Professional Documents
Culture Documents
2.1 The rules of procedure promulgated by authority of law bear the force and
effect of law.1
4. Included within its scope are the 1991 Rules on Summary Procedure,
Local Government Code provisions on the Katarungang Pambarangay and
related issuances of the Supreme Court.
PRELIMINARIES
1.1 Absent jurisdiction, the only thing a court can do as provided by the rules
is to dismiss the action.
1.2 If a court acts without jurisdiction, all its acts are null and void. Further, any
decision it may render is not a decision in contemplation of law and cannot be
executory.2
1
Conlu v. Court of Appeals, 106 Phil 940
1.3 The validity of a judgment or order of a court or quasi-judicial tribunal
which has become final and executory may be attacked when the records show
that it lacked jurisdiction to render the judgment-a void judgment may be assailed
or impugned at any time either directly or collaterally by means of a petition filed
in the same or separate case, or by resisting such judgment in any action or
proceeding wherein it is invoked. In fact, even the testimony in a case where the
proceedings had been nullified for lack of jurisdiction is inadmissible as
evidence.3
2.1 However, a party may be barred from raising it on the ground of laches or
estoppel when he has actually invoked the jurisdiction of the court by
participating in the proceedings, then belatedly questions lack of jurisdiction after
judgment has gone against him. Participation in all stages before the trial court
which included invoking its authority in asking for affirmative relief, effectively
bars the party by estoppel from challenging the court’s jurisdiction.4
2.2 The court actually does not have jurisdiction, but the law for reasons of
equity, steps in to gag the negligent party and prevents him from raising its voice
about lack of jurisdiction. It does so not because the Court has acquired
jurisdiction but because of fault or negligence of a party now estops him from
raising the question of lack of jurisdiction.5
2.3 Note likewise the rules covering actions for annulment of judgment based
on extrinsic fraud or lack of jurisdiction. If based on the latter, it can only be
initiated before it is barred by laches or estoppel.6
2.4 It is incumbent upon the petitioner to file a motion to dismiss at the earliest
opportune time to raise the issue of the court’s lack of jurisdiction. Its failure to
seasonably raise the question of jurisdiction leads to the inevitable conclusion
that it is now barred by laches.7
2
Abbain vs. Chua, 22 SCRA 748, Estoesta vs. Court of Appeals, 179 SCRA 203, Dava vs. People, 202
SCRA 62
3
Dynamic Signmaker Outdoor Advertising Services, Inc. vs. Potongan, 461 SCRA 328
4
Heirs of the late Panfilo V. Pajarillo v. Court of Appeals, 537 SCRA 96
5
Tijam v. Sibonghanoy, 23 SCRA 29, Soliven v. FastForms, Phil. Inc., 440 SCRA 389
6
Sections, 2 and 3, Rule 49, 1997 Rules of Civil Procedure
7
United Overseas Bank v. Ros, 529 SCRA 334
1. It must have jurisdiction over the persons of the parties. It is acquired over
the plaintiff upon his filing of a complaint.
1.1 On the other hand, it is acquired over the defendant by his voluntary
appearance before the court or the employment of the coercive power of legal
process.
2.3 In case of conflict between the allegations and the reliefs, the allegations
in the body shall prevail. The prayer is a conclusion of the pleader as to the
proper reliefs that he would be entitled to on the basis of the pleaded cause of
action. The Court is not bound as it may grant a relief, lesser or greater in
amount, or totally different from that prayed for.10
2.4 Even if the plaintiff alleges an amount that puts the case within the
jurisdiction of the RTC, the court’s jurisdiction is not affected if it later finds that
the plaintiff is entitled to an amount within the jurisdiction of an MTC. 11
Conversely, if a court has no jurisdiction, the defect will not be cured by a finding
during the trial that the amount actually due is within the jurisdiction of the court.12
2.5 Neither can it be determined from the allegations in the answer of the
defendant. If the rule were otherwise, no action can prosper as all the defendant
has to do is to allege that the jurisdiction is vested in another court.
8
Heirs of Valeriano S. Concha, Sr. v. Lumocso, 540 SCRA 1
9
De Jesus v. Bristol Laboratories, 55 SCRA 349, Solid Homes v. Court of Appeals, 271 SCRA 157
10
Bulao v. Court of Appeals, 218 SCRA 321
11
Ratilla v. Tapucar, 75 SCRA 64
12
Mercado v. Ubay, 187 SCRA 719
2.6 The only recognized exception is the defense of agricultural tenancy. 13
The court in this case must conduct a preliminary hearing on the defense to
determine if there is indeed a tenancy relationship, as its existence shall mean
that the court has no jurisdiction as the same is vested exclusively with the
DARAB.14
2.7 Determined by the law in force at the time of the commencement of the
action. Jurisdiction as used in the Constitution and statutes means jurisdiction
over the subject matter15 unless qualified to mean another kind of jurisdiction.
This jurisdiction refers to the jurisdiction of a court over a general class of cases
or the power to try and decide the class of litigation to which the particular case
belongs.16 Jurisdiction is conferred by law, where there is none, no agreement of
the parties can provide one.17
2.8 Example: If an action for payment of a sum of money is filed after the
effectivity of RA 7961 on April 15, 1994, expanding the jurisdiction of the MTC
and implemented by Adm. Circular 9-9418 interest, damages of whatever kind-
as long as incidental, attorney’s fees, litigation expenses and costs (DIAL-C) are
not to be considered in fixing the jurisdictional amount, but must be specifically
alleged and filing fees paid thereon. Hence, in an action for the payment of a sum
of money previous to the said date, a determination of jurisdiction would have to
include the amounts claimed by way of DIAL-C. Another is Section 5.2, RA
879919 that vests jurisdiction over intra-corporate disputes in the RTC that sits as
a commercial court.
2.9 When a court has already obtained and is exercising jurisdiction over a
controversy, its jurisdiction to proceed to the final determination of the cause is
not affected by new legislation placing jurisdiction over such proceedings in
another tribunal unless the statute expressly provides, or is construed to the
effect that it is intended to operate on actions pending before its enactment.20
3. Jurisdiction over the res assumes importance only in those actions where
the court cannot acquire jurisdiction over the person of the defendant because he
is not a resident and cannot be found here or served with summons.
13
Section 3, Rule 70, 1997 Rules of Civil Procedure
14
Concepcion v. CFI of Bulacan, 119 SCRA 222
15
Reyes v. Diaz, 73 Phil 484
16
Caluag v. Pecson, 82 Phil 8
17
Department of Health v. NLRC, 251 SCRA 700
18
June 14, 1994
19
Securities Regulation Code of 2000
20
Palana v. People, 534 SCRA 296
3.1 These are quasi in rem actions.21 The action is directed against a
defendant personally, although its object is to subject his interest in the property
to the obligation or the lien.22
1.1 Generally, it is one where the basic issue is something other than the right
to recover money, where the money claim is incidental to or is a consequence of
the principal relief being sought.
1.3 Examples: Action for specific performance – although damages are being
sought but if damages are part of an alternative prayer, jurisdiction should be
based on the amount. Other examples: Action for appointment of receivers,
expropriation, interpleader, support, and rescission.
1.4 In determining which court has jurisdiction, the applicable test is the
Nature of the Action Test which involves a determination as to whether or not the
action is capable of pecuniary estimation. If not capable, jurisdiction is with the
RTC. If capable-jurisdiction is determined by the amount claimed/value of the
real or personal property but this test must yield to the Primary or Ultimate
Objective Test where notwithstanding the fact that the action appears to be
incapable of pecuniary estimation, if the primary objective is to recover real
property, jurisdiction will be determined by the assessed value of the real
property.
1.5 Examples: An action for specific performance with a prayer for the
issuance of a deed of sale over a parcel of land is a real action as the object is
the recovery of the land itself23 or an action to quiet title in which both parties are
claiming ownership of the subject parcels of land is also a real action. 24 Hence,
they cannot be considered as being incapable of pecuniary estimation.
21
Perkins v. Dizon, 69 Phil 186
22
Biaco v. PCRB, 515 SCRA 106
23
Gochan v. Gochan, 372 SCRA 256
24
Ferrer v. Lucas, CA G.R. No. SP 52294, July 9, 1999
2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE
JURISDICTION AND PAYMENT OF DOCKET FEES.
2.1 Filing and docketing of the complaint are not separate but are
complementary. It is not simply the filing of the complaint or appropriate initiatory
pleading, but the payment of the prescribed docket fee that vests a trial court with
jurisdiction over the subject matter or nature of the action.25
2.2 The problem arises as filing is not synonymous with docketing as the
complaint may be filed but not necessarily docketed if the appropriate fees are
not paid.
2.3 The purpose of docket fees is to take care of court expenses in the
handling of cases in terms of costs of supplies, use of equipment, salaries and
benefits.26
2.5 If the docket fees are incorrect- the trial court should allow the plaintiff to
pay within a reasonable period of time before the expiration of the applicable
prescriptive or reglamentary period otherwise the defendant must move to
dismiss the complaint on the ground of lack of jurisdiction, if he does not, he may
be considered to be in estoppel.28
2.6 The court had jurisdiction over the amended complaint as it had acquired
jurisdiction over the case when the original complaint was filed and the
corresponding docket fee was paid thereon. While the payment of the prescribed
docket fee is a jurisdictional requirement, even its nonpayment at the time of
25
Proton Pilipinas Corporation v. Banque Nationale de Paris, 460 SCRA 260.
26
Serrano v. Delica, 465 SCRA 82
27
A.M. 09-94, June 14, 1994
28
NSC v. Court of Appeals, G.R. 123215, February 2, 1999
filing does not automatically cause the dismissal of the case, as long as the fee is
paid within the applicable prescriptive or reglementary period.29
2.7 When the docket fees for the main action are paid but those for related
damages alleged but not specified are not paid, the court is not prevented from
proceeding with the complaint, the trial court may expunge the claims or allow on
motion, a reasonable time for amendment of the complaint or accept payment of
the requisite legal fees.30
2.8 In a complaint for recovery of possession of real property which did not
allege the assessed value thereof, the trial court commits a serious error in
denying a motion to dismiss on the ground of lack of jurisdiction. All proceedings
in said court are null and void.31
2.9 If the claims are not specified and subsequently arise or there is an
insufficiency in the payment of docket fees, the required additional fee shall
constitute a lien on the judgment and the clerk of court must enforce and collect
the difference in docket fees from the judgment that may be rendered by the
court in the case, awarding a claim no specified in the pleading or if specified is
left to its determination.32
29
Pagcor v. Lopez, 474 SCRA 76, Polido v. Court of Appeals, 527 SCRA 248
30
Tacay v RTC of Tagum, Davao del Sur, 180 SCRA 433
31
Quinagoran vs. CA, GR No. 155179, August 24, 2007
32
Pascual v. Court of Appeals, 300 SCRAPascual v. Court of Appeals, 300 SCRA 214
4. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION – it is
Exclusive, meaning it is confined to a particular court or Concurrent, meaning two
or more courts have jurisdiction at the same time and place.
4.1 In this instance, the court which has first validly acquired jurisdiction takes
it to the exclusion of the others. This is also known as the Exclusionary Principle.
This is taken together with the Doctrine of Judicial Stability of Non-Interference
which holds that court of co-equal or coordinate jurisdiction shall have no
authority to pass upon or scrutinize the exercise by another court of its
jurisdiction.
4.2 Note though the Doctrine of Hierarchy of Courts which requires litigants to
initially seek proper relief from the lower courts in those cases where the
Supreme Court has concurrent jurisdiction with the Court of Appeals and the
Regional Trial Court to issue the extraordinary writs of certiorari, prohibition or
mandamus. The Supreme Court is a court of last resort and its jurisdiction to
issue extra-ordinary writs should be exercised only when absolutely necessary,
or where serious and important reasons therefor exist.33 Neither does
concurrence of jurisdiction grant any party seeking any of the extra-ordinary
writs the absolute freedom to file the petition with the court of his choice.34
Jurisdiction once acquired continues until the case is terminated. It is not affected
by subsequent legislation placing jurisdiction in another tribunal.35 The
exceptions are: when the law expressly provides for retroactivity,36 when the
change in jurisdiction is curative in nature, or when there is a perfected appeal.
This is also known as the Doctrine of Adherence to Jurisdiction.
33
Pearson v. IAC, 295 SCRA 27
34
Ouano vs. PGTT International Investment Corporation, 384 SCRA 587
35
Mercado v. Ubay, 187 SCRA 719
36
Latchme Motoomull v. Dela Paz, 187 SCRA 743
otherwise – if jurisdiction is vested upon an administrative body, no resort to
courts can be made until the administrative body shall have acted on the matter.
The Court of Appeals has both original and appellate jurisdiction. Its
original jurisdiction, which is exclusive, is over actions for annulment of RTC
judgments. Its original jurisdiction, which is concurrent with the Supreme Court
and the RTCs, is to issue writs of mandamus, prohibition, certiorari, habeas
corpus and quo warranto, and auxiliary writs or processes, whether or not in aid
of its appellate jurisdiction.
The RTCs are our second-level trial courts. As the Supreme Court and the
Court of Appeals, RTCs have both original and appellate jurisdiction in civil
cases.
Their original jurisdiction is concurrent with the Supreme Court and the
Court of Appeals in the issuance of writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus and injunctions but, as issued by RTCs, these writs
may be enforced only within their respective regions, and over actions affecting
ambassadors and other public ministers and consuls. The original jurisdiction of
RTCs, which is exclusive, is broad and covers the following cases: (1) all civil
actions in which the subject of the litigation is incapable of pecuniary estimation;
(2) all civil actions which involve the title to, or possession of, real property, or
any interest therein, where the assessed value of the property involved exceeds
Two hundred thousand pesos (P200,000.00) or for civil actions in Metro Manila,
where such value exceeds Four hundred thousand pesos (P400,000.00) except
actions for forcible entry into and unlawful detainer of lands or buildings, original
jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts; (3) all actions in admiralty and
maritime jurisdiction where the demand or claim exceeds Two hundred thousand
pesos (P200,000.00) or in Metro Manila, where such demand or claim exceeds
Four hundred thousand pesos (P400,000.00); (4) all matters of probate, both
testate and intestate, where the gross value of the estate exceeds Two hundred
thousand pesos (P200,000.00) or, in probate, both testate and intestate, where
the gross value of the estate exceeds Two hundred thousand pesos
(P200,000.00) or, in probate matters in Metro Manila, where such gross value
exceeds Four hundred thousand pesos (P400,000.00); (5) all actions involving
the contact of marriage and marital relations; (6) all cases not within the
exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction
of any court, tribunal, person or body exercising judicial or quasi-judicial
functions; (7) all civil actions and special proceedings falling within the exclusive
jurisdiction of a Juvenile and Domestic Relations Court and of the Court of
Agrarian Relations as then provided by law; and (8) all other cases in which the
demand, exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs or the value of the property in controversy exceeds
Two hundred thousand pesos (P200,000.00) or, in such other cases in Metro
Manila, where the demand, exclusive of the above-mentioned items exceeds For
hundred thousand pesos (P400,000.00).
The term “damages of whatever kind” has been specially defined by the
Supreme Court for purposes of determining the jurisdictional amount in respect
to the jurisdiction of the RTC. This term is understood to apply only to cases
when the damages are merely incidental to or a consequence of the main cause
of action, and that therefore where the claim for damages is the main cause of
action or one of the causes of action, the amount of the claim shall be considered
in determining the jurisdiction of the court.
The MTCs are the first-level trial courts in this country. They have
therefore no appellate jurisdiction and all their jurisdiction is exclusive and
encompasses the following cases: (1) all civil actions and probate proceedings,
testate and intestate, including the grant of provisional remedies in proper cases,
where the value of the personal property, estate, or amount of the demand does
not exceed two hundred thousand pesos (P200,000.00) or, in Metro Manila
where such personal property, estate, or amount of the demand does not exceed
Four hundred thousand pesos (P400,000.00), exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses, and costs, the amount of
which must be specifically alleged: Provided, That where there are several claims
or causes of actions between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality of the claims in
all the causes of action irrespective of whether the causes of action arose out of
the same or different transactions; (2) cases of forcible entry and unlawful
detainer: Provided, That when, in such cases, the defendant raises the question
of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession; and (3) all civil actions which involve
title to, or possession of, real property or any interest therein where the assessed
value of the property or interest therein does not exceed Two hundred thousand
pesos (P200,000.00) or, in civil actions in Metro Manila, where such assessed
value does not exceed Four hundred thousand pesos (P400,000.00) exclusive of
interest, damages of whatever kind, attorney’s fees, litigation expenses and
costs.
The MTCs may however be assigned by the Supreme Court to hear and
determine certain cadastral cases and petitions for habeas corpus.
2.1 For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules
of Civil Procedure shall be discussed herein.
2.2 A Civil Action is one by which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong. Examples: To
enforce payment of a loan or to eject an intruder on one’s property.
(a) Ordinary or Special, while both are governed by the rules for ordinary civil
actions, there are specific rules prescribed for a special civil action.
(c) In Rem, is an action that is directed against the thing itself rather than the
person, It is directed against the thing, property or status of a person and seeks
judgments with respect thereto against the whole world. 41 An example would be
an action for registration of land as the judgment thereon is binding upon the
whole world.
(d) Quasi in Rem, is an action that names a person as a defendant but its
object is to subject the person’s interest in property to a corresponding lien or
37
Section 1, Rule 1, 1997 Rules of Civil Procedure
38
Supra, Section 2, Rule 1
39
Supra, Section 3, Rule 1
40
Domagas v. Jensen, 448 SCRA 663
41
Ching v Court of Appeals, 181 SCRA 9
obligation.42 It deals with the status, ownership or liability of a particular property
but which are intended to operate on these questions only as between the
particular parties to the proceedings and do not cut off the rights and interests of
all possible claimants. Examples are actions for partition, attachment or
foreclosure of mortgages.
2.4 Note the distinctions between actions in personam, on one hand, and
actions in rem or quasi in rem on the other, is essential as far as jurisdiction. In
an action in personam, jurisdiction over the person of the defendant is necessary
for the court to validly try and decide the case. In a proceeding in rem or quasi in
rem, jurisdiction over the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires jurisdiction over the res.
Jurisdiction over the res is acquired either (1) by the seizure of the property
under legal process, whereby it is brought into actual custody of the law; or (2) as
a result of the institution of legal proceedings, in which the power of the court is
recognized and made effective.43
3.1 Real Actions are those which affect title to, or possession of real property
or any interest therein.44 All others are personal actions.45
3.2 In a real action, it is founded upon the privity of real estate. That means
that realty or any interest therein is the subject matter of the action. What is
essential is that as far as the real property is concerned, the issues are title to,
ownership, possession, partition, foreclosure of mortgage or condemnation.
Hence, an action for damages suffered by real property is a personal action as it
does not involve any of the listed issues.
3.3 An action to annul a contract of loan and its accessory real estate
mortgage is a personal action. In a personal action, the plaintiff seeks recovery of
personal property, the enforcement of a contract or recovery of damages. A real
action is an action affecting title to real property or for recovery of possession, or
for partition or condemnation of, or foreclosure of mortgage on real property. The
rule on real actions only mentions an action for foreclosure of real estate
mortgage; it does not include an action for cancellation or annulment of a real
estate mortgage.46
3.4 The distinction between a real action and a personal action is important for
the purpose of determining the venue of the action.
42
Ramos v. Ramos, 399 SCRA 43
43
Biaco v. Philippine Countryside Rural Bank, GR No. 161417, February 8, 2007
44
Supra, Section 1, Rule 4
45
Supra, Section 2, Rule 4
46
Chua vs. Total Office Products and Services, Inc., 471 SCRA 500
3.5 An action in personam is not necessarily a personal action. Nor is a real
action necessarily an action in rem. An in personam or an in rem action is a
classification of actions according to the object of the action. A personal and real
action is a classification according to foundation. It is in rem when directed
against the whole world. For instance, an action to recover, title or possession of
real property is a real action, but it is an action in personam. It is not brought
against the whole world but against the person upon whom the claim is made. 47
4.1 Criminal Action is one by which the state prosecutes a person for an act or
omission punishable by law.
6. The rules have retroactive application in the sense that they shall be held
to apply to actions pending or undetermined at the time of their effectuality. 49
6.1 The exceptions to retroactive application are: (a) the statute itself or by
implication provides that pending actions are excepted (b) it will impair vested
rights (c) to the mind of the court, it will work injustice (d) it would involve
intricate problems of due process or impair the court’s independence
47
Republic v Court of Appeals, 315 SCRA 600
48
Supra,,Section 4, Rule 1
49
Nypes v. Court of Appeals, 478 SCRA 115
50
Magaspi v. Ramolete, 115 SCRA 193
1.1 An exception is when the plaintiff is authorized to litigate as a pauper
litigant as he is exempt from the payment of filing fees.
1.3 It does not mean, however, that procedural rules are to be ignored or
disdained at will to suit the convenience of a party.56
51
Supra, Section 5, Rule 1
52
Cabrera v Tiano,8 SCRA 542
53
Supra,Section 6, Rule 1
54
De La Cruz v. Court of Appeals, GR No. 139442, December 6, 2006
55
Canton v City of Cebu, GR No. 152898, February 12, 2007
56
Vda De Toledo v Toleda, 417 SCRA 260
57
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
3. A party litigant should be given the fullest opportunity to establish the
merits of his complaint or his defense. He ought not to lose life, liberty or honor or
property on technicalities.
4. Note that in doing so, substantial justice and equity considerations must
not be sacrificed.
4.2 Neither can liberality of the rules be invoked if it will result in the wanton
disregard of the rules or cause needless delay in the administration of justice.60
6. The rules and procedure laid down for the trial court and the adjudication
of cases are matters of public policy.
6.1 They are matters of public order or interest which can in no wise be
changed or regulated by agreements between or stipulations by parties to an
action for their singular convenience.62
6.2 They are required to be followed except only for the most persuasive of
reasons as when transcendental matters of life, liberty or state security is
involved. Litigation is not a game of technicalities. It is equally true, however, that
every case must be presented in accordance with the prescribed procedure to
ensure an orderly and speedy administration of justice.63
7. The Supreme Court has the power to suspend or set aside its rules in the
higher interest of justice.64 Specifically, the reasons that will warrant the
suspension are: (a) the existence of special or compelling reasons (b) the merits
of the case (c) a cause not entirely attributable to the fault or negligence of the
58
Alberto v Court of Appeals, 334 SCRA 756
59
Fulgencio v NLRC, 411 SCRA 69
60
El Reyno Homes v Ong, 397 SCRA 563
61
Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
62
Republic v Hernandez, 253 SCRA 509
63
Mindanao Savings Loan Association v. De Flores, 469 SCRA 416
64
Fortica v Corona, GR No. 131457, April 24, 1998
party favored by the suspension (d) a lack of showing that the review is frivolous
or dilatory, and (e) the other party will not be prejudiced thereby. 65
1. The requisites for a cause of action are: (a) a right in favor of the plaintiff
by whatever means and under whatever law it arises or is created (b) an
obligation on the part of the defendant to respect and not to violate such right (c)
an act or omission on the part of the defendant constituting a violation of the
plaintiff’s right.68
2.1 The distinction is best used to explain the principle that the existence of a
cause of action may only be ascertained from the allegations of the complaint.69
65
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
66
Supra, Section 1, Rule 2
67
Supra, Section 2, Rule 2, PNOC v. Court of Appeals, GR No. 165433, February 6, 2007
68
Navao v CA, 251 SCRA 545
69
Equitable Bank v CA, 425 SCRA 544
HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION
Same Objective Test – if a party has only one objective in filing two cases, there exists
identity of causes of action and reliefs based on the same objective standard.70
1. A party may not institute more than one suit for a single cause of action.71
3. If a party institutes more than one suit, the filing of one or a judgment upon
the merits in anyone is available as a ground for the dismissal of the others.72
This is also known as Splitting a Cause of Action.
3.1 The remedy of the defendant is to file a motion to dismiss. If the action is
pending when the second action is filed, the dismissal is based on litis pendentia
or if a final judgment has been rendered in the first action when the second is
filed, the dismissal is based on res judicata.
3.2 Note though that the rule does not confine itself to a dismissal of the
second action. As to which action is to be dismissed would depend on judicial
discretion and attendant circumstances.
4. The rule on splitting a cause of action applies not only to complaints but
also to counter-claims and cross-claims.73
70
Clark Development Corporation v Mondragon Leisure Resorts, 517 SCRA 203
71
Supra, Section 3, Rule 2
72
Supra, Section 4, Rule 2
73
Mariscal v. Court of Appeals, 311 SCRA 51
recovery for the same act or omission which, obviously stems from the
fundamental rule against unjust enrichment.74
(a) In a single or indivisible contract, only one cause of action arises from a
single or several breaches. Example: In a contract of sale of personal property by
installments, the remedies of the unpaid seller is alternative, they are: (1) elect
fulfillment (2) cancel the sale, should the vendee’s failure to pay cover two or
more installments, and (3) foreclose the mortgage on the thing sold if one has
been constituted should the vendee fail to pay two or more installments. 75
(b) If the contract provides for several obligations, each obligation not
performed gives rise to a single cause of action. But if upon filing of the complaint
several obligations have already matured, all of them shall be integrated into a
single cause of action. Example: Contract for delivery of goods in part or over a
period.
(c) If the contract is divisible in its performance, and the future performance is
not yet due, but the obligor has already manifested his refusal to comply, the
contract is entire and the breach is total. Thus, there can only be one action. 76
This is known as the Doctrine of Anticipatory Breach.
1. He can join his causes of action77 as he may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against the
opposing party. It is the assertion of as many causes of action as a party may
have against another in one pleading alone.
2. It has also been defined as the process of uniting two or more demands or
rights of action in one action.78
3.1 Party joining the causes of action shall comply with the rule on joinder of
parties, which provides that : All persons in whom or against whom any right to
relief is respect to or arising out of the same transaction is alleged to exist,
whether jointly, severally or in the alternative, may except as otherwise provided
74
Joseph v Bautista, 170 SCRA 540
75
Articles 1484,1486, NCC
76
Blossom & Co v Manila Gas Corporation, 55 Phil 226
77
Supra, Section 5, Rule 2
78
1 C.J.S., Actions 61
in these rules, join as plaintiffs or be joined as defendants in one complaint,
where any question of law or fact common to all such plaintiffs or to all such
defendants may arise in the action.79 Note that the common question of law or
fact is relevant only when there are multiple plaintiffs or defendants.
3.2 Joinder does not allow the inclusion of special civil actions or actions
governed by special rules . Example: An action for a sum of money cannot be
joined with an action for iIlegal detainer
3.3 Where causes of action are between same parties but pertain to different
venues or jurisdictions, joinder may be allowed in the RTC provided one of the
causes of action falls within its jurisdiction and venue lies therein.
3.4 When the claims in all causes of action are principally for recovery of
money, the aggregate amount shall be the test of jurisdiction.
EFFECT OF MISJOINDER
79
Supra, Section 6, Rule 3
80
Supra, Section 6, Rule 2
81
Supra,,Section 1, Rule 3
82
Supra, Section 6, Rule 6
subject matter either of the original action or of a counter-claim therein.83A third
party claim is a claim that a defending party may, with leave of court, file against
a person not party to an action for contribution, indemnity, subrogation or any
other relief, in respect to his opponent’s claim.84
2.1 The state or any of its political subdivisions, while considered as juridical
entities, they can sue but as a general rule, they cannot be sued without its
consent. It is deemed to have given consent when: (a) it enters into a private
contract (b) it enters into a business operation unless it is an incident of its
primary government function (c) it sues a private party, unless the suit is to resist
a claim (d) when there is a failure to abide with what the law or contract provides.
A suit is considered as against the state when: (a) it is against the Republic of the
Philippines (b) it is against a government agency or office without juridical
personality (c) it is against the officers or agents of the government and involves
a financial liability.
2.5 A dissolved corporation within a 3 year period after dissolution to settle its
affairs.86
83
Supra, Section 8, Rule 6
84
Supra, Section 11, Rule 6
85
Article 1772 in relation to Article 1768, NCC
86
Section 122, BP 68
87
Nazareno v. Court of Appeals, 343 SCRA 637
88
Versoza v. Fernandez, 49 Phil 627
be sued under the name by which they are generally or commonly known but in
their answer to the complaint, their names and addresses must be revealed.89
2. Where it is the defendant who is not any of the above, the complaint may
be dismissed on the ground that the “pleading asserting the claim states no
cause of action” or ‘failure to state a cause of action’ , because there cannot be a
cause of action against one who cannot be a party to a civil action.
PARTIES IN INTEREST
1.1 A real party in interest-plaintiff is one who has a legal right, while a real
party in interest-defendant is one who has a correlative obligation, whose act or
omission violates the legal rights of the former.96 Hence, the determination of
who is a real party in interest goes back to the elements of a cause of action.
Evidently, the owner of the right violated stands to be the real party in interest as
89
Supra, Section 15, Rule 3
90
Section 21, BP 68
91
Article 1825, NCC
92
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763
93
Juasing Hardware v Mendoza, 115 SCRA 783
94
Balagtas v. Court of Appeals, 317 SCRA 69
95
Supra, Section 2, Rule 3
96
Gan Hock v. Court of Appeals, 197 SCRA 223
plaintiff and the person responsible for the violation is the real party in interest
defendant.97
1.2 To be a real party in interest, the interest must be real, which is a present
substantial interest as distinguished from a mere expectancy or a future,
contingent, subordinate or consequential interest. It is an interest that is material
and direct, as distinguished from a mere incidental interest in the question.98
2. When a suit is not brought in the name of the real party in interest, it may
be dismissed on the ground that the complaint states no cause of action. 100 Note
that the dismissal is not due to lack of or no legal capacity to sue nor lack of legal
personality, as the latter is not ground for dismissal for under the 1997 Rules of
Civil Procedure.
2.1 It states no cause of action because it is not being prosecuted in the name
of the real party in interest.
2.2 Lack of Legal Capacity to Sue means that the plaintiff is not in exercise of
his civil rights, does not have the necessary qualification to appear or does not
have the character or representation he claims. Example: Trustee or Minor, as
distinguished from Lack of Legal Personality means that the plaintiff is not the
real party in interest. Dismissal is based on the fact that the complaint states no
cause of action
3. Legal standing means a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the act being
challenged. The term interest is material interest, an interest in issue, and to be
affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. Moreover, the interest must be personal
and not one based on a desire to vindicate the constitutional right of some third
or unrelated party.
97
Lee v. Romillo, 161 SCRA 589
98
Samaniego v. Aguila, 334 SCRA 438
99
Philippine Trust Company v. Court of Appeals, 320 SCRA 719
100
Tankiko v Cesar, 302 SCRA 559
3.1 However, the concept of ‘standing’ because of its constitutional
underpinnings is very different from questions relating to whether or not a
particular party is a real party-in-interest. Although both are directed towards
ensuring that only certain parties can maintain an action, the concept of standing
requires an analysis of broader policy concerns. The question as to who the real
party-in-interest is involves only a question on whether a person would be
benefited or injured by the judgment or whether or not he is entitled to the avails
of the suit.101
“In not a few cases, the Court has liberalized the locus standi requirement when
a petition raises an issue of transcendental significance or paramount importance
to the people. Recently, after holding that the IBP had no locus standi to bring
the suit, the Court in IBP v. Zamora nevertheless entertained the Petition therein.
