Rem Review
Rem Review
Rem Review
FILING FEES 2
JURISDICTION 3
SMALL CLAIMS 6
Rule 1 8
RULE 2 CAUSE OF ACTION 9
RULE 3 PARTIES TO CIVIL ACTIONS 12
RULE 4 VENUE OF ACTIONS 21
RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS 24
RULE 6 KINDS OF PLEADINGS 27
RULE 7 PARTS OF A PLEADING 33
RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS 35
RULE 9 EFFECT OF FAILURE TO PLEAD 38
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS 41
RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS 44
RULE 12 BILL OF PARTICULARS 46
RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS 48
RULE 14 SUMMONS 53
RULE 15 MOTIONS 60
RULE 16 MOTION TO DISMISS 62
RULE 17 DISMISSAL OF ACTIONS 66
RULE 18 PRE-TRIAL 68
RULE 19 INTERVENTION 71
RULE 20 CALENDAR OF CASES 72
RULE 21 SUBPOENA 72
RULE 22 COMPUTATION OF TIME 74
MODES OF DISCOVERY 75
RULE 23 DEPOSITIONS PENDING ACTIONS 75
RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL. 81
RULE 25 INTERROGATORIES TO PARTIES 82
RULE 26 ADMISSION BY ADVERSE PARTY 83
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS 84
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS 84
RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY 85
RULE 30 TRIAL 86
RULE 31 CONSOLIDATION OR SEVERANCE 88
RULE 32 TRIAL BY COMMISSIONER 88
RULE 33 DEMURRER TO EVIDENCE 90
RULE 34 JUDGMENT ON THE PLEADINGS 91
RULE 35 SUMMARY JUDGMENTS 91
RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF 92
RULE 37 NEW TRIAL OR RECONSIDERATION 94
RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS 96
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS 98
Brief overview of remedies 112
APPEALS 113
RULE 40 APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS 113
RULE 41 APPEAL FROM THE REGIONAL TRIAL COURTS 114
RULE 44 ORDINARY APPEALED CASES (PROCEDURE IN CA) 118
RULE 42 119
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS 119
RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS 121
RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT 123
PROCEDURE IN THE COURT OF APPEALS 125
RULE 46 ORIGINAL CASES 125
RULE 48 PRELIMINARY CONFERENCE IN THE CA 126
RULE 49 ORAL ARGUMENT 126
RULE 50 DISMISSAL OF APPEAL 127
RULE 51 JUDGMENT 128
RULE 52 MOTION FOR RECONSIDERATION 129
RULE 53 NEW TRIAL 129
RULE 55 PUBLICATION OF JUDGMENTS AND FINAL RESOLUTION 130
RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS 132
Mickey Ingles 1
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
This reviewer is based on Atty. Tranquil Salvador’s lectures, stuff from Atty. Guevarra, Glenn
Tuazon’s brilliant lecture notes, cases, and Feria-Noche’s book. (No Riano since I left it in my
locker)
Good luck!
FILING FEES
Important: Payment of docket fees is not only mandatory, but JURISDICTIONAL.
Know the true nature of the action because it will determine the docket fees. So take note of the
facts of each case.
o It may seem like a cancellation of deed of sale, but it can ultimately be one for the
recovery of property, making it a real action. (Ruby Shelter v Formaran III, 2009)
For example: if the action is for the cancellation of a deed of sale and the titles
have already been transferred to another party, that’s a real action because the
ultimate purpose is the recovery of real property. (that’s what happened in Ruby
Shelter)
If the titles have not yet been transferred, it can be considered as a
personal action. (Spouses de Leon cited in Ruby Shelter)
Docket fees to be paid:
o Real action: depends on the FMV stated in the current tax declaration or current zonal
valuation of the BIR (whichever is higher), or if there is none, the stated value of the
property in litigation.1
o Cases involving actions incapable of pecuniary estimation: flat rate
Docket fees computation include interests, penalties, surcharges, damages of whatever kind,
attorney’s fees, court expenses. (see footnote 1) (Proton v Banque Nationale de Paris, 2005)
o So, if the plaintiff fails to pay the docket fees for alleged interest payments accruing before
the complaint is filed, plaintiff can not recover such. (Proton, wherein a certain period of
interest payment was alleged but the corresponding docket fees pertaining to such was
not paid)
o Important!: Compare with amount for jurisdictional purposes: only the principal claim is
considered.
It is the duty of the parties claiming such damages to specify the amount sought on the basis of
which the court may make a proper determination and for the proper assessment of the
appropriate fees.
o The damages sought must be placed in the PRAYER of the complaint. (Philippine First
Insurance v Pyramid Logistics, 2008, wherein Pyramid amended their complaint and still
did not put the damages sought in the prayer. It was a sign of bad faith on their part.)
If not, the complaint will be expunged.
If the pleading specifies the claim, but the fees paid are insufficient, the court may
allow a reasonable time for the payment of the prescribed fees, or the balance
thereof.
Example: if the party filing the case paid less than the correct amount for
the docket fees because of the wrong assessment of the clerk of court, the
responsibility of making a deficiency assessment lies with the same clerk.
Party cannot be penalized for such, so court will continue to have jd over
the case. But party will still have to pay the fees (Montaner v Shari’a
District, 2009)
This also happened in Bautista v Unangst (2008) which involved the
deficient assessment in the Court of Appeals. SC said that it was not the
1
Rule 141, Sec. 7. Clerks of Regional Trial Courts.–
a) For filing an action or a permissive OR COMPULSORY counterclaim, CROSSCLAIM, or money claim against an estate not based on
judgment, or for filing a thirdparty, fourthparty, etc. complaint, or a complaintinintervention, if the total sum claimed, INCLUSIVE OF
INTERESTS, PENALTIES, SURCHARGES, DAMAGES OF WHATEVER KIND, AND ATTORNEY’S FEES, LITIGATION EXPENSES
AND COSTS and/or in cases involving property, the FAIR MARKET value of the REAL property in litigation STATED IN THE CURRENT
TAX DECLARATION OR CURRENT ZONAL VALUATION OF THE BUREAU OF INTERNAL REVENUE, WHICHEVER IS HIGHER,
OR IF THERE IS NONE, THE STATED VALUE OF THE PROPERTY IN LITIGATION OR THE VALUE OF THE PERSONAL
PROPERTY IN LITIGATION AS ALLEGED BY THE CLAIMANT, is: xxx
Mickey Ingles 2
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
appellant’s fault but he still has to pay the deficient fees within the
reglementary period. (since it was on appeal)
o Exception: no need to place the amount sought if the damages arise AFTER the filing of
the complaint since you wouldn’t know how much that would be
Compulsory counterclaims and cross-claims must now pay docket fees. (see footnote 1)
GR: docket fees must be paid when you file the complaint. (clerk will look at prayer and then
determine how much you have to pay.)
o Exceptions:
If the damages arose AFTER the filing, the additional docket fee will serve as a lien
on the judgment
Like interests accruing after the filing of the complaint (Proton v BNP)
If the complaint is amended and new damages are alleged, the additional docket
fee will be allowed to be paid within a reasonable time within the applicable
prescriptive period or reglementary period (Tacay, cited in Philippine First)
If the clerk makes a wrong assessment, the full amount must be paid within the
applicable prescriptive period or reglementary period.
Recipients of the service of the National Committee on Legal Aid and of the Legal Aid offices of the
IBP are EXEMPT from payment of filing, docket fees. (Re: Request for NCLA, 2009)
o This exemption does NOT apply to juridical entities, even if these entities are formed for
charitable purposes or make extremely delectable ube jam. (Query of Mr Roger Prioreschi
of the Good Shepherd Foundation, AM 9-6-9-SC)
JURISDICTION
Define jurisdiction:
o The power of the court to hear, try, or decide the case
o AS CONFERRED by law
Court knows if it has jurisdiction based on the allegations of the complaint. (Villacastin v Pelaez,
2008, where the SC said that the allegations of a complaint made out an ejectment case so the
MTC, and not the DARAB, had jd over the case even if the case was over agri land since it was not
an agrarian dispute anyway.)
The jurisdiction of a court may be questioned at any stage of the proceedings. No estoppel. It is
the duty of the court to dismiss an action whenever it appears that the court has no jurisdiction
over the subject matter. (Vargas v Caminas, 2008, where jd was questioned before trial court
decided)
o EXCEPT: laches (Tijam, where jd was questioned only after 15 years)
For a court to properly exercise jd over a case, the requirements of law must be complied with.
o Hence, when a RTC takes cognizance over an indirect contempt case filed through an
unverified motion (and not through a verified petition with a certificate of non-forum
shopping as required by Rule 71), the RTC has gravely erred. 2
Can the SC create special courts? 3
o NO. It can only designate. It can’t confer jurisdiction, only law can do that. SC can only
designate which courts will become special courts.
IMPORTANT: in determining jurisdiction, you do NOT include damages, interest, attorney’s fees,
etc.
o Only limit the amount to the demand or the claim.
But, of course, if your action is for damages, then the amount of damages claimed
is determinative.
o The interest to exclude is the accessory interest. Not the loan interest.
Example: The case is in Pampanga. The promissory note is for P298,000 with
interest of 10% per annum, where do you file the collection suit for this?
2
Rule 71, Sec 4: How proceedings commenced. — Proceedings for indirect contempt may be initiated motu propio by the court against which the
contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for
contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of
documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision. (n)
3
Examples of other special courts: Drugs court, Environment court, Commercial court, IP court
Mickey Ingles 3
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
In the RTC of Pampanga. The cause of action revolves around the entire
promissory note.
MTC
o Original and exclusive
Opposite of RTC
Ejectment/unlawful detainer
Regardless of value
MTC can determine ownership provisionally
RTC
o Original and Exclusive
Amount incapable of pecuniary estimation
Can NOT be measured in money
Depends on the nature of the action
o Where the basic issue is something other than the right to recover
a sum of money, where the money claim is only incidental or a
consequence of the principal relief sought, the action is incapable
of pecuniary estimation. (FEBTC v Shemberg, 2006, where the SC
held that an action to cancel mortgage for want of consideration is
incapable of pecuniary estimation)
o Examples: rescission, reformation of contract, specific performance
o What about expropriation? Always with RTC, whether personal or
real property, regardless of value. Law zeroes in on the exercise of
such right.
o What about declaratory relief? RTC, except when there is an issue
of constitutionality, SC can take it.
o What about support? Family courts, regardless of value.
Civil actions involving title to, or possession of, real property, or any interest
therein, where the ASSESSED value of the property involved exceeds P20,000,00
or exceeds P50,000 if in Metro Manila 4
EXCEPT actions for forcible entry and unlawful detainer (original
jurisdiction over which is conferred upon the MTC, MeTC, MTCC)
Assessed value is the worth or value of property established by taxing
authorities on the basis of which the tax rate is applied. (vda de Barrera v
Heirs of Legaspi, 2008, which was a accion publiciana case)
In all actions in admiralty and maritime jurisdiction where the demand or claim
exceeds P300,000.00 or, in Metro Manila, exceeds P400,000.00
RTC acting in general jurisdiction, no special maritime courts
In all matters of probate, both testate and intestate, where the gross value of the
estate exceeds P300,000.00 or, in Metro Manila, exceeds P400,000.00
What if the value of the estate is 100k, the MTC has jurisdiction over that,
right? But will it be subject to summary procedure?
o No. Of course not. Probate cases always under ordinary procedure
since you have to determine the due execution of the will.
o Summary procedure rules explicitly exclude probate proceedings.
In all actions involving the contract of marriage and marital relations
Like support, annulment, nullity
Courts will act as Family courts, special jurisdiction.
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
So juvenile, agrarian cases
Other cases in which the demand, exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs or the value of the property in
controversy exceeds P300,000, or in Metro Manila, exceeds P400,000
Those under the securities regulation code
4
So if accion publiciana case and less than P50,000 in Manila, file with MTC
Mickey Ingles 4
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Cases involving devices or schemes employed by the corporation
amounting to fraud
Intra-corporate or partnership relations
Controversies in the election or appointments of directors, trustess,
officers, etc
Suspension of payments, etc
o Original and Concurrent (see SC and CA)
o Appellate
Cases decided by the MTC, etc
Court of Appeals
o Original and Exclusive
Annul judgments of the RTC based on extrinsic fraud or lack or jurisdiction
o Concurrent with the SC
Petitions for the issuance of writs of certiorari, prohibition and mandamus against
the
NLRC, CSC, RTC
o Concurrent with the RTC and SC
Habeas corpus, habeas data, writ of amparo, quo warranto, certiorari, mandamus,
prohibition vs lower courts
In Thornton, 2004, a writ of habeas corpus was filed with the CA. There
was an argument that only the RTC could issue a writ of habeas corpus.
SC said the CA can issue a writ of habeas corpus especially in this case
where the whereabout of the child was unknown so a writ of habeas
corpus from the CA would be more effective than that from the RTC. 5 (SC
and CA writs are enforceable anywhere, while RTC writs are enforceable
only within their territorial jurisdiction.)
When it comes to concurrent jurisdiction, always remember the rule on
hierarchy of courts. If you can file with the RTC first, then go ahead. Once
a court acquires jd, it excludes all other courts.
o Appellate
Over RTC Exercising original jurisdiction
By ordinary notice of appeal (if question of fact or question of fact and
law)
If pure question of law in the RTC, go straight to SC!
Over RTC exercising appellate jurisdiction over the MTC:
By petition for review, even if pure question of law
Over Quasi-judicial agencies
By petition for review, even if pure question of law
Supreme Court
o Original and Exclusive
Petitions for the issuance of writs of certiorari, prohibition and mandamus against
the:
CA, COMELEC, CoA, Sandiganbayan, CTA
Declaratory relief only when there is a question of constitutionality
Like of treaties, laws, etc
o Concurrent with the CA
Petitions for the issuance of writs of certiorari, prohibition and mandamus against
the
NLRC, CSC, RTC
o Concurrent with the RTC and CA
Habeas corpus, habeas data, writ of amparo, quo warranto, certiorari, mandamus,
prohibition vs lower courts
o Concurrent with the RTC
Cases affecting ambassadors, etc
o Concurrent with the IBP
5
There are two kinds of writ of habeas corpus. One for the custody of minors, and the regular one under the ROC. The difference is that in the
former, pre-trial is required. In the latter, it is not.
Mickey Ingles 5
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
SMALL CLAIMS
(AM-8-8-7-SC, 2008)
Small claims are filed in the MTC
Small claims cases involve cases with amounts NOT EXCEEDING P100k
o No distinction between cases outside Metro Manila and Metro Manila
What should be included in the P100k?
o The claim itself, EXCLUSIVE OF INTERESTS and COSTS 6
What if the claim is for damages itself?
Then it’s not covered by small claims because these damages have yet to
be ascertained. Damages cases (like from personal injury) are not akin to
sum-of-money cases.
o Segue: what if the case is for P100k and is outside MM, what do you follow – small claims
or summary procedure?
Atty Tranquil suggests that it is the option of the complainant since there is
concurrent jd between small claims court and court of summary procedure.
Does it cover quasi-delicts?
o Yes. It covers cases of fault/negligence, quasi-contract, contract, and even the civil aspect
of criminal cases.7
No need for lawyers nor the filing of a regular complaint. You can just use the standard form
given.8
Can you join separate claims?
o Yes, as long as:
Against same defendant
Total does NOT exceed P100k, exclusive of interests and costs. 9
Do you have to pay docket fees?
6
Section 2. Scope. - This Rule shall govern the procedure in actions before the Metropolitan trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred
Thousand Pesos (P100,000.00) exclusive of interest and costs.
7
Section 4. Applicability - The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial
Courts shall apply this Rule in all actions which are; (a) purely civil in nature where the claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money, and (b) the civil aspect of criminal action, or reserved upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules of Criminal Procedure.
These claims or demands may be;
(a) For money owned under any of the following;
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the following;
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec.
417 of Republic Act 7160, otherwise known as the Local Government Code of 1991.
8
Section 5. Commencement of Small Claims Action. - A small claims action is commenced by filing with the court an accomplished and verified
Statement of Claim (Form 1 - SCC) in duplicate, accompanied by a Certification of Non-forum Shopping (Form 1-A,SCC), and two (2) duly
certified photocopies of the actionable document/s subjects of the claim, as well as the affidavits of witnesses and other evidence to support the
claim. No evidence shall be allowed during the hearing which was not attached to or submitted together with the Claim, unless good cause is
shown for the admission of additional evidence.
No formal pleading, other than the Statement of Claim described in this Rule, is necessary to initiate a small claims action.
9
Section 6. Joinder of Claims - Plaintiff may join in a single statement of claim one or more separate small claims against a defendant provided
that the total amount claimed, exclusive of interest and costs, does not exceed P100,00.00.
