CIVPRO Midterm Draft.

Butch

Rule 12: Bill of Particulars WHAT

IS A BILL OF PARTICULARS?

Rule 19: Intervention WHAT INTERVENTION WHO

INTERVENE? IS

PURPOSE

A more definite statement of any matter which is NOT averred with sufficient definiteness or particularity. It becomes part of the pleading to which it is intended. When a pleading is couched in general/vague terms, file for a BoP To enable the opposing party to properly prepare his responsive pleading Virata v. Sandiganbayan: Function is to limit a pleading, specify more particularly a claim or defense set up in general terms, give information to the opposite party and the court as to the precise nature, character, scope and extent of the cause of action. Before responding to a pleading, a party may move for a bill of particulars Clerk will bring it to the attention of the court and court has three options: 1. Grant 2. Deny 3. Allow the parties an opportunity to be heard 1. The court may order the striking out of the pleading or the portions thereof to which the order was directed 2. Make another order as it may deem just After service of the BoP or after notice of denial of his motion, The moving party (party who asked for BoP) may file his responsive pleading within the period to which he was entitled at the time of filing his motion which shall be at least 5 days at any event This is a motion so it requires notice of hearing with proof of service to the other party

MAY

M-S-B-A

WHEN EFFECT

FILED

REQUIREMENTS
ALLOWED:

FOR

It is an act or proceeding by which a third person is permitted to become a party to an action or proceeding between other persons. Its purpose is to determine all conflicting claims regards all the parties involved. 1. One who has a legal interest in the matter of litigation 2. One who has legal interest in the success of either of the parties 3. One who has an interest against both parties 4. One who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof Saw v. CA: Legal interest of the movant in the SM of litigation or otherwise qualified (basically, LEGAL INTEREST) 2. Court must give consideration as to whether: 3. the adjudication of the rights of the original parties may be: a. delayed or prejudiced, or b. whether intervenors rights may be protected in a separated proceeding or not Intervention is discretionary upon the court for an intervening party requires the leave of court.
1.

INTERVENTION TO BE

WHEN FILED

EFFECT

OF NON-

COMPLIANCE

INTERRUPTING
EFFECT

MANDATORY

OR

DISCRETIONARY?

PLEADINGS FILED: WHEN

TO

BE

NOTICE
HEARING

AND

REQUIREMENTS:

FILED:

Intervention can only be remedied by mandamus if the denial was due to GADLEJ 1. Complaint-in-intervention: If he asserts a claim against either or all of the original parties 2. Answer-in-intervention: If he unites with the defending party in resisting a claim against the plaintiff Motion to intervene must be filed BEFORE trial court renders judgment

Doctrines:
1.

Doctrines: 1. Saw v. CA and Metropolitan Bank v. Presiding Judge a. General Rule: Intervention is just an ancillary and supplemental one which, in the nature of things, unless otherwise provided by law, is subordinate to the main action. (Basically, if the main action is dismissed, complaint-in-intervention is dismissed) b. Exception: If the original action is dismissed and it had not affected the rights of intervenor, the intervenors petition showing it to be entitled to affirmative relief will be preserved.
1

Virata v. Sandiganbayan: a. It is not the office of a BoP to supply material allegations necessary to the validity of the pleading, or to change a cause of action or defense stated in the pleading, or to state a new cause of action

CIVPRO Midterm Draft. Butch ON WHOM SUMMONS SERVED Normal persondefendant (and generally) Entity without juridical personality, when sued in the name they are generally/commonly known: 1. 2. 3. SPECIFICALLY 1. 2. 3. Any one of the associated persons All of the associated persons Person in charge of the office 1. 2. HOW IT IS SERVED Personal service Substituted service Publication (with leave of court) Personal service Substituted service

Rule 14: Summons WHAT

SUMMONS? IS

WHO

ISSUES

THE

SUMMONS?

