158234303 Dean Riano Civil Procedure Part 3

8/11/2019 158234303 Dean Riano Civil Procedure Part 3

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10 2005CENTRALIZEDBAROPERATIONS

CIVIL PROCEDURE

RULE 1

GENERAL PROVISIONS

Statutes regulating the procedure ofcourts will be construed as applicable toactions pending and undetermined at thetime of their passage so long as vestedrights will not be impaired.

Under the 1987 Constitution, the rule-maing power of the Supreme Court hasthe following limitations!

1. shall provide a simplified andine"pensive procedure for the

speed# disposition of cases$%. Uniform for all courts of the

same grade, and&. Shall not diminish, increase or

modif# substantive rights '(rt.)*** Sec. ++.

Section 3. Cases governed.

ACTION CLAI

(n ordinar# suit in acourt of /ustice

( right possessed b#one against another

0ne part# prosecutesanother for theenforcement or

protection of a rightor the prevention orredress of a wrong.

he moment saidclaim is filed before acourt, the claim isconverted into an

action or suit.

CLASSI!ICATION O! ACTIONS.'(

ORDINAR" CIVILACTION

SPECIAL CIVILACTION

2overned b# ordinar#rules

(lso governed b#ordinar# rules but

SU345C to specificrules prescribed '6ules

% to 71.

ormal demand ofones legal rights in acourt of /ustice in themanner prescribed b#

the court or b# thelaw

Special features notfound in ordinar# civil

actions

'3ACTION INRE

ACTION INPERSONA

ACTION#UASI IN RE

:irectedagainst thething itself

:irectedagainst

particularpersons

:irectedagainst

particularpersons

4udgment isbinding on thewhole world

4udgment isbinding onl#upon partiesimpleaded or

their

successors ininterest

4udgmentbinding upon

particularpersons, but

the real motive

is to deal withreal propert#or to sub/ectsaid propert#

to certainclaims.

5". ;andregistration

case$ probateproceedings

for allowanceof a will.

5". action torecover

damages$action forbreach ofcontract

5". Unlawfuldetainer or

forcible entr#$/udicial

foreclosure ofmortgage.

he distinction is important indetermining the 55C of the/udgment.

'C

REALACTION

PERSONALACTION

I$EDACTION

0wnership orpossession of

real propert# isinvolved

personal propert# issought to be

recovered or wheredamages for breach

of contract aresought

3oth real andpersonal

properties areinvolved

ounded onprivit# of

estate

ounded on privit#of contract

ounded onboth

e". (ccionreinvidicatoria

5". (ction for a sumof mone#

e". (ccionpubliciana

with a claimfor damages

he distinction is significant in thedetermination of venue.


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':

LOCAL ACTION TRANSITOR"

ACTION

=ust be brought in aparticular place, inthe absence of anagreement to the

contrar#

2enerall#, must bebrought where the

part# residesregardless of wherethe cause of action

arose

5". (ction to recoverreal propert#

5". (ction to recoversum of mone#

Section %. Co&&ence&ent o' action.

An action is co&&enced ()*1. filing of the complaint 'the date of

the filing determines whether or notthe action has alread# prescribed$and

%. pa#ment of the re>uisite docet fees'determined on the basis of theamount of the claim including thedamages indicated in bod# or thepra#er of the pleading

*t is not simpl# the filing of thecomplaint or the appropriate initiator#pleading but also the pa#ment of theprescribed docet fee that vests a trialcourt with /urisdiction over the sub/ectmatter or nature of the action.

he court ma# allow the pa#ment of thedeficient docet fee within a reasonableperiod but not be#ond the applicableprescriptive or reglementar# period.

(n action can be commenced b# filingthe complaint b# registered mail. *n

which case, it is the date of mailing thatis considered as the date of filing, andnot the date of the receipt thereof b#the cler of court.

he date of the filing of an amendedcomplaint /oining additional defendant isthe date of the commencement of theaction with regard to such additionaldefendant.

Section +. Constr,ction.

Genera- R,-e* ;iberal construction .Ece/tions*

a. reglementar# periodsb. rule on forum shopping

RULE 0CAUSE O! ACTION

Section 0. Ca,se o' Action de'ined.Essentia- e-e&ents o' ca,se o' action

1. 5"istence of a legal right of the

plaintiff$%. Correlative legal dut# of the

defendant to respect ones right$&. (ct or omission of the defendant

in violation of the plaintiffslegal right$ and

?. Compliance with a conditionprecedent.

CAUSE O! ACTION RIG2T O! ACTIONdelict or wrongful actor omission committed

b# the defendant in

violation of theprimar# rights of the

plaintiff

remedial right or rightto relief granted b#

law to a part# to

institute an actionagainst a person who

has committed a delictor wrong against him

he reason for theaction

the remed# or meansafforded or the

conse>uent relief

the formal statementof alleged facts

right that is given @the right to litigate

because of theoccurrence of the

alleged facts

:etermined b# factsas alleged in the

complaint and not thepra#er therein

determined b#substantive law

RELIE! REED" SU4ECTATTER

the redress,protection,award orcoercive

measure which

theprocedure or

t#pe ofaction which

ma# be

the thing,wrongful act,contract or

propert# whichis

2005 CENTRALIZEDBAROPERATIONSEXECUTIVECOMMITTEEANDSUBJECTCHAIRPERSONS

Maricel Aare!"#$ (Over-all Chairperson), R#!al% Jal&a!'ar (Over-all Vice Chair), (#la!%aT#le!"i!#(VC-Acads), Je!!i)er A!* (VC- Secretariat),J#+ I!%,c"i-#(VC-Finance), Elai!e Ma$,.a"(VC-EDP), A!!a Mar*ari"a Ere$(VC-Logistics)J#!a"/a!

Ma!*,!%a+a# (Political La), ra!ci$ Be!e%ic" Re#","ar (La!or La), R#&,al% Pa%illa (Civil La),C/ar&ai!e T#rre$ ("a#ation La), Mar. Da-i% Mar"i!e' (Cri$inal La), ar!+ L,i$a Ale*re (Co$$ercialLa),Ji!.+ A!! U+(%e$edial La),Jac.ie L#, Ba,"i$"a(Legal Ethics)


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Sa! Be%a C#lle*e #) La12

MEMOR(AIDINREMEDIALLA3

the plaintiffpra#s the courtto render in his

favor as aconse>uence of

the delictcommitted b#the defendant

availed of b#the plaintiffas the meansto obtain the

desiredrelief

directl#involved in the

action,concerningwhich thewrong has

been done andwith respectto which thecontrovers#has arisen.

Section 5. S/-itting a sing-e ca,se o'

action e''ect o'.

SPLITTING O! CAUSE O! ACTION @ is thepractice of dividing one cause of actioninto different parts and maing eachpart sub/ect of a separate complaint.

(pplies A0 onl# to complaints but alsoto counterclaims and crossclaims.

Re&ed) against s/-itting a sing-e ca,seo' action*

(. =otion to dismiss on the ground of! ;itis pendentia, if the first

complaint is still pending '6ule1, Sec. 1e$ or

6es /udicata, if an# of thecomplaints is terminated b# final/udgment '6ule 1, Sec. 1f

3. (n answer alleging either of theabove-cited grounds as affirmativedefense '6ule 1, Sec.

Genera- R,-e on Divisi(-e Contract

( contract to do several things at severaltimes is divisible, and /udgment for asingle breach of a continuing contract isnot a bar to a suit for a subse>uentbreach.

Doctrine o' Antici/ator) reac65ven if the contract is divisible in itsperformance and the future periodicdeliveries are not #et due, if the obligorhas alread# manifested his refusal tocompl# with his future periodicobligations, Bthe contract is entire and

the breach total, hence there can onl#be one action for damages (Blossom &Co. vs. Manila Gas Corp., 55 Phil. 226

Section %. 4oinder o' ca,ses o' action.6ule in this section is D56=*SS*)5 and theplaintiff can alwa#s file a separateaction for each cause of action.

Par. 7a8* he /oinder of causes of actionma# involve the same or differentparties. *f the /oinder involved differentparties, it must compl# with Sec. 6ule&, thus, there must be a >uestion of factor law common to both parties /oinedarising out of the same or series of

transactions.

Par. 7(8 re9,ires t6at: onl# causes ofaction in ordinar# civil actions ma# be/oined, obviousl# because the# aresub/ect to the same rules.

Par. 7c8(s long as one cause of actionfalls within the /urisdiction of the 6C,the case can be filed there even if the=C has /urisdiction over the others.

Pars. 7d8 e&(odies t6e TOTALIT" RULE

Section 33 BP129, as amended by RA7691-


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severed and proceeded with separatel#.

here is no sanction against non-/oinderof separate causes of action since a

plaintiff needs onl# a single cause ofaction to maintain an action.

