CIVIL PROCEDURE

Instruction: In yellow paper or notebook, answer the following questions correctly, briefly
and concisely. Cite the provision/s or citation of the jurisprudence that support your answer or
explanation. Most importantly, study your answers for the next graded oral recitation.

1. What is “omnibus motion rule”?

The omnibus motion rule is a procedural principle which requires that every motion
that attacks a pleading, judgment, order or proceeding shall include all grounds then available,
and all objections not so included shall be deemed waived

2. a)What is/are the consequences of failure to include notice of hearing in an

adversarial motion? b) To whom should the notice of hearing be addressed? c) What
should the notice of hearing include?

a)The failure to include the notice of hearing in an adversarial motion makes such motion a
mere scrap of paper; it presents no question which merits the attention and consideration of
the Court. It is not even a motion for it does not comply with the rules and, hence, the clerk
has no right to receive it.

b) The notice of hearing shall be addressed to all parties concerned.

c)The notice of hearing shall specify the time and date of the hearing which must not be later
than ten (10) days after the filing of the motion.

3. a) What are the requisites of a valid declaration of default?; b) can the court
declare a defendant in default muto proprio? Explain.

a) To have a valid declaration of default, the defending party must have failed to answer within
the time allowed therefore,

b)No, the court cannot declare a defendant in default motu propio. Instead, the court shall,
upon motion of the claiming party with notice to the defending party, and proof of such failure,
declare the defending party in default.

4. In a collection case filed with the RTC, defendant filed a motion to admit
belatedly filed answer attaching thereto a copy of his answer. As the answer was filed
thirty days late, the judge denied its admission and instead issued an order declaring the
defendant in default. Is the judge correct? Explain.

No, the judge is not correct since the court cannot declare a defendant in default motu
propio. The law provides that if the defending party fails to answer within the time allowed
therefore, the court shall, upon motion of the claiming party with notice to the defending party,
and proof of such failure, declare the defending party in default.

5. a) What are the grounds for dismissal of a complaint?; b) What are the remedies
of the plaintiff when a motion to dismiss is granted by the court?; c) What are the
remedies of the defendant when his motion to dismiss is denied?
A) Under Rule 16, section 1, within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party;

(b) That the court has no jurisdiction over the subject matter of the claim;

(c) That venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

(e) That there is another action pending between the same parties for the same cause;

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

(g) That the pleading asserting the claim states no cause of action;

(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;

(i) That the claim on which the action is founded is enforceable under the provisions of the
statute of frauds; and

(j) That a condition precedent for filing the claim has not been complied with.

B) The remedies of the plaintiff when a motion to dismiss is granted by the court is to
amend his complaint provided that the order of dismissal has not yet become final and
exectuory. So within 15 days therefore, he has to amend his complaint.

C) If the motion is denied, the remedy of the defendant is to file his answer within the
balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his
motion, but not less than five (5) days in any event, computed from his receipt of the notice of
the denial. If the pleading is ordered to be amended, he shall file his answer within the period
prescribed by Rule 11 counted from service of the amended pleading, unless the court provides
a longer period.

6. a) How and when may plaintiff dismiss his/her action as a matter of right?; b)
What is meant by two-dismissal rule?

a) A plaintiff may dismiss his or her action as a matter of right as provided in Rule 17,
section 1 which states that a complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for summary judgment. Upon
such notice being filed, the court shall issue an order confirming the dismissal. Unless
otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates
as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a
competent court an action based on or including the same claim.

b) The two-dismissal rule means that when the same complaint had twice been dismissed
by the plaintiff under Rule 17, section 1 by simply filing a notice of dismissal, the second
dismissal shall be with prejudice.

7. Plaintiff filed a collection case at the RTC. Realizing that the amount claimed is
within the jurisdiction of the MTC, plaintiff filed notice of dismissal under Rule 17. In its
order confirming dismissal of the action, the judge stated that the dismissal is with
prejudice. Plaintiff, nevertheless, re-filed the case with the MTC. Defendant filed motion
to dismiss on the following grounds: a) that the order of dismissal is with prejudice
which means that plaintiff can no longer re-file the case; b) that plaintiff is barred from
re-filing the case under the two-dismissal rule.

a. Comment on the judge’s order of dismissal; b) Rule on the motion.

a) The judge’s order confirming the dismissal of the action with prejudice is not correct.
Rule 17, section 1 provides that unless otherwise stated in the notice, the dismissal is without
prejudice, except that a notice operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action based on or including the
same claim.

b) The defendant’s motion to dismiss based on the ground that the order of dismissal is
with prejudice, the same is not tenable because under Rule 17, section 1, a complaint may be
dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer
or of a motion for summary judgment. Upon such notice being filed, the court shall issue an
order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without
prejudice, except that a notice operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action based on or including the
same claim.

