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Remedial Law Review Notes under Atty Ferdinand Tan

CONSOLIDATED NOTES in CIVIL PROCEDURE


Notes by: Paul Lemuel E. Chavez

CIVIL PROCEDURE NOTES 1. Civil Procedure (Rules 1-71)


2. Special Proceedings (Rules 72-109)
PRELIMINARIES 3. Criminal Procedure (R110-R127)
4. Rules on Evidence (Rules 128-134)
Remedial Law

Branch of law which prescribes the method


of enforcing the rights or obtaining redress What are the sources of Remedial Law?
for their invasions
1. 1987 Constitution
2. BP 129 (Judiciary Reorganization Act of
1980) as amended by RA7691 (Act
Remedial Law vs Substantive Law
expanding the jurisdiction of MTCs, MuTCs,
Substantive Law Remedial Law MCTCs
3. Rules of Court
Part of the law which Refers to the legislation 4. Supreme Court Administrative Matters and
creates, defines, or providing means or Circulars
regulates rights methods whereby 5. Supreme Court decisions
concerning life, liberty, causes of action may be 6. New Civil Code
or property or the effectuated, wrongs 7. Family Code
powers of agencies or redressed, and relief 8. Local Government Code (RA 7160),
instrumentalities for the obtained (adjective law) particularly the Katarungang Pambarangay
administration of public Law
affairs 9. Special Laws and amendments
10. Rules of Procedure on Small Claims
Makes vested rights Has no vested rights
11. Revised Manual of the Clerk of Court
possible

Prospective in Governs rights and


application transactions which took Differentiate: Civil Actions, Special Proceedings,
place (retroactive) Criminal Actions

Cannot be enacted by SC SC is expressly Special Criminal Civil Action


empowered to Proceedings Procedure
promulgate procedural
rules A remedy by The State A party sues
which a party prosecutes a another for
seeks to person for an the
establish a act or enforcement
status, a right, omission or protection
or a particular punishable by of a right, or
fact (Rule 1 law (Rule 1 the
S3c) S3b) prevention or
redress of a
wrong

4 Main Divisions of Remedial Law: A proceeding


wherein a

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

person is A civil action cause of law


prosecuted by may be action
the State for ordinary or
acts or special. (R1
omissions S3a)
committed in
violation of
penal laws,
and to impose
the
CONSTITUTIONAL PROVISIONS Relating to CIVIL
corresponding
PROCEDURE
penalty
provided for A8 S1
by penal laws
Judicial Power shall be vested in one Supreme Court
Governed by Governed by Both are and in such lower courts as may be established by
special rules, the Revised governed by law.
and in the Rules of the Rules for
absence of Criminal ordinary civil Judicial Power includes the duty of the courts of
special Procedure actions,  justice to settle actual controversies involving rights
provisions, subject to which are legally demandable and enforceable, and
the rules specific rules to determine whether or not there is grave abuse of
provided for prescribed for discretion amounting to lack or excess of jurisdiction
in ordinary a special civil on the part of any branch or instrumentality of the
civil actions action (R1 government.
shall be, as far S3a)
as practicable,
apply
What are those other Courts as may be established
suppletory
by Law?
(R72 S2)
Sandiganbayan
May involve Involves the Involves 2 or
Family Courts (RA 8369)
only one party State against more parties
Court of Tax Appeals
the accused
Sharia Court

Initiated by Initiated by Initiated by


petition complaint complaint, or,
(but filed in in some A3 S1
court by special civil
Information) actions, by No person shall be deprived of life, liberty, or
petition property without due process of law, nor shall a ny
person be denied the equal protection of the laws.
Except Based on an Based on a
Habeas act or cause of
Corpus, NOT omission action
A3 S9—(Basis of Rule 67)
based on a punishable by

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

person is A civil action cause of law


prosecuted by may be action
the State for ordinary or
acts or special. (R1
omissions S3a)
committed in
violation of
penal laws,
and to impose
the
CONSTITUTIONAL PROVISIONS Relating to CIVIL
corresponding
PROCEDURE
penalty
provided for A8 S1
by penal laws
Judicial Power shall be vested in one Supreme Court
Governed by Governed by Both are and in such lower courts as may be established by
special rules, the Revised governed by law.
and in the Rules of the Rules for
absence of Criminal ordinary civil Judicial Power includes the duty of the courts of
special Procedure actions,  justice to settle actual controversies involving rights
provisions, subject to which are legally demandable and enforceable, and
the rules specific rules to determine whether or not there is grave abuse of
provided for prescribed for discretion amounting to lack or excess of jurisdiction
in ordinary a special civil on the part of any branch or instrumentality of the
civil actions action (R1 government.
shall be, as far S3a)
as practicable,
apply
What are those other Courts as may be established
suppletory
by Law?
(R72 S2)
Sandiganbayan
May involve Involves the Involves 2 or
Family Courts (RA 8369)
only one party State against more parties
Court of Tax Appeals
the accused
Sharia Court

Initiated by Initiated by Initiated by


petition complaint complaint, or,
(but filed in in some A3 S1
court by special civil
Information) actions, by No person shall be deprived of life, liberty, or
petition property without due process of law, nor shall a ny
person be denied the equal protection of the laws.
Except Based on an Based on a
Habeas act or cause of
Corpus, NOT omission action
A3 S9—(Basis of Rule 67)
based on a punishable by

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Private property shall not be taken for public use A8 S5 P2—(Basis of Rule 56)
without payment of just compensation
- Review
- Revise
- Reverse
A6 S30 - Modify
- Affirm
No law shall be passed increasing the a ppellate
o On appeal or certiorari, as the law
 jurisdiction of the SC as provided
provided in this Constitution
or the Rules of Court may provide,
without its advice and concurrence.
final judgments and orders of
lower courts in:

A8 S5 P1 1. All cases in which constitutionality or


validity of any
The Supreme Court shall have the following powers:
a. treaty,

- Exercise original jurisdiction over cases b. international or executive


affecting: agreement
o Ambassadors c. law

o Other public ministers and consuls d. presidential decree


- Over petitions for e. proclamation

o Certiorari f. order
o Prohibition g. instruction

o Mandamus h. ordinance
o Quo warranto i. regulation

o Habeas corpus i. is in question

2. all cases involving the legality of any


a. tax
A7 S4 b. impost
c. assessment
The Supreme Court en banc shall be the sole judge
d. toll
of all contests relating to the election, returns, and
e. any penalty imposed in relation
qualification of the President or Vice President, and
thereto
may promulgate its rules for the purpose.

3. all cases in which the jurisdiction of any


lower court is in issue
A7 S18
4. all criminal cases in which the penalty
The Supreme Court may review, in an appropriate
imposed is reclusion perpetua or higher
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or
5. all cases in which only an error or question
the suspension of the privilege of the writ or the
of law is involved
extension thereof, and must promulgate its decision
thereon within 30 days from its filing.

A8 S5 P5 (basis of Rules of Court)

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

The SC shall have the power to promulgate rules No decision shall be rendered by any court without
concerning: expressing therein clearly and distinctly the facts and
the law on which it is bas ed.
1. Protection and enforcement of
constitutional rights No petition for review or motion for reconsideration
2. Pleading, practice, procedure in all courts of a decision of the court shall be refused due course
3. Admission to practice of law or denied without starting the legal basis therefor.
4. Integrated Bar
5. Legal assistance to the underprivileged

Such rules shall (Limits to SC-rule making power): A9A S7 (basis of Rule 64)

1. Provide simplified and inexpensive Each Commission shall decide by majority of all its

procedure for speedy disposition of cases Members in any case or matter brought before it

2. Shall be uniform for all courts of the same within 60 days from date of its submission for

grade decision or resolution. A case or matter is deemed

3. Shall not diminish, increase, modify submitted for decision or resolution upon the filing

substantive rights. of the last pleading, brief, or memorandum required


by the rules of the Commission or by the
Rules of procedure of special court and quasi judicial Commission itself. Unless otherwise provided by
bodies shall remain effective unless disapproved by this Constitution or by law, any decision, order, or
the SC ruling of each Commission may be brought to the SC
on certiorari by the aggrieved party within 30 days
from receipt of a copy thereof.

A8 S2

The Congress shall have the power to d efine, CIVIL PROCEDURE PROPER
prescribe, and apportion the jurisdiction of the
various courts but may not deprive the SC of its Jurisdiction
 jurisdiction over cases enumerated in S5 thereof.
Authority of the court to hear and decide a
No law shall be passed reorganizing the J udiciary case and to implement its decision
when it undermines security of tenure of its
members.

Rule 30 Rule 36

A3 S16

All persons shall have the right to speedy disposition Rule 39

of cases before before all judicial, quasi judicial,


administrative bodies.
Venue Jurisdiction

Place where action is Power of court to hear


A8 S14—(basis for Rule 36)
instituted and decide a case

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

May be waived Jurisdiction over subject


matter and over nature Concurrent / Confluent / Coordinate
of action are conferred Jurisdiction
by law and cannot be Power conferred upon different courts,
waived whether of the same or different ranks, to
take cognizance at the same stage of the
Procedural Substantive same case in the same or different judicial
territories
May be changed by Cannot be subject of the
written agreement of agreement of the parties
E.g. CA, SC, Sandiganbayan, RTC- in HC
the parties
cases, Writ of Amparo, Writ of Habeas Data
Not a ground for motu A ground for motu
proprio dismissal, except proprio dismissal Original Jurisdiction
in Summary Procedure Power of the court to take judicial
cognizance of a case instituted for judicial
action for the first time under conditions
provided by law and appellate jurisdiction,
General Jurisdiction or the authority of a court higher in rank to
Power to adjudicate all controversies except re-examine the final order or judgment of a
those expressly withheld from the plenary lower court which tried the case or elevated
powers of the court. for judicial review. It is jurisdiction
conferred upon or inherent in the first
It extends to all controversies which may be instance
brought before a court within the legal
bounds of rights and remedies. Jurisdiction conferred by law and filed at
the first instance (NOTE: all civil actions)
Special or Limited Jurisdiction
One which restricts the court’s jurisdiction Exclusive Jurisdiction
only to particular cases and subject to such Power to adjudicate a case or proceeding to
limitations as may be provided by the the exclusion of all other courts at that
governing law. stage

It is confined to particular causes, or which Jurisdiction of the court to the exclusion of


can be exercised only under the limitations all other courts
and circumstances prescribed by the statute

Appellate Jurisdiction
Power and authority conferred upon a Exclusive Original Jurisdiction
Power of the court to take judicial
superior court to rehear and determine
cognizance of a case instituted for judicial
causes which have been tried in lower
action for the first time to the exclusion of
courts, the cognizance which a superior
court takes of a case removed to it, by all other courts

appeal or writ of error, from the decision of


a lower court or the review by a superior Territorial Jurisdiction
Refers to geographical area within which
court of the final judgment or order of
some lower courts the court’s powers can be exercised

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

In civil cases, assumes importance in case of Power conferred upon different courts,
venue of real or mixed action whether of the same or different ranks, to
In criminal cases, consideration of territory take cognizance at the same stage of the
and locus of crime determine venue and same case in the same or different judicial
 jurisdiction territories

Territorial jurisdictions:

SC and CA Ancillary Jurisdiction


National Power of the courts to settle issues which
RTC are incidental to main issue
Regional jurisdiction
Inferior courts
Territorial jurisdiction as defined by SC in
BP129
Appeal by Certiorari Petition for Certiorari
*Power of tribunal considered with reference to the
territory within which it is to be exercised. Rule 45 Rule 65

Petition is based on Petition is based on


questions of law questions of jurisdiction,
Delegated Jurisdiction
whether the lower court
The grant of authority to inferior courts to
acted without
hear and determine cadastral and land
 jurisdiction or in excess
registration cases under certain cond itions
of jurisdiction or with
grave abuse of discretion

Doctrine of Primary Jurisdiction Mode of appeal Mode of review /


SPECIAL CIVIL ACTION
courts will not resolve a controversy
involving a question which is within the Involves review of the Directed against
 jurisdiction of an administrative tribunal,  judgment award or final interlocutory order of
especially where the question demands the order on the merits the court or where there
exercise of sound administrative discretion is no appeal or any plain,
requiring special knowledge and experience speedy, or adequate
of said tribunal in determining technical and remedy
intricate matters of fact
Filed within 15 days from Filed not later than 60
notice of judgment, final days from notice of
courts shall not take cognizance of a case
order, or resolution  judgment, order, or
unless it has been decided at the
appealed from resolution sought to be
administrative level
reviewed

Stays judgment or final Unless a writ of


Coordinate Jurisdiction order appealed from preliminary injunction or
(same as Concurrent Jurisdiction) temporary restraining
order is issued, the

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

petition does not stay 3. Over petitions for:


the challenged
proceeding

a. Certiorari
b. Prohibition
Appellant and appellee Judge, court, quasi c. Mandamus
are original parties to  judicial agency, tribunal, d. Quo warranto
the action, and the lower corporation, board or e. Habeas corpus
court or quasi judicial officer or person are
agency is not impleaded public respondents who
are impleaded in the
Appellate Jurisdiction of the Supreme Court:
action
A8 S5 P2
Motion for Motion for
reconsideration is not reconsideration or for The SC may review, revise, reverse, modify, or affirm
required new trial is required; if a on appeal or certiorari, as the la w or the Rules of
motion for Court may provide, final judgments and orders of
reconsideration or new lower courts in:
trial is filed, the period
shall not only be 1. All cases in which the constitutionality or
interrupted but another validity of any treaty, internation or
60 days shall be given to executive agreement, law, presidential
petitioner (SC Admin decree, proclamation, order, instruction,
Matter 02-03) ordinance, or regulation is in question

Court is in exercise of its Court exercises original 2. All cases involving the legality of any tax,
appellate jurisdiction  jurisdiction impost, assessment or toll, or any penalty
and power of review imposed in relation thereto

Petition shall be filed Petition shall be filed 3. All cases in which the jurisdiction of any
with the Supreme Court with the RTC, CA, lower court is in issue
Sandiganbayan, Comelec
4. All criminal cases in which the penalty
imposed is reclusion perpetua or higher
JURISDICTION (WITHIN THE SCOPE OF CRIMINAL
PROCEDURE- RULE 45)
SUPREME COURT
5. All cases in which only a n error or question
Original Jurisdiction of the Supreme Court:
of law is imposed

A8 S5 P1- (Rule 56)


1 and 2- PURE QUESTIONS OF LAW

The SC shall have exclusive original jurisdiction over


cases involving:
Administrative Supervision of the Supreme Court:
1. Ambassadors
2. Other public ministers and consuls 1. Over court personnel

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

2. Over Justices 1. Rule 41- over RTC decisions in the exercise


3. Over Judges of its ORIGINAL JURISDICTION (via Notice or
4. Practice of Law Record of Appeal)
5. Members of the Integrated Bar
- RTC jurisdiction, first instance, including
Special Civil Actions

CA decisions
2. Rule 42- over RTC decisions in the exercise
- Appealable to SC under Rule 45 of its APPELLATE JURISDICTION (via Petition
for Review)
R45 S1- a party desiring to appeal by certiorari from
a judgment or final order or resolution of the Court 3. Rule 43- Exclusive appellate jurisdiction
of Appeals may file with the SC a verified petition for over all final judgments, resolution, orders,
review on certiorari. The petition shall raise only or awards of quasi judicial agencies,
questions of law which must be distinctly set forth. instrumentalities, boards, or commissions
(via Petition for Review)

Note that questions of law can be raised before the


RTC
CA (BP129)
Exclusive Original Jurisdiction:

1. In all actions in which the subject of


COURT OF APPEALS
litigation is incapable of pecuniary

Original jurisdiction / Original Concurrent estimation

Jurisdiction
2. Actions which cannot be quantified into
Original jurisdiction to issue writs  of: monetary estimation
Subject matter (BP129)
- Mandamus
- Prohibition 3. In all civil actions which involve title to or
- Certiorari possession of real property or any interest
- Habeas corpus therein, where assessed value of property
- Quo warranto involved exceeds 20k OMM or in MM, value
- Auxiliary writs and processes, of property involved exceeds 50k
o Whether or not in aid of its Except actions of FE and UD of lands and
appellate jurisdiction buildings, original jurisdiction of which is
conferred with MTC, MuTC, MCTC

Exclusive Original Jurisdiction: 4. In all actions in admiralty and maritime


actions where demand or claim exceeds
Exclusive original jurisdiction over the 300k OMM or exceeds 400k MM
actions for annulment of judgments of RTCs
5. In all matters of probate, testate or
intestate, where gross value of estate

Appellate Jurisdiction: exceeds 300k OMM or exceeds 400k MM

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Gross value- assessed value of property of deceased misrepresentation which may be interest of
before deduction (NOT market value) the public and/or of the stockholders,
partners, members of associations or
organizations registered with the
6. In all actions involving the contract of Commission
marriage and marital relations

2. Controversies arising out of intracorporate


7. In all cases not within the excl usive or partnership relations, between and
 jurisdiction of any court, tribunal, person or among stockholders, members or
body exercising jurisdiction of any court, associates, between any and all of them
tribunal, person or body exercising judicial and the corporation, partnership, or
or quasi judicial functions association of which they are stockholders,
members or associates respectively, and
(refer to 902-A below) between such corporation, partnership or
association and the state insofar as it
8. In all civil actions and special proceedings concerns their individual franchise or right
falling within Exclusive original jurisdiction to exist as such entity
of a Juvenile and Domestic Relations Court
and of the Court of Agrarian Relations as 3. Controversies in election or appointment of
now provided by law directors, trustees, officers or managers of
such corporations, partnerships, or
9. In all other cases in which the demand, associations
exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, 4. Petitions of corporations, partnerships or
and costs or the value of property in associations to be declared in the state of
controversy exceeds 300k OMM or exceeds suspension of payments, in cases where the
400k MM corporation, partnership or association
possesses sufficient property to cover all its
1996 Bar- Gross value is 200k, property located in
debts but foresees the impossibility of
Pampanga. What is the jurisdiction and venue?
meeting them when the respectively fall
MTC of the place of decedent’s actual residence at due or in cases where the corporation,
the time of his death, if a resident of the Philippines. partnership or association has no sufficient
If a non resident, then the MTC of the place where assets to cover its liabilities, but is under
his estate is located. management of a rehabilitation receiver or
management committee

(RA8799 S5.2 as amended by PD902-A)- exclusive


and original jurisdiction of the RTC to hear and Concurrent Original Jurisdiction:
decide following cases:
With SC, CA, -- over petitions for certiorari,
mandamus, prohibition, quo warranto, habeas
1. Cases involving devices or schemes corpus
employed by or any acts of the board of
directors, business associates, its offices or
partnership, amounting to fraud or Appellate Jurisdiction:

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Over all cases decided by MTCs, MuTCs, MCTCs in property or any interest therein where
their respective territorial jurisdictions assessed value of property or interest
therein does not exceed 20k OMM or does
not exceed 50k MM exclusive of interest,
damages of whatever kind, AF, litigation
MTC
expenses, costs. Provided that in cases of
(note: baligtarin ang RTC jurisdiction, below 20-50, land not declared for taxation purposes, the
300-400) value of such property shall be determined
by assessed value of adjacent lots
Ordinary Civil Actions:
4. civil cases where the demand does not
1. exclusive original jurisdiction over civil
exceed 300k or not more than 400k MM
actions and probate proceedings, testate
and intestate, including grant of provisional
5. over actions involving personal property
remedies in proper cases, where the value
valued at not more than 300k OMM or not
of the personal property, estate or amount
more than 400k MM
of the demand does not exceed 300k OMM
or 400k MM exclusive of interest, damages,
6. admiralty and maritime cases where the
of whatever kind, AF, litigation expenses
demand or claim does not exceed 300k
and costs, the amount of which must be
OMM or does not exceed 400k MM
specifically alleged. Provided, that interest,
damages of whatever kind, AF, litigation
expenses, and costs shall be included in the
determination of the filing fees. Provided Summary Procedure:
further that where there are several claims
1. All cases of FE and UD, irrespective of the
or causes of actions between the same or
amount of damages or unpaid rentals
different parties, embodied in the same
sought to be recovered. Where AF are
complaint, the amount of demand shall be
awarded, the same shall not exceed 20k
the totality of the claims in all the causes of
action, irrespective of whether the cause of
2. All other civil cases, except probate
action arose out of same or different
proceedings, where the total amount of the
transactions
plaintiff’s claim does not exceed 100k OMM
or 200k MM exclusive of interests and costs
2. exclusive original jurisdiction over cases of
(as amended by AM 2-11-9-SC)
forcible entry or unlawful detainer,
provided that when, in such cases,
3. Civil cases not higher than 100k- Subject to
defendant raises questions of ownership in
the Rule on Small Claims
his pleadings and the question of
possession cannot be resolved without
deciding the issue of ownership, the issue of What if, gumitna? 150k?
ownership shall be resolved only to
determine the issue of possession ( see: Higher than 100k OMM, then subject to Regular
Summary Procedure) Proceedings in MTC

3. exclusive original jurisdiction in all civil BUT, below 200k MM, hence, in such case, subject to

actions involving title to or possession of Summary Procedure pa rin

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Conferred by law

Why the need to discuss jurisdiction?

To know whether subject to Motion to Dismiss (Rule Jurisdiction over the issue
S1b), that the court has no jurisdiction over the
subject matter of the case Determined by allegations in the complaint

In Civil Procedure, SC-CA-RTC-MTC Jurisdiction over the res

In Criminal Procedure, SC-CA-SANDIGANBAYAN-RTC- By actual or constructive seizure of property

MTC by way of attachment or execution

Commencement of a Civil Action: Action, Cause of Action, Right of Action (Simplified


Version)
R1 S5
Action Cause of Action Right of Action
Civil action is commenced by the filing of the original
complaint in court and pay ment of the requisite Suit to enforce Act or omission Remedial right
docket fees. If an additional defendant is impleaded one’s right or by which a to file a suit
in a later pleading, the a ction is commenced with for the party violates a based on cause
regard to him on the date of filing of such later prevention or right of another of action
pleading, irrespective of whether the motion  for its redress of a
admission, if necessary, is denied by the court. wrong

DOCKET FEES- needed to acquire jurisdiction over Original Distinctions:


the case
Action Cause of Action Right of Action

Suit filed in Act or omission Remdial right


Jurisdiction over plaintiff court for by which a or right to relief
enforcememt party violate a granted by law
By filing of original complaint in court plus or protection of right of another to a party to
payment of requisite docket fees a right, or the (R2 S2) institute an
prevention or action against a
redress of a person who has
Jurisdiction over defendant wrong (R1 S3) committed
delict or wrong
By voluntary appearance or service of against him
summons
Reason for the Remedy or
action means afforded
or the
Jurisdiction over subject matter

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

consequent - Venue: R4 S1
relief

Formal Remedial right ND


2  GROUP: for purposes of determining
statement of given to a
 jurisdiction/service of summons
operative facts person because
that give rise to of occurrence
Action In Rem
a remedial right of the alleged
facts - Action which binds the whole world
Note: all Special Proceedings are in rem
Matter of A matter of
actions
procedure and right and
- Summons/notification by PUBLICATION
depends on the depends on
pleadings filed substantive law
by the parties Action in Personam

Not affected by Affected by - Action which binds the parties


affirmative affirmative
defenses defenses
(fraud, Action Quasi In Rem
prescription,
- Action which binds interests
estoppel, etc)
o Foreclosure of mortgage
o Partition
o Attachment
o Any interest or lien on real
property
Kinds of actions:

ST
1  GROUP: for purposes of venue under Rule 4
Action in rem Action in Action Quasi in
Real Action personam Rem

- Actions affecting title to or possession of Directed Directed Directed


real property (A415 NCC in consideration) against the against against
- Venue: R4 S1 thing itself particular particular
persons persons
Personal Action
Jurisdiction Jurisdiction Jurisdiction
- Involves privity of contract/personal over person of over person of over the person
property (A416-417 of NCC in defendant is defendant is of the
consideration) not required required defendant is
- Venue: R4 S2 not required as
long as
Mixed Action  jurisdiction
over the res is
- Action affecting title to or possession of real acquired
property + Privity of Contract

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

A proceeding to An action to A proceeding to sought


determine the impose a subject the
state or responsibility interest of a Founded on Founded on Founded on
condition of a or liability upon named privy of real privity of both
thing a person defendant over estate contract
directly a particular
Filed in the Filed in the Filed in the
property to an
court where court where court where
obligation or
the property or the plaintiff or the property or
lien burdening
any part any of the any part
it
thereof is plaintiffs thereof is
Judgment is Judgment is Judgment is situated (R4 S1) resides, where situated (R4 S1)
binding on the bonding only binding upon defendant or
whole world upon the particular any of the
parties persons defendants
impleaded or resides, or in
their successors case of non
in interest resident
defendant,
Examples: Examples: Examples: where he may
be found, at
election of
plaintiff (R4 S2)
Probate Action for Action for
proceeding, specific partition Example: Example: Example:
performance

cadastral Action to
Accion Action for a Accion
proceeding, Action for foreclose real
reivindicatoria sum of money publiciana with
breach of estate
a claim for
contract mortgage
damages
special
proceedings

Personal Action Action in personam

Personal property is An action directed


Real Action Personal Mixed Action
sought to be recovered against particular
Action
or where damages for persons, may be real
Ownership or Personal Both real and breach of contract are action, personal action,
possession of property is personal sought mixed action
real property is sought to be properties are
Founded on privity of Not necessarily; because
involved recovered or involved
contract the action may also be
where damages
real or mixed
for breach of
contract are
Filed in court where R4 S1 or R4 S2 may

13
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

plaintiff or any of govern, depending on


defendants reside, at whether the action is
real action or personal PLEADING (R6 S1)
option of plaintiff (R4 S2)
action
Sworn written statements of the respective
claims and defenses of the parties
submitted to the court for appropriate
Mixed Action Quasi In Rem Action  judgment

Both real and personal Both real and personal


properties are involved properties may also be
Complaint (R6 S3)
involved
The complaint is the pleading alleging the
Founded on both privity Action directed against
plaintiff’s cause or causes of action.
of real estate and privity particular persons, but
of contract  jurisdiction over
defendant is not
required as long as Answer (R6 S4)
 jurisdiction over the res
Pleading in which a defending party sets
is acquired
forth his defenses
Rules on venue of real Rules on personal
actions shall govern (R4 actions govern (?)
S1)
INITIATORY PLEADING

A pleading that initiates an action

Real Action In rem action

Ownership or possession Action directed against RESPONSIVE PLEADING


of real property is the thing itself
involved A pleading that responds to allegations in
the adverse party’s pleading
Filed in court where Not necessarily; depends
property or portion on whether the action is
thereof is situated real, personal, mixed
Initiatory Pleadings
A proceeding founded A proceeding to
Original complaint
on privity of real estate determine state or
Permissive counterclaim
condition of a thing
Cross claim
Judgment may bind Judgment is binding Third party complaint
th
whole world, or upon the whole world 4  party complaint
particular persons, Complaint in intervention
depending on whether in Petition
rem, in personam, quasi In special civil actions
in rem In special proceedings
Counter counter claim

14
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Counter cross claim A motion IS NOT A PLEADING

Counter Counter Claim Counter Cross Claim A position paper IS NOT A PLEADING

Any claim which Any claim which a A memorandum IS NOT A PLEADING


defending party in a defending party in a
Why?
counterclaim may have cross claim may have
against the original against the original cross
Motion is an application for relief other than by a
counterclaimant claimant
pleading (R15 S1)

COMPULSORY- Arises Can be an initiatory


Position Paper and Memorandum only narrate facts
out of or is necessarily pleading, if permissive of the case, issues, no cause of action, no defenses,
connected with the
but only contain discussions
transaction or
occurrence that is the
subject matter of the
opposing party’s claim Initiatory Pleading Responsive Pleading

A pleading that A pleading that responds


initiates an action to allegations in the
PERMISSIVE- does not adverse party’s pleading
arise of or is necessarily
connected with the
transaction or
Original Answer to original
occurrence that is the
complaint complaint
subject matter of the
opposing party’s claim

Permissive Answer to
counterclaim permissive
counterclaim

Cross claim
Responsive Pleadings
Answer to third
party complaint
Answer to original complaint Third party
Answer to permissive counterclaim complaint
Answer to third party complaint Answer to fourth
Answer to fourth party complaint party complaint
Answer to complaint in intervention th
4  party
Comment or objection to petition
complaint
Compulsory counterclaim
Answer to
Reply
complaint in
Answer to counter counter claim
intervention
Answer to counter cross claim Complaint in

15
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

intervention document

Comment or
objection to
Petition petition Allegations of
usury

In special civil actions Compulsory


counterclaim Answer to
permissive
counterclaim
In special proceedings
Reply

Succeeding
Counter
pleadings in
counter claim Answer to counter special
counter claim proceedings

Counter cross
claim Answer to counter
Complaint- a pleading alleging plaintiff’s cause and
cross claim causes of action

Need to be verified, Except when otherwise FLOW OF CIVIL PROCEDURE


with certification provided by law or these
against forum Rules, need not be verified I. BARANGAY CONCILIATION PROCEEDINGS
shopping, plus
payment of docket General Rule with respect to Barangay Conciliation
fees Proceedings:
No need for certification
against forum shopping, S412, LGC
and not need for payment
of docket fees (Note: No complaint, petition, action or proceedings

compulsory counterclaim, involving any matter within authority of the Lupon

docket fees are shall be filed or instituted directly or indirectly in

suspended) court or in any other government office or


adjudication unless there has been a confrontation
between the parties before the Lupon Chairman or
the pangkat, and that no conciliation or settlement
Instances when verification has been reacehed as certified by lupon or pangkat
is needed: chairman.