RULE 3PARTIES TO CIVIL ACTIONS

Section 1. ;6o &a) (e /artiesuestion of law or factcommon to all the plaintiffs ordefendants$ and

&. Such /oinder is not otherwiseproscribed b# the provisions of the6ules on /urisdiction and venue.

SERIES O! TRANSACTIONS@ transactionsconnected with the same sub/ect of theaction.

INDISPENSALEPARTIES

NECESSAR"PARTIES

he action cannotproceed unless the#

are /oined

he action canproceed even in the

absence of somenecessar# parties

Ao valid /udgment ifindispensable part# is

not /oined

he case ma# bedetermined in courtbut the /udgmenttherein will not

resolve the entirecontrovers# if a

necessar# part# is not/oined

he# are those withsuch an interest in the

controvers# that afinal decree would

necessaril# affect theirrights so that the court

cannot proceedwithout their presence

he# are those whosepresence is necessar#

to ad/udicate thewhole controvers# butwhose interests are sofar separable that afinal decree can be

made in their absencewithout affecting

them

4OINT DETORS @ indispensable part#with respect to own share and anecessar# part# with respect to theshare of the others.

SOLIDAR" DETORS @ either isindispensable and the other is not even anecessar# part# because complete reliefma# be obtained from either.

Section =. Non>:oinder o' necessar)/arties to (e /-eaded.

he non-inclusion of a necessar# part#

ma# be e"cused onl# on meritoriousgrounds.

he court ma# order the inclusion of theomitted necessar# part# if /urisdictionover his person ma# be obtained b#ordering plaintiff to file an amendedcomplaint impleading the necessar#part# therein as co-defendant.

he onl# sanction for failure to impleada necessar# part# when ordered b# thecourt and /urisdiction can be obtained

over said part# is a waiver of the claimagainst him. his is considered as ane"ception to the provision on penaltiesimposed on a disobedient part# underSec. & of 6ule 17 which would haveentailed the dismissal of the complaintitself.

Section 11. is:oinder and non>:oindero' /arties.

Aeither mis/oinder nor non-/oinder ofparties is a ground for dismissal of the

action.

0b/ections to defects in parties shouldbe made at the earliest opportunit# @ themoment such defect becomes apparent @b# a =0*0A 0 S6*H5 E5 A(=5S 0E5 D(6*5S impleaded.

*f there is mis/oinder, a separate actionshould be brought against the part#mis/oined.

REMEDIALLA3COMMITTEEC&A'%PE%SO Jin*+ Ann + ASS" C&A'%PE%SOS Allen Fari.as, /aricris Oronea EDPS /artessa 0+lan, Charissi$ae

Vent0ra, Jocel+n 1a!ala S2JEC"&EADS Jona O!i.a (Civil Proced0re)3 Alnai4a &asi$an (Special Civil Actions andSpecial Proceedings)3 Jeenice de Sag0n (Cri$inal Proced0re)3 Elaine /as0*at (Evidence)


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he absence of an indispensable part#renders all subse>uent actions of thecourt null and void for want of authorit#to act, not onl# as to the absent parties

but even as to those present.

Section 10. C-ass s,it.

RE#UISITES O! A CLASS?REPRESENTATIVE SUIT.

1. sub/ect matter of thecontrovers# is one of common orgeneral interest to man#persons$

%. parties affected are so numerousthat it is impracticable to bringthem all before the court$

&. parties bringing the class suit aresufficientl# numerous orrepresentative of the class andcan full# protect the interests ofall concerned.

C-ass S,it Per&issive 4oindero' Parties

here is one singlecause of action

pertaining tonumerous persons

here are multiplecauses of action

separatel# belongingto several persons.

Section 15. Un@non identit) or na&eo' de'endant.

Re9,isites*1. there is a defendant%. his identit# or name is unnown&. fictitious name ma# be used

because of ignorance ofdefendants true name and saidignorance is alleged in thecomplaint

?. identif#ing description ma# beused! sued as unnown owner,heir, devisee, or otherdesignation

+. amendment to the pleadingwhen identit# or true name isdiscovered

. defendant is the defendant beingsued, not a mere additionaldefendant

Service of summons upon a defendantwhose identit# is unnown ma# be madeb# publication in a newspaper of general

circulation in accordance with Section 1?of 6ule 1?.

Section 1%. Entit) it6o,t :,ridica-/ersona-it) as de'endant.

he# ma# be sued under the name b#which the# are generall# nown, butthe# cannot sue under such name forlac of /uridical personalit#.

he service of summons ma# be effectedupon all the defendants b# serving uponan# of them, or upon the person incharge of the office or place of businessmaintained under such name. (Se#. $,ule 1%"

INSTANCES ;2ERE SUSTITUTION O!PARTIES IS PROPER*

A. Deat6 o' /art)< d,t) o' co,nse- 7Sec.1+8

his provision applies where the claim isnot thereb# e"tinguished as in casesinvolving propert# and propert# rightssuch as!

1. recover# of real and personalpropert# against the estate.

%. enforcement of liens on suchproperties

&. recover# for an in/ur# to personor propert# b# reason of tort ordelict committed b# thedeceased.

*n this case, the heirs will be substitutedfor the deceased 06 if no legalrepresentative is named then the courtwill order the opposing part# to procurethe appointment of an e"ecutor oradministrator for the estate of thedeceased.

*n case of minor heirs, the court ma#appoint a guardian ad litem for them.

he substitute defendant need not be

summoned. he ORDER O!2005 CENTRALIZEDBAROPERATIONSEXECUTIVECOMMITTEEANDSUBJECTCHAIRPERSONS




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over the nature of theaction is conferred b#

law and cannot bewaived

Drocedural Substantive

=a# be changed b# thewritten agreement of

the parties

Cannot be the sub/ectof the agreement of

the parties

T6e r,-e on VENUE IS NOT APPLICALEin cases

1


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RULES ON

SUAR" PROCEDURESUAR" PROCEDUREIN CIVIL CASES

he Court should not dismiss thecomplaint or counterclaim if the# arenot verified. he re>uirement is merel#a formal one, and not /urisdictional. *tshould therefore simpl# direct the part#concerned to have it verified.

PRO2IITED PLEADINGS ? OTIONSUNDER T2E RULE ON SUAR"PROCEDURE.

1. =otion to dismiss the complaintor to >uash the complaint orinformation e"cept on theground of lac of /urisdictionover the sub/ect matter orfailure to compl# with priorbaranga# conciliation 'referral tothe ;upon

%. =otion for a bill of particulars&. =otion for a new trial or for

reconsideration of a /udgment orfor reopening of trial

?. Detition for relief from /udgment+. =otion for e"tension of time to

file pleadings, affidavits, or an#other paper

. =emoranda7. Detition for certiorari,

mandamus, or prohibitionagainst an# interlocutor# orderissued b# the court

8. =otion to declare defendant indefault9. :ilator# motions for

postponement1I. 6epl#11. hird part# complaints1%. *nterventions

he filing of a prohibited pleading willnot suspend the period to file an answeror to appeal.

(lthough a motion to dismiss is a

prohibited pleading, its filing after the



*f plaintiff fails toappear in prelimconference, complaintma# be dismissed.:efendant entitled todecision based on hiscounterclaim. (llcrossclaims dismissed.

*f :efendant fails toanswer in 1I da#s @

he court, motu propioor on plaintiffs

motion, ma# render/udgment based onfacts alleged in the

complaint wJopre/udice to

69, S& 'c

iling of verifiedcomplaint with the

=C

court ma#dismiss the case

outright


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answer had alread# been submitted doesnot constitute a pleading prohibited b#the summar# rules.


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prescriptive periods for offenses andcause of action under e"isting laws shallbe interrupted upon filing of thecomplaint with the punong baranga#.

T2E PARTIES A" GO DIRECTL" TOCOURT IN T2E !OLLO;ING INSTANCES*

1.


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/udgment after /udgment

Section 3. Co&/-aint.COPLAINT @ is a concise statement of

the ultimate facts constituting theplaintiffs cause or causes of action,with

a specification of the relief sought, butit ma# add a general pra#er for suchfurther relief as ma# be deemed /ust ore>uitable.

ULTIATE !ACTS - essential factsconstituting the plaintiffs cause ofaction.

;6at are NOT ,-ti&ate 'acts*1. 5videntiar# or immaterial facts.

%. ;egal conclusions, conclusions orinferences of facts from factsnot stated, or incorrectinferences or conclusions fromfacts stated.

&. he details of probative matteror particulars of evidence,statements of law, inferencesand arguments.

?. (n allegation that a contract isvalid or void is a mere conclusionof law.

TEST O! SU!!ICIENC"! if uponadmission or proof of the facts beingalleged, a /udgment ma# be properl#

given. ( fact is essential if it cannot bestricen out without leaving thestatement of the cause of actioninsufficient.

Section 5. Anser

ANS;ER @ the pleading where thedefendant sets forth his affirmative ornegative defenses.