Moreover, the plaintiff is not barred from re-filing the case under the two-dismissal rule
since such rule applies when the plaintiff has:

1. Twice dismissed actions:

2. Based on or including the same claim;
3. In a court of competent jurisdiction.

In this case, the plaintiff only dismissed the action once. Thus, the rule cannot be
applied.

8. a) After answer has been served, can plaintiff still dismiss his/her action?; b) if
the complaint is dismissed, does it carry with it dismissal of the counterclaim pleaded by
the defendant?; c) if you are the defendant and you want to prosecute your counterclaim
in the same action, what should you do?

a) Generally, No, the plaintiff cannot dismiss his/her action after an answer has been
served as provided in Rule 17, section 2 which states that except as provided in the preceding
section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the
court and upon such terms and conditions as the court deems proper.

b) No, the dismissal of the complaint does not carry with it the dismissal of the
counterclaim. Rule 17, section 2 provides that if a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal
shall be limited to the complaint.

c) If I were the defendant who wants to prosecute my counterclaim, Rule 17, section 2
provides that I should prosecute my counterclaim in a separate action unless within fifteen (15)
days from notice of the motion I manifests my preference to have my counterclaim resolved in
the same action.
9. What are the grounds for quashing a subpoena?; b) can a subpoena be served thru
publication if the witness could not be located or his address is unknown?

a) Under Rule 21, section 4, the court may quash a subpoena duces tecum upon motion
promptly made and, in any event, at or before the time specified therein if it is unreasonable
and oppressive, or the relevancy of the books, documents or things does not appear, or if the
person in whose behalf the subpoena is issued fails to advance the reasonable cost of the
production thereof.

The court may quash a subpoena ad testificandum on the ground that the witness is not bound
thereby. In either case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by these Rules were not tendered when the subpoena was served.

b) No, a subpoena cannot be served thru publication if the witness could not be located or
his address is unknown since as provided in Rule 21, section 6, service of a subpoena shall be
made in the same manner as personal or substituted service of summons.

10. In a case, a very vital witness is a prisoner/convicted rapist who is now serving
his sentence at the Davao Penal Farm. If you were the proponent lawyer, what should
you do in order to obtain the appearance of that prisoner witness?

Rule 21, section 2

11. Outline the procedure on how to compel the attendance of a witness under Sec. 8,
Rule 21 and the procedure under Sec. 14, Rule 119.

12. After answer was filed, plaintiff filed a motion for judgment on the pleadings
which was granted by the court. After judgment was rendered, plaintiff moved to
reconsider the decision for insufficiency of evidence to justify the decision. If you were
the judge, will you grant the motion? Explain.

Rule 39.

13. a) Discuss the effects/consequences of failure to appear during the pre-trial;

b) What is the consequence of failure to file pre-trial brief by plaintiff?

a) Under Rule 18, section 5, the failure of the plaintiff to appear during the pre-trial when
so required pursuant to the next preceding section shall be cause for dismissal of the action.
The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure
on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex
parte and the court to render judgment on the basis thereof.

b) Under Rule 18, section 6, failure to file the pre-trial brief shall have the same effect as
failure to appear at the pre-trial.

14. Enumerate the different modes of discovery and outline the procedure on how
should one go about each one of them.

The following are the different modes of discovery:

 1. Depositions—pending action (rule 23) /before action or pending appeal (rule 24);
2. Written interrogatories to parties (rule 25) ;
3. Request for admission of adverse parties (rule 26);
4. Production or inspection of documents and things (rule 27); and
5. Physical and mental examination of persons (rule 28)

Deposition is defined as the written testimony of a witness given in the course of judicial proceeding in
advance of the trial or hearing, upon oral exam or written interrogatories and where an opportunity is given for
cross examination. It is the most popular among the five modes of discovery. It cou.ld either be disposition
pending action or before action or pending appeal

Written interrogatories to parties is a mode of discovery availed of for the purpose of eliciting material and
relevant facts from any adverse party.

