Outline Civ Pro

UNIVERSITY OF THE CORDILLERAS
College of Law

A COURSE OUTLINE IN CIVIL PROCEDURE
By MIGUEL B. LICERALDE
As of June, 2012

READ:
Procedural / substantive laws
Art. VIII, Sec. 5, Constitution
JUDICIARY REORGANIZATION ACT of 1980 (BP 129); AN ACT EXPANDING THE
JURISDICTION OF MTC( RA 7691), as implemented by Adm. Cir. 9/94
RULES OF COURT, Rule 1-71, 141 & 142; AM No. 07-7-12-SC Dec. 4, 2007(amending
Rules 41,45, 58 & 65);
1991 REVISED RULE ON SUMMARY PROCEDURE, as amended;
BARANGAY CONCILIATION; LOCAL GOVERNMENT CODE OF 1991(RA 7160), Secs.
399-422;
A.M. No. 08-8-7-SC dated Sept. 9, 2008-RULES OF PROCEDURE FOR SMALL CLAIMS
CASES;
A.M. 10-4-20-SC, April 10, 2010 (Internal Rules of the Supreme Court);
2002 Internal Rules of the Court of Appeals.
A.M. No. 07-11-0-8-SC (SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE
RESOLUTION); ALTERNATIVE DISPUTE RESOLUTION ACT of 2004, RA 9285;
ARBITRATION LAW of 1953, RA 876
COURT ANNEXED MEDIATION (AM No. 013-1-09-SC 7/13/04)
A.M. No. 10-4-16-SC- RE: RULE ON COURT-ANNEXED FAMILY MEDIATION
FAMILY COURT- RA 8369;
A.M. No. 04-10-11-SC- Rule on Violence Against Women and their Children, 11/15/04;
A.M. No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages
A.M. NO. 00-8-10-SC (RULES OF PROCEDURE ON CORPORATE REHABILITATION
A.M. No. 05-11-04-SC Rule of Procedure, RA 9160, amended 11/20/05 (money
laundering);
A.M. No. 09-6-8-SC- Rules of Procedure for Environmental Cases effective 4/29/10
A.M. No. 10-4-29-SC (The 2010 Rules of the Presidential Electoral Tribunal)
A.M. No. 07-4-15-SC, otherwise known as The Rules of Procedure in Election Contests
Involving Elective Municipal and Barangay Officials

CHAPTER I. INTRODUCTION
A. Judicial Power and the courts; classifications
1. Art. VIII, Sec.1, Constitution; Art. 7, Civil Code
2. Decisions of the Supreme Court- Art. 8 & 9, Civil Code
B. Jurisdiction defined
1. Authority to define apportion jurisdiction; constitutional limitations-Art. VIII, Sec. 2, 5; Art.
VI, Sec. 30, Constitution
Course outline in Civil Procedure
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2. Distinguished from Judicial power
3. Distinguished from venue- Manila Railroad v. Attorney-General, 20 Phil. 523
4. Classification of jurisdiction
a. As to its nature: General, Special or Limited
b. As to the stage of the case: Original & Appellate
c. As to extent: Exclusive, Concurrent, Delegated, Special
5. Requisites for the exercise of jurisdiction
a. Jurisdiction over the subject matter
b. Jurisdiction over the parties
c. Jurisdiction over the res
d. Jurisdiction over the issues
6. Jurisdiction (over the subject matter) of various courts
a. SUPREME COURT-Art. VIII, Sec. 1 & 5, Constitution
b. COURT O F APPEALS - BP 129, amended by RA 7902
c. SANDIGANBAYAN - EO 1,2,14, 14-A, PD1606, as amended by RA 8249
d. REGIONAL TRIAL COURTS- BP 129, as amended by RA 7691; SC Adm. Cir.
No. 09-94, 6/14/94); RA 8369 (act establishing family courts); A.M. No. 03-03-03-
SC (Special Commercial Courts- to try Intellectual Property and cases formerly
cognizable by SEC)
e. MeTCs, MTCs & MCTCs- BP 129, Sec. 33, as amended by RA 7691 effective
March 20, 1999); BP 881, Sec. 138; Sec. 34, BP 129; Habeas Corpus (BP 129,
Sec. 35); Summary Procedure- BP 129, Secs. 32-35, as amended by RA 7691

See: RA 9282 [2004] as to the jurisdiction of the Court of Tax Appeals.

7. Rules on jurisdiction:
a. Jurisdiction- conferred by law; cannot be conferred or waived by the parties, and
can be assailed at anytime. But not where estoppel by laches sets in. (Tijam v.
Sibonghanoy, 23 SCRA 29)
b. Allegations of the complaint determine the courts jurisdiction, (Aguilar v.
Cabrera, 74 Phil 658) and so jurisdiction is determined at the time of filing of the
action.
1. Exception-Where the true nature of agricultural tenancy is alleged in the
answer, the court must make a preliminary determination. (Abbain v.
Chua, 22 SCRA 748)
c. Adherence of jurisdiction- jurisdiction once acquired continues until the case is
finally terminated (Pamintuan vs. Tiglao, 53 Phil. 1)
d. Doctrine of judicial stability- (Republic v. Reyes, 155 SCRA 313; CABIGAO v.
Del Rosario, 44 Phil. 182).

C. Remedial law vs. Substantive law (Bustos v. Lucero, 81 Phil. 649 [1949])
Who promulgates procedural rules?
Art. VIII, Sec. 5(5), Constitution; Art. XVIII, Sec. 10,
see for limitations (Echegaray v. Sec. of Justice, GR 132601, Jan. 19,
1999).

D. The Rules of Court (Rule 1)-
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1. History - The old Code of Civil Procedure was Act. 190
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which was later replaced by the
Rules of Court of 1940, and revised in 1964. It has undergone major changes in civil
procedure in 1997, criminal procedure in 1985, and evidence in 1989. Subsequent
amendments were introduced thereafter to fine-tune the revisions.

2. They have the force and effect of law. They are not penal statutes and cannot be applied
retroactively, although Procedural rules may be applied on cases pending at the time of
their passage and are retroactive in that sense.
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Principle of prospectivity in application -
applies also to judge made laws or judicial decisions.
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Retroactive application may be
allowed in curative statutes (implementation of the 60-day period to file certiorari petition
from denial of the motion for reconsideration under AM 00-2-03-SC-PCI Leasing v. KO,
GR 148641, 3/31/05)

3. Courts and cases governed and not governed by the Rules (Rule 1)

Liberal Construction: Alonso v. Villamor, 16 Phil. 315, 321 (1910)

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, we stress, 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. [Republic vs. Kenrick
Development Corporation, 498 SCRA 220(2006)]

CHAPTER II. ACTIONS
A. Actions
1. As to subject-matter - PERSONAL, REAL, MIXED
a. Significance in determination of venue, amount of filing fees, as well as
jurisdiction., De Leon v. CA, GR 104796, 3/6/98;
b. Partition is merely incidental to the annulment of the document - Russel v. Vestil,
GR 119347, 3/17/99
c. Expropriation - Barangay San Roque v. Pastor, GR 138896, 6/20/00

2. As to extent of binding effect IN PERSONAM, IN REM, QUASI IN REM

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Our original code of civil Procedure (Act 190) was taken mainly from the code of Civil Procedure of California, and this in turn
was based upon the Code of Civil procedure of New York adopted in that state in 1948.(Marquez v. Varela, GR L-4845, Dec.
24, 1952)
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People v. Sumilang, 77 Phil. 764 [1946]
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Santos vs. Sandiganbayan, GR 71523, Dec. 8, 2000
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In rem: land registration proceedings (Director of Lands v. Roman Catholic
Archbishop of Manila, 41 Phil. 120); forfeiture proceedings (Republic v.
Sandiganbayan, 461 Phil 598 (2003); personal status of the plaintiff
Quasi-in-rem: Foreclosure and attachment proceedings(El Banco Espano-
Filipino v. Palanca, 37 Phil. 921 (1918); action between parties where the direct
object is to reach and dispose of property owned by them, or of some interest
therein (Midgely v. Ferandos, GR L-34314, 5/13/75; Quieting of title (SAN
PEDRO v. ONG, GR 177598, 10/17/08)
Distinction between action quasi in rem & action in personam-Domagas
v. Jensen, GR 158407, 1/17/05, 448 SCRA 663, 673-674
Action for specific performance under a contract to sell- an action in
personam (Yu v. Pacleb, GR 172172, 2/24/09)

3. Concepts of real action, personal action, proceeding in rem and proceeding in personam:
Hernandez v. Rural Bank of Lucena, Inc.,GR L029791, 1/10/78, 81 SCRA 75
4. As to where the action may be filed LOCAL OR TRANSITORY
5. As to what rules govern- ORDINARY OR SPECIAL

Commencement of a civil action (Rule 1, Sec. 5). Importance?
1. As to an additional defendant
2. Effect of non-payment of FILING FEE:
Magaspi v. Ramolete, L-34840, 7/20/82
Manchester Dev. Corp. v. CA, GR 75919, 5/7/87
Sun Insurance v. Asuncion, GR 79937, 2/13/89
Tacay v. RTC of Tagum, GR No. 88075, 12/20/89
Ayala Corp. v. Madayag et al., GR 88421, 1/30/90
A.M. No. 04-2-04-SC (docket fee on real action)

Every ordinary civil action must be based on a cause of action. (Rule 2, Sec.1)
1. Definitions:
Cause of Action (Sec.3), Right of Action, Relief, Remedy, Subject Matter

D. One suit for every cause of action (Sec. 3); splitting; effect (Sec.4)
1. Singleness of a cause of action/ Effect of splitting (Sec. 4)
a. Singleness of delict or wrong- (Joseph v. Bautista, L-41423, 2/23/89)
b. loan/s secured by a mortgage- (Bacharach Motor Co. v. Icarangal, 68 Phil 287
[1939]); or mortgage securing present and future loans; 67 promissory notes
secured by one mortgage (BPI FAMILY SAVINGS BANK, INC. vs.
COSCOLLUELA, G.R. No. 167724, June 27, 2006); but not where the mortgages
are separate transactions (Quiogu v. Bautista, 4 SCRA 478 (1962); or where the
the first action is to collect upon the unsecured portion of the consideration of the
sale and second action is to foreclose the mortgage security on the
balance.(Enriquez v. Ramos, GR 16797, 2/27/63)

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c. Nullity of marriage based on several grounds constitutes only one cause of action
(Mallion v. Alcantara, GR 1441528, 10/31/06)
d. Obligations in installments- (Larena vs. Villanueva, 53 Phil 925)
e. Principle of Anticipatory Breach - Blossom & Co. vs. Manila Gas Corp., 55 Phil
226); not a case of Danfoss, Inc. v. Continental Cement Corp., Gr No.
143788, 9/9/05.

