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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 4 Main Divisions of Remedial


Law:
PRELIMINARIES
1. Civil Procedure (Rules 1-71)
Remedial Law 2. Special Proceedings (Rules 72-109)
3. Criminal Procedure (R110-R127)
Branch of law which prescribes the 4. Rules on Evidence (Rules 128-134)
method of enforcing the rights or
obtaining redress for their
invasions
What are the sources of Remedial
Law?

Remedial Law vs Substantive Law 1. 1987 Constitution


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

Prospective in Governs rights and


application transactions which Differentiate: Civil Actions, Special
took place Proceedings, Criminal Actions
(retroactive)
Special Criminal Civil
Cannot be enacted SC is expressly
Proceedin Procedure Action
by SC empowered to
gs
promulgate
procedural rules A remedy The State A party
by which a prosecutes sues
party seeks a person another for
to establish for an act the
a status, a or omission enforceme
right, or a punishable nt or
particular by law protection
fact (Rule 1 (Rule 1 of a right,
S3c) S3b) or the
prevention
or redress

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

of a wrong petition complaint complaint,


(but filed in or, in some
A court by special civil
proceeding Information actions, by
wherein a A civil
) petition
person is action may
prosecuted be ordinary Except Based on Based on a
by the or special. Habeas an act or cause of
State for (R1 S3a) Corpus, omission action
acts or NOT based punishable
omissions on a cause by law
committed of action
in violation
of penal
laws, and
to impose
the
correspondi
ng penalty
provided
CONSTITUTIONAL PROVISIONS
for by
Relating to CIVIL PROCEDURE
penal laws

Governed Governed Both are A8 S1


by special by the governed
Judicial Power shall be vested in one
rules, and Revised by the
Supreme Court and in such lower courts as
in the Rules of Rules for
may be established by law.
absence of Criminal ordinary
special Procedure civil Judicial Power includes the duty of the
provisions, actions, courts of justice to settle actual
the rules subject to controversies involving rights which are
provided specific legally demandable and enforceable, and
for in rules to determine whether or not there is grave
ordinary prescribed abuse of discretion amounting to lack or
civil for a excess of jurisdiction on the part of any
actions special civil branch or instrumentality of the
shall be, as action (R1 government.
far as S3a)
practicable
, apply
suppletory What are those other Courts as may
(R72 S2) be established by Law?

May Involves Involves 2 Sandiganbayan


Family Courts (RA 8369)
involve the State or more
Court of Tax Appeals
only one against the parties Sharia Court
party accused

Initiated by Initiated by Initiated by

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

A3 S1

No person shall be deprived of life, liberty, A7 S18


or property without due process of law,
nor shall any person be denied the equal The Supreme Court may review, in an
protection of the laws. appropriate proceeding filed by any
citizen, the sufficiency of the factual basis
of the proclamation of martial law or the
suspension of the privilege of the writ or
A3 S9(Basis of Rule 67) the extension thereof, and must
promulgate its decision thereon within 30
Private property shall not be taken for
days from its filing.
public use without payment of just
compensation

A8 S5 P2(Basis of Rule 56)

A6 S30 - Review
- Revise
No law shall be passed increasing the - Reverse
appellate jurisdiction of the SC as provided - Modify
in this Constitution without its advice and - Affirm
concurrence. o On appeal or certiorari, as
the law or the Rules of Court
may provide, final
judgments and orders of
A8 S5 P1
lower courts in:
The Supreme Court shall have the
1. All cases in which constitutionality
following powers:
or validity of any
a. treaty,
- Exercise original jurisdiction over
b. international or executive
cases affecting:
agreement
o Ambassadors
c. law
o Other public ministers and
d. presidential decree
consuls e. proclamation
- Over petitions for f. order
o Certiorari g. instruction
o Prohibition h. ordinance
o Mandamus i. regulation
o Quo warranto i. is in question
o Habeas corpus
2. all cases involving the legality of
any
a. tax
A7 S4 b. impost
c. assessment
The Supreme Court en banc shall be the d. toll
sole judge of all contests relating to the e. any penalty imposed in
election, returns, and qualification of the relation thereto
President or Vice President, and may
promulgate its rules for the purpose.

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

3. all cases in which the jurisdiction of No law shall be passed reorganizing the
any lower court is in issue Judiciary when it undermines security of
tenure of its members.
4. all criminal cases in which the
penalty imposed is reclusion
perpetua or higher
A3 S16
5. all cases in which only an error or
question of law is involved All persons shall have the right to speedy
disposition of cases before before all
judicial, quasi judicial, administrative
bodies.
A8 S5 P5 (basis of Rules of Court)

The SC shall have the power to


promulgate rules concerning: A8 S14(basis for Rule 36)

1. Protection and enforcement of No decision shall be rendered by any court


constitutional rights without expressing therein clearly and
2. Pleading, practice, procedure in all distinctly the facts and the law on which it
courts is based.
3. Admission to practice of law
4. Integrated Bar No petition for review or motion for
5. Legal assistance to the reconsideration of a decision of the court
underprivileged shall be refused due course or denied
without starting the legal basis therefor.
Such rules shall (Limits to SC-rule
making power):

1. Provide simplified and inexpensive A9A S7 (basis of Rule 64)


procedure for speedy disposition of
cases Each Commission shall decide by majority
2. Shall be uniform for all courts of of all its Members in any case or matter
the same grade brought before it within 60 days from date
3. Shall not diminish, increase, modify of its submission for decision or resolution.
substantive rights. A case or matter is deemed submitted for
decision or resolution upon the filing of the
Rules of procedure of special court and
last pleading, brief, or memorandum
quasi judicial bodies shall remain effective
required by the rules of the Commission or
unless disapproved by the SC
by the Commission itself. Unless
otherwise provided by this Constitution or
by law, any decision, order, or ruling of
A8 S2 each Commission may be brought to the
SC on certiorari by the aggrieved party
The Congress shall have the power to within 30 days from receipt of a copy
define, prescribe, and apportion the thereof.
jurisdiction of the various courts but may
not deprive the SC of its jurisdiction over
cases enumerated in S5 thereof.
CIVIL PROCEDURE PROPER

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

Jurisdiction Special or Limited Jurisdiction


One which restricts the courts
Authority of the court to hear and jurisdiction only to particular cases
decide a case and to implement and subject to such limitations as
its decision may be provided by the governing
law.

It is confined to particular causes,


Rule 30 Rule 36 or which can be exercised only
under the limitations and
circumstances prescribed by the
Rule 39 statute

Appellate Jurisdiction
Power and authority conferred
Venue Jurisdiction upon a superior court to rehear and
determine causes which have been
Place where action Power of court to tried in lower courts, the
is instituted hear and decide a cognizance which a superior court
case takes of a case removed to it, by
May be waived Jurisdiction over appeal or writ of error, from the
subject matter and decision of a lower court or the
over nature of review by a superior court of the
action are conferred final judgment or order of some
by law and cannot lower courts
be waived
Concurrent / Confluent /
Procedural Substantive Coordinate Jurisdiction
Power conferred upon different
May be changed by Cannot be subject courts, whether of the same or
written agreement of the agreement of different ranks, to take cognizance
of the parties the parties at the same stage of the same case
in the same or different judicial
Not a ground for A ground for motu territories
motu proprio proprio dismissal
dismissal, except in E.g. CA, SC, Sandiganbayan, RTC-
Summary Procedure in HC cases, Writ of Amparo, Writ of
Habeas Data

Original Jurisdiction
General Jurisdiction Power of the court to take judicial
Power to adjudicate all cognizance of a case instituted for
controversies except those judicial action for the first time
expressly withheld from the under conditions provided by law
plenary powers of the court. and appellate jurisdiction, or the
authority of a court higher in rank
It extends to all controversies
to re-examine the final order or
which may be brought before a
judgment of a lower court which
court within the legal bounds of
tried the case or elevated for
rights and remedies.
judicial review. It is jurisdiction

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

conferred upon or inherent in the The grant of authority to inferior


first instance courts to hear and determine
cadastral and land registration
Jurisdiction conferred by law and cases under certain conditions
filed at the first instance (NOTE: all
civil actions)

Exclusive Jurisdiction Doctrine of Primary Jurisdiction


Power to adjudicate a case or
proceeding to the exclusion of all courts will not resolve a
other courts at that stage controversy involving a question
which is within the jurisdiction of
Jurisdiction of the court to the an administrative tribunal,
exclusion of all other courts especially where the question
demands the exercise of sound
administrative discretion requiring
Exclusive Original Jurisdiction special knowledge and experience
Power of the court to take judicial of said tribunal in determining
cognizance of a case instituted for technical and intricate matters of
judicial action for the first time to fact
the exclusion of all other courts
courts shall not take cognizance of
Territorial Jurisdiction a case unless it has been decided
Refers to geographical area within at the administrative level
which the courts powers can be
exercised
In civil cases, assumes importance
Coordinate Jurisdiction
in case of venue of real or mixed
(same as Concurrent Jurisdiction)
action Power conferred upon different
In criminal cases, consideration of
courts, whether of the same or
territory and locus of crime
different ranks, to take cognizance
determine venue and jurisdiction
at the same stage of the same case
Territorial jurisdictions: in the same or different judicial
territories
SC and CA
National
RTC
Regional jurisdiction Ancillary Jurisdiction
Inferior courts Power of the courts to settle issues
Territorial jurisdiction as defined by which are incidental to main issue
SC in BP129

*Power of tribunal considered with


reference to the territory within which it is
to be exercised.
Appeal by Petition for
Certiorari Certiorari

Rule 45 Rule 65
Delegated Jurisdiction
Petition is based on Petition is based on

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

questions of law questions of Motion for Motion for


jurisdiction, whether reconsideration is reconsideration or
the lower court not required for new trial is
acted without required; if a motion
jurisdiction or in for reconsideration
excess of or new trial is filed,
jurisdiction or with the period shall not
grave abuse of only be interrupted
discretion but another 60 days
shall be given to
Mode of appeal Mode of review / petitioner (SC
SPECIAL CIVIL Admin Matter 02-
ACTION 03)
Involves review of Directed against Court is in exercise Court exercises
the judgment award interlocutory order of its appellate original jurisdiction
or final order on the of the court or jurisdiction and
merits where there is no power of review
appeal or any plain,
speedy, or Petition shall be Petition shall be
adequate remedy filed with the filed with the RTC,
Supreme Court CA, Sandiganbayan,
Filed within 15 days Filed not later than Comelec
from notice of 60 days from notice
judgment, final of judgment, order,
order, or resolution or resolution sought
appealed from to be reviewed JURISDICTION

Stays judgment or Unless a writ of SUPREME COURT


final order appealed preliminary
Original Jurisdiction of the Supreme
from injunction or
Court:
temporary
restraining order is A8 S5 P1- (Rule 56)
issued, the petition
does not stay the The SC shall have exclusive original
challenged jurisdiction over cases involving:
proceeding
1. Ambassadors
2. Other public ministers and consuls
3. Over petitions for:
Appellant and Judge, court, quasi
appellee are judicial agency,
original parties to tribunal,
the action, and the corporation, board a. Certiorari
b. Prohibition
lower court or quasi or officer or person
c. Mandamus
judicial agency is are public d. Quo warranto
not impleaded respondents who e. Habeas corpus
are impleaded in
the action

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

Appellate Jurisdiction of the Supreme - Appealable to SC under Rule 45


Court:
R45 S1- a party desiring to appeal by
A8 S5 P2 certiorari from a judgment or final order or
resolution of the Court of Appeals may file
The SC may review, revise, reverse, with the SC a verified petition for review
modify, or affirm on appeal or certiorari, on certiorari. The petition shall raise only
as the law or the Rules of Court may questions of law which must be distinctly
provide, final judgments and orders of set forth.
lower courts in:

1. All cases in which the


constitutionality or validity of any Note that questions of law can be raised
treaty, internation or executive before the CA (BP129)
agreement, law, presidential
decree, proclamation, order,
instruction, ordinance, or regulation
COURT OF APPEALS
is in question
Original jurisdiction / Original
2. All cases involving the legality of
Concurrent Jurisdiction
any tax, impost, assessment or toll,
or any penalty imposed in relation Original jurisdiction to issue writs of:
thereto
- Mandamus
3. All cases in which the jurisdiction of - Prohibition
any lower court is in issue - Certiorari
- Habeas corpus
4. All criminal cases in which the - Quo warranto
penalty imposed is reclusion - Auxiliary writs and processes,
perpetua or higher (WITHIN THE o Whether or not in aid of its
SCOPE OF CRIMINAL PROCEDURE- appellate jurisdiction
RULE 45)

5. All cases in which only an error or


Exclusive Original Jurisdiction:
question of law is imposed
Exclusive original jurisdiction over
1 and 2- PURE QUESTIONS OF LAW
the actions for annulment of
judgments of RTCs

Administrative Supervision of the


Supreme Court:
Appellate Jurisdiction:
1. Over court personnel
2. Over Justices 1. Rule 41- over RTC decisions in the
3. Over Judges exercise of its ORIGINAL
4. Practice of Law JURISDICTION (via Notice or Record
5. Members of the Integrated Bar of Appeal)

- RTC jurisdiction, first instance,


including Special Civil Actions
CA decisions

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

2. Rule 42- over RTC decisions in the


exercise of its APPELLATE 6. In all actions involving the contract
JURISDICTION (via Petition for of marriage and marital relations
Review)
7. In all cases not within the exclusive
3. Rule 43- Exclusive appellate jurisdiction of any court, tribunal,
jurisdiction over all final judgments, person or body exercising
resolution, orders, or awards of jurisdiction of any court, tribunal,
quasi judicial agencies, person or body exercising judicial
instrumentalities, boards, or or quasi judicial functions
commissions (via Petition for
(refer to 902-A below)
Review)
8. In all civil actions and special
RTC proceedings falling within Exclusive
original jurisdiction of a Juvenile
Exclusive Original Jurisdiction: and Domestic Relations Court and
of the Court of Agrarian Relations
1. In all actions in which the subject of as now provided by law
litigation is incapable of pecuniary
estimation 9. In all other cases in which the
demand, exclusive of interest,
2. Actions which cannot be quantified damages of whatever kind,
into monetary estimation attorneys fees, litigation expenses,
Subject matter (BP129) and costs or the value of property
in controversy exceeds 300k OMM
3. In all civil actions which involve
or exceeds 400k MM
title to or possession of real
property or any interest therein, 1996 Bar- Gross value is 200k, property
where assessed value of property located in Pampanga. What is the
involved exceeds 20k OMM or in jurisdiction and venue?
MM, value of property involved
exceeds 50k MTC of the place of decedents actual
Except actions of FE and UD of residence at the time of his death, if a
lands and buildings, original resident of the Philippines. If a non
jurisdiction of which is conferred resident, then the MTC of the place where
with MTC, MuTC, MCTC his estate is located.

