action is

pending

PROVISIONAL REMEDIES

- 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. Preliminary Attachment (Rule 57)

2. Preliminary Injunction (Rule 58)

3. Receivership (Rule 59)

4. Replevin (Rule 60)

5. 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

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



34

attached as security for the satisfaction of judgment

that may be recovered in the following cases (See

grounds)

Grounds for preliminary attachment (NOTE:

TINATANONG SA BAR!)

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

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 Affidavit

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

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?



35

YES. Because under Summary Procedure, not a

prohibited pleading

FE/UD- No

Amount 200k MM- yes

100k- no

Ordinary Civil Actions- yes

When is it necessary to issue summons?

In case of implementation of the preliminary

attachment (3rd

stage)

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:

R57 S12 and S13

S12- Motion to discharge attachment upon giving of

counterbond

S13- Motion to quash the writ of attachment on the

ff grounds:

- That the writ was improperly or irregularly

issued or enforced

- That the bond is insufficient

If the attachment is excessive, the discharge shall be

limited to the excess

Order of denial of motion to quash:

- INTERLOCUTORY, hence,

o M4R R65 S4

o Certiorari R65 S1, R41 S1b

Purpose of the bond:

- To answer for damages incurred by the

adverse party in case writ of attachment is

improperly or irregularly enforced

Writ of Preliminary Attachment

Writ of Replevin

Covers real or personal property

Covers only personal property

At the commencement of the action or at any time before entry of judgment

Commencement of the action or at any time before answer

Amount of the bond is the value of the obligation (fixed by the court)

Amount of the bond is double the amount of the personal property

May be resorted to even if property is in the possession of a third person

Can be sought only when defendant is in actual possession of the property

B. Preliminary Injunction (Rule 58)

Injunction

- Judicial writ, process, or proceeding

whereby a party is ordered to do or refrain

from doing a particular act



36

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

Preliminary Mandatory Injunction

- An order requiring the performance of a

particular act or acts

Denial- interlocutory

- Remedy: certiorari

If FJ- appeal

Can preliminary injunction be issued ex parte?

NO (?). TRO- yes

Writ of preliminary injunction

TRO

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

An order to restrain particular act or acts of a party for a limited period of time

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

complained of, or in requiring the

performance of an act or acts, either for a

limited period or perpetually

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

Irreparable damage and injury

- 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

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



37

3. Shall state the following (R15 S3)

a. Relief sought to be obtained

b. Grounds upon which it is based

and

c. 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)

6. Motion and notice of hearing must be

served at least 3 days before the date of

hearing (3 day notice rule)

7. Proof of service of the motion

R13 S13

Proof of personal service shall consist of:

- 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

The registry return card shall be filed immediately

upon its receipt by the sender, or in lieu thereof, the

unclaimed letter together with the certified or sworn

copy of the notice given by the postmaster to the

addressee.

8. 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)

Effect of failure to comply with Sections, 4, 5, 6 of

Rule 15?

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)

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

HOW?

At the commencement of the 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



38

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



39

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

SC or member issues: effective until further orders

AGAIN...

TRO- order restraining acts of a party for a limited

period of time

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?

Ordinary Civil Actions- Pwede

Forcibly Entry / UnlawFul Detainer- YES

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

- defendant’s appeal is frivolous or dilatory,

or

- that the appeal of plaintiff is prima facie

meritorious

REMEDIES IN CASE OF PRELIMINARY INJUNCTION:

Granted: (Rule 57 S6)

- quash the writ based on:

1. upon showing of insufficiency

2. on other grounds upon affidavits of the

party or person enjoined

3. 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

Other requirements for quashal of writ:



40

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

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

Can MTC issue preliminary injunction?

YES, except in:

Case falling under Summary Procedure, if the claim

being 100k (Small Claims), EXCEPT:

- FE and UD

o R70- preliminary mandatory

injunction and preliminary

prohibitory injunction are allowed

Prohibitory Injunction Prohibition

Provisional remedy Special civil action

Rule 58 Rule 65

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

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 Mandamus

Provisional Remedy Special Civil Action

Rule 58 Rule 65

An order requiring the performance of a particular act or acts

Requires performance of a ministerial act or to desist from excluding another from a right or office (ministerial)

Directed against a party Directed against a Judicial or quasi judicial bodies exercising ministerial functions

Provisional remedy Original action

By way of motion By way of petition

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

Where applied for?

1. Court where action is pending

2. CA

3. 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



41

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. 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

c. 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

d. 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,


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



42

1. Bring and defend, in such capacity, actions

in his own name

2. Take and keep possession of the property in

controversy

3. To receive rents

4. To collect debts due to himself, as receiver

or to the fund, property, estate, person,

corporation to which he is the receiver

5. To compound for and compromise the

same

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

However, funds in the hands of a receiver may be

invested only by order of the court upon the written

consent of all the parties to the action.

No action may be filed by or against a receiver

without leave of the court which appointed him

Termination of receivership; compensation of

receiver

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,

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

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.

D. REPLEVIN (Rule 60)

- 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:

RTC or MTC (300k-400k OMM MM higher lower)

REQUIREMENTS: (R60 S2)

1. Verified Application (by affidavit)/complaint

before service of answer

Facts:

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



43

c. 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

d. The actual market value of the property

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

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!

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?

- Action for support

- Relief sought is support for applicant

- Nullity of marriage

- Annulment of marriage

- Legal separation

- Custody of minors in relation to habeas

corpus

- Criminal cases:

o Rape

o RA9262

S1- Application

At

- 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

- 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.



44

S3- Hearing

1. After the comment is filed, or

2. 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.

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.

If the application is granted,

- 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.

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,

- issue an order of execution against him,

o without prejudice to his liability for

contempt.

When the person ordered to give support pendente

lite refuses or fails to do so,

- 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

In criminal cases

1. where the civil liability includes support for

the offspring as a consequence of the crime

2. 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,



45

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.