It noted that “the IBP has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents.”104
101
Kilosbayan, Inc. vs. Morato, 246 SCRA 540
102
Baltazar vs. Ombudsman, G.R. No. 136433, December 6, 2006
103
Velarde v Social Justice Society, 392 Phil 618, IBP v Zamora, 338 SCRA 81
104
Velarde v. Social Justice Society, supra at note 22, citations omitted.
to them, the Supreme Court may brush aside technicalities of procedure and take
cognizance of the suit.105
1.1 Without the presence of indispensable parties to the suit, the judgment of
the court cannot attain real finality.109 Strangers to a case are not bound by the
judgment rendered by the court.110
1.2 The essential tests of an indispensable party: (a) May relief be afforded
the plaintiff without the presence of the other party? (b) May the case be decided
on the merits without impairing the substantial rights of the other party? 111
105
Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August 1989,
176 SCRA 240, 251, citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, G.R.
No. 81311, 30 June 1988, 163 SCRA 371, 378.
106
Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at note 30, citing Kilosbayan,
Incorporated v. Guingona, Jr., 232 SCRA 110 (1994)
107
Supra, Section 7, Rule 3
108
Valenzuela v Court of Appeals, 363 SCRA 779
109
Domingo v Scheer, 421 SCRA 468
110
Lucman v Malawi, GR No. 159794, December 19, 2006
111
PNB v. Militar, 467 SCRA 377
112
Supra, Section 8, Rule 3
2.1 Example: If the plaintiff only sues a one of his joint debtors, the joint debtor
who is not sued is merely a necessary party. As a consequence, the plaintiff only
recovers the share of the debt due from the joint debtor defendant.
1.2 An agent acting in his own name and for the benefit of an unknown
principal may sue or be sued without joining the principal except when the
contract involves things belonging to the principal. This refers to an agency with
an undisclosed principal.115
2. Husband and Wife- as a general rule shall sue or be sued jointly, except
as provided by law.116 Non joinder of party’s husband is not fatal. It is a mere
formal defect.117
2.1 They are required to sue and be sued jointly as they are joint
administrators of the Absolute Community or the Conjugal Partnership.118
2.2 The exceptions provided by law are when the property relations of
husband and wife are governed by the rules on separation of property119 or one
is disposing of exclusive property.120
113
Samaniego v. Aguila, 334 SCRA 438
114
Supra, Section 3, Rule 3
115
Article 1883, NCC
116
Supra, Section 4, Rule 3
117
Miranda v Besa, 435 SCRA 532
118
Articles 96 and 124, Family Code
119
Article 145, Family Code
120
Article 111, Family Code
2.3 Note that the legal provision against the disposition of conjugal property by
one spouse without the consent of the other has been established for the benefit,
not of third persons, but only for the spouse for whom the law desires to save the
conjugal partnership from damages that might be caused. No other party can
avail of the remedy other than the aggrieved spouse.121
3.2 Note that the appointment of a guardian ad litem may occur in the
following: for minor heirs when substituting for a deceased party123,
incompetency or incapacity of a party124, service of summons on a minor or
incompetent125, and when the best interest of the child require it.126
JOINDER OF PARTIES
Joinder of Parties refers to the act of uniting several parties in a single suit either
as plaintiffs or defendants.
1. The rule on joinder of parties states that: All persons in whom or against
whom any right to relief in respect to or arising out of the same transaction is
alleged to exist, whether jointly, severally or in the alternative, may except as
otherwise provided in these rules, join as plaintiffs or be joined as defendants in
one complaint, where any question of law or fact common to all such plaintiffs or
to all such defendants may arise in the action.127
121
Villaranda v Villaranda, 423 SCRA 571
122
Supra, Section 5, Rule 3
123
Supra, Section 16, Rule 3
124
Supra, Section 18, Rule 3
125
Supra, Section 10, Rule 14
126
Article 222, Family Code
127
Supra, Section 6, Rule 3
3. It becomes compulsory when the parties to be joined are indispensable
parties.128
5.2 The parties affected are so numerous that it is impracticable to join all as
parties
5.3 The parties bringing or defending the class suit are found by the court to
be sufficiently numerous and representative as to fully protect the interest of all.
5.4 To comply with the 2nd and 3rd requisite, the Complaint most allege: (1)
existence of a subject matter which is of common or general interest to many
persons, and (2) existence of a class and the number of persons belonging to
that class
128
Supra, Section 7, Rule 3
129
Supra, Section 12, Rule 3
130
Oposa v Factoran, 224 SCRA 792
131
Tuason v. Register of Deeds, 157 SCRA 613
132
Cadalin v POEA Administrator, 238 SCRA 721
133
Newsweek Inc. v. IAC, 142 SCRA 171
7. It can be brought by the plaintiffs as a class or may be filed against the
defendants as a class
7.1 Any party in interest shall have the right to intervene to protect his
individual interest.
7.2 The general rule, is that the party bringing the suit in his own name and
that of others similarly situated has the right to control the suit, but, it shall not be
dismissed or compromised without the approval of the court.134
1. If there is a failure to join an indispensable party, the court must order the
plaintiff to amend his complaint for the purpose of impleading the indispensable
party.
1.1 If the plaintiff fails, refuses or the party cannot be sued because he is a
non-resident defendant in a personal action, the complaint must be dismissed.135
2.1 If the court finds the reason for the omission is not meritorious, it may
order the inclusion of the omitted necessary party if jurisdiction over his person is
obtained.
2.2 If pleader fails to comply with order for inclusion without justifiable cause, it
shall be deemed a waiver of the claim against the party,but the non-inclusion
does not prevent the court from proceeding with the action, and the judgment
therein shall be without prejudice to rights of such necessary party. 136
134
Supra, Section 2, Rule 17
135
NDC v Court of Appeals, 211 SCRA 422
136
Supra, Section 9, Rule 3
137
Supra, Section 11, Rule 3
3.2 While misjoinder or non-joinder is not a ground for dismissal, the failure to
obey the order of the court to drop or add a party is a ground for dismissal.138
1. When a party dies and his claim is not extinguished, it shall be the duty of
counsel of the deceased party to inform the court within 30 days after such
death of the : (a) fact of death (b) name and address of the legal representative
of the deceased party.142. If counsel fails to comply, he may be subject to
disciplinary action.
1.1 Once notice is given, the court shall order the legal representative to
appear and be substituted within 30 days from notice.
138
Supra, Section 3, Rule 17
139
Supra, Section 10, Rule 3
140
Supra, Section 13, Rule 3
141
Supra, Section 14, Rule 3
142
Supra, Section 16, Rule 3
1.2 Examples of actions that survive are those arising from delict,143 tortuous
conduct,144recovery of real or personal property145 recovery of money arising
from a contract, express or implied
1.3 Examples of actions that do not survive are personal actions of support,
annulment and legal separation. The court in this instance will just dismiss. No
substitution is required. The remedy is to file a claim before the probate court
under Rule 86.
2.2 Note though that in an ejectment case, the non substitution of the
deceased by his legal representatives because of the failure of counsel to inform
the court does not deprive it of jurisdiction. The judgment may be enforced not
only against the defendants but also against the members of their family, their
relatives, or privies who derived their right of possession from the deceased
defendant.148
3. Note that heirs may be allowed to be substituted for the deceased without
requiring the appointment of an executor or administrator and the court can
appoint a guardian ad litem for minor heirs. When the defendant does not have
any heirs, the court shall require the opposing party to procure the appointment
of an executor or administrator. This can also occur when no legal representative
is named or if one is named, he fails to appear within the specified period. The
expenses if any, can be recovered as costs.
3.1 Heirs may designate one or some of them as their representative before
the trial court.149
143
Aguas v Llamas, 5 SCRA 959
144
Melgar v. Buenviaje, 179 SCRA 196
145
Board of Liquidators v Kalaw, 20 SCRA 987
146
Torres v Court of Appeals, 278 SCRA 79
147
Brioso v Mariano, 396 SCRA 549
148
Florendo v. Coloma, 129 SCRA 304
149
San Juan v. Cruz, G.R. No. 167321, July 31, 2006
5. The effect of death is to terminate the attorney-client relationship. A
deceased client has no personality and cannot be represented by an
attorney.150Neither does he become counsel for the heirs of the deceased unless
his services are engaged by the heirs.151
2. Before substitution and there is no express assent, the public officer shall
be given reasonable notice of the application and be accorded an opportunity to
be heard.
3. The requisites for a valid substitution of a public officer who has sued or
been sued in his official capacity are: (a) satisfactory proof by any party that there
is a substantial need for continuing or maintaining the action (b) the successor
adopts or continues or threatens to adopt or continue the acts of his predecessor
(c) the substitution is effected within 30 days after the successor assumes office
or within the time granted by the court, and (d) notice of the application to the
other party.153
4. The failure to make the substitution is ground for the dismissal of the
action.
1. If the action is for the recovery of money that arises from a contract,
express or implied, and the defendant dies before entry of a final judgment the
rule is – it will not be dismissed but shall be allowed to continue until entry of
judgment, a favorable judgment obtained shall be enforced in the manner
provided by the rules for prosecuting claims against the estate of a deceased
person.154
150
Lavina v. Court of Appeals, 171 SCRA 691
151
Lawas v Court of Appeals, 146 SCRA 173
152
Supra, Section 17, Rule 3
153
Rodriguez vs. Jardin, G.R. No. 141834, July 30, 2007
154
Supra, Section 20, Rule 3
2. Hence, in case of the death of the obligor the rules are: (a) If he dies
before the action is filed, a money claim must be filed in the testate or intestate
proceedings (b) if he dies during the pendency of an action, the action continues
until entry of judgment, and the judgment claim is then filed with the testate or
intestate proceedings. It must be noted that a money claim judgment need not be
proven because it is conclusive. Note further, that if property has been levied
upon before death, it can disposed of in the manner provided by the rules on
execution of judgments because it has already been segregated from the estate.
If there is a deficiency, a money claim can be filed subsequently.
2. If the claim does not arise from a contract, like claims for recovery,
enforcement of a lien or torts, the rules are: (a) if he dies before the action is
filed, it may be filed against the executor or administrator (b) if already filed , it
continues to final judgment and may be executed on as against the executor or
administrator.155
3. In a case for ejectment where the defendant died before the case could be
decided and without being able to testify on his counterclaim for damages. The
trial court dismissed the ejectment suit and ordered the plaintiff to pay the wife of
the defendant moral damages and attorney’s fees. The plaintiff contends on
appeal that the counterclaim should have been dismissed pursuant to Rule 3,
Section 21 (old rule). Held: The argument is misplaced, defendant was the
plaintiff in his counterclaim, the rule is not applicable as it pertains to a defendant
who dies before final judgment. In this case, it is the plaintiff who died and all that
is required is a timely motion for substitution. No recovery though can be allowed
as no evidence was adduced.156
4. If a claim involves a conjugal debt that was not brought and one of the
spouses die before filing, the claim must be brought in the testate or intestate
proceedings of the deceased spouse.157
5. If it is the plaintiff who dies, the rules are: (a) if action is purely personal to
him, the action is abated (b) if action is not purely personal, it continues but
counsel must give notice of death.
1. The court, upon motion with notice, may allow the action to be continued
by or against the incompetent or incapacitated person assisted by his guardian or
guardian ad litem.158
155
Supra, Section 7, Rule 39
156
UST v Court of Appeals, GR No. 124250, October 18, 2004
157
Alipio v Court of Appeals, GR No. 134100, September 29, 2000
158
Supra, Section 3 and 18, Rule 3
1. The action may be continued by or against the original party, unless the
court upon motion directs the person to whom interest is transferred to be
substituted in the action or joined with the original party.159
2. The rule refers to a transfer pendente lite. The transferee pendente lite
shall stand exactly in the shoes of the transferor. Consequently, any judgment
will be binding upon him.
4. In a case on appeal where the transferee pendente lite did not appeal, he
nevertheless was benefited by the appeal of the transferor pendent lite.161
INDIGENT/PAUPER LITIGANT
2.1 Attached to the motion is an affidavit attesting to the fact that he does not
earn a gross income of PHP 4,000.00 in Metro-Manila, or PHP 3,000.00
elsewhere and has no real property with a fair market value of PHP 50,000.00.
2.3 If there is any falsity in the affidavit or that of the disinterested person, it
shall constitute sufficient ground to dismiss the action or strike out the pleading,
without prejudice to whatever criminal liability is incurred.163
159
Supra, Section 19, Rule 3
160
State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
161
Jocson v Court of Appeals, GR 88297, March 22, 1990
162
Supra, Section 21
163
Section 19, Rule 141, Rules of Court
3. The effect of being allowed to litigate as an indigent or pauper litigant are:
(a) exemption from the payment of docket fees and other lawful fees (b)
exemption from TSN fees which the Court may order to be furnished but, the
amounts due shall be a lien on a favorable judgment unless the Court orders
otherwise.
1. In any action involving the validity of any treaty, law, ordinance, executive
order, presidential decree, rule or regulation, the court, in its discretion, may
require the appearance of the Solicitor General, who may be heard in person or
through a representative duly designated by him.164
1. Venue is the place where the action is to be commenced and tried. It has
also been defined as the proper location for the trial of a case.
164
Supra, Section 22, Rule 3
165
NOcum v Tan, 470 SCRA 639
every MTC has jurisdiction over illegal detainer cases. Territorial jurisdiction
applies only in criminal cases where venue is also jurisdictional.
RULES ON VENUE
1.1 Is the complaint for cancellation of a real estate mortgage with damages, a
real or personal action? It is a real action, the controlling factor in determining
venue of such a case is the primary objective for which it is filed. An action for
cancellation of a real estate mortgage is necessarily an action affecting title to
real properties since the primary objective is to recover the properties that the
bank had foreclosed on.167
2.2 In personal actions, it is the residence of the proprietor, not the business
address of the sole proprietorship that is considered to determine venue as a
sole proprietorship has no legal personality.169
166
Supra, Section 1, Rule 4
167
Go v UCPB, GR No. 156187, November 11, 2004
168
Supra, Section 2, Rule 4
169
Mangila v Court of Appeals, 387 SCRA 162
correct? No, R is not correct. This action for specific performance is a personal
action. The venue therefore, was properly laid in Quezon City where the plaintiff
resides. It is not a real action because plaintiff L is not seeking the recovery of
the lot as he is already in possession thereof. He is merely asking the delivery of
the title to him, which is a personal action.170
3. If the defendant is a non-resident or one who does not reside and is not
found in the Philippines and the action affects the personal status of the plaintiff,
or any property of said defendant located in the Philippines, the action may be
commenced and tried in the court of the place where the plaintiff resides, or
where the property or any portion thereof is situated or found.171
3.1 Actions affecting the personal status of the plaintiff refers to personal
actions of annulment of marriage, nullity of marriage, legal separation,
declaration of presumptive death
3.3 A non-resident alien who cannot be found can sue and be sued as by
filing his complaint, he submits to the jurisdiction of the Court, even if he has
never been able to enter the Philippines.172
1.1 Quo Warranto proceedings may be instituted in the Supreme Court, Court
of Appeals or the Regional Trial Court exercising territorial jurisdiction over the
area where the respondent/s reside. If the Solicitor General commences the
action, he may do so in the Supreme Court, Court of Appeals or the Regional
Trial Court of Manila.173
1.2 The criminal or civil action for damages due to libel can only be instituted
either in Regional Trial Court of the place where he holds office or in the place
where the alleged libelous article was printed and first published; and if the
offended parties are private individuals, the venue shall be in the Regional Trial
170
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
171
Supra, Section 3, Rule 4
172
Dilweg v Philipps, 12 SCRA 243
173
Supra, Section 7, Rule 66
Court of the place where the libelous article was printed and first published or
where any of the offended parties actually resides at the time of the commission
of the offense.174
2. Where the parties have validly agreed in writing before the filing of the
action as to exclusive venue.176
2.1 Any agreement as to venue must be in writing and for exclusivity, the
intent must be clear, otherwise, it will be interpreted to allow for an additional
venue.
2.2 The freedom of the parties to stipulate on the venue is however subject to
the usual rules on contract interpretation. Where the provision appears to be one-
sided as to amount to a contract of adhesion, the consent of the parties thereto
may well be vitiated and the venue stipulation will not be given effect.177
2.3 The rule on venue is party oriented. It looks to the convenience of the
parties. Thus the rule on venue as to real actions presumes that the place where
the subject real property is located is convenient to the parties. Hence, the rule
as to venue can yield to an agreement as to exclusive venue. Section 4, Rule 4
applies to both real and personal actions as long as the requisites are met.
174
Article 360, Revised Penal Code
175
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
176
Supra, Section 4, Rule 4
177
Sweet Lines v Teves, 83 SCRA 361
178
Philippine Bank of Communications v Lim, 455 SCRA 714
179
Supra, Section 1 (c) ,Rule 16
180
Supra, Section 6, Rule 16
RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS
PLEADING DEFINED
1.1 Pleadings are necessary to secure the jurisdiction of the court so that the
subject matter can be presented for its consideration in the manner sanctioned
by the rules of procedure.
1.2 They are intended to secure a method by which the issues may be
properly laid before the court.183
1.3 They are designed to present, define and narrow the issues, to limit proof
to be submitted in the trial, to advise the court and the adverse property of the
issues and what are relied upon as causes of action or defenses.
2. The pleadings that are allowed are: (a) Claims of a party are asserted in
the complaint, counterclaim, cross-claim, 3rd party complaint (4th…..), or
complaint in intervention (b) Defenses of a party are alleged in the answer to the
pleading asserting a claim against him (c) Reply to the answer184
2.1 Under the Rules on Summary Procedure, the only pleadings allowed are
the complaint, compulsory counterclaim, cross claim pleaded in the answer, and
the answers thereto.
181
Supra, Section 8, Rule 40
182
Supra, Section 1, Rule 6
183
Santiago v. De Los Santos, 61 SCRA 146
184
Supra, Section 2, Rule 6
CONSTRUCTION OF PLEADINGS
2.1 In case there are ambiguities in pleadings, the same must be construed
most strongly against the pleader and that no presumptions in his favor are to be
indulged in. This rule proceeds from the theory that it is the pleader who selects
the language used and if his pleading is open to different constructions, such
ambiguities are at his peril.
2.1 Its essential purpose is to secure joinder of the issues and not to lay down
evidentiary matter.189
2.2 The following are the kinds of defenses190 that may be interposed in an
answer are:
185
Concrete Aggregates Corporation v. Court of Appeals, 266 SCRA 88
186
Santiago v. De Los Santos, 61 SCRA 146
187
Supra, Section 3, Rule 6
188
Supra, Section 4, Rule 6
189
Naga Development Corporation v Court of Appeals, 41 SCRA 105
190
Supra, Section 5, Rule 6
191
Supra, Section 10, Rule 8
knowledge or information sufficient to form a belief as to the truth of the material
averment in the pleading of the adverse party.
2.4 Note that the rule that a defending party who sets up an affirmative
defense hypothetically admits the allegations does not apply if the defense set up
is any of the grounds for extinguishment of the obligation. The effect is that the
defending party is deemed to have admitted the validity of the obligation, and if
the motion to dismiss is denied, what is left to be proven is the fact of payment or
non-payment.
192
Aquintey v. Tibong, GR No. 166704, December 20, 2006
193
Supra, Section 6, Rule 16
194
Supra, Section 6, Rule 6
counterclaim is not an initiatory pleading so as to required a certification as to
non-forum shopping, while a permissive counterclaim is an initiatory pleading.
3.3 The requisites of a permissive counterclaim are: (a) It does not require for
adjudication the presence of 3rd parties over whom the court cannot acquire
jurisdiction (b) It must be cognizable by the regular courts of justice (c) It must be
within the jurisdiction of the court both as to amount and the nature thereof,
except that in an original action before the RTC, counterclaim is considered
compulsory regardless of amount
195
Supra, Section 7, Rule 6, Section 8, Rule 11
196
Reyes De Leon v. Del Rosario, 435 SCRA 232
197
Quintanilla v. Court of Appeals, 279 SCRA 397
198
Camara v. Aguilar, 94 Phil 527
199
Maclan v. Garcia, 97 Phil 119
200
Doliente v. Blanco, 87 Phil 67
201
Baclayan v. Court of Appeals, 182 SCRA 761
3.6 A compulsory counterclaim that is not yet in existence at the time of the
filing of an answer may be presented or set-up by a supplemental pleading
before judgment.202
5.1 If a reply is not filed, all new matters are deemed controverted. If plaintiff
wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended/supplemental complaint.
6. A 3rd Party Complaint is a claim that a defending party may, with leave of
court, file against a person, not a party, called 3rd party defendant for
contribution, indemnity, subrogation or any other relief in respect of his
opponent’s claim.207
202
Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
203
Supra, Section 12, Rule 6
204
Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
205
Supra, Section 8, Rule 6
206
Supra, Section 9, Rule 6
207
Supra, Section 11, Rule 6
obligation of M. S may file a complaint against M for whatever amount he may be
adjudged to pay as surety (c)Subrogation- X, as lessor, sues Y, as lessee for
repairs. Y may file a complaint against his sub-lessee who filed to comply with
the obligation to repair (d) Other Relief- X bought land from Y. Later X is sued by
A for recovery of the land. X may file a complaint against Y for his warranty
against eviction.
1. If the presence of others besides the parties is required for the granting of
full relief in the determination of a counter-claim or cross- claim the court shall
order them to be brought in as defendants, if jurisdiction over them can be
obtained209.
PARTS OF A PLEADING
1. The Caption sets forth the (a) Name of the court (b) Title of the action, this
includes an indication of the name of the parties, who are required to be named
in the original complaint/petition. In subsequent pleadings, the name of the first
party on each side is sufficient with an appropriate indication when there are
other parties. (c) Docket Number , if one has already been assigned.210
208
Supra, Section 13, Rule 6
209
Supra, Section 12, Rule 6
210
Supra, Section 1, Rule 7
1.1 In an appeal, the rules211 requires all names to be indicated in the Notice
of Appeal and Record on Appeal
1.2 In case of a variance between the caption and allegations, the latter will
prevail. The court may grant a relief warranted by the allegations and proof even
if no such relief is prayed for.212
2. The Body sets forth its designation, the allegations or a party’s claims /
defenses, the relief prayed for, and the date of the pleading.
2.1 The allegations in the body shall be divided unto paragraphs so numbered
to be readily identified. Each shall contain Statement of a single set of
circumstances so far as it can be done with convenience. A paragraph may be
referred to by its number in all succeeding pleadings.
2.2 Headings must be used when 2 or more causes of action are joined, the
statement of the first shall be prefaced by : First Cause of Action etc. When: 2 or
more paragraphs are addressed to one or several causes of action in the
complaint, they shall be prefaced by: Answer to the First Cause of Action and so
on. If it addresses several causes of action, the paragraphs shall be prefaced
accordingly.
2.3 Relief should be specified but it may add a general prayer for such further
or other relief as may be deemed just and equitable. The relief does not
constitute a part of the statement of the cause of action. It does not serve to limit
or narrow the issues presented.213It is the material allegations, not the legal
conclusions that determines the relief that a party is entitled to.214A court may
grant a relief not prayed for as long as warranted by the allegations and the
presented proof.
3.1 Note the word “or” because a party may litigate / defend Pro Se or for
himself without aid or counsel. This applies even if a party is already represented
by counsel.
211
Supra, Sections 5 and 6, Rule 41
212
Lorbes v. Court of Appeals, 351 SCRA 716
213
UBS v. Court of Appeals, 332 SCRA 534
214
Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241
3.2 Only the signature of either party operates to validly convert a pleading
from one that is unsigned to one that is signed.215
3.4 If the pleading is unsigned it produces no legal effect. However, the court
in its discretion can allow the deficiency to be remedied if it shall appear that it
was due to inadvertence and not intended for delay.216
3.6 Disciplinary action may be imposed on counsel in relation to the rule when
(a) He deliberately files an unsigned pleading (b) Signs a pleading in
violation of the Rule (c) Alleges scandalous or indecent matter (d) Fails to
promptly report to the court a change in his address
4. A Verification is an affidavit that the affiant has read the pleading and that
the allegations therein are true and correct of his personal knowledge and/or is
based on authentic records..
4.3 The court may order the correction of the pleading or act on an unverified
pleading if the attending circumstances are such that strict compliance would not
fully serve substantial justice, which after all, is the basic aim of the rules of
procedure.218
4.5 A Verification is required under rules governing (a) cases covered by the
Rules on Summary Procedure (b) Petition for relief from judgment / order220 (c)
215
Republic v. Kenrick Development Corporation, 351 SCRA 716
216
Supra, Section 3, Rule 7
217
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
218
Robert Development Corporation v. Quitain, 315 SCRA 150
219
Supra, Section 4, Rule 7
Petition for review221 (d) Appeal by certiorari222 (e)Petition for annulment of
judgment 223 (f) Injunction224 (g) Receivership225 (h) Support226 (i) 69) Certiorari,
Prohibition or Mandamus227 (j) Quo Warranto228 (k) Expropriation229 (l) Forcible
Entry / Detainer230 (m) Indirect Contempt 231(n) Petition for a writ of habeas
corpus, writ of amparo, writ of habeas data (o) Petition for cancellation or
correction of entries in the Civil Registry (p) Petition for the constitution of a
family home (q) Petition for Declaration of Absolute Nullity of Marriage,
Annulment of a Voidable Marriage, Legal Separation (r) Petition for Guardianship
(s) Applications for TRO or Injunction.
5.1 The lack of a certification is not curable by amendment, but such shall be
cause for dismissal of the complaint. The dismissal shall be without prejudice
unless otherwise provided, upon motion and after hearing.233
220
Supra, Section 3, Rule 38
221
Supra, Section 1, Rule 42
222
Supra, Section 1, Rule 45
223
Supra, Section 4, Rule 47
224
Supra, Section 1, Rule 58
225
Supra, Section 1, Rule 59
226
Supra, Section 1, Rule 61
227
Supra, Sections 1,2,3, Rule 65
228
Supra, Section 1, Rule 66
229
Supra, Section 1, Rule 67
230
Supra, Section 3, Rule 70
231
Supra, Section 3, Rule 71
232
Supra, Section 5, Rule 7
233
Castillo v Court of Appeals, 426 SCRA 369
5.3 Forum Shopping exists when as a result of an adverse opinion in one
forum, a party seeks a favorable opinion, other than by appeal or certiorari, in
another, or when he institutes two or more actions or proceedings grounded on
the same cause, on the gamble that one or the other court would make a
favorable disposition. The most important factor in determining the existence of
forum shopping is the vexation caused the courts and parties-litigants by a party
who asks different courts to rule on the same or substantially the same reliefs.234
5.4 It also occurs when a party attempts to have his action tried in a particular
court or jurisdiction where he feels he will receive the most favorable judgment.
5.5 It has been said to exist also where the elements of litis pendentia are
present or where a final judgment in one case will amount to res judicata in
another. Hence, the following requisites concur: (a) identity of parties, or at least
such parties represent the same interests in both actions (b) identity of rights
asserted and relief prayed for, the relief being founded on the same facts, and (c)
identity of the two preceding particulars is such that any judgment rendered in the
other action will, regardless, of which party is successful, amount to res judicata
in the action under consideration. 235
5.6 The purpose of the certification against forum shopping is to prohibit and
penalize the evils of forum shopping.236 Forum Shopping is a deplorable practice
because it results in unnecessarily clogging of the already heavily burdened
docket of the courts.237
5.8 If there are several plaintiffs, the general rule is that all of them must sign
but it must be noted that there is jurisprudence to the effect that: (a) the
execution by one of the petitioners or plaintiffs in a case constitutes substantial
compliance where all the petitioners, being relatives and co-owners of the
properties in dispute, share a common interest in the subject matter of the
case.238 (b) the case is filed as a collective raising only one cause of action or
defense239 (c) the signing by 1 spouse substantially complies as they have a
common interest in the property240 or is signed by husband alone is substantial
234
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
235
TADI v Solilapsi, 394 SCRA 269
236
BA Savings Bank v Sia, 336 SCRA 484
237
Ruiz v Drilon, 209 SCRA 695
238
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
239
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners
Association, 411 SCRA 504
240
Dar v Alonso Legasto, 339 SCRA 306
compliance as subject of case is recovery of conjugal property241 (d) 2 of the
parties did not sign as they were abroad. It was considered reasonable cause to
exempt them from compliance with the requirement that they personally execute
the certificate242
5.9 If the plaintiff or petitioner is a juridical person, it can only execute the
certification through properly delegated individuals.243 Note though that there are
corporate officers who may sign the certification without need of a board
resolution, namely: (a) Chairperson of the Board (b) President (c) General
Manager or Acting General Manager (d) Personnel Officer, and (e) Employment
Specialist in a labor case.244 The submission in the motion for reconsideration of
the authority to sign the verification and certification constitutes substantial
compliance with procedural requirements.245
5.10 Counsel has been allowed to sign the certification in the following
instances: (a) Where the counsel is the Solicitor General has been deemed to be
substantial compliance246 (b) Certification by acting regional counsel of NPC was
accepted because it was his basic function to prepare pleadings and to represent
NPC – Mindanao – as such he was in the best position to know and certify if a
similar action was pleading or had been filed247 (c) Certification was signed by
counsel. The procedural lapse may be overlooked in the interest of substantial
justice.248 (d) Certification was executed by an in house counsel is sufficient
compliance with the Rules249 (e) With respect to a corporation, the certification
against forum shopping may be signed for and its behalf by a specifically authorized
lawyer who has personal knowledge of the facts required to be disclosed in such
document.250
5.11 The Supreme Court has gone to the extent of invoking the power to
suspend the rules by disregarding the absence of the certification in the interest
of substantial justice.251
5.12 As a general rule, the certification cannot be filed at a later date. However,
in some instances the Supreme Court has allowed the late filing when special or
compelling reasons justify the same, such a the substantive merit of the case.252
241
Docena v Lapesura, 355 SCRA 658
242
Hamilton v Levy, 344 SCRA 821
243
National Steel Corporation v. Court of Appeals, 388 SCRA 85
244
Cagayan Valley Drug Corporation vs. Commissioner of Internal Revenue, 545 SCRA 10
245
Asean Pacific Planners vs. City of Urdaneta, 566 SCRA 219
246
Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
247
Robern Development Corporation v Quitain, 315 SCRA 150
248
Sy Chin v Court of Appeals, 345 SCRA 673
249
Mercury Drug Corporation v Libunao, 434 SCRA 404
250
Athena Computers, Inc. v Reyes, 532 SCRA 343 (September 5, 2007)
251
De Guia v. De Guia, 356 SCRA 287
5.13 Problem: The rule in Section 1, Rule 17 is that the plaintiff may dismiss his
complaint by filing a notice of dismissal at any time before service of the answer
or of a motion for summary judgment. As a general rule, such dismissal is without
prejudice. Suppose P filed a complaint against D, and before service of the
answer or of motion for summary judgment, P caused the dismissal of his
complaint by filing a notice of dismissal. Months later, P filed the same complaint
against D. In the certification on non-forum shopping appended to the second
complaint, P failed to mention about the prior filing and dismissal of the first case.
Is P’s failure to mention about the prior filing and dismissal of the first case fatal?
5.14 Also, a case pending before the Ombudsman cannot be considered for
purposes of determining forum shopping as the power of the Ombudsman is only
investigative in character and its resolution cannot constitute a valid and final
judgment because its duty is to file the appropriate case before the
Sandiganbayan.