Request for admission of adverse parties is similar to interrogatories but here, you request the other party to
admit the genuineness of any material and relevant document described on and exhibited with the request or the
truth in the request.

Production or inspection of documents and things is limited to the parties in the action and issued only upon
motion with notice to the adverse party.

Physical and mental examination of persons is the fifth and last mode of discovery. It may be ordered in an
action in which the mental or physical condition of a party is in controversy, the court in which the action is
pending may in its discretion order him to submit a physical or mental examination by a physician.

15. A complaint was filed by X against Y. X took the deposition of Z, his intended witness.
Subsequently, X died and he was substituted by his heir S. During the hearing, S manifested
that he will be presenting the deposition of Z to which, Y objected. Accordingly, the one who
took the deposition is already dead and therefore, S can no longer use it. Rule on the objection.

Rule 23, section 4 and 5

16. Suppose that the case filed by X against Y in the preceding question was dismissed but
another case was filed involving the same subject matter, can X still use the deposition taken
in the previous action? Rule 23, section 5

17. The general rule is that “deposition may not take the place of the testimony of a witness
in open court”. Under what circumstances that deposition may be used? Rule 23 sec 5

18. When may objections to the admissibility of a deposition be made. Sec 6

19. What is letters rogatory?

20. Distinguish “depositions upon written interrogatories”under Sec. 25 ofRule 23 and

“interrogatories to parties” under Rule 25.

21. What are the effects of failure to serve interrogatories under Rule 25?

22. What are the consequences of refusal to answer interrogatories to adverse parties?

23. What are the facts that an adverse party may be required to admit in a request for
admission?

24. What is/are the consequence/s of failure to answer request for admission?

25. Plaintifffiled a complaint against defendant. After issues were joined, defendant served
request for admission upon plaintiff requiring the latter to admit the facts alleged in his answer
and those that are set forth in his affirmative defenses. Plaintifffiled a reply to the request but
the same was not under oath. Contending plaintiff is deemed to have admitted those matters of
which request for admission were made, he now prays for judgment on the pleadings and/or
summary judgment. Rule.

26. a) Under what circumstance that “physical and mental or mental examination” as a
mode of discovery may be availed of?; b) Atty. A requested for a physical and mental
examination of his client which was granted by the court. After the examination, a subpoena
was issued to the examining physician for him to testify on the result of his examination.
Counsel moved to quash the subpoena. Accordingly, the testimony of the doctor would violate
doctor-patient privilege. Rule.

27. What are the effects/consequences or sanctions for refusal to comply with modes of
discovery?

28. a) When may the judge delegate reception of evidence to his clerk of court?;

b) Liza, a law graduate is the acting clerk of court of the RTC. Can the judge delegate the
reception of evidence to Liza? Explain.

29. a) When may demurrer to evidence be filed?; b) If the motion for demurer is denied, can
the defendant still present evidence in his behalf?; c) If the motion is granted and the order is
reversed on appeal, can the defendant still present evidence in his behalf?

30. Differentiate demurrer to evidence in civil case from criminal case.

31. In a suit for damages, plaintiff prays for actual, moral nominal and exemplary damages.
Defendant filed an answer alleging that he has no knowledge sufficient to form a belief as to the
truth of such damages and that the death of the victim was due to accident. Contending that
the answer fails to tender an issue since defendant deemed to have admitted all the allegations
in the complaint for his failure to specifically deny the same, plaintiff filed a motion for
judgment on the pleadings. Rule on the motion.

32. a) Under what circumstances that the judge may grant summary judgment?; b) Under
what circumstances that the judge may grant judgment on the pleadings?

33. a) Who may intervene? b) within what period can one file motion for intervention?

34. What are the requisites of a valid judgment?

35. a) When may judgment become final and executory?; b) How may judgment be served
on a defendant whose identity and addressed is unknown?; c) what is the date of entry of
judgment?
In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication
in a newspaper of general circulation and in such places and for such times as the court may order. (emphasis supplied)