4. In all actions in admiralty and


maritime actions where demand or
claim exceeds 300k OMM or (RA8799 S5.2 as amended by PD902-A)-
exceeds 400k MM exclusive and original jurisdiction of the
RTC to hear and decide following cases:
5. In all matters of probate, testate or
intestate, where gross value of
estate exceeds 300k OMM or 1. Cases involving devices or
exceeds 400k MM schemes employed by or any acts
of the board of directors, business
Gross value- assessed value of property of associates, its offices or
deceased before deduction (NOT market partnership, amounting to fraud or
value) misrepresentation which may be

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

interest of the public and/or of the


stockholders, partners, members of
associations or organizations Appellate Jurisdiction:
registered with the Commission
Over all cases decided by MTCs, MuTCs,
2. Controversies arising out of MCTCs in their respective territorial
intracorporate or partnership jurisdictions
relations, between and among
stockholders, members or
associates, between any and all of MTC
them and the corporation,
partnership, or association of which (note: baligtarin ang RTC jurisdiction,
they are stockholders, members or below 20-50, 300-400)
associates respectively, and
between such corporation, Ordinary Civil Actions:
partnership or association and the
1. exclusive original jurisdiction over
state insofar as it concerns their
civil actions and probate
individual franchise or right to exist
proceedings, testate and intestate,
as such entity
including grant of provisional
3. Controversies in election or remedies in proper cases, where
appointment of directors, trustees, the value of the personal property,
officers or managers of such estate or amount of the demand
corporations, partnerships, or does not exceed 300k OMM or
associations 400k MM exclusive of interest,
damages, of whatever kind, AF,
4. Petitions of corporations, litigation expenses and costs, the
partnerships or associations to be amount of which must be
declared in the state of suspension specifically alleged. Provided, that
of payments, in cases where the interest, damages of whatever
corporation, partnership or kind, AF, litigation expenses, and
association possesses sufficient costs shall be included in the
property to cover all its debts but determination of the filing fees.
foresees the impossibility of Provided further that where there
meeting them when the are several claims or causes of
respectively fall due or in cases actions between the same or
where the corporation, partnership different parties, embodied in the
or association has no sufficient same complaint, the amount of
assets to cover its liabilities, but is demand shall be the totality of the
under management of a claims in all the causes of action,
rehabilitation receiver or irrespective of whether the cause
management committee of action arose out of same or
different transactions

2. exclusive original jurisdiction over


Concurrent Original Jurisdiction: cases of forcible entry or unlawful
detainer, provided that when, in
With SC, CA, -- over petitions for certiorari,
such cases, defendant raises
mandamus, prohibition, quo warranto,
questions of ownership in his
habeas corpus

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

pleadings and the question of not exceed 100k OMM or 200k MM


possession cannot be resolved exclusive of interests and costs (as
without deciding the issue of amended by AM 2-11-9-SC)
ownership, the issue of ownership
shall be resolved only to determine 3. Civil cases not higher than 100k-
the issue of possession (see: Subject to the Rule on Small Claims
Summary Procedure)
What if, gumitna? 150k?
3. exclusive original jurisdiction in all
civil actions involving title to or Higher than 100k OMM, then subject to
possession of property or any Regular Proceedings in MTC
interest therein where assessed
value of property or interest therein BUT, below 200k MM, hence, in such case,
does not exceed 20k OMM or does subject to Summary Procedure pa rin
not exceed 50k MM exclusive of
interest, damages of whatever
kind, AF, litigation expenses, costs.
Why the need to discuss jurisdiction?
Provided that in cases of land not
declared for taxation purposes, the To know whether subject to Motion to
value of such property shall be Dismiss (Rule S1b), that the court has no
determined by assessed value of jurisdiction over the subject matter of the
adjacent lots case
4. civil cases where the demand does
not exceed 300k or not more than
400k MM In Civil Procedure, SC-CA-RTC-MTC

5. over actions involving personal In Criminal Procedure, SC-CA-


property valued at not more than SANDIGANBAYAN-RTC-MTC
300k OMM or not more than 400k
MM

6. admiralty and maritime cases Commencement of a Civil Action:


where the demand or claim does
R1 S5
not exceed 300k OMM or does not
exceed 400k MM Civil action is commenced by the filing of
the original complaint in court and
payment of the requisite docket fees. If
Summary Procedure: an additional defendant is impleaded in a
later pleading, the action is commenced
1. All cases of FE and UD, irrespective with regard to him on the date of filing of
of the amount of damages or such later pleading, irrespective of
unpaid rentals sought to be whether the motion for its admission, if
recovered. Where AF are awarded, necessary, is denied by the court.
the same shall not exceed 20k

2. All other civil cases, except probate


proceedings, where the total DOCKET FEES- needed to acquire
amount of the plaintiffs claim does jurisdiction over the case

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

Original Distinctions:

Jurisdiction over plaintiff Action Cause of Right of


Action Action
By filing of original complaint in
court plus payment of requisite Suit filed in Act or Remdial
docket fees court for omission by right or right
enforcemem which a to relief
t or party violate granted by
protection of a right of law to a
Jurisdiction over defendant
a right, or another (R2 party to
By voluntary appearance or service the S2) institute an
of summons prevention action
or redress of against a
a wrong (R1 person who
S3) has
Jurisdiction over subject matter committed
delict or
Conferred by law
wrong
against him

Reason for Remedy or


Jurisdiction over the issue
the action means
Determined by allegations in the afforded or
complaint the
consequent
relief

Jurisdiction over the res Formal Remedial


statement of right given
By actual or constructive seizure of operative to a person
property by way of attachment or facts that because of
execution give rise to occurrence
a remedial of the
right alleged facts
Action, Cause of Action, Right of Action
Matter of A matter of
(Simplified Version)
procedure right and
Action Cause of Right of and depends on
Action Action depends on substantive
the law
Suit to Act or Remedial pleadings
enforce omission by right to file a filed by the
ones right which a suit based parties
or for the party on cause of
prevention violates a action Not affected Affected by
or redress of right of by affirmative
a wrong another affirmative defenses
defenses
(fraud,

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

prescription, Action Quasi In Rem


estoppel,
etc) - Action which binds interests
o Foreclosure of mortgage
o Partition
o Attachment
o Any interest or lien on real
property
Kinds of actions:

1ST GROUP: for purposes of venue under


Rule 4 Action in Action in Action
rem personam Quasi in
Real Action Rem
- Actions affecting title to or Directed Directed Directed
possession of real property (A415 against the against against
NCC in consideration) thing itself particular particular
- Venue: R4 S1 persons persons
Personal Action Jurisdiction Jurisdiction Jurisdiction
over person over person over the
- Involves privity of
of defendant of defendant person of
contract/personal property (A416-
is not is required the
417 of NCC in consideration)
required defendant is
- Venue: R4 S2
not required
Mixed Action as long as
jurisdiction
- Action affecting title to or over the res
possession of real property + is acquired
Privity of Contract
- Venue: R4 S1 A An action to A
proceeding impose a proceeding
to determine responsibilit to subject
the state or y or liability the interest
2ND GROUP: for purposes of determining
condition of upon a of a named
jurisdiction/service of summons
a thing person defendant
Action In Rem directly over a
particular
- Action which binds the whole world property to
Note: all Special Proceedings are in an obligation
rem actions or lien
- Summons/notification by burdening it
PUBLICATION
Judgment is Judgment is Judgment is
binding on bonding binding
Action in Personam the whole only upon upon
world the parties particular
- Action which binds the parties
impleaded persons
or their

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

successors resident
in interest defendant,
where he
Examples: Examples: Examples: may be
found, at
election of
Probate Action for Action for plaintiff (R4
proceeding, specific partition S2)
performance
Example: Example: Example:

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

Personal Action Action in


Real Action Personal Mixed personam
Action Action
Personal property is An action directed
Ownership Personal Both real sought to be against particular
or property is and personal recovered or where persons, may be
possession sought to be properties damages for breach real action, personal
of real recovered or are involved of contract are action, mixed action
property is where sought
involved damages for
breach of Founded on privity Not necessarily;
contract are of contract because the action
sought may also be real or
mixed
Founded on Founded on Founded on
privy of real privity of both Filed in court where R4 S1 or R4 S2 may
estate contract plaintiff or any of govern, depending
defendants reside, on whether the
Filed in the Filed in the Filed in the at option of plaintiff action is real action
court where court where court where (R4 S2) or personal action
the property the plaintiff the property
or any part or any of the or any part
thereof is plaintiffs thereof is
Mixed Action Quasi In Rem
situated (R4 resides, situated (R4
Action
S1) where S1)
defendant or Both real and Both real and
any of the personal properties personal properties
defendants are involved may also be
resides, or in involved
case of non
Founded on both Action directed

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

privity of real estate against particular The complaint is the pleading


and privity of persons, but alleging the plaintiffs cause or
contract jurisdiction over causes of action.
defendant is not
required as long as
jurisdiction over the
Answer (R6 S4)
res is acquired
Pleading in which a defending party
Rules on venue of Rules on personal
sets forth his defenses
real actions shall actions govern (?)
govern (R4 S1)

INITIATORY PLEADING
Real Action In rem action A pleading that initiates an action
Ownership or Action directed
possession of real against the thing
property is involved itself RESPONSIVE PLEADING
Filed in court where Not necessarily; A pleading that responds to
property or portion depends on whether allegations in the adverse partys
thereof is situated the action is real, pleading
personal, mixed

A proceeding A proceeding to
founded on privity determine state or Initiatory Pleadings
of real estate condition of a thing
Original complaint
Judgment may bind Judgment is binding Permissive counterclaim
whole world, or upon the whole Cross claim
particular persons, world Third party complaint
depending on 4th party complaint
Complaint in intervention
whether in rem, in
Petition
personam, quasi in In special civil actions
rem In special proceedings
Counter counter claim
Counter cross claim
PLEADING (R6 S1) Counter Counter Counter Cross
Claim Claim
Sworn written statements of the
respective claims and defenses of Any claim which Any claim which a
the parties submitted to the court defending party in a defending party in a
for appropriate judgment counterclaim may cross claim may
have against the have against the
original original cross
Complaint (R6 S3) counterclaimant claimant

COMPULSORY- Can be an initiatory


Arises out of or is pleading, if

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

necessarily permissive Position Paper and Memorandum only


connected with the narrate facts of the case, issues, no cause
transaction or of action, no defenses, but only contain
occurrence that is discussions
the subject matter
of the opposing
partys claim
Initiatory Responsive
Pleading Pleading

PERMISSIVE- does A pleading that A pleading that


not arise of or is initiates an action responds to
necessarily allegations in the
connected with the adverse partys
transaction or pleading
occurrence that is
the subject matter
of the opposing Original Answer to
partys claim complaint original
complaint
Permissive
counterclai Answer to
m permissive
counterclaim
Cross claim
Responsive Pleadings Answer to
Third party third party
complaint complaint
Answer to original complaint
4th party Answer to
Answer to permissive counterclaim
Answer to third party complaint complaint fourth party
Answer to fourth party complaint complaint
Answer to complaint in intervention Complaint
Comment or objection to petition in Answer to
Compulsory counterclaim interventio complaint in
Reply n intervention
Answer to counter counter claim
Answer to counter cross claim Petition Comment or
objection to
petition
A motion IS NOT A PLEADING In special civil
actions
A position paper IS NOT A PLEADING
Compulsory
A memorandum IS NOT A PLEADING counterclaim
In special
Why? Reply
proceedings
Motion is an application for relief other Answer to
than by a pleading (R15 S1) counter
Counter

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

counter counter claim FLOW OF CIVIL PROCEDURE


claim
Answer to I. BARANGAY CONCILIATION
Counter counter cross PROCEEDINGS
cross claim claim
General Rule with respect to
Barangay Conciliation Proceedings:

Need to be Except when S412, LGC


verified, with otherwise provided by
certification law or these Rules, No complaint, petition, action or
against forum need not be verified proceedings involving any matter within
shopping, plus authority of the Lupon shall be filed or
payment of instituted directly or indirectly in court or
docket fees in any other government office or
No need for adjudication unless there has been a
certification against confrontation between the parties before
forum shopping, and the Lupon Chairman or the pangkat, and
not need for payment that no conciliation or settlement has
of docket fees (Note: been reacehed as certified by lupon or
compulsory pangkat chairman.
counterclaim, docket
fees are suspended)

Exceptions to above rule:

Instances when S408, LGC


verification is needed:
1. where one party is the government
or any subdivision or
instrumentality thereof
Actionable
document 2. where one party is a public officer
or employee, and the dispute
Allegations of relates to performance of his
usury official functions
offenses punishable by
Answer to
imprisonment exceeding 1 year or
permissive
a fine exceeding 5k pesos
counterclaim
3. offenses where there is no private
Succeeding
offended party
pleadings in
special 4. where the dispute involves real
proceedings properties located in different cities
or municipalities unless the parties
thereto agree to submit their
Complaint- a pleading alleging plaintiffs differences to amicable settlement
cause and causes of action by an appropriate lupon

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

5. disputes involving parties who No, because provisional remedies are


actually reside in barangays of merely ancillary to the main action. The
different cities or municipalities, category of actions incapable of pecuniary
except where such barangay units estimation refers only to main actions.
adjoin each other and the parties
thereto agree to submit their
differences to amicable settlement
Purpose of Barangay Proceedings:
by an appropriate lupon
Reduce the number of litigations and
6. such other classes of disputes
prevent the deterioration of the quality of
which the President may determine
justice which has been brought about by
in the interest of justice
indiscriminate filing of cases in the courts.
7. where one of the parties is a (Zamora vs Heirs of Izquierdo)
juridical entity

8. where accused is under police


Venue of Barangay Conciliation
custody or detention
Proceedings:
9. where the person has otherwise
S409, LGC
been deprived of personal liberty
calling for habeas corpus Disputes between persons
proceeding actually residing in the same
barangay shall be brought for
10. where the actions are coupled with
amicable settlement before the
provisional remedies such as
lupon of said barangay
preliminary injunction, attachment,
delivery of personal property, and Those involving actual
support pendent lite residents of different
where the action may otherwise be
barangays within the same city
barred by the statute of limitations
or munipality shall be brought in
11. in case of labor disputes the barangay where the
respondent or any of the
12. action to annul a judgment upon a respondents actually resides, at the
compromise election of the complainant

13. CARL disputes All disputes involving real


property or any interest
14. Disputes involving traditions of an therein shall be brought in the
indigenous cultural community barangay where the real property
or the larger portion thereof is
situated
Does the Exclusive Original
Those arising at the workplace
Jurisdiction of the RTC on actions
where the contending parties
involving those incapable of
are employed or at the
pecuniary estimation include
institution where such parties
provisional remedies as falling within
are enrolled for study, shall be
the category?
brought in the barangay where

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

such workplace or institution is the settlement. After the lapse of such


located time, the settlement may be enforced by
action in the appropriate city or municipal
court.
Rules on appearance before Barangay
Proceedings:

S415, LGC Remedies of the parties in case of


failure of amicable settlement before
In all katarungang pambarangay the lupon:
proceedings, the parties must appear in
person without the assistance of counsel 1. File the case before the proper
or representative, except for minors and court
incompetents who may be assisted by 2. Repudiate the agreement (S418,
their next of kin who are not lawyers. LGC)
3. File a petition before the MTC to
nullify the agreement (basis?)

Effect of Amicable Settlement and


Arbitration Award:
Remedy in case of failure to comply
S416, LGC with Barangay Conciliation:

The amicable settlement and arbitration As defendant, file a motion to dismiss


award shall have the force and effect of a under R16 S1j on the ground that a
final judgment of a court upon the condition precedent has not been
expiration of 10 days from the date complied with.
thereof, unless repudiation of the
settlement has been made or a petition to
nullify the award has been filed before the
Motion to dismiss was granted,
proper city or municipal court.
remedy of plaintiff?
However, this provision shall not apply to
Re file the case with the certification of
court cases settled by the lupon under last
having undergone Barangay conciliation
paragraph of S408 of this Code, in which
proceedings, as the dismissal is without
case the compromise settlement agreed
prejudice.
upon by the parties before the lupon shall
be submitted to the court and upon
approval thereof, have the force and effect
of a judgment of said court. Motion to dismiss was denied,
remedy of defendant?

R16 S4 states that if the motion is denied,


Rules on execution of judgment in movant shall file his answer within the
Barangay Proceedings: balance of the period granted by Rule 11
to which he was entitled at the time of
S417, LGC
serving his motion, but not less than 5
The amicable settlement or arbitration days in any event, computed from his
award may be enforced by execution by receipt of the notice of the denial.
the lupon within 6 months from the date of Proceed with the trial, and when the

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

decision is adverse, file an appeal raising (importance of knowing BP129 as


as error the ground for denial of the amended by RA7691 Rules on Jurisdiction)
motion to dismiss. When the denial is
tainted with grave abuse of discretion Granted- Refile
amounting to lack or excess of jurisdiction,
Denied- State R16 S4 (yung BUONG
file petition for certiorari under Rule 65.
SAGOT na Gusto ni Boss Atty Tan)

** In between Barangay conciliation


Summary Procedure:
and filing of complaint, if real
property is involved, plaintiff can file Cases covered:
adverse claim over the property, or
can file notice of lis pendens 1. All cases of FE and UD, irrespective
of the amount of damages or
Notice of Lis Pendens unpaid rentals sought to be
recovered. Where AF are awarded,
- buyer beware
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
o There is need to register it
amount of the plaintiffs claim does
with the register of deeds
not exceed 100k OMM 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-
Complaint (R6 S3) Subject to the Rule on Small Claims

The complaint is the pleading


alleging the plaintiffs cause or
causes of action. GENERAL RULE on Summary Procedure:
No Motion to Dismiss is allowed
Undergone Barangay (Prohibited Pleading)
Conciliation Proceedings
EXCEPT:
NOTE: If the case undergone Barangay
conciliation proceedings first, there must 1. Lack of jurisdiction over the subject
be a specific allegation in the complaint matter of the claim
that there is compliance with Barangay
2. Lack of jurisdiction over the person
Conciliation proceedings
of the defendant
Pag wala, patay (?)- M2D S1j OR amend
3. Failure to comply with Barangay
the complaint (?)
Conciliation Proceedings

Jurisdiction
HOWEVER, with respect to SMALL CLAIMS
IF, court has no jurisdiction, M2D R16 S1b CASES,

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

ABSOLUTE RULE: motion to dismiss is not


allowed
EXCLUSIVITY OF VENUE- NOTE: Rule 4
Reason: defeats the purpose of Small SHALL NOT APPLY... if
Claims Proceedings
R4 S4

1. The parties have validly agreed in


Venue writing
2. The agreement in writing was
- Can be subject to stipulation of the made before the filing of the action
parties 3. Exclusive venue is stipulated

State: Rules on venue Atty Tans comment:

R4 S1 Rule 4 of the Rules of Court did not


provide for MAY, but SHALL
Actions affecting title to or possession of
real property or interest therein shall be Suppose, Real property is subject of
commenced and tried in the proper court dispute (real action). A lives in Pasay, B
which has jurisdiction over the area lives in Manila, the real property is located
wherein the real property involved or a in Davao. Following Rule 4 S1, the suit
portion thereof is situated. should be filed in Davao, being the place
where the property or portion thereof is
Forcible entry and unlawful detainer situated. However, the parties can
actions shall be commenced and tried in exclusively agree that the venue can be
the MTC of the municipality or city wherein filed in Baguio, provided that the
the real property involved or a portion requisites of R4 S4 as to exclusivity of
thereof is situated. venue are complied with

R4 S2 So, it means that Rule 4 S1 can be the


subject of agreement, and that the suit
All other actions may be commenced and
can be filed somewhere else other than
tried where the plaintiff or any of the
what S1 provides? (Parang ok lang sana
principal plaintiffs resides, where the
kung concern e personal action under R4
defendant or any of the defendants
S2- can be subject of agreement, pero
resides, or in case of a non resident
venue of REAL ACTION CAN BE SUBJECT
defendant he may be found at the election
OF AGREEMENT?! Labo ata...)
of the plaintiff.
Seems there is a loophole in Rule 4
R4 S3

If any of the defendants does not reside


and is not found in the Philippines, and the If the venue is permissive,
action affects the personal status of the
plaintiff or any property of said defendant Then the venue is in addition to the
located in the Philippines, the action may rules on venue
be commenced and tried in the court of
the place where the plaintiff resides, or
where the property or any portion thereof
Action was filed in the wrong venue:
is situated or found

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

I will file motion to dismiss under R16 S1c Parties


on the ground that the venue is
improperly laid (R3 S1)

Only natural or juridical persons, or


entities authorized by law may be parties
The motion was granted (court issues in a civil action. The term plaintiff may
not a judgment but an ORDER). refer to the claiming party, the
Counsel for plaintiff. Remedy? counterclaimant, cross claimant, or the 3rd
4th etc party plaintiff. The term defendant
I will refile the case in the court of the may refer to the original defending party,
proper venue, because the order of the defendant in the counterclaim, the
dismissal is without prejudice (R16). cross defendant, or the 3rd 4th etc party
defendant.
EXCEPT: if there exists grave abuse of
discretion amounting to lack or excess of Plaintiff includes:
jurisdiction, Certiorari Rule 65 is the
proper remedy - Counter counterclaimant
- Counter cross claimant

Defendant includes:
Motion to dismiss was denied.
Remedy for defendant? - Defendant in counter counterclaim
- Defendant in counter cross claim
Rule 16 S4 - An unwilling co plaintiff or one who
should be joined as plaintiff but
File an answer within the balance of the refuses to give consent thereto (R3
period prescribed by Rule 11 to which he S10)
was entitled at the time of serving his - A person necessary to a complete
motion but not less than 5 days in any determination or settlement of the
event, computed from his receiving of questions involved therein
notice of denial. Then, go to trial. When
the decision is adverse, file an appeal Plaintiff
raising as error the denial of the motion to
A person having an interest in the
dismiss. If the denial of the motion is
matter of the action or in obtaining
tainted with grave abuse of discretion
the relief demanded
amounting to lack or excess of jurisdiction,
file petition for certiorari under Rule 65. Defendant

A person claiming an interest in the


controversy or the subject thereof
Motion to dismiss on the ground of
adverse to the plaintiff
improper venue IS A PROHIBITED
PLEADING under the Rules on Summary
Procedure, and more so in Small Claims
3rd party plaintiff
Remedy: raise the ground as an
affirmative defense A defending party who may with
leave of court file against a third
person not party to the action
called the 3rd 4th etc party

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

defendant a claim for contribution,


indemnity, subrogation, or any
other relief in respect of his Who is a proper party?
opponents claim (R6 S11)
A proper Party is the same as a necessary
party, a party who is not indispensable but
who is ought to be joined as a party if
Cross Claimant complete relief is to be accorded as to
those already parties, or for a complete
A party to an original action who determination or settlement of the claim
has a claim against a co party subject of the action (R3 S8)
arising out of the transaction or
occurrence that is the subject Party those presence is necessary to
matter either of the original action adjudicate the whole controversy, but
or of a counterclaim therein (R6 S8) those whose interests are so far separable
that final decree can be made in their
absence without affecting them
(Quisumbing vs CA GR 93335 9/13/1990)
Real Party In Interest

A real party in interest is the party


who stands to be benefited or Representative party
injured by the judgment in the suit,
or the party entitled to the avails of R3 S3
the suit. Unless otherwise provided
by law or these rules, every action Party acting in a fiduciary capacity. The
must be prosecuted or defended in beneficiary shall be included in the title of
the name of the real party in the case and shall be deemed to be the
interest(R3 S2) real party in interest. It may be:

- Trustee of an express trust


- Guardian
Indispensable Party - Executor
- Administrator
An indispensable party is a party in - A party authorized by law or these
interest without whom no final rules
o (agent acting in his own
determination can be had of an
action who shall be joined either as name and for the benefit of
plaintiff or defendant (R3 S7) an undisclosed principal
may sue or be sued without
joining the principal except
when the contract involves
Necessary Party things belonging to the
principal)
A necessary party is a party who is
not indispensable but who ought to
be joined as a party if complete
relief is to be accorded as to those Pro Forma Party
already parties, or for a complete
determination or settlement of the Parties who are required to be joined as co
claim subject of the action (R3 S8) parties in suits by or against another party

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

as may be provided by the applicable


substantive law or procedural rule 3. There is question of law or fact
common to all plaintiffs or
EXAMPLE: Spouses- husband and wife defendants
shall sue or be sued jointly, except as
provided by law (R3 S4) 4. Such joinder is not otherwise
proscribed by the provisions of the
rules on jurisdiction and venue

Quasi Party R3 S6

Parties in whose behalf a class or All persons in whom or against whom any
representative suit is brought right to relief in respect to or arising out of
the same or series of transactions is
alleged to exist, either jointly, severally, or
in the alternative, may, except as
Not a real party in interest: Remedy?
otherwise provided in these rules, join as
MOTION TO DISMISS on the ground of plaintiffs or be joined as defendants in one
failure to state cause of action complaint, where any question of law or
fact common to all such plaintiffs or to all
Granted- refile such defendants may arise in the action;
but the court may make such orders as
Denied: may be just to prevent any plaintiff or
defendant from being embarrassed or put
I will file an answer within the balance of
to expense in connection with any
the period prescribed by Rule 11 to which i
proceedings in which he may have no
am entitled at the time of serving my
interest.
motion, but not less than 5 days in any
event, computed from my receipt of notice
of denial. Then, proceed with the trial. In
case of adverse decision I will appeal the Non joinder/Misjoinder of parties- not a
judgment and assign as error the denial of ground for motion to dismiss
the motion to dismiss.
IF so, remedy:
However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction, Amendment of the pleading (Rule 3 in
then I will file petition for certiorari under relation to Rule 10
Rule 65.

Cause of Action
JOINDER OF PARTIES
Act or omission by which a party
Requisites: violates a right of another (R2 S2)

1. Right to relief arises out of the


same transaction or series of
What are the elements of a cause of
transactions
action?
2. Jurisdiction over plaintiffs and
1. Plaintiff exercises a legal right
defendants can be obtained

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

2. Correlative obligation the part of B. The joinder shall not include special
defendant to respect plaintiffs civil actions and actions governed
legal right by Special Rules
3. Defendant violates plaintiffs legal
right in a manner contrary to law, Special Civil Actions:
morals, good customs, public
1. Interpleader (R62)
order, public policy
2. Declaratory Relief (R63)
3. Review of Judgments and Final
*STATE ALL CAUSES OF ACTION in the
orders or resolutions of COMELEC,
PLEADING!
CoA (R64)
IF NOT, remedy: 4. Certiorari, Prohibition, Mandamus
(R65)
M2D R16 S1g- failure to state cause of 5. Quo Warranto (R66)
action 6. Expropriation (R67)
7. Foreclosure of Real Estate
GRANTED: refile; amend pleading Mortgage (R68)
8. Partition (R69)
Denied: 9. Forcible Entry and Unlawful
Detainer (R70)
I will file an answer within the balance of 10. Contempt (R71)
the period prescribed by Rule 11 to which i
am entitled at the time of serving my INCLUDES: SPECIAL PROCEEDINGS
motion, but not less than 5 days in any (SEGTARHHCVJCDC +)
event, computed from my receipt of notice
Sum of money + Foreclosure of Mortgage
of denial. Then, proceed with the trial. In
= CANNOT BE JOINED! (latter is a special
case of adverse decision I will appeal the
civil action)
judgment and assign as error the denial of
the motion to dismiss. Hence, sue in alternative / either or

However, if the denial is tainted with GAD C. Where the claims pertain to
amounting to lack or excess of jurisdiction, different venues or jurisdictions,
then I will file petition for certiorari under the joinder shall be allowed in the
Rule 65. RTC provided that it falls within the
jurisdiction of said court and the
venue lies therein
Joinder of Causes of Action (R2 S5)
D. Where the claims in all causes of
A party may in one pleading assert, in the action are principally for recovery
alternative or otherwise, as many causes of money, the aggregate amount
of action as he may have against an claimed shall be the test of
opposing party, subject to the following jurisdiction
conditions:

A. That the party joining the causes of


If you are counsel for plaintiff, and
action shall comply with the rules
the causes of action are not joined,
on joinder of parties
remedy?

File a motion to amend the complaint (as a


matter or right before a responsive

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

pleading is filed, or with leave of court judgment and assign as error the denial of
after a responsive pleading is filed if the the motion to dismiss.
amendment is substantialHere, di ko
alam kung substantial to...) R10 S2 and 3 However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction,
then I will file petition for certiorari under
Rule 65.
Splitting a Single Cause of Action:

It is the act of dividing or indivisible


cause of action into several causes PLEADING / PARTS OF A
of actions and bringing several PLEADING
actions thereon
Rule 7 S1

The caption sets forth:


R2 S3
a. Name of the court
A party may not institute more than one b. Title of the action
suit for a single cause of action c. Docket number if assigned

The title of the action indicates the names


of the parties. They shall be named in the
R2 S4 original complaint or petition. But in
subsequent pleadings, it shall be sufficient
If 2 or more suits are instituted on the if the name of the first party on each side
basis of the same cause of action, the be stated with an appropriate indication
filing of one or a judgment upon the merits when there are other parties. Their
in any one is available as a ground for respective participation in the case shall
dismissal of the others. be indicated.

Supposing, the plaintiff split a single R7 S2


cause of action, remedy?
The body of the pleading shall set forth
As defendant, I will file a motion to dismiss its:
on the ground of litis pendencia or res
judicata (R16 S1 e or f) 1. Designation
2. Allegation of the claims or defenses
GRANTED, remedy: APPEAL (dismissal is 3. Relief prayed for
with prejudice) 4. Date of the pleading

DENIED: Paragraph

I will file an answer within the balance of The allegations in the body of a pleading
the period prescribed by Rule 11 to which i shall be divided into paragraphs so
am entitled at the time of serving my numbered as to be readily identified each
motion, but not less than 5 days in any of which shall contain a statement of a
event, computed from my receipt of notice single act of circumstances so far as can
of denial. Then, proceed with the trial. In be done with convenience.
case of adverse decision I will appeal the

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

A paragraph may be referred to by its An unsigned pleading produces no legal


number in all succeeding pleadings. effect

Headings However, the court may, in its discretion,


allow such deficiency to be remedied if it
When 2 or more causes of action are appear that the same was due to mere
joined, the statement of the first shall be inadvertence and not intended for delay.
prefaced by the words first cause of
action, of the second by second cause of 1. Counsel who deliberately files
action and so on for the others. unsigned pleading
2. Signs a pleading in violation of
When one or more paragraphs in the these rule,
answer are addressed to one of several 3. or alleges scandalous or indecent
causes of action in the complaint, they matter therein,
shall be prefaced by the words answer to 4. Or fails to promptly report to the
the second cause of action or answer to court a change of his address, shall
the second cause of action and so on; and be subject to appropriate
when one or more paragraphs are disciplinary action
addressed to several causes of action,
they shall be prefaced by words to that
effect. R7 S4
Relief Except when otherwise specifically
required by law or rule, pleadings need
The pleading shall specify the relief
not be under oath, verified, or
sought, but it may add a general prayer
accompanied by affidavit.
for such further or other relief as may be
deemed just and equitable. A pleading is verified by an affidavit that
Date 1. the affiant has read the pleading
2. that the allegations therein are true
Every pleading shall be dated
and correct of his personal
knowledge or based on authentic
records
R7 S3
A pleading required to be verified which
Every pleading must be signed by the contains a verification based
party or counsel representing him
stating in either case his address which 1. on information and belief or
2. upon knowledge, information and
should not be a post office box. The
belief
signature of counsel constitutes a
3. or lacks a proper verification
certification by him that
shall be treated as an unsigned pleading
1. he has read the pleading,
2. that to the best of his knowledge,
information or belief there is good
ground to support it, and Is a jurat a part of a pleading?
3. that it is not interposed for delay
The general rule is that pleadings need
not be verified. However, if the law or the

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

Rules require that a pleading be verified, Declaratory Relief and Similar


verification is done by way of affidavit. In Remedies (R63)
an affidavit, there is a need for jurat to be
present. Hence, in a verified pleading, a Review of Judgments and Final
jurat becomes part of a pleading. Orders or

Resolutions of COMELEC, CoA (R64)

What are the pleadings that need to Petitions for certiorari, prohibition,
be verified? mandamus (R65)

Petition for relief from judgment or Quo Warranto (R66)


order (R38 S3)
Expropriation (R67)
Petition for review from RTC to CA
Foreclosure of Real Estate
(R42 S1)
Mortgage (Rule 68)
Petition for review from CTA and q-j
Partition (R69)
agencies to the CA (R43 S5)
Appeal by certiorari from the CA to Forcible Entry and Unlawful
SC (R45 S4) Detainer (R70)
Petition for annulment of judgment Contempt (R71)
or final orders and resolutions (R47
S4) (all Special Proceedings)

Complaint for injunction (R58 S4) Settlement of Estate of Deceased


(R73-90)
Application for appointment of
receiver (R59 S1) Escheat (R91)

Application for support pendent lite Petition for guardianship of minors


(Rule 61 S1) (AM __-__-__-SC)

(all initiatory pleadings) Petition for guardianship of


incompetents (R92-97)
Original Complaint
Petition for custody of minors in
Permissive Counterclaim relation to habeas corpus, AM __-__-
__-SC)
Cross Claim
Trusteeship (R98)
3rd 4th etc party complaint
Petition for Domestic Adoption
Complaint in intervention
(Domestic Adoption Act, )
Petition
Petition for inter country adoption
(all Special Civil Actions) (Inter Country Adoption Act,
)
Interpleader (R62)
Habeas Corpus (R102)

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

Writ of Amparo ( Motion to set aside default order


) (R9 S3b)

Writ of Habeas Data ( Answer to written interrogatories


) (R25 S2)

Change of Name (R103) Answer to request for admission


(R26 S2)
Clerical Error Act ( )

Cancellation or Correction of
Entries in the Civil Registry (R108) The following pleadings or motion
with affidavit or affidavits of merit:
Voluntary Dissolution of
Corporations (Corporation Code Motion to postpone for absence of
) evidence (R30 S3)

Judicial Approval of Voluntary Motion to postpone for illness of a


Recognition of Minor Natural party or counsel (R30 S4)
Children (Family Code, Motion for summary judgment or
) opposition thereto (R35 S1,2,3,5)

Constitution of the Family Home Motion for new trial on the ground
(Family Code, ) of fraud, accident, mistake, or
excusable negligence or opposition
Declaration of Absence and thereto (r37 S2)
Presumptive
Petition for relief from judgment or
Death (R107 in relation to Civil and order (R38 S3)
Family Code )
Third party claim (R39 S16)
Petition for declaration of Nullity
and Annulment of Marriage ( Proof required of a redemptioner
) (R39 S30)

Petition for legal separation ( Motion for preliminary attachment


) (R57 S3)

Motion for dissolution of


preliminary injunction (R58 S6)
Pleadings not required be verified in
the manner and form prescribed by Application for writ of replevin (R60
S4 of this Rule but the same must be S2)
under oath:
Claim against estate of a decedent
Denial of genuineness and due (R86 9)
execution of actionable document
Motion for new trial on the ground
(R8 S8)
of newly discovered evidence in
Denial of allegations of usury (R8 criminal cases (R121 S4)
S11)

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

Does the answer need to be verified?

As a general rule, answers need not be How about an authorized


verified, save for following instances: representative? Can he verify?