Actionable Exceptions to above rule:

16
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

S408, LGC where the action may otherwise be barred


by the statute of limitations
1. where one party is the government or any
subdivision or instrumentality thereof 11. in case of labor disputes

2. where one party is a public of ficer or 12. action to annul a judgment upon a
employee, and the dispute relates to compromise
performance of his official functions
offenses punishable by imprisonment 13. CARL disputes
exceeding 1 year or a fine exceeding 5k
pesos 14. Disputes involving traditions of an
indigenous cultural community
3. offenses where there is no private offended
party

4. where the dispute involves real properties Does the Exclusive Original Jurisdiction of the RTC
located in different cities or municipalities on actions involving those incapable of pecuniary
unless the parties thereto agree to submit estimation include provisional remedies as falling
their differences to amicable settlement by within the category?
an appropriate lupon
No, because provisional remedies are merely
ancillary to the main action. The category of actions
5. disputes involving parties who actually
incapable of pecuniary estimation refers only to
reside in barangays of different cities or
main actions.
municipalities, except where such barangay
units adjoin each other and the parties
thereto agree to submit their differences to
amicable settlement by an appropriate Purpose of Barangay Proceedings:
lupon
Reduce the number of litigations and prevent the
deterioration of the quality of justice which has b een
6. such other classes of disputes which the
brought about by indiscriminate filing of cases in the
President may determine in the interest of
courts. (Zamora vs Heirs of Izquierdo)
 justice

7. where one of the parties is a juridical entity


Venue of Barangay Conciliation Proceedings:
8. where accused is under police custody or
detention S409, LGC

Disputes between persons actually residing


9. where the person has otherwise been
in the same barangay  shall be brought for
deprived of personal liberty calling for
amicable settlement before the lupon of
habeas corpus proceeding
said barangay

10. where the actions are coupled with


Those involving actual residents of
provisional remedies such as preliminary
different barangays within the same city or
injunction, attachment, delivery of personal
munipality shall be brought in the barangay
property, and support pendent lite

17
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

where the respondent or any of the


respondents actually resides, at the election
of the complainant Rules on execution of judgment in Barangay
Proceedings:
All disputes involving real property or any
S417, LGC
interest therein shall be brought in the
barangay where the real property or the The amicable settlement or arbitration award may
larger portion thereof is situated be enforced by execution by the lupon within 6
months from the date of the settlement. After the
Those arising at the workplace where the lapse of such time, the settlement may be enforced
contending parties are employed or at the by action in the appropriate city or municipal court.
institution where such parties are enrolled
for study, shall be brought in the barangay
where such workplace or institution is
Remedies of the parties in case of failure of
located
amicable settlement before the lupon:

1. File the case before the proper court


Rules on appearance before Barangay Proceedings:
2. Repudiate the agreement (S418, LGC)
S415, LGC 3. File a petition before the MTC to nullify the
agreement (basis?)
In all katarungang pambarangay proceedings, the
parties must appear in person without the assistan ce
of counsel or representative, except for minors and
Remedy in case of failure to c omply with Barangay
incompetents who may be assisted by their next of
Conciliation:
kin who are not lawyers.
As defendant, file a motion to dismiss under R16 S1j
on the ground that a condition precedent has not
Effect of Amicable Settlement and Arbitration been complied with.
Award:

S416, LGC
Motion to dismiss was granted, remedy of plaintiff?
The amicable settlement and arbitration award shall
Re file the case with the certification of having
have the force and effect of a final judgment of a
undergone Barangay conciliation proceedings, as the
court upon the expiration of 10 da ys from the date
dismissal is without prejudice.
thereof, unless repudiation of the settlement has
been made or a petition to nullify the award has
been filed before the proper city or municipal court.
Motion to dismiss was denied, remedy of
However, this provision shall not apply to court defendant?
cases settled by the lupon under last paragraph of
S408 of this Code, in which case the compromise R16 S4 states that if the motion is denied, movant
settlement agreed upon by the parties before the shall file his answer within the balance of the period
lupon shall be submitted to the court and upon granted by Rule 11 to which he was entitled at the
approval thereof, have the force and effect of a time of serving his motion, but not less than 5 days
 judgment of said court. in any event, computed from his receipt of the

18
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

notice of the denial. Proceed with the trial, and (importance of knowing BP129 as amended by
when the decision is adverse, file an appeal raising RA7691 Rules on Jurisdiction)
as error the ground for denial of the motion to
dismiss. When the denial is tainted with grave abuse Granted- Refile

of discretion amounting to lack or excess of


Denied- State R16 S4 (yung BUONG SAGOT na Gusto
 jurisdiction, file petition for certiorari under Rule 65.
ni Boss Atty Tan)

** In between Barangay conciliation and filing of


Summary Procedure:
complaint, if real property is i nvolved, plaintiff can
 file adverse claim over the property, or can file Cases covered:
notice of lis pendens
1. All cases of FE and UD, irrespective of the
Notice of Lis Pendens amount of damages or unpaid rentals
sought to be recovered. Where AF are
- “buyer beware”
awarded, the same shall not exceed 20k
- Notice to buyer of existence of an adverse
claim
2. All other civil cases, except probate
o It is not a pleading
proceedings, where the total amount of the
o There is need to register it with the
plaintiff’s claim does not exceed 100k OMM
register of deeds
or 200k MM exclusive of interests and costs
(as amended by AM 2-11-9-SC)

II. COMPLAINT 3. Civil cases not higher than 100k- Subject to


the Rule on Small Claims
Complaint (R6 S3)

The complaint is the ple ading alleging the


plaintiff’s cause or causes of action. GENERAL RULE on Summary Procedure: No Motion
to Dismiss is allowed (Prohibited Pleading)
Undergone Barangay Conciliation
Proceedings EXCEPT:

NOTE: If the case undergone Barangay conciliation 1. Lack of jurisdiction over the subject matter

proceedings first, there must be a specific allegation of the claim

in the complaint that there is compliance with


Barangay Conciliation proceedings 2. Lack of jurisdiction over the person of the
defendant
Pag wala, patay (?)- M2D S1j OR amend the
complaint (?) 3. Failure to comply with Barangay
Conciliation Proceedings

Jurisdiction
HOWEVER, with respect to SMALL CLAIMS CASES,
IF, court has no jurisdiction, M2D R16 S1b
ABSOLUTE RULE: motion to dismiss is not allowed

19
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Reason: defeats the purpose of Small Claims 1. The parties have validly agreed in writing
Proceedings 2. The agreement in writing was made before
the filing of the action
3. Exclusive venue is stipulated

Venue Atty Tan’s comment:

- Can be subject to stipulation of the parties Rule 4 of the Rules of Court did not provide for MAY,
but SHALL
State: Rules on venue
Suppose, Real property is subject of dispute (real
R4 S1 action). A lives in Pasay, B lives in Manila, the real
 property is located in Davao. Following Rule 4 S1,
Actions affecting title to or possession of real
the suit should be filed in Davao, being the place
property or interest therein shall be commenced and
where the property or portion thereof is situated.
tried in the proper court which has jurisdiction over
However, the parties can exclusively agree that the
the area wherein the real property involved or a
venue can be filed in Baguio, provided that the
portion thereof is situated.
requisites of R4 S4 as to exclusivity of venue are
Forcible entry and unlawful detainer actions shall be complied with
commenced and tried in the MTC of the municipality
So, it means that Rule 4 S1 can be the subject of
or city wherein the real property involved or a
agreement, and that the suit can be filed somewhere
portion thereof is situated.
else other than what S1 provides? (Parang ok lang
R4 S2 sana kung concern e personal action under R4 S2-
can be subject of agreement, pero venue of REAL
All other actions may be co mmenced and tried  ACTION CAN BE SUBJECT OF AGREEMENT?! Labo
where the plaintiff or any of the principal plaintiffs ata...)
resides, where the defendant or any of the
defendants resides, or in case of a non resident Seems there is a loophole in Rule 4
defendant he may be found at the election of the
plaintiff.

If the venue is permissive,


R4 S3

Then the venue is in addition to the rules on


If any of the defendants does not reside and is not
venue
found in the Philippines, and the action a ffects 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 Action was filed in the wrong venue:
place where the plaintiff resides, or where the
property or any portion thereof is situated or found I will file motion to dismiss under R16 S1c on the
ground that the venue is improperly laid

EXCLUSIVITY OF VENUE - NOTE: Rule 4 SHALL NOT


APPLY... if The motion was granted (court issues not a
 judgment but an ORDER). Counsel for plaintiff.
R4 S4 Remedy?

20
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

I will refile the case in the court of the proper venue, Plaintiff includes:
because the order of dismissal is without prejudice
(R16). - Counter counterclaimant
- Counter cross claimant
EXCEPT: if there exists grave a buse of discretion
amounting to lack or excess of jurisdiction, Certiorari Defendant includes:
Rule 65 is the proper remedy
- Defendant in counter counterclaim
- Defendant in counter cross claim
- An unwilling co plaintiff or one who should
Motion to dismiss was denied. Remedy for be joined as plaintiff but refuses to give
defendant? consent thereto (R3 S10)
- A person necessary to a complete
Rule 16 S4 determination or settlement of the
questions involved therein
File an answer within the balance of the period
prescribed by Rule 11 to which he was entitled at the Plaintiff
time of serving his motion but not less than 5 days in
any event, computed from his receiving of notice of A person having an interest in the matter of
denial. Then, go to trial. When the decision is the action or in obtaining the relief
adverse, file an appeal raising as error the denial of demanded
the motion to dismiss. If the denial of the motion is
tainted with grave abuse of discretion amounting to Defendant
lack or excess of jurisdiction, file petition for
A person claiming an interest in the
certiorari under Rule 65.
controversy or the subject thereof adverse
to the plaintiff

Motion to dismiss on the ground of impr oper venue


IS A PROHIBITED PLEADING under the Rules on rd
3  party plaintiff
Summary Procedure, and more so in Small Claims
A defending party who may with leave of
Remedy: raise the ground as an affirmative
court file against a third person not party to
defense rd th
the action called the 3  4  etc party
defendant a claim for contribution,
indemnity, subrogation, or any other relief
Parties in respect of his opponent’s claim (R6 S11)

(R3 S1)

Only natural or juridical persons, or entities Cross Claimant


authorized by law may be parties in a civil action.
The term plaintiff may refer to the claiming party, A party to an original action who has a claim
rd
the counterclaimant, cross claimant, or the 3  4  etc
th against a co party arising out of the

party plaintiff. The term defendant may refer to the transaction or occurrence that is the subject

original defending party, the defendant in the matter either of the original action or of a
rd
counterclaim, the cross defendant, or the 3  4th etc counterclaim therein (R6 S8)

party defendant.

21
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Real Party In Interest Representative party

A real party in interest is the pa rty who R3 S3


stands to be benefited or injured by the
 judgment in the suit, or the party entitled to Party acting in a fiduciary capacity. The beneficiary

the avails of the suit. Unless otherwise shall be included in the title of the case and shall be

provided by law or these rules, every action deemed to be the real party in interest. It may be:
must be prosecuted or defended in the
- Trustee of an express trust
name of the real party in interest(R3 S2)
- Guardian
- Executor
- Administrator
Indispensable Party - A party authorized by law or these rules
o (agent acting in his own name and
An indispensable party is a party in interest for the benefit of an undisclosed
without whom no final determination can principal may sue or be sued
be had of an action who shall be joined without joining the principal
either as plaintiff or defendant (R3 S7) except when the contract involves
things belonging to the principal)

Necessary Party

Pro Forma Party


A necessary party is a party who is no t
indispensable but who ought to be joined as Parties who are required to be joined as co parties in
a party if complete relief is to be accorded suits by or against another party a s may be provided
as to those already parties, or for a by the applicable substantive law or procedural rule
complete determination or settlement of
the claim subject of the action (R3 S8) EXAMPLE: Spouses- husband and wife shall sue or be
sued jointly, except as provided by law (R3 S4)

Who is a proper party?


Quasi Party
A proper Party is the same as a necessary party, a
party who is not indispensable but who is ought to Parties in whose behalf a class or representative suit
be joined as a party if complete relief is to be is brought
accorded as to those already parties, or for a
complete determination or settlement of the claim
subject of the action (R3 S8)
Not a real party in interest: Remedy?

Party those presence is necessary to adjudicate the


MOTION TO DISMISS on the ground of failure to
whole controversy, but those whose interests are so
state cause of action
far separable that final decree can be made in their
absence without affecting them (Quisumbing vs CA Granted- refile
GR 93335 9/13/1990)
Denied:

22
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

I will file an answer within the balance of the period Non joinder/Misjoinder of parties- not a ground f or
prescribed by Rule 11 to which i am entitled at the motion to dismiss
time of serving my motion, but not less than 5 days
in any event, computed from my receipt of notice of IF so, remedy:

denial. Then, proceed with the trial. In case of


Amendment of the pleading (Rule 3 in relation to
adverse decision I will appeal the judgment and
Rule 10
assign as error the denial of t he motion to dismiss.

However, if the denial is tainted with G AD


amounting to lack or excess of jurisdiction, then I will
Cause of Action
file petition for certiorari under Rule 65.

Act or omission by which a party violates a


right of another (R2 S2)
JOINDER OF PARTIES

Requisites:
What are the elements of a cause of action?
1. Right to relief arises out of the same
transaction or series of transactions 1. Plaintiff exercises a legal right
2. Correlative obligation the part of defendant

2. Jurisdiction over plaintiffs and defendants to respect plaintiff’s legal right

can be obtained 3. Defendant violates plaintiff’s legal right in a


manner contrary to law, morals, good

3. There is question of law or fact comm on to customs, public order, public policy

all plaintiffs or defendants


*STATE ALL CAUSES OF ACTION in the PLEADING!

4. Such joinder is not otherwise proscribed by IF NOT, remedy:


the provisions of the rules on jurisdiction
and venue M2D R16 S1g- failure to state cause of action

R3 S6 GRANTED: refile; amend pleading

All persons in whom or against whom any right to Denied:


relief in respect to or arising out of the same or
I will file an answer within the balance of the period
series of transactions is alleged to exist, either
prescribed by Rule 11 to which i am entitled at the
 jointly, severally, or in the alternative, may, except
time of serving my motion, but not less than 5 days
as otherwise provided in these rules, join a s plaintiffs
in any event, computed from my receipt of notice of
or be joined as defendants in one complaint, where
denial. Then, proceed with the trial. In case of
any question of law or fact common to all such
adverse decision I will appeal the judgment and
plaintiffs or to all such defendants may arise in the
assign as error the denial of the motion to dismiss.
action; but the court may make such orders as may
be just to prevent any plaintiff or defendant from However, if the denial is tainted with GAD
being embarrassed or put to expense in connection amounting to lack or excess of jurisdiction, then I will
with any proceedings in which he may have no file petition for certiorari under Rule 65.
interest.

23
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Joinder of Causes of Action (R2 S5)

A party may in one pleading assert, in the alternative If you are counsel for plaintiff, and the causes of
or otherwise, as many causes of action as he may action are not joined, remedy?
have against an opposing party, subject to the
following conditions: File a motion to amend the complaint (as a matter or
right before a responsive pleading is filed, or with
A. That the party joining the causes of action leave of court after a responsive pleading is filed if
shall comply with the rules on joinder of the amendment is substantial —Here, di ko alam
parties kung substantial to...)  – R10 S2 and 3

B. The joinder shall not include special civil


actions and actions governed by Special
Splitting a Single Cause of Action:
Rules
It is the act of dividing or indivisible cause of
Special Civil Actions:
action into several causes of actions and

1. Interpleader (R62) bringing several actions thereon


2. Declaratory Relief (R63)
3. Review of Judgments and Final orders or
resolutions of COMELEC, CoA (R64) R2 S3
4. Certiorari, Prohibition, Mandamus (R65)
5. Quo Warranto (R66) A party may not institute more than one suit for a
6. Expropriation (R67) single cause of action
7. Foreclosure of Real Estate Mortgage (R68)
8. Partition (R69)
9. Forcible Entry and Unlawful Detainer (R70) R2 S4
10. Contempt (R71)
If 2 or more suits are instituted on the basis of the
INCLUDES: SPECIAL PROCEEDINGS same cause of action, the filing of one or a judgment
(SEGTARHHCVJCDC +) upon the merits in any one is available as a ground
for dismissal of the others.
Sum of money + Foreclosure of Mortgage = CANNOT
BE JOINED! (latter is a special civil action)

Hence, sue in alternative / either or Supposing, the plaintiff split a single cause of
action, remedy?
C. Where the claims pertain to different
venues or jurisdictions, the joinder shall be As defendant, I will file a motion to dismiss on the
allowed in the RTC provided that it falls ground of litis pendencia or res judicata (R16 S1 e or
within the jurisdiction of said court and the f)
venue lies therein
GRANTED, remedy: APPEAL (dismissal is with

D. Where the claims in all causes of action are prejudice)

principally for recovery of money, the


DENIED:
aggregate amount claimed shall be the test
of jurisdiction

24
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

I will file an answer within the balance of the period statement of a single act of circumstances so far as
prescribed by Rule 11 to which i am entitled at the can be done with convenience.
time of serving my motion, but not less than 5 days
in any event, computed from my receipt of notice of A paragraph may be referred to by its number in all

denial. Then, proceed with the trial. In case of succeeding pleadings.

adverse decision I will appeal the judgment and


Headings
assign as error the denial of t he motion to dismiss.
When 2 or more causes of action are joined, the
However, if the denial is tainted with G AD
statement of the first shall be prefaced by the words
amounting to lack or excess of jurisdiction, then I will
first cause of action, of the second by second cause
file petition for certiorari under Rule 65.
of action and so on for the others.

When one or more paragraphs in the answer are

PLEADING / PARTS OF A PLEADING addressed to one of several causes of action in the


complaint, they shall be prefaced by the words
Rule 7 S1 answer to the second cause of action or answer to
the second cause of action and so on; and when one
The caption sets forth: or more paragraphs are addressed to several causes
of action, they shall be prefaced by words to that
a. Name of the court
effect.
b. Title of the action
c. Docket number if assigned Relief

The title of the action indicates the names of the The pleading shall specify the relief sought, but it
parties. They shall be named in the original may add a general prayer for such further or other
complaint or petition. But in subsequent pleadings, relief as may be deemed just and equitable.
it shall be sufficient if the name of the first party on
each side be stated with an appropriate indication Date
when there are other parties. Their respective
participation in the case shall be indicated. Every pleading shall be dated

R7 S2 R7 S3

The body of the pleading  shall set forth its: Every pleading must be signed by the party or
counsel representing him stating in either case his
1. Designation address which should not be a post office box. The
2. Allegation of the claims or defenses signature of counsel constitutes a certification by
3. Relief prayed for him that
4. Date of the pleading
1. he has read the pleading,

Paragraph 2. that to the best of his k nowledge,


information or belief there is good ground
The allegations in the body of a pleading shall be to support it, and
divided into paragraphs so numbered as to be 3. that it is not interposed for delay
readily identified each of which shall contain a
An unsigned pleading produces no legal effect

25
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

However, the court may, in its discretion, allow such


deficiency to be remedied if it appear that the same
was due to mere inadvertence and not intended for What are the pleadings that need to be verified?
delay.
Petition for relief from judgment or order

1. Counsel who deliberately files unsigned (R38 S3)

pleading
2. Signs a pleading in violation of these rule, Petition for review from RTC to CA (R42 S1)

3. or alleges scandalous or indecent matter


therein, Petition for review from CTA and q-j

4. Or fails to promptly report to the court a agencies to the CA (R43 S5)

change of his address, shall b e subject to Appeal by certiorari from the CA to SC (R45

appropriate disciplinary action S4)

Petition for annulment of judgment or final


orders and resolutions (R47 S4)
R7 S4

Complaint for injunction (R58 S4)


Except when otherwise specifically required by law
or rule, pleadings need not be under oath, verified,
Application for appointment of receiver
or accompanied by affidavit.
(R59 S1)
A pleading is verified by an affidavit that
Application for support pendent lite (Rule
1. the affiant has read the pleading 61 S1)
2. that the allegations therein are true  and
correct of his personal knowledge or based (all initiatory pleadings)
on authentic records
Original Complaint
A pleading required to be verified which contains a
verification based Permissive Counterclaim

1. on information and belief or Cross Claim


2. upon knowledge, information and belief
rd th
3. or lacks a proper verification 3  4  etc party complaint

shall be treated as an unsigned pleading


Complaint in intervention

Petition
Is a jurat a part of a pleading?
(all Special Civil Actions)
The general rule is that pleadings need not be
verified. However, if the law or the Rules require Interpleader (R62)
that a pleading be verified, verification is done by
way of affidavit. In an affidavit, there is a need for Declaratory Relief and Similar Remedies
 jurat to be present. Hence, in a verified pleading, a (R63)

 jurat becomes part of a pleading.


Review of Judgments and Final Orders or

26
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Writ of Habeas Data ( )


Resolutions of COMELEC, CoA (R64)
Change of Name (R103)
Petitions for certiorari, prohibition,
mandamus (R65) Clerical Error Act ( )

Quo Warranto (R66) Cancellation or Correction of Entries in the


Civil Registry (R108)
Expropriation (R67)
Voluntary Dissolution of Corporations
Foreclosure of Real Estate Mortgage (Rule (Corporation Code )
68)
Judicial Approval of Voluntary Recognition
Partition (R69) of Minor Natural Children (Family Code,
)
Forcible Entry and Unlawful Detainer (R70)
Constitution of the Family Home (Family
Contempt (R71) Code, )

(all Special Proceedings) Declaration of Absence and Presumptive

Settlement of Estate of Deceased (R73-90)


Death (R107 in relation to Civil and Family
Code )
Escheat (R91)

Petition for declaration of Nullity and


Petition for guardianship of minors (AM __-
Annulment of Marriage ( )
 __-__-SC)

Petition for legal separation ( )


Petition for guardianship of incompetents
(R92-97)

Petition for custody of minors in relation to Pleadings not required be verified in the manner
habeas corpus, AM __-__-__-SC) and form prescribed by S4 of this Rule but the same
must be under oath:
Trusteeship (R98)
Denial of genuineness and due execution of

Petition for Domestic Adoption (Domestic actionable document (R8 S8)

Adoption Act, )
Denial of allegations of usury (R8 S11)

Petition for inter country adoption (Inter


Country Adoption Act, ) Motion to set aside default order (R9 S3b)

Habeas Corpus (R102) Answer to written interrogatories (R25 S2)

Writ of Amparo ( ) Answer to request for admission (R26 S2)

27
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

The following pleadings or motion with affidavit or When the answer is based on a n actionable
affidavits of merit: document (R8 S8)

Motion to postpone for absence of Answer under the Revised Rules on


evidence (R30 S3) Summary Procedure

Motion to postpone for illness of a party or Answer in Small Claims Cases


counsel (R30 S4)
Motion for summary judgment or
opposition thereto (R35 S1,2,3,5)
If the pleading is not verified, as counsel for
Motion for new trial on the ground of fraud, plaintiff, remedy?
accident, mistake, or excusable negligence
File for judgment on the pleadings under Rule 34 S1,
or opposition thereto (r37 S2)
on the ground of admission of material a llegations of
the adverse party’s pleadings. Ground is based on
Petition for relief from judgment or order
the fact that an a nswer is filed, but there is no
(R38 S3)
genuine issue because the allegations are deemed
admitted.
Third party claim (R39 S16)
R34 S1
Proof required of a redemptioner (R39 S30)
Grounds for judgment on the pleadings:
Motion for preliminary attachment (R5 7 S3)
Answer fails to tender an issue
Answer admits the material allegations of
Motion for dissolution of preliminary
the adverse party’s pleading
injunction (R58 S6)

Application for writ of replevin (R60 S2)


Who can verify a pleading?
Claim against estate of a decedent (R86 9)
A party need not sign the verification.

