CIVIL PROCEDURE - JUDGE MARINAS
> The moment that a plaintiff has a COA, can he now proceed
JUNE 13, 2013
CIVIL ACTION
>Civil Actions: Sum of Money, Recovery of Possession,
Forcible Entry, Damages, Specific Performance, etc.
>Multiple Issues Multiple parties
>Parties: Plaintiff (Brings the Action) and Defendant (One
whom action is brought against)
>Whoever is aggrieved must have a Cause of Action (COA)
>COA Elements:
1. Plaintiff (petitioner) has a Right
2. Defendant (respondent) has the obligation to respect
said Right
3. Defendant violates the plaintiffs Right
4. The violation causes damages to the plaintiff
>Eg 1. Plaintiff and defendant enter into a contract of loan. The
defendant executes a promissory note (which states that loan is
due on May 1, 2013). Does the plaintiff have a right? Yes - the
right to be paid. The plaintiff parted with his money and thus
has the right to be paid. (Proof is promissory note which the
defendant executed). The defendant has the obligation to
respect said right. Thus, defendant has the obligation to pay.
(Considering that he executed the PN). Upon due date, no
payment was made by defendant. Come weeks, still, no
payments were made. Is there a violation of the right of the
plaintiff? YES, since the plaintiff has the right to be paid.
Violation of plaintiffs right caused damage (plaintiff loses
money). Are all the elements of COA present? If yes, then there
is a COA.
>Eg 2. Loan Due May 1, 2013. Secured January 1, 2013.
March 1, 2013, the plaintiff already made a demand for the
payment. Defendant asserts due date on PN so he does not pay
plaintiff. Plaintiff files a case. Is there a COA? None. Plaintiff
has the right to be paid, and defendant has the obligation to pay,
but the latter has not yet violated the Plaintiffs right because
said violation will only come if on the due date there is no
payment. Due date is May 1, 2013, not March 1, 2013. Thus,
if there is no violation, then how can it cause damages? Thus,
plaintiffs case can be dismissed for lack of cause of action.
Elements 3 and 4 of COA are not satisfied.
to court? NOT YET. WHY? Remember the law on LGC (PD
1508) as to referral to the Barangay Lupon. Barangay Lupon:
Lupon Chairman (Brgy Capt). Mode by which the Lupon
gathers the plaintiff and defendant to forge a
settlement/agreement to prevent clogging of dockets of court.
Even criminal procedures penalty below 1 year and fine of
P5000.00. In civil cases- ALL CASES regardless of what
nature will have to be referred to the Brgy. Lupon.
>If no settlement is reached in the Brgy, the Brgy issues a
Certificate to file action. This is to be attached in the complaint
(pleading) that is to be filed before the Court. That this case
was referred to the Brgy but no settlement has been reached, the
Cert to file action is hereto attached as Annex XXThis
shows compliance to referral to the Lupon.
>What is the effect if there is failure of referral to Lupon and
there are no exceptions to nonreferral? Action is dismissible
under Rule 16, Par J Failure to comply with the condition
precedent Referral to the Lupon is a condition precedent
(Grounds for Motion to Dismiss are contained in Rule 16 Pars.
A-J). The only ground where nonreferral to the lupon is clearly
stated as a ground is found in the Rules of Summary Procedure
(Rule 70 pa, under Forcible Entry and Unlawful Detainer)
EXCEPTIONS FROM REFERRAL TO LUPON
1) FIRST EXCEPTION:
>Parties are residents of different Cities or Municipalities. Eg.
Plaintiff is a resident of Brgy. ABC, and so is the defendant.
Should they refer their problem to the Lupon? Yes. Supposing
plaintiff is a resident of Brgy. ABC and respondent is a resident
of Aurora Hill, should they bring the case before the Lupon?
Yes. Even if belonging to different Brgys in the same City or
Municipality, referral to the Lupon is still a must. Supposing P
is from Baguio and D is from LTB, must they still refer the case
to the Lupon? No more. This is an exception.
>Take note that no lawyer must appear as a counsel before the
Lupon. What if the plaintiff or any of the parties is incapable/
is disabled/ is incapacitated? Then can be assisted by a next of
kin who is not a lawyer. Supposing there is an exception (eg.
Residents of different Cities/ Municipalities), then state that
this case has not been referred to the Lupon because plaintiff
and defendant are residents of different Cities/Municipalities.
2.) SECOND EXCEPTION:
>One of the Parties is the Government or any subdivision or
instrumentality thereof. If you are suing the Govt,
Municipality, or Brgy, then bring the action to Court. State in
the complaint that, This has not been referred to the Lupon
because one of the parties is a Govt
institution/subidivision/instrumentality
3.) THIRD EXCEPTION:
>One of the Parties is an Artificial Person (A creation of law,
eg. Corporation, association, partnership, organization, etc.).
State in the complaint the above reason.
4.) FOURTH EXCEPTION:
If the properties subject of the case are located in different
Cities/Municipalities (Real Properties)
VENUE
1.) BARANGAY:
>If parties reside in different Brgys (Same City/Municipality),
then complaint may be brought before either Brgy Lupon
(under the law, any of the 2 Lupons).
>For enforcement of settlement, it is much better that said
complaint is brought before a defendants Brgy. Eg. Plaintiff
(Brgy. ABC) and Defendant (Aurora Hill). May 1, 2013,
demand letter was ignored. Plaintiff brings case before Aurora
Hill Lupon. Lupon calls for the defendant and a settlement is
reached. Plaintiff allows defendant to pay in installment (1st
installment June 10, and every 10th of the month thereafter
P20,000.00). Defendant binds himself to do so. Settlement
signed by plaintiff and defendant. (The moment a settlement is
reached in the Brgy, it becomes final and executory from the
execution of the settlement within 10 days. If neither would
question or repudiate the settlement after the end of the 10-day
period, the agreed settlement becomes final and has the binding
force and effect of a decision between the parties. If there is
repudiation, then get a Certificate of no action and file the case
in court.
>Whose responsibility is it to enforce the settlement in the
Brgy? The Lupon. The Lupon will find it easier to enforce
settlement against their own constituent and thus avoid
inconvenience and delay.
>Another scenario. Eg. Defendant pays for 2 months but then
fails to pay later. The Brgy Lupon has 6 months to enforce
settlement. 6 months went by and still no payment. Brgy. Is
helpless and cant enforce. What is the Remedy of plaintiff?
He can now go to Court. File for the Enforcement of a Brgy
Settlement. (Like implementing a decision). If the COA arises
from the business place, workplace, or school, the case can be
filed the the Lupon where said places are located.
2.) COURT (with COA)
>Jurisdiction- Authority of a court to hear and determine a case.
Authority is given by the law (BP 129 as amended by RA 7651).
Jurisdiction can either be Original or Appellate. Original-
Court can hear it for the first time. Exclusive Original
Jurisdiction- A Court that can solely hear a case. Concurrent
OJ- Several Courts can hear a case. Appellate- Case has been
decided by another court but a second look is given
LEVELS OF COURTS
1.) FIRST LEVEL COURTS(MTC)- Formerly Justice of
Peace. They all have the same jurisdiction
>Municipal Trial Court (MTC) In capital towns. Municipal
Circuit Trial Court (MCTC) - Two or more adjoining
Municipalities are circuitized and grouped together where there
is only one Court, located in the town/municipality closest to
civilization or the town that has the biggest population. (MCTC
of Municipality A, Municipality B, and Municipality C, etc).
Metropolitan Trial Court (MeTC) - Only in Metro Manila (only
one court with several branches). Municipal Trial Court in
Cities- One in each city with several branches
2.) REGIONAL TRIAL COURT (RTC)- Formerly referred
to as the CFI
>Country is divided into Judicial Regions (Baguio belongs to
the 1st Judicial Region). One RTC for each Judicial Region,
with several branches.