252
Loyola v. Court of Appeals, 245 SCRA 477, Roadway Express v. Court of Appeals, 264 SCRA 696, Sy
v. Landbank, 336 SCRA 419, Shipside Incorporated v. Court of Appeals,352 SCRA 334, Ateneo De Naga
v. Manalo, 458 SCRA 325
253
Sevilleja v. Laggui, 362 SCRA 715
254
Roxas v. Court of Appeals,363 SCRA 207
HOW ALLEGATIONS ARE MADE IN A PLEADING
1.1 Ultimate facts are the essential facts constituting the plaintiff’s cause of
action. A fact is essential if it cannot be stricken out without leaving the statement
of the cause of action insufficient.
1.2 Examples of ultimate facts: (a) That an obligation has been constituted,
that party must comply, that there is no compliance (b) That party is the owner of
property, that he has a right to its use/possession, that he has been
dispossessed
1.3 A pleading must only aver ultimate facts as no conclusions are supposed
to be averred. Conclusions are for the court to make.
2. Mere evidentiary facts or those that are necessary for the determination of
the ultimate facts are to be omitted. Evidentiary facts are the premises upon
which conclusions of ultimate facts are based.
2.1 Examples of evidentiary facts are: (a) That the obligation as covered by a
promissory note was executed before specified persons or that defendant has
several letters indicating intention to/or not to pay (b) How property was acquired
2. The provision recognizes the possibility that the liability of the defendant
may possibly be based on two causes of action or that the defendant may
possibly have alternative defenses, even if they may conflict with each other.
255
Supra, Section 1, Rule 8
256
Supra, Section 2, Rule 8
2.1 Examples of alternative causes of actions: (a) allegations for breach of
contract of carriage and tort, or (b) allegations for breach of contract and fraud,
while examples of alternative defenses are: (a) defense of failure to repurchase
by plaintiff and that property was inherited, or (b) debt has been paid or that it
has prescribed, or (c) fraud attended the execution of the contract, but even
assuming that the contract is valid, the action has prescribed.
3.1 It does not require that all the alternative causes of action/defenses be
sufficient for the plaintiff/defendant to be entitled to relief. It is enough that one of
them if made independently would be sufficient to support a cause of action or
defend against it. Hence, the pleading is not made insufficient by the insufficiency
of one or more of the alternative statements.
3.2 Overruling of one does not bar other defenses. However, if not set up,
determination of one shall bar the determination of the other.
257
Supra, Section 3, Rule 8
258
Article 1256, NCC
259
Supra, Section 1(j), Rule 16
1. The following must be averred: (1) capacity to sue or be sued (2) authority
of a party to sue or be sued in a representative capacity (3) legal existence of an
organized association of persons that is made a party.260
1.1 Note the cross reference to Sections 1 and 3, Rule 3 referring to who may
be parties and representative parties, and to Section 1(d), Rule 16 referring to a
motion to dismiss on the ground of lack of legal capacity to sue, meaning that a
party is not in possession of his civil rights, does not have the qualification to
appear, or does not have the character or representation claimed.
1. Fraud and mistake must be stated with particularity. It is not enough for
the pleading to just allege fraud.
1.1 It must state the time, place and specific acts constituting the fraud.
260
Supra, Section 4, Rule 8
261
Supra, Section 5, Rule 8
262
Supra, Section 6, Rule 8
263
Supra, Section 7, Rule 8
2. It is contested by specifically denying it under oath and setting forth what
he claims to be the fact.
2.1 A mere denial is insufficient as the same must be under oath or verified.
2.1 The requirement does not apply if: (a) adverse party is not/does not
appear to be a party to the actionable document. Example: Heirs are sued on a
document executed by a person they will inherit from (b) when compliance with
an order for an inspection of the original document is refused.264 (c) when the
document is not an actionable document but is merely evidence of the claim or
existence of the actionable document . Example: demand letters (d) when the
party who has the benefit of an implied admission waives the benefit. Example:
he presents evidence as to genuineness and due execution
3.1 A party though is not barred from interposing other defenses as long as it
is not inconsistent with the implied admission. Examples of inconsistent defenses
are: forgery, lack of authority to execute the document, that it was signed in
another capacity, it was not delivered or the words/figures as pleaded are not the
same as when the document was signed . On the other hand, consistent
defenses are: fraud, payment, want or illegality of consideration, usury,
prescription, release or waiver or estoppel.
264
Supra, Section 8, Rule 8
265
Supra, Section 9, Rule 8
266
Supra, Section 10, Rule 8
denial (b)Deny only a part of the averment by specifying that so much of it is true
and deny the remainder, this is known as partial denial (c) Allegation of lack of
knowledge or information sufficient to form a belief as to the truth of the material
averment in the pleading of the adverse party, this is known as denial by
disavowal of knowledge.
A negative pregnant denial is a denial pregnant with an admission of the substantial facts
alleged in the pleading.267
1.2 When the complaint alleges that: “ the sum of PHP 10,000.00 is a
reasonable sum to be allowed plaintiff as and for attorney’s fees. If the
defendant’s denial is a mere repetition, then it is an admission that any sum less
than PHP 10,000.00 is reasonable.
1.3 If allegations are not denied in the prescribed manner, a party is deemed
to have made a general denial which is tantamount to an admission.268
1.5 Exceptions to the rule that matters are admitted by the failure to make a
specific denial are: (a) the amount of unliquidated damages269 (b) conclusions
which are not required to be denied as only ultimate facts must be alleged, and
(c) non-material allegations as only those that are material have to be denied.
1.6 Note that when the allegations pertain to (a) allegations of usury in a
complaint to recover usurious interest, or (b) genuineness and due execution of
267
Caneland Sugar Corporation v. Alon, 533 SCRA 28, (September 12, 2007)
268
Supra, Section 11, Rule 8
269
Supra, Section 11, Rule 8
an actionable document, the specific denial is required to be made under oath
otherwise they are admitted.
1. The general effect of the failure to plead is that the defenses / objections
not so pleaded in an Answer or a Motion to Dismiss are deemed waived.
1.1 However, if it appears from the pleadings or evidence on record that (a)
the Court has no jurisdiction over the subject matter (b) there is another action
pending between the same parties for the same cause, or (c) the action is barred
by prior judgment or statute of limitations, the court shall dismiss the claim.271
These defenses are not barred if not set up
1. If there is failure to plead within the time allowed, the defendant may be
declared in default upon compliance with the following: (a) the plaintiff must file a
270
Supra, Section 12, Rule 8
271
Supra, Section 1, Rule 9
272
Supra, Section 2, Rule 9
273
Supra, Section 8, Rule 11
274
Supra, Section 9, Rule 11
275
Supra, Section 10, Rule 11
motion to declare the defendant in default (b) serve notice of his motion to
defendant, which must include a notice of hearing (c) at the hearing, show proof
of failure on the part of the defendant to file his answer within the reglementary
period.276
2. Default is a procedural concept that occurs when the defending party fails
to file his answer within the reglementary period.
2.1 It does not occur from the failure of the defendant to attend the pre-trial,
where absence is a cause for the court to order presentation of evidence ex-
parte or at the trial, where absence will be construed as a waiver to assail the
evidence against him or is a waiver of the right to adduce evidence.
2.2 Note the exceptions to the concept that default is triggered by the failure of
the defending party to file the required answer, as a default judgment has been
held to lie if (a) a party refuses to obey an order requiring him to comply with the
various modes of discovery277, or (b) if a party or managing agent of a party
willfully fails to appear before the officer who is to take his deposition.278
4.1 Instead, the court can motu proprio or upon a motion render judgment as
may be warranted by the facts alleged in the complaint and limited to what is
prayed for.281
1. The court has two options,it: (a) can proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless, (b) the Court in its
discretion requires the claimant to submit the evidence. Such reception may be
delegated to the Clerk of Court, who must be a member of the Bar.
276
Supra, Section 3, Rule 9
277
Supra, Section 3 (c), Rule 29
278
Supra, Section 5, Rule 29
279
Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451
280
Section 19 (h), 1991 Rules of Summary Procedure
281
Section 6, II, 1991 Rules of Summary Procedure
282
Monarch Insurance v. Court of Appeals, 333 SCRA 7
2. The extent of the relief that may be awarded shall not exceed the amount
or be different in kind from that prayed for nor award unliquidated damages.283
2.1 Hence, even if there is proof to indicate a greater relief, the court will
refrain from awarding it.
4.1 It is not within the authority of the court to divide a case by first hearing the
case ex parte as against the defaulted defendants and render a judgment against
them, then proceed to hear the case as against the non-defaulted defendants.286
1.1 Motion to Set Aside Order of Default under oath, filed at any time after
notice of declaration in default and before judgment. Defendant must show by an
Affidavit of Merit stating that failure to file an answer was due to FAME and that
he has a meritorious defense
1.2 Motion for New Trial on the ground of FAME if the trial court has rendered
judgment but it has not yet become final
1.3 Appeal the judgment by default, not the order as it is interlocutory, and
cannot be appealed, within 15 days from notice of judgment.
Note that if in the meantime, a motion to set aside order of defendant has been
denied, it can be assigned as an error in the appeal. The non- filing of a motion to
set aside or for a new trial does not bar an appeal.
On appeal, the judgment may be assailed on the ground that the judgment is
excessive or is different in kind from that prayed for or that the plaintiff failed to
prove his material allegations or that the decision is contrary to law. However, he
283
Supra, Section 3 (d), Rule 9, Vlason v. Court of Appeals, 310 SCRA 26
284
Supra, Section 3 (a), Rule 9
285
Supra, Section 3 (c), Rule 9
286
Heirs of Mamerto Manguiat, et al. v. Court of Appeals, G.R. No. 150768, August 20, 2008
is prohibited from seeking a reversal or modification on the basis of evidence
submitted before the appellate court, as to allow it would mean that he is
retaining the right to adduce evidence, which he lost in the trial court. 287
1.4 Petition for Relief from Judgment based on FAME, provided no appeal has
been taken within 60 days from notice and 6 months from entry of judgment.288
1. In the following cases, default does not lie: (a) annulment of marriage (b)
declaration of nullity of marriage (c) legal separation (d) expropriation, and (e)
forcible entry, illegal detainer and the other actions covered by the Rules on
Summary Procedure.
1.1 Regarding items (a) to (c), the court shall order the prosecuting attorney to
investigate whether or not collusion exists, and if there is no collusion, to
intervene for the state in order to see that the evidence so presented is not
fabricated.291
287
Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, G.R. No. 148019, July 28, 2004
288
Supra, Rule 38
289
Supra, Rule 65
290
Republic of the Philippines vs. Sandiganbayan, G.R. No. 148154, December 17, 2007
291
Supra, Section 3,(e), Rule 9
1. Amendments consist of: (a ) Adding or striking out an allegation or the
name of any party (b) Corrections of mistakes in the name of a party or mistaken
or inadequate allegation or description in any other respect.
1.1 The purpose for allowing amendments is so that the actual merits of the
controversy may speedily be determined without regard to technicalities and in
the most expeditious and inexpensive manner. 292
2.1 Formal Amendments which are defects in the designation of the parties,
other clerical or typographical errors that may summarily be corrected provided
no prejudice is caused the adverse party and are allowed at any stage, at the
Court’s own initiative or on motion.293
1.1 Prior to the filing of an answer, the plaintiff has the absolute right to amend
the complaint whether a new cause of action or change in theory is introduced.295
1.2 Note that the filing of a motion to dismiss does not bar an amendment as it
is not a responsive pleading and does not preclude the right to the plaintiff to
amend his complaint.296
1.3 In fact, even if the motion to dismiss has been granted, the plaintiff can still
amend his complaint before the dismissal becomes final as long as no answer
has of yet been served and the order dismissing the complaint has not yet
become final. 297
2.2 The Trial Court may refuse leave or amendments when: (a) A responsive
pleading has been filed and the motion for leave to amend is made with intent to
delay (b) The purpose is to confer jurisdiction as the court must first acquire
jurisdiction before it can act.301 Note the instance when the amendment is made
as a matter of right (c) The purpose is to cure the defect of a non-existent cause
of action. Example: An amendment of the complaint to correct its having been
filed prematurely or when the obligation was not yet due.
2.3 If no leave is obtained, the pleading has no standing and may be stricken
from the records
3.1 Thus , the failure of a complaint to state a cause of action may be cured
by (a) Presentation of evidence to prove that cause of action followed by an
amendment to conform to evidence, or (b) Evidence is objected to and the trial
court sustains the objection, this is then followed by an amendment with leave of
court to authorize presentation of evidence. Same remedies may be resorted to
when a party fails to raise a defense in his pleading.
299
Supra, Section 2, Rule 8
300
Supra, Section 1, Rule 9
301
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
302
Siasoco v Court of Appeals, 303 SCRA 186
303
Bernardo v Court of Appeals, 263 SCRA 660
304
Supra, Section 5, Rule 10
THE EFFECTS OF AN AMENDED PLEADING
1.1 Note that the date of filing of amended pleadings does not retroact to the
date of the filing of the original pleading. Hence, the statute of limitations runs
until the filing of the amendment, but, an amendment that merely supplements
and amplifies facts originally alleged in the complaint relates back to the date of
the commencement of the action and is not barred by the statute of limitations
that expired after service of the original complaint. Example: The statement of a
cause of action is imperfect and is corrected by an amended complaint, the plea
of prescription relates to the time of filing but the rule will not apply if a new
defendant is impleaded in the amended complaint and prior to its filing
prescription has set in.
305
Supra, Section 4, Rule 129
306
Supra, Section 8, Rule 10
307
Supra, Section 7, Rule 10
308
Supra, Section 9, Rule 11 and Section 2, Rule 9
309
Supra, Section 6, Rule 10
3. A supplemental pleading is meant to supply deficiencies in aid of an
original pleading, not to entirely substitute the latter.310 Thus, when the cause of
action stated in the supplemental complaint is different from the cause of action
mentioned in the original complaint, the court should not admit the supplemental
complaint.311
310
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
311
APT v Court of Appeals, 324 SCRA 533
312
Marcos-Araneta vs. Court of Appeals, 563 SCRA 41
313
Supra, Section 1, Rule 11
314
Supra, Section 5, Rule 11
315
Supra, Section 3, Rule 11
4. If defendant is a foreign private juridical entity, within 15 days if service of
summons is made on the resident agent or within 30 days from receipt of
summons by the entity at its home office if received by the government office
designated by law.316
REPLY
316
Supra, Section 2, Rule 11, Section 128, Corporation Code
317
Supra, Section 7, Rule 11
318
Section 5, Rule 6 and Section 4, Rules 7, A.M. 01-2-04, SC
319
Supra, Section 4, Rule 11
320
Supra, Sections 8,9, and 10, Rule 11
1. It must be filed within 10 days from service of the pleading responded
to.321
2. Note though that the filing of a reply is optional as if one is not filed, all
new matters are deemed controverted.322
1. Upon motion and on terms as may be just, the Court it may extend or
allow it to be filed after the time fixed by the Rules.323 The court may also, upon
like terms, allow an answer or other pleading to be filed after the time fixed by
these Rules.
321
Supra, Section 6, Rule 11
322
Supra, Section 10, Rule 6
323
Supra, Section 11, Rule 11
324
Supra, Section 8, Rule 66
325
Rabanal v Tugade, 383 SCRA 484
326
Supra, Section 1, Rule 12
2. The purpose of which is to make more particular or definite the ultimate
facts in a pleading and is not intended to supply evidentiary matters.
1. Upon filing of the motion that points out the defects complained of, the
paragraphs wherein they are contained, and the details desired.
2. The clerk of court must immediately bring it to the attention of the court,
which may deny or grant the motion outright or allow the parties an opportunity to
be heard.328
3.1 Once filed, it becomes part of the pleading for which it is intended.330
327
Sabangan v Manila Railroad Company, 28 SCRA 772
328
Supra, Section 2, Rule 12
329
Supra, Section 3, Rule 12
330
Supra, Section 6, Rule 12
331
Supra, Section 4, Rule 6
332
Supra, Section 3, Rule 17
2. The striking out of a complaint by the lower court upon motion of the
defendant for failure of the plaintiff to comply with an order requiring him to
submit a bill of particulars as a ground for dismissal is equivalent to an
adjudication on the merits unless otherwise provided by the court.333
1. Filing is the act of presenting the pleading or other paper to the clerk of
court.
2. Service is the act of providing a party with a copy of the pleading / paper.
2.2 Service may also be made on a party with counsel: (a) if counsel cannot
be located or changed his given address (b) when his deposition is to be taken,
or is required to answer a written interrogatory or when a request for admission is
made, and (c) if party is ordered to show cause why he should be punished for
contempt
MODES OF FILING
333
Vda. De Quillosa v Salazar, 14 SCRA 656
334
Supra, Section 5, Rule 12
335
Supra, Section 1, Rule 13
336
Supra, Section 2, Rule 13
1. The modes of filing are (a) Presenting the original copies of pleadings,
appearances, motions, notices, orders, judgments and all other papers to the
clerk of court, or (b) By registered mail.337
1.1 The clerk of court shall if filing be personal, endorse on the pleading, the
date and the hour of filing.
1.2 If it by mail, the date appearing on the post office stamp / registry receipt
shall be date of the filing / deposit of court. The envelope shall be attached to the
record. It bears stressing that it is the date of mailing, not the date of receipt of
the mail matter, which shall be considered as the date of filing.338 This has been
the practice since mail is considered an agent of the Government.339This is also
known as the Mailbox Rule.
2. The papers that are to be filed or served upon affected parties are
judgments, resolutions, order, pleadings subsequent to the complaint, written
motions, notices, appearances, remand, offer of judgment or similar papers. 340
4. If mailed by private carrier, the date of actual receipt by the court of such
pleading and not date of delivery to the carrier is deemed the date of filing of that
pleading.344
337
Supra, Section 3, Rule 13
338
Ansel v Aledo, 420 SCRA 645
339
Supra, Mintu v Court of Appeals, 53 SCRA 114
340
Supra, Section 4, Rule 13
341
Supra, Section 5, Rule 13
342
Supra, Section 6, Rule 13
343
Supra, Section 7, Rule 13
5. It is required that judgments, final orders or resolutions shall be served
personally or by registered mail.
344
Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
345
Supra, Section 9, Rule 13
346
Supra, Section 8, Rule 13
347
Supra, Section 10, Rule 13
348
Supra, Section 11, Rule 13
349
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
1. Proof of filing is shown by: (a) existence of the pleading or other paper in
the records of the case (b) If not in the record, but is claimed to be: (1) filed
personally by the written / stamped acknowledgment of its filing by the Clerk of
Court on a copy, and (2) filed by registered mail by the registry receipt and the
affidavit of the person who did the mailing containing a full statement of: (a) Date
and place of depositing in the post office in a sealed envelope addressed to the
Court, with postage prepaid, and (b) Instructions are given to the postmaster to
return the mail to sender after 10 days, if undelivered.350
1. Proof of service is shown by: (a) Written admission of the party served or
official return of the server, or affidavit of the party serving, containing a full
statement of the date, place, manner of service if served personally (b) An
affidavit of the person mailing of facts showing compliance with Section 7 of the
Rule if served by ordinary mail (c) An affidavit and registry receipt issued by the
mailing office. The registry return card shall be filed immediately upon its receipt
by the sender, or in lieu thereof, the unclaimed letter together of the sworn /
certified copy of the notice given by the postmaster to the addressee.351
1. It shall contain (a) the names of the parties (b) object of the action or
defense (c) description of the property.355
350
Supra, Section 12, Rule 13
351
Supra, Section 13, Rule 13
352
Cruz v Court of Appeals, 388 SCRA 72
353
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
354
PEA v Caoibes, Jr., 312 SCRA 767
355
Supra, Section 14, Rule 13
2. It is only from the time of the filing of the notice for record shall a
purchaser or encumbrancer of the property affected thereby, be deemed to have
constructive notice of the pendency of the action and only of its pendency against
parties designated by their real names
1. Upon order of the court when: It is shown that it has for the purpose of
molesting the adverse party or it is not necessary to protect the rights of the party
who caused it to be recorded.358
RULE 14 – SUMMONS
SUMMONS DEFINED
1. It is a writ issued sealed and signed by the clerk of court upon filing of a
complaint and payment of requisite legal fees359 issued to and directed to the
defendant containing the following: (a) name of the court and of the parties (b) a
direction that the defendant answer within the time fixed by the Rules, and (c)
356
Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA
756
357
AFP Mutual Benefit Assocation v Court of Appeals, 327 SCRA 203
358
Lim v Vera Cruz, 356 SCRA 386
359
Supra, Section 1, Rule 14
notice that unless defendant answers, plaintiff will take judgment by default and
may be granted the relief prayed for.
1.1 To be attached thereto is a copy of the complaint and the order for the
appointment of a guardian ad litem, if any.360
1. The sheriff, his deputy, or other proper Court Officer, or for justifiable
reasons by any suitable person authorized by the court issuing the summons.362
SIGNIFICANCE OF SUMMONS
3.1 The rule abandons previous rulings of the Supreme Court that a motion to
dismiss on the ground of lack of jurisdiction over the person be based solely on
that ground, otherwise, it is a voluntary appearance. This is so because of the
360
Supra, Section 2, Rule 14
361
A.M. No. 03-1-09-SC
362
Supra, Section 3, Rule 14
363
Supra, Section 9, Rule 14
364
Cano-Gutierrez v. Gutierrez, 341 SCRA 670
365
UCPB v Ongpin, 368 SCRA 464
366
Supra, Section 20, Rules 14
omnibus motion rule367 that all objections then available be included otherwise
they are waived, as the only exceptions are (a) the Court has no jurisdiction over
the subject matter; (b) there is another action pending between the same parties
for the same cause; (c) or, the action is barred by prior judgment or statute of
limitations.368 These defenses are not barred if not set up.
2.1 The rule presupposes that a relation of confidence exists between the
parties with whom the copy is left and the defendant, and, therefore, assumes
that such person will deliver the process to the defendant or in some way give
him notice thereof.
2.2 But, it may only be resorted to, if for justifiable causes, the defendant
cannot be served personally within a reasonable time. The impossibility of
service in person must be indicated in the return, otherwise, substituted service is
void. 371
367
Supra, Section 8, Rule 15
368
Supra, Section 1, Rule 9
369
Supra, Section 6, Rule 14
370
Supra, Section 7, Rule 14
371
Hamilton v Rey, GR 139283, November 15, 2000
372
Laus v Court of Appeals, 219 SCRA 688
373
Manotoc v Court of Appeals, GR No. 130974, August 16, 2006
2.4 Service of summons on the defendant shall be by personal service first
and only when the defendant cannot promptly be served in person will
substituted service be availed of.374
3.1 The grounds that allow service of summons by publication are: (a) Identity
of the defendant is unknown or whereabouts of the defendant is unknown and
cannot be ascertained by diligent inquiry376 (b) Defendant does not reside and is
not found in the Philippines but the suit can be maintained against him because it
is in rem or quasi in rem377 (c) Defendant is a Philippine resident but is
temporarily out of the country.378 Note the cross reference with Section 15 and
the fact that substituted service may also be availed of.
4.2 Extra-Territorial Service can be availed of when: (a) Action affects the
personal status of the plaintiff (b) Action relates to, or the subject of which is
property within the Philippines in which the defendant has or claims a lien or
interest, actual or contingent (c) When the relief demanded, in whole or in part
consists of excluding the defendant from any interest in property located in the
Philippines (d) When the defendant’s property has been attached in the
Philippines.381
374
Samartino v Raon, 383 SCRA 664
375
Supra, Section 17, Rule 14
376
Supra, Section 14, Rule 14
377
Supra, Section 15, Rule 14
378
Supra, Section 16, Rule 14
379
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
380
Cariaga v Malaya, 143 SCRA 441
381
Supra, Section 15, Rule 14
1.1 If the defendant is: (a) Entity without juridical personality it is to be served
upon any one of them or upon person in charge of the office or place of business
maintained in such name BUT such shall not bind individually any person whose
connection with the entity has, upon due notice, been severed before the action
was brought382 (b) A minor, insane or otherwise incompetent it is to be served
upon him personally and his guardian / or guardian ad litem. In addition, in case
of a minor, service may also be made on his father or mother383 (c) Republic of
the Philippines it is to be served on the Solicitor General 384 (d) Province, City,
Municipality or similar public corporation it is to be served on the executive head,
or on such other officers as the law or court may direct 385 (e) Domestic Private
Juridical Entity is to be served on the president, managing partner, general
manager, corporate secretary, treasurer or in house counsel.386 Note the
abandonment of doctrine of substantial compliance.387 Basic is the rule that strict
compliance with the mode of service is necessary to confer jurisdiction of the
court over a corporation.388 (f) Foreign Private Juridical Entity is to be served
upon its resident agent. If there be no resident agent, the Government official
designated by law such as the SEC, Insurance Commissioner, Superintendent of
Banks. If none, any of its officers or agents in the Philippines. Note the required
sequence of service. In addition, if a lawyer enters an appearance without proof
of having been engaged by the foreign corporation, no voluntary appearance can
be inferred.389
2. Proof of service is the writing executed by the server setting forth (1) the
manner, place and date of service; (2) the paper/s which have been served with
the process and name of the person who received the same. It is required to be
sworn to if made by a person other than the sheriff or his deputy. 391
382
Supra, Section 8, Rule 14
383
Supra, Section 10, Rule 14
384
Supra, Section 13, Rule 14
385
Supra, Section 13, Rule 14
386
Supra, Section 11, Rule 14
387
Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
388
Santiago Sr. vs. Bank of the Philippine Islands, 566 SCRA 435
389
Litton Mills v Court of Appeals, 256 SCRA 696
390
Supra, Section 4, Rule 14
391
Supra, Section 18, Rule 14
prepaid directed to the defendant by registered mail at / to his last known
address.392
RULE 15 – MOTIONS
DEFINED
1. Shall be in writing except when made in open court or in the course of the
hearing or trial.394 Example: a motion for continuance made in presence of
adverse party.
2. It must state the relief sought to be obtained and the grounds on which it is
based, and if required by the rules or necessary to prove facts alleged therein, it
shall be supported by affidavits or other papers.395
3. It shall be set for hearing by the applicant except when the motion can be
acted upon by the court without prejudicing the rights of the adverse party.396
Example: Motion for extension of time to plead
4.2 The absence of the notice of hearing will not toll the running of the
reglementary period for appeal.399 It is considered a pro-forma motion.400
392
Supra, Section 19, Rule 14
393
Supra, Section 1, Rule 15,
394
Supra, Section 2, Rule 15
395
Supra, Section 3, Rule 15
396
Supra, Section 4, Rule 15
397
Supra, Section 5, Rule 15
398
Fajardo v Court of Appeals, 354 SCRA 736
399
Cledera v Sarmiento, 39 SCRA 553
400
Jehan Shipping Corporation v NFA, GR No. 159750, December 14, 2005
5. It must be served, together with the notice of hearing on the adverse party
at least 3 days before the date of hearing unless the court for good reason sets
the hearing earlier.401
5.1 The purpose of the three day notice rule is to avoid surprise upon the
opposite party and to give him time to study and meet the arguments of the
motion.402
6. There must be proof of service of every written motion set for hearing
otherwise it shall not be acted upon.403
6.2 A judge can act ex-parte on a motion where the rights of the adverse party
are not affected.405
401
Supra, Section 4, Rule 15
402
Remonte v. Bonto, 16 SCRA 257
403
Supra, Section 6, Rule 15
404
Cruz v Court of Appeals, 388 SCRA 72
405
Sumadchat v Court of Appeals, 111 SCRA 488
406
Supra, Section 7, Rule 15
407
Supra, Section 1, Rule 9
408
Supra, Section 8, Rule 15
409
Dacanay v Alvendia, 30 SCRA 31
identical motions speculating on the possible change of opinion of the court or
judges thereof.410
1. By Motion, within the time for the filing of an answer but before the filing of
an answer.
1.1 The rule is not absolute as a motion to dismiss may still be filed after
answer on the ground of (a) lack of jurisdiction (b) litis pendentia (c) lack of a
cause of action, and (d) discovery during trial of evidence that would constitute
ground for dismissal.414
410
Miranda v Court of Appeals, 71 SCRA 295
411
PH Credit Corporation v Court of Appeals, 370 SCRA 155
412
Supra, Section 9, Rule 15
413
Supra, Section 10, Rule 15
414
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
415
Supra, Section 6, Rule 16
1. A motion to dismiss may be made on any of the following grounds:416
1. The court has no jurisdiction over the person of the defending party
2. The court has no jurisdiction over the subject matter of the claims
4.1 This means that he is not in exercise of his civil rights, or does not have
the necessary qualification to appear or does not have the character /
representation he claims as opposed to the lack of personality to sue which
means that he is not the real party in interest, and the basis for dismissal then is
no cause of action or failure to state a cause of action.418
5. There is another action pending between the same parties for the same
cause
5.2 The requisites for its application are: (a) Identity of the parties, or at least
such as representing the same interests in both actions (b) Identity of rights
asserted and reliefs prayed for, the relief being founded on the same facts.
Identity in both cases, is such that judgment in the pending case would,
regardless of which party is successful amount to res judicata in the other.419
5.3 As between the first and second or latter actions, apply the “priority in time
rule”, but the rule must yield to the “more appropriate action rule. Example: An
action for declaratory relief to interpret a lease contract was filed before an
ejectment case, where the Supreme Court held that the ejectment case is the
more appropriate action.420
416
Supra, Section 1, Rule 16
417
Fernandez v ICB, 316 SCRA 326
418
Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of
Appeals, 199 SCRA 205
419
Victronics Computer v RTC, 217 SCRA 517
420
Teodoro v Mirasol, 99 Phil 150
considering : (a) nature of the controversy; (b) comparative accessibility of the
court to the parties; (c) other similar factors.421
5.6 Where the litigant is engaged in forum shopping, the other party may ask
for the summary dismissal of the two cases. The well entrenched rule is that a
party cannot, by varying the form of the action or adopting a different method of
presenting his case, escape the operation of the principle that one and the same
cause of action shall not be twice litigated.423
6.1 This is known as Res Judicata, whose requisites are: (a) The existence of
a former judgment that must be final (b) Rendered by a court having jurisdiction
over the subject matter and the parties (c) It must be a judgment or order on the
merits (d) There must be between 1st / 2nd action, identity of parties / subject
matter / causes of action.
6.2 The doctrine is founded on 2 grounds: (a) Public policy and necessity
which makes it in the interest of the state that there should be an end to litigation
(b) Litigant should be spared the hardship of being vexed twice for the same
cause
6.3 Note that there can be no res judicata in support cases as future support
cannot be compromised.424
6.5 A previous final judgment denying a petition for declaration of nullity on the
ground of psychological incapacity shall bar a subsequent petition for annulment
421
Roa-Magsaysay v Magsaysay, 98 SCRA 592
422
UCPB vs. Beluso, G.R. No. 159912, August 17, 2007
423
PCIB vs. Court of Appeals, G.R. No. 114951, July 18, 2003
424
De Asis v Court of Appeals, 303 SCRA 176
425
Gardose vs. Tarroza, G.R. No. 130570, May 19, 1998
on the ground of lack of a marriage license as the cause of action is the same,
although the ground on which the action is predicated has been varied. A party
cannot avoid the application of res judicata by varying the form of the action or
adopting a different method of presenting his case.426
7.1 The Test of the Sufficiency of a Cause of Action is: Whether accepting the
veracity of the facts alleged in the complaint, the Court can render a valid
judgment upon the same in accordance with the prayer in complaint.
