REMEDIAL LAW CIVIL PROCEDURE January 10, 2009 Causes of action: 1. Unlawful detainer a.

. To pay or vacate (to comply or to vacate) b. To pay and to vacate (to comply and to vacate) 2. sum of money 3. breach of contract not required to allege and prove negligence of defendant (negligence presumed in common carrier just prove contract of carriage, if private carrier no need to prove negligence because its not an element of coa) a. prove there is a contract b. prove violation of contract 4. 5. Doctrine of alternative causes of action RuleVIII Sec2 Applies only to civil case Because in criminal case, prohibits duplicity of offense. Alternative defendant Rule III Sec13 If you dont know who has done damage to you In civil case only When your COA is dependent upon a document -the document is called an actionable document Rule VIII Sec7 -if other party wants to deny the document: denial must include oath (otherwise, implied genuineness and due execution of the document) exceptions:

RuleVIII Sec8 To deny allegations in complaint: should be specific in accordance with RuleVIII Sec10 (otherwise, its a general denial which is an admission) therefore, a denial can be an admission if its not specific = general RuleII Multiplicity of suits if prohibited = splitting COA (prohibited) But multiple COA can be joined in 1 suit = joinder COA (allowed) COA Should be subject matters of 1 complaint 1. primary relief 2. incidental relief if the primary and incidental relief are separated = splitting ex. sum of money 1. collection of principal sum 2. additional relief interest 3. additional relief - damages City of bacolod v. san Miguel brewery for unpaid local taxes with assessment = demand to pay action to collect main sum was decided subsequent case for collection of interest and surcharge was filed = splitting coa (barred by res judicata) 2 ways to collect obligation 1. collection sum of money abandon the mortgage 2. foreclosure REM abandon collection case -choose 1 only -judicial foreclosure and there is deficiency, you can ask for deficiency judgment Joinder of COA -look at the number of plaintiff and defendants -if more than 1 P or D, need to apply for joinder of parties ex. P v. D -D owes P 4 p/n with different due dates, amount and reasons -each p/n is a debt separate therefore if there are 4 p/n there are 4 coa -assuming all p/n are overdue, still have 4 coa -but can file collection under 1 complaint even if p/n not connected can be joined even if unrelated transaction? Yes, provided not governed by special laws or special civil action and assuming 1 is to 1 (ex. if 4 p/n and unlawful detainer = cannot join in 1 case) P v. D1, D2, D3, D4 D1 = owes P 350k D2 = owes P 375k D3 = owes P 400k D4 = owes P 395k -several defendants, apply joinder of parties RuleIII Sec6 -requirement: 1. coa arise of same or series of transactions Misjoinder -remedy of court is separate the COA (not to dismiss) but if this order is not complied with, ground for dismissal due to the fault of plaintiff Promissory Note We promise P or his order P2M Sgd

A, B, C, D Due Demanded No payment CC 1207 and 1208 Absent qualifying words or statement, the CC gives presumption that the debt is joint. P v. A = 500k P v. B = 500k P v. C = 500k P v. D = 500k Can P file case against A only? Yes up to 500k only. Therefore 4 COA. Joint kkb Solidary 1 for all, all for 1 Quasi-delict can also be committed by the employer who is responsible in selection and supervision of his employee. Diligence in selection of employee is a defense. Quasi-delict can be brought against the driver. No contract of carriage between the driver. Driver = negligence in driving Employer = negligence in selection Joinder allowed because COA brought about by 1 incident Forum shopping -if violated, all cases dismisses litis pendentia (only 1 dismiss) or res judicata pending unlawful detainer, then file another case for colletion = splitting of coa dismiss one VENUE - nothing to do with jurisdiction. -where action is instituted -connotes authority or power of a court -if only issue is venue: ask if real or personal personal action issue is not real if no issue of title, ownership, possession even if involves RP (collection case, damages case) -where does the defendant reside? The plaintiff will choose where to file real action RuleIV (involve real property or interest in real property title, ownership, possession, partition, foreclosure of Rem (quieting of title, unlawful detainer, forcible entry) -where is the property? Regardless of where the defendant is -localized action (file in place where property is located) ex. Action for forcible entry P resident of plaridel bulacan D resident of San Miguel bulacan Property located in Malolos (file in malolos) Action for damages Personal action -can file in Plaridel or San Miguel, Plaintiff has a right of choice JURISDICTION MTC forcible entry and unlawful detainer regardless of amount Look at the nature of demand Ex.