2. Joinder of causes of action permissive (Sec. 5)
Requisites:
a. Comply w/Rule on Joinder of Parties(Flores v. Mallare-Phillips, 144 SCRA 377 [1986])
b. Not include actions governed by special rules
c. If pertaining to different venues or jurisdiction, joinder in the court of jurisdiction & venue
d. all causes are for sum of money- test of jurisdiction (Flores v. Mallare-Phillips, supra)

Case on joinder: Proper-
Perez v. Hermano, GR 147417, 7/8/05
Pantranco v. Standard Insurance, GR 140746, 3/16/05

3. Misjoinder of causes of action; its effects and remedies (Sec. 6)
Republic v. Hernandez, GR 117209, 2/9/96

CHAPTER III. PARTIES (Rule 3)
A. Who may be parties; parties to an action (Sec. 1)
B. Real party in interest (Sec. 2)
1. Representatives as parties (Sec. 3)-
2. Party authorized by law or these rules (e.g. labor org., entity without juridical personality-
as named party defendant)
3. An agent contracting without disclosing the principal
4. Class suits (Sec. 12)
o See: Request of the heirs of passengers of Dona Paz, GR 88-1-646-0, 3/3/88
o Sufficiency of representation-BANDA v. ERMITA, GR 166620, 4/20/10 (20/67
named petitioners signed but not enough representation)

5. Spouses (Sec. 4), exceptions.
Example of formal parties- which could be indispensable, necessary or neither
indispensable nor necessary.
Exceptions: see Art. 101 & 128, Art. 111, 145 of the Family Code.
Recovery of conjugal property may initiated by any of the spouses under Art. 487
of the Civil Code, but pursuant to Sec. 4, the other spouse must be
joined.(NAVARRO v. ESCOBIDO, GR 153788, Nov. 27, 2009)

6. Minors & Incompetents (Sec. 5)

C. Joinder of parties
1. PERMISSIVE Joinder (Sec. 6) requirements:
a. Arising from SAME or series of TRANSACTIONs and:
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b. COMMON QUESTION OF FACT or LAW
Pantranco v. Standard Insurance, GR 140746, 3/16/05

2. COMPULSORY joinder of indispensable parties (Sec. 7)
examples:
In a replevin action, the mortgagor and the possessor are indispensable parties
(Imson v. CA, 239 SCRA 58 [1994] ???

In an action for recovery of property against a person who purchased it from
another who, in turn, acquired it from others by the same means or by donation or
otherwise, the predecessors of defendants are indispensable parties if the
transfers, if not voided, may bind plaintiff. (Garcia vs. Reyes, 17 Phil. 127.)

Art 487 Civil Code authorizes any of the co-owners to bring an ejectment suit; the
others are neither indispensable nor necessary; BUT not where a co-owner brings
an action in his benefit alone.(Adlawan v. Adlawan, GR 161916, 1/20/06, 479
SCRA 275. Co-owners in a suit to establish tenancy rights over the co-owned
property are indispensable parties (Arcelona v. CA, 280 SCRA 20 [1997]); the
rule applies even to personal properties (Carandang v. Heirs of De Guzman, 508
SCRA 469 [2006]

A dismissal of the complaint as against one of the indispensable parties, will result
to dismissal as to the others. LIM TAN HU v. RAMOLETE, 66 SCRA 425

3. NECESSARY Party (Sec. 8);
In joint credit/obligations; Co-owners of promissory note (Lichauco v.
Limjuco et al. 19 Phil. (1912);
BUT NOT in solidary obligations, one of the debtors is indispensable while
the rest are not even necessary, like in joint-tort feasors (Cerezo v. Tuazon,
GR 141538, 3/23/04)
Quieting; Quasi-in-rem. San Pedro v. Ong, GR 177598, 10/17/08

Non-joinder of necessary party to be pleaded and effects of such failure (Sec.9)

4. UNWILLING CO-PLAINTIFF- as defendant (Sec. 10)
5. EFFECT OF MISJOINDER and NON JOINDER of parties- (Sec. 11)
Alonso v. Villamor, 16 Phil. 315, 321 (1910)
6. UNCERTAINTY as to:
a. Who should be sued- alternative defendants (Sec. 13)
b. Identity or name- (Sec. 14)

D. Entity without juridical personality (Sec. 15)
1. Cannot sue under its name, but may be sued- either by the name commonly or generally
known OR the members, individually. If sued under the name, the name shall contain the
names of the members and their respective residences.

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E. Effects on changes on parties
1. DEATH OF A PARTY (Sec. 16)-
a). Duty of counsel -
b) Actions that do not survive purely personal, only a notice of death
c) Actions that surviveBoard of Liquidators v. Heirs of Kalaw,L-18805, 8/14/67
(tortious acts of corporate officers)
notice of death plus names and addresses of legal representative/s

Purely contractual money claims (Sec. 20)
o Before filing of the action
o After filing, but before Entry of judgment
o After Entry of judgment
o After levy on a property by way of attachment.

Continued/commenced against the administrator/executor or heirs
o Legal heirs may be substituted even with the presence of a court -
appointed administrator (GoChan v. Young, GR 131889, 3/12/01;
354 SCRA 207)

Substitution of legal representative; effect of no substitution
o With sufficient notice, but without substitution-void (Ferreria v. Vda de
Gonzales, 104 Phil. 145 [1958]
o No notice and without knowledge of the court subsequent
proceedings valid (Florendo v. Coloma, 129 cCRA 304 [1984]

Specific cases:
o Revival of judgment on money claims; revive, then file as money
claim-Romualdez v. Tiglao, GR 51151, 7/24/81
o Saligumba v. Palanog, GR 143365, 12/04/08

2. DEATH OR SEPARATION OF A PARTY-PUBLIC OFFICER (Sec. 17)
3. INCOMPETENCE or INCAPACITY of a party (Sec. 18)
4. TRANSFER OF INTEREST (Sec. 19)
PO LAM v. CA, GR 116220, 12/6/00

F. Indigent party
Only available to natural party litigant (In re: Good Shepherd Foundation, Inc., AM 09-6-
9-SC, 8/19/09
G. Notice to the Solicitor General (Sec.22)

CHAPTER IV. VENUE (Rule 4)
Nature of venue: THE MANILA RAILROAD CO. v. ATTORNEY-GENERAL, 020 PHIL. 523
A. Venue in real actions (Sec. 1)
Actions for annulment or rescission of sale of realty and the RETURN of the realty.
Punzalan vs. Vda. De Lacsamana, GR No. 55729, 3/28/83
An action to redeem by debtor affects his title to the foreclosed property;
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Action to compel acceptance of purchase price as preliminary step to establish title
(Lizares v. Caluag, L-17699, 3/30/62);
Actions to collect sum of money with alternative prayer of foreclosure, or
annulment of TCT with alternative prayer for damages- real actions (NAVARRO v.
LUCERO, 100 Phil 147)

B. Venue in personal actions (Sec. 2)
An action to compel acceptance of payment and to release the mortgage (It
appears that no foreclosure of mortgage took place and that the plaintiffs remained
in possession of the mortgaged lot) is a personal action. (Hernandez vs. Rural
Bank of Lucena, Inc., 81 SCRA 75, 1978)

NOTES:
Meaning of residence- Dangwa v. Sarmiento, 75 SCRA 124; Principal Party-
meaning (Irene Marcos-Araneta v. CA, GR 154096, 8/22/08
Venue for third party complaint will yield to the venue of the main action. (Eastern
Assurance & Surety Corp. vs. Cui, et al., GR No. 54452, 7/20/81)
Venue in actions to revive judgment depends upon whether the subject is a
personal or real action. (INFANTE vs. ARAN BUILDERS, INC., G.R. No. 156596,
August 24, 2007)

C. Venue in actions against non-residents (Sec. 3)
D. When rule not applicable (Sec. 4)
1. Specific rule or law provides otherwise
In Quo Warranto cases filed by SOLGEN (Rule 66, Sec. 7)
AM No. 02-11-10-SC & AM No. 02-11-11-SC as amended by as amended by
SC Res. 7/8/03- on venue on declaration of nullity of marriage / legal
separation
2. Agreement as to the exclusive venue use of limiting words
POLYTRADE CORP. v. Blanco, GR L-27033, 10/31/69
UNIMASTERS CONGLOMERATION, INC. v. CA, GR 119657, 2/7/97
AUCTION IN MALINTA, INC. v. LUYABEN, GR 173979, 2/12/07

! In writing and before the filing of the action
! In adhesion contracts, stipulation void if contrary to public policy. (Sweet
Lines vs. Teves, GR 37750, 5/19/78)
! Stipulation as to venue in adhesion contract, valid. (PILIPINO TELEPHONE
CORP. v. TECSON, GR No. 156966, 5/7/04)
! In joinder of causes of action, where there is stipulation of exclusive venue in
one cause, the stipulation cannot be expanded to preclude bringing the
action in other venues. UNIWIDE HOLDINGS, iNC. v. CRUZ, 529 SCRA 664
3. SC ordered venue- (Art. VIII. Sec.5 (4), Constitution)
(NOTE: RULE (5) on Uniformity- same rules for MTC or RTC, except where a rule
impliedly or expressly applies only to either of said courts, or in Rule on Summary
Procedures.)

