a m + d g Remedial Law Review: Civil Procedure and Appealsxa.yimg.com/kq/groups/22047546/1990408232/name/Rem+Review.pdf · a m + d g Remedial Law Review: Civil Procedure and Appeals

a m + d g Remedial Law Review: Civil Procedure and Appeals

Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)

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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



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• 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 counter-claim, CROSS-CLAIM, or money claim against an estate not based on judgment, or for filing a third-party, fourth-party, etc. complaint, or a complaint-in-intervention, if the total 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



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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



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• 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 Manila4

• 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 • Cases involving devices or schemes employed by the corporation

amounting to fraud

4 So if accion publiciana case and less than P50,000 in Manila, file with MTC



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• 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

Actions against members of the Bar o Appellate over

RTC exercising original jurisdiction

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.



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• by petition for review on certiorari (rule 45) on pure questions of law CA

• Sandiganbayan, CTA en banc, CoA, Comelec 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 COSTS6 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? o Unfortunately, yes.10

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. 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



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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

• Can a lawyer appear in the hearing? o No. Lawyers are NEVER allowed. (unless they are the ones claiming)17

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; (i) Dilatory motions for postponement; (j) Reply; (k) Third-party complaints; and (l) Interventions.



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• What happens if a party is absent from the hearing? o Plaintiff: dismissal of case

Defendant who appears shall be allowed to recover from his permissive counterclaim

• Compare to normal cases where claim is dismissed (counterclaims, regardless of nature, survive. Not sure if this was an oversight only, but that’s what the codal says)

o Defendant: as if he didn’t file a response o Both: dismissal of claim and counterclaim18

• Are postponements allowed? o Yes,

Only ONCE per party, and Upon proof of physical disability to appear in court.19

• For judgments and execution, see footnote.20 Rule 1 Section 1. Title of the Rules. These Rules shall be known and cited as the Rules of Court. Sec. 2. In what courts applicable. These Rules shall apply in all the courts, except as otherwise provided by the Supreme Court. Sec. 3. Cases governed. These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings. (a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. (b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. • What is an action?

o Formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by the law.

o Method of applying legal remedies according to definite established rules. • Kinds of actions:

o Civil Protection or enforcement of a right, or prevention or redress of a wrong Can be ordinary or special (sca)

o Criminal Once the information is filed in court, it becomes a criminal action.

o Special proceeding Application or proceeding to establish:

• the status of a party, or

17 Section 17. Appearance of Attorneys Not Allowed. - No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter's consent. 18 Section 18. Non-appearance of Parties. - Failure of the plaintiff to appear shall be cause for the dismissal of the claim without prejudice. The defendant who appears shall be entitled to judgement on a permissive counterclaim. Failure of the defendant to appear shall have the same effect as failure to file a Response under Section 12 of this Rule. This shall not apply where one of two or more defendants who are sued under a common cause of action and have pleaded a common defense appears at the hearing. Failure of both parties to appear shall cause the dismissal with prejudice of both the claim and counterclaim. 19 Section 19. Postponement When Allowed. - A request for postponement of a hearing may be granted only upon proof of the physical inability of the party to appear before the court on the scheduled date and time. A party may avail of only one (1) postponement. 20 Section 23. Decision. - After the hearing, the court shall render its decision on the same day, based on the facts established by the evidence (Form 13-SCC). The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties. The decision shall be final and unappealable. Section 24. Execution. - If the decision is rendered in favor of the plaintiff, execution shall issue upon motion (Form 9-SCC).



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• the right of a party, or • a particular fact.

Examples are petition for adoption, petition for hospitalization of an insane person, settlement of estate of a deceased person

Sec. 4. In what cases not applicable. These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. Sec. 5. Commencement of action. A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. • 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. RULE 2 CAUSE OF ACTION Section 1. Ordinary civil actions, basis of. Every ordinary civil action must be based on a cause of action. Sec. 2. Cause of action, defined. A cause of action is the act or omission by which a party violates a right of another. • What is a cause of action?

o It is an act or omission of one party in violation of the legal right or rights of the other. o Its essential elements are:

Legal right of the plaintiff Correlative obligation of the defendant Act or omission of the defendant in violation of the plaintiff’s said legal right.

• Example – Mario doesn’t pay Luigi as agreed upon in a debt contract. o Luigi has the legal right to be paid and Mario has the obligation to pay, arising from the

contract.



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o The non-payment of debt is the act/omission or the cause of action. • When must the cause of action exist?

o At the time the complaint is filed. Hence, a complaint whose cause of action has not yet accrued cannot be cured by

an amended or supplemental pleading alleging the existence or accrual of a cause of action during the pendency of the action. (Turner v Lorenzo Shipping, 2010, a corp case involving right of appraisal)

• Even if there is an existing contract, a tort can still be the cause of action if what breaks the contract is a tortious act. (Mindanao Terminal v Phoenix, 2009)

Sec. 3. One suit for a single cause of action. A party may not institute more than one suit for a single cause of action. Sec. 4. Splitting a single cause of action; effect of. If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. • The purpose of this rule is to prevent repeated litigation. • The rule applies not only to complaints but also to counterclaims and cross-claims. • If two or more complaints are brought for different parts of a single cause of action, the filing of

the first may be pleaded in abatement of the other. It can be set up either by means of: o A motion to dismiss or an affirmative defense in the answer.

What ground? Res judicata or litis pendentia. • “Splitting a cause of action” is not a ground.

• Where there is only one delict or wrong, there is only one cause of action regardless of the number of rights that may have been violated belonging to one person.

o Same cause of action but different prayers = splitting. • You can’t split…

o Recovery of property and damages o Annulment of foreclosure sale and damages (Chua v MBTC, 2009) o Recovery of ownership of and income from same land o Installments due and unpaid o Non-payment of debt secured by a mortgage (you can’t split it to payment of debt and

foreclosure of mortgage, you have to choose one) o Total breach of entire contract

As a general rule, a contract to do several things at several times is divisible, and a judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach.

• But where the contract is entire, and the breach total, there can be only one action in which plaintiff must recover all damages.

• Can you consolidate split causes of action? o No. So the two pending cases can’t be consolidated. One (or both) will be dismissed for

forum shopping. (see Rule and cases on consolidation, particularly Megaland v CE) Sec. 5. Joinder of causes of action. A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: (a) The party joining the causes of action shall comply with the rules on joinder of parties; (b) The joinder shall not include special civil actions or actions governed by special rules; (c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and (d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. • 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.



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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)

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.

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.



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If one cause of action falls within the RTC and the other in the MTC, the action should be filed in the RTC.

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 either Cavite, Makati or

QC. (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)

Sec. 6. Misjoinder of causes of action. Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. • Is misjoinder a ground for dismissal of an action?

o No. It will not cause the dismissal of the principal action. It is severed and will proceed separately, after separate filing.

o In fact, if neither the court nor the adverse party objects, it will be adjudicated together with the other causes of action. (Atty Guevarra)

o Example – a joinder of collection of money and an ejectment case. Di pwede yan, boy! Pero kung walang nagobject, oh di lusot!

RULE 3 PARTIES TO CIVIL ACTIONS Section 1. Who may be parties; plaintiff and defendant. Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) party defendant. Plaintiff=claimant Defendant=against whom the claim is asserted. • Who may be parties to a civil action?

o Natural persons o Juridical persons o Duly incorporated and registered with the SEC

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:



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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.

Sec. 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. • The real party in interest is one who:

o Stands to be benefited or injured by the judgment in the suit, or o Is entitled to the avails of the suit.

• What’s important here is actual interest, not merely inchoate or expectant interest. o Incidental interest also does not count.

Hence, when the managing director of a hotel files a complaint pertaining to a contract entered into by the corporation, it is the corporation which is the RPI, not the managing director. Her interest is merely incidental. (Republic v Coalbrine International, 2010)

• Law uses “party” here so it applies to defendants, third party-defendants, etc – anyone who is impleaded and who will be benefitted or be injured.

• Every action must be prosecuted or defended in the name of the real party in interest. o Hence, when a labor union fails to include the name of the employee that they represent

in the caption of their petition for certiorari, the court rightly dismissed the petition based on the formal defect. (NLMK-OLALIA-KMU v Keihin, 2010)

o When the suit is against a government employee (like the zone administrator of an economic zone), the nature of the suit is one against the State, and the Republic is the RPI. (Republic v Coalbrine)

o When the suit involves private land, the Republic is no longer a RPI. (Republic v Agunoy, where the state made a mistake giving a land patent over private land. They tried to get it back)

o In a derivative suit, the corporation is the RPI and the suing stockholder is only a nominal party. (Cua v Tan, 2009 – more on this case in class suits v derivate suits)

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)



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• 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.

Sec. 3. Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. • The beneficiary should be included in the title of the case and shall be deemed to be the real party

in interest. o If the beneficiary’s name is not included in the title, the defect can be cured by the simple

expedient of requiring the association to disclose the names of the principals and to amend the title and averments of the petition accordingly (MIAA v Rivera, 2005, wherein a homeowners association filed in behalf of the homeowners – compare to the later case of Keihin, where the court averred that it could have dismissed the case because the Union did not disclose the name of the employee it was helping)

• A representative may be: o A trustee of an express trust, o A guardian, o An executor or administrator, o A party authorized by law or these Rules.

• 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. Sec. 4. Spouses as parties. Husband and wife shall sue or be sued jointly, except as provided by law. • General rule: Husband and wife shall sue or be sued jointly as both are co-administrators of the

community property. o Exceptions:

Suit of one against the other Based on a criminal act/delict

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)



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Judicial separation of property Abandonment Exclusive property of spouses Suits involving the practice of one’s profession

Sec. 5. Minor or incompetent persons. A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. • Can a minor or incompetent be a party?

o Yes, but with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem.

• A person need not be judicially declared to be incompetent. It is enough that he be alleged to be incompetent. (Kawawa naman. Paano kung hindi talaga bobo?)

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. • What are the requisites for permissive joinder of parties?

o Claim arises from same or series of transactions o Common questions of law or fact in the action o Read with joinder of causes of action

• It’s permissive in the standpoint of the party initiating the cause of action. • Examples

o Mario & Luigi versus Bowser & Princess o Mario, Luigi & Princess versus Bowser o Mario versus Luigi, Princess & Bowser

Sec. 7. Compulsory joinder of indispensable parties. Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. • Who is an indispensable party?

o Parties in interest without whom no final determination can be had. o Without them, there will be no resolution of the case, no judgment at all.

• Examples (see Feria book, p. 233)

o Co-owners in an action for partion of an undivided interest in land. o Vendee in an action for annulment of a contract of sale. o Those with titled claims over the land in a petition for reconstitution of title.

Sec. 8. Necessary party. A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. • 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.

• Examples (see Feria book, p. 237)

o Co-owners of a promissory note in an action for its collection o Solidarily liable, either is indispensable, and the other is not even necessary because

complete relief may be obtained from either. o Jointly liable, either is indispensable, and the other is necessary to accord complete relief.



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Problem • Action fro recovery of title and possession. X holds title, Y has possession. The action is solely for

recovery of title. Can you sue X? o Yes, he’s the proper party. o Can you sue Y for recovery of title without suing X? No, Y mere possessor. X is holder of

title, he’s the indispensable one. Indispensable Necessary Without whom no final determination of the case can be had; inextricably intertwined with the other parties’ that his legal presence is an absolute necessity

Interest is distinct and divisible from the interest of the other parties; will not necessarily be prejudiced by a judgment which does complete justice to the parties in court

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)

Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. • 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.

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.



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• 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.

Sec. 10. Unwilling co-plaintiff. If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. • What if the consent of a party who should be joined as plaintiff can not be obtained?

o He may be made a defendant, and o The reason therefore shall be stated in the complaint.

Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. • Is misjoinder or non-joinder of parties a ground for dismissal of an action?

o No. o The non-joinder of an indispensable or a necessary party is not ipso facto a ground for the

dismissal. The court should order the joinder of such party and non-compliance with the said

order would be a ground for the dismissal of the action. (it’s the non-compliance with the order, not the misjoinder itself)

Remember: The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

Sec. 12. Class suit. When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. • Requisites of a class suit

o Subject matter is one of common or general interest to many persons, o The interested persons are so numerous that it is impracticable to join them all as parties,

and o The parties bringing the class suit are sufficiently numerous or representative of the class

and can fully protect the interests of all concerned (Banda v Ermita, 2010) • An action does not become a class suit merely because it is designated as such in the pleadings. It

must depend on the facts of the case. • Common or general interest is essential!

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



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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)

Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. • If you’re not sure who to go against, what do you do?

o Join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.

o Just be careful, because this will open yourself up to counter-suits.

Sec. 14. Unknown identity or name of defendant. Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accord. Sec. 15. Entity without juridical personality as defendant. When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. • These folk can only be sued under the name which they are generally or commonly known, ie as

defendants. o Service of summons may be effected upon all the defendants by serving upon any one of

them; or upon the person in charge of the office or place of business maintained under such name.

• They can’t sue as an entity, they will have to file as individuals. • What should be contained in their answer?

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.

Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. • This provision applies when:



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o Either party dies, and o The action survives

• What’s the test to determine whether the action survives or not? o If the wrong complained of affects primarily and principally property or property rights, the

action will survive, the injuries to the person being merely incidental. Money claims

o If the injury complained of is to the person and the injuries to the property are incidental, then the action will not survive.

Annulment of marriage, legal separation – even if it involves changes in the property relations

• What should the lawyer do? (KNOW THIS!) o He should, within 30 days after the death, inform the court thereof.

• Period: 30 days after FACT of death. Not knowledge of such. o Give the name and address of the legal representative of the deceased. o The court will order:

• the representative to appear and • be substituted within 30 days from notice.

o Upon failure to of the legal rep to appear, the court may order the opposing party, within a given period, to procure the appointment of an executor or administrator who shall immediately appear for the estate of the deceased.

• Who should the substitutes be? o Those who are “authorized by law”, meaning

The legal heirs, without requiring the appointment of an executor or administrator The administrator The executor, or The guardian (Sumaljag v Literato, 2008, wherein the court said the substitution

of someone who does not fall into this list is an invalid substitution) • What happens if there is no valid substitution because of either the fault of the counsel or the

failure of the court to order a substitution? o It will not invalidate the proceedings and the judgment rendered thereon. o Mere failure to substitute a deceased party is NOT sufficient ground to nullify a court’s

decision. The party alleging nullity must prove that there was an undeniable violation of due process.

o Tag line: The rule on substitution of heirs is not a matter of jurisdiction, but a REQUIREMENT OF DUE PROCESS.

Hence, formal substitution by heirs is not necessary when they themselves voluntarily appear, participate in the case, and present evidence in the defense of the deceased. (Napere v Barbarona, 2008)

Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard. • Requisites:

o Removal/death of public officer and appointment of successor within 30 days unless otherwise provided

o Successor adopts, continues, or threatens to continue the action sued against o There is substantial need to continue the action

• Substitution is NOT automatic. The court must: o Give notice to the new public officer, and o Give him an opportunity to be heard

Mere fact that he is inclined to continue the action of the predecessor is not enough



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Sec. 18. Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. What do I do if my client becomes incompetent or incapacitated midway? • File a motion with notice asking the court to continue the case and for the client to be assisted by

a legal guardian or guardian ad litem. Sec. 19. Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Example: Mario filed an action for replevin of his mushroom against Luigi. While the case was pending, Luigi sold the mushroom to Bowser. • What if there was a transfer of interest?

o The action may be continued by or against the original party. He will then hold the fruits of the action as sort of trustee for the use and benefit

of his transferee. In the same manner that the transferee of the original defendant is bound by the judgment against the latter.

• Can the court order that Bowser be impleaded? o Yes, upon motion. If the court merely orders him to be impleaded, there is no substitution,

Bowser is just joined. o There can only be substitution if the court orders the substitution, not the mere

impleading. o Hence, the bottom line is that there must be a court order, either to implead or to

substitute. • The transferee pendent elite is a proper party in the case but not an indispensable party. (Heritage

Park v CIAC, 2008) • The substitution must be done

o during the lifetime of the transferor of the interest and o while the manifesting counsel as still the effective and authorized counsel for the client-

transferor. It can’t be done if he’s dead. (Sumaljag v Literato, 2008) Sec. 20. Action on contractual money claims. When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. • Applies only if:

o Money claim, and o Defendant dies

Differentiate from Section 16 (where either of the party dies and no need for it to be a money claim, as long as the action survives)

• What happens if the defendant dies in a case involving a money claim? o No substitution (law does not mandate any substitution). It just continues. o Once a final judgment is entered against the estate of the deceased, it shall be enforced

as a claim without need of proving the same. o If based on a contract, file money claim in probate court. o If based on tort or delict, file against the executor or administrator.

Sec. 21. Indigent party. A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides.



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Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may impose. Who can be considered an indigent? • Algura v LGU of Naga, 2006, answers this by juxtaposing this section with Rule 141, Section 9. It

gives a two tier test. o If the indigent fits within the parameters set out by Rule 141, Section 9, it is MANDATORY

upon the court to declare him an indigent. Gross income + family income does not exceed twice of monthly minimum wage,

and Owns real property whose FMV is less or equal to P300k25

o If he fails that test, the court is given the discretion to determine whether he is an indigent or not based on Rule 3, Section 21. (Indigency Test)

Party is one who has: o No money or property sufficient and available for

Food Shelter Basic necessities

• for himself and his family. • Benefits of indigent parties:

o Stenographic notes: free o Filing fees: no need to pay, but lien on judgment

• What if he wasn’t an indigent and he claimed he was? o The proper docket and lawful fees shall be assessed and collected by the clerk of court. o If payment is not made within the time fixed by the court, execution shall issue or the

payment thereof, without prejudice to such other sanctions as the court may impose.

Sec. 22. Notice to the Solicitor General. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him. RULE 4 VENUE OF ACTIONS • In determining the proper venue for an action, you must consider two things

o First: Is it a real or personal action? Use Section 1 and 2 for that, and our lesson in determining the real nature of an

action. o Second: Is it covered by a special law or by stipulation?

Use Section 4 for this. Remember: if venue is determined by special law or by a particular rule in the

ROC, you can’t stipulate on venue. The law takes precedence over the stipulation. Section 1. Venue of real actions. Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.