Forcible entry case filed in San Pablo P San Pablo laguna Property Batangas city D Cavity city No problem of jurisdiction (MTC) But improper venue (must file in Batangas city) If dismissed because of improper venue can dismiss motu propio (a summary proceeding can dismiss outright) Lack of jurisdictiono of subject matter can dismiss motu propio Rule A court cannot dismiss motu propio if improper venue, venue is only for convenience of parties. Except Summary proceeding court has express authority to dismiss motu propio Venue is not jurisdictional in civil proceeding (venue is separate to jurisdiction) -venue even if proper is deemed waived if not objected to in motion to dismiss or in answer -there are defenses that cannot be waived even if not questioned: lack of jurisdiction over subject matter, litis pendentia, res judicata, prescription Rule IX Sec 1 -cannot dismiss motu proprio on ground of improper venue unless summary proceeding Venue is jurisdictional in criminal proceeding (ground for dismissal: lack of jurisdiction) Can venue be stipulated upon? Yes. Its procedural. Ex. Contract of services personal action P resident of Manila D resident of Quezon City

The contract has no stipulation on venue. shall be filed in Makati City -despite stipulation of Makati, can still file in normal place of venue because the venue Makati is not exclusively stipulated (manila, quezon city, makati) shall be filed only in Makati City -exclusive, can no longer file in quezon city and manila improper venue can be assailed: 1. affirmative defense 2. motion to dismiss otherwise, waived COA based on class suit Rule III Sec 12 Common or general interest in the subject matter If same series of transaction -> joinder If interest is clearly identifiable, no class suit Newsweek v. IAC Besmirched reputation -> damages Class suit SC: No class suit. Reputation of sugar planter is its alone, it doesnt share its reputation. example Class suit v. land grabber corporation No class suit. Only have common interest on the issue of land grabbing but no common interest on subject matter. Ones interest is only his own portion of land. Class suit coa belongs to class Derivative suit coa belongs to corporation but not filed so a bod stands up to file it Class suit for the barangay residents who got sick

because of toxic gas No class suit. No common or general interest on 1 persons ailment to another Airplane crashed in Agusan. Heirs filed suit against airline. No class suit your interest is only to your deceased relative. Oposa v. Factoran Subject matter: environment Class suit allowed: no specific identifiable interest to the environment There is common and general interest to the environment Fishermen affected in oil spillage in Guimaras No class suit. Income of one is his. No common or general interest. JURISDICTION Refer to an authority or power How conferred? By LAW Can a person be prevented from questioning defect in subject matter Yes. If court decided already, barred. How is jurisdiction determined? By allegations of the complaint Nature of coa determined by allegations of complaint Title of pleading does not determine coa or jurisdiction FE UD requisite: demand to vacate Example: Action to collect sum of money for unpaid rent Title collection

Allegation UD Filed in RTC Dismissed Should have been filed with MTC J Subject Matter -not procedural, come to substantive law not subject to waiver or stipulation General rule lack of jurisdiction on subject matter not waived and can question in any stage of proceeding even first time on appeal (because its a vital element on validity of judgment) Exception Estoppel J Plaintiff Acquired by filing case: duly filed: with payment of docket fee No jurisdiction on the P because he did not come to Philippines to file Wrong: Jurisdiction acquired by filing complaint in court. No rule that he must be personally present in court J Defendant Acquired by service of summon or voluntary appearance Rule XIV Action in rem not mandatory Action in personam mandatory Summon: Send only to comply to due process requirement, but not affect jurisdiction (jurisdiction over the property is what is important) -In rem

-Quasi in rem Filing answer with affirmative defenses and counterclaim is equivalent to service of summons = voluntary submit to jurisdiction of court If you were defendant and you feel that the court has no jurisdiction over your person Though served with summon, but its wrong Filed MTD and claimed: Prescription Noncompliance with statue of frauds Failure to state coa Barred by prior judgment Deny with invoked other grounds aside from lack jurisdiction over your person = voluntary appearance OLD RULE: Rule XIV Inclusion in MTD of other grounds aside form lack of jurisdiction over defendant is not deemed voluntary appearance special appearance - file MTD specifically to question jurisdiction over your person general appearance (voluntary submission to jurisdiction of court) - with additional ground ratio: how can court rule on other grounds if the court has no jurisdiction over you versus alternative defenses rule NEW RULE NOW if you add other grounds not construed as voluntary appearance Rule XIV Sec 20 (2) action in rem