3.) COURT OF APPEALS (CA)- Formerly IAC
>One per major island. 69 justices in the CA (1 division = 3,
23 all in all). Head of CA is the Presiding Justice
4.) SUPREME COURT (SC)
>15 justices. Can sit en banc, in different divisions depending
on what is being decided. Chief Justice of the Philippines
JUNE 19, 2013
FIRST HOUR
>Original- Covers both Exclusive and Concurrent and
Appellate Jurisdiction
>In cases of Concurrent Jurisdiction, we apply the Doctrine of
Hierarchy of Courts, which simply means that when Courts
exercise concurrent jurisdiction, then file it before the lower
court (Respect for the higher courts, lesser expenses (cheaper),
and most important reason is that it affords more remedies of
appeal.
>There is only one case under the original and exclusive
jurisdiction of the CA (Annulment of RTC judgments)
JURISDICTION
RTC
>Does it have an original and appellate jurisdiction? YES.
Under original, does it have exclusive jurisdiction? Yes. How
about concurrent? Yes. RTCs concurrent jurisdiction is with
the CA and the SC as to petition for Certiorari, petitions of
Mandamus for MTCs. RTCs concurrent jurisdiction with the
SC would involve actions affecting ambassadors, consuls, and
ministers.
1.) RTCs Exclusive Jurisdiction would cover actions that are
incapable of pecuniary estimation (PE). Pecuniary capable
of being equated with money. (eg. Specific Performance)
>Eg. Contract with an Engineer to build a house. Contract
period expired but house is still unfinished. Four posts were
agreed upon but only 3 posts were made. A year was given for
the completion; however, the year has lapsed, with money
having been given and the house unfinished. What are the COA
incapable of PE? If the COA is for the Engineer to finish the
house as agreed upon, then it is incapable of PE, as it is Specific
Performance (Principal) plus Damages (Incidental). Thus, the
case is to be filed before the RTC.
>2 VIEWS/TESTS of determining whether a case is incapable
of PE.
>1. Nature of the Action Test (NAT): Read the complaint (Eg.
Specific Performance I want my house completed). Above
example is incapable of PE
>2. Ultimate Objective Test (UOT): Look at the ultimate goal
of the complainant.
>Eg. Plaintiff entrusted his certificate of stocks to the defendant
because the former had to leave for abroad. After years
petitioner comes home and asks defendant to turn over the Certs
of Stocks. Defendant avoids petitioner, and the latter goes to
the company that issued the stocks and gets surprised that he
did not have any share in the company, that these have been
cancelled and are now in the name of the defendant. The
defendant executed a DOS purportedly from the plaintiff to the
defendant forging the signature of the Plaintiff making it
possible the cancellation and transfer to the defendant. Plaintiff
files a case of Cancellation of Certificates of Stocks in the
name of defendant, Declaration of Nullity of the Deed of Sale,
and Damages.
>Using the Nature of the Action test, is it now capable or
incapable of PE? It is incapable because there is no monetary
equivalent (Cancellation, Declaration). Thus, file this with the
RTC.
>Using the Ultimate Goal (End Goal). If the End Goal is
money, then the case is capable of PE. What does the defendant
want in the end? He wants the certificate of stocks back to his
name. What do the Certificates of Stocks represent? Shares in
the company, which means money is invested in the company.
The Certificates of Stocks represent an amount (shares). Thus,
the Ultimate Objective of the Plaintiff is to get back the
monetary value of the Certificate of Stocks. Thus if the
Ultimate Objective Test is used, then the case is capable of PE
> In the Philippines, the Prevailing Jurisprudence, we make use
of the Nature of the Action Test.
Expropriation Cases (Exercise of the power of eminent
domain). This is a special action wherein the State takes private
property for public use upon payment of just compensation.
When NAT is applied, then the case is incapable of PE. But if
we use the UOT, then we will have to go to the assessed value
of the property, and the value would then set jurisdiction. But
the SC settled the issue in a case saying that it is the NAT that
prevails since Expropriation is incapable of PE, thus filed
before the RTC regardless of the value of the property.
2.) Recovery of Real Property (or ownership of real property
or any interest therein). Eg. Acion Publiciana (Recovery of
Possession) vs Acion Reinvindicatoria (Recovery of
Ownership). Whether the former or later for a real property or
any interest therein, the assessed value of the real property
must be determined (refer to the TAX DECLARATION of the
property, whether or not covered by a title. Tax declarations
are not proofs of ownership; rather, they only show that they are
paying taxes over said property) Shows good faith that person
intends to own the property. Real property taxes are paid every
year. Assessed Value is not the same as Market Value. Market
Value is always higher. Market value is the amount that the
seller is willing to accept and the buyer is willing to pay. It is
not constant (fluctuates depending on prevailing conditions).
Assessed Value, however, is constant (unless tax mapping is
made depending on changes, wherein assessed value may
change). Assessed Value is used to determine Court
Jurisdiction because it is a constant figure.
>If the assessed value is above P20,000.00, file before the
RTC. If the assessed value is P20,000.00 and below, file
before the MTC. This refers only to places outside Metro
Manila. >In Metro Manila, above P50,000.00 for RTC, and
P50,000.00 and below for MeTC. Standards of Living in
Manila is much higher.
>Remember, or any interests therein. Eg. Moving Fence.
Plaintiff files a case for Recovery of Possession of land
encroached upon. Assessed value of the entire property of the
plaintiff is P50,000.00. Thus, petitioner filed before RTC.
Defendant moves for Motion to Dismiss because he alleges that
the RTC has no jurisdiction. Defendant alleges that 50m2 of
land does not amount to P50,000.00, but only P5,000.00, thus
to be filed before the MTC. Therefore, defendant alleges that
the case is to be dismissed for lack of jurisdiction. (Can the
court, on its own, without any motion, dismiss a case when it
has no jurisdiction? YES). You are now the Judge. Will you
grant the motion? No. Deny the motion to dismiss because the
court has jurisdiction. The Law says that, recovery of property
or ownership or any interest therein the assessed value
prevails. So it doesnt matter whether you are after the entire
property or just a portion. What you look at is the assessed
value of the entire value of the property. The law was not
created in order to provide that every time there is a portion
involved, mathematical calculation is then called for. The
intent of the law is to take the entire assessed value of the
property into consideration.
>When asked in the quiz or exam about the problem above,
answers must always be authoritative (must have basis).
Avoid using phrases such as in my opinion because no one
cares, unless you are an expert witness. When asked to rule
on a motion, either grant or deny. NEVER DISMISS. Eg.
I will deny the motion because the RTC has jurisdiction.
Under the law granting jurisdiction to courts, it states that
recovery of ownership or possession of any real property or
any interest therein, the assessed value should determine the
jurisdiction of the court. Even if he is only claiming an
interest in the property, the law (no need to give specifics)
says that it is the assessed value of the entire property to be
considered. Since the assessed value of the entire real
property is P50,000.00, which is above P20,000.00, then the
RTC has jurisdiction. MAKE YOUR ANSWERS
COMPLETE, COMPREHENSIVE, and AUTHORITATIVE.
Avoid qualifying if facts are clear.
SECOND HOUR
3.) Actions in Admiralty or Maritime Jurisdiction. Law of
the Sea. Jurisdictional amount of Courts: Look at the amount
of the claim. If the claim is above P300,000.00, then it belongs
to the RTC. (In Metro Manila RTC, above P400,000.00).
However, if P300,000.00 and below, then MTC (In Metro
Manila MeTC, P400,000.00 and below). Eg. Your cargo is
jettisoned off of a ship and you want the shipper to pay it.
Determine the amount of the cargo to arrive at its jurisdiction.
4.) Matters of Probate, whether testate or intestate (settlement
of estates). Apply the same Jurisdictional Amount. (No will
shall pass property unless probated. 2 stages, 1 whether will
st
was executed as required by law. 2 - ). Look at the GROSS
nd
VALUE of the Estate of the deceased (total value).
Afterwards, apply jurisdictional amounts.
5.) Claims for damages (and Monetary claims- contracts
involving money, like a Promissory Note) or Actions involving
personal property (movables). Eg. Car borrowed but was never
returned, then file Recovery of Personal Property (No theft,
because property was lent with consent). Basis would be
Jurisdiction Amounts (amount of damages or value of
personal property). If Monetary Claims, to determine
jurisdiction, exclude the interests, the penalties, the surcharges.
It is only the principal amount that will determine jurisdiction.
But if damages, add everything to determine jurisdiction.
>Eg. Collection of sum of money (MONEY CLAIM PROM
NOTE). Principal obligation is P150,000.00. Since there is
delay, interest is in the amount of P50,000.00. In the
Promissory Note, there are also Penalties and Surcharges for
delay amounting to P100,000.00. Attorneys fees of
P107,000.00. Total of P407,000.00. Where to file? MTC,
because we will only consider the principal amount of the loan
which is P150,000.00. The term used by the law is other cases
where the demand exclusive of interest, damages, attorneys
fees, litigation expenses..
>Eg. But if it is a claim of damages Actual damages of
P150,000, Moral damages of P150,000, Attorneys Fees of
P107,000, amounting to P407,000.00. File before the RTC.
Include all because we are dealing with damages. (No interests
because damages). Total amount determines jurisdiction.
6.) All cases not falling within the jurisdiction of any other
courts, tribunals, quasi judicial agencies, or administrative
agencies, file before the RTC COURT OF GENERAL
JURISDICTION.
7.) Intracorporate Controversies, Intercorporate
controversies, disputes between stockholders against
stockholders, disputes between stockholders against the
corporation, etc. All under the jurisdiction of the RTC
(previously under jurisdiction of SEC)
>Appellate Jurisdiction of RTC- Over decisions of the MTC
within their respective territories.
MUNICIPAL TRIAL COURT:
>Does the MTC have Original and Exclusive Jurisdiction?
Yes. How about Original and Concurrent Jurisdiction? None.
How about Appellate Jurisdiction? None. (Ejectment Cases)
Forcible Entry (Action interdictal), Unlawful Detainer. Do not
look at the assessed value. Forcible Entry- Illegal intrusion of
property, unlawful deprivation of property thru (Force,
Intimidation, Strategy, Threat, Stealth). Unlawful
Detainer- Lawful entry. Upon renewal of contract, owner
refuses and asks tenant to leave. Tenant refuses to leave even
with non-renewed lease contract. Illegally detaining property?
YES. Owner can file a case of unlawful detainer. Since tenant
also refuses to pay rent, this accumulates up to P600,000.00.
Can the MTC take jurisdiction? YES. Regardless of the amount,
because the case belongs to the original and exclusive
jurisdiction of the MTC. Forcible Entry and Unlawful Detainer
are also special proceedings to be discussed in meeting before
the final exams (Under Rules on Summary Proceedings).
Recovery of Possession/Ownership of Real Property with an
assessed value of P20,000.00 outside Metro Manila
(P50,000.00 and below within Metro Manila MeTC).
Admiralty and Maritime Jurisdiction with a Jurisdictional
Amount of P300,000.00 and below (P400,000.00 and below
MeTC). Probate of Estate Gross Value of the Estate as to
Jurisdictional Amount. Damages Jurisdictional Amount.
FAMILY COURTS:
>Most cases under said courts are mostly criminal procedures
or under special proceedings, and not under civil procedures.
The Family Courts, as envisioned by the law, have not yet
come into existence ( no budget daw). So the SC designated
RTCs to be Family Courts.
>There should be a Family Court in each City and Province
(Capital Town) of the Country. If the Capital Town is also a
City, then that is where the FC is to be found.
>Jurisdiction in criminal cases- Where the accused is a minor /
victim is a minor.
>RTC 6 years, 1 day and up. MTC 6 years and below.
>Eg. Crime is Reckless Imprudence (under Art. 365 of RPC )
resulting in homicide. A 4-year-old was sideswiped. Parents
file a criminal case. Accused is an adult. Accused raised
Motion to Dismiss for lack of jurisdiction daw. He says that
he is not a minor, and that private complainant are not minors
as well. NO. Victim is a minor (Law uses the term victim,
not private complainant). There is a difference between
victim and private complainant. (MTC has jurisdiction over
all reckless imprudence cases regardless of the resulting
injury.
>When does the RTC have jurisdiction over Reckless
Imprudence? When accused abandons the victim, or death
occurs, and at the time of Reckless Imprudence the accused
was violating any traffic laws).
>Eg. There are 5 accused ages 16, 21, 23, 25, and 26. Where
to file the case? Family Court.
>Civil Cases- In the Family Court, a civil case may be filed as
to Annulment of Marriage, Legal Separation, etc. Anything
involving the Family goes to the Family Court.
SPECIAL JURISDICTION OF THE MTC
>In criminal law, every person has the right to bail (unless for
capital offenses and evidence of guilt is strong).
>Eg. A person is charged with homicide. Is homicide
bailable? Yes. Murder is not. But we can apply for bail and
prove that the evidence of guilt is not strong. Now accused is
in jail and wants to post bail. But no judges are available.
The only one left is an MTC judge. However, the MTC has no
jurisdiction over Homicide (Reclusion Temporal 12 years, 1
day to 20 years). Still, accused wants to post bail. (Its easier
to kill your wife than to kill her). The MTC judge can step in
Special Jurisdiction only in the absence of all the RTC
judges.
JUNE 20, 2013
>Land Registration RTC (Regardless of the Assessed Value,
which does not need to be alleged). Proceedings in rem (action
versus the whole world)
COA- Now, with a COA, we can now file a Civil Action
>RULE: 1 COA is equal to 1 Civil Action (1 right violated, 1
civil case to file. Avoid Forum Shopping)
>Eg. Plaintiff files a case against defendant for Sum of
Money based on a PN. That was the first case filed. In this
first case of Sum of Money, the plaintiff in complaint was
collecting the principal loan of P100,000.00. Since it is
P100,000.00, where to file? MTC. So he files it there.
Judgment is rendered in his favor. After he won, he realizes
how stupid he is because he only asked for the principal amount.
He wonders about the interests, the surcharges, the attorneys
fees, etc. So, he files a second case against same defendant for
Sum of Money collecting the interests, surcharges, penalties,
and attorneys fees emanating from the principal loan. What
did he do? He broke the rule of 1COA=1CVA. What happened
was 1COA=2CVA. Is that allowed? No. That is the concept of
SPLITTING A SINGLE CAUSE OF ACTION.
>There is a SPLITTING if there is only 1 right violated.
There should only be one case related to one right violated. In
the first case in the above example, the right of the plaintiff to
be paid was violated. How about in the second case? The same
The right to be paid. When we say the right to be paid, it
does not only include any principal amount, but all subsequent
amounts by virtue of the principal amount because when there
is no principal amount, then there are no interests, surcharges,
penalties, or attorneys fees to talk about. The only reason why
the latter came into existence is because of the principal
amount. Therefore, there is only 1 COA = 1 CVA.
>What is the result then when there is a SPLITTING? THE
SECOND CASE WILL BE DISMISSED. On what ground?
None. (Refer to Rule 16 again and Rule 2 Lack of COA).
However, since splitting does not belong to any of those
grounds mentioned, the 2nd case is dismissed due to RES
JUDICATA in relation to the first case disposed of. If the first
case is still pending at the time the second case is filed, the
GROUND FOR DISMISSAL IS LITIS PENDENTIA.
>One COA is equivalent to only one Civil Action. For every
right violated, we can only file one case to enforce that right
that has been violated. Otherwise, if we split a single COA, the
second case will be dismissed.
>However, there is also a rule that says 2 or more COA is equal
to 1 CVA.
>Always remains 1 CVA, regardless whether 1 or several COA.
Splitting of COA vs Joinder of COA
>Joinder of COA: The regular Joinder one plaintiff and one
defendant, but plaintiff has several rights violated by the
defendant. Because he has several rights violated, he can file
one case for every right violated. This is to avoid multiplicity
of suits (avoid splitting).
>Eg. The plaintiff wants to sue defendant for: Unpaid loan
(right to be paid), failure to return car (recovery of personal
property right to recover property). Two separate cases may
be filed. However, under Joinder, he can file 1 case For
collection of sum of money and recovery of personal property.
>Eg. A, B, and C are all passengers of a bus. Along the way,
the bus met an accident (bumped the mountain) so passengers
were not able to reach their destination and also suffered
injuries. Passengers wanted to file a case of damages against
bus company (each sustaining damages amounting to A-100k,
B-100k, and C-100k). Is it possible for each to separately file
cases against bus company? Yes. (All MTC due to amount).
However, can the 3 passengers file together? Yes. Joinder of
Actions. Where? Individually, MTC. However, if they jointly
file it and its all for damages, apply the Totality Rule: In
cases of monetary claims and damages, the total amount of the
claim shall determine the jurisdiction of the court (100k + 100k
+ 150k = 350k, thus RTC). This joinder of actions, however, is
only permissive.
>Joinder of Actions rule Limitations.
>First Limitation is that there should be a proper
joinder of parties. Is there a common question of fact and law?
If yes, then there is proper joinder of parties. Second, there
must be a common question of law. Is there? Yes. Breach of
contract of carriage.
>Eg. Plaintiff is an owner of a hardware store. He
discovers in his books that there are several unpaid accounts. A
has an unpaid account amounting to P10,000.00 (former
employee ran away). B also has several unpaid amounting to
P20,000.00 (loan - ran away and disappeared). C has an
account amounting to P30,000.00 (roving salesman, did not
remit payments agent). Can hardware store file individual
cases against defendants separately? Yes. But can he file one
case pursuant to the joinder of actions rule against A, B, and C?
No. Because no common question of fact and law. Thus, store
owner must file separately.
>Second Limitation- Jurisdiction. However, such
limitation would usually come when one case belongs to the
MTC while the other to the RTC.
>Eg. Plaintiff sum of money (P400,000.00 - RTC)
and recovery of possession of a parcel of land (assessed value
of P10,000.00 -MTC ). Since plaintiff believes that the land
case is more controlling, he files both cases in the MTC (for
sum of money and recovery of possession). Is there a proper
joinder? None. The MTC will dismiss the first case (lack of
jurisdiction, and not misjoinder) and proceed against the 2 nd
case.
>Eg. A, B, and C. (None. Separate jurisdictions under
the rule, resulting to Misjoinder of Causes of Action. The
rule says that Misjoinder is not a ground for dismissal of the
case, but the court will separate the misjoinder, and the court
will proceed against each.
>Eg. Plaintiff (Recovery of Property P30,000.00
and Sum of Money P100,000.00). Plaintiff wants to join these
COA so he files them before the RTC bec assessed value of the
property is P30,000.00 which is in the jurisdiction of the RTC.
However, the sum of money is within the juris of the MTC. Can
this be? Yes. Because the RTC is a court of General
Jurisdiction can award amounts lower than its jurisdictional
amount. Is there a limit of the amount that the RTC can award?
None. The MTC has a limit though.
>Basic Rule- Jurisdiction is conferred by law (BP 129 as
amended by RA 7651), but determined by the allegations in the
complaint. It is not for the parties to decide as to what court to
file the case in.
>Eg. Complainant claims total damages in the amount of
P450,000.00. By reading the complaint and applying the
Nature of the Action Test, we see that the amount is
P450,000.00, which should be filed in the RTC according to the
law. Look at the allegation for determination of jurisdiction.
RTC cannot suddenly lower the allegation and pass it to the
MTC. The RTC must accept based on the allegation. After
trial, a decision is rendered wherein plaintiff has not totally
proven his/her COA. RTC judge found that plaintiff is only
entitled to P100,000.00. The RTC thus may award P100,000.00
which is lower than its jurisdictional amount.
>Eg. Complainant P100,000.00 filed before the MTC. It was
then found out as supported by evidence that damages
amounted to P350,000.00. Can MTC award said amount? NO.
P350,000.00 is beyond its jurisdictional amount. Res judicata
would set in, and plaintiff cant file another case to recover the
increased amount.
>If a case is dismissed for lack of jurisdiction, said case can be
filed in the court that has jurisdiction.
JUNE 25, 2013
FIRST HOUR
> Recall Splitting and Joinder, both concerning the avoidance
of multiplicity of suits.
>Proper Joinder of Parties There must be a common question
of fact and law (common link).
>Joinder sum of money / damages totality of sum of claims
shall apply (totality rule).
>Limit to joinder Jurisdiction Cant join 2 COAs with
different jurisdictions applies only in the MTC, but can be
done in the RTC, so long as one COA belongs to the RTC
(Court of General Jurisdiction).
>Plaintiff (recovery of personal property P500,000.00
RTC). Further claims that defendant has not paid him his
salaries for the duration of his employment as a boy Friday,
claims amounting to P300,000.00. He joins both in the RTC.
Is this possible? No. Because salaries, ER-EE relationship fall
under the jurisdiction of the NLRC. You cannot use general
jurisdiction of the RTC because it has no jurisdiction over
claims arising from employer-employee relationships because
such belongs to another jurisdiction. No joinder. RTC will take
cognizance over action for recovery of personal property but
dismiss the claims for unpaid salaries for lack of jurisdiction.
>Third Limitation- Venue. Do not confuse Venue
with Jurisdiction.
>Jurisdiction What court? MTC? RTC? That is
jurisdiction.
>Venue Where is that Court? Place / Address
>Eg. RTC (jurisdiction), La Trinidad, Benguet
(venue).
>Distinguish whether action is a real action or a
personal action.
>Real Action Anything involving real property. (eg.
Recovery of possession of real property / ownership / accion
reinvidicatoria / acion publiciana / judicial forclosure of REM
>Rule for Real Action Where the real property is
located. If the real property is in Baguio, then the venue must
be in Baguio. Eg. Action for Recovery of a Real Property. The
assessed value is P10,000.00, in Baguio City. Where to file?
MTC of Baguio.
>Personal Action (A real action is any action
involving real property. All others are PERSONAL) where
no real property is involved. Eg. Specific performance,
collection of sum of money, damages, breach of contract. As
to venue, it is either plaintiffs residence or defendants
residence, at the option of the plaintiff. If there are several
defendants, plaintiff must choose the majority address where
most of the defendants reside.
>Residence Where person is actually found. As
opposed to domicile, this is where a person intends to return to.
>Plaintiff (damages 500k). Plaintiff is a resident of
Baguio and defendant is a resident of LTB. Plaintiff must file
case before the RTC, either in Baguio or LTB.
>There are special rules on venue, eg. Settlement of
estate multiple properties comprising estate. Where to file?
Place where he stayed upon death. The moment the court takes
cognizance, excludes all other courts. What if he died abroad
but his properties are in the Philippines? How can his heirs
settle his estate? Where can they file? Where any of his
properties are located, and when such court takes cognizance, it
is to the exclusion of all other courts.
>What is the rule when there is a nonresident
plaintiff/defendant? When plaintiff is a non-resident, he may
file the rule on real action (So that court can acquire jurisdiction
over the res the thing or subject matter - property), but as to
personal action, must file it where defendant resides in only.
>How about non-resident defendant? How can a court
acquire jurisdiction over said person? If real action, same rule.
If personal action, then where the plaintiff resides.
 >How is venue a limitation on joinder of parties?
Plaintiff is a resident of BC and defendant a resident of LTB.
He has a case for damages against defendant in the amount of
500k (RTC). However, aside from the damages, he wants to
recover a parcel of land located in Bauang, LU. The assessed
value is 35k (RTC). All belong to the RTC. Can plaintiff join
damages and recovery of property? YES. But if he joins them,
then where shall he file? RTC of LU, because the res is
located there. If venue is wrong, then there is improper venue.
He is bound by the res. But, he can also file cases separately.
Limitation arises when we join a real and a personal action. The
rules are clear as to where real actions are to be filed. What if
property is LU but the assessed value is 5k only (MTC). Can it
be joined with the case for damages in Baguio? No. RTC yung
nasa Baguo. But supposing damages in Baguio amounts to
200K (MTC), then both can be joined in LU where the res is
located. When we join a real action and a personal action, we
have to follow the rules (Place of real action).
>Fourth Limitation- There is no joinder of an
ordinary civil action and a special civil action.
>Special Civil Action (Rule 62 on interpleader up to
Rule 71). Special because they have their own rules and
peculiarities that are not present in ordinary civil cases, making
them impossible to join with ordinary civil actions. Eg. Lessor
files a case of unlawful detainer (Special) against tenant, plus
damages as to unpaid rent and reasonable attorneys fees.
However, lessor discovers that tenant accumulated unpaid
water bills, phone bills, etc totaling to 200k. Is there a proper
joinder? No. Unlawful detainer is a SCVA, while damages as
to bills are OCVA. The only allowable damages under SCVA
are unpaid rent and reasonable attorneys fees, as under the
rules. SCVA are usually dealt with summary procedures (no
more trial).
SECOND HOUR
>PARTIES
>Plaintiff / Petitioner person who files the case. Plaintiff
OCVA (initiated by the filing of a complaint, while Petitioner,
as there is a right violated as opposed to SCVA (initiated by
the filing of a petition not that because a right has been
violated but because you want to establish a right.). Criminal
cases Plaintiff parin (People of the Philippines). Against
whom? Plaintiff as to defendant, while petitioner as to
respondent.
>Kinds of parties :
>Indispensible party- In every case, there has to be
an indispensible plaintiff (the very person who claims that his
right has been violated) and an indispensible defendant (a
person who is claimed to have violated the right)
>Necessary party- For complete relief (eg. B)
>Joint vs Solidary. X and Y are debtors of C.
>Eg. C wants to file a case against X who is a joint
debtor of Y (joint obligation with Y). Is the relief complete?
No. Must include Y to complete relief. However, to sue X is
enough. Y is a necessary party.
>Nominal Party (Pro Forma)- According to rules,
they should be included because of circumstances of the law.
>Eg. If a case is filed (Certiorari, Prohibition, and
Mandamus) because a judge allegedly gravely abused his
discretion. Who are the parties? Complainant is the petitioner
(indispensable plaintiff). And the defendant (private defendant
indispensible defendant) would be the person who benefited
from the judgment of the judge (public respondent nominal
defendant). Defendant private respondent is the one who is
supposed to file an answer, not the public respondent. Judge
may make an answer when there are direct attacks. Otherwise,
pro forma lang.
>Married woman If the plaintiff is a married woman,
she must be assisted by the husband versus the defendant
(plaintiff, assisted by husband, versus defendant). If the
married woman is the defendant, she must also be assisted by
the husband (plaintiff versus defendant, assisted by husband.
(Civil Code- husband is the administrator, head of the
household, etc) In this case, the husband is the nominal or pro
forma party. A married woman can sue alone suits involving
her husband, paraphernal properties, personal profession,
quasi-delicts, or if they have been living away from each other
for at least 1 year (separation de facto).
>Quasi-parties Not actually a part of the suit, but
suit is for their benefit. Eg. Class suit- two requisites. First,
there must be a common or general interest among everybody.
Second, they are too numerous that it would be impracticable
to bring them all to court.
 >Eg. There is a factory in the middle of the
community. The factory emits heavy smoke in a radius of 100
meters, affecting 500-1000 individuals. Can they all file a
complaint (abatement of nuisance)? Yes, via class suit