Mickey Ingles 6
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o Unfortunately, yes.10
If an indigent sues, it will immediately be referred to the executive judge. (See
footnote)
Even if indigent, he still has to pay P1,000 for the summons fee.
Can the court dismiss the case outright?
o Yes!11
If court finds no reason to dismiss outright, it will issue summons and notice of hearing to the
defendant.12
o Defendant has 10 days to make a verified response. The 10 days can NOT be extended. 13
If he fails to respond, the court can render judgment based on the Statement of
the Claim. The judgment must be limited to the amount of the claim, but it can be
lowered by the court.14
Can the defendant file a counterclaim?
o Yes, as long as:
Also not exceeding P100k, exclusive of interests and costs
Arising out of the same transaction or event that is the subject matter of the claim
Does not require for adjudication 3rd parties, and
Not subject of a pending action.
If not filed as a counterclaim, it is barred. 15
o If it doesn’t arise out of the same transaction or event, a counterclaim can still be filed in
the response as long as docket fees have been paid for it and the claim does not exceed
P100k, exclusive of interests and costs.
Can you file Rule 65 Certiorari from an order of the small claims court?
o No, it’s prohibited.16
10
Section 8. Payment of Filing Fees. - The plaintiff shall pay the docket and other legal fees prescribed under Rule 141 of the Revised Rules of
Court, unless allowed to litigate as an indigent.
A claim filed with a motion to sue as indigent (Form 6-SCC) shall be referred to the Executive Judge for immediate action in case of multi-sala
courts, or to the Presiding Judge of the court hearing the small claims case. If the motion is granted by the Executive Judge, the case shall be
raffled off or assigned to the court designated to hear small claims cases. If the motion is denied, the plaintiff shall be given five (5) days within
which to pay the docket fees, otherwise, the case shall be dismissed without prejudice. In no case shall a party, even if declared an indigent, be
exempt from the payment of the P1,000.00 fee for service of summons and processes in civil cases.
11
Section 9. Dismissal of the Claim. - After the court determines that the case falls under this Rule, it may, from an examination of the allegations
of the Statement of Claim and such evidence attached thereto, by itself, dismiss the case outright of any of the grounds apparent from the Claim
for the dismissal of a civil action.
12
Section 10. Summons and Notice of Hearing - If no ground for dismissal is found, the court shall forthwith issue Summons (Form 2-SCC) on
the day of receipt of the Statement of Claim, directing the defendant to submit a verified Response.
The court shall also issue a Notice (Form 4-SCC) to both parties, directing them to appear before it on a specific date and time for hearing, with a
warning that no unjustified postponement shall be allowed, as provided in Section 19 of this Rule.
The summons and notice to be served on the defendant shall be accompanied by a copy of the Statement of Claim and documents submitted by
plaintiff, and a copy of the Response (Form 3-SCC) to be accomplished by the defendant. The Notice shall contain an express prohibition against
the filing of a motion to dismiss or any other motion under Section 14 of this Rule.
13
Section 11. Response - The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a
non - extendible period of ten (10) days from receipt of summons. The Response shall be accompanied by certified photocopies of documents, as
well as affidavits of witnesses and other evidence in support thereof. No evidence shall be allowed during the hearing which was not attached to
or submitted together with the Response, unless good cause is shown for the admission of additional evidence.
14
Section 12. Effect of Failure to File Response - Should the defendant fail to file his response within the required period, the court by itself shall
render judgement as may be warranted by the facts alleged in the Statement of claim limited to what is prayed for. The court however, may, in its
discretion, reduce the amount of damages for being excessive or unconscionable
15
Section 13. Counterclaims Within the Coverage of this Rule - If at the time the action is commenced, the defendant possesses a claim against
the plaintiff that (a) is within the coverage of this rule, exclusive of interest and costs; (b) arises out of the same transaction or event that is the
subject matter of the plaintiff's claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not the subject of another
pending action, the claim shall be filed as a counterclaim in the response; otherwise, the defendant shall be barred from suit on the counterclaim.
The defendant may also elect to the file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence ,
provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and the other legal fees are paid.
16
Section 14. Prohibited Pleadings and Motions - The following pleadings, motions, and petitions shall not be allowed in the cases covered by
this Rule:
(a) Motion to dismiss the compliant except on the ground of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgement, or for reopening of trial;
(d) Petiton for relief from judgement;
(e) Motion for extension of time to file pleadings, affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
Mickey Ingles 7
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Rule 1
Section 1. Title of the Rules.
These Rules shall be known and cited as the Rules of Court.
Mickey Ingles 8
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
The commencement of an action interrupts the period of prescription as to all the parties to the
action.
When does an action commence?
o Upon filing of the original complaint in the court
With respect to an additional defendant, when does it commence?
o The present rule provides that it is the date of the filing of the amended complaint joining
the additional defendant which is the date of the commencement of the action with regard
to such additional defendant.
You only file a motion for the admission of such amended complaint when then
here has been an answer served on the plaintiff.
In cases where the amended complaint is attached to the motion for its admission,
the date of filing thereof is the date of the commencement of the action with
regard to the additional defendant, irrespective of the action of the court on the
motion.
Does the filing alone vest the court with jurisdiction over the subject matter?
o No. You have to 1) file and 2) pay the docket fees.
o It is important to remember that it is not simply the filing of the complaint or appropriate
initiatory pleading but also the payment of the prescribed docket fee that vests a trial
court with jurisdiction over the subject matter or nature of the action.
o Without the payment of the docket fees, no original complaint or pleading is considered.
o If the complete amount of the docket fee is not paid, the prescriptive period continues to
run as the complaint is deemed not filed.
Sec. 6. Construction.
These Rules shall be liberally construed in order to promote their objective of securing a just, speedy
and inexpensive disposition of every action and proceeding.
Mickey Ingles 9
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 10
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
Maraming angal si Mario versus Luigi (hindi nagbayad ng utang tapos kinain yung pasta niya na
hindi nagpapaalam tapos hinalikan si Princess Daisy tapos sinuntok si Toad tapos hindi pina-tae si
Yoshi, etc)
You do this when there’s 1 case but several causes of action.
o For every breach, there is one cause of action.
If there is a claim of money and there are claims of damages (moral, exemplary)
arising from the claim of money, there is only one cause of action. The claims for
damages are mere incidents of the breach (failure to pay)
If there are several promissory notes, but only one loan, and no payment on all
notes, there are several causes of action (since based on PNs).
You can even do a joinder of ALTERNATIVE causes of action.
o Example: shipping contract. First cause of action is based on contract. Second cause of
action is based on tort.
Can you do alternative causes of action against multiple/different parties?
Yes. Rule 3, Sec 6.21
Example: 2 buses collided with Mr. X’s car. Mr. X can file alternative
causes of action against the two buses.
What conditions must be met for a proper joinder of causes of action?
o The rules on joinder of parties must be observed, meaning:
It arises from the same or series of transactions, and
It involves a common question of law (Rule 3, Sec 6)
IMPORTANT: This must only be followed if there are multiple defendants.
o If just between two parties, no need for this rule.
Scenario 1: X versus Y – can join as many causes of
action, even if totally UNRELATED.
See Mario v Luigi above. Totally unrelated causes
of action.
Scenario 2: X versus A, B, C, D (multiple) – can only join
the causes of action if it complies with the rule on joinder,
meaning series of actions arising from the same or series
of transactions involving a common question of law)
Seen in Pantanco v Standard, (2005), where the
plaintiff and their insurance company sought relief
from the bus company. Court said there was
proper joinder of parties (and thus joinder of
causes of action) because there was a single
transaction common to all – the accident caused
by the bus company.
Seen in Perez v Hermano (2005), where plaintiffs
properly joined defendant company and defendant
X because said company allegedly misled plaintiff
in signing a mortgage deed in favor of defendant
X. It’s an example of a question of law and fact
arising from a “series of transactions.”
To determine identity of cause of action, it must be ascertained whether
the same evidence which is necessary to sustain the second cause of
action would have been sufficient to authorize a recovery in the first.
(Pantranco v Standard, this case is also relevant for jurisdiction, as it
focused on totality of claims)
21
Rule 3, Sec. 6. Permissive joinder of parties.
All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to
exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but
the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with
any proceedings in which he may have no interest.
Mickey Ingles 11
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o Special civil actions or actions governed by special rules are not covered.
You can’t join an ejectment case with money claims because ejectment cases are
governed by special rules on summary procedure.
You can’t join two special civil actions either.
o In cases of different venues or jurisdiction between the SAME parties, the joinder may be
made in the RTC, provided it has jurisdiction over one of the causes of action and the
venue lies therein.
If one cause of action falls within the RTC and the other in the MTC, the action
should be filed in the RTC.
If the causes of action have different venues, they may be joined in any of the
courts of proper venue.
So, a real action and a personal action may be joined either in the RTC of
the place where the real property is located or where the parties reside.
o Case 1: Sum of money 350k, plaintiff resides in Makati, defendant
in QC
o Case 2: Real property worth 80k in Cavite.
You can join those two cases in the RTC of Cavite. (for
academic purposes)
But in practice, just severe because other lawyers
don’t know about this.
o Where all the causes of action are for recovery of money, the aggregate amount claimed
shall be the test of jurisdiction.
Important: This totality rule will only apply if ALL cases of action are for recovery
of money.
Does this mean we can’t have joinder of real action and personal action?
o No. We can still do it, using Sec 5(c), but you just don’t use the
totality rule.
The totality of the principal claims for money determines which court has
jurisdiction.
But, in cases of joinder of parties, the first condition should apply.
Joinder of causes of action is permissive and not mandatory. It’s up to the litigant if he wants to
avail of such. But when he decides to do a joinder, he must comply with the requirements. (Perez
v Hermano, 2005)
Mickey Ingles 12
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
On Foreign Corporations
Isolated transaction: can sue and be sued
Doing business and not licensed here: can NOT sue, but can be sued
EXCEPT: if other party is estopped because he benefitted from dealing with such
foreign corporation
Doing business and licensed: can sue and be sued
o Entities authorized by law (see Rule 3, Sec 15)
Examples:
Political parties
Labor unions
Archdiocese
Estate
Rule 3, Sec 15 (as defendants)
What about entities without juridical existence?
o Can NOT institute under the name of the non-juridical entity. They have to sue
individually.
o But they can be parties as defendants, and named as such. (see Rule 3, Section 15)
Can estates be a party? Yes, Rule 3, Section 20.
Can executors or administrators be parties? Yes, Rule 87, Section 1.
Can the state be sued?
Generally, no. Except when:
o There is express consent (there’s a law allowing it)
o There is implied consent, like when:
The state enters into a private contract
It enters into a business operation, unless it does so only as a necessary
incident of its prime governmental function
the state sues a private party, unless the suit is entered into only to resist a
claim.
There is failure to abide by what the law of contract requires.
Mickey Ingles 13
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Hence, when two sets of stockholders file a derivate suits based on the same facts,
alleging the same causes of action, and praying for the same reliefs, it’s
tantamount to allowing the corporation to file the same suit twice. This results to
forum-shopping which is not allowed. (Cua v Tan)
In Cua, the Court noted that the indispensable parties were not only the Board of
Directors, but also the majority stockholders who approved and ratified the action
that was the subject of the controversy.
o In an action for inspecting corporate books and records, it is the stockholder demanding
for the inspection that is the RPI. The right to inspect corporate books is personal. (Cua v
Tan)
Difference between RPI and legal standing/locus standii
o The concept of RPI will only apply to private suits.
o Locus standii usually applies to public suits filed by a private party.
It pertains to government actions wherein a person may suffer injury.
You can base your legal standing as a taxpayer, voter, Congressman, citizens
suit22 (for environment cases – here, even generations yet unborn can be parties
based on a citizens suit. In fact, plaintiffs don’t need any interest in filing a citizens
suit. As long as he’s Pinoy, he can file.)
Important: what is the remedy for impleading the wrong party? (For example, Harry sues Ron,
claiming that Ron owns the property, but Ron doesn’t own it and doesn’t have anything to do with
Harry in the first place)
o Motion to Dismiss. Ground: Pleading states no cause of action
This ground absorbs the situation wherein the party impleaded is not the RPI.
(Atty. Tranquil/Riano)
Difference between “pleading states no cause of action” and “lack of cause of
action” will be discussed when we get to Motion to Dismiss
What happens when the action has commenced, but the party in interest changes?
o The original action continues, and the original plaintiff becomes the representative of the
transferee of the interest. (See Section 19)
What happens when the interest has changed, and then the action commences?
o The original plaintiff is no longer the party in interest.
22
SEC. 5. Citizen suit.—Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an
action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall
contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in
the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the
Philippines or furnish all affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective provisions. (A.M. No. 09-6-8-SC)
Mickey Ingles 14
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
An agent acting in his own name and for the benefit of an undisclosed principal may be sued or
sue without joining the principal
o EXCEPT when the contract involves things belonging to the principal.
Mickey Ingles 15
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
A necessary party is one who is not indispensable but who ought to be joined as a party if complete
relief is to be accorded as to those already parties, or for a complete determination or settlement of the
claim subject of the action.
Who is a necessary party?
Party in interest is one who is not indispensable but who ought to be joined
o if complete relief is to be accorded as to those already parties, or
o for a complete determination or settlement of the claim subject of the action.
Plaintiff may choose to file versus the necessary party not impleaded, but they ought to be joined
to avoid multiple litigation.
Indispensable Necessary
Without whom no final determination of the Interest is distinct and divisible from the
case can be had; inextricably intertwined with interest of the other parties; will not
the other parties’ that his legal presence is an necessarily be prejudiced by a judgment which
absolute necessity does complete justice to the parties in court
Should be joined under any and all conditions Should be joined whenever possible; his
presence would merely permit complete relief
between him and those already parties to the
action, or simply avoid multiple litigation
Effect of failure to implead (important!)
If necessary party
o GR: failure to implead is non-prejudicial
o No waiver of right to implead. There is no waiver UNLESS there is an order to implead
from the court, and you still did not implead.
If indispensable party
o The court should ORDER that the indispensable party be impleaded. (Domingo case)
o If despite the order, you still did not comply, the case will be dismissed. On what ground?
Failure to comply with an order of the court. 23
o If court did not notice the non-joinder (and thus did not order to implead the indispensable
party), and renders a decision… what happens?
The judgment is null and void.24
The absence of an indispensable party renders all subsequent actions of the court
null and void for want of authority to act, not only as to the absent parties but
even to those present. (NLMK-Olalia v Keihin, 2010)
23
Rule 17, Sec. 3. Dismissal due to fault of plaintiff.
If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his
action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion
of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.
24
The ruling in Republic v Sandiganbayan (2003) stating that the judgment is still binding on the parties present during trial (even if some
indispensable parties were absent) is wrong. Atty. Tranquil said it’s not binding precedent and is actually a “sensitive” judgment.
Mickey Ingles 16
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over
his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the
action, and the judgment rendered therein shall be without prejudice to the rights of such necessary
party.
What if a necessary party is not joined, what happens?
o The pleader shall set forth his name and shall state why he is omitted.
What if the court finds the reason for his omission unmeritorious?
o The may order the inclusion of the omitted necessary party if jurisdiction over his person
may be obtained.
When if, after the order, the pleader fails to explain to the non-joinder or fails to comply, without
justifiable cause, with the order of the court? (Given that jurisdiction over the person may be
obtained)
o Then it will be deemed a waiver of the claim against such party.
What if the joint obligor can’t be impleaded because jurisdiction over the person couldn’t be
obtained?
o The judgment rendered against the impleaded joint obligor will not prejudice the rights of
the joint obligor not impleaded.
Mickey Ingles 17
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o For example, there was a bus accident. Some passengers died, some got injured, some
got out scot-free. Can there be a class suit? No, because the interests and the possible
damages that each victim will want may differ. For there to be a class suit, their interests
must be the same. Remember common or general interest. (Atty. Tranquil)
Adequacy of representation is essential! (MVRS case)
o In determining the question of fair and adequate representation of members of a class,
determine:
Whether the interest of the named party is coextensive with the interest of the
other members of the class
The proportion of those made a party to the total membership of the class
Any other factor bearing on the ability of the named party to speak for the rest of
the class
Just because a person represents a number of people doesn’t mean it’s a class suit. It has to
comply with the requisites.
o Courts exercise caution before allowing a class suit, which is the exception to the joinder
of indispensable parties. Why? Because if the judgment against the class represented is
not favorable, the represented would certainly claim denial of due process. (MIAA v
Rivera)
Differentiate derivative suit from a class suit in the context of corporations
o Derivative suits are those instituted by an individual stockholder on behalf of the
corporation in order to protect or vindicate corporate rights. Usually filed when there is an
allegation of mismanagement or wrongful acts committed by the directors or trustees. The
wrong here is done to the corporation itself.
o Class suits are those instituted when the wrong is done to a group of, let’s say,
stockholders. An example would be a violation of the rights of preferred stockholders. The
wrong here is done to the a certain group or class.