Answer to allegations of usury in a Yes, if armed with proper authority from


complaint to recover usurious the party (Through SPA?)
interests (R8 S11)

When the answer is based on an


actionable document (R8 S8) R7 S5- certification against forum
shopping
Answer under the Revised Rules on
Summary Procedure Plaintiff or principal party shall certify
under oath in the complaint or other
Answer in Small Claims Cases initiatory pleading assisting a claim for
relief, or in a sworn certification annexed
thereto and simultaneously filed
therewith,
If the pleading is not verified, as
counsel for plaintiff, remedy? 1. that he has not theretofore
commenced any action or filed any
File for judgment on the pleadings under
claim involving the same issues in
Rule 34 S1, on the ground of admission of
any court, tribunal or quasi judicial
material allegations of the adverse partys
agency, and, to the best of his
pleadings. Ground is based on the fact
knowledge, no such other claim or
that an answer is filed, but there is no
action is pending therein
genuine issue because the allegations are
deemed admitted. 2. if there is no such other pending
action or claim, a complete
R34 S1
statement of the present status
Grounds for judgment on the pleadings: thereof

Answer fails to tender an issue 3. if he should thereafter learn that


Answer admits the material the same or similar action or claim
allegations of the adverse partys is filed or is pending, he shall
pleading report that fact within 5 days
therefrom to the court where his
aforesaid complaint or initiatory
pleading has been filed
Who can verify a pleading?
Failure to comply with the foregoing
A party need not sign the verification.
requirements shall not be curable by mere
The following may sign verification: amendment of the complaint or pleading
but shall be cause for dismissal of the
Party case without prejudice, unless otherwise
Partys representative provided, upon motion and after hearing.
Partys Lawyer
Any person who personally knows Submission of a false certification or non
the truth of the facts alleged in the compliance with any of the undertakings
pleading therein shall constitute indirect contempt

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

of court without prejudice to Initiatory Pleadings


corresponding administrative and criminal
actions. Original complaint
Permissive counterclaim
If acts of party or counsel clearly Cross claim
3rd 4th etc party complaint
constitute wilful and deliberate forum
Complaint in intervention
shopping, the same shall be ground for Petition
summary dismissal with prejudice, direct
contempt, and cause for administrative
sanctions.
What is stated in certification against
forum shopping:

Forum Shopping: R7 S5

Forum shopping is an act of malpractice of The plaintiff or principal party shall certify
filing multiple suits in different courts under oath in the complaint or other
either simultaneously or successively, initiatory pleading asserting a claim for
involving the same parties, and asking the relief, or in a sworn certification annexed
courts to rule on the same or related thereto and simultaneously filed
causes and/or to grant the same or therewith:
substantially the same relief
1. That he has not theretofore
commenced any action or filed any
claim involving the same issues in
3 ways of committing forum any court, tribunal or quasi judicial
shopping: agency and, to the best of his
knowledge, no such other action or
Filing multiple cases based on the
claim is pending therein
same cause of action and with the
2. If there is such other pending claim
same prayer the previous not
or action, a complete statement of
having been resolved (litis
the present status thereof
pendencia) 3. If he should thereafter learn that
the same or similar action or claim
Filing multiple cases based on the
has been filed or is pending, he
same cause of action and with the
shall report that fact within 5 days
same prayer, the previous having
therefrom to the court wherein his
been resolved with finality (res
aforeseaid complaint or initiatory
judicata)
pleading has been filed
Filing multiple cases based on
same causes of action but with
different prayers (splitting cause of States the effects of: (R7 S5)
action on the ground of litis
pendencia or res judicata) Failure to attach certification
against forum shopping

Failure to comply with the foregoing


Pleadings requiring certification requirements shall not be curable by mere
against forum shopping: amendment of the complaint or pleading

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

but shall be cause for dismissal of the that a condition precedent has not been
case without prejudice, unless otherwise complied with.
provided, upon motion and after hearing.

Remedy is file motion to dismiss


R16 S1j, and if granted, plaintiffs Motion to dismiss was granted,
remedy is to refile the case with remedy?
the required certification, unless if
As plaintiff, refile the case, on the ground
declared by the court as dismissal
that the dismissal is without prejudice.
with prejudice, hence, remedy is
appeal

If the plaintiff committed wilful and


deliberate forum shopping, and the
Submission of a falser
complaint was dismissed, remedy?
certification or non compliance
of any of the undertakings As plaintiff, i will file notice of appeal
therein under Rule 41, because the dismissal is
without prejudice, hence, in the nature of
Submission of a false certification or non
a final order.
compliance of any of the undertakings
therein shall constitute indirect contempt
of court without prejudice to
corresponding administrative and criminal Define, enumerate, each pleadings:
actions
Complaint (R6 S3)
The complaint is the pleading
alleging the plaintiffs cause or
Willful and deliberate forum causes of action.
shopping
Counterclaim (R6 S6)
If the acts of party or counsel clearly Any claim which a defending party
constitute wilful and deliberate forum may have against an opposing
shopping, the same shall be ground for party
summary dismissal with prejudice, direct
contempt, and cause for administrative Compulsory Counterclaim (R6
sanctions. S7)
A counterclaim which being
Serves as FINAL ORDER, hence, cognizable by the regular courts of
appeal is the proper remedy if justice arises out of or is connected
motion to dismiss under R16 S1j is with the transaction or occurrence
granted constituting the subject matter of
the opposing partys claim and
does not require for its adjudication
the presence of third parties of
Remedies in case of failure to attach whom the court cannot acquire
certification against forum shopping: jurisdiction
As counsel for defendant, file motion to Permissive Counterclaim (R6
dismiss under Rule 16 S1j on the ground S7)

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

A counterclaim which being A counterclaim that may be


cognizable by the regular courts of asserted against an original
justice does not arise out of or is counterclaimant
connected with the transaction or
occurrence constituting the subject Counter crossclaim
A cross claim which may be filed
matter of the opposing partys
against an original cross claimant
claim and may require for its
adjudication the presence of third
parties of whom the court cannot
acquire jurisdiction

Counterclaim

Cross claim (R6 S8) Original complaint


Any claim by one party against a
co party arising out of the A vs B
transaction or occurrence that is
the subject matter either of the
original action or of a counterclaim
Counterclaim
therein

3rd 4th etc party complaint (R6


S11) Counter Counter Claim
A claim that a defending party
may, with leave of court, file
against a person not a party to the
action, called a 3rd 4th etc party Cross Claim
defendant for contribution,
A vs B and C
indemnity, subrogation, or any
other relief in respect of his (Original Complaint)
opponents claim
Cross Claim
Complaint in intervention (R19
S1)
Pleading filed by an intervenor if he
answers a claim against either or Counter Cross Claim
all of the original parties

Answer in intervention (R19


S3) Third Party Complaint
Filed by intervenor if he unites with
A vs B vs C (for CISA)
the defending party in resisting a
claim against the latter
C is impleaded for CISA
Answer (R6 S4)
Pleading in which a defending party
sets forth his defenses Complaint In intervention
Counter counterclaim (R6 S9) A vs B

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

C (or) suit

C wants to be impleaded in the action Initiatory Pleadings

Requires payment of docket fees

THIRD PARTY COMPLAINT IN Permissive Counterclaim vs Compulsory


COMPLAINT INTERVENTION Counterclaim (Simplified version)

Rule 6 Rule 19 Permissive CC Compulsory CC

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

Not barred even if Barred if not set up


not set up in the in the action
action

Third party is Third party has Initiatory pleading Not an initiatory


impleaded in the legal interest and pleading
suit for CISA wants to be
impleaded in the

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

3PC vs Third party claim PROVISIONAL REMEDIES may be


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

A. Preliminary Attachment (Rule


57)

Simultaneous or after filing of the original When filed? (R57 S1)


complaint/pleading asserting a claim,

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

At the commencement of the action or at contracting the debt or


any time before entry of judgment, a incurring the obligation upon
plaintiff or any proper party may have the which the action is brought, or
property of the adverse party attached as in the performance thereof
security for the satisfaction of judgment
that may be recovered in the following e. In an action against a party who
cases (See grounds) has removed or disposed of his
property, or is about to do so
with intent to defraud his
creditors
Grounds for preliminary attachment
(NOTE: TINATANONG SA BAR!) f. In an action against a party who
does not reside and is not
Rule 57 S1 found in the Phils, or on whom
summons may be served by
a. In an action for recovery of a
publication
specified amount of money or
damages, other than moral and
exemplary, on a cause of action Requirements: (Rule 57 S3)
arising from law, contract, quasi
contract, delict or quasi delict 1. By way of motion or by way of
against a party who is about to complaint
depart from the Phils with
2. Verified application through
intent to defraud his creditors
Affidavit attached to motion or
b. In an action for money or complaint
property embezzled or
- Stating the grounds
fraudulently misapplied or
- That there is no sufficient security
converted to his own use by a
public officer, or an officer of a 3. Allegation of the ground
corporation, or an attorney, necessitating the need for
factor, broker, agent, or clerk, in preliminary attachment
the course of his employment as
such, or by any other person in 4. Posting of bond in an amount to be
a fiduciary capacity, or for a determined by the court
wilful violation of duty

c. In an action to recover the


possession of property unjustly How is attachment applied for?
or fraudulently taken,
By way of motion? Or by way of
detained, or converted, when
complaint?
the property, or any part thereof,
has been concealed, removed, EITHER
or disposed of to prevent its
being found or taken by the
applicant or an authorized
person HOW?

d. In an action against a party who At the commencement of the complaint


has been guilty of fraud in

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

- By verified complaint

At any time before judgment Remedy in case of issuance of writ of


attachment:
- By verified motion
R57 S12 and S13

S12- Motion to discharge attachment upon


Cany you apply for writ of attachment giving of counterbond
before the MTC?
S13- Motion to quash the writ of
YES. attachment on the ff grounds:

In all instances? - That the writ was improperly or


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

100k- no Order of denial of motion to quash:


Ordinary Civil Actions- yes - INTERLOCUTORY, hence,
o M4R R65 S4
o Certiorari R65 S1, R41 S1b
When is it necessary to issue summons?

In case of implementation of the


Purpose of the bond:
preliminary attachment (3rd stage)
- To answer for damages incurred by
the adverse party in case writ of
Stages: attachment is improperly or
irregularly enforced
- Publication
- Order/Execution
o BOTH ARE EX PARTE
- Implementation Writ of Writ of Replevin
o With Summons Preliminary
Attachment
Covers real or Covers only
personal property personal property
How attached? At the Commencement of
commencement of the action or at any
- Garnishment the action or at any time before answer
- Levy on attachment time before entry of
o Annotated on back of title, judgment
warning on subsequent Amount of the bond Amount of the bond
is the value of the is double the
buyer subject to outcome of
obligation (fixed by amount of the
the case the court) personal property

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

May be resorted to Can be sought only requiring a party or


even if property is when defendant is a court, agency or
in the possession of in actual possession person from a
a third person of the property particular act or
acts. It may also
require
B. Preliminary Injunction (Rule performance of a
58) particular act or
acts, in which case
Injunction it shall be known as
a preliminary
- Judicial writ, process, or proceeding mandatory
whereby a party is ordered to do or injunction
refrain from doing a particular act
GROUNDS for preliminary injunction (R58
Preliminary Injunction
S3):
- An order granted at any stage of an
a. That the applicant is entitled to the
action or proceeding prior to the
relief demanded, and the whole or
judgment requiring a party or a
part of such relief consists in
court, agency, or a person to
restraining the commission or
refrain a particular act or acts
continuance of the act or acts
Preliminary Mandatory Injunction complained of, or in requiring the
performance of an act or acts,
- An order requiring the performance either for a limited period or
of a particular act or acts perpetually

b. That the commission, continuance,


or non performance of the act or
Denial- interlocutory acts complained of during the
litigation would probably work
- Remedy: certiorari
injustice to the applicant, or
If FJ- appeal
c. That a party, court, agency, or a
person is doing, threatening, or is
attempting to do, or is procuring or
Can preliminary injunction be issued ex suffering to be done, some act or
parte? acts probably in violation of the
rights of the applicant respecting
NO (?). TRO- yes the subject of the action or
proceeding, and tending to render
the judgment ineffectual
Writ of TRO
preliminary
injunction
A writ granted at An order to restrain Irreparable damage and injury
any stage of action particular act or
or proceeding prior acts of a party for a - Of such constant and frequent
to the judgment or limited period of recurrence that no fair or
final order, time reasonable redress can be had

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

therefore in court of law or where the date of hearing (3 day notice


there is no standard by which their rule)
amount can be measured with
reasonable accuracy 7. Proof of service of the motion

R13 S13

How do you avail? Proof of personal service shall consist of:

By way of MOTION or by way of VERIFIED - Written admission of party served


COMPLAINT or
- Official return of the server or
IF by verified complaint, at the - Affidavit of the party serving
commencement of the action or before containing a full statement of the
entry of judgment, INCORPORATED IN THE date, place, and manner of service
BODY OF THE COMPLAINT
If by service is by ordinary mail, proof
If by motion, then by an application for thereof shall consist of an affidavit of the
relief complying with the Rules on Motion: person mailing of facts showing
compliance with S7 of this Rule.
1. In writing, [except those made
upon in open court or in the course If service is by registered mail, proof shall
of a hearing or trial ] (R15 S2) be made by such affidavit and registry
receipt issued by the mailing office
2. Must be verified and accompanied
by an affidavit of merit if the The registry return card shall be filed
ground for the motion is FAME immediately upon its receipt by the
sender, or in lieu thereof, the unclaimed
3. Shall state the following (R15 S3) letter together with the certified or sworn
copy of the notice given by the
a. Relief sought to be obtained postmaster to the addressee.
b. Grounds upon which it is
based and 8. If the motion is not served to the
c. If required by these Rules or other party by personal service,
necessary to prove facts such mode resorted to must be
alleged therein, shall be accompanied by a written
supported by supporting explanation why the service or
affidavits and other papers filing was not done personally. A
violation of this Rule may be cause
4. Motion is set for hearing by
to consider the paper as not filed
applicant (R15 S4)
(R13 S11)
5. Notice of hearing addressed to all
parties concerned, specifying the
time and date of hearing which Effect of failure to comply with
must not be later than 10 days Sections, 4, 5, 6 of Rule 15?
after the filing of the motion (R15
S5) 1. *the motion shall be treated as a
worthless piece of paper which the
6. Motion and notice of hearing must clerk of court has no right to
be served at least 3 days before receive and the court has no

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

authority to act upon (mere scrap application for preliminary injunction


of paper) was made, may issue ex parte a
2. It does not interrupt the running of temporary restraining order to be
the prescriptive/reglementary effective only for a period of twenty
period for the filing of the requisite (20) days from service on the party or
pleading person sought to be enjoined, except
3. It will be ground for denial of the as herein provided. Within the twenty-day
motion period, the court must order said
4. The motion shall be considered as
party or person to show cause at a
not filed
specified time and place, why the
injunction should not be granted. The
court shall also determine, within the
HOW? same period, whether or not the
preliminary injunction shall be
At the commencement of the complaint granted, and accordingly issue the
corresponding order.
- By verified complaint

At any time before judgment However, subject to the provisions of the


preceding sections, if the matter is of
- By verified motion extreme urgency and the applicant will
suffer grave injustice and irreparable
injury, the executive judge of a multiple-
sala court or the presiding judge of a
Status Quo Order
single-sala court may issue ex parte a
- Order issued by the court to temporary restraining order effective
maintain the last, peaceable, for only seventy-two (72) hours from
actual, uncontested condition of issuance, but shall immediately
the parties before the action or comply with the provisions of the
proceeding next preceding section as to service
of summons and the documents to be
served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the
TRO- order restraining particular act or judge before whom the case is pending
acts of a party for a limited period of time; shall conduct a summary hearing to
can be issued ex parte determine whether the temporary
restraining order shall be extended
(RULE 58- AM 7-7-12)
until the application for preliminary
injunction can be heard. In no case
Sec. 5. Preliminary injunction not granted shall the total period of effectivity of
without notice; exception. No preliminary the temporary restraining order
injunction shall be granted without exceed twenty (20) days, including
hearing and prior notice to the party the original seventy-two hours
or persons sought to be enjoined. If it provided herein.
shall appear from facts shown by affidavits
or by the verified application that great or In the event that the application for
irreparable injury would result to the preliminary injunction is denied or not
applicant before the matter can be heard resolved within the said period, the
on notice, the court to which the temporary restraining order is deemed

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

automatically vacated. The effectivity of a court or presiding judge of single


temporary restraining order is not sala court may issue EX PARTE TRO
extendible without need of any judicial o Effective for only 72 HOURS
declaration to that effect, and no court from issuance,
shall have authority to extend or renew But shall
the same on the same ground for which it immediately comply
was issued. with provisions of the
next preceding
However, if issued by the Court of Appeals section as to service
or a member thereof, the temporary of summons and
restraining order shall be effective for documents to be
sixty (60) days from service on the served
party or person sought to be
- Within the 72 hours, judge to
enjoined. A restraining order issued by
conduct summary hearing to
the Supreme Court or a member thereof
determine whether the TRO can be
shall be effective until further orders. l
extended until application for
preliminary injunction can be
The trial court, the Court of Appeals, the
heard,
Sandiganbyan or the Court of Tax Appeals
o Total period of effectivity of
that issued a writ of preliminary injunction
TRO shall NOT EXCEED 20
against a lower court, board, officer, or
DAYS, including the original
quasi-judicial agency shall decide the main
72 hours provided therein
case or petition within six (6) months
from the issuance of the writ. CA issues: effective for 60 DAYS from
service on the party or person sought to
be enjoined

SC or member issues: effective until


further orders
Lifetime (R57 S5 in relation to AM 7-7-
12)

- Effective only for a period of 20 AGAIN...