Failure of action for support pendente lite, REMEDY:

- move for motion for execution

DENIED,

- file petition for indirect contempt, for

disobedience to lawful order of the court

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 SCA initiated by

complaint petition

- Interpleader (62) - Foreclosure of

mortgage (68) - Forcible entry /

UD (70) - Partition (69) - Expropriation

(67)

- declaratory relief (62)

- review of adjudication of comelec, coa (64)

- c, m, p (65) - qw (66) - contempt (71)

1. Interpleader (62)

2. 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:

VENUE

MOTION TO DISMISS

DEMURRER TO EVIDENCE

PARTS OF A PLEADING

INTERPLEADER (Rule 62)

- Initiated by way of complaint

S1- When proper



46

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

NOTE: Person in possession has no legal interest

Interpleader Intervention

Rule 61 Rule 19

Without leave of court With leave of court

Original / Special Civil action

Ancillary to main action

Filed by complaint for interpleader

If for plaintiff- complaint in intervention If for defendant- answer in intervention

At any time Before judgment

JURISDICTION:

RTC or MTC 20-50 real 300-400 personal higher

lower

VENUE:

Real- R4 S1

Personal- R4 S2

S2- Order

Upon filing of the complaint, the court shall

- 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.

S4- Motion to dismiss

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.

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)

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,

- 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,



47

- declare him in default and

- thereafter render judgment barring him

from any claim in respect to the subject

matter.

The parties in an interpleader action may file

counterclaims, cross claims, 3rd

party complaints and

responsive pleading thereto, as provided in these

Rules.

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.

In case of adverse Resolution,

Appeal pursuant to R40-42

DECLARATORY RELIEF AND OTHER SIMILAR

REMEDIES (R63)

Objective: (R63 S1)

Interpretation/Construction of:

o deed,

o will,

o contract, or

o other written instrument, or

determining validity of:

o statute,

o executive order,

o regulation,

o ordinance, or

o any other governmental regulation

OTHER SIMILAR REMEDIES CONTEMPLATED which

applies the provisions of this Rule:

- reformation of an instrument

NOTE: INSTRUMENT, not the elements of the

instrument—if such, e subject of another proceeding

to, annulment of contract

- 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

JURISDICTION/VENUE:

Declaratory Relief:

- RTC- incapable of pecuniary estimation

Queting of title:

- MTC or RTC 20-50 OMM MM lower higher

Consolidation of ownership:


Reformation of contracts:


Can the SC entertain petition for declaratory relief?

NO. BP129- RTC EO Jur, actions incapable of

pecuniary estimation



48

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

S4- Local government ordinances

In any action involving the validity of a local

government ordinance,

- 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.

In case of adverse resolution

- APPEAL R41

o (R40 to RTC if Quieting in MTC)

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

S1- Scope

Final orders or judgments of COA and COMELEC

S2- Mode

SC- petition for certiorari under Rule 65

S3- Time

Within 30 days from notice of judgment

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



49

S4- Docket, lawful fees

Pay, + 500 for costs

S5- Form/Contents

1. Verified petition, 18 copies, with certified

true copy of judgment

2. Respondent is Comelec or CoA, person

interested in sustaining

3. Finding of fact supported by substantial

evidence, final and non reviewable

4. State specific material dates showing it was

filed on time

5. Accompanied by sworn certification against

forum shopping

6. 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. Non compliance with form and contents

2. Non payment of docket and 500 for costs

3. Filed manifestly for delay

4. Questions are too unsubstantial to warrant

further proceedings

S7- Comments of respondents

- 18 copies

- No other pleading may be filed unless

required or allowed by court

S8- Effect of filing

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

Rule 65 Rule 64

Applies to orders of judicial, quasi judicial court or tribunals

Applies to judgments, final orders, resolutions of CoA and COMELEC

60 days from denial of motion for reconsideration (AM 7-7-12-SC)

30 days from notice of judgment or final order or resolution sought to be reviewed

Motion for reconsideration is required

NOT

Petition filed before RTC, CA, SC

Petition filed before SC

Rule 43 Rule 64

Appeal/Petition for review of decisions of Quasi Judicial Bodies

Petition for review of judgments and final orders or resolutions of COMELEC and CoA

15 days from notice of award, final judgment, resolution

30 days from notice of judgment or final order sought to be reviewed

With the CA With the SC

CERTIORARI, PROHIBITION, MANDAMUS (Rule 65)


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.



50

A8 S5 P2

- 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:

6. 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

7. all cases involving the legality of any

a. tax

b. impost

c. assessment

d. toll

e. any penalty imposed in relation

thereto

8. all cases in which the jurisdiction of any


9. all criminal cases in which the penalty


10. all cases in which only an error or question

of law is involved

What is the MATERIAL DATES RULE?

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. Notice of the order or judgment

2. Date of the filing of the motion for

reconsideration

3. 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



51

enjoyment of a right or office to which such

other is entitled

QUALIFICATIONS in ALL 3:

- that there is no plain, speedy, or adequate

remedy in the ordinary course of law

Certiorari Mandamus Prohibition

discretionary Ministerial Discretionary and ministerial

To annul order To order performance

To restrain performance

60 days from receipt of final judgment or order or from denial of motion for reconsideration

Against entity or person exercising j or ej function

Against entity or person exercising ministerial function

Against entity or person exercising j, ej, ministerial function

Without or GAD Unlawful neglect of ministerial duty or excluded another from a right or office

Without or GAD

Correct errors of jurisdiction

Performance of act or desist from excluding another from a right or office

To restrain or prevent usurpation of jurisdiction

Errors of Jurisdiction Errors of Judgment

Court acted with GAD amounting to lack or excess of jurisdiction

Misapprehension of law or facts by the court

Action of the court Valid proceeding

Correctible by certiorari Correctible by appeal

Rule 65 Rules 40-43, 45

General Rule: M4R is required to allow the court to

correct its errors

Exception:

1. where the order is a patent nullity, as

where the court has no jurisdiction

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

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



52

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

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

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

- 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

- 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

65 vs 45 (simplified)

Rule 65 Rule 45

60 days 15 Days

Motion for reconsideration required

Not

Questions of jurisdiction Questions of law

SC, CA, RTC SC

Special civil action Mode of appeal/petition for review

Rule 65 as amended by Am 7-7-12:

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



53

agency, unless otherwise provided by law or these

rules, the petition shall be filed with and be

cognizable only by the Court of Appeals.

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.

NO MORE EXTENSION OF TIME IS GIVEN TO FILE

CERTIORARI!