0 @inds o' de'enses t6at &a) (e set'ort6 in t6e anser*a. A!!IRATIVE DE!ENSES @

allegation of a new matter which

while h#potheticall# admitting thematerial allegations in the pleading,would nevertheless prevent or barrecover# b# him. *t is in the natureof Confession and (voidance

(. NEGATIVE DE!ENSES@ specificdenial of the material facts or factsalleged in the pleading

Ins,''icient denia- or denia- a&o,ntingto ad&issions*

1. 2eneral denial%. :enial in the form of a

negative pregnant

Section +. Co,nterc-ai&

COUNTERCLAI @ an# claim which adefending part# ma# have against anopposing part#.

Nat,re o' co,nterc-ai&* ( counterclaimis in the nature of a cross-complaint.(lthough it ma# be alleged in theanswer, it is not part of the answer.

Upon its filing, the same proceedings arehad as in the original complaint. or thisreason, it must be answered within ten'1I da#s from service.

Section B. Co&/,-sor) Co,nterc-ai&

RULES ON COUNTERCLAI( counterclaim before the =C must bewithin the /urisdiction of said court,both as to the amount and naturethereof (e Chua vs. 4!C".





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iling of complaintwJ the Dunong3aranga# 'D3


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DOCTRINE O! ANCILLAR" 4URISDICTION*n an original action before the 6C, thecounterclaim ma# be consideredcompulsor# regardless of the amount

7Sec. B R,-e + 8.

*f a counterclaim is filed in the =C ine"cess of its /urisdictional amount, thee"cess is considered waived (!ustin vs.Ba#alan8. *n Ca#o $s% A&a' (nt)-, theremed# where a counterclaim is be#ondthe /urisdiction of the

=C is to set off the claims and file aseparate action to collect the balance.

COPULSOR"

COUNTERCLAI

PERISSIVE

COUNTERCLAI

0ne which arises outof or is necessaril#connected with the

transaction oroccurrence that is thesub/ect matter of the

opposing part#sclaim.

*t does not arise out ofnor is it necessaril#connected with the

sub/ect matter of theopposing part#s

claim.

*t does not re>uire forits ad/udication thepresence of third

parties of whom thecourt cannot ac>uire

/urisdiction.

*t ma# re>uire for itsad/udication thepresence of third

parties over whom thecourt cannot ac>uire

/urisdiction.

*t is barred if not setup in the action.

*t is A0 barred evenif not set up in the

action.

Aeed not beanswered$ no default.

=ust be answered,otherwise, the

defendant can bedeclared in default.

GENERAL RULE* ( compulsor#

counterclaim not set up in the answer isdeemed barred.

E$CEPTION* *f it is an after-ac>uiredcounterclaim, that is, such claimmatured after filing of the answer. *nthis case, it ma# be pleaded b# filing anamended answer or a supplementalanswer or pleading.

Section . Cross>c-ai&CROSS>CLAI an# claim b# one part#against a co-part# arising out of thetransaction or occurrence that is the

sub/ect matter either of the originalaction or counterclaim.

*f it is not set up in the action, it isbarred, ece/t*1. when it is outside the /urisdiction of

the court or$%. if the court cannot ac>uire

/urisdiction over third parties whosepresence is necessar# for thead/udication of said cross-claim.

*n which case, the cross-claim is

considered permissive.

he dismissal of the complaint carrieswith it the dismissal of a cross-claimwhich is purel# defensive, but not across-claim seeing affirmative relief.

Cross C-ai& Co,nterc-ai& 3rd>/art)Co&/-aint

(gainst a co-part#

(gainst anopposing part#

(gainst aperson not a

part# to theaction

=ust arise outof the

transactionthat is the

sub/ect matterof the orig.

action or of acounterclaim

therein.

=a# arise out ofor be necessaril#connected withthe transactionor that is the

sub/ect matterof the opposingpart#s claim, inwhich case, it is

called acompulsor#

counterclaim, orit ma# not, in

which case it iscalled a

permissivecounterclaim.

=ust be inrespect of

theopponents

claim'Dlaintiff

Section 1. Re/-).

REPL"- the response of the plaintiff tothe defendants answer.

E!!ECT O! !AILURE TO REPL"! new

facts that were alleged in the answer are2005 CENTRALIZEDBAROPERATIONSEXECUTIVECOMMITTEEANDSUBJECTCHAIRPERSONS




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deemed controverted. Eence, the filingof the repl# is optional e"cept for thedenial of the genuineness and duee"ecution of an actionable documentused as defense in the answer.

Section 11. T6ird 7'o,rt6 etc.8 /art)co&/-aint.

T2IRD 7!OURT2ETC.8 PART"COPLAINT a claim that a defendingpart# ma#, with leave of court, fileagainst a person not a part# to theaction for contribution, indemnit#,subrogation or an# other relief, inrespect of his opponents claim.

T2IRD>PART"COPLAINT

COPLAINT ININTERVENTION

3rings into the actiona third person whowas not originall# a

part#.

Same

*nitiative is with theperson alread# a part#

to the action.

*nitiative is with anon-part# who seesto /oin the action.

TESTS to deter&ine 6et6er t6e t6ird>

/art) co&/-aint is in res/ect o'/-ainti''s c-ai&*

1. /art) co&/-aint*( &rd-part# complaint is proper when notone of the third-part# defendantstherein is a part# to the main action. 3utif one or more of the defendants in acounterclaim or cross-claim is alread# apart# to the action, then the othernecessar# parties ma# be brought inunder this section.

RULE BPARTS O! A PLEADING

Section 3. Signat,re and address.he signature of the counsel is acertification that!

1. hat he has read the pleading$%. here is good ground to support

it$ and&. *t is not interposed for dela#

0nl# the original copies must be signed.UNSIGNED PLEADING ma# be stricenout as sham and false, and the actionma# proceed as though the pleading hasnot been served. (t *as no #e+a# eect%

Section 5. Veri'ication.

Dleadings need A0 be verified 5LC5Dwhen otherwise provided b# the law orrules.

( verification must now be based onpersonal nowledge or based onauthentic records.




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Section %. Certi'ication against 'or,&s6o//ing.

!ORU S2OPPING@ the filing of a two ormore cases based on the same cause ofaction in different courts for the purposeof obtaining a favorable decision ineither.

Test to deter&ine t6e /resence o''or,&>s6o//ing*whether in the two 'ormore cases pending, there is identit# of7a8parties, 7(8rights or causes of action,and 7c8reliefs sought.

he certificate is to be e"ecuted b#

petitioner, and not b# counsel.

6e>uired 0A;K for complaints orinitiator# pleadings.

Certificate of non-forum shopping is notre>uired in a compulsor# counterclaim(0S +osp. vs. Surla".

E!!ECT O! !AILURE TO COPL"!1. Aot curable b# amendment of

said pleading%. shall be cause for the dismissal

of the case, without pre/udice,unless otherwise provided, uponmotion and after hearing

E!!ECT O! SUISSION O! !ALSECERTI!ICATION OR NON>COPLIANCE;IT2 T2E UNDERTAFINGS T2EREIN*

1. indirect contempt%. administrative and criminal

actions

E!!ECT O! ;IL!ULL AND DELIERATE

!ORU S2OPPING*1. shall be ground for summar#dismissal of the case withpre/udice$

%. direct contempt.

RULE ANNER O! AFING ALLEGATIONS IN A

PLEADING

Dleadings should state ,-ti&ate 'actsessential to the right of action.

ULTIATE !ACTS* those which directl#form the bases of the right sought to beenforced or the defense relied upon.*f the ultimate facts are A0 alleged,

the cause of action would beinsufficient.

Section 5. Ca/acit).

Capacit# to sue and be suedeither personall# or in representativecapacit# must be specificall# averred b#the part# suing or being sued, andspecificall# denied b# the part#>uestioning such capacit#.

Capacit# is challenged b#

specific denial, motion to dismiss or billof particulars.

Section %. !ra,d &ista@e condition o't6e condition

!ACTS T2AT A" E AVERREDGENERALL"*

1. Conditions precedent '3U theremust still be an allegation thatthe specific condition precedenthas been complied with,otherwise, it will be dismissed

for failure to state a cause ofaction

%. =alice, intent, nowledge, orother condition of the mind

&. 4udgments of domestic orforeign courts, tribunals, boards,or officers 'no need to show/urisdiction

?. 0fficial document or act

!ACTS T2AT UST E AVERREDPARTICULARL"*

1. Circumstances showing fraud ormistae in all averments offraud or mistae

%. Capacit#

ACTIONALE DOCUENT @ writteninstrument upon which the action ordefense is based.





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To /er&issi(-e a)s o' /-eading anactiona(-e doc,&ent*

1. 3# setting forth the substance ofsuch document in the pleadingand attaching said documentthereto as an anne" 'contents ofthe document anne"ed arecontrolling, in case of variancein the substance of thedocument set forth in thepleading and in the documentattached$ or

%. 3# setting forth said documentverbatim in the pleading.