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CHAPTER V. PLEADINGS- defined
A. KINDS (Rule 6)
1. Complaint- cause/s of action; names/residences
Ultimate facts
o TANTUICO v. REPUBLIC, GR 89114, 12/2/91
o FAR EAST MARBLES v. CA, GR 94093, 8/10/93
2. Answer -Negative and affirmative defense
-defense based on law

3. Counterclaim
i. compulsory counterclaim - test of compulsoriness
1. Arenas v. CA, GR 126640, 11/23/00
2. Tan v. Kaakbay Finance Corp. GR 146595, 6/20/03
ii. after-acquired Counterclaim (NAMARCO v. Federation of United
NAMARCO Distributors, Inc., 49 SCRA 238
iii. need not be answered if the issues raised in the counterclaim are inseparable
from those of the complaint, requiring a repetition of the allegations in the
complaint (Navarro v. Hon. Bello, 102 Phil. 1019)

4. Cross claim
Counter-counterclaim/counter cross-claim

5. REPLY
Failure to specifically deny under oath the genuineness and due execution
of the actionable documents attached to the answer means that the
plaintiff is deemed to have admitted the same (Agasen v. Ca, GR
115508, 2/15/00)

6. Third party (fourth etc.) complaint- for CISO (contribution, indemnity,
subrogation or any other relief)
Function of TPC- Firestone v. Tempongko, 27 SCRA 418 [1968]
Test of propriety: ACDC v. CA, GR 160242, 5/12/05
BALBASTRO v. CA, GR L-33255, Nov. 29, 1972

Example of any other relief- warranty in sales (UY v. ARIZA, GR
158370, 8/17/06)

7. Answer to third (fourth etc) party complaint
8. Bringing new parties- in a counter-claim or cross-claim as defendants

B. PARTS of a pleading (Rule 7)
Sufficiency in form; allegations over caption - MUNSALUD v. NHA, GR
167181, 12/23/08
1. Caption
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Non inclusion of the name of a party in the title (but indicated in the body
as a party) is not fatal (Vlason Enterprises Corp. v. CA, 369 Phil 269
[1999])
2. Body
Prayer - court can grant the relief warranted by the allegation and the
proof even if it is not specifically sought by the injured party; (DE
GUZMAN v. NLRC, GR 90856, 7/23/92, 211 SCRA 723, 732) the
inclusion of a general prayer may justify the grant of a remedy different
from or together with the specific remedy sought, (Gutierez v. Valiente,
GR 166802, 7/4/08) if the facts alleged in the complaint and the evidence
introduced so warrant. (Eugenio Sr. v. Velez, GR 85140, 5/17/90)
3. Signature & address

! May be signed by party or counsel (SAMEER OVERSEAS PLACEMENT
AGENCY, INC. v. SANTOS, GR 152579, Aug. 4, 2009)
! Unsigned. Republic vs. Kenrick Development
Corporation, 498 SCRA 220(2006)]
! Failure to report new address of counsel (NAJARRO v. JARSON DEVT.
CORP. GR 142627 & 172750, 1/28/08
4. Verification
Modes: based on personal knowledge or authentic records (or both)
Hyung Park v. Eung Won Choi, GR 165496, 2/12/07
One signature of the three petitioners is substantial compliance (Ateneo
de Naga v. Manalo, GR 160455, 5/9/05).
it is basic that verification is only a formal, not jurisdictional, requisite.
(Buenaventura v. Uy, GR L-28156, 3/31/82) Accordingly, even if the
verification is flawed or defective, the Court may still give due course to
the pleading if the circumstances warrant the relaxation of the rule in the
interest of justice. (Oshita v. Republic, L-21180, 3/31/67)

5. Certification against non-forum shopping-
Distinguished from VERIFICATION; subsequent compliance Manila
Midtown YMCA v. REMINGTON STEEL CORP, GR 159422, 3/28/08

NATURE -mandatory, but not jurisdictional (Melo v. CA, GR 123686,
11/16/99

WHERE REQUIRED: Initiatory pleadings; The certification is required in
permissive counterclaim (UST Hospital vs. Surla, GR 129719, 8/17/98)
BUT not in compulsory counterclaim (Ponciano vs. Parentela, GR
133284, 5/9/00); because it is not an initiatory pleading (CRUZ-AGANA v.
SANTIAGO-LAGMAN, GR 139018, 4/11/05) just like a writ of possession
(ARQUIZA v. CA, GR 160479, June 8, 2005).

WHO MUST SIGN - All petitioners must sign (Locquias vs.
Ombudsman, GR 139396, 8/15/00)
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o BUT a signature of one of the spouses sued on a property which
they have common interest is substantial compliance with the rule
(Dar vs. Legasto, GR 143016, 8/3/00); (Ateneo de Naga vs.
Manalo, GR No. 160455, 5/9/05)

o or where the parties are abroad at the time of filing of the petition,
they are excused from complying with the requirement. (Hamilton
vs. Levy, GR No. 139283, 11/15/00);

o by counsel specifically authorized who has personal knowledge of
the facts required to be disclosed. (BA Savings Bank v. Sia, 336
SCRA 484 [2000]; but not every counsel (Digital Microwave
Corp. v. CA [328 SCRA 286) ; Ordinarily, counsel may not issue
the certification (United v. COSLAP, GR 135945, 3/07/01

o In corporations,

! Guidelines- FUENTEBELLA v. CASTRO, GR 150865,
6/30/06

! certification may be signed by specifically authorized
person, including retained counsel, who has personal
knowledge (NASSCO v. CA, GR 134468, 8/29/02); If
counsels authority is disputed, he is required to show
proof (Expert Travel & Tours, Inc. v. CA, Korean
Airlines, GR 152392, 5/26/05.

! Summary of corporate officers (gen. manager, asst GM,
employment specialist in labor cases, personnel officer,
chairman or president) may sign EVEN WITHOUT board
resolution (CAGAYAN VALLEY DRUG CORP. v. CIR,
GR 151413, 2/13/08

WHEN IS THERE FORUM SHOPPING-
o The test of determining forum-shopping is whether the filing of the
case gives rise to the application of res judicata or litis pendentia.
Litis pendentia (Sherwill Dev. Corp. v. Sitio Sto. Nino
residents et al., Gr 158455, 6/28/05);

o No forum shopping if there is no identity of issues raised in the
two petitions. (Gochan et al., v. Gochan, et al., GR 146089,
12/13/01);

o Mention of prior filing of the case for support (dismissed by the
plaintiff herself before any responsive pleading was filed) not
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required in the certification if the case is refiled. There is no res
judicata OR litis pendentia. (Roxas v. CA, GR 139337, 8/15/01)

Separate sanctions for-
o Failure to attach/submit Certification
o Failure to comply with the undertaking
o Forum shopping
! If not wilfull, the subsequent case is dismissed (CHUA v.
METROBANK, GR 182311, 8/19/09
! If wilfull, dismissal of all actions (Collantes v. Court of
Appeals, G.R. No. 169604, 6 March 2007, 517 SCRA
561, 569)
! Dismissal upon motion & hearing- Bautista v. Causapin
Jr. , 652 SCRA 442

6. Substantial compliance rule: justification and equity (UNITED PARAGON
MINING CORP. v. CA, GR 150959, 8/4/06, 497 SCRA 638);
7. Certification executed in a foreign country (HEIRS OF ARCILLA v.
TEODORO, GR 162886, 8/11/08

C. MANNER of making allegations (Rule 8)
1. In general
a. ultimate facts-allege them in methodical and logical form, the plain,
concise and direct statement of the ultimate fact
sufficient allegations for partition (BALO v. CA, GR 129704,
9/30/05

b. What are evidentiary facts? LOCSIN v. SANDIGAN, GR 134458,
8/9/07

3. Alternative causes of action or defenses
a. Alternative causes/defendants-FABRE JR. v. CA, GR 111127, 7/26/96;
INSURANCE COMPANY OF NORTH AMERICA v. UNITED STATES LINES
CO., GR l-21839, 4/30/68

3. Conditions precedent
-barangay conciliation
-earnest efforts exerted to settle between family members
o (WEE v. GALVEZ, GR 147394, 8/11/04

4. Capacity to sue or be sued; in representative capacity or legal existence
of an organized association
GALINDO v. HEIRS OF MARCIANO ROXAS, GR 147969,
1/17/05
13
MIAA v. RIVERA VILLAGE LESSEE HOMEOWNERS ASSN,
INC., GR 143870, 9/30/05

5. Fraud, mistake, condition of mind
Fraud must be alleged with particularity (Luistro v. CA, 158819,
4/16/09); corporate fraud (REYES v. RTC, GR 165744, 8/11/08)

6. Judgment no need to allege facts showing jurisdiction
7. Action or defense based on document
2 ways of alleging the document
2 ways of contesting the document
o Gateway Electronics v. AsianBank Corp., GR No.
172041, 12/18/08
o Casent Realty Dev. Corp. v. Philbanking Corp., GR
1570731, 9/14/07
Exceptions
a. document, merely evidence
b. no oath required if: it appears to be not a party to the
document or there is refusal to comply with an order for
inspection
o No need to deny if not a party to the document-(Toribio
v. Bidin, GR 57821, 1/17/85)

Effect of failure to deny-
1. meaning of genuineness due execution
2. Defenses not inconsistent with genuineness & due execution.
o Hibberd v. Rohde, 32 Phil 476 (1915)

Waiver of the admission
MAUNLAD SAVINGS & LOAN ASSN. v. CA, GR
114942, 11/27/00

8. Ways of making specific denials?
Specific denial of the material allegations and allege the
substance of the matter in support of the denial
Failure to specify matters as basis of denial AQUINTEY v.
TIBONG, GR 166704, 12/20/06; TERANA v. DE SAGUN,
GR 152131, 4/29/09
Admit part and deny the rest
Lack of knowledge (must be in good faith-PNB v. CA, GR
126153, 1/14/04)
Denial in bad faith-or professing lack of information as to the
matters alleged when they are plainly within the pleaders knowledge
(CAMITAN v. CA, GR 128099, 12/20/06
9. What is a negative pregnant?
GALOFA v. NEE BON SING, 22 SCRA 48 [1968]
14
10. Allegations not denied deemed admitted
-material allegations (excluding unliquidated damages)
o Allegations anticipatory of the defense, need not be
denied.