M4R based on Rule 65 M4R based on Rule 37

Of interlocutory order, as preparation to file certiorari

Of final judgment or final order, not including interlocutory orders

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

2 kinds of quo warranto:

1. usurpation of public office

2. dissolution of a de facto corporation

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:

a. a person who usurps, intrudes into, or

unlawfully holds or exercises a public office,

position, or franchise

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

*Sol Gen commences action (S2, S3)

Period: (S11)

Within 1 YEAR

- after cause of ouster or right of petitioner

to hold such office, or position arose

Within 1 YEAR (action for damages)

- 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:

RTC, CA, SC

If Solicitor General files- RTC, CA, SC

If other person files- R4 S1 R4 S2

Quo Warranto Election Code

Quo Warranto Rule 66

Election Code Rules of Court

COMELEC, RTC. MTC RTC, CA, SC

Omnibus Election Code Basis: A8 Consti, R66

Not Subject to BP129



54

Can be filed with MTC Cannot be filed with MTC

Contest right of elected public officer to hold public office

Show title to public office or exercise public franchise

Ineligibility or disqualification of person elected to hold the office

Usurpation, forfeiture, illegal association

Within 10 days after proclamation of candidate

Within 1 year from usurpation of office

Filed by any voter Filed by government or person entitled to the office

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


A3 S9

Private property shall not be taken for public use

without payment of just compensation

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

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. order of compensation

2. order of expropriation

3. final order of just compensation

Remedy of person after expropriation, no payment

made:

- recover property from expropriator within 5

years after non payment

FORECLOSURE OF MORTGAGE (Rule 68)

(Tan, Handbook on Civil Procedure and pleadings, pp

142-145)

Foreclosure

- 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

Manner of foreclosure of mortgage:

Rule 68 S1

Contents of action:

1. date and due execution of mortgage

2. assignments, if any



55

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

Nature of Action:

- QUASI IN REM

- Service of summons by publication

Jurisdiciton/Venue:

MTC-RTC 20-50 OMM MM lower higher

Where real property or portion thereof is situated

(R4 S1)

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

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 Equity of Redemption

Exists in EJ foreclosure Exists in J foreclosure

By mortgagee within 1 year from registration of the sale in the Office of the Registry of Deeds

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

J Foreclosure, no right of redemption, except only if

morgagee is a bank

PARTITION (Rule 69)


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. Compulsory- partition by judicial

proceedings at the instance of one or more

of the co tenants without regard to the

wishes of the other co tenants



56

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

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

Covers: REAL or PERSONAL PROPERTY

Jurisdiction/Venue:

MTC RTC 20-50 300-400 OMM MM lower higher

R4 S1 R4 S2

In case of adverse resolution:

MULTIPLE APPEALS- 30 day record on appeal (R69

S2)

Why? (tingin ko lang)

Orders under Rule 69:

1. Order of partition

2. 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)


153-158)

Real Action + Action in personam- involves

possession of real property, binding upon the parties

NOTE: 3 kinds of recovery of real 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

3. Accion reivindicatoria- action for recovery

of OWNERSHIP

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

Forcible Entry Unlawful Detainer

Person in physical Withholding by a person



57

possession of land was deprived of possession through FISTS

of possession of land or building

Unlawful ab initio Legal but becomes illegal

Not require demand to vacate

Pay AND vacate; jurisdictional

Prove prior possession until deprived

No need to prove prior physical possession

1 y from date of actual entry on land

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. Complaints 2. Compulsory counterclaims 3. Cross claims pleaded in the answer 4. 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



58

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



59

i. Dilatory motions for postponement

j. Reply

k. Third party complaints

l. Interventions

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.

- 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

Injunction in FE and UD:

Forcibly Entry / UnlawFul Detainer- YES

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

- defendant’s appeal is frivolous or dilatory,

or

- that the appeal of plaintiff is prima facie

meritorious

CONTEMPT (Rule 71)


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



60

interfere with or prejudice parties litigant or

their witnesses during litigation

2 classifications of contempt:

1. Direct Contempt (R71 S1)

2. Indirect Contempt (R71 S2)

DISCUSSION:

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

Punishment:

(RTC/of equivalent or higher rank)

F: not exceeding 2k OR

I: not exceeding 10 days, OR BOTH

(lower court)

F: not exceeding 200

I: not exceeding 1 day, OR BOTH

Remedy: CERTIORARI or PROHIBITION (R71 S2)

2. INDIRECT CONTEMPT (S3)

- Main / Original action

o Can be filed in RTC or MTC

Actions covered:

a. Misbehaviour of an officer of a

court in the performance of his

official duties or in his official

transactions

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

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 of or any unlawful

interference with the processes or

proceedings of the court not

constituting direct contempt as

under S1



61

d. Improper conduct tending, directly

or indirectly, to impede, obstruct,

degrade administration of justice

e. 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

Direct Contempt Indirect Contempt

In presence of a judge, motu proprio or upon motion

Cant initiate Initiate

In presence or so near judge

Not in presence of judge, disobey court order

Rem: certiorari Rem: appeal

remedy Original action

Upon filing of complaint, plaintiff may opt to file

notice of lis pendens with the register of deeds

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

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,

or encumbrancer

of the property affected thereby,

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

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



62

FILING AND SERVICE of the pleading

Differentiate: Filing from service

R13 S2

Filing is the act of presenting the pleading or paper

to the clerk of court.

Service is the act of providing a party with a copy of

the pleading or paper concerned.

What are the papers required to be filed and served

under Rule 13?

(PAMNOJDORS)

Pleading subsequent to the complaint

Appearance

Written Motion

Notice

Order

Judgment

Demand

Offer of judgment

Resolution

Similar papers

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?

Personal Service

R13 S6

Service of papers may be made

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

If no person is found in his office or his office is not

known or he has no office, then,

By leaving the copy between the hours of 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

NOTE: NO TENDERING under Rule 13 S6!

Sa summons lang yon, when defendant

refuses to accept the same

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

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:

Substituted Service

R13 S8



63

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.

Note: Wag ipaghalo ang provisions ng Rule 13 and

Rule 14!!!

Effect of non compliance with personal service?

Note: Service other than personal service

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.

State in detail: Effects

1. A violation of this rule may be cause to

consider the paper as not filed (R13 S11)

2. The pleading/paper would not be

admissible in court

3. Would not toll the running of the

reglementary period

4. In case of defendant, it will NOT RESULT in

defendant being declared in default

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)

Service by ordinary mail is complete upon the

expiration of 10 days after mailing, unless the court

otherwise provides.

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.

Substituted Service (R13 S8)

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

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)



64

Pag kulang, court to order correct payment

NOTE: Docket fees are suspended in

compulsory counterclaims (SC Resolution 9-

21-04)

IF you cannot pay docket fees, REMEDY?