DAYS from service on the party or
person sought to be enjoined. TRO- order restraining acts of a party for a
o Court to order said party or limited period of time
person to show cause at a
specified time and place 20 days
why injunction should not
be granted, w/n P injunction 72 hours (ex parte)- extreme urgency
should be granted, and
20 days non extendible
accordingly issue the
corresponding order

- IF the matter is of EXTREME Can the court issue injunction ex parte?


URGENCY, applicant will suffer
grave injustice and irreparable NO!- requires notice and hearing
injury, executive judge of multi sala
Can MTC issue TRO?

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

Ordinary Civil Actions- Pwede irreparable damage to the party or


person enjoined while applicant
Forcibly Entry / UnlawFul Detainer- YES can be fully compensated for such
damages he may suffer
R70 S15
Other requirements for quashal of writ:
Court may grant preliminary injunction, in
accordance with the provisions of R58 1. filing of bond in amount fixed by
thereof, to prevent defendant from court conditioned that he will pay
committing further acts of dispossession all damages which applicant may
against plaintiff. suffer by the denial or dissolution
of the injunction or restraining
A possessor deprived of possession
order
through Fe or UD may, within 5 days from
filing of complaint, present a motion in the Denied:
action for FE UD for issuance of writ of
preliminary mandatory injunction to - M4R
restore him in his possession. The court - Certiorari Rule 65
shall decide the motion within 30 days
Can there be injunction in criminal cases?
from filing thereof
YES, in case of preliminary injunction with
R70 S20
respect to preliminary investigation
Upon motion of plaintiff, within 10 days (general rule, no, but the enumerations
from perfection of appeal to the RTC, the are the exceptions)
latter may issue a writ of preliminary
1. When prejudicial to the rights of
mandatory injunction to restore plaintiff in
the accused
possession if the court is satisfied that
2. When there is need for protecting
- defendants appeal is frivolous or
the Constitutional rights of the
dilatory, or
- that the appeal of plaintiff is prima accused
facie meritorious
3. To Prevent the long arm of the law
from being vindictive

REMEDIES IN CASE OF PRELIMINARY 4. When prejudicial question is


INJUNCTION: involved in the case

Granted: (Rule 57 S6) 5. In case of criminal prosecution


under an invalid law
- quash the writ based on:

1. upon showing of insufficiency


2. on other grounds upon affidavits of Can MTC issue preliminary injunction?
the party or person enjoined
3. if it appears after hearing that YES, except in:
although applicant is entitled to the
Case falling under Summary Procedure, if
injunction or restraining order, the
the claim being 100k (Small Claims),
issuance or continuance thereof, as
EXCEPT:
a case may be, would cause

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

- FE and UD dissipation for the protection of


o R70- preliminary mandatory another person
injunction and preliminary
prohibitory injunction are Where applied for?
allowed
1. Court where action is pending
2. CA
3. SC
Prohibitory Prohibition
Injunction Grounds: (R59 S1)
Provisional remedy Special civil action
a. When it appears from the
Rule 58 Rule 65
An order granted at Petition in case a verified application, and
any stage of an person exercising J, such other proof as the
action or QJ, Ministerial court may require, that the
proceeding prior to Function acted party applying for the
the judgment without jur or with appointment of receiver has
requiring a party or GAD amounting to an interest in the property
a court, agency, or lack or excess of
or fund which is the subject
a person to refrain a jurisdiction, for
particular act or respondent to desist of the action or proceeding,
acts from further and that such property or
proceedings fund is in danger of being
lost, removed, or materially
injured unless a receiver be
Mandatory Mandamus appointed to administer and
Injunction
preserve it
Provisional Remedy Special Civil Action
Rule 58 Rule 65 b. When it appears in an
An order requiring Requires
action by the mortgagee for
the performance of performance of a
a particular act or ministerial act or to the foreclosure of mortgage
acts desist from that the property is in
excluding another danger of being wasted or
from a right or dissipated or materially
office (ministerial) injured, and that its value is
Directed against a Directed against a probably insufficient to
party Judicial or quasi
discharge the mortgage
judicial bodies
exercising debt, or that the parties
ministerial functions have so stipulated in the
Provisional remedy Original action contract of mortgage
By way of motion By way of petition
c. After judgment, to preserve
the property during the
pendency of an appeal, or
to dispose of it according to
C. Receivership (Rule 59) the judgment, or to aid
execution when execution
- Provisional remedy to preserve a
has been returned
property subject of litigation from
unsatisfied or when
further loss, wastage, damage,
judgment obligor refuses to
apply his property in

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

satisfaction of the judgment NOTE: Receivership as provisional remedy


or otherwise to carry the applies to all civil actions, while
judgment into effect receivership of corporation is an original
action applicable only to corporations
d. Whenever in other cases it under the Corporation Code of the
appears that the Philippines
appointment of a receiver is
the most convenient and
feasible means of
preserving, administering, Receivership with appointment of receiver:
or disposing of the property pwede
in litigation
Receivership with MTC: pwede, except in
During pendency of appeal, the appellate Small Claims
court may allow an application for the
appointment of a receiver to be filed in
and decided by the court of origin and the General powers of receiver:
receiver appointed to be subject to the
control of said court. R59 S6

Subject to the control of the court in which


the action or proceeding is pending, a
REQUIREMENTS: receiver shall have the power to

1. Verified motion in a complaint / 1. Bring and defend, in such capacity,


Verified complaint at actions in his own name
commencement of action (R59 S1)
2. Take and keep possession of the
2. Bond by applicant in an amount to property in controversy
be fixed by the court to pay such
person against whom application is 3. To receive rents
presented to pay such party all
damages he may sustain by reason 4. To collect debts due to himself, as
of the appointment of such receiver receiver or to the fund, property,
in case the applicant shall have estate, person, corporation to
procured such appointment without which he is the receiver
sufficient cause(R59 S2)
5. To compound for and compromise
3. Oath and Bond by receiver to the same
faithfully discharge of his duties in
6. To make transfers
an action or proceeding and obey
court orders 7. To pay outstanding debts

IF pending appeal, 8. To divide the money and other


property that shall remain among
- By verified complaint
the persons legally entitled to
IF after judgment, receive the same

- By way of motion

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

9. To do such acts respecting the Can be a provisional remedy or a main


property as the court may action
authorize
- If a main action, then it is an action
However, funds in the hands of a receiver for recovery of unlawfully withheld
may be invested only by order of the court personal property in the possession
upon the written consent of all the parties of another
to the action.
Jurisdiction/Venue:
No action may be filed by or against a
receiver without leave of the court which RTC or MTC (300k-400k OMM MM higher
appointed him lower)

Termination of receivership; compensation REQUIREMENTS: (R60 S2)


of receiver
1. Verified Application (by
R59 S8 affidavit)/complaint before service
of answer
Whenever the court, motu proprio or on
motion of either party, shall determine Facts:
that the necessity for receiver no longer
a. That applicant is the owner of the
exists, it shall, after due notice to all
property claimed, particularly
interested parties and hearing,
describing it, or is entitled to the
1. settle the accounts of the receiver, possession thereof

2. direct the delivery of the funds and b. That the property is wrongfully
other property in his possession to detained by adverse party, alleging
the person adjudged to be entitled cause of detention thereof
to receive them, according to the best of his
knowledge, information, and belief
3. and order the discharge of the
receiver from further duty as such c. That the property has not been
distrained or taken for a tax
The court shall allow the receiver such assessment or a fine pursuant to
reasonable compensation as the law, or seized under a writ of
circumstances of the case warrant, to be execution or preliminary
taxed as costs against the defeated party, attachment, or otherwise placed
or apportioned, as justice requires. under custodia legis, or if so
seized, that it is exempt from such
seizure or custody

D. REPLEVIN (Rule 60) d. The actual market value of the


property
- A provisional remedy for recovery
of personal property / reacquisition 2. Posting of bond by applicant in
of personal property subject of double the value of the property
litigation stated in the affidavit mentioned,
for return of the property to

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

adverse party if such return be At


adjudged, and for payment to
adverse party of such sum as he - the commencement of the proper
may recover from the applicant in action or proceeding,
- or at any time prior to the
the action
judgment or final order,
o a verified application for
support pendentee lite may
Denied, REMEDY: be filed by any party
stating the grounds
Counterbond double the amount of for the claim and the
property financial conditions
of both parties, and
commenced by
E. SUPPORT PENDENTE LITE (Rule affidavits,
61) depositions, or other
authentic documents
- Amount of support provisionally in support thereof
fixed by the court in favour of the
person or persons entitled thereto
during the pendency of an action
S2- Comment
for support
A copy of the application and all
IMMEDIATELY EXECUTORY!
supporting documents
Where filed?
- shall be served upon adverse
FAMILY COURT party,
o who shall have 5 days to
Why not in MTC? Because action for comment thereon
support is incapable of pecuniary unless a different
estimation period is fixed by the
court upon his
(Exception: Criminal cases falling under motion.
MTC jurisdiction?)
The comment shall be verified and shall
When available? be accompanied by affidavits, depositions,
or other authentic documents in support
- Action for support thereof.
- Relief sought is support for
applicant
- Nullity of marriage
- Annulment of marriage S3- Hearing
- Legal separation
- Custody of minors in relation to 1. After the comment is filed, or
habeas corpus 2. after the expiration of the period
- Criminal cases: for its filing,
o Rape a. the application shall be set
o RA9262 for hearing not more than 3
days thereafter
S1- Application

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

The facts in issue shall be proved in the - issue an order of execution against
same manner as if proved for evidence on him,
motions. o without prejudice to his
liability for contempt.

When the person ordered to give support


S4- Order pendente lite refuses or fails to do so,

The court shall determine provisionally - any third person who furnished that
support to the applicant may, after
1. the pertinent facts, and
due notice and hearing in the same
shall render such order as justice and case,
o obtain a writ of execution to
equity may require,
enforce his right of
- having due regard to the probable reimbursement against the
outcome and such other person ordered to provide
circumstances as may aid in the such support.
proper resolution of the question
involved.
S6- Support in criminal cases
If the application is granted,
In criminal cases
- the court shall fix
o the amount of money to be
1. where the civil liability includes
provisionally paid,
support for the offspring as a
o or such other forms of
consequence of the crime
support as should be 2. and civil aspect thereof has not
provided, been waived, reserved, or
taking into account
instituted prior to its filing,
the necessities of the a. the accused may be ordered
applicant and the to provide support pendente
resources or means
lite to the child born to the
of the adverse party,
offended party allegedly
and
because of the crime.
terms of payment or
mode for providing The application therefore may be filed
the support. successively by the

If the application is denied, the principal - offending party,


case shall be tried and decided as early as - her parents,
possible. - grandparents,
- or guardian
- and the state in the corresponding
criminal case during its pendency,
S5- enforcement of order o in accordance with the
procedure established in
If the adverse party fails to comply with an this Rule.
order granting support pendente lite, the
court shall, motu proprio or upon motion,

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

S7- Restitution (62) relief (62)


- Foreclosure of - review of
When the judgment or final order of the mortgage adjudication
court finds that the person who has been (68) of comelec,
providing support pendente lite is not - Forcible entry coa (64)
liable therefor, / UD (70) - c, m, p (65)
- Partition (69) - qw (66)
- it shall order the recipient thereof - Expropriation - contempt
(67) (71)
to return to the former the amounts
already paid with legal interest
from the dates of actual payment, 1. Interpleader (62)
o without prejudice to the 2. Declaratory Relief and other similar
right of recipient to obtain remediesv (63)
reimbursement in a 3. Review of judgments, final orders,
separate action from the resolutions of CoA, COMELEC (64)
person legally obliged to 4. Certiorari, Prohibition, Mandamus
give the support. (65)
5. Quo Warranto (66)
Should recipient fail to reimburse said 6. Expropriation (67)
amounts, the 7. Foreclosure of Real Estate
Mortgage (68)
- person who provided the same 8. Partition (69)
may likewise 9. Forcible Entry/Unlawful Detainer
o seek reimbursement thereof (70)
in a separate action from 10. Contempt (71)
the person legally obliged to
Governed by Special Rules, Rules on
give such support.
ordinary civil actions apply in a suppletory
manner (OR is it the other way? R1 states
governed by rules on ordinary civil
Failure of action for support pendente lite, actions, subject to specific rules
REMEDY: prescribed in a special civil action)

- move for motion for execution Examples:

DENIED, VENUE

- file petition for indirect contempt, MOTION TO DISMISS


for disobedience to lawful order of
the court DEMURRER TO EVIDENCE

PARTS OF A PLEADING

SPECIAL CIVIL ACTIONS

(discussed in this stage because initiatory INTERPLEADER (Rule 62)


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

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

Whenever

- conflicting claims upon the same S2- Order


subject matter
o are or may be made against Upon filing of the complaint, the court
a person who claims no shall
interest whatever in the
- issue an order requiring the
subject matter or
o an interest in which in whole conflicting claimants to interplead
or in part is not disputed by with one another.
claimants,
If the interests of justice so require,
he may bring an
action against - the court may direct in such order
conflicting litigants o that the subject matter be
to compel them to paid or delivered to the
interplead and court.
litigate their several
claims among
themselves
S3- Summons
NOTE: Person in possession has no legal
interest Summons shall be served upon the
conflicting claimants, together with a copy
of the complaint and order.

Interpleader Intervention
Rule 61 Rule 19
Without leave of With leave of court S4- Motion to dismiss
court
Original / Special Ancillary to main Within the time for filing an answer, each
Civil action action claimant may
Filed by complaint If for plaintiff-
for interpleader complaint in - file motion to dismiss on the
intervention ground of impropriety of the
interpleader action or
If for defendant- - on other appropriate grounds
answer in specified in Rule 16.
intervention
At any time Before judgment The period to file the answer shall be
tolled and if the motion is denied, the
movant may file his answer within the
JURISDICTION:
remaining period, which shall not be
RTC or MTC 20-50 real 300-400 personal less than 5 days in any event,
higher lower reckoned from the notice of denial.
(See Rule 16 S4)
VENUE:

Real- R4 S1
S5- Answer and other pleadings
Personal- R4 S2

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

Each claimant shall file his answer setting o deed,


forth his claim within 15 days from service o will,
of the summons upon him, o contract, or
o other written instrument, or
- serving a copy thereof upon each
of the other conflicting claimants, determining validity of:
o who may file their reply
thereto as provided in these o statute,
o executive order,
Rules.
o regulation,
If any claimant fails to plead within the o ordinance, or
o any other governmental
time therein fixed, the court may, on
motion, regulation

- declare him in default and OTHER SIMILAR REMEDIES


- thereafter render judgment barring CONTEMPLATED which applies the
him from any claim in respect to provisions of this Rule:
the subject matter.
- reformation of an instrument
The parties in an interpleader action may
NOTE: INSTRUMENT, not the elements of
file counterclaims, cross claims, 3 rd party
the instrumentif such, e subject of
complaints and responsive pleading
another proceeding to, annulment of
thereto, as provided in these Rules.
contract

- quiet title to real property or


S6- Determination remove clouds therefrom

After the pleadings of the conflicting - consolidate ownership


claimants have been filed, and pre trial
In case of pacto de retro sale or
has been conducted in accordance with
foreclosure of mortgage, not necessarily
these Rules,
owner agad, hence, file for consolidation
- the court shall proceed to of ownership under this Rule
determine their respective rights
(EXCLUSIVE) hence, if not, then not
and adjudicate their several claims.
subject here

NOTE: DECLARATORY RELIEF is the only


In case of adverse Resolution, civil action (special vis a vis ordinary) that
can be filed even before breach or
Appeal pursuant to R40-42 violation thereof

JURISDICTION/VENUE:

DECLARATORY RELIEF AND OTHER Declaratory Relief:


SIMILAR REMEDIES (R63)
- RTC- incapable of pecuniary
Objective: (R63 S1) estimation

Interpretation/Construction of: Queting of title:

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

- MTC or RTC 20-50 OMM MM lower S4- Local government ordinances


higher
In any action involving the validity of a
Consolidation of ownership: local government ordinance,

- RTC- incapable of pecuniary - the corresponding prosecutor or


estimation attorney of the LGU involves shall
be similarly notified and entitled to
Reformation of contracts: be heard.