D. EFFECT OF FAILURE TO PLEAD (Rule 9)
1. DEFENSE or OBJECTION not contained in the ANSWER or MOTION TO
DISMISS - waived (Sec. 1)

-exception: where the COURT may motu proprio dismiss the claim on the basis of-

a. LACK OF JURISDICTION over the subject matter;
-may be raised at any stage even on appeal; estoppel does not
apply (VARGAS v. CAMINAS, GR 137869 & 137940, 6/12/08)
TIJAM is an exception because of presence of laches
(CALIMLIM v. RAMIREZ, 204 Phil. 25, 34-35 [1982])

b. LITIS PENDENTIA or RES JUDICATA

c. PRESCRIPTION
Anido v. Negado, G.R. No. 143990, 10/17/01

Defense of lack of legal capacity to sue may be invoked in a later
motion to dismiss if the ground arose during the trial (OBANDO vs.
FIGUERAS, G.R. No. 134854, January 18, 2000)

2. A CLAIM (compulsory counterclaim & cross claim) barred (Sec. 2)
3. FAILURE TO ANSWER- may be declared in DEFAULT (Sec. 3)
a. REQUIREMENTS- motion, notice, proof of failure
o Notice requirement does not apply if defending party is not
known or he cannot be located-Nemo tenetur ad impossibile
(SANTOS, jr. V. PNOC Exploration Corp., GR 170943, 9/23/08

o Motion to lift not required if the defaulting partys standing has
been restored impliedly by grant of motions for extension to file
answer (Republic v. Sandiganbayan, Estate of Marcos, GR
148154, 12/17/07

b. EFFECT of default (par a)
Partial default in common cause of action (par . c)
o Court cannot render a partial judgment on those
defaulting defendants (Manguiat v. CA, GR 150768, 176,
8/20/08

a. REMEDIES vs. order of default:
o MOTION TO LIFT order of default. (RULE 9, Sec. 3, par. b)
15
Must comply with the requirements (DAVID v.
Gutierrez-Fruelda, GR 170427, 1/30/09

Ground of Fraud, Accident, Mistake & Excusable
negligence (FAME)
o Excusable negligence- due to absence of
counsel- SANTOS v. CARPIO, GR 153696,
9/11/06

Not a motion for reconsideration (Banco de Oro v.
Tansipek, GR 181235, 7/22/09)

o Certiorari (Rule 65) in case of grave abuse
Issuing a default order prior to the date of hearing of
default (SANTOS v. CARPIO, Gr 153696, 9/11/06

o MOTION FOR NEW TRIAL under Rule 37
o PETITION FOR RELIEF under Rule 38
o ACTION TO ANNUL under Rule 47
o APPEAL (MARTINEZ v. Republic, GR 160895, 10/30/06,
3
rd
div. J. Tinga)

b. EXTENT OF RELIEF- not exceeding the amount or different in kind
from what prayed for, now award unliquidated damages?
LIM TANHU v. RAMOLETE, 66 SCRA 425, 8/29/75
Recovery limited to what was prayed for AND PROVED.
(Republic v. Hidalgo, GR 161657, 10/4/07)
GAJUDO v. TRADERS ROYAL BANK, Gr 151098, 3/21/06

c. WHERE DEFAULT NOT ALLOWED (Rule 9, Sec. 3, par (e)

E. AMENDED and SUPPLEMENTAL pleadings (Rule 10)
1. FORM and KINDS of amendments-
2. When is AMENDMENT AS A MATTER OF RIGHT? (Sec. 2)
No need of a motion. (Alpine Lending Investors v. Corpuz,
November 24, 2006, 508 SCRA 45)
Amendment may involve a new cause of action or change in theory.
(RCPI vs. CA, Salvosa, 271 SCRA 286, 289 (1997). Or to correct an
inadequate allegation, even if a dismissal order is pending before the
appellate courts (Remington Industrial Sales Corp. v. CA GR
133657, 5/29/02).
But amendment cannot confer jurisdiction. (Rosario v. Carandang,
96 Phil. 845 (1955)
Complaint may still be amended as a matter of right as to non-
answering defendants (Siasoco, et al. v. Court of Appeals, 362 Phil
525, 533 (1999)
16

3. When is AMENDMENT WITH LEAVE of court? (After service of an
answer; or in case of the reply, anytime within 10 days after service)
May amendment change the theory of the case? VALENZUELA
v. CA, 416 Phil. 289 (2001)

4. Amendments: (Sec.5)
To CONFORM to evidence
o PANGANIBAN v. ROLDAN, GR 163053, Nov. 25, 2009
To AUTHORIZE presentation of evidence
o ROYAL CARGO CORP. v. DFS SPORTS UNLIMITED,
INC., GR 158621, 12/10/08; CO TIAMCO v. DIAZ, 75
Phil. 672 (1946)

5. Manner of filing amended pleadings (Sec. 7)
6. EFFECT of amended pleadings (Sec. 8)
7. SUPPLEMENTAL pleadings (Sec. 6)
o Supplemental pleadings cannot introduce new cause of action
(Leobrera v. Court of Appeals G.R. No. 80001, February 27,
1989, 170 SCRA 711)

o A party may not be declared in default for failure to answer a
supplemental pleading. CHAN v. CHAN, GR 150746, Oct. 15,
2008

8. DISTINCTION between amended and supplemental pleadings
Matters covered
Where a party has no cause of action at the commencement of
the action, the same cannot be cured by amended or
supplemental pleadings (SWAGMAN HOTELS vs. CA, G.R. No.
161135, April 8, 2005)

CHAPTER VIII. PERIODS
A. WHEN to file responsive pleadings (Rule 11)
15 days after service of summons or unless a different period is fixed.
Amended complaint -15 days from service if the amendment is a
matter of right; 10 days from notice of the order of admission if done
with leave.

30 days from receipt by the main office of the foreign corporation
where summons is made to govt. official designated by law to receive
the same(e.g. SEC, Supt. Of Banks, Insurance Commissioner); 15
days if summons served to resident agent

60 days or longer at the discretion of the court in summons served by
publication
17

Counterclaim or cross-claim 10 days from service of the answer

Third party complaint, etc. same rule as in complaint.

B. Court may EXTEND period of filing of a pleading or allow the filing BEYOND
THE PERIOD fixed under the rules. (Sec. 11, Rule 11)

C. COMPUTATION of time (Rule 22)
BPI v. CA, GR 142731, 6/08/06 (20 days TRO should include holidays)

BILL OF PARTICULARS (Rule 12)
1. When applied for; purpose (Sec. 1)
2. Action of the court (Sec. 2)
3. Compliance (Sec. 3)
4. Effect of non-compliance (Sec. 4)
5. Stay of period to file responsive pleading. (Sec. 5)

G. FILING and SERVICE of Pleadings, Judgments and other papers (Rule 13)
1. FILING-
Modes
Personally
Registered Mail- date of mailing is the date of filing

2. What papers are required to be FILED and SERVED?
3. SERVICE OF Pleadings/papers
Garrucho v. Court of Appeals, G.R. No. 143791, 14 January
2005, 448 SCRA 165;

Modes
Personal Service (Sec.6)
Service by Mail
o Registered mail (date of mailing-date of service)
o Ordinary mail
Substituted

4. SERVICE of JUDGMENTS etc.
Modes
Personal service
Registered Mail
o Present address, not last known address (BELEN v.
CHAVEZ, GR 175334, 3/26/08);
o Deemed effective after 5 days from receipt of the first
notice; QUELNAN v. VHF Phil. , GR 138500, 9/16/05

18
By publication in cases where the defendant was summoned by
publication and he did not appear in the case.

5. COMPLETENESS of SERVICE
The registry notice must indicate the nature of contents of the mail
matter in order to have constructive notice. (Cayetano v. Ceguerra
and Serrano, 121 Phil. 76 (1965);
8. PRIORITIES in Filing and Service-filing-
Solar Team Entertainment, Inc. v. Ricafort, 355 Phil. 404 (1998)
The filing of affidavit of service is not substantial compliance of Sec. 11, Rule
13, requiring Explanation in case the mode of service is other than Personal
service. MC Engineering Inc. v. NLRC, GR 142314, 6/28/01
Absence of Written explanation may be excused if the impracticability of
personal service is apparent from the pleadings (distance between the offices
of the lawyers) MACEDA v. MACATANGCAY, GR 164947, 1/31/06

9. PROOF of-
FILING
o Existence of record on file
o If no record on file-
! Personal-acknowledged copy
! By Registered Mail-registry receipt/affidavit
AMEX v. SISON, GR 172901, Oct. 29, 2008
SERVICE
o Written acknowledgment
o Official return of server
o Affidavit of party serving
! Registered mail- registry receipt/affidavit of service;
return card must be filed or the unclaimed letter with
sworn notice of the postmaster
! Ordinary mail-affidavit of service
8. What is a notice of LIS PENDENS; its effect?
In what actions applicable?
o According to Section 24, Rule 14 of the Rules of Court and Section
76 of Presidential Decree No. 1529, a notice of lis pendens is proper
in the following cases, viz.:
a) An action to recover possession of real estate;
b) An action to quiet title thereto;
c) An action to remove clouds thereon;
d) An action for partition; and
e) Any other proceedings of any kind in Court directly affecting the title
to the land or the use or occupation thereof or the buildings thereon.
(Magdalena Homeowners Association, Inc. vs. Court of Appeals, 184
SCRA 325, 329-330, April 17, 1990)

19
o May the Register of Deeds refuse to register an application for a
notice of lis pendens on the ground that the applicant does not have
any title or right of possession over the subject properties?
[Villanueva vs. Court of Appeals, 281 SCRA 298(1997)]

Matters in the NOTICE
Effect of NOTICE
How and grounds for cancellation
o Whether or not materials or workers lien may be the subject of lis
pendens Atlantic Erectors, Inc. v. Herbal Cove Realty Corp. GR
148568, 3/20/03
o The registered owners must be parties to the action (REYES v. CA,
GR 153263, 8/28/08

CHAPTER VII. SUMMONS (Rule 14)

A. Importance of service of summons?
Who issues and what are the contents of a summons? (Sec. 1-2)
Who may serve the summons? (Sec.3)
Return (Sec. 4)
Alias summons (Sec. 5)

Kinds of actions; service of summons
o In personam- GOMEZ v. CA, GR 127692, 3/10/04
o Quasi in rem (quieting of title)- SAN PEDRO v. ONG, GR 77598,
10/17/08.
o While the case involved claims against a vessel and is therefore an
action in rem, the claim for damages against the bank (a non resident
foreign corporation served with summons by publication) made the
action one in personam to that extent. (Banco de Brasil v. CA, GR
121576, 6/16/00)

o Appearance of counsel- BELEN v. CHAVEZ, GR 175334, 3/26/08

B. MODES OF SERVICE

1. IN PERSON (Sec. 6)priority- resort to other modes not allowed unless summons
could not be served in person within reasonable time.

