CIVIL PROCEDURE

PART I

1.General Principles

1.1 Concept of Remedial Law

Remedial Law is that branch of law which prescribes the methods of enforcing rights and obligations created by substantive law in case of invasion of these rights.

Nature of Remedial Law:

Since they (remedial law) are promulgated by authority of law, they have the force and effect of law if not in conflict with substantive law (Ateneo v. De La Rosa, G.R. No. L-286, March 28, 1946)

1.2 Substantive Law vis a vis Remedial Law

Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion. (Bustos v. Lucero, G.R. No. L-2086, March 8, 1949 Motion for Reconsideration Resolution)

Distinction between “Remedy” and Substantive right”:

The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference is somewhat a question of degree. It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the Court's power is not merely to compile, revise or codify the rules of procedure existing at the time of the Constitution's approval. This power is "to promulgate rules concerning pleading, practice, and procedure in all courts," which is a power to adopt a general, complete and comprehensive system of procedure, adding new and different rules without regard to their source and discarding old ones. (Bustos v. Lucero, supra)

1.2.1 Meaning of Procedural Laws

According to De los Santos v. Vda. de Mangubat: “Procedural law refers to the adjective law which prescribes rules and forms of procedure in order that courts may be able to administer justice. Procedural laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statues ― they may be given retroactive effect on actions pending and undetermined at the time of their passage and this will not violate any right of a person who may feel that he is adversely affected, insomuch as there are no vested rights in rules of procedure.” (Priscilla Alma Jose, Vs. Ramon C. Javellana, Et Al., G.R. No. 158239, January 25, 2012)

1.2.2 Procedural rules applicable to actions pending at the time of promulgation

Statutes and rules regulating the procedure of courts are considered applicable to actions pending and unresolved at the time of their passage. Procedural laws and rules are retroactive in that sense and to that extent. The effect of procedural statutes and rules on the rights of a litigant may not preclude their retroactive application to pending actions. This retroactive application does not violate any right of a person adversely affected. Neither is it constitutionally objectionable. The reason is that, as a general rule, no vested right may attach to or arise from procedural laws and rules. It has been held that "a person has no vested right in any particular remedy, and a litigant cannot insist on the application to the trial of his case, whether civil or criminal, of any other than the existing rules of procedure." More so when, as in this case, petitioner admits that it was not able to pay the docket fees on time. Clearly, there were no substantive rights to speak of when the RTC dismissed the Notice of Appeal. Panay Railways Inc., Vs. Heva Management And Development Corporation, Pamplona Agro-Industrial Corporation, And Spouses Candelaria Dayot And Edmundo Dayot, G. R. No. 154061, January 25, 2012)

1.2.3 Liberal construction or suspension of procedural rules

It should be emphasized that the resort to a liberal application, or suspension of the application of procedural rules, must remain as the exception to the well-settled principle that rules must be complied with for the orderly administration of justice. (Building Care Corporation/Leopard Security & Investigation Agency And/Or Ruperto Protacio, Vs. Myrna Macaraeg, G.R. No. 19835710 December 2012)

In Rural Bankers Association of the Philippines v. Tanghal-Salvaña, this Court held: Obedience to the requirements of procedural rules is needed if the parties are to expect fair results therefrom, and utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction. Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants alike are thus enjoined to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice. (Mca-Mbf Countdown Cards Philippines Inc., Amable R. Guiluz V, Amable C. Aguiluz Ix, Cielo C. Aguiluz, Alberto L. Buenviaje, Vicente Acsay And Mca Holdings And Management Corporation, Vs. Mbf Card International Limited And Mbf Discount Card Limited, G.R. No. 173586, March 14, 2012)

When liberal construction of the rules proper?

A liberal construction of the procedural rules is proper where the lapse in the literal observance of a rule of procedure has not prejudiced the adverse party and has not deprived the court of its authority. Indeed, Section 6, Rule 1 of the Rules of Court provides that the Rules should be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Rules of procedure are tools designed to facilitate the attainment of justice, and courts must avoid their strict and rigid application which would result in technicalities that tend to frustrate rather than promote substantial justice. (Douglas F. Anama Vs. Philippine Savings Bank, G.R. No. 187021, January 25, 2012)

The liberal construction of the rules may be invoked in situations where there may be some excusable formal deficiency or error in a pleading, provided that the same does not subvert the essence of the proceeding and it at least connotes a reasonable attempt at compliance with the rules. Besides, fundamental is the precept that rules of procedure are meant not to thwart but to facilitate the attainment of justice; hence, their rigid application may, for deserving reasons, be subordinated by the need for an apt dispensation of substantial justice in the normal course. They ought to be relaxed when there is subsequent or even substantial compliance, consistent with the policy of liberality espoused by Rule 1, Section 6. Not being inflexible, the rule on verification allows for such liberality. (Felix Martos, Jimmy Eclana, Rodel Pilones, et al. Vs. New San Jose Builders, Inc., G.R. No. 192650. October 24, 2012)

1.2.3.1 When liberal construction is not applicable?

The Court is aware of the exceptional cases where technicalities were liberally construed. However, in these cases, outright dismissal is rendered unjust by the presence of a satisfactory and persuasive explanation. The parties therein who prayed for liberal interpretation were able to hurdle that heavy burden of proving that they deserve an exceptional treatment. It was never the Court’s intent "to forge a bastion for erring litigants to violate the rules with impunity."

This Court will not condone a cavalier attitude towards procedural rules. It is the duty of every member of the bar to comply with these rules. They are not at liberty to seek exceptions should they fail to observe these rules and rationalize their omission by harking on liberal construction.(Maria Consolacion Rivera-Pascual, Vs. Spouses Marilyn Lim And George Lim And The Registry Of Deeds Of Valenzuela City, G.R. No. 191837, September 19, 2012)

1.3 Rule-Making Power of Supreme Court

The Supreme Court shall have the following power… Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (Article VIII, Section 5(5), 1987 Phil. Constitution)

1.3.1 Limitations of Rule-Making Power of the Supreme Court

1. The rules provide a simplified and inexpensive procedure for the speedy disposition of cases;

2. The rules shall be uniform (not different or varying) for all courts of the same grade;

3. The rules shall not diminish, increase, or modify substantive rights. (Article VIII, Section 5(5), 1987 Phil. Constitution)

1.3.2 Power of the Supreme Court to amend and suspend procedural rules

The courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules

is discretionary upon the court(Commissioner of Internal Revenue v. Migrant Pagbilao Corporation, G.R. No. 159593. October 12, 2006).

In fact, this Court has held that even if there was complete non-compliance with the rule on certification against forum shopping, the Court may still proceed to decide the case on the merits, pursuant to its inherent power to suspend its own rules on grounds, as stated above,of substantial justice and apparent merit of the case. (SM Land, Inc. (Formerly Shoemart, Inc.) and Watsons Personal Care Store, Phils., Inc. Vs. City of Manila, Liberty Toledo, in her official capacity as the City Treasurer of Manila, et al. G.R. No. 197151. October 22, 2012)1.3.3. Power of the Supreme Court to promulgate rules carries with it the power to overturn judicial precedents:

a) The constitutional power of the Supreme Court to promulgate rules of practice and procedure to amend or repeal the same necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court .(Pinga v. Heirs of Santiago, G.R No. 170354, June 30, 2006).

1.3.4. Power of the Supreme Court to promulgate rules are means for the court to exercise jurisdiction:

The Rules of Court does not define jurisdictional boundaries of the courts. In promulgating the Rules of Court, the Supreme Court is circumscribed by the zone properly denominated as the promulgation of rules concerning pleading, practice, and procedure in all courts; consequently, the Rules of Court can only determine the means, ways or manner in which said jurisdiction, as fixed by the Constitution and acts of Congress, shall be exercised .(Minerva A. Gomez-Castillo vs. COMELEC, G.R. No. 187231, June 22, 2011)

1.3.5. Rule on the Writ of Amparo an exercise of Rule-making Power

The writ of amparo was promulgated by the Court pursuant to its rulemaking powers in response to the alarming rise in the number of cases of enforced disappearances and extrajudicial killings. (In the Matter of the Petition for the Issuance of a Writ of Amparo in Favor of Lilibeth Ladaga Vs. Major General Reynaldo Mapagu, Commanding General of the Philippine Army's 10th Infantry Division, et al./In the Matter of the Petition for the Issuance of a Writ of Amparo in Favor of Angela A. Librado-Trinidad Vs. Major General Reynaldo Mapagu, Commanding General of the Philippine Army's 10th Infantry Division, et al.In the Matter fo the Petition for the Issuance of a Writ of Amparo in Favor of Carlos Isagani T. Zarate Vs. Major General Reynaldo Mapagu, Commanding General of the Philippine Army's 10th Infantry Division, et al., G.R. No. 189689/G.R. No. 189690/G.R. No. 189691. November 13, 2012 )

1.3.6 Power of the Supreme Court to amend and suspend procedural rules

The courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the court(Commissioner of Internal Revenue v. Migrant Pagbilao Corporation, G.R. No. 159593. October 12, 2006).

1.3.7. Primary objective of the suspension of the rules

In the interest of just and expeditious proceedings, the Supreme Court may suspend the application of the Rules of Court and except a case from its operation because the Rules were precisely adopted with the primary objective of enhancing fair trial and expeditious justice (Republic v. CA, et al., L-31303-04, May 31, 1978).

1.4 Nature of Philippine Courts

1.4.1 What is a Court?

An organ of government belonging to the judicial department the function of which is the application of the laws to controversies brought before it as well as the public administration of justice (Black’s, 5th Edition, 356).

A court is called upon and authorized to administer justice. Sometimes it refers to the place where justice is administered (20 Am Jur 2d, Courts, § 1, 1965; 21 C.J.S., Courts, § 1).

It is a board or tribunal which decides a litigation or contest (Hidalgo v. Manglapus, 64 O.G. 3189)

1.4.2. Court distinguished as from Judge

1. A court is a tribunal officially assembled under authority of law; a judge is simply an officer of such tribunal (Wagen Horst v. Philadelphia Insurance Company 358pa. 55, 55 82d 762).

2. A court is an organ of the government with a personality separate and distinct from the person or judge who sits on it.

3. A court is an office while a judge is a public officer.

4. .The circumstances of the court are not affected by the circumstance that would affect the judge. The continuity of a court and the efficacy of its proceeding are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words the judge may resign, become incapacitated, or be disqualified to hold office but the court remains.

The death of the judge does not mean the death of the court (Riano, Civil Procedure; restatement for the bar 2009, p.45).

1.4.3 Classification of Philippine Courts

Constitutional Court - Those which owe their creation and existence to the Constitution. Its existence as well as the deprivation of its jurisdiction and powers cannot be made a subject of legislation. Example: The Supreme Court(Article VIII, Section 1(1), 1987 Phil. Constitution)

Note: Supreme Court is the only Constitutional Court in the Philippines. All others are Statutory Courts.

Statutory Courts – A court created by law whose jurisdiction is exclusively determined by legislation. It may be abolished by Congress by simply repealing the law which created them.Example: Court of Appeals, Regional Trial Courts, Metropolitan/Municipal Courts (created by BP 129), The Court of Tax Appeals (created by RA 1125) Family Courts, Shari’ah District Courts,

Shari’ah Cicuit Courts (P.D. 1083)

1.4.4. Nature of Philippine Courts: Law and Equity

a. Court of law – decides a case according to the promulgated law

b. Court of Equity – decides a case according to the common precepts of what is right and just without inquiring into the terms of the statutes.

Philippines courts, either original or appellate, exercise both the legal and equitable jurisdictions (U.S. v. Tamparong, G.R. No. 9527, August 23, 1915).

1.4.5. What is jurisdiction?

Refers to the power and authority of the court to hear, determine controversies, and decide a case (People v. Mariano, G.R. L-40527, June 30, 1976)

1. Kinds of jurisdiction:

a) Original and Appellate Jurisdiction

a) Original Jurisdiction – power of the court to take cognizance of a case at its inception or commencement.

b) Appellate Jurisdiction – power vested in a superior court to review and revise the judicial action of a lower court.

b) General and Special Jurisdiction

a) General Jurisdiction – authority of the court to hear and determine all actions and suits.

Example: Regional Trial Court is a court of general jurisdiction:

b) Special or Limited Jurisdiction – authority of the court to hear and determine particular cases only.

Example: MTC/MCTC can entertain petition for habeas corpus if there is no available RTC judge:

1.4.6.Principle of Judicial Hierarchy:

Hierarchy of courts meant that while the Supreme Court, the Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue original writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus, such concurrence does not accord litigants unrestrained freedom of choiceof court to which filing thereof may be directed. Petitions should be filed with the court of lower level unless the importance of the issue involved deserves the action of a higher court.(Audi AG v. Mejia,G.R. No. 167533, July 27, 2007; De los Reyes v. People, G.R. No. 138297, January 27, 2006)

General rule: A higher court will not entertain a direct resort to it UNLESS the redress cannot be obtained in the appropriate lower court.

Exception: In cases of national interest and of serious implications, Supreme Court does not hesitate to set aside the rule and proceed with the determination of the case (COMELEC v. Quijano-Padilla, G.R. No. 151992, September 18, 2002).

Purposes of Doctrine of Hierarchy of Courts; Exception

This Court’s original jurisdiction to issue writs of certiorari is not exclusive. It is shared by this Court with Regional Trial Courts and with the Court of Appeals. This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition.(United Claimants Association of NEA (Unican) Vs. National Electrification Administration (NEA), G.R. No. 187107, January 31, 2012)

Doctrine of Transcendental Importance

Evidently, the instant petition should have been filed with the RTC. However, as an exception to this general rule, the principle of hierarchy of courts may be set aside for special and important reasons. Such reason exists in the instant case involving as it does the employment of the entire plantilla of NEA, more than 700 employees all told, who were effectively dismissed from employment in one swift stroke. This to the mind of the Court entails its attention. (United Claimants Association of NEA (Unican) Vs. National Electrification Administration (NEA), G.R. No. 187107, January 31, 2012)

The rule on hierarchy of courts does not prevent the Supreme Court from assuming jurisdiction where exceptional and compelling circumstances justify the resort to such remedy, in which case, the Supreme Court exercises its primary jurisdiction (Agan vs. Philippine International Air Terminal Co.,[PIATCO], G.R. No. 155001, May 5, 2003).

Doctrine of Non-interference or Judicial Stability

Courts of equal and coordinate jurisdiction cannot interfere or review with the orders of each other. A court is barredfrom reviewing judgments of a co-equal court over which it has no appellate jurisdiction nor power of review.

Doctrine of Non-interference applicable in administrative bodies:

The doctrine applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter (Civil Procedure [A Restatement For The Bar], Riano, 2007 ed. Citing Sinter Corporation and Phividec Industrial Authority v. Cagayan Electric Power and Light Co., Inc., G.R. No. 127371, 25 April 2002).

Doctrine of Primary Jurisdiction

The court cannot or will not determine a controversy involving a question which is within

the jurisdiction of an administrative tribunal prior to resolving the same, where the question demands the exercise of sound administrative discretion requiring special knowledge, experience and services in determining technical or intricate matters of fact. (Omictin vs. Court of Appeals, G.R. No. 148004, January 22, 2007)

Exceptions:(a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of

jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice

the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and

oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by

the courts of justice;(f) where judicial intervention is urgent; (g) when its application may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of non-exhaustion of administrative remedies has been rendered

moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo warranto proceedings.(Republic v. Lacap, G.R. No. 158253, March 2, 2007, 517 SCRA 255)

Doctrine of Adherence of Jurisdiction/Continuing Jurisdiction

Jurisdiction, once it attaches, cannot be ousted by the happening of subsequent events even of such character which should have prevented jurisdiction from attaching in the first instance. “The rule of adherence of jurisdiction (exists) until a cause is finally resolved or adjudicated”. (Abad, et. al. v. RTC of Manila, et. al. G.R. No. L-65505, October 12, 1987)

Exceptions:

When the change in jurisdiction is curative in character (Abad et. al. v. RTC of Manila et. al., supra)

2.How jurisdiction is acquired?

2.1 Over the Plaintiff

The general rule in this jurisdiction is that a court acquires jurisdiction over the person of the plaintiff by the filing of his complaint. (Dilweg v. Phillips, G.R. L-19596, October 30, 1964, citing Manila Railroad Co. vs. Attorney General, 20 Phil. 523)

2.1.2. Over the defendant:

In civil cases, jurisdiction over the person of the defendant may be acquired either by service of summons or by the defendant’s voluntary appearance in court and submission to its authority. (Optima Realty Corporation Vs. Hertz Phil., Exclusive, Inc. G.R. No. 183035. January 9, 2013)

Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant’s voluntary appearance in court. (Afdal & Afdal v. Carlos, G.R. No. 173379, December 1, 2010)

Jurisdiction over the person of the defendant is required only in an action in personam. Jurisdiction over the person of the defendant is NOT a prerequisite in an action in rem and quasi in rem (Gomez v. CA, 425 SCRA 98).

2.2 Over Subject Matter:

Meaning of Jurisdiction over Subject Matter

Jurisdiction over the subject-matter is the power to hear and determine cases of the general class to which the proceedings in question belong (C. J. S., p. 36) and is conferred by the sovereign authority which organizes the court and defines its powers (Banco Español Filipino vs. Palanca, 37 Phil. 921; Perkins vs. Dizon, 40 Off. Gaz. No. 7, 3d Sup. p. 216; Ng Si Chok vs. Vera, G.R. No. 45674). (Reyes v. Diaz, G.R. No. L-48754, November 26, 1941). In other terms, it is provided by law.

How is jurisdiction over the subject matter acquired?

Jurisdiction over the subject matter is the power to hear and determine the general class to which the proceedings in question belong. Jurisdiction over the subject matter is conferred by law and not by the consent or acquiescence of any or all of the parties or by erroneous belief of the court that it exists. Basic is the rule that jurisdiction over the subject matter is determined by the cause or causes of action as alleged in the complaint. (G.R. No. 178193, Danilo S. Ursua Vs. Republic of the Philippines)

How Jurisdiction is conferred and determined

It is an elementary rule of procedural law that jurisdiction over the subject matter of the case is conferred by law and is determined by the allegations of the complaint irrespective of whether the plaintiff is entitled to recover upon all or some of the claims asserted therein. As a necessary consequence, the jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or upon the motion to dismiss, for otherwise, the question of jurisdiction would almost entirely depend upon the defendant. What determines the jurisdiction of the court is the nature of the action pleaded as appearing from the allegations in the complaint. The averments in the complaint and the character of the relief sought are the matters to be consulted.(Fe V. Rapsing, Tita C. Villanueva and Annie F. Aparejado, represented by Edgar Aparejado Vs. Hon. Judge Maximino R. Ables, of RTC-Branch 47, Masbate City; SSGT. Edison Rural, et al. G.R. No. 171855. October 15, 2012)

It is a basic rule that jurisdiction over the subject matter is determined by the allegations in the complaint. It is determined exclusively by the Constitution and the law. It cannot be conferred by the voluntary act or agreement of the parties, or acquired through or

waived, enlarged or diminished by their act or omission, nor conferred by the acquiescence of the court. Well to emphasize, it is neither for the court nor the parties to violate or disregard the rule, this matter being legislative in character. (Mendoza v. Germino & Germino, G.R. No. 165676, November 22, 2010)

Lack of jurisdiction over the subject matter a ground for annulment of judgment.

As this Court previously clarified in Republic of the Philippines v. "G" Holdings, Inc., "lack of jurisdiction" as a ground for the annulment of judgments pertains to lack of jurisdiction over the person of the defending party or over the subject matter of the claim. It does not contemplate "grave abuse of discretion" considering that "jurisdiction" is different from the exercise thereof. As ruled in Tolentino v. Judge Leviste: Jurisdiction is not the same as the exercise of jurisdiction. As distinguished from the exercise of jurisdiction, jurisdiction is the authority to decide a cause, and not the decision rendered therein. Where there is jurisdiction over the person and the subject matter, the decision on all other questions arising in the case is but an exercise of the jurisdiction. And the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal. (Remedios Antonino, Vs. The Register Of Deeds Of Makati City And Tan Tian Su, G.R. No. 185663, June 20, 2012)

When to raise objections to jurisdiction over subject matter?

As a rule, an objection over subject-matter jurisdiction may be raised at any time of the proceedings. This is because jurisdiction cannot be waived by the parties or vested by the agreement of the parties. Jurisdiction is vested by law, which prevails at the time of the filing of the complaint. (Lasmis v. Dong-E, G.R. No. 173021, October 20, 2010)

Effects of Estoppel on objections to jurisdiction

The defense of lack of jurisdiction cannot be waived and may be raised at any stage of the proceeding even on appeal since it is conferred by law(De Leon vs. Court of Appeals, 245 SCRA 166, 1995).

A party may be barred from raising the defense of lack of jurisdiction or jurisdiction may be waived on the ground of estoppel by laches. A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968).

Lack of jurisdiction over subject matter vs. lack of jurisdiction over person of the petitioner

Lack of jurisdiction on the part of the trial court in rendering the judgment or final order is either lack of jurisdiction over the subject matter or nature of the action, or lack of jurisdiction over the person of the petitioner. The former is a matter of substantive law because statutory law defines the jurisdiction of the courts over the subject matter or nature of the action. The latter is a matter of procedural law, for it involves the service of summons or other process on the petitioner. A judgment or final order issued by the trial court without jurisdiction over the subject matter or nature of the action is always void, and, in the words of Justice Street in Banco Español-Filipino v. Palanca (37 Phil 949 [1918]), “in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.” But the defect of lack of jurisdiction over the person, being a

matter of procedural law, may be waived by the party concerned either expressly or impliedly. (Pinausukan Seafood House-Roxas Blvd., Inc. v. Far East Bank and Trust Cp., now Bank of the Philippine Islands, et al., G.R. No. 159926, January 20, 2014.)

2.3 Over the Issues

This is determined and conferred by the pleadings filed in the case by the parties, or by their agreement in a pre-trial order or stipulation, or, at times by their implied consent as by the failure of a party to object to evidence on an issue not covered by the pleadings, as provided in Sec. 5, Rule 10. (De Joya v. Marquez, et. al., G.R. No. 163416, January 31, 2006)Note: An issue is a single, certain, and material point arising out of the allegations and contentions of the parties; it is a matter affirmed on one side and denied on the other, and when a fact is alleged in the complaint and denied in the answer, the matters is then put in issue between the parties (Black’s, 9th Ed. Citing 35A C.J.S. Federal Civil Procedure Sec. 357, at 541).

2.4 Over the Res or Property Involved in Litigation

This is acquired by the actual or constructive seizure by the court of the thing in question, thus placing it in custodia legis, as in attachment or garnishment; or by provision of law which recognizes in the court the power to deal with the property or subject matter within its territorial jurisdiction, as in land registration proceedings or suits involving civil status or real property in the Philippines of a non-resident defendant. (De Joya v. Marquez, et. al., supra)

2.5. Error of Jurisdiction as distinguished from Error of Judgment

Any error committed in the evaluation of evidence is merely an error of judgment that cannot be remedied by certiorari. An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction, or with grave abuse of discretion, which is tantamount to lack or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors of the trial court in its appreciation of the evidence of the parties, or its conclusions anchored on the said findings and its conclusions of law. (First Corporation v. Former Sixth Division of Court of Appeals et. al., G.R. No. 171989, July 4, 2007)

2.6.. Jurisdiction versus the Exercise of Jurisdiction

Jurisdiction should be distinguished from the exercise of jurisdiction. The authority to decide a case at all and not the decision rendered therein is what makes up jurisdiction. Where there is jurisdiction of the person and the subject matter, the decision of all other question arising in the case is but an exercise of that jurisdiction. (Napa v. Weissenhagen, G.R. No. L-9698, January 6, 1915)

2.7. Jurisdiction of different Courts:

JURISDICTION OF COURTS IN CIVIL CASES

2.5.1 Supreme Court (SC)

ORIGINAL

1. Exclusive

Petitions for certiorari, prohibition or mandamus against CA, COMELEC, COA, CTA and Sandiganbayan.

2. Concurrent

a. with the CA

1. Petitions for certiorari, prohibition or mandamus against RTC, Civil Service Commission, Central Board of Assessment Appeals, Other quasi-judicial agencies and NLRC

2. Petition for Writ of Kalikasan and continuing mandamus pursuant to the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC, effective 29 April 2010)

b. with the CA, SANDIGANBAYAN and RTC

1. Petitions for certiorari, prohibition or mandamus against courts of the first level and other bodies; and

2. Petitions for Habeas Corpus and Quo Warranto 3. Petition for continuing mandamus pursuant to the Rules of

Procedure for Environmental Cases (A.M. No. 09-6-8-SC, effective 29 April 2010)

c. with RTC Actions affecting ambassadors, other public ministers and consuls

d. with CA, RTC and

Sandiganbayan

1. Petition for Writ of Amparo; and2. Petition for a Writ of Habeas Data

APPELLATEPetitions for Review on Certiorari against the CA, Sandiganbayan, CTA en banc, Final judgment or order in a Writ of Amparo or Habeas Data case and RTC in cases involving:a. Constitutionality or validity of a treaty, international or

executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation

b. Legality of a tax, impost, assessment, toll or a penalty in relation thereto

c. Jurisdiction of a lower court, andd. Pure error or question of law.

2.5.2 Court of Appeals (CA)

ORIGINAL

1. Exclusive Actions for annulment of judgments of RTC

2. Concurrent

a. with the SC

1. Petitions for certiorari, prohibition or mandamus against RTC, Civil Service Commission, Central Board of Assessment Appeals, Other quasi-judicial agencies & NLRC

2. Petition for Writ of Kalikasan and continuing mandamus pursuant to the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC, effective 29 April 2010)

b. with SC, Sandiganbayan and RTC

1. Petitions for certiorari, prohibition or mandamus against courts of the first level and other bodies; and

2. Petitions for Habeas Corpus and Quo Warranto 3. Petition for continuing mandamus pursuant to the

Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC, effective 29 April 2010)

c. with SC,

Sandiganbayan and RTC

1. Petition for Writ of Amparo (Sec. 3, Rule on the Writ of Amparo); and

2. Petition for a Writ of Habeas Data (Sec. 3, Rule on the Writ of Habeas Data)

APPELLATE1. Ordinary Appeals from RTC, except in cases

exclusively appealable to the SC, Family Courts and Special Commercial Courts

2. Appeal by Petition for Review from Civil Service Commission, SEC, Land Registration Authority, Social Security Commission, Office of the President and any other quasi-judicial agency, instrumentality, board or commission in the exercise of its quasi-judicial functions

3. Petitions for Review from RTC in cases appealed thereto from the lower courts

2.5.3 Court of Tax Appeals (CTA)

ORIGINAL

1. Exclusive

1. Over all criminal cases arising from violation of NIRC of the TCC and other laws, part of laws, or special laws administered by the BIR or the BOC where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M or where there is no specified amount claimed;

2. In tax collection cases involving final and executor assessments of taxes, fees, charges and penalties where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M tried by the proper MTC, MeTC and RTC.

1. In criminal offenses (1) over appeals from the judgments,

APPELLATE resolutions, or orders of the RTC in tax cases originally decided by them, in their respective territorial jurisdiction and (2) over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs,and MCTCs in their respective jurisdiction;

2. In tax collection cases (1) over appeals from the judgments, resolutions, or orders of the RTC in tax collection cases originally decided by them, in their respective territorial jurisdiction and (2) over petitions for review of the judgments, resolutions or orders of the RTC in the the exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs,and MCTCs in their respective jurisdiction.

Exclusive original or appellate to review by

appeal

1. Decisions of CIR in cases involving disputed assessment, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by the BIR;

2. Inaction by the CIR in cases involving disputed assessment, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by the BIR where the NIRC or other applicable law provides s specified period of action, in which case the inaction shall be deemed an implied denial;

3. Decisions, orders or resolutions of the RTCs in local taxes originally decided by them in the exercise of their original and appellate jurisdiction;

4. Decisions of the Commissioner of Customs (1) in cases involving liability for customs duties, fees or other charges, seizure, detention or release of property affected, fines, forfeiture, or other penalties in relation thereto, or (2) other matters arising under the Customs law, or other laws, part of laws or special laws administered by BOC;

5. Decisions of the Central Board of Assessment Appeals in the exercise of appellate jurisdiction over cases involving assessment and taxation of real property originally decided by the provincial or city board of assessment appeals;

6. Decision of the Secretary of Finance on custom cases elevated to him automatically for review from the decisions of the Commissioner of Customs which are adverse to the government under section 2315 of the TCC;

7. Decisions of the Secretary of Trade and Industry I the case of non- agricultural product, commodity or article and the secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling duties under Secs. 301 and 302 of TCC and safeguard measures under RA **)), where the party may appeal the decision to impose or not to impose said duties.(RA 9282 and Rule 5, AM 05-11-07-CTA)

2.5.4. Sandiganbayan

ORIGINAL

1. Exclusive

Civil cases filed pursuant to E. O. Nos. 1, 2, 14 and 14-A (PCGG cases for recovery of ill-gotten wealth)

Three conditions:

1. What offenses: offenses must be cognizable by the Sandiganbayan (Hannah Serana vs. Sandiganbayan, G.R. No. 162059, January 22, 2008).

2. Offender: offender must be a public officer (Escobal vs. Garchitorena, G.R. No. 124644, February 5, 2004).

3. How committed: it must be committed in relation to their public office(Lacson vs. Executive Secretary, G.R. No. 128096, January 20, 1999).

2. Concurrent

a. with the SC

Petitions for certiorari, prohibition, mandamus, habeas corpus, injunction and other ancillary writs in aid of its appellate jurisdiction including quo warranto arising in cases falling under E.O.s 1, 2, 14, 14-A (PCGG cases for recovery of ill-gotten wealth)

b. with the SC, CA Petition for writ of amparo and habeas data

APPELLATE Final judgments, resolutions or orders of RTC whether in the exercise of their original or appellate jurisdiction (RA 8249) over crimes and civil cases falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by public officers below SG 27

2.5.5. Regional Trial Court (RTC)

ORIGINAL

1. Exclusive

1. Actions in which the subject of litigation is incapable of pecuniary estimation;

2. Actions involving title to or possession of real property or an interest therein, where the assessed value of such property exceeds P50,000 in Metro Manila, or P20,000 outside Metro Manila, except forcible entry and unlawful detainer;

3. Actions involving marriage and marital relations;

4. Cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions;

5. Other cases where the demand, exclusive of interest, damages, attorney’s fees, litigation expenses and costs, or the value of the property exceeds P400,000 in Metro Manila, or P300,000 outside Metro Manila (SC Circular No. 09-94);

6. Actions for annulment of MTC judgments;

7. Actions for recognition and enforcement of arbitration agreement, vacation or modification of arbitration award, application for arbitration award and supervision(Sec. 47, ADR Act of 2004);

8. Citizen suit(Sec. 41 of the Clean Air Act).

9. Admiralty and maritime cases where the demand or claim exceeds P400,000 in Metro Manila, or P300,000 outside Metro Manila, exclusive of interest, damages, attorney’s fees, litigation expenses, and costs (CLAID);

10. Probate proceedings, testate or intestate, where gross value of estate exceeds P400,000 in Metro Manila, or P300,000 outside Metro Manila

As a SPECIAL COMMERCIAL COURT

1. Cases involving violations of Intellectual Property Rights;2. Cases enumerated under Sec. 5, PD 902-A (Intra-corporate

disputes, fraud scheme cases, election cases, petitions for suspension of payments and/or rehabilitation proceedings).

2. Concurrent

a. with the SC

Actions affecting ambassadors, other public ministers and consuls.

b. with the SC and CA1. Petitions for certiorari, prohibition and mandamus against

lower courts and bodies; and2. Petitions for habeas corpus and quo warranto3. Petition for continuing mandamuspursuant to the Rules of

Procedure for Environmental Cases (A.M. No. 09-6-8-SC, effective 29 April 2010)

2.5.6. Family Courts

EXCLUSIVE ORIGINAL 1. Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

2. Petitions for adoption of children and the revocation thereof;3. Complaints for annulment of marriage, declaration of nullity

of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains;

4. Petitions for support and/or acknowledgment;5. Summary judicial proceedings brought under the provisions

of E.O. No. 209 or the Family Code;6. Petitions for declaration of status of children as abandoned,

dependent o neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under P.D. No. 603, E.O. No. 56, (Series of 1986), and other related laws;

7. Petitions for the constitution of the family home; and8. Cases of domestic violence against women and children, as

defined in sec. 5(k), R.A. 8369, but which do not constitute criminal offenses subject to criminal prosecution and penalties

9. Cases covered by Juvenile Justice and Welfare Act (RA 9344)

2.5.7. Metropolitan Trial Courts (MeTC), Municipal Trial Courts (MTC)

and Municipal Circuit Trial Courts (MCTC)

ORIGINAL

1. Exclusive

NOTE: The jurisdictional amount was adjusted pursuant to Sec. 5, RA 7691, now being the 2nd

5-year period from the date of effectivity of said act.

1. Actions involving personal property valued at not more than P400,000 in Metro Manila and P300,000 outside Metro Manila;

2. The following cases or actions where the value in consideration does not exceed P400,000 in Metro Manila and P300,000 outside Metro Manila, in both cases, exclusive of interest, damages, attorney’s fees, litigation expenses and costs (CLAID):

a. Actions demanding sums of money;b. Demand or claim in admiralty and maritime

cases;c. The estate value in probate proceedings,

interstate or estate;

3. Actions involving title or possession of real property where the assessed value does not exceed P50,000 in Metro Manila, or P20,000 outside Metro Manila, exclusive of interest,

damages, attorney’s fees, litigation expenses, and costs (CLAID);

4. Forcible entry and unlawful detainer, provided that in cases where the defendant raises the question of ownership and the question of possession cannot be resolved without deciding on the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession;

2. Concurrent

a. with RTC

3. Delegated Cadastral and land registration casesassigned by the SC where there is a). no controversy or opposition, or b). where there is controversy, the contested lot valued at not more than P100,000.

4. Special Petition for habeas corpus or application for bail in criminal cases in the absence of all RTC Judges in a province or city (BP 129, as amended, Chapter III, Sec 35)

5. Summary Procedure

1. Forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered; but attorney’s fees shall not exceed P20,000;

2. All other cases, except probate proceedings, where total claim does not exceed P200,000.00 in Metro Manila, or P100,000 outside Metro Manila, exclusive of interest and costs.

3. Small claims cases where the amount of the claim for payment or reimbursement of money does not exceed P100,000.00

2.5.8. Shari’a Court (P.D. No. 1083)

ORIGINAL

1. Exclusive

NOTE: The Shari’a District Courts are equivalent to the RTC in rank which were established in certain provinces of Mindanao where the

1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under PD No. 1083;

2. All cases involving disposition, distribution and settlement of the estate of a deceased Muslim, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property;

3. Petitions for declaration of absence and death and for cancellation and correction of entries in the Muslim Registries mentioned in Title VI, Book Two of P.D. No. 1083;

Code of Muslim Personal Laws of the Philippines is enforced.

(P.D. No. 1083)

4. All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations;

5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all auxiliary writs and processes in aid of its appellate jurisdiction (Art. 143[1]).

2. Concurrent with EXISTING CIVIL COURTS

1. Petitions by Muslim for the constitution of the family home, change of name and commitment of insane person to any asylum;

2. All other personal and real actions not mentioned in paragraph 1(d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer which shall fall under the exclusive original jurisdiction of the Municipal Circuit Courts; and

3. All special civil actions for interpleader or declaratory relief where the parties are Muslims or the property involved belong exclusively to a Muslim (Art. 143[2]).

APPELLATE

All cases tried in the Shari’a Circuit Court within their territorial jurisdiction.

NOTE: The Shari’a District Court shall decide every case appealed to it on the basis of the evidence and records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit (Art. 144[2]).

NOTE: The decisions of the Shari’a District Courts whether on appeal from the Shari’a Circuit Courts or not, shall be final. The Supreme Court shall, however, continue to exercise original and appellate jurisdiction over certain issues as provided by the Constitution (Art. 145).

2.7. Jurisdiction over Small Claims cases:

Over 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.

Court which has jurisdiction.

To be tried 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.

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; or5) Contract of Mortgage.

b. For damages arising from any of the following:1) Fault or negligence;2) Quasi-contract; or3) Contract.

Immediate execution of judgment in Small Claims cases.

Section 23 of the Rule of Procedure for Small Claims Cases states that 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. (A.L. Ang Network, Inc. v. Emma Mondejar, accompanied by her husband, Efren Mondejar,G.R. No. 200804. January 22, 2014.)

Rule on Summary Procedure

A. Civil Cases:

1. All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered; but attorney's fees shall not exceed P20,000.00.

2. All other civil cases, EXCEPT probate proceedings, where the total amount of the plaintiff's claim does not exceed P100, 000.00 or P200,000.00 in Metro Manila, exclusive of interest and costs. (as amended by A.M. 02-11-09-SC, effective November 25, 2002)

Criminal Cases:

1. Violations of traffic laws, rules and regulations;2. Violations of the rental law; 3. Violations of Municipal or city ordinances;4. All other criminal cases where the penalty prescribed by law for the offense charged is

imprisonment not exceeding 6 months, or a fine not exceeding P1,000.00, or both, irrespective of other imposable penalties,

5. Offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed P10,000.00

Note:

This Rule shall NOT apply to a civil case where the plaintiff’s cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

Forcible entry and unlawful detainer summary proceedings:

An action for forcible entry is filed in the municipal trial court and is a summary action, while accion publiciana is a plenary action in the RTC. x x x Because they only resolve issues of possession de facto, ejectment actions are summary in nature, while accion publiciana (for the recovery of possession) and accion reivindicatoria (for the recovery of ownership) are plenary actions.48 The purpose of allowing actions for forcible entry and unlawful detainer to be decided in summary proceedings is to provide for a peaceful, speedy and expeditious means of preventing an alleged illegal possessor of property from unjustly taking and continuing his possession during the long period it would take to properly resolve the issue of possession de jure or ownership, thereby ensuring the maintenance of peace and order in the community; otherwise, the party illegally deprived of possession might take the law in his hands and seize the property by force and violence. An ejectment case cannot be a substitute for a full blown trial for the purpose of determining rights of possession or ownership. (Fiorello R. Jose Vs. Roberto Alfuerto, et al. G.R. No. 69380. November 26, 2012)

Barangay Conciliation:

General rule:

The lupon tagapamayapa of each barangay shall have authority to bring together the parties residing in the same city or municipality for amicable settlement of ALL disputes

EXCEPT

a. Where one party is the government, or any subdivision or instrumentality thereof; however, when it is only one of the contending parties, a confrontation should still be undertaken among the other parties (Gegare v. CA, G.R. No. 83907. September 13, 1989)

b. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

c. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000;d. Offenses where there is no private offended party;e. Where the dispute involves real properties located in different cities or municipalities unless

the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

f. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

g. Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Sec. of Justice; and

h. Where one of the parties is a juridical entity (Sec. 408, R.A. 7160)i. Where the dispute arises from the Comprehensive Agrarian Reform Lawj. The submission of disputes before the Lupon prior to their filing with the court or other

government offices are not applicable to labor cases. (Montoya v. Escayo, G.R. No. 82211-12 March 21, 1989)

k. An action for annulment of a compromise judgment which as a general rule is immediately executory and accordingly, beyond the authority of the Barangay Court to change or modify.(Sanchez v. Tupaz, G.R. No. 76690 February 29, 1988)

l. Proceedings where relief is sought under R.A. No. 9262 or the Anti-Violence against Women and their Children Act (Sec. 33, R.A. No. 9262)

Other Instances where parties may go directly to court without the need of prior barangay conciliation:

a. Where the accused is under detentionb. Where a person has otherwise been deprived of personal liberty calling for habeas

corpus proceedings;c. Where actions are coupled with provisional remedies such as preliminary injunction,

attachment, replevin and support pendent lite; andd. Where the action may otherwise be barred by the statute of limitations. (Section 412,

LGC)

Barangay conciliation not required in case of juridical entity:

Referral of a dispute to the Lupon is required only in cases involving natural persons, and not where any of the parties is a juridical person such as a corporation, partnership, corporation sole, testate or intestate, estate, etc. (Vda. De Borromeo v. Pogoy, G.R. No. L-63277. November 29, 1983)

Nature and effects of non-compliance with barangay conciliation:

As cited in the case Sanchez v. Tupaz, referral to the Lupon is compulsory (as ruled in the cited case of Morato vs. Go, 125 SCRA 444), [1983] and non-compliance of the same could affect the sufficiency of the cause of action and make the complaint vulnerable to dismissal on the ground of lack of cause of action or prematurity (Peregrina vs. Panis, 133 SCRA 75).

Venue of barangay conciliation.

1. Disputes between or among persons actually residing in the same barangay shall be brought for amicable settlement before the Lupon of said barangay.

2. Actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant

3. All disputes which involved real property or any interest therein shall be brought in the barangay where the real property or any part thereof is situated.

4. Disputes arising at the workplace where the contending parties are employed or at the institution where the contending parties are enrolled to study, the barangay where such workplace or institution is located. (Sec. 409, LGC).

Nature of Amicable Settlement

[A]n amicable settlement reached at the barangay conciliation proceedings, like the Kasunduang Pag-aayos in this case, is binding between the contracting parties and, upon its perfection, is immediately executory insofar as it is not contrary to law, good morals, good customs, public order and public policy. This is in accord with the broad precept of Article 2037 of the Civil Code. (Crisanta Alcaraz Miguel vs. Jerry D. Montanez, G.R. No. 191336, January 25, 2012)

Effect of amicable settlement:

Being a by-product of mutual concessions and good faith of the parties, an amicable settlement has the force and effect of res judicata even if not judicially approved . It transcends being a mere contract binding only upon the parties thereto, and is akin to a judgment that is subject to execution in accordance with the Rules. (Crisanta Alcaraz Miguel vs. Jerry D. Montanez, G.R. No. 191336, January 25, 2012)

Remedy of Execution of settlement, when available?

Modes of execution of amicable settlement or arbitration award:

Thus, under Section 417 of the Local Government Code, such amicable settlement or arbitration award may be enforced by

(1) Execution by the Barangay Lupon within six (6) months from the date of settlement, or

(2) by filing an action to enforce such settlement in the appropriate city or municipal court, if beyond the six-month period.

Execution before the barangay:

Under the first remedy, the proceedings are covered by the Local Government Code and the Katarungang Pambarangay Implementing Rules and Regulations. The Punong Barangay is called upon during the hearing to determine solely the fact of non-compliance of the terms of the settlement and to give the defaulting party another chance at voluntarily complying with his obligation under the settlement.

Execution before the court:

Under the second remedy, the proceedings are governed by the Rules of Court, as amended. The cause of action is the amicable settlement itself, which, by operation of law, has the force and effect of a final judgment.

Execution is available only when there is no repudiation of the amicable settlement:

It must be emphasized, however, that enforcement by execution of the amicable settlement, either under the first or the second remedy, is only applicable if the contracting parties have not repudiated such settlement within ten (10) days from the date thereof in accordance with Section 416 of the Local Government Code.

Remedies if a party repudiated the settlement

If the amicable settlement is repudiated by one party, either expressly or impliedly, the other party has two options, namely, (1) to enforce the compromise in accordance with the Local Government Code or Rules of Court as the case may be, or (2) to consider it rescinded and insist upon his original demand. This is in accord with Article 2041 of the Civil Code, which qualifies the broad application of Article 2037, viz: “If one of the parties fails or refuses to abide by the compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original demand.”

In the case at bar, the Revised Katarungang Pambarangay Law provides for a two-tiered mode of enforcement of an amicable settlement, to wit:

(a) by execution by the Punong Barangay which is quasi-judicial and summary in nature on mere motion of the party entitled thereto; and

(b) an action in regular form, which remedy is judicial.

However, the mode of enforcement does not rule out the right of rescission under Art. 2041 of the Civil Code. The availability of the right of rescission is apparent from the wording of Sec. 417 itself which provides that the amicable settlement "may" be enforced by execution by the lupon within six (6) months from its date or by action in the appropriate city or municipal court, if beyond that period. The use of the word "may" clearly makes the procedure provided in the Revised Katarungang Pambarangay Law directory or merely optional in nature.

The CA took off on the wrong premise that enforcement of the Kasunduang Pag-aayos is the proper remedy, and therefore erred in its conclusion that the case should be remanded to the trial court. The fact that the petitioner opted to rescind the Kasunduang Pag-aayos means that she is insisting upon the undertaking of the respondent under the original loan contract. Thus, the CA should have decided the case on the merits, as an appeal before it, and not prolong the determination of the issues by remanding it to the trial court. Pertinently, evidence abounds that the respondent has failed to comply with his loan obligation. In fact, the Kasunduang Pag-aayos is the well nigh incontrovertible proof of the respondent’s indebtedness with the petitioner as it was executed precisely to give the respondent a second chance to make good on his undertaking. And since the respondent still reneged in paying his indebtedness, justice demands that he must be held answerable therefor. (Crisanta Alcaraz Miguel vs. Jerry D. Montanez, G.R. No. 191336, January 25, 2012)

2.8. Totality Rule

Where there are several claims or causes of action between the same or different parties embodied in the same complaint, the amount of the demand shall be the totality of the claims in all causes of action, irrespective of whether the causes of action arose out of the same or different transactions.

The causes of action in favor of two or more plaintiffs or against two or more defendants should arise out of the same transaction or series of transactions and there should be a common question of law or fact as provided in Sec. 6, Rule 3 (Flores v. Mallare-Philips, L-66620, September 24, 1986).

3. Civil Procedure

3.1. Kinds of Actions:

3.1.1. Meaning of Ordinary Civil Actions

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 (Rule 1, Section 3(a), Rules of Court). It is governed by ordinary rules on action.

3.1.2. Meaning of Special Civil Actions

It is one which is also governed by the rules of ordinary civil actions, but subject to the specific rules prescribed for such particular special civil action (Rule1, Sec. 3[a] 2nd par., Rule 1).

3.1.3. Meaning of Criminal Actions

It is one by which the State prosecutes a person for an act or omission punishable by law . (Sec. 3[b], Rule 1)

3.1.4. Civil Actions versus Special Proceedings

A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. To initiate a special proceeding, a petition and not a complaint should be filed. (Ramon Ching and Po Wing Corp. v. Rodriguez, et. al., G.R. No. 192828, November 28, 2011)

3.1.5. Real Actions and Personal Actions: Issue as to venue:

Real Actions are actions affecting title to or the recovery of possession of real property, or an interest therein, or forcible entry and detainer actions. A real action is “local,” i.e., its venue depends upon the location of the property involved in the litigation. (Riano).

Personal Actions are actions founded on privity of contract or for the enforcement or resolution of a contract, or for recovery of personal property (Feria Noche, Civil Procedure Annotated, Vol. I). A personal action is “transitory,” i.e., its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff (Riano).

Action to annul Sale and Title over a real property is a Real Action:

Civil Case No. 01-1567, being an action for Annulment of Sale and Titles resulting from the extrajudicial foreclosure by Union Bank of the mortgaged real properties, is classified as a real action. In Fortune Motors v. Court of Appeals, this Court held that a case seeking to annul a foreclosure of a real estate mortgage is a real action, viz: An action to annul a real estate mortgage foreclosure sale is no different from an action to annul a private sale of real property. (Muñoz v. Llamas, 87 Phil. 737, 1950). While it is true that petitioner does not directly seek the recovery of title or possession of the property in question, his action for annulment of sale and his claim for damages are closely intertwined with the issue of ownership of the building which, under the law, is considered immovable property, the recovery of which is petitioner’s primary objective. The prevalent doctrine is that an action for the annulment or rescission of a sale of real property does not operate to efface the fundamental and prime objective and nature of the case, which is to recover said real property. It is a real action. (Paglaum Management & Development Corp. And Health Marketing Technologies, Inc., Vs. Union Bank Of The Philippines, Notary Public John Doe, And Register Of Deeds Of Cebu City And Cebu Province, $J. King & Sons Co., Inc. Intervenor, G.R. No. 179018, June 18, 2012)

3.1.6. Local and Transitory Actions

Local Actions are actions which can only be instituted in a particular place.Transitory Actions are actions where the venue of which is generally dependent upon the residence of the parties regardless of where the cause of action arise.

3.1.7. Actions In Rem, In Personam, Quasi- in- Rem: Issue as to jurisdiction in relation to service of summons (Rule 14):

In Rem:

One which is not directed against a particular person but on the thing or res itself and the relief sought is binding upon the whole world.

The thing or res maybe personal or real property or it may be a status, right, or a particular fact (Primer-Reviewer on Remedial Law, Vol.I, Civil Procedure, Riguera, 1st ed., 2009).

The object is to bar indifferently all who might be minded to make any objection against the right sought to be enforced, hence the judgment therein is binding theoretically upon the whole world, e.g., expropriation (Regalado).

In PersonamOne which is directed against a particular person and the relief sought is binding upon

such person e.g., action for sum of money or for specific performance.

Service of summons in actions in personam

Where the action is in personam [footnote: An action in personam is one which seeks to enforce personal rights and obligations against a defendant and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. (See Belen v. Chavez , G.R. No. 175334, March 26, 2008, 549 SCRA 479, 481.)] and the defendant is in the Philippines, service of summons may be made through personal service, that is, summons shall be served by handing to the defendant in person a copy thereof, or if he refuses to receive and sign for it, by tendering it to him. If the defendant cannot be personally served with summons within a reasonable time, it is then that substituted service may be made. Personal service of summons should and always be the first option, and it is only when the said summons cannot be served within a reasonable time can the process server resort to substituted service. (Planters Development Bank, Vs. Julie Chandumal, G.R. No. 19561905 September 2012)

Quasi in Rem:

It is a proceeding where an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property e.g., Quieting of Title where the object is in rem (real property) and the subject is in personam (defendant). The judgment entered in this proceeding is conclusive only between the parties (Feria Noche, Civil Procedure, Vol. I)

Whether a proceeding is in rem, or in personam or quasi in rem is determined by its nature and purpose (Yu v. Pacleb, etc., G.R. No. 172172, 24 Feb. 2009).

3.1.8. Independent Civil Actions

Rules on independent civil actions: Nature:

In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (Rule 111, Section 3)

Cases which are considered as an independent civil action:

Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following (constitutional) rights and liberties of another person shall be liable to the latter for damages… x x x – Article 32, Civil Code (in italics added for clarification)

In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. – Article 33, Civil Code

When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. – Article 34, Civil CodeWhoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. – Article 2176, Civil Code

3.2. Cause of Action

3.2.1 Meaning of Cause of Action

It is the act or omission by which a party violates the right of another (Rule 2, Sec. 2).

A cause of action is defined in Section 2, Rule 2 of the Rules of Court as the act or omission by which a party violates the right of another. (Goodland Company, Inc., vs. Asia United Bank, Abraham Co, Atty. Joel T. Pelicano And The Register Of Deeds Of Makati City, G.R. No. 195561, March 14, 2012)

Elements of Cause of Action:

1) A legal right of the plaintiff;2) A correlative duty of the defendant to respect plaintiff’s right; and3) An act or omission of the defendant in violation of the plaintiff’s right with

consequential injury or damage to the plaintiff for which he may maintain an action for recovery or other relief (Relucio vs. Lopez, 373 SCRA 578, 2002).

Section 2, Rule 2 of the Rules of Court defines a cause of action as an act or omission by which a party violates the right of another. A complaint states a cause of action when it contains three (3) essential elements of a cause of action, namely:

1) the legal right of the plaintiff,2) the correlative obligation of the defendant, and3) the act or omission of the defendant in violation of said legal right (Juana Complex I

Homeowners Association, Inc., et al. vs. Fil-Estate Land, Inc., G.R. No. 152272, March 5, 2012)

3.2.2. Right of Action versus Cause of Action

Right of action is the right to commence and prosecute an action to obtain the relief sought, while cause of action is the act or omission by which a party violates the right of another (Rule 2, Sec. 2).

Elements of Right of Action:

a)Existence of the cause of action;b) Performance of all conditions precedent; and c) The action must be instituted by the proper party.

3.2.3. Failure to State Cause of Action

Where there is failure to state a cause of action in a pleading, the remedy of the defendant is to move for its dismissalon the ground that the pleading asserting the claim states no cause of action.Rule 16, Sec 1 (g)

3.2.4. Test of Sufficiency of Action

Whether or not admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer in the complaint (Misamis Occidental II Cooperative, Inc. v. David, 468 SCRA 63).

The question of whether the complaint states a cause of action is determined by its averments regarding the acts committed by the defendant. Thus, it must contain a concise statement of the ultimate or essential facts constituting the plaintiff’s cause of action. To be taken into account are only the material allegations in the complaint; extraneous facts and circumstances or other matters aliunde are not considered.

The test of sufficiency of facts alleged in the complaint as constituting a cause of action is whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of said complaint. Stated differently, if the allegations in the complaint furnish sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defense that may be asserted by the defendant. (Juana Complex I Homeowners Association, Inc., et al. vs. Fil-Estate Land, Inc., G.R. No. 152272, March 5, 2012)

3.2.5. Splitting a Single Cause of Action and its Effects

Splitting a single cause of Action

The act of dividing a single cause of action, claim or demand into two or more parts, and bringing the suit for one of such parts only, intending to reserve the rest for another separate action is the prohibited act of splitting a single cause of action (Regalado).

Effects

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 (Rule 2, Sec. 4).

When a single cause of action is split, the remedy of the defendant is to move for its dismissal under Rule 16 on the ground that:

1) There is another action pending between the same parties for the same cause, or litis pendentia (Sec. 1[e]); or

2) If the first action has already been finally terminated, on the ground of res judicata (Sec. 1[f]).

The well-entrenched rule is that "a party cannot, by varying the form of action, or adopting a different method of presenting his case, escape the operation of the principle that one and the same cause of action shall not be twice litigated.” This Court has laid down the test in determining whether or not the causes of action in the first and second cases are identical, to wit: would the same evidence support and establish both the present and former cause of action? If so, the former recovery is a bar; if otherwise, it does not stand in the way of the former action. (Goodland Company, Inc., vs. Asia United Bank, Abraham Co, Atty. Joel T. Pelicano And The Register Of Deeds Of Makati City, G.R. No. 195561, March 14, 2012)

What is litis pendentia?

Litis pendentia is a Latin term, which literally means "a pending suit" and is variously referred to in some decisions as lis pendens and auter action pendant. As a ground for the dismissal of a civil action, it refers to the situation where two actions are pending between the same parties for the same cause of action, so that one of them becomes unnecessary and vexatious. It is based on the policy against multiplicity of suits. (Philippine National Bank vs. Gateway Property Holdings, Inc., G.R. No. 181485, February 15, 2012)

3.2.6. Joinder and Mis-joinder of Causes of Action.

Joinder of Causes of Action :

The assertion, in the alternative or otherwise, of as many causes of action as a party may have against another in one pleading alone is valid. (Rule 2, Section 5)

Requisites for joinder of parties:

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 action or actions governed by special rules;c) Where the causes of action are between the same parties but pertain to different

venues or jurisdiction, the joinder may be allowed in the RTC provided that:

1) one of the causes of action falls within the jurisdiction of the RTC; and2) the venue lies therein.

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 (Totality Rule, Sec. 33[1], B.P. 129).

Elements for Joinder of Parties

a) There must be a right to relief in respect to or arising from the same transaction or series of transaction;

b) There is a question of fact or law common to all the plaintiffs or defendants; andc) Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction

and venue (Sec. 6, Rule 3).

Nature of joinder of causes of action:

The rule on joinder of causes of action is purely permissive and the plaintiff can always file separate actions for each cause of action (Baldovir v. Sarte, 36 Phil. 550).

Conditions of causes of action:

The rule on permissive joinder of causes of action is subject to the rules regarding jurisdiction, venue and joinder of parties.

Note: When the joinder refers to joinder ofindispensable parties, joinder is COMPULSORY (Sec. 7, Rule 3).

The provision allowing joinder of causes of action which pertains to different jurisdictions under Section 5 (c) of Rule 2 applies only if the joinder is in the RTC.

Misjoinder of Causes of Action

Two or more causes of action are joined in one complaint when they should not have been joined. (Rule 2, Section 6)

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 (Rule 2, Section 6)

3.3. Parties to Civil Actions:

3.3.1. Real parties-in-interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants

Real Party in Interest (Rule 3, Sec. 2)

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.

General Rule:Unless otherwise authorized by law or these Rules, every action must be prosecuted and defended in the name of the real party in interest. Exception: An exception to the rule that every action must be prosecuted or defended in the name of the real party in interest is in the case of representatives as parties (Rule 3, Section 3)

To be a real party-in-interest, the interest must be ‘real’, which is a present substantial interest as distinguished from a mere expectancy or a future, contingent subordinate or consequential interest (Fortich v. Corona, 289 SCRA 624). It is an interest that is material and direct, as distinguished from a mere incidental interest in the question (Samaniego v. Aguila, 334 SCRA 438).

Meaning of “interest”.

Interest within the meaning of the Rules of Court means material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved. A real party in interest is the party who, by the substantive law, has the right sought to be enforced.

Applying the foregoing rule, it is clear that Atty. Aceron is not a real party in interest in the case below as he does not stand to be benefited or injured by any judgment therein. He was merely appointed by the petitioners as their attorney-in-fact for the limited purpose of filing and prosecuting the complaint against the respondents. Such appointment, however, does not mean that he is subrogated into the rights of petitioners and ought to be considered as a real party in interest. (Theodore And Nancy Ang, Represented By Eldrige Marvin B. Ceron, Vs. Spouses Alan And Em Ang, Respondents. G.R. No. 186993, August 22, 2012)

Effect of Failure to include Real Party in Interest

Real party in interestapplies both to the plaintiff and defendant. The suit may be dismissed if neither of them is a Real party in interestREMEDY where Real Party in Interest is NOT impleaded:

Amendment of the pleadings or the complaint may be deemed amended to include the RPII.

If the suit is not brought in the name of or against the real party in interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action (Sec. 1[g], Rule 16; Regalado, 2010).

Only parties to the contract may sue. However, a beneficiary of a stipulation pour autrui may demand its fulfillment.

In Oposa v. Factoran(G.R. No. 101083, 1993), minors represented by their parents were held as real parties in interest to file an action to annul timber licenses issued by the state under the following principles:

a) Inter-generational responsibility;b) Inter-generational justice;c) The right of the Filipinos to a balanced and healthful ecology; andd) Minors represent themselves and the generation to come.

Court requires that an action must be brought in the name but not necessarily by the real party in interest. In fact, the practice is for an attorney in fact to bring the action in the name of the plaintiff (Tuason v. Bolanos, G.R. No. L-25894, Jan. 30, 1971).

Indispensable parties

Those without whom no final determination can be had of an action; they must be joined under all conditions (Rule 3, Sec.7).

The definition in the Rules of Court, Section 7, Rule 3 thereof, of indispensable parties as "parties in interest without whom no final determination can be had of an action" has been jurisprudentially amplified. In Sps. Garcia v. Garcia, et.al., this Court held that:

An indispensable party is a party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that interest, a party who has not only an interest in the subject matter of the controversy, but also has an interest of such nature that a final decree cannot be made without affecting his interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. It has also been considered that an indispensable party is a person in whose absence there cannot be a determination between the parties already before the court which is effective, complete, or equitable. Further, an indispensable party is one who must be included in an action before it may properly go forward. (Simny G. Guy, Geraldine G. Guy, Gladys G. Yao, And The Heirs of the Late Grace G. Cheu Vs. Gilbert G. Guy, G.R. No. 189486, September 05, 2012)

The nature of the solidary obligation under the surety does not make one an indispensable party. An indispensable party is a party-in-interest without whom no final determination can be had of an action, and who shall be joined mandatorily either as plaintiffs or defendants. The presence of indispensable parties is necessary to vest the court with jurisdiction, thus, without their presence to a suit or proceeding, the judgment of a court cannot attain real finality. 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.(Living @ Sense, Inc. Vs. Malayan Insurance Company, Inc. G.R. No. 193753. September 26, 2012)

Purpose of the rules

The purpose of the rules on joinder of indispensable parties is a complete determination of all issues not only between the parties themselves, but also as regards other persons who may be affected by the judgment. A decision valid on its face cannot attain real finality where there is want of indispensable parties. (Philip L. Go, Pacifico Q. Lim And Andrew Q. Lim, Vs. Distinction Properties Development And Construction, Inc. G.R. No. 194024, April 25, 2012)

Burden of procuring indispensable parties lis with the plaintiff:

The burden of procuring the presence of all indispensable parties is on the plaintiff. (39 Amjur [sic] 885). The evident purpose of the rule is to prevent the multiplicity of suits by requiring the person arresting a right against the defendant to include with him, either as co-plaintiffs or as co-defendants, all persons standing in the same position, so that the whole matter in dispute may be determined once and for all in one litigation. (Palarca v. Baginsi, 38 Phil. 177, 178).

Effects of non-joinder of indispensable parties

The presence of all indispensable parties is a condition sine qua non for the exercise of judicial power. It is precisely when an indispensable party is not before the court that the action should be dismissed (Sepulveda, Sr. v. Pelaez, G.R. No. 152195, 31 January 2005).

The court cannot proceed without their presence. Any judgment rendered by the court would be null and void.

Settled is the rule that joinder of indispensable parties is compulsory being a sine qua non for the exercise of judicial power, and, it is precisely “when an indispensable party is not before the court that the action should be dismissed” for such absence 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.(Simny G. Guy, Geraldine G. Guy, Gladys G. Yao, And The Heirs of the Late Grace G. Cheu Vs. Gilbert G. Guy, G.R. No. 189486, September 05, 2012)

Representative as parties

Someone acting in a fiduciary capacity (i.e. trustees of an express trust, guardians, executors or administrators). In this case, the rule requires that the name of the beneficiary shall be included in the title of the case and shall be deemed as the real party in interest (Rule 3, Sec. 3).

The petitioner’s reliance on Section 3, Rule 3 of the Rules of Court to support their conclusion that Atty. Aceron is likewise a party in interest in the case below is misplaced. Section 3, Rule 3 of the Rules of Court provides that:

Sec. 3. Representatives as parties. – Where the action is allowed to be prosecuted and 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 property in interest. A representative may be a trustee of an expert 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. (Emphasis ours)

Nowhere in the rule cited above is it stated or, at the very least implied, that the representative is likewise deemed as the real party in interest. The said rule simply states that, in actions which are allowed to be prosecuted or defended by a representative, the beneficiary shall be deemed the real party in interest and, hence, should be included in the title of the case.

Indeed, to construe the express requirement of residence under the rules on venue as applicable to the attorney-in-fact of the plaintiff would abrogate the meaning of a "real party in interest", as defined in Section 2 of Rule 3 of the 1997 Rules of Court vis-à-vis Section 3 of the same Rule. (Theodore And Nancy Ang, Represented By Eldrige Marvin B. Ceron, Vs. Spouses Alan And Em Ang, Respondents. G.R. No. 186993, August 22, 2012)

Necessary Parties

Those who are 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; may or may not be joined (i.e. joint debtor is a necessary party in a suit against his co-debtor) (Rule 3, Sec. 8).

Indigent Parties

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.

Effects of declaration of indigency:

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. (Rule 3, Sec. 21)

Exemption from Payment of Legal fees (Sec.19. Rule 141)

Requisites:

1) Party must have a gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee; and

2) Party do not own real property with a fair market value as stated in the current tax declaration of more than P300,000.00.

Grant of the application mandatory if requisites are present:If the applicant for exemption meets the salary and property requirements under Section 19 of Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the "indigency test" under Section 21 of Rule 3 and use its sound discretion in determining the merits of the prayer for exemption (Algura v. LGU, G.R. No. 150135, October 30, 2006).

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 to relief against the other. (Rule 3, Section 13)

3.3.2. Compulsory and Permissive Joinder of Parties

Compulsory Joinder of Parties

Those without whom no final determination can be had of an action; they must be joined under all conditions (Rule 3, Sec.7). (indispensable parties must be joined compulsorily)

Permissive Joinder of Parties (Rule 3, Sec. 6)

Requisites:

a) There must be a right to relief in respect to or arises out of the same transaction or series of transactions;

b) There is a question of law or fact common to all the plaintiffs or all the defendants;

and c) Such joinder is not proscribed by the provisions of the rules on jurisdiction and venue.

What is series of transaction?

“Series of transaction” means separate dealings with the parties but all of which dealings are directly connected with the same type of subject-matter of the suit (Regalado).

3.3.3. Misjoinder and Non-joinder of Parties

Both are NOT grounds for the dismissal of the action. Parties may be dropped or added by order of the court motu proprio or on motion of any party at any stage of the action and on such terms as are just. (Rule 3, Section 11)

3.3.4. Class Suit

A suit brought by or defended by a representative member or members of a large group of persons on behalf of all the members of the group. (Rule 3, Section 12)

Requisites:

1) The subject matter of controversy is of common or general interest to many persons;2) Persons are so numerous that it is impracticable to join all as parties;3) Parties actually before the court are sufficiently numerous and representative so that

all interests concerned are fully protected;4) The representatives sue or defend for the benefit of all. (Rule 3, Section 12)

The complaint must specially state that the same is being brought in behalf of others with whom parties share a common interest (Borlasa v. Polistico, 47 Phil. 345).

In case of conflict no class suit:

If there is a conflict of interest between those sought to be represented and those who filed the action, the class suit will NOT prosper (Ibañez v. Roman Catholic Church, 12 Phil. 227).

Legal capacity is a requirement in class suit:

The party bringing the class suit must have legal capacity to do so (Chinese Flour Importers Assoc. v. Price Stabilization Board, 9 Phil. 461).

Nature of taxpayers suit/derivative suit = Class suit:

A taxpayer’s suit or a stockholder’s derivative suit is in the nature of class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi(Regalado P.97).

Any party in interest shall have the right to intervene to protect his individual interest. (This is an instance when a person may intervene as a matter of right).

Common or general interest:

In this case, the suit is clearly one that benefits all commuters and motorists who use La PazRoad. As succinctly stated by the CA: The subject matter of the instant case, i.e., the closure and excavation of the La Paz Road, is initially shown to be of common or general interest to many persons. The records reveal that numerous individuals have filed manifestations with the lower court, conveying their intention to join private respondents in the suit and claiming that they are similarly situated with private respondents for they were also prejudiced by the acts of petitioners in closing and excavating the La Paz Road. Moreover, the individuals sought to be represented by private respondents in the suit are so numerous that it is impracticable to join them all as parties and be named individually as plaintiffs in the complaint. These individuals claim to be residents of various barangays in Biñan, Laguna and other barangays in San Pedro, Laguna. (Juana Complex I Homeowners Association, Inc., et al. vs. Fil-Estate Land, Inc., G.R. No. 152272, March 5, 2012)

3.3.5. Suits against entities without juridical personality (Section 15)

Under Section 1 of Rule 3, only natural or juridical persons or entities authorized by law may be parties in a civil action. However, an entity without juridical personality be sued as a defendant when it has entered into a transaction with the plaintiff.

Two or more persons not organized as an entity with juridical personality to enter into a transaction may be sued under the name by which they are generally or commonly known but they cannot sue under such name.

In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed (See Sec. 8, Rule 14 as to the manner of the service of summons of such entities).

With respect to judgments to be rendered in this situation, Sec. 6 of Rule 36 provides that when judgment is rendered against two or more persons associated in an entity without juridical personality, the judgment shall set out their individual or proper names if known (Regalado, 2010).

3.3.6. Effect of death of party-litigant

Whenever a party to a pending action dies AND the claim is not thereby extinguished, it shall be the duty of his counsel:

1) To inform the court within 30 days after such death of the fact thereof; and2) To give the name and address of the deceased party’s legal representative/s.

(Rule 3, Sec.16)

Failure to comply is a ground for disciplinary action:

Failure to comply by counsel shall be a ground for disciplinary action.

Duty of the counsel to inform the court applies on appeal

The duty of counsel also applies to death of a party in cases pending appeal (Riviera Filipina v. CA, G.R. No. 117355, April 5, 2002).

No summons is required in case of substitution:

No summonses are required to be served on substitute defendants. Instead, the order of substitution shall be served upon the parties substituted in the action; otherwise, the court does not acquire jurisdiction over the substitute party (Ferreria, et al. v. Vda. De Gonzales, et al., 104 Phil. 143). Proceedings conducted by the trial court after the death of the defendant, and without such substitution, are null and void (Lawas v. CA, et al., L-45809, 12 Dec. 1986)(Regalado, 2010).

Legal representatives given priority:

The rule is that in the substitution of the deceased, priority is given to his legal representatives, i.e., the executor or administrator of his estate. The court may allow the substitution by the heirs instead IF there is unreasonable delay in the appointment of an executor or administrator or when the estate was extrajudicially settled (Regalado, 201).

3.4. Venue

3.4.1. Venue versus Jurisdiction

“(a) Jurisdiction is the authority to hear and determine a case; venue is the place where the case is to be heard or tried; (b) Jurisdiction is a matter of substantive law; venue, of procedural law; (c) Jurisdiction establishes a relation between the court and the subject matter; venue, a relation between plaintiff and defendant, or petitioner and respondent; and, (d) Jurisdiction is fixed by law and cannot be conferred by the parties; venue may be conferred by the act or agreement of the parties.” (Nocum and Philippine Daily Inquirer v. Tan, G.R. No. 145022, September 23, 2005)

3.4.2. Venue of real actions(Rule 4, Section 1)

In the proper court which has jurisdiction over the area where the real property involved or a portion thereof is situated.

Forcible entry and detainer actions shall be commenced and tried in the Municipal Trial Court of the municipality or city where the real property involved or a portion thereof is situated.

Rule in case if there are two boundaries:

If the property is located at the boundaries of two places, file the case in EITHER place at the option of the plaintiff (Regalado, 2010).

Venue in case of various real properties:

Where the subject matter of the action involves various parcels of land situated in different provinces, the venue is determined by the singularity or plurality of the transactions involving said parcels of land.

1) Where said parcels are the objects of one and the same transaction, the venue is in the court where ANY of the provinces (places) where a parcel of land is situated (El Hogar Filipino v. Seva, No. 36627, November 19, 1932).

2) If parcels of land are subject of separate and distinct transactions where there is no common venue, separate actions should be laid in the court of the province where each parcel of land is situated (Mijares, et al. v. Piccio, et al., L-10458 April 22,1957; Regalado, 2010).

Location of the property venue in real property:

According to the Rules, real actions shall be commenced and tried in the court that has jurisdiction over the area where the property is situated. In this case, all the mortgaged properties are located in the Province of Cebu. Thus, following the general rule, PAGLAUM and HealthTech should have filed their case in Cebu, and not in Makati. (Paglaum Management & Development Corp. And Health Marketing Technologies, Inc., Vs. Union Bank Of The Philippines, Notary Public John Doe, And Register Of Deeds Of Cebu City And Cebu Province, $J. King & Sons Co., Inc. Intervenor, G.R. No. 179018, June 18, 2012)

3.4.3. Venue of personal actions(Rule 4, Section 2

1) Where the plaintiff or any of the principal plaintiffs resides;2) Where the defendant or any of the principal defendants resides; or3) In the case of non-resident defendants, where the non-resident defendant may be

found.

NOTE: All of the abovementioned venues shall be at the election of the plaintiff.

Purpose of the rules on venue in personal actions:It is a legal truism that the rules on the venue of personal actions are fixed for the

convenience of the plaintiffs and their witnesses. Equally settled, however, is the principle that choosing the venue of an action is not left to a plaintiff’s caprice; the matter is regulated by the Rules of Court.

The petitioners’ complaint for collection of sum of money against the respondents is a personal action as it primarily seeks the enforcement of a contract. The Rules give the plaintiff the option of choosing where to file his complaint. He can file it in the place (1) where he himself or any of them resides, or (2) where the defendant or any of the defendants resides or may be found. The plaintiff or the defendant must be residents of the place where the action has been instituted at the time the action is commenced. (Theodore And Nancy Ang, Represented By Eldrige Marvin B. Ceron, Vs. Spouses Alan And Em Ang, Respondents. G.R. No. 186993, August 22, 2012)

3.4.4. Venue of actions against non-residents(Rule 4, Section 3)

If the non-resident defendant CAN be found in the Philippines:

1) Personal actions shall be commenced where the plaintiff resides; or2) Real actions shall be commenced where the property is located.

If the nonresident defendant CANNOT be found in the Philippines:

An action may be commenced only if it involves:

1) Personal status of the plaintiff: venue is where the plaintiff resides;2) Property of the defendant located in the Philippines: venue shall be where the

property or a portion thereof is situated.

When there is more than one defendant/plaintiff in the case, the residences of the principal parties should be the basis for determining the proper venue (Regalado, 2010).

Exceptions on the rules on venue:

An exception to the general rules on venue is found in civil actions for damages in case of LIBEL whether a criminal case therefor has been filed or not, as special rules of venue are provided in Art.360 of the RPC, as last amended by R.A. 4363. Said venue applies to BOTH RESIDENTS and NON-RESIDENTS, assuming that jurisdiction over the latter has been acquired (Regalado, 2010).

However, if the plaintiff does not reside in the Philippines, the complaint in such case may only be filed in the court of the place where the defendant resides. In Cohen and Cohen v. Benguet Commercial Co., Ltd., this Court held that there can be no election as to the venue of the filing of a complaint when the plaintiff has no residence in the Philippines. In such case, the complaint may only be filed in the court of the place where the defendant resides. Thus:

Section 377 provides that actions of this character "may be brought in any province where the defendant or any necessary party defendant may reside or be found, or in any province where the plaintiff or one of the plaintiffs resides, at the election of the plaintiff." The plaintiff in this action has no residence in the Philippine Islands. Only one of the parties to the action resides here. There can be, therefore, no election by plaintiff as to the place of trial. It must be in the province where the defendant resides. x x x (Theodore And Nancy Ang, Represented By Eldrige Marvin B. Ceron, Vs. Spouses Alan And Em Ang, Respondents. G.R. No. 186993, August 22, 2012)

3.4.5. When the rules on venue do not apply(Rule 4, Section 4)

The rules on venue shall NOT apply:

1) In those cases where a specific rule or law provides otherwise;2) Where the parties have validly agreed in writing before the filing of the action on the

exclusive venue thereof (Principle of Stipulations on Venue) (Sec. 4).

Requisites for venue to be exclusive:

a) There is a valid written agreement;b) Executed by the parties before the filing of the action; andc) Venue is of exclusive or restrictive nature (qualifying words such as only, solely,

exclusively in this court, in no other place, to the exclusion of must be used).

Requisites for venue agreement to be valid: (Rule 4, Section 4)

1) In writing; and2) Executed by the parties before the filing of the action.

3.4.6. Effects of stipulations on venue

In Sps. Lantin v. Lantion, this Court explained that a venue stipulation must contain words that show exclusivity or restrictiveness, as follows:

At the outset, we must make clear that under Section 4 (b) of Rule 4 of the 1997 Rules of Civil Procedure, the general rules on venue of actions shall not apply where the parties, before the filing of the action, have validly agreed in writing on an exclusive venue. The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. x x x

Clearly, the words "exclusively" and "waiving for this purpose any other venue" are restrictive and used advisedly to meet the requirements. (Paglaum Management & Development Corp. And Health Marketing Technologies, Inc., Vs. Union Bank Of The Philippines, Notary Public John Doe, And Register Of Deeds Of Cebu City And Cebu Province, $J. King & Sons Co., Inc. Intervenor, G.R. No. 179018, June 18, 2012)

Effect of absence of exclusive words.

In the absence of qualifying or restrictive words (e.g. only, solely, exclusively in this court, in no other court save, particularly, nowhere else but/except) venue stipulation is merely permissive and not exclusive which means that the stipulated venue is in addition to the venue provided for in the rules (Polytrade Corp. v. Blanco, G.R. No. L-27033, 1969).

Effect if the stipulation is contrary to public policy:

When the stipulation as to venue in a passenger ticket of a vessel would be contrary to public policy of making courts accessible to all who may have need of their service, the stipulation is void and unenforceable (Sweet Lines v. Teves, G.R. No. 28324, May19, 1972).

Venue based on tortuous acts

When the action is no longer based on the agreement but ON THE TORTIOUS ACT of sending collection telegrams despite the fact that the obligation had already been paid, venue is no longer based on the written stipulation but at the ELECTION OF THE PLAINTIFF as fixed by law (Herrera, 2007 Vol.1, p. 636).

Rule on change of venue:

The Supreme Court, to avoid miscarriage of justice, has the power to order a change of venue or place of the trial in civil or criminal cases or other judicial proceedings (Sec. 5 [4], Art. VIII, 1987 Constitution).

Nature of Intervention must yield to the venue in the main action:

An intervention cannot alter the nature of the action and the issues joined by the original parties thereto. (Claridades v. Mercader, G.R. No. L-20341, May 14, 1966) An intervention is not an independent proceeding but one which is merely ancillary to the existing action.

Third party complaint must yield to the venue in the main action

It has to be remembered that a third-partycomplaint is but ancillary to the main action and is a procedural device to avoid multiplicity of suits. Thus, a third-party complaint has to yield to the jurisdiction and venue of the main action. (Eastern Assurance & Surety Corp. v. Cui, G.R. No. L-54452, July 20 1981)

3.5. Pleadings

These are written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Rule 6, Sec. 1).

3.5.1. Kinds of pleadings

a) Complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, complaint-in-intervention - 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. (Rule 6, Sec. 3)

b) Answer - An answer is a pleading in which a defending party sets forth his defenses. (Rule 6, Sec. 4)

Kinds of defenses:

1) Negative Defenses- The specific denial (Sec. 10, Rule 9) of the material fact/s alleged in the pleading of the claimant essential to his cause/s of action. (Sec. 5[a])

Kinds of denial:

1) Absolute denial- the defendant must specify each material allegation of fact the truth of which he does not admit and setting forth the substance of the matters upon which he relies to support his denial, whenever practicable.

2) Partial denial- the defendant shall specify so much of it as is true and material and shall deny the remainder.

3) Disavowal of knowledge- the defendant shall state in his pleading that he does not have knowledge or information sufficient to form a belief as to the truth of a material averment.

The defendant must positively state how it is that he is ignorant of the facts as alleged.

This denial does not apply where the facts as to which want of knowledge is asserted, is so plainly and necessarily within the defendant’s knowledge, that his averment of ignorance must be palpably untrue. It is as if that no denial at all has been made.

Negative Pregnant – a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading.

Where a fact is alleged with qualifying or modifying language and the words of the allegation are so qualified or modified are literally denied, has been held that the qualifying circumstances

alone are denied while the fact itself is admitted (Republic vs. Sandiganbayan, G.R. No. 152154, July 15, 2003).

Example: In Republic vs. Sandiganbayan, it was alleged that it was clearly and overwhelmingly showed how the respondents stashed away the country’s wealth to Switzerland amounting to $356M and hid the same under layers of foundations and corporate entities to prevent detection.

Negative Pregnant: The respondents specifically denies the allegations for it was false, the truth being that respondent’s properties in the bank were lawfully acquired. Thus, it was implied that they admit that it was stashed to Switzerland.

Affirmative Defenses - 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.

Kinds of affirmative defenses:

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. (Sec. 5[b])

Counterclaim – It is any claim which a defending party may have against an opposing party (Rule 6, Sec. 6).Nature of a counterclaim

A counterclaim is in the nature of a cross complaint such that it must be answered within 10 days from service. It is a cause of action against plaintiff.

Counterclaim must be within the jurisdiction of the court

Where to file: A counterclaim which is filed before the MTC must be within the jurisdiction of said court as to the amount and the nature thereof.

A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction. A counterclaim beyond the court’s jurisdiction may only be pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff’s claim, but NOT to obtain affirmative relief.

Counterclaim cannot exceed the jurisdiction of the court

MOREOVER, the amount of judgment obtained by the defendant on appeal cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the counterclaim in excess of the jurisdictional amount, the appellate court likewise did not have jurisdiction over the same. In such a case, the award in excess of the jurisdiction of the trial court is void (Agustin v. Bacalan, L-16000 March 18, 1985).

Effect if counterclaim in excess of the jurisdiction of the court

A counterclaim, even if otherwise compulsory, but the amount exceeds the jurisdiction of the inferior court, will only be considered permissive. Hence, the fact that it is not set-up in

the inferior court will not bar plaintiff from instituting a separate action to prosecute it (Calo v. Ajax, L-20865, March 13, 1968).

Counterclaim in the RTC no limit: Requirement

A counterclaim may be entertained by the RTC regardless of the amount involved provided that, in addition to the other requirements, it is cognizable by the regular courts of justice (Regalado, 2010).

(i) Compulsory Counterclaim (Sec. 7)

Requisites:

1) It must arise out of, or be necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim;

2) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; and

3) It must be cognizable by the regular courts.4) The trial court has jurisdiction to entertain the claim both as to the amount and the

nature thereof, EXCEPT that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount.

5) It must be existing at the time the defendant files his answer (Sec. 8, Rule 11).

Test of Compulsoriness:The logical relationship between the claim and counterclaim.

(ii) Permissive Counterclaim

It is a counterclaim which does not arise out of or is necessarily connected with the subject matter of the opposing party’s claim. It is not barred even of it is not set up in the original action.

Effect if counterclaim counterclaim is not raised:

General rule:

A compulsory counterclaim not set up in the answer is deemed barred. Exceptions:

a) If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment.

b) When a pleader fails to set-up a counterclaim through oversight, inadvertence, excusable negligence, or when justice requires, he may, by leave of court, set-up the counterclaim by amendment of the pleadings before judgment (Sec. 10, Rule 11).

Effect if compulsory counterclaim is not answered

A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be

declared in default principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint (Gojo v. Goyala, G.R. No. 26768, Oct. 30, 1970).

Motion to dismiss with compulsory counterclaim is incompatible

The filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy. If he decides to file a motion to dismiss, he cannot set up his counterclaim. But if he opts to set up his counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer (Regalado, 2010).

(iii) Effect on the counterclaim when the complaint is dismissed

Under the 1997 Rules, the dismissal of the main complaint will not correspondingly result in the dismissal of the counterclaim where the defendant had already filed and served the answer with counterclaims upon the plaintiff. The defendant has the option of prosecuting the counterclaim in the same or in a separate action (Riguera, Primer –Reviewer on Remedial Law).

1) If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule (Rule 16) 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 (Sec. 6, Rule 16).

2) Where the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim, the dismissal shall be limited to the complaint and is without prejudice to the right of the defendant to 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. 2, Rule 17).

3) If the dismissal is due to the fault of the plaintiff and a counterclaim has been set up by the defendant, the latter may prosecute such counterclaim in the same or in a separate action (Sec. 3, Rule 17; Riano).

Cross-Claims

– It 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 (Rule 6 Sec. 8).

The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive (but NOT a cross-claim seeking affirmative relief)

Reason: It has no independent existence and based entirely on the complaint.

Third (fourth, etc.) party complaints

– It 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:

a. contribution, b. indemnity, c. subrogation or d. any other relief in respect to his opponent’s claim (Rule 6, Sec. 11).

Application of third- party complaint

Explaining the application of Section 12, Rule 6, supra, the Court said in Balbastro v. Court of Appeals, to wit: Section 12 of Rule 6 of the Revised Rules of Court authorizes a defendant to bring into a lawsuit any person "not a party to the action . . . for contribution, indemnity, subrogation or any other relief in respect of his opponent's claim." From its explicit language it does not compel the defendant to bring the third-parties into the litigation, rather it simply permits the inclusion of anyone who meets the standard set forth in the rule. The secondary or derivative liability of the third-party is central — whether the basis is indemnity, subrogation, contribution, express or implied warranty or some other theory. The impleader of new parties under this rule is proper only when a right to relief exists under the applicable substantive law. This rule is merely a procedural mechanism, and cannot be utilized unless there is some substantive basis under applicable law.Apart from the requirement that the third-party complainant should assert a derivative or secondary claim for relief from the third-party defendant there are other limitations on said party’s ability to implead. The rule requires that the third-party defendant is "not a party to the action" for otherwise the proper procedure for asserting a claim against one who is already a party to the suit is by means of counterclaim or cross-claim under sections 6 and 7 of Rule 6. In addition to the aforecited requirement, the claim against the third-party defendant must be based upon plaintiff's claim against the original defendant (third-party claimant). The crucial characteristic of a claim under section 12 of Rule 6, is that the original "defendant is attempting to transfer to the third-party defendant the liability asserted against him by the original plaintiff. (Philtranco Service Enterprises, Inc., Vs. Felix Paras And Inland Trailways, Inc., And Hon. Court Of Appeals, G.R. No. 161909, April 25, 2012)

Third-party complaint: Requisites

Accordingly, the requisites for a third-party action are, firstly, that the party to be impleaded must not yet be a party to the action; secondly, that the claim against the third-party defendant must belong to the original defendant; thirdly, the claim of the original defendant against the third-party defendant must be based upon the plaintiff’s claim against the original defendant; and, fourthly, the defendant is attempting to transfer to the third-party defendant the liability asserted against him by the original plaintiff.

As the foregoing indicates, the claim that the third-party complaint asserts against the third-party defendant must be predicated on substantive law. (Philtranco Service Enterprises, Inc., Vs. Felix Paras And Inland Trailways, Inc., And Hon. Court Of Appeals, G.R. No. 161909, April 25, 2012)

Third-party complaint need not be based on same claim

The third-party claim need not be based on the same theory as the main claim. For example, there are cases in which the third-party claim is based on an express indemnity contract and the original complaint is framed in terms of negligence. Similarly, there need not be any legal relationship between the third-party defendant and any of the other parties to the action. Impleader also is proper even though the third party’s liability is contingent, and technically does not come into existence until the original defendant’s liability has been established. In addition, the words ‘is or may be liable’ in Rule 14(a) make it clear that impleader is proper even though the third-party defendant’s liability is not automatically established once the third-party plaintiff’s liability to the original plaintiff has been determined. (Philtranco Service Enterprises, Inc., Vs. Felix Paras And Inland Trailways, Inc., And Hon. Court Of Appeals, G.R. No. 161909, April 25, 2012)

Complaint in Intervention

– A pleading wherein an intervenor asserts a claim against either or all of the original parties (Rule 19, Sec. 3).

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. (Rule 6, Sec. 10).

3.5.2. Pleadings and motions not allowed in small claim cases and cases covered by the Rules on Summary Procedure

SMALL CLAIM:

Pleadings allowed:

1. Verified Statement of Claims2) Verified response3) Compulsory counterclaim4) Permissive counterclaim

Prohibited pleadings/ motions (Sec. 14 A.M. No. 08-8-7-SC, as amended)

a. Motion to dismiss the complaint;b. Motion for a bill of particulars;c. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;d. Petition for relief from judgment;e. Motion for extension of time to file pleadings, affidavits, or any other paper;f. Memoranda;g. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by

the court;h. Motion to declare the defendant in default;i. Dilatory motions for postponement;j. Reply;k. Third-party complaints; and

l. Interventions

Jurisdictional amount

The rule shall govern the procedure before the MTC in actions for payment of money where the value of the claim does not exceed P100,000, exclusive of interests and costs.

The prohibited pleadings and motions are essentially the same as those prohibited under the Rule on Summary Procedure. The only difference is that motions to dismiss on whatever ground are prohibited in small claims cases.

SUMMARY PROCEDURE

Pleadings allowed under the Rule on Summary Procedure:

a. Complaintb. Compulsory Counterclaimc. Cross-claimd. Answer

All pleadings must be verified.

Prohibited pleadings/ motions

1. Motion to dismiss the complaint EXCEPT on the ground of lack of jurisdiction over the subject matter, or failure to comply with the requirement of prior referral to the Lupon;

2. Motion for bill of particulars;3. Motion for new trial or for reconsideration of a judgment or for reopening of trial;4. Petition for relief from judgment;5. Motion for extension of time to file pleadings, affidavits or any other papers;6. Memoranda;7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by

the court;8. Motion to declare the defendant in default;9. Dilatory motions for postponement;10. Reply;11. Third party complaint;12. Intervention.

Note: The filing of a motion to dismiss after the answer had already been submitted does not constitute prohibited pleading (Heirs of Olivas v. Flor, L-78343 May 21, 1988).

Lack of jurisdiction may be raised in a motion to dismiss

The defense of lack of jurisdiction may be raised in a motion to dismiss as an exception to the rule on prohibited pleadings.

Motion to render judgment

While the plaintiff cannot file a motion to declare defendant in default, he may still file a motion to render judgment should the defendant fail to file his answer.

3.5.3. Parts of a pleading

a) 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. (Rule 7, Sec.1)

b) 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 promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. (Rule 7, Sec.3)

c) Verification

Rule 7, Section 4.Verification. — Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit .(5a)

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 knowledge and belief.

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.

Importance of verification

The verification requirement is significant, as it is intended to secure an assurance that the allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. Verification is deemed substantially complied with when, as in this case, one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct. (Felix Martos, Jimmy Eclana, Rodel Pilones, et al. Vs. New San Jose Builders, Inc., G.R. No. 192650. October 24, 2012)

d) Certification against forum shopping

Rule 7, Section 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.

Effects of failure to comply

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.

Requirements of a corporation executing the verification/certification of non-forum shopping

The requirement that a petitioner or principal party should sign the certificate of non-forum shopping applies even to corporations, considering that the mandatory directives of the Rules of Court make no distinction between natural and juridical persons.

A corporation, however, exercises its powers through its board of directors and/or its duly authorized officers and agents. Physical acts, like the signing of documents, can be performed only by natural persons duly authorized for the purpose by corporate by-laws or by a specific act of the board of directors (Pascual and Santos, Inc. v. The Members of the Tramo Wakas Neighborhood Association, Inc., G.R. No. 144880, November 17, 2004).

Purpose of Certification against Forum Shopping

We emphasize that the rules on forum shopping are meant to prevent such eventualities as conflicting final decisions. This Court has consistently held that the costly

consequence of forum shopping should remind the parties to ever be mindful against abusing court processes. In addition, the principle of res judicata requires that stability be accorded to judgments. Controversies once decided on the merits shall remain in repose for there should be an end to litigation which, without the doctrine, would be endless. (Elsa D. Medado vs. Heirs of the Late Antonio Consing, G.R. No. 186720, February 8, 2012)

e) Effect of the signature of counsel in a pleading

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 promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. (Rule 7, Sec.3)

Effect of signing by a person not authorized to sign

What then, is the effect of a complaint filed by one who has not proven his authority to represent a plaintiff in filing an action? In Tamondong v. Court of Appeals, the Court categorically stated that “[i]f a complaint is filed for and in behalf of the plaintiff [by one] who is not authorized to do so, the complaint is not deemed filed. An unauthorized complaint does not produce any legal effect. Hence, the court should dismiss the complaint on the ground that it has no jurisdiction over the complaint and the plaintiff.” This ruling was reiterated in Cosco Philippines Shipping, Inc. v. Kemper Insurance Company, where the Court went on to say that “[i]n order for the court to have authority to dispose of the case on the merits, it must acquire jurisdiction over the subject matter and the parties. Courts acquire jurisdiction over the plaintiffs upon the filing of the complaint, and to be bound by a decision, a party should first be subjected to the court's jurisdiction. Clearly, since no valid complaint was ever filed with the [MeTC], the same did not acquire jurisdiction over the person of respondent [plaintiff before the lower court]." Pursuant to the foregoing rulings, therefore, the MeTC never acquired jurisdiction over this case and all proceedings before it were null and void. The courts could not have delved into the very merits of the case, because legally, there was no complaint to speak of. The court's jurisdiction cannot be deemed to have been invoked at all. (Atty. Fe Q. Palmiano-Salvador Vs. Constantino Angeles, Substituted By Luz G. Angeles, G.R. No. 171219, September 3 2012)

Substantial compliance in verification

1. When the party who signed the verification has sufficient knowledge of its contents

Verification is deemed substantially complied with when, as in the instant case, one who has ample knowledge to swear to the truth of the allegations in the complaint or

petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct.(Georgia T. Estel, vs. Recaredo P. Diego, Sr. and Recaredo R. Diego, Jr., G.R. No. 174082, January 16, 2012)

When the party who signed is covered by a valid authorization?

[R]ecords show that Soledad signed the verification and certification against forum shopping on behalf of her co-petitioners by virtue of a Special Power of Attorney (SPA) attached to

the petition filed with the CA.

[T]he authority of Soledad includes the filing of an appeal before the CA, including the execution of a verification and certification against forum shopping therefor, being acts necessary "to protect, sue, prosecute, defend and adopt whatever action necessary and proper" in relation to their rights over the subject properties.

In addition, the allegations and contentions embodied in the CA petition do not deviate from the claims already made by the heirs in Civil Case Nos. 00-11320 and 797-C, both specifically mentioned in the SPA. We emphasize that the verification requirement is simply intended to secure an assurance that the allegations in the pleading are true and correct, and not the product of the imagination or a matter of speculation, and that the pleading is filed in good

faith. We rule that there was no deficiency in the petition's verification and certification against forum shopping filed with the CA.

In any case, we reiterate that where the petitioners are immediate relatives, who share a common interest in the property subject of the action, the fact that only one of the petitioners executed the verification or certification of forum shopping will not deter the court from proceeding with the action. (Elsa D. Medado vs. Heirs of the Late Antonio Consing, G.R. No. 186720, February 8, 2012)

When only a part of the undertaking is missing

As to respondents' certification on non-forum shopping, a reading of respondents’ certification/Certification reveals that they, in fact, certified therein that they have not commenced any similar action before any other court or tribunal and to the best of their knowledge no such other action is pending therein. The only missing statement is respondents' undertaking that if they should thereafter learn that the same or similar action has been filed or is pending, they shall report such fact to the court. This, notwithstanding, the Court finds that there has been substantial compliance on the part of respondents. (Georgia T. Estel, vs. Recaredo P. Diego, Sr. and Recaredo R. Diego, Jr., G.R. No. 174082, January 16, 2012)

It may be availed of with respect to the contents of the certification

The rule of substantial compliance may be availed of with respect to the contents of the certification. This is because the requirement of strict compliance with the provisions

regarding the certification of non-forum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. Thus, under justifiable circumstances, the Court has relaxed the rule requiring the submission of such certification considering that although it is obligatory, it is not jurisdictional.

Certificate of Non-forum shopping required in Petition for Certiorari

The Rules of Court provide that a petition for certiorari must be verified and accompanied by a sworn certification of non-forum shopping. Failure to comply with these mandatory requirements shall be sufficient ground for the dismissal of the petition. Considering that only 3 of the 228 named petitioners signed the requirement, the CA dismissed the case against them, as they did not execute a Verification and Certification against forum shopping. (Vivian T. Ramirez Et. Al., vs. Mar Fishing Co., Inc., Miramar Fishing Co., Inc., Robert Buehs And Jerome Spitz, G.R. No. 168208, June 13, 2012)

3.5.4. Allegations in a pleading

Manner of Making Allegations

In General (Rule 8, Sec.1)

Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of mere evidentiary facts.

Only ultimate facts must be alleged

Ultimate Facts are those important and substantial facts which form the basis of the primary right of the plaintiff and which make up the wrongful acts or omissions of the defendant. They are the principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests (Tantuico, Jr. v. Republic, G.R. No. 89114, December 2, 1991).

Legal conclusions or evidentiary facts need not be alleged

Only ultimate facts and not legal conclusions or evidentiary facts, which should not be alleged in the complaint in the first place, are considered for purposes of applying the test. (D.M. Ferrer & Associates Corporation vs. University Of Santo Tomas, G.R. No. 189496, February 1, 2012)

Alternative Causes of Action (Rule 8, Sec.2)

A party may set forth 2 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 defense.

Condition precedent (Rule 8, Sec.3)

A general averment of performance of all conditions precedent shall be sufficient. If condition precedent is required, the complaint must allege fulfillment or excuse for non-fulfillment.

Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts

Fraud, mistake, condition of mind

Rule 8, Section 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.

Judgment:

Rule 8, Section 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.

Rule 8, Section 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.

Pleading an actionable document

Rule 8, Section 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 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.

c) Specific Denials

Rule 8, Section 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 to the complaint, he shall so state, and this shall have the effect of a denial.

Effect of Failure to make specific denials

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. (Rule 8, Section 8)

(ii). When a specific denial requires an oath: Exception

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

a) when the adverse party does not appear to be a party to the instrument; orb) When compliance with an order for an inspection of the original instrument is

refused. (Rule 8, Section 8)

3.5.5. Effect of Failure to Plead

a) Failure to plead defenses and objections

General rule:

Defenses and objections not pleaded in an answer or motion to dismiss are deemed waived. (Rule 9, Section 1)

Exceptions:

When it appears from the pleadings or evidence on record

1) That the court lack jurisdiction over the subject matter;2) Litis pendentia between same parties for the same cause;3) Res judicata;4) Action barred by statute of limitations.

The court shall dismiss the claim.

NOTE:These defenses may be raised at any stage of the proceedings, even on appeal, except lack of jurisdiction which may be barred by laches (Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968).

Failure to plead compulsory counterclaim or cross-claim

General rule:

A compulsory counterclaim or cross-claim which is not set up is deemed barred. (Rule 9, Sec. 2)

Exception:

If the counterclaim or cross claim matured or was acquired by a party after serving his answer, he may, with the permission of the court, be allowed to present his counterclaim or cross-claim by filing a supplemental answer or pleading before judgment (Rule 11, Sec. 9).

The filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. If he decides to file a motion to dismiss, he will lose his compulsory counterclaim. But if he opts to set up his compulsory counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer. (Finacial Building Corp. v. Forbes Park PARK Association, G.R. No. 133119, Aug. 17, 2000)

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. (Sec. 10, Rule 11).

NOTE: An after-acquired counterclaim is merely permissive even if it arises from or is connected with the transaction or occurrence constituting the subject-matter of the opposing party’s claim.

3.5.6. Default

When a declaration of default is proper?

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. (Rule 9, Sec. 3)

Failure to file an Answer-in-intervention; Default

Lim points out that an answer-in-intervention cannot give rise to default since the filing of such an answer is only permissive. But Section 4, Rule 19 of the 1997 Rules of Civil Procedure requires the original parties to file an answer to the complaint-in-intervention within 15 days from notice of the order admitting the same, unless a different period is fixed by the court. This changes the procedure under the former rule where such an answer was regarded as optional. Thus, Lim’s failure to file the required answer can give rise to default. Natividad Lim Vs. National Power Corporation, Sps. Roberto Ll. Arcinue and Arabela Arcinue, G.R. No. 178789. November 14, 2012)

Effect of an order of default

A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (Rule 9, Sec. 3(a))The petitioners’ default by their failure to file their answer led to certain consequences. Where defendants before a trial court are declared in default, they thereby lose their right to object to the reception of the plaintiff’s evidence establishing his cause of action. This is akin to a failure to, despite due notice, attend in court hearings for the presentation of the complainant’s evidence, which absence would amount to the waiver of such defendant’s right to object to the evidence presented during such hearing, and to cross-examine the witnesses presented therein.(Magdiwang Realty Corporation, Renato P. Dragon And Esperanza Tolentino Vs. The Manila Banking Corporation, Substituted By First Sovereign Asset Management (Spv-Amc), Inc., G .R. No. 195592, 5 Sep 2012)

Relief from an 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. (Rule 9, Sec. 3(b))The records reveal that the judgment of defaultwas sent via registered mail to PTA’s counsel. However, PTA never availed of the remedy of a motion to lift the order of default. Since the failure of PTA to present its evidence was not a product of any fraudulent acts committed outside trial, the RTC did not err in declaring PTA in default. (Philippine Tourism Authority, Vs. Philippine Golf Development & Equipment, Inc., G.R. No. 176628, G.R. No. 176628 March 19, 2012)

Effect of a 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. (Rule 9, Sec. 3(c))

Extent of relief

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. (Rule 9, Sec. 3(d))

Notably, the Rules is even more strict in safeguarding the right to due process of a defendantwho was declared in default than of a defendant who participated in trial. For instance, amendment to conform to the evidence presented during trial is allowed the parties under the Rules. But the same is not feasible when the defendant is declared in default because Section 3(d), Rule 9 of the Rules of Court comes into play and limits the relief that may be granted by the courts to what has been prayed for in the Complaint. It provides:

(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.

Rationale for limiting the extent of relief

The raison d’être in limiting the extent of relief that may be granted is that it cannot be presumed that the defendant would not file an Answer and allow himself to be declared in default had he known that the plaintiff will be accorded a relief greater than or different in kind from that sought in the Complaint. No doubt, the reason behind Section 3(d), Rule 9 of the Rules of Court is to safeguard defendant’s right to due process against unforeseen and arbitrarily issued judgment. This, to the mind of this Court, is akin to the very essence of due process. It embodies “the sporting idea of fair play”39 and forbids the grant of relief on matters where the defendant was not given the opportunity to be heard thereon. (Leticia Diona, rep. by her attorney-in-fact, Marcelina Diona Vs. Romeo A. Balangue, Sonny A. Balangue, Reynaldo A. Balangue, and Esteban A. Balangue, Jr. G.R. No. 173559. January 7, 2013 )

Actions where default is not 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. (Rule 9, Sec. 3(e))

Filing a motion to dismiss stall the running of the period within which a party must answer, hence no default shall lie within the suspended period

As a consequence of the motion to dismiss that defendant Narciso filed, the running of the period during which the rules required her to file her answer was deemed suspended. When the trial court denied her motion to dismiss, therefore, she had the balance of her period for filing an answer under Section 4, Rule 16 within which to file the same but in no case less than five days, computed from her receipt of the notice of denial of her motion to dismiss. Thus:

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.

But apart from opposing defendant’s motion to dismiss, plaintiff Garcia asked the trial court to declare Narciso in default for not filing an answer, altogether disregarding the suspension of the running of the period for filing such an answer during the pendency of the motion to dismiss that she filed in the case. Consequently, when the trial court granted Garcia’s prayer and simultaneously denied Narciso’s motion to dismiss and declared her in default, it committed serious error. Narciso was not yet in default when the trial court denied her motion to dismiss. She still had at least five days within which to file her answer to the complaint.

What is more, Narciso had the right to file a motion for reconsideration of the trial court’s order denying her motion to dismiss. No rule prohibits the filing of such a motion for reconsideration. Only after the trial court shall have denied it does Narciso become bound to file her answer to Garcia’s complaint. And only if she did not do so was Garcia entitled to have her declared in default. Unfortunately, the CA failed to see this point. (Anita A. Ledda Vs. Bank of the Philippine Islands, G.R. No. 200868. November 21, 2012)

3.5.7. Filing and service of pleadings

a) Payment of Docket Fees

Docket fees MUST be paid at the commencement of the action

1) A court acquires jurisdiction over any case only upon the payment of the prescribed docket fee, and in order to curb the unethical practice of misleading the docket clerk in the assessment of the correct filing fee, the SC laid down the rule that “henceforth all complaints, petitions, answers and other similar pleadings should specify the amount of damages being prayed for not only in the body of the pleading but also in the prayer therein, and said damages shall be the basis for assessing the amount of the filing fees.” (SC Circular No. 7, March 24, 1988;Manchester Development v. CA, No. L-75919, May 7, 1987).

2) Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified, the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment (Sun Insurance Office, Ltd., v. Asuncion, G.R. Nos. 79937-38, February 13, 1989).

3) Payment of filing fees is also required in cases of appeal (Sec. 5, Rule 40; Sec. 4, Rule 41; Sec. 3, Rule 45).

Effect of non-payment of docket fees:

Plainly, while the payment of the prescribed docket fee is a jurisdictional requirement, nonpayment of which at the time of filing does not automatically cause the dismissal of the case for as long as the fee is paid within the applicable prescriptive or

reglementary period; more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. (Sps. Go v. Tong, G.R. 151942, Nov. 27, 2003)

Docket fees based on value of the stocks:

An action seeking for the execution of a deed of assignment of shares of stock is an action for recovery of personal property. The payment of docket fees should be based on the value of the shares of stock and the amount of damages he seeks to recover. (NSC v. Court of Appeals, G.R. No. 123215. February 2, 1999)

Exception: Docket fees need NOT be paid at the time of filing of the complaint and may be considered a lien on the judgment in the following instances:

1. The damages or claim arose after the filing of the complaint/initiatory pleading or if the court awards damages not prayed for in the complaint (Original Dev’t & Construction Corp. v. CA, 202 SCRA 75;, Sec.2, Rule 141);

2. I ndigent litigant (Sec. 19, Rule 141);3. Failure of the adverse party to timely raise the issue of nonpayment of the docket fee

(National Steel Corp. v. CA, G.R. No. 123215, February 2, 1999);4. Civil action instituted with the criminal action where the moral, exemplary, nominal, and

temperate damages are not specified in the complaint or information (Sec. 1, Rule 141);5. Petition for Writ of Amparo shall be exempt from the payment of docket and other filing

fees (Sec. 1, Rule on the Writ of Amparo).6. Indigent petitioner for writ of habeas data is exempt from payment of docket or other

lawful fees. (Section 5, Rule on the Writ of Habeas Data A.M. No. 08-1-16 SC)

Payment of Court fees under Rule 141: Cooperatives – not exempt

Since the payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of the safeguards of this Court’s institutional independence, the power to promulgate rules of pleading, practice and procedure is now the Court’s exclusive domain. That power is no longer shared by this Court with Congress, much less with the Executive.

With the foregoing categorical pronouncements of the Supreme Court (Supreme Court En Banc Resolution in A.M. No. 08-2-01-0, which denied the petition of the GSIS for recognition of its exemption from payment of legal fees imposed under Section 22 of Rule 141 of the Rules of Court, 11 February 2010; Baguio Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes, 26 February 2010),it is evident that the exemption of cooperatives from payment of court and sheriff’s fees no longer stands. Cooperatives can no longer invoke Republic Act No. 6938, as amended by Republic Act No. 9520, as basis for exemption from the payment of legal fees. (Re: In The Matter of Clarification of Exemption From Payment of All Court And Sheriff's Fees of Cooperatives Duly Registered in Accordance with Republic Act No. 9520 Otherwise Known as the Philippine Cooperative Code Of 2008, Perpetual Help Community Cooperative (Phcci), A.M. No. 12-2-03-0 , March 13, 2012)

Some guidelines in payment of filling fees

In Siapno (505 Phil. 430 [2005]) the complaint alleged in its body the aggregate sum of P4,500,000 in moral and exemplary damages and attorney's fees, but the prayer portion did not mention these claims, nor did it even pray for the payment of damages. This Court held that such a complaint should be dismissed outright; or if already admitted, should be expunged from the records. The Court explained that the rule – requiring the amount of damages claimed to be specified not only in the body of the pleading but also in its prayer portion – was intended to put an end to the then prevailing practice of lawyers where the damages prayed for were recited only in the body of the complaint, but not in the prayer, in order to evade payment of the correct filing fees. As held by the Court in Manchester:

“To put a stop to this irregularity, henceforth all complaints, petitions, answers and other similar pleadings should specify the amount of damages being prayed for not only in the body of the pleading but also in the prayer, and said damages shall be considered in the assessment of the filing fees in any case. Any pleading that fails to comply with this requirement shall not be accepted nor admitted, or shall otherwise be expunged from the record.”

In Sun Insurance Office Ltd. v. Judge Asuncion, the Court laid down the following rules as regards the payment of filing fees:

1) It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period.

2) The same rule applies to permissive counterclaims, third-party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period.

3) Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or, if specified [but] the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee.

It cannot be gainsaid from the above guidelines that, with the exception of pauper litigants (Section 16, Rule 141 of the Rules of Court states that "the legal fees shall be a lien on the monetary or property judgment in favor of the pauper-litigant) without the payment of the correct docket or filing fees within the reglementary period, jurisdiction over the subject-matter or nature of the action will not vest in the trial court. In fact, a pauper litigant may still have to pay the docket fees later, by way of a lien on the monetary or property judgment that may accrue to him. Clearly, the flexibility or liberality of the rules sought by the petitioners cannot apply in the instant case. (Ricardo Rizal, Potenciana Rizal, Saturnina Rizal, Elena Rizal, And Benjamin Rizal, Vs. Leoncia Naredo, Anastacio Lirio, Edilberto Cantavieja, Gloria Cantavieja, Celso Cantavieja, And The Heirs Of Melanie Cantavieja, G.R. No. 151898, March 14, 2012)

b) Filing versus service of pleadings

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. (Rule 13, Section 2)

c) Periods of filing of pleadings.(Rule 11)

1.Answer to complaint (Sec.1) – 15 days from service, unless different period is fixed by the court

2. Answer of a defendant foreign private juridical entity (Sec.2)

TO WHOM SERVED PERIOD TO FILE AN ANSWER

Resident Agent 15 days after service of summons

Government official designated by law to receive

summons

30 days after the receipt of summons by foreign private juridical entity

Officers of agents within the Philippines

15 days after the service of summons

NOTE:Anon-resident defendant on whom extraterritorial service of summons is made - the period to answer should be at least 60 days.

3) Answer to amended complaint(Sec.3)

a) As a matter of right: 15 days from being served with copy thereofb) Not as a matter of right: 10 days from notice of order admitting the same

Answer earlier filed may be answer to amended complaint, if no new answer is filed.

Applicable to amended counterclaim, cross, third, etc,

4. Answer to counterclaim or cross-claim (Sec.4) - within 10 days from service

General rule:

An answer to counterclaim or cross claim is required. Failure to answer is ground for default.

Exceptions: (in case of counterclaim)

a) Where answer would be a repetition of allegations in the complaint (Navarro v. Bello , L-11647 January 31, 1958);

b) Where the issues raised in the counterclaim are inseparable from those posed in the

complaint (Sarmiento v. Juan, No. 56605 January 28, 1983);

c) A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint (Gojo v. Goyala, G.R. No. L-26768, 30 October 1970).

5. Answer to third (fourth, etc.)-party complaint(Sec.5) - within 15 days from service.

6.Reply (Sec.6) – may be filed within 10 days from service of the pleading responded to.

7. Answer to supplemental complaint (Sec.7) - within 10 days from notice of the order admitting the same, unless a different period is fixed by the court.

NOTE: The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.

Counterclaim or cross-claim arising after answer (Sec.9)

It may, with permission of the court, be presented as such by supplemental pleading before judgment.

Omitted counterclaim or cross-claim (Sec.10)

When a pleader fails to set up a counterclaim or cross claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, be set up as such by amendment before judgment.

Extension of time to plead (Sec.11)

Requisites:

1. That the party files a motion for extension; 2. The terms are just; and

Service of such motion must be given to the other party.d) 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. (Rule 13, Sec. 3)

If a party avails the services of a private carrier, the date of actual receipt by the court of such pleading and not the date of delivery to the private carrier, is deemed to be the date of the filing of that pleading (Benguet Electric Cooperative, Inc. v. NLRC, G.R. No. 89070 May 18, 1992).

Modes of service

Service of pleadings motions, notices, orders, judgments and other papers shall be made either personally or by mail. (Rule 13, Sec. 5)

i. 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. (Rule 13, Sec. 6)

ii. Service by mail

Service by registered mail shall be made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail. (Rule 13, Sec. 7)

iii. 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. (Rule 13, Sec. 8)

Under Section 3 Rule 3 of the Rules of Procedure on Corporate Rehabilitation (2008) and Section 6 of the Interim Rules of Procedure Governing Intra-Corporate Controversies, any pleading and /or document required by the said Rules may be filed with the court and/or served upon the other parties by fax or email if so authorized by the court. In such cases, the date of transmission shall be deemed to be prima facie the date of service. (Primer-Reviewer on Remedial Law, Vol.I, Civil Procedure, Riguera, 2nd ed., 2013)

iv. 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. (Rule 13, Sec. 9)

v. 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. (Rule 13, Sec. 11)

vi. When service is deemed complete

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. (Rule 13, Sec. 10)

Nature of proof of service of motions, pleadings and other papers

In Cruz v. Court of Appeals, we ruled that with respect to motions, proof of service is a mandatory requirement. We find no cogent reason why this dictum should not apply and with more reason to a petition for certiorari, in view of Section 3, Rule 46 which requires that the petition shall be filed "together with proof of service thereof." We agree with the Court of Appeals that the lack of proof of service is a fatal defect. The utter disregard of the Rule cannot be justified by harking to substantial justice and the policy of liberal construction of the Rules. Technical rules of procedure are not meant to frustrate the ends of justice. Rather, they serve to effect the proper and orderly disposition of cases and thus effectively prevent the clogging of court dockets. (Emphasis in the original)

Indeed, while an affidavit of service is required merely as proof that service has been made on the other party, it is nonetheless essential to due process and the orderly administration of justice. Salvador O. Mojar, Edgar B. Begonia, Heirs Of The Late Jose M. Cortez, Restituto Gaddi, Virgilio M. Monana, Freddie Rances, And Edson D. Tomas, Vs. Agro Commercial Security Service Agency, Inc., Et Al., G.R. No. 187188, June 27, 2012)

Service to persons represented by counsel

Such service to Atty. Espinas, as petitioners’ counsel of record, was valid despite the fact he was already deceased at the time. If a party to a case has appeared by counsel, service of pleadings and judgments shall be made upon his counsel or one of them, unless service upon the party is specifically ordered by the court. It is not the duty of the courts to inquire, during the progress of a case, whether the law firm or partnership representing one of the litigants continues to exist lawfully, whether the partners are still alive, or whether its associates are still connected with the firm.(Salvador O. Mojar, Edgar B. Begonia, Heirs Of The Late Jose M. Cortez, Restituto Gaddi, Virgilio M. Monana, Freddie Rances, And Edson D. Tomas, Vs. Agro Commercial Security Service Agency, Inc., Et Al., G.R. No. 187188, June 27, 2012)

3.5.8. Amendment

How to amend a pleading?

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. (Rule 10, Section 1)

a) Amendment 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 (10) days after it is served. (Rule 10, Section 2)

Amendment as a matter o right though there is a motion to dismiss

A motion to dismiss is not a responsive pleading; hence the plaintiff can still amend his complaint as a matter of right.

Mandamus is an available remedy in case of amendment as a matter of right:

The right of a plaintiff to amend his pleading once as a matter of right before a responsive pleading is served, has been held to be one which the court should always grant, otherwise mandamus will lie against it since it is a ministerial duty of the court to accept amendment as a matter of right. (Ong Peng v. Custodio, L-14911, March 25, 1961).

If the purpose of the amendment is to confer jurisdiction upon the court then the court cannot admit the amended complaint. Not having acquired jurisdiction over the case by the filing of the original complaint, the lower court has neither the power nor the jurisdiction to act on the motion for the admission of the amended complaint, much less to allow such amendment, since it is elementary that the court must first acquire jurisdiction over the case in order to act validly therein. (Rosario v. Carangdang, G.R. No. L-7076, April 28, 1955)

The cause of action must exist at the time the action was begun, and the plaintiff will not be allowed by an amendment to introduce a cause of action which had no existence when the action was commenced. (Surigao Mine Exploration Co. v. Harris, G.R. No. L-45543, May 17, 1939)

b) 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. (Rule 10, Section 3)

Amendment may be made despite substantial change in the cause of action or defense if such will serve the higher interest of justice or prevent delay and promote a just, speedy and inexpensive disposition of the case (Valenzuela v. Court of Appeals).

When amendments by leave of court NOT allowed

1. Cause of action, defense or theory of the case is changed;2. Amendment is intended to confer jurisdiction to the court;3. Amendment seeks to cure the defect in the cause of action;4. Amendment is made with intent to delay.

c) Formal amendment

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. (Rule 10, Section 3)

d) Amendments 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 effect 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 justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (Rule 10, Section 5)

e) Difference from supplemental pleadings

Supplemental Pleadings (Sec.6)

Those which aver facts occurring after the filing of the original pleadings and which are material to the mature claims and/or defenses alleged therein.

Under Section 6, Rule 10 of the 1997 Rules of Civil Procedure, as amended, governing supplemental pleadings, the court “may” admit supplemental pleadings, such as the supplemental petition filed by respondent before the appellate court, but the admission of these pleadings remains in the sound discretion of the court. Nevertheless, we have already found no credence in respondent’s claim that petitioner is a corporate officer, consequently, the alleged lack of jurisdiction asserted by respondent in the supplemental petition is bereft of merit. (Ma. Mercedes L. Barba Vs. Liceo De Cagayan University, G.R. No. 193857. November 28, 2012)

AMENDED

PLEADINGSSUPPLEMENTAL PLEADINGS

As to allegations

Refers to transaction, occurrences or events already existing at the time of the filing of the original action.

Refers to transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented.

As to right

Can be a matter of right such as when made before a responsive pleading is served.

Always with leave of court.

As to form

A new copy of the entire pleading must be filed incorporating the amendments and indicated

No need to file but must serve a copy to the court and the adverse party.

by appropriate marks.

As to effect

An amended pleading supersedes the original one.

Original pleadings stands.

Effect of amended pleading

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. (Rule 10, Section 8)

3.6. Summons

What is summons?

It is a writ by which the defendant is notified of the action brought against him.

How can the court acquire jurisdiction over the defendant?

Jurisdiction over the person of the defendant in a civil case is acquired either by his voluntary appearance or service of summonsupon him (Minucher v. CA G.R. No.142963, Feb. 11, 2003).

Jurisdiction over the res

Under Section 15, service of summons only confers jurisdiction over the res and not over the person of the defendant.

Effect if the court has not validly acquired jurisdiction over the person of the defendant

The fundamental rule is that jurisdiction over a defendant in a civil case is acquired either through service of summons or through voluntary appearance in court and submission to its authority. If a defendant has not been properly summoned, the court acquires no jurisdiction over its person, and a judgment rendered against it is null and void. (Planters Development Bank, Vs. Julie Chandumal, G.R. No. 19561905 September 2012)

3.6.1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem

a) Action in Personam – To acquire jurisdiction over the person of the defendant.

b) Action in Rem or Quasi in Rem –

1.To give notice to the defendant that an action has been commenced against him; and 2) To afford the defendant an opportunity to be heard on the claim against him.

Rule on unknown defendant or when the whereabouts is unknown

Under the old rule, the distinction between the nature of actions was important for it determines the mode of service of summons to be made. However, in Santos v. PNOC (G.R. No. 170943, September 23, 2008), the Supreme Court held that the in rem/in personam distinction was significant under the old rule because it was silent as to the kind of action to which the rule was applicable. Because of this silence, the court limited the application of the old rule to in rem actions only. This has been changed. The present rule expressly states that it applied to any action where the defendant is designated as unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. Thus, it now applies to any action, whether in personam, in rem or quasi in rem.

3.6.2. Voluntary appearance

Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant’s voluntary appearance in court. (Afdal & Afdal v. Carlos, G.R. No. 173379, December 1, 2010) Thus,voluntary appearance by the defendant is equivalent to service of summons (Rule 14, Section 20).Even if the summons is defective, jurisdiction over the defendant attaches.

Instances of submission to court’s jurisdiction:

1. Filing a motion for extension to file a responsive pleading. 2. The filing of motions seeking affirmative relief -- to admit answer, for additional time

to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration (Oaminal v. Castillo, G.R. No. 152776, Oct. 8, 2003)

Other forms of voluntary appearance:

a) Appearance of counsel in behalf of defendantb) Filing of pleadings or papers in courtc) A telegraphic motion for postponement

d) The filing of a motion for dissolution of attachment.

Special Appearance to file a motion to dismiss on grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance.

In this case, the MeTC acquired jurisdiction over the person of respondent Hertz by reason of the latter’s voluntary appearance in court. In Philippine Commercial International Bank v. Spouses Dy we had occasion to state: Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the coercive power of legal processes exerted over his person, or his voluntary appearance in court. As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. It is by reason of this rule that we have had occasion to declare that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, is considered voluntary submission to the court's jurisdiction. This, however, is tempered by the concept of conditional appearance, such that a party who makes a special appearance to challenge, among others, the court's jurisdiction over his person cannot be considered to have submitted to its authority.

Prescinding from the foregoing, it is thus clear that:

(1) Special appearance operates as an exception to the general rule on voluntary appearance;

(2) Accordingly, objections to the jurisdiction of the court over the person of the defendant must be explicitly made, i.e., set forth in an unequivocal manner; and

(3) Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in instances where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution. (Optima Realty Corporation Vs. Hertz Phil., Exclusive, Inc. G.R. No. 183035. January 9, 2013)

When Chandumal filed an Urgent Motion to Set Aside Order of Default and to Admit Attached Answer, she effectively submitted her person to the jurisdiction of the trial court as the filing of a pleading where one seeks an affirmative relief is equivalent to service of summons and vests the trial court with jurisdiction over the defendant’s person. Thus, it was ruled that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration is considered voluntary submission to the trial court’s jurisdiction. The Court notes that aside from the allegation that she did not receive any summons, Chandumal’s motion to set aside order of default and to admit attached answer failed to positively assert the trial court’s lack of jurisdiction. In fact, what was set forth therein was the substantial claim that PDB failed to comply with the requirements of R.A. No. 6552 on payment of cash surrender value, which already delves into the merits of PDB’s cause of action. In addition, Chandumal even appealed the RTC decision to the CA, an act which demonstrates her recognition of the trial court’s jurisdiction to render said judgment. (Planters Development Bank, Vs. Julie Chandumal, G.R. No. 19561905 September 2012)

3.6.3 Modes of service of summons

Personal service

Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (Rule 14, Section 6)

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 (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (Rule 14, Section 7)

In this case, the sheriff resorted to substituted service of summons due to his failure to serve it personally. In Manotoc v. Court of Appeals, the Court detailed the requisites for a valid substituted service of summons, summed up as follows: (1) impossibility of prompt personal service – the party relying on substituted service or the sheriff must show that the defendant cannot be served promptly or there is impossibility of prompt service; (2) specific details in the return – the sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service; (3) a person of suitable age and discretion – the sheriff must determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient’s relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons, which matters must be clearly and specifically described in the Return of Summons; and (4) a competent person in charge, who must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Xxx Planters Development Bank, Vs. Julie Chandumal, G.R. No. 19561905 September 2012)

Service of Summons; When valid?

We agree with the finding that Pua committed delay in prosecuting his case against the respondents. We clarify, however, that Pua’s delay is limited to his failure to move the case forward after the summons for Ang had been published in the Manila Standard; he could not be faulted for the delay in the service of summons for Ang.

A 13-month delay occurred between the filing of the complaint and the filing of the motion to serve summons by publication on Ang. This delay, however, is attributable to the failure of the sheriff to immediately file a return of service of summons. The complaint was filed on November 24, 2000, but the return of service of summons was filed only on January 3, 2002, after the RTC ordered its submission and upon Pua’s motion.

Under Section 14, Rule 14 of the Rules of Court, service of summons may be effected on a defendant by publication, with leave of court, when his whereabouts are unknown and cannot be ascertained by diligent inquiry. The Rules of Court provides:

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.

In Santos, Jr. v. PNOC Exploration Corporation, the Court authorized resort to service of summons by publication even in actions in personam, considering that the provision itself allow this mode in any action, i.e., whether the action is in personam, in rem, or quasi in rem. The ruling, notwithstanding, there must be prior resort to service in person on the defendant and substituted service, and proof that service by these modes were ineffective before service by publication may be allowed for defendants whose whereabouts are unknown, considering that Section 14, Rule 14 of the Rules of Court requires a diligent inquiry of the defendant’s whereabouts.

Until the summons has been served on Ang, the case cannot proceed since Ang is an indispensable party to the case; Pua alleged in his complaint that the respondents are co-owners of JD Grains Center. An indispensable party is one who must be included in an action before it may properly go forward. A court must acquire jurisdiction over the person of indispensable parties before it can validly pronounce judgments personal to the parties. 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. (Pablo Pua Vs. Lourdes L. Deyto, Doing Business Under The Name Of "JD Grains Center," And Jennelita Deyto Ang A.K.A. "Janet Ang G.R. No. 173336. November 26, 2012)

3.6.5. Constructive service (by publication)

a) Service upon a defendant where his identity is unknown or his 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. (Rule 14, Section 14)

b) Service upon residents temporarily outside the Philippines

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. (Rule 14, Section 16) (Note: See Extraterritorial Service for this section refers to it)

3.6.6. Extra-territorial service, when allowed

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. (Rule 14, Section 15)

Service of summons through other modes

Extraterritorial service may be validly served by telefax or email as the rule provides “in any other manner the court may deem sufficient.”

The court had acquired jurisdiction over said defendant, through service of the summons addressed to him upon Mrs. Schenker, it appearing from said answer that she is the representative and attorney-in-fact of her husband. She had authority to sue, and had actually sued on behalf of her husband. (Gemerple v. Schenker, G.R. No. L-18164 January 23, 1967)

However, in the case Valmonte v. CA, Mrs. Valmonte did not appoint Mr. Valmonte as her attorney-in-fact to represent her in litigations and in court. Mr. Valmonte was merely acting as his wife’s counsel in negotiations with but this cannot be construed as an authorization. (Valmonte v. CA, G.R. No. 108538. January 22, 1996)

3.6.7. Service upon prisoners and minors

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. (Rule 14, Section 9)

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 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. (Rule 14, Section 10)

3.6.8. Proof of service

Rule 14, Section 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. (20)Rule 14, Section 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.

3.7. Motions

3.7.1. Motions in general

Definition of a motion

A motion is an application for relief other than by a pleading. (Rule 15, Section 1)

Under the rules on Small Claims Cases a motion is an oral or written request asking for an affirmative action from the court, that includes a letter

b) Motions versus pleadings

A motion is an application for relief other than by a pleading. (Rule 15, Section 1). A motion prays for another relief other than the main cause of action or the main defense, while a pleading prays for a relief which is directly related to the cause of action or defense

c) Contents and forms of motions

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. (Rule 15, Section 3)

Form

All motions shall be in writing except those made in open court or in the course of a hearing or trial. (Rule 15, Section 2)

d) Notice of hearing and hearing of motions

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 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. (Rule 15, Section 4)

Motion Which Does Not Require Notice & Hearing – Writ Of Execution:Opportunity to be heard:

Elementary is the rule that every motion must contain the mandatory requirements of notice and hearing and that there must be proof of service thereof. The Court has consistently held that a motion that fails to comply with the above requirements is considered a worthless piece of paper which should not be acted upon. The rule, however, is not absolute. There are motions that can be acted upon by the court ex parte if these would not cause prejudice to the other party. They are not strictly covered by the rigid requirement of the rules on notice and hearing of motions.

The motion for execution of the Spouses Co is such kind of motion. It cannot be denied that the judgment sought to be executed in this case had already become final and executory. As such, the Spouses Co have every right to the issuance of a writ of execution and the RTC has the ministerial duty to enforce the same. This right on the part of the Spouses Co and duty on

the part of the RTC are based on Section 1 and Section 2 of Rule 39 of the 1997 Revised Rules of Civil Procedure.

As can be gleaned therefrom, under Paragraph 1 of Section 1 of Rule 39 of the 1997 Revised Rules of Civil Procedure, the Spouses Co can have their motion for execution executed as a matter of right without the needed notice and hearing requirement to petitioner. This is in contrast to the provision of Paragraph 2 of Section 1 and Section 2 where there must be notice to the adverse party. In the case of Far Eastern Surety and Insurance Company, Inc. v. Virginia D. Vda. De Hernandez,it was written:

It is evident that Section 1 of Rule 39 of the Revised Rules of Court does not prescribe that a copy of the motion for the execution of a final and executory judgment be served on the defeated party, like litigated motions such as a motion to dismiss (Section 3, Rule 16), or motion for new trial (Section 2, Rule 37), or a motion for execution of judgment pending appeal (Section 2, Rule 39), in all of which instances a written notice thereof is required to be served by the movant on the adverse party in order to afford the latter an opportunity to resist the application. (Douglas F. Anama Vs. Philippine Savings Bank, G.R. No. 187021, January 25, 2012)In Somera Vda. De Navarro v. Navarro, the Court held that there was substantial compliance of the rule on notice of motions even if the first notice was irregular because no prejudice was caused the adverse party since the motion was not considered and resolved until after several postponements of which the parties were duly notified.

Likewise, in Jehan Shipping Corporation v. National Food Authority, the Court held that despite the lack of notice of hearing in a Motion for Reconsideration, there was substantial compliance with the requirements of due process where the adverse party actually had the opportunity to be heard and had filed pleadings in opposition to the motion. The Court held:

“This Court has indeed held time and again, that under Sections 4 and 5 of Rule 15 of the Rules of Court, mandatory is the requirement in a motion, which is rendered defective by failure to comply with the requirement. As a rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the appeal or the filing of the requisite pleading. As an integral component of the procedural due process, the three-day notice required by the Rules is not intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution of the court. Principles of natural justice demand that the right of a party should not be affected without giving it an opportunity to be heard. The test is the presence of opportunity to be heard, as well as to have time to study the motion and meaningfully oppose or controvert the grounds upon which it is based.” (United Pulp and Paper Co., Inc. vs. Acropolis Central Guaranty Corporation, G.R. No. 171750, January 25, 2012)

e) Omnibus motion rule

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. (Rule 15, Section 8)

Exception

Motions arguing 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 (Rule 9, Section 1)

Defense and objections not pleaded either in motion to dismiss or in answer are deemed waived; exceptions.

Significantly, the Rule requires that such a motion should be filed “within the time for but before filing the answer to the complaint or pleading asserting a claim.” The time frame indicates that thereafter, the motion to dismiss based on the absence of the condition precedent is barred. It is so inferable from the opening sentence of Section 1 of Rule 9 stating that defense and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. There are, as just noted, only four exceptions to this Rule, namely, lack of jurisdiction over the subject matter; litis pendentia; res judicata; and prescription of action. Failure to allege in the complaint that earnest efforts at a compromise has been made but had failed is not one of the exceptions. (Heirs of Dr. Mariano Favis, Sr., represented by their co-heirs and attorneys-in-fact, Mercedes A. Favis and Nelly Favis-Villafuente v. Juana Gonzales, her son Mariano Favis, all minors represented herein by their parents, Sps. Mariano Favis and Larcelita D. Favis,G.R. No. 185922, January 15, 2014.)

f) Litigated and ex parte motions

Litigated Motions

They are motions which the court may not act upon without prejudicing the rights of the adverse party. Made with notice to the adverse party to give an opportunity to oppose e.g., motion for reconsideration, motion to dismiss motion to declare defendant in default.

Examples of Litigious Motions:

1. Motion for reconsideration2. Motion to dismiss3. Motion to declare defendant in default4. Motion for execution

Ex Parte Motions

They are motions which the court may act upon without prejudicing the rights of the adverse party. Made without the presence or a notification to the other party because the question generally presented is not debatablee.g., motion for extension of time to file answer, motion for postponement, motion for extension of time to file record on appeal.

Examples of Ex Parte Motions:

1. Motion for postponement2. Motion to set case for pre-trial

g) Pro-forma motions

They are motions which do not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Riano, 2007 citing Marikina Valley Dev't. Corp. v. Hon. Flojo, G.R. No. 110801, December 8, 1995).

3.7.2. Motions for bill of particulars

Bill of Particulars –

- a more definite statement of a matter which is not stated or declared with sufficient definiteness or particularity.

a) Purpose and when applied for

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 averted 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. (Rule 12, Section 1)

Vagueness in the allegations in the complaint not a ground for dismissal

An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery (Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973).

Remedy if the allegations fails to state a cause of action

If the pleading is not only indefinite or ambiguous but fails to state a cause of action, the remedy of the party is to file a motion to dismiss on the ground that the pleading states no cause of action. (Primer-Reviewer on Remedial Law, Vol.I, Civil Procedure, Riguera, 2nd ed., 2013)

When to file?

The motion for bill of particulars shall be filed before responding to a pleading. Hence, it must be filed within the period granted by the Rules (Rule 11) for the filing of a responsive pleading.

b) Actions of 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. (Rule 12, Section 2)

c) Compliance with the order and effect of noncompliance

Compliance with Order

If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) 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. (Rule 12, Section 3)

Effect of Noncompliance

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. (Rule 12, Section 4)

If the plaintiff fails to obey, his complaint may be dismissed with prejudice UNLESS otherwise ordered by the court (Rule 12, Sec. 4; Rule 17, Section 3);

If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Rule 12, Section 4; Rule 17, Section 4; Rule 9, Sec. 3).

d) Effect on the period to file a 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. (Rule 12, Section 5)

3.7.3. Motion to dismiss

a) Grounds

(Rule 16, Sec. 1)

a. Lack of jurisdiction over the person of the defendantb. Lack of jurisdiction over the subject matter of the claimc. Venue is improperly laidd. Plaintiff has no legal capacity to suee. There is another action pending between the same parties for the same cause (Litis

Pendentia)f. Cause of action is barred by a prior judgment or by statute of limitations (Res judicata/

Prescription)g. Lack of Cause of action.h. Claim or demand in the plaintiff’s pleading has been paid, waived, abandoned,

extinguishedi. Claim on which action is founded is unenforceable under the statute of fraudsj. Condition precedent for filing has not been complied with (this includes prior recourse to

barangay conciliation, or failure to make attempts to reach a compromise in cases between members of the same family)

Note: Under the Rules on Environmental cases Strategic Lawsuit Against Public Participation is a ground for the dismissal of the action

Instances of motu proprio dismissal

Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss the claim, namely: (a) lack of jurisdiction over the subject matter; (b) litis pendentia; (c) res judicata; and (d) prescription of action.

Specifically in Gumabon v. Larin (422 Phil. 222, 230 [2001]), cited in Katon v. Palanca, Jr. (481 Phil. 168, 180 [2004]), the Court held:

“x x x [T]he muto proprio dismissal of a case was traditionally limited to instances when the court clearly had no jurisdiction over the subject matter and when the plaintiff did not appear during trial, failed to prosecute his action for an unreasonable length of time or neglected to comply with the rules or with any order of the court. Outside of these instances, any motu proprio [sic] dismissal would amount to a violation of the right of the plaintiff to be heard.

Except for qualifying and expanding Section 2, Rule 9, and Section 3, Rule 17, of the Revised Rules of Court, the amendatory 1997 Rules of Civil Procedure brought about no radical change. Under the new rules, a court may muto proprio dismiss a claim when it appears from the pleadings or evidence on record that it has no jurisdiction over the subject matter; when there is another cause of action pending between the same parties for the same cause, or where the action is barred by a prior judgment or by statute of limitations. x x x.” Heirs of Dr. Mariano Favis, Sr., represented by their co-heirs and attorneys-in-fact, Mercedes A. Favis and Nelly Favis-Villafuente v. Juana Gonzales, her son Mariano Favis, all minors represented herein by their parents, Sps. Mariano Favis and Larcelita D. Favis, G.R. No. 185922, January 15, 2014)

b) 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. (Rule 16, Sec. 3)

c) Remedies of plaintiff when the complaint is dismissed

The plaintiff may:

a.File a motion for reconsideration, to appeal from the order of dismissalb.Appeal from the order of dismissalc.Re-file the complaint

d) Remedies of the defendant when the motion is denied

The defendant may:

a.File a motion for reconsideration; orb.File a petition for certiorari; orc.Prohibition

e) Remedy for denial of motion to dismiss

An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case as it leaves something to be done by the court before the case is finally decided on the merits. Thus, as a general rule, the denial of a motion to dismiss cannot

be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. However, when the denial of the motion to dismiss is tainted with grave abuse of discretion, the grant of the extraordinary remedy of certiorari may be justified. (Republic of the Philippines, rep. by the Regional Executive Director of the Department of Environment and Natural Resources, Regional Office No. 3 Vs. Roman Catholic Archbishop of Manila/Samahang Kabuhayan ng San Lorenzo KKK, Inc., rep. by its vice President Zenaida Turla Vs. Roman Catholic Archbishop of Manila, G.R. No. 192975/G.R. No. 192994. November 12, 2012 )

e) Effect of dismissal of complaint on certain grounds

General rule: The action may be re-filed.

Exceptions:The action can no longer be re-filed if it was dismissed on the grounds of:

a. Res judicata;b. Extinguishment of the claim or demand;c. Prescription; or d. Unenforceability of the claim

f) When grounds pleaded 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. (Rule 16, Sec. 6)

g) Bar by dismissal

The action can no longer be re-filed if it was dismissed on the grounds of:

a. Res judicata;b. Extinguishment of the claim or demand;c. Prescription; or d. Unenforceability of the claim

h) Distinguished from demurrer to evidence under Rule 33

DISTINCTION BETWEEN

Motion to Dismiss

under Rule 16

Motion to Dismiss under Rule 33 (demurrer to evidence)

Filed before the service and filing of the answer

Made after the plaintiff rests his case

Anchored on many groundsAnchored on one ground, that is, plaintiff has

no right to relief

If a motion to dismiss is denied, the defendant may file his responsive pleading The defendant may present his evidence.

3.8. Dismissal of actions

3.8.1. Dismissal upon notice by plaintiff; two-dismissal rule 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. (Rule 17, Sec. 1)

Two-Dismissal Rule

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. (Rule 17, Sec. 1) Thus, when the same complaint had twice been dismissed by the plaintiff under Sec.1 by simply filing a notice of dismissal, the second dismissal shall be with prejudice.

What causes the loss by a plaintiff of the right to effect dismissal of the action by mere notice is not the filing of the defendant’s answer with the court but the service on the plaintiff of said answer or of a motion for summary judgment. Where the plaintiff filed the notice of dismissal of his action in the court after the filing of defendant’s answer but before service thereof, the plaintiff’s notice to that effect ipso facto brought about the dismissal of the pending action without need of any order from the trial court (Go v. Cruz, et al., G.R. No. 58986, April 17, 1983).

3.8.2. Dismissal upon motion by plaintiff; effect on existing counterclaim

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 plaintiffs 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. (Rule 17, Sec. 2)

The dismissal of the complaint carries with it the dismissal of the compulsory counterclaim if the counterclaim was pleaded by the defendant after service upon him of the plaintiff’s motion for dismissal.

The dismissal shall be limited to the complaint or the defendant can prosecute his counterclaim in a separate action if the counterclaim was pleaded by the defendant before service upon him of the plaintiff’s motion for dismissal.

The defendant can revive the compulsory counterclaim within 15 days from notice of such motion.

3.8.3. Dismissal due to the 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. (Rule 17, Sec. 3)

It is plaintiff’s failure to appear at the trial, and not the absence of his lawyer, which warrants dismissal (Regalado).

Test of Non-prosequitur

The fundamental test for non prosequitur is whether, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. There must be unwillingness on the part of the plaintiff to prosecute. (Shimizu Philippines Contractors, Inc., Vs. Mrs. Leticia B. Magsalin, Doing Business Under The Trade Name "Karen's Trading," Fgu Insurance Corporation, Godofredo Garcia, Concordia Garcia, And Reynaldo Baetiong, G.R. No. 170026, June 20, 2012)

Effects of Failure to Prosecute/ Non-Prosequitur

Once a case is dismissed for failure to prosecute, the dismissal has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal.

In this case, Pua failed to take any action on the case after summons was served by publication on Ang. It took him more than two years to file a motion to declare Ang in default and only after the RTC has already dismissed his case for failure to prosecute. That Pua renewed the attachment bond is not an indication of his intention to prosecute. The payment of an attachment bond is not the appropriate procedure to settle a legal dispute in court; it could not be considered as a substitute for the submission of necessary pleadings or motions that would lead to prompt action on the case. (Ma. Mercedes L. Barba Vs. Liceo De Cagayan University, G.R. No. 193857. November 28, 2012)

Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended, the failure on the part of the plaintiff, without any justifiable cause, to comply with any order of the court or the Rules, or to prosecute his action for an unreasonable length of time, may result in the dismissal of the complaint either motu proprio or on motion by the defendant. The failure of a plaintiff to prosecute the action without any justifiable cause within a reasonable period of time will give rise to the presumption that he is no longer interested to obtain from the court the relief prayed for in his complaint; hence, the court is authorized to order the dismissal of the complaint on its own motion or on motion of the defendants. The presumption is not, by any means, conclusive because the plaintiff, on a motion for reconsideration of the order of dismissal, may allege and establish a justifiable cause for such failure. The burden to show that there are compelling reasons that would make a dismissal of the case unjustified is on the petitioners.

While under the present Rules, it is now the duty of the clerk of court to set the case for pre-trial if the plaintiff fails to do so within the prescribed period, this does not relieve the plaintiff of his own duty to prosecute the case diligently. This case had been at the pre-trial stage for more than two years and petitioners have not shown special circumstances or compelling reasons to convince us that the dismissal of their complaint for failure to prosecute was unjustified. (Eloisa Merchandising, Inc. And Trebel International, Inc., Vs. Banco De Oro Universal Bank And Engracio M. Escasinas, Jr., In His Capacity As Ex-Officio Sheriff Of The Rtc Of Makati City, G.R. No. 192716, June 13, 2012)

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

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. (Rule 17, Sec. 4)

3.9. Pre-trial

3.9.1. Concept of pre-trial

Pre -trialisa mandatory procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it for the purposes enumerated under Section 2, Rule 18.

When Conducted?(Sec.1)

It shall be the duty of the plaintiff, after the last pleading has been served and filed, to promptly move ex parte that the case be set for pre-trial.

The motion is to be filed within 5 days after the last pleading joining the issue has been served and filed (Admin. Circular No. 3-99, Jan. 15, 1999).

If the plaintiff fails to file said motion within the given period, the Clerk of Court shall issue a notice of pre-trial (A.M. No. 03-1-09-SC, Re: Pre-trial guidelines, Effective August 16, 2004).

Expiration of the period to file sufficient

The plaintiff need not wait until the last pleading has been actually served and filed as the expiration of the period for filing the last pleading will suffice (Sarmiento v. Juan, No. 56605 January 28, 1983).

3.9.2. Nature and purpose (Rule 18, Sec. 2)

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.

3.9.3. 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. (Rule 18, Sec. 3)

3.9.4. Appearance of parties; effect of failure to appear

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. (Rule 18, Sec. 4)

3.9.5. Pre-trial brief; effects of failure to file(Rule 18, Sec. 6)

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.

3.9.6. Distinction between pre-trial in civil case and pre-trial in criminal case

DISTINCTION BETWEEN PRE-TRIAL IN

CIVIL CASE CRIMINAL CASE

The presence of the defendant is required unless he is duly represented by his counsel with authority to enter

into a compromise agreement, failure of which the case would proceed as if the defendant has been declared in default.

The presence of the accused is not indispensable unless required by the court, he is

just required to sign the written agreement arrived at the pre-trial if he is in conformity

therewith.

The presence of the plaintiff is required at the pre-trial unless excused or

represented by person fully authorized in writing to perform the acts specified in Sec4, Rule 18. Failure of which the

case may be dismissed with or without prejudice.

The offended party is not required to be present at the pre-trial but must appear at the

arraignment for the purpose of plea bargaining, determination of civil liability and other matters

requiring his presence. (If the offended party fails to appear, and the accused offer to plea to a

lesser offense, the same may be allowed with the conformity of the prosecutor alone.

A pre-trial brief is required

Does not require filing of pre-trial brief but attendance only in a pre-trial conference to consider the matters stated in sec 2, rule18

(Regalado)

Effect of failure to set the case for pre-trial

Under Section 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended, it is the duty of the plaintiff, after the last pleading has been served and filed, to promptly move ex parte that the case be set for pre-trial. On August 16, 2004, A.M. No. 03-1-09-SC (Re: Proposed Rule

on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures) took effect, which provides that:

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.

We note that when the above guidelines took effect, the case was already at the pre-trial stage and it was the failure of petitioners to set the case anew for pre-trial conference which prompted the trial court to dismiss their complaint.

In Olave v. Mistas, this Court said that even if the plaintiff fails to promptly move for pre-trial without any justifiable cause for such delay, the extreme sanction of dismissal of the complaint might not be warranted if no substantial prejudice would be caused to the defendant, and there are special and compelling reasons which would make the strict application of the rule clearly unjustified. In the more recent case of Espiritu v. Lazaro, this Court affirmed the dismissal of a case for failure to prosecute, the plaintiff having failed to take the initiative to set the case for pre-trial for almost one year from their receipt of the Answer. Although said case was decided prior to the effectivity of A.M. No. 03-1-09-SC, the Court considered the circumstances showing petitioners’ and their counsel’s lack of interest and laxity in prosecuting their case. (Eloisa Merchandising, Inc. And Trebel International, Inc., Vs. Banco De Oro Universal Bank)

3.9.7. Alternative Dispute Resolution (ADR)

ALTERNATIVE DISPUTE RESOLUTION

Any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof

Referral to ArbitrationA court before which an action is brought in a matter which is the subject matter of an

arbitration agreement shall, if at least one party so requests not later that the pre-trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

a) Special Rules of Court on ADR (A.M. No. 07-11-08-SC)(Note: this is a very long set of rules and was not included anymore)

3.10. Intervention

What is intervention?

– a proceeding in a suit or action by which a third person is permitted by the court to become a party by intervening in the pending case after meeting the conditions and compliance with the requirement set by the Rules.

Nature:

Intervention is ancillary and supplemental to an existing action. Hence, it cannot exist independent of the principal action and the dismissal of the latter shall also cause the dismissal of the complaint-in-intervention.

General rule: Intervention is discretionary.

Exceptions: It is a matter of right when:

1) Intervenor turns out to be an indispensable party2) Class suit

Note:

Intervention is a prohibited pleading in forcible entry and unlawful detainer cases under Sec. 13, Rule 70.

3.10.1. Requisites for intervention

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. (Rule 18, Sec. 1)

A leave of court is necessary in order that the third party may be allowed to intervene in the action.

An intervention cannot legally alter the nature of the action and the issue joined by the original parties. (Clardidades v. Mercader, G.R. No. L-20341, May 14, 1966)

3.10.2. 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. (Rule 18, Sec. 2)

3.10.3. Remedy for the denial of motion to intervene

Answer to Complaint in Intervention (Rule 18, Sec.4)

Must be filed within 15 days from notice of the order admitting the same, unless otherwise fixed by the court.

Remedies if motion for intervention is denied

1) Appeal;2) File a petition for mandamus if there is grave abuse of discretion. 3) If the grant of intervention is improper, the remedy available to the parties is

Certiorari.

4) File a separate action

3.11. Subpoena

Subpoena is a process directed to a person requiring him to either:

1) Attend and to testify at the hearing or the trial of an action or at any investigation conducted by a competent authority;

2) Give his deposition;3) Bring with him any books, documents or other things under his control.

Subpoena may be issued by:(Rule 21, Sec.2)

1) The court before whom the witness is required to attend;2) The court of the place where the deposition is to be taken;3) The officer or body authorized by law to do so in connection with the investigations

conducted by said officer or body; or4) Any Justice of the Supreme Court or of the Court of Appeals in any case or

investigation pending within the Philippines.

3.11.1. Subpoena duces tecum

A process by which the court to compel the production of books, records, things or documents therein specified. (Roco v. Contreras, et.al., G.R. No. 158275, June 18, 2005, 500 Phil 275)

3.11.2. Subpoena ad testificandum

Ordinary subpoena. Requires a person to whom the order is directed to attend and to testifyat the hearing or the trial of an action or at any investigation conducted by a competent authority or for the taking of his deposition.

It is used to compel a person to testify. (Roco v. Contreras, et.al., supra)

3.11.3. Service of subpoena

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. (Rule 21, Sec.6)

3.11.4. Compelling attendance of witnesses; contempt

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. (Rule 21, Sec.8)

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. (Rule 21, Sec.9)

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 21, Sec.10)

3.11.5. Quashing of subpoena

Grounds for quashing subpoena duces tecum

Court may quash a subpoena duces tecum upon motion promptly made, and in any event, at or before the time specified if:

1) It is unreasonable or oppressive;2) The relevancy of the books, documents or things does not appear; 3) The person in whose behalf the subpoena is issued fails to advance the reasonable

cost of the production thereof; or4) The witness fees and the kilometrage allowed by these Rules were not tendered when

the subpoena was served.

Grounds for quashing subpoena ad testificandum

1) The witness is not bound thereby; where the residence is more than 100km from place of trial.

2) The witness fees and the kilometrage allowed by these Rules were not tendered when the subpoena was served.

“Viatory Right” of the witness – If witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending, then he cannot be compelled to attend the trial. The right is available only in CIVIL cases.

There is no viatory right in criminal cases. (People v. Montejo, G.R. No. L-24154, Oct. 31, 1967)

3.12. Modes of discovery

Discovery: (A) device employed by a party to obtain information about relevant matters on the case from the adverse party in preparation for the trial. (Riano 2011)

The modern pre-trial procedure by which one party gains vital information concerning the case in order to aid him in his litigation. (Riguera 2013, citing Steven Gifis, Law Dictionary 61 [1975]).

Purpose: to narrow and clarify the basic issues between the parties, to ascertain the facts relative to the issues and enable the parties to obtain the fullest possible knowledge of issues

and facts before civil trials.

The primary purpose of discovery is to enable the parties to obtain the fullest possible knowledge of the issues and facts before trial and thus prevent the situation where trials are carried on in the dark. It makes the parties lay down their cards on the table so that justice can be rendered on the merits of the case. (Riguera 2013, citing Koh v. IAC, 144 SCRA 259).Modes or Methods of Discovery provided by the Rules of Court:

1) Depositions pending action (Rule 23); or Depositions before action or pending appeal (Rule 24);

2) Interrogatories to parties (Rule 25);3) Request for admission by adverse parties (Rule 26);4) Motion for Production or inspection of documents or things (Rule 27); and5) Motion for physical and mental Examination of persons (Rule 28).

Availing modes of discovery is not mandatory but the failure to avail may be sanctioned under Rules 25 and 26.

BILL OF PARTICULAR MODES OF DISCOVERY

To compel to clarify vague statements of ultimate facts. To compel other party to reveal his evidence

and evidentiary facts.

Prior Leave of Court, When Required

Rules 27 and 28 always require prior leave of court, unlike other modes of discovery which could be availed of without leave of court as long as the defendant has filed or served a responsive pleading.

3.12.1. Depositions pending action; depositions before action or pending appeal

a) Meaning of deposition

Depositionis a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination (Republic vs. Sandiganbayan, G.R. No. 112710, May 30, 2001).

Depositionis a method of pre-trial discovery which consists in taking the testimony of a person under oath upon oral examination (oral deposition) or upon written interrogatories. The term deposition also refers to the testimony or statement so taken. (Riguera 2013)

b) Uses; scope of examination

Applies also for depositions under Rule 24

The purpose for which a deposition may be used depends on who the deponent is and on who will be using the deposition. Rule 23, Section 4(c) lays down the relevant rules:

a)Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. This is a common use of a deposition, to impeach a witness who is under cross-examination.

b) The deposition of a party or of anyone who at the time of the 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 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;

(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment;

(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 circumstance exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of the witness orally in open court, to allow the deposition to be used. (Rule 23, Section 4) The deposition in such case is admissible in evidence as an exception to the hearsay rule (Antonio R. Bautista, Basic Civil Procedure 124[2003 ed.]; United States Federal Rules of Evidence, sec.804[b][1]).

If the deposition is taken not in the same case but in a former case or proceeding, it is governed NOT by Sec. 4(c) Rule 23 but by Sec. 47 Rule 130. (Riguera 2013)

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 (Rule 23, Section 4(d)) (Primer-Reviewer on REMEDIAL LAW, Manuel R. Riguera)

When is deposition pending action taken?(Rule 24, Sec.1)

1. With leave of court

a) after jurisdiction has been obtained over any defendant or over property subject of the action;

b) deposition of a person confined in prison

2. Without leave of court

After an answer has been served.

General rule:

Plaintiff may not be permitted to take depositions before answer is served.Reason:He must wait for the joinder of issues because only this time that it can be

determined what is relevant

Exception:Under special circumstances where there is necessity and good reason for presenting a strong case. Thus, there must be necessityand good reason for the taking of the testimony immediately.

Example: Where the witness is aged or infirm

An answer ex abudanti cautela (out of abundant caution or to be on the safe side) does not make their answer less of an answer and when such answer is filed, deposition may be made without leave of court (Rosete v. Lim G.R No.136051, June 8, 2006).

Scope of Examination

Applies also for depositions under Rule 24

Deponent may be examined regarding any matter which is:

1) Not privileged;2) Relevant to the subject of the pending action;3) Not restricted by court order for the protection of parties and deponents;4) Not meant to annoy, embarrass or oppress the deponent or party.

c) When may objections to admissibility be made?

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. ( Rule 23, Sec. 6)

(Rule 23, Sec. 29)

Effect 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 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, 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.

d) When may taking of deposition be terminated or its scope limited?

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 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. (Rule 23, Sec. 18)

3.12.2. Written interrogatories to adverse parties

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. (Rule 25, Sec. 1)

a) Consequences of refusal to answer

“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.” (Rule 29, Sec. 1)

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. (Rule 29, Sec. 5)

b) 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. (Rule 25, Sec. 6)

3.12.3. Request for admission

At any time after issues have been joined, a party may file and serve upon any other 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 copy have already been furnished. (Rule 26, Sec. 1)

A request for admission must be served directly upon the party requested. Otherwise, that party cannot be deemed to have admitted the genuineness of any relevant matters of fact set forth therein on account of failure to answer the request for admission. (Riguera 2013, citing Lañada vs. CA, 1 February 2002).

a) Implied admission by adverse party

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. (Rule 26, Sec. 2(1))

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. (Rule 26, Sec. 2(2))

Exceptions:

1. The requested party files and serves upon the party requesting the admission a sworn

statement either specifically denying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters., within a period designated in the request, which shall not be less than 15 days after service thereof or within such further time as the court may allow on motion.

2. When the request for admission is not directly served upon the party requested, the party requested cannot be deemed to have admitted the genuineness of any relevant matters of fact set forth therein on account of failure to answer the request for admission. (Riguera 2013, citing Lañada vs. CA, 1 February 2002).

b) Consequences of failure to answer request for admission

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. (Rule 29, Sec. 4)

c) 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. (Rule 26, Sec. 3)

d) 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. (Rule 26, Sec. 5)

3.12.4. Production or inspection of documents or things

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. (Rule 27, Sec. 1)

3.12.5. Physical and mental examination of persons

This mode of discovery is available in an action in which the mental or physical condition of a party is in controversy.

Examples:

1. Annulment of contract on the ground of insanity2. Petition for guardianship of a person alleged to be insane3. Action for damages where the issue is the extent of injuries of plaintiff

(Riano 2011)

Requisites:

1.Physical or mental condition must be the subject of controversy.2. Motion showing good cause must be filed.3.Notice of motion must be given to the party to be examined and to all other parties.

When examination may be ordered? (Rule 28, Sec.1)

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.

Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege. Furthermore such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physical or mental condition (Rule 130, Sec. 24[c]).

Order for Examination (Rule 28, Sec.2)

Requisites:

1.Physical or mental condition must be the subject of controversy.2.Motion showing good cause must be filed.3.Notice of motion must be given to the party to be examined and to all other parties.

Report of Findings (Rule 28, Sec.3)

A copy of the detailed written report of the examining physician may be delivered to the party examined, if the latter should request.

Waiver of Privilege(Rule 28, Sec.4)A party examined waives any privilege he may have in that action or any other involving the same controversy:

1) By requesting and obtaining a report of the examination so ordered; or 2) By taking the deposition of the examiner.

Consequences of Requesting and Obtaining a Report of Examination

Where the party examined requests and obtains a report on the results of the examination, the consequences are that:

1) He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental examination; and

2) He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may

thereafter examine him (Regalado).

Prior Leave of Court, when required

Rules 27 and 28 always require prior leave of court, unlike other modes of discovery which could be availed of without leave of court as long as the defendant has filed or served a responsive pleading.

3.12.6. Consequences of refusal to comply with modes of discovery

Sanctions:

A. Refusal to answer any question (Rule 29, Sec. 1)

1. Examination may be completed on other matters, or adjourned, as the proponent of the question may prefer;

2. Upon application by the proponent, the court may compel the deponent to answer the questions;

3. If the refusal was without substantial justification, court 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.

The remedies above are available under Rule 23 and Rule 25.

B. Refusal to answer designated or particular questions or refusal to produce documents or things or to submit to physical examination (Rule 29, Sec.3)

1. Order that the matters regarding which questions were asked shall be taken to be established for purposes of the action in accordance with the claim of the party obtaining the order;

2. Refuse to allow the disobedient party to support or oppose designated claims or defenses;3. Strike out all or any part of the pleading of the disobedient party;4. In lieu of the foregoing orders or in addition thereto, an order directing the arrest of any

party or agent of any party for disobeying any such orders, except an order to submit to a physical or mental examination.

C. Refusal to be sworn (Rule 29, Sec. 2)

If a party or other witness refuses to be sworn or refuses to answer question after being directed to do so by the court of the place in which deposition is being taken, such refusal may considered a contempt of that court.

D. Refusal to admit (Rule 29, (Sec. 4)

The court upon proper application may order the former to pay the reasonable expenses in making such proof, including attorney’s fees.

If:1. A party requests for the admission of either:

a. the genuineness of any document, or

b. the truth of any matter of fact2. The party requested refuses to admit the same and thereafter serves a sworn denial

thereof, and;3. Later, the party requesting for admission proves the genuineness or truthfulness, as the

case may be;

then, the party requesting for the admission may apply to the court for an order requiring the adverse party to pay reasonable expenses incurred in making such proof, including attorney's fees.

E. Failure to attend depositions or to serve answers to interrogatories (Rule 29, Sec. 5)

1.Strike out all or any part of the pleading of the disobedient party;2.Render a judgment by default against the disobedient party;3.Order him to pay reasonable expenses incurred by the other, including attorney’s fees.

Other sanctions:

1. Stay further proceedings until order is obeyed;2. Dismiss the action or proceeding;3. Arrest the disobedient party or his agent.

Note:

The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this Rule.

The matter of how and when the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending.

3.13. Trial

It is an examination before a competent court or tribunal of the facts or law put in issue in a case for the purpose of determining such issue.

In a limited sense, trial refers to the stage of a case when the parties present their evidence before the court up to the point when the case is deemed submitted for decision. (Riguera 2013)

General rule: Decision should not be made without trial.

Exceptions:When is there judgment without trial

1. Judgment on the pleading (Rule 34);2. Summary judgment (Rule 35);3. Judgment on compromise;4. Judgment by confession;5. Dismissal with prejudice (Rule 17);6. Judgment under Rule on Summary Procedure;7. Stipulation of facts. (Sec. 6 Rule 30)

Notice of Trial (Rule 30, Sec.1)

The clerk shall notify the parties of the date of trial, upon entry of the case in the trial calendar in such manner as shall ensure their receipt of that notice at least 5 days before such date.

3.13.1. Adjournments and postponements (Rule 30,Section 2)

General rule: A court may adjourn a trial from day to day, and to any stated time

Limitations: The court shall have no power to:

1. Adjourn a trial for more than 1 month for each adjournment; or2. More than 3 months in all; except when authorized in writing by the court

administrator, the Supreme Court.

Exception: The court can go beyond the period provided by law when authorized in writing by the Court Administrator of the Supreme Court.

3.13.2. Requisites of motion to postpone trial

a) 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 object to their admissibility, the trial shall not be postponed. (Rule 30,Sec.3)

b) 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. (Rule 30,Sec.4)

3.13.3. 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. (Rule 30,Sec.6)Exceptions: Judgment based on stipulation of facts is not allowed in actions for declaration of nullity of marriage, annulment of marriage and legal separation. (Riguera 2013, citing Arts. 48 & 60, Family Code)

3.13.4. Order of trial; reversal of order

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 complaints;

(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. (Rule 30,Sec.5)

Trial in reverse – defendant presents evidence ahead of the plaintiff.

When proper

If the defendant instead of filing a motion to dismiss files an answer, invoking the ground as an affirmative defense

3.13.5. Consolidation or severance of hearing or trial

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. (Rule 31, Section 1)

When available?

Many authorities held that consolidation may occur even if cases are pending before different courts or tribunal. The necessary thing is that actions involve the common questions of law or fact (Superlines Transportation v. Victor).

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. (Rule 31, Section 2)

3.13.6. Delegation of reception of evidence

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 partehearings, 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. (Rule 30, Section 9)

3.13.7. Trial by commissioners

Who is a commissioner?

Commissioneris the person to whom a cause pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered.

Who are included under the term “commissioner”

The word "commissioner" includes a referee, an auditor and an examiner. (Rule 32, Section 1)

a) Reference by consent or ordered on motion

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. (Rule 32, Section 1)

b) Powers of the commissioner

Subject to other 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. (Rule 32, Section 3)

c) Commissioner’s report; notice to parties and hearing on the report

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 report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. (Rule 32, Section 9)

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 (10) 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. (Rule 32, Section 10)

Hearing upon report.

Upon the expiration of the period of ten (10) 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. (Rule 32, Section 11)

3.14. Demurrer to evidence

Demurrer to Evidence is a motion to dismiss based on the ground of insufficiency of evidence and is presented after the plaintiff rests his case.

Nature of demurrer to evidence: Only within the province of the trial courts:

The Court has previously explained the nature of a demurrer to evidence in the case of Celino v. Heirs of Alejo and Teresa Santiago as follows: "A demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests his case. It is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The evidence contemplated by the rule on demurrer is that which pertains to the merits of the case."

In passing upon the sufficiency of the evidence raised in a demurrer, the court is merely required to ascertain whether there is competent or sufficient proof to sustain the judgment. Being considered a motion to dismiss, thus, a demurrer to evidence must clearly be filed before the court renders its judgment.

Accordingly, the CA committed reversible error in granting the demurrer and dismissing the Amended Complaint a quo for insufficiency of evidence. The demurrer to evidence was clearly no longer an available remedy to respondents and should not have been granted, as the RTC had correctly done. Nenita Gonzales, Et. Al. Vs. Mariano Bugaay And Lucy Bugaay, G.R. No. 173008, February 22, 2012

3.14.1. Ground

A motion to dismiss filed by the defendant after the plaintiff has completed the presentation of his evidence on the ground that upon the facts and the law, the plaintiff has shown no right to relief. (Riguera 2013)

3.14.2. Effect of denial

1.Defendant shall have the right to present evidence. (Rule 33, Section 1)2. The date for reception of defendant’s evidence should be set. 3.The order is interlocutory and therefore not appealable but can be subject of petition

for certiorari in case of grave abuse of discretion or oppressive exercise of judicial authority.

3.14.3. Effect of grant

1) The case shall be dismissed. (Rule 33, Section 1)2) The appellate court should render judgment on the basis of the evidence submitted

by the plaintiff.3) If, on appeal, the order of dismissal is reversed, the movant shall be deemed to have

waived his right to present evidence. In practical terms, this means that the plaintiff already wins the case since the appellate court should forthwith render judgment for the plaintiff on the basis of his evidence alone. (Riguera 2013)

3.14.4. Waiver of 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. (Rule 33, Section 1)3.14.5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case

DISTINCTIONS BETWEENDEMURRER TO EVIDENCE IN

CIVIL CASES CRIMINAL CASESAs to Requirement to Leave of Court

Leave of court is not required before filing a demurrer.

It may be filed with or without leave of court (Sec. 23, Rule 119).

As to Right to Appeal

If the demurrer is granted, the order of dismissal is appealable (Sec. 1,

Rule 33).

But if on appeal, the appellate court reverses the order of dismissal, the defendant loses his right to present evidence (Radiowealth vs. Spouses

Del Rosario, G.R. No. 138739, July 6, 2000).

The order of dismissal is not appealable because of the constitutional policy against double jeopardy.

As to the Effects of Denial

If the demurrer is denied, the Court denies the demurrer:

defendant may proceed to present his evidence.

a. if demurrer was with leave, accused may present his evidence.

b. if the demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence.

3.15. Judgments and final orders

What is a judgment?

It is the final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding.

Requisites of a Valid Judgment:

a) The court or tribunal must be clothed with authority to hear and determine the matter before it (Riano 2011 citing Acosta vs. COMELEC, 293 SRA 578, 580) The term "clothed with authority" includes jurisdiction over the subject matter of the case and over the person of the defendant, or over the res, in an action in personam or quasi in rem. (spr)(Riguera 2013)

b) Parties must have been given an opportunity to adduce evidence in their behalf (Riano 2011 citing Acosta vs. COMELEC, 293 SRA 578, 580). Indispensible parties should have been impleaded. (Riguera 2013)

c) It should be in writing. A verbal judgment is, in contemplation of law, not in esse, therefore, ineffective (Riano 2011, citing Corpus vs. Sandiganbayan, 442 SCRA 294, 309);

d) It must state clearly and distinctly state the facts and the law on which it is based, signed by the judge and filed with the clerk of court; and

e) It should contain a dispositive part (Riano 2011, citing Cu-Unjieng vs. Mabalacat Sugar Co., 70 Phil. 384) and should be signed by the judge and filed with the clerk of court.

What is Findings of fact?

These are statement of facts and not conclusions of law. Statement of facts in judgment must contain not only the ultimate facts. The supporting evidentiary facts must as well be established. This rule, however, does not require that the court shall state in its decision all the facts found in the records. (Riano 2011, citing People vs. Derpo, 168 SCRA 447, 455).

3.15.1. Judgment without trial

Default judgment –

A binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.

It is a judgment granting the claimant such relief as his pleading may warrant after the defending party fails to answer within the time allowed therefore, upon motion of the claiming party, with notice to the defending party, and proof of such failure to answer. (Sec. 3 Rule 9)

Summary judgment

A determination made by a court without a full trial. Such judgment may be issued as to the merits of an entire case, or of specific issues in that case.

A judgment rendered by a court without a full-blown trial, if the court finds that, except as to the amount of damages, there is no genuine issue as to any material fact and the plaintiff or defendant is entitled to a judgment as a matter of law. (Riguera 2013)

Voluntary dismissal –

The lawsuit is terminated by voluntary request of the plaintiff (Secs. 1 & 2 Rule 17)

3.15.2. Contents of a judgment

I) The opinion of the court – Contains the findings of facts and conclusions of law;2) The disposition of the case – The final and actual disposition of the rights litigated

(the dispositive part); and3) Signature of the judge(Herrera, p. 145)

3.15.3. Judgment on the pleadings

When judgment on the pleadings proper?

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. (Rule 34, Section 1) It is a judgment based solely on the relief prayed for in the complaint without plaintiff adducing any evidence. (Riguera 2013)

Judgment on the pleadings is proper when an answer fails to tender an issue, or otherwise admits the material allegation of the adverse party’s pleading. However, the trial court cannot direct a judgment on the pleading in the absence of a motion filed for the purpose by a party litigant (De Luna v. Abrigo, 181 SCRA 150).Grounds:

1) When answer fails to tender an issue because of:

a)general denial of material allegations of the compliant;b) insufficient denial of the material allegations of the complaint; or

2) When answer admits the material allegation of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading (Sec. 1 Rule 34);

3) Under the Rules on Summary Procedure, should the defendant fails to answer the complaint within 10 days from service of summons (Sec. 6 RSP);

4) Where the defendant is declared in default, 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 (Sec. 3 Rule 9)

5) During pre-trial, the court may render a judgment on the pleadings if it finds a valid ground therefor. (sec. 2(g) Rule 18).

6) As a penalty for non-compliance or refusal to answer in discovery proceedings, the court may render judgment by default against the recalcitrant or disobedient party. (Secs. 3 & 5, Rule 29)(Riguera 2013)

When NOT Proper

1. When the answer raises an issue.2. In actions for annulment of marriage or for legal separation, or declaration of nullity

of marriage.3. Issue is the amount of unliquidated damages (Sec. 11 Rule 8).4. Only questions of law are being alleged.

Implied Admission under Third Mode of Specific Denial

The third mode of specific denial may not be availed of when the fact as to which want of knowledge or information is claimed is so plainly and necessarily within the defendant's knowledge that his averment of ignorance must be palpably untrue. The defendant must aver positively or state how it is that he is ignorant of the fact alleged. Since there is an implied admission of material averments of the complaint, a judgment on the pleadings may be rendered. (Riguera 2013, citing Capitol Motors vs. Yabut, 32 SCRA 1)

Judgment on the Pleadings may be Rendered Only Upon Motion

A court may direct judgment on the pleadings only if there is a motion to that effect. (Riguera 2013, citing Sec. 1 Rule 34) However, trial court may render a judgment on the pleadings if, after the pre-trial, the facts warrant such a judgment (Regalado, Tenth Edition, citing Taleon vs. Sec. of Public Works & Communication, L-24281, May 19, 1967)

What is Deemed Admitted by the Movant?

One who prays for judgment on the pleadings without offering proof as to the truth of his own allegations, and without giving the opposing party an opportunity to introduce evidence, impliedly admits the truth of all the material and relevant allegations of the opposing party, and to rest his motion for judgment on those allegations taken together with such of his own are admitted in the pleadings. (Riguera 2013, citing Sanchez vs. Rigos, 45 SCRA 368). The plaintiff, by moving for judgment on the pleadings, is not deemed to have admitted irrelevant allegations in the defendant's answer (Regalado, Remedial Law Compenium, Tenth Edition, citing Araneta vs. Perez, L-20787-8, June 29, 1965), neither is the defendant deemed to have admitted allegations of damages in the complaint (Ibid., citing Abubakar Tan vs. Tian Ho, L-18820, Dec. 29, 1962). Hence, there can be no award of damages in the absence of proof. (Ibid.,

citing Lichauco vs. Guash, 76 Phil., 5).

3.15.4. Summary judgments

A judgment rendered by a court without a full-blown trial, if the court finds that, except as to the amount of damages, there is no genuine issue as to any material fact and the plaintiff or defendant is entitled to a judgment as a matter of law. (Riguera 2013)

Nature and purpose

Summary judgment is a procedural device resorted to in order to avoid long drawn out litigations and useless delays. Such judgment is generally based on the facts proven summarily by affidavits, depositions, pleadings, or admissions of the parties.

When available?

When the pleadings on file show that there are no genuine issues of fact to be tried, the Rules of Court allow a party to obtain immediate relief by way of summary judgment, that is, when the facts are not in dispute, the court is allowed to decide the case summarily by applying the law to the material facts. Conversely, where the pleadings tender a genuine issue, summary judgment is not proper.

A summary judgment is permitted only if there is no genuine issue as to any material fact and a moving party is entitled to a judgment as a matter of law. A summary judgment is proper if, while the pleadings on their face appear to raise issues, the affidavits, depositions, and admissions presented by the moving party show that such issues are not genuine. (Spouses Ramon Villuga And Mercedita Villuga, Vs. Kelly Hardware And Construction Supply Inc., Represented By Ernesto V. Yu, Executive Vice-President And General Manager, G.R. No. 176570, July 18, 2012)

Meaning of “Genuine Issue”

A "genuine issue" is such issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. Section 3 of [Rule 35 of the Rules of Court] provides two (2) requisites for summary judgment to be proper: (1) there must be no genuine issue as to any material fact, except for the amount of damages; and (2) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. (Spouses Ramon Villuga And Mercedita Villuga, Vs. Kelly Hardware And Construction Supply Inc., Represented By Ernesto V. Yu, Executive Vice-President And General Manager, G.R. No. 176570, July 18, 2012)

Burden of proof is on the part of movant

A party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is so patently unsubstantial as not to constitute a genuine issue for trial, and any doubt as to the existence of such an issue is resolved against the movant. (Maritime Industry Authority (Marina) Vs Marc Properties Corporation, G.R. No. 173128, February 15, 2012)

Requisites of a valid summary judgment:

1. Upon filing of a motion2. After issues have been joined3. The court finds that there is no genuine issue as to any material fact based on the

pleadings, supporting affidavits, depositions and admissions on file EXCEPT as to the amount of damages.

4. The moving party is entitled to a judgment as a matter of law.

Genuine Issue – an issue of fact which calls for the presentation of evidence as distinguished from an issue which is fictitious and contrived, set up in bad faith and patently unsubstantial so as not to constitute a genuine issue for trial.

When NOT Proper?

In actions for:

a. Declaration of nullity of marriageb. Annulment of marriagec. Legal separation

Exhibits to Support the Motion for Summary Judgment

There is no bar to supporting the motion with documents or exhibits. In practice, such exhibits are attached to the supporting affidavits. (Riguera 2013, citing Thomas Mauet, Fundamentals of Pretrial Techniques 262 [1988]).

a) For the 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. (Rule 35, Section 1)

b) For the defendant

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. (Rule 35, Section 2)

c) When the case not fully adjudicated

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. (Rule 35, Section 4)

Partial Summary Judgment

A judgment not on the entire case but only on the specified factual issues, with the court proceeding to try the other factual issues

Note:Propriety of Summary Judgment may be corrected only on appeal or other direct review, not by certiorari.

May a partial summary judgment be appealed separately from the judgment in the entire case?

No. A partial summary judgment as a rule is not appealable sepearately from the judgment in the entire case, unless allowed by the court under Sec.1(f) Rule 41. Hence, the failure to appeal separately from a partial summary judgment or to challenge it by a special civil action for certiorari does not make the same final and executory. (Riguera 2013, citing Philippine Business Bank vs. Chua, 15 November 2010).

Partial summary judgment not to be considered a final judgment

Rule 35 on summary judgments, admits of a situation in which a case is not fully adjudicated on motion, and judgment is not rendered upon all of the reliefs sought. In Philippine Business Bank v. Chua, we had occasion to rule that a careful reading of its Section 4 reveals that a partial summary judgment was never intended to be considered a "final judgment," as it does not "[put] an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for." In this case, there was never any final or complete adjudication of Civil Case No. 0141, as the Sandiganbayan’s partial summary judgment in the Swiss Deposits Decision made no mention of the Arelma account.

Separate judgment allowed on entirely different subject matter after rendition of partial summary judgment

Section 4 of Rule 35 pertains to a situation in which separate judgments were necessary because some facts existed without controversy, while others were controverted. However, there is nothing in this provision or in the Rules that prohibits a subsequent separate judgment after a partial summary judgment on an entirely different subject matter had earlier been rendered. There is no legal basis for petitioners’ contention that a judgment over the Swiss accounts bars a motion for summary judgment over the Arelma account. (Imelda Romualdez-Marcos, Vs. Republic Of The Philippines, G.R. No. 189505)

d) Affidavits and attachments

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. (Rule 35, Section 5)

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 35, Section 6)

3.15.5. Judgment on the pleadings versus summary judgments

SUMMARY JUDGMENTS JUDGMENT ON THE PLEADINGS

As to Its Basis

Based not only on the pleadings but also on depositions, admissions and affidavits

Based solely on the pleadings, without introduction of evidence

To Whom Available

Available to both parties.Generally available only to the plaintiff,

unless the defendant presents a counterclaim.

As to Issues

There may be issues involved in the case but these issues are irrelevant

The answer fails to tender an issue or there is an admission of material allegations

When Proper

No genuine issue of fact to be tried except as to the amount of damages (Sec. 3 Rule 35)

No issue of fact at all.

As to Period for Notice of Hearing

10-day notice of hearing required 3-day notice of hearing required

3.15.6. 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. (Rule 36, Section 1)

Rendition of judgmentis the filing of the same (the decision signed by the judge) with the clerk of court, not the pronouncement of judgment in open court (which is promulgation). (Riano 2011)

Promulgationof judgment– the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel.

Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court. (Riano 2011, citing Ago vs. CA, 6 SCRA 530, 535)

Extent of promulgation/rendition of judgment

It bears stressing that a judgment is not confined to what appears upon the face of the decision, but also those necessarily included therein or necessary thereto. (Bernardo de Leon vs. Public Estate Authority, G.R. No. 181970, August 3, 2010)

When a judgment calls for the issuance of a new title in favor of the winning party, it logically follows that the judgment also requires the losing party to surrender its title for cancellation. It is the only sensible way by which the decision may be enforced. To this end, petitioners can obtain a court order requiring the registered owner to surrender the same and directing the entry of a new certificate of title in petitioners’ favor. (Col. Francisco Dela Merced Vs. Government Service Insurance System, G.R. No. 167140. November 23, 2011)

Entry of judgment and final order

When made?

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, within a certificate that such judgment or final order has become final and executory. (Rule 36, Section 2)

Importance of Date of Entry

It is the starting point of the 6-month period for filing a petition for relief (Sec. 3 Rule 38), the 5-year period for filing a motion for execution (Sec. 6 Rule 39), and the 10-year period for filing an action for revival of judgment (Art. 1144 Civil Code). (Riguera 2013)

Kinds of judgment:

Sin Perjuico Judgment

It is a judgment without statement of the facts in support of its conclusions. Such a judgment is void for it violates Sec. 15, Article VIII of the Constitution. Thus, the party adversely affected would be unable to file a motion for reconsideration or appeal the judgment for he has to speculate on the grounds upon which the judge based his decision. (Riguera 2013)

Nunc Pro Tunc Judgment or Order

One rendered to record some judicial act done at a former time but which was not carried into the record. Since the only function of a nunc pro tunc judgment or order is to place into the record a judicial action actually taken, it cannot correct judicial errors, however flagrant and glaring these may be. (Riguera 2013, citing Henderson vs. Tan, 87 Phil. 466), nor can it construe what a judgment means. (Ibid., citing Lichauco vs. Tan Po, 51 Phil. 862).

Several Judgments (Rule 36, Sec.4)

A judgment rendered by a court against one or more defendants, but not against all, leaving the action to proceed against the others (Riano 2011, citing Sec.4 Rule 36)Separate Judgments(Rule 36, Sec.5)

This kind of judgment presupposes that there are several claims for relief presented in a single action. The court may render separate judgment on one of the several claims. The judgment will terminate the action with respect to that claim and the action shall proceed as to the remaining claims. The court may stay the execution of the separate judgment until the rendition of a

judgment on all the other claims. (Riano 2011, citing Sec. 5 Rule 36)

Memorandum decision

It isa decision of appellate court which adopts the true findings of fact and conclusion of the trial court if it is affirming the latter’s decision.

Appeal on Separate or Several Judgments

Appeal on either is not allowed unless the court allows the appeal. (Sec. 1(g) Rule 41). Where an appeal is allowed, the same shall be taken by filing a notice of appeal and a record on appeal within 30 days from notice of the order allowing the appeal. (Sec. 3 Rule 41). (Riguera 2013).

Judgment against Entity without Juridical Personality (Rule 36, Sec. 6)

The judgment shall set out their individual or proper names if known.

Doctrine of Immutability of Judgments

Sometimes referred to as “conclusiveness of judgments,” “preclusion of issues” or “collateral estoppels”(Riano 2011). Once judgment becomes final and executory, the judgment can no longer be disturbed.

A judgment that has acquired finality becomes immutable and unalterable and is no longer to be modified in any respect even if the modification is meant to correct an erroneous conclusion of fact or of law, and whether the modification is made by the court that rendered the decision or by the highest court of the land. (Dare Adventure Farm Corporation Vs. Spouses Felix and Nenita Ng, Spouses Martin and Azucena Ng and Agripina R. Goc-ong, et al. G.R. No. 161122. September 24, 2012)

Reasons:

1. To avoid delay in the administration of justice2. To put an end to judicial controversies (Riano 2011)

Purpose:

The doctrine of immutability and unalterability serves a two-fold purpose, namely: (a) to avoid delay in the administration of justice and thus, procedurally, to make orderly the discharge of judicial business; and (b) to put an end to judicial controversies, at the risk of occasional errors, which is precisely why the courts exist. . (Dare Adventure Farm Corporation Vs. Spouses Felix and Nenita Ng, Spouses Martin and Azucena Ng and Agripina R. Goc-ong, et al. G.R. No. 161122. September 24, 2012)

Exceptions:

1. Clerical Errors or mistakes2. Nunc Pro Tunc entries which cause no prejudice to any party3. Void judgments

When a judgment or final order becomes final and executory?

A judgment becomes final and executory upon the expiration of the period to appeal therefrom and no appeal has been perfected (Sec. 1 Rule 39)

The judgment attains finality by the lapse of the period for taking an appeal without such appeal or motion for reconsideration being filed.

Effects of finality of judgment:

1. The prevailing party is entitled to have the judgment executed as a matter of right and the issuance of the corresponding writ of execution becomes a ministerial duty of the court.

2. The court rendering the judgment loses jurisdiction over the case so that it can no longer correct the judgment in substance, except clerical errors and omissions due to inadvertence or negligence.

3. Res judicata supervenes.

Doctrine of the law of the case

Law of the case has been defined as the opinion delivered on a former appeal, and means, more specifically, that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.

The doctrine of law of the case simply means, therefore, that when an appellate court has once declared the law in a case, its declaration continues to be the law of that case even on a subsequent appeal, notwithstanding that the rule thus laid down may have been reversed in other cases. For practical considerations, indeed, once the appellate court has issued a pronouncement on a point that was presented to it with full opportunity to be heard having been accorded to the parties, the pronouncement should be regarded as the law of the case and should not be reopened on remand of the case to determine other issues of the case, like damages. But the law of the case, as the name implies, concerns only legal questions or issues thereby adjudicated in the former appeal. (Development Bank of the Philippines (DBP) v. Guariña Agricultural and Realty Development Corporation, G.R. No. 160758. January 15, 2014.)

3.16. Post-judgment remedies

Remedies against judgment or final orders:

Before finality

1) Motion for new trial or reconsideration (Rule 37)2) Appeal3) Reopening of the case

After finality

1) Relief from judgment (Rule 38)2) Annulment of judgment (Rule 47)3) Special Civil Action for Certiorari (Rule 65)

4) Collateral attack

Power to amend inherent before the court

The power to amend a judgment is inherent to the court before judgment becomes final and executory. Once a judgment has attained finality (expiration of the period to appeal), no further amendment or correction can be made by the court except for clerical errors or mistakes.

3.16.1. Motion for new trial or reconsideration

Grounds for New Trial:

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(FAME); 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.

Grounds for Motion for Reconsideration:

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. (Rule 37, Section 1) (acronym supplied)

What is the kind of fraud referred under Rule 37?

Fraud in Sec. 1(a) Rule 37 refers to extrinsic fraud, that is, deception or trickery by which the aggrieved party was prevented from having trial or presenting his case before the court. (Riguera 2013)

What is extrinsic fraud?

Extrinsic Fraud connotes any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who because of such fraud is prevented from presenting his side of the case (ex. prevent witness from testifying). Fraud, as a ground for new trial, must be extrinsic or collateral, that is, it is the kind of fraud which prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure the judgment without fair submission of the controversy (Regalado).

What is intrinsic fraud?

Intrinsic Fraud refers to acts of a party during the trial which does not affect the presentation of the case (ex. presentation of a forged promissory note). It is not a ground for new trial.

When to file?

Motion for new trial or reconsideration must be filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution.

Denial of the motion; effect

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.

Second motion for reconsideration not allowed

No party shall be allowed a second motion for reconsideration of a judgment or final order. (Rule 37, Section 5)

Grant of the motion; effect

If a new trial is granted in accordance with the provisions of this Rules 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, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. (Rule 37, Section 6)

Motion for New Trial if Granted

1. Based on FAME – there will be trial de novo2. Newly Discovered Evidence – a. No trial de novo;b. Evidence admitted based on same decision will remain;c. Case will be opened only for the purpose of admitting the new evidence

Motion for Reconsideration if Granted

1. No trial de novo2. Court will amend its judgment

e) Remedy when motion is denied, fresh 15-day period rule

An order denying a motion for new trial or reconsideration is not appealed, the remedy being an appeal from the judgment or final order. (Rule 37, Section 9)

The aggrieved party has a “fresh period” of 15 days from the denial of motion for reconsideration or new trial within which to file his appeal. This applies to Rules 40, 41, 42, 43 and 45(Neypes v. CA, GR 141524, September 14, 2005).

3.16.2. Appeals in general

Appealis a proceeding by which a party seeks from a higher court the review of a judgment or final order of a lower court on the ground that the judgment or final order is against the evidence or the law. (Riguera 2013)

Nature of the right to appeal

The right to appeal is neither a natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law.

Judgments and final orders subject to 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. (Rule 41, Section 1(1))

Matters not appealable

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;(b) An order denying a petition for relief or any similar motion seeking relief from

judgment;(c) An interlocutory order;(d) An order disallowing or dismissing an appeal;(e) 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;(f) An order of execution;(g) 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

(h) An order dismissing an action without prejudice.(Rule 41, Section 1(2))

Remedy against judgments and orders which are not appealable

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (Rule 41, Section 1(2))

A party may file a Special Civil Action for Certiorari or Prohibition if there is lack or excess of jurisdiction or grave abuse of discretion or Mandamus if there is no performance of duty.

d) Modes of appeal

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 law on these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (Rule 41, Section 2(a))

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. (Rule 41, Section 2(b))

Petition for review on 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 the Rule 45. (Rule 41, Section 2(c))

Issues to be raised on appeal

General Rule

Only questions of law or fact that has been raised in the lower court and must be within the issues framed by the parties can be raised on appeal.

Exceptions

1. Those assigned as errors2. Those closely related to or dependent on an assigned error3. Those which affect subject matter jurisdiction of the court or the validity of the

judgment4. Plain and clerical errors (Riguera 2013)

Period of 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.The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (Rule 41, Section 3)

Perfection of appeal

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.

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 appeal of the other parties.

Residual power of the court:

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 2 of Rule 39, and allow withdrawal of the appeal. (Rule 41, Section 9)

Payment of appeal docket 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, as the case may be. (Rule 40, Section 5; Rule 41, Section 4) If not paid, it could be a ground for dismissal of the appeal.

Appeal from judgments or final orders of the MTC

(All Sections are from Rule 40)

This rule governs appeal from judgment or final order of an MTC to RTC exercising jurisdiction over the area to which the former pertains.

Where to Appeal

An appeal from a judgment or order of a Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains.Title of the Case: as it was in the court of origin. But the party appealing the case shall be further referred to as appellant and the adverse party as the appellee.

When to Appeal?(Sec.2)

An appeal may be taken within 15 days after notice to the appellant of the judgment or final order appealed from.

Where record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment.

Effect of filing of motion for new trial or reconsideration

The period to appeal shall be interrupted by a timely motion for new trial or

reconsideration.

Prohibition on filing of motion for extension

No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

NOTE: To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.

Fresh Period Rule applicable from an appeal from MTC to RTC

Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to Regional Trial Courts. (Neypes vs. Court of Appeals, 469 SCRA 633, 2005)

How to Appeal (Sec.3)

1.File a notice of appeal with the trial court.2.Notice of appeal must indicate:

a.parties b.judgment or final order appealed fromc. material dates showing timeliness of appeal

3.A copy served on the adverse party.4. Payment in full of docket fees and other lawful fees

NOTE: A record on appeal shall be required only in a) special proceedings and b) in other cases of multiple or separate appeals. The forms and contents of the record on appeal shall be as provided in Sec. 6, Rule 41.

Material Dates Showing the Timeliness of the Appeal

The material dates showing the timeliness of an appeal includes:

1) The day the notice of judgment or final order was received2) The day when a motion for reconsideration or new trial, if any, was filed3) The day when notice of the denial of the motion for reconsideration or new trial was

received (Riguera 2013)

Appeal Bonds

Appeal bonds under Sec. 3 Rule 40 and Sec. 5 Rule 41 was removed by the Interim Rules. Under the 1997 Rules of Civil Procedure, appeal bonds are no longer provided therein.

An exception is found under Sec. 46 of the Alternative Dispute Resolution Act (RA 9285) which provides that the losing party who appeals to the CA from a judgment of the court confirming the arbitral award shall be required by the appellate court to post counterbond

executed in favor of the prevailing party equal to the amount of the award. (Riguera 2013)

Perfection of Appeal (Sec.4)Governed by the provisions of Sec. 9, Rule 41.

Appellate Court Docket and other Lawful Fees (Sec.5)

Within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered judgment docket and other lawful fees; otherwise it is a ground for dismissal.

Duty of the Clerk of Court (Sec.6)

The clerk of court shall within 15 days from perfection of appeal:

a) transmit to the RTC the original record or the record on appeal, with the transcripts and exhibits; and

b) certify them as complete record.

Procedure in RTC(Sec.7)

1) Upon receipt of the complete record, the clerk of court of the RTC shall notify the parties of such fact;

2) Within 15 days from notice, the appellant shall submit a memorandum.3) Within 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.

Appeals from orders dismissing the case without trial; Lack of Jurisdiction (Sec. 8)

If the 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.

Effect if the appeal was granted

In case of affirmance and the ground 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.

Effect of reversal

In case of reversal, the case shall be remanded for further proceedings.

If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in interest of justice.

Applicability of Rule 41 (Sec. 9)

The other provisions of Rule 41 shall apply to appeals provided herein (Rule 40) insofar as NOT INCONSISTENT WITH or MAY SERVE TO SUPPLEMENT the provisions.

Direct Appeal to SC, Not Applicable

The provision allowing direct appeal to the Supreme Court on pure question/s of law applies only to a judgment of the RTC, not that of the MTC. (Riano 2013, citing Sec. 2(c) Rule 41).

Delegated Jurisdiction in Cadastral and Land Registration Cases

Under Sec. 34 of B.P. Blg. 129 on the delegated jurisdiction of the MTC in cadastral and land registration cases, it is provided that the decision of the MTC shall be appealable in the same manner as decisions of the RTC. (Riano 2013)

Appeal from judgments or final orders of the RTC (All Sections are from Rule 41)

Rule 41 refers to an ordinary appeal from the RTC to the CA in cases where the RTC rendered a decision in the exercise of its ORIGINAL JURISDICTION.

Subject of Appeal (Sec.1)(As amended by A.M. No. 07-7-12-SC December 4, 2007)

When an appeal is proper?

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.

When is an order considered final?

A court order is final in character if it puts an end to the particular matter resolved, leaving thereafter no substantial proceeding to be had in connection therewith except its execution. (Bairan vs. Tan Siu Lay, G.R. No. L-19460, 1966)

What is an interlocutory order?

An interlocutory Orderis an order which does not dispose of the case, but leaves something else to be done by the trial court on the merits of the case.

Meaning of Interlocutory order

The word “interlocutory” refers to something intervening between the commencement and the end of the suit which decides some point or matter but is not a final decision of the whole controversy. (Ma. Carminia C. Calderon (formerly Ma. Carminia Calderon-Roxas), represented by her attorney-in-fact, Marycris V. Baldevia Vs. Jose Antonio F. RoxasG.R. No. 185595. January 9, 2013)

As to extent of resolution/decision made

The Court has distinguished between final and interlocutory orders in Pahila-Garrido v. Tortogo, thuswise:

“The distinction between a final order and an interlocutory order is well known. The first disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing more to be done except to enforce by execution what the court has determined, but the latter does not completely dispose of the case but leaves something else to be decided upon. An interlocutory order deals with preliminary matters and the trial on the merits is yet to be held and the judgment rendered. The test to ascertain whether or not an order or a judgment is interlocutory or final is: does the order or judgment leave something to be done in the trial court with respect to the merits of the case? If it does, the order or judgment is interlocutory; otherwise, it is final.

As to applicability of the remedy of appeal; rationale

And, secondly, whether an order is final or interlocutory determines whether appeal is the correct remedy or not. A final order is appealable, to accord with the final judgment rule enunciated in Section 1, Rule 41 of the Rules of Court to the effect that "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; but the remedy from an interlocutory one is not an appeal but a special civil action for certiorari. The explanation for the differentiation of remedies given in Pahila-Garrido v. Tortogo is apt:

“xxx The reason for disallowing an appeal from an interlocutory order is to avoid multiplicity of appeals in a single action, which necessarily suspends the hearing and decision on the merits of the action during the pendency of the appeals. Permitting multiple appeals will necessarily delay the trial on the merits of the case for a considerable length of time, and will compel the adverse party to incur unnecessary expenses, for one of the parties may interpose as many appeals as there are incidental questions raised by him and as there are interlocutory orders rendered or issued by the lower court. An interlocutory order may be the subject of an appeal, but only after a judgment has been rendered, with the ground for appealing the order being included in the appeal of the judgment itself.

“The remedy against an interlocutory order not subject of an appeal is an appropriate special civil action under Rule 65, provided that the interlocutory order is rendered without or in excess of jurisdiction or with grave abuse of discretion. Then is certiorari under Rule 65 allowed to be resorted to.” Priscilla Alma Jose, Vs. Ramon C. Javellana, Et Al., G.R. No. 158239, January 25, 201

Non-Appealable Judgment or Orders:

a) An order denying a petition for relief or any similar motion seeking relief from judgment;

b.An interlocutory order; c.An order disallowing or dismissing an appeal; d.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; e.An order of execution; f.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

g.An order dismissing an action without prejudice (Sec. 1 Rule 41 as amended by SC Resolution effective 27 December 2007). (SSCC)

h.A judgment of direct contempt (Sec. 2 Rule 71)i.Compromise judgmentj.Judgments of the court in summary judicial proceedings in the family law (Art. 247

Family Code)k.Judgments in small claims cases (Sec. 23 Rules of Procedure for Small Claims Cases).

(Riguera 2013)

Perfection of Appeal(Sec. 9)

1.Notice of appeal

A party’s appeal is perfected upon the FILING of the notice of appeal in due time.

The court loses jurisdiction over the case upon:

a.Perfection of the appeal filed in due time; andb.Expiration of the time to appeal by the other parties (Ex. One party may receive the

judgment or final order of the court later than the other. Hence, one party’s period to appeal may have already expired while the other party’s period has not yet expired. Until the period to perfect an appeal on the party who belatedly received the notice has elapsed, the court has not yet lost jurisdiction)

2. Record on Appeal

A party’s appeal is perfected upon the APPROVAL of the record on appeal filed in due time.

The court loses jurisdiction ONLY over the subject matter upon:a) Approval of the records on appeal filed in due time; andb) Expiration of the time to appeal of the other parties

Residual Jurisdiction

It is the power of the trial court after it has lost jurisdiction but prior to the transmittal of the original record or the record on appeal, to:

1) Issue orders for the protection and preservation of the parties' rights which do not involve any matter litigated by the appeal;

2) Approve compromises;3) Permit appeals of indigent parties;4) Order execution pending appeal in accordance with Sec. 2 Rule 39, and;5) Allow withdrawal of the appeal (Sec. 9 Rule 41). (Riguera 2013)

Remedy Where Appeal Not Allowed

A party may file a Special Civil Action of Certiorari or Prohibition if there is lack or excess of jurisdiction or grave abuse of discretion or Mandamus if there is no performance of duty.

No Appeal for Dismissal Without Prejudice

A dismissal for forum-shopping under Sec. 5 Rule 7 is without prejudice unless otherwise stated in the dismissal order. Under Sec. 1 Rule 41, no appeal lies from an order dismissing a case without prejudice and hence a party may file an appropriate civil action under Rule 65. (Riguera 2013, citing Casupanan vs. Laroya, G.R. No. 145391, 26 August 2002).

Where appeals permitted beyond reglementary period

a. matters of life, liberty, honor or property;b. counsel’s negligence without any negligence on the client;c. existence of special/ compelling circumstances;d. merits of the case.

When Appeal is a Matter of Right; Effects

Ordinary appeal is a matter of right. This means that the appellate court should review the case, and this duty is compellable by mandamus. Appeals under Rules 42, 43, and 45 are NOT a matter of right. Review is discretionary and the appellate court may dismiss the petition outright if it finds that the questions raised are too unsubstantial to require consideration. (Riguera 2013)

Rule 42 refers to a mode of appeal from the RTC to the CA in cases where the RTC rendered a decision in the exercise of its APPELLATEJURISDICTION.

(All Sections are from Rule 42)

How Appeal Taken (Sec.1)

1.Filing a verified petition for review with the CA2.Payment of docket and other lawful fees3.Depositing 500.00 for costs4.Serving the RTC and the adverse party a copy.

When to appeal

Within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment.

Upon proper motion and 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 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 15 days.

RULE 41 RULE 42

File the notice of appeal with the RTC File the petition for review directly with the CA

If motion for reconsideration is denied, appeal is within the remaining balance of

the 15-day period.

If the motion for reconsideration is denied, the 15-day period starts all over again

(FRESH PERIOD RULE)

The 15-day period to file a notice of appeal is NON-EXTENDIBLE.

The 15-day period to file a petition for review is EXTENDIBLE.

Form and contents(Sec.2)Requirements:

1) Petition must be filed in seven (7) copies with the original copy intended for Court of Appeals

NOTE: This has been amended in view of A.M. No. 11-9-4-SC, Efficient Use of Paper Rule. In the Court of Appeals, only one original (properly marked) and two copies with their annexes.

2) Payment of docket and other lawful fees3) Deposit for costs4) Proof of service of the petition5) Contents of petition must specify:

a) Names of parties, without impleading the court or judgesb) material datesc) errors of fact and/or lawd) duplicate originals or certified true and correct copies of the judgment or final ordere) certification of non-forum shopping

Effect of failure to Comply with Requirements (Sec.3)

Failure to comply with the foregoing requirements shall be sufficient ground for the dismissal of the petition.

Perfection of Appeal by Petition for Review(Sec.8)

1.Upon its timely filing; and2.Payment of docket and other lawful fees;

The RTC loses its jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties.

Effect of Appeal

Rule: The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed.

Exception: When the Court of Appeals shall direct otherwise upon such terms as it may deem just.

Petition Given Due Course (Sec.9)

If petition is given due course, CA may set the case for oral argument or require parties to submit memoranda. The case shall be deemed submitted for a decision after the filing of the last pleading or memoranda.

Decisions of Special Agrarian Courts

Section 60 of the Comprehensive Agrarian Reform Law of 1998 provides that an appeal may be taken from a decision of the Special Agrarian Courts by filing a petition for review with the CA within 15 days from receipt of the notice of the decision. Otherwise, the decision shall become final. Hence, the proper mode of appeal is by a petition for review under Rule 42 and not through an ordinary appeal under Rule 41. (Riguera 2013, citing Land Bank vs. CA, G.R. No. 190660, 11 April 2011).

Appeal from judgments or final orders of the CA

Rule 45

Section 1.Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, 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 shall raise only questions of law which must be distinctly set forth.

Section 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.

Section 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.

Section 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.

Section 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.

Section 6.Review discretionary. — 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 thereof. 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.

Section 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.

Section 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.

Section 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.

QUESTION OF LAW v. QUESTION OF FACT

A question of law exists when there is a doubt or controversy as to what the law is on a certain state of facts, and there is a question of fact when the doubt or difference rises as to the truth or falsehood of facts.

Test to determine question of law or fact

One test is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case it is a question of law, otherwise, it will be a question of fact.

When does question of law exist?

A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts, or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted. A question of fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of specific surrounding circumstances as well as their relation to each other and to the whole, and the probability of the situation. (Eastern Shipping Lines, Inc. v. BPI/MS Insurance Corp., and Mitsui Sumitomo Insurance Co., Ltd., G.R. No. 193986, January 15, 2014.)

Conclusiveness of Facts

General Rule:

The findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC. Thus, only questions of law are entertained by SC under Rule 45.

Exceptions:

1.When the finding is grounded entirely on speculations, surmises or conjectures;2.When inference made is manifestly absurd, mistaken or impossible;3.When the judgment is premised on a misrepresentation of facts;4. When there is grave abuse of discretion in the appreciation of facts;5.When the findings of fact are conflicting;6.When the CA in making its findings went beyond the issues of the case and the same is

contrary to both the admissions of appellants and appellees;7.When the findings of fact of the CA are at variance with those of the trail court, the SC

has to review the evidence in order to arrive at the correct findings based on the record;8.When the findings of fact are conclusions without citation of specific evidence on

which they are based;9.When the facts set forth in the petition as well as in the petitioner’s main and reply

briefs are not disputed by the respondents;10.The findings of fact of the CA is premised on the supposed evidence and is

contradicted by the evidence on record;11.When certain material facts and circumstances have been overlooked by the trial

court which, if taken into account, would alter the result of the case in that they would entitle the accused to acquittal.

Appeal from judgments or final orders of the CTA

A party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari under Rule 45 of the 1997 Rules on Civil Procedure (sec.19, R.A. 1125, as amended by Sec. 12, R.A. 9282) (Primer-Reviewe on REMEDIAL LAW Manuel R. Riguera).

The CTA’s decision is no longer appealable to the CA. The appeal to the CTA shall be by petition for review under a procedure analogous to that provided for under Rules 42 and 43 of the Rules of Court. However, it is not governed by the technical rules of evidence. (RA 9282, March 30 2004).

Rule 16, A.M. No. 05-11-07-CTA, November 22, 2005

SECTION 1. Appeal to Supreme Court by petition for review on certiorari. – A party adversely affected by a decision or ruling of the Court en banc may appeal therefrom by filing with the Supreme Court a verified petition for review on certiorari within fifteen days from receipt of a copy of the decision or resolution, as provided in Rule 45 of the Rules of Court. If such party has filed a motion for reconsideration or for new trial, the period herein fixed shall run from the party’s receipt of a copy of the resolution denying the motion for reconsideration or for new trial.

SEC. 2. Effect of appeal. – The motion for reconsideration or for new trial filed before the Court shall be deemed abandoned if, during its pendency, the movant shall appeal to the supreme Court pursuant to Section 1 of this Rule.See also Rule 43 which is discussed under “o) Review of final judgments or final orders of quasi-judicial agencies”

l) Review of final judgments or final orders of the Comelec

Rule 64

Section 1.Scope. — This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit.

Section 2.Mode of review. — A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. (n; Bar Matter No. 803, 17 February 1998)

Section 3.Time to file petition. — The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial.

Section 4.Docket and other lawful fees. — Upon the filing of the petition, the petitioner shall pay to the clerk of court the docket and other lawful fees and deposit the amount of P500.00 for costs.

Section 5.Form and contents of petition. — The petition shall be verified and filed in eighteen (18) legible copies. The petition shall name the aggrieved party as petitioner and shall join as respondents the Commission concerned and the person or persons interested in sustaining the judgment, final order or resolution a quo. The petition shall state the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments relied upon for review, and pray for judgment annulling or modifying the questioned judgment, final

order or resolution. Findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable.

The petition shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of such material portions of the record as are referred to therein and other documents relevant and pertinent thereto. The requisite number of copies of the petition shall contain plain copies of all documents attached to the original copy of said petition.The petition shall state the specific material dates showing that it was filed within the period fixed herein, and shall contain a sworn certification against forum shopping as provided in the third paragraph of section 3, Rule 46.

The petition shall further be accompanied by proof of service of a copy thereof on the Commission concerned and on the adverse party, and of the timely payment of docket and other lawful fees.

The failure of petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition.

Section 6.Order to comment. — If the Supreme Court finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within ten (10) days from notice thereof; otherwise, the Court may dismiss the petition outright. The Court may also dismiss the petition if it was filed manifestly for delay or the questions raised are too unsubstantial to warrant further proceedings.

Section 7.Comments of respondents. — The comments of the respondents shall be filed in eighteen (18) legible copies. The original shall be accompanied by certified true copies of such material portions of the record as are referred to therein together with other supporting papers. The requisite number of copies of the comments shall contain plain copies of all documents attached to the original and a copy thereof shall be served on the petitioner.No other pleading may be filed by any party unless required or allowed by the Court.

Section 8.Effect of filing. — The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms as it may deem just. (n)

Section 9.Submission for decision. — Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be deemed submitted for decision upon the filing of the comments on the petition, or of such other pleadings or papers as may be required or allowed, or the expiration of the period to do so.

m) Review of final judgments or final orders of the Ombudsman

Administrative Disciplinary Cases Appealable to the CA via Petition for Review Under Rule 43

SEC. 7. Finality and execution of decision. — Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions

set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the motion for reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against such officer.(Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman)

Decision of the Ombudsman in administrative appealable to CA under Rule 43

Appeals from the decision of the Office of the Ombudsman in administrative disciplinary cases are no longer appealable to the SC but to the CA via a petition for review (Rule 43) (Fabian v. Desierto, GR. No. 129742, Sept. 16, 1998). However, the remedy of an aggrieved party from a decision or order of the Office of the Ombudsman in a criminal case is to file a petition for certiorari before the SC (Perez v. Ombudsman, GR. No. 131445, May 27, 2004).

The decision and final orders of the COA, and COMELEC are also reviewable by the Supreme Court.

Review of final judgments or final orders of the NLRC

The Commission shall decide all cases within twenty (20) calendar days from receipt of the answer of the appellee. The decision of the Commission shall be final and executory after ten (10) calendar days from receipt thereof by the parties. (Article 223, Labor Code)

Since it is final and executory, the only remedy is certiorari under Rule 65, which must be first lodged in the Court of Appeals before the Supreme Court according to the doctrine of judicial hierarchy. (St. Martin Funeral Home v. NLRC, G.R. No. 130886, September 16, 1998)

Review of final judgments or final orders of quasi-judicial agencies

Administrative Disciplinary Cases Appealable to the CA via Petition for Review Under Rule 43

Section 1.Scope. — This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Invention Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.

Section 2.Cases not covered. — This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines.

Section 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.

Section 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. (n)

Section 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.

Section 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 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.

Section 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.

Section 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.

Section 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. (9a)

Section 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 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.

Section 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. (8a)

Section 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.

Section 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.

3.16.3. Relief from judgments, orders and other proceedings

Relief from Judgments

A petition for relief is an equitable remedy and is allowed only in exceptional cases from final judgments or orders where no other remedy is available (Regalado, 10th Ed., citing Palmores vs. Jimenez, 90 Phil. 773). It will not be entertained if the proper remedy is appeal or certiorari (Ibid., citing Fajardo vs. Bayona, 98 Phil. 659).

Kinds of Relief from Judgments, Orders and other Proceedings

1. Relief from judgment, order or other proceedings (Rule 38, Sec.1)2. Relief from denial of appeal (Rule 38, Sec.2)

Grounds for availing of the remedy

Judgment or final order entered against a party through: (FAME)

1.Fraud (extrinsic fraud),

2.Accident,3.Mistake, or 4.Excusable negligence

and no other remedy is available.

Similar to a Motion for New Trial

Petition for Relief under Sec. 1 is similar to a motion for new trial on the ground of FAME, the difference being that the motion for new trial under Rule 37 is filed before the judgment becomes final, while a petition for relief in this section presupposes a final judgment or order (Riguera 2013)

Time to file petition

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 (Rule 38, Sec.3)

The 6-month period is computed from the date of entry of the order or judgment. However, as now amended, the date of the finality of the judgment or final order is deemed to be the date of its entry (Regalado, 10th Ed., citing Dirige vs. Biranya, L-22033, July 30, 1966).The two periods for the filing of a petition for relief are not extendible and never interrupted (Regalado, 10th Ed., citing Quijano vs. Tameta, L-16472, April 20, 1961). Thus, a petition for certiorari does not suspend the periods prescribed by this section (Ibid., citing Palomares vs. Jimenez, 90 Phil. 773), and neither does a motion for reconsideration of the order subject of the petition for relief (Ibid., citing Cruz vs. Oppen, L-23861, Feb. 17, 1968), especially if filed in the wrong court. These periods cannot be subject to a condition or a contingency as they are devised to meet a condition or a contingency (Ibid., citing Vda. de Salvatierra vs. Garlitos, 103 Phil. 157). Both periods must be complied with (Ibid., citing Philippine Rabbit Bus Lines vs. Arciaga, L-29701, Mar. 16, 1987).

Contents of petition

1. Petition must be verified; 2. 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. (Rule 38, Sec.3)

3.16.4. Annulment of judgments or final orders and resolutions

Nature

A petition for annulment of judgment is a remedy in equity so exceptional in nature that it may be availed of only when other remedies are wanting, and only if the judgment, final order or final resolution sought to be annulled was rendered by a court lacking jurisdiction or through extrinsic fraud. Yet, the remedy, being exceptional in character, is not allowed to be so easily and readily abused by parties aggrieved by the final judgments, orders or resolutions. (Dare Adventure Farm Corporation Vs. Spouses Felix and Nenita Ng, Spouses Martin and Azucena Ng and Agripina R. Goc-ong, et al. G.R. No. 161122. September 24, 2012)

Basis for the rule

The attitude of judicial reluctance towards the annulment of a judgment, final order or final resolution is understandable, for the remedy disregards the time-honored doctrine of immutability and unalterability of final judgments, a solid corner stone in the dispensation of justice by the courts. (Dare Adventure Farm Corporation Vs. Spouses Felix and Nenita Ng, Spouses Martin and Azucena Ng and Agripina R. Goc-ong, et al. G.R. No. 161122. September 24, 2012)

“The underlying reason is traceable to the notion that annulling final judgments goes against the grain of finality of judgment. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final, the issue or cause involved therein should be laid to rest.” (Leticia Diona, rep. by her attorney-in-fact, Marcelina Diona Vs. Romeo A. Balangue, Sonny A. Balangue, Reynaldo A. Balangue, and Esteban A. Balangue, Jr. G.R. No. 173559. January 7, 2013 )

Annulment of a Judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. x x x

A person who is not a party to the judgment may sue for its annulment provided he can prove that the same was obtained through fraud or collusion and that he would be adversely affected thereby. An action for annulment of judgment may be availed of even if the judgment to be annulled had already been fully executed or implemented. (Regalado, 10th Ed., citing Isalmic Da’Wah Council of the Phil. Vs. CA, G.R. No., 80892, Sept. 29, 1989).

Grounds for annulment

1) Grounds for Annulment of Judgment of RTC in Civil Cases (Rule 47, Sec.2)

a.Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial or petition for relief

Meaning of extrinsic fraud

Fraud is extrinsic, according to Cosmic Lumber Corporation v. Court of Appeals (265 SCRA 168, 180 [1996]), “where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority connives at his defeat; these and similar cases which show that there has

never been a real contest in the trial or hearing of the case are reasons for which a new suit may be sustained to set aside and annul the former judgment and open the case for a new and fair hearing.” (Pinausukan Seafood House-Roxas Blvd., Inc. v. Far East Bank and Trust Cp., now Bank of the Philippine Islands, et al., G.R. No. 159926, January 20, 2014)

2) Lack of jurisdiction.

Lack of Jurisdiction refers to either jurisdiction over the person of the defending party, or over the subject matter of the claim, since in either case the judgment or final order and resolution are void. (Regalado, 10th Ed.)

3) Third ground – Lack of due process

While under Section 2, Rule 47 of the Rules of Court a Petition for Annulment of Judgment may be based only on the grounds of extrinsic fraud and lack of jurisdiction, jurisprudence recognizes lack of due process as additional ground to annul a judgment. In Arcelona v. Court of Appeals, this Court declared that a final and executory judgment may still be set aside if, upon mere inspection thereof, its patent nullity can be shown for having been issued without jurisdiction or for lack of due process of law. (Leticia Diona, rep. by her attorney-in-fact, Marcelina Diona Vs. Romeo A. Balangue, Sonny A. Balangue, Reynaldo A. Balangue, and Esteban A. Balangue, Jr. G.R. No. 173559. January 7, 2013 )

IMPORTANT CONDITION

For the remedy under Rule 47 to be available, the petitioner must have failed, with sufficient justification, to either:

1. Move for new trial or reconsideration2. Appeal from the judgment or final order3. File a petition for relief against the judgment or final order, or;4. Take other appropriate remedies assailing the questioned judgment or final order

If he failed to avail of those remedies without sufficient justification, he cannot resort to the action for annulment provided in this Rule, otherwise he would benefit from his own inaction or negligence (Regalado, 10th Ed.)

Allegations and requirements in the pleading

The fourth requirement demands that the petition should be verified, and should allege 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 need for particularity cannot be dispensed with because averring the circumstances constituting either fraud or mistake with particularity is a universal requirement in the rules of pleading. The petition is to be filed in seven clearly legible copies, together with sufficient copies corresponding to the number of respondents, and shall contain essential submissions, specifically: (a) the certified true copy of the judgment or final order or resolution, to be attached to the original copy of the petition intended for the court and indicated as such by the petitioner; (b) the affidavits of witnesses or documents supporting the cause of action or defense; and (c) the sworn certification that the petitioner has not theretofore commenced any other action involving the same issues in the Supreme Court, the CA or the 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 CA, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the said courts and other tribunal or agency thereof within five days therefrom. (Pinausukan Seafood House-Roxas Blvd., Inc. v. Far East Bank and Trust Cp., now Bank of the Philippine Islands, et al., G.R. No. 159926, January 20, 2014.)

Period to file action

a. For extrinsic fraud – within four years from discovery; (Rule 47, Sec.3)

b. Lack of jurisdiction – same period for annulment of contracts on that ground, under Art. 1371, NCC (within 4 years from discovery of fraud), as well as the time when the period starts to run (Regalado, 10th Ed.); must be filed before action is barred by estoppels by lachesThe action, if based on extrinsic fraud, must be filed within four years from the discovery of the extrinsic fraud; and if based on lack of jurisdiction, must be brought before it is barred by laches or estoppel. (Pinausukan Seafood House-Roxas Blvd., Inc. v. Far East Bank and Trust Cp., now Bank of the Philippine Islands, et al., G.R. No. 159926, January 20, 2014)

c) Effects of judgment of annulment

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. (Rule 47, Sec.7) The judgment may include the award of damages, attorney’s fees and other relief. (Rule 47, Sec.9)

3.16.5. Collateral attack of judgments

A collateral or incidental attack is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when it is patent that the court which rendered such judgment had no jurisdiction.

3.17. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Execution under Rule 39 of the Revised Rules of Court is a remedy afforded by law for the enforcement of a judgment, its object being to obtain satisfaction of the judgment on which the writ is issued. It issues by order of the court a quo, on motion of the judgment obligee, upon finality of a judgment or order sought to be enforced, and is directed to an officer authorizing and requiring him to execute the judgment of the court. (CAGAYAN DE ORO VS CA,.R. No. 129713. December 15, 1999)

Execution is the fruit and end of the suit and is the life of law. A judgment that is left unexecuted is nothing but an empty victory for the prevailing party. (AYO VS VIOLAGO, A.M. No. RTJ-99-1445. June 21, 1999)

3.17.1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION

The concept of ‘final’ judgment, as distinguished from one which has ‘become final’ (or ‘executory’ as of right [final and executory]), is definite and settled. A ‘final’ judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties’ next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal), this is what is referred to as the final judgment for purposes of appeal.

Ultimately, of course, to cause the execution of the judgment once it becomes ‘final’ or, to use the established and more distinctive term, ‘final and executory. ’ (HEIRS OF RETERTA VS MORES & LOPEZ, G.R. No. 159941, August 17, 2011)

Judgment in latter sense is more precisely referred to as “final and executory” in order to avoid confusion with final judgment in the first sense (Riguera 2013)

3.17.2. WHEN EXECUTION SHALL ISSUE

Execution as a matter of right (section 1, Rule 39)

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.

When can a judgment be executed?

Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the issuance of a Writ of Execution becomes a ministerial duty of the court. It is axiomatic that once a decision attains finality, it becomes the law of the case regardless of any claim that it is erroneous. Having been rendered by a court of competent jurisdiction acting within its authority, the judgment may no longer be altered even at the risk of occasional legal infirmities or errors it may contain. (BUAYA VS STRONGHOLD INSURANCE, G.R. No. 139020. October 11, 2000)

A judgment becomes “final and executory” by operation of law. Its finality becomes a fact when the reglamentary period to appeal lapses, and no appeal is perfected within such period. The admiralty case filed by private respondent with the trial court involved multiple defendants. This being the case, it necessarily follows that the period of appeal of the February

18, 1991 RTC Decision depended on the date a copy of the judgment was received by each of the defendants. Elsewise stated, each defendant had a different period within which to appeal, depending on the date of receipt of the Decision. (VLASON VS CA, G.R. NOS. 121662-64. JULY 6, 1999)

Under Supreme Court Circular No. 24-94, a Motion for the Issuance of a Writ of Execution must contain a notice to the adverse party --

“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, such execution may forthwith be applied for in the lower court from which the action originated, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or the final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party.

The appellatte 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.” (italics supplied) (PALLADA VS RTC OF KALIBO, G.R. No. 129442. March 10, 1999)

General Rule

Where the judgment or order has become executory, the court cannot refuse to issue a writ of execution.

Exceptions

a) When the subsequent facts and circumstances transpire which render such execution unjust or impossible;

b) On equitable grounds, as when there has been a change in the situation of the parties which makes the execution inequitable (Albar v. Carandang, L-18003, 29 Sept. 1962);

c) Where the judgment has been novated by the parties (Dormitorio v. Fernandez, et al., L-25889, 21 Aug. 1976);

d) When a petition for relief or an action to enjoin the judgment is filed and a preliminary injunction is prayed for and granted (see Sec. 5, Rule 38);

e) When the judgment has become dormant, the 5-year period under Sec. 6 of this Rule having expired without the judgment having been revived (Cunanan v. CA, et al., L-25511, 28 Sept. 1968); or

f) Where the judgment turns out to be incomplete (Del Rosario v. Villegas, 49 Phil. 634) or is conditional (Cu Unjieng, etc. v. Mabalacat Sugar Co., 70 Phil. 380) since, as a matter of law, such judgment cannot become final (Regalado).

MANDAMUS is the proper remedy when a motion for execution (as a matter of right) is denied. However, if the appellate court reversed the decision of the lower and the latter denies the motion for execution for the same, the judgment obligee may file with the appellate court a motion to direct the lower court to issue the writ of execution. Mandamus is not proper since there is a plain, adequate, and speedy remedy under Sec. 1 Rule 39 (Riguera 2013, citing Jose Feria, 1997 Rules of Civil Procedure 115 [1997]).

b) Discretionary execution

Section 2, Rule 39 of the Rules of Court provides:

SEC. 2. Discretionary execution. –

(a) Execution of a judgment or a final order pending appeal. – On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, 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.

Requisites:

1. There must be a motion filed by the prevailing party with a notice to the adverse party;

2. There must be a hearing of the motion for discretionary execution;3. There must be good reasons to justify the discretionary execution; and4. The good reasons must be stated in a special order. (Civil Procedure, Bar Lecture

Series by Willard Riano, 2011 Ed. Page 661)

Primary basis of execution pending appeal:

A primary consideration for allowing execution pending appeal would be the existence of good reasons. In turn, "good reasons" has been held to consist of compelling circumstances justifying the immediate execution lest judgment becomes illusory. Such reasons must constitute superior circumstances demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment.

In upholding the disallowance of the execution pending appeal ordered by the trial court, albeit on different grounds, we are guided by the rule that execution pending appeal must be strictly construed being an exception to the general rule. So, too, execution pending appeal is not to be availed of and applied routinely, but only in extraordinary circumstances. Here, with the alleged collapse of petitioner's business operations rendered doubtful, we find no good reason to order execution pending appeal. (CORONA INTERNATIONAL VS CA, G.R. No. 127851. October 18, 2000)

As provided in Section 2, Rule 39 of the Rules., the existence of good reasons is what confers discretionary power on a Court . . . to issue a writ of execution pending appeal. The reasons allowing execution must constitute superior circumstances demanding urgency which

will outweigh the injury or damages should be losing party secure a reversal of the judgment." (JACA V. LUMBER CO., G.R. NO. L-25771, MARCH 29, 1982; 113 SCRA 107, 121)

Whatever doubts may have been generated by early decisions have been clarified in Roxas vs. Court of Appeals, thus:

It is not intended obviously that execution pending appeal shall issue as a matter of course. "Good reasons," special, important, pressing reasons must exist to justify it; otherwise, instead of an instrument of solicitude and justice, it may well become a tool of oppression and inequity. But to consider the mere posting of a bond a "good reason" would precisely make immediate execution of a judgment pending appeal routinary, the rule rather than the exception. Judgments would be executed immediately, as a matter of course, once rendered, if all that the prevailing party needed to do was to post a bond to answer for damages that might result therefrom. This is a situation, to repeat, neither contemplated nor intended by law. (EUDELA VS CA, G.R. No. 89265 July 17, 1992)

3.17.3. HOW A JUDGMENT IS EXECUTED

Execution by motion or by independent action (Section 6, Rule 39)

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.

Execution by motion

The prevailing party shall ask the court to issue a writ of execution by simply filing a motion in the same case within 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.

Execution by independent action

The prevailing party should file an action for revival of judgment after 5 years but within 10 years from the date of its entry. (Art. 1144[3], Civil Code) When the judgment has been revived, the prevailing party can then enforce it by motion within 5 years from the date of entry of the revived judgment.

Dormant judgment – one that is not enforced within 5 years.

Remedy: File another civil action for the revival of judgment (Execution by independent Action) which must be filed before it is barred by the Statute of limitations.

Venue in case of revival of judgment

Qualify whether the action for revival of judgment is a real or personal action.

If the action affects title to or possession of real property or any interest therein, the action for revival must be filed with the court having jurisdiction over the place where the real property or any portion thereof is situated. Otherwise, the action for revival of judgment is a personal action wherein the venue lies with the residence of either the plaintiff or defendant, at the option of the plaintiff (INFANTE VS. ARAN BUILDERS, INC., G.R. NO.156596, 24 AUGUST 2007).

Five and ten year period not applicable in special proceedings: imprescriptible:

The five- and ten-year periods do not apply to special proceedings, such as land registration and cadastral cases where the right to apply for a writ of possession is imprescriptible (Rodil vs. Benedicto, 95 SCRA 137 [1980]). This is so because a party in a civil action must promptly enforce a judgment that is secured against the adverse party, and his failure to act to enforce the same makes it unenforceable. In special proceedings, the purpose is to establish a status, right or a particular fact; in land registration proceedings, the ownership by a person of a parcel of land is sought to be established (TING VS. HEIRS OF LIRIO, G.R. NO. 168913, 14 MARCH 2007).

Issuance and contents of a writ of execution (Section 8, Rule 39)

Issuance, form, contents of a writ of execution

a. Shall issue in the name of the Republic of the Philippines from court which granted the motion;

b. State the name of the court, case number and title, and the dispositive portion of the judgment order;

c. Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms.

Manner of executing writ:

a. If judgment is against property of the judgment obligor – Out of real or personal property with interest.

b. If against his real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor – Out of that property, with interest.

c. If for sale of real or personal property – To sell property, describing it and apply the proceeds in conformity with judgment.

d. If for delivery of possession of property – Deliver possession of the same to the party entitled to it, describing it, 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 out of real property if sufficient personal property cannot be found.

e. In all cases – writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of date of issuance of writ, aside from principal obligation.

Execution of judgments for money

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 possession 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 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 satisfaction of the judgment. 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 personal 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 possession 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.

Based on the foregoing, the sheriff is required to first demand of the judgment obligor the immediate payment of the full amount stated in the writ of execution before a levy can be made. The sheriff shall demand such payment either in cash, certified bank check or any other mode of payment acceptable to the judgment obligee. If the judgment obligor cannot pay by these methods immediately or at once, he can exercise his option to choose which of his properties can be levied upon. If he does not exercise this option immediately or when he is absent or cannot be located, he waives such right, and the sheriff can now first levy his personal properties, if any, and then the real properties if the personal properties are insufficient to answer for the judgment. (VILLARIN VS MUNASQUE, G.R. No. 169444, September 17, 2008)

Only property of the debtor can be the subject of execution:

The power of the court in executing judgments extends only to properties unquestionably belonging to the judgment debtor alone. An execution can be issued only against a party and not against one who did not have his day in court. The duty of the sheriff is to levy the property of the judgment debtor not that of a third person. For, as the saying goes, one man's goods shall not be sold for another man's debts.

A sheriff is not authorized to attach or levy on property not belonging to the judgment debtor. The sheriff may be liable for enforcing execution on property belonging to a third party. If he does so, the writ of execution affords him no justification, for the action is not in obedience to the mandate of the writ.

The levy upon the properties of the judgment obligor may be had by the executing sheriff only if the judgment obligor cannot pay all or part of the full amount stated in the writ of execution. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check, or other mode acceptable to the judgment obligee, the judgment obligor is given the option to immediately choose which of his property or part thereof, not otherwise exempt from execution, may be levied upon sufficient to satisfy the judgment. If the judgment obligor does not exercise the option immediately, or when he is absent or cannot be located, he waives such right, and the sheriff can now first levy his personal properties, if any, and then the real properties if the personal properties are insufficient to answer for the judgment. Therefore, the sheriff cannot and should not be the one to determine which property to levy if the

judgment obligor cannot immediately pay because it is the judgment obligor who is given the option to choose which property or part thereof may be levied upon to satisfy the judgment. (LEACHON VS PASCUA, A.M. No. P-11-2972, SEPTEMBER 28, 2011)

Execution of judgments for specific acts (Section 10, Rule 39)

Scope:

a.Conveyance, delivery of deeds;b.Sale of personal or real property;c.Delivery or Restitution of real property;d.Removal of improvements on property subject of execution;e.Delivery of personal property.

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. (Section 10 (A), Rule 39)

How can ajudgment for specific acts be made?

Judgment for Specific acts pertains to a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any specific act which may be performed by some other person, or in some other way provided by law with the same effect, as in the present case, section 10, and not said section 9 of Rule 39 applies; and under the provision of said section 10, the court may direct the act to be done at the cost of the disobedient party, by some other person appointed or designated by the court, and the act when so done shall have like effect as if done by the party himself. (CALUAG VS PECSON, October 29, 1948, G.R. No. L-1403)

Removal of an Improvement (Sec. 10 [d])

Requisites before demolition order is issued:

a) Motion;b) Notice to the adverse party;c) Hearing;d) Special order;e) Reasonable time to remove improvements

Execution of special judgments

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.

What is a special judgment?

Special Judgment refers to a specific act which the party or person must personally do, because his personal qualification and circumstances have been taken into consideration in accordance with the provision of article 1161 of the Civil Code. (CALUAG VS PECSON, October 29, 1948, G.R. No. L-1403)

Effect of levy on third persons

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.

3.17.4. PROPERTIES EXEMPT FROM EXECUTION

(1) There are certain properties exempt from execution enumerated under Sec. 13, Rule 39:

(a) The judgment obligor‘s family home as provided by law, or the homestead in which heresides, and the 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 thejudgment 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 bythe judgment obligor and his family, such as the judgment obligor may select, of a value notexceeding 100,000 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 exceeding300,000 pesos;

(h) One fishing boat and accessories not exceeding the total value of 100,000 pesos owned by afisherman and by the lawful use of which he earns his livelihood;

(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal serviceswith 4 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 lifeinsurance;(l) The right to receive legal support, or money or property obtained as such support, or

anypension or gratuity from the government; and(m) Properties specially exempted by law (Sec. 13, Rule 39) .

(2) If the property mentioned in Sec. 13 is the subject of execution because of a judgment for the recovery of the price or upon judgment of foreclosure of a mortgage upon the property, the property is not exempt from execution.

It is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set and proved to the sheriff. Failure to do so would estop the party from later claiming the exemption (SPOUSES VERSOLA VS. CA, G.R. NO. 164740,31 JULY 2006).

3.17.5. PROCEEDINGS WHERE PROPERTY IS CLAIMED BY THIRD PERSONS

(1)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.

(2) Requisites for a claim by a third person:

(a) The property is levied;(b) The claimant is a person other than the judgment obligor or his agent; (Remedial

Law Reviewer by Elmer Brabante)

In relation to third-party claim in attachment and replevin

Certain remedies available to a third person not party to the action but whose property is the subject of execution:

(a) Terceria - By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond

approved by the court. the sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed.

(b) Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (CHING VS. CA, G.R. NO. 124642, FEBRUARY 23, 2004) .

(c) Intervention – This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19).

(d) Accion Reinvindicatoria - The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case.

Distinction between third party complaint and third party claim

Third party compliant under Rule 6 is a pleading filed by a defendant against the 3rd

person not a party to the action for contribution, indemnity, subrogation or any other relief in respect of the plaintiff’s complaint.

Third party claim under rule 39 pertains to an affidavit made by a third person who claims to be entitled to the property in custody of a sheriff by virtue of a writ of execution.

3.17.6. RULES ON REDEMPTION

Who may Redeem Real Property Sold (Sec. 27)

a) Judgment obligor or his successor in interest in the whole or any part of the property;

b) Redemptioner or Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold subsequent to the lien under which the property was sold.

Procedure: (Section 28)

1) The judgment obligor, whether exercising a first or subsequent registration, has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his purchase, with 1% per month interest plus any assessments or taxes which he may have paid thereon after purchase with interest on said amount at 1% per month. Once he redeems, there shall be no further redemption. In no case may the judgment obligor redeem beyond the one-year period.

2) The redemptioner exercising first redemption has the same one-year period within which to redeem.

3) The redemptioner exercising a subsequent registration has a period of 60 days after the last redemption within which to redeem. The redemptioner may redeem even beyond the one-year period provided it is within 60 days after the last redemption.

Effect of Redemption

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. 29).

Proof Required of Redemptioner (Sec. 30)

1. Copy of the judgment or final order under which he claims the right to redeem.2. If he redeems upon a mortgage or other lien, a memorandum of record3. Original or certified true copy of any assignment4. Affidavit executed by him or his agent.

Rents, Earnings and Income of Property Pending Redemption (Sec. 32)

Purchaser or redemptioner shall not be entitled to receive rents and income of property sold inasmuch as these belong to the judgment obligor until the expiration of the period of redemption.

Deed and possession to be given at expiration of redemption period; by whom executed or given (Sec.33)

Two document which the sheriff executes in case of Real Property:

1.Certificate of Sale executed after auction sale (Sec.25).2. Deed of conveyance executed after 1 year if there is no redemption (Sec. 33).

Recovery of price if sale not effective; revival of judgment (Sec. 34)

1.Recover the money from obligee2. Have the judgment revived.

Remedies in Aid of Execution:1. Examination of judgment obligor when judgment unsatisfied (Sec. 36).2. Examination of obligor of judgment obligor (Sec. 37).3. Enforcement of attendance and conduct of examination (Sec.38).4.Order of application of property and income to satisfaction of judgment (Sec. 40).5.Appointment of receiver (Sec. 41).6.Sale of ascertainable interest of judgment obligor in real estate (Sec. 42).

7.Proceedings when indebtedness denied or another person claims the property (Sec. 43). (FEU Remedial Bar Reviewer 2014, page 105)

3.17.7. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS UNSATISFIED

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.

3.17.8. EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR

Sec. 37. Examination of obligor of judgment obligor.

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.

3.17.9. EFFECT OF JUDGMENT OR FINAL ORDERS

Section 47 of Rule 39 provides:

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 is res judicata?

Res judicata means "a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment." It lays the rule that an existing final judgment or decree rendered on the merits, without fraud or collusion, by a court of competent jurisdiction, upon any matter within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction on the points and matters in issue in the first suit.(Selga vs SONY, G.R. No. 175151, September 21, 2011)

Two aspects of res judicata

Res judicata embraces two concepts: (1) bar by prior judgment as enunciated in Rule 39, Section 47(b) of the Rules of Civil Procedure; and (2) conclusiveness of judgment in Rule 39, Section 47(c).

There is “bar by prior judgment” when, as between the first case where the judgment was rendered and the second case that is sought to be barred, there is identity of parties, subject matter, and causes of action. In this instance, the judgment in the first case constitutes an absolute bar to the second action.

But where there is identity of parties in the first and second cases, but no identity of causes of action, the first judgment is conclusive only as to those matters actually and directly controverted and determined and not as to matters merely involved therein.This is the concept of res judicata known as“conclusiveness of judgment.” Stated differently, any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which judgment is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies, whether or not the claim, demand, purpose, or subject matter of the two actions is the same.

Thus, if a particular point or question is in issue in the second action, and the judgment will depend on the determination of that particular point or question, a former judgment between the same parties or their privies will be final and conclusive in the second if that same point or question was in issue and adjudicated in the first suit. Identity of cause of action is not required but merely identity of issue.

The elements of res judicata are: (1) the judgment sought to bar the new action must be final; (2) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) the disposition of the case must be a judgment on the merits; and (4) there must be as between the first and second action, identity of parties, subject matter, and causes of action. Should identity of parties, subject matter, and causes of action be shown in the two cases, then res judicata in its aspect as a “bar by prior judgment” would apply. If

as between the two cases, only identity of parties can be shown, but not identical causes of action, then res judicata as “conclusiveness of judgment” applies. (SOCIAL SECURITY COMMISSION VS RIZAL POULTRY, G.R. No. 167050, June 1, 2011)

Res judicata by conclusiveness of judgment.

The doctrine of res judicata by conclusiveness of judgment postulates that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or when an opportunity for such trial has been given, the judgment of the court, as long as it remains unreversed, should be conclusive upon the parties and those in privity with them.

All the elements of the doctrine are present in this case. The final judgment in G.R. No. 167998 was rendered by the Court pursuant to its jurisdiction over the review of decisions and rulings of the CA. It was a judgment on the merits of Planters Bank’s right to apply for and be issued a writ of possession. Lastly, the parties in G.R. No. 167998 are the same parties involved in the present case. (LZK Holdings and Development Corporation v. Planters Development Bank, G.R. No. 187973, January 20, 2014)

3.17.10. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS

Section 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.

Generally, in the absence of a special contract, no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country; however, under the rules of comity, utility and convenience, nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries. Certainly, the Philippine legal system has long ago accepted into its jurisprudence and procedural rules the viability of an action for enforcement of foreign judgment, as well as the requisites for such valid enforcement, as derived from internationally accepted doctrines.

Under Rule 39, Section 48, a foreign judgment or order against a person is merely presumptive evidence of a right as between the parties. It may be repelled, among others, by want of jurisdiction of the issuing authority or by want of notice to the party against whom it is enforced. The party attacking a foreign judgment has the burden of overcoming the presumption of its validity.(ST. AVIATION SERVICES VS GRAND INTERNATIONAL AIRWAYS, G.R. NO. 140288, OCTOBER 23, 2006)