(Common interest is to stop the factory, and numerous parties).
There must be representatives for the class suit (specified).
President, Secretary, and Spokesperson (indispensible
plaintiffs) in a class suit (the others who are represented quasi-
parties) versus the smoke-emitting dragon (indispensable
defendant). The courts shall determine whom shall be
rightfully represented. If it includes claims for damages, cant
be filed as a class suit because there is no common or general
interest.
>Eg. Numerous squatters are occupying a property.
Can they be sued in a class suit? No. (They may be too
numerous, but there is no common or general interest). Each
squatter is interested in the land that they are occupying.
Remedy is to file cases against them individually. Action may
also be joined.
>Can domestic corporations be parties? Yes. How
about foreign corporations? Can they sue and be sued in the
Philippiens? (cant be brought to the Lupon, duh). Determine
whether it is doing business in the Philippines. If yes, is such
business legal? If it is legal, then they can sue and be sued in
the Philippines. If it is illegally doing business (no necessary
authority or license), then they can be sued but they cannot sue.
Supposing it is a foreign corporation that is not doing any
business, then it cannot be sued, but it can sue in an isolated
transaction (Universal Studios versus Pinoy pirate). Foreign
corporations must state their capacity to sue.
MAKEUP CLASS JULY 27, 8AM up to 12NN
JULY 11, 2013
>In criminal procedure, the judge has the power of outright
dismissal of cases. The moment the judge sees no probable
cause, he can dismiss it outright. But if there is, then he may
order the issuance of a warrant of arrest.
>In civil procedure, can the court dismiss the case motu propio?
Yes, but only on 2 grounds: Lack of jurisdiction over the
subject matter and prescription.
>Lack of jurisdiction over the subject matter. Jurisdiction is
conferred by law and determined by allegations in the
complaint. Eg. Filed in the RTC, but is a complaint for
unlawful detainer. The RTC can dismiss the case outright as
the case ought to have been filed in the MTC. Or claims for
damages in the MTC for the amount of 500k can be dismissed
outright due to lack of jurisdiction over the subject matter.
>Prescription. Period within which to file the case, otherwise
forever barred. The court may dismiss on the grounds of
prescription if the material dates are apparent on the face of the
complaint. Eg. Case of recovery possession, and plaintiff states
sometime in 1940, the predecessor of the defendant entered the
property, which at that time was in the possession of the
plaintiffs predecessors interest. After several negotiations,
defendants predecessor refused to vacate. Etc. It is now
respectfully prayed that defendant and all of his successors
interests be ordered to vacate the properties. Dated July 11,
2013. Are there material dates mentioned? Yes 1940s.
Clearly, prescription has set in (30 years for bad faith on real
properties Open, continuous, exclusive, notorious,
uninterrupted, adverse can ripen to ownership). Spells out
that COA of plaintiff has expired.
>Eg. Motion for reconsideration for denial of Petition for
mandamus , should be filed 60 from denial. Filed beyond the
60 days, outright dismissal. Material dates were shown on the
face.
>Supposing there is no allegation in the complaint as to specific
dates sometimes in the distant past, defendants predecessor in
interest took possession of the disputed land the court cannot
immediately dismiss the case. The court now takes cognizance
of the case. However, court cannot proceed without having
jurisdiction over the person of the defendant.
>In a criminal case, the court acquires jurisdiction over
defendant via warrant of arrest.
>In civil cases, there is Summons. Summons is a writ issued
by the court directed to the defendant for the latter to answer the
complaint. Once properly served, writ entitles the court to have
jurisdiction over the person of the defendant. Defendant is
ordinarily given 15 days to respond to the summons (in
summary procedures, rules are different).
>Please refrain from filing a motion to dismiss. Instead, include
them as affirmative defenses to the answer.
>How many copies of the complaint to be filed? One for the
Court, and one for each summons (summons is attached to the
complaint) served to the defendant by the Sheriff of the >Prisoner Serve it to the warden. The warden will give it to
Court. the prisoner.
Modes of Service of Summons: >In the return, sheriff must justify substituted service of
>First Mode (Priority Mode) Personal Service of summons.
Summons: Do not confuse this with personal service of >What if summons did not really reach defendant (was given to
pleadings. In this case, the sheriff goes to the defendant and a qualified person at home but said person lost it or forgot about
hands to the latter the summons. Then, the defendant signs on it)
the summons indicating the date of signing (reckoning point of >Date of reckoning of 15-day period signature of the receiver
15 days for defendant to answer Just add 15 to that date to on the face of the summons
arrive at the deadline). Sheriff must give this directly to the
defendant. The rule says By giving it personally to the
JULY 17, 2013
defendant or by tendering him
>Tender Sufficient, even if defendant refuses to accept. The
FIRST HOUR
sheriff has to make a return of summons. If able to give it to
>Warrant of arrest is to Criminal Procedure, whereas Summons
defendant personally this is to make a return stating that the
is to Civil Procedure.
summons with the attached copy of the complaint has been
>Summons is to acquire jurisdiction over a defendant.
served to the defendant personally on July 13, 2013 as can be
>A case cannot proceed when court does not have jurisdiction
seen on the signature of the defendant appearing on the face of
over defendant so a summons must be served.
the summons.
>A copy of complaint is attached to summons served by
>Sheriff also furnishes a copy of the return of summons to
sheriff.
plaintiffs counsel this is to guide the plaintiffs counsel that
>Modes:
such has been served as well as with the 15-day period. The
1) Personal Service Priority Mode. If all efforts have
moment there is a lawyer, service should be done on the lawyer.
been exerted failed then:
Service on the lawyer is service to the client.
2) Substituted Service of Summons consist of
>What if defendant refuses to take the summons? How should
bringing summons to home, office, or place of work of
this be indicated in the return of summons? I went to serve it
defendant. To constitute it as valid, home-person of sufficient
on the defendant personally but he refused to receive it and so I
age and discretion residing in the place therein, office/place of
tendered it to him.
work competent person in charge. Those are the only valid
>Priority Mode- Sheriff must exert all efforts and exhaust all
means for substituted service of summons. It doesnt matter
remedies possible to serve it to the defendant personally.
whether defendant himself receives summons. Court thus
>If all possible remedies have been exhausted, then use the next
acquires jurisdiction over the person of the defendant.
mode.
>Second Mode (Substituted Service of Summons) Since it
>3) Constructive Service of Summons available in any
cannot be served to the defendant personally, then to somebody
action (in personam, in rem, quasi rem) provided there is a
else (home, office, place of work/business). Sheriff must
resident defendant (the defendant resides in the Philippines but
outline in detail all the approaches done to serve the summons
his whereabouts are unknown, or he is an unknown defendant .
to the defendant personally.
>Criminal actions John Doe. How about in Civil Actions?
>Home qualification Give it to a person of (1) sufficient age
There are unknowns as well. Eg. Someone builds a structure in
and discretion, (2) residing therein.
a private property, but builder is unknown. Upon filing of civil
>Office qualification Serve it to the competent person in
action, who can be the defendant? Presumably, such person is
charge of the office. Usually, the manager, or office secretary,
managing partner, whoever is in charge.
living in the Philippines, but person is unknown or cannot be
found.
>How is Constructive Service done? Via PUBLICATION.
However, Leave of Court or permission from the Court is
required. What then should be filed for such? File for Motion
for Leave of Court followed by whatever it is that you are
asking a permission for. Eg. Motion for Leave of Court to
summon defendant by Publication.
>Explanation is needed (eg. Whereabouts of defendant is
unknown). If the court finds merit to motion, it will direct
summons by publication (newspaper of general circulation in
the Philippines Phil Star, Daily Inquirer, Manila Bulletin, etc).
Very costly.
>First, summons is published. Next, the entire complaint. A
newspaper, in order to publish legal notices, must acquire
accreditation (submit a petition for accreditation with office of
executive judge in a province where they publish however, if
accredited in a province within a judicial region, newspaper
cant get accreditation in another province belonging to the
same judicial region. However, city within a province is not
prohibited.
>Requirements of accreditation: Length of period of circulation
must have been in circulation for the past year, and judge
determines whether to be accredited or not submit all that
have been put into circulation plus accreditation fees. Actions
affecting public interest need for publication. Accreditation
needs to be renewed every 5 years (subject to yearly compliance
with fees). Valid business permit.
>If last known address cannot be determined, then Newspaper
of General Circulation in the Philippines.
>Publication once a week for three consecutive weeks
>Substituted Service 15 days to answer. But for Publication
60 days from the last publication.
>Does it matter whether defendant reads publication? Is
jurisdiction acquired? No, jurisdiction is not acquired. But why
bother with publication? TO COMPLY WITH
REQUIREMENT OF DUE NOTICE.
>4) Extraterritorial Service of Summons Outside of our
territory. This mode of service only applies to nonresident
defendants. As compared to constructive summons which
applies to resident defendants, extraterritorial service has
limitations. Applies only to actions affecting the STATUS of
CLAIM.
>Eg. Plaintiff files a case for Sum of money (Personal Action).
1 million. Defendant is out of the country (nonresident). Files
a Motion for Leave of Court to issue summons by Publication.
Does the action affect the personal status? No because it is a
Personal Action. It does not affect the status of the plaintiff,
neither does it relate to the property of the defendant in the
Philippines.
>Eg. A Filipina meets a foreigner. Latter meets the former in
the Philippines. Foreigner leaves with promises of bullshit and
stuff, but he was never heard of again. The marriage was valid,
so Filipinas status remain as married. She no longer cant
marry another. She then files for Annulment. But defendant is
not a resident. Can an extraterritorial summons then be served
and resorted to? Yes, because her status is affected. She wants
to go back to having a single status.
>ESS is also applicable to those that relate to PROPERTY OF
DEFENDANT IN THE PHILIPPINES.
>Eg. Recovery of possession of property against defendant
(nonresident). ESS can be resorted to, so long as Res is within
the Philippines.
>How can ESS be resorted to then in a Personal Action (Claim
for sum of money)? Apply for a Writ of Preliminary
Attachment look for properties of defendant in the Philippines
and ask Court to bring properties of defendant in the Philippines
under Custodia Legis. Then, Personam action becomes Quasi-
Rem (because properties are now involved). Once attached,
defendant cant do anything about the properties. Upon
favorable action of Court, such properties may now be sold in a
public auction to the highest bidder. The proceeds shall now
pay the obligation of the defendant.
>The above are the only 2 actions where ESS is allowed.
>How can ESS be done?
>1)Personal Service Send sheriff to where the defendant can
be found (impractical). Or, resort to PUBLICATION.
However, a copy of the summons with the attached complaint
must be sent to the last address of the defendant (WON
defendant receives it doesnt matter). Almost similar with the
summons via publication. Motion for Leave of Court must still
be acquired. ESS via publication Newspaper of general
circulation in the last known area of residence of defendant.
Once a week for 3 consecutive weeks, defendant has 60 days
from the last date of publication to file a reply. Doesnt matter
WON defendant reads it, so long as due process requirement
(notice) has been complied with.
>The moment summons is served on defendant, Court acquires
jurisdiction over defendant.
>In a criminal court, how can the Court acquire jurisdiction
over an accused even without a warrant of arrest? Via voluntary
surrender (goes to Court). Commitment Mitimus.
>How about in Civil Procedure, is there a voluntary surrender?
>>> VOLUNTARY APPEARANCE.
>VOLUNTARY APPEARANCE- Any act of defendant by
which he submits himself to the jurisdiction of the court,
without the court having acquired jurisdiction over him.
>Eg. Defendant hears of a case filed against him. He has not
received any summons yet but he immediately files an answer.
That would be considered as a voluntary appearance.
>Or, summons was issued (but defective), and defendant files
an answer. Is the defect cured? YES. Tantamount to voluntary
appearance.
>Eg. Counsel of defendant enters an appearance with Motion
for extension of time to file an answer. Extension was then
granted. Thereafter, counsel of defendant files a motion to
dismiss grounded on invalid substituted of summons because it
was served to a visitor of the defendants house. Should the
motion to dismiss be granted? NO. Because when the counsel
entered his appearance as counsel of defendant to file motion
for extension of time, it was TANTAMOUNT TO
VOLUNTARY APPEARANCE. You cannot go to court and
ask for a relief and subsequently question jurisdiction over
defendants person. Any act of defendant which would tend to
show that he is accepting jurisdiction over his person either by
voluntarily filing an answer or asking for a relief Tantamount
to voluntary appearance.
SECOND HOUR
>Now that court has jurisdiction over defendant, ano na?
>Defendant has four choices:
1) Ignores (Doesnt file an answer)
2) File a Motion for a Bill of Particulars (MBOP)
3) File a Motion to Dismiss
4) File an answer
>1) Ignores- 15-day period has lapsed and there is no answer
filed. Would plaintiff know that no answer has been filed? Yes.
Based on Sheriffs Return of Summons date of service of
summons indicated therein, along with mode of service. Copy
is furnished to Plaintiffs counsel.
>Eg. Served on July 1. Just add 15. Defendant has until July
16 to answer. By the way, what if plaintiff was never able to
serve summons? Unserved summons plaintiff must furnish
the court new address, else case is going to be dismissed- failure
to prosecute. In crim case archived. In civil cases no
archiving- case is dismissed. Since it is the plaintiff who comes
to court to allege violation of his right, it is his duty to furnish
the court the address of the defendant for the court to furnish
Alias Summons (Contains new address). If defendant still cant
be found in the new address, then Second Alias Summons (third
summons). Is there such a thing as Alias Warrant of Arrest?
Yes. Why? Warrant of Arrest is addressed to the police of a
certain territory. Eg. Warrant of Arrest issued to PNP Baguio-
valid anywhere in the country, but police officers of Baguio
cant go to Ifugao with such warrant because they are
encroaching in a different territory. They have to coordinate
with Ifugao police officers. The Court can issue a warrant of
arrest to Ifugao police officers (Alias Warrant of Arrest). It
contains a new address of the accused which is outside the
territorial jurisdiction of the first warrant of arrest. Similar to
Alias Summons, until able to serve on the defendant.
>Finally able to serve to defendant, but no answer beyond July
16. What will plaintiff do? Can now file a Motion to Declare
defendant in default (MDDD).
>Motion vs Pleading. A complaint is a pleading. An answer is
a pleading. What is a Motion? It is not a pleading, vice versa.
A motion is any application for relief other than a pleading.
What does it mean? A pleading is also asking for a relief. A
motion is more specific, however. Eg. Motion for
postponement, Motion for Extension of time to file an answer,
MDDD, etc. Specific.
>MOTIONS
Non Litigated Litigated (need to go to
court)
-Does not affect the rights of -Affects the rights of the
the adverse party. adverse party
 -The court can act on this ex -A hearing is required. >Eg. Copy Furnished Let adverse party sign the motions. The
parte. NO NEED FOR A Due process- Give both one that bears lawyers signature is the one that is filed (proof
HEARING. Court can act on sides a chance to be heard. of service).
it right away. Movant- one who files a >Aside from the lawyer, is there anybody else who can receive?
motion against whom the Yes. If in the lawyers office, anybody in charge or working in
motion is filed. the office can receive such (still considered Personal service of
pleading, unlike in summons substituted). Received, date,
-Eg. Motion for Extension of -Eg. Motion to Dismiss and signature of secretary (one who receives in the office) Still
Time to File an Answer, personal proof of service. How about in the lawyers home?
Motion for Postponement Yes. Must it be to a person of sufficient age and discretion?
(sometimes) The rules require that when such is served to the house, hours
are observed (8am-6pm) and privacy is respected, unlike
>After stating the Motion (Non-Litigated) Notice to the branch service of summons.
clerk of court: Please submit the foregoing motion >(2) Registered Mail Post office. Registry Receipt (attached
immediately for the consideration of the court. (then signed by near where lawyer signs). The one that bears the Registry
the lawyer). Receipt is the one filed in court because it bears the proof of
>The Rules require that every pleading, motion, manifestation service. Is that sufficient? No. The rules say that when it comes
furnish the Adverse Party (number 1 req) to service of pleadings, priority mode is always personal
>Adverse Party refers to the counsel. Service to the lawyer service. If other modes are resorted to, there is a required
is service to the client, but service to the client is not a service WRITEN EXPLANATION (TO OBVIATE DELAY) as to
to the lawyer. why it was not served personally. Put explanation below
>Eg. Motion to Declare a Defendant in Default. registry receipt (eg. Service was done through registered mail
>Service of Pleadings vs. Filing of Pleadings. due to the distance between the plaintiff counsels office, or due
>Service of Pleadings is the act of furnishing the adverse party to lack of personnel in the defendant counsels office to make
all copies of pleadings, motions, etc. service). Without explanation, pleading is treated as a mere
>Only pleading not served to adverse party Complaint. The scrap of paper. As if nothing was ever filed. Failed to comply
court via the sheriff serves the complaint (attached to summons) with the rule (if no personal service, then via registered mail,
to the defendant. Courts job, aside from gaining jurisdiction with written explanation). Such rule was incorporated was to
over defendant. OBVIATE DELAY. Date of mailing is the date of filing. 15
>Filing of Pleadings is the act of pleadings to Court. days to file an answer. Eg. July 16 deadline to file an answer.
>What comes first, service or filing? Service comes first, Served to plaintiffs counsel, and a copy is filed in court. Court
because what is filed in court should bear the proof of service. receives it July 27. Is it late? No because via registered mail.
If Proof of Service of pleading is not present, the court is not Because the date of mailing will be the date of filing, provided
bound to accept pleading. It is the first thing that the court looks via REGISTERED MAIL.
for.
>How do we serve pleadings to the adverse party? Similar to JULY 18, 2013
summons.
>(1) Personal Service of Pleadings (Priority Mode)- Delivering
>RECAP:
pleading to the adverse party (lawyer), which is different from
personal service of summons (wherein summons is served to >Defendant may not opt to file anything at all, or proceed with
the 3 other moves.
defendant himself).
>Plaintiff can file a Motion to Declare Defendant in Default.
>Motion- Anything asking for relief from court aside from a
pleading
>Litigated and Non-litigated Motion How they affect rights
necessitating hearing
>Furnish adverse party every pleading, motion, etc.
>Service of Pleadings- Priority Mode is Personal Service (to
the lawyer). Second mode is via registered mail. With the
second mode, explanation is required as to why service was
not done personally.
>Service of Pleading comes first prior to filing of pleadings
because the latter should contain the proof of service.
Registered Mail- date of mailing is the date of filing.
>LESSON PROPER:
>Even envelopes are attached to the records because they
contain the date of mailing (stamped on the face of the
envelope), showing likewise the date of filing.
>Pleadings may be served via ORDINARY MAIL BUT THE
DATE OF RECEIPT IS THE DATE OF SERVICE AND
FILING. Private couriers are equivalent to ordinary mail.
>(3) Substituted Service of Pleadings (vs Substituted Service
of Summons)- If pleadings cannot be served via the first 2
modes (eg. Address of Plaintiffs counsel cannot be
determined). Substituted service is furnishing a copy of
pleading to the CLERK OF COURT. Furnishing is not
sufficient- Attached to the pleading must be an explanation.
Explain why such is being done via Substituted Service.
Supposedly, a complaint prepared by a Plaintiffs lawyer
contains the lawyers address, just below his signature. But in
case address cannot be determined, then Substituted Service of
Pleadings may now be done.
> If nonlitigated, notice is addressed to the clerk of court
(please submit the foregoing motion for the consideration of
the court immediately upon receipt thereof. .Copy Furnish
Adverse Partys Counsel). Clerk then submits to court.
>If litigated, since it affects rights of party, notice of hearing is
needed. Instead of being addressed to the Clerk of Court,
NOTICE OF HEARING IS NOW ADDRESSED TO THE
LAWYER OF THE ADVERSE PARTY. Not to the Clerk of
Court, as if to be treated ex parte. For movant, after
addressing adverse partys counsel should say (Please take
notice that this motion will be submitted for hearing on
__date__) Motion Days should be Friday at 2pm, as the rules
say.
>Notice of Hearing (Litigated) must comply with the 3-DAY
NOTICE RULE and THE 10-DAY HEARING RULE.
>3-day notice rule refers to the service of motion to the
adverse party. The adverse party must receive the motion at
least 3 days before the intended hearing. In other words, the
proof of service must show that the counsel of the adverse
party received it before 3 days the scheduled hearing. This is
to give them time to prepare for hearing. (Eg. Hearing is set
July 26, 2013. Adverse Party must receive notice not later
than July 23).
>10-day hearing rule Created to obviate delay. Hearing
should be set within 10 days from the date of filing. (Eg.
Hearing is on July 26. Filing should have been from July 16
and up). Take note, filing comes AFTER service. So if it has
been filed on the 16th, a proof of service should be existent.
Can the date of service be the same with the date of filing?
Yes. Naturally, if 10-day hearing rule is complied with,
automatically the 3-day notice rule would have been complied
with because service comes first prior to filing.
>Motion Day why Friday? Because fly-day. Potanginah.
Tuesdays-Thursdays daw ay hearing day. Right to a neutral
and impartial judge. Judges fly back to their homes.
However, the rule as to appointment in home stations has been
relaxed. According with the Rules Committee, motions
should not be heard together with the trial of the case.
Motions are disposed off quickly, except when there is a
witness.
>Eg. Accused was convicted and sentenced to suffer
imprisonment for 1 year (double registration during the
election). His counsel (defense) filed an MR and asked that it
be set for a hearing; however, he never addressed it to the
adverse party (prosecutor), but to the clerk of court. The
defense lawyer only copy furnished the prosecutor, but
never addressed it to him. The court regarded it as a mere
scrap of paper. Within 15 days after promulgation, decision
may be appealed. But if acquittal, final. When decision
becomes final, it becomes executor. In the case at bar, the 15
days lapsed and decision became final, thus a warrant of arrest
was issued. Notice of hearing should always be addressed to
the adverse party (Prosecutor).
>MDDD- Technically, it is a nonlitigated motion because
defendant had 15 days and he did not make use of it and
therefore he no longer has any right, letting the 15-day period
lapse. Can the court act on it immediately? Yes. However,
rules say that they should be given a liberal interpretation kanu
ta decide on the merits. If MDDD is granted, the court issues
an order declaring defendant in default.
>What is the effect when a defendant is declared in default?
Defendant LOSES HIS STANDING IN COURT. A
defendant declared in default is entitled to notices but he
cannot do anything he can also be present in hearings but he
cannot object, because he loses his standing. He cannot do
anything anymore already. Two things can happen when he is
declared in default and loses standing: (1) Court can render
judgment by default. Since there is no longer a defendant, the
court looks at the contents of the complaint. If allegations in
the complaint are sufficient to warrant a judgment, judgment
is rendered, usually in favor of plaintiff. Otherwise, court will
direct plaintiff to present evidence ex parte. Court can even
authorize clerk of court to receive evidence ex parte, provided
COC is a member of the bar. In the MTCs, COCs are not
required to be lawyers. It is only in the RTCs that COCs and
Branch COCs are required to be lawyers.
>What if a case is for damages? Can there be a judgment by
default? Or must there be a presentation of evidence ex parte?
The latter. Cardinal rule in damages Must be proven with
certainty. Not everything alleged in a complaint is a gospel
truth. Eg. Actual damages receipts . He must show that he
suffered. In every case where damages is involved, sum of
money with damages, sum of money arising from contracts,
plaintiff is always required to present evidence ex parte.
>If defendant loses his standing, can he regain it? Yes. The
defendant, in order to regain his standing, has to file a motion
to lift order of default.
>Is this motion litigated? YES, definitely. Because it will
affect the plaintiff.
JULY 23, 2013
VN-20130723-00001
1ST HOUR
>2nd QUIZ From summons up to what is to be finished by July
27, 2013 (Summons, service of summons, declaration of
default, service and filing of pleadings, motions, etc.)
>Tim Burtons (Canadian Coffee shop na malayong sosyal
kumpara sa Starbucks daw)
>MDDD- This is filed by plaintiff if defendant does not file an
answer within the reglementary period of 15 days. Technically,
nonlitigated motion. Defendant already lost all his rights so
there is no adverse party to be affected. Rules of court are to be
construed liberally to fully thresh out all cases filed in court.
>2 things can happen when defendant is declared in default. (1)
Judgment in default based on plaintiffs complaint if the court
believes that allegations in the complaint are sufficient to
warrant judgment. (2) If allegations in the complaint are not
sufficient to warrant judgment, or when there is a claim for
damages, then Court asks plaintiff to present evidence ex parte
to prove allegations. As to damages, they have to be proven
with certainty. Clerks of Courts (lawyers) are authorized by
court to receive evidence ex parte, but it is the judge who makes
decision. Thereafter, there can be a judgment in default (with
evidence. The first judgment of default is without evidence).
>The only thing a defendant can do is to file a motion to lift
order of default. This motion is a litigated motion as it would
affect plaintiffs rights. Thus, has to comply with 3-day notice
rule, 10-day hearing rule, and addressing pleading to adverse
party.
>Ground for motion to lift order of default- FAME (Fraud,
Accident, Mistake, and Excusable Negligence). Should always
be accompanied with Affidavit of Merits. It is the lawyer who
prepares the pleading, but it is defendant who personally knows
about the grounds mentioned. So a sworn statement (affidavit)
is needed. Eg. Defendant met plaintiff. Defendant willing to
pay and wonders why friend plaintiff files a case. Plaintiff then
promises to withdraw case, but defendant is surprised by a
motion to declare defendant in default. This can be an extrinsic
fraud. The defendant has to execute an affidavit of merits about
this. He has to state that he has a meritorious defense. Not all
4 grounds can be raised altogether. Circumstances must be
stated. Excusable negligence may be because of lawyer or
client. Mistake, accident, whatever you call it, an affidavit of
merits must be made and attached to the motion to lift order
declaring defendant in default.
>Can the court motu propio declare defendant in default? NO.
Every litigant has the right a cold neutrality of an impartial
judge. If judge declares default motu propio, judge is siding
with plaintiff. (15-day period has lapsed- determined from