Motion for new trial on the ground of newly


The following may sign verification:
discovered evidence in criminal cases (R121
S4) Party
Party’s repr esentative
Party’s Lawyer

Does the answer need to be verified? Any person who personally knows the truth
of the facts alleged in the pleading
As a general rule, answers need not be verified, save
for following instances:

Answer to allegations of usury in a How about an authorized representative? Can he

complaint to recover usurious interests (R8 verify?


S11)
Yes, if armed with proper authority from the party
(Through SPA?)

28
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Forum shopping is an act of malpractice of filing


multiple suits in different courts either
R7 S5- certification against forum shopping simultaneously or successively, involving the same
parties, and asking the courts to rule on the same or
Plaintiff or principal party shall certify under oath in
related causes and/or to grant the same or
the complaint or other initiatory pleading assisting a
substantially the same relief
claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith,

1. that he has not theretofore commenced 3 ways of committing forum shopping:


any action or filed any claim involving the
same issues in any court, tribunal or quasi Filing multiple cases based on the same
 judicial agency, and, to the best of his cause of action and with the same prayer
knowledge, no such other claim or action is the previous not having been resolved (litis
pending therein pendencia)

2. if there is no such other pending action or Filing multiple cases based on the same
claim, a complete statement of the present cause of action and with the same prayer,
status thereof the previous having been resolved with
finality (res judicata)
3. if he should thereafter learn that the same
or similar action or claim is filed or is Filing multiple cases based on same causes
pending, he shall report that fact within 5 of action but with different prayers
days therefrom to the court where his (splitting cause of action on the ground of
aforesaid complaint or initiatory ple ading litis pendencia or res judicata)
has been filed

Failure to comply with the foregoing requirements


shall not be curable by mere amendment of the Pleadings requiring certification against forum
complaint or pleading but shall be cause for shopping:
dismissal of the case without prejudice, unless
Initiatory Pleadings
otherwise provided, upon motion and after hearing.
Original complaint
Submission of a false certification or non compliance
Permissive counterclaim
with any of the undertakings therein shall constitute
Cross claim
indirect contempt of court without prejudice to rd th
3  4  etc party complaint
corresponding administrative and criminal actions.
Complaint in intervention

If acts of party or counsel clearly constitute wilful Petition


and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice, direct
contempt, and cause for administrative sanctions. What is stated in certification against forum
shopping:

R7 S5
Forum Shopping:
The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pl eading

29
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

asserting a claim for relief, or in a sworn certification


annexed thereto and simultaneously filed therewith:
Willful and deliberate forum shopping
1. That he has not theretofore commenced
any action or filed any claim involving the If the acts of party or counsel clearly constitute wilful

same issues in any court, tribunal or quasi and deliberate forum shopping, the same shall be

 judicial agency and, to the best of his ground for summary dismissal with prejudice, direct

knowledge, no such other action or claim is contempt, and cause for administrative sanctions.

pending therein
Serves as FINAL ORDER, hence, appeal is the
2. If there is such other pending claim or
proper remedy if motion to dismiss under
action, a complete statement of the present
R16 S1j is granted
status thereof
3. If he should thereafter learn that the same
or similar action or claim has been filed or is
pending, he shall report that fact within 5 Remedies in case of failure to attach certification
days therefrom to the court wherein his against forum shopping:
aforeseaid complaint or initiatory pleading
As counsel for defendant, file motion to dismiss
has been filed
under Rule 16 S1j on the ground that a condition
precedent has not been complied with.

States the effects of: (R7 S5)

Failure to attach certification against Motion to dismiss was granted, remedy?


forum shopping
As plaintiff, refile the case, o n the ground that the
Failure to comply with the foregoin g requirements dismissal is without prejudice.
shall not be curable by mere amendment of the
complaint or pleading but shall be cause for
dismissal of the case without prejudice, unless If the plaintiff committed wilful and deliberate
otherwise provided, upon motion and after hearing. forum shopping, and the complaint was dismissed,
remedy?
Remedy is file motion to dismiss R16 S1j,
and if granted, plaintiff’s remedy is to refile As plaintiff, i will file notice of appeal under Rule 41,
the case with the required certification, because the dismissal is without prejudice, hence, in
unless if declared by the court as dismissal the nature of a final order.
with prejudice, hence, remedy is appeal

Define, enumerate, each pleadings:


Submission of a falser certification or non
compliance of any of the undertakings Complaint (R6 S3)
therein The complaint is the pleading alleging the
plaintiff’s cause or causes of action.
Submission of a false certification or non compliance
of any of the undertakings therein shall constitute Counterclaim (R6 S6)
indirect contempt of court without prejudice to Any claim which a defending party may
corresponding administrative and criminal actions have against an opposing party

30
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Compulsory Counterclaim (R6 S7) Answer (R6 S4)


A counterclaim which being cognizable by Pleading in which a defending party sets
the regular courts of justice arises out of or forth his defenses
is connected with the transaction or
occurrence constituting the subject matter Counter counterclaim (R6 S9)
of the opposing party’s claim and does not A counterclaim that may be a sserted
require for its adjudication the presence of against an original counterclaimant
third parties of whom the court cannot
acquire jurisdiction Counter crossclaim
A cross claim which may be filed against an
Permissive Counterclaim (R6 S7) original cross claimant
A counterclaim which being cognizable by
the regular courts of justice does not arise
out of or is connected with the transaction
or occurrence constituting the subject
matter of the opposing party’s claim and Counterclaim
may require for its adjudication the
presence of third parties of whom the court Original complaint
cannot acquire jurisdiction
A vs B

Cross claim (R6 S8)


Counterclaim
Any claim by one party against a co p arty
arising out of the transaction or occurrence
that is the subject matter either of the
original action or of a counterclaim therein Counter Counter Claim

th
3rd 4  etc party complaint (R6 S11)
A claim that a defending party may, with
Cross Claim
leave of court, file against a person not a
rd th
party to the action, called a 3  4  etc party A vs B and C
defendant for contribution, indemnity,
subrogation, or any other relief in respect of (Original Complaint)
his opponent’s claim
Cross Claim

Complaint in intervention (R19 S1)


Pleading filed by an intervenor if he
answers a claim against either or all of the Counter Cross Claim
original parties

Answer in intervention (R19 S3)


Third Party Complaint
Filed by intervenor if he unites with the
defending party in resisting a claim against A vs B vs C (for CISA)
the latter

31
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

C is impleaded for CISA Third party is impleaded Third party has legal
in the suit for CISA interest and wants to be
impleaded in the suit

Complaint In intervention
Initiatory Pleadings

A vs B
Requires payment of docket fees

C (or)

C wants to be impleaded in the action

Permissive Counterclaim vs Compulsory


Counterclaim (Simplified version)

Permissive CC Compulsory CC

THIRD PARTY COMPLAINT IN Does not arise out of or Arises out of or is


COMPLAINT INTERVENTION is connected with the connected with the
transaction or transaction or
Rule 6 Rule 19 occurrence that is the occurrence that is the
subject matter of the subject matter of the
A claim that a defending Pleading filed by an opposing party’s claim opposing party’s claim
party may, with leave of intervenor if he answers
court, file against a a claim against either or Needs verification and Not
person not a party to the all of the original parties certification against
rd th
action, called a 3  4  etc forum shopping
party defendant for
contribution, indemnity, Docket fee is required to Docket fees are
Intervenor is any person
subrogation, or any be paid suspended
who has a legal interest
other relief in respect of
in the matter in Failure to file answer not
his opponent’s claim
ligitation, or in the results in declaration of
success of either of the default
parties, or who has an
interest against both may require for its Does not require for its
parties, or who is so adjudication the adjudication the
situated as to be presence of third parties presence of third parties
adversely affected by the over whom the court over whom the court
distribution or other cannot acquire cannot acquire
disposition of property  jurisdiction  jurisdiction
in the custody of the
Not barred even if not Barred if not set up in
court or of an officer
set up in the action the action
thereof

Initiatory pleading Not an initiatory


pleading

32
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

3PC vs Third party claim preservation of rights while the main action is
pending
Third Party Complaint Third Party Claim
PROVISIONAL REMEDIES
Initiated by way of By way of affidavit
complaint - Temporary, auxiliary, ancillary remedies
available to a litigant for the protection and
Filed before the court Filed before the sheriff preservation of his rights while the main
action is pending
For CISA Terceria
The following are the provisional remedies:
Pleading Affidavit
1. Preliminary Attachment (Rule 57)
Docket fees are required Not
2. Preliminary Injunction (Rule 58)
to be paid
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
Lis Pendens vs Litis Pendencia
NOTE: Not Exclusive!
Lis Pendens Litis Pendencia
Protection orders
“buyer beware” Filing multiple suits in
different courts involving Provisional orders
same parties, same
causes of action, same Production orders
Notice to buyer of
facts, same relief, the
existence of an adverse
identity of the 2 cases Witness protection orders
claim
such that any judgment
that may be rendered in See: RA 9262, Rules on Nullity/Annulment
one case, regardless of of Marriage/Legal Separation, Petition for
which party is successful, Custody of Minors, Writ of Amparo, Writ of
would amount to res Habeas Data
 judicata in the other
NOTE ALSO:
case
Injunction and replevin can be main actions
Notice A ground for motion to
in themselves
dismiss under Rule 16

PROVISIONAL REMEDIES

A. Preliminary Attachment (Rule 57)


Simultaneous or after filing of the original
complaint/pleading asserting a claim, When filed? (R57 S1)

PROVISIONAL REMEDIES  may be availed of, At the commencement of the action or at any time
ancillary to the main action for protection and before entry of judgment, a plaintiff or any proper
party may have the property of the adverse party

33
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

attached as security for the satisfaction of judgment f. In an action against a party who does not
that may be recovered in the following cases (See reside and is not found in the Phils , or on
grounds) whom summons may be served by
publication

Grounds for preliminary attachment (NOTE: Requirements: (Rule 57 S3)


TINATANONG SA BAR!)
1. By way of motion or by way of complaint
Rule 57 S1
2. Verified application through Affidavit
a. In an action for recovery of a specified
attached to motion or complaint
amount of money or damages, other than
moral and exemplary,  on a cause of action
- Stating the grounds
arising from law, contract, quasi contract,
- That there is no sufficient security
delict or quasi delict against a party who is
about to depart from the Phils with intent
3. Allegation of the ground necessitating the
to defraud his creditors
need for preliminary attachment

b. In an action for money or property


4. Posting of bond in an amount to be
embezzled or fraudulently misapplied or
determined by the court
converted to his own use   by a public
officer, or an officer of a corporation , or an
attorney, factor, broker, agent, or clerk, in
the course of his employment as such, or by How is attachment applied for?
any other person in a fiduciary capacity , or
for a wilful violation of duty By way of motion? Or by way of complaint?

EITHER
c. In an action to recover the possession of
property unjustly or fraudulently taken,
detained, or converted,  when the property,
or any part thereof, has been concealed, HOW?
removed, or disposed of  to prevent its
At the commencement of the complaint
being found or taken by the applicant or an
authorized person - By verified complaint

d. In an action against a party who has been At any time before judgment
guilty of fraud in contracting the debt or
incurring the obligation upon which the - By verified motion

action is brought , or in the performance


thereof
Cany you apply for writ of attachment before the
e. In an action against a party who has MTC?
removed or disposed of his property , or is
about to do so with intent to defraud his YES.
creditors
In all instances?

34
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

YES. Because under Summary Procedure, not a - That the writ was improperly or irregularly
prohibited pleading issued or enforced
- That the bond is insufficient
FE/UD- No
If the attachment is excessive, the discharge shall be
Amount 200k MM- yes limited to the excess

100k- no

Ordinary Civil Actions- yes Order of denial of motion to quash:

- INTERLOCUTORY, hence,
o M4R R65 S4
When is it necessary to issue summons?
o Certiorari R65 S1, R41 S1b
In case of implementation of the preliminary
rd
attachment (3  stage)

Purpose of the bond:

- To answer for damages incurred by the


Stages:
adverse party in case writ of attachment is
- Publication improperly or irregularly enforced
- Order/Execution
o BOTH ARE EX PARTE
- Implementation
Writ of Preliminary Writ of Replevin
o With Summons Attachment
Covers real or personal Covers only personal
property property
At the commencement Commencement of the
How attached?
of the action or at any action or at any time
time before entry of before answer
- Garnishment
 judgment
- Levy on attachment Amount of the bond is Amount of the bond is
o Annotated on back of title, warning the value of the double the amount of
on subsequent buyer subject to obligation (fixed by the the personal property
outcome of the case court)
May be resorted to even Can be sought only when
if property is in the defendant is in actual
possession of a third possession of the
Remedy in case of issuance of writ of attachment: person property

R57 S12 and S13


B. Preliminary Injunction (Rule 58)
S12- Motion to discharge attachment upon giving of
counterbond Injunction

S13- Motion to quash the writ of attachment on the - Judicial writ, process, or proceeding
ff grounds: whereby a party is ordered to do or refrain
from doing a particular act

35
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Preliminary Injunction complained of, or in requiring the


performance of an act or acts, either for a
- An order granted at any stage of an action limited period or perpetually
or proceeding prior to the judgment
requiring a party or a court, agency, or a b. That the commission, continuance, or non
person to refrain a particular act or acts performance of the act or acts complained
of during the litigation would probably work
Preliminary Mandatory Injunction
injustice to the applicant, or
- An order requiring the performance of a
particular act or acts c. That a party, court, agency, or a person is
doing, threatening, or is attempting to do,
or is procuring or suffering to be done,
some act or acts probably in violation of the
Denial- interlocutory
rights of the applicant respecting the

- Remedy: certiorari subject of the action or proceeding, and


tending to render the judgment ineffectual
If FJ- appeal

Irreparable damage and injury


Can preliminary injunction be issued ex parte?
- Of such constant and frequent recurrence
NO (?). TRO- yes that no fair or reasonable redress can be
had therefore in court of law or where
there is no standard by which their amount
can be measured with reasonable accuracy
Writ of preliminary TRO
injunction
A writ granted at any An order to restrain
stage of action or particular act or acts of a
How do you avail?
proceeding prior to the party for a limited period
 judgment or final order, of time By way of MOTION or by way of VERIFIED
requiring a party or a
COMPLAINT
court, agency or person
from a particular act or
IF by verified complaint, at the commencement of
acts. It may also require
the action or before entry of judgment,
performance of a
particular act or acts, in INCORPORATED IN THE BODY OF THE COMPLAINT
which case it shall be
known as a preliminary If by motion, then by an application for relief
mandatory injunction complying with the Rules on Motion:

1. In writing, [except those made upon in open


GROUNDS for preliminary injunction (R58 S3): court or in the course of a hearing or trial ]
(R15 S2)
a. That the applicant is entitled to the relief
demanded, and the whole or part of such 2. Must be verified and accompanied by an
relief consists in restraining the commission affidavit of merit if the ground for the
or continuance of the act or acts motion is FAME

36
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

copy of the notice given by the postmaster to the


3. Shall state the following (R15 S3) addressee.

a. Relief sought to be obtained 8. If the motion is not s erved to the other

b. Grounds upon which it is based party by personal service, such mode

and resorted to must be accompanied by a

c. If required by these Rules or written explanation why the service or filing

necessary to prove facts alleged was not done personally. A violation of this

therein, shall be supported by Rule may be cause to consider the paper as

supporting affidavits and other not filed (R13 S11)

papers

4. Motion is set for hearing by applicant (R15 Effect of failure to comply with Sections, 4, 5, 6 of
S4) Rule 15?

5. Notice of hearing addressed to all parties 1. *the motion shall be treated as a worthless
concerned, specifying the time and date of piece of paper which the clerk of court has
hearing which must not be later than 10 no right to receive and the court has no
days after the filing of the motion (R15 S5) authority to act upon (mere scrap of paper)
2. It does not interrupt the running of the
6. Motion and notice of hearing must be prescriptive/reglementary period for the
served at least 3 days before the date of filing of the requisite pleading
hearing (3 day notice rule) 3. It will be ground for denial of the motion
4. The motion shall be considered as not filed
7. Proof of service of the motion

R13 S13
HOW?
Proof of personal service shall consist of:
At the commencement of the complaint
- Written admission of party served or
- By verified complaint
- Official return of the server or
- Affidavit of the party serving containing a At any time before judgment
full statement of the date, place, and
manner of service - By verified motion

If by service is by ordinary mail, proof thereof shall


consist of an affidavit of the person mailing of facts
showing compliance with S7 of this Rule. Status Quo Order

If service is by registered mail, proof shall be made - Order issued by the court to maintain the

by such affidavit and registry receipt issued by the last, peaceable, actual, uncontested

mailing office condition of the parties before the action or


proceeding
The registry return card shall be filed i mmediately
upon its receipt by the sender, or in lieu thereof, the
unclaimed letter together with the certified or sworn

37
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

TRO- order restraining particular act or acts of a original seventy-two hours provided herein.
party for a limited period of time; can be issued ex
parte In the event that the application for preliminary
injunction is denied or not resolved within the said
(RULE 58- AM 7-7-12) period, the temporary restraining order is deemed
automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of
Sec. 5. Preliminary injunction not granted without
any judicial declaration to that effect, and no court
notice; exception. No preliminary injunction shall be
shall have authority to extend or renew the same on
granted without hearing and prior notice to the
the same ground for which it was issued.
party or persons sought to be enjoined . If it shall
appear from facts shown by affidavits or by the
However, if issued by the Court of Appeals or a
verified application that great or irreparable injury
member thereof, the temporary restraining order
would result to the applicant before the matter can
shall be effective for sixty (60) days from service on
be heard on notice, the court to which the
the party or person sought to be enjoined. A
application for preliminary injunction was made,
restraining order issued by the Supreme Court or a
may issue ex parte a temporary restraining order to
member thereof shall be effective until further
be effective only for a period of twenty (20) days
orders. l
from service on the party or person sought to be
enjoined,  except as herein provided. Within the
The trial court, the Court of Appeals, the
twenty-day period, the court must order said party
Sandiganbyan or the Court of Tax Appeals that
or person to show cause at a specified time and
issued a writ of preliminary injunction against a
place, why the injunction should not be gran ted.
lower court, board, officer, or quasi-judicial agency
The court shall also determine, within the same
shall decide the main case or petition within six (6)
period, whether or not the preliminary injunction
months from the issuance of the writ.
shall be granted, and accordingly issue the
corresponding order.

However, subject to the provisions of the preceding


sections, if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable “Lifetime” (R57 S5 in relation to AM 7 -7-12)
injury, the executive judge of a multiple-sala court or
- Effective only for a period of 20 DAYS from
the presiding judge of a single-sala court may issue
service on the party or person sought to be
ex parte a temporary restraining order effective for
enjoined.
only seventy-two (72) hours from issuance,   but
o Court to order said party or person
shall immediately comply with the provisions of the
to show cause at a specified time
next preceding section as to service of summons
and place why injunction should
and the documents to be served therewith.
not be granted, w/n P injunction
Thereafter, within the aforesaid seventy-two (72)
should be granted, and accordingly
hours, the judge before whom the case is pending
issue the corresponding order
shall conduct a summary hearing to determine
whether the temporary restraining order shall be
- IF the matter is of EXTREME URGENCY,
extended until the application for preliminary
applicant will suffer grave injustice and
injunction can be heard. In no case shall the total
irreparable injury, executive judge of multi
period of effectivity of the temporary restraining
order exceed twenty (20) days, including the

38
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

sala court or presiding judge of single sala R70 S15


court may issue EX PARTE TRO
o Effective for only 72 HOURS from Court may grant preliminary injunction, in

issuance, accordance with the provisions of R58 thereof, to

 But shall immediately prevent defendant from committing further acts of

comply with provisions of dispossession against plaintiff.

the next preceding section


A possessor deprived of possession through Fe or UD
as to service of summons
may, within 5 days from filing of complaint, present
and documents to be
a motion in the action for FE UD for issuance of writ
served
of preliminary mandatory injunction to restore him
in his possession.
possession. The court shall decide the motion
- Within the 72 hours, judge to conduct
within 30 days from filing thereof
summary hearing to determine whether the
TRO can be extended until application for R70 S20
preliminary injunction can be heard,
o Total period of effectivity of TRO Upon motion of plaintiff, within 10 days from
shall NOT EXCEED 20 DAYS, perfection of appeal to the RTC, the latter may issue
including the original 72 hours a writ of preliminary mandatory injunction to restore
provided therein plaintiff in possession if the court is satisfied that

CA issues: effective for 60 DAYS from service on the - defendant’s appeal is frivolous or dilatory,
party or person sought to be enjoined or
- that the appeal of plaintiff is prima facie
SC or member issues: effective until further orders meritorious

AGAIN... REMEDIES IN CASE OF PRELIMINARY INJUNCTION:

TRO- order restraining acts of a party for a limited Granted: (Rule 57 S6)
period of time
- quash the writ based on:
20 days
1. upon showing of insufficiency
72 hours (ex parte)- extreme urgency
2. on other grounds upon affidavits of the

20 days non extendible party or person enjoined


3. if it appears after hearing that although
applicant is entitled to the injunction or
restraining order, the issuance or
Can the court issue injunction ex parte? continuance thereof, as a case may be,
would cause irreparable damage to the
NO!- requires notice and hearing
party or person enjoined while applicant
Can MTC issue TRO? can be fully compensated for such damages
he may suffer
Ordinary Civil Actions- Pwede
Other requirements for quashal of writ:
Forcibly Entry / UnlawFul Detainer- YES

39
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. filing of bond in amount fixed by court Provisional remedy Special civil action
conditioned that he will pay all damages Rule 58 Rule 65
which applicant may suffer by the denial or An order granted at any Petition in case a person
dissolution of the injunction or restraining stage of an action or exercising J, QJ,
proceeding prior to the Ministerial Function
order
 judgment requiring a acted without jur or with
party or a court, agency, GAD amounting to lack
Denied:
or a person to refrain a or excess of jurisdiction,
particular act or acts for respondent to desist
- M4R
from further
- Certiorari Rule 65
proceedings

Can there be injunction in criminal cases?

Mandatory Injunction Mandamus


YES, in case of preliminary injunction with respect to
Provisional Remedy Special Civil Action
preliminary investigation (general rule, no, but the
Rule 58 Rule 65
enumerations are the exceptions) An order requiring the Requires performance of
performance of a a ministerial act or to
1. When prejudicial to the rights of the
particular act or acts desist from excluding
accused another from a right or
office (ministerial)
2. When there is need for protecting the Directed against a party Directed against a
Constitutional rights of the accused Judicial or quasi judicial
bodies exercising
ministerial functions
3. To Prevent the long arm of the law from
Provisional remedy Original action
being vindictive
By way of motion By way of petition

4. When prejudicial question is involved in the


case

5. In case of criminal prosecution under an C. Receivership (Rule 59)


invalid law
- Provisional remedy to preserve a property
subject of litigation from further loss,
wastage, damage, dissipation for the
Can MTC issue preliminary injunction?
protection of another person

YES, except in: Where applied for?

Case falling under Summary Procedure, if the claim 1. Court where action is pending
being 100k (Small Claims), EXCEPT: 2. CA
3. SC
- FE and UD
o R70- preliminary mandatory
Grounds: (R59 S1)
injunction and preliminary
prohibitory injunction are allowed a. When it appears from the verified
application, and such other proof
as the court may require, that the
party applying for the appointment
Prohibitory Injunction Prohibition

40
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

of receiver has an interest in the REQUIREMENTS:


property or fund which is the
subject of the action or 1. Verified motion in a complaint / Verified

proceeding, and that such property complaint at commencement of action (R59

or fund is in danger of being lost, S1)

removed, or materially injured


unless a receiver be appointed to 2. Bond by applicant in an amount to be fixed

administer and preserve it by the court to pay such person against


whom application is presented to pay such

b. When it appears in an action by party all damages he may sustain by reason

the mortgagee for the foreclosure of the appointment of such receiver in case

of mortgage that the property is in the applicant shall have procured such

danger of being wasted or appointment without sufficient cause(R59

dissipated or materially injured, S2)

and that its value is probably


insufficient to discharge the 3. Oath and Bond by receiver to faithfully

mortgage debt, or that the parties discharge of his duties in an action or


have so stipulated in the contract proceeding and obey court orders
of mortgage
IF pending appeal,

c. After judgment, to preserve the - By verified complaint


property during the pendency of
an appeal, or to dispose of it IF after judgment,
according to the judgment, or to
- By way of motion
aid execution when execution has
been returned unsatisfied or when NOTE: Receivership as provisional remedy applies to
 judgment obligor refuses to apply all civil actions, while receivership of corporation is
his property in satisfaction of the an original action applicable only to corporations
 judgment or otherwise to carry the under the Corporation Code of the Philippines
 judgment into effect

d. Whenever in other cases it appears


that the appointment of a receiver Receivership with appointment of receiver: pwede

is the most convenient and feasible


Receivership with MTC: pwede, except in Small
means of preserving,
Claims
administering, or disposing of the
property in litigation

During pendency of appeal, the appellate court may General powers of receiver:
allow an application for the appointment of a
receiver to be filed in and decided by the court of R59 S6
origin and the receiver appointed to be subject to
Subject to the control of the court in which the
the control of said court.
action or proceeding is pending, a receiver shall have
the power to

41
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. Bring and defend, in such capacity, actions 2. direct the delivery of the funds and other
in his own name property in his possession to the person
adjudged to be entitled to receive them,
2. Take and keep possession of the property in
controversy 3. and order the discharge of the receiver
from further duty as such
3. To receive rents
The court shall allow the receiver such reasonable

4. To collect debts due to himself, as receiver compensation as the circumstances of the case

or to the fund, property, estate, person, warrant, to be taxed as costs against the defeated

corporation to which he is the receiver party, or apportioned, as justice requires.

5. To compound for and compromise the


same D. REPLEVIN (Rule 60)

6. To make transfers - A provisional remedy for recovery of


personal property / reacquisition of
7. To pay outstanding debts personal property subject of litigation

8. To divide the money and other property Can be a provisional remedy or a main action
that shall remain among the persons legally
- If a main action, then it is an action for
entitled to receive the same
recovery of unlawfully withheld personal
property in the possession of another
9. To do such acts respecting the property as
the court may authorize Jurisdiction/Venue:

However, funds in the hands of a receiver may be RTC or MTC (300k-400k OMM MM higher lower)
invested only by order of the court upon the written
consent of all the parties to the action.

No action may be filed by or against a receiver REQUIREMENTS: (R60 S2)


without leave of the court which a ppointed him
1. Verified Application (by affidavit)/complaint
before service of answer

Termination of receivership; compensation of Facts:


receiver
a. That applicant is the owner of the property
R59 S8 claimed, particularly describing it, or is
entitled to the possession thereof
Whenever the court, motu proprio or on motion of
either party, shall determine that the necessity for b. That the property is wrongfully detained by
receiver no longer exists, it shall, after due notice to adverse party, alleging cause of detention
all interested parties and hearing, thereof according to the best of his
knowledge, information, and belief
1. settle the accounts of the receiver,

42
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

c. That the property has not been distrained - Nullity of marriage


or taken for a tax assessment or a fine - Annulment of marriage
pursuant to law, or seized under a writ of - Legal separation
execution or preliminary attachment, or - Custody of minors in relation to habeas
otherwise placed under custodia legis, or if corpus
so seized, that it is exempt from such - Criminal cases:
seizure or custody o Rape
o RA9262
d. The actual market value of the property
S1- Application

2. Posting of bond by applicant in double the


At
value of the property stated in the affidavit
mentioned, for return of the property to - the commencement of the proper action or
adverse party if such return be adjudged, proceeding,
and for payment to adverse party of such - or at any time prior to the judgment or final
sum as he may recover from the applicant order,
in the action o a verified application for support
pendentee lite may be filed by any
party
 stating the grounds for
Denied, REMEDY:
the claim and the financial
Counterbond double the amount of property conditions of both parties,
and
 commenced by affidavits,
depositions, or other
E. SUPPORT PENDENTE LITE (Rule 61)
authentic documents in
support thereof
- Amount of support provisionally fixed by
the court in favour of the person or persons
entitled thereto during the pendency of an
action for support S2- Comment

IMMEDIATELY EXECUTORY! A copy of the application and all supporting


documents
Where filed?
- shall be served upon adverse party,
FAMILY COURT o who shall have 5 days to comment
thereon
Why not in MTC? Because action for support is
 unless a different period is
incapable of pecuniary estimation
fixed by the court upon
(Exception: Criminal cases falling under MTC his motion.
 jurisdiction?)
The comment shall be verified and shall be
When available? accompanied by affidavits, depositions, or other
authentic documents in support thereof.
- Action for support
- Relief sought is support for applicant

43
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

S3- Hearing S5- enforcement of order

1. After the comment is filed, or If the adverse party fails to comply with an order
2. after the expiration of the period for its granting support pendente lite, the court shall, motu
filing, proprio or upon motion,
a. the application shall be set for
hearing not more than 3 days - issue an order of execution against him,

thereafter o without prejudice to his liability for


contempt.
The facts in issue shall be proved in the same
manner as if proved for evidence on motions. When the person ordered to give support pendente
lite refuses or fails to do so,

- any third person who furnished that


S4- Order support to the applicant may, after due
notice and hearing in the same case,
The court shall determine provisionally o obtain a writ of execution to
enforce his right of reimbursement
1. the pertinent facts, and
against the person ordered to
shall render such order as justice and equity may provide such support.
require,

- having due regard to the probable outcome


S6- Support in criminal cases
and such other circumstances as may aid in
the proper resolution of the question In criminal cases
involved.
1. where the civil liability includes support for
If the application is granted, the offspring as a consequence of the crime
2. and civil aspect thereof has not been
- the court shall fix
waived, reserved, or instituted prior to its
o the amount of money to be
filing,
provisionally paid,
a. the accused may be ordered to
o or such other forms of support as
provide support pendente lite to
should be provided,
the child born to the offended
 taking into account the
party allegedly because of the
necessities of the
crime.
applicant and the
 resources or means of the The application therefore may be filed successively
adverse party, and by the
 terms of payment or
mode for providing the - offending party,
support. - her parents,
- grandparents,
If the application is denied, the principal case shall - or guardian
be tried and decided as early as possible. - and the state in the corresponding criminal
case during its pendency,

44
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

o in accordance with the procedure complaint petition


established in this Rule. - Interpleader (62) - declaratory
- Foreclosure of relief (62)
mortgage (68) - review of
- Forcible entry / adjudication of
S7- Restitution UD (70) comelec, coa
- Partition (69) (64)
When the judgment or final order of the court finds - Expropriation - c, m, p (65)
that the person who has been providing support (67) - qw (66)
pendente lite is not liable therefor, - contempt (71)

- it shall order the recipient thereof to return


1. Interpleader (62)
to the former the amounts already paid
2. Declaratory Relief and other similar
with legal interest from the dates of actual
remediesv (63)
payment,
3. Review of judgments, final orders,
o without prejudice to the right of
resolutions of CoA, COMELEC (64)
recipient to obtain reimbursement
4. Certiorari, Prohibition, Mandamus (65)
in a separate action from the
5. Quo Warranto (66)
person legally obliged to give the
6. Expropriation (67)
support.
7. Foreclosure of Real Estate Mortgage (68)
Should recipient fail to reimburse said amounts, the 8. Partition (69)
9. Forcible Entry/Unlawful Detainer (70)
- person who provided the same may 10. Contempt (71)
likewise
o seek reimbursement thereof in a Governed by Special Rules, Rules on ordinary civil
separate action from the person actions apply in a suppletory manner (OR is it the
legally obliged to give such other way? R1 states governed by rules on ordinary
support. civil actions, subject to specific rules prescribed in a
special civil action)

Examples:
Failure of action for support pendente lite, REMEDY:
VENUE
- move for motion for execution
MOTION TO DISMISS
DENIED,
DEMURRER TO EVIDENCE
- file petition for indirect contempt, for
disobedience to lawful order of the court PARTS OF A PLEADING

SPECIAL CIVIL ACTIONS INTERPLEADER (Rule 62)

(discussed in this stage because initiatory pleadings


are filed, by complaint or by petition, as the case - Initiated by way of complaint
may be)
S1- When proper
SCA initiated by SCA initiated by

45
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Whenever - issue an order requiring the conflicting


claimants to interplead with one another.
- conflicting claims upon the same subject
matter If the interests of justice so require,
o are or may be made against a
person who claims no interest - the court may direct in such order

whatever in the subject matter or o that the subject matter be paid or

o an interest in which in whole or in delivered to the court.

part is not disputed by claimants,


 he may bring an action
against conflicting S3- Summons
litigants to compel them
to interplead and litigate Summons shall be served upon the conflicting
their several claims claimants, together with a copy of the complaint and
among themselves order.

NOTE: Person in possession has no legal interest

S4- Motion to dismiss

Interpleader Intervention Within the time for filing an answer, each claimant
Rule 61 Rule 19 may
Without leave of court With leave of court
Original / Special Civil Ancillary to main action - file motion to dismiss on the ground of
action impropriety of the interpleader action or
Filed by complaint for If for plaintiff- complaint - on other appropriate grounds specified in
interpleader in intervention Rule 16.

If for defendant- answer The period to file the answer shall be tolled and
in intervention if the motion is denied, the movant may file his
At any time Before judgment
answer within the remaining period, which shall
not be less than 5 days in any event, reckoned
JURISDICTION: from the notice of denial. (See Rule 16 S4)

RTC or MTC 20-50 real 300-400 personal higher


lower
S5- Answer and other pleadings
VENUE:
Each claimant shall file his answer setting forth his
Real- R4 S1 claim within 15 days from service of the summons
upon him,
Personal- R4 S2
- serving a copy thereof upon each of the
other conflicting claimants,
o who may file their reply thereto as
S2- Order
provided in these Rules.

Upon filing of the complaint, the court shall


If any claimant fails to plead within the time therein
fixed, the court may, on motion,

46
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

- declare him in default and OTHER SIMILAR REMEDIES CONTEMPLATED which


- thereafter render judgment barring him applies the provisions of this Rule:
from any claim in respect to the subject
matter. - reformation of an instrument

The parties in an interpleader action may file NOTE: INSTRUMENT, not the elements of the
rd
counterclaims, cross claims, 3  party complaints and instrument—if such, e subject of another proceeding

responsive pleading thereto, as provided in these to, annulment of contract

Rules.
- quiet title to real property or remove clouds
therefrom

S6- Determination - consolidate ownership

After the pleadings of the conflicting claimants have In case of pacto de retro sale or foreclosure of
been filed, and pre trial has been conducted in mortgage, not necessarily owner agad, hence, file for
accordance with these Rules, consolidation of ownership under this Rule

- the court shall proceed to determine their (EXCLUSIVE) hence, if not, then not subject here
respective rights and adjudicate their
several claims. NOTE: DECLARATORY RELIEF is the only civil action
(special vis a vis ordinary) that can be filed even
before breach or violation thereof

In case of adverse Resolution, JURISDICTION/VENUE:

Appeal pursuant to R40-42 Declaratory Relief:

- RTC- incapable of pecuniary estimation

DECLARATORY RELIEF AND OTHER SIMILAR Queting of title:


REMEDIES (R63)
- MTC or RTC 20-50 OMM MM lower higher
Objective: (R63 S1)
Consolidation of ownership:
Interpretation/Construction of:
- RTC- incapable of pecuniary estimation
o deed,
o will, Reformation of contracts:

o contract, or
- RTC- incapable of pecuniary estimation
o other written instrument, or

determining validity of:


Can the SC entertain petition for declaratory relief?
o statute,
o executive order, NO. BP129- RTC EO Jur, actions incapable of
o regulation, pecuniary estimation
o ordinance, or
o any other governmental regulation

47
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Requirements: REVIEW OF JUDGMENTS AND FINAL ORDERS OR


RESOLUTIONS OF THE COMELEC AND COMMISSION
S2- Parties ON AUDIT (Rule 64 [but applying Rule 65])

All persons who have or claim any interest which Constitutional Basis:
would be affected by the declaration shall be made
parties, and A9A S7 (basis of Rule 64)

- no declaration shall, except as provided in Each Commission shall decide by majority of all its
these Rules, Members in any case or matter brought before it
o prejudice the rights of persons not within 60 days from date of its submission for
parties to the action. decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing
S3- Notice on Sol Gen of the last pleading, brief, or memorandum required
by the rules of the Commission or by the
In any action which involves validity of
Commission itself. Unless otherwise provided by
- statute, this Constitution or by law, any decision, order, or
- EO, or ruling of each Commission may be brought to the SC
- regulation, or on certiorari by the aggrieved party within 30 days
- any other governmental regulation, from receipt of a copy thereof.
o The Sol Gen shall be notified by the
COVERAGE: (R64 S1)
party assailing the same and
 shall be entitled to be Judgments, final orders, resolutions of COMELEC,
heard upon such question CoA

S4- Local government ordinances S1- Scope

In any action involving the validity of a local Final orders or judgments of COA and COMELEC
government ordinance,

- the corresponding prosecutor or attorney


of the LGU involves shall be similarly S2- Mode
notified and entitled to be heard.
SC- petition for certiorari under Rule 65
If such ordinance is alleged to be unconstitutional,
the Sol Gen shall also be notified and entitled to be
heard.
S3- Time

Within 30 days from notice of judgment

In case of adverse resolution


IF M4r denied, filed within remaining period and not

- APPEAL R41 less than any event reckoned from notice of the

o (R40 to RTC if Quieting in MTC) denial

NO FRESH PERIOD RULE, only in 40 41 42 43 45

48
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Filing of certiorari will not stay execution of


 judgment, FO, resolution sought to be reviewed,
S4- Docket, lawful fees unless SC shall direct otherwise upon such terms as
may be just
Pay, + 500 for costs
Petitioner may apply for TRO or preliminary
injunction to stay execution

S5- Form/Contents

1. Verified petition, 18 copies, with certified


Rule 65 Rule 64
true copy of judgment
Applies to orders of Applies to judgments,
2. Respondent is Comelec or CoA, person  judicial, quasi judicial final orders, resolutions
interested in sustaining court or tribunals of CoA and COMELEC
3. Finding of fact supported by substantial 60 days from denial of 30 days from notice of
evidence, final and non reviewable motion for  judgment or final order
4. State specific material dates showing it was reconsideration (AM 7-7- or resolution sought to
12-SC) be reviewed
filed on time
Motion for NOT
5. Accompanied by sworn certification against
reconsideration is
forum shopping required
6. Proof of service of its copy on commission Petition filed before RTC, Petition filed before SC
and adverse party, and of payment of CA, SC
docket and other lawful fees

Rule 43 Rule 64
Appeal/Petition for Petition for review of
S6- order to comment review of decisions of  judgments and final
Quasi Judicial Bodies orders or resolutions of
- Within 10 days from notice of order or COMELEC and CoA
 judgment, by respondent, or else, dismissed 15 days from notice of 30 days from notice of
award, final judgment,  judgment or final order
Grounds for dismissal resolution sought to be reviewed
With the CA With the SC
1. Non compliance with form and contents
2. Non payment of docket and 500 for costs
3. Filed manifestly for delay
4. Questions are too unsubstantial to warrant
CERTIORARI, PROHIBITION, MANDAMUS (Rule 65)
further proceedings
Constitutional Basis:

A8 S1 P2
S7- Comments of respondents
Judicial Power includes the duty of the courts of
- 18 copies
 justice to settle actual controversies involving rights
- No other pleading may be filed unless
which are legally demandable and enforceable, and
required or allowed by court
to determine whether or not there is grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
S8- Effect of filing government.

49
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

A8 S5 P2 What is the MATERIAL DATES RULE?

- Review As far as Rule 65 is concerned, the following material


- Revise dates must be stated in the verified petition or else,
- Reverse the petition would be denied:
- Modify
- Affirm 1. Notice of the order or judgment

o On appeal or certiorari, as the law 2. Date of the filing of the motion for

or the Rules of Court may provide, reconsideration

final judgments and orders of 3. Date of the denial of the motion for

lower courts in: reconsideration

6. All cases in which constitutionality or


validity of any Certiorari
a. treaty,
b. international or executive - Special civil action directed to an inferior
agreement court, tribunal, board or officer directing
c. law  judicial or quasi judicial functions, to annul
d. presidential decree or modify proceedings of such court,
e. proclamation tribunal, board or officer in the event that
f. order the same has acted with grave abuse of
g. instruction discretion amounting to lack or excess of
h. ordinance  jurisdiction
i. regulation o Seeks to correct errors of
i. is in question  jurisdiction

Prohibition
7. all cases involving the legality of any
a. tax - Special civil action directed against any
b. impost tribunal, board, officer or person exercising
c. assessment  judicial, quasi judicial, or ministerial
d. toll functions, to desist from further
e. any penalty imposed in relation proceedings in the event that the same
thereto acted with grave abuse of discretion
amounting to lack or excess of jurisdiction
8. all cases in which the jurisdiction of any
lower court is in issue Mandamus

9. all criminal cases in which the penalty - Special civil action directed against any

imposed is reclusion perpetua or higher tribunal, corporation, board, officer or


person, to do the act required to be done to

10. all cases in which only an error or question protect the rights of petitioner and to pay

of law is involved damages sustained by petitioner by reason


of the respondent’s wrongful act, in the
event that the same unlawfully neglected in
the performance of ministerial duty or
unlawfully excluded another from use and

50
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

enjoyment of a right or office to which such 2. where question raised in the certiorari
other is entitled proceedings have been duly raised and
passed upon by the lower court, or are the
QUALIFICATIONS in ALL 3: same as those raised and passed upon by
the lower court
- that there is no plain, speedy, or adequate
remedy in the ordinary course of law
3. where there is an urgent necessity for the
resolution of the question and any further
delay would prejudice the interest of the
Certiorari Mandamus Prohibition government or the petitioner or the subject
discretionary Ministerial Discretionary and
ministerial of the action is perishable
To annul order To order To restrain
performance performance
4. where under the circumstances, a motion
60 days from receipt of final judgment or order or from denial of
motion for reconsideration for reconsideration would be useless
Against entity or Against entity or Against entity or
person exercising j person exercising person exercising j,
or ej function ministerial function ej, ministerial 5. where petitioner was deprived of due
function process, and there is extreme urgency for
Without or GAD Unlawful neglect of Without or GAD
ministerial duty or
relief
excluded another
from a right or
6. where, in a criminal case, relief from an
office
Correct errors of Performance of act To restrain or order of arrest is urgent and the granting of
 jurisdiction or desist from prevent usurpation such relief by the trial court is improbable
excluding another of jurisdiction
from a right or
office 7. where the proceedings in the lower court
are a nullity for lack of due process

8. where the proceeding were ex parte or in


which the petitioner had no opportunity to
object

Errors of Jurisdiction Errors of Judgment 9. where the issue raised is one purely of law
Court acted with GAD Misapprehension of law or where public interest is involved
amounting to lack or or facts by the court
excess of jurisdiction
Action of the court Valid proceeding
REQUIREMENTS:
Correctible by certiorari Correctible by appeal
Rule 65 Rules 40-43, 45 1. verified petition in 7 legible copies

2. it should be filed not later than 60 days


General Rule: M4R is required to allow the court to
from notice of judgment, order or
correct its errors
resolution sought to be assailed or from
Exception: denial of M4R

1. where the order is a patent nullity, as 3. contain full names and addresses of
where the court has no jurisdiction petitioners and respondents, concise
statement of matters involved, factual

51
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

background of the case, grounds relied - superior courts would not take cognizance
upon for the relief prayed for of a case brought before it unless the case
has been decided by the lower courts in the
4. accompanied by clearly legible duplicate exercise of its jurisdiction
originals or certified true copies of award,
 judgment, order, resolution, ruling subject Same principle in certiorari:

MTC to RTC- 60 days


5. certification against forum shopping
RTC to CA- 60 days
6. pay docket and lawful fees, 500 for costs
CA to SC- 60 days
7. serve copy upon adverse party or parties
and the court

65 vs 45 (simplified)
8. service and filing to be done personally,
with explanation if not done personally Rule 65 Rule 45
60 days 15 Days
Motion for Not
General rule: reconsideration required
Questions of jurisdiction Questions of law
Certiorari is not a substitute for lost a ppeal SC, CA, RTC SC
Special civil action Mode of appeal/petition
Except: for review

- denial of due process


Rule 65 as amended by Am 7-7-12:
- appeal is not a remedy
o no appeal or no plain, speedy,
adequate remedy Sec. 4. When and where to f ile the petition.

The petition shall be filed not later than sixty (60)


- court without jurisdiction
days from notice of the judgment, order or
resolution.  In case a motion for reconsideration or
- when deprived of substantial rights
new trial is timely filed,   whether such motion is
required or not, the petition shall be filed not later
than sixty (60) days counted from the notice of the
Note: in the cases, in event of denial of petition, and denial of the motion.
in exercise of original jurisdiction, remedy is APPEAL
If the petition relates to an act or an omission of a
MTC to RTC- Rule 40 municipal trial court or of a corporation, a board,
an officer or a person , it shall be filed with the
RTC to CA- Rule 41 (original), Rule 42 (appellate)
Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court.  It
CA to SC- Rule 45
may also be filed with the Court of Appeals  or with
The above-stated is the PRINCIPLE OF HIERARCHY OF the Sandiganbayan , whether or not the same is in
COURTS aid of the courts appellate jurisdiction. If the petition
involves an act or an omission of a quasi-judicial

52
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

agency, unless otherwise provided by law or these a. a person who usurps, intrudes into, or
rules,  the petition shall be filed with and be unlawfully holds or exercises a public office,
cognizable only by the Court of Appeals. position, or franchise

In election cases involving an act or an omission of a b. a public officer who does or suffers an act
municipal or a regional trial court, the petition shall which by provision of law constitutes a
be filed exclusively with the Commission on ground for the forfeiture of his office
Elections, in aid of its appellate jurisdiction.
c. an association which acts as a corporation
within the Phils without being legally
incorporated or without lawful authority to
NO MORE EXTENSION OF TIME IS GIVEN TO FILE
act
CERTIORARI!

*Sol Gen commences action (S2, S3)

Period: (S11)

Within 1 YEAR
M4R based on Rule 65 M4R based on Rule 37
Of interlocutory order, Of final judgment or final
- after cause of ouster or right of petitioner
as preparation to file order, not including
to hold such office, or position arose
certiorari interlocutory orders

Within 1 YEAR (action for damages)

QUO WARRANTO (Rule 66)


- after entry of judgment establishing

- proceeding or writ issued by the court to petitioner’s right to the office in question

determine the right to the use or exercise of


in short...
an office, position or franchise and to oust
the person holding or exercising such office, within 1 YEAR from usurpation of public office
position or franchise if his right is
unfounded or if he had forfeited his right to REMEDY IF DENIED: Appeal
enjoy the privilege

Jurisdiction and Venue:


2 kinds of quo warranto:
RTC, CA, SC
1. usurpation of public office
If Solicitor General files- RTC, CA, SC

2. dissolution of a de facto corporation If other person files- R4 S1 R4 S2

Rule 66 S1
Quo Warranto Election Quo Warranto Rule 66
An action for usurpation of a public office, position, Code
or franchise may be commenced by a verified Election Code Rules of Court
petition brought in the name of the Republic of the COMELEC, RTC. MTC RTC, CA, SC
Philippines against: Omnibus Election Code Basis: A8 Consti, R66
Not Subject to BP129

53
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Can be filed with MTC Cannot be filed with


MTC
Contest right of elected Show title to public NOTE: Expropriation is an instance where multiple
public officer to hold office or exercise public appeals are filed (30 day record on appeal in case of
public office franchise multiple appeal)
Ineligibility or Usurpation, forfeiture,
disqualification of illegal association Why? 3 orders issued under Rule 67:
person elected to hold
the office 1. order of compensation
Within 10 days after Within 1 year from 2. order of expropriation
proclamation of usurpation of office 3. final order of just compensation
candidate
Filed by any voter Filed by government or
person entitled to the
office Remedy of person after expropriation, no payment
made:

- recover property from expropriator within 5


years after non payment
Expropriation (Rule 67)

Eminent Domain- right and authority of the State to


acquire private property for public use upon FORECLOSURE OF MORTGAGE (Rule 68)
observance of due process and payment of just
compensation (Tan, Handbook on Civil Procedure and pleadings, pp
142-145)
Expropriation- procedure to be observed in the
exercise of the right of eminent domain Foreclosure

- action by which a mortgagee or pledge or


any other lien holder cuts off the right of
Constitutional Basis: debtor whose property is pledged, because
of default in meeting the obligation
A3 S9

Foreclosure of Mortgage
Private property shall not be taken for public use
without payment of just compensation - termination of all the rights of the
mortgagor in the property covered by the
mortgage
Jurisdiction: RTC, incapable of pecuniary estimation
(BP129)

Manner of foreclosure of mortgage:


Venue: Where the property is located

Rule 68 S1
Basis: (action involving title to or real property under
R4 S1) Contents of action:

CANNOT BE FILED WITH SC, because under EO jur of 1. date and due execution of mortgage
RTC

2. assignments, if any

54
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Remedies of Mortgagee in case of default of


3. names and residences of mortgagor and mortgagor/waiver of right to foreclose:
mortgagee
a. Judicial or extrajudicial foreclosure of

4. description of mortgaged property mortgage

5. statement of date of the note or other b. Filing of ordinary action to collect debt

documentary evidence of the obligation


secured by the mortgage - Here, under b, deemed to have waived his
right to proceed against the property in a

6. amount claimed to be unpaid thereon foreclosure proceeding

7. names and residences of all persons having


of claiming interest in the property Right of Redemption Equity of Redemption
subordinate in right to that of the holder of Exists in EJ foreclosure Exists in J foreclosure
the mortgage, all of whom shall be made By mortgagee within 1 By mortgagor during not
defendants in the action year from registration of less than 90 days nor
the sale in the Office of more than 120 days
the Registry of Deeds from entry of judgment
Nature of Action: or foreclosure or even
after foreclosure sale but
- QUASI IN REM before judicial
confirmation of the
- Service of summons by publication
same
Jurisdiciton/Venue:

MTC-RTC 20-50 OMM MM lower higher J Foreclosure, no right of redemption, except only if
morgagee is a bank
Where real property or portion thereof is situated
(R4 S1)

PARTITION (Rule 69)

Classification of Foreclosure of Mortgage: (Tan, Handbook on Civil Procedure and pleadings, pp


148-149)
1. JUDICIAL FORECLOSURE
- Separation, division, assignment of a thing
To have the property seized and sold by the court held in common among those to whom it
order to the end that the proceeds thereof be may belong
applied t o payment of plaintiff’s claim
Classes of partition:
2. EJ FORECLOSURE
1. Voluntary- division of property by the act of
Possession of property sold may be given to the parties themselves
purchaser by sheriff after the period of redemption
had expired, unless there is a third person actually 2. Compulsory- partition by judicial
holding the property adversely to the mortgagor proceedings at the instance of one or more
of the co tenants without regard to the
wishes of the other co tenants

55
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

MULTIPLE APPEALS- 30 day record on appeal (R69


S2)
Kinds of Partition
Why? (tingin ko lang)
1. Total - all the things are divided among the
participants Orders under Rule 69:

2. Partial- when some of the things are 1. Order of partition

divided, the rest remaining in community 2. Order of accounting


ownership

3. Provisional- when it is temporary or NOTE: Partition is one mode of settlement of estate


conditional, until a final or definite division of the deceased (relate to R75-77)
is made

4. Definite- when the resulting division is


FORCIBLE ENTRY AND UNLAWFUL DETAINER (Rule
permanent, final, and absolute
70 in relation to Rules on Summary Procedure )

5. Judicial- takes place when court intervenes (issue is that of possession)


and approves the petition
(Tan, Handbook on Civil Procedure and pleadings, pp
6. Extrajudicial- division may be made by 153-158)
testator himself or by some person n amed
by deceased or amicably by interested heirs Real Action + Action in personam- involves

by common agreement (Rule 74 S1) possession of real property, binding upon the parties

R69 S1 NOTE: 3 kinds of recovery of real property

A person having the right to compel partition of real 1. Accion interdictal - summary action for

estate may do so as provided in this Rule, setting recovery of physical possession of the

forth in his complaint the nature and extent of his property where dispossession has lasted for

title and an adequate description of the real estate more than 1 year; FE or UD

of which partition is demanded and joining as


defendants all other persons interested in the 2. Accion publiciana - plenary action for
recovery of real right of POSSESSION
property

Covers: REAL or PERSONAL PROPERTY 3. Accion reivindicatoria - action for recovery


of OWNERSHIP
Jurisdiction/Venue:
Ejectment- form of action by which possessory titles
MTC RTC 20-50 300-400 OMM MM lower higher to corporeal hereditariments may be tried and
possession obtained which lies to regain possession
R4 S1 R4 S2
of real property, with damages for illegal detention

2 kinds: FE and UD
In case of adverse resolution:
Forcible Entry Unlawful Detainer
Person in physical Withholding by a person

56
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

possession of land was of possession of land or After the court determines that the case falls under
deprived of possession building summary procedure, it may, from an examination of
through FISTS the allegations therein and such evidence as may be
Unlawful ab initio Legal but becomes illegal attached thereto, dismiss the case outright on any of
Not require demand to Pay AND vacate; the grounds apparent therefrom for the dismissal of
vacate  jurisdictional a civil action. If no ground for dismissal is found it
Prove prior possession No need to prove prior shall forthwith issue summons which shall state that
until deprived physical possession the summary procedure under this Rule shall apply.
1 y from date of actual 1 year from date of last
entry on land demand
S5- Answer
Within 10 days from service of summons, the
defendant shall file his answer to the complaint and
Filed by: R70 S1
serve a copy thereof on the plaintiff. Affirmative and
Person deprived of possession of land or building by negative defenses not pleaded therein shall be
deemed waived, except for lack of jurisdiction over
FISTS, or lessor, vendor, vendee, other person
the subject matter. Cross claims and compulsory
against whom possession of any land or building is
counterclaims not asserted in the answer shall be
unlawfully withheld considered barred. The answer to counterclaims or
cross claims shall be filed and served within 10 days
from service of the answer in which they are
pleaded.
Jurisdiction/Venue:

MTC of the place where property or portion thereof - Within 10 DAYS from service of summons
is situated (R4 S1) o Rule 70
o Summ Pro
Proceedings SUMMARY IN NATURE! (Rules on
Summary Procedure) S6- 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
Pertinent Provisions of the Rules on Summary  judgment as may be warranted by the facts alleged
Procedure: in the complaint and limited to what is prayed for
therein. Provided, however, that the court may in its
(note the same... applies to all cases subject to Rules discretion reduce the amount of damages and AF
claimed for being excessive or otherwise
on Summary Procedure, ESPECIALLY PROHIBITED
unconscionable. This is without prejudice to
PLEADINGS AND MOTIONS)
applicability of R15 S4 of the Rules of Court, if there
are 2 or more defendants.
S3- Pleadings

The only pleadings allowed to be filed are the: S7- Preliminary conference; appearance of parties
Not later than 30 days after the last answer is filed, a
1. Complaints
preliminary conference shall be held. The rules on
2. Compulsory counterclaims
pre trial in ordinary cases shall be applicable to the
3. Cross claims pleaded in the answer
preliminary conference unless inconsistent with the
4. Answers thereto
provisions of this Rule.

VERIFIED! The failure of the plaintiff to appear in the


preliminary conference shall be cause for dismissal
S4- Duty of the Court of the complaint. The defendant who appears in the
absence of plaintiff shall be entitled to judgment on

57
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

his counterclaim in accordance with S6 hereof. All However, should the court find it necessary to clarify
cross claims shall be dismissed. certain material facts, it may, during the said period,
issue an order specifying the matter to be clarified,
If a sole defendant shall fail to appear, the plaintiff and require the parties to submit affidavits or other
shall be entitled to judgment in accordance with S6 evidence on the said matters within 10 days from
hereof. This Rule shall not apply where one of 2 or receipt of said order. Judgment shall be rendered
more defendants sued under a common cause of within 15 days after the receipt of the last
action who had pleaded a common defense shall clarificatory affidavits, or the expiration of the period
appear at the preliminary conference. for filing the same.

The court shall not resort to the clarificatory


S8- Record of Preliminary Conference procedure to gain time for the rendition of the
Within 5 days after the termination of the  judgment.
preliminary conference, the court shall issue an
order stating the matters taken up therein, including
but not limited to: S18- Referral to Lupon
Cases requiring referral to the Lupon under the
a. Whether the parties have arrived at an provisions of PD1508 where there is no showing of
amicable settlement, and if so, the terms
compliance with such requirement, shall be
thereof
dismissed without prejudice and may be revived only
b. The stipulations or admissions entered into after such requirement shall have been complied
by the parties with.

c. Whether, on the basis of the pleadings and


the stipulations and admissions made by
the parties, judgment may be rendered S19- Prohibited pleadings and motions
without the need of further proceedings, in The following pleadings, motions, or petitions shall
which effect the judgment shall be not be allowed in the cases covered by this Rule:
rendered within 30 days from issuance of
the order a. Motion to dismiss the complaint or to
quash the complaint or information except
d. A clear specification of material facts which on the ground of lack of jurisdiction over
remain controverted the subject matter, or failure to comply
with the preceding section
e. Such other matters intended to expedite
the disposition of the case b. Motion for a bill of particulars

c. Motion for new trial, or for reconsideration


S9- Submission of affidavits and position papers of a judgment, or for opening of trial
Within 10 days from receipt of the order mentioned
in the next preceding section, the parties shall d. Petition for relief from judgment
submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, e. Motion for extension of time to file
together with their position papers setting forth the pleadings, affidavits, or any other paper
law and the facts relied upon by them.
f. Memoranda

S10- Rendition of judgment g. Petition for certiorari, mandamus, or


Within 30 days after receipt of the last affidavits and prohibition against any interlocutory order
position papers, or the expiration of the period for issued by the court
filing the same, the court shall render judgment.
h. Motion to declare defendant in default

58
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Forcibly Entry / UnlawFul Detainer- YES


i. Dilatory motions for postponement
R70 S15
 j. Reply
Court may grant preliminary injunction, in
k. Third party complaints accordance with the provisions of R58 thereof, to
prevent defendant from committing further acts of
l. Interventions
dispossession against plaintiff.

A possessor deprived of possession through Fe or UD


S20- Affidavits may, within 5 days from filing of complaint, present
The affidavits required to be submitted under this a motion in the action for FE UD for issuance of writ
Rule shall state only facts of direct personal of preliminary mandatory injunction to restore him
knowledge of the affiants which are admissible in in his possession. The court shall decide the motion
evidence, and shall show their competence to testify
within 30 days from filing thereof
to the matters stated therein.
R70 S20
A violation of this requirement may subject the party
or the counsel who submits the same to disciplinary
Upon motion of plaintiff, within 10 days from
action, and shall be cause to expunge the
perfection of appeal to the RTC, the latter may issue
inadmissible affidavit or portion thereof from the
record. a writ of preliminary mandatory injunction to restore
plaintiff in possession if the court is satisfied that
S21- Appeal
The judgment or final order shall be appealable to - defendant’s appeal is frivolous or dilatory,
the appropriate RTC which shall decide the same in or
accordance with S22 of BP129. The decision of the - that the appeal of plaintiff is prima facie
RTC in civil cases governed by this Rule including meritorious
forcible entry and unlawful detainer, shall be
immediately executor, without prejudice to a further
appeal that may be taken therefrom. S10 of Rule 70
shall be deemed repealed.

CONTEMPT (Rule 71)


- 15 DAYS from notice of judgment or final
order, notice of appeal + bond to RTC (Tan, Handbook on Civil Procedure and pleadings, pp
o NO M4R (prohibited pleading) 162-166)

However, if RTC decision adverse, (in exercise of


appellate jurisdiction), M4R pwede na
Contempt
- MTC Summary Procedure, only up to MTC
- wilful disregard or disobedience to court,
level lang
acting in opposition to authority, justice,
o Once the case was elevated to RTC,
dignity
it is no longer summary, but is
governed by rules on Ordinary Civil Contempt of Court
Actions
- conduct which tends to bring authority and
administration of law into disrespect or to

Injunction in FE and UD:

59
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

interfere with or prejudice parties litigant or


their witnesses during litigation
Remedy: CERTIORARI or PROHIBITION (R71 S2)

2 classifications of contempt:
2. INDIRECT CONTEMPT (S3)
1. Direct Contempt (R71 S1)
2. Indirect Contempt (R71 S2) - Main / Original action
o Can be filed in RTC or MTC

Actions covered:
DISCUSSION:
a. Misbehaviour of an officer of a
1. DIRECT CONTEMPT (S1) court in the performance of his
official duties or in his official
- A remedy transactions

Acts covered:
b. Disobedience of or resistance to a
- Misbehaviour in presence of or so near the lawful writ, process, order,
court as to obstruct or interrupt  judgment of a court, including act
proceedings before the same of person who, after being
dispossessed or ejected from any
- Disrespect toward the court real property by the judgment or
process of any court of competent
- Offensive personalities towards people in  jurisdiction, enters or attempts or
court induces another to enter into or
upon such real property, for the
- Refusal to be sworn or to answer as a purpose of executing acts of
witness ownership or possession, or in any
manner disturbs possession given
- Refusal to subscribe an affidavit or to the person adjudged to be
deposition when lawfully required to do so entitled thereof

Punishment: Note highlighted: case in MTC where case is


pending
(RTC/of equivalent or higher rank)
- If after ejectment, re entered the property,

F: not exceeding 2k OR indirect contempt (relate to Rule 70)

I: not exceeding 10 days, OR BOTH c. Any abuse of or any unlawful


interference with the processes or
proceedings of the court not
constituting direct contempt as
(lower court)
under S1
F: not exceeding 200

I: not exceeding 1 day, OR BOTH

60
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

d. Improper conduct tending, directly


or indirectly, to impede, obstruct,
degrade administration of justice Rule 13

Section 14
e. Assuming to be an attorney or
officer of the court and acting as In an action affecting the title or the right of
such without authority possession of real property, the plaintiff and the
defendant, when affirmative relief is clai med in his
f. Failure to obey subpoena duly answer, may record in the office of the registry of
served deeds of the province in which the property is
situated
g. The rescue, or attempted rescue,
of a person or property in the a notice of the pendency of the action
custody of an officer by virtue of
Said notice shall contain the names of the parties
an order or process of a court held
and the object of the action or defense, and a
by him
description of the property in that province affected
Remedy: (R71 S11) thereby

Appeal to proper court as in criminal cases Only from the time of filing such notice for record
shall

a purchaser,
Direct Contempt Indirect Contempt
In presence of a judge, or encumbrancer
motu proprio or upon
motion of the property affected thereby,
Cant initiate Initiate
In presence or so near Not in presence of judge, be deemed to have constructive notice of the
 judge disobey court order pendency of the action, and
Rem: certiorari Rem: appeal
remedy Original action only its pendency against the parties designated by
their real names

Upon filing of complaint, plaintiff may opt to file The notice of the lis pendens hereinabove
notice of lis pendens with the register of deeds mentioned

may be cancelled

Notice of Lis Pendens only upon order of the court,

“buyer beware” after proper showing that


Notice to buyer of existence of an adverse
the notice is for the purpose of molesting the
claim
adverse party, or
It is not a pleading
There is need to register it with the register
that it is not necessary to protect the rights of the
of deeds
party who caused it to be recorded

61
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

By delivering personally a copy to the party


or his counsel or
FILING AND SERVICE of the pleading By leaving it in his office with the clerk or a
person having charge thereof
Differentiate: Filing from service
If no person is found in his office or his office is not
R13 S2
known or he has no office, then,
Filing is the act of presenting the pleading or paper
By leaving the copy between the hours of 8
to the clerk of court.
in the morning and 6 in the evening at the
Service is the act of providing a party with a copy of party’s or counsel’s residence, if known,
the pleading or paper concerned. with a person of sufficient age and
discretion then residing therein

NOTE: NO TENDERING under Rule 13 S6!


What are the papers required to be filed and served
under Rule 13? Sa summons lang yon, when defendant
refuses to accept the same
(PAMNOJDORS)
Service by mail
Pleading subsequent to the complaint
Appearance R13 S7
Written Motion
Notice Service by registered mail shall be made by
Order
depositing the copy in the post office,
Judgment
in a sealed envelope
Demand
plainly addressed to the party or his counsel
Offer of judgment
at his office, if known,
Resolution
otherwise, at his residence, if known,
Similar papers
with postage fully prepaid and with
instructions to the postmaster to return the
mail to the sender after 10 days if
What are the modes of service of pleading? (R13 undelivered
S5)
If no registry service is available in the locality of
Personal Service (R13 S6) either in the sender or the addressee, service may be
Service by Registered Mail (R13 S7) done by ordinary mail.
Substituted Service (R 13 S8)

IF defendant refuses both modes of service, resort


How is it done? to:

Personal Service Substituted Service

R13 S6 R13 S8

Service of papers may be made

62
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

If service of pleadings, motions, notices, resolutions, 5. Rather, the pleading produces no legal
orders, or other papers cannot be made under the 2 effect
preceding section, the office and place of residence
of the party or his counsel being unknown, service
may be made by:
When is service deemed completed?
Delivering the copy to the clerk of court,
Personal Service (R13 S10)
with proof of failure of both personal
service and service by mail Personal service is complete upon actual delivery or
by handling a copy to defendant
The service is complete at the time of such delivery.
Service by mail (R13 S10)

Service by ordinary mail is complete upon the


Note: Wag ipaghalo ang provisions ng Rule 13 and
expiration of 10 days after mailing, unless the court
Rule 14!!!
otherwise provides.

Service by registered mail is complete upon actual

Effect of non compliance with personal service? receipt by the addressee or after 5 days from the
date he received the first notice of the postmaster,
Note: Service other than personal service whichever date is earlier.

Substituted Service (R13 S8)

R13 S11 Substituted service is complete at the time of


delivery of the copy to the c lerk of court, with proof
Whenever practicable, the service and filing of of failure of both personal service or service by
pleadings and other papers shall be done personally. mail.

Except with respect to papers emanating from the


court, a resort to other modes must be a ccompanied
by a written explanation why the service or filing What is constructive service of pleading?
was not done personally.
R13 S10
A violation of this rule may be cause to consider the
paper as not filed. Service by registered mail is complete..

..after 5 days from the da te he received the notice of


the postmaster, whichever date is earlier
State in detail: Effects

1. A violation of this rule may be cause to


consider the paper as not filed (R13 S11) FILING- Rule 13 S1- with the office with the clerk of

2. The pleading/paper would not be court


admissible in court
Required in ALL INITIATORY PLEADINGS
3. Would not toll the running of the
reglementary period + PAYMENT OF THE REQUISITE DOCKET FEES (See
4. In case of defendant, it will NOT RESULT in Rule 1 Section 5)
defendant being declared in default

63
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Pag kulang, court to order correct payment If the court should determine after hearing that the
NOTE: Docket fees are suspended in party declared as an indigent is in fact a person with
compulsory counterclaims (SC Resolution 9- sufficient income or property,
21-04)
the proper docket and other lawful f ees shall be

assessed and collected by the clerk of court


IF you cannot pay docket fees, REMEDY?
If payment is not made within the time fixed by the
File a motion to be declared as pauper court,
litigant (R3 S21)
execution shall issue or the payment thereof,
R3 S21- A party may be authorized to litigate his
action, claim, or defense as an indigent if the court, without prejudice to such other sanctions as the

upon an ex parte application and hearing, is satisfied court may impose

that the party is the one who has no money or


property sufficient and available for food, shelter,
and basic necessities for himself and his family  After filing of the complaint and the payment of the
requisite legal fees,

Such authority shall include


III. SERVICE OF SUMMONS
an exemption from payment of
Summons
- docket and
Writ or process in the name of the RP,
- other lawful fees, and
issued by the Branch clerk of court
- of transcript of stenographic n otes
informing the defendant of the filing of the

which the court may order to be furnished him case against him, to file a n answer within
the reglementary period, or else, be
The amount of docket and o ther lawful fees which declared in default
the indigent was exempted from paying
Office of the Clerk of Branch Clerk of Court
- shall be a lien on a ny judgment rendered in Court
the case favorable to the indigent,
o unless the court otherwise Office Person
provides
Receives complaint and Serves summons upon
payment of the docket the defending party
fees
Any adverse party

may contest the grant of such authority


2 kinds of summons:
at any time before the judgment is rendered by the
trial court 1. Original Summons- issued by the branch
clerk of court to the defendants upon the
filing of the complaint and the payment of
the requisite docket fees

64
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

relief applied for (R14


2. Alias Summons- issued by the branch clerk S2)
of court upon motion of the plaintiff in case
the summons are lost, destroyed, Served on the defendant May be served to a non-
improperly served, or there is defect in the party
manner or form of service
Does not need tender of Needs tender of
kilometrage and other kilometrage, attendance
Summons Subpoena fees fee, and reasonable cost
of production fee
a writ or a process issued (R21 S1)
to a defending party by Original or alias Ad testificandum or
the clerk of court, A process directed to a duces tecum
delivered by a sheriff, his person requiring him to
attend and to testify at Upon filing of the During trial or
deputy, or proper court
the hearing or trial of an complaint and payment investigation
office, or any suitable
action, or at any of requisite docket fees
person authorized by the
court issuing the investigation conducted

summons, with the by competent authority


purpose of obtaining or for the taking of his Note: significant to know whether the action is in
 jurisdiction over the deposition. (Subpoena personam, in rem, or quasi in rem —for purpose of
person of the defendant ad testificandum) service of summons
and giving him notice
that an action has been
commenced against him A process directed to a FE and UD- in personam actions
person requiring him to
bring with him any
books, documents, or
other things under his IN PERSONAM
control (Subpoena duces
Service in person
tecum)
Substituted service

Purpose is to obtain Order for a person to


IN REM
 jurisdiction over person appear and to testify at a
of defendant, and to give hearing, action, Service in person
notice to defendant that investigation, or for Substituted Service
an action has been taking of his deposition Publication
commenced against him, OR to produce books, Extraterritorial Service
ordering defendant to documents, or other
answer the complaint things under his control QUASI IN REM
within the time fixed by (R21 S1)
Service in person
these Rules, and unless
Substituted service
defendant answers,
Publication
plaintiff will take
 judgment by default and
may be granted the

65
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Can you serve summons by mail? 2. By leaving the copies at defenda nt’s office
or regular place of business with some
NO competent person in charge thereof

Through process server or upon motion- by service


of summons by substituted service
How to serve summons?

How is a person deemed of suitable age and


Service in person on defendant (R14 S6)
discretion?
The summons shall be served by handing a copy
1. Of legal age
thereof to the defendant in person.
2. With sufficient knowledge and
comprehension that what he is receiving on
behalf of defendant are summons notifying
Tendering summons to defendant (R14 S6) defendant that a suit was brought against
the same, AND PREFERABLY KNOWS HOW
In case defendant refuses to receive or sign for it, by
TO SPEAK ENGLISH
tendering it to him, done through:

1. Leaving copy of the summons to the


defendant who refuses to receive it Service by publication in a newspaper of
general circulation
2. The officer serving the summons shall make
an affidavit addressed to the court statin g R14 S15
that the time, place, manner of service of
Service by leave of court by publication in a
summons, and that despite efforts to try
newspaper of general circulation in such place a nd
and serve the summons in person on
for such time as the court may order, in which case a
defendant, the same refused to receive it,
copy of the summons and order of the court shall be
as well as the manner of non-receipt
sent by registered mail to the last known a ddress of
the defendant.

Substituted Service of Summons on


defendant (R14 S7)
Suffices under the following instances:
Requisites;
1. Upon defendant designated as unknown
Impossibility of the personal service of owner or the like, or whenever his
summons within a reasonable time whereabouts are unknown and cannot be
The efforts exerted to locate the person to ascertained by diligent inquiry (R14 S14)
be served
2. When defendant does not reside and is not
To whom served / how? found in the Philippines, and the action:
(AREA—R14 S15)
By leaving copies of the summons at:

1. Defendant’s residence with some person of - Affects personal status of the plaintiff or

suitable age and discretion then residing - Relates to, or the subject of which, is

therein or property within the Philippines in which

66
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

defendant has or claims a lien or interest, Requisites; Arises in case defendant


actual or contingent, or is non resident, in
- In which the relief demanded consists, Impossibility of the abroad, action in rem, by
personal service of
wholly or in part, in Excluding the way of personal service
summons within a
defendant from any interest therein or outside of Phils, by
reasonable time
- The property of the defendant has been publication in a
Attached within the Philippines The efforts exerted to newspaper of general
locate the person to be circulation, or in any
3. When defendant ordinarily resides in the served other manner the court
Philippines but who is temporarily out of it may deem sufficient
(R14 S16)
To whom served / how?

By leaving copies of the

Can there be personal service of summons in in rem summons at:

actions?
Def endant’s residence
with some person of
Yes. R14 S15 states that when defendant does not
suitable age and
reside and is not found in the Philippines, and the discretion then residing
action affects the personal status of the plaintiff or therein or
relates to, or the subject of w hich, is property within
the Philippines in which defendant has or claims a By leaving the copies at
lien or interest, actual or contingent, or in which th e defendant’s office or
regular place of business
relief demanded consists, wholly or in part, in
with some competent
excluding defendant from any interest therein, or
person in charge thereof
the property of defendant has been attached within
the Philippines, service may, by leave of court, be
effected out of the Philippines by: Through process server
or upon motion- by
1. Personal service as under S6** service of summons by
substituted service
2. By publication in a n ewspaper of general
circulation in such places and for such time
as the court may order, in which case a
copy of the summons and order of the
court shall be sent by registered mail to the
R14 S14
last known address of defendant, or
In any action where the defendant is designated as
3. In any other manner the court may deem an unknown order, or the like, or whenever his
sufficient whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may, by leave
of court, be effected upon him by publication in a
Substituted Service vs Extraterritorial Service of newspaper of general circulation and in such places
Summons and for such time as the court may order .

Substituted Service Extraterritorial Service

67
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

- Instance where in personam, yet Reason: the court cannot proceed with the case
publication is allowed (exception to the without jurisdiction over the person of the defending
general rule) party
o Identity is unknown or
whereabouts are unknown Exception to exception: SMALL CLAIMS

Defective service of summons, remedy: To whom summons are made?

M2D Rule 16 S1a, that the court has no jurisdiction


over the person of the defending party
1. Ordinary defendant

Upon an entity without juridical


3 options of the court: personality

1. GRANT M2D- as plaintiff, refile the case, R14 S8


unless tainted with grave abuse of
discretion When persons associated as an entity without a
 juridical personality are sued under the name by

2. DENY M2D which they are generally or commonly known,


service may be effected upon all the defendants by
As defendant, following Rule 16 S4, I will file an serving upon any one of them, or upon the person
answer within the balance of the period prescribed in charge of the office or place of business
by Rule 11 to which I am entitled at the time of maintained in such name. But such service shall not
serving my motion, but not less than 5 days in any bind individually any person whose connection with
event, computed from my receipt of notice of denial. the entity has, upon due notice, been severed before
Then proceed with the trial, and when the decision is the action was brought.
adverse against me, I will file an appeal assigning as
error the denial of the motion to dismiss. And when
the denial is tainted with grave abuse of discretion Upon Prisoners
amounting to lack or excess of jurisdiction on the
R14 S9
part of the court, I will file for certiorari under Rule
65. When defendant is a prisoner confined in a jail or
institution, service may be effected upon him by the
officer having the management of such jail or
3. ISSUANCE OF ALIAS SUMMONS institution who is deputized as a special sheriff for
said purpose.

Can Rule 16 S1a be a ground for Motion to dismiss


under Rules on Summary Procedure? Upon Minors and Incompetents

YES. General rule, motion to dismiss not allowed, R14 S10


except #1 instance, lack of jurisdiction over the
When defendant is a minor, insane, or otherwise an
person of the defending party (RULES ON SUMMARY
incompetent, service shall be made upon him
PROCEDURE)
personally or on his legal guardian if he has one, or

68
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

if none, upon his guardian ad litem whose


appointment shall be applied for by the plaintiff. In
case of a minor,  service shall be made on his father R14 S14

or mother.
In any action where the defendant is designated as
an unknown order, or the like, or whenever his
whereabouts are unknown and cannot be
Upon domestic private juridical entity ascertained by diligent inquiry, service may, by leave
of court, be effected upon him by publication in a
R14 S11 newspaper of general circulation and in such places
and for such time as the court may order .
When the defendant is a corporation, partnership, or
association organized under the laws of the
Philippines without a juridical personality, service
may be made on the President, Managing Partner, Extraterritorial Service
General Manager, Corporate Secretary, Treasurer,
or In House Counsel R14 S15

NOTE: the LIST IS EXCLUSIVE!!!!! When the defendant does not reside and is not
found in the Philippines, and the action aff ects the
Service upon foreign private juridical entity personal status of plaintiff or relates to, or the
subject of which, is property within the Philippines,
R14 S12 in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief
When the defendant is a foreign private juridical
demanded consists, wholly or in party, in excluding
entity which has transacted business in the
defendant from any interest therein, or the property
Philippines, service may be made on its reside nt
of the defendant has been attached within the
agent designated in accordance with law for that
Philippines, service may, by leave of court, be
purpose, or, if there be no such agent, on the
effected out of the Philippines by personal service
government official designated by law to that effect,
as under S6; or by publication in a newspaper of
or on any of its officers or agents within the
general circulation in such places and for such time
Philippines.
as the court may order, in which case a copy of the
summons and order of the court shall be sent by
registered mail to the last known address of the
Service upon public corporations defendant, or in any other manner the court may
deem sufficient. Any order granting such leave
R14 S13
shall specify a reasonable time, which shall not be
When the defendant is the Republic of the less than 60 days after notice, within which the
Philippines, service shall be made on the Solicitor defendant must answer .
General; in case of a province, city or municipality,
or like public corporations, service may be effected
on its executive head, or on such other officer or Upon residents temporarily out of the
officers as the law or the court may direct . Philippines

R14 S16

Service upon defendant whose identity or


whereabouts are unknown

69
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

When any action is commenced against a defendant 1. Complaint in intervention- because third
who ordinarily resides within the Philippines, but person submitted to jurisdiction of the
who is temporarily out of it, service may, by leave of court
court, be also effected out of the Philippines, as
under the preceding section. 2. Not in permissive counterclaim- because
defendant aka original plaintiff is already a
party to the action, jurisdiction over him in
original complaint was already taken from
If summons cannot be served because non resident,
the start
unknown, or out of the Phils, as plantiff, what is your
remedy?
3. In case of formal not substantial
Convert action in personam to quasi in rem amendments

A vs B Corporation, action for sum of money.


Amend the complaint, action for sum of money
May bayad ba summons?
WITH ATTACHMENT OF PROPERTY. Hence,
summons by publication can already be made. WALA!

Court acquires jurisdiction over the RES Pag pinaserve mo sa process server, meron, but not
Because nature of the case has become required (abutan mo na lang para hindi kawawa, sige
quasi in rem ka, baka hindi i serve)

(relate to Rule 10) Relate Rule 14 to Rule 57

As far as amendment of the pleading, is summons Order of attachment, writ of attachment,


required to be served? issued ex parte

YES, in the following instances: To implement, serve summons

1. Substantial not merely formal amendment

2. Other parties are impleaded Relate Rule 14 to Rule 58

3. With respect to third party complaint, serve Ex parte issuance of preliminary injunction

upon third party defendant (relate to R6 To implement, serve summons


S11)

4. With respect to fourth party complaint, Court not to issue injunction unless there is invalid
th
serve upon 4  party defendant (relate to R6 service of summons
S11)
Notice and hearing

NOT in:

EXCEPTION TO SERVICE OF SUMMONS:

70
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Voluntary appearance
Motion for Bill of Particulars (Rule 12)
1. Filed responsive pleading
2. Submitted to jurisdiction of the court, Motion to amend the pleading (Rule 10)

EXCEPT: Motion for Extension of Time to File


Responsive Pleading (Rule 11)
When questioning the jurisdiction of the
court Motion for Summary Judgment (Rule 35)

Rule 14 S20

S20- Voluntary appearance Order of Default/Judgment by Default (Rule


9)
The defendant’s voluntary appearance shall be
equivalent to service of summons.
summons. The inclusion in a
motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall ONE-AT-A-TIME,
not be deemed a voluntary appearance.
A. MOTION TO DISMISS (Rule 16)

Can the court dismiss a case motu proprio for lack


Motion to dismiss
of jurisdiction over the person of the def ending
party for defective service of s ummons? A motion to dismiss in an application for
relief filed by an original defendant, a
NO!
defendant in a permissive counterclaim,
rd th
Dismissal shall only be by MOTION!
M OTION! cross claim, 3  4  etc
 etc party complaint,
complaint,
Motion to dismiss complaint in intervention, filed within the
time for but before filing the answer to the
Rule 9 S1 (relate to Rule 16) provides for the complaint or pleading asserting a claim
following instances when the court may dismiss a After service of summons, before filing of a
case motu proprio: responsive pleading

Lack of jurisdiction over the subject matter NOTE: Motion to dismiss


dismiss is not a pleading! It is not a
Litis pendencia responsive pleading! Hence, if there is motion
motion to
Res judicata dismiss, the complaint may still be a mended as a
Prescription matter of right even if there is a motion to dismiss!

DOES NOT INCLUDE: lack of jurisdiction over the


person of the defending party (Wala to!)
Grounds for motion to dismiss:

Rule 16 S1 states that within the time for but before


 After service of summons, filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be made
IV. REFER TO THE FOLLOWING:
on basis of the following grounds:

Motion to Dismiss (Rule 16)

71
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

a. That the court has no jurisdiction over the File an answer within the balance of the period
person of the defending party prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
Relate to R14 event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
Jurisdiction over defendant may be acquired by:
adverse, file an appeal assigning as error the denial
voluntary appearance or by valid service of
of the motion to dismiss.
dismiss. And when the denial
denial is
summons, except if appearance is to question the
tainted with grave abuse of discretion amounting to
 jurisdiction of the court
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.

GRANTED:

Refile
Move for alias summons c. That venue is improperly laid

DENIED: Note: Rule 4

File an answer within the balance of the period GRANTED:


prescribed by Rule 11 to which entitled at the time
Refile, except if GAD, then certiorari Rule 65
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial. DENIED:
Then proceed with the trial, and when the decision i s
adverse, file an appeal a ssigning as error the denial File an answer within the balance of the period
of the motion to dismiss.
dismiss. And when the denial is
is prescribed by Rule 11 to which entitled at the time
tainted with grave abuse of discretion amounting to of serving motion, but not less than 5 days in any
lack or excess of jurisdiction on the part of the court, event, computed from receipt of notice of denial.
file for certiorari under Rule 65. Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss.
dismiss. And when the denial
denial is
tainted with grave abuse of discretion amounting to
b. That the court has no jurisdiction over the
lack or excess of jurisdiction on the part of the court,
subject matter of the claim
file for certiorari under Rule 65.
NOTE:

Subject matter (BP129- conferred by law)


d. That plaintiff has no legal capacity to sue
Exclusive original jurisdiction of courts, if
not within, then M2D is proper GRANTED:

GRANTED: Refile

- Refile + docket fees OR DENIED:


- Amend complaint to confer jurisdiction (no
need for docket fees) File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
DENIED: of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.

72
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Then proceed with the trial, and when the decision is event, computed from receipt of notice of denial.
adverse, file an appeal assigning as error the denial Then proceed with the trial, and when the decision is
of the motion to dismiss. And when the denial is adverse, file an appeal assigning as error the denial
tainted with grave abuse of discretion amounting to of the motion to dismiss. And when the denial is
lack or excess of jurisdiction on the part of the court, tainted with grave abuse of discretion amounting to
file for certiorari under Rule 65. lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.

e. That there is another action pending


between parties for the same cause

f. That the action is barred by prior judgment


or by the statute of limitations
aka LITIS PENDENCIA
Aka RES JUDICATA
Elements:
Elements:
1. Identity of parties or at least such parties
representing the same interests in both There is previous final judgment or order
actions
The previous final judgment is a judgment
2. That there is substantial identity in the upon the merits
cause of action and in the relief sought, th e
relief being founded on the same facts Jurisdiction over the subject matter and the
parties by the court rendering it
3. Identity in the two cases would be such that
any judgment that may be rendered in one, There must be identity of the parties, of
regardless of which party is successful, subject matter, and of cause of action
would amount to res judicata in the other between the first and second actions
case

Which should be dismissed in case of litis


st nd rd th
pendencia? The 1 , 2 , 3 , 4  action?
Aka PRESCRIPTION

The later case(s) would be dismissed.

GRANTED:

GRANTED:
Appeal

Appeal
DENIED:

DENIED:
File an answer within the balance of the period

File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time

prescribed by Rule 11 to which entitled at the time of serving motion, but not less than 5 days in any

of serving motion, but not less than 5 days in any event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is

73
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

adverse, file an appeal a ssigning as error the denial adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court, lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65. file for certiorari under Rule 65.

g. That the pleading asserting the claim i. That the claim on which the action is
states no cause of action founded is unenforceable under the
Statute of Frauds
Aka FAILURE TO STATE CAUSE OF ACTION
(note: 1403, NCC)
GRANTED:
GRANTED:
Refile
Amend the pleading Appeal

DENIED: DENIED:

File an answer within the balance of the period File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial. event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decis ion is Then proceed with the trial, and when the decision is
adverse, file an appeal a ssigning as error the denial adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court, lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65. file for certiorari under Rule 65.

 j. That a condition precedent for filing the


h. That the claim or demand set forth in the claim has not been complied with
plaintiff’s pleading has been paid,  waived,
abandoned, or otherwise extinguished GRANTED:

GRANTED: General Rule: refile plus comply with


condition precedent, EXCEPT:
Appeal
In case of wilful and deliberate forum
DENIED: shopping, which operates as dismissal with
prejudice, hence,
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
In the latter case, Appeal
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial. In case of non exhaustion of administrative
Then proceed with the trial, and when the decision is remedies,

74
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Exhaust then refile NOTE ALSO: Rule 7 S5

DENIED: Hence, summing up Rule 16,

File an answer within the balance of the period WITH PREJUDICE- e, f, h, i of Rule 16
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any WITHOUT PREJUDICE- the rest of Rule 16
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal a ssigning as error the denial
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
Rule 50 S1- Motion to dismiss appeal
file for certiorari under Rule 65.
An appeal may be dismissed by the CA on its own
motion or on that of appellee , on the following
MOTU PROPRIO DISMISSAL: (see underlined below) grounds:

Rule 9 S1 1. Failure of the record on appeal to show on


its face that the appeal was taken within
Defenses and objections not pleaded the period prescribed by these Rules

either in a motion to dismiss or


2. Failure to file notice of appeal or the record

in the answer on appeal within the period prescribed by


these Rules
are deemed waived
3. Failure of appellant to pay the docket and
other lawful fees prescribed in S5 of R40
and S4 Rule 41
However, when it appears from the pleadings or the
evidence on record that
4. Unauthorized alterations, omissions, or
additions in the approved record on appeal
as provided in S4 of Rule 44
1. the court has no jurisdiction over the
subject matter, 5. Failure of appellant to serve and file the
required number of copies of his brief or
2. that there is another action pending memorandum within the time provided by
between the parties for the same cause, or these Rules

3. that the action is barred by prior judgment 6. Absence of specific assignment of errors in
or by statute of limitations, the appellant’s brief, or of page references
to the record as required in S13 par a, c, d, f
of Rule 44

the court shall dismiss the claim 7. Failure of appellant to take necessary steps
for the correction or completion of the

75
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

record within the time limited by the court 2. It does not interrupt the running of the
in its order prescriptive/reglementary period for the
filing of the requisite pleading
8. Failure of appellant to appear at the
preliminary conference under R48 or to 3. It will be ground for denial of the motion
comply with orders, circulars, or directive of
the court without justifiable cause, and 4. The motion shall be considered as not filed
Execution of the act subject of the motion,
9. The fact that the order or judgment because it would be deemed as a final order
appealed from is not appealable
If act is adversely ruled due to non compliance with
the Rules on Motion, file M4R within 15 days (Rule
37)
Side note: RULES ON MOTION

Note requirements of written motion:


LITIGATED MOTION NON LITIGATED
1. Notice of hearing (Due process)- 3 daay
MOTION
notice rule
Comply with requisites No need to comply with
2. Set hearing 10 days after filing of the for written motion all the requirements, but
motion with need to hear on the
motion
3. Proof of service (different from proof of
If not, would affect the
mailing, only as far as filing)
right of parties
IF not, then not set for
- To see whether the adverse party was able
hearing
to receive the motion

4. IF by registered mail, accompanied by proof


of service, explanation why not done via What is a motion?
personal service (R13 S11)
R15 S1
Other party files comment or objection

A motion is an application for relief other than by a


5. File reply to comment
pleading

IF requisites are not complied with, What are the kinds of motions?

1. *the motion shall be treated as a worthless Motion ex parte / Non Litigated Motion
piece of paper which the clerk of court has Made without the presence of or
no right to receive and the court has no notification to the other party because the
authority to act upon (mere scrap of paper) question generally presented is not
debatable

Motion of course

76
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Movant is entitled to the relief or remedy


sought as a matter of discretion on the part
of the court Examples of non-litigated motions:

Motion to reset pre trial


Litigated Motion
Motion made with notice to the adverse
Motion to postpone pre trial
party to give him an opportunity to oppose
it
Motion to extend time for filing pleadings

Special Motion
Motion to set case for pre trial
A motion addressed to the discretion of the
court

Motions that need to be verified:

Examples of Litigated Motions: Motion for relief from judgment

Motion to dismiss
Motion to lift order of default

Motion to declare defendant in default


Motion to postpone trial

Motion for summary judgment


Motion for new trial on ground of FAME

Motion for judgment on the pleadings


All motions for provisional remedies:
Motion for new trial

Motion for reconsideration Motion for preliminary attachment

Motion to dismiss complaint upon plaintiff’s Motion for dissolution of preliminary


motion injunction

Motion to lift order of default Motion for writ of replevin

Motion to declare a party in direct Motion in support pendent lite


contempt
Motion to postpone for absence of
Motion for demurrer to evidence evidence

Motion for consolidation or severance of Motion to postpone for illness of a party or


case counsel

Motion for trial by commissioner

Rule 16- relate to Rule 10


Motion to strike out evidence or testimony
off the record

77
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Amendment as a matter of right if a motion to Note: the motion is a LITIGATED MOTION


dismiss is filed- PWEDE! Because motion to dismiss
is NOT a responsive pleading To clarify ambiguities

Motion to dismiss- not a pleading Done before filing of a responsive pleading

Position paper- not a pleading What is a bill of particulars?

Memorandum- not a pleading R12 S1 states that a bill of particulars is a more


definite statement of any matter which is not
Amendment if order granting motion to dismiss, averred with sufficient definiteness or particularity,
pwede, for as long as the motion is final and with the purpose of aiding in the preparation of a
executory responsive pleading.

OF the 10 grounds, When do you file bill of particulars?

Motion to dismiss after a responsive R12 S1 states that a bill of particulars is filed before
pleading, responding to a pleading, following the reglementary
periods provided for under R11. (If the pleading is a
PWEDE, raise as affirmative defense, then set the reply, the motion must be filed within 10 days from
motion to dismiss for hearing service thereof)

B. MOTION FOR BILL OF PARTICULARS (R12) Requirements for filing Bill of Particulars:

(Note: Different from motion for bill of particulars in (R12 S1 in relation to R15)
Criminal Procedure)
1. A written motion by the defending party
Motion for Bill of Motion for Bill of before the court for a bill of particulars
Particulars in Civ Pro Particulars in Crim Pro
2. If the pleading is a reply, the motion must
Rule 12 R116 S9
be filed within 10 days from service
May be filed before May be filed before
responding to a pleading arraignment 3. The motion shall point out the defects
complained of, the paragraphs wherein
Address any matter in Address alleged defects they are contained, and the details desired
the pleading not averred in the criminal complaint
with sufficient or information 4. The motion is to be filed befo re the filing of
definiteness or responsive pleading
particularity
5. In writing
Purpose is to prepare Purpose is to enable
responsive pleading properly to plead and 6. Hearing of motion set by applicant
prepare for trial

78
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

7. Notice of hearing shall be addressed to all YES!


the parties concerned not later than 10
days from the filing of the motion R12 S6 provides that a bill of particulars becomes
part of the pleading for which it is intended.

8. Motion and notice of hearing must be


served at least 3 days before the date of
hearing C. MOTION TO AMEND THE PLEADING (Rule
10)
9. Proof of service
Amendment, as provided under R10 S1, is the
process of:

The motion for bill of particulars is denied. 1. Adding or striking out an allegation or name
Remedy? of any party or
2. Correcting a mistake in the name of a party
R12 S5
or a written or inadequate allegation or

After service of the Bill of Particulars or of a more description in any other respect,

definite pleading, or after notice of denial of his a. So that the actual merits of the

motion, the moving party may file his responsive controversy may speedily be

pleading within the period to which he was entitled determined,

at the time of filing his motion which shall not b. Without regard to technicalities,

exceed 5 days in any event c. And in the most expeditious and


inexpensive manner

IN SHORT:
Effect of order of failure to comply to file Bill of
Particulars Amendment is the process of adding or
striking out or correcting a name or
R12 S4 allegation

If the order is not obeyed, or in case of insufficient Amendment as a matter of right


compliance therewith, the court may order the
striking out of the pleading or the portions thereof - To correct alterations in a PLEADING (not in

to which the order was directed, or make such order a motion)

as it deems just.

(File a motion to strike out the pleading)


Kinds of amendments:

1. Amendment as a matter of right: (R10 S2)


Motion for Bill of Particulars:
A party may amend his pleading once as a matter of

Granted: Clarify, file bill of particulars right at any time before a responsive pleading is
served or in the case of a reply, at any time within 10
Denied, answer within the plenary period days after it is served.

- Once the pleading is amended, the old


pleading is no more, EXCEPT, a dmissions
IS bill of particulars part of a pleading? made in the old pleading

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

6. Amendment to confer jurisdiction

2. Amendment by leave of court: (R10 S3) Amendment as a matter of right, so far as no


responsive pleading is served
Except as provided in the next preceding section,
substantial amendments may be made only upon
leave of court
Question: Amendment as a matter of right, there is
- Amendment is substantial second motion to amend (not once as a matter of
- A responsive pleading had already been right), is the second motion to amend a matter of
served right or a matter of discretion?

(Question unanswered yet)

3. Formal Amendments (R10 S4)

A defect in the designation of the parties or other If there is no responsive pleading y et- amendment as
clearly clerical or typographical errors may be a matter of right
summarily corrected by the court at any stage of the
action, at its initiative or on motion, provided no Once- matter of discretion

prejudice is caused thereby to the adverse party.

Amendment as a matter of right

4. Amendments to conform or to authorize


DENIED: remedy- MANDAMUS
presentation of evidence (R10 S5)

When issues not raised in the pleadings are tried


with the express or implied consent of parties, they Amendment with leave of court (after the filing of a
shall be treated as if raised in the pleadings, responsive pleading)
pleadings may be amended to conform to the
evidence, and failure to amend does not affect the DENIED: Remedy?
result of the trial of these issues
Certiorari Rule 65 in relation to Rule 41 S1
- With already presentation of evidence, but Order is interlocutory
as far as allegations are conc erned, there is
discrepancy, so, amendment is allowed to
conform to evidence Relate Rule 10 to Provisional Remedies
o NOTE: meron din to sa criminal
procedure If the original complaint or v erified
complaint has provisional remedies, and the
original is superseded by amendment, any
provisional remedy is affected by
5. Substantial amendments
amendment
Amendment of the pleading which would change the
Amendment of complaint, which includes prayer for
original cause of action
writ of attachment, the provisional remedy shall be
DISSOLVED.

80
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Amended Pleading Supplemental Pleading

Relate Rule 10 to Rule 6 Refers to facts existing at Refers to facts arising


the time of the after the filing of the
- When the answer does not allege cross
commencement of the original pleading
claim, counterclaim,
action
o Remedy: AMENDMENT of the
pleading Takes the place of the Taken together with the
- Answer omitted counterclaim or cross original pleading original pleading
claim,
o Remedy is to AMEND the answer Can be made as matter Always with leave of
of right when no court
responsive pleading has
yet been filed
Relate to Rule 2
When amended pleading A substantial pleading
- In case of non joinder of causes of action,
is filed, a new copy of does not require the
o AMEND the pleading
the entire pleading must filing of a new copy of
be filed the entire pleading

Relate to Rule 3 Amendment as a matter A supplemental pleading


of right is to be may be answered within
- Related to joinder of parties, answered before the 10 days from notice of
o AMEND the complaint filing of the responsive the order admitting the
pleading, (within 15 days same, unless a different
after being served with a period is fixed by the
copy thereof) —(R11 S3) court. The answer to the
Related to Rule 14 and Rule 57
complaint shall serve as
- In personam to quasi in rem, publication is answer to the
allowed supplemental complaint
Amendment by leave of
- Substantial amendment if no new or
court is to be answered
o Service of summons required supplemental answer is
within 10 days from
- Amendment of complaint to join another filed (R11 S7)
notice of the order
party,
admitting the same. An
o Need to serve summons
answer earlier filed may
serve as the answer to
the amended complaint
Amendment of the answer? 3PC? 4PC? Complaint if no new answer is filed
in intervention? (R11 S3)

PWEDE!- amendment of the pleadings naman a ng Supersedes original Supplements original


tinutukoy eh pleading pleading

With or without leave of With leave of court


court

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Relate to Rule 16 no need for hearing, notice, and filing

The court may either deny the motion to


dismiss, grant the motion to dismiss, or
ORDER THE AMENDMENT OF THE 3 day notice rule- further motion 3 days before

PLEADING hearing

10 days- motion set for hearing at least 10 days

Is there amendment of the pleading in summary


procedure?
Is bill of particulars allowed in Summary Procedure?

YES
NO (Prohibited pleading)
- As a matter of right
- As a matter of discretion
o NO PROHIBITION under the Rules Motion to dismiss in Summary Procedure?
on Summary Procedure
NO (prohibited pleading)

EXCEPT:
D. MOTION FOR EXTENSION OF TIME TO FILE
RESPONSIVE PLEADING (Rule 11) 1. lack of jurisdiction over the person of the
defending party
Rule 11 S11 2. lack of jurisdiction over the person of the
defendant
Section 11
3. failure to comply with the Barangay
Conciliation Proceedings

Upon motion and on such terms as may be just, EXCEPTION TO EXCEPTION:

the court may extend the time to plead provided in Small Claims Cases- motion to dismiss absolutely

these Rules hindi pwede

The court may also, upon like terms, E. SUMMARY JUDGMENT (Rule 35)

allow an answer or Summary judgment

other pleading to be filed -  judgment rendered by the court without


trial if it clearly appears that there exists no
after the time fixed by these Rules genuine issue or controversy as to any
material fact, except as to the amount of
damages

Extend, BASED ON CAUSE S1 and 2- PLAINTIFF or DEFENDANT Files

Plaintiff- at any time after the pleading in answer


thereto has been served
Not a litigated motion

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Defendant- at any time 1. The court must have validly a cquired


 jurisdiction over the person of the
NOTE: LITIGATED MOTION defendant either by service of summons or
voluntary appearance
GRANTED:

- remedy is APPEAL 2. Proof of service of summons on the


o final judgment on the merits defendant

DENIED: 3. The defendant fails to answer within the


time allowed therefore
- plead
o there is issue, but there is no
4. Written motion by claiming party to declare
genuine issue
defendant in default (NOT oral motion!)
(state R15 requirements)

Maganda ka? Maganda ka nga

ORDER OF DEFAULT / JUDGMENT BY Plaintiff failed to file answer, be declared in default

DEFAULT (Rule 9)
(R9 in relation to Rule 6)

Order of Default Judgment by Default

Order issued by the Decision or judgment by


NATURE OF ORDER OF DEFAULT: interlocutory
court where defendant the court after order of
(making reference to R41)
failed to file answer default and presentation
of evidence ex parte by
plaintiff
REMEDY:

MOTION TO LIFT ORDER OF DEFAULT

ORDER OF DEFAULT Verified, FAME, Affidavit of Merit (note


what it is, and in what instances required
Rule 9 S3 provides that a defending party who fails [all FAME])
to file an answer to an initiatory pleading within the
time allowed therefor may be declared in default. Granted: File answer

Denied,

DEFENDING PARTY INCLUDES: FILE MOTION FOR RECONSIDERATION

In a permissive counterclaim- original - S4 R65


plaintiff - Interlocutory
rd
In a 3PC- 3  party defendant o NOT Rule 37 as basis (because Rule
In a cross claim- co defendant 37 applies only to Final orders)

Requirements for declaration of default: (R9 S3) Denied,

83
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

CERTIORARI RULE 65 with TRO or injunction

- Dahil pag wala, at may order of default, DOCTRINE OF HIERARCHY OF COURTS


tuloy tuloy na + judgment of default
Higher courts will not entertain any case
brought before it unless the same is
decided before the lower courts
NOTE: umaakyat to hanggang SC- Ordinary and
Special Civil actions (from MTC), [not Spec Pro]

Effect of order of default:

MTC - Lose standing


- Not to participate at the trial but shall be
(all special civil actions, original actions in exercise of entitled to notices
original jurisdiction, final judgment) - Entitled to 2 copies of decision, resolution,
substantially amended pleadings
ORDINARY CIVIL ACTION

Order of default

R9 S3 in relation to Rule 10
DENIED,
- Order of default issued by court, there is
Motion for reconsideration
amendment of the pleading, order of
DENIED, default is dissolved

Certiorari Rule 65 RTC with TRO (S7 R9 amended by


AM 7-7-12)
R9 in relation to Modes of Discovery
DENIED,
- R29
Motion for reconsideration Rule 37 with RTC o Due to refusal to comply with the
modes of discovery, the refusing
DENIED, party may be declared in default

Notice of appeal with CA Rule 41 (original


 jurisdiction of RTC ang certiorari Rule 65) —apply
Neypes, doctrine of hierarchy of courts In case of motion to declare defendant in default,
there is one more remedy:
DENIED,
- File motion to admit answer
CA M4R Rule 52 o Mawawala ang motion to declare
defendant in default dahil may
DENIED,
answer na eh
SC R45 Petition for Review on Certiorari apply
Neypes, Hierarchy of courts
Summary Proceedings
DENIED,

SC M4R Rule 52

84
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Motion to declare defendant in default is a Motion for reconsideration


PROHIBITED PLEADING
Denied,
As plaintiff in such a case, file MOTION TO RENDER
JUDGMENT CERTIORARI Rule 65 with TRO/injunction-
PREFERRED over appeal
As defendant, don’t file motion to admit answer
- Because appeal is not the adequate, speedy
- It is equal to motion for extension of time remedy
to file pleadings o Judgment kasi is based on
o PROHIBITED PLEADING evidence ex parte- no evidence to
review because no evidence in the
ETO DISKARTE MO, ikaw ang defendant first place is presented by
defendant
- Go to office of the clerk of court, file your
answer, at pag ayaw tanggapin, file it by GENERAL RULE: certiorari is not a substitute for lost
registered mail appeal;
o Pag nag argue ang kalaban, motion
to strike out answer, WEH! EXCEPTION: when appeal is not a speedy, adequate
 R1 S6- Liberal application remedy
of the rules, HENCE, you
can file answer Denied. Remedy?

File a motion for reconsideration of the judgment or


final resolution within 15 days from s ervice thereof
Summary Procedure before the CA, with proof of service on the adverse
party.
Given 10 days to answer from receipt of
service of summons Basis: R52 S1

JUDGMENT BY DEFAULT Denied. Remedy?

Nature: Final Judgment File a petition for review on c ertiorari before the SC
raising only questions of law which must be distinctly
R9 in relation to R11 set forth, within 15 days from notice of the denial of
petitioner’s motion for reconsideration filed in due
Based on presentation of evidence ex parte
time after notice of the judgment.

Basis: R45 S2 and R45 S1-- CA judgment,


BEFORE JUDGMENT BECOMES FINAL AND final order, or resolution can be elevated to
EXECUTORY: the SC raising only questions of law

REMEDY:

Motion to set aside judgment or final order due to Denied. Remedy?


FAME
File a motion for reconsideration of th e judgment or
Denied, final resolution within 15 days from s ervice thereof

85
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

before the SC, with proof of service on the adverse Answer to cross claim
party.
rd th
Answer to 3  4  etc party complaint
Basis: R52 S1

Answer to complaint in intervention

AFTER FINALITY OF JUDGMENT: Reply

Any of the following remedies: Answer to amended complaint

1. File petition for relief from judgment, order, Answer to amended counterclaim
or other proceeding on the ground of entry
of such judgment or final order, or any Answer to amended cross claim
other proceeding is thereafter taken against
rd th
a party in a court through FAME (Rule 38 Answer to amended 3  4  etc party
S1) complaint

2. File petition for annulment of judgment or Answer to amended complaint in


final order or resolution on the ground of intervention

extrinsic fraud (R47 S1 and 2)


Answer to supplemental complaint
3. File petition for certiorari (Rule 65)
Rejoinder
4. Collateral Attack
Answer to counter counterclaim

V. FILING OF ANSWER Answer to counter cross claim

Answer- the pleading setting forth the defending Answer to amended counter counterclaim
party’s defenses
Answer to amended counter cross claim
(Bears the same parts of a pleading)

WITHIN WHEN?
Discuss the periods to answer to responsive
What are the responsive pleadings? pleadings under Rule 11 of the Rules of Court:

Rule 6 of the Rules of Court in relation to Rule 11


1. Answer to the original complaint
provides for the following responsive pleadings:
R13 S1
Answer to the original complaint
Defendant shall file answer to the complaint within
Compulsory counterclaim 15 days after service of summons,  unless a different
period is fixed by the court
Answer to the permissive counterclaim
R13 S2

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Where the defendant is a foreign private juridical


entity and service of summons is made:

- to a resident agent, answer shall be filed


within 15 days from service of summons to
him

- when it has no resident agent but has an 3. Answer to permissive counterclaim


agent or officer in the Philippines, answer
shall be filed within 15 days after service of R11 S4
summons to said agent or officer
A permissive counterclaim must be answered within
10 days from service
- if it has no resident agent nor an agent or
officer, and summons is made on the
proper government office designated by
law to receive the same (SEC), which will 4. Answer to cross claim
then send a copy thereof by registered mail
within 10 days to the home office of the R11 S4

foreign private corporation, answer shall be


A cross claim must be answered within 10 days from
filed within 30 days after receipt of
service
summons by the home office of the for eign
private entity

rd th
R14 S15 5. Answer to 3  4  etc party complaint

In case of summons by publication, answer shall be R11 S5


filed within the time specified in the o rder granting
rd th
leave to serve summons by publication which shall Time to answer a 3  4  etc party complaint shall be
not be less than 60 days after notice, within which governed by the same rule as the answer to the
the defendant must answer. complaint (hence, follow R11 S1, 2 plus
amendments)
In case of a non resident defendant in whom
extraterritorial service of summons is made, the
period to answer should be at least 60 days.
6. Answer to complaint in intervention

R19 S4
2. Compulsory counterclaim
The answer to the complaint in intervention shall be
(note above periods?) filed within 15 days from notice of the order
admitting the same , unless a different period is fi xed
by the court

7. Reply

R11 S6

87
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

A reply may be filed within 10 days from service of


the pleading responded to

8. Answer to amended complaint

R11 S3

Where plaintiff files amended complaint as a matter


of right, the defendant shall answer the same within
15 days after being served with a copy thereof

Where its filing is not a matter of right, the


defendant shall answer the amended complaint
within 10 days from notice of the order admitting
the same
R11 S4 (?)

Answer within 10 days from service


9. Amended CC, Amended 34etc PC,
Amended CII

R11 S3 (note the period) shall apply to the answer to 17-18.


an amended counter claim, amended cross claim,
rd th R11 S3 (?)—note the periods
amended 3  4  etc party complaint, amended
complaint in intervention

Answer may raise counterclaim or cross claim

10. Answer to supplemental complaint Answer in third party complaint- Can you raise
Counterclaim or cross claim?
R11 S7

YES!
A supplemental complaint may be answered within
10 days of the order admitting the same , unless a But, if counterclaim against counterclaim, counter
different period is fixed by the court. The answer to counterclaim
the complaint shall serve as a nswer to the
supplemental complaint if no new or supplemental IF cross claim against cross cla im, then counter cross
answer is filed. claim

11. Rejoinder Counterclaim Cross Claim

(?) Any claim which a Any claim by one party


defending party may against a co party arising
have against the out of the transaction or
opposing party occurrence that is the
subject matter either of

88
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

the original action or of a


counterclaim therein
Counterclaim with respect to Rule 17

Pwede, proceed after service of answer


(Rule 17 S1 and 2)

Compulsory Permissive Counterclaim


Counterclaim
Counterclaim with respect to Rule 18
Arises out of or is Does not arise out of nor
Plaintiff failed to appear in pre trial, case is
necessarily connected is necessarily connected
dismissed with prejudice, without prejudice
with the transaction or with the subject matter
to counterclaim
occurrence that is the of the opposing party’s
subject matter of the claim
opposing party’s claim
DEFENSES and DENIALS
Does not require for its It may require for its
adjudication the adjudication the What are the types of defenses?
presence of third parties presence of third parties
over whom the court over which the court 1. Negative defense

cannot acquire cannot acquire


R6 S5
 jurisdiction  jurisdiction
Negative defense is the specific denial of the
Barred if not set up in Not barred even if not
material fact or facts alleged in the pleading of the
the action set up in the action
claimant essential to his cause or causes of action.

Need not be answered, Must be answered or


2. Affirmative defense
not result in default else defendant can be
declared in default R6 S5

Not an initiatory Initiatory pleading An affirmative defense is an a llegation of new


pleading matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
Docket fees are With docket fees would nevertheless prevent or bar recovery by him.
suspended The affirmative defenses include:

a. Fraud
b. Statute of limitations
Omitted counterclaim or cross claim c. Release
d. Payment
REMEDY: amend the answer e. Illegality
f. Statute of frauds
g. Estoppel
h. Former recovery
Motion to dismiss with counterclaim
i. Discharge in bankruptcy
If permissive counterclaim, PWEDE  j. Any other matter by way of confession and
Kasi, independent sa main action avoidance

89
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Ground for motion to dismiss (if M2D not filed or Specifically deny par 2 __ for being untrue, the truth
M2D denied), may be pleaded as an affirmative of the matter is that...
defense in the answer

Motion to set affirmative defense for hearing, 2. Partial specific denial

- Equivalent to motion to dismiss - Part admission and part denial


o During hearing, defending party to
present evidence first With support dapat
 INVERTED TRIAL

3. Disavowal of knowledge
Affirmative defense is granted, case is dismissed.
Remedy? - By an allegation of lack of knowledge or
information sufficient to form a belief as to
APPEAL (Because trial is on the merits) the truth or falsity of the averment in the
opposing party’s pleading

In good faith, or else, deemed an admission

With respect too negative defenses, note SPECIFIC Specific denial in par __ __ __ for lack of knowledge
DENIALS to truth or belief of the same

What is a negative pregnant? Specific not necessarily Specific Denial

- General denials are deemed admissions Answer- no need to verify

EXCEPT:

Plaintiff’s remedy in such a case? 1. Actionable Document

- JUDGMENT ON THE PLEADINGS (Rule 34) - Document which creates rights, which
serves as basis for filing of the complaint

2. Usury in a complaint
Kinds of Denials:

1. Specific Absolute Denial 3. Summary procedure

- By specifically denying the averment and 4. Answer with permissive counterclaim


whenever practicable, setting forth the
substance of the matters relied upon for
such denial

Not denied under oath an actionable document such


With support dapat as deed of sale or mortgage,

90
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Failure to verify = deemed admitted 1. After answer and deponent is not confined
HENCE, judgment on the pleadings in prison

Except: Scope of examinations:

1. Fraud/forgery 1. Matter which is relevant to the subject of


2. Not a party to the a ctionable document the pending action
2. Not privileged
3. Not restricted by a protective order

 After jurisdiction is acquired by court, parties may


2. Depositions before action or pending
resort to:
appeal (Rule 24)
VI. MODES OF DISCOVERY
Aka perpetuam rei memoriam
Rules 23-28
- Objective is to perpetuate testimony of a
- Depositions pending action (under R23) witness for future use
- Depositions before action or pending o Taken conditionally, to be used at
appeal (R24) the trial only in case deponent is
- Interrogatories to parties under R25 not available
- Admission by adverse party (R26) - Do not prove existence of any right and the
- Production or inspection of documents or testimony perpetuated is not in itself
things under (Rule 27) conclusive proof, either of the existence of
- Physical and mental examination of persons any right nor even of the facts to which they
under (Rule 28) relate, as it can be controverted at the trial
in the same manner as though no
perpetuation of testimony was ever had
BUT, in the absence of any objection to its
Discussing each:
taking, and even if the deponent did not

1. Depositions pending action (R23) testify at the hearing, the perpetuated


testimony constitutes prima facie proof of
Deposition- a written testimony of a witness given in facts referred to in the deposition
the course of a judicial proceeding in advance of the
trial or hearing upon oral examination or in response
to written interrogatories and where an opportunity 3. Interrogatories to parties (R25)
is given for cross examination
- Purpose is to elicit facts from any adverse
Aka depositions de bene esse party
- Answers may also be used as admissions of
May be taken with leave of court when:
the adverse party
1. After jurisdiction has been obtained over - Written interrogatories and the answers
any defendant or over the property which is thereto must be both filed and served,
the subject of the action but before an hence, the answers may constitute as
answer has been filed  judicial admissions
2. Deposition of a person confined in prison

May be taken without leave of court:

91
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

4. Admission by Adverse Party under Rule 26 condition of a party is in controversy,


usually arising in controversy in proceedings
- Purpose is to expedite trial and relieve for guardianship over an imbecile or insane
parties of the costs of proving facts which person, while the physical condition of the
will not be disputed on trial and the truth of party is generally involved in physical
which can be ascertained by reasonable injuries cases
inquiry
- An admission made is for the purpose of - Since the results of the examination are
the pending action only and cannot be used intended to be made public, the same are
in other proceedings not covered by physician-patient privilege

5. Production or inspection of documents or Use of depositions:


things under Rule 27
1. Impeach adverse party’s witness (relate to

- Applies only to a pending action and the evidence)

documents or things subject of the motion 2. Residing 100 km away, sick or infirm

must only be those within the possession,


control, or custody of a party
R23 R24- Relate to R134 (Deposition)
The documents to be produced must have the
following requisites:
Interrogatories/Admission by adverse party
1. Should not be privileged
2. Should constitute or contain evidence 1. File answer or comment, or else, the fa cts
material to any matter involved in the are deemed admitted, no issue, hence,
action and which are in the party’s  judgment on the pleadings
possession, custody, or control
3. In a petition for production of papers and
documents, they must be sufficiently
Production/Inspection of documents or things
described and identified, or else, the
petition will not prosper For photographing, copying, inspecting

This mode of discovery does not authorize the Production or Inspection Subpoena
opposing party or clerk or other functionaries of the
of Documents or Things
court to distrain the articles or deprive the person
who produced the same of their possession, even Mode of discovery Process
temporarily
By motion By request

6. Physical and Mental Examination of


Persons under Rule 28 Production or Inspection Original of Evidence in
of Documents or Things Custody of Adverse
- This mode of discovery is available in an Party
action in which the mental or physical

92
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Mode of discovery Exception to the best - At any time before service of the answer or
evidence rule of a motion for summary judgment

By motion By notice Before filing responsive pleading or motion for


summary judgment

If there is no original 2. Dismissal upon motion by plaintiff (R17 S2)


document, because such
is in the presence of Upon approval of the court and
adverse party, the Upon such terms and conditions as the
requesting party can ask court deems proper
for production of the
original by way of notice With answer, by way of motion without
prejudice to counterclaim
Without prior knowledge With prior knowledge of
as to contents contents of the
May be filed independently or separately
document, because the
requesting party has the
secondary evidence
3. Dismissal due to fault of plaintiff, when for
 justifiable cause,

Mental and Physical examination of Persons vs


Plaintiff fails to appear on the date of the
Hospitalization of Insane Persons
presentation of his evidence in chief on the
complaint
Hospitalization of Physical and Mental
Insane Persons examination of persons
Plaintiff fails to prosecute his action for an
Governed by Rule 101 Governed by Rule 28 unreasonable length of time

Special proceeding Mode of discovery Plaintiff fails to comply with these Rules or
any order of the court
File a petition File a motion

Filed by Regional Any party may avail of


Director of DOH What is the 2 dismissal rule? What are its
elements?

(R17 S1) -..the notice of dismissal by plaintiff


Another remedy which may be availed of:
operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in a
MOTION TO DISMISS BY PLAINTIFF (Rule
competent court an action based on or including the
17)
same claim
What are the grounds for dismissal under Rule 17?

1. Dismissal upon notice by plaintiff (R17 S1)


Elements of 2 dismissal rule: (R17 S1)

93
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. First complaint filed by plaintiff before court The dismissal shall be without prejudice,
of competent jurisdiction unless otherwise specified in the order
2. At any time before service of answer or of
motion for summary judgment, plaintiff
filed notice of dismissal of the first (S3), due to fault of plaintiff
complaint, which the court granted (effect
The dismissal shall have the effect of an
without prejudice)
adjudication upon the merits unless
3. Second complaint filed by plaintiff involving
otherwise declared by the court
an action based on or including the same
claim before court of competent jurisdiction
4. At any time before service of answer or of
motion for summary judgment, plaintiff What are your remedies, as plaintiff, in such cases?
filed notice of dismissal of the second
S1- dismissal upon notice by plaintiff
complaint based on or including the same
claim as the first complaint refile the case (unless the 2-di smissal rule
applies [?])
Effect of 2 dismissal rule (R17 S1):

The second notice of dismissal shall operate as an or if so declared with prejudice, appeal the
adjudication upon the merits. dismissal

Exceptions to 2 Dismissal Rule: S2- dismissal upon motion of plaintiff

st
1. 1  action is not related to the secon d action Refile the case

2. Court dismissing the second action is a If the court declares that the dismissal is
court not of competent jurisdiction with prejudice, appeal the dismissal

S3- dismissal due to fault of plaintiff


Nature of Dismissal of actions under Rule 17:
Appeal the dismissal
(S1), upon notice by plaintiff
If the court declares that the dismissal is
Unless otherwise stated in the notice, the
without prejudice, refile the case
dismissal is without prejudice,

(*2 dismissal rule) ..except that a notice


operates as an adjudication upon the merits Another:
when filed by a plaintiff who has once
JUDGMENT ON THE PLEADINGS (Rule 34)
dismissed in a competent court an a ction
based on or including the same claim S1

Where the answer


(S2), upon motion of plaintiff
- fails to tender an issue or

94
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

- otherwise admits the material allegations of On the merits Interlocutory or on the


the adverse party’s pleading, merits

the court may, on motion of that party, direct There is answer filed If filed by plaintiff, filed
 judgment on such pleading at any time before
answer is served
However, in an action for declaration of

- nullity or
- annulment of marriage or If filed by defendant,
- for legal separation, may be filed at any time
even before answer
the material facts alleged in the complaint shall
always be proved

VII. REPLY (R6 S10)

Exception that JoP be on motion: A pleading, the office or function of which is to deny
or allege facts in denial or avoidance of new matters
- if at pre trial court finds that judgment on
alleged by way of defense in the answer and thereby
the pleadings is proper, it can render such
 join or make issue as to such new matters.
 judgment motu proprio
If a party does not file such reply, all the new
matters alleged in the answer are deemed

Allegations not deemed admitted by filing of controverted.

 judgment on the pleadings:


R11- may be filed within 10 days from service of the

- irrelevant allegations pleading responded to

- immaterial allegations
- allegations of damages in the complaint
VIII. REJOINDER

Second pleading on the party on the part of


Judgment on the Summary Judgment
defendant being his answer to the plaintiff’s
Pleadings
replication
3 day notice rule 10 day notice rule Another form of responsive pleading

Filed by plaintiff Filed by defendant

Based solely on the Based on pleadings, IX. PRE TRIAL (Rule 18)
pleadings depositions, admissions,
Rule 18 S1 COMPLETE:
affidavits
AFTER the LAST PLEADING ASSERTING A CLAIM  has
Answer fails to tender an No genuine issue
been served and filed, or AFTER the E XPIRATION OF
issue or there is an between the parties
THE TIME FOR FILING THE LAST PLEADING
admission of material
ASSERTING A CLAIM, a pre trial is to be conducted
allegations

95
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

upon motion ex parte by plaintiff that the case be Pre Trial in Criminal Pre Trial in Civil Cases
set for pre trial Cases

Mandatory requirement

Pre Trial Conference- yes After arraignment, After the last pleading
within 30 days from the asserting a claim has
date the court acquires been served and filed
 jurisdiction over the
Answer
accused

Answer to permissive counterclaim


Rule 118 Rule 18

Answer to cross claim No pre trial brief Pre trial brief is required
to be filed and served
Answer to third party complaint
Answer to complaint in intervention Counsel of accused and Parties and counsel are
prosecutor are required required to appear
Reply to answer to appear

Reply to answer to permissive counterclaim


Non appearance may be
excused only if valid
Reply to answer to cross claim
cause is shown, or
representative shall
Reply to answer to third party complaint
appear in behalf duly
authorized in writing to
Reply to answer to complaint in
enter into amicable
intervention
settlement, submit to
ADR, enter into
Rejoinder
stipulations of facts and
of document

Failure of counsel of Failure of plaintiff to


By MOTION
accused or prosecutor to appear, dismissal of the
If the motion is not filed, is the case dismissed for appear, and without case with prejudice,
failure to prosecute? acceptable excuse for unless otherwise
lack of cooperation, ordered by the court
- Techinically, yes, but ff R1 S6 (liberal court may impose
construction, proper sanctions or
o It is not dismissed penalties
Failure of defendant to
Hence, if plaintiff failed to file motion ex parte that appear, plaintiff to
the case be set for pre trial, the clerk of court shall present evidence ex
issue notice of pre trial conference Presence of private parte
offended party is not
required (as only
required to appear at

96
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

arraignment) of the criminal


and civil aspects
of the case Limitation on
the number of
Prê trial agreement is in Signed by parties and witnesses
writing, signed by counsel (?)
accused and counsel, or
else, cannot be used
Advisability of
against accused
preliminary
Considerations in pre Considerations in pre conference of
trial conference: trial: issues to
commissioner

Plea bargaining Possibility of


amicable Propriety of
Stipulation of settlement or rendering
facts submission to  judgment on
alternative the pleadings,
modes of summary
Marking of dispute  judgment,
identification of resolution dismissing the
evidence of the action should a
parties valid ground
therefor be
Simplification of
found to exist
the issues
Waiver of
objections to
admissibility of Advisability or
Necessity or
evidence necessity of
desirability of
suspending the
amendments to
proceedings
the pleadings
Modification of
order of trial if
accused admits Such other
Possibility of
the charge but matters as may
obtaining
interposes a aid in the
stipulations or
lawful defense prompt
admissions of
disposition of
facts and of
the action
documents to
Such matters as avoid
will promote a unnecessary
fair and proof (simplified)
expeditious trial

97
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Pre Trial In Criminal Pre Trial in Civil f. The advisability of a preliminary conference
of issues to a commissioner
After arraignment After last pleading
asserting a claim has g. The propriety of rendering judgment on the
been served and filed pleadings or summary judgment or of
dismissing the action should a valid ground
No pre trial brief With pre trial brief
therefore the found to exist
Order of pre trial signed
by accused and counsel h. The advisability or necessity of suspending
so admissions are the pleadings

binding
i. Such other matters as may aid in the
Failure to appear, Failure to appear by prompt disposition of the action
sanctions against plaintiff, dismissal of
counsel and prosecutor case with prejudice

S6- Pre trial brief

Failure to appear by The parties shall file with the court and serve on the
adverse party, in such manner as shall ensure their
defendant, plaintiff to
present evidence ex receipt thereof at least 3 days before the date of the
pre trial, their respective pre trial briefs which shall
parte
contain, among others:

What are the purposes of pre-trial?


a. A statement of their willingness to enter
(Rule 18 S2) into amicable settlement or alternative
modes of dispute resolution, indicating the
The court shall consider: desired terms thereof

a. The possibility of an amicable settlement or


b. A summary of stipulated facts and proposed
of a submission to alternative modes of
stipulation of facts
dispute resolution

c. The issues to be tried or resolved


b. The simplification of the issues

d. The documents or exhibits to be presented,


c. The necessity or desirability of amendments
stating the purpose thereof
to the pleadings

e. A manifestation of their having availed or


d. The possibility of obtaining stipulations of
their intention to avail themselves of
admissions of facts and of documents to
discovery procedures or referral to
avoid necessary proof
commissioners

e. The limitation of the number of witnesses


f. The number and names of the witnesses,
and the substance of their respective
testimonies

98
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Failure to file the pre trial brief shall have the same
effect as failure to appear at the pre trial.
Effects of failure to appear at the pre trial:

Plaintiff fails to appear


PRE TRIAL BRIEF
R18 S5
Required to be filed at least 3 days before
the Pre Trial Conference The failure of plaintiff to appear at the pre trial
conference when so required shall be cause for the
Ensure na really good, for filing memoranda dismissal of the action. The dismissal shall be with
prejudice, unless otherwise ordered by the court.
(all remedies, may bayad, bawat pleading) —
pagkakitaan

Defendant fails to appear

Failure to file at pre trial brief = failure to appear at R18 S5


pre trial, same effect
The failure of defendant to appear at the pre trial
conference shall be cause to allow the plaintiff to
present his evidence ex parte and the court to
Requisites for appearance at the pre trial: render judgment on the basis thereof.

(R18 S4)

1. Duty of the parties and their counse l to Remedies in case of failure to appear by plaintiff /
appear at the pre trial defendant:

2. The non-appearance of a party may be Plaintiff fails to appear


excused only if a valid cause is shown
therefor or IF A REPRENTATIVE SHALL Plaintiff can file an appeal, unless the
APPEAR IN HIS BEHALF FULLY AUTHORIZED dismissal is ruled to be without prejudice,
IN WRITING which in such a case, defendant would be
avail of the remedy of refiling the case or
filing a petition for certiorari under Rule 65
If party a NATURAL PERSON- representative is armed
with SPECIAL POWER OF ATTORNEY Defendant fails to appear

If party is a JURIDICAL PERSON (corporations or NOTE: Defendant WILL NOT BE DECLARED IN


partnerships)- representative is armed with BOARD DEFAULT! Likewise, there is no such thing under the
RESOLUTION (Board resolution is binding upon the 1997 Rules on Civil Procedure AS IN DEFAULT (sa
entire corporation, because the Board of Directors luma to)
[in case of stock corporations] or the Board of
Trustees [in case of non stock corporations] are the When defendant fails to appear, 4 SCENARIOS ARE
ones who make the decisions of the corporation CONTEMPLATED:
through Board Resolution-- note that Board
Resolution prevails over SPA) - Issuance of order allowing ex parte
presentation of evidence/before
presentation of evidence

99
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

- Order allowing ex parte presentation of BAWAL accdg sa Manual of Clerk of Court (ugat ng
evidence was issued, plaintiff presents ex corruption)
parte evidence
- Before judgment becomes final and The only time na pwede is when he is not

executory an employee of a court

- After judgment becomes final and


REMEDIES:
executory
File a motion for reconsideration + Set aside the
Evidence Ex parte

- on the ground that the order is contrary to

ORDER ALLOWING PLAINTIFF’S law [R37]? OR,

PRESENTATION OF EVIDENCE EX PARTE - that, the order allowing ex parte


presentation of evidence is an interlocutory
REMEDIES: The order is interlocutory, hence, order)
if you fail this, the evidence shall form part
File motion for reconsideration, based on of the records of the case  – kawawa ka cge
R65 S4 and R41 S1
- R65 (4)- ..whether such m4r is required or
not..
- R41 (1)- the order allowing ex parte If the motion for reconsideration + motion to set
presentation of evidence is an interlocutory aside is denied, file a petition for certiorari under
order, hence, no appeal may be taken from Rule 65
it
R41 (1)- the order allowing ex parte
presentation of evidence is an interlocutory
If M4R denied, file petition for certiorari under Rule order, no appeal may be taken from it,
65 hence, aggrieved party may file the
appropriate special civil action under Rule
- R41 (1)- the order allowing ex parte 65, which includes certiorari
presentation of evidence is an interlocutory
order, no appeal may be taken from it,
hence, aggrieved party may file the
appropriate special civil action under Rule Before judgment becomes final and
65, which includes certiorari executory

REMEDIES:

PRESENTATION OF EVIDENCE EX PARTE - Appeal the judgment  (Rule 41) or

Conducted by Court of CLERK OF COURT - File motion for reconsideration  (Rule 37) or

- Clerk of court, a LAWYER Ground: that the evidence is insufficient to justify


o Hence, if judge delegated to clerk the decision or final order
of court who is not a lawyer,
BAWAL
- File a motion for new trial  (Rule 37)
Can clerk of court charge Commissioner’s Fee?

100
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Ground: FAME which ordinary prudence could not - Deemed admitted


have guarded against and by reason of which such
aggrieved party has been impaired in his right Cause of action admitted by defendant,

- Rule 18 in relation to Rule 34


 JUDGMENT ON THE
After judgment becomes final and PLEADINGS
executory Conclusive on part of admitter, for purposes
of substantial justice
REMEDIES:
Pre Trial
- File Relief from judgment, order, or other
proceedings under Rule 38 or - May be delegated to clerk of court who is a
o GROUND: any proceeding is lawyer
thereafter taken against the party
in any court through FAME  After PRE TRIAL,

X. TRIAL
- File for annulment of judgment, final
order, or resolution  under Rule 47 or The best part of law practice
o GROUND: extrinsic fraud

- File petition for certiorari  under Rule 65 or


o GROUND: GAD amounting to lack
or excess of jurisdiction on the  part (Rule 30 in relation to Rule 132 S4, 5, 6, 7, 8)
of the tribunal exercising judicial
functions, and there is no appeal A proceeding where parties present
nor any plain, speedy and evidence and ends in oral argument
adequate remedy in the ordinary
course of law With respect to examination of witnesses

Pre trial brief (see above) presented in trial


- Make a collateral attack on the judgment

Pre Trial Order


All witnesses in pre trial brief to be presented
- Order issued by the court stating what
transpired during the pre trial conference Before witness is presented, offer of testimony, in
o Can be amended accordingly accordance with purpose in pre trial brief
o By filing motion to amend or
correct the pre trial order, within 5
days after receipt of the pre tr ial
1. PROPONENT’S / PLAINTIFF’S TESTIMONIES
order
AND EVIDENCE IN CHIEF as well as that of
o NO NEED for counsel to sign the
witnesses
pre trial order
With respect to Rule 7 (parts of a pleading) stating
Pre Trial conference- relates to judicial admissions
the cause of action in the body of the pleading
under Rule 129

Adverse party admits your proposals/stipulations

101
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Ultimate facts to be proven during the trial of the Line of questioning:


case
Is it not a fact you are 1 of... YES
ORDER:
Executed sometime, etc... YES
Direct Examination
NOTE: Lead mo papunta sayo
- Transform allegations of the complaint in
the body of the pleading - Test credibility of witness, test credibility of

- Cause of action testimony

- Direct testimony - Not from the mouth of credible witness, but

- Show sinumpaang salaysay from credible testimony


o WHY? Asa TSN- pag may mali, ipa
HOW, WHEN, WHERE, WHAT, WHY correct
 TSN is best evidence of
CONSIDER violations and exceptions: what transpired during
trial
Leading Questions
 To impleach
- Avoid except in preliminary matters testimony of
- Propound answers which proponent desires witness
 To refresh
NOTE EXCEPTIONS: hostile witnesses, minors, memory of the
adverse party, preliminaries witness
 Ididiscuss din to
Is your name Ms X? Leading
isa isa sa
Is your age 27? Leading memorandum

Misleading questions Re Direct Examination

Re establish what was destroyed during the


cross examination

Re Cross Examination

Cross Examination Destroy what was re established in the re


direct examination
Requires knowledge of:
NOTE: Identify all witnesses
- Facts
- Evidence Offer of Testimony Offer of Evidence
- Defenses
Made at the time the After termination of
Leading questions are allowed witness is presented on presentation of evidence
the witness stand of prosecution
Totoo bang ikaw ay maganda? Leading

Obtain affirmative answers- GOOD

102
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

case responsive pleading

That plaintiff has shown 10 grounds


no right of relief
Evidence in chief
If granted, case If granted, case
Evidence supporting allegations in the
dismissed dismissed, remedy
complaint
depends:

If granted but on appeal


After presentation of all witnesses, order of dismissal is With prejudice- appeal
reversed, defendant is
Offer of evidence Without prejudice- refile
deemed to have waived
the right to present
evidence
Then,
Both by way of motion
Comment or objection

- Secondary
- Not identical NOTE: in summary proceedings, no trial, no
demurrer to evidence

In Criminal Cases,
Then,
There is demurrer to evidence in Summary
Order of admission/Exclusion of evidence Procedure

Admitted; Exh A, Exh B - Constitutional Right to Due process

Excluded: Exh C, etc

TENDER OF EXCLUDED EVIDENCE Demurrer to evidence in Demurrer to evidence in


Considered by CA in appeal Civil Procedure Criminal Procedure

Rule 33 Rule 119 S23

 After PLAINTIFF RESTS ITS CASE,


No leave of court With or without leave of
required court
(defendant may file) DEMURRER TO
EVIDENCE (Rule 33)

D2E vs M2D (simplified)


If with leave of court,
accused could present
D2E M2D
evidence if demurrer is
Rule 33 Rule 16 denied

After plaintiff rests its Before filing of

103
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

If without leave of court, no longer present


accused could not evidence and submits
present evidence if case for decision based
demurrer is denied on prosecution’s
evidence
If court finds that If court finds that
evidence is insufficient prosecution’s evidence is
(plaintiff has shown no insufficient, demurrer
right to relief), complaint granted, accused is (simplified version)
dismissed as demurrer is acquitted
granted
D2E Civil D2E Criminal
Judgment of acquittal
Rule 33 Rule 119 S23
not appealable, hence,
DJ sets in With or without leave of With LoC- if denied,
court accused presents
Judgment of dismissal is Judgment of acquittal is
evidence
appealable not appealable; DJ sets
in
If granted, but on appeal
is reversed, defendant Without LoC- if denied,
If demurrer is granted
loses the right to present defendant cannot
but on appeal, order of
evidence, case present evidence
dismissal is reversed,
submitted for decision
defendant is deemed to
have waived the right to
present evidence
 After plaintiff rests its case, no D2E or D2E denied no
appeal,

(NO res judicata in 2. DEFENDANT’S EVIDENCE IN CHIEF


dismissal due to
demurrer) Prove allegations in the body of the answer
(R7 S1)
Plaintiff files motion to Court may motu proprio
deny motion due to deny motion Order:
demurrer to evidence
Direct Examination
If court denies demurrer, If court denies demurrer,
defendant will present Cross Examination
evidence
Re Direct Examination
With LoC- accused may
present evidence Re Cross Examination

Formal offer of evidence

W/O LoC- accused can Comment

104
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Objection A judgment or final order determines the merits of a


case, shall be
Offer
- in writing,
Tender of excluded evidence - personally and directly prepared by the
 judge,
DEFENDANT RESTS ITS CASE
- stating clearly and distinctly the facts and
Note: No more D2E- Rule 33- after PLAINTIFF rests the law on which it is based,
its case... - must contain a dispositive part,
- signed by him, and
- filed with the clerk of court

3. REBUTTAL EVIDENCE

Purpose is to rebut defendant’s evidence in CONSTITUTIONAL BASIS:


chief
A8 S14—(basis for Rule 36)
Order: (same as previously stated)
No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and
the law on which it is bas ed.
4. SUR REBUTTAL EVIDENCE
No petition for review or motion for reconsideration
Purpose is to rebut the rebuttal of a decision of the court shall be refused due course
or denied without starting the legal basis therefor.
Order: (Same as previously stated)

Kinds of Judgments:
5. MEMORANDUM
JUDGMENT UPON A COMPROMISE
Narration of facts of the case, issues, no
cause of action, no defenses, but only - Judgment rendered by the court on the
contain discussions basis of compromise agreement entered
into by the parties
- Immediately executory upon signing of
compromise agreement in absence of
 After trial,
motion to set aside on the ground of FAME

XI. JUDGMENT (Rule 36) - Has effect of res judicata


- Compromise agreement May be submitted
Declares rights/reliefs of parties to by parties at any stage of a case, even
Final consideration and determination of a after F and E, even without court approval
court of competent jurisdiction upon the
(A2028-2046, NCC)
matters submitted to it in an action or
proceeding

S1- Rendition of judgments and final orders:

105
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Court could render judgment upon a compromise,


and, in case of breach of any of the conditions, the
party may ask the court for execution of judgment. Remedies to judgment by consent, confession,
compromise:

File motion to set aside


JUDGMENT UPON CONFESSION
If denied, file petition for certiorari under
Judgment rendered by court when a party Rule 65 (R41 S1)
expressly agrees to the other party’s claim
or acknowledges validity of the claim
against him
JUDGMENT UPON THE MERITS

Judgment that is rendered after


Judgment upon Judgment by confession consideration of the evidence submitted by
compromise the parties during the trial of the case

Provisions and terms are An affirmative and


settled and agreed upon voluntary act of
CLARIFICATORY JUDGMENT
by the parties to the defendant himself. The
action and which is court exercises a certain
Judgment rendered to clarify an ambiguous
entered by the consent amount of supervision
 judgment or one difficult to comply with
of the court over the entry of
 judgment

JUDGMENT NON PRO TUNC

2 kinds of judgment by confession:


Now for then
Judgment by Cognovit actionem Judgment intended to enter into the record
the acts which had already been done, but
Defendant after service instead of entering which do not appear in the records
a plea, acknowledged and confessed that
plaintiff’s cause of action was just and
rightful
JUDGMENT SIN PERJUICIO

Without prejudice
Judgment by Confession Relicta Refers to dismissal of a case without
Verificatione prejudice to its being refiled

After pleading and before trial, defendant


both confesses the plaintiff’s cause of
JUDGMENT BY DEFAULT (R9 S3)
action and withdrew or abandoned his plea
or other allegations, whereupon judgment
Judgment rendered by the court following
was entered against him without
an order of default, granting the claiming
proceeding to trial

106
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

party the relief prayed for on the basis of particular claim and all counterclaims
his evidence presented ex parte by plaintiff arising out of the transaction or occurrence
which is the subject matter of said claim

JUDGMENT ON THE PLEADINGS (R34)


SPECIAL JUDGMENT
Judgment rendered by the court upon motion by
plaintiff where the answer of defendant R39 S11

fails to tender an issue or Judgment requiring performance of an act


otherwise admits the material allegations of other than execution of judgments for
the adver se party’s pleading money execution of judgments for a specific
act,
a certified copy of the judgment shall be
attached to the writ of execution and shall
SUMMARY JUDGMENT (R35)
be served by the officer upon the party
against whom the same is rendered, or
Judgment rendered by the court if the
upon any other person required thereby, or
pleadings, supporting affidavits, depositions
by law, to obey the same, and such party or
and admissions of plaintiff or defendant
person can be held liable for c ontempt for
show that:
disobedience of such special judgment

except as to the amount of da mages, there


is no genuine issue as to any material fact
and that the moving party is entitled to JUDGMENT FOR SPECIFIC ACTS
 judgment as a matter of law
R39 S10

Judgment of a court directing a party to


SEVERAL JUDGMENT execute a conveyance of land or personal
property or to deliver deeds or other
R36 S4 documents, or to perform any other specific
act in connection therewith
Judgment rendered by the court where in
an action against several defendants, the
court renders judgment against one or
more of them, leaving the acti on to proceed JUDGMENT ON DEMURRER TO EVIDENCE
against the others
R33

 judgment rendered by court dismissing case


SEPARATE JUDGMENT upon motion of defendant, made after
plaintiff rested his case, on the ground that
upon the facts presented by plaintiff and
R36 S5 the law on the matter, plaintiff has not
shown any right to relief
Judgment rendered disposing of a claim
among several others presented in a case
after a determination of issues material to a

107
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

CONDITIONAL JUDGMENT

Judgment wherein effectivity of such Obiter Dictum

depends upon occurrence or non


occurrence of an event

FINAL JUDGMENT
Law of the Case
Judgment which disposes of the whole
subject matter or terminates the particular
proceedings or action, leaving nothing to be
done by the court but to enforce in
execution what has been determined

If after judgment is promulgated, the judgment is


ambiguous and difficult to comply,
AMENDED JUDGMENT
MOTION FOR CLARIFICATORY JUDGMENT
Aka clarified judgment; it is an entirely new
 judgment, which supersedes an original
 judgment rendered by the court
XII. REMEDIES BEFORE JUDGMENT BECOMES
FINAL AND EXECUTORY:

SUPPLEMENTAL JUDGMENT Motion for reconsideration (Rule 37)

Judgment of the court which serves to Motion for New Trial (Rule 37)
bolster or add to the original judgment, and
does not take place nor extinguish the Reopening of Trial (Rule 119)
original judgment
Appeal (Rules 40-43, 45)

Conclusiveness of judgment
1. Motion for Reconsideration (Rule 37)

R37 S1

Within the period for taking an appeal, a motion for


Res Judicata (note above)
reconsideration may move for reconsideration on
the grounds that:

a. Damages awarded are excessive

Stare Decisis b. Evidence is insufficient to justify the


decision or final order

108
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Civil- for reasons of EQUITY


c. That the decision or order is contrary to law
For criminal cases- for reason of admission of
additional evidence
NOTE: M4R here is directed against judgment or
final order, not an interlocutory order which
preceded petition for certiorari (R41 S1 in relation to
4. APPEAL (Rules 40-43, 45)
R65 yon)

NOTE: Interlocutory orders are non appealable (AM - from the judgment, order of denial,

7-7-12-SC) assignment of errors


o FINAL ORDER- decision or the
Under Summary Procedure, BAWAL ang M4R and denial of M4R or MNT
MNT R37 (General Rule)
15 days- ordinary appeal
Exception: If against interlocutory order
30 days- record on appeal (Spec Pro, Multiple
Appeals- Expropriation, Partition)

2. Motion for New Trial (Rule 37) Neypes vs CA

- Motion to Rehear a case already decided by Fresh Period to Appeal:

court but before judgment thereon


becomes final and executory, 15 days from denial of M4R/MNT

filed within the period for taking an appeal, to 30 days from denial of M4R/MNT
set aside the judgment or final order order and
grant a new trial based on the ff grounds
materially affecting substantial rights of a party:
MTC decisions
(R37 S1)
MTC
1. FAME which ordinary prudence could not M4R
have guarded against and by reason of Under
Rule 37
which such aggrieved party has probably RTC

been impaired in his right or Notice /


Record Petition for M4R
on Review Under
2. Newly discovered evidence which he could Appeal under Rule CA Rule 52
under 42
not, with reasonable diligence, have
R40
discovered and produced at the trial and (from RTC
which if presented would probably alter the decisions in
Petition 4
exercise of
result appellate
review on
certiorari SC
 jurisdiction)
under
Rule 45

3. Reopening of Trial (civil in relation to


criminal procedure- R119 S24)
SC
M4R
Reopening of the proceedings to avoid miscarriage
Rule
of justice 52

109
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Notice/Record on Appeal

In case of Record on Appeal, appellant’s Brief 45


days to file record on appeal

Rule 40 Rule 41 Rule 42 Rule 43 Rule 45

Memorandu Appellant’ Petition Petition Petition for


m of appeal s Brief for Review For Review on
Review Certiorari

Notice or Notice or Petition Petition Petition for


Record on record on for Review for Review on
appeal appeal Review Certiorari
(Appeal?)

Of MTC Of RTC Of RTC Of quasi Of CA,


decisions Decisions decisions  judicial Sandiganbayan
original appellate bodies , CTA, RTC
 jurisdictio  jurisdictio decisions
n n

Questions of Questions Questions Question Questions of


fact law or of fact law of fact s of fact law
both or both law, or law or
both both

RTC decisions in exercise of original jurisdiction To RTC To CA To CA To CA To SC

RTC

General Rule:

Finding of fact of CA are final and conclusive and


M4R Notice or CA
cannot be reviewed on appeal to SC:
Under Record
Rule 37 on appeal
under EXCEPTIONS:
Rule 41 M4R
Under 1. When finding is grounded entirely on
Rule 52 SC
speculations, surmise, conjecture

Petition 4
review on
2. When inference is manifestly absurd,
certiorari mistaken, or impossible
under
Rule 45
3. When judgment is premised on a
misrepresentation of facts
SC
M4R 4. When there is GAD in appreciation of facts
Rule
52
5. When findings of fact are conflicting

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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

6. When CA in making its findings went S2- Petition for relief from denial of appeal
beyond the issues of the case and the same
is contrary to both the admissions of When judgment or final order is rendered by court in

appellants and appellees any case, and a party thereto, by FAME, has been
prevented from taking an appeal, he may file a

7. When findings of fact of CA are at variance petition in such court and in the same case and

with those of the trial court, the SC has to praying that the appeal be given due course.

review the evidence in order to arrive at the


correct findings based on record
Filed within 60 days from knowledge of judgment
8. When findings of fact are conclusions and within 6 months from entry of judgment
without citation of specific evidence on
which they are based

- Relate to appeal
9. When facts set forth in the petition as well
o Failure to appeal due to FAME
as in the petitioner’s main and reply briefs
are not disputed by respondents

10. when findings of fact of the CA is premised 2. Petition for Annulment of judgment (Rule
on supposed evidence and is contradicted 47)
by evidence on record
RTC exclusive original jurisdiction to CA

11. when certain material facts and


MTC exclusive original jurisdiction to RTC
circumstances which have been overlooked
by the trial court which, if taken into Ground: extrinsic fraud
account, would alter the result of the ca se
in that they would entitle accused to
acquittal

Annulment of judgment
REMEDIES AFTER JUDGMENT BECOMES FINAL AND
EXECUTORY: - Remedy in law independent of the case
where the judgment sought to be annulled
1. Petition for relief from Judgment (Rule 38)
was rendered and may be availed of though
S1- Petition for relief from judgment, orders, other the judgment has been executed
proceedings

When a judgment or final order is entered, or any


Important condition:
other proceeding is thereafter taken against a party
in any court through FAME, he may file a petition in - Petitioner failed to move for MNT, appeal
such court and in the same case praying that the from, file petition for relief against, or take
 judgment, order, or proceeding be set aside other appropriate remedies assailing
questioned judgment or final order or
- OTHER PROCEEDING INCLUDES:
resolution through no fault attributable to
o Order or writ of execution
him
o Order dismissing appeal

111
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

a. upon expiration of period to


appeal therfrom if no appeal has
S2- Grounds been duly perfected

1. Extrinsic or collateral fraud NOTE: (rules on motion)


2. Lack of jurisdiction over subject matter and
over the person - ministerial on the part of the court

IF DENIED, mandamus or appeal is the proper


remedy
3. Certiorari under Rule 65
Nature of writ of execution:

R39 S8

The writ of execution is issued in the name of RP and


4. Collateral Attack shall state:

e. Name of court which granted the


motion

f. Case number

EXECUTION OF JUDGMENT g. Dispositive portion of the


 judgment or order subject of the
- Nothing left for the court but to enforce its
execution
decision

h. Shall require the sheriff or other


proper officer to whom it is
Execution directed to enforce the writ
according to its terms
- remedy afforded by law for the
enforcement of a judgment
- object is to obtain satisfaction of the
 judgment on which the writ is issued

BY MOTION- 5 years

AFTER 5 years Rule: Matter of right on part of winning party


(execution), and court cannot refuse
Revival of Judgment- 10 YEARS, by MOTION
Except:

1. When judgment turns out to be incomplete


Execution as a matter of right (R39 S1) or conditional

Execution shall issue as a matter of right, on motion, 2. Judgment is novated by parties

1. upon judgment or order that disposes of


the action or proceeding

112
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

3. Equitable grounds like change in situation right


of the parties which makes execution May issue before lapse Period to appeal has
inequitable of period to appeal, and already lapsed, no
even during appeal appeal is perfected
Discretionary upon the Ministerial duty of the
4. Execution is enjoined
court; there is inquiry on court provided there are
whether there is good no supervening events
5. Judgment has become dormant reason for execution

6. Execution is unjust or impossible


S2- Discretionary execution

a. Execution of a judgment or a final order


When proper to Quash Writ of Execution: pending appeal

On motion of the prevailing party with notice to the


1. Change in situation of parties renders
adverse party filed in the trial court
execution inequitable
- while it has jurisdiction over the case and
2. Issued against the wrong party - is in possession of either the original record
or the record on appeal, as the case may be,
o at the time of the filing of such
3. Issued without authority
motion, said court may, in its
discretion,
4. Improvidently issued  order execution of a
 judgment or final order
5. Defective in substance even before the
expiration of the period to
6. Judgment is already satisfied appeal

7. Controversy was never submitted to the After the trial court has lost jurisdiction, the motion
court for execution pending appeal may be filed in the
appellate court.

Rule: Dispositive portion of decision is the part that Discretionary execution may only issue upon good
becomes subject of execution reasons to be stated in a special order after due
hearing.
Except:

1. When there is ambiguity in the dispositive b. Execution of several, separate, or partial


 judgments
portion
A several, separate, or partial judgment may be
2. Where extensive and explicit discussion and executed under the same terms and conditions as
settlement of the issue is found in the body execution of a judgment or final order pending
of the decision appeal.

S2- Discretionary Execution

Grounds:
Discretionary Execution Execution as a matter of

113
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. Insolvency of judgment debtor 5. Other judgments declared to be


2. Wastage of asset by judgment debtor immediately executory unless otherwise
ordered by trial court

Court may, in its discretion, order an execution


before expiration of the time within which to appeal, S6- Execution by motion or independent action
provided,
Modes of enforcement:
1. There is motion for execution filed by
winning party 1. By motion within 5 years from date of entry

2. There is notice of said motion to the 2. By independent action for revival of

adverse party  judgment after 5 years from entry and


before it is barred by statute of limitations

3. There are good reasons stated in a special which is 10 years from entry under 1144,

order after due hearing NCC

Supersedeas Bond Revival of judgment S6 Revival of judgment S34


Independent action Carried out through
- Bond filed by petitioner and approved by filing of a motion in
court before the judgment becomes final court
Assumes there is no Assumes that judgment
and executor and conditioned upon
execution within first 5 is executed within first 5
performance of the judgment appealed
years years
from, in case it be affirmed wholly or in part Party who files the Party who files such
action is the judgment motion is not the original
creditor himself, or his  judgment creditor but he
assignee, or his is the highest bidder in
Remedy in case of execution as matter of discretion, successor in intereest the public auction
Filed due to lapse of 5 Filed because movant is
- CERTIORARI
year period deprived of property
o Interlocutory, without prejudice to purchased
the outcome of appeal

S4- Judgments not stayed by appeal S6 N/A to:

(Exception to general rule) 1. Judgments for support


2. Contempt orders in unauthorized re-entry
In the following cases:
on land by ejected defendant

1. Injunction 3. Issuance of writs of possession and

2. Receivership 4. Special proceedings and land registration

3. Accounting cases

4. Support

S9- Award of judgments of money, how enforced

114
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. Immediate payment on demand 1. Judgment obligor’s family home as provided


2. Satisfaction by levy by law, or the homestead in which he
3. Garnishment of debts and credits resides, and the land necessarily used in
connection therewith

2. Ordinary tools and implements personally


Levy
used by him in his trade, employment, or
- Act by which officer sets apart or livelihood
appropriates part of whole property of
 judgment debtor for purposes of execution 3. 3 horses, 3 cows, 3 carabaos, other beasts
sale of burden such as judgment obligor may
select necessarily used by him in his
ordinary occupation

Garnishment
4. Necessary clothing and articles for ordinary

- Act of appropriation by the court when personal use, including jewelry


property of debtor is in the hands of a third
person 5. 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
Attachment Garnishment select, of a value not exceeding 100k pesos
Refers to corporate Refers to money, stocks,
property in possession of credits, other
6. Provisions for individual or family use
 judgment debtor incorporeal property
which belong to sufficient for 4 months
 judgment debtor but is
in the possession or 7. Professional libraries and equipment of
under control of a third  judges, lawyers, physicians, pharmacists,
person dentists, engineers, surveyors, clergymen,
teachers, other professionals, not exceeding
300k pesos in value

S10- Execution of judgments for specific act 8. One fishing boat and accessories not
exceeding total value of 100k pesos owned
1. Conveyance, delivery of deeds, other by a fisherman and by the lawful use of
specific acts vesting title which he earns his livelihood
2. Sale of real or personal property
3. Delivery or restitution of real property 9. So much of the salaries, wages, or earnings
4. Removal of improvements on property of the judgment obligor for his personal
subject of execution services within the 4 months preceding the
5. Delivery of personal property levy as are necessary for support of his
family

S13- Property Exempt from Execution: 10. Lettered gravestones

115
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

11. Monies, benefits, privileges, annuities


accruing or in any manner growing out of
any life insurance Ordinary sale on Sale in judicial
execution foreclosure of mortgage
Need not be confirmed Must be confirmed by
12. Right to receive legal support, or money or
by court court in order to divest
property obtained as such support, or any rights in the property of
pension or gratuity from government the parties and to vest
the rights in the
13. Persons specially exempted by law purchaser
Right of redemption No right of redemption
BUT not article or species of articles of property exists except when mortgagee
mentioned in this section shall be exempt from is a bank or a banking
institution
execution issued upon a judgment recovered for its
Title is acquired after Title is acquired upon
price or upon a judgment of foreclosure of a
expiration of redemption confirmation and
mortgage thereon. period when final deed registration of the
of conveyance is foreclosure sale
executed

S16- Proceedings where property claimed by third


person

rd
Remedies of 3  party claimant: S30- Proof required of redemption

1. Summary hearing before court of Redemptioner must produce to officer, or person


competent jurisdiction from whom he seeks to redeem, and serve with his
notice to the officer:
2. Terceria or third party claim filed with
sheriff 1. A copy of the judgment or final order
certified by the clerk of court wherein the
3. Action for damages on the bond posted by  judgment or final order is entered
 judgment creditors
2. If he redeems upon a mortgage or other
4. Independent reivindicatory action lien, a memorandum of the record thereof,
certified by RD, or

Terceria 3. An original or certified copy of any


assignment necessary to establish his claim,
- A person claiming property levied upon may
or
execute affidavit of title or right of
possession over the property
4. An affidavit executed by him or his agent
o Such affidavit must state the
showing the amount then actually due on
grounds of such right or title
the lien
o The affidavit shall be served upon
officer making a levy and a copy
thereof must also be served upon S32- Rents, Earnings, Income of property pending
the judgment oblige redemption

Note: Cumulative remedies Rights of judgment debtor:

116
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. Remain in possession of property


5. Court may appoint a receiver for the
2. Cannot be ejected property of the judgment debtor not
exempt from execution or forbid a transfer
3. Use the property in the same manner it was or disposition or interference with such
previously used property

4. Make necessary repairs to buildings 6. If court finds that the judgment debtor has
thereon while he occupies the property an ascertainable interest in real property
either as mortgagor, mortgagee or
5. Use it in the ordinary course of business otherwise, and his interest can be
ascertained without controversy, the court
6. Collect rents, earnings, and income derived may order the sale of such interest
from the property until expiration of the
period of redemption 7. If the person alleged to have the property
of the judgment debtor or be indebted to
him, claims an adverse interest in the
property or denies the debt, the court may
authorize judgment creditor to institute an
S35- Remedies of judgment creditor in aid of
action to recover the property, forbid is
execution
transfer and may punish disobedience for
1. If execution is returned unsatisfied, he may contempt
cause examination of judgment debtor as to
his property and income

2. He may cause examination of debtor of the S47- Effect of judgment or final order
 judgment debtor as to any debt owed by
him or to any property of the judgment Res judicata
debtor in his possession
- Bar by former judgment/direct estoppel by

3. If after examination, the court finds  judgment


property of the judgment debtor, either in
Conclusiveness of judgment
his own hands or that of any person, the
court may order the property applied to the - Estoppel by verdict, estoppel by record,
satisfaction of the judgment collateral estoppel by judgment or
preclusion of issues or rule of auter accion
pendent, covers par c
A party or other person may be compelled, by order
or subpoena, to attend before the court or
commissioner to testify as provided by S36 and S37
Public Policy Principle

4. If court finds the earnings of the judgment - Inalterability of final and executory
debtor are more than sufficient for his  judgment
family’s needs, it may order payment in
instalments

117
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Decisions of court must be immutable at some - Judgment by a court is enforceable only


definite period of time within its territorial jurisdiction

Effect of foreign judgments

Conclusiveness of judgment - Provided that the tribunal has jurisdiction

- Issues actually and directly resolved in a


former suit cannot again be raised in any
future case between the same parties 1. In case of judgment against a specific thing,

involving a different cause of action a. Judgment is conclusive upon title


to the thing

2. In case of judgment against a person,


Bar by former judgment Conclusiveness of a. Judgment is presumptive evidence
 judgment
of a right as between the parties
Identity of parties, Identity of parties and
and their successors in interest by
subject matter, causes of subject matter
action a subsequent title
First judgment First judgment is
constitutes absolute bar conclusive only as to
to all matters directly matters directly
2 ways of giving effect to a foreign judgment:
adjudged and those that adjudged and actually
might have been litigated in the first
1. Ordinary action to enforce the foreign
adjudged action. Second action
can be prosecuted  judgment may be filed in court or
Has the effect of Has the effect of
preclusion of claims preclusion only to issues 2. It may be pleaded in an answer or motion
to dismiss

In both instances, judgment may be repelled by


Law of the case
evidence of:

- Refers to the legal conclusions announced


1. Want of jurisdiction
on a first appeal, whether on the general
2. Want of notice
law or the law as applied to the concrete
3. Collusion
facts, not only prescribe the duty and limit
4. Fraud
the power of the trial court to conduct
obedience and conformity thereto, but they
become and remain the law of the case in
all other steps, whether in the lower court Effect of foreign judgment:
or in the appellate court on a subsequent
R39 S8
appeal
The effect of a foreign judgment or final order of a
tribunal of a foreign country, having jurisdiction to
S48- Effect of foreign judgment or final orders render judgment or final order is as follows:

Public policy principle

118