directed to the whole world = to whom it may concern allowed: summon by application for notice for due process GUIDE Is there someone who is liable to you? in personam If none in rem Example: Action for annulment question the status (in rem) In REM >annulment of marriage res: status of defendant >cadastral or probate >cadastral proceeding in rem: focus is the land >probate in rem: focus is the estate >Status: in personam -action for recognition of child -child of a specific person >foreclosure of rem mortgage (quasi in rem) >attachment of property (quasi in rem) > unlawful detainer in personam: directed against a person issue is possession of real property: thus real action (venue is place where located) need jurisdiction over person of defendant >injunction >collection for money >damages >Action for injunction intention: restrain an action for the performance of an act in personam Acquire jurisditction sum of In PERSONAM >forcible entry in personam: want someone to leave

1.

resident a. service in person = Rule XIV Sec 6 (if no voluntary appearance) b. Substituted service = Rule XIV Sec 7

GR No summons by publication Exception (allowed publication even if in personam) 1. Rule XIV Sec 14 2. Rule XIV Sec 16 makes reference to Sec 15 (for in rem and quasi in rem) Unknown defendant -designate with fictitious name initially -how to summon? By publication -in any action Can summon by publication even if you know defendant? Yes if whereabouts unknown 2. non resident if does not voluntarily appear a. service in person while in the Philippines b. in rem summon by publication c. in personam no summon by publication our service of processes is territorial in nature no summon by publication remedy: action for collection of sum of money (in personam) attach -> transforms action to Quasi in rem there fore extra-territorial service of summons already permitted. deficiency > in personam (but no jurisdiction) If debtor went abroad already, how do you collect, assuming he mortgaged his land to you file foreclosure in rem

dont need jurisdiction over the person can summon by publication deficiency -> in personam Rule 68 Sec Obligation not fully extinguished until fully paid Therefore collect when he comes back Jose v. Buyon Action to compel D to execute document to facilitate transfer of ownership of land specific performance Specific performance in personam (LISTEN TO LECTURE) summon by publication abroad: embassy + registered mail to last known address collection personam need jurisdiction over non-resident D action for annulment in rem can summon for publication but for the action for damages in personam cannot summon for publication certification against forum shopping -did not follow text of sec 5 rule 7 -if dismissed -> appeal -sec 1 rule 41 matters which are not appealable order dismissing action without prejudice remedy: special civil action Rule 65 certiorari allege gad amounting to lack of jurisdiction if doesnt want to receive -> TENDER substituted service emergency cases only, cant find defendant how served: 1. resident also in their residence / office /

2. sufficient age 3. sufficient discretion exerted sufficient / honest to goodness effort to find D and impossible to find because substituted service is in derogation of regular service

MM MTC 400k Not included in computing jurisdictional amounts : DIALEC Damages Interests accrued as interpreted by the CA Attys fees Litigation expense and cost MTC could take ccognizance of special proceedings depending on value of the amount involved accion publiciana probate proceedings maritime / admiralty cadastral / land registration o by delegation o no controversy irrespective of value o with controversy o amount o decision appealable as if acting as an RTC BP 129 Sec 34 CA Writ of Habeas Corpus -MTC may take cognizance provided NO RTC judge is available -RTC, CA, SB, SC Writ of Amparo RTC, CA, SB, SC or any of its justices Real Actions: Title to, possession, any interest in real property 1. unlawful detainer - MTC 2. forcible entry MTC 3. accion reinvindicatoria (hilaro v. Salvador april 29, 2005) ownership involved 4. accion publiciana possession under circumstances no longer under FEUD due to lapse of 1 year (Quinagoran v. CA august 24,

J Issues J Res or thing January 11, 2009 Extra-territorial service of summons applies only to actions in rem and quasi in rem S15 R14 Purpose: to comply iwht requirements of due process and notice Modes of extra-territorial service S15 R14 1. personal service 2. summons by publication with registered mail at last known address 3. any manner the court deems sufficient -> discretion *no extra-territorial service of summons in actions in personam Jurisdiction over the subject matter Accion Publiciana depends on the amount / value of property involved Basic rule: amount of the claim Claims: Maritime Outside MM MTC 300k

2007) Vda de barrera v. heirs of legaspi (September 12, 2008) -depends on valud of property outside MM MTC 20k MM MTC 50k 5. Recovery of title / Cancellation of title / Quieting of title Heirs of Concha v. Lumukso Jr. (December 12, 2007) -real actions so look at assessed value too (no longer incapable of pecuniary estimation) because they also involve an interest in real property -ask: what does the plaintiff primarily want? 6. Partition an action for parition traditionally incapable of pecuniary estimation, depends on the value of RP and amount of the mortgage (if it involves partition of RP) because such action involves interest in RP Russel v. Vestil -incapable of pecuniary estimation because it involves a question of ones right as co-owner -won entitled to foreclosure of REM incapable of pecuniary estimation Expropriation incapable of pecuniary estimation Brgy San Roque v. Heirs of Pastor June 20, 2000 Q: Action for specific performance requiring defendant to execute a deed of conveyance involving property worth 19k A: specific performance incapable of pecuniary estimation -actual purpose of suit = acquire title to property -> real action, look at assessed value therefore no actual resolution yet certiorari / prohibition / mandamus

-could be filed at RTC (lowest court where action could be filed in) PARTIES -two basic kinds: Plaintiff / -does not always refer to the original (e.g. cross claim, counter claim, TPC, complaint in intervention) basic requirements for a person to be a party: 1. natural person art 44 2. juridical person 3. entity authorized by law to sue and be sued Entities authorized by law to sue and be sued: 1. corporation by estoppel (sec 21 Corpo Code) 2. partnership by estoppel 3. persons who transact business under a name by which they are generally or commonly known Sec 15 R3 -> can be SUED a. Individual members will be liable if they lose the case. In the answer, they must indicate their names b. They cant sue under the name by which they are generally or commonly be known Service of summons Sec 8 Rule 14 1. any of them 2. person in charge 3. place of business Definitions: 1. Real party in interest 2. Indispensable 3. Necessary parties Real party in interest -stands to be benefited or injured by the judgment or entitled to avails of suit Sec 2 R3 -in relation to CDA -> person whose right was violated / person who violated a right

e.g. Forcible entry issue is deprivation of possession therefore the lessee not the lessor / owner is the RPI since the formers interest in possession was deprived Damages: Intruder destroyed property lessor / owner is RPI therefore could file suit versus intruder or destroyer If suit is filed by a person not a RPI, the ground for dismissal is failure to state a COA Suppose plaintiff is neither a person no legal capacity to sue natural / juridical person / authorized by law to sue Petition for review on certiorari = appeal by certiorari Indispensable party Key words: No final determination of the case Necessary party / proper party Key words: No complete relief e.g. 1. P lent 2M joint to A/B P v. A B is a necessary party without him there can be no relief Explain why B wasnt included, otherwise will be considered a waiver of claim against B 2. P lent 2M solidary to A/B B neither necessary nor indispensable If an indispensable party is not impleaded, its not ground for dismissal of a suit. Judge has to order inclusion of indispensable party. If you did not obey, ground for dismissal is fault of plaintiff Non-joinder is not cause for dismissal S3 R17 Pamplona plantation case feb 2005

7.

NOTE: Remember contents Death of a party S15 R3 If a party dies during pendency of the case, atty-client relationship is automatically cut-off -counsels duty -court has knowledge: is the case one that survives the partys death? Suit wont continue Suit will continue Court will look for a substitute The heirs will not automatically be the substitute Order of substitution Acquires jurisdiction over the P -action to recover sum of money -action to recover real property -action for damages If no certification against forum shopping motion for dismissal + hearing Failure to comply is a ground for dismissal (without prejudice) Violations: Sec 5 (2) 1. failure to comply 2. submission of false certification / failure to comply with the undertaking (contents of the certification) indirect contempt (file a complaint for contempt) 3. willful and deliberate forum shopping direct contempt (summary dismissal) If did not attach certification, can complaint be amended? NO. amendment cannot cure the deficiency. Prayer: If asked for 1M, is it possible that you get 1.5M? Specific relief General relief Possible to get 1.5M if plaintiff shows proof and not objected to by defendant. (issue of 1.5M tried without your consent then it is as if the issue has been raised in the pleadings) pleading impliedly amended by failure to object during trial of the issue Amendment as a matter of right If filed complaint already, still have chance to amend pleading? Yes. You can amend your pleading as a matter of right and for whatever reason there might be, before responsive pleading has been served even if there is motion to dismiss already (MTD is not a responsive pleading its not a pleading, its simply a motion 2005 bar exam) There is order of dismissal, can still amend complaint

as a matter of right? Yes because not yet final, still have 15days to make a move. Amendment of complaint to correct errors of jurisdiction Rule If there has been responsive pleading, amendment is a matter of judicial discretion MTD for lack of jurisdiction (amount claimed is 250k but filed in RTC) -filed in wrong court -can plaintiff amend to 450k so as to fall within RTC jurisdiction -obligation and ministerial duty of court to receive amendment as a matter of right. If there is already an answer filed: court can only dismiss Can amend complaint impliedly? Matters and issues tried with consent of parties (no objection) -action for sum of money -failed to mention in complaint won there was demand -but showed evidence during trial -admitted without objection, as if in pleading dont have to amend pleading if already impliedly included swagman hotel failure to state coa in complaint, can be amended (presupposes existence od coa, just failed to allege / insufficient allegation) but absence of coa cannot amend while case pending the notes matured cannot amend, no coa when complaint filed implied amendment does not apply to complaint /

Legal separation

There is subsitution for actions that survived. No need for service of summons. Just order of substitution. Preparing the complaint Allege only matters concerned with ultimate facts S1 R8 Move to strike out of pleadings / court will conclude from the facts: Evidentiary facts are for the trial Conclusion need not be included Rule 7 Sec 5 Certification against forum shopping required in initiatory pleadings and permissive counter claim

information in crimpro in complaint or information must specify the qualifying and aggravating circumstances -if the qualifying circumstance is not alleged, even if proven during trial without objection, the judge has no authority in considering it in its decision if alleged treachery but not proven, instead another aggravating circumstance was proven, should not consider in the decision the proven another aggravating circumstance reason: must notify accused of the allegations against him so he can prepare his defense. DISMISSAL BY PLAINTIFF withdrawal Rule 17 If pleading has no response / - file notice of dismissal, the court will just issue an order Confirming the Dismissal Can refile withdrawn complaint? Yes, as long as when you gave notice of dismissal you said nothing = without prejudice to refilling (unless you indicated therein, without prejudice) 2nd dismissal = adjudication on the merits (2 dismissal rule) can no longer refile if there is already responsive pleading, and you want to dismiss = file Motion to Dismiss (judicial discretion) complaint -> answer with counterclaim -> dismissed complaint only -> counterclaim may continue (not automatically dismissed) Sec 2 Rule 17 Dismissal in relation to counterclaim Pinga v. Heirs of Santiago When dismissed complaint, no prejudice to continuation

of counterclaim (compulsory or not) June 30, 2006 1. 2. 3. Sec 2, Rule 17 Sec 3, Rule 17 Sec 6, Rule 16

Improper venue Statute of frauds did not use Failure to state a coa Prescription did not use Litis pendentia Summon -> answer

If you have MTD ground Can refile if ground for MTD is any of the following. Improper venue Lack jurisdiction Failure to state coa Can no longer refile complaint if ground for MTC is any of the following. Sec 5 Rule 16 Violation statute of fraud Barred by prior judgment / statute of limitations Extinguishment Presciripton Res judicata Filing MTD File MTD Covered by omnibus motion rule Sec 8 Rule 15 Mtd = omnibus motion -allege all ground. Otherwise deemed waived. Not file MTD All grounds for MTD in Rule 16 Sec 6 can still be used as affirmative defense Sec 5 Rule 8 Bill of particulars Cant intelligently prepare a responsive pleading, if complaint need particulars -strike out -file answer or MTD -Motion for declaration of defendant in default: if fails to answer complaint grounds of dismissal which bars refilling: 1. dismissed by res judicata - F 2. statute of limitations / prescriptions 3. payment 4. with prejudice -> appeal without prejudice -> certiorari -if ground for MTD improper venue: refile -lack jurisdiction: refile improper prescription refile Sec 5 Rule 16 likely to be asked in the bar Rule 14 Sec 11, 20, 8, 6, 7, 14, 15, 16 How serve summon to the corporation Rule now: Strict compliance (no longer substantial compliance) Villarosa case exclusive enumeration Serve to the President GM

Not waivable L jdxn Litis pendentia Res judicata SOL Sec 1 Rule 9

Managing Partner Corporate secretary Treasurer In-house counsel Types of fraud CC 1390 (2) Dolo causante CC 1338 DC CC 1330 DC 1344 (2) Dolo incidente LISTEN TO LECTURE Before the villarosa case: summon served to a draftsman of the company summon served to a customer service representative villarosa case: enumeration is exclusive doctrine of substantial compliance is now eroded by doctrine of strict compliance can foreign corporations be sued in the Philippines? Yes: if engaging in business in Philippines without a license No: if not engaged in business in Philippines wherein license not required Summons must be served 1. resident agent designated for the purpose 2. government official designated for the purpose 3. any of its officers or agents within the Philippines zachry corp v. ca if an agent is named, should serve upon agent only if not appear in trial to present evidence = waiver to present evidence to his favor if not appear in pre-trial = may allow plaintiff to present

evidence ex parte default even if already filed answer -rule12 court may strike out answer (as if no answer) -> plaintiff moves to declare D in default if in case P asks for Bill of Particulars and D refuses to comply POSSIBILITIES OF DEFAULT EVEN IF ANSWERS ALREADY FILED Rule29 Sec3c Default for refusal to comply with modes of discovery -strike out pleading -stay proceeding until obeyed -dismiss action or any proceeding -judgment by default Now D is entitled to notice of motion for him to be declared in default (not ex parte) -entitled to notice of subsequent proceedings failed to file answer within reglementary period -Sec 3 Rule 9 need a motion to declare him in default + notice -court cannot declare default motu propio effect of declaration of default? Lose standing in court Can no longer participate in proceeding as party But entitled to notices of subsequent proceedings Can he still appear in proceedings? As a party NO As a witness of co-defendant - YES If order of default already issued, may the court immediately render judgment in favor of P or should require P to present evidence? Sec 3 Rule 9

Court options: court may outrightly render judgment or may require P to present his evidence. Specific denial Materially allegation not specifically denied are deemed admitted except unliquidated damages (?) Sec11 rule8 How do you regain standing in court as defendant? Before judgment motion under oath to set aside the order of default (motion to lift the order of default) Affidavit of merit Mere explanation of failure to answer + allege a meritorious defense to seek reversal of default remedies depend on stage Sec 3d Rule 9 Judgment to party in default -no exceed in amount or to the kind prayed for no default / no judgment on pleading declaration of nullity legal separation annulment of marriage judicial admission -admission on pleading / pre-trial / during a court view move of plaintiff -for judgment -basis: pleadings Rule 34 Unliquidated damages need to prove Sec 11 Rule 8 Compulsory cc invoke in same action, otherwise barred Accion reinvindicatoria

Recover possession based on right of ownership Check assessed value Hilario v. salvador Responsive pleading -is filing a reply mandatory? complaint: have material allegations -defendant failed to specify deny allegations -Sec10 Rule6 if failed to file answer, allegations deemed denied. When file reply? Otherwise deemed to have accepted the answer If answer alleges by way of defense an actionable document: LISTEN TO LECTURE Compulsory counterclaim Intimately connected to the claim COUNTERCLAIM Compulsory CC Invoke in same action, otherwise barred Not initiatory, no docket fee Does not need Certification against forum shopping If D invokes, P does not need to answer Permissive CC Initiatory, pay docket fee Attach Certification against forum shopping If D invokes, P must answer

Sec3 Rule 17 Rule before, if P does not file motion to set case for pretrial after some time, this is a basis for dismissal. Notify for pre-trial Counsel only Notice to the counsel is notice to the client Purposes: >Admissions / stipulations of facts >Compromise / amicable settlement (not a purpose in criminal pre-trial because criminal liability is not a subject of compromise = implied admission -> can only compromise the civil aspect) BAR potential question: reservation of civil action LISTEN TO LECTURE Appearance in pre-trial P necessary D designate special representative (need SPA) Consequence of absence P dismiss case D P allowed to present evidence ex parte Effects of non-appearance may apply even if youre present If you fail to serve and file a pre-trial brief Sec 6 Rule 18 During pre-trial can avail modes of discovery Examples of modes of discovery Rule 25 written interrogatories Send written interrogatories so you can later call on the other party as adverse witness wherein you can ask leading questions

Sec 6 consequence Sec 5 entry of default if not answered (rule 29?) Rule 26 written request for admission So you can later give proof on the matter within the adverse partys knowledge Sec 2 implied admission if your question is not answered Sec 5 consequence TRIAL Indispensable in judicial proceeding? NO Can there be a judgment on the merits even without a trial? YES Parties can agree to dispense with evidence. S6 R13 If D pleads payment: court will ask him to present evidence of payment When P rests case? BOP: Rule 131 Duty of a party P with respect to his claim D with respect to his defense Can file Demurrer to evidence (under the law and facts, the P is not entitled to the relief = insufficient evidence / lack coa / no coa / absence of coa) When a demurrer to evidence is denied, the D may present his evidence. If demurrer is granted, case is dismissed, P can appeal. If reversed on appeal, the D loses right to present evidence. Demurrer to evidence in crim 1. with leave of court a. denied can still present evidence 2. without leave of court a. denied cannot present evidence

PRE-TRIAL P files motion ex parte to set the case for Pre-trial Has only 5 days to file, otherwise the branch COC sets case for pre-trial

10

Demurrer to evidence in civ -leave of court not required -not a simple dismissal, it operates as acquittal JUDGMENT Not necessarily immediately executory upon rendition Sec2 Deemed date of entry of judgment April 1 judgment received 15days to appeal April 17 judgment becomes final and executory and ready for entry (lapse of period of appeal with no party making a move) April 30 actual entry of dispositive portion and certified by COC Judgment non pro tonc Judgment sine perjuicio Legislative facts Adjudicative facts Petition for relief when judgment is already final and executory Decision: excessive damages: remedy: appeal (error of judgment / MR / MNT) same period of filing appeal MR Insufficient evidence (also grounds for appeal) MNT Newly discovered evidence could not have been found during proceedings that could alter result of case (not requisites of appeal) Pro forma motion motion in form only, not substance

cause does not comply Specify portions of judgment attacked Neypes v. ca If you file MR / MNT and same is denied. From receipt of notice of denial and get 15days fresh start. Appeal from judgment itself S9 R37 (not the order) Certiorari 60days Rule 65 Rule 41 Sec2 (2) Period of appeal interrupted by timely filing Rule 40 Sec 2 Can you appeal on order denying MR / MNT? NO. APPEALS MTC -> CA Cadastral and land registration case BP129 S34 MTC -> RTC File Notice of appeal to court of origin + pay appeal docket fee MTC -> CA Acting as RTC taking cognizance of delegated jurisdiction RTC -> CA Rule 41 Ordinary appeal RTC -> CA Rule 42 Petition for review RTC -> CA Rule 45

Old name - Petition for review on certiorari New name - Appeal to SC on certiorari Example Action for forcible entry was filed in MTC Lost in MTC How to appeal? Go to RTC NOA + pay docket fee in MTC Go to CA Rule 42 PFR (RTC rendered judgment in exercise of appellate jurisdiction) Example Collection for sum of money 3M file in RTC RTC -> CA Rule 41 RTC exercised original jurisdiction NOA + docket fee Example Unlawful detainer in MTC MTC -> RTC NOA + docket fee Ground expiration of lease: Question of law: RTC -> CA PFR (RTC judgment in exercise of appellate jurisdiction) RTC -> SC (if RTC judgment in exercise of original jurisdiction) PFR on certiorari from RTC to SC will only apply if you are raising question of law attacking decision of RTC rendered in its original jurisdiction Bar 2006 NLRC -> CA Rule 65 St. Martin Funeral Homes v. NLRC Example Ombudsman -> CA / SC Administrative case -> CA PFR under Rule 43 (decision from administrative or quasi-judicial Criminal case -> SC Rule 65 gad (determination of pc)

11

RA 9282 CTA by division -> CTA en banc MR / MNT / etc -> SC Rule 45 certiorari (same rank CTA and CA) CSC -> CA Rule 43 PFR (independent constitutional body) Comelec -> SC Rule 65 (according to Rule 64 30days) COA -> SC Rule 65 (according to Rule 64) Original Rule 65 Against any tribunal, board or officer 60days Can you go to SC directly from MTC? General rule, NO, go through RTC Exception, if MTC decides on land and cadastral case to raise pure question of law go up direct to SC BAR question MTC filed motion to dismiss (lack jurisdiction) Without prejudice -> general rule, not appealable Exception: Rule 40 Sec 8 But could refile to court of proper jurisdiction and then appeal with RTC Rule 41

12