8. Claim or demand set forth in plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished
9.1 Statute of Frauds is statute/s that deals with the enforcement and
requirements of agreements in particular circumstances. It is descriptive of
statutes which require certain classes of contracts to be in writing. 429
10. A condition precedent for filing the claim has not been complied with
426
Maillon vs. Alcantara, G.R. No. 141528, October 31, 2006
427
Nadela v. City of Cebu, 411 SCRA 315
428
Supra, Rule 33
429
Litonjua v Fernandez, 427 SCRA 478
10.1 In certain cases, referral of a case to the Lupon is a condition precedent
for filing a complaint in court. It is not jurisdictional.430 It may be waived if not
raised seasonably in a motion to dismiss.431
2. After the hearing, Court shall either dismiss the action, deny the motion or
order amendment of the pleading, stating clearly and distinctly the reasons for
the action taken.433
2.1 It is now mandated that the Court cannot defer resolution of the motion
based on the reason that the ground relied upon does not appear to be
indubitable or sure
3. If the motion is denied, the movant shall file an answer within the balance
of the period prescribed by Rule 11, which he was entitled to at the time of
serving the motion, but not less than 5 days in any event, counted from notice of
denial.
3.2 The effect of dismissal is that subject to the right to appeal, an order
granting a motion to dismiss on the grounds of (a) prior judgment or statute of
limitations (b) claim / demand has been paid, waived abandoned or otherwise
extinguished, or (c) is unenforceable under the statute of frauds shall bar a re-
filing of the same.435
430
Junson v martinez, 405 SCRA 390
431
Banares v Balising, 328 SCRA 36
432
Supra, Section 2, Rule 16
433
Supra, Section 3, Rule 16
434
Supra, Section 4, Rule 16
435
Supra, Section 5, Rule 16
RULE 17 - DISMISSAL OF ACTIONS
1.2 The action of the court is to confirm the dismissal. Hence, upon filing of
the notice, the complaint is considered as dismissed.437
2.2 Note also that a class suit shall not be dismissed or compromised without
the approval of the Court.438
1. The court can motu propio or upon motion of the defendant dismiss a
complaint when: (a)If, for no justifiable reason, the plaintiff fails to appear on the
date of the presentation of his evidence in chief on the complaint (b) If, for no
justifiable reason, plaintiff fails to prosecute his action for an unreasonable length
of time (c) If, for no justifiable reason, plaintiff fails to comply with Rules of Court
or any order of the Court.
1.1 A dismissal shall have the effect of an adjudication on the merits, unless
otherwise declared by the court.
436
Supra, Section 1, Rule 17
437
Bar, 1989
438
Supra, Section 2, Rule 17
1.2 Dismissal is without prejudice to the right of the defendant to prosecute his
counterclaim in the same or a separate action and shall have the effect of an
adjudication on the merits unless otherwise declared by the court.439
RULE 18 – PRE-TRIAL
WHAT IS PRE-TRIAL
WHEN CONDUCTED
1. After the last pleading has been served and filed. It shall be the duty of the
plaintiff to move ex-parte that the case be set for pre-trial.443
439
Supra, Section 3, Rule 17
440
Ruiz, Jr v CA, 212 SCRA 660
441
Supra, Section 4, Rule 17
442
Interlining v Philippine Trust Company, 378 SCRA 521
1.1 SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5
days.
1.2 SC Administrative Matter No. 03-1-09, SC, Section A (1.2) Should the
plaintiff fail to move ex-parte to set case for pre-trial, the branch clerk of court
should issue a notice of pre-trial.
1.3 The same circular also requires that the presiding judge direct the parties
to mediation, if possible. If it fails, it will schedule the pre-trial but it may also
schedule a preliminary conference before the branch clerk of court to assist them
in (a) reaching a settlement (b) pre-marking of documents and exhibits (c)
consider other matters that will aid in the prompt disposition of the case.
1.4 The judge is also directed to consider assisting the parties in effecting a
settlement given the evidence of the parties.
2. The last pleading is the answer to the original complaint, cross claim, or,
third party complaint and the reply.
1. Pre-trial is by nature mandatory and the purpose for its conduct is to take
up the following matters:444
443
Supra, Section 1, Rule 18
444
Supra, Section 2, Rule 18
445
RA 9285, Alternative Dispute Resolution Act of 2004
1.7 Propriety of judgment on the pleadings, summary judgment, or dismissing
the action if a valid ground therefor be found to exist. Hence, a motion for
judgment on the pleadings or summary judgment must be filed as in a pre-trial
the court merely determines its propriety.
1.9 Such other matters as may aid in the prompt disposition of the action
2.1 Accordingly, there is no legal basis to consider a party notified of the pre-
trial and to consider that there is no longer any need to send a notice because it
was counsel who suggested the date of pre-trial.447
1. The parties and counsel are required to be present during the pre-trial. A
party may be excused if: (a) A valid cause is shown therefore (b)A representative
shall appear duly authorized in writing to do the following: (1) enter into amicable
settlement; (2) submit to alternative modes of dispute resolution; (3) enter into
stipulations / admissions of fact / documents.448
446
Supra, Section 3, Rule 18
447
Agulto v Tecson, 476 SCRA 395
448
Supra, Section 4, Rule 18
2. If defendant fails to appear despite due notice, plaintiff is allowed to
present his evidence ex-parte and the court may render judgment on the basis
thereof. 449
1. A pre-trial brief must be filed and served on the adverse party at least 3
days before the pre-trial containing:452
2. Note that the failure to file a brief shall have the same effect as failure to
appear.
3. Neither can the court conduct a pre-trial without the parties filing their pre-
trial briefs.454
449
Supra, Section 5, Rule 18
450
Paredes v. Verano
451
Young v Court of Appeals, 204 SCRA 584
452
Supra, Section 6, Rule 18
453
Section 6, SC Adm. Circular 3-99, January 15, 1999
PRE-TRIAL ORDER
2.1 The object of a pre-trial order is to control the subsequent course of the
action as trial shall be limited to the issues stated in the pre-trial order,457, unless
modified to prevent manifest injustice. 458
2.2. Notwithstanding, courts are not required to resolve all issues raised in
pleading unless necessary for the resolution of the case.459
RULE 19 – INTERVENTION
1. A person who has a (a) legal interest in the matter in litigation (b) has legal
interest in the success of either of the parties (c) has an interest against both or
(d) is so situated as to be adversely affected by a distribution or other disposition
of property in the custody of the court or an officer thereof.460
1.1 Examples are (a)an action for payment of money, where personal property
of the defendant is attached, a 3rd person claiming the attached property can
intervene (b) action by alleged owners of the land sought to be foreclosed.
454
Vera vs. Rigor, et al. G.R. No. 147377, August 10, 2007
455
Heirs of Conahap v Regana, 458 SCRA 741
456
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
457
Supra, Section 5, Rule 30
458
Supra, Section 7, Rule 18
459
IBAA vs. IAC, 167 SCRA 450
460
Supra, Section 1, Rule 19
1.2 The interest which entitles a person to intervene in a suit must be in the
matter in litigation and of such direct and/or immediate character that intervenor
will either gain or lose by direct legal operation and effect of judgment. 461
1.1 The court may refuse leave when (a) It will unduly delay or prejudice the
adjudication of the rights of the original parties. Example: Delay or laches in
bringing intervention, or (b) Intervenor’s rights may be fully protected in a
separate proceeding. Example: Attachment of real property subject of a
mortgage
461
Roxas v Dinglasan, 28 SCRA 430
462
Supra, Section 19, Rule 3
463
Supra, Section 2, Rule 19
464
Supra, Section 3, Rule 19
465
Barangay Matictic v Elbinias, 148 SCRA 83
6. An order denying a motion for intervention is appealable.466
1. The clerk of court, under the direct supervision of a judge, shall keep a
calendar for (a) pre-trial (b) trial (c) trials that were adjourned or postponed (d)
those with motions set for hearing.
ASSIGNMENT OF CASES
RULE 21 – SUBPOENA
WHAT IS A SUBPOENA
KINDS OF SUBPOENA
BY WHOM ISSUED
466
Foster-Gallego v Galang, 435 SCRA 275
467
Supra, Section 1, Rule 20
468
Supra, Section 2, Rule 20
469
Ang v Bello, 163 SCRA 358
470
Supra, Section 1, Rule 21
1. A subpoena is issued by (a) The court before whom the witness is
required to attend (b) The court where deposition is to be taken (c) Officer or
body authorized by law to do so in connection with investigations that it may
conduct (d) Any justice of the Supreme Court/Court of Appeals in any case or
investigation pending within the Philippines471
1.1 A request by a party for the issuance of a subpoena does not require
notice to other parties to the action.472
2. In taking depositions, the clerk of court shall not issue a subpoena duces
tecum without a court order.473
1. Witness resides more than 100 kilometers from his residence to the place
where he is to testify by the ordinary course of travel.475 This is also called the
viatory right of the witness or the right not to be compelled to testify in a civil case
if he lives more than 100 kilometers from his residence to the place where he is
to testify by ordinary course of travel.
1.1 If the viatory right is invoked, a witness can still be compelled to testify by
the taking of his deposition in a place within 100 kilometers from where he
resides, observing the following steps: (a) Party desiring to take deposition shall
give reasonable notice in writing to every other party in the action stating the
time, place, name and address of the person whose deposition is to be taken.
There should be proof of service of the notice (b) Proof of service of notice to
take deposition shall be presented to the clerk of court of the place where
deposition is to be taken (c) On the basis of such proof of service, the clerk upon
authority and under seal of the court, shall issue the subpoena but a subpoena
duces tecum cannot be issued without an order of the Court (d) Subpoena is to
be served on witness whose deposition is to be taken.476
471
Supra, Section 2, Rule 21
472
Adorio v Bersamin, 273 SCRA 217
473
Supra, Section 5, Rule 21
474
Collado v Bravo, 356 SCRA 411
475
Supra, Section 10, Rule 21
476
Supra, Section 5, Rule 21
The court should examine and study the application properly to determine if it is
being made for a valid purpose.477
1. A subpoena must contain the following: (a) Name of the court (b) Title of
action/investigation and is to be directed to the person whose attendance is
required. If duces tecum, in addition, it must contain a reasonable description of
the books, documents, things demanded which is must appear to the Court to be
prima facie relevant.478
1. If duces tecum, the cost of production of books, papers or things must also
be tendered.
2. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP
100.00 per witness.
477
Supra, Section 2, Rule 21
478
Supra, Section 3, Rule 21
479
Supra, Section 4, Rule 21
480
Supra, Section 6, Rule 21
CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A
SUBPOENA
HOW COMPUTED
1. The day of the act / event from which the designated period of time begins
to run is excluded and date of performance included.
2. If the last day falls on a Saturday, Sunday or legal holiday in the place
where the Court sits, the time shall not run until the next working day. 484
2.1 Should a party desire to file any pleading, even a motion for extension of
time to file a pleading, and the last day falls on a Saturday, Sunday or a legal
holiday, he may do so on the next working day. In case the motion for extension
is granted, the due date for the extended period shall be counted from the
original due date, not from the next working day on which the motion for
extension was filed.485
EFFECT OF INTERUPTIONS
1. Allowable period after interruption shall start to run on the day after, notice
of the cessation of the cause thereof. The day of the act that caused cessation
shall be excluded in the computation of the period.
481
Supra, Section 7, Rule 21
482
Supra, Section 8, Rule 21
483
Supra, Section 9, Rule 21
484
Supra, Section 1, Rule 22
485
Dela Cruz vs. Maersk Filipinas Crewing, Inc., 551 SCRA 284, AM No. 00-2-14-SC
RULES 23 TO 29 – MODES OF DISCOVERY
WHAT IS DISCOVERY
1. The methods used by the parties to a civil action to obtain information held
by the other party that is relevant to the action.
PURPOSES OF DISCOVERY
WHAT IS A DEPOSITION
486
Supra, Rule 23
487
Supra, Rule 24
488
Supra, Rule 25
489
Supra, Rule 26
490
Supra, Rule 27
491
Supra, Rule 28
1. With leave of court, after jurisdiction has been acquired / obtained over
any defendant or over property which is the subject of the action as the issues
are not yet joined and disputed facts are not yet clear or if a person is confined in
a prison with leave of court only, on such terms that the Court may prescribe.
SCOPE OF A DEPOSITION
2. The taking and scope of a deposition after notice is served for its taking by
oral examination may be limited.
492
Supra, Section 1, Rule 23
493
Supra, Section 2, Rule 23
494
Supra, Section 16, Rule 23
3. During the taking of the deposition, it shall be taken subject to the
additional limitations:
3.1 During the taking of the deposition, on motion or petition of any party or
the deponent upon showing that the examination is being conducted in bad faith
or in such manner as to unreasonably annoy, embarrass or oppress the
deponent or a party, the court where the action is pending or the RTC of the
place where deposition is being taken may order the officer taking the
examination to cease forthwith or limit the scope as provided in Section 16.
3.2 If terminated, it shall be resumed thereafter only upon order of the Court in
which the action is pending. Upon demand of the objecting party/deponent, the
taking shall be suspended for the time necessary to make a notice for an order.
In granting/refusing such order, the court may impose upon either party or upon
the witness the requirement to pay costs/expenses as the Court may deem
reasonable.495
495
Supra, Section 18, Rule 23
496
Supra, Sections 10 and 14, Rule 23
497
Supra, Sections 11, 12, and 14, Rule 23
1. A Person who is a relative within the 6th degree of consanguinity / affinity
or employee or counsel of any of the parties or relative within the same degree or
employee of counsel or is financially interested in the action.498
1.1 On motion of a party upon whom notice is served, the court , for cause,
may enlarge or shorten the time.499
2. Officer taking the deposition shall put the witness under oath and shall
personally, or by someone acting under his direction and his presence record the
testimony of the witness stenographically unless the parties agree otherwise.
7. If not signed, the officer shall sign it and state on the record why it was not
signed together with reasons. If there is refusal to sign, the effect is that the
deposition then may be used fully as though signed, unless on a motion to
suppress under Sec 29 (f) , pertaining to errors or irregularities in preparation, the
498
Supra, Section 13, Rule 23
499
Supra, Section 15, Rule 23
500
Supra, Section 17, Rule 23
Court holds that the reason for refusal to sign require rejection of the deposition
in whole or in part.501
8. Once signed, the officer shall certify on the deposition that the witness
was duly sworn to by him and that the deposition is a true record of the testimony
of the witness. He shall then securely seal the deposition in an envelope
endorsed with the title of the action and marked “deposition of _______” to be
promptly filed with the court where the action is pending or sent by registered
mail to the clerk thereof for filing.502
9. Notice of filing shall then promptly be given by the officer to all parties503
and upon payment of reasonable charges, he is to furnish copies of the
deposition to any party or the deponent. 504
3. Officer must promptly give notice of filing / and may furnish copies to
parties and deponent upon payment of reasonable charges.507
4. Note that Sections 15, 16 and 18 are applicable and that by motion, it can
be asked that the deposition be upon oral examination.
501
Supra, Section 19, Rule 23
502
Supra, Section 20, Rule 23
503
Supra, Section 21, Rule 23
504
Supra, Section 22, Rule 23
505
Supra, Section 25, Rule 23
506
Supra, Section 26, Rule 23
507
Supra, Section 27, Rule 23
EFFECT OF NON-APPEARANCE
2. If party giving notice does not serve subpoena and the witness does not
appear, court can order party giving notice to pay reasonable expenses for
attendance plus attorney’s fees to a party who appears in person or by
counsel509
1.1 The contents of the petition which shall be entitled in the name of the
petitioner and should show: (a) That petitioner expects to be a party to an action
in a Court in the Philippines but is presently unable to bring it or cause it to be
brought (b) The subject matter of the expected action and his interest therein (c)
The facts that he desires to establish by the proposed testimony and his reasons
for desiring to perpetuate it (d) The names or description of the person he
expects will be adverse parties and their addresses so far as known (e) The
names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each and shall then ask for an order
authorizing the petitioner to take the depositions of the persons to be examined
named in the petition for the purpose of perpetuating their testimony. 511
2. After the petition is completed, the petitioner shall serve a notice upon
each person named in the petition as an expected adverse party, together with a
copy of the petition stating that: he will apply to the Court at a time and place
stated therein, for the order described in the petition.
508
Supra, Section 23, Rule 23
509
Supra, Section 24, Rule 23
510
Supra, Section 1, Rule 24
511
Supra, Section 2, Rule 24
2.1 At least 20 days before the date of the hearing, the Court shall cause
notice thereof to be served on the parties and prospective deponents in the
manner provided for service of summons.512
3.1 For purposes of applying Rule 23, references to the court in which the
action is pending shall be deemed to refer to the court in which petition for such
deposition is filed. 514
5.1 The Court in which judgment was rendered may allow taking of
depositions of witnesses to perpetuate their testimony for use in the event of
further proceedings in the said Court.
5.2 It is initiated by a party making a motion in said Court for leave to take
depositions – upon the said notice and service thereof as if the action was
pending therein, the motion should state: (a) name and addresses of persons to
be examined and substance of testimony to be elicited (b) reasons for
perpetuating testimony.
5.3 If Court finds that it is proper to avoid failure or delay of justice, it may
allow the depositions to be taken and used in the same manner and under same
conditions as prescribed for depositions in pending actions.516
512
Supra, Section 3, Rule 24
513
Supra, Section 4, Rule 24
514
Supra, Section 5, Rule 24
515
Supra, Section 6, Rule 24
516
Supra, Section 7, Rule 24
1. A party shall not be deemed to make a person his own witness by taking
his deposition.517
2.1 But it does not apply to the use of an adverse party of a deposition as
described in Par. (b) Section 4 of Rule 23.518
USE OF DEPOSITION
1.1 Any part of all of a deposition, so far as admissible under the rules of
evidence may be used against any party who was present, or represented at the
taking or had due notice thereof, in accordance with the following:
c. Deposition of a witness, party or not, may be used by any party for any
purpose if the court finds that: (1) witness is dead (2)witness resides more than
100 kilometers from the place of trial/hearing or is out of the Philippines unless,
it appears that his absence is procured by the party offering the deposition (3)
witness is unable to attend/testify because of age, sickness, infirmity or
imprisonment (4) party offering the deposition has been unable to procure the
attendance of the witness by subpoena (5) upon application and notice,
exceptional circumstances exist as to make it desirable in the interest of justice
and with due regard to the importance of presenting the testimony of witness in
open court, to allow the deposition to be used.
517
Supra, Section 7, Rule 23
518
Supra, Section 8, Rule 23
519
Supra, Section 4, Rule 23
WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE
USED AS EVIDENCE
1. If the deponent is a party, the opposing party can use it to prove his claim
or defense.
2.1 As to notice, they are waived unless written objection is promptly served
upon the party giving the notice
2.5 As to the form of written interrogatories, the objections are waived unless
served in writing upon party propounding them within the time allowed for the
serving of succeeding cross or other interrogatories and within 3 days after
service of the last interrogatory authorized.
2. At the trial or hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any other party. 522
This is called rebutting a deposition.
1. No, because substitution of parties does not affect the right to use
depositions previously taken, when the action is dismissed and another action
involving the same subject is afterward brought between the same parties or their
representatives or successors in interest, all depositions lawfully taken and duly
filed in the former action may be used in the latter as if originally taken
therefor.523
WRITTEN INTERROGATORIES
520
Supra, Section 29, Rule 23
521
Supra, Section 3, Rule 23
522
Supra, Section 9, Rule 23
523
Supra, Section 5, Rule 23
524
Supra, Section 1, Rule 25
HOW AND WHEN ANSWERED
1. Responses, which must be signed and sworn to, must be filed within 15
days from service, unless the Court on motion and for good cause shown
extends or shortens the time525
1. No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party.527
1. It may relate to any matters that can be inquired into under Section 2, Rule
23 and the answers used for the same purpose provided for by Section 4, Rule
23.528
1. Unless thereafter allowed by the court for good cause shown and to
prevent failure of justice, a party not served with written interrogatories may not
be compelled by the adverse party to give testimony in open court or give a
deposition pending appeal.529
525
Supra, Section 2, Rule 25
526
Supra, Section 3, Rule 25
527
Supra, Section 4, Rule 25
528
Supra, Section 5, Rule 25
529
Supra, Section 6, Rule 25
RULE 26 – REQUESTS FOR ADMISSIONS
2. Objections, if any shall be submitted to the Court within the period for
complying and prior to filing of the Sworn Statement.
2.1 Compliance is then deferred until objections are resolved which should be
done as early as practicable.531
EFFECT OF ADMISSIONS
1. It is for the purpose of the pending action only and shall not constitute an
admission by him for any purpose or used against him in any other proceeding532
1.1 Although any admission, express or implied may be allowed by the court
to be withdrawn or amended upon such terms as may be just.533
1. Unless otherwise allowed by the Court for good cause and to prevent
failure of justice, a party who fails to serve a request for admission of material /
relevant facts at issue on the adverse party, which are or ought to be within the
latter’s personal knowledge, shall not be permitted to present evidence on such
facts.534
530
Supra, Section 1, Rule 26
531
Supra, Section 2, Rule 26
532
Supra, Section 3, Rule 26
533
Supra, Section 4, Rule 26
534
Supra, Section 5, Rule 26
RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
HOW AVAILED OF
1. On motion of any party showing good cause, the court where the action is
pending may order, specifying the time, place and manner and prescribing such
terms and conditions as are just, that:
1.1 Any party to produce and permit the inspection, copying, photographing,
by or on behalf of a having party of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, not privileged which
constitute or contain evidence material to any matter involved in the acition which
are in his possession and control.
1.2 Or, permit entry upon designated land or other property in his possession /
control for the purpose of inspecting, measuring, surveying or taking photographs
of the property or any designated relevant object or operation thereon.535
3. The requisites that have to be complied with to compel the other party to
produce or allow the inspection of documents or things are: (a) the party must file
a motion showing good cause (b) notice of the filing of the motion must be served
on all parties (c) the motion must designate the papers or things that are to be
produced and inspected (d) such papers or things are not privileged (e) that they
constitute or contain evidence material to any matter involved in the litigation,
and (f) that they are in possession, control or custody of the other party.536
WHEN AVAILED OF
1.1 It can be ordered only upon motion for good cause shown, with notice to
the party to be examined and to all other parties, specifying the time, place,
535
Supra, Section 1, Rule 27
536
Solidbank Corporation vs. Gateway Electronics Corporation, 553 SCRA 256
537
Supra, Section 1, Rule 28
manner, condition and scope of the examination and person/s by whom it is to be
made.538
2. Once the examination is completed, the party examined may request that
a detailed written report of the examining physician setting forth his findings /
conclusions.
2.2 If request is refused, the court on motion may order delivery by the party
examined on such terms as are just. If the physician fails / refuses to make such
report, his testimony may be excluded if his testimony is offered at trial. 539
1.2 The proponent may then apply for an order to compel an answer in the
proper court where the deposition is being taken. This is also applicable to
interrogatories.
1.3 If granted, the court can order that answer be made and if it finds that
refusal is without substantial justification – it may impose upon deponent /
538
Supra, Section 2, Rule 28
539
Supra, Section 3, Rule 28
540
Supra, Section 4, Rule 28
counsel advising that no answer be given or both – reasonable expenses and
attorney’s fees in obtaining the order. If denied and the court finds application
was filed without substantial justification proponent / counsel advising application
or both may in the same manner be sanctioned.541
2. Other consequences that are applicable to Sec 1, Rule 29, Rule 27 and
Rule 28, the Court may issue an:
2.1 order that the matters regarding which the questions are asked, character
/ description of thing or land / contents of a paper or physical / mental condition of
a party shall be taken to be established in accordance with the claim of the party
obtaining the order.
2.3 order striking out pleadings or parts thereof or staying proceedings until
the order is obeyed, dismissing the action or proceeding or any part thereof, or
rendering judgment by default against the disobedient party.
OTHER SANCTIONS
2. Failure of a party to willfully appear before the officer taking the deposition,
after being served with a proper notice, or fails to serve answers to written
interrogatories properly served, court may on motion and notice: (a)Strike out all
or any part of the pleading of that party (b) Dismiss the action / proceeding / part
thereof (c) Enter judgment by default against that party, (d) and ,in its discretion,
order payment of reasonable expenses and attorney’s fees544 but no expenses
or fees are to be assessed against the Republic of the Philippines. 545
541
Supra, Sections 1 and 2, Rule 29
542
Supra, Section 3, Rule 29
543
Supra, Section 4, Rule 29
544
Supra, Section 5, Rule 29
545
Supra, Section 6, Rule 29
RULE 30 – TRIAL
NOTICE OF TRIAL
1. Upon entry of a case in the trial calendar – the clerk shall notify the parties
of the date of the trial in such manner as to ensure receipt of the notice at least 5
days before such date.546
1. Courts may adjourn a trial from day to day, and to any stated time – as the
expeditious and convenient transaction of business may require – but it shall
have no power to adjourn for a longer period than one month for each
adjournment, nor more than three months in all, except when authorized in
writing by the Court Administrator of the Supreme Court.547
546
Supra, Section 1, Rule 30
547
Supra, Section 2, Rule 30
548
Supra, Section 3, Rule 30
549
Supra, Section 4, Rule 30
1.2 Defendant adduces evidence in support of his defense, counterclaim,
crossclaim and 3rd party complaint
1.3 Third party defendant, if any, shall adduce evidence of his defense,
counterclaim, crossclaim and 4th party complaint.
1.4 Fourth party, and so forth, if any, shall adduce evidence of the material
facts pleaded by them.
1.5 Parties against whom any counterclaim/ cross-claim has been pleaded
shall adduce evidence in support of their defense, in the order prescribed by the
Court.
1.6 The parties may then respectively adduce rebutting evidence, unless the
Court, for good reasons and in the furtherance of justice, permits them to adduce
evidence upon their original case.
1.7 Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or submit memoranda or
any further pleadings.
TRIAL OF ISSUES
1. The trial of issues shall be limited to the issues stated in the pre-trial order,
unless the court directs otherwise for special reasons.
2. If the parties agree only on some facts, trial shall be held as to the
disputed facts551
550
Supra, Section 5, Rule 30
551
Supra, Section 6, Rule 30
3.1 Note that in the same cases, neither is there judgment by default,
judgment on the pleadings, summary judgment, judgment upon confession,
judgment upon compromise, judgment based on stipulation of facts.
1. All proceedings, including any statement made by the judge with reference
to the case, or to any of the parties, witnesses or counsel shall be made of record
in the stenographic notes.552
552
Supra, Section 7, Rule 30
553
Supra, Section 9, Rule 30
554
Supra, Section 8, Rule 30
555
Civil Code, Article 2030
556
Supra, Section 1, Rule 31
2. The rationale for consolidation is to have all cases, which are intimately
related, acted upon by one branch of the court to avoid the possibility of
conflicting decisions being rendered.557
1. Yes, involving the consolidation of civil action with criminal action, if filed
before criminal action and trial has not yet commenced.558
WHEN RESORTED TO
557
Philippine Airlines, Inc. vs. Zamora, 564 SCRA 50
558
Section 1, Rule 111 of the Rules on Criminal Procedure
559
PNB vs. Gotesco, GR 183211, June 5, 2009
560
Supra, Section 2, Rule 31
1. Trial by commissioners may be resorted to upon order of the court, which
will then refer any or all issues when:
1.1 Parties agree in writing and the commissioner may either be agreed upon
or appointed by the Court
1.2 When parties do not consent, on court’s own motion or upon application of
either party, if may be directed in the following: (a) Trial of an issue of fact
requires examination of a long account (b) The taking of an account is
necessary for the information of the court before judgment or for carrying
judgment / or order into effect (c) A question of fact, other than upon the
pleadings arises upon motion or otherwise, in any stage of the case, or for
carrying a judgment or order into effect.561
3.1 He shall then have and exercise the power to: (a)Regulate the proceeding
before him (b)Do all acts and take all measures necessary or proper for the
efficient performance of his duties upon the order (c)Issue subpoenas (d) Swear
witnesses (e)Unless otherwise provided, rule upon the admissibility of
evidence563
3.2 The trial shall then proceed before the commissioner/s in all respects as it
would be held in court.
PROCEDURE
561
Supra, Section 1, Rule 32
562
Supra, Section 2, Rule 32
563
Supra, Section 3, Rule 32
564
Supra, Section 4, Rule 32
565
Supra, Section 5, Rule 32
3. If parties / counsel fail to appear, he may proceed ex-parte or in his
discretion, adjourn the proceedings, giving notice to the absent party or counsel
of the adjournment566
6. Upon completion of trial / hearing / proceeding – he shall file with the court
has report in writing upon the matters submitted to him by the order of reference.
When powers are not specified or limited, he shall set forth his findings of fact
and conclusions of law in his report. He shall also attach all exhibits, affidavits,
depositions, paper and transcripts of the testimonial evidence given 569
7. Notice is then given by the clerk to the parties of the filing of the report,
they shall then be allowed 10 days within which to signify objections to the
findings in the report, is so desired.
7.1 Objections to the report based on grounds available to the parties during
the proceedings before the commissioner, other than as to the findings /
conclusions, shall not be considered unless made before the commissioner.570
8. Upon expiration of the period, the report shall be set for hearing, after
which the court shall issue an order – adopting, modifying, or rejecting the report
in whole or in part or recommitting it with instructions or requiring the parties to
present further evidence to the commissioner571
9.1 Note that the findings of the commissioner are merely advisory and are
not absolutely binding upon the court.573
EXPENSES / COMPENSATION
566
Supra, Section 6, Rule 32
567
Supra, Section 8, Rule 32
568
Supra, Section 7, Rule 32
569
Supra, Section 9, Rule 32
570
Supra, Section 10, Rule 32
571
Supra, Section 11, Rule 32
572
Supra, Section 12, Rule 32
573
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
1. They shall be reasonable as warranted by the circumstances and are to
be taxed as costs against the defeated party or apportioned as justice requires574
1. The defendant is the party who may move for the dismissal of the action
after presentation by the plaintiff of evidence on the ground that upon the facts
and the law, plaintiff has shown no right to relief.575
2.1 The court should set a date for reception of the evidence of the defendant.
It should not proceed to grant the plaintiff relief.578
574
Supra, Section 13, Rule 32
575
Supra, Section 1, Rule 33
576
Quebral v Court of Appeals, 252 SCRA 353
577
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
578
Northwest Airlines v. Court of Appeals, 284 SCRA 408
579
Katigbak v. Sandiganbayan, 405 SCRA 558
3. It is an error on the part of the appellate court to order a remand, if
dismissal is elevated to it on appeal, it must decide on the evidence adduced by
the plaintiff.580
1. In both civil and criminal actions, the basis for both is the insufficiency of
evidence.
1. Can be had if the answer fails to tender an issue or otherwise admits the
material allegations of the complaint 581
580
Radiowealth Finance Company v Del Rosario, 335 SCRA 288
581
Supra, Section 1, Rule 34
2. An answer fails to tender an issue when it fails to comply with the
requirements of specific denial or is deemed to have admitted the allegations in
the complaint.582
2.1 An answer admits the material allegations when it expressly confesses the
truthfulness thereof or where it omits to deal with them all.
2. When a party moves for a judgment on the pleadings, and the same is
granted by the trial court, he hereby waives presentation of evidence. 583
582
Supra, Sections 8,9 and 11, Rule 8
583
Alfarero v. Sevilla, 411 SCRA 387
584
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
1. Either plaintiff or defendant may move for a summary judgment:
2.1 Example: Answer admits obligation but states that the amount is wrong or
less than that claimed. If plaintiff has proof that there is written acknowledgment
that as of a date or period prior to that of the filing, the defendant was aware of
the true amount, there can be summary judgment.