Give an example of a class suit that has prospered.
o Oposa v Factoran.
Practical tip from Atty Guevara: If a judge denies the class suit, go for a permissive joinder of
parties. The thing here is that those not pleaded will not be affected by the judgment (as
compared to having a class suit where all will get affected)
Mickey Ingles 18
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o Their answer must reveal the names and addresses of the persons composing it, so that
the judgment rendered against them shall set out their individual or proper names.
Mickey Ingles 19
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 20
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
25
Sec. 19. Indigent litigants exempt from payment of legal fees. - Indigent litigants (a) whose gross income and that of their immediate family
do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with A FAIR MARKET
VALUE AS STATED IN THE CURRENT TAX DECLARATION of more than THREE hundred thousand (P300,000.00) pesos shall be exempt
from the payment of legal fees.
The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides.
To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income
abovementioned, nor they own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting
to the truth of the litigant’s affidavit. The current tax declaration, if any, shall be attached to the litigant’s affidavit.
Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or to strike out the
pleading of that party, without prejudice to whatever criminal liability may have been incurred. (16a)
Mickey Ingles 21
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
26
RULE 70 Section 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after
the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns
of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of
possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession,
or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.
Mickey Ingles 22
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o But the mere filing and payment of fees (for multiple properties in various areas) can be
paid in one office, as long as it can be established that it covers all areas. But the actual
sale will only be done in the place where the properties are located.
o Note: no need for Certificate of Non-Forum Shopping in a “petition to get possession”
(since it’s not really a petition but a motion – PTA case)
For judicial foreclosure
o Rule 68 does not provide for the venue of this SCA, but it is filed where the property is
located.
o If the contract of mortgage covers various properties in different provinces, file in RTC of
any of the provinces covering the property. (Atty Guevara)
What if any of the defendants does not reside and is not found in the Philippines, what’s the
venue?
o If it involves the personal status of the plaintiff, then in the court of the place where the
plaintiff resides.
o If it involves the property of the defendant located in the Philippines, where the property
or any portion thereof is situated or found.
Jurisdiction is limited to the res, namely, the personal status of the plaintiff or the property of the
defendant located in the Philippines.
The judgment must be confined to the res, and no personal judgment can be rendered against the
defendant, unless he submits to the jurisdiction of the court.
Mickey Ingles 23
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
This Rule shall not apply: (a) In those cases where a specific rule or law provides otherwise; or (b)
Where the parties have validly agreed in writing before the filing of the action on the exclusive venue
thereof.
Examples of cases where a specific rule or law provides otherwise
o Quo warranto proceedings: RTC of the residence of the defendant.
o Action for nullity of marriage: where plaintiff residents, where the defendant resides or
where their conjugal home is located
o Adoption: where the prospective adoptive parents reside
o Probate: where the deceased last resided at his time of death
o Contempt in quasi-judicial agencies: RTC where the contempt was committed
o Writ of habeas corpus on custody of minors: GR is RTC where the minor is supposed to be
found
EXCEPT when place is unknown or minor cannot be found, can be filed in the CA or
SC
Can venue be stipulated?
o Yes, but it must not be contrary to public policy.
o A written agreement of the parties as to venue before the filing of an action is not only
binding upon the parties but also on the courts.
o The parties must employ categorical and suitably limiting language that they wish the
venue of the action be laid only and exclusively at a definite place.
In the absence of qualifying or restrictive words, the stipulation on venue should
be deemed as merely an agreement on an additional forum, not as limiting venue
to the specified place. (Lantin v Lantion, 2006).
In Lantin, the action was a real one: nullity of sale and/or mortgage because the
main objective of the case was the reconveyance of the property sold
o Important: where the exclusivity clause does not make it necessarily all encompassing,
such that even those not related to the enforcement of the contract should be subject to
the exclusive venue, the stipulation designating venues should be strictly confined to the
specific undertaking or agreement. (SMC v Monasterio, 2005)
Hence, when the venue was stipulated in a warehousing agreement, but the cause
of action arose from cashiering services which had nothing to do with the
warehousing agreement, the venue stipulation is NOT binding on the cause of
action arising from the cashiering services. (SMC v Monasterio)
o Compare SMC to PBCOM v Lim, in that case, there was a venue stipulation in a promissory
note. Connected to the promissory note was a surety agreement which did NOT contain
any venue stipulation. The plaintiff filed an action against the surety in a place NOT
stipulated in the PN. Court held that the venue stipulations in the promissory note should
be read to the surety agreement because the surety agreement was an accessory contract
which couldn’t exist without the PN. So, improper venue. (Bottomline: in SMC, the cases
were NOT related. In PBCOM, the cases were interrelated.)
o The stipulation said, “… exclusively in the RTC of Baguio”, is that valid?
No. The RTC’s jurisdiction is determined by law.
To fix it, say “… exclusively in the appropriate court in Baguio, waiving for this
purpose any other venue provided by the Rules of Court.”
o But remember: if there’s a specific rule or law, that rule or law will govern over the
stipulation.
Remedy for not filing in proper venue:
o Motion to Dismiss, ground: improper venue
o A judge can NOT motu propio dismiss a case based on improper venue. (Because this is
waived if not raised in a MTD or the answer). (Gumabon)
Mickey Ingles 24
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
oVenue
If real, where property is located. If personal, choice of plaintiff.
o Filing fees
If real, docket fees based on FMV (tax declaration or zonal valuation, whichever is
higher) or if none, state value. If personal, based on claims in prayer.
Real/personal actions are not the same with in rem, quasi in rem, in personam actions.
o The former determines venue, jurisidiction, and filing fees.
o The latter merely determines who will be bound by the judgment (effect of judgment).
27
(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where
attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000.00).
(2) All other cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed One hudred thousand pesos
(P100,000) or Two hundred thousand pesos (P200,000.00) in Metro Manila, exclusive of interest and costs, exclusive of interest and costs. (As
amended by AM 02-11-09-SC, November 25, 2002)(
28
Sec. 2. Determination of applicability. — Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not
the case shall be governed by this Rule A patently erroneous determination to avoid the application of the Rule on Summary Procedure is a
ground for disciplinary action.ch
29
B. Verifications. — All pleadings shall be verified.
Sec. 4. Duty of court. — After the court determines that the case falls under summary procedure, it may, from an examination of the allegations
therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a
civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule
shall apply
30
Sec. 5. Answer. — Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy
thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or
cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded.
Mickey Ingles 25
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Court can render judgment 1) motu propio or 2) on motion of the
plaintiff.31
No motion to declare the defendant in default since it’s prohibited too.
Ang daming bawal! So what are the allowed pleadings?
Complaints
Compulsory counterclaims and cross-claims pleaded in the answer, and
the answers thereto.
Remember: all the pleadings must be VERIFIED. 32
After the filing of the last pleading, we move on to preliminary conference.
o SECOND: Preliminary conference
This is NOT pre-trial as in normal cases. It’s a preliminary conference. (Remember
this when you have cases on ejectment. See notes on pre-trial since pre-trial rules
supplement preliminary conference rules in summary procedure)
Court sets this within 30 days after the last answer is filed. 33
In the PC, the parties are asked to compromise, identify issues, etc.
If plaintiff is absent in the PC, the case will be dismissed.
If the defendant appears and the plaintiff is absent, the court can rule on
the counterclaim.
All cross-claims shall be dismissed.
If the sole defendant is absent, the plaintiff shall be entitled to judgment.
Won’t apply if there are two or more defendants who are sued under a
common cause of action, and one of them appears in the PC.
So what should you do if either party is absent?
Have an explanation or send a representative.
Provision on authorization does not appear in the Rules of Summary
Procedure but in Macasaet v Macasaet, Court held that pre-trial rules apply
suppletorily to preliminary conference.
Take note that if the court finds sufficient evidence at this point in time, it can
already render judgment based on what’s presented in the PC. 34
If there is no judgment yet in step 1 and 2, we move on to the submission of
judicial affidavits and position papers.
o THIRD: Submission of judicial affidavits and position papers
There are NO hearings or trials.
Compare to criminal cases where trial is needed, but direct examination
can be waived for judicial affidavits.
31
Sec. 6. 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 attorney's fees claimed for being
excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 4, Rule 15 of the Rules of Court, if there are two
or more defendants.
32
Sec. 3. Pleadings. —
A. Pleadings allowed. — The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims' pleaded in the
answer, and the answers thereto.
B. Verifications. — All pleadings shall be verified.
33
Sec. 7. Preliminary conference; appearance of parties. — Not later than thirty (30) days after the last answer is filed, a preliminary conference
shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of
this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears
in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be
dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply
where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary
conference.
34
Sec. 8. Record of preliminary conference. — Within five (5) days after the termination of the preliminary conference, the court shall issue an
order stating the matters taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
(b) The stipulations or admissions entered into by the parties;.
(c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need
of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order;
(d) A clear specification of material facts which remain controverted; and virtual law library
(e) Such other matters intended to expedite the disposition of the case.
Mickey Ingles 26
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Affidavits and position papers must be submitted 10 days from receipt of order of
the preliminary conference.35
GR: Court renders judgment 30 days from the filing of
the last affidavit or position paper or
the expiration of the period for filing the same. (note: not submission for
resolution but submission of the last affidavit/position paper)
o EXCEPT: if the court needs more clarificatory stuff, it will issue an
order requiring more affidavits to be given to the court within 10
days from receipt of order. The court will then decide 15 days after
the receipt of the last clarificatory affidavit. 36
Prohibited pleadings37:
o MTD, except
Lack of JD over subject matter
Cannot be waived by the parties or cured by silence, acquieence or even
express consent. (Bongato v Malvar, 2002)
Example: prescription, filing for ejectment case beyond the 1-year period
Failure to refer to lupon38 (waivable according to Banares case)
Dismissed but WITHOUT prejudice
o Reply
o Bill of particulars
o MR or MNT
o Petition for relief from judgment
o Motion to declare in default
Also prohibited in small claims cases and environment cases
o Third party complaint
o Memoranda
o Dilatory motions for postponement
Motions for cancellation of hearing are not dilatory but be careful since the judge
will have to determine if it’s dilatory in the first place
o Motion for extension of time
o Petition for certiorari, mandamus, prohibition against interlocutory orders of the court
o Interventions
Decisions from the MTC can be appealed to the RTC. 39
o On appeal in the RTC, a MR is no longer a prohibited pleading.
35
Sec. 9. Submission of affidavits and position papers. — Within ten (10) days from receipt of the order mentioned in the next preceding
section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their
position papers setting forth the law and the facts relied upon by them.
36
Sec. 10. Rendition of judgment. — Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period
for filing the same, the court shall render judgment.
However should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to
be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the
same.
The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.
37
Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this
Rule:chan robles virtual law library
(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 virtual law library
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default; law library
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third party complaints;
(l) Interventions.
38
Sec. 18. Referral to Lupon. — Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508
where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such
requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant.
Mickey Ingles 27
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
The appeal before the RTC is no longer covered by the Rules on Summary
Procedure. (Macandangdang v Gaviola, 2009)
Rules of Court supplement the Rules on Summary Procedure as long as they are not
inconsistent.40
o Hence, when the MTC dismisses a case because of lack of referral to the lupon and the
aggrieved party fails to appeal within 15 days, it becomes final and executory and cannot
be revived by a mere motion. (Banares, 2000)
Preliminary injunction, being a provisional remedy, should lend itself to the summary nature of an
ejectment case. (Maderada v Mediodea)
Judges who fail to follow the Rules on Summary Procedure will be held administratively liable.
Sec. 3. Complaint.
The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and
residences of the plaintiff and defendant must be stated in the complaint.
Mickey Ingles 28
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Sec. 4. Answer.
An answer is a pleading in which a defending party sets forth his defenses.
An answer is a pleading in which a defending party sets forth his defenses.
Sec. 5. Defenses.
Defenses may either be negative or affirmative.
A negative defense is the specific denial of the material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
An affirmative defense is an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by
him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute
of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of
confession and avoidance.
Mickey Ingles 29
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Sec. 6. Counterclaim.
A counterclaim is any claim which a defending party may have against an opposing party.
Mario filed a collection case versus Luigi. Luigi filed a collection case versus Mario, claiming Mario
owed him.
A counterclaim is a distinct and independent cause of action.
o Upon its filing, the same proceedings are had as in the original complaint.
Period to answer counterclaim: within 10 days from service.
Properly interposed, the defendant becomes the plaintiff.
Mickey Ingles 30
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
the amount and the nature thereof, except that in an original action before the Regional Trial Court, the
counterclaim may be considered compulsory regardless of the amount.
Sec. 8. Cross-claim.
A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence
that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim
may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant
for all or part of a claim asserted in the action against the cross-claimant.
Mario filed a suit versus Bowser and Luigi. Then, Luigi files versus Bowser.
A cross claims is any claim by one party against a co-party
o arising out of the transaction or occurrence that is the subject matter either of:
o the original action or of a counterclaim therein.
Period to answer cross-claim: 10 days
No need for leave of court
Mickey Ingles 31
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mario filed a collection case versus Luigi. Luigi filed a collection case versus Mario, claiming Mario
owed him. Then Mario filed another case versus Luigi, not arising from the same transaction.
Atty Guevarra says this applies to permissive counterclaims, because it would be useless to file a
counterclaim against a counterclaim if it were compulsory since it would still pertain to the same
transaction.
Mickey Ingles 32
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Section 1. Caption.
The caption sets forth the name of the court, the title of the action, and the docket number if assigned.
The title of the action indicates the names of the parties. They shall all be named in the original
complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on
each side be stated with an appropriate indication when there are other parties. Their respective
participation in the case shall be indicated.
Mickey Ingles 33
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
(b) Headings. - When two or more causes of action are joined, the statement of the first shall be
prefaced by the words "first cause of action," of the second by "second cause of action," and so on for
the others. When one or more paragraphs in the answer are addressed to one of several causes of
action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or
"answer to the second cause of action" and so on; and when one or more paragraphs of the answer are
addressed to several causes of action, they shall be prefaced by words to that effect.
(c) Relief. - The pleading shall specify the relief sought, but it may add a general prayer for such
further or other relief as may be deemed just or equitable.
(d) Date. - Every pleading shall be dated.
Sec. 4. Verification.
Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified
or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations
therein are true and correct of his personal knowledge or based on authentic records.
A pleading required to be verified which contains a verification based on "information and belief," or
upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an
unsigned pleading.
GR: Pleadings need not be verified, under oath, or accompanied by an affidavit.
o EXCEPT: if specifically required by law or rule.
A verification states that the affiant has read the pleading and the allegations therein are true.
o It must be under oath.
It is the PARTY who signs the verification, not the lawyer.
o Although the lawyer can sign it under compelling reasons.
A minor can sign, but he must be assisted.
Verification is only a formal requirement.
o It is not jurisdictional. Failure to attach is not fatal.
But in the SC and CA, they dismiss without prejudice it for failure to comply with
procedural requirements.
GR: For cases involving multiple parties, ALL of them must sign the verification. (applies also to
CNFS)
o EXCEPT: when they have a common interest among them. In this case, a signature of one
will suffice. (No need for authority from others either)
Examples of common interests:
Heirs, with regard to property allegedly bequeathed to them (Iglesia v
Ponferrada, 2006, where only one heir signed the verification and it was
allowed by the court)
Spouses and family members, involving the family home
Members of a co-ownership, involving the property of the coownership
Mickey Ingles 34
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 35
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Section 1. In general.
Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of
the ultimate facts on which the party pleading relies for his claim or defense, as the case may be,
omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to
him shall be clearly and concisely stated.
What should it contain?
o The ultimate facts, not evidentiary facts.
o Unlike a complaint which only alleges facts, an answer may cite legal provisions relied
upon for defense (like statute of limitations)
Sec. 4. Capacity.
Mickey Ingles 36
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized association of persons that is made a
party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial,
which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
With respect to capacity, the facts concerning the following must be averred:
o The capacity of a person to sue or be sued
o The authority of a party to sue or be sued in a representative capacity
o Legal existence of an organized association of the persons that is made a party
If a party wishes to raise an issue as to the legal existence of any party, etc, what should he do?
o He should do so by a specific denial, which should include such supporting particulars as
are peculiarly within the pleader’s knowledge.
o If the defendant wishes to raise an issue as to the plaintiff’s legal capacity to sue, he may
file a motion to dismiss on that ground, or set it up as an affirmative defense in the
answer.
o If the defendant wishes to raise an issue as to his legal capacity to be sued, he may
question the jurisdiction of the court over his person.
o In either case, the defendant may deny the allegation of capacity.