- RTC- incapable of pecuniary If such ordinance is alleged to be


estimation unconstitutional, the Sol Gen shall also be
notified and entitled to be heard.

Can the SC entertain petition for


declaratory relief? In case of adverse resolution

NO. BP129- RTC EO Jur, actions incapable - APPEAL R41


of pecuniary estimation o (R40 to RTC if Quieting in
MTC)

Requirements:
REVIEW OF JUDGMENTS AND FINAL
S2- Parties
ORDERS OR RESOLUTIONS OF THE
All persons who have or claim any interest COMELEC AND COMMISSION ON
which would be affected by the AUDIT (Rule 64 [but applying Rule
declaration shall be made parties, and 65])

- no declaration shall, except as Constitutional Basis:


provided in these Rules,
A9A S7 (basis of Rule 64)
o prejudice the rights of
persons not parties to the Each Commission shall decide by majority
action. of all its Members in any case or matter
brought before it within 60 days from date
S3- Notice on Sol Gen
of its submission for decision or resolution.
In any action which involves validity of A case or matter is deemed submitted for
decision or resolution upon the filing of the
- statute, last pleading, brief, or memorandum
- EO, or required by the rules of the Commission or
- regulation, or by the Commission itself. Unless
- any other governmental regulation,
otherwise provided by this Constitution or
o The Sol Gen shall be notified
by law, any decision, order, or ruling of
by the party assailing the
each Commission may be brought to the
same and
SC on certiorari by the aggrieved party
shall be entitled to
within 30 days from receipt of a copy
be heard upon such
thereof.
question
COVERAGE: (R64 S1)

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

Judgments, final orders, resolutions of of payment of docket and other


COMELEC, CoA lawful fees

S1- Scope S6- order to comment

Final orders or judgments of COA and - Within 10 days from notice of order
COMELEC or judgment, by respondent, or
else, dismissed

Grounds for dismissal


S2- Mode
1. Non compliance with form and
SC- petition for certiorari under Rule 65 contents
2. Non payment of docket and 500 for
costs
3. Filed manifestly for delay
S3- Time 4. Questions are too unsubstantial to
warrant further proceedings
Within 30 days from notice of judgment

IF M4r denied, filed within remaining


period and not less than any event S7- Comments of respondents
reckoned from notice of the denial
- 18 copies
NO FRESH PERIOD RULE, only in 40 41 42 - No other pleading may be filed
43 45 unless required or allowed by court

S4- Docket, lawful fees S8- Effect of filing

Pay, + 500 for costs Filing of certiorari will not stay execution of
judgment, FO, resolution sought to be
reviewed, unless SC shall direct otherwise
upon such terms as may be just
S5- Form/Contents
Petitioner may apply for TRO or
1. Verified petition, 18 copies, with
preliminary injunction to stay execution
certified true copy of judgment
2. Respondent is Comelec or CoA,
person interested in sustaining
3. Finding of fact supported by Rule 65 Rule 64
substantial evidence, final and non Applies to orders of Applies to
reviewable judicial, quasi judgments, final
4. State specific material dates judicial court or orders, resolutions
showing it was filed on time tribunals of CoA and
5. Accompanied by sworn certification COMELEC
against forum shopping 60 days from denial 30 days from notice
6. Proof of service of its copy on of motion for of judgment or final
commission and adverse party, and reconsideration (AM order or resolution
7-7-12-SC) sought to be

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

reviewed 6. All cases in which constitutionality


Motion for NOT or validity of any
reconsideration is a. treaty,
required b. international or executive
Petition filed before Petition filed before agreement
RTC, CA, SC SC c. law
d. presidential decree
e. proclamation
Rule 43 Rule 64 f. order
Appeal/Petition for Petition for review g. instruction
review of decisions of judgments and h. ordinance
of Quasi Judicial final orders or i. regulation
Bodies resolutions of i. is in question
COMELEC and CoA
15 days from notice 30 days from notice 7. all cases involving the legality of
of award, final of judgment or final any
judgment, order sought to be a. tax
resolution reviewed b. impost
With the CA With the SC c. assessment
d. toll
e. any penalty imposed in
relation thereto

CERTIORARI, PROHIBITION, 8. all cases in which the jurisdiction of


MANDAMUS (Rule 65) any lower court is in issue

Constitutional Basis: 9. all criminal cases in which the


penalty imposed is reclusion
A8 S1 P2
perpetua or higher
Judicial Power includes the duty of the
10. all cases in which only an error or
courts of justice to settle actual
question of law is involved
controversies involving rights which are
legally demandable and enforceable, and
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 What is the MATERIAL DATES RULE?
government.
As far as Rule 65 is concerned, the
A8 S5 P2 following material dates must be stated in
the verified petition or else, the petition
- Review would be denied:
- Revise
- Reverse 1. Notice of the order or judgment
- Modify 2. Date of the filing of the motion for
- Affirm reconsideration
o On appeal or certiorari, as 3. Date of the denial of the motion for
the law or the Rules of Court reconsideration
may provide, final
judgments and orders of
lower courts in:
Certiorari

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

- Special civil action directed to an Certiorari Mandamus Prohibition


discretionary Ministerial Discretionary
inferior court, tribunal, board or and ministerial
officer directing judicial or quasi To annul order To order To restrain
judicial functions, to annul or performance performance
60 days from receipt of final judgment or order or
modify proceedings of such court, from denial of motion for reconsideration
tribunal, board or officer in the Against entity Against entity Against entity
or person or person or person
event that the same has acted with exercising j or exercising exercising j, ej,
grave abuse of discretion ej function ministerial ministerial
amounting to lack or excess of function function
Without or GAD Unlawful Without or GAD
jurisdiction neglect of
o Seeks to correct errors of ministerial duty
or excluded
jurisdiction another from a
right or office
Prohibition Correct errors Performance of To restrain or
of jurisdiction act or desist prevent
- Special civil action directed against from excluding usurpation of
another from a jurisdiction
any tribunal, board, officer or right or office
person exercising judicial, quasi
judicial, or ministerial functions, to
desist from further proceedings in
the event that the same acted with
grave abuse of discretion
amounting to lack or excess of
jurisdiction Errors of Errors of
Jurisdiction Judgment
Mandamus Court acted with Misapprehension of
GAD amounting to law or facts by the
- Special civil action directed against lack or excess of court
any tribunal, corporation, board, jurisdiction
officer or person, to do the act Action of the court Valid proceeding
required to be done to protect the Correctible by Correctible by
rights of petitioner and to pay certiorari appeal
damages sustained by petitioner Rule 65 Rules 40-43, 45
by reason of the respondents
wrongful act, in the event that the
General Rule: M4R is required to allow the
same unlawfully neglected in the
court to correct its errors
performance of ministerial duty or
unlawfully excluded another from Exception:
use and enjoyment of a right or
office to which such other is 1. where the order is a patent nullity,
entitled as where the court has no
jurisdiction
QUALIFICATIONS in ALL 3:
2. where question raised in the
- that there is no plain, speedy, or certiorari proceedings have been
adequate remedy in the ordinary duly raised and passed upon by the
course of law lower court, or are the same as
those raised and passed upon by
the lower court

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

3. where there is an urgent necessity copies of award, judgment, order,


for the resolution of the question resolution, ruling subject
and any further delay would
prejudice the interest of the 5. certification against forum
government or the petitioner or the shopping
subject of the action is perishable
6. pay docket and lawful fees, 500 for
4. where under the circumstances, a costs
motion for reconsideration would
7. serve copy upon adverse party or
be useless
parties and the court
5. where petitioner was deprived of
8. service and filing to be done
due process, and there is extreme
personally, with explanation if not
urgency for relief
done personally
6. where, in a criminal case, relief
from an order of arrest is urgent General rule:
and the granting of such relief by
the trial court is improbable Certiorari is not a substitute for lost appeal

7. where the proceedings in the lower Except:


court are a nullity for lack of due
process - denial of due process

8. where the proceeding were ex - appeal is not a remedy


parte or in which the petitioner had o no appeal or no plain,
no opportunity to object speedy, adequate remedy

9. where the issue raised is one - court without jurisdiction


purely of law or where public
- when deprived of substantial rights
interest is involved

REQUIREMENTS:
Note: in the cases, in event of denial of
1. verified petition in 7 legible copies petition, and in exercise of original
jurisdiction, remedy is APPEAL
2. it should be filed not later than 60
days from notice of judgment, MTC to RTC- Rule 40
order or resolution sought to be
RTC to CA- Rule 41 (original), Rule 42
assailed or from denial of M4R
(appellate)
3. contain full names and addresses
CA to SC- Rule 45
of petitioners and respondents,
concise statement of matters The above-stated is the PRINCIPLE OF
involved, factual background of the HIERARCHY OF COURTS
case, grounds relied upon for the
relief prayed for - superior courts would not take
cognizance of a case brought
4. accompanied by clearly legible before it unless the case has been
duplicate originals or certified true

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

decided by the lower courts in the Appeals or with the Sandiganbayan,


exercise of its jurisdiction whether or not the same is in aid of the
courts appellate jurisdiction. If the petition
Same principle in certiorari: involves an act or an omission of a
quasi-judicial agency, unless
MTC to RTC- 60 days
otherwise provided by law or these
RTC to CA- 60 days rules, the petition shall be filed with and
be cognizable only by the Court of
CA to SC- 60 days Appeals.

In election cases involving an act or an


omission of a municipal or a regional trial
65 vs 45 (simplified)
court, the petition shall be filed exclusively
Rule 65 Rule 45 with the Commission on Elections, in aid of
60 days 15 Days its appellate jurisdiction.
Motion for Not
reconsideration
required
Questions of Questions of law NO MORE EXTENSION OF TIME IS GIVEN
jurisdiction TO FILE CERTIORARI!
SC, CA, RTC SC
Special civil action Mode of
appeal/petition for
review

M4R based on M4R based on


Rule 65 as amended by Am 7-7-12: Rule 65 Rule 37
Of interlocutory Of final judgment or
order, as final order, not
Sec. 4. When and where to file the preparation to file including
certiorari interlocutory orders
petition.

The petition shall be filed not later than


QUO WARRANTO (Rule 66)
sixty (60) days from notice of the
judgment, order or resolution. In case - proceeding or writ issued by the
a motion for reconsideration or new court to determine the right to the
trial is timely filed, whether such use or exercise of an office,
motion is required or not, the petition position or franchise and to oust
shall be filed not later than sixty (60) the person holding or exercising
days counted from the notice of the such office, position or franchise if
denial of the motion. his right is unfounded or if he had
forfeited his right to enjoy the
If the petition relates to an act or an privilege
omission of a municipal trial court or
of a corporation, a board, an officer
or a person, it shall be filed with the
Regional Trial Court exercising 2 kinds of quo warranto:
jurisdiction over the territorial area
1. usurpation of public office
as defined by the Supreme Court. It
may also be filed with the Court of

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

2. dissolution of a de facto RTC, CA, SC


corporation
If Solicitor General files- RTC, CA, SC

Rule 66 S1 If other person files- R4 S1 R4 S2

An action for usurpation of a public office,


position, or franchise may be commenced
by a verified petition brought in the name Quo Warranto Quo Warranto
Election Code Rule 66
of the Republic of the Philippines against:
Election Code Rules of Court
COMELEC, RTC. MTC RTC, CA, SC
a. a person who usurps, intrudes into,
Omnibus Election Basis: A8 Consti,
or unlawfully holds or exercises a
Code R66
public office, position, or franchise Not Subject to BP129
Can be filed with Cannot be filed with
b. a public officer who does or suffers MTC MTC
an act which by provision of law Contest right of Show title to public
constitutes a ground for the elected public office or exercise
forfeiture of his office officer to hold public franchise
public office
c. an association which acts as a Ineligibility or Usurpation,
corporation within the Phils without disqualification of forfeiture, illegal
being legally incorporated or person elected to association
without lawful authority to act hold the office
Within 10 days after Within 1 year from
*Sol Gen commences action (S2, S3) proclamation of usurpation of office
candidate
Period: (S11) Filed by any voter Filed by government
or person entitled to
Within 1 YEAR the office

- after cause of ouster or right of


petitioner to hold such office, or
position arose Expropriation (Rule 67)
Within 1 YEAR (action for damages) Eminent Domain- right and authority of
the State to acquire private property for
- after entry of judgment
public use upon observance of due
establishing petitioners right to the
process and payment of just
office in question
compensation
in short...
Expropriation- procedure to be observed
within 1 YEAR from usurpation of public in the exercise of the right of eminent
office domain

REMEDY IF DENIED: Appeal

Constitutional Basis:

Jurisdiction and Venue: A3 S9

57
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 Foreclosure of Mortgage


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 1. date and due execution of


under EO jur of RTC mortgage

2. assignments, if any

NOTE: Expropriation is an instance where 3. names and residences of


multiple appeals are filed (30 day record mortgagor and mortgagee
on appeal in case of multiple appeal)
4. description of mortgaged property
Why? 3 orders issued under Rule 67:
5. statement of date of the note or
1. order of compensation other documentary evidence of the
2. order of expropriation obligation secured by the mortgage
3. final order of just compensation
6. amount claimed to be unpaid
thereon

Remedy of person after 7. names and residences of all


expropriation, no payment made: persons having of claiming interest
in the property subordinate in right
- recover property from expropriator to that of the holder of the
within 5 years after non payment mortgage, all of whom shall be
made defendants in the action

FORECLOSURE OF MORTGAGE (Rule Nature of Action:


68)
- QUASI IN REM
(Tan, Handbook on Civil Procedure and - Service of summons by publication
pleadings, pp 142-145)
Jurisdiciton/Venue:
Foreclosure
MTC-RTC 20-50 OMM MM lower higher
- action by which a mortgagee or
pledge or any other lien holder cuts Where real property or portion thereof is
off the right of debtor whose situated (R4 S1)
property is pledged, because of
default in meeting the obligation

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

Classification of Foreclosure of Mortgage: J Foreclosure, no right of redemption,


except only if morgagee is a bank
1. JUDICIAL FORECLOSURE

To have the property seized and sold by


the court order to the end that the PARTITION (Rule 69)
proceeds thereof be applied to payment of
plaintiffs claim (Tan, Handbook on Civil Procedure and
pleadings, pp 148-149)
2. EJ FORECLOSURE
- Separation, division, assignment of
Possession of property sold may be given a thing held in common among
to purchaser by sheriff after the period of those to whom it may belong
redemption had expired, unless there is a
third person actually holding the property Classes of partition:
adversely to the mortgagor
1. Voluntary- division of property by
the act of the parties themselves

Remedies of Mortgagee in case of default 2. Compulsory- partition by judicial


of mortgagor/waiver of right to foreclose: proceedings at the instance of one
or more of the co tenants without
a. Judicial or extrajudicial foreclosure regard to the wishes of the other co
of mortgage tenants

b. Filing of ordinary action to collect


debt Kinds of Partition

- Here, under b, deemed to have 1. Total- all the things are divided
waived his right to proceed against among the participants
the property in a foreclosure
2. Partial- when some of the things
proceeding
are divided, the rest remaining in
community ownership

Right of Equity of 3. Provisional- when it is temporary


Redemption Redemption or conditional, until a final or
Exists in EJ Exists in J definite division is made
foreclosure foreclosure
By mortgagee By mortgagor 4. Definite- when the resulting
within 1 year from during not less than division is permanent, final, and
registration of the 90 days nor more absolute
sale in the Office of than 120 days from
the Registry of entry of judgment 5. Judicial- takes place when court
Deeds or foreclosure or
intervenes and approves the
even after
foreclosure sale but petition
before judicial
confirmation of the 6. Extrajudicial- division may be
same made by testator himself or by
some person named by deceased
or amicably by interested heirs by
common agreement (Rule 74 S1)

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

R69 S1 Real Action + Action in personam- involves


possession of real property, binding upon
A person having the right to compel the parties
partition of real estate may do so as
provided in this Rule, setting forth in his NOTE: 3 kinds of recovery of real property
complaint the nature and extent of his title
and an adequate description of the real 1. Accion interdictal- summary
estate of which partition is demanded and action for recovery of physical
joining as defendants all other persons possession of the property where
interested in the property dispossession has lasted for more
than 1 year; FE or UD
Covers: REAL or PERSONAL PROPERTY
2. Accion publiciana- plenary action
Jurisdiction/Venue: for recovery of real right of
POSSESSION
MTC RTC 20-50 300-400 OMM MM lower
higher 3. Accion reivindicatoria- action for
recovery of OWNERSHIP
R4 S1 R4 S2
Ejectment- form of action by which
possessory titles to corporeal
hereditariments may be tried and
In case of adverse resolution:
possession obtained which lies to regain
MULTIPLE APPEALS- 30 day record on possession of real property, with damages
appeal (R69 S2) for illegal detention

Why? (tingin ko lang) 2 kinds: FE and UD

Orders under Rule 69: Forcible Entry Unlawful Detainer


Person in physical Withholding by a
1. Order of partition possession of land person of
2. Order of accounting was deprived of possession of land
possession through or building
FISTS
Unlawful ab initio Legal but becomes
NOTE: Partition is one mode of settlement illegal
of estate of the deceased (relate to R75- Not require demand Pay AND vacate;
77) to vacate jurisdictional
Prove prior No need to prove
possession until prior physical
deprived possession
FORCIBLE ENTRY AND UNLAWFUL 1 y from date of 1 year from date of
actual entry on land last demand
DETAINER (Rule 70 in relation to
Rules on Summary Procedure)
Filed by: R70 S1
(issue is that of possession)
Person deprived of possession of land or
(Tan, Handbook on Civil Procedure and
building by FISTS, or lessor, vendor,
pleadings, pp 153-158)
vendee, other person against whom
possession of any land or building is
unlawfully withheld

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

jurisdiction over the subject matter. Cross


claims and compulsory counterclaims not
Jurisdiction/Venue: asserted in the answer shall be considered
barred. The answer to counterclaims or
MTC of the place where property or portion cross claims shall be filed and served
thereof is situated (R4 S1) within 10 days from service of the answer
in which they are pleaded.
Proceedings SUMMARY IN NATURE! (Rules
on Summary Procedure)
- Within 10 DAYS from service of
summons
o Rule 70
Pertinent Provisions of the Rules on o Summ Pro
Summary Procedure:
S6- Effect of Failure to answer
(note the same... applies to all cases Should the defendant fail to answer the
subject to Rules on Summary Procedure, complaint within the period above
ESPECIALLY PROHIBITED PLEADINGS AND provided, the court, motu proprio or on
MOTIONS) motion of the plaintiff, shall render
judgment as may be warranted by the
S3- Pleadings facts alleged in the complaint and limited
to what is prayed for therein. Provided,
The only pleadings allowed to be filed are however, that the court may in its
the: discretion reduce the amount of damages
and AF claimed for being excessive or
1. Complaints otherwise unconscionable. This is without
2. Compulsory counterclaims prejudice to applicability of R15 S4 of the
3. Cross claims pleaded in the answer Rules of Court, if there are 2 or more
4. Answers thereto defendants.