3. If movant is the defending party, he may file the motion at any time before
or after he files his answer on the ground that plaintiff’s claim against him is
sham or false 586
3.1 An issue is sham or false if it is not genuine. Genuine means that the
issue of fact is one that calls for the presentation of evidence.587
4. In either case, the motion must be filed along with supporting affidavits,
depositions or admissions.
5. The procedure for the filing and resolution of a motion for summary
judgment is as follows:
6. If after hearing, it finds that the motion filed by plaintiff justified, thus there
is no genuine issue as to any material fact, it will render summary judgment for
the plaintiff.
6.1 If not, it will deny, set the case for pre-trial, then trial.
585
Supra, Section 1, Rule 35
586
Supra, Section 2, Rule 35
587
Excelsa Industries v Court of Appeals, 247 SCRA 560
FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS
1.1 Certified copies of all papers / parts thereof shall be attached and served
therewith.588
2. If affidavits have been determined to the satisfaction of the court that they
are presented in bad faith or solely for the purpose of delay, the Court may
forthwith order the offending party to pay reasonable expenses which may have
been incurred by the other party, including attorney’s fees. It may also find /
adjudge, after hearing, that attending party / counsel are guilty of contempt.589
1. The aggrieved party may appeal the summary judgment as such is final
judgment as defined by Section 1, Rule 41.
1. There can be a partial summary judgment when the Court finds that a
judgment cannot be rendered upon the whole case or for all the reliefs because
there are controverted facts which require trial.
1.1 A partial summary judgment is not appealable and shall be taken together
with the judgment that a trial court will render after trial. Thus, it cannot be
executed.590
588
Supra, Section 5, Rule 35
589
Supra, Section 6, Rule 35
590
Supra, Section 4, Rule 35
issue as answer fails to tender an issue or otherwise admits material
allegations, while Summary Judgment is available when there is an apparent
issue but is a sham, fictitious or false (b) A Judgment on the Pleadings is based
exclusively on the pleadings (complaint / answer), while Summary Judgment is
based not only on pleadings but also on affidavits, depositions and admissions,
showing that except as to damages there is no genuine issue (c) A Judgment on
the Pleadings can be filed only after an answer has been filed, while in Summary
Judgment, there may or may not be an answer (d) A Judgment on the
Pleadings can only be had by the plaintiff, while in Summary Judgment, either
plaintiff or defendant may move for it (e) a motion for Judgment on the Pleadings
is required to be served on adverse party at least 3 days prior to the hearing,
while a motion for Summary Judgment requires service at least 10 days prior to
the hearing
WHAT IS A JUDGMENT
1. The requisites of a judgment or final order are: (a) It must be in writing (b)
It must be personally and directly prepared by the judge (c) It must state clearly
and distinctly the facts and the law on which it is based (d) It must be signed by
the judge (e) It must be filed with the clerk of court.593
1.1 Note that a judge who has been reassigned can pen a decision as long he
is still an incumbent judge.594
591
Macahilig v. Magalit, 344 SCRA 838
592
46 Am Jur 2d, Judgments
593
Supra, Section 1, Rule 36
594
ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
1.2 A decision penned by the judge after his retirement cannot be validly
promulgated and cannot acquire binding effect. In the like manner, a decision
penned during his incumbency cannot be promulgated after his retirement. When
a judge retires, all his authority to decide a case and write, sign and promulgate
the decision has also retired with him.595
1.3 It is not necessary that the judge who pens the decision is the one who
heard and tried the case.596
2. A decision that does not state clearly and distinctly the facts and law on
which it is based leaves the parties in the dark as to how it was reached and is
especially prejudicial to the losing party who is unable to pinpoint errors for
review upon an appeal. A decision without anything to support it is a patent
nullity.597A void judgment has no legal and binding effect, force or efficacy for any
purpose.598
2.1 There is no need though for a statement of all the facts and evidence
presented. What is required is that the factual and legal basis be distinctly and
clearly set forth.599
2.2 The rule is also applicable to the denials of a petition for review or of a
motion for reconsideration600 and the resolution of a motion to dismiss.601
2.3. Resolutions of the Supreme Court denying petitions for review of the Court
of Appeals are not decisions within the purview of the Constitution 602, neither are
minute resolutions.603 When such is issued, it is understood that the challenged
decision or order, together with the findings of fact and legal conclusions are
deemed sustained.604
595
Nazareno v Court of Appeals, 378 SCRA 28
596
Serna v Court of Appeals, 308 SCRA 527, Citibank NA v Sabeniano, GR 156132, October 12, 2006
597
Miguel v JCT Group Inc, 453 SCRA 529
598
Guevarra v Sandiganbayan, 454 SCRA 372
599
Chan v Court of Appeals, 457 SCRA 502
600600
Section 14, Article VIII, Constitution
601
Barrazona v RTC of Baguio, GR No. 154282, April 7, 2006
602
Novino v Court of Appeals, 8 SCRA 279
603
Commercial Union Assurance,Ltd. V Lepanto Consolidated Mining Company, 86 SCRA 79
604
Complaint of Rogelio Arrienda v Justices Puno, et al, 460 SCRA 1
contains only the dispositive portion and reserves the making of findings in a
subsequent judgment. This shall have no effect.605
PARTS OF A JUDGMENT
1. A judgment has two parts: (a) body of the decision or the ratio decidendi,
and (b) the dispositive portion or the fallo. It is the latter that is subject to
execution as it should settle and declare the rights and obligations of the party,
finally, definitively, and authoritatively. 608
1.1 In case of conflict, the fallo prevails, but if the inevitable conclusion from
the body is so clear that there is a mistake in the dispositive portion, the body will
prevail.609
1.1 The periods for a court to render judgment is within 24 months from date
of submission for decision for the Supreme Court, within 12 months for lower
collegiate courts, within 3 months for all other lower courts.610
1.1 The date of finality shall be deemed the date of entry and shall contain the
dispositive portion and signed by the clerk which a certificate that such judgment
/ final order has become final and executory.613
1.2 Note that date of entry retroacts to date of finality. Hence, both occur
simultaneously by operation of law.
2. Judgments that are final and executory can be corrected if they pertain to:
(a) clerical errors (b) nunc pro tunc, meaning then for now, entries or those
intended to show what the judicial action was but was then omitted from the
records614 (c) whenever circumstances transpire after finality rendering its
execution unjust615 and (d) in cases of special and exceptional nature as when
facts and circumstances transpire which render execution impossible or unjust,
when necessary to harmonize the disposition with prevailing circumstances.616
5. Petition for extraordinary relief- GR 167651, San Pablo vs. marina May 10,
2005
612
Castro v Malazo, 99 SCRA 164
613
Supra, Section 2, Rule 36
614
Briones v Vasquez, 450 SCRA 482
615
Siy v NLRC, GR No. 158971, January 25, 2006
616
Industrial Timber Corporation vs. Ababon, GR No. 164518, January 25, 2006
617
Magbanua v. Uy, 458 SCRA 185
1. They may be given for or against one or more several plaintiffs or for or
against one or more several defendants.
2. Courts, when justice demands can require parties on each side to file
adversary proceedings as between themselves to determine their ultimate rights /
obligations.618
4. Separate judgments may be rendered when more than one claim for relief
is presented, the court at any stage – upon determination of the issues material
to a particular claim and all counter claims arising therefrom – may render a
separate judgment disposing of the claim and proceeding with the others but, it
may stay execution or enforcement until rendition of subsequent judgment/s and
may prescribe such conditions to secure benefit thereof to the party in whose
favor the judgment is rendered.620 An example is when causes of action have
been joined
5. Judgment against entity without juridical personality it shall set forth the
individual names / proper names if known of persons composing it.621
WHEN FILED
1. A motion for new trial or reconsideration may be filed within the period for
taking an appeal.622
1.1 Fraud should be extrinsic or collateral, which refers to such acts that
prevents a party from having a trial / presenting his case in court. It refers to all
618
Supra, Section 3, Rule 36
619
Supra, Section 4, Rule 36
620
Supra, Section 5, Rule 36
621
Supra, Section 6, Rule 36
622
Supra, Section 1, Rule 37
kinds of deceptions, whether through insidious machination, manipulation or
concealment or misrepresentation that leads another party to error.623 Examples
are: false promise to compromise or connivance of lawyer with adverse party.
This does not include intrinsic fraud or acts of a party at trial that prevents fair
determination. Examples are: perjury, falsification.
1.3 Mistake refers to some unintentional act, omission, or error arising from
ignorance, surprise, imposition, or misplaced confidence. It pertains generally to
mistake of fact, not of law.625Examples are failure to answer / act because he
believed it unnecessary because of a compromise or other document.
2. Newly Discovered Evidence, which the aggrieved party could not with
reasonable diligence, have discovered or produced at the trial and which would
probably alter the result.
2.1 Hence, the requisites are: (a)Evidence is discovered after trial (b)Such
could not have been discovered and produced at the trial with reasonable
diligence (c) Evidence is material, not cumulative, corroborative, or impeaching,
and is of such weight that, if admitted, could probably change the judgment.627
1. The grounds for a motion for reconsideration are: (a) Award of excessive
damages (b) Insufficiency of evidence to justify the decision or final order (c)
Decision / final order is contrary to law
623
Maestrado v Court of Appeals, 327 SCRA 678
624
Jarco Marketing v Court of Appeals, 321 SCRA 375
625
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
626
Mckee v Intermediate Appellate Court, 211 SCRA 517
627
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
1. It shall be made in writing stating the ground/s, written notice of which
shall be served by the movant on the adverse party.
4.1 If not, the motion is considered a pro-forma motion. It does not toll the
reglementary period of appeal.629
4.2 Note also that such a motion without notice of hearing and proof of
service has the same effect630
1. Court may either deny or set aside the judgment or final order and grant a
new trial631
1.2 Note that a motion for new trial is an omnibus motion, thus it should
include all grounds then available as those not included are deemed waived.
2. IF granted, the effects are (a) original order / judgment is vacated (b) the
action shall stand trial de novo (c) recorded evidence, insofar as material or
628
Yap v Tanada, 163 SCRA 464
629
Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
630
Firme v Reyes, 92 SCRA 713
631
Supra, Section 3, Rule 37
632
Supra, Section 5, Rule 37
competent to establish the issues, shall be used at the new trial without need to
for it to retaken.633
1. Court may deny or amend its judgment / final order if it finds that
excessive damages are awarded, or that it is contrary to the evidence or the
law634
1. The periods for resolving the motions are: (a) MTC / RTC within 30 days
from the time it is submitted for resolution636 (b) Court of Appeals within 60 days
after if declares it submitted for resolution (c) Supreme Cour- no period is
prescribed
633
Supra, Section 6, Rule 37
634
Supra, Section 3, Rule 37
635
Hongria v Hongria-Juarde, 425 SCRA 504
636
Supra, Section 4, Rule 37
637
Barnes v Reyes, 411 SCRA 538
GROUNDS UPON WHICH IT IS TO BE BASED
1.1 These grounds likewise support the petition when there is a failure to
take an appeal.
2. The object to the petition is that the judgment, order, or proceeding be set
aside or that the appeal be given due course.
3. The other ways by which a final and executory judgment may be set aside
is by Petition for Certiorari under Rule 65 and by Annulment of Judgment under
Rule 47.639
638
Supra, Sections 1 and 2, Rule 38
639
Arcelona v Court of Appeals, 280 SCRA 20
640
Torno v Intermediate Appellate Court, 166 SCRA 742
641
Alquesa v Cavada, Jr. 3 SCRA 428
642
Valencia v Court of Appeals, 352 SCRA 72
643
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
644
Supra, Section 3, Rule 38
1.1 A few days after expiration of the 60 day period is not entirely fatal as long
as it is still filed within the 6 months period.645
1.2 But if it is a judgment by compromise, the 6 months period runs from date
of rendition, because a judgment upon a compromise is immediately executory
and considered to have been entered on the date it was approved by the trial
court.646
1.3 The 6 months period is reckoned from entry of judgment or final order, not
from its rendition.647 The phrase “from learning” means from notice of judgment
or final order648
2. It is to be filed in the same case and in the same court where the judgment
/ final order was entered or where proceeding is taken.
2.1 A petition for relief from judgment is not an available remedy in the
Supreme Court nor in the Court of Appeals. This is the rule notwithstanding the
statement that a party in any court may file a petition. The phrase applies only to
a Municipal Trial Court or a Regional Trial Court.649
PROCEDURE
645
Mago v Court of Appeals, 303 SCRA 600
646
Manipor v Ricafort, 407 SCRA 298
647
Bayog v Natino, 258 SCRA 378
648
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
649
Pucson Jr. vs. MRM Philippines, Inc. G.R. No. 182718, September 26, 2008
650
Supra, Section 4, Rule 38
2.2 However, such injunction shall not operate to discharge or extinguish any
lien which the adverse party may have acquired upon property of the
petitioner.651
4. Court hears and may grant relief if the allegations are true or deny if not
true.
4.1 If granted, the assailed final order / judgment / proceeding is set aside and
proceedings taken as if a timely motion for new trial has been granted. 652 There
are in effect two hearings: the first is as to the merits of the petition, the second is
as the merits of the principal case.
4.2 If denied, the order is not appealable653 but may be subject of certiorari
under Rule 65.
5. Court hears the case as if a timely motion for new trial or reconsideration
has granted.
5.1 If the subject is denial of an appeal, the lower court shall be required to
give due course to the appeal and elevate the records as if a timely and proper
appeal has been made.654
1. They are distinguished as follows: (a) a motion for new trial is filed before
judgment becomes final, while a petition for relies if filed after a judgment
becomes final (b) a motion for new trial applies to judgments / final orders, while
a petition for relief includes proceedings (c) the grounds for a motion for new trial
includes newly discovered evidence, while a petition for relief is limited to FAME
(d) a motion for new trial is filed within the period for perfecting an appeal, while
a petition for relief is filed within 60 days from knowledge but within 6 months
from entry of judgment (e) a motion for new trial if denied allows an appeal, while
a petition for relief from judgment does not allow an appeal (f) a motion for new
trial is a legal remedy, while a petition for relief is a remedy in equity (g) a
651
Supra, Section 5, Rule 38
652
Supra, Section 6, Rule 38
653
Supra, Section 1(b), Rule 41
654
Supra, Section 7, Rule 38
motion for new trial requires no verification, while a petition for relief needs to be
verified.
EXECUTION DEFINED
655
Cagayan De Oro Coliseum v Court of Appeals, 320 SCRA 731
656
Ayo v Violago Isnani, 380 SCRA 543
1.1 It also issues when appeal is duly perfected and finally resolved.
1.2 It may be applied for in the court of origin, on motion of judgment obligee –
submitting certified true copies of the judgment / final orders / orders sought to be
enforced and entry thereof, with notice to the adverse party. There is no need for
return of records.
1.3. It may also be applied for in the appellate court, on motion in the same
case, when the interest of justice so requires, direct the court of origin to issue
the writ of execution in the event of the refusal of the court of origin to issue the
writ. 657
2.1 It is filed in the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as the case may
be, at the time of the filing of the motion.659 The court, may in its discretion, order
execution of judgment / final order even before the expiration of the period to
appeal.
2.2 If the trial court has lost jurisdiction, it is to be filed with the appellate court.
A court loses jurisdiction when there is perfected appeal and the period to appeal
has expired. When a record on appeal is required, it loses jurisdiction over the
subject of the appeal upon perfection of the appeal and expiration of the period
to appeal.
2.3 The requisites of execution pending appeal are: (a) A motion by the
prevailing party with notice to the adverse party (b)There must be good reason
for execution pending appeal (c) The good reason must be stated in a special
order. They must constitute superior circumstances demanding urgency which
will outweigh the injury or damage should the losing party secure a reversal of
the judgment on appeal.660
657
Supra, Section 1, Rule 39
658
Supra, Section 2, Rule 39
659
Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
660
Jaca v Davao Lumber Company, 113 SCRA 107
2.4 Examples of good reasons are: proven insolvency of the debtor661
deterioration of the goods662, prevailing party’s inability to enjoy the decision, or
it’s becoming illusory. In a recent case, old age was found to be a good reason663
2.5 Stay of discretionary execution can be had upon approval by the proper
court of a sufficient supersedeas bond filed by the party against whom it is
directed conditioned upon performance of the judgment or final order allowed to
be executed in case finally sustained in whole in part. The bond may then be
proceeded against on motion with notice to the surety664 but, the mere filing of a
bond by a successful party allow execution pending appeal nor constitute good
ground.665
3.2 Judgments in Forcible Entry / Illegal Detainer, if against the defendant are
immediately executory.668 The same is true of a judgment by compromise.669
661
Lao v Mencias, 21 SCRA 1021
662
Intramuros Tennis Club, Inc. v Court of Appeals, 341 SCRA 90
663
FEBTC v Toh, Sr. 404 SCRA 590
664
Supra, Section 3, Rule 39
665
International School v. Court of Appeals, 309 SCRA 474
666
ITC v PTA, 341 SCRA 90
667
Supra, Section 4, Rule 39
668
Supra, Section 19, Rule 70
669
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
670
Supra, Section 2 (b), Rule 39
671
Supra, Section 5, Rule 39
4.2 The phrase “or otherwise” applies to reversal after a petition for relief has
been granted under Rule 38 and upon a favorable judgment in a petition for
annulment of judgment under Rule 47
1. Only judgments or final orders, or one which disposes of the whole subject
matter or terminates a particular proceeding or action, leaving nothing to be done
but to enforce by execution that which has been determined.
1.1 Distinguishing a “final judgment or order” from one which has become
“final and executory”. A final judgment is one that finally disposes of a case,
leaving nothing more to be done by the court in respect thereto. It is an
adjudication on the merits. Once rendered, the task of the court is ended, as far
deciding the controversy or determining rights and liabilities of litigants. Nothing
more is to be done but to await the parties’ next move, and ultimately, to cause
execution of the judgment once it becomes final and executory. 673
1.2 An exception for the need to await a final judgment or order is a judgment
for support pendente lite.674 The principal case in this instance still continues.
1.4 Execution may however be denied when: (a) judgment has been complied
with voluntarily676(b) When the judgment has been novated (c) When a petition
for relief has been filed and a writ of injunction is granted (d) When execution is
sought more than five years from entry of judgment (e) When execution is sought
against exempt property (f) when the judgment is conditional
672
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
673
Denso Philippines, Incorporated v IAC, 148 SCRA 280
674
Supra, Section 5, Rule 61
675
Fideldia v. Songcuan, 465 SCRA 218
676
Cunanan v Court of Appeals, 25 SCRA 263
677
Supra, Section 6, Rule 39
2. The revived judgment may also be enforced by motion within 5 years from
date of entry, and thereafter by action before it is barred by the statute of
limitations. The purpose of the action is not to re-examine the issues as the
cause of action is the judgment itself and not the merits of the original action.678
The proper venue of an action for revival of judgment depends on the determination of
whether the present action for revival is a real or personal action.679
3. Reconciling the actions upon a judgment under Article 1144 of the Civil
Code, which prescribes in 10 years, there is no conflict as the Rules of Court
refer to the manner of execution of the judgment.
3.1 Note that this is not applicable in land registration cases or other special
proceedings but only in civil actions.
4. There are however instances when judgment / final order can still be
enforced by motion even after lapse of 5 years when the delay is caused or
occasioned by the actions of the judgment obligee or incurred for his benefit or
advantage.680
4.1 The liberal construction of the rule resulting in non inclusion of the period
of delay occasioned by the acts of the judgment obligee in the counting of the
period was resorted to as strict adherence to the letter of the law would result in
absurdity and manifest injustice.681
1. A writ of execution shall (a) Issue in the name of the Republic of the
Philippines from the Court that granted the judgment (b) State the name of
court, case number, title, and dispositive portion (c) Require the sheriff or other
proper officer to whom it is directed to enforce the writ according to its terms.
678
Laperal v Ocampo, 410 SCRA 339
679
Infante v Aran Builders, 531 SCRA 123 (August 24, 2007)
680
Camacho v Court of Appeals, 287 SCRA 611
681
Republic v Court of Appeals, 260 SCRA 344
recited in the writ (d)if it be for delivery of the possession of real / personal
property, to deliver the possession of the same, describing it, to the party entitled
thereto and to satisfy any costs, damages, rents, profits covered by the judgment
out of the personal property of the person against whom it was rendered, and if
no sufficient personal property be present, out of real property (e) in all cases,
the writ shall specifically state the amount of interest, costs damages, rents,
profits due as of the date of issuance of the writ aside from the principal
obligation under judgment682
2. Satisfaction by Levy, if not paid in cash, the sheriff shall levy on the
properties of judgment obligor of any kind / nature which may be disposed of for
value and not otherwise exempt from execution.
2.1 The obligor is given the option to immediately choose which property or
part thereof may be levied upon to satisfy judgment. If not, sheriff shall levy on
personal properties first, if any, then on real properties if insufficient to answer for
judgment.
2.2 Sheriff can only sell sufficient portion of the personal / real property levied
upon when there is more property then is sufficient to satisfy judgment, on so
much of it to satisfy judgment is to be sold. The conduct of the sale shall be the
same as that of execution for the sale of property.
2.3 The effect of a levy is that it shall create a lien in favor of the judgment
obligee over the right, title and interest of the judgment obligor in such property at
the time of levy, subject to liens / encumbrances then existing. Hence, the effect
then on 3rd persons will be dependent on when their liens / encumbrances, if any,
was annotated or interposed.683
682
Supra, Section 8, Rule 39
683
Supra, Section 12, Rule 39
2.4 If a levy is made beyond the period of 5 years from entry of judgment. The
same is not valid as lifetime or a writ of execution is 5 years from date of entry of
judgment.684
3. Garnishment of debts and credits. The officer may levy on debts due the
judgment obligor and other credits. Examples: bank deposits, financial interests,
royalties, commissions, and other personal property. These are not capable of
normal delivery and are in the possession and control of third parties.
3.1 Levy shall be made by serving notice on the person owing such debts or
having in his possession or control such credits to which the judgment obligor is
entitled.
3.2 The garnishee, shall then make a written report to the court from service
of notice stating whether or not the judgment obligor has sufficient funds or
credits to satisfy the judgment. The garnished amount shall then be delivered
directly to the judgment obligee within 10 working days from service of notice on
him requiring delivery, less lawful fees to be paid directly to the Court.
3.3 If there are 2 or more garnishees, the judgment obligor shall have the right
to indicate the garnishee/s who shall deliver, otherwise it shall be the choice of
the judgment obligee.685
684
Supra, Section 14, Rule 39
685
Supra, Section 9, Rule 39
686
Supra, Section 14, Rule 39
687
Supra, Section 10, Rule 39
the court in lieu of directing a conveyance thereof may by an order divest title and
vest it in others, which shall have the force and effect of a conveyance executed
in due form of law.
2.1 The contents of the notice are the place, date exact time not earlier than
9:00 am or later than 2:00 pm. The place may be agreed upon. If not agreed
upon: (a) Real/Personal property not capable of manual delivery shall be sold at
the Office of the Clerk of Court of Regional or Municipal Trial Court issuing the
writ (b) If capable of manual delivery, where personal property is located.
2.2 If there is a sale without notice, the officer is liable for punitive damages in
the amount of PHP 5,000.00 in addition to actual damages sustained by injured
person. If the notice is defaced or removed before the sale / satisfaction of the
judgment, the person so defacing or removing shall be liable to pay PHP
5,000.00 plus actual damages. These are recoverable upon motion.689
3. The manner of sale shall be by public auction. This applies also when
property is levied upon.
3.1 Sale is made to the highest bidder, to start at the exact time stated in the
notice.
3.2. If sufficient property has been sold, no more shall be sold and any excess
property / proceeds shall be delivered to the judgment obligor or his
representative, unless otherwise directed by the court. Like when other debts due
to be paid
688
Supra, Section 15, Rule 39
689
Supra, Section 17, Rule 39
3.3 If sale is of real property consisting of several known lots, they must be
sold separately or if claimed by a 3rd person, he may require it to be sold
separately.
3.4 Personal property capable of manual delivery must be sold within view of
those attending and in such parcels so as to bring the highest price.
3.5 The judgment obligor, if present may direct the order in which the property
is to be sold when such property consists of several parcels / known lots which
can be sold to advantage separately.
3.8 When a purchaser refuses to pay , the officer may again sell the property
to the highest bidder and shall not be responsible for any loss occasioned
thereby, like when it is resold for less. But, the court may order the refusing
purchaser to pay unto the Court such loss, and punish him with contempt if he
disobeys. Payment shall inure to the benefit of party entitled to execution, unless
he has been satisfied, in which case to the judgment obligor. In addition, officer
may thereafter reject all bids of such purchaser.692
3.9 The judgment obligee can be a purchaser, and if no 3rd party claim has
been filed, he need not pay the amount if it does not exceed the amount of his
judgment. If it does he shall only pay the excess. 693
3.10 If the judgment obligor pays the judgment before sale, the sale is
prevented by the payment required by execution and cost incurred therein 694
3.11 A third party claimant is one who claims title to, or right of possession of
the property levied upon by the sheriff. Note that there may be a 3rd party
claimant in execution, preliminary attachment and replevin.
3.12 A third party claimant can file a 3rd party claim or a terceria by executing
an affidavit showing his title thereto, or right of possession over the property
690
Supra, Section 19, Rule 39
691
Supra, Section 22, Rule 39
692
Supra, Section 20, Rule 39
693
Supra, Section 21, Rule 39
694
Supra, Section 18, Rule 39
being levied upon, stating therein the grounds of such title or right, serving a copy
thereof to the sheriff and judgment obligee. If filed, sheriff is not obliged to
proceed unless the judgment obligee files an indemnity bond in an amount not
less than value of the property. No action on the bond may enforced by the third
party claimant unless filed within 120 days from date of the filing of the bond. If
bond is filed, a 3rd party claimant may vindicate his claim within the period or he
may institute a separate action to vindicate his claim but nothing also prevents
the judgment obligee from claiming damages in the same or separate action
against a 3rd party claimant who files a frivolous / spurious claim. Note that if writ
is issued in the name of the Republic of the Philippines, no bond is required.
Officer is to be represented by the Solicitor General, and if damages are
assessed, it is to be paid out of the National Treasury. 695
4.1 Real Property – a certificate of sale is given stating the description of the
property, price paid for each distinct lot / parcel, whole price paid and a statement
that the right of redemption shall or will expire one year from date of registration
of the certificate696 making mention of the existence of a 3rd party claim, if any.
697 Note: the requirement of mentioning a 3 rd party claim, if any, applies also to
4.2 The parties entitled to redeem are: (a) Judgment obligor, or his
successor in interest, in whole or any part of the property, or (b) A creditor having
a lien by virtue of an attachment, judgment, mortgage on the property sold or on
some part thereof, subsequent to the lien under which the property is sold. Such
redeeming creditor is called a redemptioner.698
4.3 The judgment obligor / redemptioner may redeem the property from the
purchaser at any time within 1 year from registration by paying the amount of
purchase, plus 1% interest per month at the time of redemption, together with the
amounts of assessments / taxes paid at the purchase and interest on the same
at the same rate, and, if the purchaser be also a creditor having a prior lien to
that of the redemptioner, other than the judgment, the amount of the lien plus
interest.
4.4 Property so redeemed may be redeemed within 60 days after the last
redemption upon payment of the sum paid, w/ 2% interest thereon plus taxes /
assessments paid, and amount of liens held by redemptioner prior to his own,
and so forth.
695
Supra, Section 16, Rule 39
696
Supra, Section 25, Rule 39
697
Supra, Section 26, Rule 39
698
Supra, Section 27, Rule 39
4.5 Written notice however of redemption must be given to the officer who
made the sale and duplicate with the Registry of Deeds and if any assessments /
taxes / prior liens are paid, notice must also be given to above parties otherwise,
redemption can be effected without paying taxes / assessments / liens. Note:
Proof required of redemption under Section 30
4.7 If the Judgment Obligor redeems, -He must make all the payments
required to effect a redemption by a redemptioner. Thereupon, no further
redemption is allowed and he is restored to his estate. The person upon whom
redemption payment is made shall execute a Certificate of Redemption after
payment. Certificate is then filed with the Office of the Registry of Deeds.700
4.8 Pending redemption, use of the real property shall remain with the
person in possession at the time of sale or entitled to possession afterwards may
continue to use it in the same manner as it was previously used, or to use in the
ordinary course of husbandry or to make necessary repairs to buildings thereon
while he occupies the property, but the court in proper cases, may restrain the
commission of waste on the property by injunction on the application of the
purchaser / judgment obligee with or without notice. 701
4.9 Rents, earnings and income shall belong to the judgment obligor until the
expiration of his period for redemption. Neither shall the purchaser or judgment
obligee be entitled to the same when such property is in the possession of a
tenant.702
4.10 If no redemption is made within one year from date of registration, the
purchaser is entitled to possession and conveyance or if so redeemed –
whenever 60 days has elapsed and no other redemption is made and the time for
redemption has expired, the last redemptioner is entitled to possession and
conveyance but, in all cases the judgment obligor is entitled to have the entire
period of one year.
4.11 Officer shall execute the deed / or his successor in interest with the same
effect. Once done, the purchaser / redemptioner shall be substituted to and
acquire all the rights title and interest and claim of the judgment obligor to the
property as of the time of the levy. Possession shall then be given unless
699
Supra, Section 30, Rule 39
700
Supra, Section 29, Rule 39
701
Supra, Section 31, Rule 39
702
Supra, Section 32, Rule 39
property is held by a 3rd party adverse to the judgment obligor.703 Manner of
effecting transfer of possession is by writ of possession.704
4.12 If the sale is rendered ineffective as when the purchaser of real property
or his successor in interest fails to recover possession or is evicted therefrom as
a consequence of: irregularities in the proceedings concerning the sale, judgment
has been reversed or set aside pursuant to a petition for relief,property is exempt
from execution , or that 3rd person has vindicated his right to the property. He
may on motion in the same action or in a separate action recover from the
judgment obligee the price paid with interest, or so much thereof as has not been
delivered to the judgment obligor or he may on motion have the judgment revived
in his name, if a redemptioner for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor. The judgment revived
shall have the same force and effect as an original judgment would have as of
the date of revived and no more.705
4.14 If Incapable of Manual Delivery, the officer must execute and deliver a
certificate of sale and such shall convey all rights to purchaser as of the date of
levy on execution or preliminary attachment. 707
1. The officer shall not destroy, demolish or remove except upon special
order of the court, issued upon motion / hearing and after the judgment obligee
had failed to remove within a reasonable time fixed by the rules.
703
Supra, Section 33, Rule 39
704
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
705
Supra, Section 34, Rule 39
706
Supra, Section 23, Rule 39
707
Supra, Section 24, Rule 39
EXECUTION IS FOR DELIVERY OF PERSONAL PROPERTY
1. The officer shall take possession and forthwith deliver it to party entitled
thereto and satisfy any judgment for money as herein provided. 708
1.1 If such party / person disobeys, they may be punished for contempt.709
(a) The judgment obligor’s family home as provided by law, or the homestead
in which he resides, and land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily used by him in his ordinary
occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding
jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used
for that purpose by the judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding one hundred thousand pesos;
708
Supra, Sections 9 and 10, Rule 39
709
Supra, Section 11, Rule 39
(h) One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of which
he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for his
personal services within the four months preceding the levy as are necessary for
the support of his family;
(l) The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government;
1.3 Death of judgment obligor after execution is actually levied upon any of his
property, the same may be sold for the satisfaction of the judgment obligation
and the officer must account to the executor or administrator for any surplus, if
any. 712
710
Supra, Section 13, Rule 39
711
Gomez v Gealone, 203 SCRA 474
712
Supra, Section 7, Rule 39
1. There is a right to contribution or reimbursement if: more than a due
portion of the judgment is satisfied out of the proceeds of the sale of the property
of one of them, or, one pays, without sale, more than his proportion.