PURPOSE
SUMMONS

OF

CONTENTS SUMMONS

OF

WHO
SUMMONS

SERVES

EFFECT

OF

DEFECTIVE SUMMONS

It is a writ directed to a defendant, notifying him of the civil complaint filed against him. The clerk of court issues the summons upon the filing of the complaint and the payment of fees To acquire JURISDICTION over the person of the defendant 1. Name of the court and names of parties to the action 2. A direction that the defendant should answer within the time fixed 3. A notice that unless defendant answers, he shall be declared in default 1. The sheriff 2. Sheriffs deputy 3. Other proper court officer: bailiff, subpoena server, warrant officer 4. Any other suitable person authorized by the court Defendant can file a motion to dismiss on the ground of lack of jurisdiction over his person If defendant voluntarily appears, it shall be equivalent to service of summons. HOWEVER, the inclusion in a MTD of other grounds aside from lack of jurisdiction shall not be deemed voluntary appearance

Domestic private juridical entity

1. 2. 3. 4. 5. 6.

President Managing Partner General manager Corporate Secretary Treasurer In-house counsel

BUT: such service shall not individually bind any person whose connection with the entity has, upon due notice, been severed before the action was brought 1. Personal service to any one of them 2. Substituted service

Foreign private juridical entity

1. 2. 3.

EFFECT VOLUNTARY APPEARANCE

OF

Public Corporation

1. 2. 3.

Modes of Service PERSONAL SUBSTITUTED

1. Personally handing a copy to the defendant in person 2. If he refuses, by tendering it to him If, for justifiable reasons, the defendant cannot be served, it can be effected by: 1. 2. Leaving a copy of the summons at defendants residence with some person of suitable age and discretion residing therein Leaving copies at defendants office or regular place of business with some competent person in charge

Minors Insane, incompetent Prisoners

1. 1. 1.

Resident Agent If none, on the government official designated by law Any of its officers/agents within the Philippines Solgen If province, city, municipality: Executive Head Other officers as law/court may direct Upon the minor AND his guardian/parent Upon the insane and his legal guardian Upon the officer having management of the jail who is deemed deputized

1. 2.

Personal service Substituted service

1. 2.

Personal service Substituted service

1. 2. 1. 2. 1. 2.

Personal Substituted Personal Substituted Personal Substitute

PUBLICATION EXTRATERRITORIAL

See Sec 14 See Sec 15: Not allowed in personal actions

Unknown defendant: If his identity and location CANNOT be ascertained with

1.

Publication in a newspaper or in such places as the court may order

2

CIVPRO Midterm Draft. Butch

diligent inquiry Resident temporarily out the country

1. 1. of 2. 3. Extra-territorial service with leave of court Substituted service with leave of court Service by publication with leave of court (with order sent to the last known address of defendant) Any other manner court deems proper Extra-territorial service with leave of court Substituted service with leave of court Service by publication with leave of court (with order sent to the last known address of defendant) Any other manner court deems proper

Valmonte v. CA: a. If the action is in rem or quasi in rem, jurisdiction over the person of
the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a nonresident and he is not found in the country, summons may be served exterritorially in accordance with Sec 15 b. In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines or the property litigated or attached. c. Service of summons in the manner provided in Sec 15 is not for the purpose of vesting it with jurisdiction but for complying with the requirements of fair play or due process, so that he will be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of the plaintiff and he can thereby take steps to protect his interest if he is so minded. Cezar v. Ricafort-Bautista and Lhullier v British Airways: a. General Rule: Appearance cures defective summons: A voluntary

4. Non-resident: Requirements: QUASI in REM and IN REM actions Does not reside/not found in the Philippines The action affects personal status of the plaintiff OR The subject of the action is property in the Philippines where defendant has interest and plaintiff seeks to include him OR Properties defendant attached of were 1. 2. 3.

2.

3.

4.

4.

appearance is a waiver of the necessity of summons. Exception: If a defendant appears and questions the courts jurisdiction, it is not considered a voluntary appearance Montefalcon v. Vasquez: a. For residents temporarily out of the country, the primary mode is substituted service. Valmonte v. CA: a. When it comes to non-residents who are not found in the Philippines and the action is in-rem/quasi-in-rem, service must be made extra-territorially b. Problem: A is in the US and resides there. B sues A for partition (real action) To properly serve A, the three methods as provided for in Sec 15 have to be used and they all have to be done OUTSIDE the country: i. Personal service, with leave of court ii. Publication in newspaper of GC with copy of the summons/order of the court to be sent by registered mail to the last known address of defendant iii. Any other manner which the court deems sufficient (i.e. by service through the Phil Embassy in the foreign country where the defendant resides)
b.