VERIFIED!
S7- Preliminary conference; appearance of
S4- Duty of the Court parties
After the court determines that the case Not later than 30 days after the last
falls under summary procedure, it may, answer is filed, a preliminary conference
from an examination of the allegations shall be held. The rules on pre trial in
therein and such evidence as may be ordinary cases shall be applicable to the
attached thereto, dismiss the case preliminary conference unless inconsistent
outright on any of the grounds apparent with the provisions of this Rule.
therefrom for the dismissal of a civil
action. If no ground for dismissal is found The failure of the plaintiff to appear in the
it shall forthwith issue summons which preliminary conference shall be cause for
shall state that the summary procedure dismissal of the complaint. The defendant
under this Rule shall apply. who appears in the absence of plaintiff
shall be entitled to judgment on his
counterclaim in accordance with S6
hereof. All cross claims shall be dismissed.
S5- Answer
Within 10 days from service of summons, If a sole defendant shall fail to appear, the
the defendant shall file his answer to the plaintiff shall be entitled to judgment in
complaint and serve a copy thereof on the accordance with S6 hereof. This Rule shall
plaintiff. Affirmative and negative not apply where one of 2 or more
defenses not pleaded therein shall be defendants sued under a common cause
deemed waived, except for lack of

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

of action who had pleaded a common it may, during the said period, issue an
defense shall appear at the preliminary order specifying the matter to be clarified,
conference. and require the parties to submit affidavits
or other evidence on the said matters
within 10 days from receipt of said order.
Judgment shall be rendered within 15 days
S8- Record of Preliminary Conference after the receipt of the last clarificatory
Within 5 days after the termination of the affidavits, or the expiration of the period
preliminary conference, the court shall for filing the same.
issue an order stating the matters taken
up therein, including but not limited to: The court shall not resort to the
clarificatory procedure to gain time for the
a. Whether the parties have arrived at rendition of the judgment.
an amicable settlement, and if so,
the terms thereof

b. The stipulations or admissions S18- Referral to Lupon


entered into by the parties
Cases requiring referral to the Lupon
c. Whether, on the basis of the under the provisions of PD1508 where
pleadings and the stipulations and there is no showing of compliance with
admissions made by the parties,
such requirement, shall be dismissed
judgment may be rendered without
the need of further proceedings, in without prejudice and may be revived only
which effect the judgment shall be after such requirement shall have been
rendered within 30 days from complied with.
issuance of the order

d. A clear specification of material


facts which remain controverted S19- Prohibited pleadings and motions
The following pleadings, motions, or
e. Such other matters intended to petitions shall not be allowed in the cases
expedite the disposition of the case covered by this Rule:

a. Motion to dismiss the complaint or


S9- Submission of affidavits and position to quash the complaint or
papers information except on the ground
Within 10 days from receipt of the order of lack of jurisdiction over the
mentioned in the next preceding section, subject matter, or failure to comply
the parties shall submit the affidavits of with the preceding section
their witnesses and other evidence on the
factual issues defined in the order, b. Motion for a bill of particulars
together with their position papers setting
forth the law and the facts relied upon by c. Motion for new trial, or for
them. reconsideration of a judgment, or
for opening of trial

d. Petition for relief from judgment


S10- Rendition of judgment
Within 30 days after receipt of the last e. Motion for extension of time to file
affidavits and position papers, or the pleadings, affidavits, or any other
expiration of the period for filing the same, paper
the court shall render judgment.
f. Memoranda
However, should the court find it
necessary to clarify certain material facts,

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

g. Petition for certiorari, mandamus, However, if RTC decision adverse, (in


or prohibition against any exercise of appellate jurisdiction), M4R
interlocutory order issued by the pwede na
court
- MTC Summary Procedure, only up
h. Motion to declare defendant in
to MTC level lang
default
o Once the case was elevated
i. Dilatory motions for postponement to RTC, it is no longer
summary, but is governed
j. Reply by rules on Ordinary Civil
Actions
k. Third party complaints

l. Interventions
Injunction in FE and UD:

Forcibly Entry / UnlawFul Detainer- YES


S20- Affidavits
The affidavits required to be submitted R70 S15
under this Rule shall state only facts of
direct personal knowledge of the affiants Court may grant preliminary injunction, in
which are admissible in evidence, and accordance with the provisions of R58
shall show their competence to testify to thereof, to prevent defendant from
the matters stated therein.
committing further acts of dispossession
A violation of this requirement may against plaintiff.
subject the party or the counsel who
submits the same to disciplinary action, A possessor deprived of possession
and shall be cause to expunge the through Fe or UD may, within 5 days from
inadmissible affidavit or portion thereof filing of complaint, present a motion in the
from the record. action for FE UD for issuance of writ of
preliminary mandatory injunction to
S21- Appeal
restore him in his possession. The court
The judgment or final order shall be
appealable to the appropriate RTC which shall decide the motion within 30 days
shall decide the same in accordance with from filing thereof
S22 of BP129. The decision of the RTC in
civil cases governed by this Rule including R70 S20
forcible entry and unlawful detainer, shall
be immediately executor, without Upon motion of plaintiff, within 10 days
prejudice to a further appeal that may be from perfection of appeal to the RTC, the
taken therefrom. S10 of Rule 70 shall be latter may issue a writ of preliminary
deemed repealed. mandatory injunction to restore plaintiff in
possession if the court is satisfied that

- 15 DAYS from notice of judgment or - defendants appeal is frivolous or


final order, notice of appeal + bond dilatory, or
- that the appeal of plaintiff is prima
to RTC
o NO M4R (prohibited facie meritorious
pleading)

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

CONTEMPT (Rule 71) - Refusal to subscribe an affidavit or


deposition when lawfully required
(Tan, Handbook on Civil Procedure and to do so
pleadings, pp 162-166)
Punishment:

(RTC/of equivalent or higher rank)


Contempt
F: not exceeding 2k OR
- wilful disregard or disobedience to
court, acting in opposition to I: not exceeding 10 days, OR BOTH
authority, justice, dignity

Contempt of Court
(lower court)
- conduct which tends to bring
authority and administration of law F: not exceeding 200
into disrespect or to interfere with
I: not exceeding 1 day, OR BOTH
or prejudice parties litigant or their
witnesses during litigation

Remedy: CERTIORARI or PROHIBITION (R71


S2)
2 classifications of contempt:

1. Direct Contempt (R71 S1)


2. Indirect Contempt (R71 S2)
2. INDIRECT CONTEMPT (S3)

- Main / Original action


o Can be filed in RTC or MTC
DISCUSSION:

1. DIRECT CONTEMPT (S1) Actions covered:

- A remedy a. Misbehaviour of an officer of


a court in the performance
Acts covered: of his official duties or in his
official transactions
- Misbehaviour in presence of or so
near the court as to obstruct or b. Disobedience of or
interrupt proceedings before the resistance to a lawful writ,
same process, order, judgment of
a court, including act of
- Disrespect toward the court person who, after being
dispossessed or ejected
- Offensive personalities towards
from any real property
people in court
by the judgment or
- Refusal to be sworn or to answer as process of any court of
a witness competent jurisdiction,
enters or attempts or
induces another to enter
into or upon such real

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

property, for the purpose or upon motion


of executing acts of Cant initiate Initiate
ownership or possession, In presence or so Not in presence of
or in any manner near judge judge, disobey court
order
disturbs possession
Rem: certiorari Rem: appeal
given to the person
remedy Original action
adjudged to be entitled
thereof

Note highlighted: case in MTC


where case is pending Upon filing of complaint, plaintiff may opt
- If after ejectment, re entered the to file notice of lis pendens with the
property, indirect contempt (relate register of deeds
to Rule 70)

c. Any abuse of or any


unlawful interference with Notice of Lis Pendens
the processes or
proceedings of the court not buyer beware
Notice to buyer of existence of an
constituting direct contempt
adverse claim
as under S1
It is not a pleading
There is need to register it with the
d. Improper conduct tending,
register of deeds
directly or indirectly, to
impede, obstruct, degrade
administration of justice
Rule 13
e. Assuming to be an attorney
or officer of the court and Section 14
acting as such without
authority In an action affecting the title or the right
of possession of real property, the plaintiff
f. Failure to obey subpoena and the defendant, when affirmative relief
duly served is claimed in his answer, may record in the
office of the registry of deeds of the
g. The rescue, or attempted province in which the property is situated
rescue, of a person or
property in the custody of a notice of the pendency of the action
an officer by virtue of an
order or process of a court Said notice shall contain the names of the
held by him parties and the object of the action or
defense, and a description of the property
Remedy: (R71 S11) in that province affected 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 or encumbrancer
judge, motu proprio

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

of the property affected thereby, Written Motion


Notice
be deemed to have constructive notice of Order
the pendency of the action, and Judgment
Demand
only its pendency against the parties Offer of judgment
designated by their real names Resolution
Similar papers

The notice of the lis pendens hereinabove


What are the modes of service of
mentioned
pleading? (R13 S5)
may be cancelled
Personal Service (R13 S6)
only upon order of the court, Service by Registered Mail (R13 S7)
Substituted Service (R 13 S8)
after proper showing that

the notice is for the purpose of molesting


How is it done?
the adverse party, or
Personal Service
that it is not necessary to protect the
rights of the party who caused it to be R13 S6
recorded
Service of papers may be made

By delivering personally a copy to


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

What are the papers required to be NOTE: NO TENDERING under Rule 13 S6!
filed and served under Rule 13?
Sa summons lang yon, when
(PAMNOJDORS) defendant refuses to accept the
same
Pleading subsequent to the
complaint Service by mail
Appearance

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

R13 S7 Effect of non compliance with personal


service?
Service by registered mail shall be made
by Note: Service other than personal service

depositing the copy in the post


office,
in a sealed envelope R13 S11
plainly addressed to the party or
his counsel at his office, if known, Whenever practicable, the service and
otherwise, at his residence, if filing of pleadings and other papers shall
known, be done personally.
with postage fully prepaid and with
instructions to the postmaster to Except with respect to papers emanating
return the mail to the sender after from the court, a resort to other modes
10 days if undelivered must be accompanied by a written
explanation why the service or filing was
If no registry service is available in the not done personally.
locality of either in the sender or the
addressee, service may be done by A violation of this rule may be cause to
ordinary mail. consider the paper as not filed.

IF defendant refuses both modes of State in detail: Effects


service, resort to:
1. A violation of this rule may be
Substituted Service cause to consider the paper as not
filed (R13 S11)
R13 S8 2. The pleading/paper would not be
admissible in court
If service of pleadings, motions, notices, 3. Would not toll the running of the
resolutions, orders, or other papers cannot reglementary period
be made under the 2 preceding section, 4. In case of defendant, it will NOT
the office and place of residence of the RESULT in defendant being
party or his counsel being unknown, declared in default
service may be made by: 5. Rather, the pleading produces no
legal effect
Delivering the copy to the clerk of
court, with proof of failure of both
personal service and service by
When is service deemed completed?
mail
Personal Service (R13 S10)
The service is complete at the time of
such delivery. Personal service is complete upon
actual delivery or by handling a copy
to defendant
Note: Wag ipaghalo ang provisions ng Rule
Service by mail (R13 S10)
13 and Rule 14!!!

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

Service by ordinary mail is complete IF you cannot pay docket fees,


upon the expiration of 10 days after REMEDY?
mailing, unless the court otherwise
provides. File a motion to be declared as
pauper litigant (R3 S21)
Service by registered mail is complete
upon actual receipt by the addressee R3 S21- A party may be authorized to
or after 5 days from the date he litigate his action, claim, or defense as an
received the first notice of the indigent if the court, upon an ex parte
postmaster, whichever date is earlier. application and hearing, is satisfied that
the party is the one who has no money or
Substituted Service (R13 S8) property sufficient and available for food,
shelter, and basic necessities for himself
Substituted service is complete at the and his family
time of delivery of the copy to the
clerk of court, with proof of failure of
both personal service or service by
mail. Such authority shall include

an exemption from payment of

What is constructive service of - docket and


- other lawful fees, and
pleading?
- of transcript of stenographic notes
R13 S10
which the court may order to be furnished
Service by registered mail is complete.. him

..after 5 days from the date he received The amount of docket and other lawful
the notice of the postmaster, whichever fees which the indigent was exempted
date is earlier from paying

- shall be a lien on any judgment


rendered in the case favorable to
FILING- Rule 13 S1- with the office with the the indigent,
clerk of court o unless the court otherwise
provides
Required in ALL INITIATORY
PLEADINGS

+ PAYMENT OF THE REQUISITE DOCKET Any adverse party


FEES (See Rule 1 Section 5)
may contest the grant of such authority
Pag kulang, court to order correct
payment at any time before the judgment is
NOTE: Docket fees are suspended rendered by the trial court
in compulsory counterclaims (SC
If the court should determine after hearing
Resolution 9-21-04)
that the party declared as an indigent is in
fact a person with sufficient income or
property,

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

the proper docket and other lawful fees 2. Alias Summons- issued by the
shall be branch clerk of court upon motion
of the plaintiff in case the
assessed and collected by the clerk of summons are lost, destroyed,
court improperly served, or there is
defect in the manner or form of
If payment is not made within the time
service
fixed by the court,

execution shall issue or the payment


Summons Subpoena
thereof,
a writ or a process (R21 S1)
without prejudice to such other sanctions issued to a
as the court may impose defending party by A process directed
the clerk of court, to a person
delivered by a requiring him to
sheriff, his deputy, attend and to testify
After filing of the complaint and the
or proper court at the hearing or
payment of the requisite legal fees,
office, or any trial of an action, or
suitable person at any investigation
III. SERVICE OF SUMMONS authorized by the conducted by
court issuing the competent authority
Summons or for the taking of
summons, with the
purpose of his deposition.
Writ or process in the name of the
obtaining (Subpoena ad
RP, issued by the Branch clerk of
jurisdiction over the testificandum)
court informing the defendant of
the filing of the case against him, person of the
to file an answer within the defendant and
reglementary period, or else, be giving him notice A process directed
declared in default that an action has to a person
been commenced requiring him to
Office of the Clerk Branch Clerk of against him bring with him any
of Court Court books, documents,
or other things
Office Person
under his control
Receives complaint Serves summons (Subpoena duces
and payment of the upon the defending tecum)
docket fees party
Purpose is to obtain Order for a person
jurisdiction over to appear and to
person of testify at a hearing,
2 kinds of summons: defendant, and to action,
give notice to investigation, or for
1. Original Summons- issued by the defendant that an taking of his
branch clerk of court to the action has been deposition OR to
defendants upon the filing of the commenced against produce books,
complaint and the payment of the him, ordering documents, or other
requisite docket fees defendant to things under his
answer the