Sec. 6. Judgment.
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or
of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter
showing jurisdiction to render it.
Mickey Ingles 37
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 38
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court
shall dismiss the claim.
GR: Defenses and objections not raised in a motion to dismiss or in the answer are deemed
waived.
o EXCEPT:
Lack of jurisdiction over the subject matter
Litis Pendentia
Res judicata
Statute of limitations/Prescription
Lack or absence of cause of action (jurisprudence)
o If these grounds appear from the pleadings or the evidence of record, the court shall
dismiss the claim.
The waivable grounds should be raised in the first motion to dismiss (if ever subsequent ones are
filed as supplement), and not in supplemental motions to dismiss. If they are raised only in a
supplemental motion to dismiss, it is deemed waived. (Anunciacion v Bocanegra, 2009, wherein
lack of jd over the person was raised only in a supplemental motion to dismiss. Court held that the
defense was waived)
Give an example where the grounds must be raised in an answer and not in a MTD: for cases
under Rules on Summary Procedure where MTD is a prohibited pleading.
Is the waiver irrevocable? (Feria)
o No. You can obtain relief from the consequences of such waiver by an amendment of the
answer with leave of court.
Give a case wherein no jd over a person was raised only on certiorari, and was still allowed.
o Spouses Mason v Columbus Bus, because there was no waiver (since the clients didn’t
know of the case) and there was no valid service of summons. (Atty. Tranquil handled this
case. It’s an exceptional case because of the facts.)
Mickey Ingles 39
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
(b) Relief from order of default. - A party declared in default may at any time after notice thereof and
before judgment file a motion under oath to set aside the order of default
upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In such case, the order of default may be set aside
on such terms and conditions as the judge may impose in the interest of justice.
(c) Effect of partial default. - When a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer and the others fail to do so, the court shall try
the case against all upon the answers thus filed and render judgment upon the evidence presented.
(d) Extent of relief to be awarded. - A judgment rendered against a party in default shall not exceed
the amount or be different in kind from that prayed for nor award unliquidated damages.
(e) Where no defaults allowed. - If the defending party in an action for annulment or declaration of
nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney
to investigate whether or not a collusion between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence submitted is not fabricated.
Kinds of default
o In actions in rem, general order of default.
There are no defendants, so notice is made to the public that all oppositors have
to come forward and object. Otherwise, their claims are forever barred.
Usually in actions for certificates for public convenience, MARINA permits
o Failure to attend pre-trial
Used to be called “as in default” in the 1964 Rules of Court (no longer in the
present rules, but old lawyers still use the phrase)
What it really is: when the defendant fails to attend the pre-trial, the plaintiff can
just present evidence ex parte (hence, it’s not really the default in this section
because pre-trial presupposes that an answer has already been filed)
o Failure to file an answer (this section)
When is one considered in default (under this section)?
o The court will declare the defending party in default
When he fails to answer within the time allowed therefore (see the time periods!),
and
Upon motion of the claiming party, and
With notice to the defending party,
And proof of such failure.
o Generally, an order of default can be made only upon motion of the claiming party.
But see Santos v PNOC (2008), where even without motion, the Court still allowed
the default because the party could not be found anyway.
Can the court render judgment without presentation of evidence?
o Yes!
o The court shall proceed to render judgment granting the claimant such relief as the
pleading may warrant, UNLESS its discretion requires the claimant to submit evidence.
The Clerk will receive the evidence, if ever.
What’s the effect of the order of default?
o The party in default shall be entitled to notice of subsequent proceedings, but not take
part in the trial. (haha, loser.)
Relief from an order of default:
o He may, at any time, after notice thereof and before judgment, file a motion UNDER OATH
to set aside the order of default.
o He must properly show that his failure to answer was due to:
Fraud
EXTRINSIC fraud ah!41
Accident
Mistake
Excusable negligence (FAME!)
o State that you have a meritorious defense, without necessarily given an answer
41
Extrinsic fraud is actually a super ground! It can be invoked in 4 rules. Motion for new trial, petition for relief from judgment, petition for
annulment of judgment, AND relief from an order of detault
Mickey Ingles 40
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o Also see Republic v Sandiganbayan, 2007, wherein the SC considered the trial court’s
granting of motions (motion to file responsive pleading and motion for BOP) as having the
same effect of lifting the order of default
If judgment already rendered, the defaulted party has the following options (Martinez v Republic,
2006):
o If judgment already rendered when the defendant discovered the default, but before the
same has become final and executor, file a motion for NEW TRIAL (grounds: FAME) under
Sec 1, Rule 37
o If defendant discovered the default after the judgment has become final and executor, file
a PETITION FOR RELIEF under Sec 2, Rule 38
o Appeal from the judgment as contrary to evidence or to law, even if no petition to set
aside the order of default ahs been presented by him. (Sec 2, Rule 41)
Grounds:
Plaintiff failed to prove the material allegations of the complaint, or
Decision is contrary to law
o Certiorari (Rule 65)
What’s the effect of partial default?
o When a pleading asserting a claim states a common cause of action against several
defending parties, some of whom answer and the others fail to do so, the court shall try
the case against all upon the answers thus filed and render judgment upon the evidence
presented.
This doesn’t apply when the defenses interposed by those present are personal.
o Hence, in a case versus Mario, Wario, Luigi, and Bowser, with Bowser not filing an answer.
Mario, Wario, and Luigi can present evidence. Bowser can not. But Bowser can still win on
the strength of the evidence given by Mario, Wario, and Luigi.
o The plaintiff will not be given the chance to present evidence ex parte since the other
defendants aren’t in default.
What about the relief to be awarded?
o Well, it shall not exceed the amount or be different in kind from that prayed for.
o The court should also not award unliquidated damages (not supported by evidence).
o Even if the judge orders more evidence to be presented, the award should still not exceed
the amount prayed for. (Atty. Guevara)
o If the contract states “… in case of breach, damages will amount to P500,000.”, then
that’s not unliquidated and the judge can award that.
When are defaults not allowed?
o Action for legal separation
o Action for annulment or declaration of nullity of marriage
In these 2 cases, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if there is none, to
intervene for the State in order to see to it that the evidence submitted is not
fabricated.
o SCAs like certiorari and prohibition, wherein the Court will order the respondent to
comment
But in Interpleader, there can be default since the rules don’t mention anything
about it and thus the ROC will apply suppletoritly
How do you set aside an order of “as in default” (allowance for plaintiff to present evidence ex
parte)
o File an MR or motion to set aside order of default, also on the ground of FAME. (Saguid v
CA)
o No need to add that you have a meritorious defense, since you’re already in pre-trial.
Mickey Ingles 41
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 42
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o If objected, the court may allow the complaint to be amended and the evidence may be
admitted.
o But remember that the cause of action must exist at the time the action was begun. The
plaintiff will not be allowed by an amendment to introduce a cause of action which had not
existence when the action was commenced.
How does amendment relate to the statue of limitations?
o A new cause of action included in an amended complaint does not relate back to the date
of the filing of the original complaint under the statute of limitations.
But if it merely supplements the original complaint without stating a new cause of
action, it relates back to the date o the filing of the original complaint.
As we can see, the reckoning point is the filing of a responsive pleading.
o Before responsive pleading: matter of right
o After responsive pleading: discretionary
In criminal cases, the reckoning point is the plea.
o Before plea: you can amend both in form and in substance.
o After plea: only as to matters of form, as long as it will not prejudice the rights of the
accused.
Test: if the original defense of the accused will change.
Remember the implication of amendments to docket fees: if the docket fees were already paid for
the original pleading, the any increases in the new fees because of the amendment will serve as a
lien on the judgment. (this presupposes that the original fees were paid for the original pleading,
thus giving the court jurisdiction over the case – PAGCOR v Lopez, 2005)
Substituting an actionable document which is appended to the complaint is akin to an amendment
and must therefore be done with leave of court if answer has already been served on the plaintiff.
(Tiu v PBCOM, 2009)
Amendments to pleadings are generally favored and should be liberally allowed in furtherance of
justice, unless there are circumstances such as inexcusable delay or by taking the adverse party
by surprise which might justify a refusal of permission to amend. (Tiu v PBCOM)
Mickey Ingles 43
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Amendments Supplements
Omission of a fact that happened before TOE happened only fter filing
filing; it was there at the time of the
Mickey Ingles 44
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
pleading
May be filed without leave of court (if Always with leave of court
before responsive pleading)
Mickey Ingles 45
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third
(fourth, etc.) party complaint, and amended complaint-in-intervention.
Sec. 6. Reply.
A reply may be filed within ten (l0) days from service of the pleading responded to.
Mickey Ingles 46
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 47
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Section 1. Coverage.
This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except
those for which a different mode of service is prescribed.
Mickey Ingles 48
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
service upon the party himself is ordered by the court. Where one counsel appears for several parties,
he shall only be entitled to one copy of any paper served upon him by the opposite side.
What is filing?
o It’s the act of presenting the pleading or other paper to the clerk of court.
What about service?
o It’s the act of providing a party with a copy of the pleading or paper concerned.
What if a party has appeared by counsel?
o GR: Service upon the party shall be made upon his counsel or one of them,
UNLESS service upon the party himself is ordered by the court.
When will the court order service upon the party?
o When the attorney of record cannot be located either because he
gave no address or changed his given address
o An order to show cause why a party should not be punished for
contempt for disobeying a special judgment.
What if there are two attorneys?
o The rule is that the notice of hearing may be made either upon both attorneys or upon one
of them, regardless of whether they belong to the same law firm or are practicing one
independently of the other.
Mickey Ingles 49
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Written motion
Notice
Appearance
Demand
Offer of judgment
Similar papers
What constitutes promulgation?
o The act of filing the judgment, resolution and order of the court constitutes rendition or
promulgation thereof.
o They should first be filed with the clerk of court before they are served upon the parties.
o In the case of pleadings subsequent to the original compliant and written motions, they
should first be served on the parties before they are filed with the court.
Service
Sec. 5. Modes of service.
Service of pleadings, motions, notices, orders, judgments and other papers shall be made either
personally or by mail.
How do you serve pleadings, motions, notices, orders, judgments and other papers?
o Personally
o By registered mail
o By ordinary mail
o Publication or substitute service (but depends if papers by parties or papers emanating
from the court)
How is this different from service of summons?
o Service of summon is necessary in order that the court may acquire jurisdiction over the
person of the defendant.
o Once the court has acquired such jurisdiction either by service of summons or voluntary
appearance, the defendant may be served copies of the pleadings, either personally or by
mail.
Mickey Ingles 50
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Plainly addressed to the party or his counsel at his office, or otherwise at his
residence
With postage fully prepaid, and
With instructions to the postmaster to return the mail to the sender after 10 days
if undelivered.
o If no registry service is available in the locality of either the sender or the addressee, then
by ordinary mail.
Mickey Ingles 51
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Service at the old address of counsel of record is valid. He did not inform the court that he moved
addresses. (Ethics case!)
Mickey Ingles 52
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 53
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
RULE 14 SUMMONS
Sec. 2. Contents.
The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain:
(a) the name of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed by these Rules;
(c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be
granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any, shall be
attached to the original and each copy of the summons.
Mickey Ingles 54
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
In quasi-judicial agencies, the rules on service of summons is NOT strictly construed. Substantial
compliance is enough. (Cada v Time Saver Laundry, 2009)
o Atty. Tranquil: Get the internal rules of quasi-judicial agencies. They might be different
from the ROC.
Sec. 4. Return.
When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of
the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to
the clerk who issued it, accompanied by proof of service.
Mickey Ingles 55
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the
preceding section, service may be effected (a) by leaving copies of the summons at the defendant's
residence with some person of suitable age and discretion then residing therein, or
(b) by leaving the copies at defendant's office or regular place of business with some competent
person in charge thereof.
When can you do substituted service?
o Only when the defendant cannot be served personally within a reasonable time that a
substituted service may be made
o Impossibility of prompt service should be shown by stating the efforts made to find the
defendant personally and the fact that such efforts field. This statement should be made in
the proof of service.
How is substituted service effected?
o By leaving copies of the summons at the defendant’s residence with some person of
suitable age and discretion then residing therein, or
o By leaving the copies at the defendant’s office or regular place of business with some
competent person in charge thereof.
Requirements to effect a valid substituted service (Pascual v Pascual, Manotoc v CA):
o Impossibility of prompt personal service
What do you mean by “reasonable time”?
For the sheriff, he has to serve the summons 15-30 days. After the 30 th
day, the court will require the sheriff to submit the return.
o You have to be listo with this. If you file a complaint and you don’t
see to it that the summons is served within a reasonable time,
your complaint can be dismissed for failure to prosecute.
o In re: failure to prosecute, see Republic v Glasgow (2008) where
the SC said that it was not the Republic’s fault that summons was
not served within a reasonable time because Republic exerted
diligent efforts and Glasgow changed their address without
informing the SEC.
How many times should the attempted personal service been done?
At least 3 times, on at least 2 different dates (Pascual v Pascual, 2009)
o Specific details in the return
Sheriff must describe in the return the facts and circumstances surrounding the
attempted personal service
The efforts made to find the defendant and the reasons behind the failure must be
clearly narrated.
In Manotoc, the return merely said that “on many occasions several attempts were
made to serve the summons.” Court held that this was deficient. Details must be
specific!
o If in the residence, to a person of suitable age and discretion.
What do you mean by “suitable age”?
18 years old and above
How do you test “discretion”?
Ask questions, are they capable of making judgments? Do they understand
what’s happening?
Must be able to speak English. (Obiter in Manotoc)
The presupposes that a relation of confidence exists between the person
with whom the copy is left and the defendant, and assumes that such
person will deliver the process to the defendant.
Service is made at the residence of the defendant, but he was abroad, valid?
Yes. Residence refers to the place where the person named in the
summons is living at the time when the service is made, even though he
may be temporarily out of the country at the time.
Can you give the summons to a cousin who’s visiting?
Atty. Guevara says no. Strict compliance must be met. They must be
residing therein.
What about a househelper?
Check two things:
Mickey Ingles 56
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 57
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
In-house counsel
Strict compliance with the mode of service is necessary.
List is EXCLUSIVE.
However, one should look at the functions of the officer, not the nomenclature.
o So, service to the COO is ok, he’s the general manager. So with the CFO, since he’s the
treasurer. (Atty. Guevara)
How do you serve to a GOCC?
o If created by law, see the charter who are authorized to receive summons.
o If created through the corporation code, follow Sec 11.
If the foreign private juridical entity is not registered in the Philippines or has no resident agent,
service may, with leave of court, be effected out of the Philippines through any of the
following means:
a) By personal service coursed through the appropriate court in the foreign country with the assistance
of the Department of Foreign Affairs;
b) By publication once in a newspaper of general circulation in the country where the defendant may
be found and by serving a copy of the summons and the court order by-registered mail at the last
known address of the defendant;
c) By facsimile or any recognized electronic means that could generate proof of service; or
d) By such other means as the court may in its discretion direct. (as amended by AM 11-3-6-SC, March
15, 2011)
How can summons be served upon a foreign private juridical entity?
o For those who have transacted business here
By serving upon:
Its resident agent designated in accordance with law for that purpose, or
If none, on the government official designate by law to that effect, or
Any of its officers or agents within the Philippines
o Remember Atty. Robles usual kwento about his jap client getting a
summons while playing golf in Wackwack
o For those who are not registered in the Philippines or have no resident agents
By serving:
Personally through the appropriate court in the foreign country with the
assistance of the DFA, or
By publication once in a newspaper in the country where the defendant
may be found AND by serving a copy and the court order by registered
mail at the last known address, or
By fax or by any recognized electronic means that could generate proof of
service, or
By other means ordered by the court
Read this provision with Rule 11, Sect 2 (When to file responsive pleadings)
Take note:
o If the foreign corporation has a representative office here, serve it on the resident agent,
as stated in this section
o If the foreign corporation has a subsidiary incorporated under the SEC, then use Sec 11,
since the subsidiary is a domestic corporation.
Mickey Ingles 58
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Sec 14, 15, and 16 talks of summons by publication, but it is important to know the differences in
application and rules. So take note when each section will apply.
Sec. 14. Service upon defendant whose identity or whereabouts are unknown.
In any action where the defendant is designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of
court, be effected upon him by publication in a newspaper of general circulation and in such places and
for such time as the court may order.
You use Sec 14 when the defendant is UNKNOWN or his whereabouts are UNKNOWN.
When can summons by publication be done?
o Where the defendants is designated as an unknown owner, or the like; or
o Where his whereabouts are unknown and cannot be ascertained by diligent inquiry
No need for personal service since you don’t know who the defendant is or where he is anyway.
Important: Unlike Sec 15 and 16, Sec 14 only requires publication. No need to send the summons
by registered mail to the last known address.