2. SUBSTITUTED SERVICE (Sec. 7) if, for justifiable causes, summons could not
be served in person within reasonable time.

Nature and requisites: MANOTOC v. CA, 499 SCRA 21 [2006]
Sheriff can only employ substituted service after he makes an attempt at
personal service. His failure to serve by personal service must be reflected in
20
his RETURN, otherwise, the service is ineffective. (Hamilton v. Levy, GR
139283, 11/15/00)

! presumption of regularity in the performance of official functions by the sheriff
is not applicable in this case where it is patent that the sheriff's return is
defective (Venturanza v. CA, 156 SCRA 305)

! Not valid service without the return explaining why prior resort to service in
person was not made. (Guiguinto Credit Coop. v. Torres, GR 170926,
9/15/06; Samartino v. Raon et al., GR 131482, 7/03/02).

! Not valid if hastily and capriciously resorted to without actually exerting any
genuine effort to locate respondents.(Jose v. Boyon, GR 147369, 10/23/03)

! VALID even if made through security guard if sheriff was prevented from
entering subdivision through instruction of defendant and defendant failed to
controvert such a report by the sheriff.(ROBINSON v. Miralles, GR 163584,
12/12/06)

3. BY PUBLICATION
! To what cases applicable: Applicable only in in rem and quasi in rem (Jose
v. Boyon, GR 147369, 10/23/03);

! BUT in SANTOS, JR. vs. PNOC EXPLORATION CORPORATION, G.R. No.
170943, September 23, 2008, 1
st
Div., J. Corona- it was ruled to be
applicable in action in personam where the defendants whereabouts is
unknown.(Sec.14). Also see comments in MANGILA v. CA 387 SCRA 162)

! Requirements and Proof of service (including requisite affidavits), by
publication must be strictly complied with. (GONZALES v. CA, GR 150908,
1/21/05)

C. SERVICE OF SUMMONS IN SPECIFIC INSTANCES:
1. Entity without juridical personality (Sec. 8)
Corporation under MANCOM- Tysons Super Concrete vs. CA, 6/23/05
2. Prisoners (Sec. 9)
3. Minors and incompetents (Sec. 10)
4. Domestic private juridical entity (Sec. 11)
! Must be made on the officer named in the statute; (branch manager not
among them) Bank of Philippine Islands v. Santiago, G.R. No. 169116,
March 28, 2003, 519 SCRA 389

! Service of summons through the secretarial staff, NOT VALID (PARAMOUNT
INSURANCE v. A.C. ORDONEZ Corp., GR 175109, 8/06/08)

21
! No more substantial compliance rule, but restricted, limited and exclusive
(Mason v. CA, GR 144662, 10/13/03, CITING Villarosa v. Judge Benito,
370 Phil. 921 (1999)

! Improper service of summons renders the declaration of default void (MASON
v. CA, 413 SCRA 303)

! DEFECT CURED: But Improper service to legal secretary cured not only by
admission of actual receipt, but for asking affirmative reliefs in several motions
(Oaminal v. Castillo, Gr 152776, 10/8/03)

5. Foreign private juridical entity (Sec. 12)
Upon the resident agent (see also Sec. 123, Corp. Code)
If none, thru the government agency designated by law/rules (Sec. 128,
Corporation Code; substituted service, applicable in natural persons,
may be resorted to if there is failure of personal service-Pioneer
International LTD v. Guadiz, GR 156848, 10/11/07)
Any officer or agent found in the Philippines
As amended under SC AM No. 11-3-6, it provides for service of summons
to foreign corporations not registered (licensed) or has no resident agent,
similar to that of extra-territorial service to non-resident individuals not
found in the Philippines under Sec. 15.
o By personal service coursed through appropriate court in the
foreign country with assistance of DFA.
o By publication once in a newspaper of general circulation in the
country where the defendant may be found and by serving copy
of the summons and the court order by registered mail at the last
known address of the defendant
o By facsimile or any recognized electronic means that oculd
generate proof of service, or
o By such other means as the court may in its discretion direct.

6. Public corporations (Sec. 13)
7. Unknown defendant or whereabouts unknown-(Sec. 14)with leave, by publication

Available even in action in personam; Affidavit of Service need not be executed by
the clerk of court. SANTOS v. PNOC Exploration Corp., GR 170943, 9/23/08

8. Extra-territorial service (Sec. 15) in rem/ quasi-in-rem cases where the
defendant is non-resident and not found in the Philippines-
a).personal service effected out of the Philippines
b).publication and sending a copy to the last known address
c).in any other manner the court may deem sufficient.
Example- Registered mail. Licaros v. Licaros, GR No. 150656,
4/29/03

22
! Does not apply in action in personam like collection of money even if
attachment is prayed for if no property is actually attached. (ELMER
SINGAPORE v. DAKILA TRADING, GR 172242, 8/14/07)

9. Resident temporarily out of the Philippines (Sec. 16) with leave of court, MAY BE
SERVED through extra-territorial service. (Sec. 15) or Substituted Service (Sec. 7)

! Substituted service is the normal method (Montefalcon v. Vasquez, GR
165016, 6/17/08); Extra-territorial service only when substituted service is
not feasible; see also PCIB v. Alejandro, GR 175587, 9/21/07

D. PROOF OF SERVICE-(Sec.18); proof if service by publication (Sec.19)
Alias summons (Sec. 5)

E. Voluntary Appearance (Sec. 20)
The filing of a compulsory counterclaim in an ANSWER ad cautelam is not
voluntary appearance (ELMER SINGAPORE v. DAKILA TRADING, GR 172242,
8/14/07) COMMENT: By seeking relief under the counterclaim, is the
counterclaimant (defendant) not deemed to have submitted to the jurisdiction of
the court?

F. Additional notes: In case of amendment to the complaint, it does not require new
summons; In case of amendment while defendant is declared in default, new summons should be issued
on amended complaint as the new matters subject amendment cannot bind the defendant unless new
summons was served (ATKINS KROLL & CO. v. Domingo, 44 Phil 680

CHAPTER IX . MOTIONS
A. MOTIONS - in general (Rule 15)
1. Defined (Sec.1)
2. Requirements:
a. in writing, exception (Sec. 2)
b. contents & form (Sec. 3)
c. notice of hearing, exception (Sec.4)
should be served to ensure receipt 3 days before hearing (otherwise
the MR did not toll the reglementary period of appeal-CAMARINES
Corp. v. Aquino)

EXCEPTION: (1) where a rigid application will result in a manifest
failure or miscarriage of justice especially if a party successfully
shows that the alleged defect in the questioned final and executory
judgment is not apparent on its face or from the recitals contained
therein; (2) where the interest of substantial justice will be served; (3)
where the resolution of the motion is addressed solely to the sound
and judicious discretion of the court; and (4) where the injustice to the
adverse party is not commensurate with the degree of his
23
thoughtlessness in not complying with the procedure prescribed.
(SARMIENTO v. ZARATAN, GR 167471, 2/05/07

d. Notice addressed to all parties, date/time not later 10 days from filing (Sec.5)
e. proof of service (Sec. 6)
The affidavit of service by registered mail must be made by the
person who actually mailed; the registry return receipt must indicate
what was mailed (ROMULO v. PERALTA, GR 165665, 1/31/07
Exception: when the adverse party actually received a copy of the
motion and had opportunity to oppose the same. Vette Indusrial
Sales Co., Inc., v. Cheng, GR 170232 & 170301, 12/05/06

2. Motion day (Sec. 7)
3. Omnibus Motion Rule (Sec. 8, Rule 15)
4. Motion for leave-accompanied by the pleading or motion to be admitted (Sec. 9)

B. MOTION TO DISMISS (Rule 16)- upon initiative of the defending party
1. GROUNDS (Sec. 1) (code J2VC3 LRPEU

a. No jurisdiction over the person of defending party- May be waived by
voluntary appearance. No waiver of this defense even if invoked with the
other grounds.
Forfeiture proceedings- being in rem proceedings-
summons by publication may be allowed. RP v. Glasgow
Credit, GR 170281, 1/18/08

b. No jurisdiction over the subject matter - determined from the
allegations of the complaint and the law prescribing jurisdictions.

DAR v. Abdulwahid, GR 163285, 2/27/08
forum non conveniens- Raytheon v. Rouzie Gr
162894, 2/26/08

c. Improper venue
The court cannot motu proprio dismiss the case on improper
venue.(Rudolf Lietz Holdings, Inc. vs. Registry of Deeds of
Paranaque, GR No. 133240, 11/15/00). If erroneously denied, the
remedy is PROHIBITION (Enriquez v. Macadaeg, 84 Phil 674).
Objection impliedly waived if movant goes to trial (PICOP v. Samson,
11/28/75).

d. No legal capacity to sue The plaintiff is not in the full possession of his
civil rights, or he does not have the character or representation he claims.

If a plaintiff loses his capacity to sue during the pendency of a case,
the defendant should be allowed to file a motion to dismiss, even after
24
the lapse of the reglementary period for filing a responsive pleading
(Obando v. Figueras, GR 134854, 1/18/00).