File a motion to be declared as pauper

litigant (R3 S21)

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

- docket and

- other lawful fees, and

- of transcript of stenographic notes

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

Any adverse party

may contest the grant of such authority

at any time before the judgment is rendered by the

trial court

If the court should determine after hearing that the

party declared as an indigent is in fact a person with

sufficient income or property,

the proper docket and other lawful fees shall be

assessed and collected by the clerk of court

If payment is not made within the time fixed by the

court,

execution shall issue or the payment thereof,

without prejudice to such other sanctions as the

court may impose

After filing of the complaint and the payment of the

requisite legal fees,

III. SERVICE OF SUMMONS

Summons

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

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

2 kinds of summons:

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



65

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)

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)

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

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 non-

party

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



66

Can you serve summons by mail?

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.

Tendering summons to defendant (R14 S6)

In case defendant refuses to receive or sign for it, by

tendering it to him, done through:

1. Leaving copy of the summons to the

defendant who refuses to receive it

2. 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;

Impossibility of the personal service of

summons within a reasonable time

The efforts exerted to locate the person to

be served

To whom served / how?

By leaving copies of the summons at:

1. Defendant’s residence with some person of

suitable age and discretion then residing

therein or

2. 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

How is a person deemed of suitable age and

discretion?

1. Of legal age

2. 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

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



67

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

3. 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 Extraterritorial Service

Requisites;

Impossibility of the personal service of summons within a reasonable time The efforts exerted to locate the person to be served

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

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

R14 S14

In any action where the defendant is designated as

an unknown order, or the like, or whenever his


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.



68

- 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

3 options of the court:

1. GRANT M2D- as plaintiff, refile the case,

unless tainted with grave abuse of

discretion

2. 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

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)

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. Ordinary defendant

Upon an entity without juridical

personality

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.

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



69

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.

Service upon defendant whose identity or

whereabouts are unknown

R14 S14

In any action where the defendant is designated as

an unknown order, or the like, or whenever his


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



70

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?

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,

serve upon 4th

party defendant (relate to R6

S11)

NOT in:

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

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


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

EXCEPTION TO SERVICE OF SUMMONS:



71

Voluntary appearance

1. Filed responsive pleading

2. Submitted to jurisdiction of the court,

EXCEPT:

When questioning the jurisdiction of the

court

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

DOES NOT INCLUDE: lack of jurisdiction over the

person of the defending party (Wala to!)

After service of summons,

IV. REFER TO THE FOLLOWING:

Motion to Dismiss (Rule 16)

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)

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,

cross claim, 3rd

4th

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!

Grounds for motion to dismiss:

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:



72

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

GRANTED:

Refile

Move for alias summons

DENIED:


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.


adverse, file an appeal assigning as error the denial

of the motion to dismiss. And when the denial is


lack or excess of jurisdiction on the part of the court,

file for certiorari under Rule 65.

b. That the court has no jurisdiction over the

subject matter of the claim

NOTE:

Subject matter (BP129- conferred by law)

Exclusive original jurisdiction of courts, if

not within, then M2D is proper

GRANTED:

- Refile + docket fees OR

- Amend complaint to confer jurisdiction (no

need for docket fees)

DENIED:











c. That venue is improperly laid

Note: Rule 4

GRANTED:

Refile, except if GAD, then certiorari Rule 65

DENIED:











d. That plaintiff has no legal capacity to sue

GRANTED:

Refile

DENIED:







73







e. That there is another action pending

between parties for the same cause

aka LITIS PENDENCIA

Elements:

1. Identity of parties or at least such parties

representing the same interests in both

actions

2. That there is substantial identity in the

cause of action and in the relief sought, the

relief being founded on the same facts

3. 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

pendencia? The 1st

, 2nd

, 3rd

, 4th

action?

The later case(s) would be dismissed.

GRANTED:

Appeal

DENIED:











f. That the action is barred by prior judgment

or by the statute of limitations

Aka RES JUDICATA

Elements:

There is previous final judgment or order

The previous final judgment is a judgment

upon the merits

Jurisdiction over the subject matter and the

parties by the court rendering it

There must be identity of the parties, of

subject matter, and of cause of action

between the first and second actions

Aka PRESCRIPTION

GRANTED:

Appeal

DENIED:








74






g. That the pleading asserting the claim

states no cause of action

Aka FAILURE TO STATE CAUSE OF ACTION

GRANTED:

Refile

Amend the pleading

DENIED:











h. That the claim or demand set forth in the

plaintiff’s pleading has been paid, waived,

abandoned, or otherwise extinguished

GRANTED:

Appeal

DENIED:











i. That the claim on which the action is

founded is unenforceable under the

Statute of Frauds

(note: 1403, NCC)

GRANTED:

Appeal

DENIED:











j. That a condition precedent for filing the

claim has not been complied with

GRANTED:

General Rule: refile plus comply with

condition precedent, EXCEPT:

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,



75

Exhaust then refile

DENIED:











MOTU PROPRIO DISMISSAL: (see underlined below)

Rule 9 S1

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

NOTE ALSO: Rule 7 S5

Hence, summing up Rule 16,

WITH PREJUDICE- e, f, h, i of Rule 16

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

7. Failure of appellant to take necessary steps

for the correction or completion of the



76

record within the time limited by the court

in its order

8. 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

9. The fact that the order or judgment

appealed from is not appealable

Side note: RULES ON MOTION

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)

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)

LITIGATED MOTION NON LITIGATED

MOTION

Comply with requisites

for written motion

If not, would affect the

right of parties

No need to comply with

all the requirements, but

with need to hear on the

motion

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



77

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 Litigated Motions:

Motion to dismiss

Motion to declare defendant in default

Motion for summary judgment

Motion for judgment on the pleadings

Motion for new trial

Motion for reconsideration

Motion to dismiss complaint upon plaintiff’s

motion

Motion to lift order of default

Motion to declare a party in direct

contempt

Motion for demurrer to evidence

Motion for consolidation or severance of

case

Motion for trial by commissioner

Motion to strike out evidence or testimony

off the record

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:

Motion for relief from judgment

Motion to lift order of default

Motion to postpone trial

Motion for new trial on ground of FAME

All motions for provisional remedies:

Motion for preliminary attachment

Motion for dissolution of preliminary

injunction

Motion for writ of replevin

Motion in support pendent lite

Motion to postpone for absence of

evidence

Motion to postpone for illness of a party or

counsel

Rule 16- relate to Rule 10



78

Amendment as a matter of right if a motion to

dismiss is filed- PWEDE! Because motion to dismiss

is NOT a responsive pleading

Motion to dismiss- not a pleading

Position paper- not a pleading

Memorandum- not a pleading

Amendment if order granting motion to dismiss,

pwede, for as long as the motion is final and

executory

OF the 10 grounds,

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

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

Address any matter in

the pleading not averred

with sufficient

definiteness or

particularity

Address alleged defects

in the criminal complaint

or information

Purpose is to prepare

responsive pleading

Purpose is to enable

properly to plead and

prepare for trial

Note: the motion is a LITIGATED MOTION

To clarify ambiguities

Done before filing of a responsive pleading

What is a bill of particulars?