sheriffs return of summons wherein date of receipt by
defendant is shown). Plaintiffs counsel is also guided of said
date for him to know to file a motion to declare defendant in
default.
>If court finds merit in affidavit, then court will grant the
motion and lifts the order of default, wherein defendant regains
his standing in court and directed to file his answer.
>If there is already a judgment rendered by the court which
doesnt become final and executory, can defendant file for a
motion to lift order of default? YES. What happens to the
judgment? It will be vacated because it has become a one-sided
judgment.
>If the first thing a defendant can do is not to do anything, THE
SECOND thing a defendant can do is to FILE A MOTION FOR
A BILL OF PARTICULARS (MBOP)
>Particulars- details. MBOP because there are complaints that
are vague, ambiguous, or unclear. Defendant cannot
understand what plaintiff wants. An MBOP can both be a
litigated and nonlitigated motion, depending on how judge
would see it. RULES FOR LITIGATED MOTIONS NEED
TO BE COMPLIED WITH. Setting of hearing would then be
discretionary upon the judge.
>If the judge looks at the MBOP and looks at the complaint and
agrees with the defendant that complaint cannot be understood,
the judge would grant MBOP immediately and asks plaintiff to
comply with the BOP (nonlitigated).
>However, if judge finds the complaint clear, the judge would
then set the motion for hearing (litigated).
2 ND
HOUR
01:04:40
>MBOP- on the hearing because court believes that complaint
is clear enough but giving benefit of the doubt to defendant,
court now tries to clarify with defendant allegedly vague
complaints (eg. defendant acted in bad faith thus plaintiff is
entitled to damages and defendant wishes this clarified).
>How does plaintiff comply with MBOP? First, he can file an
amended complaint. If it is an amended complaint, how can it
be shown that there is an amended. Underline the amendments
(or capitalize, bold, italicized, open-close quotation, etc). Eg.
Plaintiff wants to explain bad faith so goes that the bad faith
consists of chorva chorva (notice underline- to show
amendment).
>Must an amended complaint be served again with summons to
defendant? No need. A summons is served just for the court to
acquire jurisdiction over defendant. Since jurisdiction has
already been acquired, plaintiff would just furnish a copy of the
amended complaint to the defendant follow the priority mode.
>Second way is for plaintiff to submit a compliance or a
manifestation. He says, in compliance with the order of the
court granting the MBOP, the plaintiff submits compliance. As
the details to the bad faith, chorva chorva chorva. Fully
explain ambiguous provisions. Such is then furnished to the
adverse counsel via personal or registered mail.
>What if the court has granted MBOP but plaintiff did not
comply? First, the court can order that all those vague
allegations in the complaint will be stricken off of the
complaint. Worse, the court can direct the plaintiff to show
cause why his case should not be dismissed because he failed
to comply with the order.
>If COA is stricken off, then defendant may file an MD on the
grounds of Lack of COA. So plaintiff should comply with
MBOP.
>THIRD THING A DEFENDANT CAN DO IS TO FILE A
MOTION TO DISMISS (Rule 16, A-J)
>This is always a litigated motion, thus requirements must be
complied with.
>Summons discourages filing of motion to dismiss. It asks
defendant to put grounds for MD as affirmative defenses in the
answer. Affirmative defenses are actually grounds for MD.
>If answer is filed and there are affirmative defenses, the court
conducts a preliminary hearing.
>The discouragement of filing of MD is for the quicker
administration of justice. Thing is, if you still wish to push
through with an MD, a counterclaim may not be filed along with
it. There is no such animal. If MD is granted, whatever claim
that defendant has over plaintiff may also disappear.
>Can the defendant also have a claim against plaintiff? Of
course Counterclaim.
>But if in the ANSWER THE AFFIRMATIVE DEFENSES
ARE GRANTED and the case is dismissed, such dismissal is
only limited to the complaint of the plaintiff. How about the
defendants claim? It can now be pursued.
>GROUNDS FOR MD:
>(1) Lack of Jurisdiction over the subject matter. Jurisdiction
is conferred by law and determined by allegations in the
complaint. This is a NONWAIVABLE ground. Jurisdiction of
the court over the subject matter can be questioned anytime
during the proceedings. Opposition to such must be raised as
early as possible.
>Eg. Jurisdiction over damages more than 300k belongs to
jurisdiction of RTC (BP 129). In the complaint, and incurred
damages in which defendant is to be made to pay 500k of
damages to plaintiff. The plaintiff files it in the RTC. Does
the RTC now have jurisdiction? Yes, in line with the law and
the allegation. Court says, Huff!!! How ambitious naman this
plaintiff. He just suffered bruises. He cannot do anything about
his face if it is in the first place deformed. Too much!!! The
way I look at it, he is only entitled to 10k. And thus, I dont
have jurisdiction so I will dismiss the case. Can the judge do
that? NO. Because he has jurisdiction according to law and
what is spelled out in the complaint. And true enough, at the
end of the trial, plaintiff only proves 10k. Can the RTC award
10k only? YES. Because that was what was proven.
>Eg. Opposite. The law says 300k and below, MTC. After
trial, the plaintiff is able to prove that he incurred more than
300k 400k in fact. Can the MTC award 400k? No. Such is
beyond its jurisdiction. Its limitation is only up to 300k. It can
never go beyond its limit, unlike the RTC that can go below
coz it is a court of general jurisdiction. Plaintiff kase is so bobo
he should have filed it before the RTC. Moral Lesson of the
story, bloat your damages to be able to bring it to the RTC.
>You can question the courts jurisdiction over the subject
matter at any stage of the proceedings even on the first time on
appeal, unless jurisdiction by estoppel has set in.
>Jurisdiction of Estoppel- Person is aware that court has no
jurisdiction, but this was never questioned. In fact, person took
advantage of this and participated in all proceedings. However,
upon promulgation of decision, person loses and now raises the
question of jurisdiction.
>Grounds basis is on BP 129.
>The court should only not have jurisdiction over the subject
matter but also over the person of the defendant.
>(2) Lack of jurisdiction over the person of the defendant.
In order for court to acquire jurisdiction over defendant, it has
to issue summons which has to be validly served to defendant
via person, substituted, constructive, or extraterritorial service
(actions affecting status of plaintiff, or relating to property of
defendant in the Philippines).
>Is this ground waivable? YES, this is a waivable ground. Must
be questioned at the earliest possible opportunity, otherwise he
is deemed to have waived said ground for motion to dismiss.
>Eg. Defendant cant be located despite all efforts. And
sooooooOOO, the sheriff resorted to substituted service of
summons. The defendant was made aware that there was a
summons issued against him so he goes to a lawyer. Upon
receipt, lawyer files his favorite motion MFEFA. Needs time
to prepare an intelligent answer daw, so asks for 15 more days
from tomorrow. Court grants motion. Then lawyer finds out
that summons was served to an usi neighbor via substituted, so
within the 15 days of extension, lawyer files an MD on the
ground of Lack of Jurisdiction over the person of the defendant.
Grant or Deny? Deny the MD. He is deemed to have waived
the second ground because he already asked for a relief, and
thus cannot go back and question jurisdiction of court. By
asking for relief (MFEFA), lawyer has waived 2nd ground.
Instead of MFEFA, lawyer should have immediately filed MD
grounded on MFEFA.
>In Crim Pro Voluntary Surrender. Just like in Civ Pro
voluntary appearance - asking for relief. Jurisdiction upon this
time could no longer be questioned. Another voluntary
appearance is filing of an answer even without receiving a
summons.
>Is filing of MD for lack of jurisdiction over subject matter
asking for relief from court? Yes. All motions ask for relief.
So, Aside from Lack of Jurisdiction over person of defendant
(eg. MD for lack of jurisdiction over subj matter, lack of juris
over person of defendant, and LOJ bec of improper venue, all
in one motion). The MD based on the first ground was denied.
Are the other grounds deemed to have been waived by seeking
these 3 together? NO. OMNIBUS MOTION RULE.
>Omnibus Motion Rule states that any and all grounds for a
motion to dismiss should be indicated in only one motion,
otherwise you are deemed to have deemed those grounds except
for those that are nonwaivable.
>What if defendant only alleges 2 and doesnt include a 3 rd
nonwaivable ground, and the court denies the 2, can defendant
raise the 3rd? NO.
JULY 24, 2013
VN-20130724-00001
1ST HOUR
>Waivable should be raised at the earliest possible
opportunity.
>Deemed waiver- voluntary appearance in court to ask for
relief, or filing of an answer without summons.
>Any waivable grounds not raised would be considered waived.
Note the omnibus motion rule.
>There are 4 nonwaivable grounds- Lack of jurisdiction over
subject matter, litis pendentia, res judicata, and prescription.
>(3) Improper Venue- Must be raised at the first possible
opportunity, otherwise deemed waived.
>Can venue be agreed upon? Yes, provided it is in (1)writing,
(2)executed before any case is filed, and (3) should be couched
in mandatory terms (shall, should, will) Eg. Venue should be in
the proper court of Baguio City.
>Eg. Bus ticket venue fixed in Pasay (shall be in the corporate
offices of the bus corp in Pasay City). Passenger was unable to
reach destination. Passenger files a case in Baguio City against
bus company, and the latter files an MD on the grounds of
Improper Venue. Shall the courts grant or deny the motion?
Deny the MD, because it is a contract of adhesion. There is
only one party making the terms. There should be consent
between the 2 parties. In a contract of adhesion, the other party
is just asked to consent.
>(4) Lack of Capacity to Sue- Personal character of the
parties. When such is raised as a ground by defendant, he is
targeting the plaintiff. Rules require that all civil actions should
be executed in the name of the real party in interest.
>Real Party in Interest- Party who stands to be benefited,
injured, or prejudiced by whatever decision that the court
makes. In other words, all civil actions must be prosecuted by
a real party in interest. Refers to the indispensible party
(someone who should bring the case) vs indispensible
defendant (someone who is to be sued).
>Eg. O entrusted the title of a property to X. O discovers that
X sold the property to Y, the latter selling it to Z. Now O wants
to get back his title; however, the title is now in the name of Z.
Who is the indispensible plaintiff (real party in interest)? It is
O, because he is the owner of the property, and whatever the
court decides, he stands to be either benefited or injured
(prejudiced). Who is the indispensible defendant? It is Z
because the title is in his name. A case filed against X or Y will
not return title to O. If against Z, title may be recovered, making
him the indispensible defendant. However, O may also include
X as an indispensible defendant for DAMAGES. But simply
for recovery of title, then against Z would be sufficient.
>Necessary Party (Proper)- Indispensible (cant be done
without) vs Necessary (for complete relief).
st
>Eg. Landowner mortgages his property to X (1 mortgage).
However, he again mortgages it to Y (2n mortgage). He doesnt
his loan to X or Y. Now, X, the first mortgagee, wants to
forclose the property. If he files X vs Landowner, is that
sufficient? Yes, contains indispensible parties. Sufficient,
however there is still the issue with Y who also has a justified
nd
claim, being the 2 mortgagee. So in order to have complete
relief to settle issue once and for all, X should include Y. X is
the indispensible plaintiff, Landowner is the indispensible
defendant, and Y is the necessary defendant. Because even
without Y, there can still be a case. However, the issue of 2 nd
mortgage must be settled so include Y.
>Pro Forma (Nominal) Party - For form, needed because the
law requires so. Eg. A married woman sues. The rules require
that she should be assisted by the husband. Married woman is
the indispensible plaintiff, while the husband is the Pro Forma
Party. Such is the case except as provided by law (concerns
paraphernal property, profession, career, tort or quasi-delict,
civil liability arising from crime, separation de facto for 1 year,
etc). Another eg. In a petition for certiorari, prohibition, and
mandamus, the Judge is a pro forma party and is not required to
file an answer, else ignorance of the law. Private respondent is
the person who will file an answer because said party stands to
benefit or be prejudiced by a decision.
>Quasi-Party- Those who really do not appear in court but are
affected by the decision that the court makes. Why? Kasi
nagadu da. Class suit. 2 requisites. (1) Common or General
Interest. (2) The parties are too numerous that it is
impracticable to bring them all to court. A representative few
is then selected (sufficient enough to represent common and
general interest). Eg. A, B, C, D, and F and all others similarly
situated in a class suit.
>Eg. New company brings out a new car. Unknown to the
customers, there is a defect in the car (explodes). A
complainant files a case, but discovers numerous complainants
with the same complaint 2000 complainants. Common
General Interest- give back money or new car. Class suit. If
damages is to be included, this now cant be taken in a class
suit, as each complainant would have a differing interest no
more common interest among complainants to constitute a class
suit. Only a few will go to court, while the thousand others
will be the quasi-parties. They will not go to court, but when
the court renders judgment, they stand to be benefited or
prejudiced.
>Eg. Landowner wants to evict all squatters from his property.
Landowner vs X, Y, Z, and all other persons occupying land.
Will this prosper as a class suit? No. Because there is no
common or general interest among the defendants. This is
because they are only interested in their particular portion of
land occupied. So landowners remedy is to sue each and every
iskwater.
2ND HOUR
>Lack of Capacity to Sue vs Lack of Personality to Sue.
Different from each other. General Rule All actions must be
prosecuted in the name of the real party in interest. Eg.
Principal (owner of car) commissions agent to sell his car.
Agent finds a buyer and sells it to the latter. However, buyer
doesnt pay full price so agent files a case against the former.
Buyer files an MD. Who is the real party in interest (RPII)? In
other words, who gets to be affected by a decision? Of course,
the Principal. So, if Agent vs. Buyer, is the action in the name
of the real party in interest? No. Buyer can now file an MD on
the ground Lack of capacity to sue (agent not a real party in
interest). However, agent may amend the complaint and state,
Principal, as represented by the agent to cure defect. Now,
action is in the name of the real party in interest. The agent now
becomes the representative party because he acts in
representation of another person. But what would be a better
ground? Lack of Cause of Action. Why? Go over the elements.
As to right, agent doesnt have any; rather, the principal. First
element palang waley na.
>Whom else can be a representative party? Guardian over ward.
Fiduciary Capacity.
>Lack of Capacity to Sue- We speak more of characteristic of
plaintiff. Eg. Minority. A minor cannot sue. However, minor
must be assisted by parents or a guardian. Must reach the age of
emancipation (21 daw). Insanity. Civil Interdiction (accessory
penalty) regains capacity when penalty is served and all rights
are restored.
>As to juridical persons: Domestic Corporation must state in
its complaint for capacity that it is a corporation organized and
operating under the laws of the Republic of the Philippines, and
duly registered under the Securities and Exchange
Commission. As an artificial person, it can sue and be sued
just like a natural person. Supposing it is a foreign corporation:
Can it sue and be sued? Qualify. Yes, can sue and be sued if it
is engaged in a legal business in the Philippines. No, it cannot
sue but it can be sued if it is doing illegal business in the
Philippines.
>So what should corporation state to give it legal capacity to
sue? It should state that it is legally engaged in business in the
Philippines, and its authority to do so can be seen in the etc.
etc. whatever authority gives it authority. For a foreign corp
illegally doing business, since it cannot sue, in a complaint
against it there it must be stated that it is a foreign corporation
illegally engaged in business in the Philippines.
>What if foreign corp is not engaged in business in the
Philippines? It can only sue in an isolated transaction. Eg.
Marvel Comics against pirates. What should be alleged? That
it is a foreign corporation, not engaged in business in the
Philippines, but suing in an isolated capacity.
>Where are corporate cases filed? Used to belong to the SEC,
but now transferred to the RTC. In Manila, there are RTCs
designated as Corporate/Commercial Courts.
>Lack of Capacity to sue is WAIVABLE. Thus it must be
raised at the earliest possible opportunity, else deemed to have
been waived.
>Legal capacity is stated and alleged in the complaint, also
citing its authority. Defendant can verify. If capacity is
fictitious, then file MD based on lack of capacity to sue because
their documents are spurious. Same may apply for other
grounds used for lack of capacity to sue. Defendant must prove
that basis for capacity are inexistent, fake, etc.
>Can a plaintiff be subjected to a psychiatric exam? Modes of
discovery is applicable if the physical or mental condition of a
person is in issue. If it is not in issue (eg. For sum of money),
then no. But if psychological incapacity as a ground for
annulment, then modes of discovery may be applied. Or
appointment as a guardian over an insane person. The person
may then be subjected since it is in issue.
>(5) Failure to State a Cause of Action- This is different with
LACK OF COA (rule 2). Failure to State a COA is more of
how complaint was stated. More external. Form and substance
of the complaint. This is also a WAIVABLE GROUND. Can
the defect be cured by plaintiff if said ground was not raised in
the earliest possible opportunity? Yes.
>Eg. In the complaint of plaintiff who claims ownership over
land, he stets (sic) he states that I erected a swimming pool
and planted palm trees and cattages (sic) and benches over the
land. I own all these improvements, and thus files a quieting
of title against a defendant also claiming ownership over
property. His title is noisy jeje. Plaintiff alleges that since he
put up all the improvements on the land, therefore he owns the
land. What is wrong? There is a failure to state a cause of
action.
JULY 25, 2013
VN-20130725-00001
>Failure to State a COA is not the same as Lack of COA. Form
and Substance.
>Back to the earlier case of quieting. Defendant files an MD
for failure to state a COA. Grant or Deny? Go back to the
complaint. Plaintiff states that since he introduced
improvements, it means that he owns the land. Going back to
the laws of property, the land is the principal and the
improvements are the accessories. Accessories follow the
principal. So whoever owns the principal owns the accessories.
But what plaintiff is trying to say is that since he owns the
accessories, therefore he owns the principal. Plaintiffs mistake
is the failure to allege by what right he has to introduce
improvements over the land. Therefore, there is a failure to
state a COA.
>Test. Look at allegations. Do you believe all of it? Can you
give the plaintiff what he wants? If both gets a YES, then there
is a COA. But if YES as to allegations but NO to giving of what
plaintiff wants, then there is failure to state COA. Said ground
is waivable.
>What if defendant files an answer and does not question
failure to state COA nor includes it in his affirmative defenses,
and then during trial plaintiff is now showing evidence that he
owns land which is why he made improvements, can defendant
now raise the abovementioned ground? The defendant is too
late. Ground has been waived. Must have been questioned at
the earliest possible time.
>Lack of Capacity to Sue vs Lack of Personality to Sue.
Different from each other. General Rule All actions must be
prosecuted in the name of the real party in interest. Eg.
Principal (owner of car) commissions agent to sell his car.
Agent finds a buyer and sells it to the latter. However, buyer
doesnt pay full price so agent files a case against the former.
Buyer files an MD. Who is the real party in interest (RPII)? In
other words, who gets to be affected by a decision? Of course,
the Principal. So, if Agent vs. Buyer, is the action in the name
of the real party in interest? No. Buyer can now file an MD on
the ground Lack of capacity to sue (agent not a real party in
interest). However, agent may amend the complaint and state,
Principal, as represented by the agent to cure defect. Now,
action is in the name of the real party in interest. The agent now
becomes the representative party because he acts in
representation of another person. But what would be a better
ground? Lack of Cause of Action. Why? Go over the elements.
As to right, agent doesnt have any; rather, the principal. First
element palang waley na.
>Whom else can be a representative party? Guardian over ward.
Fiduciary Capacity.
>Lack of Capacity to Sue- We speak more of characteristic of
plaintiff. Eg. Minority. A minor cannot sue. However, minor
must be assisted by parents or a guardian. Must reach the age of
emancipation (21 daw). Insanity. Civil Interdiction (accessory
penalty) regains capacity when penalty is served and all rights
are restored. As to juridical persons:
>(6) Litis Pendentia- A pending case. One of the
NONWAIVABLE GROUNDS. Can be raised at any stage in
the proceedings. Check Certificate of Non-Forum Shopping, as
it would state the presence or absence of similar cases filed in
other courts and speak of their status.
>In order to know that there is Litis Pendentia, (1) There must
be an identity of the parties, (2) There must be identity of the
subject matter, and (3) identity of the relief sought: These are
in relation to previous cases.
>Eg. Plaintiff vs Defendant for recovery of possession of a
parcel of land. During the proceedings, defendant gave said
land to defendants son. Now, plaintiff files a second case (P
vs Ds son) for recovery of the parcel of land. Can Ds son file
an MD on the ground of Litis Pendentia? Is there identity of
parties? Yes. Identity of parties refers to the identity of interests
that parties represent, and not the literal identity. The interest
is over the parcel of land. Since said interest is found in both
cases, there is identity of parties. Now, is there an identity of
subject matter? Yes. As to relief? Yes! So is there a Litis
Pendentia now? YES. There is a pending case (P vs D). What
is plaintiffs remedy? Amend the first case and include
Defendants son as another defendant to resolve issues in one
case. Further, this is to avoid multiplicity of suits. What is the
danger of allowing the 2 separate cases? Conflicting decisions.
>Eg. Plaintiff vs Defendant for Forcible Entry. Subsequently,
Defendant files a case against Plaintiff for quieting of title.
Plaintiff files an MD on the ground of Litis Pendentia. Grant?
NO. Is there identity of parties? Yes, they just exchanged roles,
but interest is the same. Is there identity of subject matter? Yes.
Is there identity as to reliefs sought? NO. Forcible Entry (better
right to possess) is different from Quieting (ownership is the
issue). Thus, these are 2 separate cases. So deny the MD. Can
these cases proceed simultaneously? Yes. Can there be 2
different judgments? Yes.
>As a rule, what gives rise to Litis Pendentia? A second case.
But it is not always true that the second case is always the one
to be dismissed due to Litis Pendentia.
>Eg. Both P and D claims ownership of land, and D is in
possession of said land. 1 year period is over so forcible entry
- ejectment can no longer be filed, so plaintiff files a case of
accion publiciana or recovery of possession (1st case). Then, in
the 2nd case, the defendant files a MD on the ground of Litis
Pendentia and quieting of title. There is Litis Pendentia, but the
1st case is to be dismissed and the 2nd case is retained, because
this is the case that will thresh out the issues between the parties.
Defendant is already in possession and thus files quieting.
Retain the case that will resolve all the issues between parties
and Dismiss the other under the ground of LP. However, P may
file a counterclaim for recovery of possession.
>Supposing the first case is on Appeal, then a second case is
filed. Can defendants son raise Litis Pendentia? Yes. For as
long as a decision as to the first case has not yet become final,
there is still Litis Pendentia. If decision becomes final and
executor, ground now becomes Res Judicata.
>RES JUDICATA Law of the case. Decision is final and
executor. For Res Judicata to set in, the above 3 requirements
must be present in addition to (4) a judgment that has become
final and executory, (5) rendered by a court of competent
jurisdiction, (6) and court rendered judgment under trial on the
merits.
>Trial on the merits- parties were given equal opportunity to
present their respective evidence (unlike judgment by default
where evidence are presented ex parte).
>Because these are the additional requirements, there is no
longer an issue as to what case is to be dismissed. The decision
in the first case is already the law of the case, and therefore that
law of the case will prevail all throughout. Any other
subsequent cases shall be dismissed. Will result in the dismissal
of the 2nd and subsequent cases.
>Eg. P vs D for accion reinvindicatoria (recovery of
ownership). Defendant filed his answer. Case went to trial and
a judgment was rendered in favor of P. Thus, he recovers
ownership. Judgment becomes final and executory, rendered
by a court of competent jurisdiction after trial on the merits.
Subsequently, P and D died. Their children now have grown up.
(well no body watches Dallas). Ds son now files a case against
Ps son for recovery of possession of Ps property where P was
declared as the owner. Ps son then files an MD on the grounds
of Res Judicata. Lets check, in the first case: (1) Is there ID of
parties? Yes, they both represent interests of their fathers. (2)
Is there ID of subject matter? Yes parcel of land. (3) ID of
relief sought? Yes, both want the property. (4) Has a judgment
become final and executory? YES. P has been declared an
owner. (5) Has the judgment been rendered by a court of
competent jurisdiction? YES. (6) Was judgment rendered
under trial on the merits? YES. Therefore, grant MD of the 2 nd
case on the ground of Res Judicata. No longer necessary to
determine as to what case shall thresh out all issues. LAW OF
THE CASE: PLAINTIFF IS THE OWNER. THUS
PLAINTIFFS SON IS ALSO THE OWNER, DERIVING
FROM HIS FATHER.
>There are 2 aspects of Res Judicata: (1) Barred by Former
Judgment Law of the case. Example is given above (regular
Res Judicata). (2) Conclusiveness of judgment different from
Law of the case. All but 2 of the 6 requisites must be present.
>Eg. P vs. D for cancellation of DOS. P claims he never
executed such DOS and the signature appearing in the DOS is
a forgery, and further, the property is a conjugal property
requiring consent of wife, and consent in the DOS was also a
forgery. After trial on the merits, the court renders a decision
dismissing the case, because the plaintiffs claim of forgery has
not been proven and therefore the DOS is a genuine document.
Since in said DOS the P sold the property to D, the latter
becomes the owner. Hence, this first case became final and
executory. After several years, P and D died. Ds son then
leased the property to X, and the latter built a factory on the
premises in question, paying rentals to the former. Here comes
Ps son, filing a 2nd case (P vs X for damages). X files an MD
on the ground of Res Judicata basing on the first case, settling
issue over said property. Is there Res Judicata? All requisites
are present, except: ID of parties (Ds interest is as an owner,
and Xs interest is as a lessee) and ID of Reliefs sought (P
cancellation of DOS, Ps son damages, different COAs).
THUS, THERE IS RES JUDICATA AS TO THE 2ND ASPECT
CONCLUSIVENESS OF JUDGMENT.
JULY 27, 2013
VN-20130727-00001
First Hour
>STATUTE OF FRAUDS (refer to notes of classmates)
>WAIVABLE
>Sale of MV must always be in writing in order to effect a
transfer.
>How about on the internet? Person orders red Ferrari but gets
a yellow pickup truck and pays with credit card. Is there a
breach? Yes. How does person prove that he did order a red
Ferrari considering the Statutes of Frauds in consideration of
the E-commerce Act? The E-commerce Act provide that for
those transactions that require written documents under Statutes
of Frauds, these requirements are deemed to have been
complied with provided there are documents that can be
produced that can be authenticated what of an electronic
transaction? Credit Card Statement of Transaction. Proofs
website is credible. It is where the person made a purchase.
Person used credit card to make purchase as evidenced by
Credit Card Statement. If these can be authenticated, then
deemed to have complied with Statute of Frauds.