Foreign Corporation- doing business in the Philippines without a
license cannot maintain a suit (Sec. 133, Corp. Code)

o Exception- Isolated transaction (AETNA Casualty & Surety
vs. Pacific Star Line, L-26809, 12/29/77)

e. litis pendentia- (or lis pendens or auter action pendant)

Litis pendentia applied even if same cause was pending in another
proceeding, not an action (before the LMB). Sherwill Dev. Corp. v.
Sitio Sto. Nino residents et al., Gr 158455, 6/28/05)

No litis pendentia if a proper after-acquired counterclaim is made the
subject of a separate action. (Instramuros Administration v.
Contacto, Gr 152576, 5/5/03)

Priority in time rule- Del Rosario v. Jacinto, 15 SCRA 15 [1965]
More appropriate action test or anticipatory test- Teodoro v. Mirasol,
99 Phil 150 [1956]

-considerations predominate in the ascending order of importance in
determining which action should prevail: (1) the date of filing, with
preference generally given to the first action filed to be retained; (2)
whether the action sought to be dismissed was filed merely to
preempt the later action or to anticipate its filing and lay the basis for
its dismissal; and (3) whether the action is the appropriate vehicle for
litigating the issues between the parties. Domatrix Trading v.
Legaspi, GR 155622, 10/22/09 (citations omitted)

f. res judicata
Bar by prior judgment [Rule 39, Sec. 47 (b)]
o Final judgment, jurisdiction over the subject matter and parties,
identity of parties, subject matter and causes of action between
the first and second action.
Conclusiveness of judgment [Rule 39, Sec. 47(c)]
o There is no identity of cause of action, and facts and issues
actually and directly resolved in a former action cannot be
relitigated in a subsequent action between the same parties.
! (Oropeza Mktg. Corp. v. Allied Banking Corp. , GR
129788, 12/03/02)
! RP v. YU et al., GR 157557, 3/10/06.- action for
reversion of an expropriated property.
25
! No identity of parties, subject matter and causes of
action (Ramirez v. CA, GR No. 133841, 8/15/03).

g. prescription (of actions)- (under Arts. 1139 to 1155, Civil Code)
dismissal on this ground will be considered if it appears on the complaint;
if not, then the resolution will be considered during the trial.

Heirs of Dolleton v. Fil Estate, GR 170750, 4/7/09
Lasquite v. Victory Hills, GR 175375, 6/23/09

h. Failure to state a cause of action-
Plaintiffs allegation that they are entitled to the proceeds of the
insurance states no cause of action because they, although legal
heirs of the deceased, are not the beneficiaries in the insurance policy
(Maramag v. Maramag, G.R. No. 181132, June 5, 2009).

Where there allegations show no violation of right yet (Danfoss, Inc.
v. Continental Cement Corp., Gr No. 143788, 9/9/05).

Sufficiency is based on the allegations of the complaint (Ceroferr
Realty Corp. v. CA, GR 139539, 2/5/02).

May consider other evidence on record (Nadela v. Cebu, 149627,
9/18/03).

i. Extinction- (prescription of real & other rights under Arts. 1117 to 1138 of
the Civil Code)
j. Statute of frauds (see Arts. 1403 (2), 1405 & 1406, Civil Code)
k. Condition precedent for filing the claim has not been complied with.
(lack of cause of action) such as:
No allegation as to earnest efforts exerted towards settlement among
members of the same family (Art. 150 Family code). Failure to allege
may be cured by amendment if there is actual efforts exerted towards
settlement (TRIBIANA vs. TRIBIANA, G.R. No. 137359, September
13, 2004).
o Does not apply where compromise is not allowed
such as civil status, validity of marriage or legal
separation, ground for legal separation, future
support, jrusideiction and future legitime. (Art. 2035,
Civil Code.
Non exhaustion of administrative remedies
! NIA v. ENCISO, GR 142571, 5/5/06
Non referral to the barangay lupon where the action requires
barangay conciliation. ROYALES v. IAC, 212 Phil. 432 (1984)

26
KATARUNGANG PAMBARANGAY (Local Govt Code, RA 7160,
Secs. 399-422)
Reason for barangay conciliation & requirement under the law
Cases covered-

Jurisprudence:
o DOES NOT APPLY to: where one of the parties is an
estate (Vda de Borromeo vs. Pogoy, 126 SCRA
217); Where there are several plaintiffs or
defendants, and one of them is the government or its
subdivisions or instrumentality, a confrontation should
still be undertaken among the parties. (Gegare v.
CA, 177 SCRA 417); does not apply to labor disputes
(Montoya vs. Escano, 171 SCRA 442);

o Where the complaint states that the address of the
plaintiff as Baguio post office, it does not
necessarily imply that plaintiff is a resident of Baguio
just like the defendant, and barangay conciliation is
not necessary. (Boleyley vs. Hon. Clarence
Villanueva, GR 128734, 9/14/99)

2. ACTION by the court- Resolution of motion-(Sec.3)
dismiss, deny, or order amendment;
Cannot defer resolution.
The resolution shall state clearly and distinctly and reasons therefore.
(Instramuros Administration v. Contacto, Gr 152576, 5/5/03)

3. EFFECT OF dismissal (Sec. 5)- remedies available (RPEU)
subject to the right of appeal, the dismissal on ground of res judicata,
statute of limitations, extinction of the claim or unenforceability (statute of
frauds), BARS the refiling.

4. Time to plead if motion is denied or amendment is ordered (Sec. 4) -
5. Pleadings grounds as affirmative defenses (Sec. 6)
A preliminary hearing on the defenses is still possible even if the defenses
were already included in a motion to dismiss (California and Hawaiian
Sugar Co. v. Pioneer Insurance and Surety Corp., GR 129273,
11/29/00)

F. DISMISSAL OF ACTIONS (Rule 17)
1. By the PLAINTIFF
a. by NOTICE- anytime before service of Answer or Motion for Summary
Judgment (Sec.1)
-without prejudice
27
-with prejudice (because of two dismissal rule or so expressed in
the notice or dismissal is premised on the fact of payment).
Notice of dismissal prevail over defendants motion to
dismiss (DAEL v. BELTRAN GR 156470 4/30/08

b. by MOTION (Sec.2)
dismissal limited to the complaint if counterclaim has been
pleaded before service of plaintiffs motion; counterclaim to be
prosecuted in a separate action UNLESS within 15 days from
service of the motion, defendant manifests his preference to
prosecute his counterclaim in the same action. Dismissal
WITHOUT PREJUDICE unless otherwise specified in the
order.

2. Due to the PLAINTIFFS FAULT (Sec.3)- initiative of the adverse party or court
a). Plaintiffs failure to appear during presentation of evidence in chief
b). Failure to prosecute action for unreasonable length of time
c). Failure to comply with the rules
d). Failure to comply with any order of the court
Filinvest v. CA GR 142439 12/6/06

4. Counterclaim may be prosecuted in the same or separate action.
Tracing the history and rationale for the rule (PINGA v. Heirs of
Santiago GR 170354, 6/30/06)
5. Rule applies to dismissal of the counterclaim, cross claim or third party complaint
(Sec.4)

CHAPTER X. PRE-TRIAL PROCEEDINGS; MEDIATIONS, JUDICIAL DISPUTE RESOLUTIONS
A. Pre-trial (Rule 18)
Read: PRE-TRIAL AND USE OF DEPOSITION-DISCOVERY PROCEDURES, AM No.
013-1-09-SC 7/13/04
B. Who should initiate and when
C. nature and purpose (AIAFWCJSO) or WAIS
2
CAJO
D. notice- who issues and to whom addressed
appearance of parties; effect of failure to appear- Absence of counsel (Paredes et al.,
v. Verano, GR 164375, 10/12/06)
MR must show grounds (FAME) for failure to attend (CIRCLE Financial Corp v. CA,
GR 77315, 4/22/91)
E. pre trial briefs; contents (WAISCD
2
); effect of non submission
F. Court Annex Mediation (CAM)
G. Judicial Dispute Resolution (JDR)
H. Proceedings taken if all mediation fails
i. Referral to COC for preliminary conference
ii. Continuation of the pre-trial by the judge
I. record of pre-trial

28
CHAPTER XI. TRIAL (Rule 30)

A. Interventions (before judgment) (Rule 19)
NORDIC ASIA v. CA, GR 111159, 7/13/04
by a third party claimant (FBDC v. Yllas lending corp. GR 158997, 10/6/08
Exception: Even after judgment, if the intervenor is an indispensable party
(Looyuko v. CA, GR Nos. 102696,102716,108257, 120954, 7/12/01); but not a
transferee pendent lite (SLDC v. CA, Quisumbing, GR 106194, Jan. 28, 1997)

B. Calendar of cases (Rule 20)

C. Subpoena & subpoena duces tecum (Rule 21)
1. by whom issued; form and contents
2. Quashing a subpoena
3. Service
4. Personal appearance in court
5. Compelling attendance & contempt

D. MODES OF DISCOVERY
1. DEPOSITIONS
READ:
Deposition of witnesses may be taken even if such witnesses will be presented
during the trial (HYATT Industrial Mfg. Corp. v. LEY Construction, GR 147143,
3/10/06)
Deposition outside the country may be refused if the evidence sought would only
corroborative or cumulative (PEOPLE v. WEBB, GR 132577 August 17, 1999)
Witness is outside the Philippines at the time of offer (Sales vs. Sabino, GR No.
133154, 12/9/05)

a. Pending Actions (rule 23)
1). WHEN taken with leave after jurisdiction acquired over the defendant or
property or without leave after service of the answer
Deposition before service of answer (but after jurisdiction is acquired over
the defendant or res) requires showing of unusual circumstances to
justify leave of court (REPUBLIC vs. SANDIGAN, GR 112710, 5/30/01)

2). SCOPE- on all relevant matter
3). MANNER (oral examination or written interrogatories)
Deposition may not be taken upon order of the court for good cause
shown (Sec.16) NORTHWEST AIRLINES vs. CRUZ, GR 137136, 11/3/09

4). USE of deposition
To contradict or impeach a witness
For any purpose
o if the deponent is a party or officer of a juridical party
29
o if the witness is dead, or resides more than 100 kms away or is
out of the Philippines (unless procured), or unable to attend due
to age, sickness, infirmity, or imprisonment; or the party offering
the deposition is unable to procure a subpoena; or under
exceptional circumstances

5). EFFECT:
a) Effect of taking deposition of a witness does not make him a witness
b) Effect of using depositions (other than for impeachment) except for a
party, the deponent becomes a witness of the proponent

6). BEFORE WHOM TAKEN (domestic & foreign
-commissions, letters rogatory
7). record of examination; oath; objections
8). motion to terminate
9). DEPOSITION UPON WRITTEN INTERROGATORIES
-Serve written interrogatories; with notice to all parties
-within 10 days to serve cross interrogatories
-within 5 days to serve re-direct
-within 3 days to serve re-cross