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.

When do you file bill of particulars?

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

3. 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

6. Hearing of motion set by applicant



79

7. Notice of hearing shall be addressed to all

the parties concerned not later than 10

days from the filing of the motion

8. Motion and notice of hearing must be

served at least 3 days before the date of

hearing

9. Proof of service

The motion for bill of particulars is denied.

Remedy?

R12 S5

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

Effect of order of failure to comply to file Bill of

Particulars

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)

Motion for Bill of Particulars:

Granted: Clarify, file bill of particulars

Denied, answer within the plenary period

IS bill of particulars part of a pleading?

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)

Amendment, as provided under R10 S1, is the

process of:

1. Adding or striking out an allegation or name

of any party or

2. 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:

Amendment is the process of adding or

striking out or correcting a name or

allegation

Amendment as a matter of right

- To correct alterations in a PLEADING (not in

a motion)

Kinds of amendments:

1. 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.

- Once the pleading is amended, the old

pleading is no more, EXCEPT, admissions

made in the old pleading



80

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

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.

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

- 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

5. Substantial amendments

Amendment of the pleading which would change the

original cause of action

6. 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)

If there is no responsive pleading yet- amendment as

a matter of right

Once- matter of discretion

Amendment as a matter of right

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.



81


- 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

Amendment of the answer? 3PC? 4PC? Complaint

in intervention?

PWEDE!- amendment of the pleadings naman ang

tinutukoy eh

Amended Pleading 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)

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)

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)

Supersedes original

pleading

Supplements original

pleading

With or without leave of

court

With leave of court



82

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

Is there amendment of the pleading in summary

procedure?

YES

- As a matter of right

- As a matter of discretion

o NO PROHIBITION under the Rules

on Summary Procedure

D. MOTION FOR EXTENSION OF TIME TO FILE

RESPONSIVE PLEADING (Rule 11)

Rule 11 S11

Section 11

Upon motion and on such terms as may be just,

the court may extend the time to plead provided in

these Rules

The court may also, upon like terms,

allow an answer or

other pleading to be filed

after the time fixed by these Rules

Extend, BASED ON CAUSE

Not a litigated motion

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 bill of particulars allowed in Summary Procedure?

NO (Prohibited pleading)

Motion to dismiss in Summary Procedure?

NO (prohibited pleading)

EXCEPT:

1. lack of jurisdiction over the person of the

defending party

2. lack of jurisdiction over the person of the

defendant

3. failure to comply with the Barangay

Conciliation Proceedings

EXCEPTION TO EXCEPTION:

Small Claims Cases- motion to dismiss absolutely

hindi pwede

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



83

Defendant- at any time

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 Judgment by Default

Order issued by the

court where defendant

failed to file answer

Decision or judgment by

the court after order of

default and presentation

of evidence ex parte by

plaintiff

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.

DEFENDING PARTY INCLUDES:

In a permissive counterclaim- original

plaintiff

In a 3PC- 3rd

party defendant

In a cross claim- co defendant

Requirements for declaration of default: (R9 S3)

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)

Plaintiff failed to file answer, be declared in default

(R9 in relation to Rule 6)

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])

Granted: File answer

Denied,

FILE MOTION FOR RECONSIDERATION

- S4 R65

- Interlocutory

o NOT Rule 37 as basis (because Rule

37 applies only to Final orders)

Denied,



84

CERTIORARI RULE 65 with TRO or injunction

- Dahil pag wala, at may order of default,

tuloy tuloy na + judgment of default

NOTE: umaakyat to hanggang SC- Ordinary and

Special Civil actions (from MTC), [not Spec Pro]

MTC

(all special civil actions, original actions in exercise of

original jurisdiction, final judgment)

ORDINARY CIVIL ACTION

Order of default

DENIED,


DENIED,

Certiorari Rule 65 RTC with TRO (S7 R9 amended by

AM 7-7-12)

DENIED,

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

DENIED,

CA M4R Rule 52

DENIED,

SC R45 Petition for Review on Certiorari apply

Neypes, Hierarchy of courts

DENIED,

SC M4R Rule 52

DOCTRINE OF HIERARCHY OF COURTS

Higher courts will not entertain any case

brought before it unless the same is

decided before the lower courts

Effect of order of default:

- Lose standing

- Not to participate at the trial but shall be

entitled to notices

- Entitled to 2 copies of decision, resolution,

substantially amended pleadings

R9 S3 in relation to Rule 10

- Order of default issued by court, there is

amendment of the pleading, order of

default is dissolved

R9 in relation to Modes of Discovery

- R29

o 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:

- File motion to admit answer

o Mawawala ang motion to declare

defendant in default dahil may

answer na eh

Summary Proceedings



85

Motion to declare defendant in default is a

PROHIBITED PLEADING

As plaintiff in such a case, file MOTION TO RENDER

JUDGMENT

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

JUDGMENT BY DEFAULT

Nature: Final Judgment

R9 in relation to R11

Based on presentation of evidence ex parte

BEFORE JUDGMENT BECOMES FINAL AND

EXECUTORY:

REMEDY:

Motion to set aside judgment or final order due to

FAME

Denied,


Denied,

CERTIORARI Rule 65 with TRO/injunction-

PREFERRED over appeal

- 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

Denied. Remedy?

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.

Basis: R45 S2 and R45 S1-- CA judgment,

final order, or resolution can be elevated to

the SC raising only questions of law

Denied. Remedy?

File a motion for reconsideration of the judgment or

final resolution within 15 days from service thereof



86

before the SC, with proof of service on the adverse

party.