>(10)Failure to Comply with a Condition Precedent
(waivable) Before one goes to court, all other requirements
must have been complied with (Eg. Referral to Lupon as
provided by the LGC). Other cases Actions between family
members require earnest efforts towards compromise. If in
Barangay, certificate to file an action. What about suits
between family members? State allegations in the complaint,
this is a suit between family members and earnest efforts were
exerted via several family meetings in order to arrive at a
compromise; however, all efforts failed to be proven in a
trial. Family would refer to cases involved parents and children
immediate family members (parents vs children, children vs
children). What if Brother vs. Brother and Brothers Wife? No
need to exhaust all efforts because a stranger is involved (wife).
Another case, Administrative cases exhaustion of
administrative remedies. Outline in the complaint the steps
taken to exhaust all administrative remedies.
>MOTION TO DISMISS CAN EITHER BE GRANTED
OR DENIED.
>IF GRANTED, CASE WILL BE DISMISSED. However,
the remedy of appeal is available to a plaintiff.
>IF DENIED, DEFENDANT WILL BE REQUIRED TO
FILE HIS ANSWER, within the remaining period he has left
after he filed the motion to dismiss.
>Eg. Defendant receives summons July 1, 2013. Thus, he had
15 days to file an answer. Instead of filing an answer, D files
an MD on July 5. Since an MD is a litigated motion, this was
heard on July 12. However, the court denied it on July 22.
However, Ds counsel received this on July 26. How many
days does D have left to file an answer? and up to when?
According to NCC, exclude the 1st day and include the last day.
Also, the filing of the motion interrupts the period. When
counting the days, we include weekends and holidays. And if
the last day falls on a weekend or on a holiday, it does not
continue to run until the next working day. Thus, based on said
rules, what are the answers?
>Supposedly, he had up to July 16 to file an answer. So we
exclude July 1 when summons was received, according to the
NCC, and also exclude filing of MD on July 5, since this
interrupts running of period. Given so, 3 days has lapsed (July
2, 3, and 4). 15 -3 = 12. Thus, he had 12 remaining days.
Then, count 12 days from July 26 (again, exclude July 26 from
counting since it is a 1st day). We arrive at August 7 after
counting 12 days, including the 12th day (last day as according
to the NCC). Thus, he has 12 days left to file an answer, and he
has up to August 7 to file an answer.
>Why start counting from July 26? Because it was the date
when defendant received notice of the denial of the MD.
>Supposing a Motion for a Bill of Particulars? Same. Anything
that interrupts. General rule- do not include the day you
received the summons or the day that interrupted the period.
Start counting again from the time of the receipt (not the denial
per se) of the denial.
>However, if Motion for Reconsideration, we have a fresh 15
days from denial of said motion.
>DEFENDANT NOW FILES AN ANSWER.
>Remember that Plaintiff files the initiatory pleading (starts the
ball rolling), which requires a CONFS and Verification.
>What about an Answer? This is a RESPONSIVE
PLEADING. Will this require a CONFS? No. This is only
mandatory in initiatory pleading. How about a verification?
Not necessarily; however, there are instances where such is
required in an answer.
>Answer contains the defenses of the defendant. These
defenses can either be Negative Defenses (ND) or Affirmative
Defenses (AD).
>ADs are all the grounds for MD. Yes, even if all those things
that you are saying are true, still you cannot recover from me
because GROUND. ADs are hypothetical admissions of
plaintiffs allegations.
>Instead of filing an MD, D might as well include AD in his
answer.
>Can a Ds answer include both AD and ND? YES. Why? Just
in case his AD are denied, then the ND can compensate.
>ND are specific denials.
>Right after an answer is filed containing AD, a hearing is
conducted (litigated) to determine whether grounds are
sustainable. If the court denies the AD, the hearing continues
and looks at the remaining defenses, the ND (Specific Denials).
>An answer may both have AD and ND, or only the ND.
>Answers, defenses, etc are numbered for easier reference.
>If it is an ABSOLUTE DENIAL, must state reason behind
denial.
>Eg. In an allegation, it says that D signed a PN. The D then
absolutely denies said allegation by stating that D does not
know how to write. Absolute Denial + Explanation. What if
only the absolute denial was given but was never explained?
This is what is called a Negative Pregnant (Open to multiple
interpretations).
>PARTIAL DENIAL may also be given (admit some, deny
some).
>Eg. In the allegation- That defendant appeared in the house
of the plaintiff and signs promissory note. The D can make a
partial denial, That defendant admits being in the house of the
plaintiff but denies signing the promissory note because the
defendant does not know how to write.
>LITERAL DENIAL Denial is made because there is no
sufficient knowledge to form a belief as to the truth or falsity of
plaintiffs statement.
>Eg. In an allegation, it says- Because of the act of defendant,
Plaintiff suffered depression and couldnt eat or sleep, thus
defendant must be made to pay damages. Defendant has no
knowledge of such so he makes a LITERAL DENIAL, having
no basis to say whether such are true or not.
>Look at the answers filed by defendants and try to identify
what kind of denials are made.
>Avoid blanket denial. The defendant denies everything!!!.
A blanket denial is deemed an admission.
>Who brings out the issues in every case? It is the
DEFENDANT. Why? Because defendant is the one who denies
or admits. In the plaintiffs complaint, we just have a story
about how his right is violated. We still dont have an issue
because we do not know whether such allegations are true or
false. Upon the answer of the defendant, admissions and
denials are made. Upon admission, there is no issue; however,
upon denial, a conflict is created giving birth to an issue. If
defendant admits everything, then a judgment based on the
pleadings may be rendered, there being no issues.
 Second Hour
>The answer of the defendant usually need not contain
verification. But when should an answer contain a verification?
Verification becomes necessary when the complaint is based on
an actionable document (any instrument that becomes the basis
of the case, eg. Promissory Note collection of sum of money
from an unpaid loan based on a Promissory Note. Breach of
Contract Contract is the actionable document). So what if it
is based on an actionable document? A document contains an
agreement put in writing, which could be a gospel truth unless
proven otherwise. What is its connection with the verification?
The rules require that when such document is to be denied, then
it is to be specifically denied under oath. How? In
verifications, there must be a sworn statement to the effect that
everything stated by the lawyer is the truth and that client can
prove such claims as truth, and signed by the client. To
determine that the specific denials of defendant are under oath,
there must be a verification. If there is no verification to a
specific denial, then the defendant is deemed to have admitted
the due execution of and genuineness of the actionable
document.
>Eg. P vs D based on a Promissory Note. In the complaint, P
alleges that D borrowed 100k for which he executed a PN
stating that, I, D, promise to pay P the amount of 100k on or
before June 1, 2013. Is the PN an actionable document? Yes,
because it is the basis for the sum of money, showing that a loan
has been incurred. In the Ds answer, he says, I specifically
deny that I signed the PN because that signature on the PN is a
forgery. That is not how I sign my name. I just scribble my
initials, and yet in the PN, my name is clearly spelled out. Did
the D specifically deny it? YES. However, there is no
verification (because the lawyer forgot). Plaintiff files a Motion
for Judgment on the Pleading (available only to a Plaintiff,
based on an answer filed by defendant that tenders no issue).
What is the effect? Defendant is deemed to have accepted the
due execution and genuineness of the document. He can no
longer question this. Due execution done willingly (under no
duress) and Genuineness Real signature, and he was the one
who signed it. If this would be the case, as a judge, should you
grant the motion for judgment on the pleading? YES. Why?
Because defendant brought out an issue but admitted it, because
he did not make a specific denial under oath.
>What if in Ds answer, he says, yes, I signed the PN in his
presence, but P did not give me the money. In effect, what D
is saying is that there is no consideration for the PN.
>The given denial was not supported with a verification, so the
P files for a Motion for Judgment on the Pleadings. Grant or
Deny? Deny. Why? Because denial was merely partial.
Verification is needed for denials where due execution and
genuineness (DEG) is involved. D never raised fraud or
forgery. Lack of consideration is a different matter and has
nothing to do with (DEG). Consideration refers to the intrinsic
part, unlike DEG which refers to the extrinsic part. The
actionable document rule only presupposes due execution and
genuineness of the document itself and does not talk of any
other thing aside from that.
>Every signature is MONEY! Absurd.
>All allegations must be captured in one statement and sworn
in the verification, which is signed by the D.
>If complaint is not based on an actionable document (eg.
Damages- I promise not to run you over, or Specific
Performance), is verification necessary in an answer? OF
COURSE NOT. However, if it is based on an actionable
document, a verification is necessary in order to show that the
requirement of a specific denial under oath has been complied
with. What we are saying is that if it is an actionable document,
you have to specifically deny that document, that it is untrue,
and saying that needs to be under oath, presupposing telling the
truth.
>The defendant must execute a statement under oath in the
verification to the effect that everything his lawyer wrote was
the truth. Again, if not under oath, the D is deemed to have
admitted the DEG of a document. Thus, P can now file a
Motion for Judgment on the pleadings.
>Must the D furnish a copy of his answer to the P? YES. How?
Same with service of pleadings Personal, Registered Mail,
etc.
>Supposing D furnished a copy to Ps counsel via registered
mail, and acquired a proof of service. D then files the same in
Court, however absent the explanation. P now files a Motion
to declare D in default. Must the Court grant the motion? YES.
Why? Because D failed to include a written explanation as to
why personal service was not done and registered mail was
resorted to. The answer is deemed a mere scrap of paper, as if
JULY 31, 2013
no answer was filed.
VN-20130731-00002
>Aside from the answer, the D may also couple another
pleading with his answer COUNTERCLAIM (CC). Is there
FIRST HOUR
a CC that goes on its own? None. It must be coupled with an
>RECAP:
answer. Answer will merely contain Ds defenses, but the CC
>Negative defenses- Specific Denials
contains the COA of the D. For plaintiff, COA against
>Affirmative denials Grounds for MD
defendant is embodied in a complaint, while for defendant,
>Must they be verified? General Rule, NO. But if answer is
COA against plaintiff is embodied in a CC (not another
based on an actionable document, then specific denial must be
complaint).
under oath. Via sworn statement of defendant in the
>SOOOoooOOooww, its like dot! You think you are di only
verification. Based on an answerable document verified.
one? Me I also have!
>Recoupment another term for CC.
>The answer can be coupled with a counterclaim. A CC is the
>How will the plaintiff file the CC? By coupling it with the
claim of the defendant against the plaintiff.
answer. Answer with Counterclaim.
>Eg. Defendant files a claim against Plaintiff if D himself has
>In one document, the D has 2 pleadings: 1 st pleading is the
a claim against the P. That is called a CC.
answer containing all his defenses, while the 2nd pleading is the
>In other words, a CC is the claim of the D against the P.
CC containing the COA.
>How about the Answer, is that also a CC? No, the A contains
>What if D forgot to include the CC in the answer? Can he bring
the defenses. From the word itself, it is an answer against the
it in the same case? Depends on the court, but must be brought
complaint. But for a CC, it also contains a complaint against P.
before judgment is rendered. Also, there are 2 kinds of CCs,
>It is called Recoupment in other books (to get back).
either compulsory or permissive.
>A CC can either be Compulsory or Permissive.
>Compulsory Counterclaim (CCC)- One that arises from the
>If Compulsory, it arises from the same transaction subject
same transaction subject matter of the complaint. Meaning, it
matter of the complaint.
is compulsory because it is related to the complaint filed by
>Regular CC, Because of this case filed against me by the P, I
plaintiff. If there is no complaint from the plaintiff, then there
was constrained to hire the services of a lawyer for which the P
is no ground for the CCC of the defendant.
should be made to pay. I suffered sleepless nights thinking
>Because this case was filed against me, my reputation in the
about what this case is going to do to me, for which the P should
community got besmirched
be made to pay moral damages. My reputation in the
>Because of a ruined reputation, I should be entitled to moral
community is now destroyed because everyone is talking about
damages in the amount of P20.00
me. Etc
>Hyat: Maam, time na.
>Those are all compulsory complaints because they arise from
>Judge M: uuuUUoooOOhhh you just let me finish dis! Thats
the same subject matter of the complaint. Because it is
the problem. You should have never let me start.
compulsory, what is the requirement? To be compulsory, it
>I have to defend myself, which is why I hired a lawyer to
must be within the jurisdiction of the court.
whom I promise to give P500,000.00 because he took the bar 5
>Eg. P vs D for sum of money. Because this was only for 300k,
times
it was filed in the MTC. However, the D had a CC. In his CC,
>And that is a CC. Is it compulsory? Yes, because it would not
he says that, I am an outstanding citizen in my community, and
have arisen if not for the suit filed by the P.
I already paid that measly 300K. Now, because of what you
>Ill see you on Tuesday for the quiz, and Ariel, thank you so
much for the pens. Next time bring them again.
did, you should pay me. But since I am not only worth 300k
and more than that, my counterclaim is now 1M.
>Is that a compulsory CC? NO. Why not? It may arise from
the same subject matter of the complaint but definitely it is
outside the jurisdiction of the MTC. So can the MTC take
cognizance of the CC? It cannot because it is outside of its
jurisdiction. If the D insists on maintaining his CC there, the
MTC can dismiss it outright. So even if it arises from the same
transaction, to be compulsory it must be within the jurisdiction
of the same court.
>Are we saying then that the D can file another separate case in
the RTC, this time the D as P, and the P as D as a CC? YES,
provided that he has grounds. Will it be for sum of money? No.
Damages, based on Malicious Prosecution.
>Supposing the first case was dismissed in the MTC because
the D was able to prove that he paid. How about the case filed
in the RTC? Will it continue or will it be dismissed? Since it
is now a separate case, the RTC can decide accordingly (either
dismiss it because the case from where it arose was dismissed,
or can continue to hear it if there are indeed grounds for
malicious prosecution).
>But the point is, if it is really a CCC, it must be within the
jurisdiction of the court.
>Eg. P vs D for sum of money (300k). D has a CC claiming
that for the past 2 years, he worked as a caretaker for P and has
never been paid for 2 years amounting to 200k. Further, D asks
for offsetting which would amount now to 100k. Is this now a
CCC and within the jurisdiction of the MTC? The amount is
within the jurisdiction of the MTC, BUT THE NATURE IS
NOT. Why? Employer-employee relationship is involved,
unpaid salaries, wages, belong to the NLRC and not the regular
courts. So is it a CCC? No, because the regular courts have no
jurisdiction.
>What is a CCC? If it is a CCC, it has to be included in the
main case, otherwise it may never be filed anymore.
>What if the CCC was not included in the answer, will you be
allowed to raise it anytime? Yes, the court will allow anytime
before judgment. On what grounds? FAME.
>EG. P vs D for recovery of personal property (car). D just
files an answer without a CCC. Decision D, return the car to
the P, the latter is the rightful owner of the car. Decision
becomes final and executory. After returning the car, D realizes
that he forgot about all the improvements he made on the car.
So D now files for damages against P to recover the expenses
he incurred when he made improvements on the car. As the P,
have the case dismissed and grounded on RES JUDICATA.
There is now a law of the case from the 1st case. The D should
have raised the damages in the CC, because it would have been
a CCC as it arises from the same transaction subject matter of
the complaint.
>GUIDE QUESTION: Will the evidence needed in the first
case (in the complaint filed) be the same evidence that will have
to be produced in the 2nd case? In fthe first case, P had to prove
that he owned the car, and therefore was entitled to it. What
about D? D also had to prove that he had a reason to own and
thus keep the car in order for the case to be dismissed. So, those
are the sets of evidence needed proof that P owned the car and
that D also had a right to the car. You go to the next case for
damages. What evidence now does the D have to prove? He
will have to prove that he was the owner of the car which is why
he installed all the improvements. And what does the P have to
prove so that he wont be liable for damages? He would have
to prove that he was the owner of the car so the D would have
no right to introduce improvements.
>Are those sets of evidence the same with the 1st case? YES.
Thus, a CCC and should be raised in the main complaint with
the answer or anytime before judgment. If filed with the
answer, then OK. But if filed before judgment, LEAVE OF
COURT IS NEEDED. Done via MOTION FOR LEAVE OF
COURT TO FILE CC. Attach a CC with the motion.
>When you file a motion for leave of court, you have to attach
what you want the court to consider (CC).
>This is because the Court must first read the CC to determine
whether they would grant the motion.
>If meritorious, MOTION FOR LEAVE OF COURT may be
granted. The CC attached to the Motion may now be admitted
and made part of the records of the case.
>Is a CC an initiatory pleading? It depends. If it is compulsory,
it is not an initiatory pleading because it is a continuation of the
first case. But if it is a permissive CC, it is an initiatory
pleading.
>Eg. Refer to a pleading with a CC.
Prayer
1) That the complaint is to be dismissed
 2) That on his CC, the Court order the P to pay the
Defendant
>D is asking for the dismissal of the case and is also asking for
P to pay.
>Does a prayer need to be verified? Yes, because it has a
complaint. And complaints always need to be verified.
>Must there be a certificate of nonforum shopping? Depends.
>CCC doesnt need a CNFS. But for PCC, CNFS is needed,
plus docket fees.
>A PCC is separate and independent, and does not arise from
the same transaction subject matter of the case.
>Eg. P vs D for recovery of real property. However, D alleges
that when they were good friends, P borrowed money from him
for which P signed a PN the amount of which is 500k.
Therefore, D now wants P to pay him the 500k loan. Is there a
connection between the recovery of real property with the PN?
None. So meaning, can the D file an entirely separate case?
YES. But in order to avoid multiplicity of suits, D can include
it as a Counterclaim via PCC + Verification + CNFS + Docket
Fees (A separate complaint altogether).
>For CCC, initially there is no docket fees, but upon judgment
on the CCC in favor of D, the docket fees will constitute the
first lien on the judgment in favor of the D. At first, the D need
not pay because its a CCC, but if he wins, docket fees are
deducted from what is to be awarded to him.
>PCC, may be included in the first case, or may also be filed
entirely separate from the main case.
>Eg. Interesting case daw. A truck and a van had a collision
along a bend in the road. Van landed in the ravine and was
totally wrecked, while the truck only suffered some damages on
the front part. The first one who filed the case was the truck
owner against the van owner, claiming that the damages
amounted to 120k, thus filing it in the MTC. The van owner,
upon filing of the case against him, also filed a case against
truck owner. Because the van was totally wrecked, the van
owner filed a claim of 450k against truck owner before the
RTC. The truck owner filed an MD based on litis pendentia.
Same parties, subject matter, and reliefs sought in both cases.
Truck owner said that D should have instead filed a CCC,
because his claim arises from the same transaction subject
matter of the complaint. But van owner questioned the
possibility of this since his claims was outside the jurisdiction
of the MTC. Truly, Ds case is a CCC, but because of the
amount, it is taken out of the jurisdiction of the RTC. If 2 cases
are allowed to continue, there may be conflicting decisions.
What then can be done? CASES ARE TO BE
CONSOLIDATED IN ONE COURT. WHERE? RTC
COURT OF GENERAL JURISDICTION.
>Consolidation is allowed in the RTC provided one of the cases
is cognizable by the RTC.
>If it is a CCC and is included with the answer, and the main
complaint is dismissed, is it automatic that the CCC is also
dismissed? Not necessarily. When a complaint is dismissed, it
does not carry with it the dismissal of a CC. Remember,
affirmative defenses contain grounds for MD. Upon hearing
and court finds merit in the affirmative defenses in the answer
and dismisses the case, the dismissal is only limited to the
complaint.
>The decision further continues, The D is given 15 days from
the receipt of this order/resolution stating whether he will
pursue his CC in the same case, or choose to separately pursue.
>If D pursues it in the same case, such is set for reception of
evidence.
>That is why do not file an MD else you foreclose (once MD is
granted) your chance to file a CC. Because there is no such
animal as a MD with CC. Instead, file an Answer with CC so
that you can pursue the CC even if the case is dismissed by
merit of affirmative defenses.
SECOND HOUR
>Students: Maam rest, REEEST!!!
>Judge M: No. Ill finish this.
>Another Eg. 1st case was filed by P against H&W for
cancellation of a deed of sale (DOS) claiming that the DOS was
not signed by the W, the property being conjugal, and that any
disposition thereof needed wifes consent. In the DOS, it is
alleged that the Ws signature was a forgery. Another ground
that was mentioned was that the DOS was null and void because
the H&W are members of the indigenous people. Under the
NCIP, for the disposition of a land by someone from the IP, it
should bear the approval of the NCIP. Why? To show that IP
understand what they are disposing of that it is an ancestral
land. Anyway, as alleged, the DOS had no approval from the
NCIP. However, the case was dismissed because it turned out
that there was no forgery and that the NCIP approved it. The
H&W was able to produce a DOS with the approval of the
NCIP. What was attached to the complaint was a DOS without
the NCIP approval. The P, not contented, filed a case (2nd case)
against the H (W passed away) for damages because H rented
out the property to somebody else, and that P was claiming the
rentals alleging that he was the owner. But because of Res
Judicata, the case was dismissed. The H then also died, and the
P filed a 3 case against H&Ws children, reiterating the above-
rd
2 claims (which landed in Judge Ms court). The children filed
an Answer with CC. Their answer contained affirmative
defenses Res Judicata, while the CC (enough is enough)- we
incurred several expenses because of these expenses from the
time of our parents by the same old man. Thus we should be
entitled to damages. Thus, the 3 case was dismissed, and the
rd
children of H&W were allowed to manifest whether they would
like to pursue the CC in the same case or file another case. The
children decided on the former, thus the court set the CC for
hearing to receive evidence. No more pretrial. Was P notified?
Yes. However, during the presentation of the evidence of the
CC, the P did not appear. The children testified about the cases
filed by the old disgruntled fellow. Now the children were
claiming for attorneys fees and damages. The court rendered
favorable judgment on their CC.
>Was that a CCC? Yes. So far, that is the only CCC I granted
in favor of the D. All the other CCCs had no basis.
>Weak Heart Doctrine Dismiss CCC hahaha. It takes more
than saying you could not eat or sleep to prove moral
damages. Anxiety and depression must be shown.
>P vs D1 and D2. P (complaint), D (counterclaim). But is it
possible for a D to have a claim against another D? Yes. It is
called a Cross Claim (XC). It is a claim of one defendant
against a co-defendant arising from the same transaction subject
matter of the complaint.
>If it is a CC, it can be compulsory or permissive. What about
a XC? By its very nature, it can only be compulsory. It is just
called an XC. If a D has an XC against another D, then they
should have different lawyers.
>P lends money (1M) to D and E. But since D is the thinker
and doer (manager), E takes care of the finances. Their
arrangement as far as the 1M is concerned, D manages the
business while E manages the finances in order to pay P. D
gives money to E for the latter to pay their debt to P. But then,
D receives a complaint from P for collection of sum of money
so D goes to E and asks him about the finances. D asks, what
have you been doing with the money, bitch? D files his answer
and also files an XC against E for the latter to take
responsibility.
>Answer + XC. Check sample pleadings. D says, if the court
finds me liable for my share, then by way of XC, I want E to
shoulder everything (that E be made to pay all the loan
including what I may be liable for).
>XC, by its very nature, is compulsory. So, if the main case is
dismissed, will it carry with the dismissal of the XC? YES,
because it has no more legs to stand on. The complaint gives
rise to the XC. Were it not for the complaint, there would not
be an XC. So when you dismiss the main complaint, then there
would no longer be an XC to speak of. The XC is dependent
on the main case.
>Must an XC be verified? An XC is a COMPLAINT by one D
against a Co-D. So must it be verified? YES.
>Does an XC require a CNFS? An XC, as a general rule, is not
an initiatory pleading. HOWEVER, in a Supreme Court
Circular, they consider an XC an initiatory pleading for the
purposes of DOCKET FEES.
>If taxes are the lifeblood of the nation, docket fees are the
lifeblood of the courts.
>Thus, being included among those considered as an initiatory
pleading, an XC require a CNFS.
>Also, because it concerns matters separate from the P but only
between 2 Ds, then it would also need CNFS.
>Despite that, an XC derives its life from the main complaint.
No main complaint, no XC.
>Otherwise, dismissing the main complaint and letting E pay D
would be UNJUST ENRITSMENT.
>Since by its very nature a XC is compulsory, it then has be
raised in the main case.
>Can it be raised at any time before judgment (like a CC)? YES,
but with Leave of Court. The court will allow filing of XC on
grounds of FAME, before the judgment is rendered. If XC not
raised in the same case, then it is forever barred. That is why
an XC has the same effect as a CCC.
>Question? Yes Valentines Day.
>Val: Maam can E file a CC against the XC filed by D against
him?
>Judge M: So can E have a CC also against D?
>Val: Yes maam.
>Judge M: You know, you dont call it a CC because the CC
is only against the person who filed the case. E can file
2 answers- Answer to a complaint, and ANSWER TO XC. Not
Answer to the XC with CC.
End of midterms
FINALS
AUGUST 24, 2013
SATURDAY MAKEUP CLASS NOT ATTENDED
AUGUST 29, 2013
AMENDMENT
-Any correction, substitution, alteration of the original
pleading.
-Underline the amended in the heading Amended
Complaint
-Went to the house is changed to Went to the store
-This is done for the Court to see what exactly are the changes
made. It can also be put in bold letters (consider etiquette),
but underlining is sufficient.
-Whats important is that the Court immediately notices the
changes made.
-Can the Plaintiff amend his complaint? Yes. Can the
Defendant amend his answer? Yes. When? It depends on the
kinds of amendments made.
-1) Amendment as a Matter of Right- A matter of right.
You can put any amendment. It is only a matter of right if
done once before a responsive pleading is served (not
filed). There is a difference between served and filed.
-For the plaintiff, he can amend his complaint as a matter of
right before he receives the answer, and not when it is filed.
-Eg. Today, you receive the answer. [Since service comes
before filing (what is filed in court is one that shows proof of
service)] However, the defendant wont be able to bring the
answer to Court tomorrow. He is only able to bring it to Court
on Monday. From today and tomorrow, can you still amend
your complaint as a matter of right? No more. Because you
received the answer today (served to you).
-If as a matter of right, you can amend anything. Eg. P vs. D
for Forcible Entry. The assessed value of the property is 50K
and P files the case before the RTC. Right away, the Court
can dismiss it outright. On what ground? Lack of Jurisdiction.
Even if the amount is 50K. Why? Because Forcible Entry is
under the exclusive jurisdiction of the MTC. But, the RTC
was not able to see that. It took cognizance of the case. When
summons was served on defendant, he saw that it was for
Forcible Entry and was filed before the RTC. Thus, D filed an
MD grounded upon LOJ. Plaintiff receives MD. This time, P
files an amended complaint. The MD is set for hearing on
Friday next week, Sept 6. He thus files an amended
complaint, and underlines amended and changes complaint
Recovery of Possession and underlines it. Is this
amendment allowed? (an amendment conferring jurisdiction
to a court that had previously no jurisdiction super super
substantial). Yes, the amendment is allowed. Because it is
an amendment as a matter of right. ONLY ONCE BEFORE
A RESPONSIVE PLEADING IS SERVED. But wait! There
was a Motion to Dismiss! No, an MD is not a responsive
pleading. What is a responsive pleading to the complaint?
ANSWER. Was there an answer filed? None. What was filed
by D was an MD.
-Thus, under this, any kind of amendment can be made
provided it is done only once.
-Based on the above-example, when the Court receives the
amended complaint (which confers jurisdiction now to the
RTC because of the assessed value of 50K as to Recovery of
Possession) and finds that the MD no longer has a basis (LOD
Forcible Entry), the MD is denied without hearing and
Defendant is given 15 days to file an answer to the amended
complaint.
-Again, before being served the answer, P tries to make a 2 nd
amended complaint adding damages and makes the proper
underlining. Now it becomes, Recovery of Possession and
Damages. Will the second amendment be allowed? NO
MORE. Why? Because it is already the 2nd amendment and
that the P is only entitled once before service of a responsive
pleading.
-Supposing the MD was set for hearing on September 6, and
on that day the Court says, ok we will consider the Motion
submitted for resolution. Before the Court could even
resolve the MD, here comes the amended complaint For
Recovery of Possession. Can the court still accept it? Take
note that the MD was heard already, and is submitted for
resolution. But before the Court could issue a resolution, the
amended complaint is submitted. Will it still be accepted?
YES, because there is no resolution yet. Again, a MD is not a
responsive pleading.
-Suppose the Court Dismisses the case based on the MD.
After the P receives the decision, he files an amended
complaint on the next day. Should this be accepted? YES.
The decision is not yet final (15 days from receipt).
Therefore, P can still amend complaint before expiry of said
period, provided he does it once before a responsive pleading
is served.
-Amendments should be done within the time given the D to
file an answer (15 days).
-ASSIGNMENT: PERIODS WITHIN WHICH TO FILE
RESPONSIVE PLEADINGS.
-Answer- 15 days.
-Foreign juridical entity licensed to do business in the
Philippines- 15 days if summons is served to a resident agent,
but 30 days if served to a Govt office entitled to receive the
same.
-How many days to file a reply? ASSIGNMENT. Memorize
the periods and the dates.
-So, P is to be guided by the 15-day period in filing his
amended complaint.
-How about D? He wants to amend his answer as a matter of
right. Can this be done? Yes. When? Once before a
responsive pleading is served. What is the responsive
pleading to an answer? A reply. How many days does the P
have to file a reply? 10 days from receipt of the answer (That
is your assignment but I am giving it to you as a bonus).
-Isnt it that the filing of a reply is optional? (Except when
answer is based on an actionable document mandatory, so D
can deny under oath). Whether or not a reply is filed, the
effect is the same. When would it be considered as a Matter
of Right when a D wants file an answer (considering that
usually responsive pleading to an answer reply is optional)?
When will we recon it? 10 days from receipt of the answer.
Therefore, if the D wants to amend his answer as a matter of
right, he has 10 day from the time he served his answer to the
P. But if the period expires, no longer a matter of right
because P will no longer file a reply.
-Summary- If its for the P, no problem because there will
always be an answer thus, 15 days. But, for the D who
wants to amend his answer but is unsure whether P is going to
file a reply, then it is to be based on the 10-day period from
service of answer to P. After the 10-day period, even if there
is no reply filed, it is no longer a matter of right. It will
already have to be with leave of court.
-
-2) Amendment with Leave of Court- Needs a Motion for a
Leave of Court. Motion to File an Amended Pleading.
When does this come in? After a responsive pleading is
served. Or, second amendment before a responsive pleading
is served. Or, substantial amendments. Discretion of Court.
-What are considered substantial amendments? Eg. Increasing
the liability of a D from 500k to 1M. Or including another
defendant. Or, changing of COA.
-Motion for Leave to File an Amended Complaint / Answer is
a litigated motion. At all times when you ask permission
from the court, it is always a litigated motion because the
court before exercising its discretion has to listen to what the
adverse party has to say to the motion. Then, depending on the
ruling of the court, it will accept amended complaint/answer.
-3) FORMAL AMENDMENTS Simplest. Only refers to
clerical and typographical errors. Can be done during the pre-
trial stage. Eg. Grammatical errors. You can just cross out
such error and insert correction, signature on top, and date.
(instead of filing a whole new complaint) Eg. Okay madam
witness, when was you born?
-Non submission of a verification. How do you cure absence
of verification? Just make a formal amendment including a
verification. What if complaint has no CONFS, can it still be
amended to include such? NO. Absence of a CONFS is not
curable by amendment.
-Any clerical or typographical error, or the absence of a
verification can be cured by a formal amendment.
-4) AMENDMENT TO CONFORM TO EVIDENCE- P vs
D (damages based on quasidelict). However, in the complaint,
P only spells out hospital bills, loss of income, professional
fees (all of which are actual damages) amounting to 500K.
Thus, D files an answer and they proceed to trial. In the trial,
the only issue raised was WON the P is entitled to her claim of
actual damages in the amount of 500K. That is only the issue.
During the trial, P takes witness stand and she testifies and
presents all her receipts, bills, pay slips, etc. After such, the P
starts to give testimony regarding her ugly scar (run on her
stocking) and tries to prove moral damages. At that point, can
Ds counsel object? YES. If Ds counsel does not object and
Court believes there are grounds for Moral Damages even
without such having been stated in the complaint, can the
Court award Moral Damages? YES. The court will have to
order the P to amend her complaint in order to conform
with the evidence.
-But despite the order, the P does not amend her complaint.
Can the Court still award Moral Damages? YES because the
evidence is already on record. Order is just for the increase of
docket fees. If there is no payment and there is no
amendment, the additional docket fees shall serve as the first
lien on the award.
-EFFECTS of Amendments:
1) It supersedes the pleading it intends to amend. Supersedes
prevails. Prevailing complaint / answer, superseding the old
ones. Now controlling. Original complaint / answer remains
on record. Its just that it will no longer be considered because
it has been superseded.
AUGUST 31, 2013
+++FIRST PARTS WERE NOT RECORDED+++
-That marked document now becomes part of the judicial
affidavit of the witness and must therefore be attached to the
judicial affidavit. What do we attach? The original copy. You
will learn in your rules on evidence that the best exhibit is the
original document itself. At the end, the witness signs. Since
it must be under oath then Jurat.
-NOT YET COMPLETE. The lawyer who took the statement
must also prepare an attestation clause. He will state that he, as
the lawyer, was the one who propounded the questions to the
witness, received the answers, recorded it, and did not in any
way coach the witness. He also has to appear before a notary
public and he himself will testify to the notary public as to the
truth of his attestation clause.
-So in the Judicial Affidavit, you will see 2 Notaries Public.
(The lawyer who took the statement and the lawyer who
subscribed to the oath of the first lawyer).
-(kin-inam! - vulva of your mother Franco)
-Judicial Affidavit must be submitted together with pretrial
brief. If not submitted, or a wrong JudA is submitted, the judge
can fine you. Finest Judges.
-In trial, the witness who has a JudA is presented. He will take
the witness stand and will be sworn in. Will be shown and
asked about the JudA for direct testimony. This cuts down the
proceedings.
-JudA are attached together with the exhibits. It is submitted to
the court and furnished to the adverse party, for the latter to be
ready for the cross. (photocopies of the JA and exhibits
-JDR IS MANDATORY IN ALL CIVIL CASES. However,
in criminal cases, if the penalty is 6 years and below, it is
mandatory (MTC has jurisdiction). Thus, all criminal cases
before the MTC requires the use of JDR. But if penalty is 6
years, one day and up, the JDR will apply only if the accused
gives his consent. In these criminal cases, who will get the
testimony of witnesses? The prosecutors. Huge implication, as
it cuts short their gulf gulf time.
-For criminal cases, JDR is not applicable until January 1, 2014.
They have a 1 year reprieve to arrange logistics in their office.
However, if there is a private prosecutor, JDR applies. The
private prosec has to prepare the JudA.
-Supposing the lawyer is lazy and puts things straight in
English? Upon cross-exam of said witness and English is used,
testimony can be objected against. Once the court sustains this,
the witness can no longer be presented. JudA was wrong from
the start because it was prepared in English. So make sure you
put it in the dialect of the witness.
-Lawyers perception, not the witness.
-The JudA of witnesses must be submitted together with the
pretrial brief, at least 5 days before the pretrial date.
-On the day of the pretrial, we do not have the pretrial. Why?
Because we will have the Court Annexed Mediation (CAM).
File it first in Court then go to Mediation.
-In the Philippines, there is a referral to the Lupon but it doesnt
work because it is very political so they go to court anyway.
-Under the new rules (which will take effect probably next
year), you have to show that you have undergone 2 mediations
before going to Court (patterned from Canadian system).
Under the new rules, you go first to mediation. If it fails, go for
arbitration.
-Right now we have mediation, but it is not in the Rules of
Court. So what is its authority? Check Rule 18 (Pretrial),
under Section 2 (Things to consider during pretrial)-
Alternative Modes of Dispute Resolution. There must be other
ways to resolve the case without going to court. What would
this be? Mediation.
-Accredited mediator is one who has undergone the necessary
training conducted by the SC under the Philippine Judicial
Academy. Qualification At least 30 years of age.
-All civil cases require mediation.
-As to criminal cases- only the civil aspect of theft, estafa,
qualified theft, BP 22. Under the rules, the criminal aspect can
never be compromised. During settlement of the civil aspect,
we still proceed with the pretrial of the criminal aspect.
-It can also happen that upon compromise, the complainant
would no longer like to testify against the accused because of