Doctrines:
3

CIVPRO Midterm Draft. Butch

Rule 15: Motions WHAT

MOTION? IS A

Doctrines: It is an application for relief other than by a pleading In writing Except: those made in open court/course of trial 1. Relief sought to be obtained 2. Grounds relied upon 3. Supporting affidavits and other papers if required by the rules or necessary to prove alleged facts General Rule: every written motion shall be set for hearing by the applicant Exception: Motions which the court may act upon without prejudicing the rights of the adverse party Victory Liner v. Malinianas: 1. 2. Generally written Relief must be stated 3. Notice of hearing (a date must have been set) to be addressed to ALL parties concerned 4. Proof of service required A motion attacking a pleading, order, judgment or proceeding (POJP) shall include ALL objections then available, and all objections not included shall be deemed waived Exception: (Rule 9 Sec 1) Defenses and objections not pleaded either in a motion to dismiss OR in an answer are deemed waived However, the court will DISMISS the claim when it appears from the pleadings or on evidence on record of these situations: a. No jurisdiction over SM b. Litis Pendentia c. Res Judicata d. Prescription GR: All motions shall be schedules for hearing on Friday afternoons Ex: If Friday is a non-working day, in the afternoon of the next working day
1.

Compare and contrast Victory Liner, Lanto and Vlason Lanto In this case, A contested a resolution abolishing his position. He went to court. The members of the board (who issued the resolution) filed a motion to dismiss and set the hearing for the motion. A was unable to attend the hearing but he was able to file his written opposition to the motion to dismiss. The judge granted the MTD, BUT took into consideration As arguments in his written opposition. EX: When the adverse party had an opportunity to oppose, notice of hearing is unnecessary. Vlason Vlason was not informed of any cause of action against it and it was NOT validly summoned. Despite of that, Vlason was ordered to be liable in the case. Vlason filed an MR but it was dismissed for lack of notice of time and date of hearing.

FORM CONTENTS

NOTICE
HEARING REQUIREMENTS:

AND

Victory Liner In this case, the losing party filed a motion for reconsideration but did not set the date for hearing in the motion. The MR was dismissed and it was deemed not have tolled the period for appeal.

REQUISITES:

WHAT

IS

AN

OMNIBUS MOTION?

GR: A motion without a notice of hearing (with a time and date set) is useless

EX: When a rigid application would result into miscarriage of justice/manifest injustice

MOTION

DAY

Reason why motion must set the time and place for hearing: Unless the movant sets the time and place of hearing, the court will be unable to determine whether the adverse party agrees or objects to the motion and if he objects, to hear him on his objection, since the rules themselves DO NOT fix any period within which he may file his reply/opposition (to a motion

The SC ruled that the essence of requiring a hearing for a motion is DUE PROCESS. In this case, A was able to file his written opposition and the order of dismissal took into consideration his arguments.

CIVPRO Midterm Draft. Butch

Rule 16: Motion to dismiss (Before answer) WHEN IS MTD FILED? WHO FILES MTD? GROUNDS MTD J2VC-LRCEUC
THE

Within the time for but BEFORE filing the answer to the complaint or to the pleading asserting a claim *Note: Defendant given 15 days to answer The defendant Court has no jurisdiction over the PERSON of the defending party 2. Court has no jurisdiction over the SM 3. Improper venue 4. Plaintiff has no legal capacity to sue 5. There is another action pending between the same parties for the same cause (litis pendentia) 6. That the cause of action is barred by a prior judgment or by statute of limitations (res judicata+prescription) 7. That the pleading asserting the claim states no cause of action 8. That the claim/demand of plaintiff has been paid, waived, abandoned or extinguished 9. That the claim is unenforceable 10. A condition precedent has not been complied with At the hearing of the motion, parties shall submit their arguments and evidence on the questions of law and fact involved.
1.