2.1 The service of the order shall bind all credits due the judgment obligor and
all money / property of the judgment obligor in the possession / control of the
person, corporation or juridical entity.
2.3 Obligor of judgment obligor may thereafter pay after writ of execution on
property has been issued, the amount of his debt or so much thereof as may be
necessary to satisfy the judgment and the sheriff’s receipt shall constitute
sufficient discharge for the amount so paid or directed to be credited by the
judgment obligee on the execution716
713
Supra, Section 35, Rule 39
714
Supra, Section 36, Rule 39
715
Supra, Section 37, Rule 39
716
Supra, Section 39, Rule 39
717
Supra, Section 38, Rule 39
3. Order for application of property and income to satisfaction of judgment. –
it may include his property or money due the judgment obligor, not exempt from
execution, in his hands or other person, corporation or juridical entity may be
applied to satisfaction of judgment subject to any prior rights over such property.
3.1 Also, if upon investigation of current income and expenses, the earnings
of judgment obligor are more than necessary for the support of his family, the
court may order that judgment be paid by monthly installments, failing in which
he may be punished for indirect contempt.718
4.1 Thereafter, there can be a sale by the receiver upon order of ascertainable
interest (or the real estate itself) of a judgment obligor in real estate in the place
where proceedings are had as mortgagor / mortgagee or otherwise and if his
interest can be ascertained without controversy, the receiver may be ordered to
sell and convey such interest or real estate or the interest of the obligor therein.
All proceedings to be approved by the Court before execution of the deed.720
718
Supra, Section 40, Rule 39
719
Supra, Section 41, Rule 39
720
Supra, Section 42, Rule 39
721
Supra, Section 43, Rule 39
722
Supra, Section 44, Rule 39
723
Supra, Section 45, Rule 39
1. The effect of a judgment / final order rendered by a court in the
Philippines, having jurisdiction to pronounce the same.
(b) Other cases, judgment / final order is with RESPECT TO THE MATTER
DIRECTLY ADJUDGED OR AS TO ANY MATTER THAT COULD HAVE BEEN
RAISED IN RELATION THERETO is CONCLUSIVE BETWEEN THE PARTIES
AND THEIR SUCCESSORS IN INTEREST BY TITLE SUBSEQUENT TO THE
COMMENCEMENT OF THE ACTION OR SPECIAL PROCEEDING LITIGATING
FOR THE SAME THING, UNDER THE SAME TITLE AND IN THE SAME
CAPACITY.725
(c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former judgment / final
order which appears on its face to have been so adjudged or which was actually
and necessarily included therein or necessary thereto.726
1.1 Paragraphs (a) and (b) are illustrative of the concept of res judicata that is
also known as “bar by prior judgment”. This exists when between the first case
where judgment is rendered, and the second case where such judgment is
invoked, there is identity of parties, subject matter, and cause of action. When all
three are present, the judgment on the merits rendered in the first constitutes an
absolute bar to the subsequent action.
724
Supra, Section 47 (a), Rule 39
725
Supra, Section 47 (b), Rule 39
726
Supra, Section 47 (c), Rule 39
727
Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
be raised in any future case between the same parties involving a different cause
of action.728Once a case is decided with finality, the controversy is settled and the
matter is laid to rest. The prevailing party is entitled to enjoy the fruits of victory
while the other party is obliged to respect the court’s verdict and comply with it. 729
1.4 The doctrine of “ The law of the case” states that whatever has once been
irrevocably established as the controlling legal rule of decision between the same
parties, whether correct on general principles or not, so long as the facts on
which the decision was predicated continue to be the facts of the case before the
court.730 This principle generally finds application in cases where an appellate
court passes on a question and remands the case to the lower court for further
proceedings. The question thus settled by the appellate court becomes the law of
the case upon a subsequent appeal. Consequently, the court reviewing the
succeeding appeal will not re-litigate the case but instead apply the ruling in the
previous appeal.731
728
Tan v Court of Appeals, 363 SCRA 444
729
Siy v NLRC, GR No. 158971, August 25, 2005
730
Boiser v NTC, 169 SCRA
731
RCPI v Court of Appeals, GR No. 139763, April 26, 2006
732
Supra, Section 48, Rule 39
733
Supra, Section 46, Rule 39
APPEALS
PRELIMINARIES
2. The right to appeal is not part of due process but is a mere statutory
privilege that has to be exercised only in the manner and in accordance with the
provisions of law.735
3. Where the judgment or final order is not appealable, the aggrieved party
may file the appropriate civil action under Rule 65. An example is a judgment in
summary proceeding case under the Family Code.
4. On appeal, a party may not change his theory of the case. 736 Hence,
defenses not pleaded in the answer may not for the first time be raised on
appeal.737
4.1 A basic appellate rule is that the court shall not consider no error unless
stated in the assignment of errors.738
4.2 The exceptions to the rule are: (a) it is an error that affects jurisdiction over
the subject matter (b) it is an error that affects the validity of the judgment
appealed from (c) it is an error that affects proceedings (d) it is an error closely
related to or dependent on an assigned error and properly argued in the brief, or
(e) it is a plain and clerical error.
4.3 The Supreme Court is clothed with ample authority to review matters,
even if they are not assigned as errors on appeal if it finds that their
consideration is necessary in arriving at a just decision of the case.739
5.1 Without payment, the court does not acquire jurisdiction over the subject
matter of the action and the decision sought to be appealed becomes final and
executory.740
734
Association of Integrated Security Force of Bislig-ALU v Court of Appeals, 467 SCRA 483
735
Cu-Unjieng v Court of Appeals, 479 SCRA 594
736
Supra, Section 15, Rule 44
737
Commissioner of Internal Revenue v Migrant Pagbilao Corporation, GR No. 159953, October 12, 2006
738
Supra, Section 8, Rule 51
739
Boston Bank of the Philippines v Manalo, GR No. 158149, February 9, 2006
740
Regalado v Go, GR No. 167988, February 6, 2007
5.2 However, the rule is qualified: (a) the failure to pay appellate docket fees
within the reglementary period only allows discretionary dismissal, not automatic
dismissal of the appeal, (b) such power should be used in the exercise of the
court’s sound discretion in accordance with the tenets of fair play and with great
deal of circumspection considering all attendant circumstances.
2. In the appeal, the case title remains, but party appealing is designated as
appellant, while the adverse party is designated as the party-appellee.741
2. Note the “fresh period rule” that is now applicable to an appeal under Rule
40, Rule 41, Rule 43 and Rule 45, which allows a party intending to appeal
another 15 days from receipt of an order denying a motion for reconsideration or
new trial to file an appeal 743
a. Full name of the parties stated in the caption including the judgment / final
order from which appeal is taken
741
Supra, Section 1, Rule 40
742
Supra, Section 2, Rule 40
743
Neypes v Court of Appeals, GR 141524, September 14, 2005
b. In chronological order, copies of all pleadings, petitions, motions, and all
interlocutory orders as are related to the appealed judgment / final order for
proper understanding of the issue.
3. Note that the requirement for a Approval of record on appeal745 – the trial
court may approve it, if no objection is filed by the appellee – or upon its motion /
appellee direct its amendment by the inclusion of omitted matters which are
deemed essential to the determination of the issue of law or facts involved in the
appeal.If amendment is ordered, which the appellant must comply with within the
period stated, any extension or if none, within 10 days, submitting the redrafted
record for the approval of the Court. Where both parties are appellants, they may
file a joint record on appeal.746
WHEN PERFECTED
1.1 If by notice of appeal, it is perfected upon the filing of the notice in due
time. The court loses jurisdiction upon perfection and expiration of the time of
appeal of other parties.
2. In either case, prior to transmittal of the records, the court may issue
orders: (a)protection and preservation of the rights of the parties not involving
any matter litigated by the appeal (b)approve compromises (c) permit appeals of
744
Supra, Section 6, Rule 41
745
Supra, Section 7, Rule 41
746
Supra, Section 8, Rule 41
indigent litigants (d)order execution pending appeal (e) allow withdrawal of
appeal.747
3. In both cases, docket fees and other fees are also to be paid to the clerk
of court of the court that rendered judgment. Proof payment of the same shall be
transmitted to the appellant court together with the records / record on appeal. 748
3.1 Late payment of docket fees may be admitted when a party shows a
willingness to abide by the Rules by immediately paying the docket fee six days
after filing a notice of appeal and beyond the period for perfecting an appeal.749
3.2 Where delay in the payment of docket fee was not due to a desire to delay
or defeat the ends of justice, late payment thereof which causes no prejudice to
anyone should not result in the dismissal of the appeal.750
2. When an appeal is taken from an order of the lower Court dismissing the
case without trial on the merits, the Regional Trial Court may affirm or reverse it
as the case may be:
747
Supra, Section 4, Rule 40
748
Supra, Section 5, Rule 40
749
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
750
Lopez v Court of Appeals, 75 SCRA 401
751
Supra, Section 6, Rule 40
752
Supra, Section 7, Rule 40
2.1 In case it is affirmed and ground of dismissal is lack of jurisdiction over the
subject matter of the case, the Regional Trial Court, if it has jurisdiction, shall try
the case on the merits as if the case was originally filed with it. In case of
reversal, it shall be remanded back for further proceedings.
2.2 If it was tried on the merits, without jurisdiction, the Regional Trial Court on
appeal shall not dismiss the case if it has original jurisdiction, but shall decide the
case in accordance with Section 7, without prejudice to the admission of
amended pleadings and additional evidence in the interest of justice. 753
(b) Order denying a petition for relief from judgment or similar motion.
Certiorari under Rule 65 is remedy
753
Supra, Section 8, Rule 40
754
A.M. No. 07-7-12-SC
755
Supra, Section 1, Rule 41
2. That declaration of presumptive death is not appealable by the state or
the other party.
1.1 The period of ordinary appeal is 15 days from notice of judgment / final
order appealed from. If requiring a record on appeal, it is 30 days. Said periods
are interrupted by a motion for new trial or reconsideration but no extension of
time for their filing is allowed. Note that in habeas corpus cases the period is 48
hours from notice of judgment or final order758 Note also the application of the
“fresh period rule”.
1.2 Appellate court docket fees / lawful fees shall be paid within the period for
taking an appeal to the clerk of court of the court that rendered judgment but
failure to pay is a ground for dismissal of the complaint759
756
Article 41, Family Code
757
Supra, Section 2, Rule 41
758
Supra, Section 3, Rule 41
759
Supra, Section 13, Rule 41
760
Supra, Section 5, Rule 41
761
Supra, Sections 6,7,8, Rule 41
762
Supra, Section 9, Rule 41
763
Supra, Section 10, Rule 41
1.5 If efforts to complete fail, it shall be indicated in the letter of transmittal
which exhibits / transcripts are not included, the reasons why they were not
transmitted and the steps taken to make them available.
1.6 It is likewise required that the transcripts be transcribed764 and that the
transmittal to include proof of payment of docket fees.
1.7 Prior to transmittal of record / record on appeal, the court may motu propio
or on motion to dismiss the appeal for having been take out of time or for non
payment of docket and other lawful fees within the reglementary period.765 If
transmitted already, the Court of Appeals may dismiss.
1.8 Other procedural requirements and disposition of the appeal are governed
by Rule 44:
1.9 The title of the case shall remain, party appealing shall be referred to as
appellant / adverse party-appellee.766 Counsel / guardians ad litem of parties
shall likewise be considered as such in Court of Appeals, when others appear or
are appointed, notice shall be filed and furnished adverse parties.767
1.10 If the records are not transmitted to the Court of Appeals within 30 days
after perfection of the appeal, either party may file a motion with the Regional
Trial Court, with notice to the other, for transmittal.768
1.11 Upon receipt by the Court of Appeals, the clerk shall docket the case and
notify the parties. If appeal is by record on appeal, within 10 days from receipt of
notice, appellant must file with the clerk of court 7 clearly legible copies of
approved record on appeal and proof of service thereof to adverse party of 2
copies. Any unauthorized, alteration, omission or addition shall be ground for
dismissal of the appeal.769
1.12 The Clerk of the Court of Appeals should also ascertain the completeness
of the records. If incomplete, he shall inform the court and recommend measures
to complete the record within the shortest possible time but if it cannot be
completed due to insuperable or extremely difficult circumstances. The court, on
its own or upon motion, may declare the record sufficient to decide issues and
explain reason for such declaration.770
764
Supra, Section 11 and 12, Rule 41
765
Supra, Section 13, Rule 41
766
Supra, Section 1, Rule 44
767
Supra, Section 2, Rule 44
768
Supra, Section 3, Rule 44
769
Supra, Section 4, Rule 44
770
Supra, Sections 4 and 5, Rule 44
1.13 Once done, Briefs are to be filed: (a) The Appellant’s Brief must be filed
within 45 days from notice that all evidence, documentary / testimonial are
attached to the record, 7 copies of the brief are to be filed attaching proof of
service of 2 copies to adverse party.771 Where there are several parties, each
counsel representing one or more but not all may be served with 1 copy. If
several counsel represent one party, service may be made on any one of
them.772 The contents of the appellant’s brief are: (a) subject index (b)assignment
of errors (c) statement of the case (d)statement of facts (e)statement of issues (f)
arguments (g) relief (f) if not by record on appeal, an appendix, copy of judgment
/ final order appealed. 773
1.15 A Reply Brief may be filed by appellant within 20 days from receipt of the
Appellee’s Brief.775 No extension of time to file breifs is allowed except for good
and sufficient cause, and only if filed before expiration of the time sought to be
extended776 In lieu of briefs, memoranda may be required is required in
certiorari, prohibition, madamus, quo warranto, hebeas corpus within a non-
extendible period of 30 days from notice that all evidence is attached to the
record. Failure of appellant to file his memoranda is ground to dismiss the
appeal.777
1.16 Questions of law or fact may be raised in the appeal, whether or not a
motion for new trial has been filed and must within the issues framed by the
parties.778 As a rule, a party who deliberately adopts a certain theory upon which
the case is tried and decided by the lower court will not be permitted to change
his theory on appeal. Points of law, theories, issues, and arguments not brought
to the attention of the lower court need not be , and ordinarily not be, considered
by a reviewing court, as these cannot be raised for the first time at such late
stage. Basic considerations of due process underlie this rule.779
1.17 In Criminal Cases, note the possibility of the filing of two notices of appeal
when the penalty imposed by the Regional Trial Court is life imprisonment or
reclusion perpetua, appeal is by notice to the Court of Appeals, and by notice
771
Supra, Section 7, Rule 44
772
Supra, Section 11, Rule 44
773
Supra, Section 13, Rule 44
774
Supra, Section 14, Rule 44
775
Supra, Section 9, Rule 44
776
Supra, Section 12, Rule 44
777
Supra, Section 10, Rule 44
778
Supra, Section 15, Rule 44
779
BPI v Leobrera, 416 SCRA 15
again to the Supreme Court. If the penalty is death, it is automatically reviewed
by the Supreme Court, but such shall be made by the Court of Appeals, which
shall render judgment, then certify it to the Supreme Court, who will then enter
the same.780
2.1 It is initiated by the filing of a Verified Petition for Review with the Court of
Appeals, paying at the same time to the Clerk of Court of Appeals the
corresponding docket fees and lawful fees, depositing 500 for costs, furnishing
the Regional Trial Court and adverse party with a copy of the Petition.
2.4 The appeal is deemed PERFECTED upon timely filing of the petition and
payment of docket fees. The RTC loses jurisdiction upon perfection of the appeal
and lapse of time to appeal by the other parties. The Regional Trial Court
continues to have RESIDUAL JURISDICTION until the same has been given
DUE COURSE.783
2.5 Note that except in cases covered by the Rule on Summary Procedure,
appeal shall stay the judgment / final order unless Court of Appeals or the Rules
provide otherwise
780
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
781
Supra, Section 1, Rule 42
782
Supra, Sections 2 and 3, Rule 41
783
Supra, Section 8, Rule 42
2.6 ONCE FILED, the Court of Appeals may: (a) Require the respondent to
file a comment, not a motion to dismiss, within 10 days from notice (b)Dismiss
the petition if found to be patently without merit, prosecuted manifestly for delay,
or questions raised therein are too unsubstantial to require consideration.784
2.8 A petition is given DUE COURSE when upon the filing of the comment or
expiration of the period to file, the Court of Appeals finds PRIMA FACIE that the
lower court has committed an error of fact / law that will warrant a reversal /
dismissal. CONSEQUENTLY, the Court of Appeals, if it deems necessary, will
order the elevation by the clerk of the Regional Trial Court of the entire record
within 15 days from notice.786
3.2 There is a question of law in a given case when the doubt or difference
arises as to what the law is pertaining to a state of acts, and there is a question
of fact when the doubt arises as to the truth or falsity of alleged facts.788
3.3 This is initiated by the filing of a Verified Petition for Review on Certiorari
raising only questions of law. This mode of appeal is available to question
judgment / resolutions of the Court of Appeals, the Sandiganbayan, a Regional
Trial Court, and other Courts whenever authorized by law.789
784
Supra, Section 4, Rule 42
785
Supra, Section 5, Rule 42
786
Supra, Section 6, Rule 41
787
Supra, Section 9, Rule 42
788
Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
789
Supra, Section 1, Rule 45
3.4 The TIME FOR FILING is 15 days from notice of the judgment, final /
order, or resolution or of denial of petitioner’s motion for new trial /
reconsideration. On motion and with full payment of docket fees and deposit of
costs, the Supreme Court on justifiable reason may grant an extension of 30
days within which to file the petition.
Docket fees and proof of service of the petition on the lower court and adverse
party must accompany the filing of the petition.790
3.5 18 copies of the petition are required to be filed, indicating the original
copy for the court. It should contain: (a) full names of parties (petitioner /
respondent) without impleading court / judge (b) indicate material dates
(c)concise statements of the matters involved and the reason / arguments relied
upon for the allowance of the petition (d) clearly legible copies of judgment / final
order / reconsideration or certified true copy and other material portion supporting
the record (e) Certificate against forum shopping and verification791
(a) DISMISS – (1) for failure to comply with the requirements regarding
payment, proof of service, contents and documents (2) on its own initiative
because it is without merit, prosecuted for delay, or issues are too unsubstantial
to require consideration, OR
(b) ALLOW REVIEW, which is not a matter of right but is discretionary, when
there are special / important reasons therefor: EXAMPLES- (1) when the court a
quo has decided a matter of substance not therefore determined by the Supreme
Court or decided in a way not in accord with the law or applicable decisions of
the Supreme Court (2) when court a quo has so far departed from the accepted
and usual course judicial proceedings, or so far sanctioned such departure by a
lower court, as to call for an exercise of the power of supervision.792
3.7. If given DUE COURSE, the Supreme Court can: (a) Require elevation of
the records / or specified portions thereof within 15 days from notice 793 (b)
Require filing of pleadings, briefs, memoranda or documents as it may deem
necessary within periods / conditions it may consider appropriate and impose
sanctions for non-filing / non-compliance or unauthorized filing. This ALSO
applies to a determination as to whether it should be dismissed or denied.794 The
RULE APPLIES TO BOTH CIVIL / CRIMINAL ACTIONS, except in cases where
penalty is death, reclusion perpetua / life imprisonment.795
790
Supra, Sections 2 and 3, Rule 45
791
Supra, Section 4, Rule 45
792
Supra, Sections 5 and 6, Rule 45
793
Supra, Section 8, Rule 45
794
Supra, Section 7, Rule 45
795
Supra, Section 9, Rule 45
3.8 The exceptions to the general rule that only questions of law may be
raised in a petition for review are:(a) when the conclusion is a finding grounded
entirely on speculation, surmises, or conjectures; (b) when the inference made is
manifestly mistaken, absurd, or impossible; (c) where there is a grave abuse of
discretion; (d) when the judgment is based on a misapprehension of facts; (e)
when the findings of fact are conflicting; (f) when the Court of Appeals, in making
its findings, went beyond the issue of the case and the same is contrary to the
admissions of both appellant and appellee; (g) when the findings of the Court of
Appeals are contrary to those of the trial courts; (h) when the findings of facts are
conclusions without citation of specific evidence on which they are based; (i)
when the facts set forth in the petition as well as in the petitioner’s main and reply
briefs are not disputed by the respondents; (j) when the finding of fact of the
Court of Appeals is premised on the supposed absence of evidence but is
contradicted by the evidence on record; and (k) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different conclusion.796
4.1 Applies primarily to appeals from the Court of Tax Appeals and other
quasi-judicial agencies to the Court of Appeals, but is not applicable to judgments
/ final orders under the Labor Code.798
4.2 The appeal can include questions of fact, law or mixed questions of law
and fact.799
4.3 The appeal shall be taken within fifteen (15) days from notice if the award,
judgment, and final order of resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of the denial of the petitioner’s
motion for new trial or reconsideration duly filed in accordance with the governing
law of the court or agency a quo. Only one (1) motion for reconsideration shall
be allowed. Upon proper motion and the payment of the payment of the full
amount of the docket fee before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15) days only within
which to file the petition for review. No further extension shall be granted except
for the most compelling reason and in no case to exceed fifteen (15) days.800
796
Martinez v Court of Appeals, 358 SCRA 38
797
A.M. No. 04-9-07-SC, September 14, 2004
798
Supra, Sections 1 and 2, Rule 43
799
Supra, Section 3, Rule 43
800
Supra, Section 4, Rule 43
4.4 All other procedural matters and requirements are similar to a Petition for
Review under Rule 42 EXCEPT that an appeal under this Rule shall not stay the
award, judgment, final order or resolution unless the Court of Appeals deems
otherwise.801
1. Petitions filed before the Court of Appeals must contain the following: (a)
identification of the parties, a concise statement of matters involved, the factual
background of the case, and the grounds relied upon for the relief prayed for
(b)statement of material dates, and in a Rule 65 Petition, material dates are
dates of notice of judgment or final order, when a motion for new trial or
reconsideration was filed, if any, and when notice of denial was received (c)
clearly legible duplicate originals or certified true copy of the attachments
(d)certification against forum shopping (5)docket fees / deposit for cost.805
2. A certified true copy is one the certification of which is made by the proper
clerk of court or his duly authorized representative.806
801
Supra, Section 12, Rule 43
802
Republic v Bernardez-Lorino, 449 SCRA 57
803
Supra, Section 1, Rule 46
804
Supra, Section 2, Rule 46
805
Supra, Section 3, Rule 46
806
Paras v Baldado, 354 SCRA 141
HOW DOES THE COURT ACQUIRE JURISIDICTION
1. The court may dismiss the petition outright with specific reasons OR
require the filing of a comment within 10 days from notice.
1.1 Only pleadings required to be filed may be filed. Other pleadings will
require leave of court.808
4.1 Can call the parties / counsel to a preliminary conference, the object of
which is to : (a) consider compromise agreements, except when case is not
allowed to be compromised (b) define, simplify and clarify issues (c)formulate
stipulation of facts and admissions of documentary exhibits, limit the number of
witnesses in cases falling within its original jurisdiction or those within its
appellate jurisdiction where a motion for new trial is granted on newly discovered
evidence (d) other matters that may aid in prompt disposition of the case.811
807
Supra, Section 4, Rule 46
808
Supra, Section 5, Rule 46
809
Supra, Section 6, Rule 46
810
Supra, Section 7, Rule 46
811
Supra, Section 1, Rule 48
812
Supra, Section 2, Rule 48
813
Supra, Section 3, Rule 48
4.3 At its own instance or by motion, to hear the parties in oral argument on
the merits of the case or on any material incident and is limited to such matters
as the court may specify in its order or resolution.814
4.4 In the conduct of oral arguments, unless authorized, only 1 counsel may
argue for a party. Duration, sequence and all related matters shall be as directed
by the Court.815
4.5 Motions are not set for hearing, and unless directed by the court, no
hearing or oral arguments shall be allowed in support thereof. The adverse party
may file objections within 5 days from notice. Upon expiration of the period, it is
submitted for resolution.816
1.1 An important condition for the availment is that the petitioner failed to
move for new trial, or appeal from, or file a petition for relief against, or take other
appropriate remedies through no fault attributable to him.
1.2 If he failed to avail of the other remedies through his own fault, he would
then benefit from his inaction or negligence.818
1.3 He must allege non availment of other remedies through no fault of the
petitioner, otherwise the petition will be dismissed.819
1.4 Note that the correctness of the judgment is not in issue in a petition for
annulment of judgment.820
2. It is a remedy that may be availed of by those who are not even parties to
the judgment or to annul even judgments that have been fully executed.821
814
Supra, Section 1, Rule 49
815
Supra, Section 2, Rule 49
816
Supra, Section 3, Rule 49
817
Supra, Section 1, Rule 47
818
Manipor v Ricafort, 407 SCRA 298
819
Ancheta v Ancheta, 424 SCRA 725
820
Republic v Heirs of Sancho Magdato, 340 SCRA 115
821
Malolos v Dy, 325 SCRA 827
3. It is available only on grounds of: (a) Extrinsic Fraud but only when it
was not availed of or could have been availed of in a motion for new trial or
petition for relief or (b) Lack of Jurisdiction
3.1 There is extrinsic fraud when the unsuccessful party had been prevented
from exhibiting fully his case, by fraud or deception practice upon him by his
opponent, as keeping him away from the court, or where the defendant never
had knowledge of the suit, being kept in ignorance by the acts of the plaintiff.822
4. The period for its filing if based on extrinsic fraud is within 4 years from its
discovery, or if based on lack of jurisdiction before it is barred by laches or
estoppel.823
1. Filing is by verified petition alleging therein with particularity, the facts and
the law relied upon for annulment as well as supporting petitioner’s good and
substantial cause of action / defense, as the case may be. Containing (a)
certified true copy of judgment / final order / resolution shall be attached to the
original copy intended for the court (b) affidavits of witnesses (c) certification
against forum shopping824
2. If prima facie merit be found, it shall be given due course and summons
shall be served on the respondent. If so, procedure in ordinary civil cases shall
be followed but reception may be referred to a member of the Court or a
Regional Trial Court judge.825
1. It shall set aside the questioned judgment / final order / resolution and
render the same null and void, without prejudice to the re-filing of the original
action in the proper court .
822
Leonardo v ST Best, 422 SCRA 347
823
Supra, Section 3, Rule 47
824
Supra, Section 4, Rule 47
825
Supra, Sections 5 and 6, Rule 47
1.1 However, where it is set aside by reason of extrinsic fraud, the court on
motion, may order the trial court to try the case again as if a timely motion for
new trial has been granted therein.826
1.2 The prescriptive period for the re-filing of the original action shall be
deemed suspended from the filing of such original action until finality of the
judgment of annulment. However, the prescriptive period is or shall not be
suspended where extrinsic fraud is attributable to the plaintiff is original action.827
SCOPE OF RELIEF
1. In all cases that come before it, and besides on a finding that the case is
without merit, prosecuted for delay or issue is too unsubstantial to merit
consideration, on motion of the court or the appellee, it may dismiss the petition
on the basis of:
1.1 Failure of record on appeal to show on its face that appeal was taken
within period fixed by the Rules.
1.2 Failure to file notice of appeal or record on appeal within period within the
period prescribed by the Rules.
1.3 Failure to pay docket fees as provided under Section 5, Rule 40 and
Section 4, Rule 41.
1.5 Failure of appellant to serve and file required number briefs or memoranda
within provided time by these Rules
826
Supra, Section 7, Rule 47
827
Supra, Section 8, Rule 47
828
Supra, Section 9, Rule 47
829
Supra, Section 10, Rule 47
1.6 Absence of specific assignment of errors or page references to the record
as required by Section 13, paragraphs(a),(c),(d), and (f) of Rule 44
1.8 Failure to appear at preliminary conference under Rule 48, or comply with
orders, circulars or directives of the Court without justifiable cause
1.9 The fact that order / judgment appealed from is not appealable.830
1. An appeal under Rule 41 from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed as issues purely of law
are not reviewable by the Court of Appeals
WITHDRAWAL OF AN APPEAL
1. An appeal may be withdrawn as of right at any time before the filing of the
appellee’s brief.
RULE 51 - JUDGMENT
1. In Ordinary Appeals:
1.1 Where no hearing on merits is held, upon filing of the last pleading, brief,
memoranda or expiration of period to file.
830
Supra, Section 1, Rule 50
831
Supra, Section 2, Rule 50
832
Supra, Section 3, Rule 50
1.2 Where a hearing is held, upon termination of hearing or upon filing of the
last pleading, memoranda as may be required or permitted, or expiration of
period to file
2.1 Where no comment is filed, upon expiration of the period to file comment
2.1 Note that in rendering judgment, harmless errors or those which do not
affect the substantial rights of the parties836 or errors that are not assigned will
not be considered unless they affect jurisdiction, validity of judgment, and of
proceedings.837
2.2 Harmless Error Doctrine means that any error or defect which does not
affect substantial rights will be disregarded by the reviewing court or tribunal. It is
followed to deal with evidence improperly admitted during trial wherein its
damaging quality and impact to the substantial rights of the litigant are examined.
If deemed slight and insignificant, the error is disregarded.838 It is not a ground for
granting of a new trial or for setting aside, modifying, or disturbing a judgment or
final order unless the refusal appears to the Court inconsistent with substantial
justice.
833
Supra, Section 1, Rule 51
834
Supra, Section 2, Rule 51
835
Supra, Section 3, Rule 51
836
Supra, Section 6, Rule 51
837
Supra, Section 8, Rule 51
838
People v Teehankee, 269 SCRA 54.
3. Judgments of the Court of Appeals in the exercise of appellate jurisdiction
may affirm, reverse, or modify the judgment or final order appealed from. It may
also order or direct a new trial to be held or that further proceedings be taken. 839
The decision must state clearly and distinctly the findings of fact and conclusions
of law on which it is based, which may be contained in the resolution itself or
adopted from those set forth in the judgment, final order appealed from.840
1. After signing by the justices, it shall be delivered to the clerk of court, who
shall indicate thereon the date of promulgation and cause true copies thereof to
be served upon the parties or counsel.841
3. Execution shall as a rule issue upon a motion in the proper court upon its
entry. In appealed cases, where the motion is filed with the Court of Appeals at
the time that it is in possession of the original records or record on appeal, the
resolution granting the motion shall be transmitted to the lower court from which
the case originated, together with certified copy of the judgment to be executed,
with a directive to said court to issue the proper writ for its enforcement. In
original actions, the writ shall be accompanied by a certified true copy of the
entry of judgment and addressed to appropriate officer for enforcement.843
839
Supra, Section 4, Rule 51
840
Supra, Section 5, Rule 51
841
Supra, Section 9, Rule 51
842
Supra, Section 10, Rule 51
843
Supra, Section 11, Rule 51
844
Supra, Section 1, Rule 52
845
Supra, Section 2, Rule 52
3. It is to be resolved within sixty (60) days from submission for resolution846
and while pending, shall stay the execution unless for good reason, court directs
otherwise.847
1. It can be filed at any time after appeal from the lower court has been
perfected and before the Court of Appeals loses jurisdiction, on the ground of
newly discovered evidence which could not have been discovered prior to the
trial in the court below by the exercise of due diligence and which is of such a
character as would probably change the result. The motion must be
accompanied by affidavits showing the facts constituting the grounds and the
newly discovered evidence.848
2. The Court of Appeals shall then consider the evidence and that adduced
at the trial, to determine if it will grant or refuse a new trial, or make such order,
with notice to both parties, as to the taking of further testimony, either orally in
court, by depositions, or render such other judgment as ought to be rendered
upon terms it may deem just.849 If granted, the procedure shall be the same as
that granted by a Regional Trial Court.850
2.1 Motion should be resolved within 90 days from the date it is declared to be
submitted.851
OTHER MATTERS
1. Allotment of cases shall be among the different divisions for hearing and
decision.