the settlement of the civil aspect in the mediation. What
happens then? The criminal case would be dismissed because
there is no longer any testimony- not because it was
compromised but because there is no more evidence against
accused. This is because the only who can give evidence
(private complainant) refuses. That is the reason why the
above-criminal cases are allowable for mediation as to the civil
aspect, and not other crimes such as murder, rape, etc.
-In said criminal cases, may parties refuse to mediate on civil
aspect? YES.
-Lupon lawyers not allowed. Mediation allowed.
-If parties enter a compromise agreement in a mediation, said
agreement is signed by parties. If lawyers are there, they also
sign. Then it is signed by the mediator, as well as by the staff
of the Philippine Mediation Center.
-If successful, the agreement is submitted to the Court. The
moment it is submitted to the Court, the court renders a
judgment. What is the judgment? It copies exactly the
compromise agreement verbatim.
-Wherefore, finding the compromise agreement not contrary
to law, morals, public policy, etc. the court approves the
compromise agreement and renders judgment in accordance
with the terms and conditions of the agreement, and the parties
are directed to comply with the terms and conditions faithfully
and religiously. That would now be the judgment.
-Judgment becomes final and executory on the day of the
judgment itself, because it is based on a compromise agreement.
There is no more trial. Therefore, since it was agreed upon by
the parties, it becomes final and executory on the day the
judgment is rendered. Therefore, case is over. YEHEY!
However, it is easier said than done.
-Mediation win some and lose some
-If mediation fails, they go back to the same court. Now arrives
Judicial Dispute Resolution. Still, no pretrial. Now, the judge
becomes the mediator (not as a judge). All testimonies and
admissions are confidential. Cannot be used in court. Bawal
stenographers. Judge and parties lang.
-Stories about how awesome Canadas Judicial system. Jury
system and whatnot. High tech facilities and stuff. You will
cry daw. Enjoy the fantasy before you go back to reality.
SEPTEMBER 3, 2013
FIRST HOUR
-Because we have CAM, on the day of the pretrial, we refer the
matter to mediation. If it is settled, then they have a
compromise agreement, the court issues a judgment based on
the comp-ag which becomes final and executory on the day it is
executed. However, if mediation fails, we go to judicial dispute
resolution where the judge acts as a mediator. We get the
parties to come to a resolution of their problems.
-In JDR, you do not look at the rights of the parties, but rather
at their interests. There may be rights that may be disregarded.
If they agree, the judge drafts out the comp-ag and lets the
parties sign it. The moment the comp-ag is approved, it
becomes final and executory on that same day.
-In JDR, there is an Early Neutral Evaluation. Both parties are
hard-headed and would not like to look at proposals. Judge
gives a neutral evaluation of the outcome of the case based
on their evidence. Eg. You know, basing on your evidence, I
think I will judge in favor of the plaintiff.
-If JDR fails and then goes to court, a different judge will handle
the case. The parties have the right to the cold neutrality of a
judge. With an ENE, impartiality is destroyed.
-If JDR fails, all discussed matter remain confidential and may
not be used against each other in trial. Then, Judge will have
the case re-raffled in other courts. Sometimes, this is the Pre-
Trial proper but will be conducted by another court.
-Supposing there is only 1 MTC judge and 1 RTC judge? That
is why JDR is not jurisdictional. In single sala courts, if it is
JDR, the RTC judge does the JDR of MTC cases vice versa.
-2 judges Judge to whom the case was filed for JDR and the
Judge who conducts PT up to issuance of decision.
-Are all cases mediatable? Yes, except when it comes to
probate.
-All civil cases, regardless of what kind of parties (natural or
juridical), are to undergo JDR. Regardless of their residence,
undergo JDR.
PRETRIAL PROPER
-PT judge handles everything from PT to issuance of judgment.
-During the PT, the presence of all the parties is mandatory. It
is not enough that only the lawyers are present. However, if the
parties cannot be physically present, they execute a special
power of attorney in favor of a lawyer or whoever is going to
represent them in the pretrial.
-SPA, for purposes of pretrial, the authority of the attorney-in-
fact must be stated as contained in the rules (RULE 18, Sec 2).
This rule shows things to be considered during pre-trial.
-Right now, mediation and JDR are not covered by the rules.
But where do we derive authority? Look at Rule 18
alternative rules of dispute resolution. One of the things to be
considered during pretrial.
-Alternative ways of dispute resolution other steps to be taken
aside from relying on the court .
-If you cannot be personally present, the SPA should contain
the authority to enter into any of those listed from letters A to I.
I hereby give my attorney-in-fact the power to abc the admitted facts, presentation of evidence is no longer
copy all
-If it is not all included, it merely becomes a regular SPA, and
does not contain the proper authority necessary.
-Can an SPA also be used in mediation and JDR? Yes.
However, it must also contain not only all those mentioned in
Rule 18, but also the authority to enter into settlement in
mediation or JDR.
-The presence of the parties is more important than the presence
of the lawyer in the pretrial. If plaintiff is absent or has an AIF
whose authority is not complete, what is the effect? If plaintiff
is the one who is absent, the complaint is dismissed. What if
the lawyer is present? Still, the complaint is dismissed (unless
the lawyer has a complete SPA). However, the dismissal is only
limited to the complaint. What happens if there is a
counterclaim? The defendant is allowed to present evidence on
the counterclaim.
-Why? Presence of the parties is mandatory.
-If it is the defendant who is absent, or the lawyer is not armed
with an authority, or there is an authority but does not comply
with the rules, the plaintiff will be allowed to present evidence
ex parte (before the branch clerk of court who is a lawyer just
like in default). What happens to the CC of the D? It will be
dismissed as well.
-If their lawyers are present, but the parties are absent, the case
will be dismissed.
-But if vice versa, the court will reset the pretrial and cite the
lawyers in contempt, or fine them for failure to appear.
-If it is a corporation or juridical person, usually the president
or the CEO represents. But, such authority must be contained
in a board resolution authorizing the former (or even their
lawyer) to represent them during the pretrial.
-If the defendant with the XC is the one present, he will be
allowed to present evidence ex parte against the absent
defendant. But if the defendant against whom the XC is filed is
present and the defendant who filed the XC is absent, then the
XC will be dismissed.
-During the PT, the court will now issue a PT Order (PTO).
Usually, the first paragraph of the PTO will contain the
authority given to representatives (which shall be attached and
made part of the record of the case). Then, there is a brief
summary of the case. Then, there is the stipulation of facts.
Under this, there are those that are admitted and those that are
disputed (Take note of stipulations of proposals).
-You have to be smart enough to know what and what not to
admit. When it comes to admissions, be very careful. Under
necessary, because they have already been admitted. If not
admitted, put it under disputed. During trial, these are now
called Judicial Admissions because they were admitted
during the proceedings conducted in court. No need to present
proof as they are the evidence in themselves. However, those
that are disputed shall be subjected to the trial. Eg. Disputing
against the signing of the promissory note has to be disproved.
Thats why in the stipulation of facts, be careful with what you
admit or deny.
-After stipulation of facts, we go to the issues. The issue is
sometimes factual (detailed eg. WON the defendant signed
the PN), but more often than not, shortened (eg. WON the
plaintiff is entitled to his cause of action).
-Because of the JAR, the parties identify and mark the exhibits.
Prior to the JAR, the exhibits are listed in a documentary
manner. But now, documentary exhibits are no longer
included. Testimonial nalang.
-Trial Dates- In civil cases, the plaintiff always presents the
evidence first. In criminal cases, the prosecution is to present
evidence first because of the accused persons constitutional
right to presumption of innocence. However, accused may
present evidence first when he pleads a justifying circumstance.
-Is there an instance where defendant presents evidence first in
civil cases? NONE. In civil cases, it is the plaintiff that claims
his right is violated. He has to be the one to present evidence.
-Usually, in JAR, 1 day = 1 witness.
-The PTO shall guide the trial. No other witnesses can be
included. Should have been included in the PTO. All witnesses
should have been named in the beginning. No surprise attacks.
Should appraise each other of evidence.
-These can now give rise to the Motion for Summary
Judgment. This motion is filed only after pretrial. You want
the court to resolve the case already, based on the pleadings, the
complaint, the admissions, etc.
-If a legal issue is what remains, no need to present evidence.
Judges job is to look for applicable law.
-Factual issue vs Legal Issue: Factual won a certain incident
happened, won D signed a PN, etc. factual needing evidence
because the judge is not a god that knows everything that
happened. As to Legal Issue- What law is applicable? Or the
law is there but both parties have different views on how the
law is to be applied. No need for evidence.
-MSJ- all the facts have been admitted and now only legal
issues remain.
-MSJ is filed either by the P or the D. On what ground? There
is no longer any factual issue. MSJ is a litigated motion.
-Eg. P vs. D, E, F, and G. P is the owner of a parcel of land. D
and E wanted to buy the property. But to pay it, the property
had to be mortgaged in order to pay for the property. But, the
bank did not want to accept said property because the ones
applying for the loan are D and E, since the property is in the
name of P. If it was P who would secure the loan, then there
would not have been a problem. So this is where the problem
started. D and E told P to make a simulated sale. In the said
DOS, the property is to be sold to D and E. Upon registration
of the property in the latters name, they would now apply for a
loan. Once the loan is released, the money goes to P in payment
of the property and then D and E shall pay the bank. However,
there is a side contract saying that the property is not yet paid,
and that the loan is to be used to pay for the sale. P agreed. So,
there was a DOS, and the title of the property was cancelled and
registered in D and Es name. So, D and E mortgaged the
property to the bank (F), the latter releasing the loan to D and
E. However, D and E did not pay P. Worse, they disappeared.
So, F foreclosed the mortgage since the loan was not paid.
During the foreclosure sale, G was the highest bidder.
Therefore the property was transferred to G. P, upon knowing
all of this, filed a case against F and G (didnt want to file a
constructive summons against D and E). So F and G filed an
answer. What P wanted was the return of the property in his
name. During the PT, the parties were there. In the proposals
for stipulation, P admitted that during the mortgage, the
property was already in the name of D and E. P also admitted
that the title was clean (no memorandum of encumbrance). P
also admitted that the sale was foreclosed, and that G was the
highest bidder, and that G was not a privy or a party to the
transaction between P and D&E, nor a party bet transactions bet
D&E and the bank, and that G was an innocent purchaser for
value and in good faith. Thus, counsel for F and G filed a
Motion for Summary Judgment. The only recourse of P is
against D and E. Was there a factual issue? None. There was
only a legal issue. So, the Motion was filed and then was
granted. No longer needed trial.
-Summary Judgment comes in after pre-trial because the court
takes into consideration the admitted facts. When the court
allows summary judgment, it will direct the parties to submit
their respective position papers.
-However, in the above-case, P opposed the Motion for
Summary Judgment, claiming that there is a need to prove that
F and G knew about the transactions with D and E. However,
P has already made all the above admissions.
-Motion for Judgment on the Pleadings is different from Motion
for Summary Judgment because the former is filed by the P
alone on the ground that there is no more issue (because
defendant admitted everything in his answer). In the latter, it
can be filed by either party. In the former, it can be filed after
answer has been filed but before pretrial. For the latter, it is
filed after pretrial. For the former, the judgment will only be
based on the complaint, answer, and reply. As for the latter,
this will be based on the pleadings, the admissions during the
PTO, and will take into account the position papers of the
parties.
SECOND HOUR
-After Pre-Trial, we now go to Trial. So what happens during
Trial? This is the time where parties present their evidence.
-Eg. P vs D and E. D has a CC (vs P) and an XC (vs E). E has
a 3rd PC against F (E as 3rd PP vs F as 3rd PD). F has a CC
against E.
-The P presents evidence first, of the allegations in his
complaint. He cant defend himself against CC yet. Next, D
presents evidence as to 1) defenses in his answer, 2) his CC
against P, and then 3) his XC against E. D presents evidence
all at once. After he presents evidence, is he done? Yes. Then,
it is Es turn 1) defenses against the Complaint, 2) defenses
against the XC, 3) his evidence of his allegations in his 3rd PC.
Next, F as to his 1) defenses in his answer to the 3rd PC from E,
2) and his CC against the 3rd Party (E).
-After everyone has presented evidence, who goes next again?
It would be P, presenting his rebuttal against the CC of D or any
other allegations. As for D, he can file a surrebuttal against the
rebuttal. There is no longer rebuttal against surrebuttal.
-There is also what we call Separate Trials. On motion of the
parties, the court may allow upon its discretion separate trials.
Same as above. First trial would be for P to present evidence
as above. Second trial would involve D as above. And so on.
In separate trials, there can only be one judgment if there is one
case.
-In the first approach, all the parties have to be present, unlike
in the separate trials, the parties involved will need to be
present. The first method is the procedure adopted now. The
separate trials are discretionary upon the court.
-All witnesses are subjected to direct, cross, redirect, recross.
But now, JDR takes its place.
-This time, upon filing of postponement, there is now a fee.
-Illness Med Cert subscribed by a notary.
-Subpoena- a Court writ/process directed to a person to appear
and testify in court under penalty of law.
-Subpoena ad testificandum and Subpoena duces tecum. The
first one refers to the act of testifying. As to the latter, it is
directed to a witness to bring certain documents, books, or
records to the court. Must he testify on them? Not necessarily.
Because these are just records in his possession, and he would
not necessarily know about it or its contents.
-A subpoena is a coercive process. Fail not under penalty of
law.
-For criminal cases, a witness who disregards a subpoena can
be arrested and can be made to pay a bond.
-In civil cases, the court can have the witness show cause as to
why he should not be cited in contempt for refusal to honor the
subpoena. But as an exception, a witness may be allowed to
ignore the subpoena upon invocation of Viatory Right.
-Viatory Right- if he lives more than 100 kilometers from where
he is to testify.
-However, if Kilometrage has been paid, viatory right cannot
be invoked. Subpoena must be honored.
-What if you cant afford the kilometrage of an important
witness? Check modes of discovery.
-COVERAGE OF THE QUIZ ON THURSDAY IS FROM
3rd PARTY COMPLAINT UP TO SUBPOENA. WHAT IS
TO BE TAKEN UP TOMORROW (SEPT 4) SHALL NOT
BE INCLUDED.
SEPT 4
FIRST HOUR
-Presentation of Evidence- After Plaintiff presents evidence, the
D may file a demurer to evidence (DTE)
-What is a Motion to Acquit? Criminal case = Motion for DTE
-MD based on insufficiency of evidence = Motion for DTE
-There is no demurer if prosecution or Plaintiff has not yet
presented evidence.
-Criminal Case DTE- must ask for LOC
-There is presentation of exhibits.
-Parties are given 10 days to make comments.
-Court would either admit evidence or not.
-Court wont admit on the following grounds:
-Not material to the case
-Not competent
-Not relevant,
-Now, with the JDR, all exhibits shall be contained.
-If Plaintiff is convinced that the evidence presented is not
sufficient to reach a degree required to have preponderance of
evidence, he may file a Motion for DTE. No need for LOC in
civil cases.
-In criminal cases, if the Court grants demurer, this is
tantamount to acquittal.
-If the court denies the DTE, the accused is made to present
evidence.
-If Motion for DTE is filed without LOC, or Motion for LOC
was denied and still a DTE was filed, this can still be either
granted or denied.
-If denied, the case is deemed submitted for decision. No chance
to present evidence because it is not with LOC. If it is a
criminal case, always ask for an LOC before filing an LTE.
>CIVIL CASES, for DTE, no need for LOC.
-Once court makes its ruling on the formal offer of evidence,
then file the DTE right away. This can either be granted or
denied.
-If granted, this leads to the dismissal of the case.
-If denied, the Defendant is made to present evidence. No har
no foul.
-If the case is dismissed, does the P have a remedy? Yes. Via
Appeal. Unlike in an acquittal (Final and Executory) where
double jeopardy would arise.
-On appeal, if the appellate court agrees with the trial court, the
former will affirm resolution of the trial court and thus dismiss
the case.
-if The appellate court disagrees with the trial court, it will
reverse the ruling of the latter, which is tantamount to denial.
-Will the defendant be allowed to present evidence? No more.
That is the danger. No longer allowed to present evidence.
-Case will be decided based on Ps evidence alone.
-Will the appellate court decide on the case or remand? The AC
will decide on the case on its own. This is because the D is
already depreived of his chance to present evidence. Plaintiff
wins.
JUDGMENT DAY
-Some use the word decision. Once it becomes FE judgment.
-Rules require judgment must be personally prepared by the
judge, must be in writing, and must clearly state the facts and
the law upon which it is based.
-Decision: Facts, law, body, and dispositive (decretal) portion
wherefore.
-Decretal / Dispositive portion is the judgment because it is the
one that will be executed.
-What if the body is in conflict with the dispositive portion?
Which will prevail? Dispositive portion will prevail, unless
there is a glaring error that dispositive portion is wrong.
-Judgment must be very clear as to leave no doubt, else a party
may file a Motion for Clarificatory Judgment.
-Judgment can either be without presentation of evidence or
with presentation of evidence.
1) Judgment WITHOUT presentation of evidence
a) Judgment by default
 -Allegations in complaint are sufficient
-Can also be with presentation of evidence. When? If
the court feels that
-Allegations in the complaint are not
sufficient for judgment; or
-There is a claim for damages (proven
beyond certainty)
b)Judgment on the pleadings
-Based on complaint and answer
c) Judgment by Compromise Agreement during CAM or JDR
-If with Comp Ag, no need to present evidence.
d) Summary Judgment
-Comes after pretrial
2) Judgment WITH presentation of evidence
a) Some instances in Judgment by Default (check above)
b)Full-blown trial with Judgment on the merits
-Each party is given opportunity to give evidence.
3) Demurer to Evidence
SECOND HOUR
-If in criminal cases there are promulgations of judgment, there
is no such thing in civil cases.
-So what happens if Judgment is rendered in Civil Cases? It is
just given to the lawyers of the parties. This is served
personally; or by Regular mail.
-All orders, resolutions, notices, and decisions emanating from
the court are served to lawyers personally by an employee of
the court called a process server. If the office of the lawyer
is far, then via registered mail.
-Does the court pay for the registered mail? No. The court has
Franking Privileges.
-Basic Rule: Service to counsel is service to client.
-Furnish parties as well.
-WHEN JUDGMENT BECOMES FINAL AND
EXECUTORY
-In criminal cases 15 days from promulgation. If it is an
acquittal, then on the same day.
-In Civil Cases- since given to lawyers of Plaintiff and
Defendant, it is rare that they receive it on the same day.
-Eg. Ps lawyer receives decision on Sept 4. Ds lawyer
receives it via registered mail on Sept 12. When will the
judgment become FE? Add 15 days for each. So, P can avail
of remedies before Sept 19, while D before Sept 27.
-On Sept. 20, Ps counsel files a notice of appeal. Will the Court
entertain this? No. Beyond 15 days. But if it is Defendant that
files notice of appeal on Sept 20, this will be allowed up to
Sept 27.
-Finality of decision for a civil case depends on the date of
receipt by the partys counsel. But for purposes of finality for
entry of Judgment, then up to Sept 27. Meaning, by that time,
it can be executed. The decision becomes FE on Sept 28.
-If decision has lapsed into finality without parties availing of
remedies, such decision is entered into the Judgment Book.
-Date of entry in the Judgment book is the date of finality, and
date of finality is the date of entry. The dispositive portion is
entered.
-What if the clerk is delayed in entering the judgment and enters
it on October 3? Follow the principle above. If the decision
becomes final on September 28, then that is the date of finality,
which shall also be considered as the date of entry. Thus, in the
book, the date indicated is Sept 28.
REMEDIES BEFORE FINALITY
-To be made within the 15-day period.
-If such remedies are not availed of, decision becomes final.
1) Motion for Reconsideration
-Always a Litigated Motion
-Be aware of the 3-10 rule
-Address adverse counsel, and not the clerk of court
>Grounds:
a) Excessive awards for damages
b) Insufficient awards for damages
c) Evidence does not justify the decisions, or decision
contra evidence
d) Decision is contrary to law.
-The moment it is filed, the court may set it on the date filed for,
or the court sets it on its own
-A notice of hearing is sent to person who filed the motion.
-On the hearing day, the adverse party is given opportunity to
file comment to the MR.
-After comment/ opposition to MR is submitted, the MR is
submitted for resolution
-The MR can either be denied or granted
-Denied- decision stands
-Such decision can be appealed. FRESH PERIOD RULE now
applies.
-FPR gives a new 15-day period.
-In denial of MD, the person has the remaining days to file an
answer. But if it is less than 5 days, automatically 5 days, if
MD is denied.
-But in denial of MR, the FPR applies from the date of receipt
of denial.
-Eg. Decision was received on Sept 4. On Sept 10, filed an
MR. Sept 13 hearing of MR. Oct 1 Resolution denying
MR. Oct 5- Receipt of denial. Thus, has up to October 20 to
file an appeal bec of the FPR.
-What if MR is granted? The decision is modified to suit
whatever is prayed for.
-If not contented with modification of Decision- can be
appealed.
-FPR will not be applied but still will have 15 days because the
modified decision is a new decision.
-Note that in FPR, the decision is not changed, but the rules give
a 15-day fresh period and only applies if an MR is denied.
-If an MR is denied, can a second MR be filed? NO. Theres
no such thing. Only entitled to 1 MR. Both parties may file
separate MR, but both are only entitled to 1 MR. Exception:
Supreme Court discretionary
-What if a second MR is based on a different ground? No. All
grounds must be put together in 1 motion.
SEPT 7
- 15 day period non-extendable
2. Motion for New Trial (MNT)
-Asking Court to go back to trial because party is unable to
present evidence
-2 Grounds: FAME and Newly Discovered Evidence (NDE)
-A) FAME, same grounds for Motion to Lift Order of Default
-If such ground (eg. Negligence) was already used in MTLO,
such ground can no longer be used in MNT. Use a different one
(from FAME)
-Fraud Extrinsic Fraud
-eg. Plaintiff presents evidence, and tells Defendant that he will
withdraw case. Defendant does not present evidence, however,
P suddenly pushes through with the case. The case was then
decided against the Defendant. Upon receipt of decision, can
Defendant file an MNT? YES. Not an MR, but an MNT. He
is asking that he be allowed to present evidence because he was
not able to do so. On the ground of extrinsic fraud a scheme,
a machination on the part of the plaintiff, so that D wont be
able to present evidence.
-eg. Excusable negligence: Lawyer fails to appear every time.
Judge gets angry, so judgment is rendered against party. Party
changes lawyer and files for a MNT. WON with excusable
negligence- discretion of the court. Court may say that they will
not allow the negligence of the lawyer to affect the rights of a
client.
-Procedural requirement for FAME- Affidavit of Merits (under
oath)
-MNT is always a clitigated motion.
B) NDE- Not a newly manufactured one, but has been present
all along, although could not be found even with due diligence
and with all effort. It only surfaced after a decision was made.
The movant was not able to present this before because it was
misplaced, lost, or whatever.
-In order for this to be allowed as a ground, the NDE must be
such that if it is allowed to be presented, it will change result of
decision.
-In the motion, such evidence must be explained as to why it
was not presented in time, and how it would affect the decision.
-Eg. Recovery of possession. P vs D. P has a DOS executed
by Ds predecessors interest in favor of Ps predecessor in
interest. Both predecessors died. P alleges that the said DOS
has been shown to him by his father; however, they were not
able to register the same, and therefore the DOS is in their name
but the tax declaration was still in the name of the D. P was not
able to produce the DOS so the court dismisses the case. The
only evidence needed for the action is missing. You cant say,
ah basta, I saw the DOS. The DOS has to be shown. After
decision was rendered, the P was able to find the DOS within
the 15-day period. The P can now file a MNT grounded on
NDE. Such NDE can alter decision of the court.
-Second MNT- allowable, provided it is not based on the same
ground (di pwede yung Fraud, tapos Accident, tapos Mistake,
etc).
-MNT can either be denied or granted.
-If denied, the decision should be appealed. Fresh Period Rule
can be applied here as well (15 days from receipt of the denial
of the MNT). Assign (point out) among the errors the denial of
the MNT.
-If granted, that means party is allowed to present evidence.
The decision which was rendered is vacated. Back to trial.
Supposing it is only the Defendant who ought to present
evidence, do we let Plaintiff present his evidence all over again?
Not anymore. Previously presented evidence is adopted
(carried). Ds turn to present evidence. Based on such, the
Court renders a new decision.
-Such new decision is appealable.
3) Motion for Reopening of Trial- Different from MNT.
-First difference: MNT is under Rule 37. MRT cant be found
in the Rules. But what is its basis? Jurisprudence and usage.
Has been practiced and thus allowed ever since.
-Second: MNT comes in after a decision has been rendered. In
MRT, there is no decision yet, but the case has already been
submitted for decision (both parties rest their case). Before the
judge resolves it, the MRT can be filed. If the judge renders a
decision, the remedy is MNT.
-Grounds for MRT- any, upon the discretion of the court.
FAME can be used. Even NDE. MNT- based on the 2 original
only.
-Eg. Witness refuses to testify. D says, mr. witness, can you
testify in my behalf, that I did not receive money from the P?
You were there. But the witness says, sorry but both of you
are my friends. Id rather remain neutral. D loses. After
decision was rendered, the witness goes to him and offers to
testify. Will the witness testimony be considered an NDE?
No. Witness sudden change of mind is not considered New.
However, said witness can be presented for MRT.
4) Appeal
-A) Appeal is a statutory right. Not a matter of right.
-What the rules and procedures prescribed for it must be
followed strictly and construed against appellant.
-Made within 15 days from receipt of decision, denial of an MR,
and denial of a MNT.
-Can a Motion for Extension be allowed for the filing of an
appeal? NO. Tantamount to extending the period of appeal. No
extension whatsoever.
-B) Who can appeal? Only parties to the case. A non-party has
no ground to appeal.
-Eg. D does not file a 3rd party complaint. Judgment is rendered
against him, directing him to pay 100k in damages to the P. The
100k is within the indemnity agreement between D and the
insurance company. D does not appeal (kasi depressed). Can
insurance company appeal? No, because it is not a party to the
case. The judgment was now to be executed.
-D says that they cannot collect from him but instead, from the
insurance company because of the indemnity. So the lawyer of
D files a motion that the writ of execution should be executed
against the insurance company. The court grants the motion,
with an order directing the issuance of a writ of exec against the
insurance comp to pay liability of D to the P. This time, can the
insurance company appeal? Yes. But what will it appeal? The
decision? No. Again, not a party of the case. Rather, appeal
the order, because that is where it got involved.
-Only parties can appeal.
-C) A theory of the case cannot be changed on appeal.
-Eg. Recovery of Possession. P vs D. D refuses to surrender
possession because he says he has been in possession of it
longer than P ever did. D lost, and was ordered to surrender
property to P. D appeals, and now says that they bought the
property and thus entitled to it. Note that there is a change in
the theory, from an adverse possessor to a buyer. Change in
theory is not allowed.
MODES OF APPEAL
A) Ordinary Appeal: By filing a Notice of Appeal.
-If it emanates from MTC and it is to be appealed to the RTC,
the mode is via ordinary appeal. (notice of appeal)
-If it emanates from the RTC and is to be appealed to the CA,
via ordinary appeal. (notice of appeal)
-How is this done? Simple. Upon receipt of the decision and
person does not want to file an MR or a MNT, just prepare
notice of appeal.
-appealing the decision of the court dated (date of decision),
which the undersigned counsel received on (date received) to
the (appellate court). Date of receipt must be indicated
because the court has to determine whether it was filed within
the 15-day period. Only a notice, not a motion.
-Appeal fees need to be paid to the court of origin.
-Ordinary appeal- court will just look at the notice of appeal,
find out about the date of receipt, and start counting 15 days
from there. If it is filed within the 15-day period, the court gives
it due course. If it is out of the reglementary period, then the
court denies it.
-If given due course, it is then forwarded to the appellate court.
-What do you appeal? Final Order. What is a Final Order? One
that disposes of the case.
-Final Order vs. Interlocutory Order.
-FO disposes of the case, while an IO does not dispose of the
case (theres still something that the court has to do.
-FO- remedy is appeal. In IO, petition for certiorari under Rule
65.
-Eg. P presents witnesses. On said date, Ds counsel was not
around despite notice. No cross exam because Ds counsel was
absent. Waived said right. Same thing happened with other
witnesses without cross exam from the D. P rests case. D
changes lawyer, and the latter files a Motion to recall Ps
witnesses for cross-exam. Court denies. Ds counsel files an
MR, but this was again denied. What should Ds counsel do?
File an appeal or a petition for Certiorari under Rule 65? The
order denying the Ds Motion is an interlocutory order. Thus,
Ds counsel should petition for certiorari (65).
-If Ps complaint was dismissed because of the P, is said order
an FO or an IO? It is an FO. The court has nothing else to do
now. What if the D has a counterclaim? Yes it is still an FO.
If a case is dismissed, it is only limited to the CC. And a D may
pursue his counterclaim in the same case, or in a separate course
of action.
-When the court gives an appeal due course, the court has 5 days
to transmit the entire records of the case to the respective court.
-What if within the 5-day period, the winning party files a
motion for execution pending appeal? Can the court still act on
it? Winning party fears that loser might be disposing of
properties while appeal is being made. From the time the court
gives due course to the appeal, it no longer has jurisdiction to
hear the case, because it would now be the job of the appellate
court. Here comes a motion for execution pending appeal and
the court has already given due course. But then, the records
are still with the said court. Can the court no longer act on the
motion of execution? YES it can, by virtue of residual
jurisdiction.
-Residual jurisdiction- remaining jurisdiction of the court
because said court is still in possession of the records of the
case. Thus, said court can act on a motion of execution pending
appeal so long as it still has the records via residual jurisdiction.
-Appellant- brings appeal. Appellee- person whom the case is
appealed.
-Under ordinary appeal, maintain title (Plaintiff-
Appellant/Appellee, Defendant- Appellant/Appellee).
-Case eg. A decision is rendered by a court. Since P received it
first, he only had up to Augus 20, while D had only up
September 6 to file an appeal. On August 20, the P, he files a
notice of appeal. On September, the D files an MR. What will
the trial court do? Should it give due course to the appeal or to
the MR? The trial court acts first on motions that are still within
its jurisdiction. The court must act on any and all incidents
while it has jurisdiction of a case. If the period within which to
appeal by either parties has expired and there is a pending
appeal, that is the time that the court gives due course to the
appeal. Appellate court will not act on any MR or MNT. It will
only act on appeals. That is why the trial court has to wait up
to the last day for any remedies from the parties prior to giving
due course to an appeal.
SEPTEMBER 11
-Ordinary Appeal
-If appeal is made before the RTC, appellant will be direct to
submit his memorandum on appeal (written statement about
errors committed by lower court and what appellant is asking
for).
-Memorandum on appeal Discuss the errors, why they are
errors, and how the court should resolve the errors.
-Copy of Memo should be furnished to Appellee. The appellee
has 15 days to file own Memo on Appeal from date of receipt
of Appellants Memo.
-Appellant is directed to submit Memo on Appeal first, lest it
result to dismissal of appeal. Likewise, failure to submit within
15 days dismissal.
-Filing of the Memo on Appeal is mandatory.
-What if Appellee disregards submission of Memo on Appeal?
Will the case be automatically decided against appellees favor?
NO. Wont affect decision. It is up to the appellee WON he
submits Memo. Some appellees may even make a
manifestation adopting the decision of the lower court as his
memorandum on appeal (because appellee won in the lower
court)
-As a rule, appeal is submitted for decision. No trial. But now,
the court sets case to JDR on appeal. Usually doesnt work.
Reraffled to court that will resolve the appeal.
-In a crim case, accused appeals but does not submit a memo on
appeal. Will appeal be dismissed? NO. Here is where it varies.
If it is a crim case that is being appealed to the RTC from the
MTC, the accused and the prosec are given 15 days to
SIMULTANEOUSLY submit their respective memoranda.
After 15 days, WON a memo is submitted by either party, the
RTC will decide the case based on the records from the MTC.
The appellate court will still have to go over the entire records,
unlike in a civil case.
-Is there a JDR on appeal in a crim case? Yes, as to the Civil
aspect only in cases of violations against BP 22, estafa, and
theft.
-Eg. P vs D in the MTC. D files an MD grounded on LOJ.
MTC grants the MD. D wins. What is the remedy of P? Appeal
or Rule 65? Appeal. MD is a final order, and not an
interlocutory order. Where will P file his appeal? Before the
RTC.
-If the MTC dismisses it for LOJ, who then has a jurisdiction
over the case? Naturally, the RTC. Thus, if the case was
dismissed by the MTC for LOJ, and is appealed before the RTC,
then the latter will take cognizance of the case as if it was filed
with it originally. No need for RTC to ask the P to file the case
before it again. It treats the appeal as if the case has been
originally filed before it. RTC will require the P to pay
additional docket fees.
-When the case is already before the RTC, it will no longer look
at the LOJ. It will now direct the D to file answer. However, if
the LOJ is an affirmative defense in the answer previously
submitted to the MTC, then the RTC will set the case for pre-
trial. But if there was no answer in the MTC, only an MD based
on LOJ, then in the RTC the court will ask the D to file an
answer.
-In the same case, the D files an answer; however, after pre-
trial, trial, and finally in the decision of the MTC, it discovers
that it has no jurisdiction (or D includes LOJ as an affirmative
defense but MTC denies it), and D keeps insisting that MTC
has no jurisdiction. What will the MTC do? Will it decide the
case on the merits? NO. Because a court that has no jurisdiction
cannot render a decision on a subject case. Any decision it
renders is null and void. Thus, the MTC shall dismiss the case.
-In the above-case, if P files an appeal before the RTC and the
latter agrees that the MTC indeed did not have jurisdiction, the
RTC shall accept the case as if it has been originally filed before
it. The MTC trial shall be adopted.
-How about presentation of witnesses? The RTC did not get
opportunity to observe the demeanor of the witnesses? The
RTC will have to base it on the written transcripts, but may
require the parties to submit respective position papers to aid
the court in the decision. Then, the case will be decided on the
merits.
-Take note: This is applicable only if the ground is LOJ and it
is from the MTC to the RTC in an ordinary appeal.
-Single sala MTC, bring the JDR on appeal to the nearest RTC.
-What about if it is from RTC to CA? Docket fees to be paid
before the RTC, and if notice of appeal is filed before the RTC
within the reglementary period, the court gives it due course and
transmits the entire record of the case to the CA. However, for
as long as the records are still with the court of origin, said court
may still act on any pending incidents that do not go to the
merits of the case (Motion for Execution pending appeal). This
is based on a courts residual jurisdiction.
-When the case is before the CA, the latter shall require parties
to submit their briefs (from MTC to RTC Memo on Appeal).
Submission of briefs has to be simultaneous. Afterwards, case
is submitted for decision. What is the basis of the CA in
deciding the case? First, the entire records. Second, the briefs
of the parties.
-Can an extension to file an appellants brief be asked? Yes.
How about in the RTC? Discretionary won to grant extension.
appellate court. An MNT can only be done in the court of
origin.
-Upon receipt of an RTC by virtue of its appellate jurisdiction,
then you can file an MR or a Petition for Review. If an MR is
denied, apply fresh period for Pet for Rev.
-Pet for Rev, pay docket fees to the CA. It is no longer a notice.
It contains what has been discussed in the memorandum.
-Can a motion for extension of time to file a notice of appeal be
submitted? NO. 15-day period is strictly applied. Tantamount
to extending time to file an appeal. You only have 1 page for a
notice of appeal.
-How about for a Pet for Rev? Yes. Petition can be
voluminous. But fees necessary need to be paid for the CA to
have jurisdiction. If a motion for extension has been filed
without payment of fees, the court will not act on the appeal,
and thus the 15-day period expires.
-Note changes of title. When it is a petition for review- eg.
Defendant-Petitioner vs. Hon Judge and Plaintiff-
Respondents. Include judge as nominal party (public
respondent) because it is his decision that is under review.
The winning party is the private respondent.
-Will the petition require a CNFS? YES, because the rules
require that the petition filed before the CA should have a
verification and a CNFS.
-Before anything else, the CA will determine whether petitions
are sufficient in form and substance. If not with proper form
and substance (kunwari dilatory lang daw), can the CA
dismiss it outright? YES. But if it finds the form and
substance to be appropriate, CA will direct private respondent
to file a comment to the petition for review. Then, Petition
may be required to submit a reply. Then, submitted for
decision.