Basis: R52 S1

AFTER FINALITY OF JUDGMENT:

Any of the following remedies:

1. 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)

2. File petition for annulment of judgment or

final order or resolution on the ground of

extrinsic fraud (R47 S1 and 2)

3. File petition for certiorari (Rule 65)

4. Collateral Attack

V. FILING OF ANSWER

Answer- the pleading setting forth the defending

party’s defenses

(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

Answer to the permissive counterclaim

Answer to cross claim

Answer to 3rd

4th

etc party complaint


Reply

Answer to amended complaint

Answer to amended counterclaim

Answer to amended cross claim

Answer to amended 3rd

4th

etc party

complaint

Answer to amended complaint in

intervention

Answer to supplemental complaint

Rejoinder

Answer to counter counterclaim

Answer to counter cross claim

Answer to amended counter counterclaim

Answer to amended counter cross claim

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

R13 S2



87

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

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.

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.

2. Compulsory counterclaim

(note above periods?)

3. Answer to permissive counterclaim

R11 S4

A permissive counterclaim must be answered within

10 days from service

4. Answer to cross claim

R11 S4

A cross claim must be answered within 10 days from

service

5. Answer to 3rd

4th

etc party complaint

R11 S5

Time to answer a 3rd

4th

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

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



88

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

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,

amended 3rd

4th

etc party complaint, amended

complaint in intervention

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

(?)

R11 S4 (?)

Answer within 10 days from service

17-18.

R11 S3 (?)—note the periods

Answer may raise counterclaim or cross claim

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 Cross Claim

Any claim which a

defending party may

have against the

opposing party

Any claim by one party

against a co party arising

out of the transaction or


subject matter either of



89

the original action or of a

counterclaim therein

Compulsory

Counterclaim

Permissive Counterclaim

Arises out of or is

necessarily connected

with the transaction or




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


over whom the court

cannot acquire

jurisdiction

It may require for its

adjudication the


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

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

Counterclaim with respect to Rule 17

Pwede, proceed after service of answer

(Rule 17 S1 and 2)

Counterclaim with respect to Rule 18

Plaintiff failed to appear in pre trial, case is

dismissed with prejudice, without prejudice

to counterclaim

DEFENSES and DENIALS

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. Fraud

b. Statute of limitations

c. Release

d. Payment

e. Illegality

f. Statute of frauds

g. Estoppel

h. Former recovery

i. Discharge in bankruptcy

j. Any other matter by way of confession and

avoidance



90

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?

APPEAL (Because trial is on the merits)

With respect too negative defenses, note SPECIFIC

DENIALS

What is a negative pregnant?

- General denials are deemed admissions

Plaintiff’s remedy in such a case?

- JUDGMENT ON THE PLEADINGS (Rule 34)

Kinds of Denials:

1. Specific Absolute Denial

- By specifically denying the averment and

whenever practicable, setting forth the

substance of the matters relied upon for

such denial

With support dapat

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

In good faith, or else, deemed an admission

Specific denial in par __ __ __ for lack of knowledge

to truth or belief of the same

Specific not necessarily Specific Denial

Answer- no need to verify

EXCEPT:

1. Actionable Document

- Document which creates rights, which

serves as basis for filing of the complaint

2. Usury in a complaint

3. Summary procedure

4. Answer with permissive counterclaim

Not denied under oath an actionable document such

as deed of sale or mortgage,



91

Failure to verify = deemed admitted

HENCE, judgment on the pleadings

Except:

1. Fraud/forgery

2. Not a party to the actionable document

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)

Discussing each:

1. 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. 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

2. Deposition of a person confined in prison

May be taken without leave of court:

1. After answer and deponent is not confined

in prison

Scope of examinations:

1. Matter which is relevant to the subject of

the pending action

2. Not privileged

3. Not restricted by a protective order

2. Depositions before action or pending

appeal (Rule 24)

Aka perpetuam rei memoriam

- 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



92

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

- 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

The documents to be produced must have the

following requisites:

1. Should not be privileged

2. Should constitute or contain evidence

material to any matter involved in the

action and which are in the party’s

possession, custody, or control

3. 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

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

- Since the results of the examination are

intended to be made public, the same are

not covered by physician-patient privilege

Use of depositions:

1. Impeach adverse party’s witness (relate to

evidence)

2. Residing 100 km away, sick or infirm

R23 R24- Relate to R134 (Deposition)

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



93

Mode of discovery Exception to the best

evidence rule

By motion By notice

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

Without prior knowledge

as to contents

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

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)

What are the grounds for dismissal under Rule 17?

1. Dismissal upon notice by plaintiff (R17 S1)

- At any time before service of the answer or

of a motion for summary judgment

Before filing responsive pleading or motion for

summary judgment

2. Dismissal upon motion by plaintiff (R17 S2)

Upon approval of the court and

Upon such terms and conditions as the

court deems proper

With answer, by way of motion without

prejudice to counterclaim

May be filed independently or separately

3. 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

Elements of 2 dismissal rule: (R17 S1)



94

1. First complaint filed by plaintiff before court

of competent jurisdiction

2. 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)

3. Second complaint filed by plaintiff involving

an action based on or including the same

claim before court of competent jurisdiction

4. 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

Effect of 2 dismissal rule (R17 S1):

The second notice of dismissal shall operate as an

adjudication upon the merits.

Exceptions to 2 Dismissal Rule:

1. 1st

action is not related to the second action

2. Court dismissing the second action is a

court not of competent jurisdiction

Nature of Dismissal of actions under Rule 17:

(S1), upon notice by plaintiff

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

(S2), upon motion of plaintiff

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 [?])

or if so declared with prejudice, appeal the

dismissal

S2- dismissal upon motion of plaintiff

Refile the case

If the court declares that the dismissal is

with prejudice, appeal the dismissal

S3- dismissal due to fault of plaintiff

Appeal the dismissal

If the court declares that the dismissal is

without prejudice, refile the case

Another:

JUDGMENT ON THE PLEADINGS (Rule 34)

S1

Where the answer

- fails to tender an issue or



95

- otherwise admits the material allegations of

the adverse party’s pleading,

the court may, on motion of that party, direct

judgment on such pleading

However, in an action for declaration of

- nullity or

- annulment of marriage or

- for legal separation,

the material facts alleged in the complaint shall

always be proved

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

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

On the merits Interlocutory or on the

merits

There is answer filed If filed by plaintiff, filed

at any time before

answer is served

If filed by defendant,

may be filed at any time

even before answer

VII. REPLY (R6 S10)

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

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



96

upon motion ex parte by plaintiff that the case be

set for pre trial

Pre Trial Conference- yes

Answer

Answer to permissive counterclaim

Answer to cross claim

Answer to third party complaint


Reply to answer

Reply to answer to permissive counterclaim

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

Pre Trial in Criminal

Cases

Pre Trial in Civil Cases

Mandatory requirement

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

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

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



97

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:

Plea bargaining

Stipulation of

facts

Marking of

identification of

evidence of the

parties

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

Considerations in pre

trial:

Possibility of

amicable

settlement or

submission to

alternative

modes of

dispute

resolution

Simplification of

the issues

Necessity or

desirability of

amendments to

the pleadings

Possibility of

obtaining

stipulations or

admissions of

facts and of

documents to

avoid

unnecessary

proof

of the criminal

and civil aspects

of the case

Limitation on

the number of

witnesses

Advisability of

preliminary

conference of

issues to

commissioner

Propriety of

rendering

judgment on

the pleadings,

summary

judgment,

dismissing the

action should a

valid ground

therefor be

found to exist

Advisability or

necessity of

suspending the

proceedings

Such other

matters as may

aid in the

prompt

disposition of

the action

(simplified)



98

Pre Trial In Criminal Pre Trial in Civil

After arraignment After last pleading

asserting a claim has

been served and filed

No pre trial brief 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

Failure to appear by

plaintiff, dismissal of

case with prejudice

Failure to appear by

defendant, plaintiff to

present evidence ex

parte

What are the purposes of pre-trial?

(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

f. 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

S6- Pre trial brief

The parties shall file with the court and serve on the

adverse party, in such manner as shall ensure their

receipt thereof at least 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



99

Failure to file the pre trial brief shall have the same

effect as failure to appear at the pre trial.

PRE TRIAL BRIEF

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

Failure to file at pre trial brief = failure to appear at

pre trial, same effect

Requisites for appearance at the pre trial:

(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

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)

Effects of failure to appear at the pre trial:

Plaintiff fails to appear

R18 S5

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

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.

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

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



100

- 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

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 M4R denied, file petition for certiorari under Rule

65

- R41 (1)- the order allowing ex parte


order, no appeal may be taken from it,

hence, aggrieved party may file the

appropriate special civil action under Rule

65, which includes certiorari

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

Can clerk of court charge Commissioner’s Fee?

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

- on the ground that the order is contrary to

law [R37]? OR,

- that, the order allowing ex parte


order)

if you fail this, the evidence shall form part

of the records of the case – kawawa ka cge

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


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:

- 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)



101

Ground: FAME which ordinary prudence could not

have guarded against and by reason of which such

aggrieved party has been impaired in his right

After judgment becomes final and

executory

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 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

Adverse party admits your proposals/stipulations

- Deemed admitted

Cause of action admitted by defendant,

- Rule 18 in relation to Rule 34

JUDGMENT ON THE

PLEADINGS

Conclusive on part of admitter, for purposes

of substantial justice

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

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



102

Ultimate facts to be proven during the trial of the

case

ORDER:

Direct Examination

- 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

Cross Examination

Requires knowledge of:

- Facts

- Evidence

- Defenses

Leading questions are allowed

Totoo bang ikaw ay maganda? Leading

Obtain affirmative answers- GOOD

Line of questioning:

Is it not a fact you are 1 of... YES

Executed sometime, etc... YES

NOTE: Lead mo papunta sayo

- 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

Destroy what was re established in the re

direct examination

NOTE: Identify all witnesses

Offer of Testimony Offer of Evidence

Made at the time the

witness is presented on

the witness stand

After termination of

presentation of evidence

of prosecution



103

Evidence in chief

Evidence supporting allegations in the

complaint

After presentation of all witnesses,

Offer of evidence

Then,

Comment or objection

- Secondary

- Not identical

Then,

Order of admission/Exclusion of evidence

Admitted; Exh A, Exh B

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

case responsive pleading

That plaintiff has shown

no right of relief

10 grounds

If granted, case

dismissed

If granted but on appeal

order of dismissal is

reversed, defendant is

deemed to have waived

the right to present

evidence

If granted, case

dismissed, remedy

depends:

With prejudice- appeal

Without prejudice- refile

Both by way of motion

NOTE: in summary proceedings, no trial, no

demurrer to evidence

In Criminal Cases,

There is demurrer to evidence in Summary

Procedure

- Constitutional Right to Due process

Demurrer to evidence in

Civil Procedure

Demurrer to evidence in

Criminal Procedure

Rule 33 Rule 119 S23

No leave of court

required


court

If with leave of court,

accused could present

evidence if demurrer is

denied



104

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

Judgment of acquittal

not appealable, hence,

DJ sets in

Judgment of dismissal is

appealable

If demurrer is granted

but on appeal, order of

dismissal is reversed,

defendant is deemed to

have waived the right to

present evidence

(NO res judicata in

dismissal due to

demurrer)

Judgment of acquittal is

not appealable; DJ sets

in

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,

With LoC- accused may

present evidence

W/O LoC- accused can

no longer present

evidence and submits

case for decision based

on prosecution’s

evidence

(simplified version)

D2E Civil D2E Criminal

Rule 33 Rule 119 S23


court

If granted, but on appeal

is reversed, defendant

loses the right to present

evidence, case

submitted for decision

With LoC- if denied,

accused presents

evidence

Without LoC- if denied,

defendant cannot

present evidence

After plaintiff rests its case, no D2E or D2E denied no

appeal,

2. DEFENDANT’S EVIDENCE IN CHIEF

Prove allegations in the body of the answer

(R7 S1)

Order:

Direct Examination

Cross Examination

Re Direct Examination

Re Cross Examination

Formal offer of evidence

Comment



105

Objection

Offer

Tender of excluded evidence

DEFENDANT RESTS ITS CASE

Note: No more D2E- Rule 33- after PLAINTIFF rests

its case...

3. REBUTTAL EVIDENCE

Purpose is to rebut defendant’s evidence in

chief

Order: (same as previously stated)

4. SUR REBUTTAL EVIDENCE

Purpose is to rebut the rebuttal

Order: (Same as previously stated)

5. MEMORANDUM

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

S1- Rendition of judgments and final orders:

A judgment or final order determines the merits of a

case, shall be

- in writing,

- personally and directly prepared by the

judge,

- stating clearly and distinctly the facts and

the law on which it is based,

- must contain a dispositive part,

- signed by him, and

- filed with the clerk of court

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.

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.

Kinds of Judgments:

JUDGMENT UPON A COMPROMISE

- 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)



106

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.