;6ere t6e actiona(-e doc,&ent is

/ro/er-) a--eged t6e 'ai-,re tos/eci'ica--) den) ,nder oat6 t6e sa&eres,-ts in*

1. he admission of thegenuineness and due e"ecutionof said document, 5LC5D thatan oath is not re>uired!a.


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complaint, and the authenticit# and duee"ecution of actionable documents.E$CEPTIONS*

1. (llegations as to the amount of

unli>uidated damages%. *mmaterial allegations$&. *ncorrect conclusions of fact.

RULE =E!!ECT O! !AILURE

TO PLEAD

Section 1. De'enses and o(:ections not/-eaded.GENERAL RULE! :efenses and ob/ectionsthat are not pleaded in a =0*0A 0:*S=*SS or in the answer are deemed

waived.E$CEPTIONS 'not waived even if notraised!

1. ;ac of /urisdiction over thesub/ect matter

%. ;itis pendentia&. 6es /udicata?. Drescription of the action

hese defenses ma# be raised at an#stage of the proceedings even for thefirst time on appeal 5LC5D that lac of/urisdiction over the sub/ect matter ma#

be barred b# laches. 'i:am vs.Sionhano.

he presence of these groundsauthoriFes the court to motu propriodismiss the claims. hese grounds must,however, appear from the pleadings orthe evidence on record.

Section 3.

DE!AULT@ the failure of the defendantto anser within the proper period. *t isnot his failure to appear nor failure topresent evidence.

ORDER O!DE!AULT

4UDGENT "DE!AULT

issued b# the court,on plaintiffs motion

for failure of thedefendant to file hisresponsive pleading

seasonabl#.

6endered b# the courtfollowing a default

order or after itreceived, e" parte,plaintiffs evidence.

*nterlocutor# - not inal @ appealable

appealable

A0 default ma# be declared in thefollowing actions!

1. (nnulment of marriage%. :eclaration of nullit# of

marriage&. ;egal Separation?. Special civil actions of certiorari,

prohibition and mandamus wherecomment instead of an answer isre>uired to be filed

he court cannot motu propriodeclare adefendant in default. or defendant tobe declared in default, the plaintiffmust!

1. ile a =0*0A to declaredefendant in default

%. Drove that summons have beenproperl# served on thedefendant

&. Drove that the defendant reall#failed to answer within theproper period.

CAUSES O! DE!AULT1. ailure to answer within the

proper period%. Aon-compliance with the order

of the court to file a bill ofparticulars or in case ofinsufficient compliancetherewith '6ule 1%, Section ?

&. 6efusal to compl# with themodes of discover# '6ule %9,Section &, par. c

?. ailure to furnish plaintiff with acop# of the answer

*f the defendant was declared in defaultupon an original complaint, the filing ofthe amended complaint resulted in the

withdrawal of the original complaint,hence, the defendant was entitled tofile answer to the amended complaint asto which he was not in default.

E!!ECT O! ORDER O! DE!AULT*1. uent proceedings.

%. Ee ma# still be called on as awitness, in behalf of the non-defaulting defendants.





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DE!AULT

PARTIAL

DE!AULT*1. he pleading asserting a claim

states a common cause of actionagainst several defending parties

%. some of the defending partiesanswer and the others fail to doso

&. the answer interposes a commondefense

E!!ECT O! PARTIAL DE!AULT* hecourt will tr# the case against (;;defendants upon the answer of some5LC5D where the defense is personal tothe one who answered, in which case, itwill not benefit those who did notanswer.

REED" !RO 4UDGENT " DE!AULT7!LO; C2ART8

E$TENT O! RELIE! TO E

A;ARDED IN A 4UDGENT "DE!AULT*Shall not e"ceed the amount 06 bedifferent in ind from that pra#ed forA06 award unli>uidated damages.

RULE 1



(fter thelapse of time

to file ananswer, theplaintiff ma#

move todeclare thedefendant in

default

=otion denied!:efendant

allowed to file ananswer

otion granted*Court issues order

of default andrenders /udgment,or re>uire plaintiffto submit evidence

e" parte.

:efendantanswers

3efore /udgmentb# default isrendered,

defendant ma#!move to set aside

order of defaultupon showing!(=5Ee has a

meritoriousdefense

(vail of 6ule + inproper cases

Court sets asideorder of default and

defendant is allowedto file an answer

Case set forpre-trial

Courtmaintains

order ofdefault

Dresentationof plaintiffsevidence e"-

parte

*f plaintiffproves hisallegations,/udgment b#default.

*f plaintifffails to prove

his allega-tions, case isdismissed.

4udgment b# default

=otion for new trial or reconsideration atan# time after service of /udgment b#

default and within 1+ '&I da#s therefrom

ailure to file motion for new trialJ:enial of said motion

Derfect appeal from said /udgment b#default within the balance of said

1+ '&I - da# period

ailure to appeal withoutdefendants faul

Detition for relief from /udgment withinI da#s from notice of the /udgment but

within months from entr# thereof

(nnulment of 4udgmentunder 6ule ?7


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AENDED AND SUPPLEENTALPLEADINGS

AENDENTS

Section 1. A&end&ents in genera-.


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%. Claims or defenses allegedtherein but not incorporated orreiterated in the amendedpleading are deemed waived.

he amended or superseded, originalpleading is not e"punged but remains onthe record although the admission of theamended pleading amounts towithdrawal of the original pleading.

RULE 11;2EN TO !ILE RESPONSIVE PLEADINGS

Anser to t6e co&/-aint1. c-ai&.he pleader ma# set up a counterclaimor cross-claim b# amendment before/udgment when he fails to set it up b#reason of oversight, inadvertence, ore"cusable neglect ort when /usticere>uires. ;eave of court is necessar#%

RULE 10ILL O! PARTICULARS




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ILL O! PARTICULARS- a more definitestatement of an# matter which appearsvague or obscure in a pleading.

PURPOSE*to aid in the preparation of aresponsive pleading.

=otion for bill of particulars must befiled within the reglementar# period forthe filing of a responsive pleading. hefiling of a motion if sufficient in formand substance, will interrupt the time toplead.

he motion for bill of particulars ma# begranted in whole or in part as not all theallegations >uestioned b# the movant

are necessaril# ambiguous as to re>uireclarification.

( bill of particulars ma# be filed eitherin a separate or an amended pleading.( bill of particulars becomes part of thepleading which it supplements.

E!!ECTS O! OTION1. *f the motion is granted, the

movant can wait until the bill ofparticulars is served on him b#the opposing part# and then he

will have the balance of thereglementar# period withinwhich to file his responsivepleading.

%. *f his motion is denied, he willstill have such balance of thereglementar# period to do so,counted from service of theorder den#ing his motion. *neither case, he will have at least+ da#s to file his responsivepleading.

E''ect o' non>co&/-iance*1. *f the 0rder is not obe#ed or in

case of insufficient compliancetherewith, the court!

a. ma# order the striingout of the pleading orthe portion thereof towhich the order isdirected$ or

b. mae such order as itma# deem /ust.

%. *f plaintiff, his compliant will bestricen off and dismissed '6ule1%, sec. ?$ 6ule 17, sec. &

&. *f defendant, his answer will bestricen off and his counterclaimdismissed, and he will bedeclared in default upon motionof the plaintiff '6ule 1%, sec. ?$6ule 17, sec. ?$ 6ule 9, sec. &.

RULE 13!ILING AND SERVICE O! PLEADINGS

4UDGENTS AND OT2ER PAPERS

Aotice given to a part# who is dul#

represented b# counsel is a nullit#,unless service thereof on the part#himself was ordered b# the court or thetechnical defect was waived.

Section 3. anner o' 'i-ing.1. Dersonall#%. b# registered mail

iling b# mail should be through theregistr# service which is made b# depositof the pleading in the post office, and

not through other means oftransmission.

*f registr# service is not available in thelocalit# of either sender or addressee,service ma# be done b# ordinar# mail.

*f a private carrier is availed of b# thepart#, the date of actual receipt b# thecourt of such pleading and not the dateof deliver# to the carrier, is deemed tobe the date of the filing of thatpleading.

NOTE* D56S0A(; and SU3S*U5:service as applied to pleadings have adifferent meaning compared to summonsunder 6ule 1?.

ODES O! SERVICEPLEADINGS

1. D56S0A(; S56)*C5 2005 CENTRALIZEDBAROPERATIONSEXECUTIVECOMMITTEEANDSUBJECTCHAIRPERSONS




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a. :elivering personall# a cop# tothe part# or his counsel or$

b. ;eaving a cop# in counselsoffice with his cler or with aperson having charge thereof or$

c. ;eaving the cop# between 8 a.m.and p.m. at the part#s orcounsels residence, if nown,with a person of sufficient ageand discretion residing therein---if no person found in his office,or if his office is unnown, or ifhe has no office.