B) Second Mode of Appeal is the Petition for Review

-If it is a case emanating from the MTC and is appealed before
the RTC, what is used is the ordinary appeal. However, if the
RTC renders an unsatisfactory decision? This can still be
appealed before the CA. But do we use an ordinary appeal?
NO. File a petition for review.
-In other words, a petition for review is a mode of appeal from
the RTC to the CA of decisions rendered by the RTC by virtue
of its appellate jurisdiction.
-15 days to file. Regardless of what mode, so long as it is an
appeal, 15 days are is always given from receipt of the decision
of the RTC.
-Can an MR be filed before the RTC (a case that originated from
the MTC)? YES. How about an MNT? No such thing in an

C) The third mode is an Appeal by Certiorari (Rule 45)
aka Petition for Review on Certiorari.
-MTC to RTC- Ordinary Appeal
-RTC (origin) to CA- Ordinary Appeal
-RTC (appellate) to CA- Petition for Review
-CA to SC Appeal by Certiorari
-The only way to reach the SC is by the third mode of appeal.
-Appeal fees are to be paid before the SC.
-How many days to file? 15 days from receipt of the CA
decision.
-Before going to the SC, can an MR be filed before the CA?
Yes. If it is denied, does the FPR apply? Yes. 15 days again.
-Can a motion for extension to file a petition for review on
certiorari be made before the SC? Yes. Subject to payment of
appeal fees, for SC to cognizance.
-Title: Defendant-Petitioner vs. Hon. CA and Plaintiff-
Respondent
-Must the petition contain a verification and CNFS? YES.
-Subject of Petition: QUESTIONS OF LAW.
-If SC finds petition to be insufficient as to form and
substance, it can be dismissed outright. Eg. Notice of appeal
was filed before the SC DISMISS! Wrong form! Dilatory
eklavu- DISMISS! No substance!
-When SC gives due course, the SC directs Petitioner to file
comment. If SC decides one unfavorable, can an MR be filed?
Yes. How about a 2nd one? Depends on the SC. It may
foreclose any further MR.
-For Mode 2, must the RTC forward the entire records to the
CA? Only if the CA requires. Sometimes the petition is
complete in itself so the CA wont have to rely on the records.
-How about for Mode 3, from CA to SC, must the entire
records of the case be submitted to the latter? YES.
-Are there decisions of the RTC directly appealable to the SC
via Mode 3? Yes. Decisions involving constitutionality of
law, executive agreements, Pres decree, etc. Or, WON a tax
should be imposed. Jurisdiction of the court. Pure questions
of law. CA may be bypassed.
-Once the SCs decision becomes final and executory, is there
a mode of appeal left? None. You pray.
-After judgment becomes final, supposedly for execution.
However, there are remedies after Finality of Judgment (Acts
of Grace, Consuelo de bobo) Construed strictly against party
availing of this remedy. If court finds out there could have
been remedies before finality, court dismisses this outright.
REMEDIES AFTER FINALITY
1) Petition for Relief from Judgment
-Asking to be relieved from judgment.
-To be filed before the same court that rendered the decision.
-Grounds: FAME (+AFFIDAVIT OF MERITS). However, if
this has been used in a Motion to Lift Order of Default, or has
been used in a Motion for a New Trial, this can no longer be
used here.
-Act of grace. Complied with strictly.
-Must be filed within 60 days from notice of judgment AND
within 6 months from entry of judgment.
-Eg. Ds counsel receives decision on Feb 5, 2013. He had 15
days. He did not do anything about it, nor informed D about it.
Because there was no appeal, the decision became F&E on
March 1, 2013. Thus, P filed a motion for issuance of a writ of
execution. Court grants it. On April 1, the sheriff, with the writ,
goes to the D. Sheriff tells D the latter has to pay P 1M,
according to the decision. D only finds out about it, so he has
notice of the judgment. His lawyer never bothered informing
him about it. D goes to another counsel on May 1. On May 15,
D files a petition for relief from judgment. Was it filed in time?
YES. May 15 is still within 60 days from April 1. It is likewise
within 6 months from entry of judgment (March 1). Date of
entry is date of finality.
-What if D only goes to a lawyer on May 1, and it is only on
July 1 that the PRFJ was filed. Is it still within the reglementary
period? No more. Even if it is within 6 months from entry of
judgment, it is beyond the 60-day period from date of notice of
judgment. Thus, filed out of time.
-What if he only found out about it on September 1, and files a
PRFJ on October 1. Was it filed on time? No. Within 60 days
from notice, but the 6-month period ended in August.
-Take note, the 60 days from notice and the 6 months from entry
should coincide.
-In an SC decision, PRFJ filed within the 6-month period and
on the 61st day after notice of decision. The SC allowed this,
saying that the 1-day lapse is negligible.
-In another case, PRFJ was filed within the 62nd day and within
the 6-month period. The SC ruled against this, saying that the
trial court is correct in dismissing the petition because the rules
are clear.
-Do not be misled by the decisions as they apply in those cases
only. Always be guided by the rules.
SEPTEMBER 12
-If PRFJ is denied, can this be appealed? No. Denial of a PRFJ
is not a final order, but rather, interlocutory. Thus, the remedy
is Petition for Certiorari under Rule 65. It is not a final order
because what comes next? An execution of the order. The
decision has already become final.
-When a PRFJ is filed, a restraining order or prelim inj may be
prayed for- for the court not to issue a writ of execution, to avoid
the defeat of the PRFJ.
-If PRFJ is granted, it is the same as if a MNT has been granted.
This means that the judgment is vacated (even if it has attained
finality). Thus, back to court to present the evidence which
were not presented due to FAME.
-Take note. Rule 38, sec 6. Theres something wrong. MR.
-Afterwards, a new decision may be issued, allowing for the
remedies before finality of a judgment.
-That is why a provisional remedy to stop execution may be
asked for.
2)Annulment of Judgment (Rule 47)
-Only case which is under the original and exclusive
jurisdiction of the CA.
-If it is an MTC decision, AJ may be filed before the next higher
court (RTC).
-If it is an RTC decision, an AI may be filed before the CA.
-Why go to the next higher court when this action is not an
appeal?
-Annulment of Judgment is an original action. All MTCs are
all of equal jurisdiction. Likewise with the RTC. Therefore, to
annul the judgment of a court, the next court in the higher level
needs to be approached.
-Supposing the CA renders an adverse decision, an appeal can
be made before the SC. Mode 3 (Petition for review on
certiorari), even if decision has been rendered by CA by virtue
of its original and exclusive jurisdiction.
-GROUNDS FOR AJ:
1) Extrinsic Fraud- Happens outside the court litigation
(fraudulent schemes that P had the case dismissed yun pala
hindi). Intrinsic fraud perjury, use of forged document as
evidence, etc. has something to do with the trial.
-Prescriptive period 4 years from discovery of the fraud.
(Fraud Four. In any case where fraud is involved).
2) LOJ- Can be raised at any time.
-IMPRESCRIPTIBLE, but it can be defeated by jurisdiction by
estoppel and laches.
-laches- unreasonable delay in asserting ones right. (delay won. Can he file a motion for execution of judgment? No more.
is not sufficient. )
-Since this is an original action, will the CA conduct a trial? If
the CA finds necessity of receiving an evidence, it will assign
an RTC judge (not the origin) to receive the evidence of FAME
or LOJ. After receiving the evidence, such will be returned to
the CA for the latters decision.
EXECUTION
-Most awaited portion of civil procedure, in real life and not in
the classroom (ugh-ugh-ugh)
-GR: Only Final Judgments can be executed.
-Winning party files a motion for execution or motion for the
issuance of a writ of execution before the court. This motion is
nonlitigated. Ex parte.
-Once judgment becomes final- issuance of a writ of exec
becomes a ministerial function.
-The above is the GR, however, there is the concept of Motion
for execution pending appeal. Filed by the winning party. Very
excited. Litigated, because judgment is not yet final and the
adverse party is still to be affected.
-Final- nonlitigated. Not yet final- litigated.
-Writ of exec pending appeal is a discretionary function (unlike
the ministerial upon FJ).
-Movant will have to establish good cause, which are:
a) The losing party is disposing of his properties right and left.
Even if the winning party wins, he wont be able to get
anything.
b) Losing party is in the verge of bankruptcy.
c) The appeal is dilatory.
d) The advanced age or poor/deteriorating health of the
winning party.
e) Nature of the product to be delivered.
-Once good cause has been established, the court will require
the movant to post BOND. Money. To answer for damages
which the losing party might suffer because of the execution of
the decision when it is still on appeal. (Eg. Appeal was granted,
but due to the execution of the judgment he loses property and
suffers damages. The bond shall answer for the damages).
Amount is under the discretion of the court.
-Note: Establish good cause first, before being made to pay the
bond. The court will not allow posting of bond without first
establishing good cause. Cash bond, Surety bond. Property
bond (limitation within the jurisdiction of the court)
-If there is no more reason for the bond, this shall be returned.
-After posting bond, the decision will be executed.
-What if the Appellant wins? Restitution (return back former
condition) if possible.
-Back to Execution of Judgment. Prescriptive period for
execution of decision by a motion is 5 years from entry of
judgment.
-Eg. Decision became final March 8, 2011 (same with date of
entry). On Sept 12, 2013, winning party files a motion for
execution. Grant? Yes, still within 5 years. Period ends March
7, 2016.
-Supposing 5 years has lapsed. September 12, 2016, winner
files for a motion for execution. Grant? No. The 5 year period
has lapsed. The decision can still be executed but not by mere
motion. Rather, through an action. Revival of judgment.
-Eg. P vs D for recovery of possession. P wins up to SC. P
forgets about it for 5 years, and suddenly remembers that he
File an action for revival of judgment.
-Revival- docket fees need to be paid. Motion for execution
no docket fees.
-Action for revival verification + CNFS.
-File revival before the RTC (incapable of pecuniary
estimation). Will the court go about trial once again? No need.
The decision of the court in the recovery of possession case is
revived. quoting the dispositive portion---. Wait again for
15-day period for it to be F&E (DOUBLE FINALITY OF A
JUDGMENT)
- DOUBLE FINALITY OF A JUDGMENT- Judgment in the
previous case became F&E but was never executed in 5 years
by virtue of a motion and is revived by an action and becomes
final once again. Thus, another 5 years for execution by motion.
-Supposing another 5 years lapsed and revived judgment was
not executed. Can an action for the revival of a revived
judgment be filed? Allowed, provided it does not prescribe (10
years from first revival).
-If the delay for issuance of writ of execution is caused by the
losing party, the other party will be favored.
-A writ of execution has no prescriptive period.
SEPTEMBER 25, 2013
MODES OF DISCOVERY
-Modes of discovery- shortens proceedings
-One mode not expressly disallowed (sometimes turns out to
be a mere hearsay) such as private investigation. For personal
purposes.
1) Deposition
A) ORAL: -Made outside the court. Testimony made within
the court.
-Either oral examination or written interrogatories.
-Deposition is used to preserve witnesses statements.
-Taken outside the court before a Notary Public or a Judge
(different from the judge in charge of the case)
-Expenses- to be paid by the one having the statements taken.
-If no answer has been filed yet, then a deposition is to be taken
with leave of court.
-If an answer has been filed, taking of deposition is now a
matter of right.
-In both cases, the other party has to be notified. If lawyer of
adverse party does not appear despite notification, said party
deemed to have waived right to cross-examine.
-If there are objections during deposition, these will be noted by
the NP/judge and put on record. The judge in the trial will rule
on these objections if such are presented as evidence. After
transcription, parties and witness need to meet again and verify.
Both parties are entitled to a copy of the deposition.
B) Deposition through Written Interrogatories
-Prepare the questions and send it to the Notary Public. The
latter will summon the deponent and swear him under oath. The
Notary Public now asks the questions while the stenographer
transcribes the records. A copy of the questions with the
answers are then sent back to the Ps counsel and to Ds
counsel. Upon receipt, Ds counsel prepares cross written
interrogatories and sends it back to the NP. The NP calls for
the deponent once again asks him the cross-exam questions.
Stenographer transcribes. NP sends back questions and
answers back to parties. Same happens with redirect and
recross. All the results are provided for both parties.
-During trial, can P decide not to present depositions in court?
Yes. However, adverse party can present it.
-Substitution- substitute can use deposition (father- son).
-Can a party give their deposition? Yes. Annulment.
2) Interrogatories to Parties.
-Distinguish from written interrogatories - can refer to a party
or a non-party. In Interrogatories to Parties it refers to parties
alone. Party to party.
-This is used to elicit information from the adverse party. Thus,
prepare a set of questions which you will request for the other
party to answer.
-No need for LOC, just send it to the other party.
-Limit to factual questions. What Where When How
-Avoid Why
-Answers must always be in writing and under oath.
-If a party refuses to answer, the court can direct a party to
answer under pain of contempt.
-Can the P present the D as his own witness? Yes however, a
hostile witness. But before he can be presented as a hostile
witness, as a condition, interrogatories to parties must first be
used.
3) Request for admission:
-Refers to parties alone
-For the other party to admit the authenticity of a document, or
admit pertinent facts.
-Supposing a party denies genuineness of a document in an
answer with a specific denial under oath? And then here comes
a request for admission.
-Some authors say this can be denied again. Others say this is
just a redundancy.
-If there is a request for admission which has already been
denied in an answer, state that such has already been denied in
the answer.
-If no action is taken on the request for admission Implied
Admission.
-Limit- applicable only to the case where the request is made.
-Eg. Same document questioned in 2 different cases.
Admissions used in first case cannot be applied in the other or
for any other case.
-Party to Party only.
4) Production of Records / Inspection of Things
-can apply to parties and non-parties.
-Used when there is voluminous amounts of records to
examine.
-Non-admission of liability settlement without admission of
fault (doctors)
-Always through a motion. Court grants it and orders person
who has possession and control of such documents to bring it
to court. Such documents have to be photocopied.
-LIMIT- not under privileged communication (Priest, attorney
and client, doctor and patient).
-Purpose of production: To copy and reproduce for records.
-For inspection of things if party refuses- contempt of court.
5) Physical and Mental Examination of Party
-Party to Party (not on witnesses)
-LIMIT- only when the physical or mental condition of a party
is in issue
-Eg. Annulment psych incapacity, legal separation sterility,
damages scars within daw.
-If court allows examination, the person availing of the mode
shall provide doctor and pay for expenses. The person who
asked for the examination is entitled to the results. If the
defendant gets a copy of the result, the effect is that he can no
longer present any other examination that will refute the earlier
one.
-If person examined had results of exams prior to the exam
requested by the other party, then the former can present said
results in evidence even when he requests for results of the latter
one.
-What if he does not request for the results? Can he present
subsequent results? Yes, provided he proves he has no inkling
about the results of the exam requested for by the other party.
-Can the deposition of a witness be used to destroy the
credibility of said deponent? YES. Point out contradictions.
-Affidavit vs Deposition. An affidavit is self-serving, but not
necessarily the truth. A deposition gives the other party to test
whether statements of the deponent are true. Affidavits usually
has no probative value, unless affiant is presented as a witness.
Such affidavit is useless when no affiant is presented for cross-
exam. A deposition shall be admitted outright.
BACK TO EXECUTION
-Revival 5 10 rule.
-The court prepares a writ of execution addressed to the sheriff.
In the writ, the dispositive portion of the decision is copied
verbatim.
-Writ can never go beyond the dispositive portion of the
decision, which is why it is quoted verbatim. If it is not, then
the writ is null and void. Thus, the aggrieved party may ask the
court to declare said writ null and void.
-The moment a writ is issued, the sheriff has to make a report
every 30 days about the execution of the judgment.
-Eg. Sheriff receives a writ. Brings it to D and presents writ
1M. The sheriff issues a receipt that he got 1M from defendant
and the sheriff brings the 1M to the P and the latter
acknowledges it. Afterwards, the sheriff makes a report stating
that he collected, delivered, and attached receipt of P. The writ
of execution is returned duly satisfied. The moment the court
receives that, the case is over. The court issues an order
considering the case closed and terminated. Such case is stored
in the archive for 10 years.