[t]he protracted delay in the litigation at petitioner's instance coupled with
the belated and unsubstantiated allegations of illness and threats to
petitioner's life, more than sufficient reasons for the trial court to deny
petitioner's motion to take deposition by written interrogatories
(PAJARILLAGA vs. CA, GR 163515, 10/31/08)
interrogatories upon witnesses out of the country by a foreign corporation
(SAN LUIS v. Hon ROJAS GR 159127, 3/03/08)

b. Before or Pending Appeal (rule 24)
1) Deposition (before action)- to perpetuate a testimony
court petition at residence of expected adverse party
contents of petition
Notice (with petition) to the adverse party
-20 days before the hearing, the court issues notice to the parties
and prospective deponents served as in summons
order
2). Deposition pending appeal (after taking appeal or before taking an appeal)

2. Interrogatories to Parties (Rule 25); REPUBLIC v. SANDIGAN, 204 SCRA 213
When same conditions as in Sec. 1 of Rule 23
Written interrogatories (only one set for every party) addressed to a party
Answers- sworn & within 15 days
Scope and use same as in Sec. 2 of Rule 23
Effect of failure to serve a party not served may not be compelled to give
testimony in open court and deposition pending appeal
30

3. Admission by adverse party (Rule 26)
When after issues are joined
Request for admission of genuineness of document and truth of any fact
(both must be relevant and material)
1. Request must be served on the party (BRIBONERIA v. CA, 216)
SCRA 607 (1992), not only to counsel (Duque v. CA, GR 125383,
7/02/02)
2. Counsel may answer the request for admission (Lanada vs. CA et al.,
GR no. 102390, 2/1/02)
3. No need of second denial (Po v. CA., 164 SCRA 668, 670, 1988)
4. It is the law, not the court, that determines the consequences of failure
to make or allow discovery (DIMAN vs. ALUMBRES, GR 131466,
11/27/98)

4. Production or inspection of documents or things (Rule 27)
-upon motion in a pending action
-order any party to produce and permit the inspection and copying or
photographing of any documents, papers, books, etc. or order any party to
permit entry upon property in his possession for inspection, measuring,
surveying or photographing.
Must specify with particularity the documents to be produced
(SOLIDBANK vs. GATEWAY, GR 164805, 4/30/08)
Cannot compel production of privileged matters, including trade
secrets (AIR PHIL. CORP vs. PENNSWELL, Inc. GR 172835,
12/13/07)

5. Physical and mental examination of persons (Rule 28)
-when physical and mental condition of a party is in issue
-Order upon motion
-Report of findings
If party examined requested and given a copy of the report, the
other party is entitled to receive a previous or subsequent
examination report; delivery may be compelled on motion and if
physician refuses his testimony may be excluded if offered at the
trial.
If party examined obtains a report, or takes the deposition of the
examiner, he waives any privilege in that action or in any other
involving the testimony of every other person who examined or
thereafter will examine him.

6. Effect of Refusal to comply with Modes of Discovery (Rule 29)
a. contempt of court- refusal to be sworn or to answer when directed by the
court in which the deposition is taken

31
b. Refusal to answer questions (under rule 23,24 & 25) when directed by the
court or produce any document or permit entry pursuant to an order under
Rule 27 or to submit to physical or mental examination under Rule 28, the
court may:

-matters asked, character or description of thing or land, or the
contents of a paper, or physical or mental condition or any
designated facts shall be taken as ESTABLISHED in accordance
with the claim of the party obtaining the order.

-disallow the disobedient party to support or oppose claims or
defenses or prohibiting him from introducing evidence

-strike out pleadings/parts thereof; or staying proceedings until
order is obeyed; dismiss the action or proceeding; or render
judgment by default against the disobedient party

-in LIEU or ADDITION, order ARREST of the party or his agent
EXCEPT an order to submit to physical or mental examination.

c. Willful Failure of a party to attend a deposition or serve answers
(rule 25) -
Strike out all/part of his pleadings
Dismiss action or proceeding
or enter default judgment

E Trial proper (Rule 30)
1. Postponements:
a. due to absence of evidence
b. due to illness of party or counsel.
2. Order of trial
3. Agreed statement of facts
4. Statement of judge
5. Judge to receive evidence; delegation to clerk of court
a. When may be delegated to the clerk of court
b. Clerk cannot make findings of facts and law; nor rule on objections.

G. Consolidation & Severance (Rule 31

F. Trial by Commissioner (Rule 32)
Power of commissioner is defined in the order.
Subject to the limitations imposed by the court, the commissioner may rule on
objections and make findings of fact and law. He may also issue subpoena and
subpoena duces tecum.
Action of the court on the report of commissioner.

32
G. Demurrer to evidence (Rule 33)
When- after the presentation of the evidence by the claimant, the defending party
before presenting his evidence, may move for demurrer to evidence on the ground
that based on the evidence and the law, claimant is not entitled to relief.
Effects: if denied, defendant can present evidence. But if granted, and dismissal
is reversed on appeal, defendant loses the right to present evidence

CHAPTER XII. JUDGMENTS

A. Judgment on the pleadings (Rule 34) on motion by the claimant party, when the
answer fails to tender an issue or otherwise admits the material allegations in the complaint

Judgment is possible even with a pending third party complaint- (Narra Integrated Corp.
v. CA, GR 137915, 11/15/00)
Judgment on the pleadings still possible even if the movant is the defending party; in this
case, actual as well as moral, exemplary and attorneys fees were awarded.
(SUNBANUN v. GO, GR 163280, 2/2/10 2
nd
div. Carpio, J.)

For having prayed for a judgment on the pleadings, plaintiff is deemed to have admitted the truth of the
defendant's denial on the alleged damages and to have rested his motion for judgment on those
allegations taken together with such of his own as are admitted in the pleadings. (GALOFA v. NEE
BON SING, 22 SCRA 48 [1968])

B. Summary judgments (Rule 35) on motion (with at least 10 day-notice) of the claimant
after service of the answer, or by the defending party, at anytime, in claim, counterclaim, cross claim, third
party complaint, including an action for declaratory relief,

MARCELO v. SANDIGANBAYAN, 531 SCRA 385 (proper)
When there are disputed facts, the issues cannot be tried by mere affidavits. (Solid Bank
Corp. v. CA, et al., GR 120010, 10/3/02)
RIVERA v. SOLIDBANK, 487 SCRA 512

C. Judgments, Final Orders and entry (Rule 36)
1. Meaning of judgments and final orders
2. Formal Requirements
3. Finality or entry
4. Final order distinguished from Interlocutory orders
5. Several judgment / Separate judgment

CHAPTER XIII. REMEDIES AGAINST A JUDGMENT

FRESH PERIOD RULE:
Neypes vs. CA, GR 141524, 9/14/05;

33
A. RECALL OR REVIEW BY THE SAME COURT OF ITS OWN JUDGMENT OR ORDER

1. MOTION FOR NEW TRIAL OR RECONSIDERATION (Rule 37) within the time of taking
an appeal and filed with the same case.

Period within which to file: rule-cannot be relaxed; exceptions(Delos Santos v. Elizalde,
GR 141810& 141812, 2/02/07)

MOTION FOR NEW TRIAL
GROUNDS: FAME & Newly discovered evidence
o Extrinsic Fraud
o Accident
o Mistake could not have been guarded against by ordinary prudence
(VIKING INDUSTRIAL CORP. vs. CA, G.R. No. 143794, July 13,
2004).
o Gross negligence of counsel amounted to denial of due process
(MULTI-TRANS AGENCY vs. ORIENTAL ASSURANCE, GR
180817, 6/23/09

REQUIREMENTS: Verified Motion, Affidavit of merit, In case of newly
discovered evidence, the affidavit of the witness or the authenticated copy of
the document.

MOTION FOR RECONSIDERATION
GROUNDS: Excessive damages, Insufficient evidence, Contrary to the facts
and law

NOTES:

1. A motion for reconsideration is not required as a condition precedent for an
appellate review BUT is required in cases involving custody of minors,
declaration of nullity or annulment of marriages.

2. No second MR by party against a judgment or Final order

3. No second Motion for New Trial UNLESS the ground was not existing and
available during the pendency of the first motion.

4. Pro-forma motions: when it does not comply with the specific requirements of
motion in general and in particular

2. RELIEF FROM JUDGMENT, FINAL ORDER OR PROCEEDING (Rule 38)
(FAME)
Not a proper case (Gomez v. MOntalban, GR 174414, 3/14/08
34
Transferor pendente lite has the legal personality to file the petition (Dela Cruz
v. Quizon, GR 171961, 11/28/08

Rule 38 applies only to MTC and RTC. (Mesina v. Meer, GR 46845, 7/2/02);
Not available remedy before the SC (PURCON, JR. vs. MRM PHIL., GR
182718, 9/26/08;

Relief against a final and executory judgment. Samartino v. Raon et al., GR
131482, 7/03/02;

a. When (within 60 days from knowledge or 6 months from entry of judgment or
taking of the proceeding)
Both periods must concur (Quelnan v. VHF Philippines, G.R. No. 138500,
September 16, 2005, 470 SCRA 73)
The 60-day period is reckoned from the time the party acquired knowledge of
the order, judgment or proceedings and not from the date he actually read the
same. Escueta v. Lim, GR 137162, 1/24/07

b. Subject: Judgment, Final Order or Proceeding or an order denying an appeal
c. Grounds: FAME
Extrinsic fraud: committed by counsel (BANG vs. SY, GR 179955, 4/24/09)
Excusable Negligence: Negligence of counsel to pay the docket fee 9 days
after the expiration of the period of appeal not excusable. Ruiz v. Santos, GR
166386, 1/27/09

d. Effect if granted- judgment vacated as if a timely motion for new trial or
reconsideration was granted and trial de novo shall proceed. If the petition is
directed against a denial of an appeal, the appeal is given due course.

B. REVIEW BY ANOTHER COURT

Appeal from a denial of a Motion for execution of the judgment (VALDEZ v. FINANCIERA
MANILA, INC., GR 183387, 9/29/09) NOTE: this ruling seems questionable.