%. S56)*C5 3K =(*;*f no registr# service is available in the

localit#, of either sender or addressee,service ma# be done b# ordinar# mail.

&. SU3S*U5: S56)*C5:elivering the cop# to the cler of courtwith proof of failure of both personaland service b# mail.

4UDGENTS !INAL ORDERSRESOLUTIONS 7Sec.=8

1. 3# personal service$ or%. 3# registered mail$&. 3# publication, if part# is

summoned b# publication andhas failed to appear in theaction.

he# can be served onl# under the threemodes.

he# C(AA0 be served b# substitutedservice.

NOTE*( resort to modes other than b#personal service must be accompaniedb# a ;ritten e


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prepared to gamble on the result of theproceedings.

he defendant ma# also record a notice

of lis pendens when he claims anaffirmative relief in his answer.

Aotice of lis pendens C(AA0 becancelled on an e" parte motion or uponthe mere filing of a bond b# the part# onwhose title the notice is annotated, assection 1? provides that suchcancellation ma# be authoriFed -7upon order of court, after propershowing that!

1. he notice is for the purpose ofmolesting the adverse part#$ or

%. *t is not necessar# to protect therights of the part# who caused itto be recorded.

RULE 15SUONS

PURPOSE O! SUONS*1. to ac>uire /urisdiction over the

person of the defendant, and$%. to give notice to the defendant

that an action has beencommenced against him.

E!!ECT O! NON>SERVICE*Unless thereis waiver, non-service or irregularservice renders null and void allsubse>uent proceedings and issuances inthe action from the order of default upto and including the /udgment b# defaultand the order of e"ecution.

uired on the amended complaint if itdoes not introduce new causes of action.

3ut where the defendant was declared indefault on the original complaint and theplaintiff subse>uentl# filed an amendedcomplaint, new summons must be servedon the defendant on the amendedcomplaint, as the original complaint wasdeemed withdrawn upon suchamendment.

Section 3. ) 6o& served.Summons ma# be served b#!

1. Sheriff %. Sheriffs deput#, or

&. 0ther proper court officers, or?. or /ustifiable reasons, b# an#

suitable person authoriFed b#the court issuing the summons.

En,&eration is E$CLUSIVE.

ALIAS SUONS issued when originalhas not produced its effect because it isdefective in form or manner of service,and when issued, supersedes the first'Section +.

FINDS O! SERVICE O! SUONS*1. personal service%. substituted service&. b# publication

*n actions in personam where thedefendant cannot be served withsummons personall# or b# substitutedservice, the case must first be convertedinto an in rem or >uasi in rem action b#attaching the propert# of the defendantfound in the Dhilippines before summonscan be served b# publication. *f no

propert# can be found, the action shallbe archived but shall not be dismissed.(Citi=ens Suret vs. Court !ppeals"

SERVICE O! SUONS ON DI!!ERENTENTITIES

Servi#e on entit;>o :urii#alpersonalit

Upon an# or alldefendants being suedunder common name$ orperson in charge of office

Service upon

minors andincompetents

*n case of minors! b#

serving upon the minor,regardless of age, (A:upon his legal guardian, oralso upon either of hisparents.*n case of incompetents!b# serving on himpersonall# (A: upon hislegal guardian, but notupon his parents, unlesswhen the# are his legalguardians*A (AK 5)5A, if theminor or incompetent hasno legal guardian, the





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plaintiff must obtain theappointment of a guardianad litem for him.

Service uponprisoner

Serve on officer havingmanagement of the /ail orprison

Service upondomestic private/uridical entit#

5A*K

o the president,managing partner, generalmanager, corporatesecretar#, treasurer, orin-house counsel.A05! Service upon aperson other than thosementioned is invalid anddoes not bind thecorporation. heenumeration is5LC;US*)5.

Service uponforeign private/uridical entit#

Serve on resident agent $or if none$ on govtofficial designated b# law$oron an# officer or agent ofthe corporation within theDhilippines.

Service uponpublic

corporations

in case defendant is the6epublic of theDhilippines - b# servingupon the Solicitor 2eneralin case of a province, cit#or municipalit#, or liepublic corporations @ b#serving on its e"ecutivehead, or on such otherofficer or officers as thelaw or the court ma#direct.

5"traterritorialservice

6e>uisitesa. defendant does

not reside or is

not found withinthe Dhil.

b. he action either! affects the personal

status of plaintiff$ relates to or the

sub/ect of which ispropert# within theDhilippines inwhich defendanthas a lien orinterest$

demands a reliefwhich consistswholl# or in part ine"cluding the

defendant froman# interest in an#propert# within theDhil$ or

propert# ofdefendant hasbeen attached inthe Dhil.

ode o' servicea.with leave of court

served outside theDhil. 3# personalservice$ or

b.with leave of courtserve b# publicationin a newspaper ofgeneral circulation,in which case cop# ofthe summons andorder of court mustalso be sent b#registered mail tothe last nownaddress ofdefendant$ or

c.an# other manner thecourt deem

sufficient.

Service upon aresident

temporaril# out ofthe Dhil.

Substituted service orwith leave of court,personal service out ofthe Dhil. as undere"traterritorial service

Service upon anunnown

defendant orwhose

whereabouts areunnown

uivalent toservice of summons 5LC5D where suchappearance is precisel# to ob/ect to the/urisdiction of the court over the personof the defendant.

*nclusion in a motion to dismiss of other

grounds aside from lac of /urisdiction




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over the person of the defendant shallA0 be deemed a voluntar#appearance.

RULE 1%OTIONS

OTION @ is an application for reliefother than b# a pleading.

GENERAL RULE* =otions must be inwriting.E$CEPTION* hose made in open courtor in the course of hearing or trial.

FINDS O! OTIONS

a. motion ! PART! - made withoutthe presence or a notification to theother part# because the >uestiongenerall# presented is notdebatable.

b. motion O. CO/RS! @ where themovant is entitled to the relief orremed# sought as a matter ofdiscretion on the part of the court.

c. 0(T(AT!" motion @ one made with

notice to the adverse part# to givean opportunit# to oppose.

d. SP!C(A 0 motion- motion addressedto the discretion of the court.

GENERAL RULE! ( motion cannot pra#for /udgment.E$CEPTIONS*

1. =otion for /udgment on thepleadings

%. =otion for summar# /udgment&. =otion for /udgment on

demurrer to evidence.

Section 5. 2earing on &otion.3>DA" NOTICE RULEGENERAL RULE*Service of the cop# ofmotions should be made in such amanner as shall ensure its re#eipt atleast & da#s before the hearing.E$CEPTIONS*

1. 5" parte motions%. Urgent motions&. =otions agreed upon b# the

parties to be heard on shorter

notice or /ointl# submitted b#the parties, and

?. =otions for summar# /udgmentwhich must be served at least 1I

da#s before its hearing+. Aon-litigated motions.

Section %. Notice o' 6earing.A0*C5 0 E5(6*A2 shall!

1. 3e addressed to all partiesconcerned

%. Specif# the time and date of thehearing which must not be laterthan 1I da#s after the filing ofthe motion

NOTE* (n# motion that does not compl#

with Sections ?, + and of this 6ule is amere scrap of paper, should not beaccepted for filing and, if filed, is notentitled to /udicial cogniFance and doesnot affect an# reglementar# periodinvolved for the filing of the re>uisitepleading.

O&ni(,s otion R,-e - (ll availablegrounds for ob/ection in attacing apleading, order, /udgment, orproceeding should be invoed at onetime, otherwise, the# shall be deemed

waived.

otion 'or -eave to file a pleading ormotion shall be accompanied b# thepleading or motion sought to beadmitted, otherwise, the latter will bedenied.

RULE 1+OTION TO DISISS

A otion to Dis&iss is NOTa responsivepleading.

Section 1. Gro,nds.1. Ao /urisdiction over the person

of the defending part#%. Ao /urisdiction over the sub/ect

matter of the claim&. *mproper venue?. Ao legal capacit# to sue+. ;itis pendentia. 6es /udicata7. Drescription8. States no cause of action





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9. Claim or demand has been paid,waived, abandoned, or otherwisee"tinguished

1I. Claim is unenforceable under theStatute of rauds

11. Aon-compliance with a conditionprecedent for filing claim

OTION TO DISISS

UNDER RULE 1+

OTION TO DISISS

UNDER RULE 33

7de&,rrer to

evidence8

2rounded on

preliminar#ob/ections.

based on insufficienc#

of evidence.

ma# be filed b# an#defending part#

against whom a claimis asserted in the

action.

=a# be filed onl# b#the defendant againstthe complaint of the

plaintiff.

should be filed withinthe time for but prior

to the filing of theanswer of the

defending part# to the

pleading asserting theclaim against him.

=a# be filed onl# afterthe plaintiff hascompleted the

presentation of hisevidence.