WHAT
PLEADING ORDERED

IF TO

THE IS BE

AMENDED?

until Jan 16. If he files his MTD on Jan 15, he would have until Jan 21. (All assuming these are weekdays) He shall file his answer within 15 days counted from service of the amended pleading unless the court provides a longer period A MTD based on: a. b. c. Res Judicata/Prescription Extinguishment of claim Unenforceability

WHAT
EFFECT

IS

THE OF

THIS

DISMISSAL?

FOR

CAN
BE

THE GROUNDS PLEADED AS

AFFIRMATIVE DEFENSES?

Will bar the refilling of the same action or claim. However, this is still subject to the right of the plaintiff/claiming party to appeal. Affirmative Defense: Allegation of a new matter, which, while hypothetically admitting the material allegations of the pleading, would nevertheless prevent or bar recovery by him. YES. If no MTD has been filed, any of the grounds provided for may be pleaded as an affirmative defense in the answer AND in the DISCRETION of the court, a preliminary hearing may be had thereon as if a MTD has been filed. However, the dismissal of the complaint under this section (Sec 6: pleading grounds as affirmative defenses) shall be without prejudice to the prosecution in the same or separate action of a PERMISSIVE counterclaim pleaded in the action (because mandatory counterclaims are generally constrained to the main action) NO. Preliminary hearing when MTD grounds are pleaded as affirmative defense is DISCRETIONARY upon the court. Further, it was held in Municipality of Binan v. CA, that a preliminary hearing when the affirmative defense is failure to state cause of action is NOT necessary because the courts only have to look at the allegations in the complaint anyway (no need to hear the parties when the court has to look at the complaint anyway) If MTD is GRANTED: Plaintiff may appeal/MR Re-file the case If MTD is DENIED: File an answer, go to trial, reiterate issues on appeal If RTC committed GADLEJ, petition for certiorari under rule 65
5

HEARING

HOW

IS

MOTION

RESOLVED?

If the case goes to trial, the evidence presented during the hearing = part of the evidence of the party presenting the same 1. Court will DISMISS the action or claim (grant MTD) 2. Court will DENY the motion 3. Court will ORDER amendment of the pleading (of the plaintiff) All with reasons. The movant shall file his answer within the balance of the period to which he was entitled at the time of serving his motion. However, this shall be at least 5 days in any event, computed from his receipt of the notice of denial. Example: A filed a complaint against B on Jan 5. B was served Jan 10. Normally, he would have until Jan 16 to file his answer. If he files his MTD on Jan 11, he would still have

IS PRELIMINARY HEARING MANDATORY?

IF

MTD DENIED,

IS WHAT

WILL MOVANT DO?

REMEDIES REGARDS MTD

AS THE

CIVPRO Midterm Draft. Butch

Case Doctrines: 1. Boticano v. Chu a. A party cannot question jurisdiction over his person for the first time on appeal b. Instances considered as voluntary appearance: filing a notice of appeal, appearing in person in the hearing, filing notice of appeal, appeal bond, motion for extension to file record on appeal Del Rosario v. Far East Bank and Trust: ELEMENTS OF RES JUDICATA: a. Final former judgment b. Court which rendered judgment had jurisdiction c. Judgment must be on the merits d. There must be identity of parties, SM and causes of action Halimao v. Villanueva: Defendant filed a motion to dismiss based on res judicata. Plaintiff argues that this operates as a hypothetical admission of the alleged facts. VS. Tan v. CA a. SC ruled that if the ground for motion to dismiss is RJ, it does not operate as a hypothetical admission of the alleged facts. b. General Rule: A MTD based on lack of cause of action operates as a hypothetical admission of all the facts alleged in the complaint (Basically saying, fine, even if all that is true, you still dont have a cause of action) i. In this case, the hypothetical admission is limited to the facts alleged in the complaint. From there, the court will determine if there is a cause of action. c. Exception: The court should not be constrained to the consideration of facts alleged in the complaint and inferences fairly deducible therefrom. Courts may consider facts within the range of judicial notice and other relevant laws and jurisprudence, along with examining records/documents incorporated in the complaint. Asia Production v. Pano a. SoF applies only to executory contracts and in actions for their specific performance. It does NOT apply to actions which are neither for violation of a contract nor for the performance thereof. Sunville Timber v. Abad: a. Non-observance of exhaustion of administrative remedies can be a ground to dismiss (because it results into a lack of cause of action) b. Examples of non-compliance with condition precedents: i. Conciliation proceedings in the barangay level ii. Suits between members of the family and no earnest efforts for compromise were sought

2.