Before, you can only do this for in rem cases, but now, you can do this in whatever kind of action,
whether in rem or in personam. (Santos v PNOC)
Mickey Ingles 59
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o It was not sent by registered mail to the last known address of the defendants (who lived
in the States), and
o There was failure to present the affidavit of the printer, foreman, etc of the newspaper
were the summons was allegedly published. (see Sec 19)
Mickey Ingles 60
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
If the service has been made by publication, service may be proved by the affidavit of the printer, his
foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy
of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons
and order for publication in the post office, postage prepaid, directed to the defendant by registered
mail to his last known address.
How do you prove service of summons by publication?
By two affidavits.
o By an affidavit of
The printer
Foreman
Principal clerk, or
Editor or business or advertising manager
Attached to it is a copy of the publication
o Affidavit showing the deposit of a copy of the summons and order for publication in the
post office, etc etc
Seen in Acance v CA, 2005
RULE 15 MOTIONS
Section 1. Motion defined.
A motion is an application for relief other than by a pleading.
A motion may be final or interlocutory. There are also motions which pray for a judgment on the
merits.
A motion seeks relief, but is not a pleading.
It does not raise a claim, nor does it raise defenses in an answer.
Hence, a MTD does not take the nature of an answer because it does not lead to a joinder of
issues.
Sec. 3. Contents.
A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if
required by these Rules or necessary to prove facts alleged therein, shall be accompanied by
supporting affidavits and other papers.
What should the motion contain?
o The relief sought to be obtained
o Grounds upon which it is based
o If required by the Rules or necessary to prove facts alleged therein, it should be
accompanied by supporting affidavits
o Notice of hearing (see Sec 4)
When are supporting affidavits necessary?
o If the facts alleged in the motion are not of record or of judicial notice
Mickey Ingles 61
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
42
Rule 35, Sec. 3. Motion and proceedings thereon.
The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.
Mickey Ingles 62
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 63
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Section 1. Grounds.
Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion
to dismiss may be made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or
otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of
frauds; and
(j) That a condition precedent for filing the claim has not been complied with.
Kinds of dismissal in civ pro:
o MTD by the defendant (Rule 16)
o MTD by the plaintiff (Rule 17)
Also covers failure to prosecute, which is another form of MTD
o Demurrer to evidence
When should a motion to dismiss be filed?
o Before filing the answer to the complaint or pleading asserting a complaint
o This can be done by any defending party
What are the grounds?
o No jurisdiction over the defendant
Look into the proper service of summons or voluntary appearance
o No jurisdiction over the subject matter
Depends on law
o Improper venue
See Rule 4, or special rules under specific laws
o Plaintiff no legal capacity to sue
Check the CAPACITY to sue
Natural person – must be age of majority
o If minor or incompetent, must be assisted
Corporation – must be duly organized and existing in the laws of country
where it was organized
Attorney-in-fact – look into the scope of authority
o Litis pendentia
Requisites:
Same parties
Same interest
Same rights asserted
Same relief prayed for
Could be pleaded as res judicata if the pending case has been disposed of
Forum shopping is NOT a ground. You usually use litis pendentia or res judicata
when forum shopping or splitting cause of action occurs. (Read with Rule 2, Sec 4)
If there are two pending cases, what case will be dimissed?
o GR: the later case.
EXCEPT: the first case may be the one dismissed if the
later action is the more appropriate vehicle for the
Mickey Ingles 64
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
43
Real actions over immovables30 years (but if acquired with good faith and just title, only 10 years to acquire ownership)Real actions over
movables8 years (but if acquired with good faith and just title, only 4 years to acquire ownership)Mortgage action10 yearsWritten contract
Obligation created by law
Judgment10 years
Oral contract
Quasi-contract6 years
Injury to the rights of the plaintiff
Quasi-delict4 yearsForcible entry
Unlawful detainer
defamation1 yearAll others not fixed by other laws5 years
Mickey Ingles 65
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Use the latter as a ground for motion to dismiss. Usually the complaint is
incomplete, defective or lacks allegations. It’s based on preliminary
objections.
o PACS-COA is waived if not raised in MTD or answer.
o No cause of action is not waived. (?)
o Claim has been paid, waived, abandoned, extinguished (bar to refilling)
o Unenforceable under statute of frauds (bar to refilling)
o Condition precedent not complied with
Failure to refer to katarungang pambarangay (waivable, not jurisdicitional)
Earnest efforts to compromise
Exhaustion of admin remedies
GR: Dismissal on these grounds is without prejudice. It can be re-filled. (remedy: Rule 65,
because of Rule 41, Sec1) (see Sec 5 for codal)
o EXCEPT (bar to refilling):
Prescription
Unenforceable under Statute of frauds
Res judicata
Extinguished claim or demand
Remedy in these cases: appeal (see Sec 5 of this rule)
Mickey Ingles 66
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Mickey Ingles 67
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without
prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff
who has once dismissed in a competent court an action based on or including the same claim.
The plaintiff has two ways to dismiss his action:
o As a matter of right (Sec 1) – before service of answer, or before a motion for summary
judgment. By mere notice.
o As a matter of discretion by the court (Sec 2) – at any stage of the proceedings other than
before service of an answer or a motion for summary judgment. By motion and order of
the court.
When can the plaintiff dismiss an action by notice?
o Any time before service of the answer, or
o Any time before a motion for summary judgment
o The court will then issue an order confirming the dismissal.
What is the effect of the dismissal?
o It is without prejudice, so case can be re-filed
EXCEPT:
If it is stated in the notice that the dismissal is with prejudice, or
If the plaintiff has once dismissed in a competent court an action based on
or including the same claim (two-dismissal rule)
No counterclaim yet since dismissal was before the answer.
44
The only debatable exception would be if it is alleged in the counterclaim that it was the very act of the plaintiff in filing the complaint which
caused the violation of the defendant’s rights. But it remains debatable if it is sufficient to obviate the pending cause of action by the defendant
against the plaintiff. (Pinga v Heirs of German Santiago)
Mickey Ingles 68
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o The failure of the plaintiff to appear without justifiable cause on the date of the
presentation of his evidence in chief on the complaint
o The failure of the plaintiff to prosecute his action for an unreasonable length of time
o Failure of the plaintiff to comly with the Rules of Court or any order of the court
These can be grounds of dismissal based upon motion of the defendant or upon the court motu
proprio
Take note: dismissal under this section will have the same effect as an adjudication upon the
merits, unless otherwise declared by the court.
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made
before a responsive pleading or a motion for summary judgment is served or, if there is none, before
the introduction of evidence at the trial or hearing.
The rules above also apply to dismissals of counterclaims, cross-claims or third-party complaints
o for dismissals by notice, there is an additional reckoning point: before the introduction of
evidence at the trial or hearing
RULE 18 PRE-TRIAL
45
Within one day from receipt of the complaint:
1.1 Summons shall be prepared and shall contain a reminder to defendant to observe restraint in filing a motion to dismiss and instead allege the
grounds thereof as defenses in the Answer, in conformity with IBP-OCA Memorandum on Policy Guidelines dated March 12, 2002. A copy of
the summons is hereto attached as Annex "A;" and
1.2 The court shall issue an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse
party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rules 27 and 28 within five days from
the filing of the answer.1 A copy of the order shall be served upon the defendant together with the summons and upon the plaintiff.
Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference.If the
plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial.
Mickey Ingles 69
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Before actual pre-trial, the judge will refer the parties to the PMC mediation unit for mediation if
available.46
o The parties will pay the fees for the mediator.
o The pre-trial proceedings are suspended for 30-60 days.
If mediation fails, preliminary conference will be set with the branch COC.47
o The preliminary conference is like a mini pre-trial.
o In the preliminary conference, the branch COC shall explore the possibility of compromise,
ascertain admission of facts and due execution & genuineness of the documents, etc.
Segue: is there preliminary conference in the CA and in SC?
Yes. See Rule 48 and Rule 56, both for cases on appeal and original cases.
Take note that in ejectment cases, there is preliminary conference, instead of pre-
trial. But pre-trial rules apply suppletorily.
So in Macasaet v Macasaet (2004), the SC allowed the party to be
represented by his counsel via a SPA even if the rules on ejectment cases
were silent about it.
After the preliminary conference, the judge will study all the pleadings and try to reduce and limit
the issues.
o The judge, with all tact, patience, impartiality and with due regard to the rights of the
parties, shall try to persuade them to settle.48
o He talks to counsel and parties first. If it fails, he will talk to the parties only.
If there is still no settlement, the judge shall among others:
o Adopt the minutes of the preliminary conference
o Scrutinize every single allegation of the complaint
o Define and simplify the factual and legal issues from the pleadings.
o Ask parties to agree on specific trial dates, keeping in mind two rules:
One-day examination of witness rule – witness has to be fully examined in 1 day
only, if possible
Most important witness rule – judge will determine the most important witnesses
to be heard and limit the number of witnesses
o Pre-mark the evidence (if not done during preliminary conference)
Important: if evidence is not pre-marked during pre-trial, then it can no longer be
presented.
Same rule with witnesses: witnesses not named during pre-trial will not be allowed
to testify
Exception to evidence and witnesses: if the court allows in the interest of
justice or if newly discovered
Mickey Ingles 70
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
The parties shall file with the court and serve on the adverse party, in such manner as shall ensure
their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial
briefs which shall contain, among others:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
49
Sec. 8. Preliminary conference; appearance of parties.
Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial 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 the dismissal of his complaint. The defendant who appears in
the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. All cross-claims shall
be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. This
procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall
appear at the preliminary conference.
No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as
the court in the exercise of sound discretion may impose on the movant.
Mickey Ingles 71
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
RULE 19 INTERVENTION
50
The judge shall issue the required Pre-Trial Order within ten (10) days after the termination of the pre-trial. Said Order shall bind the parties,
limit the trial to matters not disposed of and control the course of the action during the trial. A sample Pre-Trial Order is hereto attached as Annex
"D."
However, the Court may opt to dictate the Pre-Trial Order in open court in the presence of the parties and their counsel and with the use of a
computer, shall have the same immediately finalized and printed. Once finished, the parties and/or their counsel shall sign the same to manifest
their conformity thereto.
51
All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in Section 1 of Rule 118 shall be
approved by the court.
Mickey Ingles 72
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
disposition of property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties, and whether or not the
intervenor's rights may be fully protected in a separate proceeding.
In intervention, a third party takes part in a case between other parties because of
o Legal interest
in the matter in litigation
In the success of either parties
against both
o situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or an officer thereof
Must be done with leave of court
Court will check whether:
o It will unduly delay or prejudice the adjudication of the rights of the original parties, and
o If intervenor’s rights may be fully protected in a separate proceeding
The intervenor must have his/her own cause of action. (Nordic case)
o There was a mortgage over a vessel to secure a loan. There was default in payment, so
there was extrajudicial foreclosure. While the foreclosure was pending, there was a
complaint filed by the crew members of the vessel for sum of money against the vessel.
The mortgagee sought to intervene in the sum of money case because it held a preferred
mortgage. SC said no legal interest. Here, mortgagee had no interest in the sum of money
case, and in this case, the mortgagee can protect its rights in the foreclosure case.
Dismissal of original action will result into dismissal of the intervention. (compare with
counterclaim!)
o The jurisdiction of the intervention is governed by the main action. So if the court has no
jd over the principal action, then it has no jd over an intervention. (ATI v Bautista-
Ricafort, 2006, wherein the main action, and the intervention, was filed in the wrong
court.)
Difference between intervention and interpleader
o In intervention, intervenor must have legal interest
o In interpleader, the interpleading dude has no legal interest in the property in possession
Other provisions on intervention:
o Rule 57, Sec 14 (on attachment) – 3 rd party claimant can intervene
o Rule 39, Sec 16 – can no longer vindicate in same action, as there was final judgment
already
Sec. 3. Pleadings-in-intervention.
The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the
original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim
against the latter.
Mickey Ingles 73
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
The answer to the complaint-in -intervention shall be filed within fifteen (15) days from notice of the
order admitting the same, unless a different period is fixed by the court.
RULE 20 CALENDAR OF CASES
those so required by law.
RULE 21 SUBPOENA
Mickey Ingles 74
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to
advance the reasonable cost of the production thereof. The court may quash a subpoena ad
testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may
be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not
tendered when the subpoena was served.
Grounds for quashing a subpoena:
o Ad testificandum
Witness is not bound thereby
Like when the witness is not qualified, or would fall under a known
privilege
Witness fees and kilometrage allowed by the Rules were not tendered
100 km rule (witness must live 100km within the place where the hearing
is conducted)
o if witness refuses, he can be arrested to compel him to appear
o Duces tecum
Unreasonable and oppressive
Relevancy of the books, documents, things does not appear
Failure to tender the costs of production
Kilometrage/witness fees not tendered
Failure to describe with particularity
RULE 22 COMPUTATION OF TIME
Section 1. How to compute time.
In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by
any applicable statute, the day of the act or event from which the designated period of time begins to
run is to be excluded and the date of performance included. If the last day of the period, as thus
computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time
shall not run until the next working day.
BREAK MUNA!
MODES OF DISCOVERY
What are the 4 modes of discovery?
o Depositions pending action (Rule 23)
o Request for admission by adverse party (Rule 26)
o Motion for production of documents or inspection of things (Rule 27)
o Physical and Mental Examination of Persons (Rule 28)
In general, the modes are availed of after the issues have been joined with the filing of the
answer.
The primary function of modes is to supplement the pleadings for the purpose of disclosing the
real points of dispute and affording an adequate factual basis during the preapartion for trial.
(Jonathan Land Oil)
RULE 23 DEPOSITIONS PENDING ACTIONS
Section 1. Depositions pending action, when may be taken.
By leave of court after jurisdiction has been obtained over any defendant or over property which is the
subject of the action, or without such leave after an answer has been served, the testimony of any
person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral
examination or written interrogatories. The attendance of witnesses may be compelled by the use of a
subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The
deposition of a person confined in prison may be taken only by leave of court on such terms as the
court prescribes.
When may a deposition pending action be taken and how?
o After jurisdiction over any defendant or over property: by leave of court
When else do you need leave of court?
If deposition of a prisoner is needed
Mickey Ingles 76
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
o After an answer has been served: matter of right; mere notice needed
Since issues have already been joined
What if what was filed was an answer ad cautelam, with leave of court or by mere
notice?
By mere notice. An answer ad cautelam is still an answer. It doesn’t make
it less of an answer. (Rosete v Lim, 2006)
Depositions may be taken ANY time after institution of any action. (just depends if with leave of
court or not)
o It can even be used in a hearing for a motion to quash execution. (Jonathan Land Oil v
Mangudadatu, 2004)
Can non-resident foreign corporations use depositions for their witnesses who live abroad?
o Yes, there is no distinction as to who can use Rule 23. It. DOESN’T. MATTER. (San Luis v
Rojas, 2008, where written interrogatories were to be used)
Does Rule 23 apply in criminal cases?
o NO! It does not! (At least it didn’t in Manguerra v Risos, 2008, wherein the prosecuting
witness was deposed in Makati but the case was in Cebu. Court held that Rule 119, Sec 15
must be followed. The prosecuting witness must be examined before the court where the
case is pending.)52
3 to 18 of Rule 132.
present or represented at the taking of the deposition or who had due notice thereof, in accordance
with any one of the following provisions:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of deponent as a witness;
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer,
director, or managing agent of a public or private corporation, partnership, or association which is a
party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if
the court finds:
(1) that the witness is dead; or
52
Sec. 15. Examination of witness for the prosecution.– When it is satisfactorily appears that a witness for the prosecution is too sick or infirm to
appear at the trial as directed by the court, of has to leave the Philippines with no definite date of returning, he may forthwith be conditionally
examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice
to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the
accused to attend the examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver.
The statement taken may be admitted in behalf of or against the accused. (differentiate with defense witness)
Sec. 13. Examination of defense witness; how made. – If the court is satisfied that the examination of a witness for the accused is necessary, an
order shall be made directing that the witness be examined at a specific date, time and place and that a copy of the order be served on the
prosecutor at least three (3) days before the scheduled examination. The examination shall be taken before a judge, or, if not practicable, a
member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an
inferior court to be designated therein. The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly
notified of the hearing. A written record of the testimony shall be taken.
Mickey Ingles 77
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
(2) that the witness resides at a distance more than one hundred (100) kilometers from the place of
trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the
party offering the deposition; or
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment;
or
(4) that the party offering the deposition has been unable to procure the attendance of the witness by
subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to
introduce all of it which is relevant to the part introduced, and any party may introduce any other
parts.