*f denied, defendantanswers, or else hema# be declared in

default*f granted, plaintiff

ma# appeal or ifsubse>uent case is notbarred, he ma# re-file

the case

*f denied, defendantma# present evidence

if granted, plaintiffappeals and the 0rder

of the dismissal isreversed, the

defendant loses hisright to present

evidence.

E''ect o' &otion to dis&iss* ( motion to

dismiss h#potheticall# admits the truthof the facts alleged in the complaint.

Eowever, such admission is limited onl#to all material and relevant facts whichare well pleaded in the complaint.

(n action cannot be dismissed on aground not alleged in the motion even ifsaid ground is provided for in 6ule 1.

E$CEPT*

1. hose cases where the court ma#dismiss a case motu proprio'Sec. 1, 6ule 9

%. Such ground appears in theallegations of the complaint or inplaintiffs evidence

RE#UISITES O! LITIS PENDENTIA1. Darties to the action are the

same%. here is substantial identit# in

the cause of action and reliefsought

&. he result of the first action isdeterminative of the second inan# event and regardless of

which part# is successful

=otion to dismiss ma# be filed in eithersuit, not necessaril# in the one institutedfirst.

RE#UISITES O! RES 4UDICATA1. Drevious final /udgment%. 4urisdiction over the sub/ect

matter and the parties b# thecourt rendering it

&. 4udgment upon the merits?. *n a case prosecuted between

same parties+. *nvolving the same sub/ect

matter. Same cause of action

here could be res /udicata without atrial, such as in a /udgment on thepleadings '6ule &?$ a summar#/udgment '6ule &+$ or an order ofdismissal under Section & of 6ule 17.


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ground of non-compliance with acondition precedent.

(n action cannot be dismissed on the

ground that the complaint is vague orindefinite. he remed# of the defendantis to move for a bill of particulars oravail of the proper mode of discover#.

GENERAL T"PES O! A OTION TODISISS

1. motion to dismiss before answerunder 6ule 1

%. motion to dismiss under 6ule 17a. upon notice b# plaintiffb. upon motion of plaintiffc. due to fault of plaintiff

&. motion to dismiss on demurrer toevidence after plaintiff has restedhis case under 6ule &&

?. motion to dismiss the appeal filedeither in the lower court '6ule?1,Sec. 1& or in the appellatecourt '6ule +I, Sec.1 .

E!!ECTS O!

ACTION ON TD

REED"

0rder granting motion

to dismiss is finalorder

(ppeal from the order

of dismissal

0rder den#ing themotion to dismiss isinterlocutor#

Certiorari andprohibition if there isgrave abuse ofdiscretion amountingto lac or e"cess of/urisdiction under 6ule+

Section 5. Ti&e to /-ead.

:efendant is granted onl# the balance of

the reglementar# period to which he wasentitled at the time he filed his motionto dismiss, counted from his receipt ofthe denial order, but not less than + da#sin an# event.

he same rule of granting onl# thebalance of the period is followed wherethe court, instead of den#ing the motionto dismiss, orders the amendment of thepleading challenged b# the motion, inwhich case, the balance of the period to

answer runs from his receipt of theamended pleading.

Section %. E''ect o' dis&issa-GENERAL RULE! he action or claim ma#be refiled.E$CEPTION* he action cannot berefiled if it was dismissed on an# ofthese grounds!

1. 6es /udicata$%. Drescription$&. 5"tinguishment of the claim

or demand$?. Unenforceabilit# under the

Statute of rauds.

Section +. P-eading gro,nds asa''ir&ative de'enses.*f no motion to dismiss had been filed,an# of the grounds for dismissal providedfor in 6ule 1, *AC;U:*A2 *=D60D56)5AU5, ma# be pleaded as affirmativedefenses and preliminaril# heard in thediscretion of the court.

:ismissal under this section @ uires an orderof the court confirming the dismissal.Such dismissal is ;IT2OUT PRE4UDICEE$CEPT!

1.


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pre/udice but it is premised onthe fact of pa#ment b# thedefendant of the claiminvolved.

Section 0. Dis&issa- ,/on &otion o'/-ainti''.

OR>

%. o have the same resolved in thesame action.

*n such case, defendant mustmanifest such preference to thetrial court within 1+ da#s fromnotice to him of plaintiffsmotion to dismiss.

hese alternative remedies of thedefendant are available to him652(6:;5SS 0


30/63


he manifests hisintention to have his

counterclaim resolvedin the same action

RULE 1PRE>TRIAL

PRE>TRIAL- a mandator# conference andpersonal confrontation before the /udgebetween the parties and their respectivecounsel.

he plaintiff must promptl# move e"

parte that the case be set for pre-trial ,and this he must do upon the service andfiling of the last pleading.

he pre-trial and trial on the merits ofthe case must be held on separatedates.

;6en non>a//earance o' a /art) &a)(e ec,sed 7Sec.58*

1. *f a valid cause is showntherefore

%. *f a representative shall appear

in his behalf full# authoriFed inwriting to!a. 5nter into an amicable

settlementb. Submit to alternative modes

of dispute resolutionc. 5nter into stipulations or

admissions of facts and ofdocuments

( special authorit# for an attorne# tocompromise is re>uired under Sec. 03R,-e 13. Under Art. 1B 7c8 o' t6e

Civi- Code, a special power of attorne#is re>uired.

E!!ECT O! NON>APPEARANCE O!PLAINTI!!!Cause for dismissal of the action, withpre/udice, unless otherwise ordered b#the court.

E!!ECT O! NON>APPEARANCE O!DE!ENDANT*Cause to allow the plaintiff to present

evidence e" parte and the court torender /udgment on the basis thereof.

Pre>tria- (rie'. *t is the mandator# dut#of the parties to seasonabl# file theirpre-trial briefs under the conditions andwith the sanctions provided therein.

ailure to file pre-trial brief has thesame effect as failure to appear at thepre-trial.

Record o' /re>tria-. he contents of the

D65-6*(; order shall control thesubse>uent course of the action, UA;5SSmodified before trial to preventmanifest in/ustice.

( part# is deemed to have waived thedelimitations in a pre-trial order if hefailed to ob/ect to the introduction ofevidence on an issue outside of the pre-trial order, as well as in cross-e"aminingthe witness in regard to said evidence.

@- C+! - P84!7 P7S. S + A

P!G.





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RULE 1=INTERVENTION

;2O &a) intervene

1. 0ne who has legal interest in thematter in litigation

%. 0ne who has legal interest in thesuccess of either of the parties,

&. 0ne who has an interest againstboth parties

?. 0ne who is so situated as to beadversel# affected b# adistribution or other dispositionof propert# in the custod# of thecourt or of an officer thereof.

!ACTORS TO E CONSIDERED " T2ECOURT

1.


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mentioned in this6ule.

interest in the sub/ectmatter of the action

or has an interesttherein, which in

whole or in part, is notdisputed b# the otherparties to the action.

:efendants arealread# original

parties to the pendingsuit

:efendants are beingsued precisel# to

implead them

Section 0. Ti&e to intervene.(t an# time before rendition of/udgment b# the trial court.

4USTI!ICATION* 3efore /udgment isrendered, the court, for good causeshown, ma# still allow the introductionof additional evidence and that is stillwithin the liberal interpretation of theperiod for trial.

Since no /udgment has #et beenrendered, the matter sub/ect of theintervention ma# still be readil# resolvedand integrated in the /udgment disposingof all claims in the case.

REEDIES !OR T2E DENIAL O!INTERVENTION*

1. !PP!7%. M!!M0S if there is grave

abuse of discretion*f there is improper granting ofintervention, the remed# of the part# is

certiorari.

RULE 01SUPOENA

SUPOENA SUONSan order to appear andtestif# or to produceboos and documents

0rder to answercomplaint

ma# be served to anon-part#

Served on thedefendant

needs tender ofilometrage,

attendance fee andreasonable cost of

production fee

does not need tenderof ilometrage and

other fees

SUPOENA AD TESTI!ICANDU @ aprocess directed to a person re>uiringhim to attend and to testif# at thehearing or the trial of an action, or at

an# investigation conducted b#competent authorit#, or for the taing ofhis deposition.

SUPOENA DUCES TECU @ a processdirected to a person re>uiring him tobring with him boos, documents, orother things under his control.

Section 0. ) 6o& iss,ed;2O &a) iss,e

1. Court before whom the witnessis re>uired to attend

%. Court of the place where thedeposition is to be taen

&. 0fficer or bod# authoriFed b#law to do so in connection withinvestigations conducted b# saidofficer or bod#

?. (n# 4ustice of the SC or of theC( in an# case or investigationpending within the Dhilippines.

SU3D05A( 0 ( D6*S0A56 @ must be fora valid purpose$ if prisoner re>uired toappear in court is sentenced to death,

reclusion perpetua or life imprisonmentand is confined in prison @ must beauthoriFed b# the SC.