2. The Court of Appeals En Banc shall make proper orders or rules to govern
allotment, the constitution of such divisions, the regular rotation of justices, filling
of vacancies, and other matters. Such will continue in force and repealed or
altered by it or the Supreme Court.852
3. A majority of the court shall constitute a quorum for sessions en banc and
a majority of the members present shall be necessary to pass a resolution. Three
846
Supra, Section 3, Rule 52
847
Supra, Section 4, Rule 52
848
Supra, Section 1, Rule 53
849
Supra, Section 2, Rule 53
850
Supra, Section 4, Rule 53
851
Supra, Section 3, Rule 53
852
Supra, Section 1, Rule 54
members of a division shall constitute a quorum for sessions of a division and the
affirmative vote of three members shall be necessary for pronouncement of
judgment/resolution, which shall be reached in consultation among them before
the writing of the opinion by any member of the division.853
1.2 Those of the Supreme Court are called Philippine Reports, while those of
the Court of Appeals are called Court of Appeals Reports. 856
ORIGINAL CASES
2. In resolving the cases, applicable rules in the Court of Appeals are also
applicable in the Supreme Court.858
APPEALED CASES
1. The only mode of appeal to the Supreme Court is by Petition for Review
on Certiorari, except in criminal cases where the penalty is death, reclusion
perpetua, and life imprisonment859
853
Supra, Section 2, Rule 54
854
Supra, Section 1, Rule 55
855
Supra, Section 2, Rule 55
856
Supra, Section 3, Rule 55
857
Supra, Section 1, Rule 56
858
Supra, Section 2, Rule 56
859
Supra, Section 3, Rule 56
860
Supra, Section 6, Rule 56
2. If by certiorari from the Regional Trial Court to the Supreme Court, raising
issues of fact may be referred to the Court of Appeals for decision or appropriate
action. Determination of the Supreme Court as to whether or not there are
issues of fact is final.
PROVISIONAL REMEDIES
PRELIMINARIES
1.1 They are issued in the form of writs or processes and they presuppose the
existence of a principal action, although the remedies of Injunction, Receivership
and Replevin have been allowed to exist as principal actions in proper cases.
1.2 These remedies are to be granted by the court where the principal action
is pending. Hence, an MTC has the power to grant a provisional remedy. The
861
Supra, Section 4, Rule 56
862
Supra, Section 5, Rule 56
863
Supra, Section 7, Rule 56
exception being support pendente lite in an action for support as this is incapable
of pecuniary estimation and is thus only within the jurisdiction of an RTC.
2. The purpose for resort to provisional remedies are: (a) preserve and
protect rights or interests while the main action is pending (b) secure the
judgment (c) preserve the status quo (d) preserve the subject matter of the
action.
Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ
of execution (See: Roque vs. CA, 93 SCRA 540). What the law provides are enforcing
the writ without delay and making sheriff’s return thereon without delay.
Preliminary attachment shall be discharged in any of the following instances:
1. property attached is exempt from execution, hence, it is also exempt from preliminary
attachment (Sections 2 and 5, Rule 57);
2. applicant has made cash deposit or filed counter bond in court (Section 12, Rule 57);
3. attachment was improperly or irregularly issued or enforced (Section 13, Rule 57);
4. attachment bond is insufficient (Section 13, Rule 57);
5. attachment affidavit is defective (Section 13, Rule 57);
6. attachment is excessive, but discharge is limited to the excess (Section 13, Rule 57); and
7. judgment in the main case is rendered against the attaching party (Section 19, Rule 57)
When the preliminary attachment is issued upon a ground which is at the same time the
applicant’s cause of action: ie., an action against a party who has been guilty of fraud in
contracting the debt or incurring the obligation upon which the action is brought, the only way it
can be dissolved is by a counter-bond. (FCY Const., Group Inc. vs. CA, 324 SCRA 270)
The merits of the complaint are not triable in a motion to discharge an attachment. (CBTC vs.
CA, 197 SCRA 663)
1. It is a provisional remedy issued upon order of the court where the action
is pending to levy upon the properties of the defendant therein, the same to be
864
Tan v Adre, 450 SCRA 145
865
Reyes v Lim, 408 SCRA 560
held thereafter by the sheriff as security for the satisfaction of whatever judgment
might be rendered in favor of the attaching creditor.
1.1 It is required that the movant be able to show that the defendant is about
to depart from the Philippines with intent to defraud creditors.866
2.1 Examples are when an officer of a corporation who has control of its funds
will utilize the same for his personal use or when a person appropriates the entire
property knowing that a portion thereof does not belong to him.
866
K.O. Glass Construction Co. Inc. v. Valenzuela, 116 SCRA 563
867
Peregrina v Panis, 133 SCRA 71
3. Action to recover possession of property unjustly or fraudulently taken,
detained or converted when the property, or any part thereof, has been
concealed, removed or disposed of to prevent its being found or taken by the
applicant or authorized person.
4. Action against a party guilty of fraud in contracting the debt or incurring the
obligation upon which the action is brought or in the performance thereof.
4.1 The fraud should be committed either upon contracting the debt or
incurring the obligation sued upon or in the performance thereof. A debt is
fraudulently contracted if at the time of contracting it, the debtor has a
preconceived plan or intention not to pay.868
5.1 Mere removal or disposition, by itself, is not ground for the issuance of a
writ of preliminary attachment, notwithstanding the insolvency of the defendant or
the absence of security for the satisfaction of any judgment is alleged against the
defendant.869
5.2 Where fraudulent disposal is put in issue, the parties should be given the
opportunity to prove their claims, or at the very least, the defendant should be
given the chance to show that he has not been disposing of his property in fraud
of creditors.870
6. Action against a party who does not reside and is not found in the
Philippines or on whom summons may be served by publication.871
868
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
869
Peoples Bank and Trust Company v Syvel’s Incorporated, 164 SCRA 247
870
Adlawan v. Torres, 233 SCRA 645
871
Supra, Section 1, Rule 57
sufficient security for the claim sought to be enforced by the action (e) The
amount due the applicant or value of the property that he is entitled to recover, is
as much as the sum for which the Order is granted, above all legal
counterclaims872
2. A bond must then be executed to the adverse party in the amount fixed by
the court, conditioned that the latter will pay all costs which may be adjudged and
all damages sustained by reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto.874
1. Either ex parte or on motion with notice and hearing, by the court in which
action is pending, by the Court of Appeals or the Supreme Court and must
require the Sheriff to attach so much of the property in the Philippines of the party
against whom it is issued not exempt from execution as may be sufficient to
satisfy the claim unless the other party makes a deposit or gives a bond in an
amount equal to that fixed in the order, exclusive of costs.
1.1 Several writs may be issued at the same time to the sheriffs of the courts
of different judicial regions.875
2. It is issued ex-parte when the ground is justified further by the fact that the
defendant might abscond or dispose of his property before the writ is issued. It
can take place even before he is summoned but note that it cannot be enforced
unless it is preceded or contemporaneously accompanied by service of
summons, together with complaint, application for attachment, affidavit, bond,
order and the writ itself.
2.2 Note that an Alias Summons belatedly filed cannot be deemed to have
cured the fatal defect in the enforcement of the writ of preliminary attachment.876
2.3 The prior or contemporaneous rule does not apply when: (a) Summons
could not be served personally or by substituted service despite diligent efforts
872
Supra, Section 3, Rule 57
873
Gruenberg v Court of Appeals, 138 SCRA 471
874
Supra, Section 4, Rule 57
875
Supra, Section 2, Rule 57
876
Mangila v Court of Appeals, 387 SCRA 162
(b) Defendant is a resident but temporarily out of the PhiIippines (c) Defendant is
a non-resident of the Philippines (d) It is an action in rem or quasi in rem
1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary
attachment unlike a writ of execution. 877 What the law provides for are the
enforcement of the writ without delay and making sheriff’s return thereon without
delay.
2. He may attach only such property not exempt from execution, as may be
sufficient to satisfy the demand unless the defendant makes a deposit or gives a
counter bond in an amount equal to the bond fixed by the court or to the value of
the property attached. 878
2.1 Note that the attachment shall proceed nevertheless until there have been
proceedings undertaken to discharge the attachment. If found to be insufficient /
or is not filed, a new order of attachment may be applied for.879
(a) If real property, it requires the filing with the Office of the Register of
Deeds of a copy of the order together with notice that property or interest therein
is attached.
(d) If debts, credits, bank deposits and other like personal properties not
capable of manual delivery – leaving with such persons owing debt, holding
credits or in possession a copy of the writ and notice.
(f) If in custodia legis – copy of writ is filed if the proper court or quasi-judicial
agency and notice served on the custodian of the property. 880
877
Roque v Court of Appeals, 93 SCRA 540
878
Supra, Section 5, Rule 57
879
Supra, Section 12, Rule 57
880
Supra, Section 7, Rule 57
3.1 Effect of attachment of debts, credits and similar personal property –
persons who have them are liable to the applicant for the amount of such credits
until the attachment is discharged, judgment is satisfied or debts are paid881
3.2 Effect if on property belonging the estate of the decedent, it will not impair
the powers of the executor / administrator or representative – BUT they shall
report the attachment to the court when any petition for distribution is filed – and
in the order made upon such petition – the property may be awarded to the heir /
legatee / devisee , but the property attached shall be delivered to the sheriff,
subject to the claim of the heir, legatee, devisee or person claiming under him.882
4. Sheriff shall also make a return without delay, containing a full statement
of his proceedings under the writ and a complete inventory of property attached,
together with a copy of a counter-bond if one has been filed, furnishing copies
thereof on the applicant.884
(c) Collecting from all persons having in their possession credits belonging to
the obligor or debts due him
881
Supra, Section 8, Rule 57
882
Supra, Section 9, Rule 57
883
Supra, Section 10, Rule 57
884
Supra, Section 6, Rule 57
885
Supra, Section 11, Rule 57
(e) If judgment becomes executory, the surety/ies shall become charged on
the counter-bond and bound to pay the judgment obligee upon demand, the
amount due on the judgment, which amount can be recovered after notice and
summary hearing in the same action.886
A Report or Return of all proceedings must be filed with the court and copies
furnished all parties.888
(a) All proceeds of sales or money collected by the sheriff and property
attached shall be delivered to the party whose properties were attached and the
order of attachment discharged.
(b) Claim for damages before trial, perfection of appeal, or judgment becomes
executory, with due notice to the attaching party and surety setting forth the facts
showing his right to damages in instances where there is improper, irregular or
excessive attachment, are to be awarded after hearing and is to be included in
the judgment in the main case.
(d) Nothing, likewise, prevents the party against whom attachment is issued
from recovering in the same action the damages awarded to him from any
property of the attaching party not exempt from execution should the bond or
deposit be insufficient.889
886
Supra, Section 17, Rule 57
887
Supra, Section 18, Rule 57
888
Supra, Section 15, Rule 57
889
Supra, Section 20, Rule 57
1. Discharge the attachment by making a cash deposit or counter bond.890
Note that bond may be subject to recovery by attaching party;
1.1 Upon filing, the sheriff not under obligation to keep the property, unless
attaching party files a bond.
1.2 No claim for damages for the taking or keeping of the property may be
filed / enforced against the bond unless the action is filed within 120 days from
date of the filing of the bond. 893
2. Note that Injunction may also exist as a cause of action. This is best
illustrated by the appropriate remedies for obligations to do or not to do.
Obligations to do, the remedy is specific performance. Obligation not to do,
remedy is injunction.
2.1 An example is that provided for by Article 26 of the Civil Code that allows
an injunction against one prying into the privacy of another residence, meddling
890
Supra, Section 12, Rule 57
891
Supra, Section 13, Rule 57
892
Supra, Section 20, Rule 57
893
Supra, Section 14, Rule 57
894
Supra, Section 1, Rule 58
with or disturbing the private life or family relations of another or the enforcement
of an easement of light and view.
1. The applicant is entitled to the relief demanded, and the whole or part of
the relief consists in restraining the commission / continuance of the act/s
complained of, or in requiring the performance of an act/s, for a limited period or
perpetually.
1. The requisites are: (a) Existence of a right to be protected, and (b) Acts
against which the injunction is to be directed are violative of the right
895
Supra, Section 2, Rule 58
896
Supra, Section 3, Rule 58
897
Supra, Section 6, Rule 58
2. If great/irreparable injury would result before then the Court by way of an
exception on non ex-parte issuance (a) can issue a Temporary Restraining Order
for 20 days after a summary hearing or If it is of extreme urgency, it may issue
ex-parte a 72 hour Temporary Restraining Order, within which period a summary
hearing to determine whether or not the same is to be extended for the full 20
day period must be held.
2.1 Note that within the 20 day effectivity period of the Temporary Restraining
Order, the court must order the party or person to show cause why the injunction
should not be granted, determine also whether or not the preliminary injunction
should be granted, and accordingly issue the order. 898
898
Supra, Section 5, Rule 58
899
Bacolod City Water District v Labayen, 446 SCRA 110
900
Padilla v Asuncion, AM No. 06-44-CA-J, March 20, 2007
3. A status quo order is not a temporary restraining order. It is more in the
nature of a cease and desist order, has no specified duration and does not
specifically direct the performance of an act. It lasts until revoked, may be the
subject of an agreement, and does not require the posting of a bond.
HOW OBTAINED
3. The matter shall thereafter be acted upon only after all parties are heard in
a summary hearing, conducted within 24 hours after sheriff’s return of service.901
901
Supra, Section 4, Rule 58
1. Under BP Blg. 227 amending the Labor Code, a court cannot grant
injunctive relief in cases growing out of a labor dispute as the said power is
vested in the NLRC. An exception is when the injunction is sought by a third
person whose property is levied upon to satisfy the liability of another. 902
2. Under RA 8735 and PD 1818, injunction does not lie against the execution
or implementation of government infrastructure programs, essential government
projects, including arrastre 903
10. To transfer possession or control over property when legal title is still in
dispute or when it has not yet been clearly established or there is a lack of clear
and unmistakable right on the part of the applicant.909
902
Penalosa v Villanueva, 177 SCRA 78
903
Philippine Ports Authority v Pier 8 Arrastre and Stevedoring, 475 SCRA 426
904
Section 31-A, Proclamation 50-A, EO No. 323, 2000
905
Ching v Court of Appeals, 398 SCRA 88
906
Filipino Metals Corporation v Secretary, Trade and Industry, 463 SCRA 616
907
Zuno v Cabredo, 402 SCRA 75
908
PNB v Adi, 173 SCRA 550
909
Cortez Estrada v Samut, 451 SCRA 275
910
Almeida v Court of Appeals, 448 SCRA 68
12. When it disposes of the main case without trial as the grant of injunctive
relief assumes the proposition that petitioner must prove.911
14. In applications for restraining order and injunction against the foreclosure
of a real estate mortgage on the ground that it has been paid or not delinquent,
unless it be verified and supported by evidence of payment.
14.1 If on the allegation that interest is unconscionable, the debtor must pay the
mortgagee at least 12% per annum on the principal obligation as stated in the
application for foreclosure, which shall be updated monthly while the case is
pending.
14.2 The bond shall be equal to the amount of the outstanding debt, and the
time for its effectivity shall apply as well to a status quo order.
911
Levi Strauss v Clinton Apparelle, 470 SCRA 236
912
Andres v Cuevas, 460 SCRA 38
913
Roberts vs. CA, 254 SCRA 307; Brocka vs. Enrile, 192 SCRA 183
914
Supra, Section 6, Rule 58
915
Supra, Section 7, Rule 58
2. A Final Injunction is granted if it appears that the applicant is entitled to
have the act/s permanently enjoined or confirming the preliminary mandatory
injunction.916
4. No injunction can issue against the acts of a co-equal court, except in a 3rd
party claim where claimant vindicates his right by a separate action.
1. The trial court, the Court of Appeals, the Sandiganbayan, or the Court of
Tax Appeals that issued the writ of preliminary injunction against a lower court,
board, officer or quasi-judicial agency shall decide the main case or petition
within a period of six (6) months from the issuance of the writ.918
RULE 59 – RECEIVERSHIP
916
Supra, Section 9, Rule 58
917
Supra, Section 8, Rule 58
918
A.M. 07-7-12-SC
WHO APPOINTS A RECEIVER
1. The court where action is pending or the Court of Appeals, the Supreme
Court or a member thereof.
1.1 During appeal, the appellate court may allow the application for the
appointment to be filed in the court of origin, which can also decide on the same
to be subject to the control of said court.919
4.2 He performs his duties “subject to the control of the Court,” and every
question involved in the receivership may be determined by the court taking
cognizance of the receivership proceedings.
4.3 Thus, unauthorized contracts of a receiver do not bind the court in charge
of receivership. They are the receiver’s own contracts and not recognized by the
court as contracts of the receivership.922
1. Subject to the control of the court, a receiver can: (a) Bring and defend
actions in his own name (b)Take and keep possession of the properties in
919
Supra, Section 1, Rule 59
920
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
921
Arranza versus B.F. Homes, Inc., 333 SCRA 799
922
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
controversy (c)To receive rent (d)Collect debts, including power to compound
and compromise them, to pay debts (e)Make transfers (f) To divide money or
other property (g) Other acts as may be authorized by the court
2. Funds though may only be invested by order of the court upon written
consent of all parties. No action may be filed by or against the receiver without
leave of court to prevent harassment.923
1. By verified application.
1.1 More than 1 receiver may be applied for and appointed by the court.
2. If application is granted – the receiver shall await the filing by the applicant
of a bond executed to the party against whom the application is presented in an
amount fixed by the Court to the effect that the applicant will pay such party all
damages that he may sustain by reason of the appointment in case the same
has been procured without sufficient cause – and the court in its discretion may
require an additional bond to be filed as further security for damages. 925
4. Before entering upon his duties, the receiver shall be sworn to perform
them faithfully and shall file a bond executed to such person and in amount fixed
by the court, to the effect that he will faithfully discharge his duties and obey
orders from the Court.927
923
Supra, Section 6, Rule 59
924
Supra, Section 7, Rule 59
925
Supra, Section 2, Rule 59
926
Supra, Section 3, Rule 59
927
Supra, Section 4, Rule 59
5. Copies of bonds of the applicant and receiver or the adverse party shall be
served on each interested party – who may except to its sufficiency or the surety.
If found to be insufficient or is not justified and a bond sufficient in amount and
surety is not filed, the application shall be denied and the receiver discharged. If
adverse party’s bond is the one excepted to or found insufficient, the receiver
shall be appointed or reappointed as the case may be.928
WHEN TERMINATED
1. When the court, motu propio or upon motion, shall determine that the
necessity for a receiver no longer exists, it shall alter due notice, settle all
accounts, direct delivery of the funds / property in his possession to the person
adjudged to be entitled to receive them and order the discharge of the receiver
from further duty.
3. Any judgment may include the amount, if any, to be awarded any party
upon any bond.930
RULE 60 – REPLEVIN
The lessor in a lease with option to purchase, in choosing through replevin, to deprive
the lessee of possession of the leased equipment, waived its right to recover unpaid
rentals on the said leased items. The remedy provided by Article 1484 are alternative,
not cumulative.931
WHAT IS REPLEVIN
1.1 It is also a mixed action partly in rem as far as the claim for recovery of
personal property and in persona as far as the claim of damages, the object of
which is recovery of possession of personal property applied for at the
commencement of the action or at any time before answer by the party praying
for recovery of personal property.932
928
Supra, Section 5, Rule 59
929
Supra, Section 8, Rule 59
930
Supra, Section 9, Rule 59
931
PCI Leasing and Finance Inc v Giraffe X Creative Imaging, Inc, 527 SCRA 405,(July 12, 2007)
932
Supra, Section 1, Rule 60
HOW APPLIED FOR
1. Filing of Affidavit containing the following: (a) that applicant is the owner of
the property claimed, particularly describing it, or is entitled to possession of the
same (b)that property is a wrongfully detained by the adverse party, alleging the
cause of detention according to the best of his knowledge, information or belief
(c) that property has not been distrained or taken for a tax assessment or
payment of fine or seized under execution, preliminary attachment or in custodia
legis, or if so seized, it is exempt from seizure / custody (d) actual market value
not the probable value as declared by the applicant. Should there be a dispute, it
is to be resolved by the Court.
2. Filing of bond in double the value of the property – for return of the
property to the adverse party and payment of such sum as he may recover from
the applicant
3. Upon filing of the affidavit and bond, the writ of replevin shall issue
requiring the sheriff to forthwith take the property in custody.933
1. If within 5 days after taking of the property, the adverse party does not
object to sufficiency of the bond / sureties or he objects and the court affirms its
approval of the bond or approves a new bond or if he requires return but his
bond is objected to (adverse party) and he does not forthwith file an approved
bond – the sheriff shall deliver the property to the applicant, if for any reason it is
not delivered, it must be returned to the adverse party.935
933
Supra, Sections 2 and 3, Rule 60
934
Supra, Section 4, Rule 60
935
Supra, Section 6, Rule 60
2. If claimed by a 3rd Party by affidavit, the sheriff is not bound to keep and
deliver the property unless applicant / agent on demand of the sheriff files a bond
approved by the Court to indemnify the 3rd party claimant in a sum not less than
the value of the property under replevin.
2.1 In case of disagreement as to value, the court shall determine the same.
2.2 Note that no action on the bond may be enforced unless filed within 120
days from filing.
2.3 The sheriff shall not be liable for damages for the taking and keeping of
the property to any such 3rd party if the bond is filed. Nothing also prevents the
3rd party claimant or the applicant from vindicating their rights or claims in the
same action or in a separate action.
2.4 If writ is issued in the name of RP, no bond is required and the sheriff is to
be represented by the Solicitor General and damages so adjudged are paid out
of the National Treasury. 936
3. The sheriff must make return within 10 days after taking of the property. 937
4.1 Any amount awarded a party upon any bond shall be claimed, ascertained
and granted as provided by Section 20 of Rule 57.938
936
Supra, Section 7, Rule 61
937
Supra, Section 8, Rule 61
938
Supra, Sections 9 and 10, Rule 61
939
Supra, Section 1, Rule 61
2. It is also available in criminal cases when: (a) child is born to offended
party allegedly because of the crime (b) civil liability arising from the criminal
action includes support for the offspring (c) civil aspect has not been waived,
reserved or instituted prior to filing of criminal action.
2.1 This application may be filed successively by the offended party, her
parents, grandparents, guardian or the State in the corresponding criminal case
during its pendency.940
PROCEDURE
3. Court shall determine provisionally the pertinent facts and render such
orders as justice and equity may require, having due regard to the probable
outcome of the case and such other circumstances.
3.1 If granted, it shall fix the amount of money to be provisionally paid or such
other forms or support as should be provided – taking into account the
necessities of the applicant and resources or means of the adverse party and
the terms or mode for providing support.
3.2 If denied, the principal case shall be tried and decided as early as
possible.943
HOW ENFORCED
1. If adverse party fails to comply, the court shall, motu propio or on motion,
issue an order of execution without prejudice to his liability for contempt.
2. If support be paid by a 3rd person, after due notice and hearing in the
same case, he may obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide support.944
940
Supra, Section 6, Rule 61
941
Supra, Section 2, Rule 61
942
Supra, Section 3, Rule 61
943
Supra, Section 4, Rule 61
944
Supra, Section 5, Rule 61
RESTITUTION
1. If upon judgment / final order – The court finds that the person who has
been providing support is not liable therefor – it shall order the recipient to return
the amounts paid plus interest from dates of actual payment without prejudice to
the right of the recipient to obtain reimbursement in a separate action from the
person legally obliged to give support.
1.1 Should the recipient fail to reimburse, the person who provided the same,
may, in a separate action, seek reimbursement thereof from the person obliged
to give support.945
RULE 62 - INTERPLEADER
WHEN PROPER
1. Whenever conflicting claims upon the same subject matter are or may be
made against a person who claims no interest whatever in the subject matter, or
an interest which in whole or in part is not disputed by the claimants, he may
bring an action against the conflicting claimants to interplead and litigate their
several claims among themselves.946
PROCEDURE:
1. Upon filing of the complaint, the court shall issue an order requiring the
conflicting claimants to interplead with one another.
1.1 If the interest of justice requires, it may order the subject matter be paid or
delivered to the court.947
945
Supra, Section 7, Rule 61
946
Supra, Section 1, Rule 62
947
Supra, Section 2, Rule 62
948
Supra, Section 3, Rule 62
3. Within the time for the filing of an answer, motions to dismiss may be filed,
if denied the claimant must file an answer within the period remaining but in no
case less than 5 days.
3.1 If not, he may be declared in default and thereafter the court may render
judgment barring him from any claim in respect of the subject matter.
3.2 They may also file counter-claims, cross-claims, 3rd party claims, and
other responsive pleadings.949
4. After the pleadings of the conflicting claimants have been filed, pre-trial
conducted, the court shall proceed to determination and adjudication of their
respective claims. The docket and other lawful fees paid by a party who filed the
complaint, as well as costs / expenses of litigation shall constitute a lien or
charge upon the subject matter, unless the court orders otherwise.950
1. It is a special civil action brought before the Regional Trial Court only by a
person interested in a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order, regulation or ordinance or any
other government regulation, before breach thereof, asking the court to
determine any question of construction or validity arising therefrom, and for a
declaration of his rights or duties thereunder.951
1.1 The list of what may properly be addressed by a petition for declaratory
relief is exclusive. Hence, an action for declaratory relief to determine the import
of a judgment or to resolve doubts as to citizenship is not proper.
1.2 Note that even if the subject is enumerated, the court will refuse to act if
the contract is clear and there is no doubt as to its meaning as there is no need
for construction or a declaration of rights.
949
Supra, Sections 4 and 5, Rule 62
950
Supra, Sections 6 and 7, Rule 62
951
Supra, Section 1, Rule 63
3. Note that it can be brought only before a breach / violation of the statute or
instrument.
3.2 The parties may then file such pleading as may be necessary or proper.952
1. All persons who have or claim an interest which would be affected by the
declaration shall be made parties and no declaration shall as except as otherwise
provided in these Rules prejudice the rights of persons not parties to the action.
1. Except in actions falling under the 2nd paragraph of Section 1, the court,
motu propio, or on motion, may refuse to exercise the power to declare rights
and to construe instruments in any case where a decision would not terminate
the controversy or uncertainty that gave rise to the action, or in any case, where
the declaration or construction is not necessary or proper under the
circumstances.955
1.1 This rule was promulgated by the Supreme Court to implement Section 7
of Article IX-A of the 1987 Constitution which provides that any decision, order or
ruling of a constitutional commission may be brought to it on certiorari within 30
952
Supra, Section 6, Rule 63
953
Supra, Section 3, Rule 63
954
Supra, Section 4, Rule 63
955
Supra, Section 5, Rule 63
days from receipt of a copy thereof, having interpreted the same to refer to a
certiorari petition under Rule 65. However, if it has for its subject an interlocutory
order, it has been submitted that the periods provided for under Rule 65 will
prevail over that provided by Rule 64.
1.2 The filing of a motion for new trial / recon if allowed under the procedural
rules of the COMELEC / COA will toll the period. If denied, the aggrieved party
only has the remaining period which is no case shall be less than 5 days in any
event, reckoned from notice of denial.956
1.3 Note that only judgments/final orders of the COMELEC en banc can be
brought to the SC. What is exercised is the power of review.
2. The bringing of a petition, shall not stay the execution of the judgment,
final order or resolution unless directed otherwise by the Supreme Court.957
The exercise of judicial function is to determine what the law is, and what the legal rights of
paties are, with respect to a matter is controversy; and whenever an officer is clothed with that
authority, and undertakes to determine those questions, he acts judicially. (The Mun.Council of
Lemery, Batangas vs. The Prov. Board of Batangas, 56 PHIL. 260)
A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.
Without jurisdiction refers to lack of jurisdiction of the court, board, or officer from the
beginning.
The initial determination of what pleadings, documents or orders are relevant and
pertinent to the petition rests on the petitioner.958
956
Supra, Sections 1,2, and 3, Rule 64
957
Supra, Section 8, Rule 64
958
Condes v Court of Appeals, 528 SCRA 339 (July 27, 2007)
WHAT IS CERTIORARI
1.1 There is no appeal, or any plain speedy and adequate remedy in the
ordinary course of law.
1.2 Praying for the judgment annulling / modifying the proceedings of such,
tribunal board officer, tribunal and granting such incidental reliefs as law and
justice may require.959
(a) In the former, the issue is whether the lower court acted without, in
excess of or with grave abuse of discretion, while in the latter the issue is based
on questions of law
(c) The former is filed within 15 days from notice of judgment / order, while
the latter is filed not later than 60 days from notice of the resolution sought to
be assailed or denial of a motion for reconsideration
(d) The former shall stay the judgment /final order or award, while the latter
does not stay the order or resolution unless a temporary restraining order or
preliminary injunction is issued
959
Supra, Section 1, Rule 65
960
Mallari vs. Banco Filipino Savings & Mortgage Bank, 563 SCRA 664, Leyte IV Electric Cooperative,
Inc. vs. Leyteco IV Employees Union, ALU, 537 SCRA 154
(e) In the former, the petitioner/respondent are the original parties in the case
and the lower court is not impleaded, while in the latter, the aggrieved party is the
petitioner against the against the lower court, agency and the prevailing party
(f) The former does not require the filing of a motion for reconsideration prior
to filing, while the latter requires a motion for reconsideration prior to filing
(g) In the former, the court is exercising appellate jurisdiction, while in latter, it
is exercising original jurisdiction
(h) The former can only be filed in the Supreme court, while the latter may be
filed with Supreme Court, Court of Appeals, or the Regional Trial Court
WHAT IS PROHIBITION
1.1 There is no appeal, or any plain, speedy and adequate remedy in the
ordinary course of the law
961
Supra, Section 2, Rule 65
1. In certiorari the object is to correct the respondent’s acts by annulling
proceedings, while in prohibition it is to prevent the commission of an act or
stopping proceedings.
2. In the former, the assailed acts have already been done, while in the latter
the assailed acts are about to be done or are being done.
1. The exercise of judicial function is to determine what the law is, and what
the legal rights of parties are, with respect to a matter is controversy; and
whenever an office is clothed with that authority, and undertakes to determine
those questions, he acts judicially.962
WHAT IS MANDAMUS
2 ASPECTS OF MANDAMUS
962
Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
1. The aspects of Mandamus are: (a) respondent unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from
an office, trust or station or (b) respondent unlawfully excludes another from the
use and enjoyment of a right or office to which such other is entitled.
2. The legal right of the plaintiff (petitioner) to the thing demanded must be
well defined, clear and certain. The corresponding duty of the defendant
(respondent) to perform the required act must also be clear and specific.963
963
Enriquez, Jr v Bidin, 47 SCRA 183
964
Calderon v Sol, 215 SCRA 876
1. Not later than 60 days from notice of the assailed judgment, order or
resolution.