Appeal from the Order denying a Motion for Reconsideration (Quelnan v. VHF
Philippines, Inc, G.R. No. 145911, July 7, 2004)

1. BY APPEAL

EFFECTS OF:
Perfection of appeal
Loss of jurisdiction
Residual jurisdiction- extent

a. ORDINARY APPEAL
1) Notice of Appeal (appeal period - 15 days)
35
2) Notice of Appeal PLUS RECORD ON APPEAL in special proceedings, cases
involving multiple appeals. (appeal period- 30 days)

b. PETITION FOR REVIEW
i. Petition for Review (rule 42)
ii. Petition for Review (rule 43)

c. PETITION FOR REVIEW ON CERTIORARI (Rule 45)
Docket fees -Payment of docket fee is now mandatory and jurisdictional (Lazaro vs.
CA, GR 137761, 4/6/00); and must be paid within the period to appeal (Oriental
Assurance corp. vs. Solidbank Corp., GR no. 139882, 8/16/00)

-Dismissal of the case on appeal is discretionary, and the erroneous assessment by the
clerk of court is a justifiable reason. (Yambao v. CA, GR No. 140894, 11/27/00)

-After the notice of appeal was filed, the court no longer has jurisdiction to entertain a
motion for new trial. Heirs of Antonio Pael v. Domingo, GR 133547, 2/10/00;

BUT THERE COULD BE SIMULTANEOUS RESORT TO SUCH REMEDIES- RF
Navarro & Co. vs. Vailoces, GR 102313, 7/12/01

Issues raised may not be raised for the first time on appeal. Except: In consonance
with the demand of justice- (Sy Chin v. CA, GR 136233, 11/23/00

EQUITY JURISDICTION:
PCI Leasing and Finance, Inc. v. Milan, GR 151215, 4/5/10

a.. Appeal from MTCs to RTC (Rule 40)
If the RTC, on appeal from a judgment of the MTC dismissing the case on
jurisdictional grounds, reverses the dismissal, cannot decide the case on the
merits, but must remand the case to the MTC for further proceedings. Herrera
v. Bollos, GR 138258, 1/18/02

b. Appeal from RTC to CA (Rule 41 & 42)
See AM No. 07-7-12-SC 12/4/07 on amendments

c. Appeal from agencies, boards, tribunals to CA (Rule 43)

As a rule, the tribunal whose decision is subject of review should not be impleaded; neither
should it intervene. However, in case of exoneration, it may appeal from such exoneration.
Civil Service Commission v. Dacoycoy 306 SCRA 425 (1999).

It is a well-known doctrine that a judge should detach himself from cases where his
decision is appealed to a higher court for review. The raison dtre for such doctrine is the
fact that a judge is not an active combatant in such proceeding and must leave the
opposing parties to contend their individual positions and the appellate court to decide the
36
issues without his active participation. When a judge actively participates in the appeal of
his judgment, he, in a way, ceases to be judicial and has become adversarial instead.
[Pleyto vs. Philippine National Police Criminal Investigation and Detection Group (PNP-
CIDG), 538 SCRA 534(2007)]

d. Appeal from RTC to SC (Rule 45)
e. Appeal from CA to SC (Rule 45) on pure question of law
o An appeal on the dismissal on the ground that complaint failed to state
a cause of action can only raise question of law. Hence the appeal to
the CA is improper. (China Road and Bridge Corp. v. CA, GR
137898, 12/15/00)

EXCEPTION to PURE QUESTION OF LAW requirement: when there is
misapprehension of facts or failure to notice certain relevant facts BPI Family
Savings Bank, Inc. vs. CA, GR 122480, 4/12/00; or when there is conflicting
findings of facts of the trial court and the appellate court. Ladinon v. CA, GR
122973, 7/18/00

2. BY INDEPENDENT ACTION
a. Direct attack
i). ANNULMENT OF JUDGMENT (Rule 47)
-filed with RTC involving a decision of the MTC
-filed with CA involving a decision of the RTC

Grounds: Lack of jurisdiction
Extrinsic Fraud
o Gross negligence of counsel - as extrinsic fraud.
Heirs of Antonio Pael v. Domingo, GR 133547,
2/10/00

NOTES:
1. Could not be resorted to if other remedies under the law
are available or were not availed without sufficient
justification (Arcenas v. Queen City Development
Bank, GR 166819, 6/16/10)

ii). Special Civil Action of Certiorari

b. Collateral attack- for being nullity apparent on the face of the judgment

CHAPTER XIV. ENFORCEMENT OF JUDGMENTS (Rule 39)
A. Kinds of execution:
1. Final judgment, execution of-
2. Pending appeal, execution of judgment - Upon good grounds:
o deterioration of vessel-(Yasuda v. CA, GR 112569, 4/12/00)
37
o A corporation which obtained a favorable judgment cannot move for execution pending
appeal on the ground of impending bankruptcy unlike individuals. (Diesel
Construction Co.,Inc. v. Jollibee Foods Corp. ,GR 136805, 1/28/00)
o Court of Appeals cannot order execution pending appeal of its own decision, because
it is not provided in the rules. (Heirs of the late Justice Jose B.L. Reyes v. CA, GR
135180-81, 8/16/00)

Foreign judgment:
Asivest Merchant Bankers (M) Berhad v. Ca, GR 110263, 7/20/01;
Garcia v. Recio, GR No. 138322, 10/2/01

B. Form and contents of the writ
i. Judgment is not confined to what appears on the face of the decision, but extends as well
to those necessarily included therein or necessary thereto (TUMBAY v. SORO, GR
152016, 4/13/10, citing DHL Phil. Corp. United Rank and file Asso. V. Buklod ng
Manggagawa ng DHL Phil. Corp., 478 Phil. 842, 853); PEREZ v. EVITE, 111Phil 564
(1961)
C. Execution of money judgment
A terceria or third party claim is not necessary in filing a separate action (Naguit v. CA.,
GR 137675, 12/5/00)
D. Execution of judgment for specific acts
E. Execution of special judgments
F. Return of the writ
G. Effects of judgment

38

CHAPTER XV. PROVISIONAL & OTHER REMEDIES
A. Preliminary Attachment (Rule 57)
When available and in what cases may it be availed

B. Preliminary Injunction (Rule 58)
Prior service of summons or raffling may be dispensed with if could not be served despite
diligent efforts. Gonzales v. State properties Corp. GR 140765, 1/25/01

No clear right-
PEZA v. CARANTES, GR 181274, 6/23/10
BPI v. CA, GR 142731, 6/08/06

C. Receivership (Rule 59)
D. Replevin (Rule 60)
E. Support pendente lite (Rule 61)
F. Others: Notice of Lis Pendens

PART II . SPECIAL CIVIL ACTIONS

RULE 63.
To determine which court has jurisdiction over the actions identified in the
second paragraph of Section 1, Rule 63 of the Rules of Court, said provision
must be read together with those of the Judiciary Reorganization Act of 1980,
as amended. [Malana vs. Tappa, 600 SCRA 189(2009)]

A cursory examination of the foregoing averments readily shows that the
private respondents petition is indeed, as captioned, one for quieting of title
and nullification and cancellation of title. Thus, the private respondents assert
therein that the issuance to petitioners of a new owners duplicate copy of
OCT No. 4331, which was procured by fraudulent representation, casts a
cloud on the titles of the private respondents and, therefore, should be ordered
cancelled. [Heirs of Susana De Guzman Tuazon vs. Court of Appeals, 420
SCRA 219(2004)]

A. Certiorari, Prohibition, Mandamus (Rule 65)
Is a motion for reconsideration filed beyond 15 days from receipt of an interlocutory
order considered filed out of time? Lanada vs. CA et al., GR no. 102390, 2/1/02; but
although the 60-day period will be counted from receipt of denial of the first motion for
39
reconsideration, and not from the denial of the second or third motion for
reconsideration. (San Juan, Jr. v. , 497 SCRA 410[2006])
Prohibition mayor acted in excess of his jurisdiction (City Engineer of Baguio v.
Baniqued, GR 150270, 11-26-08)

B. Quo warranto (Rule 66)
C. Expropriation (Rule 67)
D. Foreclosure of REM (Rule 68)
E. Partition (Rule 69)
F. Forcible Entry (Rule 70)
G. Unlawful detainer (Rule 70)
Allegations sufficient to show unlawful withholding. Barba v. CA, GR 126638,
2/6/02

SEE: RULE ON SUMMARY PROCEDURE -

Jurisprudence:
Counter-affidavit may constitute an ANSWER to the complaint JALIGUE v.
DANDAN, GR 148305, 11/28/03

Prior possession must be alleged by the plaintiff in a FORCIBLE ENTRY case.
Varona et al., v. CA, Lim, GR 124148, 5/20/04

Mere invocation of tolerance in an ejectment case does not make it proper
proceedings before the MTC. (Go, Jr. vs. CA, GR No. 142276, 8/14/01)

A certiorari proceedings, although not allowed under the Rules on Summary
Procedure, may be resorted if there is a procedural void created by an unlawful order
of the trial court. (Go et al., vs. Ca GR No. 128954, 10/8/98)

Similarly, a Motion for Reconsideration for failure of the plaintiff to appear during the
preliminary conference is not prohibited. What is prohibited is a motion for
reconsideration AFTER TRIAL. (Lucas v. Fabros, mtj-99-1226, 1/31/00); or motion
for reconsideration of an order of dismissal for lack of jurisdiction (JOVEN v. CA, GR
80739, 8/20/92)

There could be no preliminary hearing on the affirmative defense contained in an
ANSWER under the Rules on Summary Procedure to avoid unnecessary delay. (Del
Rosario v. CA, 241 SCRA 519)

A motion for extension of time to file an answer under the Rules on Summary
Procedure is dilatory in nature. (Gachon vs. Devera, et al., GR 116695, 6/20/97)

A position paper filed late may not be admitted. (Terana v. Sagun, 587 SCRA 60
[2009])

40
As a rule, an ejectment suit is not abated by a quieting of title filed with the RTC.
EXCEPTION: see Amagan v. Marayag, GR 138377, 2/28/00

Ownership as a defense, not a case of -. Lacap v. Lee, GR 142131, 12/11/02

The Regional Trial Court, except in execution pending appeal, has to remand to the
court of origin for execution of the judgment and cannot issue the writ of execution
itself. (Jason v. Ygana, RTJ-00-1543, 8/4/00)

An ejectment case may be initiated to recover an encroachment (Benitez v.
CA/Macapagal, GR 104828, 1/16/97)

G. Contempt (Rule 71)
1. Direct or Indirect
a. distinctions as to commission
b. distinctions as to how initiated
c. distinctions as to remedies

2. Criminal or Civil
a. distinctions as to punishment
b. distinctions as to how initiated

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