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)



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Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated. • What is the venue of real actions?

o It’s the proper court which has jurisdiction over the area wherein the real property, or a portion thereof, is situated.

• Real action o Those affecting

• title to or • possession of real property, or • interest therein.

• All else are personal actions. o The principal objective or relief sought is either ownership or possession of real property. o Remember the lessons in docket fees! Look for the true nature of the action! o These include

• Partition, • Expropriation • Action for the annulment or rescission of sale of land (but if the title has not yet

passed to the vendee, it can be considered a personal action – Atty. Tranquil). • Venue for ejectment cases

o The MTC where the property or a portion thereof is situated. • EX: if there’s a stipulation

• Wait! Can the venue for ejectment cases be stipulated? o Yes! The rule governing ejectment cases (Rule 70, Sec 1) merely

states that it should be filed in the MTC, but it doesn’t say which MTC. (Other words, jurisdiction is indicated, but the venue isn’t.)26

• Where do you file an action for extra-judicial foreclosure? o Extrajd foreclosure is NOT a judicial action and not covered by the RoC. It’s covered by Act

2135. o It should be filed where the property is located. 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) Sec. 2. Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. • What’s the venue of personal actions?

o Either in the place where o The plaintiff or any of the principal plaintiff resides, or o The defendant or any of the principal defendant resides, or o In the case of a non-resident defendant, where he may be found

At the election of the plaintiff • On the issue of who the principal plaintiff is 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.



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o In Marcos-Araneta v CA (2008), Court ruled that it is the beneficiary of a trust who is the principal plaintiff. The beneficiary is the RPI, not the trustees who merely represent the beneficiary. Hence, when the beneficiary lives in Makati, the action must be commenced there, and not where the trustees reside.

• Action was a personal one: suit for reconveyance of stocks o The rule is such to prevent the plaintiff from choosing the residence of a minor plaintiff or

defendant as the venue. • What does residence mean in this rule?

o Actual residence, where there is personal, actual and physical habitation. • Examples of personal actions

o Damages o Recovery of personal property o Cancellation of real estate mortgage (to compel the mortgagee to accept payment of the

mortgage debt) Sec. 3. Venue of actions against non-residents. If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. • 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. Sec. 4. When Rule not applicable. This Rule shall not apply: (a) In those cases where a specific rule or law provides otherwise; or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. • 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 residence 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



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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) Importance of knowing if the action is real or personal • Knowing if the action is real or personal is important because it will have legal implications on 3

things: o Jurisdiction

If real, jd based on the assessed value of the land; if personal (like rescission of a contract), incapable of pecuniary estimation so RTC.

o Venue 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).

RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS Section 1. Uniform procedure. The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure. Sec. 2. Meaning of terms. The term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. • To be read with the Rules on Summary Procedure • In the MTCs, the procedure is the same as in the RTC except:

o When by express or implied provision of law o In civil cases governed by the Rules on Summary Procedure

• Civil cases governed by the Rules on Summary Procedure: o Ejectment cases, regardless of the amount of damages or unpaid rent sought to be

recovered. If attorney’s fees are to be awarded, shouldn’t be more than P20,000.



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o All other cases, except probate proceedings, where the total amount of the plaintiff’s claim does NOT exceed P100,000 or P200,000 (in MM), exclusive of interest and costs.27

• For criminal cases, see codal. • Court will issue an order stating that the case is governed or not by the rules on summary

procedure.28 • Three steps in summary procedure:

o FIRST: Filing of the complaint Upon filing, the court can:

• Dismiss the case outright • Issue summons29

The responsive pleading here will be an ANSWER within 10 days (not the usual 15 days).30

• Can’t file a MTD because it’s a prohibited pleading. • Plaintiff can NOT file a reply either since it’s a prohibited pleading too.

If no answer, two things can happen: • 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

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. 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.



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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.

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:

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. 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;



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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.

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.

RULE 6 KINDS OF PLEADINGS Section 1. Pleadings defined. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. • A pleading is a written statement of the:

o Respective claims and defenses of the parties o Submitted to the court for appropriate judgment.

• No claim? No defense? Then not a pleading. • WARNING: Sir will ask a lot of questions on Rule 6-8 for midterms so know the codal like the back

of your hand.

(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. 39 Sec. 21. Appeal. — The judgment or final order shall be appealable to the appropriate regional trial court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed. 40 Sec. 22. Applicability of the regular rules. — The regular procedure prescribed in the Rules of Court shall apply to the special cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith.



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Sec. 2. Pleadings allowed. The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-intervention. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answer may be responded to by a reply. 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. • A complaint is a pleading alleging the plaintiff’s cause of action.

o It should contain the names and residences of the plaintiff and defendant. • What else should it contain?

o GR: A concise statement of the ultimate facts constituting the plaintiff’s cause of action, not evidentiary facts or legal conclusions.

These are the essential facts constituting the plaintiff’s cause of action. • A general allegation of ownership is a sufficient averment of the ultimate

fact. • An allegation that defendant promised to pay is an ultimate fact.

Not ultimate facts: • Evidentiary or immaterial facts. • Legal conclusions. • Allegation that a contract is valid or void (it’s a legal conclusion)

EXCEPT: in actionable documents, since you have to put the substance of the document or its whole contents (see Rule 8, Sec 7)

o It should also contain the relief prayed for. It is the relief based on the facts alleged, and not the relief demanded, which is

the taken into consideration in determining the cause of action. o If it depends upon a condition precedent, he must allege and prove the fulfillment of the

condition or the legal excuse for its non-fulfillment. o Can also be alleged:

Fraud, mistake, malice, intent, knowledge, illegality • For fraud and mistake, aver with particularity. • For the rest, general allegations will suffice.

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. When should it be filed? Ordinary service of summons (Rule 11, Sec 1)

Within 15 days

Extraterritorial service At least 60 days after notice Summons by publication At least 60 days after date

of the last publication In response to an amended complaint (Rule 11, Sec 3) • If amendment a matter of right • If amendment not a matter of

right

Within 15 days Within 10 days from notice of the order admitting the same

In response to a supplemental complaint (Rule 11, Sec 7)

Within 10 days from notice of the order admitting the same, unless a different period is fixed by the court

In response to a counterclaim and cross-claim (Rule 11, Sec 4)

Within 10 days from service

In response to a third-party complaint Within 15 days



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(Rule 11, Sec 5) Where defendant is a foreign private juridical entity and service: made on its resident agent

designate in accordance with law for that purpose

made on the government official designated by law to receive the same (Rule 11, Sec 2)

Within 15 days Within 30 days after receipt of summons by such entity

After service of the bill of particulars, or after notice of denial of one’s motion for a bill of particulars (Rule 12, Sec 5)

Within the period remaining to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event

After denial of a motion to dismiss (Rule 15, Sec 4)

Within the period remaining to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event, computed from his receipt of the notice of denial

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. • What’s an affirmative defense?

o It’s an allegation of a new matter which, while hypothetically admitting the material averments in the pleading of the claimant, would prevent or bar recovery.

Examples: • Prescription, release, payment, statute of frauds (grounds for motion to

dismiss) If you hypothetically admit, without raising any defense, then there’s no issue.

This will lead to a judgment on the pleadings. (Rule 34 – when the answer does not tender an issue or admits the material allegations)

o Raise these first in your motion to dismiss (which you file before your answer), then raise it again in your answer!

How do you plead affirmative defenses? • If estoppel, allege the facts constituting it. • If fraud or mistake, aver with particularity. • If malice, intent, knowledge or other condition of the mind of a person,

just aver it generally. • What is a negative defense?

o It’s a specific denial of the material fact or facts allege in the pleading of the claimant essential to his cause/causes of action.

o A specific denial can be two things (Rule 8, Sec 10): Specific denial: The defendant specifies each material allegation of fact (he doesn’t

admit the truth!) and whenever practicable, sets forth substance of the matters he relies upon to support his denial, or if he denies only a part of the averment, he specifies so much of it as is true and denies the remainder. (Basically, he chooses stuff from the complaint and shoots them down by denying them)

Disavowal of knowledge: The defendant states that he does not have knowledge or information sufficient to form a belief as to the truth of a material averment. (He says he doesn’t know anything regarding a material averment)



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• However, if it the averment was in fact within the knowledge of the defendant and he still disavows knowledge, it is deemed admitted as a mere general denial.

• Defenses of “lack of knowledge for lack of privity” or “inability to recall because it happened a long time ago” are insufficient defenses. (Republic v Sandiganbayan, 2003)

• What is a negative pregnant? o It’s a form of negative expression which carries with it an affirmation or at least an

implication of some kind favorable to the adverse party. o It is a denial pregnant with an admission of the substantial facts alleged in the pleading.

Example: allegations were that there were illegal funds in a Swiss bank account. Answer was that the funds were legally acquired. Hence, the substantial fact that there were funds in a Swiss bank account was not specifically denied, and thus admitted.

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. Sec. 7. Compulsory counterclaim. A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. • Requisites for a compulsory counterclaim:

o Must arise out of, or be necessarily connected with, the transaction or occurrence that is the subject matter of the opposing party’s or co-party’s claim;

o Does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction; and

o Must be within the jurisdiction of the court, and is cognizable by the regular courts of justice.

So if the counterclaim is a labor claim, it cannot be considered compulsory because it is the NLRC who has jurisdiction, not the regular courts.

o Test of complusoriness: duplicity of cases o If you don’t file a compulsory counterclaim in your answer, it is deemed waived and barred

forever. (compare to permissive) • Requisites for a permissive counterclaim:

o Does not arise out of or is not necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim;

o Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; and

o Must be within the jurisdiction of the court, and is cognizable by the regular courts of justice

• Not related at all to the original claim filed, it’s permissive as to the party, not to the court. • As you can see, there is NO need for leave of court for a counterclaim. It’s up to the party

involved. • Important distinction between compulsory and permissive counterclaims:

• Compulsory: No need for certificate of non-forum shopping since not an initiatory pleading • Permissive: Need for certificate of NFS

• Docket fees are now required for both compulsory and permissive counterclaims. Remember this! (Korean Tech v Lerma, 2008)



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• Rule on jurisdiction over counterclaims: o In the RTC, there is no limit to the counterclaim. o In the MTC, the counterclaim is limited to the jd of the inferior court.

So the balance is lost. So just file separately. • Mario filed a collection suit versus Luigi in the RTC of Manila for P900,000. Luigi made a

counterclaim for P150,000. Which court has a jurisdiction? o RTC of Manila.

• Mario filed a collection suit versus Luigi in the MTC of Manila for P250,000. Luigi made a counterclaim for P500,000. What happens?

o This is not a compulsory counterclaim because the counterclaim is not in the jurisdiction of the original court (MTC). Nor is it permissive for the same reason. So Luigi should file it in the RTC as a separate action.

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 Sec. 9. Counter-counterclaims and counter-cross-claims. A counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant. 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.

Sec. 10. Reply. A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. You file this after the answer. • A reply is a pleading whose function is to:

o Deny, or o Allege facts in denial or avoidance of new matters,

Which were alleged by way of defense in the answer, o And thereby join or make issue as to such new matters.

• If there is NO reply, all the new matters alleged in the answer are deemed controverted. o Controverted na pala eh, why file a reply pa?

Because it’s not good practice. The proper function of a reply is to allege new matters in avoidance of any

affirmative defense. It also further defines the issues and specifies matter for trial.

• When should one file a reply? Response to an answer (Rule 11, Sec 6)


If in response to a supplemental answer

Within 10 days from notice of order



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After service of the bill of particulars, or after notice of denial of one’s motion for a bill of particulars (Rule 12, Sec 5)

Within the period remaining to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event

Sec. 11. Third, (fourth, etc.) party complaint. A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. Mario files versus Luigi on a promissory note. Luigi, with leave of court, files against Bowser because Luigi lent half of the amount to Bowser. • A third-party complaint is a claim that a defending party may, with leave of court, file against a

person not a party to the action, for o Contribution, indemnity, subrogation or any other relief, o In respect of his opponent’s claim.

• If a court has jurisdiction over the main action, it has jurisdiction over a third-party complaint which is ancillary thereto.

• A third-party complaint must yield to the jurisdiction and venue of the main action. • Period to file an answer to a third party compliant: 15 days

o It’s treated as an entirely new complaint. • What is the test to determine propriety of a third-party complaint?

o Does it arise out of the same transaction on which the plaintiff’s claim is based, or does the third-party’s claim arising out of another or different contract or transaction, connected with the plaintiff’s claim?

• GR: No need for leave of court for pleadings (answer, counterclaims, cross-claims, etc). o EXCEPT: in third-party complaints. You NEED leave of court.

• How do you obtain leave of court? o File a motion under Rule 15.

What happens if the motion is denied? • Such a claim may still be enforced in a separate action. The action is not

lost. • Is summons needed on the third-party defendant?

o Yes. Of course. In order to obtain jurisdiction over him/her. • Can the original claimant amend his pleading to join the third party defendant?

o Yes. He may amend his pleadings to assert against the third-party defendant any claim which the former might have asserted against the latter had he been joined originally as a party.

• The bringing of a third-party defendant is proper if he would be liable to the plaintiff or the defendant or both for all or part of the plaintiff’s claim against the original defendant, although the 3rd party defendant’s liability arises out of another transaction.

• A third-party complaint must allege facts which prima facie show that the defendant is entitled to contribution, subrogation, etc from the third-party defendant.

• Example • Mario sold land to Luigi. Bowser sues Luigi to recover said parcel of land, claiming he’s the real

owner. Luigi then files a third-party complaint versus Mario to enforce the warranty against eviction. Bowser may amend his complaint to include Mario and claim damages for having deprived him of said land.

• Is the 3rd party defendant bound by the adjudication of the third-party plaintiff’s liability to the original plaintiff?

o Yes. • What is the effect of the dismissal of the complaint on the third-party complaint?

o If the complaint is dismissed, the third-party complaint will also necessarily be dismissed.

Sec. 12. Bringing new parties. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.



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• How is this different from a third-party complaint? o In a third party complaint, one of the third-party defendants is not a party to the main

action. o In this section, one or more of the defendants in a counterclaim or cross-claim is already a

party to the action. They can be brought as other necessary parties under this section. Sec. 13. Answer to third (fourth, etc.) party complaint. A third (fourth, etc.) party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.) party plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff.

RULE 7 PARTS OF A PLEADING 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. Sec. 2. The body. The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. (a) Paragraphs. - The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (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. 3. Signature and address. Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. • Every pleading must be signed by the party or counsel representing him, otherwise the pleading

produces no legal effect. (Jocson v CA, 2009 wherein the counsel of Plaintiff A signed for Plaintiff B and the court said this can not be done, without proof that counsel represented Plaintiff B as well)

• No signature: no legal effect o Can be cured if due to mere inadvertence or not intended for delay

• Signature of counsel certifies that: o He read the pleading, o There is good ground to support it, and o Not interposed for delay

• Counsel must also inform the court of his change of address. Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit.



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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 pleading, 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 • Arising from the same transaction (Juaban v Espina wherein

Sec. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. • What is forum-shopping?

o The filing of multiple suits in different courts, either simultaneously or successively, Involving the same parties, To ask the courts to:

• rule on the same or related causes, and/or • grant the same or substantially same reliefs.

• Test: Is there identity of: o Parties, o Rights or causes of action, and o Reliefs sought?

• Who must sign it? o The party himself, not the counsel.

What if multiple parties, do they all have to sign?



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• GR: Like in verification, yes, they all have to sign. o EXCEPT: when they all share a common interest and invoke a

common cause of action or defense, the signature of only one of them will substantially comply with the rules (Juaban v Espina, 2008)

o Only individuals vested with authority by a valid board resolution may sign the CNFS on behalf of a corporation. Failure to provide a CNFS or to accompany with proof of the signatory’s authority are sufficient grounds to dismiss the petition. (Republic v Coalbrine, 2010)

• When is it needed? o In every initiatory pleading.

Hence, it is NOT needed in a motion (even if it’s erroneously labeled as a “petition.”) (PTA v Metrobank, 2010, wherein Metrobank filed for a ‘petition’ for the issuance of a writ of possession following a foreclosure sale. Court said that it’s really a motion and no CNFS was needed.)

• Contents: o Certify, UNDER OATH, that he has not filed a similar complaint involving the same issues

in another court, tribunal, quasi-judicial agency, o If there is any other pending claim, he must provide the status o If he learns about similar action, he must report such fact within 5 days to the court

• Absence of CNFS: case will be dismissed WITHOUT prejudice o The defect cannot be cured by an amendment, just re-file that biatch!

• Effect of non-compliance (Meaning, you filed a CNFS but you did not respect your commitment under such – ie, it’s false)

o Indirect contempt (failure to comply with order or process of court) o Administrative and criminal cases (since you lied under oath) o Dismissal of the case

• Effect of willful and deliberate forum shopping (Meaning it’s not only false but you also deliberately disregarded it):

o Dismissal with prejudice o Direct contempt

• If there are two pending cases, what case will be dismissed? 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 ventilation of the issues between the parties. (UCPB v Beluso, 2007)

RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS 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. 2. Alternative causes of action or defenses. A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. • Can a single cause of action entitle a party to two alternative reliefs?

o Yes. Take breach of contract as an example. Breach is the cause of action, while reliefs are either specific performance or rescission.



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o Alternative statements may be made either in one cause of action or defense or in separate causes of action or defenses.

• Can the plaintiff make alternative allegations? o Yes. There are cases where facts, essential to the plaintiff’s cause of action, are within the

knowledge of the defendant, but of which the plaintiff is so imperfectly informed that he canot state with certainty, even on information or belief.

o The proper procedure is for him to state the facts within his knowledge with certainty, but to plead in the alternative the doubtful facts which are wholly within the defendant’s knowledge, and call upon the defendant to make the full disclosure of the facts.

• Can the defendant plead as many defenses as he wants? o Yes. o He has the right to set up negative defense in one cause of action and affirmative defense

in another in the same action. The affirmative matter in a separate defense does not operate as a withdrawal of a defense in another portion of his answer.

o Those different defenses may be inconsistent with each other, but it is sufficient that each is consistent with itself.