What are the uses of depositions?
o To impeach the testimony of a witness
o Used against the adverse party for any purpose
o Used in lieu of the oral testimony of a witness if the deponent:
Is dead
But to use his deposition, it is necessary that he was cross-examined (so it
won’t be hearsay)
Lives more than 100 KM from the place of trial or is out of the Philippines
Unless the absence was procured by the party offering the deposition
Unable to testify or attend due to age, sickness, imprisonment
Could not be compelled to attend through a subpoena
Exceptional cases
But take note: general rule is that you still have to put the witness in the
stand. That’s the priority.
Depositions are not meant to substitute for the actual testimony in open
court of a party or witness. (Sales v Sabino, 2005)
If a part of a deposition is offered in evidence, the adverse party may require the party to
introduce ALL of it.
Mere failure to appear after a subpoena was issued is insufficient to prove inability to testify. The
court can exercise its coercive power to arrest. There must be efforts to have the witness
arrested. (Cariaga v CA, 2001, which was a criminal case so Rule 115 and Rule 130 were strictly
complied with)
Mickey Ingles 78
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
If you use a deposition, the opposing lawyer can cross-examine on the deposition
again, so it’s a matter of need and strategy.
If you use the deposition of a deponent, the deponent becomes your witness.
o Unless it’s for the purpose of contradicting or impeaching.
Mickey Ingles 79
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Sec. 15. Deposition upon oral examination; notice; time and place.
A party desiring to take the deposition of any person upon oral examination shall give reasonable
notice in writing to every other party to the action. The notice shall state the time and place for taking
the deposition and the name and address of each person to be examined, if known, and if the name is
not known, a general description sufficient to identify him or the particular class or group to which he
belongs. On motion of any party upon whom the notice is served, the court may for cause shown
enlarge or shorten the time.
All objections with the notice must be promptly served in writing upon the party giving the
notice, or else it is waived.
Mickey Ingles 80
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
be entered upon the deposition by the officer with a statement of the reasons given by the witness for
making them. The deposition shall then be signed by the witness, unless the parties by stipulation
waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not
signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the
illness or absence of the witness or the fact of the refusal to sign together with the reason given
therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to
suppress under section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign
require rejection of the deposition in whole or in part.
Sec. 20. Certification and filing by officer.
The officer shall certify on the deposition that the witness was duly sworn to by him and that the
deposition is a true record of the testimony given by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert
the name of witness)" and shall promptly file it with the court in which the action is pending or send it
by registered mail to the clerk thereof for filing.
Sec. 21. Notice of filing.
The officer taking the deposition shall give prompt notice of its filing to all the parties.
Sec. 22. Furnishing copies.
Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any
party or to the deponent.
The deposition must be signed by the witness.
o Unless parties stipulated the waiver of the signing, or
o Witness is ill,
o Cannot be found, or
o Refuses to sign
In these cases, the officer will sign instead, and it can be used.
Unless a motion to suppress is duly granted by the court.
Sec. 23. Failure to attend of party giving notice.
If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and
another attends in person or by counsel pursuant to the notice, the court may order the party giving
the notice to pay such other party the amount of the reasonable expenses incurred by him and his
counsel in so attending, including reasonable attorney’s fees.
Sec. 24. Failure of party giving notice to serve subpoena.
If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon
him and the witness because of such failure does not attend, and if another party attends in person or
by counsel because he expects the deposition of that witness to be taken, the court may order the
party giving the notice to pay to such other party the amount of the reasonable expenses incurred by
him and his counsel in so attending, including reasonable attorney’s fees.
Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories.
A party desiring to take the deposition of any person upon written interrogatories shall serve them
upon every other party with a notice stating the name and address of the person who is to answer
them and the name or descriptive title and address of the officer before whom the deposition is to be
taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the
party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct
interrogatories upon a party who has served cross- interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may serve recross-interrogatories upon the party
proposing to take the deposition.
Sec. 26. Officers to take responses and prepare record.
A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the
deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided
by sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the
interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the
notice and the interrogatories received by him.
Sec. 27. Notice of filing and furnishing copies.
When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof
to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable
charges therefor.
Mickey Ingles 81
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Sec. 28. Orders for the protection of parties and deponents.
After the service of the interrogatories and prior to the taking of the testimony of the deponent, the
court in which the action is pending, on motion promptly made by a party or a deponent, and for good
cause shown, may make any order specified in sections 15, 16 and 18 of this Rule which is appropriate
and just or an order that the deposition shall not be taken before the officer designated in the notice or
that it shall not be taken except upon oral examination.
Sec 25-29 talk of written interrogatories.
o They follow the same rules as oral depositions except for the stuff on the periods for
serving cross-interrogatories, etc.
Objections to the form of written interrogatories must be made within
o the time allowed for serving succeeding cross or other interrogatories, and
o within 3 days after service of the last interrogatories authorized.
RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL.
Section 1. Depositions before action; petition.
A person who desires to perpetuate his own testimony or that of another person regarding any matter
that may be cognizable in any court of the Philippines, may file a verified petition in the court of the
place of the residence of any expected adverse party.
Mickey Ingles 82
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the
facts which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and
their addresses so far as known; and (e) the names and addresses of the persons to be examined and
the substance of the testimony which he expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the persons to be examined named in the petition
for the purpose of perpetuating their testimony.
deponents in the manner provided for service of summons.
before the hearing.
for such deposition was filed.
RULE 25 INTERROGATORIES TO PARTIES
Section 1. Interrogatories to parties; service thereof.
Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and
relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be
answered by the party served or, if the party served is a public or private corporation or a partnership
or association, by any officer thereof competent to testify in its behalf.
Mickey Ingles 83
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Sec. 2. Answer to interrogatories.
The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person
making them. The party upon whom the interrogatories have been served shall file and serve a copy of
the answers on the party submitting the interrogatories within fifteen (15) days after service thereof,
unless the court, on motion and for good cause shown, extends or shortens the time.
resolved, which shall be at as early a time as is practicable.
the same party.
answers may be used for the same purposes provided in section 4 of the same Rule.
Sec. 6. Effect of failure to serve written interrogatories.
Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party
not served with written interrogatories may not be compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal.
Distinguish Rule 23 with Rule 25
Rule 23 Rule 25
To whom? To parties or witnesses, any To parties, always and only to
person! parties
How must Direct, cross, re-direct and re- It’s just one set of questions to be
questions be cross answered by the other partay
answered?
Time to answer No fixed time to answer 15 days to respond
(depends on the officer taking 10 days to oppose
the deposition)
Uses The same
What is the effect of failure to serve written interrogatories?
o A party not served may NOT be compelled by the adverse party to give:
Testimony in open court, or
A deposition pending appeal.
What is the effect of failure to answer specific questions in written interrogatories? (Read with Rule
29)
o NOT default, no, not yet!
Proponent must first move to compel the other party to answer. (Jaravata v
Karolus, 2007. See Rule 29, Sec 1 & 3. Atty Tranquil said this modified the rules,
but I don’t see or know how)
What is the effect of failure to answer ALL questions in written interrogatories?
o Rule 29, Sec 5 should apply, not Rule 29, Sec 3. (Zepeda v China Banking, 2006)
RULE 26 ADMISSION BY ADVERSE PARTY
Section 1. Request for admission.
At any time after issues have been joined, a party may file and serve upon any other party a written
request for the admission by the latter of the genuineness of any material and relevant document
described in and exhibited with the request or of the truth of any material and relevant matter of fact
set forth in the request. Copies of the documents shall be delivered with the request unless copies have
already been furnished.
Mickey Ingles 84
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
truthfully either admit or deny those matters. Objections to any request for admission shall be
submitted to the court by the party requested within the period for and prior to the filing of his sworn
statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred
until such objections are resolved, which resolution shall be made as early as practicable.
him in any other proceeding.
Sec. 4. Withdrawal.
The court may allow the party making an admission under this Rule, whether express or implied, to
withdraw or amend it upon such terms as may be just.
Sec. 5. Effect of failure to file and serve request for admission.
Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party
who fails to file and serve a request for admission on the adverse party of material and relevant facts
at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted
to present evidence on such facts.
When can you request for admissions?
o Only AFTER the answer is filed.
Compare to depositions.
In requests for admission, what is it that you want admitted?
o The genuineness of any material/relevant document
Not the contents of the document, just the genuineness
Party requesting must attach the document
o Truth of any material and relevant matter
Who do you address it to?
o The adverse party! (Not the counsel!)
What are the relevant periods?
o To answer: 15 days, unless upon motion, allowed by court to extend
o To oppose: 15 days
Compare to opposing written interrogatories to parties (10 days)
Should your answer be in any particular form?
o Well, it should be UNDER OATH.
What about your opposition/comment?
In DBP v CA, it wasn’t under oath, but the SC allowed it.
What happens if you fail to answer/oppose?
o Everything sought to be admitted will be deemed admitted!
What if you don’t request for admissions from the adverse party?
o You won’t be permitted to present evidence on such facts.
Can a request for admission be used instead of an offer to stipulate?
o Yes, so if party fails to answer the request, then facts are admitted. (Manzano v
Despalidares, 2004, judge asked them to make an offer to stipulate during pre-trial)
Any limitations?
o Yes. No request for admission on matters which are
precisely the issues in the cases, or
irrelevant matters, or
opinions, or
conclusions of law, or
privileged matters, or
merely reiterations of allegations in the complaint. (Sime Darby v NLRC, 2006;
DBP v CA, 2005; Limos v Spouses, 2011)
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
Section 1. Motion for production or inspection; order.
Upon motion of any party showing good cause therefor, the court in which an action is pending may
(a) order any party to produce and permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books, accounts, letters, photographs,
objects or tangible things, not privileged, which constitute or contain evidence material to any matter
Mickey Ingles 85
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
involved in the action and which are in his possession, custody or control; or (b) order any party to
permit entry upon designated land or other property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or any designated relevant object or
operation thereon. The order shall specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and conditions as are just.
What is applied for?
o Production and permission to inspect documents, papers, objects, other tangible things
o Permit entry into a place under control of the other party and allow inspections
The writ of amparo is likened to a production order. (Sec of National Defense v Manalo, 2008)
o It is not an unreasonable search under the Constitution.
Are you required to present the evidence which you obtain using Rule 27?
o No. No obligation to present.
The production order is not the same as a subpoena duces tecum.
o Why?
The documents to be produced should be described with particularity.
o It should not be a blanket request or inspection. (Solidbank v Gateway, 2008, where a
request for all documents was asked)
Documents should
o NOT be privileged
o Contain or constitute evidence material to any matter involved in the action
o Documents are in the possession, custody, or control of the other party
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS
Section 1. When examination may be ordered.
In an action in which the mental or physical condition of a party is in controversy, the court in which
the action is pending may in its discretion order him to submit to a physical or mental examination by a
physician.
scope of the examination and the person or persons by whom it is to be made.
trial.
RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Mickey Ingles 87
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this
Rule.
What if there was a refusal to answer any question upon an oral deposition or written
interrogatory?
o Proponent must first apply to the proper court of the place where the deposition is being
taken for an order to compel an answer.
If granted and court finds that there was no justification for the refusal, the
deponent or the counsel (or both) will pay the expenses.
If denied and the application was unjustified, it is the proponent who will pay.
Refusal to be sworn in or refusal to answer after being ordered to do so will bring about contempt.
Upon refusal to comply with an order (like to answer a specific question), the court can also order
the following:
o Contempt
o Dismissal of the case if refusal by plaintiff
o Judgment by default if refusal by defendant
o Pleadings be stricken out
In lieu of all of this, the disobeying party can be arrested
Except if based on refusal to submit to a physical or mental examination
If the party refuses to appear or fails to serve answers to interrogatories (here, no need for order,
the violation is more blatant), the court can order:
o Dismissal of the case if refusal by plaintiff
o Judgment by default if refusal by defendant
o Pleadings be stricken out
o Pay reasonable expenses
RULE 30 TRIAL
Section 1. Notice of trial.
Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in
such manner as shall ensure his receipt of that notice at least five (5) days before such date.
right to their admissibility, the trial shall not be postponed.
Sec. 4. Requisites of motion to postpone trial for illness of party or counsel.
A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears
upon affidavit or sworn certification that the presence of such party or counsel at the trial is
indispensable and that the character of his illness is such as to render his non-attendance excusable.
Grounds for postponing a hearing/trial:
o Absence of evidence
Evidence must be material or relevant, and
It could not be produced despite due diligence
Must appear in an affidavit
o Illness of a party or counsel
Presence of either is indispensable at trial, and
Character of illness is such as to render his non-attendance excusable
Must appear in an affidavit or sworn certification
Mickey Ingles 88
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
A motion for postponement must be based on either something that is unavoidable or something
that could not have been foreseen. (de Castro v de Castro, 2009, where SC held that absence of
the party due to being abroad and absence of the doctor witness due to a convention was neither
unavoidable or unforeseeable given that the hearing was set a month before)
Sec. 5. Order of trial.
Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and
third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim
and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence
in support of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original case;
and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court
directs the parties to argue or to submit their respective memoranda or any further pleadings. If
several defendants or third-party defendants, and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence.
Plaintiff, in the usual and ordinary course of things, presents before the defendant.
The order can be reversed if there is an affirmative defense.
any of the parties, witnesses or counsel, shall be made of record in the stenographic notes.
Mickey Ingles 89
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
RULE 31 CONSOLIDATION OR SEVERANCE
Section 1. Consolidation.
When actions involving a common question of law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
Consolidation may be done when there is a commonality of fact or law pending before the court,
o provided the court has jurisdiction over the case to be consolidated and that a joint trial
will not give one party undue advantage or prejudice the other.
Seen in Zulueta v Asia Brewery (2001), where the common fact was that the 2
cases involved the same agreement
Where will the cases be consolidated?
o In the court having the case with the lowest docket number.
Can consolidation be done in cases filed in different judicial regions?
o Yes. In Zulueta, the two cases were in Iloilo and Makati.
Even if there is no formal motion to consolidate, the court can still consolidate if the parties agree
to it. (Roque v Magno, 2006, where there parties did not object, through their actions, to the
consolidation done by the judge)
Consolidation is NEVER a remedy for forum shopping. (Megaland v CE Construction, 2007)
o Generally, the later case will be dismissed.
RULE 32 TRIAL BY COMMISSIONER
Rules, the word "commissioner" includes a referee, an auditor and an examiner.
case the commissioner may be directed to hear and report upon the whole issue or any specific
question involved therein;
(b) When the taking of an account is necessary for the information of the court before judgment, or for
carrying a judgment or order into effect;
(c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any
stage of a case, or for carrying a judgment or order into effect.
A commissioner is a person authorized by the court to
Any matter can be referred to the commissioner if both parties consent to it in writing.
o If parties do not agree, the court, upon motion of either of the parties or motu propio, can
still refer the case to a commissioner if:
Case requires examination of a long account
Taking of account is necessary for court’s information for it to render
judgment/execute such judgment
There is question of fact, other then upon the pleadings, arising from motion
Commissioners are mandatory in expropriation cases (second stage: just compensation part)
In partition cases, commissioners MAY be availed of if the parties do not agree on the partition.
Mickey Ingles 90
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Subject to the specifications and limitations stated in the order, the commissioner has and shall
exercise the power to regulate the proceedings in every hearing before him and to do all acts and take
all measures necessary or proper for the efficient performance of his duties under the order. He may
issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the
order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall
proceed in all respects as it would if held before the court.
The order of reference outlines the powers of the commissioner.
Can a commissioner issue a subpoena?
o Yes.
o He can even issue a subpoena duces tecum!
o He can even rule on objections (unless this power is taken away by the order of reference)
Difference between a clerk and a commissioner:
Clerk can NOT issue subpoena duces tecum without court order.
Commissioner can issue a subpoena duces tecum.
Clerk can NOT rule on objections. Commissioner can.
thereof.
(l0) days after the date of the order of reference and shall notify the parties or their counsel.
counsel of the adjournment.
him, shall be deemed a contempt of the court which appointed the commissioner.
the testimonial evidence presented before him.
forth, shall not be considered by the court unless they were made before the commissioner.
shall thereafter be considered.
RULE 33 DEMURRER TO EVIDENCE
RULE 34 JUDGMENT ON THE PLEADINGS
Mickey Ingles 92
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Court can NOT motu propio render a judgment on the pleadings. (Bascug v
Aranday, 2002, where a judge rendered JOP without application of any of
the parties)
o In pre-trial, a judge may prompt the parties to have JOP, but
ultimately, the party involved must consent.
JOP not available in:
o Declaration of nullity or annulment of marriage or for legal separation
NO partial judgment on the pleadings.
o ALWAYS full judgment on the pleadings.
Differentiate with summary judgment which can be partial.
As a plaintiff, you file AFTER the answer.
o You can file it during pre-trial (Rule 18, Sec 2g), but better to do it earlier.
As a defendant (on a counterclaim), you can file anytime.
It’s important to compare JOP with summary judgment (below).