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

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

Remedies to judgment by consent, confession,

compromise:

File motion to set aside

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

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



107

party the relief prayed for on the basis of

his evidence presented ex parte by plaintiff

JUDGMENT ON THE PLEADINGS (R34)

Judgment rendered by the court upon motion by

plaintiff where the answer of defendant

fails to tender an issue or

otherwise admits the material allegations of


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

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

particular claim and all counterclaims

arising out of the transaction or occurrence

which is the subject matter of said claim

SPECIAL JUDGMENT

R39 S11

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

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

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



108

CONDITIONAL JUDGMENT

Judgment wherein effectivity of such

depends upon occurrence or non

occurrence of an event

FINAL JUDGMENT

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

Aka clarified judgment; it is an entirely new

judgment, which supersedes an original

judgment rendered by the court

SUPPLEMENTAL JUDGMENT

Judgment of the court which serves to

bolster or add to the original judgment, and

does not take place nor extinguish the

original judgment

Conclusiveness of judgment

Res Judicata (note above)

Stare Decisis

Obiter Dictum

Law of the Case

If after judgment is promulgated, the judgment is

ambiguous and difficult to comply,

MOTION FOR CLARIFICATORY JUDGMENT

XII. REMEDIES BEFORE JUDGMENT BECOMES

FINAL AND EXECUTORY:

Motion for reconsideration (Rule 37)

Motion for New Trial (Rule 37)

Reopening of Trial (Rule 119)

Appeal (Rules 40-43, 45)

1. Motion for Reconsideration (Rule 37)

R37 S1

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



109

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,

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. 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

2. Newly discovered evidence which he could

not, with reasonable diligence, have

discovered and produced at the trial and

which if presented would probably alter the

result

3. Reopening of Trial (civil in relation to

criminal procedure- R119 S24)

Reopening of the proceedings to avoid miscarriage

of justice

Civil- for reasons of EQUITY

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

30 days from denial of M4R/MNT

MTC decisions

MTC

RTC

CA

SC

SC

M4R

Rule

52

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

Petition 4

review on

certiorari

under

Rule 45



110

RTC decisions in exercise of original jurisdiction

Notice/Record on Appeal

In case of Record on Appeal, appellant’s Brief 45

days to file record on appeal

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

General Rule:

Finding of fact of CA are final and conclusive and

cannot be reviewed on appeal to SC:

EXCEPTIONS:

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

RTC

CA

SC

SC

M4R

Rule

52

Notice or

Record

on appeal

under

Rule 41

M4R

Under

Rule 37

M4R

Under

Rule 52

Petition 4

review on

certiorari

under

Rule 45



111

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

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. 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

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

MTC exclusive original jurisdiction to RTC

Ground: extrinsic fraud

Annulment of judgment

- 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



112

S2- Grounds

1. Extrinsic or collateral fraud

2. Lack of jurisdiction over subject matter and

over the person

3. Certiorari under Rule 65

4. Collateral Attack

EXECUTION OF JUDGMENT

- Nothing left for the court but to enforce its

decision

Execution

- 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

Revival of Judgment- 10 YEARS, by MOTION

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

a. 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

Nature of writ of execution:

R39 S8

The writ of execution is issued in the name of RP and

shall state:

e. 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

Rule: Matter of right on part of winning party

(execution), and court cannot refuse

Except:

1. When judgment turns out to be incomplete

or conditional

2. Judgment is novated by parties



113

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

When proper to Quash Writ of Execution:

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

Rule: Dispositive portion of decision is the part that

becomes subject of execution

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

S2- Discretionary Execution

Discretionary Execution Execution as a matter of

right

May issue before lapse of period to appeal, and even during appeal

Period to appeal has already lapsed, no appeal is perfected

Discretionary upon the court; there is inquiry on whether there is good reason for execution

Ministerial duty of the court provided there are no supervening events

S2- Discretionary execution

a. 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

- 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

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

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.

Grounds:



114

1. Insolvency of judgment debtor

2. Wastage of asset by judgment debtor

Court may, in its discretion, order an execution

before expiration of the time within which to appeal,

provided,

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. Injunction

2. Receivership

3. Accounting

4. Support

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. 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 Revival of judgment S34

Independent action Carried out through filing of a motion in court

Assumes there is no execution within first 5 years

Assumes that judgment is executed within first 5 years

Party who files the action is the judgment creditor himself, or his assignee, or his successor in intereest

Party who files such motion is not the original judgment creditor but he is the highest bidder in the public auction

Filed due to lapse of 5 year period

Filed because movant is deprived of property purchased

S6 N/A to:

1. Judgments for support

2. Contempt orders in unauthorized re-entry

on land by ejected defendant

3. Issuance of writs of possession and

4. Special proceedings and land registration

cases

S9- Award of judgments of money, how enforced



115

1. Immediate payment on demand

2. Satisfaction by levy

3. 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 Garnishment

Refers to corporate property in possession of judgment debtor

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. Conveyance, delivery of deeds, other

specific acts vesting title

2. Sale of real or personal property

3. Delivery or restitution of real property

4. Removal of improvements on property

subject of execution

5. 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



116

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

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.

S16- Proceedings where property claimed by third

person

Remedies of 3rd

party claimant:

1. Summary hearing before court of

competent jurisdiction

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

Ordinary sale on execution

Sale in judicial foreclosure of mortgage

Need not be confirmed by court

Must be confirmed by court in order to divest rights in the property of the parties and to vest the rights in the purchaser

Right of redemption exists

No right of redemption except when mortgagee is a bank or a banking institution

Title is acquired after expiration of redemption period when final deed of conveyance is executed

Title is acquired upon confirmation and registration of the foreclosure sale

S30- Proof required of redemption

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:



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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

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

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

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

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

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

S47- Effect of judgment or final order

Res judicata

- Bar by former judgment/direct estoppel by

judgment


- 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

- Inalterability of final and executory

judgment



118

Decisions of court must be immutable at some

definite period of time


- 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 Conclusiveness of judgment

Identity of parties, subject matter, causes of action

Identity of parties and subject matter

First judgment constitutes absolute bar to all matters directly adjudged and those that might have been adjudged

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 of claims

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

Public policy principle

- Judgment by a court is enforceable only

within its territorial jurisdiction

Effect of foreign judgments

- 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

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. Want of jurisdiction

2. Want of notice

3. Collusion

4. 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:



119

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. Want of jurisdiction

2. Want of notice to a party

3. Collusion

4. Fraud

5. Clear mistake of law or fact

LAST NOTES ON CIVIL PROCEDURE

Note latest Rules on ADR (2009) in relation to Rule

18

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