Sec. 3. Conditions precedent. In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. Barangay conciliation process, etc. These must be averred. If not, it may be dismissed on the ground of lack of cause of action. Sec. 4. Capacity. Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. • 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. 5. Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. • If fraud or mistake, the circumstances constituting it must be stated with particularity. • If malice, intent, knowledge or other condition of the mind of a person, just aver it generally. 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. Sec. 7. Action or defense based on document. Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be



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attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. • How do you plead an action or defense based on a document?

o Set forth the substance of the instrument/document in the pleading and attach or append the document, or

o Reproduce the contents of the document in the pleading en toto Sec. 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. • What does “genuineness and due execution” mean?

o Genuineness means nothing more than the instrument is not spurious, counterfeit or of different import on its face from the one executed

o Due execution means that it was done with authority • How does one contest it?

o By specifically denying them under oath, and setting forth what he claims to be the facts An oath is not required when:

• Adverse party does not appear to be party to the instrument, or • When compliance with an order for an inspection of the original instrument

is refused. o It must be specifically denied. Hence, when the defendant merely states that the signature

“seems to be his.” This is an admission of the document’s genuiness and due execution. (Permanent Savings v Velarde, 2004)

• What are deemed admitted if there is no denial under oath? o Admission ONLY to the document’s genuineness and due execution

Basically, if you don’t deny under oath, you are waiving the authentication process under Rule 132, Sec 19-33.

No need for proof of execution and authenticity with respect to the documents. o One who does not deny under oath, admits:

That he voluntarily signed the document or it was signed by another for him and with his authority;

That at the time it was signed, it was in words and figures exactly as set out in the pleading of the party relying upon it;

That the document was delivered; That any formalities required by law, such as a seal, an acknowledgment or

revenue stamp, which it lackts, are waived by him (Filipinas Textile Mills v CA) • What are not deemed admitted?

o The true nature or true intention is not admitted o That’s payment, want or illegality of consideration, fraud, mistake, compromise, etc o For example, in fraudulent misrepresentation, you admit that your signature is genuine

but not you can contest WHY you signed the document. Sec. 9. Official document or act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. Sec. 10. Specific denial. A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. Sec. 11. Allegations not specifically denied deemed admitted.



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Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. • What is the effect of a general denial?

o Material averments in the complaint shall be deemed admitted when not specifically denied.

EXCEPT: • those as to the amount of unliquidated damages (if liquidated, they are

deemed admitted), and • immaterial averments (allegations by way of anticipation of defense or

conclusions of law) Sec. 12. Striking out of pleading or matter contained therein. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom.

RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. • 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.)

Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A compulsory counterclaim, or a cross-claim, not set up shall be barred. • A compulsory counterclaim, or a cross-claim, not set up in the answer shall be barred forever. What should you do if you still want to set up a compulsory counterclaim after failing to implead

it? (Feria) o A compulsory counterclaim or a cross-claim may still be set up via the following:



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an amended answer, provided that the counterclaim or cross-claim already existed at the time the original answer was filed, but due to oversight, inadvertence or excusable neglect, it was not set up.

A supplemental answer, if the counterclaim or cross-claim matures or is acquired after the original answer is filed.

o In both cases, they must be filed with leave of court before judgment. • Can a compulsory counterclaim cure jurisdictional defects in the complaint? (Feria)

o Yes. o Although the original claim involves less than the jurisdictional amount, jurisdiction can be

sustained if the compulsory counterclaim, based upon the damages allegedly suffered by the defendant in consequence of the filing of the complaint, falls within the jurisdictional amount.

Sec. 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (a) Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (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!



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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 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

41 Extrinsic fraud is actually a super ground! It can be invoked in 4 rules. Motion for new trial, petition for relief from judgment, motion for annulment of judgment, AND relief from an order of detault



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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.

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS Section 1. Amendments in general. Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. What is an amended pleading? They are proper in order to allege facts which occurred prior to the filing of the original pleadings,

but which for some reason, such as oversight, inadvertence, or subsequent discovery, were not alleged therein. (compare with supplemental pleadings)

Sec. 2. Amendments as a matter of right. A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (l0) days after it is served. • When are amendments a matter of right?

o Anytime before the responsive pleading is served, or o In the case of a reply, at any time within 10 days after it is served.

You can only amend as a matter of right once. Any subsequent amendments after that needs leave of court.

All you need is a NOTICE to amend. You can amend both in form or substance.

• Does this mean you can amend your answer? o Yes. The law says “pleading.” o You can amend your answer anytime before the reply is served upon you.

• After a motion to dismiss has been served on you, can you file an amendment of your complaint as a matter of right?

o Yes, as a matter of right. A motion to dismiss is not a responsive pleading. o The plaintiff may file an amended complaint even after the original complaint was ordered

dismissed if the order is not yet final and the amendment is before the answer. • When should you file your response to an amended complaint?

o If it was done as a matter of right, 15 days after being served with a copy thereof. o If it was not done as a matter of right, 10 days from notice of the order admitting the

same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. (No default, nagfile ka na sa unang complaint eh!) (Rule 11, Sec 3)

o However, new material allegations in the amended complaint which are not specifically denied are deemed admitted. (So sumagot ka!)

Sec. 3. Amendments by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. • What is a substantial amendment?

o It modifies or alters the cause of action or defenses. Can you amend your cause of action or defense?

• Yes! Using this section. It should be done with leave of court.



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• When do you need leave of court when amending? o After the service of the responsive pleading

A plaintiff cannot, after defendant’s answer, amend his complaint by changing the cause of action or adding a new one without previously obtaining leave of court.

• Can an answer containing a general denial be amended as to contain a specific denial? o Yes, it may be withdrawn with leave of court if there is a justifiable reason therefore and if

the interests of justice so require (Rule 8, Sec 11). • May a complaint stating no cause of action be cured by an amendment?

o Atty Tranquil said no. o Feria said yes. If in fact, a cause of action exists but the statement thereof is defective for

failure to allege essential facts and a motion to dismiss was filed on the ground that it stated no cause of action, the complaint may be amended.

• What if there was no motion to dismiss? o The defect may be cured at the trial on the merits by the presentation of evidence. o If no objection was made, amendment is not necessary and may be made at any time,

even after judgment. 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)

Sec. 4. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. • What about formal amendments? When can you do those?

o At any stage, upon motion of the party or the court motu proprio Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial



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justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. • This rule covers the situation wherein what was alleged was different from what was proven.

(claim: P50,000, proved: P1,000,230.00) • This rule allows the following: (Feria)

o A complaint which states no cause of action to be cured either by evidence presented without objection, or in the event of an objection sustained by the court, by an amendment of the

complaint with leave of court. • But if there is no cause of action in the first place (compared to the failure

to state a cause of action), then no amendment can cure this. o Admission of evidence on a defense not raised in a motion to dismiss or an answer if

No objection is made, or In the event that there was an objection, the amendment of the answer in order to

raise such defense. • There are two kinds of amendments to conform to evidence:

o First: no objection on the part of the other party. As such, it will be allowed even after judgment.

This talks about a situation where a party presents evidence and no one objects, either expressly or impliedly.

• How can one not object impliedly? o By cross-examining o By providing evidence in contra.

In instances such as these, the court will render judgment and will just order the amendment so that the complaint will conform with the evidence presented and the judgment rendered.

o Second: if the other party objects, the amendment is left to the sound discretion of the court.

The court will shall allow the pleadings to be amended when the presentation of the merits of the action will be subserved thereby and the admission of such evidence would not prejudice the objecting party in maintaining his action or defense upon the merits.

After the amendment, the evidence objected to may be presented. This was seen in Asean Pacific Planners v City of Urdaneta, 2008.

• Genio question: When can the court order an amendment even without motion/application to amend?

o If it’s a merely formal amendment. (typo!) o For bill of particulars, the court can either order compliance OR an amendment o Motion to dismiss, the court can either grant, deny, or order an amendment o In criminal case, in a motion to quash, the court can grant, deny or order an amendment.

Sec. 6. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. • What is a supplemental pleading?

o They are proper in order to allege facts which occurred after the filing of the original pleadings.

o They are filed pursuant to new transactions, occurrences or events (TOE) that have arisen after the filing of the original pleadings.

o Of course, the original complaint must have a valid and subsisting cause of action to begin with.

• Are supplemental pleadings new complaints? o No. This means that supplemental complaints do not supersede the original complaints.

(See Rule 10, Sec 8) • Do you need leave of court?

o Yes.



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• Can they be amended? o Yes, with leave of court. (Atty. Guevara)

• When should a response to a supplemental pleading be made? o Within 10 days, unless the Court gives a different period. (Rule 11, Sec 7)

• Take note that codal states “pleading” so there can be a supplemental complaint, answer, reply, petition.

• GR: File a supplemental pleading as long as there are new transactions, occurrences, or events that occur after the filing of the first pleading.

o EXCEPT: in the Supreme Court. The Supreme Court will not accept stuff unless they ask for it. Amendments Supplements Omission of a fact that happened before filing; it was there at the time of the pleading

TOE happened only fter filing

May be filed without leave of court (if before responsive pleading)

Always with leave of court

Sec. 7. Filing of amended pleadings. When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. • How should an amended pleading be filed?

o With a new copy of the entire pleading which incorporates and indicates the amendments with appropriate marks

• Should the amended complaint be served on the defendant? o Yes. (Page 351, Feria)

Sec. 8. Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. • What is the effect of an amended pleading?

o It supersedes the pleading that it amends. • What about the admissions in superseded pleadings?

o They may be received in evidence against the pleader. • What about the claims or defenses alleged in the superseded pleadings?

o If they are not incorporated in the amended pleading, they shall be deemed waived. RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1. Answer to the complaint. The defendant shall file his answer to the complaint within fifteen (l5) days after service of summons, unless a different period is fixed by the court. Ordinary service of summons Within 15 days Extraterritorial service At least 60 days after notice Summons by publication At least 60 days after date

of the last publication Sec. 2. Answer of a defendant foreign private juridical entity. Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. Where defendant is a foreign private juridical entity and service: made on its resident agent

designate in accordance with law

Within 15 days



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for that purpose made on the government official

designated by law to receive the same (Rule 11, Sec 2)

Within 30 days after receipt of summons by such entity

• If sent to the government official, the counting only starts after receipt of summons by such entity • Service of summons to the designated government official should be made only in the absence of

a designated resident agent Sec. 3. Answer to amended complaint. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (l5) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.) party complaint, and amended complaint-in-intervention. In response to an amended complaint (Rule 11, Sec 3) • If amendment a matter of right • If amendment not a matter of

right

Within 15 days Within 10 days from notice of the order admitting the same

Please see comments of Rule 10, Sec 2. Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or cross-claim must be answered within ten (l0) days from service. In response to a counterclaim and cross-claim


Sec. 5. Answer to third (fourth, etc.)- party complaint. The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint. In response to a third-party complaint (Rule 11, Sec 5)

Within 15 days

Sec. 6. Reply. A reply may be filed within ten (l0) days from service of the pleading responded to. Response to an answer Within 10 days from service If in response to a amended or supplemental answer

Within 10 days from notice of order

Sec. 7. Answer to supplemental complaint. A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. In response to a supplemental complaint (Rule 11, Sec 7)

Within 10 days from notice of the order admitting the same, unless a different period is fixed by the court

Sec. 8. Existing counterclaim or cross-claim. A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein.



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• An existing compulsory counterclaim or cross-claim should be included in the answer. • If not, it shall be barred unless with leave of court, it is set up in an amended answer before

judgment. Sec. 9. Counterclaim or cross-claim arising after answer. A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. • This is an instance of a supplemental answer. • It must be done with leave of court and before judgment.

Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. • This is an instance of an amended answer. • It must be done with leave of court and before judgment. Sec. 11. Extension of time to plead. Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. • When should a motion for extension of the time to plead be filed?

o Before the expiration of the time sought to be extended. • What if the last day of the period for filing a pleading falls on a weekend or legal holiday?

o You file it on the next working day. BUT Any extension of time to file the same should be counted from the expiration

of the period regardless of the fact that said due date is a Saturday, Sunday or legal holiday.

• What if you weren’t able to file your pleading on time? o File a motion for leave to file a pleading or motion, along with the pleading or motion

sought to be admitted. (Rule 15, Sec 9)

RULE 12 BILL OF PARTICULARS Section 1. When applied for; purpose. Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. • Why do you apply for a bill of particulars?

o To prepare properly for one’s responsive pleading when the other party has not averred with sufficient definiteness or particularity any matter.

o You only move for a bill of particulars when what’s ambiguous are the material allegations/essential acts or omissions

o The matters sought to be obtained should be the ultimate facts • When should you move for one?

o Before responding to a pleading (either a complaint or an answer) o If the bill of particulars is to clarify a reply, 10 days from service thereof.

A motion for bill of particulars becomes moot and academic where, prior to its filing, the defendant has already filed his answer and several other pleadings. (Baritua v Mercader)

• What should it point out? o The defects complained of, and o The paragraphs wherein they are contained, and o The details desired.

Basically, IDENTIFY the defects and INDICATE the details required



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• But if alleged is fraud or defect, don’t go for a Bill of Particulars, just answer it. Tinuruan mo pa yung kalaban! – Atty. Tranquil

• Golden nugget of knowledge: A Bill of Particulars is also available in criminal cases. (Rule 116, Section 9).

• Chicken nugget of knowledge: A BOP is NOT available in Intra-Corporate Controversies. It is a prohibited pleading. (Reyes v RTC of Makati, 2008, wherein a BOP filed to specify fraudulent acts was not granted)

• Knorr nugget of knowledge: In cases for the recovery of ill-gotten wealth, a motion for BOP, not a MTD) is a remedy for the perceived vagueness or ambiguities in the complaints. (Republic v Sandiganbayan, 2007, where allegations like “in flagrant breach of public trust,” “unjust enrichment,” “embarked upon a systematic plan to accumulate ill-gotten wealth,” etc were cited as ambiguous.)

Sec. 2. Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard. • The court can actually deny or grant the Bill of Particulars OUTRIGHT. Sec. 3. Compliance with order. If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (l0) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. • If the motion is granted, when should it be complied with?

o The adverse party must comply within 10 days from notice of order. Unless the court orders otherwise.

• How do you file the bill of particulars? o It can be filed either in:

Separate pleading, or In an amended pleading.

Sec. 4. Effect of non-compliance. If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. • What if the order is not obeyed?

o The court may order the striking out of the pleading or the portions thereof. o Dismiss the case based on non-compliance with a court order. (Rule 17, Sec 3)

Sec. 5. Stay of period to file responsive pleading. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. After service of the bill of particulars, or after notice of denial of one’s motion for a bill of particulars (Rule 12, Sec 5)

Within the period remaining to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event, counted from the service of the bill of particulars or amended pleading

The filing of a motion of a bill of particulars suspends the running of the period to file an answer or a motion to dismiss.

It is resumed upon the amended complaint being filed in compliance with the court’s order granting the motion for a bill of particulars or when the movant is notified of the bill’s denial.

o If the party fails to file an answer in the time remaining, he will be declared in default. Sec. 6. Bill a part of pleading.



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A bill of particulars becomes part of the pleading for which it is intended.

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS 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. Sec. 2. Filing and service, defined. Filing is the act of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. • 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.

Sec. 3. Manner of filing. The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. • What are the two ways of filing?

o Personally handing it to the clerk of court The clerk of court shall endorse in the pleading the date and hour of filing.

• Stamped, dated and signed by the clerk of court. Proof: if the pleading is found in the records of the court;

• If it does not appear, present the received copy (see Sec 12) o By registered mail

The date of the mailing as shown by the post office stamp on the envelope or the registry receipt shall be considered as the date of their filing, payment, or deposit in court

Proof: (see Sec 12) • Registry receipt • Affidavit of the person mailing • Return card

• What if I had my papers sent by a private courier? o In such cases, the actual receipt by the clerk of court, and not the private courier is the

date counted for filing. • No filing by ordinary mail.

o Because there is no way the court can find out when you filed it. NOTE: But there can be service by ordinary mail.



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Sec. 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. • What has to be filed and served:

o Every Judgment Resolution Order Pleading subsequent ot the complaint 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.

Sec. 6. Personal service. Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. • How can papers be personally served?

o By delivering personally a copy to the party or his counsel, or o By leaving it in his office with his clerk or with a person having charge thereof. o If no person is found in his office, or his office is not known, then by leaving the copy,

between 8-6, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein.

• Atty Tranquil: As long as the party is represented by counsel, service should be made to the counsel of record, not to the party.

o Hence, service made to a security guard of the building where the law office is located is not proper service.

Sec. 7. Service by mail.



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Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (l0) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. • What about service by mail?

o By registered mail Depositing the copy in the post office In a sealed envelope 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. Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. • If all else fails, what do we do to serve papers?

o Substituted service to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.

o Remember: no substituted service for judgments, final orders or resolutions. • Can you post an order in a wall?

o No. This happened in FEU-NRMF v FEU-NRMFEA-AFW, 2006, wherein the assumption order of the Labor Sec was merely posted in the wall. Such posting is not prescribed by the NLRC rules or the ROC.

Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. • How do you serve judgments, final orders or resolutions?

o Personally So this includes leaving it in the office with the lawyer’s clerk or a person having

charge thereof (Topacio v Banco Filipino, 2010 and Section 6) o By registered mail o Publication (if summoned by publication)

• Subpoenas do not go under this rule. It’s covered by Rule 13. • Judgment not final until validly served. (Topacio v Banco Filipino) • Compare with service of papers, which can be served:

o Personally o By registered mail o By ordinary mail o Substituted service

Sec. 10. Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. • When is service completed?

o If personal service, upon actual delivery o If by ordinary mail, upon the expiration of 10 days after mailing, unless the court

otherwise provides



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o If by registered mail, complete upon actual receipt by the addressee (as seen in the registry return card) or after 5 days from the date he received the first notice of the postmaster

(constructive service), whichever is earlier. • Presupposes that the addressee has actually received the mail on said

date. If he didn’t, then the presumption cannot apply. • Service at the old address of counsel of record is valid. He did not inform the court that he moved

addresses. (Ethics case!)

Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed. • GR: In both filing and service, the priority is personal service.

o EXCEPT: Papers emanating from the court (no need for explanation) With sufficient explanation by the party, if by registered mail

• Important: If you don’t comply, it’s as if the pleading was not filed. o Seen in Domingo v CA, 2010

• If not served or filed personally, how’s that? o There must be a written explanation why the service or filing was not done personally.

• Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. • How is filing proved?

o By the existence in the record of the case, o If not, and by personally, by the written or stamped acknowledgment of its filing by the

clerk of court on a copy of the same o If by registered mail,

by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of

the important details, and by the return card.

Sec. 13. Proof of service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. • How is service proved?

o If personal service, then by: Written admission of the party served, or Affidavit of the party serving, or (when other party refuses to accept the pleading) The official return of the server, (applies when served by court)

• containing a full statement of the date, place and manner of service. o If by ordinary mail, then by affidavit of the person mailing of facts showing compliance

with section 7 of this rule o If by registered mail, by:

Registry receipt



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Affidavit of the person mailing the pleading containing a full statement of the date, place, and manner of service

Return card • If unclaimed, file the:

o Return card o The unclaimed document o Certification by the post office

o If the service is by registered mail, the affidavit should be by the person who actually mailed the pleading. (Romulo v Peralta, 2007, wherein the SC said there was improper service because the affidavit was not by the person who actually mailed it, but was by the person who made utos for it to be mailed)

o On the registry receipt, the receipt must indicate that the mail is a copy of the pleading, decision, etc.

Actual knowledge of a decision cannot be attributed to the addressee of a registered matter where there is no showing that the registry notice itself contains any indication that the registered matter is a copy of the decision or that the registry notice refers to the case being ventilated. (Romulo v Peralta)

Sec. 14. Notice of lis pendens. In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. • Notice of lis pendens can be annotated:

o In an action involving right, title, or interest over real property • GR: the only instances where a notice of lis pendens may be availed of are as follows:

o Action to recover possession of real estate o An action for judicial partition o An action to remove clouds thereon o An action to quiet title o Any other court proceedings that directly affect the title to the land or the building thereon

or the use or the occupation thereof o Establish a right to, or an equitable estate or interest in, a specific real property o To enforce a lien, a charge or an encumbrance against it (Atlantic Erectors v Herbal Cove,

2003 and Heirs of Lopez v Enriquez) • Lis pendens has NO application in the following cases:

o Preliminary attachments o Proceedings for the probate of wills o Levies on execution o Proceedings for administration of estate of deceased persons, and o Proceedings in which the only object is the recovery of a money judgment (Heirs of Lopez)

• The real property must be DIRECTLY affected, not merely incidental (Atlantic Erectors, wherein the construction company wanted lis pendens in a case where they wanted payment for their services (sum of money case). SC said the company was wrong)

• A notice of lis pendens concerns litigation between a transferor and a third party, where the transferee who acquires land with a notice of lis pendens annotated on the corresponding title stands in the shoes of his predecessor and in which case the transferee’s title is subject to the results of the pending litigation. (Vicente v Avera, 2009, the notice annotated in a declaration of nullity of marriage did not affect the title of the Vicente’s who were not in any way bound by the marriage case. Read original, hard to digest in one sentence.)

• A notice of lis pendens is NOT a lien on the property subject of the notice. • No need for court approval to effect a notice of lis pendens.



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o All you need to send is a memorandum or letter, attaching the complaint, to the RD • When do you need court approval with stuff involving a notice of lis pendens?

o When you intend to cancel the notice, on the following grounds: The purpose was to molest other party There was no need for the notice to protect the rights of the parties who caused it

o The trial court has the inherent power to cancel a notice of lis pendens. • Important: notice of lis pendens only applies to judicial cases, not quasi-judical cases. (Heirs of

Lopez) • Movants are not entitled to file a notice of lis pendens. (Heirs of lOpez v Enriquez) • A notice must contain:

o A statement of the institution of an action or proceeding o The court where the same is pending, o The date of its institution o The reference to the number of the certification of title, description of the land, and

registered owner RULE 14 SUMMONS Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. • What is a summons anyway?

o It’s a mode, writ, process, notice, or warning the service of which confers jurisdiction to the court over the person of the defendant.

o It is a writ by which the defendant is notified of the action brought against him or her. (Sansio v Mogol, 2009)

• If the defendant is not summoned or has not volunatily appeared, judgment against him is void. o You’ve been served! What up.

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. • What does the summons contain?

o The name of the court and the names of the parties to the action; o A direction that the defendant answer within the time fixed by these Rules; o A notice that unless the defendant so answers, plaintiff will take judgment by default and

may be granted the relief applied for. o 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 • What if an additional defendant is joined?

o He must be served with summons as if he were an original party defendant. Except:

• In substitution of an administrator or one’s heirs to a deceased party (service of order of substitution is sufficient)

• • When should service of new summons be done with an amended complaint?

o If a new cause of action is alleged in an amended complaint before the defendant has appeared in court, another summons must be served on the him with the amended complaint.

o If the defendant is in default as to the original complaint, and an amended complaint is filed while such default exists, a new summons (with regard to the amended complaint) must be filed.

o Basically, when the defendant has yet to appear in court, a new summons must be filed with an amended complaint.



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• 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. 3. By whom served. The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. • Who must serve the summons?

o The sheriff o His deputy o Other proper court officer, or o For justifiable reasons, by any suitable person authorized by the court

• Service by other than those enumerated in Section 3 is invalid. • Within how many days should court issue summons? See guidelines on pretrial.

o Within one day from receipt of the complaint. 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. Sec. 5. Issuance of alias summons. If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. • If the original summons has been lost or the original summons was returned to court unserved,

the plaintiff may demand for an alias summons. • An alias summons has no limit. • If the defendant files a MTD based on lack of jurisdiction over the person, can the court order

motu propio the issuance of an alias summons? o Yes! It’s not GADLEJ. (Philam Life case cited by Atty. Tranquil) o Court said the case can be refiled anyway, so issuance of an alias summons ok.

Sec. 6. Service in person on defendant. Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. • Personal service is the PRIORITY. • How is personal service of summons made?

o By handing a copy to the defendant in person, or o If he refuses to receive and sign for it, by tendering it to him.

Take note: the “tender way” of serving summons only applies to PERSONAL service, it does not apply to substituted service.

• You can serve summons personally WHEREVER the defendant is found in the Philippines. (Sansio Philippines v Mogol, wherein the summons was served to the defendants in court, and was deemed accepted when their lawyer accepted and read the summons in front of his clients. By the lawyer’s receipt of the summons and the copy of the complaint, the act of “handing” a copy of the summons was complete.)

o So you can serve it to him while he’s playing basketball or while he’s running away or while he’s taking a bath.

o Summons need NOT be served in the residence of the defendants. (Sansio v Mogol) o However, it’s not a worldwide thing, you can only serve summons within the Philippines.

Sec. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or



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(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 30th 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: o Does he or she reside therein? o Is he or she of suitable age or discretion?

These details must also be written specifically in the return. (Manotoc) o If in the defendant’s office or regular place of business, to a competent person in charge.



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Must be the one managing the office or business of the defendant (like the president or the manager), and

Must have sufficient knowledge to understand the obligation of the defendant in the summons

• Can a middle manager the same rank as Mr. X receive summons for Mr. X? o He must be in charge of receiving summons in the office.

• Can you tender in substituted service? o No.

Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. • How can summons be served upon entities without juridical personalities?

o By serving either: Upon any one of them, or Upon the person in charge of the office or place of business maintained in such

name o Such service shall not bind any person whose connection with the entity has, upon due

notice, been severed before the action was brought. Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. • How can summons be served upon prisoners in a jail or institution?

o It shall be effected upon him by the officer having the management of such jail or institution

o The officer is deemed deputized as a s special sheriff Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. • How can summons be served upon a minor, insane or incompetent?

o By serving upon: Him, personally, and His legal guardian, if he has, or

• A guardian ad litem who shall be applied for by the plaintiff If a minor, service may also be made on his father or mother

Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. • How can summons be served upon a domestic juridical entity?

o By serving upon: The president Managing partner General manager Corporate secretary Treasurer, or 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.



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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.

SEC. 12. Service upon foreign private juridical entity. — When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means: a) By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs; b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by-registered mail at the last known address of the defendant; c) By facsimile or any recognized electronic means that could generate proof of service; or d) By such other means as the court may in its discretion direct. (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.

Sec. 13. Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. • How can summons be served upon public corporations?

o If the defendant is the Republic of the Philippines, on the Sol Gen; o In case of a province, city or municipality or like public corportations, on its executive

head or such other officer/officers as the law or the court may direct



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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) Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. • Sec 15 will apply when the case is against a defendant who does not reside in the Philippines AND

is not found here either. • When can extraterritorial summons be made?

o When the defendant does not reside and is not found in the Philippines, and o The action affects:

The personal status of the plaintiff, or Any property of said defendant located in the Philippines

• Property is attached • Where defendant has actual or contingent interest over the property

• How can service of summons on a nonresident not found in the Philippines be done? o By personal service outside the country with leave of court, or o By publication in a newspaper of general circulation in such places and for such time as

the court may order AND a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, (both must concur! Important!) or

o In any other manner that the court may deem sufficient • Important: Take note that there is no substituted service to a non-resident. (compare with Sec

16) o Except if there is a resident spouse who was previously appointed as attorney-in-fact. (GT

notes, don’t know the basis) • Service of summons in the manner provided in this section is not for the purpose of vesting it with

jurisdiction over the person of the defendant but for complying with the requirement of fair play or due process, so that he will be informed of the pendency of the action against him.

• This was seen in Acance v CA (2005), wherein the SC held that the service of summons by publication was defective because:

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)

Sec. 16. Residents temporarily out of the Philippines.



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When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. • You use this when the defendant is a resident but is TEMPORARILY absent from the Philippines. • How do you serve summons to a resident temporarily out of the Philippines?

o Same as Sec 15, or o Substituted service, if there is impossibility and there are earnest efforts to serve. (Palma

v Galvez, 2010, wherein summons was served to the defendant’s husband while the defendant was abroad. This was valid.)

• Take note that the section uses “may”, so resorting to Sec 15 is not mandatory before going for substituted service. (Palma v Galvez)

Sec 14 Sec 15 Sec 16 To whom: Unknown defendant,

unknown whereabouts Does not reside and not found in the Philippines

Resident temporarily abroad

Modes: Publication, (no need for personal service, no need for service via registered mail to last address)

Personal service with leave of court, Publication AND registered mail to last address, Other means

Personal service with leave of court, Publication AND registered mail to last address, Substituted service, Other means

Substituted service X X Yez! Registered mail requirement

X Yez! Opoez!

Sec. 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. • How do you prove service of summons?

o In writing by the server, setting forth the manner, place and date of service o It should also specify any papers which have been served with the process and the name

of the person who received it o Needs to be sworn to when made by a person other than a sheriff or deputy o Sheriffs or deputies need not swear since it’s part of their official duties

• Basically, prove it by the sheriff’s return. • What’s the importance of the sheriff return?

o Starts the counting for the period to file an answer o Determines if there’s proper service of summons

Sec. 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. • How do you prove service of summons by publication? • By two affidavits.

o By an affidavit of



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• 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 Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. • Voluntary appearance is not equivalent to summons, but if there is voluntary appearance,

summons can be dispensed with. • Is the assertion of an affirmative defense/s a waiver of the defense of lack of jurisdiction over the

person? o No.

But lack of jd over the person must be seasonably raised, lest the person be estopped. Hence, you can assert other grounds – just make sure you also raise lack of jd over the person.

o Filing of answer without objection is voluntary appearance. o Filing of motion for extension of time to file answer is voluntary appearance.

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. 2. Motions must be in writing. All motions shall be in writing except those made in open court or in the course of a hearing or trial. 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 o A motion for setting aside a judgment by default must be accompanied by an affidavit of

merit (to prove that there is a meritorious defense) • When are they not necessary?

o When the grounds upon which the motion is based can be found in the record Sec. 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by



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the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. • What must be done with the notice of hearing?

o All litigated hearings shall be set for hearing by the applicant and, o Shall be served together with the notice of hearing in such a manner as to insure receipt

by the other party at least three days before he date of hearing. o You need notice of hearing and proof of service.

Served AND received by the other party 3 days before the hearing. • You serve the notice of hearing to the other party.

o But also give notice to the clerk of court because he schedules the hearing. • The absence of a notice of hearing makes the motion a MERE scrap of paper.

o Implication: the reglementary period keeps running. • What motions can be acted upon without hearing?

o Ex parte motions like motion for extension of time to file pleadings, motion for extension of time to file an answer, preliminary attachment (yes, it will adversely affect the other party, but to require a hearing for this will defeat the purpose of the motion. Baka tumakas lang yung other party)

o These can be acted upon immediately without prejudice to the adverse pary • What motions should have a hearing?

o Litigated motions, like motion for reconsideration, motion to set aside order of default, preliminary injunction, temporary restraining order (with exceptions)

o These will substantially affect the adverse party • Atty Tranquil: It is the court who will conclude whether a motion is a litigious one or not, so just

put a notice of hearing on ALL motions. o As long as in the trial court (either original or appellate capacity), you need a notice of

hearing. • Do you need notice of hearing in appellate courts?

o No. See Rule 49 and Rule 56. o If you put pa, superfluous lang yan.

• How do you attack a court order arising from a motion? o If it’s a final order (like an order granting a motion to dismiss, judgment on the pleadings,

demurrer, summary judgment), your remedy is by appeal. o If it’s interlocutory (like an order not granting a motion to dismiss), your remedy is by

certiorari under rule 65. • The 3-day notice rule, however, is NOT absolute. A liberal construction is proper where the lapse

in the literal observance of the rule has not prejudiced the adverse party. (Presyler v Manila Southcoast, 2010, where the respondent received the notice of hearing after the scheduled hearing, but it did not prejudice him since the hearing was reset 3 time with due notice to both parties).

o Why? Since the 3-day notice rule is for fair play and to allow the other party a chance to prepare for the questions raised by the motion.

• Give an example of a motion which doesn’t follow the 3-day rule? o Motion for summary judgment: must be served 10 days before the hearing42

Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. • When should the date of the hearing be set?

o Not later than 10 days after the filing of the motion. The 10-day “no later” rule is mandatory to prevent dilatory tactics by the movant.

(Bacelonia v CA, 2010) o You file for it Dec 6, the last day that you can set the hearing is on Dec 16.

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.



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• When should notice be given to the other party? o It should be served three days before the motion day at the latest. o Count backwards!

• Basically, notice should be received by the other party 3 days before the hearing which should be set not later than 10 days after the filing of the motion.

• The ordinary motion day is on a Friday. o When should the notice be served to the other party?

It should be served by Tuesday at the latest. o If you want to send the notice by ordinary mail, when should you do it? Ten days before

Tuesday. (or prove that it was received on Tuesday) o If you want to send the notice by registered mail, when should you do it? It should

actually be received by Tuesday, or if not claimed from the post office, the date of the first notice of the postmaster should be at least 5 days before Tuesday.

Sec. 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof. • What is the effect of lack of notice and proof of service?

• It is nothing but a piece of paper filed with the court. It’s scrap. • Legal implication is that it does not toll the running of the period of appeal

Sec. 7. Motion day. Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. • Friday afternoon is the designated motion day.

o If it is a holiday, set on the next working day. • It is MANDATORY on the courts because of SC Circular passed in 2008.

Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. • Omnibus motion rule: include all grounds available, or else, it is deemed waived.

o EXCEPT: Lack of jd over subject matter Res judicata Litis pendentia prescription

Sec. 9. Motion for leave. A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. Sec. 10. Form. The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. • Do you need a certification for non-forum shopping in motions?

o No. It’s not an initiatory pleading. • When is a motion “pro forma”?

o When there is FAILURE to Serve a copy to the other party Include a notice of hearing Conform with the 3-day notice rule Conform with the 10-day rule

RULE 16 MOTION TO DISMISS Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party;



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(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 ventilation of the issues between the parties. (UCPB v Beluso, 2007)

o Res judicata Requisites:

• Final judgment • By a court having jurisdiction of the subject matter of the parties • Must be on the merits (with trial, considering the evidence. Exception

would be judgment on the pleadings, order of dismissal – these are still res judicata)

• Same parties, subject matter and cause of action o Prescription43

43



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o Pleading asserting the claim states no cause of action (PACS-COA) Does not go into the falsity or truthfulness of the claim Pleading, on its face, does not appear to state a COA Ground is also invoked when a party is not the RPI (Strongworld Construction v

Perello, 2006, where individual who brought suit was not authorized by the corporation to file a case in its behalf)

What’s the test to determine if the complaint fails to state a cause of action? • Ask: hypothetically admitting the facts alleged, can the court render a

valid judgment in accordance with the relief prayed for? • This must be determined from the allegations of fact in the complaint

alone. • This is the only ground of a motion to dismiss which must appear on the

face of the complaint. When will the court not “admit allegations as true”? (exceptions to the

hypothetical admission of allegations) • When there is judicial notice of the falsity • When it’s legally impossible • When the facts are inadmissible in evidence • When the facts are unfounded, as appearing in the record or document in

the pleading • There is evidence which has been presented to the court by stipulation of

the parties or in the course of the hearings related to the case o See Heirs of Loreto Maramag v Maramag (2009) wherein the SC

used the exceptions since it was an insurance case and the heirs were not beneficiaries, so under the Insurance Code, they couldn’t recover even if the facts alleged were deemed hypothetically admitted)

Important: What’s the difference between no cause of action and PACS-COA? • Use the former in the answer as a defense or as a demurrer.

o But if used as a demurrer (Rule 33), it must be filed after the plaintiff has presented evidence and rested its case. (Manila Banking v Uni of Baguio, 2007, wherein the uni filed a MTD after it filed an answer but before the plaintiff rested its case. So it wasn’t a Sec 16 MTD nor a demurrer.)

Ground for demurrer: insufficiency of evidence • 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)

Real actions over immovables 30 years (but if acquired with good faith and

just title, only 10 years to acquire ownership) Real actions over movables 8 years (but if acquired with good faith and

just title, only 4 years to acquire ownership) Mortgage action 10 years Written contract Obligation created by law Judgment

10 years

Oral contract Quasi-contract

6 years

Injury to the rights of the plaintiff Quasi-delict

4 years

Forcible entry Unlawful detainer defamation

1 year

All others not fixed by other laws 5 years



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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) Sec. 2. Hearing of motion. At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. • Evidence presented during the MTD hearing is automatically part of the evidence of the party

presenting the same. Sec. 3. Resolution of motion. After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. • The court is limited to three actions, in resolving a motion:

o Dismiss the action or claim, o Deny the motion, or o Order the amendment of the pleading

But remember the Phil-am case, where the SC allowed the TC’s action of issuing an alias summons, stating that no GADLEJ in this case.