3.

4.

5.

CIVPRO Midterm Draft. Butch

Rule 17: Dismissal of actions (Dismissal due to plaintiff) UNDER RULE 17, APPLICATION
COUNTERCLAIMS, CROSS-CLAIMS THIRD COMPLAINT OR PARTY WHO

HOW

IS IT DONE?

Motion filed by: Defendant By the Court 1. Failure of the plaintiff to appear on the date of the presentation of his evidence in chief 2. Failure of the plaintiff to prosecute his action for an unreasonable length of time 3. Failure of the plaintiff to comply with Rules of Court (failure to comply with discovery rules r24-29 or failure to appear at pre-trial) 4. Failure of the plaintiff to comply with any order of the court Without prejudice to the right of the defendant to prosecute his counterclaim in the same/separate action GR: It is with prejudice of refilling because it has the effect of an adjudication upon the merits EX: If the court declares that it is not *Also important in determining existence of the second element of RJ 1. Motion for reconsideration (for reinstatement/dismissal be made w/o prejudice) 2. Ko v. PNB: If denied, ordinary appeal under rule 41 (not under rule 45) 3. If judgment final, a petition for relief from judgment due to FAME under rule 38 1. 2.

This time, its the plaintiff The provisions of this rule apply to the dismissal of any counterclaim, cross-claim or any third party complaint. A voluntary dismissal by the claimant by notice shall be made BEFOE a responsive pleading/motion for summary judgment is served OR if there is none, before the introduction of evidence at the trial or hearing GROUNDS MOTION?
FOR THE

CAUSES THE DISMISSAL? TO

(A-P-R-O)

First Method (R17 S1): Upon notice by plaintiff EFFECT HOW

IS IT DONE? MUST IT BE OF

DISMISSAL

WHEN DONE? EFFECT

NOTICE

OF

FILING

IS
OR

THE DISMISSAL WITH WITHOUT

PREJUDICE?

By filing a notice of dismissal before the court. This is a MATTER of RIGHT. No ground needed. Before the service of the answer (on the plaintiff) Before service of motion for summary judgment Upon filing of the notice, the court shall issue an ORDER confirming the dismissal. Court has no discretion. GR: It is a dismissal without prejudice EX: With prejudice ONLY if stated EX: Two-dismissal rule: If the plaintiff already filed a notice concerning an action based on or including the same claim, the SECOND FILING OF THE NOTICE operates as an adjudication upon the merits *Two-dismissal rule is IMPORTANT as it fulfills the second element of Res Judicata!

IS
OR

THE DISMISSAL WITH WITHOUT

PREJUDICE?

REMEDIES
THIS

OF PLAINTIFF AND WITH

IF DISMISSAL IS UNDER RULE PREJUDICE

CD:
1.

Second Method (R17 S2): Upon motion of the plaintiff HOW IS IT DONE? WHEN MUST IT DONE? EFFECT OF MOTION WHAT
PLEADS COUNTERCLAIM IF

BE

DEFENDANT A HE IS

Motion to dismiss filed by the plaintiff + Court approval After service of the answer After service of motion for summary judgment If granted, GR: Without prejudice to refiling, EX: When specified that it is with prejudice The dismissal shall only be limited to the complaint.

2.

The defendant can still prosecute his separate claim in a separate action UNLESS within 15 day from notice of the SERVED NOTICE OF motion, he manifests his preference to have his PLAINTIFFS MTD? counterclaim resolved in the same action WHAT ABOUT CLASS A class suit shall not be dismissed/compromised w/o SUITS approval of the court Third Method (R17 S3): Dismissal due to plaintiffs fault BEFORE

Cruz v. CA: If the lower court orders dismissal due to the fault of the plaintiff and does not qualify it, it has the effect of adjudication on the merits. The dismissal will operate as fulfillment of the second element of res judicata Pinga v. Heirs of Santiago: Plaintiffs filed a case. Defendant had a counterclaim. The case was dismissed due to the plaintiffs fault. a. In this case, defendant can still prosecute his counterclaim even after the dismissal of the main case. This is of course with the condition that the counterclaim is with merit or suffers any jurisdictional flaws (otherwise, court can dismiss it on these defects) b. It does not matter whether it be a permissive or a mandatory counterclaim.