Section 5. #UAS2ING A SUPOENA.(. S,(/oena DUCES TECU ma# be>uashed upon proof that!

1. *t is unreasonable andoppressive$

%. he articles sought to beproduced do not appear primafacie to be relevant to theissues$

&. he person asing for thesubpoena does not advance thecost for the production of thearticles desired.

3. S,(/oena AD TESTI!ICANDU ma#be >uashed if the witness is not boundthereb#.

*n 5*E56 case, the subpoena ma# be>uashed for failure to tender the witnessfees and ilometrage allowed () t6e

R,-es. 2005 CENTRALIZEDBAROPERATIONSEXECUTIVECOMMITTEEANDSUBJECTCHAIRPERSONS




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GENERAL RULEa. he court which issued the

subpoena ma# issue a warrantfor the arrest of the witness andmae him pa# the cost of suchwarrant and seiFure, if the courtshould determine that hisdisobedience was willful andwithout /ust cause 'Sec. 8$

b. he refusal to obe# a subpoenawithout ade>uate cause shall bedeemed a contempt of the courtissuing it 'Sec.9.

Ece/tions*

Drovisions regarding the compelling ofattendance 'Sec. 8 and contempt 'Sec.9 does not appl# where!

a.


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;2EN TAFEN


35/63

Sa! Be%a C#lle*e #) La


/udicial foreign officerwho will directl# tae

the testimon#

appropriate /udicialofficer of the foreign

countr# who will directsomebod# in said

foreign countr# to taedown testimon#

(pplicable rules ofprocedure are those ofthe re>uesting court

(pplicable rules ofprocedure are those of

the foreign courtre>uested to act

6esorted to ifpermission of theforeign countr# is

given

6esorted to if thee"ecution of the

commission is refused inthe foreign countr#

;eave of court is notnecessar#

;eave of court isnecessar#

Section 1. otion to ter&inate or-i&it ea&ination.

A" E !ILED*1. an# time during the taing of the

deposition%. on motion or petition of an#

part# or of the deponent$ or&. upon showing that the

e"amination is conducted in !a. bad faithb. in such manner as

unreasonabl# to anno#,embarrass, or oppressthe deponent or part#

RULE 05DEPOSITIONS E!ORE ACTION OR

PENDING APPEAL

:epositions under this 6ule are alsotaen conditionall#, to be used at thetrial onl# in case the deponent is notavailable.

:epositions under this 6ule do not prove

the e"istence of an# right and thetestimon# perpetuated is not in itselfconclusive proof, either of the e"istenceof an# right nor even of the facts towhich the# relate, as it can becontroverted at the trial in the samemanner as though no perpetuation oftestimon# was ever had. Eowever, in theabsence of an# ob/ection to its taing,and even if the deponent did not testif#at the hearing, the perpetuatedtestimon# constitutes prima 'a#ie proofof facts referred to in the deposition.

Section +. Use o' de/osition.

*f deposition is taen under this 6ule, itma# be used in an# action involving theS(=5 SU345C =(56 subse>uentl#brought.

Section B. De/ositions /ending a//ea-.Sec. 7 is the procedure in perpetuatingtestimon# (56 4U:2=5A *A E5 6Cand :U6*A2 E5 D5A:5ACK 0 (A(DD5(;.

RULE 0%INTERROGATORIES TO PARTIES

DU6D0S5 of


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0nl# one set of interrogatories b# thesame part# is allowed. ;eave of court isnecessar# for succeeding sets ofinterrogatories.

Section +. E''ect o' 'ai-,re to serveritten interrogatories.

6ule %+ and 6ule % are directed to thepart# who fails and refuses to 65S06 tothe discover# procedures, and should notbe confused with the provisions of 6ule%9 which provides for sanctions or otherconse>uences upon a part# who refusesor fails to C0=D;K with discover#procedures dul# availed of b# opponent.

he /ustification for this provision is thatthe part# in need of relevant factshaving foregone the opportunit# toin>uire into the same from the otherpart# through means available to him, heshould not thereafter be permitted toundul# burden the latter with courtroomappearances or other cumbersomeprocesses.

Unless a part# had been served written

interrogatories, he ma# not becompelled b# the adverse part#!

1. to give testimon# in open court,or

%. give a deposition pendingappeal.

he onl# ece/tion is when the courtallows it for 200: C(US5 shown and toprevent a failure of /ustice.

De/ositions U/on;ritten

Interrogatories toParties ,nder R,-e

03 Sec. 0%

Interrogatories toParties ,nder R,-e

0%

(s to :eponentDart# or ordinar#

witness

(s to :eponentpart# onl#

(s to Drocedure


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he part# who fails or refuses to re>uestthe admission of facts in >uestion isprevented from thereafter presentingevidence thereon UA;5SS otherwiseallowed b# the court 7Sec.%8.

RULE 0BPRODUCTION OR INSPECTION O!

DOCUENTS OR T2INGS

Droduction of documents affords moreopportunit# for discover# than asubpoena duces tecum because in thelatter, the documents are brought to the

court for the first time on the date ofthe scheduled trial wherein suchdocuments are re>uired to be produced.he TEST to be applied in determiningthe relevanc# of the document and thesufficienc# of their description is one ofreasonableness and practicalit#.

PRODUCTION ORINSPECTION O!DOCUENTS OR

T2INGS

SUPOENA DUCESTECU

5ssentiall# a mode of

discover#

means of compelling

production of evidencehe 6ules is limited to

the parties to theaction

ma# be directed to aperson whether a

part# or not

he order under this6ule is issued onl#upon motion with

notice to the adversepart#

ma# be issued upon ane" parte application.

RULE 0P2"SICAL AND ENTAL E$AINATION

O! PERSONS

he &enta- condition of a part# is incontrovers# in proceedings for2U(6:*(ASE*D over an imbecile orinsane person, while the /6)sica-condition of the part# is generall#involved in DEKS*C(; *A4U6*5S cases.

Since the results of the e"amination areintended to be made public, the same

are not covered b# the ph#sician-patientprivilege.

Section 5. ;aiver o' /rivi-ege.

uences are!

1. he has to furnish the other part#a cop# of the report of an#previous or subse>uente"amination of the sameph#sical and mental condition,(A:

%. he waives an# privilege he ma#have in that action or an# other

involving the same controvers#regarding the testimon# of an#other person who has soe"amined him or ma# thereaftere"amine him.

RULE 0=RE!USAL TO COPL" ;IT2 ODES O!

DISCOVER"

SANCTIONS1. Contempt$%. Da#ment of reasonable fees$

&. he matters regarding which the>uestions were ased, characteror description of land et al., betaen to be in accordance withthe claim of part# obtaining theorder$

?. Drohibition on the refusing part#to produce evidence or supportor oppose designated claims ordefenses$

+. Striing out pleadings, order thedismissal of the action or sta#the action until compliance or to

render /udgment b# default.. 0rder the arrest of the refusing

part# e"cept in cases of ph#sicalor mental e"amination.

RULE 3TRIAL

TRIAL@ /udicial process of investigatingand determining the legal controversiesstarting with the production of evidenceb# the plaintiff and ending with hisclosing arguments.




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GENERAL RULE* when an issue e"ists,trial is necessar#. :ecision should not bemade without trial.

E$CEPTIONS* when there ma# be/udgment without trial!

1. 4udgment on the Dleading'6ule &?

%. Summar# 4udgment '6ule &+&. 4udgment on Compromise?. 4udgment b# Confession+. :ismissal with Dre/udice

'6ule 17

Section 3. Re9,isites o' &otion to/ost/one tria- 'or a(sence o' evidence.

here must be an affidavit showing!1. materialit# or relevance of such

evidence$ and%. due diligence in procuring it.

*f the adverse part# admits the facts forwhich evidence is to be presented, thetrial will not be postponed.

Section 5. Re9,isites o' &otion to/ost/one tria- 'or i--ness o' /art) orco,nse-.here must be an affidavit or sworn

certification showing!1. presence of part# or counsel at

the trial is indispensable$ and%. character of his illness is such as

to

render his non-attendancee"cusable.

Section %. Order o' tria- ,n-ess

directed () t6e co,rt.

Unless the court for special reasonsotherwise directs, the trial shall belimited to the issues stated in the pre-trial order.

Section +. Agreed state&ents o' 'acts.his is nown as S*DU;(*0A 0 (CSand is among the purposes of a pre-trial.

he parties ma# also stipulate verball# inopen court. Such stipulations are bindingunless relief therefrom is permitted b#the court on good cause shown, such aserror or fraud.

3ut counsel cannot stipulate on whattheir respective 5)*:5AC5 consists ofand as that /udgment be rendered onthe basis of such stipulation.

Stipulations of facts are not permitted inactions for (AAU;=5A 0 =(66*(25and for ;52(; S5D(6(*0A.