September 26, 2013
-Execution- anything that has a monetary claim- Sheriff has to
make a kada-30-day update. But what if the defendant really
doesnt have any money or doesnt want to give any?
-Garnishment You put garlic, vinegar, into your salad
-Notice of Garnishment authorizes the sheriff to issue notices
of garnishment to the banks in hopes that the defendant has cash
in said banks.
-Violates bank secrecy act? A bank cannot be compelled to
reveal how much a person has in a bank (except anti-money
laundering law)
-Notice of garnishment does not go against said statute. The
notice just lets the bank know that if said defendant has money
in that bank, then the latter should hold the money. The bank
doesnt have to reveal the amount of money.
-If this person has an account in your bank and has money in
it, please hold it. It is under custodia legis because a decision
has already been rendered against him
-The recipient may deny or confirm that the defendant indeed
has an account there.
-The sheriff may ask whether the account is sufficient to satisfy
the judgment.
-The bank may say yes or no (dormant account).
-Notice of Garnishment may also be issued against persons who
owe money to the defendant. Eg. Employer.
1) Levy
-Supposing there is no cash at all? Levy.
-Levy to take hold into custodia legis
-First, personal properties of judgment debtor
-(NOTE Sec. 13 Rule 39, properties exempt from execution)
-Sheriff gets everything of value.
-Lawyering books safe. Objects of profession
-Sold to public auction in order to satisfy debt.
-Judgment creditor can participate, and when he gets the highest
bid, the property will be credited against the debt.
-If personal properties are not sufficient, real properties are now
levied upon for execution sale.
-Sheriff issues a certificate of sale in favor of the highest bidder
which must be registered with the register of deeds where the
property is located.
-It is the registration that starts the 1-year redemption period.
-If this is not registered, the 1 year redemption period will never
start- thus, can be redeemed anytime. The judgment debtor,
along with the heirs, can redeem the property even beyond 1
year.
-Who pays for all the fees? Kawawang creditor.
-In case the judgment creditor bids the highest and receives the
certificate of sale, he still has to pay for registration.
-You pay for every document. And where does it go? Pork
Barrel.
-If the 1-year redemption period lapses, the sheriff issues a final
certificate of sale. The owners duplicate copy of the title is
canceled and the new one will be issued in the name of the
judgment creditor or whoever is the highest bidder in the
auction sale.
-If judgment debtor exercises right of redemption, has to pay
additional payments (fees involved in the proceedings during
the redemption sale) on top of the highest bid.
-Sheriff issues a certificate of redemption and would no longer
be transferred to the name of the highest bidder.
-During the 1-year redemption period, the registered owner is
entitled to possession of the property. Thus, entitled to the
rentals, fruits, expenses for repairs.
-However, he cannot make improvements on said property
during the redemption period. He cannot claim his
improvements if property goes to highest bidder. A builder in
bad faith loses everything.
2) 3rd Party Claim
-Supposing one of the properties levied upon belongs to a 3 rd
person, what is the said persons remedy? Execute a 3 rd party
claim. Do not confuse this with a 3rd party complaint.
-The 3rd party claim is actually an affidavit executed by the 3 rd
party stating that he is the owner of the property taken by
The sheriff. He can also attach proof of ownership to the
affidavit, and ask why/explain it is in the possession of the
judgment debtor.
-Gives copy to the sheriff, to the court, and to the winning party.
Once sheriff receives 3rd party claim, he shall no longer take
said property.
-If winning party would like the sheriff to take hold of the
alleged property of the 3rd party, the 3rd party would have to post
bond, which is more or less the equivalent value of the subject
property. Bond answers for damages in case erroneous levy.
3) Recovery of possession
-Recovery of possession- judgment as follows: directing
defendant to turn over possession to the plaintiff. How can
sheriff execute this?
-Eg. Parcel of land. Sheriff would just present said land to
plaintiff. Thats it. If there are plants there, the defendant may
be allowed to uproot said plants without prejudice to allowing
the defendant to harvest crops when ripe for harvest.
-Supposing there is a house on said property? Remove all the
stuff and padlock the house. Tapos give the key to the
plaintiff. Thats it.
-Supposing plaintiff says he doesnt need the house and wants
it demolished? The sheriff cant demolish. The plaintiff has
to file a motion for the issuance of a writ of demolition. This is
clitigated- notify the defendant to give him a chance to
demolish it himself.
-When writ is issued and is to be executed, law enforcers
should be at hand to keep the peace.
-Supposing it is reconveyance?
-If after the 1-year redemption period lapses and the title of the
highest bidder registered owner becomes incontrovertible
and indefeasible, the remedy is reconveyance.
-Reconveyance respects indefeasibility or incontrovertibility,
but asks court to convey property to person who files the
action.
-Deed of reconveyance- executed by loser (defendant) in
favor of winner (plaintiff- the one who brought and won the
action for reconveyance). Must include technical description
of property.
-The title along with the deed of reconveyance is submitted to
the register of deeds. Cancels the previous one and issues a
new one in favor of the winner.
-Supposing defendant doesnt want to execute a deed of
reconveyance? He cant be cited for contempt. However, the
court can order another (usually the clerk of court) to execute
said deed of reconveyance in favor of plaintiff.
-Defendant possesses owners duplicate copy of the title,
however, is given 10 days to surrender said title to court or
register of deed from the date of the execution of the deed.
-No registration of any deed concerning registered property
will be effected unless the owners duplicate copy of the title
is surrendered. Else, there will forever be a cloud of doubt
with such floating title.
-If not surrendered, court orders said duplicate copy to be
declared null and void and orders registrar to issue a new
owners duplicate copy of title in the name of the registered
owner (defendant). As if a new duplicate has been issued
kasi nga ayaw isurrender yung unang duplicate, which was
thus declared null and void. Now with the new duplicate,
along with the deed of conveyance, shall be surrendered to the
register of deeds. Said copy will be cancelled, and a TCT
shall be issued in the name of the plaintiff. Now reconveyed.
OCTOBER 1, 2013
4) Special Judgment
-One where defendant-obligor can perform the obligation
alone. (eg. Mandamus BAWADI to reconnect water supply.
Alangan na Beneco)
-If they refuse- contempt of court.
-Another is support.
-Action for support- one filed by minor child assisted by parent.
-Petition for support can be coupled with provisional remedy of
support pendent lite.
-No need to post bond.
-In initial hearing, if a ground is found to exist, may grant
pendent lite while case goes on (pending litigation)
-Why is it a special judgment? Because only the father can give
the support. If the father dies, the case dies as well. If the child
dies, the case dies as well.
-This is also a continuing judgment. The court may grant
increase even after 5 years from finality of judgment (eg.
Growing child needs bigger support)
-What if mother of child refuses support because she has a
stable job but then loses her job and files an action for the
execution of the judgment on support? Grant, because this is a
continuing judgment. Past support can be waived, but never
future support.
-At the end of the trial it was found out that the defendant is not
actually the father (group project daw). He has been giving
support pendente lite. Can he get it back? No. But he can get
it from the real father, and not from the child.
-Support pendente lite can also be found in criminal cases such
as rape, seduction, abduction, etc. as civil liabilities.
5) Foreign Judgments
-How can this be executed in the Philippines? Not through a
motion, but through an action
-An action for enforcement of a foreign judgment.
-Present the foreign judgment.
-The only proof needed is that the claimants show that the court
that rendered the judgment had jurisdiction to do so, and that
there was no fraud or collusion in securing the judgment, and
that there was due notice to the parties (due process
requirements complied with).
-If defendant resists such foreign judgment, then he proves the
opposite of the above. Court had no jurisdiction, that there was
fraud or collision, or that there was a violation of the due
process.
-Foreign divorce enforcement of a foreign decree of divorce
filed before the family court. Same as above.
Provisional Remedies
-Provisional- temporary.
-These cannot be filed on their own. They have to be filed with
a main action.
-Again, remember why a person files a civil case cause of
action.
-How will you get temporary relief / resolution to keep
defendant from violating your right? Via provisional remedies.
-There are 5: Attachment, Preliminary Injunction,
Receivership, Replevin, and Support Pendente Lite. (Rules 56-
60)
-What is common among first four remedies? By execution of
affidavit (why he is availing of such remedy). As for Pendente
Lite, a petition is filed and not an affidavit.
-Other requirement- bond. To be posted by the applicant to
answer for the damages that the respondent may suffer due to
the provisional remedy. Just in case respondent is not actually
violating rights and was asked to stop and suffers damages, thus
can proceed against said bond. No bond required for pendente
lite.
1) Attachment (Rule 56)
-Main action (may be collection of sum of money)
-Plaintiff feels that defendant is about to abscond or defraud
creditors. He can ask Sum of money with prayer for a writ of
preliminary attachment. Main action sum of money//
provisional remedy- prelim attachment
-Ex parte. Even without conducting a hearing.
-Prayer is granted. Let the preliminary attachment issue with
respect to a bond (discretionary)
-Attachment bond- returned to applicant in full when not used
in favor of respondent.
-Surety bond, property bond (within jurisdiction of the court)
-Assessed value- constant, unlike market value.
-Upon posting of bond, the writ is now issued.
-Issued ex parte but cannot be implemented without the court
having jurisdiction of the defendant.
-Implementation must be contemporaneous with service of
summons. In other words, cant be implemented without
having jurisdiction over the person of the defendant.
-Attached properties- does not make any distinction. Taken to
custodial egis.
-Properties exempt from execution are also exempt from
attachment.
-Sheriff brings attached properties to the court.
-Problem is, walang paglalagyan ng attached properties, which
is why sheriffs usually attach on real properties.
-After serving summons, and then providing a copy of the writ
of prelim attachment, he goes to the register of deeds and
attaches on all properties of the defendant.
-Responsibility of plaintiff-applicant to identify and provide for
said properties. Expense of plaintiff.
-Title- attached. Burden. Property can be sold, but the
attachment will follow (more superior lien). If there is a notice
of a writ of preliminary attachment, no buyer in good faith.
Serves a warning.
-Said attachment may be sustained until case is over.
-Thus attachment can be canceled and levied upon.
-Any stage after answer is filed, any application for a writ of
preliminary attachment must be LITIGATED. With proper
hearing, as the rights of the adverse party can be affected.
-Remember extraterritorial service of summons. Attach upon
his properties- convert in personam to in rem.
-Counter-bond posted by D to dissolve the writ for
preliminary attachment. Answers for damages which plaintiff
may suffer because there is no longer any attachment.
2) Preliminary Injunction
-To enjoin- to stop.
a)Prohibitory Injunction to prohibit or to stop
b) Mandatory Injunction to do.
-A provrem that can be a main action in itself.
-Eg. Bawadi- to disconnect your tubig- to stop them,
prohibitory injunction. If you dont see the word prohibitory, -Eg. Husband mismanages properties so wife wants to be
it means it is prohibitory.
-File a main action of injunction, plus preliminary prohibitory
injunction.
-TRO, until case is closed.
-What if water got disconnected? Main action of injunction
plus prov rem of preliminary mandatory injunction for bawadi
to reconnect water immediately pending the case.
-If attachment can be issued ex parte, preliminary injunction
will always have a hearing, even for a TRO.
-Exception, when executive judge issues a TRO (good for 72
hours).
-Eg. An association threatened with demolition of their houses
because they are on a titled property belonging to someone else.
The association claims that they bought it from an owner with
Spanish title. Thus, the owner complains at the city hall and
complains that there are squatters there. The zoning finds that
the buildings didnt have any building permit. Thus the local
government can demolish houses. 30 days for squatters to
demolish own property. They refuse, so a writ of demolition is
scheduled the following day. Thus, they go to court for a TRO
to stop the demolition to be carried out the next day. If the
executive judge believes this to be an urgent matter, (there must
be a grave and irreparable injury as well as an urgency) he can
issue it without hearing, effective 72 hours (3 days) preventing
the LGU from demolishing the houses. File an action for
injunction with a prayer for the issuance of a TRO. Attached to
their complaint is the required affidavit (as to why they need the
injunction). Since this is issued ex parte, cant be enforced by
sheriff unless court acquires jurisdiction over defendant. The
clerk of court issues the summons to prevent delay. Summons
addressed to the local government officials along with the 72-
hour TRO. If the judge believes that there is no urgency, will
not issue the 72-hour TRO but direct the case raffled. The court
that is chosen in the raffle must determine whether it should
issue a TRO (magulo to). But take note: If the executive judge
issues the TRO, within 72 hours the case must be raffled to a
court, and the court upon which the case is raffled to must
immediately conduct a hearing to determine whether the 72-
hour TRO must be extended to a Full TRP which is good for 20
days. Any extension is null and void. No extension for a TRO.
Take note that the 20 days includes the 72 hours (so bale 17
days extension nalang). Posting of bond is required. If judge
finds no urgency and does not issue a TRO (reconcile this with
notes highlighted in blue), the judge will set the case for hearing
to determine whether a writ of preliminary injunction will issue.
The applicant plaintiff has to prove that he really has a right that
will be protected by the injunction. Upon issuance of
preliminary injunction, it will mean that defendant cant do
what he is doing while case is pending. If plaintiff cant prove
that they really have a right, the injunction becomes permanent.
-Extended TRO for CA 60 days. For SC- until lifted.
-There is a law that prohibits courts from issuing TRO or prelim
injunction against public infrastructure projects.
-Unconstitutional tax measure- no injunction. Rather, pay tax
under protest.
3) Receivership
-Receiver- 3rd party appointed and tasked by the court to
administer the property subject of the litigation.
-Main action
appointed as administrator so she files a petition for
appointment as administrator of conjugal properties (main
action) and asks a provisional remedy for receivership to
prevent all properties from dissipating while case is pending.
The court will appoint a receiver to manage the properties, to
preserve it up to end of trial.
-Who can the court appoint? Both the wife and husband may
recommend, but the court chooses. Receiver answers only to
the court.
-2 bonds- Receiverships bond and receivers bond.
-Receivership bond posted by wife which husband might
sustain because of deprivation of administrative powers.
-Receivers bond- posted by receiver supposing he might
mismanage the property.
-Receivers get a salary chargeable against expenses of
administration. If job is done, accounting and inventory is
conducted by said receiver. Afterwards, get bond back.
-Receiver manages property while case is pending.
-Receivership bond cannot be applied for ex parte. Always with
hearing.
-Provisional remedy of receivership may be provided at a latter
stage or at the end (eg when conjugal partnership of gains is
dissolved and remaining is put in trust for children) receiver
in aid of execution.
4) Replevin
-Main action- Recovery of personal property with prayer for the
writ of replevin.
-The first 3 provrems- the court sets the bond.
-In replevin, the applicant himself sets the bond based on the
affidavit he executes.
-Eg. Car company sells car to buyer via downpayment and then
installment. Buyer defaults in installment, so acceleration
clause occurs. Since full purchase price not paid, ownership
still belongs to company. Thus, company files recovery of
personal prop with prayer for writ of replevin. In its affidavit,
it will state that it is the owner of the car, along with the market
value of the car, the latter becoming the basis of the bond.
However, the bond will be twice the amount of the fair market
value. When the company files the complaint along with the
affidavit, this must contain the bond, because replevin is issued
ex parte. All that is issued ex parte cannot be executed without
acquiring jurisdiction over defendant. The court needs
OCTOBER 2, 2013
-Replevin- applicant fixes amount of bond
-The moment it is fixed, can be done ex parte
-Implementation must be contemporaneous with service of
summons, or, service of summons comes first. Acquire
jurisdiction.
-Can sheriff implement writ of replevin against a person not a
party to the case? (eg. A new owner 3rd party buyer in good
faith) YES. A writ of replevin can be enforced against anybody
who is in possession of subject property.
-Limitation- if property is under custodial egis (eg.
Attachment), a recovery of personal property with writ of
replevin cannot be issued against it. Neither can this work
against guns taken in custodia legis.
5) Pendente Lite
-Weve already discussed this and weve said that in pendente
lite in order to initiate it you dont file an action but rather a
petition, and there is no bond required.
-During pendency of recovery of possession, along with the
writ of replevin filed by the car company, sheriff takes
possession of the car from the buyer for 5 days by virtue of the
writ for the purposes of waiting for a redelivery bond to be filed
by the buyer. If no such bond is posted, then delivery of said
property is effected for the car company while the case is
pending.
-If no redelivery bond- property in possession of the car
company. If said property gets lost, then it is the car companys
liability. Bears the loss when it is adjudged as the winner in the
case. Liable to buyer when the latter wins the main case.
-If redelivery bond is filed by buyer and latter takes possession
of the car and thereafter loses it, then the buyer suffers the loss.
Bears loss when he wins case, but becomes liable to car
company when the latter wins the main case.
-If sheriff loses property during the 5-day period, he becomes
liable to whomever is entitled to claims.
SPECIAL CIVIL ACTIONS
-Specifically named as such in the Rules (starting from Rule 62-
71). These are the only special civil actions. All the others are
ordinary civil actions.
-They have their own peculiar rules.
1) Interpleader (ubo! Ubo!)
REQUISITES:
a) There must be one subject matter
b) There must be 2 conflicting claimants, both apparently
having valid claims
c) Plaintiff is not interested in the subject matter.
Eg. Y leases property and pays rent to Z, with whom the former
has a contract of lease with. X comes along claiming that Y
pays rent to him the latter being the new owner of the property.
Y clarifies with Z, but the latter insists that he be the person to
whom Y should pay the rent. X presents to Y a deed of sale
showing that Z sold the property to X. Now, Y is in a quandary:
What if he pays to Z when X is actually right, and vice versa?
In other words, Y is in double jeopardy in having to pay twice.
Is there only one subject matter? Yes. Are there 2 conflicting
claimants with apparently valid claims? Yes. Lessor (X) and
apparent new owner (Z). Is Y interested in the subject matter?
No. He only wants to know as to whom he is to pay the rent.
So he goes to court- Y vs X and Z on an action for an
Interpleader (Cause of action). He goes to court to force X and
Z to interplead amongst themselves.
-File case before the RTC (incapable of pecuniary action).
-The moment plaintiff files it, what does he do next? Nothing.
He will just wait for the results. The real battle is between X
and Z.
-In ordinary civil actions, the plaintiff would have to pursue and
have the case prosecuted. In interpleader, the plaintiff only
brings the case to court and the latter asks defendants to
interplead. Plaintiff brings to parties to fight among
themselves.
-When decision comes out, Y appears again to know of the
judgment para alam niya kung kanino siya dapat magbayad.
-If plaintiff himself is interested in the subject matter (eg.
Because of the agreement that if he makes improvements on the
property then he should be exempt from paying rent for the next
3 months equivalent of the value of the improvement) then
the case is not an interpleader, because of the absence of the
third requisite.
-Val: maam what if there is already a case of quieting of title
between X and Z?
-Judge M: Then, Y can intervene, as he stands to be affected
(Motion for Intervention, and not interpleader), either as
plaintiff-intervenor or defendant-intervention.
2) Declaratory Relief and other similar remedies
-The subject of a declaratory relief is either a statute, an
ordinance, a decree, or even a contract.
-In DR, there is a provision in the statute, ordinance, decree, or
contract that is ambiguous which affects the petitioner.
Petitioner does not understand said petition so he goes to court
and files a petition for declaratory relief.
-A special civil action is an action in itself.
-Fountain pens make people crazy.
-Eg. Ordinance Sharp pointed objects. Engineering student
wonders about his tools, so he goes and files a petition for
declaratory relief. Who will be the respondents? The city
council who enacted the ordinance.
-Take note: If local government unit the city legal officer has
to be involved. If a law the office of the solicitor general.
-Back to the example - While the case is still in court, police
officers apprehend him he is charged for violation of the
ordinance. What happens to his petition? Will be dismissed.
Because there is already a violation of the subject ordinance.
-The petition can only be filed when there is no violation of
subject ordinance/statute/law.
-The moment there is a violation, the rule says that the
declaratory relief will be converted to a case for violation.
-File petition before the RTC- incapable of pec est
-If there is a violation of an ordinance, the MTC has
jurisdiction.
-Since in an ordinance there can be no such conversion due to
the difference in jurisdiction, the petition will be dismissed.
-Declaratory relief should only be used as a last resort. If there
is another law governing the situation, then that law should be
applied.
-In DR, the court exercises discretion whether or not to act on a
case.
-Eg. Can court define what a sharp and pointed object is
without being accused of judicial legislation? What was the
intent of the municipal council? Can the court interpret? So the
court may say that they are not the ones who shall determine
what these objects are and thus will not act on the petition. They
will refer the matter back to the City council instead.
-RA 10591 - all cases of illegal possession of firearms fall under
the jurisdiction of the RTC.
-Except- carrying a licensed firearm outside residence without
permit to carry (MTCs jurisdiction)
-Eg. Contract. Instead of declaratory relief, consider other
options such as reformation of contract, or compromise
agreement, or settlement.
-how about and other similar remedies?
-Quieting of title is a similar remedy. Seeks to establish
ownership and remove any cloud of doubt hovering over
ownership- however, this is an ordinary civil
-similar to a declaratory relief wherein you want your rights to
be established under a law, statute, contract, etc. In quieting,
you want your right to be established.
-Take note of the specific provisions of the Rule on declaratory
relief (law, statute, executive agreements, contracts, etc.
READ)
3) Resolutions (Rule 64)
-Just read kunana, because she jumped to certiorari, prohibition,
and mandamus.
4) Certiorari, prohibition, and mandamus (Rule 65)
-Appeal by Certiorari (Rule 45) vs (Rule 65)
-Former is a mode of appeal, while latter is a special civil action
-Former can be availed of within 15 days from receipt of
decision, while for the latter can be availed of 60 days from
receipt of the denial of an MR.
-Grounds: Former questions of law, Latter grave abuse of
discretion. Thus, an MR is not a prerequisite in Rule 45. An
MR is a prerequisite in Rule 65 to give the judge a chance to
correct himself.
-Rule 45- only before the SC, Rule 65- courts exercise
concurrent jurisdiction, with respect to the doctrine of hierarchy
of courts.
-Interlocutory orders can be subject of Rule 65. Interlocutory
orders- there is still something to be done- does not dispose of
the case.
-Why were they all lumped together? Underlying thing
between the three the court acted with grave abuse of
discretion.
-Court has discretion, and the judge abuses it. Is this sufficient?
No, it has to be grave.
a) Petition for Certiorari (PFC)
-Eg. Judge denies MR- denied. Motion to lift order of default
when such is supported with very good grounds on FAME- still
denied. So whats the remedy? Petition for Certiorari (R65).
-If a PFC is granted, the order of the judge is lifted and set aside.
-Eg. D files an MD. The court denies it and asks D to file an
answer. Instead, D files an MR (a prerequisite for PFCPM).
Still, the MR is denied. Note that the above-orders of denials
are interlocutory orders. From said receipt of denial of MR, D
has full 60 days to file a PFC.
-Thus, in the PFC, the D becomes now the petitioner:
-Petitioner vs. Hon Judge (Public respondent nominal party)
and plaintiff (private respondent indispensable party).
-The court receiving the PFC will direct the private respondent
to give the comment to the petition (and not a motion to dismiss-
which will just delay the case)
-Judge gives comment to the petition gross ignorance of the
law.
-Provisional remedy that can be availed of to prevent the judge
in the lower court from continuing with the case- Writ of
preliminary injunction.
-Petition for certiorari with preliminary injunction/TRO to stop
the court from hearing the case.
-If certiorari is sustained, the higher court will lift the injunction
and dismiss the case.
-If the higher court does not grant provisional remedy of
injunction, then the lower court will proceed to hear the case.
Since the case will go on, and D fails to file an answer, the latter
can be declared in default. What to do?
-File an answer ad cautelam (play safe) precautionary move
to show that D is not discontinuing with the PFC.
-All decisions to special actions can be appealed to any higher
court in the ordinary manner.
-If there is a decision in the main case while the certiorari is still
pending, then file an appeal so that there can be no finality to
such decision, hoping that such appeal will eventually meet
with the pending certiorari.
-What if an appeal was filed, but the certiorari is then resolved
in favor of appellant? Then said appellant is to withdraw the
appeal. Nanalo siya sa certiorari eh.
-What if in the main case there was a decision that was not
appealed and becomes final before the resolution of the
certiorari? Decision prevails. For execution. Goodbye
resolution. Which is why delay finality of the decision with
appeal, pending resolution of the certiorari.
b) Prohibition
-To enjoin.
-Eg. P vs D for recovery of possession of parcels of lands
located in LTB, with an assessed value of P25,000.00. Both P
and D are residents of Baguio. P files the case before the RTC
of Baguio City. D files MD on the ground of improper venue.
RTC Baguio denies the MD, insisting it had jurisdiction (juris
is different from venue). So D went to CA with petition for
prohibition for the RTC to stop hearing the case since an MD
was timely raised. Same as above. Kaya lumped together.
c) Mandamus
-To compel the performance of a Ministerial function.
-Never for a discretionary function.
-Eg. Prosecutor dismisses case because he did not find any
probable cause. Can a petition for mandamus be issued against
him? No, because a finding of a probable cause is discretionary
upon the prosecutor.
-Eg. Private complainant files an affidavit of desistance.
Prosecutor files a MD before the court. Can judge be compelled
by mandamus to dismiss the case considering the victim wants
it dismissed? No. Dismissal of a case is a discretionary
function of a court.
-13th month pay- Mandamus against employer? Oh yehesss!!!
-Applicant for the regional director slot. He has the best
qualifications ever (most experienced ever, highest IQ ever,
best credentials ever), but the appointing officer chooses
another. May the appointing officer be compelled by
Mandamus? No.
-Ministerial- To be done as ordered by law.
-Mandamus vs. Quo Waranto.
5) Quo Waranto
-Prerogative writ (may or may not do it) of the government.
-It is only the government that can file this.
-To question by what authority a person exercises a public
office or a corporation exercises a public franchise.
-Eg. Elected mayor found unable to read written speech
-The government files this via the Solicitor General.
-Exemption: A 3rd person / citizen may bring it to the attention
of the Solicitor General.
-If quo waranto is filed at the instance of a 3 rd person, then a
leave of court is necessary. If it is the government that initiates
quo waranto, no need for leave of court.
-3rd person bears the expenses.
-Motion for leave to file quo waranto. Indicate intended
victim of quo waranto. Leave of court needed to give the
public officer in question to be heard.
-If court finds that indeed there is a ground, it directs 3rd person
to file quo waranto. That is the peculiarity.
-How about for a corporation exercising a public franchise?
(taxis, PUJs, etc)
-Eg. You see pink pedicabs and jeepneys offering piso fair
only, but there are no marks of LTFRB or cert numbers. The
government can question the operator as to under what right
does it operate.
-Another who can bring a quo waranto- The person entitled to
the position.
-Eg. A public officer goes on leave to review for the bar for 6
months. Coming back to his office after the review, he finds
that his assistant has usurped his position. What to file?
Mandamus or Quo Waranto? Quo Waranto, because there is a
usurper.
-Mandamus is to be filed if there is no usurper but person is
prevented from assuming his position.
-Quo Waranto- by what authority is he exercising public office?
-Prescriptive period of 1 year to initiate a quo waranto
proceeding against usurper, from time he was dispossessed of
the position he is entitled to.
-Claims: Damages past salaries.
-When everybody looks at me strangely, I know that it must be
time.
END.
TRANSCRIPTION FOR LAST LECTURE (OCTOBER 5
MAKEUP CLASS) TO BE UPLOADED LATER, MGA 1
PM.
OCTOBER 5, 2013
6) Expropriation
-Eminent Domain is the right (substantive). This is how it used
to be called.
-How is it enforced? Through expropriation proceedings.
-Filed before the RTC- incapable of pecuniary estimation.
-2 stages of trial:
a) propriety of expropriation
-plaintiff- RP or govt institution vs private individual
-What does plaintiff have to prove? That the property is for
public use. Prove in the first stage.
-If private individual has no objection to the taking, then there
is no need to file an answer. Just file a manifestation and state
that there is no objection to the taking.
-If no objection, must the government still prove that it is for
public use? Yes, it has to. Because there is disbursement of
public funds.
-What if defendant objects? Then he must file an answer.
-Motion to Dismiss is not allowed in expropriation proceedings.
-If he has valid grounds to file a motion to dismiss, then
defendant has to put this in his affirmative defense.
-After first stage, can the court render a decision? Yes.
-Whether or not for public use.
b) Second Stage- Just compensation
-Will come in only when court determines that it is for public
use. If the taking is only for the building of a gold course for
napoles and friends, then the court will deny, and there will no
longer be a 2nd stage.
-Can defendant appeal decision even if there is a second stage?
Yes. There is where record on appeal comes in.
-Record on Appeal- reproduction of the record of the original
trial. Note that second stage commences so records must
remain with the court dealing with the expropriation
proceedings.
-The Record on Appeal is the one forwarded to the appellate
court for purposes of appeal.
-Thus, there are 2 records: The first one stays in the original
court for purposes of proceeding with the second stage, while
the second one is sent to the appellate court for purposes of
appeal.
-Who is responsible for the production of record on appeal?
Appellant. He will be given 30 days to produce record on
appeal.
-Contains all the pleadings and all the records. If the original
court is satisfied, it will approve the record on appeal and
forward it to the appellate court.
-While the CA goes about with the appeal, the RTC determines
the just compensation in the 2 nd stage.
-Trial by Commissioners. Court cannot be saddled with the
nitty gritty of determining value of each mango tree and
whatnot, then it will appoint commissioners, usually 3: One
appointed by the government, another by the defendant, and the
third (chairman) is chosen by the court. Commissioners are
answerable only to the court.
-Usual commissioners - assessors, real estate brokers, anybody
from the treasurers office or register of deeds.
-They have the right to subpoena persons who can testify.
-They submit their report only recommendatory. Not binding
on the court. Furnish to plaintiff government, defendant private
individual, and the court.
-The court sets the report for hearing and gets their comment,
and then decide. Court can adopt, modify, alter, or disregard
entire report.
-Determination of just compensation can be appealed.
-No need for record on appeal because second stage is over and
none follows after, so the court can transmit the entire records
to the CA.
-Can the government enter the private property without filing
an expropriation proceeding? Yes. By depositing the assessed
value of the property- thereafter, they can enter. Deposit is to
be made in the name of the private person. Forms part of the
just compensation. Thereafter they can initiate expropriation
proceedings.
7) Foreclosure of Real Estate Mortgage (JUDICIAL)
-Extrajudicial foreclosure is governed by Act 3135.
-Judicial A special civil action under the Rules.
-Where does this come in? In the decision.
-Court to determine the total amount of debt.
-To be settled within a period not less than 90 days or more than
120 days from the finality of the judgment.
-Instead of ordering the sale of the property, it will give the
mortgagor the chance to get back the property by paying the
debt.
-This is called Equity of redemption. Allows you to get back
property without such being sold in public auction. (within 90
to 120 days)
-If there is no payment within said period, the court will order
the sale of the real estate at a public auction to the highest
bidder. Thereafter, sheriff issues a certificate of sale which is
registered with the appropriate register of deeds (place where
property is located) and such is the operative act that will start
the 1-year right of redemption.
-Distinguish Equity of redemption vs Right of redemption.
-If not redeemed in 1 year, the sheriff issues a final cert of sale
which consolidates title.
-Supposing the real property is sold at 900K during public
auction (but the debt was at 1M), so there is still a balance of
100K. Ask the court for a deficiency judgment. Orders
defendant still to be liable for 100k, in spite of the sale.
-How is deficiency judgment executed? Through an ordinary
action for sum of money.
-What you should only know is the what is equity of redemption
and what is right of redemption- kunana.
-Mam: Question?
-Franco: Mum wat is diwats di
-Sorry guys nakakabaliw mag-type ng derederetso
-If paid in the given time (within equity of redemption), then
there is a cancellation of the mortgage, and title becomes clean
again.
8) Partition
-This provision is for real property. But can you partition
personal property? Yes if it is divisible (kabans of rice)
-What if indivisible, such as a vehicle? Then sell it and partition
the money.
-The partition in special civil action usually covers real estate.
-There are 2 stages in partition.
a) First Stage: (not named)
-Establish propriety of partition.
-Prove co-ownership. The reason for partition is because there
is a co-ownership. Co-owners have no specific ownership.
-Prescriptive period within which to file a case of partition?
Imprescriptible.
-Eg. Co-owners A, B, and C. A repudiates co-ownership. A
says, excuse me, I am the only owner of the property because
I spent on it, made improvements upon it, and paid taxes for it.
And you B and C, you did nothing NOTHING! You just
enjoyed the fruits of my labor. Therefore, I am now the owner
of this property. In short, A is repudiating the co-ownership,
declaring that he is the sole owner. Yet, the title is in the name
of A, B, and C. Can B and C still file partition? No more
because A repudiated the co-ownership. So whats the remedy?
Accion Reinvindicatoria to recover ownership. And if it is to
recover ownership, what happens? Prescription can set in.
Prescriptive period for AR is 10 years.
-For as long as co-ownership is recognized among all co-
owners, partition is the appropriate action, which is
imprescriptible. But for as long as a co-owner repudiates the
co-ownership and declares that he is the sole owner, then then
AR prescriptible.
-So that is the first stage.
-After the first stage, the court decides that there is a co-
ownership. Is this appealable? Yes. Record on appeal.
b) Second Stage: Partition itself.
-Can be left to commissioners, or the co-owners themselves
have their partition agreement (equivalent to a compromise
agreement- Court will just approve it and renders judgment in
accordance with said agreement).
-Commissioners help them thresh out division.
-Is oral partition valid? (eg. When parents point and talk
bagim jay aggapu jay kayo ijay ngato inggana ijay niyog, etc.
tapnu han kayo ag-aapa nu natay kamin)
-VALID, provided it has been consummated during the lifetime
of said parents (each sibling takes possession).
-Thus, there is no longer co-ownership to establish. Another
sibling cant file a case for partition.
9) Ejectment Cases Forcible Entry / Unlawful Detainer
-Original and exclusive jurisdiction of the MTC.
-Prescriptive period 1 year from illegal detention / forcible
entry.
-MTC, regardless of the amount to be collected.
-SOLE ISSUE is possession. Who has a better right of
possession? Thus, can the court make a determination of
ownership? Yes only to determine who has the better right of
possession. Such finding of ownership is only conclusive in
said ejectment case. Cant be used in a different case.
-Eg. P vs D for Forcible Entry. Court finds that D is the owner
and thus has better right of possession. Thus, D files a case of
quieting against P. Is there res judicata from the first case?
None. Different issues (1st case- possession, 2nd case-
ownership). The finding of ownership is only conclusive to the
first case and will not affect any other case subsequent.
a) Forcible Entry- dispossessed of property through FISTS.
So you wont forget, they fisted you out of your property.
(Forcible EntryFISTingsounds so wrong. Try watching
extreme fisting videos)
-Because that is what the rules say, said ground/s must be
specified in the complaint.
-If ground not specified, the case may be dismissed because the
court cant acquire jurisdiction.
-Eg. P vs D for forcible entry. In the complaint, what is alleged
is, Plaintiff wakes up one morning finding defendant leveling
and bulldozing his property. Defendant doing it under a
contract. MTC rules in favor of P, so D appeals to the RTC
claiming that there was no clear allegation of any of the FISTS.
Then, the RTC says that MTC did not acquire allegation, as
FISTS put a case under the mantle of forcible entry which is
within the jurisdiction of the MTC. Thus, the decision appealed
from is reversed and the case is dismissed. D wins. The P went
on a petition for review before the CA. The CA ruled that RTC
is wrong and MTC is right, that the acts of leveling and
bulldozing are forms of stealth and strategy. Thus, D loses. The
P now goes to the SC on a petition for review on certiorari SC
says that the MTC and the CA are wrong, and that the RTC is
correct because there is no clear allegation of any FISTS. Case
dismissed. Judge M was actually the RTC judge in this case.
-Is there a need to make a demand before filing a forcible entry
case? No need.
-What provisional remedy can be availed of? Preliminary
Mandatory Injunction.
-If the decision is granted and order the D to vacate, what else
can the P ask for? Will there be damages in forcible entry case?
Yes, reasonable rentals and attorneys fees.
-Any question? We finish this first before we eat ok?
9) Unlawful Detainer
-Common in Baguio City.
-Every right to remain in the property, but upon losing right,
you are asked to leave.
-Must a demand be made for the person to vacate?
-If ground is expiration of an express contract, NO DEMAND
is necessary (Eg. Contract of lease with specific date,
nonrenewable)
-Upon end of contract, there is now illegal detention of the
property, the person being aware of the conditions of the
contract, thus not necessitating notice or demand.
-Supposing there is no written contract? Period will depend on
payment of rent (eg. Monthly, edi monthly. Weekly, edi
weekly. Daily, etc. Hourly, iba na yan. Short time)
-Implied contract- There is NEED OF DEMAND, so that lessee
will be aware that he is no longer authorized to occupy.
-What if the ground of the unlawful detainer is nonpayment of
rent? 2 demands must be made: A demand to pay and a demand
to vacate.
-What if the grounds are based on other violations of the
contract? (eg. Subleasing, overcapacity, turned into a sari sari
store, etc) if the grounds are violations of other provisions of
the lease contract, then demand is necessary.
-What kind of damages can be collected in unlawful detainer?
Rentals and reasonable attorneys fees. None other.
-What if lessee has not been paying city services. Will a case
for unlawful detainer and damages (covering elec bill, water,
phone bills, etc) prosper? No. A special civil action and an
ordinary civil action cannot be joined (remember limitations?)
-This is not a ground to dismiss. Since it is a misjoinder, the
court will just sever and proceed against cases separately
(consider jurisdictional amount of ordinary civil action as well).
-Besides, Forcible Entry and Unlawful Detainer are under rules
on summary procedure.
-The MTC issues an order that says this is a case covered by
rules on summary procedure (for FE or UD)
-What are the rules?
-Referral to Lupon. If not referred, an MD can be filed on the
ground of NONREFERAL TO LUPON (not on failure to
comply with rules precedent under Rule 16. Rules on Summary
Procedure is different).
-The only allowable grounds for dismissal of case in Summary
Procedure Nonreferral to Lupon and Lack of Jurisdiction.
Those 2 only.
-How about other grounds? File an answer and include them in
the affirmative defenses.
-When court makes a finding that the case is under summary
procedure, it will direct the issuance of summons and the D is
given 10 days to file an answer (not 15, because this is a
summary proceeding).
-At the end of the 10-day period and there is no answer, there is
no declaration of default in summary procedure.
-The court on its own (or on motion of the P) can consider the
case submitted for decision.
-However, if D files an answer in 10 days, the Court will set the
case for preliminary conference in 10 days.
-Preliminary conference is similar to pretrial. However, there
is no trial.
-10 days therefrom, the court directs the parties to submit their
respective position papers.
-If the court finds there is a need for a clarificatory hearing, the
court will set the case for that purpose.
-Clarificatory hearing- because upon reading the position
papers and affidavits, the court finds ambiguity needing
clarification.
-If clear, then cases are submitted for decision, and the court has
30 days to decide the case (unlike regular cases 90 days).
-As a total, FE and UD have to be decided in 60 days. That
short? Yes. Does it happen that way?.......sometiiiiimes!!!
kunana. Sometimes 60 months.
-What if there is no answer? Edi 40 days. Summary procedure
nga, which makes these cases peculiar.
-Demand- must this be oral or written? Any. Hoooy, your rent!
And you vacate! Such demand is valid. But for probative value,
a written demand is needed (added to the position paper).
-All the special civil actions are original / initiatory actions,
so they require verification and CNFS, and payment of
docket fees (except Direct contempt. Summary)
-In indirect contempt, you have to have a petition. But if it is in
connection to the main case, then a motion is fine.
-There will be a hearing.
-Remedies of person cited in contempt.
-Direct contempt:
-File a petition for certiorari under rule 65.
-Judge is pikon, thus grave abuse of discretion.
-Indirect contempt:
-Appeal the decision in the hearing of the indirect contempt
case.
-Read on the penalties of contempt.
-Ended the lecture with the story of the weird and wild
prosecutor who ended up being decided upon by Judge M.
Super verbatim: coverage of exam from judgment.. ay no
no no no, from remedie - from remedies before finality up to
special civil actions. Bring your notebook but DO NOT
WRITE anything on it. Leave it blank, leave it blank from back
to front. And bring your permit. Ok? So, can we have lunch
now? Okay, so lets have lunch.

-And finally, let me hurry this because you might cite me for
contempt of stomach.

10) Contempt of Court

-This is the only provision in your entire Rules on Civil
Procedure that is criminal in nature. Why? Because it provides
for a penalty: Fine, imprisonment, and even both, especially if
the judge does not like your face.

-Contempt- disrespect and disobedience of the court. The court

deserves every respect it can get. Judiciary is among the 3
pillars of the government.

a) Direct contempt- if sign of disrespect is done within the sight

and hearing of the judge. Anything that serves disrespect or
disturbs/disrupts the proceedings.
-Summary. No need for a proper charge or hearing.
-Will there be a service of sentence right away? Yes. Brought
to jail, pay, or both.
-Eg. Honking lawyer, drunk janitor.
-Penalties in MTC is different from that of the higher courts.
-Higher penalty in direct contempt, vs indirect.

b) Indirect contempt- opposite of direct.

-If it is not within sight and hearing, or disobedience (eg. TRO).
Or refusal to allow inspection/ survey.
-Indirect contempt needs a proper charge or petition.