CIVPRO Midterm Draft. Butch

Rule 9 Sec 3: Law on Default WHO

MAY BE DECLARED

IN DEFAULT ?

WHEN
DEFENDANT

MAY

A BE

DECLARED IN DEFAULT ?

WHAT
PROCEDURE?

IS

THE

*court cannot motu proprio declare party in default

WHAT

IS

THE

EFFECT

OF ORDER IN DEFAULT ?

WHAT

IS

THE

EFFECT

OF PARTIAL DEFAULT?

WHAT
LIMITATION

IS ON

THE THE

The defending party: original defending party, defendant in counterclaim, the cross-defendant, the 3rd/4th/etc party defendant 1. If he fails to file an answer (within the time allowed) 2. If he files to furnish a copy of the answer 3. If he fails to appear at a pre-trial 4. If he fails to comply with modes of discovery 1. Claiming party files a motion to declare the defending party in default 2. Defending party must be given notice of the motion 3. At the hearing, claiming party must show WHY the defending party is in default (in this rule, prove that defendant FAILED to answer) 4. Court will issue the order of default 5. Court will render judgment by default granting the claimant such relief his pleading may warrant UNLESS the court requires the claimant to submit evidence 1. Defaulted party still entitled to notice of subsequent proceedings 2. Defaulted party CANNOT present evidence 3. Defaulted party LOSES right to be heard When a pleading asserting a claim states a common cause of action against several defending parties, and some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment based on the evidence presented A judgment in default shall not exceed the amount or be different in kind from that prayed for. It can also not award liquidated damages. In an action for annulment, declaration of nullity or legal separation: Instead, prosecuting attorney will check if there is collusion and if none, will intervene

REMEDIES of DEFAULTED PARTY Rule 9 Sec 3(b): At any time AFTER notice of default and BEFORE Motion to set aside judgment, he may file a motion to set aside the order of default with the showing of two grounds: 1. His failure to answer was due to FAME 2. He has a meritorious defense Rule 40-41: Appeal Before finality, by filing a notice of appeal from the MTC to the RTC and Appeal from Rule 37: Motion for After judgment BUT before finality, he may file an MR or reconsideration or for new trial upon showing of FAME new trial Rule 38: Petition After finality of judgment, if defaulted defendant for relief from discovered the default, he may file a petition for relief judgments, orders other proceedings Rule 47: When new trial, appeal and petition for relief or other Annulment of appropriate remedies are not available through no fault judgments or final of the defaulted party, he may file for annulment of the orders and order of default based only on: resolutions 1. Extrinsic fraud (Fraud that couldnt have been discovered in trial and which prevented defaulted party from participating) 2. Lack of jurisdiction of the court Default Judgment This is used by the court, on motion of the plaintiff, for failure of the party to file a responsive pleading on time Order of Default Issued by the court after the defending party has been declared in default, or after the evidence of the claimant has been received ex parte if required by the court

RELIEF GRANTED?

1.

WHEN

IS DEFAULT NOT

ALLOWED

2.

3.

Gajudo v. Traders Royal: a. Just because the opposing party was declared in default, it doesnt mean that the plaintiff will automatically win. The burden of proof falls upon him to substantiate his claim in his pleadings with evidence (preponderance) Vlason: No order of default against a party, no default judgment allowed against that party a. The court CANNOT render a default judgment against a party who was not declared in default in the first place. The presentation of evidence ex-parte against this party is INVALID. Martinez v. Republic a. Even though it is not expressly provided for in the RoC, a party declared in default can still appeal the default judgment against it
8

CIVPRO Midterm Draft. Butch 4.

Jao & Co and Indiana Aerospace University: a. GR: Default judgment is an adjudication on the merits and is thus appealable/mr. Rule 65 is not the appropriate remedy b. EX: Purely legal issues, public interest, extreme urgency, special circumstances