1.1 But if a timely motion for reconsideration is filed, whether required or not,
the 60 days period shall be counted from notice of the denial of the motion.965
1.2 An extension may be granted for compelling reasons but in no case to
exceed 15 days.
1. The petition may be filed in the Supreme Court, the Regional Trial Court if
relates to an act / omission of a lower court, corporation, board, officer or person
within its territorial jurisdiction, or the Sandiganbayan, if in aid of its appellate
jurisdiction
PARTIES TO BE IMPLEADED
1. In addition to the public respondents, the petition shall also join the
person/s interested in sustaining the proceedings and it shall be the duty of the
private respondent to appear and defend both in his behalf and that of the public
respondents.
2. Unless otherwise directed by the court, the public respondents shall not
appear or file an answer or comment. If elevated to a higher court the public
respondents shall be nominal parties, and unless directed shall not appear or
participate in the proceedings therein.966
ORDER TO COMMENT
965
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
966
Supra, Section 5, Rule 65
967
Supra, Section 6, Rule 65
Restraining Order or Injunction is granted enjoining the public respondent from
further proceeding.968
1.1 Execution may issue for any damages / cost in accordance with Section
1, Rule 39.970
Quo warranto literally means “by what authority.” It is a special civil action to determine the
right to the use or exercise of public office or franchise and to oust the holder from its
enjoyment, if his claim is not well founded, or if he has forfeited his right to enjoy the privilege.
The action may be commenced for the Government by the Solicitor General or by a public
prosecutor; or by a person claiming to be entitled to a public office or public position usurped or
unlawfully held or exercised by another may bring an action in his own name. Where a private
person files the action, he must prove that he is entitled to the controverted position, otherwise
the respondent has a right to the undisturbed possession of his office. (See: Castro vs. Del
Rosario, 19 SCRA 196; Tecson vs. Comelc, 424 SCRA 277)
DEFINED
968
Supra, Section 7, Rule 65
969
Supra, Section 8, Rule 65
970
Supra, Section 9, Rule 65
1. Quo Warranto is a special civil action brought by verified petition in the
name of the Republic of the Philippines against: (a) person who usurps, intrudes
into or unlawfully holds or exercises a public office, positions or franchise (b)
public officer who performs an act that constitutes a ground for forfeiture of his
office (c) an association that acts as a corporation within the Philippines without
legally being incorporated or without lawful authority to act.971
1. Besides the Court of Appeals, the action can be brought before the
Supreme Court, a Regional Trial Court exercising jurisdiction over the area
where the respondent/s reside but, if the Solicitor General commences the
action, he may bring it before a Regional Trial Court in Manila, the Court of
Appeals or the Supreme Court.976
WHEN FILED
1. Within 1 year from accrual of the cause of action arising from ouster or
right to hold position
1. When the action is against the person for usurping a public office, position
or franchise, the petition shall set forth the name of the person who claims to be
971
Supra, Section 1, Rule 66
972
Tecson v Comelec, 424 SCRA 277
973
Supra, Section 5, Rule 66
974
Supra, Section 2, Rule 66
975
Supra, Section 3, Rule 66
976
Supra, Section 7, Rule 66
entitled thereto, if any with an averment of his right to the same and that the
respondent is unlawfully in possession thereof.
1.1 All persons who claim to be entitled may be made parties, and their
respective rights may be determined in the same action.977
CONTENTS OF JUDGMENT
1.2 The rights of a person entitled to public office include the right to demand
of the respondent all books and papers in his custody or control appertaining to
the office, otherwise he may be punished for contempt.981
977
Supra, Section 6, Rule 66
978
Supra, Section 8, Rule 66
979
Supra, Section 9, Rule 66
980
Supra, Section 12, Rule 66
981
Supra, Section 10, Rule 66
982
Supra, Sections 10 and 11, Rule 66
1. In quo warranto involving an elective post the issue is the eligibility of
candidate elected, while in that involving an appointive post the issue is the
legality of appointment.
2. In the former, if the respondent is found ineligible, the 2nd highest vote
getter, even if eligible cannot be declared elected, while in the latter, the
resolution shall determine who has been legally appointed and declare who is
entitled to occupy the office.
RULE 67 – EXPROPRIATION
WHAT IS EXPROPRIATION
1. The taking of private property for public purpose upon the payment of just
compensation. It is also known as exercise of the power of eminent domain.
2.1 Public use is one which confers some benefit or advantage to the public.
It is not confined to actual use by the public. It includes the right of use by the
public, whether it is exercised by one or some or many members of the public.
HOW EXERCISED
1. Filing of a verified complaint which shall state with certainty the right and
the purpose of expropriation, describing the real / personal property sought to be
expropriated, joining as defendants all persons claiming / owning or occupying
any part thereof or interest therein.
983
Estate of Salud Jimenez v PEZA, 349 SCRA 240
984
Manosca v Court of Appeals, 252 SCRA 412
985
Reyes v NHA, 395 SCRA 494
1.1 Note that the subject can be either real / personal property.986
WHERE FILED
1.1 No counterclaim, cross claim or 3rd party complaint shall be allowed in the
answer or any subsequent pleading.990
1.2 The non filing of an answer does not result in the defendant being
declared in default nor does it bar him from presenting evidence as to the amount
of compensation due and to share in the distribution of the award.
2.2 Note that under Section 19 of the Local Government Code, the LGU can
take possession upon deposit with the court of fifteen (15%) percent of the Fair
Market Value based on the current tax declaration.
986
Supra, Section 1, Rule 67
987
Local Government Code
988
Beluso v Muncipality of Panay, Capiz, GR No. 153974, August 7, 2006
989
Barangay San Roque v Heirs of Pastor, 334 SCRA 127
990
Supra, Section 3, Rule 67
991
Supra, Section 2, Rule 67
market value as stated in the current tax declaration or the zonal value whichever
is higher, plus the value of the improvements using the replacement cost
method.993
3.1 Thereafter, the court may dismiss the petition or issue an order of
expropriation or order of condemnation.
3.2 The order of expropriation is appealable but shall not prevent the
determination of just compensation.
3.3 Since the order of expropriation has been entered, the plaintiff cannot
dismiss or discontinue the case except on terms that the court deems just and
equitable.994
4. The right of plaintiff to enter into the property and appropriate shall not be
delayed by an appeal. However, if appellate court determines that no right of
expropriation exists, it shall order the RTC to enforce restoration and determine
the damages that the defendant sustained.995
5.1 Just compensation is defined as the full and fair equivalent of the property
sought to be expropriated considering the cost of acquisition, current value of like
properties, actual or potential uses and in case of lands, their size, shape and
location.998
992
An Act to Facilitate the Acquisition of a Right of Way Site for National Governement Infrastructure
Projects and Other Purposes
993
Republic v Gingoyon, GR No. 166429, December 19, 2005
994
Supra, Section 4, Rule 67
995
Supra, Section 11, Rule 67
996
Supra, Sections 5,6,7, and 8, Rule 67
997
City of Manila v Batlle, 25 Phil 566
998
NPC v De La Cruz, GR No. 156093, February 2, 2007
999
Republic v Sarabia, 468 SCRA 142
5.3 If upon determination of just compensation, the ownership is uncertain or
claims are conflicting, the court may order sum / sums paid to be given to the
Court for the benefit of the person adjudged in the same proceeding to be
entitled thereto but payment will be required to be given to the defendant or the
court before plaintiff can enter into or retain the property.1000
5.4 The plaintiff shall have the right to enter into the property and expropriate
for public use or retain it if already entered. If defendant or counsel absent
themselves from the court or decline to receive the amount, it shall be deposited
in the court and shall have the effect of actual payment.1001
5.5 Title will pass only upon full payment of the just compensation.1002
5.6 Non payment does not entitle the landowner to recover possession.
However, if the government fails to pay just compensation within 5 years from
finality of judgment, the owners shall have the right to recover the property. 1003
5.7 When private land is expropriated for a particular public use and that
public use is abandoned, the land expropriated: (a) shall not revert if the
acquisition is in fee simple unconditional, or (b) is re-acquired if expropriated with
a condition that if the public use is abandoned or ended, title reverts to former
owner.1004
1. All costs, except that incurred by rival claimants, shall be paid by the
plaintiff unless an appeal is taken therefrom by the owner of the property and the
judgment is affirmed. Costs shall include the fees of the commissioners.1006
2. After trial, if the court shall find the facts to be true, it shall ascertain the
amount due the plaintiff and render judgment for the sum with an order for it to be
paid by the adverse party to the court or judgment oblige within a period of not
less than ninety (90) days nor more than one hundred twenty (120) days from
entry of judgment, and that in case of default, the property will be sold at public
auction. This period is known as the Mortgagor’s Equity of Redemption. 1010
1007
El Hogar Filipino v Seva, 57 Phil 573
1008
Russel v Vestil, 304 SCRA 738
1009
Supra, Section 1, Rule 68
1010
Supra, Section 2, Rule 68
entry of foreclosure judgment, while in the latter it is one year from redemption is
within one year from date of registration of the sheriff’s certificate of sale, except
when the mortgagor is a juridical person, in which case, the right to redeem must
be exercised until, but not after, the registration of the certificate of sale with the
applicable register of deeds which in no case shall be more than three months
after foreclosure, whichever is earlier.1011
3. If not paid, upon motion, the court shall order the property sold in the
manner prescribed under Rule 39, such sale shall not affect the rights of persons
holding prior liens/encumbrances on the property or parts thereof.
3.1 Upon motion, sale shall be confirmed, and such shall operate to divest the
rights in the property of all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be allowed by law.
3.3 Upon finality of the order of confirmation or upon expiration of the period of
redemption when allowed by law, the purchaser at auction is entitled to
possession unless a third party is holding it adversely to the judgment obligor, in
which case, the purchaser at the auction sale may secure a writ of possession
from the Court ordering the sale.1012
3.5 If with right of redemption, the annotation is to await final deed of sale
executed by Sheriff.1013
4. Proceeds of the sale shall, after deducting the costs, be paid to the
persons foreclosing the mortgage. If there be a balance or residue, it shall be
paid to the junior encumbrancers, in the order of priority ascertained by the
Court, if none or there still be a balance or residue after payment, to the
mortgagor.1014
5. If debt is not all due, as soon as a sufficient portion of the property has
been sold to pay the total amount, the sale shall terminate. Afterwards, no more
1011
Section 47, Philippine General Banking Law
1012
Supra, Section 3, Rule 68
1013
Supra, Section 7, Rule 68
1014
Supra, Section 4, Rule 68
shall be sold, but if property cannot be sold in portions, the entire property is to
be sold with rebate of interest if proper when the full debt is paid.1015
6.1 If the balance is due at the time of rendition of judgment or at such time as
the remaining balance becomes due under the terms of the original contract,
which time shall be stated in the judgment.1016
RULE 69 – PARTITION
A partition agreement which was executed pursuant to a will that was not probated can
not be given effect.1018
OBJECT OF PARTITION
1. Separate, divide and assign a thing that is held in common among those
to whom it may belong. The remedy may be availed of regardless of whether it
involves real or personal property, or both
1. Any person, having the right to compel partition of real estate may file,
setting forth therein the nature and extent of his title, adequate description of the
property, joining as defendants all other persons interested in the property. 1019
2. Partition and Accounting under this rule is in the nature of a quasi in rem
action1020.
1015
Supra, Section 5, Rule 68
1016
Supra, Section 6, Rule 68
1017
Supra, Section 8, Rule 68
1018
Rodriguez v Rodriguez, 532 SCRA 642 (September 11, 2007)
1019
Supra, Section 1, Rule 69
1020
Valmonte v Court of Appeals, 52 SCRA 92
PROCEDURE
1. If after trial, it finds for the plaintiff, it will order partition. This is known as
the order of partition
1.1 A final order decreeing partition and accounting may be appealed by the
party aggrieved thereby.1021
2. Thereupon, if the parties agree, the parties may undertake the partition
among themselves by proper instruments. The court shall thereupon confirm the
partition so agreed by the parties. Such partition and order of confirmation shall
then be recorded in the registry of deed of the place where the property is
situated.
2.1 If they fail to agree, the Court shall appoint not more than 3
commissioners, commanding them to set-off to the plaintiff and each party in
interest such part and proportion of the property as the court will direct. 1022
2.2 Before discharging their duties, the commissioners shall take an oath that
they will faithfully discharge their duties, and in so doing they shall view and
examine the real property , shall hear the preferences of the parties, determine
the comparative value of the property, and shall set apart the same to the parties
in lots or parcels as will be most advantageous and equitable, having due regard
to the improvements, situation and quality of the different parts thereof.1023
2.3 If the property cannot be divided without prejudice to the interest of the
parties, the court may order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such amount as determined by the
commissioners to be equitable, unless one of the interested parties asks that the
property be sold instead.1024
2.4 A report should thereupon be made by the commissioners and filed with
the court, which shall then give the parties 10 days within which to file heir
objections to the findings. No proceeding shall pass title to the property or bind
the parties until the court shall have accepted the report and rendered judgment
thereon. Note though that the court has the option to accept or re-commit the
matter to the commissioners.1025
2.5 If actual partition of the property is made, judgment shall state definitely
the metes and bounds and adequate description of the property, the particular
1021
Supra, Section 2, Rule 69
1022
Supra, Section 3, Rule 69
1023
Supra, Section 4, Rule 69
1024
Supra, Section 5, Rule 69
1025
Supra, Sections 6 and 7, Rule 69
portion allocated to each party and its effect is to vest to each party in the action
in severalty the portion of real estate assigned to him. If the whole property is
assigned to one after payment to the others, judgment has the effect of vesting in
the party making payment the whole of the real estate free from any interest of
the other parties. If the property is sold and proceeds divided, judgment has the
effect of vesting the property or portion sold in the purchaser free from any
interest of the parties to the action.1026Judgment may include recovery from the
other of just share of rents and profits received by the other from the real estate
in question1027 and costs equitably apportioned among the parties.1028
2.6 This judgment is called the judgment of partition and may be the subject of
an appeal.
2.1 Such action must be brought within one year after withholding such
possession. It is also known as an accion interdictal which seeks to recover
possession de facto or physical, actual or material possession.
1026
Supra, Section 11, Rule 69
1027
Supra, Section 8, Rule 69
1028
Supra, Section 10, Rule 69
1029
Supra, Section 1, Rule 70
1. From Accion Publiciana- which is a plenary action to recover right of
possession that is brought after one year from accrual of the cause of action in a
Regional Trial Court
1.1 Or by serving written notice of such demand upon the person found within
the premises
1.4 If action is due to the termination of the lease due to the expiration of its
term, demand is not a prerequisite.1033Neither is it required when there is a
stipulation dispensing with the need for demand.
1030
Supra, Section 2, Rule 70
1031
Yap v Cruz, 208 SCRA 692
1032
Sps. Llobrera v Fernandez, GR No. 142882, May 2, 2006
1033
Lanuza v Munoz, 429 SCRA 562
1034
Supra, Section 3, Rule 70
PROCEDURE TO BE FOLLOWED
2. Upon filing of the complaint, the court may, from an examination of the
allegations in the complaint and such evidence attached thereto, dismiss the
complaint on any of the grounds for a motion to dismiss which are apparent
therein.
3. If summons is issued, the defendant shall file his answer within 10 days
from receipt, serving a copy thereof to the plaintiff. It is an error on the part of the
judge to give the defendants 15 days to file an answer.1037
3.1 Affirmative or negative defenses not pleaded are deemed waived, except
lack of jurisdiction over the subject matter.
4. Failure to answer the complaint within the period above provided, the
court, motu proprio, or on motion of the plaintiff, shall render judgment as may be
prayed for therein: Provided, however, That the court may in its discretion reduce
the amount of damages and attorney’s fees claimed for being excessive or
otherwise unconscionable. This is without prejudice to the applicability of Section
3, Rule 9 of the Rules of Court, if there are two or more defendants.1039
5. A preliminary conference is then scheduled not later than 30 days after the
last answer is filed. The provision of Rule 18 on pre-trial shall be applicable to the
preliminary conference unless inconsistent with the provisions of this Rule.
5.1 The failure of the plaintiff to appear in the preliminary conference shall be
a cause for the dismissal of his complaint.
5.2 The defendant who appears in the absence of the plaintiff shall be entitled
to judgment on his counterclaim in accordance with Section 6 hereof. All cross-
claims shall be dismissed.
1035
Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
1036
Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
1037
Santos vs. Tanciongco, 567 SCRA 134
1038
Supra, Section 6, Rule 70, Article II, Section 5, Rules on Summary Procedure
1039
Supra, Section 7, Rule 70, Article II, Section 6, Rules on Summary Procedure
5.3 If a sole defendant shall fail to appear, the plaintiff shall be entitled to
judgment in accordance with Section 6 hereof. This Rule shall not apply where
one of two or more defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary conference.
7. Within 10 days from receipt of the order, the parties shall submit the
affidavits of their witnesses, evidences and position papers setting forth the law
and the facts relied upon.1042
7.1 The affidavits submitted shall only state the facts of direct personal
knowledge of the affiant which are admissible in evidence and must indicate their
competence to testify. A violation may subject the party or counsel to disciplinary
action and will be cause to expunge the inadmissible affidavit or portion thereof
from the record.1043
8. The following petitions, motions, or pleadings are prohibited and shall not
be allowed to be filed:
1040
Supra, Section 8, Rule 70, Article II, Section 7, Rules on Summary Procedure
1041
Supra, Section 9, Rule 70, Article II, Section 8, Rules on Summary Procedure
1042
Supra, Section 10, Rule 70, Article II, Section 9, Rules on Summary Procedure
1043
Supra, Section 14, Rule 70, Article II, Section 20, Rules on Summary Procedure
1044
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
1045
Heirs of Olivas v Flor, 161 SCRA 393
(b) Motion for a bill of particulars;
(e) Motion for extension of time to file pleadings, affidavits or any other
paper;
(f) Memoranda;
(j) Reply;
(l) Interventions.1048
10. The court shall then render judgment within 30 days after receipt of the
last affidavits and position papers, or the expiration of the period for filing the
same.
1046
Jakihaca v Aquino, 181 SCRA 67
1047
Lucas v Fabros, 324 SCRA 1
1048
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
1049
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
1050
Supra, Section 20, Rule 70
10.1 However, should the court find it necessary to clarify certain material facts,
it may, during the said period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits or other evidence on the said
matters within ten (10) days from receipt of said order.
10.2 Judgment shall be rendered within fifteen (15) days after the receipt of the
last clarificatory affidavits, or the expiration of the period for filing the same.
10.3 The court shall not resort to the clarificatory procedure to gain time for the
rendition of the judgment.1051
11. Should the defense of ownership be raised, the court shall only consider
the same if the issue of possession cannot be resolved without deciding the
issue of ownership. It shall thus be resolved only to determine possession and
any judgment shall be conclusive only on possession and shall not be a bar to
another action between the parties respecting the title to the land or building1052
12. The judgment to be rendered by the court in favor of the plaintiff shall
include restitution of the premises, the sum justly due as arrears of rent or as
reasonable compensation for the use of the premises, attorney’s fees and costs.
If the allegations are not true, it shall render judgment for the defendant for
recovery of cost. If a counterclaim is established, the court shall render judgment
for the sum found in arrears from either party and award costs as justice
requires.1053
12.1 While the general rule in ejectment cases that the recoverable damages
are fair rental value or reasonable compensation for the use or occupation of real
property, liquidated damages may be recovered if so stipulated.1054
12.2 The judgment is appealable to the appropriate Regional Trial Court, which
shall decide the case on the basis of the entire record of the proceedings in the
court of origin and such memoranda or brief as may be submitted or required 1055
12.3 If judgment is rendered against the defendant, the execution shall issue
immediately upon motion, unless an appeal has been perfected and the
defendant to stay execution files a sufficient supersedeas bond if there are
rentals in arrears1056, approved by the court and executed in favor of the
defendant to pay rents, damages and costs accruing down to the time of the
judgment appealed from, and unless, during the pendency of the appeal, he
deposits with the appellate court the amount of the rent due from time to time
1051
Supra, Section 11, Rule 70, Article
1052
Supra, Sections 16 and 18, Rule 70
1053
Supra, Section 17, Rule 70
1054
Azcuna, Jr. v Court of Appeals,255 SCRA 215
1055
Supra, Section 18, Rule 70
1056
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
under the contract or the reasonable value for use and occupation adjudged by
the court on or before the 10th day of each succeeding month or period.1057
12.4 In conformity with Section 19, Rule 70 of the 1997 Rules of Civil
Procedure, it has been consistently ruled that if no supersedeas bond is filed, the
trial court, upon motion, may correctly order execution of judgment.1058 Note that
there is no necessity for a motion for the court to fix the supersedeas bond as the
amount of the same can be ascertained from the judgment. Also, if the records of
the case have already been transmitted to the appellate court, the supersedeas
bond may be filed with the appellate court.1059
12.5 The filing of a notice of appeal and payment of the necessary docket does
not stay the execution of the decision.
12.6 The judgment of the appellate court shall however be subject to immediate
execution without prejudice to a further appeal1060
RULE 71 – CONTEMPT
WHAT IS CONTEMPT
KINDS OF CONTEMPT
1057
Supra, Section 19, Rule 70
1058
Silverio v Court of Appeals, 407 SCRA 240
1059
Chua v Court of Appeals, 286 SCRA 437
1060
Supra, Section 21, Rule 70
1061
Dela Cruz v Roxas, 75 Phil 457
1062
Ariem v Delos Angeles, 49 SCRA 343
answer as a witness, or to subscribe to an affidavit/deposition when lawfully
required to do so.
2.1 This kind of contempt may be initiated motu propio by the court against
which the contempt was committed by an order or any formal charge requiring
the respondent to show cause why he should not be punished for contempt. In
other cases, it shall be commenced by verified petition with supporting particulars
and certified true copies of documents or papers involved therein, and upon full
1063
Supra, Sections 1 and 2, Rule 71
1064
Ang v Castro, 136 SCRA 453
1065
Supra, Section 3, Rule 71
compliance with the requirements for the filing of initiatory pleadings in the court
concerned.
2.2 If the charges are related to the principal action pending before the court,
the petition shall so allege such fact but it shall be docketed, heard and decided
separately, unless the court in its discretion orders consolidation of the charge
and principal action for joint hearing and decision.1066
2.3 The charge shall be filed in the Regional Trial Court if the contempt is
committed against it or a court of equal or higher rank or against an officer
appointed by it.
2.4 If against a lower court, it may be filed in the Regional Trial Court in the
place where the lower court sits or in such lower court, subject to appeal to the
Regional Trial Court.1067
2.6 A judgment for indirect contempt is appealable to the Regional Trial Court,
but execution shall not be suspended without the filing of a bond.1070
OTHERS
1. If no hearings are held forthwith and the respondent has been taken into
custody, he may be released upon payment of a bond, but if he fails to appear on
the hearing of the charge, he may be ordered arrested and the bond forfeited. 1072
It is criminal contempt when the purpose is to vindicate the authority of the court
and protect its outraged dignity. It is civil contempt when there is failure to do
something ordered by the court to be done for the benefit of another party. 1075
SCOPE OF APPLICATION
2. The exceptions are the following: (a) where one party is the government or
any subdivision or instrumentality thereof (b) where one party is a public officer or
employee, and the dispute relates to the performance of his official functions (c)
offenses punishable by imprisonment exceeding 1 year or a fine exceeding PHP
5000.00 (d) offenses where there is no private offended party (e) where the
dispute is brought by or against a corporation, partnership or juridical entity (f)
where the dispute involves real properties located in different cities or
municipalities unless the parties agree to submit their differences to amicable
settlement by an appropriate lupon (g) where dispute involves parties who
actually reside in barangays of different cities or municipalities, except when the
barangays actually adjoin each other and the parties agree to submit their
differences to amicable settlement by an appropriate lupon (h) such other
classes of disputes which the President may determine in the interest of justice
or upon recommendation by the Secretary of Justice (Section 408, PD 1508). (i)
disputes arising from the implementation of the CARP (j) Employer-Employee
disputes (k) action to annul a judgment upon a compromise.
1073
Supra, Section 10, Rule 71
1074
Supra, Section 12, Rule 71
1075
Yasay v Recto, 313 SCRA 739
has been repudiated within 10 days from its date by a statement sworn before
the punong barangay to the effect that his consent is vitiated by fraud violence or
intimidation ( Section 418, PD 1508), the following cases may be filed directly: (1)
accused in under detention (2) person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings (3) when action is coupled with a
provisional remedy (4) where action may otherwise be barred by prescription
(Section 412, PD 1508)
VENUE
(b) Mediation by lupon chairman on the next working day from receipt of the
complaint, failing in which within 15 days from the first meeting, he shall forthwith
set a date for the constitution of the pangkat
(c) The pangkat shall convene not later than 3 days from constitution to hear
the parties and explore the possibility of an amicable settlement within 15 days
from the day it convenes, which period is extendible for another 15 days, except
in clearly meritorious cases.
2. Note however, that while prescription does not run upon filing of the
complaint and shall resume only upon receipt of the complaint or certificate of
repudiation, or certification to file action, the interruption shall not exceed 60 days
from filing of the complaint with the punong barangay. (Section 410, PD 1508)
3. The form of the amicable settlement shall be in writing, in a
language/dialect known to the parties, signed by them and attested by the
lupon/pangkat chairman (Section 411, PD 1508).
3.1 This shall have the force and effect of a final judgment of a court upon
expiration of 10 days from date thereof unless repudiation has been made or a
petition to nullify the award has been filed before the proper court.
3.2 This does not apply to cases already pending but subsequently referred to
the lupon for amicable settlement under the last paragraph of Section 408,as the
same is submitted back to the court to serve as basis for rendition of judgment.
(Section 416, PD 1508).
3.3 The award or settlement may be enforced by execution by the lupon within
6 months from the date of the settlement. After the lapse of the said period, by
action in the appropriate city of municipal court. (Section 417, PD 1508)
4. Note however that if a settlement is not complied with, the injured party
may bring an action against the offending party to recover the original amount of
his claim, thereby rescinding the compromise under Article 2041 of the Civil
Code which was held to qualify Article 2037 of the Civil Code as to the effect of a
compromise being considered as constituting res judicata.1076
REVISED RULE ON
SUMMARY PROCEDURE
1076
Chavez v Court of Appeals, GR 159411, March 18, 2005
Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P. Blg.
129) and to achieve an expeditious and inexpensive determination of the cases
referred to herein, the Court Resolved to promulgate the following Revised Rule
on Summary Procedure:
APPLICABILITY
SECTION 1. Scope: - This rule shall govern the summary procedure in the
Metropolitan Trial Courts in Cities, the Municipal Trial Courts, and the Municipal
Circuit Trial Courts in the following cases falling within their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, irrespective of the amount
of damages or unpaid rentals sought to be recovered. Where attorney’s fees are
awarded, the same shall not exceed twenty thousand pesos (P20,000).
(2) All other cases, except probate proceedings, where the total amount of
plaintiff’s claim does not exceed one hundred thousand pesos (P100,000) or, two
hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of interest
and costs. (As amended by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this
amended took effect on November 25, 2002)
B. Criminal Cases:
This rule shall not apply to a civil case where the plaintiff’s cause of action
is pleaded in the same complaint with another cause of action subject to the
ordinary procedure; nor to a criminal case where the offense charged is
necessarily related to another criminal case subject to ordinary procedure.
1077
A.M. 00-11-01-SC, April 15, 2003
SEC. 2. Determination of applicability. – Upon the filing of a civil or
criminal action, the court shall issue an order declaring whether or not the case
shall be governed by this Rule.
II
CIVIL CASES
SEC. 3. Pleadings. –
SEC. A. Duty of court. – After the court determines that the case falls
under summary procedure, it may, from an examination of the allegations therein
and such evidence as may be attached thereto, dismiss the case outright on any
of the grounds apparent therefrom for the dismissal of a civil action.
NOTE: That any of the grounds for dismissal under Rule 16 apply although no
motion to dismiss can be filed except on the grounds of lack of jurisdiction and
non-compliance with the requirement on conciliation.
NOTE: That the prohibition as to the filing of a motion to dismiss exists prior to
the filing of an answer but a dismissal grounded on any of the causes stated in
Rule 16 can only be effected prior to the issuance of the court of summons and
not after an answer has been filed (Heirs of Ricardo Olivas vs. Flor, 161 SCRA
393)
SEC. 5. Answer. – Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy thereof on the
plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed
waived, except for lack of jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer shall be considered barred.
The answer to counterclaims or cross-claims shall be filed and served within ten
(10) days from service of the answer in which they are pleaded.
SEC. 6. Effect of failure to answer. – Should the defendant fail to answer
the complaint within the period above provided, the court, motu proprio, or on
motion of the plaintiff, shall render judgment as may be prayed for therein:
Provided, however, That the court may in its discretion reduce the amount of
damages and attorney’s fees claimed for being excessive or otherwise
unconscionable. This is without prejudice to the applicability of Section 4, Rule 18
of the Rules of Court, if there are two or more defendants.
SEC. 8. Record of preliminary conference. – Within five (5) days after the
termination of the preliminary conference, the court shall issue an order stating
the matters taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if so,
the terms thereof;
(c) Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered without the need of
further proceedings, in which event the judgment shall be rendered within thirty
(30) days from issuance of the order;
(e) Such other matters intended to expedite the disposition of the case.
SEC. 9. Submission of affidavits and position papers. – Within ten (10)
days from receipt of the order mentioned in the next preceding section, the
parties shall submit the affidavits of their witnesses and other evidence on the
factual issues defined in the order, together with their position papers setting
forth the law and the facts relied upon by them.
SEC. 10. Rendition of judgment. – Within thirty (30) days after receipt of
the last affidavits and position papers, or the expiration of the period for filing the
same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts,
it may, during the said period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits or other evidence on the said
matters within ten (10) days from receipt of said order. Judgment shall be
rendered within fifteen (15) days after the receipt of the last clarificatory affidavits,
or the expiration of the period for filing the same.
The court shall not resort to the clarificatory procedure to gain time for the
rendition of the judgment.
NOTE: That hearings are not necessary unless for the purpose of clarifying
certain material facts.
III
CRIMINAL CASES
Sec. 11. How commenced. – The filing of criminal cases falling within the
scope of this Rule shall be either by complaint or by information; Provided,
however, That in Metropolitan Manila and in Chartered Cities, such cases shall
be commenced only by information, except when the offense cannot be
prosecuted de officio.
Sec. 17 Judgment. – Where a trial has been conducted, the court shall
promulgate the judgment not later than thirty (30) days after the termination of
trial.
COMMON PROVISIONS
(f) Memoranda;
(l) Interventions.
A violation of this requirement may subject the party or the counsel who
submits the same to disciplinary action, and shall be cause to expunge the
inadmissible affidavit or portion thereof from the record.
SEC. 21. Appeal. – The judgment or final order shall be appealable to the
appropriate regional trial court which shall decide the same in accordance with
Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in
civil cases governed by this Rule, including forcible entry and unlawful detainer,
shall be immediately executory, without prejudice to a further appeal that may be
taken therefrom.
NOTE: That immediate execution requires proof that the losing party has been
served with notice of judgment (Dy vs. CA, 191 SCRA 585) and that notice of the
motion for execution to the adverse party is required ( Limpo vs. CA, 333 SCRA
575)