Section . S,s/ension o' actions.Art. 03 o' t6e Civi- Code. 5ver# civilaction or proceeding shall be suspended

1. *f willingness to discuss apossible compromise ise"pressed b# one or bothparties$ or

%. *f it appears that one of theparties, before thecommencement of the action orproceeding, offered to discuss a




Dlaintiff presentsevidence

:efendant presentsevidence tosupport his

defenseJcounterclaimJcrossclaimJ

third part#complaint

:efendant filesdemurrer to

evidence

hirdpart#

defendantpresents

eidence, ifan#

*f courtgrants

motion!6endersdismisal

*f courtdeniesmotion!

Continueswith

hearing

6ebuttal5vidence b#

Darties(fter

Dresentation ofevidence!

oral argumentssubmission of

memorandaDECISION


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possible compromise but theother part# refused the offer.

Section =. 4,dge to receive evidenceuidated damages. Claim forsuch damages must be alleged andproved.

NO 4UDGENT ON T2E PLEADINGS INACTIONS !OR

1. :eclaration of nullit# of

marriage%. (nnulment of marriage&. ;egal Separation

otion to Dis&iss otion 'or

:,dg&ent on t6e

/-eadings

iled b# a defendantto a complaint,

counterclaim, cross-claim or &rd-part#complaint

iled b# the plaintiffif the answer raises

no issue.

*f the complaint states no cause ofaction, a motion to dismiss should befiled and not a motion for /udgment onthe pleading.

RULE 3%SUAR" 4UDGENTS

SUAR" 4UDGENT0ne granted b# the court for the promptdisposition of civil actions wherein itclearl# appears that there e"ists A0genuine issue or controvers# as to an#material fact.

;6o can !i-e1. Dlaintiff! he must wait for the

answer to be filed and served, andthus for the issue to be /oined,before he can move for summar#

/udgment.

%. :efendant! he can move forsummar# /udgment at an#time, thatis, an#time after filing and service ofthe complaint even before heanswers

he motion for summar# /udgment mustbe supported b# 718 affidavit, 708depositions of the adverse part# or athird part#, or 738 admissions of theadverse part#, all intended to show that!

a. there is no genuine issue as toan# material fact, e"ceptdamages which must alwa#s beproved, and

b. the movant is entitled to a

/udgment as a matter of law.

he summar# /udgment ma# be a/udgment on the merits, in which case,an appeal ma# be taen therefrom.

SUAR"

4UDGENT

4UDGENT

ON T2E

PLEADINGS

4UDGENT

" DE!AULT

7R,-e =83ased on thepleadings,

depositions,admissionsand affidavits

based solel# onthe pleadings.

based on thecomplaint and

evidence, ifpresentation isre>uired.

(vailable toboth plaintiffand defendant

generall#available onl#

to the plaintiff,unless thedefendantpresents a

counterclaim.

(vailable toplaintiff.

here isno genuine

issue betweenthe parties,

i.e. there ma#be issues but

these areirrelevant

he answerfails to tender

an issue orthere is an

admission ofmaterial

allegations.

no issues as noanswer is filed

b# thedefending

part#.

1I-da# noticere>uired

&-da# noticere>uired

&-da# noticerule applies.

=a# beinterlocutor#or on themerits

0n the merits 0n the merits

RULE 3+4UDGENTS !INAL ORDERS AND ENTR"

T2EREO!




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4UDGENT> final consideration anddetermination b# a court of the rights of

the parties, upon matters submitted to itin an action or proceeding.

he date of finalit# of the /udgment orfinal order shall be deemed to be thedate of its entr#.

RE#UISITES O! A 4UDGENT*1. *t should be in writing, personall#

and directl# prepared b# the /udge%. =ust state clearl# and distinctl# the

facts and the law on which it isbased

&. *t should contain a dispositive partand should be signed b# the /udgeand filed with the cler of court.

PROULGATION- the process b# which adecision is published, officiall#announced, made nown to the public ordelivered to the cler of court for filing,coupled with notice to the parties ortheir counsel.

EORANDU DECISION- a decision ofthe appellate court which adopts the

findings and the conclusion of the trialcourt.4UDICIAL COPROISE

( /udgment based on a

compromise which has the forceof law and is conclusive betweenparties.

Aot appealable.

A 4UDGENT is considered RENDEREDUpon filing of the signed decision. hisincludes an amended decision because

an amended decision is a distinct andseparate /udgment and must follow theestablished procedural rule.

he power to amend a /udgment isinherent to the court before /udgmentbecomes final and e"ecutor#.

(fter /udgment has become e"ecutor#,the court cannot amend the same

E$CEPT*

1. o mae corrections ofclerical errors, notsubstantial amendments, asb# an amendment nnc 45o

tnc.%. o clarif# an ambiguit#

which is borne out b# and/ustifiable in the conte"t ofthe decision.

&. *n /udgments for support,which can alwa#s beamended from time to time.

ANNER O! ATTACFING 4UDGENTS*

1. Direct attac@

a. before finalit#1. motion for new trial or

reconsideration$%. appeal

b. after finalit#1. relief from /udgment, rule

&8%. annulment of /udgment,

6ule 5B.

0.Co--atera- attac@

PROULGATION O! 4UDGENT




Court 6enders :ecision

iling appeal within

1+J&I da#s fromnotice of /udgment

*f no appeal istaen or did

not avail ofremedies,/udgment

becomes finaland e"ecutor#

Courtmaintainsdecision

Court grants motion!1.modifies decision$ or%.grants new trial

;osing part# ma#appeal within theremaining period

;osing Dart#


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Section 5. Severa- :,dg&ents.Several /udgment is proper where theliabilit# of each part# is clearl#separable and distinct from his co-parties such that the claims against eachof them could have been the sub/ect ofseparate suits, and the /udgment for oragainst one of them will not necessaril#affect the other.

( several /udgment is A0 proper inactions against solidar# debtors.

Section +. Se/arate 4,dg&entsDroper when more than one claim forrelief is presented in an action and a

determination as to the issues materialto the claim has been made. he actionshall proceed as to the remainingclaims.

4,dg&ent N/NC PRO T/NC 'literall#means Bnow for then

rendered to enter or record such

/udgment as has been formerl#rendered but has not been

entered as thus rendered its onl# function is to record

some act of the court which wasdone at a former time, butwhich was not then recorded, inorder to mae the record speathe truth, without an# changesin substance or an# materialrespect.

4,dg&ent ,/on Agree&ent orCo&/ro&ise( compromise agreement between the

parties to a case on which the decisionof the court was based has upon theparties the effect and authorit# of res/udicata. *t is immediatel# e"ecutor#.

4,dg&ent () Con'ession4udgment upon confession is one whichis rendered against a part# upon hispetition or consent. *t usuall# happenswhen the defendant appears in court andconfesses the right of the plaintiff to/udgment or files a pleading e"pressl#agreeing to the plaintiffs demand.

To @inds o' :,dg&ent () con'ession1. ( /udgment b# COGNOVIT

ACTIONE@ here, the defendantafter service instead of enteringa plea, acnowledged andconfessed that the plaintiffscause of action was /ust andrightful.

%. ( /udgment () CON!ESSIONRELICTA VERI!ICATIONE @ afterpleading and before trial, thedefendant both confessed theplaintiffs cause of action andwithdrew or abandoned his pleaor other allegations, whereupon

/udgment was entere against himwithout proceeding to trial.

4,dg&ent ,/on

Co&/ro&ise

4,dg&ent ()

Con'essionhe provisions and

terms are settled andagreed upon b# the

parties to the action,and which is enteredin the record b# theconsent of the court.

(n affirmative andvoluntar# act of thedefendant himself.

he court e"ercises acertain amount of

supervision over theentr# of /udgment.

C-ari'icator) 4,dg&entrendered b# the court, upon motion,when a /udgment previousl# rendered isambiguous and difficult to compl# with.

AENDED ORCLARI!IED4UDGENT

SUPPLEENTALDECISION

*t is an entirel# newdecision and

supersedes the

original /udgment

:oes not tae theplace of or e"tinguishthe original /udgment

Court maes athorough stud# of theoriginal /udgment andrenders the amended

and clarified /udgmentonl# after considering

all the factual andlegal issues

Serves to bolster oradd to the original

/udgment

RULE 3BNE; TRIAL OR RECONSIDERATION




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(n order den#ing a motion for new trialis not a//ea-a(-e.

NE; TRIAL - the rehearing of a casealread# decided b# the court but beforethe /udgment rendered thereon becomesfinal and e"ecutor#, whereb# errors oflaw or irregularities are e"punged fromthe record, or new evidence isintroduced, or both steps are taen.P,r/ose* to set aside the /udgment orfinal order and grant a new trial.

;2EN to 'i-e*within period for taingappeal.

;2ERE to 'i-e* with the trial courtwhich rendered the >uestioned/udgment.

OTION !OR A NE;TRIAL

OTION !ORRECONSI

Documents

158234303 Dean Riano Civil Procedure Part 3