RULE 35 SUMMARY JUDGMENTS
affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof.
Mickey Ingles 93
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
damages, there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.
Take note: normally, a motion (like one for JOP) must be served to the adverse party at least 3
days before the hearing.
o But with motions for summary judgment, the motion must be served at least 10 days
before the hearing.
It is the adverse party who must serve at least 3 days before the hearing.
Sec. 4. Case not fully adjudicated on motion.
If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs
sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and
the evidence before it and by interrogating counsel shall ascertain what material facts exist without
substantial controversy and what are actually and in good faith controverted. It shall thereupon make
an order specifying the facts that appear without substantial controversy, including the extent to which
the amount of damages or other relief is not in controversy, and directing such further proceedings in
the action as are just. The facts so specified shall be deemed established, and the trial shall be
conducted on the controverted facts accordingly.
Another difference between POJ and SJ:
o POJ: always full judgment
o SJ: partial judgment is allowed
shall be attached thereto or served therewith.
Sec. 6. Affidavits in bad faith.
Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this
Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the
offending party or counsel to pay to the other party the amount of the reasonable expenses which the
filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further
adjudge the offending party or counsel guilty of contempt.
RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
Mickey Ingles 94
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules,
the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments.
The date of finality of the judgment or final order shall be deemed to be the date of its entry. The
record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk,
with a certificate that such judgment or final order has become final and executory.
“Final” judgment “Final and executory”
One that finally disposes of a case, leaving “Final” judgment becomes “final and executory”
nothing more for a court to do in respect upon expiration of the period to appeal (and no
thereto appeal perfected), or when an appeal is
perfected, judgment by the appellate court is
rendered and becomes final
Execution is discretionary (execution pending Execution follows as a matter of right
appeal) (Intramuros Tennis v PTA, 2000)
Once final and executory, the judgment will be entered by the clerk in the book of entries.
o Date of finality shall be deemed to be the date of its entry.
So, the date when the period expires (and no appeal taken) is considered “entry of
judgment”.
Entry of judgment is important because a petition for relief from judgment (Rule
38) can only be availed of once entry of judgment is made
Section 1. Grounds of and period for filing motion for new trial or reconsideration.
Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the
judgment or final order and grant a new trial for one or more of the following causes materially
affecting the substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded
against and by reason of which such aggrieved party has probably been impaired in his rights; or
(b) 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.
Mickey Ingles 95
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Within the same period, the aggrieved party may also move for reconsideration upon the grounds that
the damages awarded are excessive, that the evidence is insufficient to justify the decision or final
order, or that the decision or final order is contrary to law.
MR/MNT period to file: 15 days (period for taking an appeal)
o Cannot be extended AT ALL.
See Fernandez v CA, where SC said that it is only in the SC that you can filed a
motion for extension of time to file a MNT/MR. (But Atty. Tranquil said that you
shouldn’t use this in practice because filing a motion for extension of time does
NOT interrupt the running of the period.)
Can there be partial MR/MNT?
o Yes. When the court finds that the MR/MNT affects only a part of the judgment. (Sec 7)
Motion for New Trial Grounds (FAME, which ordinary prudence could not have guarded against and
by reason of which the party was probably impaired his rights, and Newly Discovered Evidence):
o Fraud
Extrinsic fraud dapat!
o Accident
o Mistake
Mistake of fact in good faigth
Not mistake of law. If mistake of law, file MR
o Excusable negligence
o Newly discovered evidence
Could not have been discovered and produced at the trial with reasonable
negligence, and
If presented, would probably alter the result
Motion for Reconsideration
o Damages awarded are excessive
o Evidence insufficient to justify the decision or final order
o Decision or final order is contrary to law
A defective MR (such as a pro forma one: one that, for example, does not have a notice of
hearing) does NOT toll the appeal period. It keeps running.
o An MR/MNT is a motion (duh) so know the requirements for a valid motion. (See rules on
motions)
o See Republic v Peralta, and Tan v CA 1998 (where entry of judgment was made because
the MR was defective and the time to appeal kept ticking.)
If a movant had already filed in the SC a petition for review on certiorari, the MR previously filed
in the CA is deemed abandoned. (People v Odilao, 2004, where the OSG and the private
complainant filed different petitions without the knowledge of the other)
Fresh period rule (important!): After the denial of an MR, the party is given a fresh period of 15
days to appeal. (Neypes v CA, 2005)54
o The denial of an MR is a final order, so reglementary period should start then.
o Fresh period rule only applies if you file for an MR (MNT?) and then it’s denied.
Where does the Neypes rule apply?
o Basically, just to Rule 40 and 41 (although the case just mentioned Rule 40). These are
ordinary appeals.
o Rule 42 (Pet for Review), 43 (Pet for Review from QJA), and 45 (Pet for Review on
Certiorari), do not need the Neypes ruling because the fresh period rule is already inherent
in the said rules.
Can there be MNT in the appellate court?
o Yes, but with different rules and applicable only to the Court of Appeals.
o Check Rule 53. For the CA, the only ground is newly discovered evidence. 55
Also different periods:
In trial courts: 15 days
54
Does the fresh period rule apply to denial of MNT?
55
RULE 53 NEW TRIAL Section 1. Period for filing; ground. At any time after the appeal from the lower court has been perfected and before
the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new trial on the ground of newly discovered evidence which
could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would
probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly
discovered evidence.
Mickey Ingles 96
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
In CA: as long as the case is active (no need to wait for a judgment in the
CA)
Is there MNT in the SC?
o Under Rule 56, generally no.
But the SC can entertain such if it feels it will serve the interests of madame
justice.
What is a TMNT?
o A Teenage Mutant Ninja Turtle. They are heroes in a half-shell. 56
Sec. 2. Contents of motion for new trial or reconsideration and notice thereof.
The motion shall be made in writing stating the ground or grounds therefor, a written notice of which
shall be served by the movant on the adverse party. A motion for new trial shall be proved in the
manner provided for proof of motions. A motion for the cause mentioned in paragraph (a) of the
preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by
whom such evidence is expected to be given, or by duly authenticated documents which are proposed
to be introduced in evidence.
A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or
final order which are not supported by the evidence or which are contrary to law, making express
reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary
to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal.
A MNT based on FAME must be accompanied by an AFFIDAVIT of MERIT.
Mickey Ingles 97
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or
less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may
order a new trial or grant reconsideration as to such issues if severable without interfering with the
judgment or final order upon the rest.
Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered retried, the court may either enter a judgment or final
order as to the rest, or stay the enforcement of such judgment or final order until after the new trial.
Sec. 9. Remedy against order denying a motion for new trial or reconsideration.
An order denying a motion for new trial or reconsideration is not appealable, the remedy being an
appeal from the judgment or final order.
RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
Section 1. Petition for relief from judgment, order, or other proceedings.
When a judgment or final order is entered, or any other proceeding is thereafter taken against a party
in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such
court and in the same case praying that the judgment, order or proceeding be set aside.
57
FAME also applies in MNT, petition for relief, motion to lift order of default, and MR of order of court in pre-trial declaring that plaintiff can
present evidence ex parte due to failure of the defendant to appear in pre-trial
Mickey Ingles 98
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
reconsideration had been granted by it.
Mickey Ingles 99
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra)
am+dg
Remedial Law Review: Civil Procedure and Appeals
Granted: lower court shall be required to give due course to the appeal and to
elevate the record of the appeal case as if a timely appeal was made
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly
perfected. If the appeal has been duly perfected and finally resolved, the execution may forthwith be
applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true
copies of the judgment or judgments or final order or orders sought to be enforced and of the entry
thereof, with notice to the adverse party. The appellate court may, on motion in the same case, when
the interest of justice so requires, direct the court of origin to issue the writ of execution.
(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.
Sec 2 talks of execution as a matter of discretion
When is execution a matter of discretion?
58
Sec. 5. 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, 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, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support.
59
Read this rule with Rule 41, Sec 9
conditioned upon the performance of the judgment or order allowed to be executed in case it shall be
finally sustained in whole or in part. The bond thus given may be proceeded against on motion with
notice to the surety.
How do you stay execution?
o If it’s execution as a matter of right, you can’t, even with a bond.
Unless you can get an injunction or TRO, claiming GADLEJ.
o If discretionary execution, by filing a supersedeas bond.
Take note: no need for bond to apply for execution, but need for staying one.
Stay of discretionary execution only applies in ordinary civil actions where the judgments and
orders are capable of pecuniary estimation.
o Hence, it doesn’t apply to election cases since the underlying public interest renders a
supersedeas bond insufficient. (Navarro v COMELEC)
court. On appeal therefrom, the appellate court in its discretion may make an order suspending,
modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay
of execution shall be upon such terms as to bond or otherwise as may be considered proper for the
security or protection of the rights of the adverse party.
The following judgments are not stayed by appeal:
o injunction
o receivership
o accounting and support
o other judgments declared as immediately executory
o labor cases (Garcia v PAL)
But on appeal, the appellate court may suspend, modify, restore or grant such in its discretion
If it was a real action, then in the place where the property is situated.
If personal action, option of the plaintiff.
(b) Satisfaction by levy. - If the judgment obligor cannot pay all or part of the obligation in cash,
certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall
levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from execution giving the latter the option to
immediately choose which property or part thereof may be levied upon, sufficient to satisfy the
judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the
personal properties, if any, an then on the real properties if the personal properties are insufficient to
answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real property
of the judgment obligor which has been levied upon. When there is more property of the judgment
obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the
personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks,
shares, debts, credits, and other personal property, or any interest in either real or persoanl property,
may be levied upon in like manner and with like effect as under a writ of attachment.
(c) Garnishment of debts and credits. - The officer may levy on debts due the judgment obligor and
other credits, including bank deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery in the posssession or control of third parties. Levy shall be
made by serving notice upon the person owing such debts or having in his possession or control such
credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will
satisfy the judgment and all lawful fees. The garnishee shall make a written report to the court within
five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has
sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how
much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or
certified bank check issued in the name of the judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from service of notice on said garnishing requiring such
delivery, except the lawful fees which shall be paid directly to the court. In the event there are two or
more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if
available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver
the amount due; otherwise, the choice shall be made by the judgment obligee. The executing sheriff
shall observe the same procedure under paragraph (a) with respect to delivery of payment to the
judgment obligee.
Execution of judgments are enforced by the sheriff. But before he does so, he must observe the
following:
o Prepare an estimate of expenses to be incurred in executing the writ (must be court
approved)
o Render an accounting
o Issue an OR for the total amount he received from the judgment obligor (Zamora v
Villanueva, 2008, this is not corruption!)
How do you enforce money judgments?
o Pay with cash (or certified bank check, or form of payment acceptable to the obligee)
To the judgment obligee, or if he’s not available, to his representative.
If both not available, pay to the sheriff, who will give to the clerk or, if not
available to a government bank
If certified bank check, it should not be made payable to the sheriff.
Sheriff can NOT give it to the brother of the representative. (Benitez v Acosta,
2001)
o If no cash, levy will be made
Levy is the act of an officer of setting apart the property of a judgment property
for the purpose of selling it later.
Choice of the judgment obligor what property will be levied upon
If he doesn’t make a choice, sheriff will choose but personal property will
be prioritized over real property
It is incumbent on the Sheriff to give a Notice of Levy or receipt to the
person to whom the personal properties were taken. (Caja v Nanquil,
2004)
o If no one’s there, he should leave the notice of levy in the place
where the property was levied.
o If still nothing, then garnishment will follow
Sheriff may levy on debts due the obligor and other credits like bank deposits and
personal property not capable of manual delivery in the possession of 3 rd persons
Levy is made by serving notice upon the person in possession of such debts or
credits
Then, garnishee shall make a report within 5 days if the judgment obligor
has enough credits with the garnishee
If there is enough credits, court will order requiring the transfer of funds
There can be no garnishment without period order of payment
Sec. 10. Execution of judgments for specific act.
(a) Conveyance, delivery of deeds, or other specific acts; vesting title. - If a judgment directs a party
who 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, and the party fails to comply within the time
specified, the court may direct the act to be done at the cost of the disobedient party by some other
person appointed by the court and the act when so done shall have like effect as if done by the party. If
real or personal property is situated within the Philippines, the court in lieu of directing a conveyance
thereof may be an order divest the title of any party and vest it in others, which shall have the force
and effect of a conveyance executed in due form of law.
(b) Sale of real or personal property.— If the judgment be for the sale of real or personal property, to
sell such property, describing it, and apply the proceeds in conformity with the judgment.
(c) Delivery or restitution of real property.- The officer shall demand of the person against whom the
judgment for the delivery or restitution of real property is rendered and all person claiming rights
under him to peaceably vacate the property within three (3) working days, and restore possession
thereof to the judgment obligee; otherwise, the officer shall oust and such persons therefrom with the
assistance, if necessary of appropriate peace officers, and employing such means as may be reasonably
necessary to retake possession, and place the judgment obligee in possession of such property. Any
costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a
judgment for money.
(d) Removal of improvements on property subject of execution.- When the property subject of the
execution contains improvements constructed or planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said improvements except upon special order of the court
issued upon motion of the judgment obligee after due hearing and after the former has failed to
remove the same within a reasonable time fixed by the court.
(e) Delivery of personal property.- In judgments for the delivery of personal property, the officer shall
take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any
judgment for money as therein provided.
If the court requires the judgment obligor to do something, but he refuses, the court may direct it
to be done by some other person, at the expense of the judgment obligor.
o The court itself may do the specific act. (Feria)
o If the other person does not comply, the court may consider that it has been deemed
complied with. (part of GT notes, not sure of the legal basis)
If judgment is for the sale of property, court can sell such and apply the proceeds to the
judgment.
If judgment involves the delivery or restitution of real property, the persons in said property have
3 days to vacate. If not, peace officers can come and make them vacate.
If judgment involves demolition, demolition can not be done unless with a special order of the
court, issued upon motion of the winning party after due hearing and after the judgment obligor
fails to remove the same.
If judgment involves delivery of personal property, the officer shall get the property and deliver it
to the party entitled to it.
liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of
such funds as may be appropriated for the purpose.
If there is a 3 rd party claim to the property levied, the judgment obligee must file a bond to
indemnify the 3rd party claimant.
o The bond must not be less than the value of the property levied upon.
It is within the discretion of the sheriff to dispense with the indemnity bond if he
sees that the 3rd party claim is baseless.
The sheriff is not liable for damages for the taking or keeping of the property if thebond is filed.
The judgment oblige may claim damages against a 3 rd party claimant in the same or a separate
action.
The 3rd person may vindicate his claim in a separate action since intervention is no loger allowed
as judgment has already been rendered.
Sec. 17. Penalty for selling without notice, or removing or defacing notice.
An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive
damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, in addition
to his actual damages, both to be recovered by motion in the same action; and a person willfully
removing or defacing the notice posted, if done before the sale, or before the satisfaction of the
judgment if it be satisfied before the sale, shall be liable to pay five thousand (P5,000.000) pesos to
any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in
the same action.
Sec. 19. How property sold on execution; who may direct manner and order of sale.
All sales of property under execution must be made at public auction, to the highest bidder, to start at
the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no
more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the
judgment obligor or his authorized representative, unless otherwise directed by the judgment or order
of the court.
When the sale is of real property, consisting of several known lots, they must be sold separately; or,
when a portion of such real property is claimed by a third person, he may require it to be sold
separately.
When the sale is of personal property capable of manual delivery, it must be sold within view of those
attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, if
present at the sale, may direct the order in which property, real or personal, shall be sold, when such
property consists of several known lots or parcels which can be sold to advantage separately. Neither
the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested
directly or indirectly in any purchase at such sale.
Manner of sale: public auction, to the highest bidder.
o Real property consisting of several known lots: sell separately
o Personal property consisting of manual delivery: sold within view of those attending the
same and in such parcels which will bring the highest price
If judgment obligor is present, he may direct the order in which the property shall be sold
The officer conducting the sale can not purchase or be interested in it
had in such property as of the date of the levy on execution or preliminary attachment.
Sec. 24. Conveyance to purchaser of personal property not capable of manual delivery.
When the purchaser of any personal property, not capable of manual delivery, pays the purchase price,
the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such
certificate conveys to the purchaser all the rights which the judgment obligor had in such property as
of the date of the levy on execution or preliminary attachment.
Sec. 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of
deeds.
Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year from the date of the registration of
the certificate of sale. Such certificate must be registered in the registry of deeds of the place where
the property is situated.
Sec. 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and
filed.
The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time
within one (1) year from the date of the registration of the certificate of sale, by paying the purchaser
the amount of his purchase, with one per centum per month interest thereon in addition, up to the time
of redemption, together with the amount of any assessments or taxes which the purchaser may have
paid thereon after purchase, and interest on such last named amount at the same rate; and if the
purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment
under which such purchase was made, the amount of such other lien, with interest.
Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon
payment of the sum paid on the last redemption, with two per centum thereon in addition, and the
amount of any assessments or taxes which the last redemptioner may have paid thereon after
redemption by him, with interest on such last-named amount, and in addition, the amount of any liens
held by said last redemptioner prior to his own, with interest. The property may be again, and as often
as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days
after the last redemption, on paying the sum paid on the last previous redemption, with two per
centum thereon in addition, and the amounts of any assessments or taxes which the last previous
redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens
held by the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer who made the sale and a duplicate filed
with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or
if he has or acquires any lien other than that upon which the redemption was made, notice thereof
must in like manner be given to the officer and filed with the registry of deeds; if such notice be not
filed, the property may be redeemed without paying such assessments, taxes, or liens.
Period of redemption:
o For judgment obligor
1 year from the registration of the certificate of sale
He may redeem either from the purchaser or a redemptioner
Once he redeems, no further redemption is allowed.
o For redemptioner
1 year from the date of registration of the certificate of sale
Second redemptioner has 60 days after the first redemption, the 3 rd has 60
days after the second, and so on, even after the lapse 1 year from the
date of registration.
o As long as each redemption is made within 60 days after the last.
o Beyond the redemption periods, the judgment obligor can still redeem, but this will be
based on contract, not on the rules.
The period to redeem is NOT suspended by an action to annul the sale. (Landrito v CA, 2005)
Redemption must made with willingness and intention coupled with tender of payment.
o It must be full payment, can’t redeem in installments.
See codal na lang for how much each has to pay.
Sec. 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded
thereupon; to whom payments on redemption made.
If the judgment obligor redeems, he must make the same payments as are required to effect a
redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored
to his estate. The person to whom the redemption payment is made must execute and deliver to him a
certificate of redemption acknowledged before a notary public or other officer authorized to take
acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the
registry of deeds of the place in which the property is situated, and the registrar of deeds must note
the record thereof on the margin of the record of the certificate of sale. The payments mentioned in
this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the
officer who made the sale.
redemption, to continue to use it in the same manner in which it was previously used; or to use it in the
ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies
the property.
Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or
given.
If no redemption be made within one (1) year from the date of the registration of the certificate of
sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed
whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof
given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the
date of the registration of the sale to redeem the property. The deed shall be executed by the officer
making the sale or by his successor in office, and in the latter case shall have the same validity as
though the officer making the sale had continued in office and executed it.
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the
time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by
the same officer unless a third party is actually holding the property adversely to the judgment obligor.
All the rights and title of the judgment obligor is transferred upon the expiration of the right of
redemption.
o The purchaser or last redemptioner is entitled to a writ of possession upon the expiration
of the redemption period.
Possession will be given to the purchaser or last redemptioner,
o UNLESS a third party is actually holding the property adversely.
Sec. 34. Recovery of price if sale not effective; revival of judgment.
If the purchaser of real property sold on execution, or his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings
concerning the sale, or because the judgment has been reversed or set aside, or because the property
sold was exempt from execution, or because a third person has vindicated his claim to the property, he
may on motion in the same action or in a separate action recover from the judgment obligee the price
paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may,
on motion, have the original judgment revived in his name for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same
force and effect as an original judgment would have as of the date of the revival and no more.
If the sale is no effective for the reasons in the codal, the purchaser has the option either:
o to recover in a separate action from the judgment oblige the price paid to him with
interest, or
o to file a motion in the same case to revive the judgment in his name against the judgment
obligor for said amount.
In this case, he can execture, just like any other judgment oblige.
obligor resides or is found.
of such proceedings to be given to any party to the action in such manner as it may deem proper.
on the oath of an authorized officer or agent thereof.
judgment obligee on the execution.
Sec. 40. Order for application of property and income to satisfaction of judgment.
The court may order any property of the judgment obligor, or money due him, not exempt from
execution, in the hands of either himself or another person, or of a corporation or other juridical entity,
to be applied to the satisfaction of the judgment, subject to any prior rights over such property. If,
upon investigation of his current income and expenses, it appears that the earnings of the judgment
obligor for his personal services are more than necessary for the support of his family, the court may
order that he pay the judgment in fixed monthly installments, and upon his failure to pay any such
installment when due without good excuse, may punish him for indirect contempt.
exempt from execution.
before the execution of the deed.
Sec. 43. Proceedings when indebtedness denied or another person claims the property.
If it appears that a person or corporation, alleged to have property of the judgment obligor or to be
indebted to him, claims an interest in the property adverse to him or denies the debt, the court may
authorize, by an order made to that effect, the judgment obligee to institute an action against such
person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of
such interest or debt within one hundred twenty (120) days from notice of the order, and may punish
disobedience of such order as for contempt. Such order may be modified or vacated at any time by the
court which issued it, or by the court in which the action is brought, upon such terms as may be just.
Sections 36-43 are proceedings supplementary to execution.
You avail of these if ever property has already been sold but the proceeds still do not SATISFY the
judgment.
o So other property is in mind for these.
Hence, the judgment obligee’s remedies are:
o Have the judgment obligor examined by an order (Sec 36)
o Have the obligor of a judgment obligor examined by an order (Sec 37)
Obligor may pay his debt to the sheriff (Sec 39)
o Have anyone else appear to be examined by order or subpoena (Sec 38)
Under pain of contempt (applies to Sec 36 & 37)
The court can then order an application for property and income of the judgment obligor for the
satisfaction of the judgment. (Sec 40)
o But garnishment of the entire salary is not allowed when said is not sufficient for the
expenses of the judgment obligor and his family.
Court can also appoint a receiver. (Sec 41)
o This is the only prov rem that can be given by the court after judgment.
o The receiver can, upon order of the court, sell and convey such real estate or the interest
of the obligor therein. (Sec 42)
Court can also allow the judgment obligee to institute an action against a person who denies the
debt or claims the property as his (Sec 43)
o Court can also forbid a transfer or disposition of said property or debt within 120 days
from notice of order
Disobedience is under pain of contempt
or his counsel on the face of the record of the judgment.
(a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or
the administration of the estate of a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will or administration, or the condition, status or relationship
of the person; however, the probate of a will or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to
any other matter that could have been raised in relation thereto, conclusive between the parties and
their successors in interest by title subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their successors in interest, that only is deemed
to have been adjudged in a former judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or necessary thereto.
What are the effects of domestic judgments or final orders?
o As against a specific thing, condition/status/relationship of a person (in rem):
CONCLUSIVE upon it
But in matters of probate, the death of the party is only presumed
o In other cases, with respect to the matter directly adjudged or to any other matter related
thereto (in personam): RES JUDICATA
Bars prosecution of the same claim, demand, or COA
Precludes the re-litigation of a particular fact or issue in another action between
the same parties
o In any other litigation between the same parties or their successors-in-interest (in
personam): conclusiveness of judgment only to that which was adjudged, or those which
are actually and necessarily included therein
Basically, in in personam cases, the judgments rendered are enforceable only
between the parties and their successors-in-interest, but not against strangers
thereto
Sec. 48. Effect of foreign judgments or final orders.
The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render
the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive
upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title. In
either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.
What are the effects of foreign judgments?
o Upon a specific thing: it’s conclusive
o Upon a person, or rights between parties: presumptive only
How do you enforce foreign judgments?
o File a verified petition in the RTC, averring that the court who ruled over it had JD over the
parties and the subject matter
Seen in St. Aviation v Grand International, 2006, where proper service of
summons was deemed made because in procedural manners, lex fori will govern
(and according to Singapore law, the service was valid.)
o Prove the law of that foreign court
For arbitral awards, you file an action for recognition, since it’s not a foreign judgment.
How do you impugn that foreign judgment?
o Want of jurisdiction/notice to party
o Collusion
o Fraud
o Clear mistake of law or fact (lutong macau doctrine of Atty. Robles)
Appeal
Ordinary appeal (Rules 40 and 41)
Petition for review (Rules 42 and 43)
o 42: if originally from MTC then went up to RTC, and appealed to
the CA
o 43: if from quasi-judicial agencies
Petition for review on certiorari (Rules 45)
o To the SC
o After entry of judgment (60 day-6 month rule)
Petition for relief from judgment (Rule 38)
o After period to file PRJ (4 years/equity)
Petition for annulment of judgment (Rule 47)
APPEALS
Before proceeding, let us look at the three modes of appeal:
o Ordinary appeal (Rules 40 and 41)
o Petition for review (Rules 42 and 43)
o Petition for review on certiorari (Rules 45)
RULE 40 APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS
Sec. 2. When to appeal.
An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final
order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal
and a record on appeal within thirty (30) days after notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion
for extension of time to file a motion for new trial or reconsideration shall be allowed.
Rule 41.
transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court. A copy
of his letter of transmittal of the records to the appellate court shall be furnished the parties.
Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction.
If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits,
the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the
ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case
of reversal, the case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the
Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without prejudice to the admission of
amended pleadings and additional evidence in the interest of justice.
RULE 41 APPEAL FROM THE REGIONAL TRIAL COURTS
Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
1. An order denying a petition for relief or any similar motion seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a judgment by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other ground vitiating consent;
5. An order of execution;
6. A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the
court allows an appeal therefrom; and
7. An order dismissing an action without prejudice.
In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action
as provided in Rule 65. (amended in 2007)
Appeals can only be taken from judgments or final orders that complete dispose of a case, or a
matter declared to be appealable by the Rules.
The enumeration in the codal are interlocutory orders, you can’t appeal from them, but you can
use Rule 65.
o Take note that if there is an order dismissing the action without prejudice, you can’t
appeal. Just go for rule 65 or just re-file.
(b) Petition for review.- The appeal to the Court of Appeals in cases decided by the Regional Trial Court
in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Appeal by certiorari.- In all cases where only questions of law are raised or involved, the appeal
shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.
from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on
appeal within thirty (30) days from notice of the judgment or final order. However, on appeal in
habeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed
from.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial or reconsideration shall be allowed.
Take note that Rule 41 talks of appeals FROM the RTC, and not appeals TO the CA. So it
enumerates three modes of appeal:
o Ordinary appeal – when the RTC acts in its original jurisdiction
o Petition for review – when the RTC acts in its appellate jd (Rule 42)
o Petition for review on certiorari – in all cases where only questions of law are raised (Rule
45)
Ordinary appeal in Rule 41 should NOT raise only questions of law since issues purely of law is not
reviewable by the CA.
o It will be dismissed outright.60
Hence, Rule 41 should raise questions of fact or mixed law and fact.
Ordinary appeal can be done in two ways (applies to Rule 40 and 41):
Notice of Appeal Record on Appeal
When needed: Needed when there are multiple or
separate appeals, or
In special proceedings
Period: 15 days 30 days
No extension (but No extension EXCEPT when there is
60
Sec. 2. Dismissal of improper appeal to the Court of Appeals.
An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues
purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the
appropriate court but shall be dismissed outright.
mentioning the names of the witnesses or the numbers or letters of exhibits. Every record on appeal
exceeding twenty (20) pages must contain a subject index.
A record on appeal is a sequential compilation of the pleadings, orders, etc of the judge.
o Unlike a notice of appeal which is just a statement when you received the decision, that
you paid the docket fees, and intend to appeal
Why is a record of appeal needed?
o Since there are multiple appeals, the original record of the case has to stay with trial court
so it can rule over the other issues of the case.
Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal.
Within thirty (30) days after perfection of all the appeals in accordance with the preceding section, it
shall be the duty of the clerk of court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be, and to
make a certification of its correctness;
(b) To verify the completeness of the records that will be transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be required to complete the records,
availing of the authority that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court. If the efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or transcripts not included in the records being
transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or that
could be taken to have them available. The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court.
with the clerk of court seven (7) clearly legible copies of the approved record on appeal, together with
the proof of service of two (2) copies thereof upon the appellee. Any unauthorized alteration, omission
or addition in the approved record on appeal shall be a ground for dismissal of the appeal.
The procedure for ordinary appeals in the Court of Appeals is found in Rule 44.
Sec. 11. Several appellants or appellees or several counsel for each party.
Where there are several appellants or appellees, each counsel representing one or more but not all of
them shall be served with only one copy of the briefs. When several counsel represent one appellant or
appellee, copies of the brief may be served upon any of them.
(a) A subject index of the matter in the brief with a digest of the arguments and page references, and a
table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where
they are cited; (b) An assignment of errors intended to be urged, which errors shall be separately,
distinctly and concisely stated without repetition and numbered consecutively; (c) Under the heading
"Statement of the Case," a clear and concise statement of the nature of the action, a summary of the
proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other
matters necessary to an understanding of the nature of the controversy, with page references to the
record; (d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form
of the facts admitted by both parties and of those in controversy, together with the substance of the
proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the
record; (e) A clear and concise statement of the issues of fact or law to be submitted to the court for its
judgment; (f) Under the heading "Argument," the appellant’s arguments on each assignment of error
with page references to the record. The authorities relied upon shall be cited by the page of the report
at which the case begins and the page of the report on which the citation is found; (g) Under the
heading "Relief," a specification of the order or judgment which the appellant seeks; and (h) In cases
not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a copy of the
judgment or final order appealed from.
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS
Not in small claims because MR and appeal are not allowed from small
claims cases. Only Rule 65.
Rule 42 and 43 are similar when it comes to periods.
o Must be filed within 15 days.
Additional extension of 15 days may be asked within the reglementary period,
provided docket fees already paid.
Can you ask for a second extension?
o No. Unless for the most compelling reasons and shouldn’t exceed
another 15 days.
Compare with ordinary appeals: no extension allowed!
What if you file a notice of appeal instead of a petition for review?
o Immediately dismissed. (Rule 50, Section 2)
requisite number of plain copies thereof and of the pleadings and other material portions of the record
as would support the allegations of the petition.
The petitioner shall also submit together with the petition a certification under oath that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn that a similar action
or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days therefrom.
RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT
OF APPEALS
Section 1. Scope.
This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from
awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central
Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board,
National Telecommunications Commission, Department of Agrarian Reform under Republic Act No.
Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application for a
writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which
must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion
filed in the same action or proceeding at any time during its pendency.
61
like conflicting findings of fact, conclusion is grounded entirely on speculation, etc
(a) When the court a quo has decided a question of substance, not theretofore determined by the
Supreme Court, or has decided it in a way probably not in accord with law or with the applicable
decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and usual course of judicial
proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the
power of supervision.
A review is NOT a matter of right, but of judicial discretion. Will only be granted if there are special
and important reasons therefore.
all documents attached to the original. The petitioner shall also submit together with the petition a
sworn certification that he has not theretofore commenced any other action involving the same issues
in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or
agency; if there is such other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5)
days therefrom. The petitioner shall pay the corresponding docket and other lawful fees to the clerk of
court and deposit the amount of P500.00 for costs at the time of the filing of the petition. The failure of
the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the
dismissal of the petition.
At its own instance or upon motion of a party, the court may hear the parties in oral argument on the
merits of a case, or on any material incident in connection therewith. The oral argument shall be
limited to such matters as the court may specify in its order or resolution.
An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief. Thereafter,
the withdrawal may be allowed in the discretion of the court.
Withdrawal as a matter of right: before filing of the appellee’s brief
Matter of discretion: after filing of appellee’s brief
RULE 51 JUDGMENT
No error which does not affect the jurisdiction over the subject matter or the validity of the judgment
appealed from or the proceedings therein will be considered unless stated in the assignment of errors,
or closely related to or dependent on an assigned error and properly argued in the brief, save as the
court may pass upon plain errors and clerical errors.
Sec. 4. Procedure.
The appeal shall be governed by and disposed of in accordance with the applicable provisions of the
constitution, laws, Rules 45, 48, Sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule.
(e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable
cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme court.
Won’t be available if availed of, or could have been availed of, in a MNT or petition
for relief
Period: 4 years from its discovery
o Lack of jurisdiction (both over SM and person)
Hence, if an indispensable party was not impleaded in a case which directly affects
him, that party can file a petition of annulment (Orbeta v Pendiong, 2005, which
was a case over real property wherein the petitioner was a co-owner)
Period: before it is barred by laches or estoppel
Sec. 6. Procedure.
The procedure in ordinary civil cases shall be observed. Should a trial be necessary, the reception of
the evidence may be referred to a member of the court or a judge of a Regional Trial Court.
The judgment of annulment may include the award of damages, attorney’s fees and other relief. If the
questioned judgment or final order or resolution had already been executed, the court may issue such
orders of restitution or other relief as justice and equity may warrant under the circumstances.
If this reviewer helped you in any way, please give to the Blue Plate Feeding program. Pay
it forward! Enrich your soul, enrich the life of another!
Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.
Alternative Proxies: