Rem+Review+lecture+and+recit+notes Tranquil Salvador

8/9/2019 Rem+Review+lecture+and+recit+notes Tranquil Salvador

1/61


2/61

2

• Expropriation is always filed with the RTC.

Though the subject matter is capable of

pecuniary estimation, the action is

exclusively instituted in the RTC.

What about declaratory relief?• RTC always has jurisdiction, and the SC

does not except when there is an issue of

constitutionality.

• There is no such thing as determination of

value; just a determination of validity.

What about support?

• Even if its amount can be determined, the

law confers it to the Family Courts.

Foreclosure of mortgage?

•

Two views: one says that it’s always with theRTC, because it only covers the security of

the property. The original action is always for

recovery of money.

• The other view is that it must be governed by

thevalueof the security.

o 3. Family cases/marriage

Includes support, annulment, nullity, etc.

o 4. Juvenile/agrarian case

o 5. Other claims, where claim exceeds 300K (OMM) or 400K

(MM) The original text gives lower values. When was it

adjusted?

• Original costs took effect March 25, 1994

• 1999 – adjusted OMM from 100K to 200K

• 2004 – adjusted both MM and OMM to 400K

and 300K respectively

Always take note of the word “exceeding” so the exact

amount is for the lower court.

o 6. Probate of will, determination of inheritance – same amounts

Considering that the MTC has jurisdiction over

probate cases, at times, what if the value of the

estate is 100K? Can the probate of a will be

subject to summary procedure?• No. The rules on summary procedure

explicitly exclude probate proceedings.

Note that the MTC has a number of procedures.

There are ordinary proceedings and summary

proceedings, and now, small claims.

• So the “not exceeding 100K (OMM) and not

exceeding 200K (MM)” only applies for

summary proceedings. But it explicitly

excluded probate proceedings.

What is the jurisdiction of the MTC over small

claims?

• Not exceeding 100K.

o 7. Admiralty cases – same amounts

• In determining the 300K/400K, can you include damages, interest,

attorney’s fees, litigation costs, etc?

o NO. Only limit the amount to the demand or the claim.

o But remember that there can be a principal action for damages,

in which the amount of damages claimed determines the

amount. This is not covered by RA 7691, this is covered by

95-9-94.• Small claims

o What is the amount?

Not exceeding 100K.

o Is there a distinction between OMM and MM in small

claims?

No.

o What should be included in the 100K?

The claim itself.


3/61

3

Exclusive of damages

What if the principal action is for damages?

• Does not apply. Actions for damages are not

covered by small claims actions, because

these have to be ascertained. These are notakin to sum-of-money cases.

o Does it cover quasi-delicts?

Yes. (Covers: fault/negligence, quasi-contract, or

contract)

o What if it arises from commission of an offense?

Yes – for the civil aspect of such (fault/negligence).

Just remember that when you file a criminal case, the

civil aspect is likewise filed (unless reserved, waived,

or filed ahead). So it cannot be the subject of small

claims.o Do you need a lawyer to file the complaint? Do you need

to prepare a regular complaint.

No need for a lawyer. There is also a standard form

provided.

o How will you address the problem where the claim is for

sum of money not exceeding 100K, and it is outside MM?

There is an overlap here between summary procedure and

small claims procedure. Which is preferred?

This is still open for discussion, and is not yet clear.

Sir suggests that the option is upon the complainant,since there is concurrent jurisdiction of both small

claims court or court of summary procedure.

• What is the MTC jurisdiction?

o Just the opposite of everything in RTC

o Then just add ejectment/unlawful detainer

• What is the jurisdiction of the CA?

o It has both original and appellate jurisdiction.

o Original: habeas corpus, habeas data, certiorari, prohibition,

mandamus, quo warranto, writ of amparo, annulment of

judgment

o Appellate: ordinary appeal (notice of appeal), petition for

review, over quasi-judicial bodies• What is the jurisdiction of the SC?

o Also both original and appellate jurisdiction.

o Original: habeas corpus, habeas data, certiorari, prohibition,

mandamus, quo warranto, writ of amparo, disciplinary actions

over PLUS –

Actions against members of the Bar [concurrent with

IBP];

actions against ambassadors, public ministers,

consuls, etc.;

constitutionality of treaties, laws, proclamations, etc.; declaratory relief only when there is a question of

constitutionality

o Appellate:

decision of CA, decision of CTAen banc, decision of

SB, decision of RTC on pure questions of law;

REMEMBER this motherhood statement: the only

way to go up to the SC is for petition for review on

certiorari (RULE 45). This applies to civil and criminal

cases, except if the penalty in a criminal case is

death, RP, of life imprisonment.• Jurisdiction over the person of the defendant:

o 1. Voluntary appearance

By submitting to the jurisdiction of the court; ex.

Appearing in court or filing an answer or filing motion

for extension of time without disputing the court’s

jurisdiction

o 2. Proper service of summons

Rule 14


4/61

4

• Filing fees:

o Rule #1: payment of filing fees is jurisdictional in civil cases

o Rule #2:how does the court determine filing fees?

You include interest, damages, attorney’s fees etc. –

pay everything that you allege for court fees

But for jurisdictional purposes, just the principal claim

o Rule #3:

Sun Insurance

Filing fees must be paid within prescriptive period or

reglementary period (for appeals orcompulsory

counterclaims), or else it is deemed prescribed

o Rule #4:

Alday v. FGU Insurance

Permissive counterclaims require docket fees

• The claim does not arise from the principal

action, but involves the same parties. This

could easily have been filed separately.

Compulsory counterclaims do not require docket fees

BUT readKorean Technologies case of 2009 – this

ishow you answer the question whether compulsory

counterclaims require filing fees

• From nowhere, this case required that even

compulsory counterclaims have docket fees

paid. Korean Technologies cited Rule 141.

• But in practice, based on an SC Resolution,

the collection of filing fees on compulsory

counterclaims issuspended. This has not

been lifted yet.

• Alday:Payment of filing fees for compulsory

counterclaims is not required. But you have

to take note ofKorean Technologies now

o Lien on the judgment?

If there are damages granted to the complainant, but

there has been lack of payment of filing fees. The

payment of docket fees is a lien on the damages.

What if the claim has already ripened upon the

filing of the complaint, but by omission, but youwere not able to allege it. Can this be a basis for a

lien on the judgment?

• Proton Pilipinas v. Banque Nacional

• There was a claim that has ripened but was

not included, and there were interests that

would ripen once the action is pending.

• SC said that a claim ripened during the

pendency of the case, it can be a lien on the

judgment.

• But if you did not allege it, the court cannot

grant an award because you did not pay

docket fees.

o What is the rule on deficient or insufficient payment of

filing fees?

Rivera v. Del Rosario

You have to pay full filing fees. The deficiency must

not be based on the fault of complainant. But if the

fault lay on the wrong assessment of the clerk of

court, there is a chance to pay the deficiency.

Jurisdiction is not automatically lost. Clerk of court

makes a deficiency assessment.

There must be no intention to defraud.

• Thornton:

o Husband filed forhabeas corpusin RTC Makati to recover child

from wife

o What are the two kinds of habeas corpus?


5/61

5

N.B.: there are two kinds of habeas corpus – custody

of minors and regular habeas corpus in the Rules of

Court

o RTC Makati dismissed the case because the child was

allegedly in Basilan.o What is the effectivity of writs of habeas corpus?

N.B.: Effectivity of writ issued by regular court only

enforceable in the territorial jurisdiction. But CA and

SC – everywhere.

o Filed with the CA, but was denied because the RTC (Family

Courts) have original jurisdiction over custody of minor Habeas

Corpus cases.

o HELD: Can file with CA. It has jurisdiction. SC has

jurisdiction, too. The CA and SC have concurrent jurisdiction

over habeas corpus cases.o Butalways remember that when you talk about concurrent

jurisdiction, you still have to follow hierarchy of courts.

• Herrera v. Bollas

o Ejectment case (1 year period). Filed within the proper period,

but the complaint was amended to add additional defendants

beyond the 1 year period. Does the court still have

jurisdiction?

o After the lapse of the year period for ejectment, has the

claim prescribed?

No.N.B. One year period is not prescriptive period.

You just fileaction pubiciana with the appropriate

court (RTC or MTC, depending on the assessed

value), not the MTC by default (for ejectment).

o HELD: MTC still had jurisdiction for ejectment (based on

original complaint.)

• Oca:

o Repetition ofTijam v. Sibonghanoy – estoppel by laches. After

active participation in a case, you cannot question the court’s

jurisdiction anymore.

o Went up to the SC through Rule 43 (appeal to CA from a QJA)

•

Usually decisions of QJA go up to the CA under Rule 43. What arethe exceptions?

o 1. HLURB decisions, as provided in charter, appealable to the

Office of the President

o 2. CTA decisions, under amended rules, appealable to the CTA

en banc, then SC

o 3. NLRC decisions, although by a QJA, are reviewable by the

CA although not under Rule 43, but Rule 65 (GADALEJ).

o 4. OMB decisions – go to the CA, under Rule 43, for

administrative cases. But if there is GADALAEJ, go to the SC,

under Rule 65.• Mijares:

o Which court has jurisdiction over enforcement of foreign

judgments?

RTC, because enforcement of foreign judgments are

incapable of pecuniary estimation.

ALWAYS, regardless of amount of judgment, since it

is not based on the amount of the claim.

In this type of action, you don’t need to prove the facts

again, etc.

o Marcos’s group that docket fees must be based on thevalue/amount of the claim, which is up to the Billions. Is

this correct?

This rule applies to money claims against an estate,

but without judgment yet. Here, there already was a

judgment in DC of Hawaii.

o How do you impugn a judgment?

Lack of notice

Lack of jurisdiction


6/61

6

Collusion

Fraud

o What is the rule on Arbitral awards?

These must be should be enforced or recognized

An arbitral award is not a foreign judgment (Under

ADR Rules)

• Zamboanga Barter Goods:

o N.B. Rule 65 is not an appeal. It is a special civil action.

o Being one, RTC, CA, and SC have concurrent jurisdiction.

When you discuss concurrent jurisdiction, you cannot avoid

discussing hierarchy.

o But when you talk about appeals, no need to consider

hierarchy. The law already makes a decision for you.

Actions

• What are the kinds of actions?

o Civil

Protection or enforcement of a right, or prevention or

redress of a wrong

Two types?

• Ordinary

• Special

o Criminal

Once the information is in court,only then does it

become a criminal action, that has already beenprosecuted by the State through the prosecutor.

o Special proceedings

Establishes a right, status, or condition

• Are civil actions always based on a cause of action?

o No.

• Distinguish ordinary civil action from special civil action?

o There is Cause of Action in ordinary civil action.

o Ex. Special Civil Action – like declaratory relief does not need

cause of action

• Requisites of cause of action?

o 1. Right of one party

o 2. Obligation of the other to respect

o 3. Breach – MOST IMPT!

• Is splitting cause of action a ground for MTD?

o No it is Res Judicata and Litis Pendentia

• Can there be joinder of cause of action?

o Yes.

o BUT it is not mandatory.

• Does there have to be just one breach or numerous violations?

o Numerous.

o For every cause of action, there is one breach.

o For as many breaches as there are, there are as many causes

of action.• If there is a claim for sum of money, and several claims for

damages (moral, exemplary, etc.) – are there multiple causes of

action?

o No. Just one, because claims for damages are incidents of the

one breach (failure to pay).

• There are three promissory notes, with amounts of 50K, 100K, and

200K, and there is just one loan. There was failure to pay. How

many causes of action do you have?

o Three PNs, three causes of action.

• Can there be joinder of alternative causes of action?o Yes. Example is shipping of goods. First cause of action is

based on breach of shipping contract. In case it is void, the

alternative is to sue based on quasi-delict.

• If you join cause of action should it arise from the same series of

transactions, or can it be totally unrelated?

o Scenario 1: X versus Y (just two parties). Can join as many

causes of action, even if totally unrelated.


7/61

7

o Scenario 2: X versus ABCD (multiple defendants). Can only

join the causes of action if it complies with the rule on

PERMISSIVE JOINDER (series of actions arising from the

same facts or law – Rule 3 Section 5)

•Can you join ordinary civil actions with special civil actions?

o No.

• Can you join two special civil actions?

o No. Because they have their own special rules.

• Can you join recovery of sum of money and ejectment?

o No. Ejectment is summary proceeding, so it has its own rules.

• What is the totality rule?

o When all of the claims are claims for sums of money, even if

one claim falls under the jurisdiction of the MTC but the rest

may fall under the RTC, what controls is the sum of all claims.

o But you cannot do this when not all are for sums of money.

• There is a sum of money claim and recovery of property in Cavite.

Can you join the action in Cavite?

o Note: sum of money is determined by amount (personal).

Recovery of property is determined by location of the property

(real).

o N.B. as well that venue is not jurisdictional in civil cases, unlike

criminal cases. Note as well that venue is waivable.

o Answer:Theoretically, you can join. But the other party is

expected to file a motion to dismiss on the ground of improper

venue. FOLLOW THE GENERAL RULE: The higher court

absorbs the claim (RTC > MTC).

• What is the rule on jurisdiction over counterclaims?

o In the RTC, there is no limit to the counterclaim. In the MTC,

the counterclaim is limited to the jurisdiction of the inferior

court.

o What happens to the balance?

It’s lost. So it’s better to file a separate action in this

scenario.

• Is misjoinder of cause of action a ground for its dismissal?

o No, it will NOT cause dismissal of the principal action.

It is severed and these proceed with separately.

Although there can only be separate proceeding when

there is separate filing.o The court is not duty-bound to proceed with it, especially when

it appears that it has no jurisdiction.

• What is a special civil action?

o Covered by special rules.

Parties

• Who can be parties to an action?

o Natural persons

o Juridical persons

o Those authorized by law• What is the general rule?

o All those with capacity can be a party.

o For natural persons, that is the age of majority.

• Can a six year old boy be a party?

o Yes, but with assistance of parent, guardian, or guardian-ad-

litem.

o A minor can sue, a minor can be sued if assisted.

• What is the rule on married parties?

o Sue and sued jointly.

o What are the exceptions?

Judicial separation of property

Abandonment

Exclusive property of spouses

Involving practice of profession

• What if the natural person is incapacitated?

o Can sue and be sued, but must be assisted.

o What if the person becomes incapacitated (supervening

incapacity), will the case be dismissed?


8/61

8

No. Sec. 18 provides that the court will provide

assistance.

• When can we say that a juridical person has capacity?

o Duly incorporated and registered with the SEC.

• [Mild segue into summons]If the defendant is a natural person, how

do you serve summons?

o Priority is personal service. It must be served to the persons,

wherever he may be found. (Ex. The “James Yap” rule – they

tried serving it to him in Araneta)

o If he cannot be found,substituted serviceto a a) person of

sufficient age and discretion and b) residing therein. Either

residence or office.

What is “sufficient age and discretion”? Recent

ruling says age of majority.

Should not be a transient. Must reside therein.

• Can a foreign corporation sue and be sued?

o If it’s an isolated transaction, a foreign corporation can sue and

be sued.

o If it’s doing business but not licensed, it CANNOT sue, but can

be sued.

o If it’s doing business and is licensed, it can sue and be sued.

• Service of summons to a domestic corporation?

o Rule 14, Sec 11

• How do you serve summons to a foreign corporation?

o Resident agent – one named to receive summons

o Representatives and officers found in the Philippines (if it has a

branch, for instance)

• What is a non-juridical entity? What is the rule? (Ex. Toro Boys)

o No separate juridical existence.

o They can be parties, as defendants, and named as such

(under the name under which they are generally and commonly

known).

o They CANNOT institute an action as a non-juridical entity.

They have to institute it individually.

• How do you serve summons to a non-juridical entity?

o To anyone or person in charge of the office.

• Who are those authorized by law? Give examples.

o Political parties

o Labor unions

o Archdiocese

o Estate

• How do you serve summons?

o Depending on the entity – they have different rules.

• Can you serve summons to a natural person in prison?

o Yes. Serve it to the warden.

• For public corporations?

o Province – executive head (governor)

o City – city mayor

o Municipality – municipality mayor

•

Who is a real party in interest?o A party who stands to be benefitted or prejudiced by the

judgment.

• Does the concept extend even to defendants and third party

plaintiffs/defendants? What about an intervener?

o The law does not limit it to plaintiffs only – it uses “party” as a

generic term, so it can encompass any party impleaded, if he

will benefit or be injured.

• Does this concept of real party in interest apply to all cases?

o No. The concept of real party in interest will only apply to

private suits.o Does it apply to a taxpayer suit?

No. Locus standi applies here.

o Does it apply to criminal cases?

[Not answered, but I think not]

o What is the difference from legal standing/locus standi?

This is from public suit filed by a private party. There

is a broader policy concern here, even if there can be

benefit or injury as well.


9/61

9

o A Congressman does not believe in the act of the

President, so he questions it as part of his legislative

prerogative. Is he a RPII?

No. Locus standi applies as well.

•

Thus, differentiate RPII from locus standi:o Locus standi pertains to acts of government. By reason of this

act, you suffered injury.

o You do NOT use legal standing in private suits. Only in public

suits.

• Who is a necessary party?

o A) They are not indispensable, B)but ought to be joined if one

needs complete determination of the case.

• Who is an indispensable party?

o If not impleaded, there can be no final determination.

o N.B. The codal does not use the word “complete.” So they are

compulsorily joined.

• What if there is a suit against joint debtors?

o The other parties not sued are necessary parties.

o Can you sue one of them only?

Yes. The court can issue a valid judgment, although

not complete.

o Can you then proceed against the other one, though not

impleaded at first?

Yes.

• What if there is a solidary obligation, not joint? Ex. X and Y

solidarily owe Z PHP 100,000. Z sues.

o [Neither necessary nor indispensable (?)]

o Can you sue X only?

Yes.

o Can there be judgment?

Yes, because the obligation is joint and several

(solidary).

o Can you sue Y later on, having recovered from X?

No, because you recovered already.

o Can you sue at the same time?

Yes. The case can proceed against either, or both.

• There is an action for recovery of title AND possession. X holds

title; Y has possession of the property. The action is just for

recovery of title. Can you sue X?o Yes, because X is the proper party.

• Same facts. Can you sue Y for recovery of title, without suing X?

o No. Y is a mere possessor. The court cannot render judgment

without impleading X. X is an indispensable party in this case.

• What is the failure offailure to implead?

o If it is a necessary party, the general rule is that failure to

implead is non-prejudicial. There is no waiver of right to

implead. There is no waiver UNLESS there is an order to

implead from the court.

o If it is an indispensable party, the court should order that the

indispensable party be impleaded(Domingo). If despite this

order to implead, the plaintiff did not comply, the case should

be dismissed.

o What if the court did not notice non-joinder, and thus did

not order to implead the indispensable party, and renders

a decision?

The judgment is null and void.

• When is there substitution of parties in a civil case? There are

three.

o

1. Death Who should die?

• Any party. The law does not distinguish.

This is the most common.

o 2. Change of holder of public position (death, resignation,

removal, cease to hold position)

This is a very limited application, since it just applies

to public officers.

o 3. Transfer of interest


10/61


11/61

11

Yes.

o Can the court order that C be impleaded?

Yes. But there is no substitution here. C is just

joined.

o How then can there be substitution?

The court has to order asubstitution, not mere

impleading. BOTTOM LINE: there has to be a court

order.

• In case of death of a defendant in a sum of money case, will there

be substitution? (VERY IMPORTANT)

o Section 20. It will NOT go to the heirs, but it will continue

against the estate. (Remember Succession!)

o This is the special rule against sum of money cases.

o Ratio for this?

Because you ultimately deal with the executor or

administrator anyway.

But it’s wrong to say there is substitution, because the

law does not mandate it.

o This position is further supported by Rules 86 and 87.

o What are the requisites for this rule to apply?

1. The DEFENDANT must die

2. It must be a sum of money case based on contract

o What if the plaintiff dies?

The general rule will apply, even if it’s a sum of money

case.

• Indigents – Algura v. Local Government of Naga: Resolves the

apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19.

o If the indigent fits within the parameters set by Rule 141, Sec.

19, then the court must declare him to be an indigent.

What is the Rule 141 requirement?

• Gross income + family income does not

exceed twice of monthly minimum wage

• And owns real property whose FMV is less

or equal to PHP 300K

o If he doesn’t, he falls under Rule 3, Sec. 21 and must apply for

indigent status. (“Indigency test”) Here, the court exercises

discretion as to whether you are an indigent or not.

o So can a person owning real property with FMV of PHP

300,001 be declared an indigent? Yes, but under the indigency test.

• If you are declared an indigent, you do not pay filing fees. But

what happens when there is a judgment?

o There is a lien, as regards filing fees.

• What is the rule on stenographic notes?

o It is free. There is no lien on the judgment.

• What happens when the court finds out you are not an indigent?

o The court can require you to pay.

o What if you refuse to pay?

The court can order execution.

o What if you fail to pay or ignore the execution?

The court can dismiss the case, for failure to comply

with an order of the court.

• Planters v. Fertiphil:

o Planters did not pay appellate docket fees. But this was in

1992, prior to the 1997 Rules on Civil Procedure, which began

the requirement of appellate docket fees. The 1997 Rules

must not apply retroactively.

• Atlantic Erectors:

o Collection for sum of money over construction project over

property. The plaintiff attempted to make an annotation of lis

pendens on the title of the property. HELD: You cannot do

this. This is an action in personam, not in rem, as regards the

property.

o A notice of lis pendens will only lie if it is aright, title, or interest

over real property. Outside of this, you cannot avail of a notice

of lis pendens.

• Diaz:


12/61

12

o Rule 43, up to the CA. Attached duplicate of decision, but not

pleadings. This is enough for CA to give due course to the

petition.

• PDIC:

o

The main case is for declaratory relief (SCA). The question iswhether there can be execution of such (yes). There can also

be a counterclaim, even if declaratory relief is an SCA and the

counterclaim is an ordinary action.

• Tolentino v. Natanauan:

o There is no res judicata between recovery of possession and

nullity of deed of sale.

o Requisites of res judicata?

A) Former judgment final

B) Court had jurisdiction

C) judgment on merits

D) Identity of parties, subject matter, causes of action

Venue

• Do not make the mistake of confusing venue and jurisdiction in civil

procedure. Jurisdiction is the power given by law to hear, try, and

decide cases. Knowing what court is one thing, but knowing where to

file it is different.

• There was an agreement to development of a piece of land in

Tanay, Rizal to become a memorial park. The duty of the owner

(living in Quezon City) of the piece of land is to provide property.

The duty of the developer (located in Pasig) is to dig up the land,

put drainages, etc. The owner of the land died, and the heirs are

now substituting for their father. They want to rescind the

agreement to develop. Where do they file?

o There are two steps in venue problems. First, determine:is it

a real action or a personal action?

It’s a personal action. It involves rights and

obligations of parties, although the subject matter

involves land.

o Where do you file it?

At the option of the plaintiffs. Either in their principalresidence (Quezon City) or the defendant’s (Pasig)

o Which court has jurisdiction?

RTC, because it is an action incapable of pecuniary

estimation (rescission)

• Aileen Marcoscase:

o In cases where there are several plaintiffs and defendants, the

codal provides the word “principal” before plaintiff and

defendant, so that the plaintiffs will not file the case before far-

flung or inconvenient areas.

o

In this case, Aileen Marcos is filing a case to enforce a trust,and some nominees live in Batac, Ilocos. Marcos lives in

Makati. She filed in Batac.

o HELD: Should have filed in Makati, because she is the

principal plaintiff.

• Where do you file an action for extra-judicial foreclosure?

o Extrajudicial foreclosure of mortgage is NOT a judicial action.

It’s not covered by the Rules of Court, but Act 2135. For

purposes of EJ foreclosure, it should be filed where the

property is located.

o But the mere filing and payment of fees (for multiple propertiesin various areas0 can be paid in one office, as long as it can be

established that it covers all areas. But the actual sale will only

be done in the place where the properties are located.

• What about judicial foreclosure?

o Rule 68 does not provide for venue for this SCA. But it is filed

where the property is located.

o But if it is for collection of a sum of money, file it as a personal

action.


13/61

13

• Where do you file an action for nullity of marriage?

o RTC where the plaintiff resides, where the defendant resides,

or where their conjugal home is located (special rule in Family

Courts issuance)

•

What should be your first consideration? What is the general rule?o Rule 4 (rules of venue) applies in general, UNLESS a specific

law provides otherwise.

• On specific venues, as provided by law –

o Give an example.

Actions for Quo warranto

o What if you want to file an action for perpetuation of

testimony?

This is covered by Rule 24 (deposition before action

or pending appeal).

Special rule: Place of residence of any expected

adverse party or defendant

o What about adoption?

Where the prospective adoptive parents reside

o What about probate?

Where the deceased last resided at his time of death

o Writ of habeas corpus on residence of minors?

General rule: RTC where the minor is supposed to be

found

Thornton: But if unknown or cannot be found, in the

CA or SC

• Can the parties stipulate on venue?

o Yes, they can.

o In an ejectment case, the property is located in Cebu.

Plaintiff resides in Makati, defendant in QC. Where do you

file it?

In the MTC of Cebu. Residence in general does not

matter.

o What if I file it in Makati?

Yes.

But what will you expect?

• Motion to dismiss on the ground of wrong

venue, coming from the defendant.

But what if there was no motion to dismiss, and in

the answer, there was no allegation of impropervenue?

• There is waiver on the rules of venue.

• Remember Rule 9, Section 1. This is the general rule on waivers and

objections on grounds not raised in an answer or MTD. Failure to raise

these grounds in MTD or answer is a waiver.Exceptions:

o 1. Lack of jurisdiction over the subject matter

o 2. Litis pendentia

o 3. Res judicata

o 4. Statute of limitations

• What is the distinction that you have to make as to stipulations?

o If there are no words of exclusivity, then it is only an additional

venue.

o If there are words of exclusivity (ex. “can only be filed in Cebu,

waiving all other venues”), then you can only file it there.

o (PBCom v. Lim is an example of a case with restrictive words)

In this case, the stipulation on venue in the principal

agreement (PN) applies to the accessory contract,

which is the surety agreement – which cannot exist

without the prior agreement.

• What if there was no Motion to Dismiss and no answer filed?

Apparently, the defendant did not notice the improper venue, or he

decided to waive it. Can the judge latermotu propio dismiss the

case after noticing that the venue is wrong?

o No, he cannotmotu propio dismiss the case on the ground of

improper venue. (Gumabon)

• Distinguish between wrong venue and lack of jurisdiction (ex. wrongly

filing an ejectment case in the MTC.) Here, while the rules on summary


14/61

14

procedure include MTD as a prohibited pleading, an exception is lack of

jurisdiction (contra.wrong venue).

• What is the local version offorum non conveniens?

o Prohibited forum shopping(ReadBank of America)

•

Summary procedure

• 1. Filing of the complaint

o In summary procedure, after filing the complaint, what can

the court do?

A) Dismiss the case outright

B) Issue summons

o What is the responsive pleading?

Answer.

Can you file a MTD?• In general, no. It is a prohibited pleading.

When do you file the answer?

• 10 days, not the usual 15.

o Can the plaintiff file a reply?

No. It’s also a prohibited pleading.

o What if there is no answer?

The plaintiff can file a motion for the court to render

judgment.

A motion to declare the defendant in default is a

prohibited pleading. Just ask the court to render

judgment.

o After the filing of the last pleading, move on to next stage.

• 2. Preliminary conference.

o Take note, in SP, it is NOT pre-trial but preliminary conference.

o When does the court set this?

Period of 30 days.

o What happens here?

The parties can compromise, identify issues, etc.

o Can the court render a judgment based on what was

presented in the preliminary conference?

Yes, the court can, if it is convinced at this point in

time.

o

Assuming there is no judgment in steps 1 and 2, move to thenext step…

• 3. Submission of judicial affidavits or position papers

o Is there a hearing in summary proceeding or trial?

No hearing, no trial.

o Within how many days do you submit affidavits?

Within 10 days

o Can the court render judgment?

General rule: 30 days from the filing of the last

pleading

• NOT submission for resolution, but

submission of the last pleading

Exception: 15 days, if the court asks for further

clarificatory documents

• What are the prohibited pleadings?

o 1. MTD

Except lack of jurisdiction over subject matter

Or failure to refer to lupon

o 2. Reply

o 3. Bill of particulars

o 4. MR or MNT

o 5. Petition for relief from judgmento 6. Motion to declare in default

o 7. Third party complaint

o 8. Memoranda

o 9. Dilatory motions for postponement

Does this cover motion for cancellation of

hearing?


15/61

15

• If is not dilatory. But be careful with this,

because the judge has to determine first if it

is dilatory.

o 10. Motion for extension of time

o

11. Petition for certiorari, mandamus, prohibition againstinterlocutory orders of the court

o 12. Interventions

• Jalique v. Dandan:

o This is a case where the respondents filed a joint counter

affidavit in an ejectment case, rather than a response. The

MTC decided in favor of plaintiff. RTC affirmed. CA moved to

have the case remanded to MTC for re-hearing.

o HELD: Valid action by CA. The court interpreted the rules on

summary proceeding liberally here, because there was

presence of a responsive pleading anyway and there waschallenge of the material allegations of fact in the complaint.

So the MTC should have considered it.

• Bonifacio v. Bellosillo

o The judge was sanctioned here, because there was no answer,

and instead of promulgating judgment, he still called for a

preliminary conference.

• Pascual v. Jovellanos

o The defendant filed a Motion to Strike Out instead of an

answer, which was, in reality, a motion to dismiss. The judge

should not have granted this.• Boy v. CA:

o May the MTC pass upon questions of ownership in an

ejectment case?

YES, only provisionally and for the purpose of

resolving forcible entry/unlawful detainer cases. This

is a power granted by BP 129.

• Macasaet v. Macasaet:

o In the preliminary conference, representatives appeared on

behalf of the original parties (as attorneys-in-fact). This special

authorization is a valid cause for someone else to appear in the

plaintiff’s or defendant’s behalf.

o What happens when the plaintiff is absent in preliminaryconference?

Case is dismissed

o What happens when the defendant does not appear?

As if he didn’t file an answer. The court can render

judgment.

o What is the stopgap?

Have an explanation OR send a representative

o Where does this rule come from?

Provision on authorization does not appear in the

rules on summary procedure. But the SC applied to

Rule 70 suppletorily, the rules of Rule 18 on pretrial

and appearance by representative.

Small claims

• What should a plaintiff file?

o 1. Statement of claim

o 2. Together with certificate of non forum shopping

o 3. Authentic copies of document from which the action stems

from (actionable documents)

• Who signs the statement of claim?o The claimant. No need for the lawyer.

o [Atty. Salvador: maybe this special rule is for bar flunkers to

practice, because the claimant still needs to file certain

documents he may not know how to execute]

• What happens after?

o Court files notice for defendant to submit response

o Defendant has 10 days to file a response

o What are the formal requirements?


16/61

16

There is already a form provided for the plaintiff and

defendant to fill in.

They just need to attach documents.

o Can there be a counterclaim in a small claim action?

Yes.

• And then?[review/cross-check these rules]

o The parties can decide for amicable settlement or judicial

dispute resolution (JDR)

o Can a claimant apply as an indigent litigant?

Yes. ( Aldura)

o Will there be presentation of evidence?

Yes, but it is not a strict and formal trial. You can only

present the evidence attached to the claims.

o Is there a preliminary conference?

None mentioned.

o Do the parties have to appear? Yes, or at least their representatives. Failure for the

plaintiff to appear leads to dismissal without prejudice

of the claim. Failure for the defendant to appear has

the same effect as not filing a response.

• What happens after JDR?

o In a multi-sala court, the executive judge refers to the pairing

judge for hearing and decision within 5 working days from

referral

o In a single sala court: Pairing judge hears and decides the

case in the court of origin within 5 working days from referral by

JDR judge

• Are there prohibited pleadings?

o Same as summary procedure

o Except in MTD, only lack of jurisdiction over the SM is the

exception. Failure to refer to the lupon is not an exception.

• Can it be appealed?

o No. By express provision, it is final and executory.

o What then, is the remedy?

Rule 65 (petition for certiorari) – because there is no

plain, adequate, speedy remedy

Pleadings

• What must be in the complaint?

o Claims a cause of action

o Must contain allegations – brief and concise statement of

ultimate facts, devoid of evidentiary matters

You can also allege as to fraud, mistake, malice,

illegality, condition of the mind, etc.

• As to matters of fraud, how must it be alleged?

o With particularity

• As for mistake, how must it be alleged?

o With particularity

• If it’s a condition of the mind (malice, intent, knowledge, etc.)?o Generally

• You can also base your claim on an actionable document. How to

do you allege it?

o 1. You can attach or append the document

To show the court that this is where your cause of

action arises

o 2. You can reproduce the contents of the document in the

pleadingen toto

(But in practice, just always append anyway)

•

How do you deny an allegation under an actionable document?o Specifically denied, under oath

o What is the exception to when you need to specifically

deny under oath an allegation from actionable document?

1) When the adverse party is not a party to the

instrument

2) When there is an order for inspection and it is

refused


17/61

17

• What is the effect of failure to specifically deny under oath an

actionable document?

o It is an admission ONLY as to the genuineness and due

execution of the actionable document

• But what about the rights and obligations of the parties arising

from that document?

o It is up to the court to determine it.

• What is the period to file an answer?

o 15 days after service of summons

o Could it be 30 days after receipt of summons?

For foreign corporation and service is done to

government official designated by law

• What are the defenses available in answer?

o 1) Affirmative defense

If you only hypothetically admit, without raising

any defense, what happens?

• In this case, there is no more issue. This will

lead to a judgment on the pleadings (Rule

34)

• This occurs when the answer does not

tender an issue or admits the material

allegations

o 2) Negative defense

Specific denial of facts alleged essential to the cause

of action.

What are the kinds of specific denial?

• 1) general denial

• 2) specific denial

• 3) disavowal of knowledge (lack of

knowledge and belief to form a specific

denial)

• Is the counterclaim or cross-claim in a separate pleading?

o No.

• What is a compulsory counterclaim?

o Arises out of the transaction constituting subject matter of the

action

• What is a permissive counterclaim?

o Arising from an event unrelated.

• What is the period to answer a counterclaim?

o 10 days

o (In practice, you only answer a permissive counterclaim. In

practice, a compulsory counterclaim is not answered.)

• What is a cross claim?

o Made against a person/party on the same side.

• Can there be a counterclaim defendant cross claim?

o Yes. The counterclaim defendant is the original plaintiff. He

can file a cross claim against a co-party.

• Is there a period to answer a cross claim?o 10 days

• Do you need leave of court to file a counter or cross claim?

o No, whether it be a permissive/compulsory counterclaim or a

cross claim, no.

• For a third party complaint, do you need leave of court?

o Yes. You cannot just file a third party complaint.

o Who is usually the third party plaintiff?

The defendant in the main case, who feels that he

should file a complaint against someone that court

has yet to acquire jurisdiction from. This is the reason why there is need for leave of court.

You need to have the third party impleaded.

Why would you want a third party complaint?

• To contribute or indemnify

o Classic case: car crash a hit b hit

c. C sued B. B sued A for

indemnification.

• Subrogation


18/61

18

• Any other similar ground

o What is the period to answer a third party complaint?

15 days, because it is treated as an entirely new

complaint

• Is the reply a mandatory pleading?

o No.

• What is the period to file a reply?

o 10 days.

• What do you do in a reply?

o To controvert the new matters raised in the answer

• What is the effect of failure to file a reply?

o All new matters stated in the answer are deemed controverted

o What is the reason for this?

[Didn’t answer]

•

What happens after answer, etc?o Pre-trial

• Three important things:

o Signature, verification, and CNFS

• What is the effect of a lawyer affixing his signature in a pleading?

o Indicates that he has read the pleading, and to the best of his

knowledge, the information is correct

o And that the filing of the same is not for the purposes of delay

• There are some pleadings that are left unsigned. What happens?

o It has no legal effect at all.

o Is there a way to cure it?

If counsel can show it is due to mere inadvertence

and not for delay

o Will the court just give effect to the pleading or will it still

require actual signing?

[Didn’t answer]

• If a lawyer changes his address, what is his duty?

o Inform the court. Failure to do so may lead to disciplinary

action.

• What are the contents of the verification?

o That the affiant has read the pleading and the allegations are

true.

• Must it be under oath?

o Yes.

• Is it mandatory?

o No. Only when the law requires you to verify.

• Is it jurisdictional?

o No. Failure to attach is not fatal.

o But why do the SC and CA dismiss cases for failure to

attach verification?

Although it can be cured, the court may dismiss a

pleading for failure to comply with procedural

requirements.

• Who signs the verification?

o The party filing the pleading.• Can the lawyer sign it?

o General rule, no. Unless there is some compelling reason.

o For example, the party’s father is to be buried on the day of

filing of the petition – the court allowed it.

o Also, the distance of the petition from the counsel (ex. the

petitioner is in the USA and the counsel is in Manila, and there

are only 15 days to file.)

• Can a minor sign?

o Must be assisted.

•Can a married person sign by himself or herself?

o One spouse is enough, but only if there is common interest.

(N.B. but see note below)

• For co-owners or those in the same residence?

o Signature of one is enough if there is common interest. (N.B.

but see note below)

• TAKE NOTE:The key when it comes to multiple parties, all of them

have to sign. However, if there is a common interest among the parties,

a signature of a number of them may be enough.


19/61

19

o BUT in practice, do not take chances.

• CNFS: What about a juridical entity? Who can sign?

o [Anyone, as long as authorized by a board resolution]

• What are the contents of the form?

o Plaintiff/principal party shall certify under oath that he has not

filed a similar complaint involving the same issues in another

court, tribunal, QJ agency

o If there is any other pending claim, provide status

o If he learns about similar action, report fact within 5 days to the

court

• Why does the law require that it is the party that signs?

o Because it is only the party, and not even the lawyer, that

knows whether there is another action.

• For those with no separate juridical existence, who signs?

o All the parties, since there is no juridical personality.

• What is the effect of absence of CNFS? (Note: non-compliance is

different from absence)

o It will be dismissed. It can be re-filed because it is without

prejudice.

• Can it be amended to cure?

o No, the defect cannot be cured by an amendment. Just re-file.

• What is the effect of non-compliance? (Note: this occurs when there

is a CNFS, but you did not respect your commitment under the CNFS)

o Indirect contempt (Failure to comply with order or process of

court)

o Administrative and criminal cases (since you lied under oath)o Dismissal of the case

• What if there is willful and deliberate forum shopping?

o (Meaning, it’s not only false, but you also deliberately disregard

it)

o Dismiss the case with prejudice

What kind of dismissal?

• Summary dismissal – cannot contest

o Placed in direct contempt without opportunity

• BPI v. CA

o There was a CNFS filed in the first place. What was not

attached was the board resolution showing the authority of the

Vice President to sign the CNFS on behalf of the company.

This authorization was submitted on the MR.o NOTE: There was a valid CNFS. There was liberal

interpretation of this provision for these reasons.

• Donato

o Here, the lawyer signed the verification, not the party. This was

validly excused by the court since the party was in the US, and

could not sign the pleading in time given the 15 day period.

There was physical impossibility.

o BUT as a general rule, the lawyer cannot sign.

• Young v. Seng

o There was no forum shopping, because the first case was

dismissed due to lack of cause of action. When a case is

dismissed because of that, it is without prejudice, and that

party can file the same case again.

o Failure to disclose this fact is not a violation of the CNFS.

• OSM Shipping

o Requires a duplicate original or CTC for the decision being

appealed (here, NLRC decision) and not the prior one (Labor

Arbiter in this case)

• Tan v. Kaakbay

o No need for a CNFS for a compulsory counterclaim

• New Sampaguita

o There was no forum shopping here, because the first case

questioned whether there can be a writ of execution when the

parties agreed to compromise in the first place, when the court

dismissed the initial case. The second case was whether the

court approved the compromise agreement in the first place.

These are different.

• Solar


20/61

20

o Is the rule on personal service mandatory?

Yes. The rule is priority is by personal service. If you

cannot do it by personal service, you can do it by

registered mail, but you have to make an explanation.

o In this case, it was made by registered mail and there was no

explanation. For this reason, the decision of the court to allow

it was based on its reasonable discretion. BUT this is not the

rule.

• Musa

o What are the material dates here?

Period only commences to run from date of receipt of

the decision

Date of filing of the MR

Date of receipt of denial of the MR

Amendments and supplements

• There is amendment for civil cases and there is amendment for criminal

cases.

• For civil cases, amendment may either be:

o 1) As a matter of right

o 2) With leave of court

• When is it a matter right?

o Before an answer or within 10 days of service of reply

o What do you need to file?

NOTICE to amend

• When do you need leave of court?

o After an answer has been made

o What do you need to file?

Motion to amend

• For criminal cases, the reference point is not an answer. Instead, it is

plea.

• Before plea, can you amend?

o Yes, whether as to matter of form or substance

• After plea, can you still amend?

o Yes, but only as to matters of form, for as long as it will not

prejudice the rights of the accused

Don’t forget that last bit!

o What is the test when it will prejudice the rights of the

accused, even if it’s a matter of form?

If the original defense of the accused will not change.

• What is “amendment to conform to evidence”?

o This is section 5 of Rule 10

o Allegations are found in the body of the complaint/answer.

What is alleged must be proven.

o If the evidence you presented went beyond the allegations, you

may file a motion to amend the pleading to conform to

evidence

• There are two kinds of amendments to conform to evidence. What

are these?

o First kind – no objection on the part of the other party. For this

reason, it will be allowed even after judgment.

o Second kind – if the other party objects, the amendment is left

to the sound discretion of the court.

• Can you amend a complaint when it originally has no cause of

action?

o If in the first place there is no cause of action, no amendment

will cure such an absence.

o Can the court order an amendment even if there is no

application to amend?

1. Yes, if it is a mere formal (typo) amendment

2. For bill of particulars, the court can either order

compliance OR an amendment

3. Motion to dismiss – the court can either grant, deny,

or order an amendment

• There was an amendment of an original complaint, which was the

basis for the issuance of summons. If the original complaint is


21/61

21

amended and that is granted by the court, is there a need for

issuance of new summons?

o No, if you already lawfully obtained jurisdiction over the

defendant through summons or voluntary appearance.

o It is a question of jurisdiction over the person, not a question of

amendment.

o HOWEVER, if there are additional defendants, new summons

must be served to them.

• What is a supplemental pleading?

o A pleading filed in addition to a prior one that has been filed,

pursuant to new transactions, occurrences, or events that have

arisen.

o Can there be a supplemental complaint?

Yes

o Can there be a supplemental answer?

Yes

o Can there be a supplemental reply?

Yes

o Can there be a supplemental petition?

Yes

• So what is the general rule?

o You can file a supplemental pleading as long as there are new

transactions, occurrences, or events that occur after the filing

of the first pleading.

o What is the exception?

Usually you cannot do this to the Supreme Court,

because you cannot file something to it unless it

asked for it. You would be asked to explain why you

are submitting such.

• What is the difference between amendments and supplements?

o Amendments pertain to events, transactions, or occurrences

that exist during the filing of the original pleading, but were not

placed in the pleading. There was just an omission.

May be filed without leave of court (before responsive

pleading)

o For supplements, the events, transactions, or occurrence only

arose after the filing of the original pleading.

Always with leave of court

Default

• N.B. 1: What is the rule on objections?

o General rule: all objections on grounds not raised in an answer

or motion to dismiss are deemed waived.

o What are the exceptions?

1. Lack of jurisdiction over SM

2. Res judicata

3. Litis pendentia

4. Prescriptiono What is the fifth exception provided by jurisprudence?

5. Lack or absence of cause of action

• This is different from Rule 16 (that the

pleading states no cause of action)

• N.B. 2: What is the rule on failure to allege a counterclaim?

o Any compulsory counterclaim or cross claim not set-up: barred

forever

o In special proceedings – a claim against the estate must

be made in the period provided for in the notice.

Otherwise it will be forever barred. What is the exception? If there was a suit started by the estate against you,

the claim can be raised as a counterclaim.

• N.B. 3: How many kinds of default do we have?

o 1. In actions in rem, there is a general order of default.

There are no defendants, so notice is made to the

public that all oppositors have to come forward and

object. Otherwise, forever barred.

o 2. Failure to attend during pre-trial


22/61

22

Called “as in default” in the 1964 Rules of Court

If the defendant fails to attend, the plaintiff can present

evidence ex parte

• When do you know when a party is in default?

o 1. Did not file responsive pleading

o 2. There is proof of such failure

You have to show the return

• How can you set aside an order of default?

o

o 1) File a motion on any of these grounds:

1. Fraud

2. Accident

3. Mistake

4. Excusable negligence

o 2) It has to be under oath

o 3) State that you have a meritorious defense, withoutnecessarily giving an answer

o What kind of fraud is needed?

Extrinsic fraud.

o Is the fraud needed here the same fraud needed for motion

for new trial, petition for relief from judgment, and motion

for annulment of judgment?

YES. For all of these, you need extrinsic fraud.

• How do you set aside an order of “as in default” [or allowance for

plaintiff to present evidence ex parte for the plaintiff]?

o

Saguid: Remedy is to file an MR or relief from order of defaultalso on the ground of FAME

o Do you have to add that you have a meritorious defense?

No need. You’re already in pre-trial.

• Can there be partial default?

o Yes.

o In a case where you file a case against A, B, C, D, and E. E

did not file an answer, while A to D did. Will A to D be

allowed to present evidence?

Yes.

o Will E be allowed to present evidence?

No. He is in default.

o Can A to D’s evidence be used against E or in favor of E?

Yes. In fact, E can still win the case along with the

others.

• Can the court render a judgment after an order of default, without

presentation of evidence ex parte?

o Yes. This is a new provision introduced only in the 1997 Rules

of Civil Procedure.

o This has not been asked in the Bar examination yet. So be

careful.

• Where can there be no order of default?

o 1. Nullification/annulment/legal separation

o Can there be default in Summary Procedure?

No. When there is failure to file answer, there can be

judgment rendered by court.

o 2. Certiorari, Prohibition, etc. Some SCAs require a

comment, so there can be no declaration of default

Are there SCAs where there can be declaration of

default?

• Yes, like interpleader where the special rules

are deficient so there is suppletory

application of the ROC

• Cerezo v. Tuazon:

o Order of default – failure to submit an answer, so the defendant

is declared in default

o Judgment by default – after the defendant is given notice of the

court processes, the court renders a decision without hearing

defendant’s defense, which he lost

o Remedy for an order of default?


23/61

23

Motion to set aside or lift an order of default based on

FAME (under oath, and you have to show you have a

good defense)

SSS v. Chavez:This must be accompanied by a

verification (under oath), affidavit of merit (that youhave a good defense), and notice of hearing. If this is

missing, the motion is lost.

o Remedy for a judgment by default?

MR or MNT (FAME) within period for filing an

appeal

After the reglementary period (i.e. when there is entry

of judgment) Petition for relief from judgment

• 6 months from entry of judgment AND within

60 days from knowledge

If there is GADALEJ, Rule 65 certiorari

• Remington Steel:

o When there are multiple defendants, even if one has already

answered, you may amend the complaint as a matter of right

as to the other – since there is no defense yet that would be

affected or altered by the amendment.

• Philippine Export and Foreign Loans:

o When it is a dismissal without prejudice, appeal is not a

remedy. Your remedy is to re-file a case or file for a petition for

certiorari.

o

Amendment to conform to evidence –What if it was notallowed, but the evidence was proven, can there be a valid

judgment based on that evidence?

Yes. It is valid, even if it is not consistent with what

was alleged.

Bill of particular

• Can there be Bill of Particulars in criminal cases?

o Yes. Rule 116, Sec. 9.

• Only four things to remember in BOP:

o 1. What is the definition of BOP?

o 2. What is the period to file a BOP?

o 3. What is the action taken by the court in BOP?

o 4. What is the consequence of failure to comply with order to

file a BOP?

• When you file for a BOP, what do you want to achieve?

o A more definite statement of facts that appear in the complaint

that are not averred with sufficient particularity

o You are to identify the defects and the details desired.

• Can you file a motion for BOP after an answer has been filed?

o No more, because issues have already been joined.

• What is the effect of filing a motion for BOP on the period?

o The period is interrupted upon filing, but you always have at

least five days to file the answer after.• Deadline to file an answer is December 15. You filed a motion on

December 5. How many days do you have?

o TWELVE, not eleven. You don’t count the day causing the

interruption. [VERY IMPT]

o This is the same way you count a motion to dismiss.

• [Same facts] If you filed a motion for bill of particulars on

December 14, the motion is interrupted. How many days do you

have?

o You still have Five days.

•

What action can the court take on a BOP if you fail to comply?o 1. Motion to strike out

o 2. The case can be dismissed (Virata v. SB) – Rule 17, Sec 3:

non-compliance with court order

• What if the person fails to file an answer in the time left?

o Will be declared in default

Service and summons


24/61

24

Filing

• What are the modes of filing?

o 1. Personal

o 2. Registered mail

• Can there be filing by ordinary mail?o None. Because here there is no way the court can find out

when you filed it.

o But there can be service by ordinary mail.

• What are the requirements for personal and registered mail?

o PERSONAL: Stamped, dated, and signed by the clerk of court.

o REGISTERED MAIL: Pay for registry receipt and you have to

accomplish a return card

• What is the proof that you personally filed?

o Primary: if the pleading is found in the records of the court.

o

If it does not appear, you can present the received copy• What is your proof of registered mail filing?

o Registry receipt

o Affidavit of the person mailing

o Return card

Service

• What are the modes of service?

o 1. Personal

o 2. Registered mail

o 3. Ordinary mail• What does rule 14 cover?

o 1. Covers party serving to another party,

o 2. party serving to court,

o 3. and the court itself serving notices (section 9)

• If the person to whom you are serving is not available, then how do

you file substituted service?

o Delivery to the clerk of court with proof of failure of both

personal service and service by mail.

o There should be proof of both failure of personal service and

service by mail.

o [This is different from substituted service of summons]

• How do you prove service by ordinary mail?

o Affidavit

• What is completeness of personal service?

o Actual delivery

• What is completeness of registered mail?

o Actual receipt or 5 days after notice of postmaster

o whichever comes first

• What about ordinary mail?

o 10 days after mailing

• What are the proofs of personal service?

o Written acknowledgement

o Affidavit of the person serving

o

Official return of server This refers to service by the court

• What are the proofs of registered mail?

o Registry receipt

o Return card

• What are the proofs of ordinary mail?

o Affidavit of person serving

• What if I used registered mail, but I got back the return card

ALONG WITH the document itself (showing it is unclaimed). What

do you do to prove delivery?

o You have to file the return card plus the unclaimed document,

plus before you file, secure a certification from the post office.

• Take note that a return card is required by law to be filed, but in practice,

we do not.

• What is the priority of service?

o Personal service is always preferred

o What is the effect of filing by registered mail?

Put an explanation why you did not serve it through

personal service

o What if you don’t comply?


25/61


26/61

26

o For the sheriff, 15-30 days according to jurisprudence. After

the 30th day, the court will require the sheriff to submit the

return.

o Why is this important?

If you file a complaint and you don’t see to it that the

summons is served, your complaint can be dismissed

for failure to prosecute.

• What is alias summons?

o If the original summons has been lost or the original summons

was returned to court, unserved.

o Then you can apply for alias summons.

• When do you talk about suitable age or discretion, to what kind of

substituted service does this apply?

o To service at the residence.

• When you talk about suitable age or discretion for substituted

service, what do you mean?

o There is nothing in the law that says there must be age of

majority but from Manotoc toPascual, there is consistent

jurisprudence that it must be age of majority.

• Who must it be? Could it be a house helper?

o She or he mustreside therein. This must concur with “suitable

age or discretion.” So these are two elements.

o A visitor or a transient cannot receive summons. But a house

helper can.

• For offices, to whom must it be served?

o To a a) competent person b) in charge.

o Can a middle manager the same rank as Mr. X receive

summons for Mr. X?

He must be in charge of receiving summons in the

office.

o What does “in charge” mean?

In charge of the office. President or manager.

• For corporations, what is the special rule?

o President, General Manager, Managing Partner, Corporate

Secretary, Corporate Treasurer, In-house Counsel

o Memorize this. It is a closed list.

• But for personal cases of an individual, will the office receive it for

you?

• Can substituted service be served on non-residents?

o No. None as a general rule. You cannot do substituted service

to a non-resident.

o [Sec. 15 does not talk about this situation. Sec. 15 talks about

non-resident and cannot be found.]

o Is there an exception?

Yes, but it’s very narrow. But there must a a) resident

spouse b) who was previously appointed as attorney-

in-fact.

• In Secs. 14, 15, and 16: how can summons be done?

o By publication.

• Distinguish.

o Section 14: Defendant is unknown or his whereabouts are

unknown.

How do you do this?

• Just publish.

Do you even have to try personal service?

• No need for personal service (since you

don’t know him or where he is).

In what kind of case?

• Whatever kind of action, whether in rem or inpersonam – you can do it by publication, as

clarified by the SC.

• Not just in rem or quasi in rem anymore.

How does publication in 14 differ from 15 and 16?

• In 14, ONLY publication is needed. It does

not require service by registered mail in the

last known address.

o Section 15: Extra-territorial service


27/61

27

Against who?

• Against a defendant that does not reside in

the Philippines and is not found in the

Philippines.

In what subject matter?

• 1. Involving personal status of the defendant

• 2. Property of non-resident defendant

• 3. Property is attached

• 4. Where defendant has actual or contingent

interest over property

What are the modes of service?

• 1. Personal service outside the Philippines

• 2. Publication AND service by registered mail

in his last known address

o N.B.Both must concur. Take note

of this.

• 3. Other modes deemed applicable by the

court

o Section 16: Temporarily absent

Can he be a resident of the Philippines?

• Yes. But he’s just temporarily absent.

What is the length of time needed here?

• None provided

How do you do serve summons?

• Any of those in Sec. 15.

•

Add: Substituted service, if there isimpossibilityand there are earnest efforts to

serve.

• What is the purpose of summons?

o So the court can peg a date when it acquired jurisdiction over

the person.

• What is the proof of service of summons?

o Sheriff’s return.

• Note the rules on:

o Provinces

o Prisons

• What is the rule on voluntary appearance?

o It is not equivalent to summons, but if there is voluntary

appearance, summons can be dispensed with.

• What is the rule on Motions to Dismiss?

o If you file a Motion to Dismiss, even if you join other grounds

other than lack of jurisdiction, you are not deemed to have

submitted to the jurisdiction of the court.

o Old rule: you have to separate the MTD based on lack of

jurisdiction.

• Maximo v. Montalban:

o In this case, his residence is known and he is just temporarily

absent. So substituted service is not proper.

• Samarino v. Ralu:

o Here, the sheriff did not prove that facts and circumstances that

would allow substituted service (repeated failure to personally

serve, etc.) – it must be shown in the sheriff’s return

• Ancheta:

o There are only a few remedies when the judgment is already

final and executory. Here, the petitioner filed a petition to

annul the judgment based on lack of jurisdiction over the

person (because “lack of jurisdiction” is used, it can cover both

lack of jurisdiction over both SM and the person).

• Gomez v. CA:

o Does it mean that if you are talking about an in rem action you

can venture on trying to serve it personally?

You can still do personal service, in case you find him

somewhere in the Philippines by chance.

o Section 14 before limits itself to in rem or quasi in rem. It now

extends likewise to actions in personam.

Motions


28/61

28

• What is a motion?

o It seeks relief, but not a pleading.

o It does not raise a claim, nor does it raise defenses in an

answer.

o Does a motion to dismiss take the nature of an answer?

No, because it will not lead to a joinder of issues

• What does EVERY motion need to have?

o A notice of hearing.

o Directed to whom?

To parties.

But also give notice to the clerk of court (even if the

provision does not say it), because he schedules the

hearings.

o Absence of a notice of hearing has what effect?

The motion becomes a mere scrap of paper.

• When must notice be given?o The motion must be filed in courtand served to the other party

at least three days before the date of hearing. (Three day

notice rule)

• What is the ten day rule?

o The hearing itself must be scheduledno later than 10 days

from the filing of the motion

Ex. you file it December 6. The last date you can set

the hearing for is December 16.

o Understand this along with the three day rule.

•

What is the Omnibus Motion rule?o Include all grounds available; or else, it is deemed waived.

o What are these exceptions?

1. Lack of subject matter jurisdiction

2. Res judicata

3. Litis pendentia

4. Statute of limitations

• What is motion day?

o Friday afternoon.

o If it is a holiday, set it on the next working day

o Is this mandatory?

Yes. But some judges apply the rule liberally.

But since 2008, this rule has been applied strictly.

Motion to dismiss

• What are the kinds of dismissal in Civil Procedure?

o 1. There is a motion to dismiss in Rule 16, prompted by

defendant. – MOST COMMON

o 2. But there is also a motion to dismiss in Rule 17, filed by the

very same plaintiff who filed.

Rule 17 also covers failure to prosecute, which is

another form of motion to dismiss.

o 3. Demurrer to evidence

•

What are the grounds in Rule 16?o 1. Lack of J over the SM

How do you determine subject matter

jurisdiction?

• It is the law that confers the right to hear, try,

and decide a case

• The most common source is RA 7691

amending BP 129

o 2. Lack of J over the defendant

Look again into proper service of summons

Or voluntary appearance

o 3. Improper venue

Fall back to Rule 4, or special rule under law

o 4. No legal capacity to sue

Minor – age of majority

Corporation – must be duly registered with SEC

Attorney in fact – look into scope of authority

o 5. Pleading Asserting the Claim States no COA (PACS-COA)

Does not go into the falsity or truthfulness of the claim

The pleading does notappear to state a COA


29/61

29

o 6. Res judicata

What are the elements?

• 1. Final judgment

• 2. J over SM and person

• 3. Judgment on merits

• 4. Identity of parties, SM, cause of action

o 7. Litis pendentia

Same as RJ, but without

o 8. Prescription

o 9. Failure to comply with condition precedent

Ex. Failure to refer to Katarungang pambarangay

• Is this waivable?

o YES. Because it is not

jurisdictional.

Ex. Earnest efforts to compromise

Ex. Exhaustion of administrative remedies

• Does this fall under this ground?

o Some commentators say yes. But

some say failure to exhaust must

fall under PACS-COA

o 7. PWEA (Payment, waiver, extinguishment, or abandonment)

o 8. Unenforceable under Statute of Frauds

• Of all these grounds, if the court dismisses, can it be re-filed?

o ALL

o Except – [F,H,I]

1. Prescription

2. Unenforceable under Statute of Frauds

3. Res judicata

4. Extinguish of claim or demand (PWEA)

• When can you file a MTD?

o Within the reglementary period. Fifteen days.

• How do you count a period?

o Just remember the rule on interruption. [Read up Bill of

Particulars portion.]

• There was MTD filed on basis of lack of J over the defendant. The

court, instead of dismissing the action, dismissing the MTD, or

ordering amendment of the complaint, filed alias summons. Is this

grave abuse of discretion?

o There was none. Instead of dismissing the case and waiting

for re-filing, the court issued alias summons which will produce

the same effect.

• Preliminary hearing of the affirmative defenses. What is this?

o You can file an answer, and the court has discretion to hold

preliminary hearing of your affirmative defenses and use it to

dismiss the complaint.Thus, an answercan be treated as a

MTD.

This is a new feature of the 1997 Rules of Court. This

has never been asked in the Bar.

o

What is the reason for this new rule? Note: a MTD is not a prohibited pleading, but when it

issues summons, the court persuades parties not to

file an MTD, but to file an answer with an affirmative

defense.

o Why is such court attitude?

Because issues will be joined, and pre-trial sets in

where parties can compromise.

o What is the difference between filing a MTD and an

answer?

There is no preliminary hearing of defenses in a MTD.

• If the court mistakenly denies your MTD, what is your remedy?

o Petition for certiorari on Rule 65 based on GADALEJ.

o Does this petition for certiorari suspend the main

proceedings?

No. Even if there is a pending petition for certiorari,

the main proceedings will not be suspendedunless

you obtain a TRO.


30/61

30

o TheEternal Gardens rule, which has been repeatedly abused,

invoking judicial courtesy here, does not apply anymore.

o Can the Court of Appeals dismiss the case if it feels the

RTC committed GADALEJ? Or should it only remand?

The court, subject to its discretion, can either dismiss

or remand it. There is no hard and fast rule.

Dismissal of Actions

• What are the ways by which a plaintiff can dismiss a case?

o Filing anotice of dismissal any time before the answer is

served. Dismissal is a matter of right.

o What happens to the counterclaim?

There is no counterclaim yet, because there is no

answer.

o Can this case be re-filed? Yes.

What is the exception?

• Dismissed a second time under this section.

• What if there is already an answer? – SeePinggacase

o File amotion for dismissal.

o What happens to the counterclaim, if there is?

It does not get dismissed.Pingga limits the dismissal

to the complaint, not the counterclaim. This

abandonedBA Financerule.

Does this rule cover both permissive and

compulsory counterclaim?

• Yes.

• This is why the provision says that within 15

days, the party would have to manifest its

willingness to prosecute it in the same

action; otherwise it will be prosecuted in a

separate action.

Pre-trial

• When is pre-trial conducted?

o Rule 18 Sec 1 does not say, it just says that the ex parte

motion by the plaintiff to move the case for pre-trial must be

done “promptly”

o BUT the 2004 guidelines say it must be within 5 days after the

last pleading has been filed

• What if the plaintiff fails to move for pre-trial?

o The 1997 rules are silent. Before,dismissal was the

consequence, for failure to comply with Rules of Court. But

this is not the consequence anymore, because of the 2004

rules, which gives a specific outcome.

o 2004 rules: DUTY OF THE CLERK OF COURT to move for

pre-trial.

• Before actual pre-trial, a few days before, what happens?

o Preliminary conference before the clerk of court. It will be

recorded and will form part of the pre-trial record.

o They explore possibility of compromise, etc.

o This is almost like a mini pre-trial.

• Expect two dates in one notice –

o One setting the preliminary conference

o One setting the pre-trial itself

• On the first day of pre-trial – what is the order of the day?

o The court issues an order referring the case to a court-annexed

mediator. Forward the records to him.o You have to pay fees for a mediator.

o For the time-being, the pre-trial proceedings are suspended.

o What is the period for suspension?

30-60 days.

But in the same order, the court will say that if within

this period, there is no compromise, there will be

resumption of pre-trial on a later day.

• What if there is inability to compromise?


31/61

31

o Records returned to court. The court will resume pre-trial.

o The Judge with all “tact, patience, and impartiality,” endeavor

to…

[Missed something]

Judge talks to counsel and parties

Judge talks to only parties

• [stepped out]

• What do you need to submit at pre-trial?

o Pre-trial brief.

o What if you fail to submit a PTB?

Same effect as if you didn’t appear at pre-trial.

• Request for admissions: Rule 129 Section 4 – Judicial Notice:

o No need for introduction of evidence

o You want an admission to abbreviate the proceedings

o You are submitting just proposals. If accepted by the other

party, it becomes an admission.• Issues –to be submitted for resolution

• Documentary and testimonial evidence to be presented:

o “One day examination of witness rule” – if you can direct,

cross, re-direct, and re-cross a witness in one day, do so. (This

is in the guidelines, not in the Rules of Court.)

o Submit the most important evidence first.

o Evidence will be pre-marked.

What is the effect of failure to pre-mark?

• You can no longer present the evidence if

you failed to pre-mark it.

• Unless the court allows you in the interest of

justice, or if newly discovered.

o What if you fail to name the witness in court?

You cannot present the witness anymore.

• What are the other contents of the brief that you may put?

o Referral to Commissioners

o Explore possibility of compromise

o Possibility of judgment on pleadings or summary judgment

o Avail of deposition/modes of discovery

• How do you avoid consequences of absence?

o According to the provision, if there is a good excuse for

absence, the consequence will not vest. You can also

authorize someone to appear on his behalf in pre-trial.

• What happens next?

o Pre-trial order is issued by the court.

• DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL

o What if it is a criminal case and the prosecution is absent.

What happens?

It will be re-scheduled.

o What if the accused is absent?

The prosecution CANNOT present evidence ex-parte

because it will violate the accused person’s right to

confront witnesses.

o RULE 118. TAKE NOTE OF THIS. THIS IS THE

DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.

o For an admission of the accused to take effect against

him, what must be done?

It must be in writing and signed, by both the counsel

and accused.

No such requirement in civil admissions in pre-trial.

• Judicial Dispute Resolution

o In the past, the JDR process only applies in Makati. Now it

also applies in QC and Manila.

o The judge here is both a mediator and a conciliator and an

independent evaluator.

o Unless the parties consent to continue with the JDR judge, it is

mandatory that there will be a new raffle – and the new judge

who will hear, try, and decide the case is the trial judge

o This step happens when the Clerk of Court receives the

Mediator’s Report of a “not settled mediation”

o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf

8/9/2019 Rem+Review+lecture+and+recit+notes Tranquil

Rem+Review+lecture+and+recit+notes Tranquil Salvador

Documents