• What are your remedies? o If it was denied, you have two remedies:

by certiorari under rule 65, • But take note that even if there is a pending petition for certiorari, the

main proceedings will NOT be suspended unless you obtain a TRO. • No more judicial courtesy.

or The ordinary procedure to be followed is to file an answer and interpose as

defenses the objections raised in the motion, proceed to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment.

Sec. 4. Time to plead. If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. If denied Within the balance of the

period to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event (similar to Bill of Particulars)

If ordered by the court to be amended (new period! YEAY!) Matter of right Not a matter of right

15 days 10 days from service of amended pleading



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• Fresh period rule does NOT apply to MTD. It applies to MR. (Neypes) Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. • What’s the effect of dismissal on the ground of failure to state a cause of action?

o A complaint should not be dismissed for failure to state a cause of action if the defect may be corrected by amendment.

o But, if the plaintiff cannot or does not amend the complaint, the dismissal operates as an adjudication upon the merits, unless, otherwise ordered by the court. (Failure to Comply with order of court, Rule 17, Sec 3)

o A dismissal because the cause of action had not yet accrued at the time the complaint was filed is not a bar to a subsequent action after the cause of action accrues.

Sec. 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. • What happens if no motion to dismiss was filed, can I raise the grounds as an affirmative defense

in the answer? o Yes. o A preliminary hearing may be had thereon as if a motion of dismiss had been filed.

Up to the court if it wants a preliminary hearing. • So the defendant should file a motion to set a preliminary hearing.

“As if a MTD” makes it seem that an answer can be treated as a MTD. o If a MTD had been previously filed, you can’t ask for a preliminary hearing anymore since

that was already done. You can still use the grounds as affirmative defenses though. o The reason for this new rule is that when the court issues summons, it persuades the

parties not to file an MTD, but to file an answer with an affirmative defense. (MTDs are usually filed to delay kasi)

The court attitude is that issues will be joined in an answer and pre-trial comes where parties can compromise.

• If I have a compulsory counterclaim, should I file a motion to dismiss? o No. o I should allege the grounds of the motion to dismiss as affirmative defenses in my answer

and allege the compulsory counterclaim. o A preliminary hearing may be held and in the event the complaint is dismissed, the

defendant can prosecute his counterclaim. o The codal provides that the dismissal of the complaint is without prejudice to the

prosecution of said counterclaim in the same or separate action. o If I file a motion to dismiss, and the grounds then available were not alleged, they will be

deemed waived, subject to a few exceptions. (Omnibus Motion rule) RULE 17 DISMISSAL OF ACTIONS Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. • 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?



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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. Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. • What happens if there has already been an answer?

o Plaintiff can only dismiss via a motion. This can be done at any stage of the proceedings other than before service of an

answer or a motion for summary judgment. (Limaco v Shonan Gakuen) o An order of the court is necessary upon such terms and conditions as the court deems

proper. o The dismissal under this section is without prejudice unless otherwise specified in the

order of the court. • What if there’s a counterclaim?

o It does NOT get dismissed. The dismissal shall be limited to the complaint. (Pinga v Heirs of Santiago, 2006)44

It covers BOTH permissive and compulsory counterclaims. o The defendant can still prosecute his counterclaim in a separate action, unless within 15

days from notice of the motion, he manifests his preference to have his counterclaim resolved in the same action.

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. • When will the dismissal due to the plaintiff be with prejudice?

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.

Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.

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)



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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 Section 1. When conducted. After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. • What does last pleading mean?

o The answer, or the reply, depending on the case • When must the plaintiff move for pre-trial?

o 2004 Guidelines say that it must be set within 5 days after the last pleading has been filed.45

o If the plaintiff fails to move for pre-trial, it is the duty of the clerk of court to issue a notice of pre-trial.

Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider: (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability or necessity of suspending the proceedings; and (i) Such other matters as may aid in the prompt disposition of the action. • What’re the purposes of pre-trial?

o Amicable settlement o Expedite proceedings

• 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. 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. 46 At the start of the pre-trial conference, the judge shall immediately refer the parties and/or their counsel if authorized by their clients to the PMC mediation unit for purposes of mediation if available. If mediation fails, the judge will schedule the continuance of the pre-trial conference. 47 Before the continuance, the Judge may refer the case to the Branch COC for a preliminary conference to assist the parties in reaching a settlement, to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider such other matters as may aid in its prompt disposition



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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 Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. • Notice is served:

o On the counsel, o If no counsel, on the party

• It is incumbent on the lawyer to advise his client about a scheduled pre-trial, and the former’s failure to do so constitutes negligence which binds the latter. (Diaz v CA, 2006)

• There are two dates in the notice: o Date of preliminary conference o Date of pre-trial itself

Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. • Who has to go to the pre-trial?

o The parties, and o Their counsel

• A representative can go but he needs a written SPA authorizing him to: o Enter into an amicable settlement,

48 Before the continuation of the pre-trial conference, the judge must study all the pleadings of the case, and determine the issues thereof and the respective positions of the parties thereon to enable him to intelligently steer the parties toward a possible amicable settlement of the case, or, at the very least, to help reduce and limit the issues. The judge should not allow the termination of pre-trial simply because of the manifestation of the parties that they cannot settle the case. He should expose the parties to the advantages of pre-trial. He must also be mindful that there are other important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case.7 The Judge with all tact, patience, impartiality and with due regard to the rights of the parties shall endeavor to persuade them to arrive at a settlement of the dispute



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o Submit to alternative modes of dispute resolution o Enter into stipulations or admissions of facts and documents

Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. • What if the plaintiff doesn’t show up?

o Case dismissed with prejudice, unless otherwise ordered by the court. • What if the defendant doesn’t show up?

o Plaintiff may be allowed to present his evidence ex parte. o The defendant is not in default as he already filed an answer. o Seen in Alcaraz v CA (2006), where the defendant and his lawyer did not appear during

pre-trial. Court said that even if they were sick, it was not an excuse because there was no medical certificate (so it wasn’t justified) and the lawyer could have been replaced by other lawyers in his firm.

o Inasmuch as the defendant has filed an answer, the plaintiff may utilize admissions made by the defendant in his answer.

Compare: In ejectment cases (rule 70), failure of defendant to show up in the preliminary conference will allow judgment to be rendered immediately.49

• What if the client is present, but the lawyer isn’t there? o No adverse effect. o Lawyer to be reprimanded.

• What if the lawyer is the attorney-at-fact of the plaintiff also, and he didn’t attend pre-trial? o Dismissed with prejudice..

Sec. 6. Pre-trial brief. The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purpose thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and the substance of their respective testimonies. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. • What is the effect of failure to file the pre-trial brief?

o Same as failure to appear at the pre-trial. Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and

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.



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limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. • The pre-trial order is the bible of the trial. It:

o Binds the parties o Limits the trial to matters not disposed of o Controls the course of action during trial

• The judge will issue it within 10 days from the end of pre-trial. o Or, the judge can dictate the pre-trial order in open court in the presence of the parties

and their counsel. It will be printed and given to them afterward.50 • Difference between criminal and civil pre-trial:

o If prosecution is absent, pre-trial will be re-scheduled. o If accused is absent, prosecution cannot present evidence ex-parte because it will violate

the accused person’s right to confront witness. Accused will either be arrested to compel him to appear or bail will be forfeited.

o If private complainant absent, no dismissal of case since he is merely a complaining witness UNLESS there is repeated absence on his/her part.

o The only similarity is that when the counsel is absent, he will be sanctioned. o For admissions of the accused to be taken against him, it must be in writing and signed,

by both the accused and his counsel.51 No similar provision in civil cases.

• Judicial dispute resolution (AM 04-01-12-SC) o There is now JDR in Makati and in Manila. o Who is a JDR judge?

He is the one who acts as a mediator, conciliator, and independent evaluator in the stage between the filing of the complaint and before pre-trial.

Unless the parties consent to continue with the JDR judge, it is mandatory that there will be a new raffle – and the new judge who will hear, try, and decide the case is the trial judge.

RULE 19 INTERVENTION Section 1. Who may intervene. A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. • 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

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.



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• 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) – 3rd party claimant can intervene o Rule 39, Sec 16 – can no longer vindicate in same action, as there was final judgment

already

Sec. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. • Intervention can be done AT ANY TIME before rendition of judgment by the TRIAL COURT. • No provision on intervention in appellate courts. So, appellate courts can allow intervention in

their sound discretion. • After judgment, can there still be intervention?

o GR: No. EXCEPT if indispensable party, the court may allow intervention even after

judgment. (Looyuko v CA, 2001, wherein junior creditors were NOT allowed to intervene in a decided foreclosure case because they were not indispensable parties)

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. Sec. 4. Answer to complaint-in-intervention. The answer to the complaint-in -intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. RULE 20 CALENDAR OF CASES Section 1. Calendar of cases. The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. Sec. 2. Assignment of cases. The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. RULE 21 SUBPOENA



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Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. • Ad testificandum: appear and testify • Duces tecum: appear and bring with him the documents or things

o Person with the documents must appear too. He just can’t mail the things or documents. Sec. 2. By whom issued. The subpoena may be issued by: a) the court before whom the witness is required to attend; b) the court of the place where the deposition is to be taken; c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court. • Who can issue a subpoena?

o The court where witness must attend o Court where deposition is taken o Officer/body authorized by law in connection with investigations conducted by officer/body

OMB can issue a subpoena NBI also Office of the prosecutor also (see Rule 112, Sec 3)

• Except in BP22 cases (not sure why, but Atty Tranquil said so) o SC/CA justice in any case or investigation pending within the Philippines

• Can a clerk of court issue a subpoena? o Ad testificandum: yes, as long as there is a pending case. o Duces tecum: yes, as long as there is a pending case and there is a court order to do so.

• A clerk of court can not issue a subpoena in the absence of a judicial action/case, no matter his good intentions. (Collado v Bravo, 2011)

• Can judge issue a subpoena to a convict? o Yes. But it must be for a valid purpose. o For those under death/RP/life, SC must authorize the appearance

• If court fails to issue a subpoena, file Rule 65 GADLEJ. Sec. 3. Form and contents. A subpoena shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. • Requisites for issuance of subpoenas duces tecum:

o Test of relevancy: the things requested must appear prima facie relevant to the issue subject of the controversy

Seen in Roco v Contreras (2005) wherein documents sought to prove payment were deemed irrelevant in a BP22 case, so subpoena for such was queashed

o Test of definiteness: such must be reasonably described by the parties to be readily identified

Sec. 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. The court may quash a subpoena ad



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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

Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court. Sec. 6. Service. Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. Sec. 7. Personal appearance in court. A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. Sec. 8. Compelling attendance. In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. Sec. 9. Contempt. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained. RULE 22 COMPUTATION OF TIME



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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. Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be excluded in the computation of the period. • Important sections! Don’t just gloss over! 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 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

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



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Sec. 2. Scope of examination. Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. • What can be the subject of the deposition?

o ANY matter, as long as not privileged, and is relevant to the subject of the pending action.

Sec. 3. Examination and cross-examination. Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; � (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (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

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.



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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)

• Sec. 5. Effect of substitution of parties. Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. Sec. 6. Objections to admissibility. Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

Sec. 7. Effect of taking depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. Sec. 8. Effect of using depositions. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of section 4 of this Rule. • Taking a deposition is different from using one.

o You are not compelled to use the deposition in court if you don’t want. If you use a deposition, the opposing lawyer can cross-examine on the deposition

again, so it’s a matter of need and strategy. • If you use the deposition of a deponent, the deponent becomes your witness.

o Unless it’s for the purpose of contradicting or impeaching.

Sec. 9. Rebutting deposition. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. Sec. 10. Persons before whom depositions may be taken within the Philippines. Within the Philippines, depositions may be taken before any judge, notary public, or the person referred to in section 14 hereof. • In the Philippines, who can take depostions?

o Any judge o Notary public, or o Person authorized to administer oaths stipulated and agreed upon in writing by the parties

Sec. 11. Persons before whom depositions may be taken in foreign countries. In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) the person referred to in section 14 hereof. • Abroad, who can take depositions?

o Secretary of an embassy/legation, consul general, consul, vice-consul or consular agent o Such person or officer as appointed by a commission or under letters rogatory, or



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o Person authorized to administer oaths stipulated and agreed upon in writing by the parties

Sec. 12. Commission or letters rogatory. A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. • Commission: issued by the court as a directive to an official of the Philippines, authorizing him to

take the deposition of the witness o Taken in accordance with the rules of the court issuing the commission

• Letters rogatory: requests to foreign tribunals to give its aid in securing the desired information o Taken in accordance with the rules of the foreign jd

• See Dulay v Dulay, (2005), where letters rogatory were sent to Boston but was ignored, so the deposition was taken before a NY notary, who was duly certified by the Philippine Consul and under Philippine rules. It was allowed by the SC because there was no consular office in Boston and it wasn’t the fault of the respondent that the Boston court ignored the letters rogatory.

Sec. 13. Disqualification by interest. No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. • Who are disqualified to be deposition officers?

o Sixth degree of consanguinity or affinity from party or employee/counsel of party o Sixth degree of consanguinity or affinity from counsel or employee of counsel o One financially interested in the action

• Objection based on a disqualification must be raised o before the taking of the deposition, or o as soon as the dq becomes known or could be discovered with reasonable diligence.

If not, waived. Sec. 14. Stipulations regarding taking of depositions. If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions. 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. Sec. 16. Orders for the protection of parties and deponents. After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. Sec. 18. Motion to terminate or limit examination. At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is



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pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. • You use this section to oppose the taking of a deposition. But… how?

o By motion by the party or the person to be examined, and o For good cause shown.

• Under what grounds? o To protect the party or witness from annoyance, embarrassment, or oppression. o Or that what is sought is irrelevant in the action.

• These are the same grounds used in a motion to terminate or limit the examination. (Sec 18) Sec. 17. Record of examination; oath; objections. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. • Objections to the competency of a witness or the competency, relevancy, or materiality of

testimony are NOT waived, o unless the ground of the objection is one which might have been obviated or removied if

presented at that time. Sec. 19. Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. 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.



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• 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. 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.

Sec. 29. Effects of errors and irregularities in depositions. (a) As to notice.- All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (b) As to disqualification of officer.- Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. � (c) As to competency or relevancy of evidence.- Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. � (d) As to oral examination and other particulars.- Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated,



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removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. �(e) As to form of written interrogatories.- Objections to the form of written interrogatories submitted under sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized. �(f) As to manner of preparation.- Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. • GR: Objections to errors and irregularities are waivable.

o EXCEPT: objections to the competency or relevancy of evidence during the taking of the deposition. These are not waived, UNLESS the ground of the objection is one which might have been obviated or removed if presented at that time.

• Error and irregularities in terms of the preparation are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after discovery of the error.

• Can counsel object to the admissibility of a deposition if he actively cross-examined in the taking of the deposition?

o Yes. Taking is different from using. Seen in Sales v Sabino, where the objection was that the witness should testify

because she was allegedly in the country (which, in fact, she wasn’t.) Objection was to the use, not to the taking.

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. Sec. 2. Contents of petition. The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. Sec. 3. Notice and service. The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. Sec. 4. Order and examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. Sec. 5. Reference to court. For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. Sec. 6. Use of deposition. If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23.



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• Depositions before actions are also called perpetuation of testimony. • There is no pending case (kaya nga before action), so if you want to perpetuate testiomney, you

file a case for the purpose of such. • Usually availed of when the petitioner expects to be a party to an action in a court in the

Philippines but is presently unable to bring it cause it to be brought. • Where do you file it?

o Place where the expected adverse party resides. (special rule! Remember!) Sec. 7. Depositions pending appeal. If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. • Depositions pending appeal are also allowed, but when?

o Before judgment becomes final. • It is also called perpetuation of testimony. • What if pending case for certiorari, can you take a deposition pending appeal?

o Nu-huh. It ain’t an appeal, hater. Just go for Rule 23 or Rule 25.

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. 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. Sec. 3. Objections to interrogatories. Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. Sec. 4. Number of interrogatories. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. Sec. 5. Scope and use of interrogatories. Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule. 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

person! To parties, always and only to parties

How must questions be answered?

Direct, cross, re-direct and re-cross

It’s just one set of questions to be answered by the other partay



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Time to answer No fixed time to answer (depends on the officer taking the deposition)

15 days to respond 10 days to oppose

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. Sec. 2. Implied admission. Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable. Sec. 3. Effect of admission. Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. 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



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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 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. Sec. 2. Order for examination. The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.



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Sec. 3. Report of findings. If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. Sec. 4. Waiver of privilege. By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. • You can only use this mode if the mental or physical condition of the party is in controversy. • Only mode where the court can motu propio issue.

o The others, you have to apply for. • What is the consequence if the copy of the examination is given to the requesting party?

o You waive the privilege. o Because of your request, the other party can now also ask for previous or subsequent

examination. If the requesting party refuses and his physicians were allowed to testify, their

testimonies can be excluded. • By requesting an examination of the other party or by taking the deposition of the examiner, the

party examined waives any privilege he may have involving the same controversy, with respect to the testimony of anyone who has or will examine him.

• Doctor-patient privilege only applies to civil cases, not criminal. (Remember Francis Lim!) RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Section 1. Refusal to answer. If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees. �If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees. Sec. 2. Contempt of court. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court. Sec. 3. Other consequences. If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;



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(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; � (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and � (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. � Sec. 4. Expenses on refusal to admit. If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney’s fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. Sec. 5. Failure of party to attend or serve answers. If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees. Sec. 6. Expenses against the Republic of the Philippines. Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule. • 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. Sec. 2. Adjournments and postponements. A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than



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one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court.

Sec. 3. Requisites of motion to postpone trial for absence of evidence. A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to 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 • 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. Sec. 6. Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. • Can there be judgment without trial?

o Yes. When the parties agree, in writing, on the facts and submit the case on the facts agreed upon. No need for introduction of evidence.

Sec. 7. Statement of judge. During the hearing or trial of a case any statement made by the judge with reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes. Sec. 8. Suspension of actions.



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The suspension of actions shall be governed by the provisions of the Civil Code.

Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. • GR: Judge receives the evidence

o EXCEPT: clerk can receive when In default proceedings Ex parte hearings

o Like default , application of indigent, “as in” default Parties agree in writing

• Clerk however has no power to rule on objections o In default/ex parte hearings, other party is not there, so no one will object, right? Well,

clerk of court will have to note down the objection if it is clear 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.

Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. • The court can also order separate trials based on the claims. RULE 32 TRIAL BY COMMISSIONER Section 1. Reference by consent. By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an examiner. Sec. 2. Reference ordered on motion. When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein; (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; �



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(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. Sec. 3. Order of reference; powers of the commissioner. When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held before the court. • 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.

Sec. 4. Oath of commissioner. Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof. Sec. 5. Proceedings before commissioner. Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (l0) days after the date of the order of reference and shall notify the parties or their counsel. Sec. 6. Failure of parties to appear before commissioner. If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment. Sec. 7. Refusal of witness. The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a contempt of the court which appointed the commissioner. Sec. 8. Commissioner shall avoid delays. It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his report.

Sec. 9. Report of commissioner. Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his



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report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. Sec. 10. Notice to parties of the filing of report. Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (l0) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. Sec. 11. Hearing upon report. Upon the expiration of the period of ten (l0) days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court. • After the hearing on the report, the court can either:

o adopt, modify or reject the commissioner’s report in whole or in part, o recommit it with instructions, or o require parties to present further evidence before the commissioner or the court.

Sec. 12. Stipulations as to findings. When the parties stipulate that a commissioner’s findings of fact shall be final, only questions of law shall thereafter be considered. Sec. 13. Compensation of commissioner. The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. • The loser pays for the cost, unless the court apportions, as justice requires. RULE 33 DEMURRER TO EVIDENCE Section 1. Demurrer to evidence. After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. • Demurrer is also called :motion to dismiss on the ground of insufficiency of evidence.” (P v

Cachola, 2004) • When do you apply for a demurrer?

o Civ: After the plaintiff has completely presented his evidence. (after formal offer of object evidence, remember evidence!)

o Crim: After prosecution rests its case • Ground: upon the facts and the law, the plaintiff has shown no right to relief • Do you need leave of court in civil cases?

o No. How about in criminal cases, do you need leave of court?

• No as well. BUT filing without leave can lead to dire and serious consequences.

o No leave and denied: accused waives right to present evidence o With leave and denied: accused can still present evidence.

• For civil cases, what happens with a motion for dismissal on a demurrer? o If motion is denied, defendant can present evidence. o If motion is granted but on appeal the order of dismissal is reversed, defendant is deemed

to have waived the right to present evidence. The appellate court can NOT remand the case. It must rule on its merits.

(Radiowealth v del Rosario, 2000) • For both civil and criminal cases, the grant of a demurrer is considered an adjudication on the

merits of the case. What are the implications? o In civil, the losing party has to file an appeal because it’s a final disposition. o In criminal, the losing party (the People) can NOT file an appeal or file for certiorari (check

on certiorari) because the accused has already been acquitted. Double jeopardy has



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already set it. It’s OVER. (compare to civil cases, that when the demurrer is granted, the appellate court can still overturn the grant and rule on the case)

Demurrer is one of the exceptions to the general rule that dismissal by the accused will not bring about double jeopardy. The other exception is acquittal based on speedy trial.

RULE 34 JUDGMENT ON THE PLEADINGS Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. • Judgment on the pleadings can be availed of when:

o The answer fails to tender an issue, or o The answer admits the material allegations of the adverse party’s pleading

Must be done on motion of a party (the plaintiff or defendant in a counterclaim) • 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 Section 1. Summary judgment for claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. Sec. 2. Summary judgment for defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. • Summary judgment is availed of when:

o There is no genuine issue as to a material fact. • It’s available both to the claimant and the defendant.

o Claimant: after answer has been served o Defendant: any time

• GR: Summary judgment can be used in ANY action. o EXCEPT: actions for annulment of marriage or declaration of its nullity or for legal

separation (E-Land Phil v Garcia) Note: same as JOP

• Ito na! ITO NA! What’s the difference between JOP and SJ? (Wood Technology v Equitable, 2005 which was a SJ)53

o In JOP, there is no issue at all because the answer does not tender an issue or it admits the material allegations on the claim. There’s no dispute at all.

o In SJ, there is an issue, but it’s fictitious, it’s ostensible, it’s - gasp – a sham!

53 In this case, there was a PN without a due date. The plaintiff said it was due. The defendant said it wasn’t due. So there was an issue raised, so you can’t have a JOP.



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Issue apparently exist (facts are asserted in the complaint, there are denials), but the issues are sham and not genuine as shown by affidavits, depositios, or admissions.

In SJ, the court goes beyond the pleadings, as it relies on documents, papers, affidavits, and depositions.

• Important: When, however, there are genuine issues (because of DULY disputed and contested facts), no summary judgments can take place. (Eland Phil v Garcia, 2010)

o No POJ either. So it’ll go to trial. • Examples when SJ can be had:

o Declaratory relief o Liquidated sum of money or action to recover a debt

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. • 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

Sec. 5. Form of affidavits and supporting papers. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. 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 Section 1. Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court. • GR: Judgments are immutable, they cannot be modified once final and executory. (Heirs of Valdez

v CA, 2008, where two conflicting resolutions were released in the same day) o EXCEPT:

Nunc pro tunc (judgment does not speak the truth) Clerical or typo errors



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Void judgments Those that transpire after the finality which make the enforcement unjust or

inequitable Judgments which do not obtain finality – like support

• The judgment or final order must contain the facts and the legal basis. (Consing v CA, 2004, where the judge did not indicate the legal basis of the decision)

• A judgment or final can only be made by a judge who has authority or is currently sitting in the court.

o Hence, once a judge resigns or steps down, he can no longer render judgment. • Is it required that the judge who head the case be the same one who renders the decision?

o No. But the judge must personally review it.

Sec. 2. Entry of judgments and final orders. If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory.

“Final” judgment “Final and executory” One that finally disposes of a case, leaving nothing more for a court to do in respect thereto

“Final” judgment becomes “final and executory” upon expiration of the period to appeal (and no appeal perfected), or when an appeal is perfected, judgment by the appellate court is rendered and becomes final

Execution is discretionary (execution pending appeal)

Execution follows as a matter of right (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

Sec. 3. Judgment for or against one or more of several parties. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. Sec. 4. Several judgments. In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. Sec. 5. Separate judgments. When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. • Several judgment: refers to judgments when there are many parties

o Court can render judgment to one party, and go on with trial with another • Separate judgment: if there are many claims, the court can render judgment on one, and the

action proceeds with the other claims. o Classic example: expropriation (authority to expropriate and just compensation)

Also in summary judgment (judgment over one claim which has no genuine issue, other parts will be threshed out in trial)

Sec. 6. Judgment against entity without juridical personality.



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When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known. • If judgment rendered against an entity without juridical entity, it will be against the members, not

the entity itself. RULE 37 NEW TRIAL OR RECONSIDERATION 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. � ��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.

54 Does the fresh period rule apply to denial of MNT?



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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 • 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. Sec. 3. Action upon motion for new trial or reconsideration. The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. Sec. 4. Resolution of motion. A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time it is submitted for resolution. • Court has 30 days from submission to resolve the MR/MNT. • Court can grant a new trial or deny it. (MNT)

o If it grants a MNT, a trial de novo will proceed. Evidence presented may be used in the new trial without retaking. (Sec 6)

• It can also amend the judgment. (MR) Sec. 5. Second motion for new trial. A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order. • A second MNT is allowed, but only for grounds not existing nor available when the first motion was

made.

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. 56 Turtle Power!



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o It must be filed within the time provided excluding the time during which the first motion had been pending. (?)

• A second MR is NOT allowed. o Know this difference: 2nd MNT allowed; 2nd MR not allowed.

Sec. 6. Effect of granting of motion for new trial. If a new trial is granted in accordance with the provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. Sec.7. Partial new trial or reconsideration. 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. Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course. • There are two kinds of petition for relief

o From judgment, order, or other proceedings o From denial of appeal

• You file a petition for relief from judgment before the court that rendered judgment, not before the appellate court

o Distinguish from Rule 47, Rule 65 where you file with the higher court • Not sure where you file the petition for relief from denial of appeal but it seems like you file it with

the court that rendered judgment • What are the grounds?

o For both, it’s FAME.57 For denial of appeal, because of FAME, he was prevented from taking an appeal

• If lawyer forgot to file an appeal, filed late, and thus was denied. What’s his remedy? o Not petition for relief from denial of appeal because he was able to file an appeal. He was

not prevented from filing. o He should just file an MR.

• Who can file a petition for relief? (also applies to MR, MNT) o Only the parties in the proceedings. (Alaban v CA)

But take note that in an action in rem, the whole world becomes a party by reason of publication. Hence, anyone with legal interest can file a petition for relief. (Alaban v CA, 2005, which involved a probate case. SC said a probate case is a proceeding in rem, hence the petitioners who were not mentioned in the petition for probate and were excluded from the proceeding were deemed parties who could have filed a petition for relief of judgment. They actually filed a petition for

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



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annulment with the CA, but this was denied because they were negligent in not filing a MR, MNT, or petition for relief first)

• Can you file a petition for relief from judgment when there is still available remedy (like MR, MNT or appeal)?

o NO! As long as there are still available reliefs, you cannot resort to petition for relief from judgment.

o Important: petition for relief is only available once there is entry of judgment. • After filing an MR/MNT, can you file a petition for relief after the MR/MNT is denied?

o No. The remedies are exclusive of each other. o Appeal na lang from the judgment questioned.

Sec. 3. Time for filing petition; contents and verification. A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. • A petition for relief from judgment must be VERIFIED, and

o Accompanied by an AFFIDAVIT of MERIT. • When is the time period for filing a petition for relief?

o Within 60 days from knowledge of judgment (count from knowledge) o BUT not more than 6 months after entry of judgment/order (count from entry)

Both periods must apply • The 60 day period must move around the 6 months.

o Date of entry: June 1 o End of 6 months: Dec 1 (assuming 30 days/month)

If you learned of the judgment Aug 1, your last day to file is Oct 1. (60 days)

If you learned of the judgment Nov 30, your last day to file is Dec 1.

• In a case where the RTC affirmed the MTC decision, and what was assailed was the RTC decision, counting should start from the RTC decision, and not the MTC decision (Samartino v Raon, 2002)

Sec. 4. Order to file an answer. If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof. The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits. • Answer to a petition for relief: 15 days from receipt Sec. 5. Preliminary injunction pending proceedings. The court in which the petition is filed, may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. • Can the court grant a preliminary injunction during the petition for relief?

o Yes. But petitioner must file a bond. Sec. 6. Proceedings after answer is filed. After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or other proceedings complained of upon such terms as may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. Sec. 7. Procedure where the denial of an appeal is set aside.



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Where the denial of an appeal is set aside, the lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made. • What happens upon resolution?

o If petition for relief from judgment Granted: judgment, final order or other proceeding shall be deemed as never had

been rendered, issued, or taken. Court will proceed to try the case as if a timely MNT or MR had been granted.

• Compare to annulment of judgment (Rule 47), where court simply annuls the judgment. Can’t substitute or rule on the merits.

Denied: oh di denied. o If petition for denial of an appeal

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 Section 1. Execution upon judgments or final orders. Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the 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. • Section 1 talks of execution as a matter of right • Execution as a matter of right happens when the judgment or final order is final and executory

o Meaning, period to appeal has already lapsed • Where do you apply for the writ of execution?

o In the court that originally rendered judgment. o It is the court of origin that issues the writ.

If the case went up on appeal and the appellate court rendered a final and executory judgment, where do you apply?

• Still in the case that originally rendered judgment. You have to give the certified copy of the judgment to the court and to the adverse party.

o Can you apply for the writ in the appellate court? Yes, but only when the interest of justice so requires. The

appellate court will NOT issue the writ, but it will direct the court of origin to issue it.

o So, when can the appellate court issue the writ itself? When it exercises original jurisdiction.

• Court can NOT issue execution in interlocutory orders. o EXCEPT:

When a party claims that he is an indigent, and he is discovered not to be one – execution can be had to enforce the fees he was supposed to pay

Support pendente lite (Rule 61, Sec 5)58 • Whether it be a matter of right or discretion, a writ of execution can only be issued UPON MOTION

of the winning party. (see Sec 5). o EXCEPT in labor cases where the decision of the LA is immediately executory, no need for

writ or motion (Garcia v PAL) • Whether it be a matter of right or discretion, the writ must conform to the dispositive portion of

the judgment. Sec. 2. Discretionary execution.

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.



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(a) Execution of a judgment or final order pending appeal.— On motion of the prevailing party will notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. �Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. � (b) Execution of several, separate or partial judgments.— A several separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. • Sec 2 talks of execution as a matter of discretion • When is execution a matter of discretion?

o When the judgment is final, meaning it is either: pending appeal or a several/partial judgment (while the other issues of the case are still being tried)

o The distinction between a final judgment and one that is final and executory is essential, so see the table which discussed the Intramuros case. (Rule 36, Sec 2)

o A final judgment or order is one that finally disposes of a case. • Requisites for an execution pending appeal/several/separate/partial judgments:

o TC must still have jurisdiction over the case o Must be within the appeal period o Records or record on appeal are still with the trial court59 o Must be for good reasons o The good reasons must be stated in a special order after due hearing

All of the requisites must concur! And the presence of the records with the trial court is very important. It is possible

that the appeal has been perfected (meaning a notice of appeal has been filed) but if the records are still with the trial court, execution pending appeal with the trial court can still be availed of. (Atty. Tranquil)

• Seen in Capa v CA (2006) • On the requirement of good reasons

o Examples of good reasons Perishable goods to be executed upon

o Examples of NOT good reasons The mere filing of a bond (ISM v CA, 1999, since the filing of a bond is not

required to apply for discretionary execution) The conclusion of the trial court that the appeal is dilatory (since it is the appellate

court which determines when an appeal is dilatory) Admission of liability (Manacop v Equitable Bank, 2005, since the admission and

willingness to deliver the proceeds to the proper party militate against execution pending appeal because there is little or no danger that the judgment will become illusory)

• Is discretionary execution available in election cases? o Yes. But Sec 3 (staying the discretionary execution) is NOT available. (Navarro v

COMELEC, 2003) • Is discretionary execution available in final judgments against the government (like

expropriation)? o No, because disbursements of public funds must be covered by the corresponding

appropriation as required by law. (Curata v PPA, 2009, where the private person wanted discretionary execution for just compensation in expropriation)

• Give the rule on execution on labor cases (Garcia v PAL, 2009, which was an illegal dismissal case wherein the LA order reinstatement).

o Upon decision of the LA, it’s immediately executory (even if appealed to the NLRC). No need for writ. Incumbent on the employer to comply with the LA decision in 10 days.

o If NLRC or higher courts reverse the decision of the LA, the wages of the employee can not be taken back. (unfair? Yes.)

59 Read this rule with Rule 41, Sec 9



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• Is a full blown trial needed? o No, codal says merely a hearing.

• What is the remedy for an order of execution pending appeal (either grant/denial)? o Rule 65, Certiorari. It’s interlocutory.

Can you file this even while the original case is on appeal? • Yes. You are attacking the order of execution, not the main case. • So it’s not forum shopping.

Sec. 3. Stay of discretionary execution. Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient supersede as bond filed by the party against whom it is directed, 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) Sec. 4. Judgments not stayed by appeal. Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial 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 Sec. 5. Effect of reversal of executed judgment. Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances.

Sec. 6. Execution by motion or by independent action. A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. • GR: Motion for execution is INDISPENSABLE before the court can order execution – applies even

to those immediately executory in nature. o EXCEPT: orders of reinstatement in labor cases

• Hence, court can NOT motu proprio issue a writ of execution without motion of a party. • When can you file a motion for execution?

o Within 5 years from entry of judgment, and o Before it is barred by statute of limitations (10 years).

• If you go past the 5 years, you will need to file an independent action to execute. (revival of judgment)



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o But take note that such revival of judgment still has to be within the prescriptive period. • Modes to enforce judgment:

o Within 5 years: mere motion o After 5 years: need to file an independent action

• On revival of judgment o Revival of judgment can NOT alter the original judgment (Arcenas v CA, 2005) o The nature of the original action to be revived dictates where to file the revival of

judgment. (Infante v Aran Builders, 2007, where a new court was established in the period between the time the original action [Makati] and the revival of judgment [Muntinlupa]. SC held: file in new court since it now had jd over the real property)

If it was a real action, then in the place where the property is situated. If personal action, option of the plaintiff.

Sec. 7. Execution in case of death of party. In case of the death of party, execution may issue or be enforced in the following manner: (a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; (b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of the lien thereon; �(c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corrsponding executor or administrator for any surplus in his hands. � • Execution in case of death:

o Obligee dies: executor/admin/successor in interest applies o Obligor dies: execution against executor/admin/successor-interest, if judgment is recovery

of real or personal property, or enforcement of lien o Obligor dies after leavy effected: same sold for satisfaction of judgment obligation

Sec. 8. Issuance, form and contents of a writ of execution. The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner herein after provided: (a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor; (b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such properties; � (c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; � (d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and �(e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant. ��

Sec. 9. Execution of judgments for money, how enforced. (a) Immediate payment on demand. - The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possesssion within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amount to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. �The clerk of court shall thereafter arrange for the remittance



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of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfactionn of the judgmen. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him. � (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.



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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 3rd 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.

Sec. 11. Execution of special judgments. When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. • Contempt only applies for refusal to comply with a special judgment.



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o It doesn’t apply to judgments under Sec 10. Sec. 12. Effect of levy on execution as to third persons. The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing.

Sec. 13. Property exempt from execution. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; �(c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select necessarily used by him in his ordinary occupation; � (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; � (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; � (f) Provisions for individual or family use sufficient for four months; � (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; � (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; � (i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months preceding the levy as are necessary for the support of his family; �(j) Lettered gravestones; �(k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; � (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; � (m) Properties specially exempt by law. � ��But no article or species of property mentioned in his section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. • Important: exemptions under this rule are confined only to natural persons and not to juridical

entities (D’Armoured Security v Orpia, 2005) • Take note that

o if you mortgaged your family home, it will no longer be exempt from execution (see last paragraph)

o Libraries of professionals should not go beyond 300k (excess will be executed on) o Furniture of family should not go beyond 100k o Provisions only up to 4 months o Jewelry is NOT exempt o Tombstones are exempt, but mausoleums aren’t.

Sec. 14. Return of writ of execution. The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. • A writ has a life of 5 years from the entry of judgment.

o The sheriff has to make reports every 30 days. • The sheriff must make a return and submit it to the court immediately upon satisfication in part or

in full of the judgment. o If not in full, he has to make a report every 30 days. o Failure to make a return will make the sheriff administratively liable.



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Sec. 15. Notice of sale of property on execution. Before the sale of property on execution, notice thereof must be given as follows: (a) In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; (b) In case of other personal property, by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days; � (c) In case of real property, by posting for twenty (20) days in the three (3) public places above-mentioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city; �(d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time before the sale, in the same manner as personal service of pleadings and other papers as provided by Section 6 of Rule 13. � ��The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o’clock in the morning and not later than two o’clock in the afternoon. The place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. • Notice of sale (to the public)

Posting Time Perishable goods 3 public places Reasonable time Personal property 3 public places Not less than 5 days Real property (P50,000 and below)

3 public places 20 days

Real property (exceeds P50,000)

No posting, but by publication For 2 consecutive weeks

• In all cases, notice to the judgment obligor must be made at least 3 days before the sale o EXCEPT in case of perishable goods, notice at any time before the sale.

• Time of sale: 9 am – 2 pm • Where: Office of the clerk of court (for real and personal property which can’t be manually

delivered). o But if personal property capable of manual delivery, where the property is located.

Sec. 16. Proceedings where property claimed by third person. If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. � When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held 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 3rd 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.



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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 3rd 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. 18. No sale if judgment and costs paid. At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein.

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 Sec. 20. Refusal of purchaser to pay. If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby; but the court may order the refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. • If a purchaser refuses to pay, he may be cited for contempt Sec. 21. Judgment obligee as purchaser. When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess.

Sec. 22. Adjournment of sale. By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned.



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• Sheriff can NOT adjourn sale without the consent of the parties. (Zamora v Villanueva, 2008) Sec. 23. Conveyance to purchaser of personal property capable of manual delivery. When the purchaser of any personal property, capable of manual delivery, pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale 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. 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. 26. Certificate of sale where property claimed by third person. When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such third-party claim. • Certificate of sale is mandatory.

o EXCEPT: when the personal property is capable of manual delivery • If there is a 3rd party claim, it must be expressly mentioned in the certificate of sale.

Sec. 27. Who may redeem real property so sold. Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment obligor, or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. � • Personal properties can NOT be redeemed. • Redemption only applies to real properties. • Who can redeem?

o Judgment obligor, or o Those who have interest on the property, either by credit or encumbrance (redemptioners)

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. �



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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 3rd 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.

Sec. 30. Proof required of redemptioner. A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; or an original or certified copy of any assignment necessary to establish his claim; and an affidavit executed by him or his agent, showing the amount then actually due on the lien. • Judgment obligor not required to present proof of his right of redemption, but redemptioner

needs proof. Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for 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. 32. Rents, earnings and income of property pending redemption. The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. • Who has possession during the redemption period?

o The obligor. • Who is entitled to fruits and profits?



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o The obligor as well. But the obligor can NOT change or modify the nature of the property during the

period. 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.

Sec. 35. Right to contribution or reimbursement. When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel a contribution from the others; and when a judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal.

Sec. 36. Examination of judgment obligor when judgment unsatisfied. When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. Sec. 37. Examination of obligor of judgment obligor.



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When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person, corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. Sec. 38. Enforcement of attendance and conduct of examination. A party or other person may be compelled, by an order or subpoena, to attend before the court or commissioner to testify as provided in the two preceding sections, and upon failure to obey such order or subpoena or to be sworn, or to answer as a witness or to subscribe his deposition, may be punished for contempt as in other cases. Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. If the examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers before a court or commissioner must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer or agent thereof. Sec. 39. Obligor may pay execution against obligee. After a writ of execution against property has been issued, a person indebted to the judgment obligor may pay to the sheriff holding the writ of execution the amount of his debt or so much thereof as may be necessary to satisfy the judgment, in the manner prescribed in section 9 of this Rule, and the sheriff’s receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the 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. Sec. 41. Appointment of receiver. The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. Sec. 42. Sale of ascertainable interest of judgment obligor in real estate. If it appears that the judgment obligor has an interest in real estate in the place in which proceedings are had, as mortgagor or mortgagee or otherwise, and his interest therein can be ascertained without controversy, the receiver may be ordered to sell and convey such real estate or the interest of the obligor therein; and such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution, and the proceedings thereon shall be approved by the court 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)



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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 (no mention of contempt in 36 and 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

Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the return of a writ of execution showing the full satisfaction of the judgment, or upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel on the face of the record of the judgment. Sec. 45. Entry of satisfaction with or without admission. Whenever a judgment is satisfied in fact, or otherwise than upon an execution, on demand of the judgment obligor, the judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction as provided in the last preceding section, and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. • After all of that dizzying crap, how do we know if judgment has already been truly satisfied?

o By entry of satisfaction of judgment by the clerk of court, which is made upon: Writ of execution is returned fully satisfied Written acknowledgment of the judgment oblige or his counsel Indorsement of such admission on the face of the record of the judgment Order of the court after notice and motion, whenever a judgment is satisfied in

fact other than upon execution

Sec. 46. When principal bound by judgment against surety. When a judgment is rendered against a party who stands as surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety’s request to join in the defense.

Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and � (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. � • What are the effects of domestic judgments or final orders?



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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)

Brief overview of remedies • When you get an adverse judgment, figure out the remedies that you can use:

o During the reglementary period (15 days) MR (remember, no 2nd MR allowed) MNT 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)



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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 Section 1. Where to appeal. � An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. 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. Sec. 3. How to appeal. � The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals. �The form and contents of the record on appeal shall be as provided in section 6, Rule 41. �Copies of the notice of appeal, and the record on appeal where required, shall be served on the adverse party. Sec. 4. Perfection of appeal; effect thereof. The perfection of the appeal and the effect thereof shall be governed by the provisions of section 9, Rule 41. Sec. 5. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record or the record on appeal, as the case may be. Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk of court of the lower court shall transmit the original record or the record on appeal, together with the 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. 7. Procedure in the Regional Trial Court. (a) Upon receipt of the complete record or the record on appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact. (b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee may file his memorandum. Failure of the appellant to file memorandum shall be a ground for dismissal of the appeal. � (c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed. 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.



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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. Sec. 9. Applicability of Rule 41. The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule. • Rule 40 is used when one appeals from the decision of the MTC to the RTC.

o As the RTC will be acting as an appellate court, it will not reexamine the evidence or the witnesses. The parties will have to file their respective memoranda.

Failure of the appellant to file memorandum shall be a ground for dismissal of the appeal. (Sec 7)

o If the MTC granted a MTD on a ground OTHER than lack of jurisdiction over the subject matter, the RTC can affirm or reverse the order of dismissal.

In case of reversal, the case shall be remanded. o If the MTC granted a MTD based on lack of jurisdiction, the RTC on appeal has the duty to

try the case on the merits if it has original jurisdiction thereof. o If the MTC tried the case without jurisdiction over the subject matter, the RTC may no

longer dismisses the case if it has original jurisdiction thereof. The RTC shall also no longer try the case on the merits, but shall decide it on the

basis of the evidence presented in the lower court, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (Sec 8)

• Rule 40 and Rule 41 are basically the same when it comes to the periods and stuff, so read the comments below.

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.

Sec. 2. Modes of appeal. (a) Ordinary appeal.- The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (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. �



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(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. Sec. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice 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 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 No extension (but remember Neypes!)

30 days No extension EXCEPT when there is an authorized alteration or modification of the record (remember also Neypes)

Perfected: (Sec 9)

Upon filing of notice in due time

Upon APPROVAL of the record of appeal filed in due time

• Special period rule for habeas corpus cases: 48 hours • Important: You start counting from the time the last party in the case gets the decision

o Plaintiff received it Feb 1. Defendant Feb 3. Last day to appeal is Feb 18. • The late filing can sometimes be allowed in the interest of justice. (Aguilar v COMELEC, 2009) • Where do you file the notice of appeal or record on appeal (applies to Rule 40 and 41)?

o In the court that issued the judgment. • Give examples of cases where a record of appeal is required (multiple or separate appeals):

o Expropriation cases (NAPOCOR v Paderanga, 2005) o In a case which had two causes of action – annulment of deeds of sale and recovery of

money (Fernando v Santamaria, 2004, where SC said that a record of appeal was needed for the appeal on the issue of the collection of money)

• Distinguish appeal from certiorari under Rule 65 (Madrigal v Lapanday, 2004) Appeal Certiorari Attacks Errors of judgment Errors of jurisdiction Appellate power Original independent action Subject matter Judgements or final orders Interlocutory orders Period of filing 15 days (or 30 days if record on

appeal) 60 days

MR not required MR generally required • Appeal and certiorari are mutually exclusive.

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.



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o But don’t be fooled or get lito. You can file Rule 65 on an order granting execution pending appeal while the main

case is on appeal. • What is the mode of appeal when the RTC is acting as a Special Agrarian Court?

o Petition for review to the CA, according to the CARL. (Landbank v Arlene de Leon, 2002) How about if it acts as a Commercial Court?

• Petition for review to the CA, according to 2005 SC Circular. Sec. 4. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal.

Sec. 5. Notice of appeal. The notice of appeal shall indicate the parties to the appeal, specify the judgment or final order or part thereof appealed from, specify the court to which the appeal is being taken, and state the material dates showing the timeliness of the appeal.

Sec. 6. Record on appeal; form and contents thereof. The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal and it shall include the judgment or final order from which the appeal is taken and, in chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved, together with such data as will show that the appeal was perfected on time. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and documentary, taken upon the issue involved. The reference shall specify the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses. If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without 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. 7. Approval of record on appeal. Upon the filing of the record on appeal for approval and if no objection is filed by the appellee within five (5) days from receipt of a copy thereof, the trial court may approve it as presented or upon its own motion or at the instance of the appellee, may direct its amendment by the inclusion of any omitted matters which are deemed essential to the determination of the issue of law or fact involved in the appeal. If the trial court orders the amendment of the record, the appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by the order within ten (10) days from receipt thereof, shall redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft. • A record on appeal has to be approved.

o A notice of appeal does not.

Sec. 8. Joint record on appeal. Where both parties are appellants, they may file a joint record on appeal within the time fixed by section 3 of this Rule, or that fixed by the court.

Sec. 9. Perfection of appeal; effect thereof. A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time.



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�In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. � In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. �In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. • This is a really important section because it determines when appeal has been perfected, which

has implications on: o Whether a judgment becomes final and executory, which has implications on:

Whether execution will follow as a matter of right or remain discretionary • Take note: that even prior to the transmittal of the original record or record on appeal, the lower

court can still issue orders for the protection and preservation of the rights of the parties. • When does the court of original jurisdiction totally lose jurisdiction during appeal?

o Upon perfection of the appeals filed in due time, and o The expiration of the time to appeal of the other parties

• The RTC can no longer issue a writ of execution pending appeal when the notice of appeal has been filed, the period had already elapsed and the CA already made an order to the RTC to forward the stuff. (SIHI v Delta Motors)

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. Sec. 11. Transcript. Upon the perfection of the appeal, the clerk shall immediately direct the stenographers concerned to attach to the record of the case five (5) copies of the transcripts of the testimonial evidence referred to in the record on appeal. The stenographers concerned shall transcribe such testimonial evidence and shall prepare and affix to their transcripts an index containing the names of the witnesses and the pages wherein their testimonies are found, and a list of the exhibits and the pages wherein each of them appears to have been offered and admitted or rejected by the trial court. The transcripts shall be transmitted to the clerk of the trial court who shall thereupon arrange the same in the order in which the witnesses testified at the trial, and shall cause the pages to be numbered consecutively. Sec. 12. Transmittal. The clerk of the trial court shall transmit to the appellate court the original record or the approved record on appeal within thirty (30) days from the perfection of the appeal, together with the proof of payment of the appellate court docket and other lawful fees, a certified true copy of the minutes of the proceedings, the order of approval, the certificate of correctness, the original documentary evidence referred to therein, and the original and three (3) copies of the transcripts. Copies of the transcripts and certified true copies of the documentary evidence shall remain in the lower court for the examination of the parties.

Sec. 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may, motu propio or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawful fees within the reglementary period. • The trial court can dismiss the appeal for:

o having been taken out of time or o for non-payment of the docket fees within the reglementary period



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RULE 44 ORDINARY APPEALED CASES (PROCEDURE IN CA) Section 1. Title of cases. In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. Sec. 2. Counsel and guardians. The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court. (2a, R46) Sec. 3. Order of transmittal of record. If the original record or the record on appeal is not transmitted to the Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal. Sec. 4. Docketing of case. Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof. Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall file 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. 5. Completion of record. Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform said court and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. Sec. 6. Dispensing with complete record. Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult causes, the court, on its own motion or on motion of any of the parties, may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration. • The complete record is generally needed.

o EXCEPT if complete record can not be procured due to insuperable or extremely difficult cases

Sec. 7. Appellant’s brief. It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee. Sec. 8. Appellee’s brief. Within forty-five (45) days from receipt of the appellant’s brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant. Sec. 9. Appellant’s reply brief. Within twenty (20) days from receipt of the appellee’s brief, the appellant may file a reply brief answering points in the appellee’s brief not covered in his main brief. • What are the periods for filing of briefs:

o Appellant’s brief: 45 days from receipt of notice that evidence was attached to record o Apellee’s brief: 45 days from receipt of appellant’s o Apellant’s reply (not mandatory): 20 days

Sec. 10. Time for filing memoranda in special cases. In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from



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receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record. The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal. 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. Sec. 12. Extension of time for filing briefs. Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. Sec. 13. Contents of appellant’s brief. The appellant’s brief shall contain, in the order herein indicated, the following: (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. Sec. 14. Contents of appellee’s brief. The appellee’s brief shall contain, in the order herein indicated, the following: (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) Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in the appellant’s brief, or under the heading "Counter-Statement of Facts," he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant’s statement of facts; and (c) Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on 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.

Sec. 15. Questions that may be raised on appeal. Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. • Appellant may include any question of law or fact that has been raised in the lower court and

which is within the issues framed by the parties o Doesn’t matter if he filed a MNT or not

Break muna poh! RULE 42 PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS Section 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration



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filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. • There are actually two kinds of petition for review (VERIFIED!!!)

o Rule 42 (MTC to RTC to CA) o Rule 43 (quasi-judicial agencies)

• Rule 42 applies when a party desires to appeal from a decision of the RTC who acted in its appellate jurisdiction

o Meaning the original case came from the MTC, then appealed to the RTC Like in summary proceedings.

• 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)

Sec. 2. Form and contents. The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the 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. Sec. 3. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. • What do you need for a petition for review under Rule 42?

o VERIFIED petition o Attach a copy of the decision or a duplicate original

No need to be certified true copies (compare to Rule 43) o Attach an affidavit of material dates (date of receipt of decision, date of filing of MR, date

of denial of MR) o Parties, issues, grounds relied upon, errors, explanation if service is other than personal o Certificate of non-forum shoppinh

• Failure to comply with the requirements will be sufficient grounds for dismissal. Sec. 4. Action on the petition. The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently



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without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. Sec. 5. Contents of comment. The comment of the respondent shall be filed in seven (7) legible copies, accompanied by certified true copies of such material portions of the record referred to therein together with other supporting papers and shall (a) state whether or not he accepts the statement of matters involved in the petition; (b) point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters involved but without repetition; and (c) state the reasons why the petition should not be given due course. A copy thereof shall be served on the petitioner. Sec. 6. Due course. If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the period for the filing thereof without such comment or pleading having been submitted, the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition. Sec. 7. Elevation of record. Whenever the Court of Appeals deems it necessary, it may order the clerk of court of the Regional Trial Court to elevate the original record of the case including the oral and documentary evidence within fifteen (15) days from notice. • If the petition is complete, the CA can require a comment from the other party.

o Must be made in 10 days. • After the comment or if no comment was made, if the CA finds prima facie error on the lower

court (or QJA), it may accordingly give due course to the petition. o It can ask for the elevation of the records.

Same procedure with Rule 43, Sec 8-11. Sec. 8. Perfection of appeal; effect thereof. (a) Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. � However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. � (b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise. • When is the perfection of appeal in petition for review cases?

o Upon the timely filing of a petition for review, and o The payment of corresponding docket and other lawful fees

• Before the CA gives due course to the petition, the RTC may still issue orders, even order execution pending appeal. It can even allow withdrawal of the appeal.

• A petition for review shall stay the judgment or final order, unless the CA, the law or the rules provide otherwise.

o EXCEPT: In civil cases decided under the Rule on Summary Procedure (like ejectment cases

which are immediately executory)

Sec. 9. Submission for decision. If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the court itself. • No briefs are required here. The petition and the comment serve as the briefs. • The court, however, can require oral arguments or memoranda. RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS Section 1. Scope.



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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. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. Sec. 2. Cases not covered. This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. • The enumeration in Rule 43 of QJAs is NOT exclusive.

o Determine if the following QJA decisions are reviewable by the CA: Office of the President: yes HLURB: No, must go through the OP first before the CA NLRC: Yes, but under Rule 65, not Rule 43 (which does not apply to the Labor

Code) DARAB: Yes.

• If PARAD, must go through DARAB first, or else it will be dismissed by the CA. (Cardona v Amansec, 2004)

CTA: No, it must be CTA en banc, then SC. RTC acting as a commercial court: Yes. RTC acting as a special agrarian court: Yes.

o It’s imperative that you check the governing law of the QJA because it may prescribe a different mode of appeal.

If you fail to follow the procedure in the QJA law, then your petition for review with the CA may be dismissed. (Cardona)

Sec. 3. Where to appeal. An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. • Petition for review from QJAs is the proper mode of appeal, regardless of the nature of the

question raised.

Sec. 4. Period of appeal. The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. • See comments on Rule 42. Sec. 5. How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner. Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days from notice of the denial. Sec. 6. Contents of the petition. The petition for review shall (a) state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents; (b) contain a concise statement of the facts and



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issues involved and the grounds relied upon for the review; (c) be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and other supporting papers; and (d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. The petition shall state the specific material dates showing that it was filed within the period fixed herein. Sec. 7. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. • Same as in Rule 42, but you need to also attach ALL certified true copies.

o Since the court will not be able to verify the issued resolutions are genuine. Sec. 8. Action on the petition. The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. Sec. 9. Contents of comment. The comment shall be filed within ten (10) days from notice in seven (7) legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. The comment shall (a) point out insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and (b) state the reasons why the petition should be denied or dismissed. A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the Court of Appeals. Sec. 10. Due course. If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on the basis of the petition or the records the Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due course to the petition; otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals. Sec. 11. Transmittal of record. Within fifteen (15) days from notice that the petition has been given due course, the Court of Appeals may require the court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceeding under review. The record to be transmitted may be abridged by agreement of all parties to the proceeding. The Court of Appeals may require or permit subsequent correction of or addition to the record. • Same as in Rule 42. • But note that the findings of fact of QJA, when supported by substantial evidence, shall be binding

on the CA. Sec. 12. Effect of appeal. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. • Appeal from the QJA shall NOT stay the award, judgment, etc

o UNLESS the CA orders so. Similar to Rule 42, except for proviso on summary procedure.

Sec. 13. Submission for decision. If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the Court of Appeals.

RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT 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



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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. Sec. 2. Time for filing; extension. The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. • The only way to go up to the SC is through a Petition for Review on Certiorari

o Except in criminal cases where the punishment is LI, RP, or death: ordinary appeal • Only questions of law may be considered, subject to jurisprudential exceptions.61 • Period:

o 15 days Extension of 30 days upon motion and payment of docket fees

• Only ONE extension allowed, you can’t ask for 15 days and then ask for another 15 days.

o Compare with petition for review • This is NOT the Certiorari we’ve come to know and care about in Rule 65

o The Certiorari in Rule 65 is a SCA. (Period: 60 days) • Rule 65 Certiorari is NOT a substitute for a petition for review on certiorari. (Conejos v CA, 2002,

wherein Rule 65 was wrongly used) o EXCEPT (the following grounds must concur so that Rule 65 can be considered as a

petition for review on certiorari): Filed within the reglementary period for petition for review on certiorari (15 days) Alleged errors of judgment Sufficient reason to justify the relaxation of the rules (Oaminal v Castillo, 2003)

Sec. 3. Docket and other lawful fees; proof of service of petition. Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. Sec. 4. Contents of petition. The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. Sec. 5. Dismissal or denial of petition. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. Sec. 6. Review discretionary.

61 like conflicting findings of fact, conclusion is grounded entirely on speculation, etc



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A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered: (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. Sec. 7. Pleadings and documents that may be required; sanctions. For purposes of determining whether the petition should be dismissed or denied pursuant to section 5 of this Rule, or where the petition is given due course under section 8 hereof, the Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor. Sec. 8. Due course; elevation of records. If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice. Sec. 9. Rule applicable to both civil and criminal cases. The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment.

PROCEDURE IN THE COURT OF APPEALS RULE 46 ORIGINAL CASES Section 1. Title of cases. In all cases originally filed in the Court of Appeals, the party instituting the action shall be called the petitioner and the opposing party the respondent. Sec. 2. To what actions applicable. This Rule shall apply to original actions for certiorari, prohibition, mandamus and quo warranto. Except as otherwise provided, the actions for annulment of judgment shall be governed by Rule 47, for certiorari, prohibition and mandamus by Rule 65, and for quo warranto by Rule 66. • The CA has original jurisdiction over:

o Rule 65 cases against the RTC (concurrent with SC) o Habeas corpus, habeas data, writ of amparo, quo warranto, Rule 65 against lower courts

(concurrent with SC and RTC) o Annulment of judgments of RTC (exclusive)

Sec. 3. Contents and filing of petition; effect of non-compliance with requirements. The petition shall contain the full names and actual addresses of all the petitioners and respondents, a concise statement of the matters involved, the factual background of the case, and the grounds relied upon for the relief prayed for. It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as are referred to therein, and other documents relevant or pertinent thereto. The certification shall be accomplished by the proper clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal, agency or office involved or by his duly authorized representative. The other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of

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



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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. Sec. 4. Jurisdiction over person of respondent, how acquired. The court shall acquire jurisdiction over the person of the respondent by the service on him of its order or resolution indicating its initial action on the petition or by his voluntary submission to such jurisdiction. • The CA acquires jurisdiction over the respondent by:

o Service on him of its order/resolution (like Rule 13) There must be proper service of the resolution/order, or else, no jd over the

person. o His voluntary submission to such jd

Sec. 5. Action by the court. The court may dismiss the petition outright with specific reasons for such dismissal or require the respondent to file a comment on the same within ten (10) days from notice. Only pleadings required by the court shall be allowed. All other pleadings and papers may be filed only with leave of court. Sec. 6. Determination of factual issues. Whenever necessary to resolve factual issues, the court itself may conduct hearings thereon or delegate the reception of the evidence on such issues to any of its members or to an appropriate court, agency or office. • As you can see, the CA can conduct hearings for original cases.

o It can also delegate the reception of evidence to any of its members or to an appropriate court, agency or office.

Sec. 7. Effect of failure to file comment. When no comment is filed by any of the respondents, the case may be decided on the basis of the record, without prejudice to any disciplinary action which the court may take against the disobedient party. RULE 48 PRELIMINARY CONFERENCE IN THE CA Section 1. Preliminary conference. At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference: (a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised; (b) To define, simplify and clarify the issues for determination; (c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and (d) To take up such other latters which may aid the court in the prompt disposition of the case. Sec. 2. Record of the conference. The proceedings at such conference shall be recorded and, upon the conclusion thereof, a resolution shall be issued embodying all the actions taken therein, the stipulations and admissions made, and the issues defined. Sec. 3. Binding effect of the results of the conference. Subject to such modifications which may be made to prevent manifest injustice, the resolution in the preceding section shall control the subsequent proceedings in the case unless, within five (5) days from notice thereof, any party shall satisfactorily show valid cause why the same should not be followed. • The CA can conduct preliminary conferences in both original cases and appealed cases.

o In fact, it has a super power to do so as it can conduct a preliminary conference AT ANY TIME during the pendency of a case.

• Failure of the appellant to appear will result to a dismissal of the appeal. (Rule 50) RULE 49 ORAL ARGUMENT Section 1. When allowed.



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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. Sec. 2. Conduct of oral argument. Unless authorized by the court, only one counsel may argue for a party. The duration allowed for each party, the sequence of the argumentation, and all other related matters shall be as directed by the court. Sec. 3. No hearing or oral argument for motions. Motions shall not be set for hearing and, unless the court otherwise directs, no hearing or oral argument shall be allowed in support thereof. The adverse party may file objections to the motion within five (5) days from service, upon the expiration of which such motion shall be deemed submitted for resolution. • Oral arguments are applicable both to original actions and appealed cases to the CA. (Feria) • In the CA (and the SC), no need for hearing of motions, unless directed otherwise.

o Compare to TCs where it is mandatory for motions o be heard. RULE 50 DISMISSAL OF APPEAL Section 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41; (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. • Take note of the enumeration! • It is also not mandatory on the CA to dismiss, Rule is directory. • Other grounds aside from the enumeration:

o Moot causes o Frivolous appeals (no justiciable question, or so devoid of merit on its face, or filed by a

troll)

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. • Intense small section that speaks magnitudes! • Don’t make the mistakes in the codal or else immediately dismissed!

o Filing Rule 41 on purely questions of law? Dismissed. o Filing notice of appeal when you should have gone for petition for review? Thrown out the

CA’s window. • Erroneous appeals will not even be transferred to the appropriate court. Sec. 3. Withdrawal of appeal. 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



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• Matter of discretion: after filing of appellee’s brief RULE 51 JUDGMENT Section 1. When case deemed submitted for judgment. A case shall be deemed submitted for judgment: A. In ordinary appeals.- 1) Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period for its filing. 2) Where such a hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. B. In original actions and petitions for review.- 1) Where no comment is filed, upon the expiration of the period to comment. 2) Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing. 3) Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. Sec. 2. By whom rendered. The judgment shall be rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. Sec. 3. Quorum and voting in the court. The participation of all three Justices of a division shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution. If the three Justices do not reach a unanimous vote, the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from among all the other members of the court to sit temporarily with them, forming a special division of five Justices. The participation of all the five members of the special division shall be necessary for the deliberation required in section 2 of this Rule and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. Sec. 4. Disposition of a case. The Court of Appeals, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be had. Sec. 5. Form of decision. Every decision or final resolution of the court in appealed cases shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed from. Sec. 6. Harmless error. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties. Sec. 7. Judgment where there are several parties. In all actions or proceedings, an appealed judgment may be affirmed as to some of the appellants, and reversed as to others, and the case shall thereafter be proceeded with, so far as necessary, as if separate actions had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper. Sec. 8. Questions that may be decided. 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.



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Sec. 9. Promulgation and notice of judgment. After the judgment or final resolution and dissenting or separate opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their counsel Sec. 10. Entry of judgments and final resolutions. If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final resolution shall forthwith be entered by the clerk in the book of entries of judgments. The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry. The record shall contain the dispositive part of the judgment or final resolution and shall be signed by the clerk, with a certificate that such judgment or final resolution has become final and executory. Sec. 11. Execution of judgment. Except where the judgment or final order or resolution, or a portion thereof, is ordered to be immediately executory, the motion for its execution may only be filed in the proper court after its entry. In original actions in the Court of Appeals, its writ of execution shall be accompanied by a certified true copy of the entry of judgment or final resolution and addressed to any appropriate officer for its enforcement. In appealed cases, where the motion for execution pending appeal is filed in the Court of Appeals at a time that it is in possession of the original record or the record on appeal, the resolution granting such motion shall be transmitted to the lower court from which the case originated, together with a certified true copy of the judgment or final order to be executed, with a directive for such court of origin to issue the proper writ for its enforcement. • Rule 51 talks of judgment rendered by the CA.

o For those of the TC, go to Rule 36. RULE 52 MOTION FOR RECONSIDERATION Section 1. Period for filing. A party may file a motion for reconsideration of a judgment or final resolution within fifteen (15) days from notice thereof, with proof of service on the adverse party. Sec. 2. Second motion for reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. Sec. 3. Resolution of motion. In the Court of Appeals, a motion for reconsideration shall be resolved within ninety (90) days from the date when the court declares it submitted for resolution. Sec. 4. Stay of execution. The pendency of a motion for reconsideration filed on time and by the proper party shall stay the execution of the judgment or final resolution sought to be reconsidered unless the court, for good reasons, shall otherwise direct. • Can you file a MR in the CA?

o Yes! Period: 15 days

• NO second MR! o Grounds (same as those in Rule 37 in TC):

Damages awarded are excessive Evidence insufficient to justify the decision or final order Decision or final order is contrary to law

• It’s basically the same as an MR in the TC except for two things: o Period to resolve (90 in the CA, 30 in the TC) o Pendency of the MR will STAY the execution of the judgment (unless otherwise directed by

the court); no similar provision in Rule 37 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



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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. Sec. 2. Hearing and order. The Court of Appeals shall consider the new evidence together with that adduced at the trial below, and may grant or refuse a new trial, or may make such order, with notice to both parties, as to the taking of further testimony, either orally in court, or by depositions, or render such other judgment as ought to be rendered upon such terms as it may deem just. Sec. 3. Resolution of motion. In the Court of Appeals, a motion for new trial shall be resolved within ninety (90) days from the date when the court declares it submitted for resolution. Sec. 4. Procedure in new trial. Unless the court otherwise directs, the procedure in the new trial shall be the same as that granted by a Regional Trial Court. • Can you file a MNT in the CA?

o Yes, otherwise this Rule would be useless. • It’s basically the same as the MNT in Rule 37 except for three things:

o Period of resolution (90 days in CA, 30 days in TC) o Period to file: ANY TIME in the CA as long as it has jurisdiction; reglementary period in the

TC o Grounds: only newly discovered evidence in the CA; newly discovered evidence and FAME

in the TC RULE 54 INTERNAL BUSINESS Section 1. Distribution of cases among divisions. All the cases of the Court of Appeals shall be allotted among the different divisions thereof for hearing and decision. The Court of Appeals, sitting en banc, shall make proper orders or rules to govern the allotment of cases among the different divisions, the constitution of such divisions, the regular rotation of Justices among them, the filling of vacancies occurring therein, and other matters relating to the business of the court; and such rules shall continue in force until repealed or altered by it or by the Supeme Court. Sec. 2. Quorum of the Court. A majority of the actual members of the court shall constitute a quorum for its session en banc. Three members shall constitute a quorum for its sessions of a division. The affirmative votes of the majority of the members present shall be necessary to pass a resolution of the court en banc. The affirmative votes of three members of a division shall be necessary for the pronouncement of a judgment or final resolution, which shall be reached in consultation before the writing of the opinion by any member of the division.

RULE 55 PUBLICATION OF JUDGMENTS AND FINAL RESOLUTION Section 1. Publication. The judgments and final resolutions of the court shall be published in the Official Gazette and in the Reports officially authorized by the court in the language in which they have been originally written, together with the syllabi therefor prepared by the reporter in consultation with the writers thereof. Memoranda of all other judgments and final resolutions not so published shall be made by the reporter and published in the Official Gazette and the authorized reports. Sec. 2. Preparation of opinions for publication. The reporter shall prepare and publish with each reported judgment and final resolution a concise synopsis of the facts necessary for a clear understanding of the case, the names of counsel, the material and controverted points involved, the authorities cited therein, an a syllabus which shall be confined to points of law. Sec. 3. General make-up of volumes. The published decisions and final resolutions of the Supreme Court shall be called "Philippine Reports," while those of the Court of Appeals shall be known as the "Court of Appeals Reports." Each volume thereof shall contain a table of the cases reported and the cases cited in the opinions, with a complete alphabetical index of the subject matters of the volume. It shall consist of not less than seven hundred pages printed upon good paper, well bound and numbered consecutively in the order of the volume published.



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RULE 56-A ORIGINAL CASES IN THE SUPREME COURT Section 1. Original cases cognizable. Only petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceeding against members of the judiciary and attorneys, and cases affecting ambassadors, other public ministers and consuls may be filed originally in the Supreme Court. Sec. 2. Rules applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions: a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court; b) The portions of ssaid Rules dealing strictly with and specifically intended for appealed cases in the Court of Appeals shall not be applicable; and �c) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof of service on all adverse parties. �The proceedings for disciplinary action against members of the judiciary shall be governed by the laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended. • What are the cases that can be originally filed in the SC?

o Rule 65 (Certiorari, prohibition, mandamus) o Quo warranto o Habeas corpus o Habeas data o Writ of amparo o Disciplinary proceeding against members of the judiciary and attorneys o Cases affecting ambassadors, other public ministers and consuls o Constitutionality of a law, treaty, ordinance, tax imposition, EO

• The procedure in the SC basically follows the procedure in the CA o Rule 48 (Preliminary conference) o Rule 49 (Oral arguments) o Rule 51 (judgment) o Rule 52 (MR)

• Can SC conduct a MNT? o No, unless they do so based on its equity jd

• Can the SC annul the judgment of the CA? o No, Rule 56 makes no reference to Rule 47.

RULE 56-B APPEALED CASES IN THE SUPREME COURT Sec. 3. Mode of appeal. An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. 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. Sec. 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (a) Failure to take the appeal within the reglementary period; (b) Lack of merit in the petition; �(c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs; �(d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; � (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. Sec. 6. Disposition of improper appeal. Except as provided in Section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed. An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or



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appropriate action. The determination of the Supreme Court on whether or not issues of fact are involved shall be final. Sec. 7. Procedure if opinion is equally divided. Where the Court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the Court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. • For appealed cases, the only mode is using Rule 45 (Petition for Review on Ceritorari) • Procedure follows:

o Rule 48 (Prelim Conference) o Rule 51 (Judgment) o Rule 52 (MR)

Take note: no oral arguments in appealed cases RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS Section 1. Coverage. This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. Sec. 10. Annulment of judgments or final orders of Municipal Trial Courts. An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. • Annulment of judgments, etc can only be done by the CA (over the RTC) or the RTC (over the

MTC). o Rule 56 of the SC does not make any reference to Rule 47. o Moreover, an RTC can’t annul another RTC’s decision. (Nery v Leyson, 2000)

You always go to the higher court to ask for a PAJ. • The annulment is a last remedy.

o It cannot be resorted to if the ordinary remedies of MNT, appeal, or petition for relief or other appropriate remedies are still available, or are not available through no fault of the petitioner.

• A petition for annulment of judgment is only available to decisions by the RTC or the MTC. o It is not a remedy for decisions of quasi-judicial agencies. (Cole v CA, 2000, which

involved a resolution of the HLURB)

Sec. 2. Grounds for annulment. The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. Sec. 3. Period for filing action. If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel. • What are the grounds?

o Extrinsic fraud 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. 4. Filing and contents of petition.



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The action shall be commenced by filing a verified petition alleging therein with particularity the facts and the law relied upon for annulment, as well as those supporting the petitioner’s good and substantial cause of action or defense, as the case may be. The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies corresponding to the number of respondents. A certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition intended for the court and indicated as such by the petitioner. The petitioner shall also submit together with the petition affidavits of witnesses or documents supporting the cause of action or defense and 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. • Petition for annulment of judgment must be VERIFIED, and

o An affidavit of MERIT must also be given. • A permanent injunction can serve as a PAJ, but it must have the contents required by a PAJ.

(Salera v A-1 Investors, 2002) Sec. 5. Action by the court. Should the court find no substantial merit in the petition, the same may be dismissed outright with specific reasons for such dismissal. Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served on the respondent. 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.

Sec. 7. Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. • The CA (or RTC over the MTC) can NOT:

o resolve the merits of the case or o substitute its own findings. (Ceruila v Delantar, 2005)

• It will merely annul the questioned judgment, order, resolution. That’s it. o It’s WITHOUT prejudice and can be re-filed.

• If the PAJ is granted based on extrinsic fraud, the CA (or RTC over the MTC) can order the lower court to try the case as if a timely MNT was granted.

Sec. 8. Suspension of prescriptive period. The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. Sec. 9. Relief available. 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.

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