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

complaint within control (R21 S1) QUASI IN REM


the time fixed by
these Rules, and Service in person
Substituted service
unless defendant
Publication
answers, plaintiff
will take judgment
by default and may
be granted the Can you serve summons by mail?
relief applied for
(R14 S2) NO

Served on the May be served to a


defendant non-party
How to serve summons?
Does not need Needs tender of
tender of kilometrage, Service in person on defendant
kilometrage and attendance fee, and (R14 S6)
other fees reasonable cost of
The summons shall be served by handing
production fee
a copy thereof to the defendant in person.
Original or alias Ad testificandum or
duces tecum
Tendering summons to
Upon filing of the During trial or
defendant (R14 S6)
complaint and investigation
payment of In case defendant refuses to receive or
requisite docket sign for it, by tendering it to him, done
fees through:

1. Leaving copy of the summons to


Note: significant to know whether the the defendant who refuses to
action is in personam, in rem, or quasi in receive it
remfor purpose of service of summons
2. The officer serving the summons
shall make an affidavit addressed
to the court stating that the time,
FE and UD- in personam actions place, manner of service of
summons, and that despite efforts
to try and serve the summons in
person on defendant, the same
IN PERSONAM
refused to receive it, as well as the
Service in person manner of non-receipt
Substituted service

IN REM
Substituted Service of
Service in person Summons on defendant (R14
Substituted Service S7)
Publication
Extraterritorial Service Requisites;

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

Impossibility of the personal Suffices under the following instances:


service of summons within a
reasonable time 1. Upon defendant designated as
The efforts exerted to locate the unknown owner or the like, or
person to be served whenever his whereabouts are
unknown and cannot be
To whom served / how? ascertained by diligent inquiry (R14
S14)
By leaving copies of the summons at:
2. When defendant does not reside
1. Defendants residence with some and is not found in the Philippines,
person of suitable age and and the action: (AREAR14 S15)
discretion then residing therein or
2. By leaving the copies at - Affects personal status of the
defendants office or regular place plaintiff or
of business with some competent - Relates to, or the subject of which,
person in charge thereof is property within the Philippines in
which defendant has or claims a
Through process server or upon motion- lien or interest, actual or
by service of summons by substituted contingent, or
service - In which the relief demanded
consists, wholly or in part, in
How is a person deemed of suitable
Excluding the defendant from any
age and discretion?
interest therein or
- The property of the defendant has
1. Of legal age
2. With sufficient knowledge and been Attached within the
comprehension that what he is Philippines
receiving on behalf of defendant
3. When defendant ordinarily resides
are summons notifying defendant
in the Philippines but who is
that a suit was brought against the
temporarily out of it (R14 S16)
same, AND PREFERABLY KNOWS
HOW TO SPEAK ENGLISH

Can there be personal service of


summons in in rem actions?
Service by publication in a
newspaper of general Yes. R14 S15 states that when defendant
circulation does not reside and is not found in the
Philippines, and the action affects the
R14 S15
personal status of the plaintiff or relates
Service by leave of court by publication in to, or the subject of which, is property
a newspaper of general circulation in such within the Philippines in which defendant
place and for such time as the court may has or claims a lien or interest, actual or
order, in which case a copy of the contingent, or in which the relief
summons and order of the court shall be demanded consists, wholly or in part, in
sent by registered mail to the last known excluding defendant from any interest
address of the defendant. therein, or the property of defendant has
been attached within the Philippines,

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

service may, by leave of court, be effected or regular place of


out of the Philippines by: business with some
competent person
1. Personal service as under S6** in charge thereof

2. By publication in a newspaper of
general circulation in such places Through process
and for such time as the court may server or upon
order, in which case a copy of the motion- by service
summons and order of the court of summons by
shall be sent by registered mail to substituted service
the last known address of
defendant, or

3. In any other manner the court may


deem sufficient R14 S14

In any action where the defendant is


designated as an unknown order, or the
Substituted Service vs Extraterritorial
like, or whenever his whereabouts are
Service of Summons
unknown and cannot be ascertained by
Substituted Extraterritorial diligent inquiry, service may, by leave of
Service Service court, be effected upon him by
publication in a newspaper of general
Requisites; Arises in case circulation and in such places and for
defendant is non such time as the court may order.
Impossibility of the resident, in abroad,
personal service of - Instance where in personam, yet
action in rem, by
summons within a publication is allowed (exception to
reasonable time way of personal
service outside of the general rule)
o Identity is unknown or
The efforts exerted Phils, by publication
to locate the person in a newspaper of whereabouts are unknown
to be served general circulation,
or in any other
manner the court Defective service of summons, remedy:
To whom served /
may deem sufficient
how?
M2D Rule 16 S1a, that the court has no
By leaving copies of jurisdiction over the person of the
the summons at: defending party

Defendants
residence with
some person of 3 options of the court:
suitable age and
discretion then 1. GRANT M2D- as plaintiff, refile the
residing therein or case, unless tainted with grave
abuse of discretion
By leaving the
copies at 2. DENY M2D
defendants office

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

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

When defendant is a prisoner confined in a


3. ISSUANCE OF ALIAS SUMMONS
jail or institution, service may be effected
upon him by the officer having the
management of such jail or
Can Rule 16 S1a be a ground for Motion to institution who is deputized as a
dismiss under Rules on Summary special sheriff for said purpose.
Procedure?

YES. General rule, motion to dismiss not


allowed, except #1 instance, lack of Upon Minors and Incompetents
jurisdiction over the person of the
R14 S10
defending party (RULES ON SUMMARY
PROCEDURE) When defendant is a minor, insane, or
otherwise an incompetent, service shall be
Reason: the court cannot proceed with the
made upon him personally or on his
case without jurisdiction over the person
legal guardian if he has one, or if
of the defending party
none, upon his guardian ad litem
Exception to exception: SMALL CLAIMS whose appointment shall be applied
for by the plaintiff. In case of a minor,
service shall be made on his father or
mother.
To whom summons are made?

Upon domestic private juridical


1. Ordinary defendant entity
Upon an entity without juridical R14 S11
personality
When the defendant is a corporation,
R14 S8 partnership, or association organized
When persons associated as an entity under the laws of the Philippines without a
juridical personality, service may be made
without a juridical personality are sued

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

on the President, Managing Partner, unknown and cannot be ascertained by


General Manager, Corporate diligent inquiry, service may, by leave of
Secretary, Treasurer, or In House court, be effected upon him by
Counsel publication in a newspaper of general
circulation and in such places and for
NOTE: the LIST IS EXCLUSIVE!!!!! such time as the court may order.

Service upon foreign private


juridical entity
Extraterritorial Service
R14 S12
R14 S15
When the defendant is a foreign private
juridical entity which has transacted When the defendant does not reside and
business in the Philippines, service may be is not found in the Philippines, and the
made on its resident agent designated in action affects the personal status of
accordance with law for that purpose, or, if plaintiff or relates to, or the subject of
there be no such agent, on the which, is property within the Philippines, in
government official designated by law to which the defendant has or claims a lien
that effect, or on any of its officers or or interest, actual or contingent, or in
agents within the Philippines. which the relief demanded consists, wholly
or in party, in excluding defendant from
any interest therein, or the property of the
defendant has been attached within the
Service upon public
Philippines, service may, by leave of court,
corporations
be effected out of the Philippines by
R14 S13 personal service as under S6; or by
publication in a newspaper of general
When the defendant is the Republic of the circulation in such places and for
Philippines, service shall be made on such time as the court may order, in
the Solicitor General; in case of a which case a copy of the summons
province, city or municipality, or like public and order of the court shall be sent
corporations, service may be effected by registered mail to the last known
on its executive head, or on such address of the defendant, or in any
other officer or officers as the law or other manner the court may deem
the court may direct. sufficient. Any order granting such
leave shall specify a reasonable time,
which shall not be less than 60 days
after notice, within which the
Service upon defendant whose
defendant must answer.
identity or whereabouts are
unknown

Upon residents temporarily out


of the Philippines
R14 S14
R14 S16
In any action where the defendant is
designated as an unknown order, or the When any action is commenced against a
like, or whenever his whereabouts are defendant who ordinarily resides within

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

the Philippines, but who is temporarily out 1. Complaint in intervention- because


of it, service may, by leave of court, be third person submitted to
also effected out of the Philippines, jurisdiction of the court
as under the preceding section.
2. Not in permissive counterclaim-
because defendant aka original
plaintiff is already a party to the
If summons cannot be served because non action, jurisdiction over him in
resident, unknown, or out of the Phils, as original complaint was already
plantiff, what is your remedy? taken from the start

Convert action in personam to quasi in 3. In case of formal not substantial


rem amendments

A vs B Corporation, action for sum of


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

Court acquires jurisdiction over the Pag pinaserve mo sa process server,


RES meron, but not required (abutan mo na
Because nature of the case has lang para hindi kawawa, sige ka, baka
become quasi in rem hindi i serve)

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

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


summons required to be served? attachment, issued ex parte

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

1. Substantial not merely formal


amendment
Relate Rule 14 to Rule 58
2. Other parties are impleaded
Ex parte issuance of preliminary
3. With respect to third party injunction
complaint, serve upon third party To implement, serve summons
defendant (relate to R6 S11)

4. With respect to fourth party


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

EXCEPTION TO SERVICE OF SUMMONS:

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

Voluntary appearance IV. REFER TO THE FOLLOWING:

1. Filed responsive pleading Motion to Dismiss (Rule 16)


2. Submitted to jurisdiction of the
court, Motion for Bill of Particulars (Rule
12)
EXCEPT:
Motion to amend the pleading (Rule
When questioning the jurisdiction 10)
of the court
Motion for Extension of Time to File
Rule 14 S20 Responsive Pleading (Rule 11)

S20- Voluntary appearance Motion for Summary Judgment


(Rule 35)
The defendants voluntary appearance
shall be equivalent to service of summons.
The inclusion in a motion to dismiss of Order of Default/Judgment by
other grounds aside from lack of Default (Rule 9)
jurisdiction over the person of the
defendant shall not be deemed a
voluntary appearance.
ONE-AT-A-TIME,

A. MOTION TO DISMISS (Rule 16)


Can the court dismiss a case motu
proprio for lack of jurisdiction over
the person of the defending party for Motion to dismiss
defective service of summons?
A motion to dismiss in an
NO! application for relief filed by an
original defendant, a defendant in
Dismissal shall only be by MOTION!
a permissive counterclaim, cross
Motion to dismiss
claim, 3rd 4th etc party complaint,
Rule 9 S1 (relate to Rule 16) provides for complaint in intervention, filed
the following instances when the court within the time for but before filing
may dismiss a case motu proprio: the answer to the complaint or
pleading asserting a claim
Lack of jurisdiction over the subject After service of summons, before
matter filing of a responsive pleading
Litis pendencia
Res judicata NOTE: Motion to dismiss is not a pleading!
Prescription It is not a responsive pleading! Hence, if
there is motion to dismiss, the complaint
DOES NOT INCLUDE: lack of jurisdiction may still be amended as a matter of right
over the person of the defending party even if there is a motion to dismiss!
(Wala to!)

Grounds for motion to dismiss:


After service of summons,

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

Rule 16 S1 states that within the time for Exclusive original jurisdiction of
but before filing the answer to the courts, if not within, then M2D is
complaint or pleading asserting a claim, a proper
motion to dismiss may be made on basis
of the following grounds: GRANTED:

a. That the court has no - Refile + docket fees OR


- Amend complaint to confer
jurisdiction over the person of
jurisdiction (no need for docket
the defending party
fees)
Relate to R14
DENIED:
Jurisdiction over defendant may be
File an answer within the balance of the
acquired by: voluntary appearance or by
period prescribed by Rule 11 to which
valid service of summons, except if
entitled at the time of serving motion, but
appearance is to question the jurisdiction
not less than 5 days in any event,
of the court
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
GRANTED: assigning as error the denial of the motion
to dismiss. And when the denial is tainted
Refile with grave abuse of discretion amounting
Move for alias summons
to lack or excess of jurisdiction on the part
DENIED: of the court, file for certiorari under Rule
65.
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event, c. That venue is improperly laid
computed from receipt of notice of denial.
Then proceed with the trial, and when the Note: Rule 4
decision is adverse, file an appeal
assigning as error the denial of the motion GRANTED:
to dismiss. And when the denial is tainted
Refile, except if GAD, then
with grave abuse of discretion amounting
certiorari Rule 65
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule DENIED:
65.
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
b. That the court has no
not less than 5 days in any event,
jurisdiction over the subject
computed from receipt of notice of denial.
matter of the claim
Then proceed with the trial, and when the
NOTE: decision is adverse, file an appeal
assigning as error the denial of the motion
Subject matter (BP129- conferred to dismiss. And when the denial is tainted
by law) with grave abuse of discretion amounting

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

to lack or excess of jurisdiction on the part be rendered in one, regardless of


of the court, file for certiorari under Rule which party is successful, would
65. amount to res judicata in the other
case

d. That plaintiff has no legal Which should be dismissed in case of


capacity to sue litis pendencia? The 1st, 2nd, 3rd, 4th
action?
GRANTED:
The later case(s) would be dismissed.
Refile

DENIED:
GRANTED:
File an answer within the balance of the
period prescribed by Rule 11 to which Appeal
entitled at the time of serving motion, but
not less than 5 days in any event, DENIED:
computed from receipt of notice of denial.
File an answer within the balance of the
Then proceed with the trial, and when the
period prescribed by Rule 11 to which
decision is adverse, file an appeal
entitled at the time of serving motion, but
assigning as error the denial of the motion
not less than 5 days in any event,
to dismiss. And when the denial is tainted
computed from receipt of notice of denial.
with grave abuse of discretion amounting
Then proceed with the trial, and when the
to lack or excess of jurisdiction on the part
decision is adverse, file an appeal
of the court, file for certiorari under Rule
assigning as error the denial of the motion
65.
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
e. That there is another action of the court, file for certiorari under Rule
pending between parties for 65.
the same cause

aka LITIS PENDENCIA


f. That the action is barred by
Elements: prior judgment or by the
statute of limitations
1. Identity of parties or at least such
parties representing the same Aka RES JUDICATA
interests in both actions
Elements:
2. That there is substantial identity in
the cause of action and in the relief There is previous final judgment or
sought, the relief being founded on order
the same facts
The previous final judgment is a
3. Identity in the two cases would be judgment upon the merits
such that any judgment that may

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

Jurisdiction over the subject matter File an answer within the balance of the
and the parties by the court period prescribed by Rule 11 to which
rendering it entitled at the time of serving motion, but
not less than 5 days in any event,
There must be identity of the computed from receipt of notice of denial.
parties, of subject matter, and of Then proceed with the trial, and when the
cause of action between the first decision is adverse, file an appeal
and second actions assigning 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, file for certiorari under Rule
Aka PRESCRIPTION 65.

GRANTED:
h. That the claim or demand set
Appeal forth in the plaintiffs pleading
has been paid, waived,
DENIED:
abandoned, or otherwise
File an answer within the balance of the extinguished
period prescribed by Rule 11 to which
GRANTED:
entitled at the time of serving motion, but
not less than 5 days in any event, Appeal
computed from receipt of notice of denial.
Then proceed with the trial, and when the DENIED:
decision is adverse, file an appeal
File an answer within the balance of the
assigning as error the denial of the motion
to dismiss. And when the denial is tainted period prescribed by Rule 11 to which
entitled at the time of serving motion, but
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part not less than 5 days in any event,
computed from receipt of notice of denial.
of the court, 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. And when the denial is tainted
g. That the pleading asserting the with grave abuse of discretion amounting
claim states no cause of action to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
Aka FAILURE TO STATE CAUSE OF ACTION
65.
GRANTED:

Refile
i. That the claim on which the
Amend the pleading
action is founded is
DENIED: unenforceable under the
Statute of Frauds

79
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

(note: 1403, NCC) decision is adverse, file an appeal


assigning as error the denial of the motion
GRANTED: to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
Appeal
to lack or excess of jurisdiction on the part
DENIED: of the court, file for certiorari under Rule
65.
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
MOTU PROPRIO DISMISSAL: (see
not less than 5 days in any event,
underlined below)
computed from receipt of notice of denial.
Then proceed with the trial, and when the Rule 9 S1
decision is adverse, file an appeal
assigning as error the denial of the motion Defenses and objections not pleaded
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting either in a motion to dismiss or
to lack or excess of jurisdiction on the part
in the answer
of the court, file for certiorari under Rule
65. are deemed waived

j. That a condition precedent for However, when it appears from the


filing the claim has not been pleadings or the evidence on record that
complied with

GRANTED:
1. the court has no jurisdiction
General Rule: refile plus comply over the subject matter,
with condition precedent, EXCEPT:
2. that there is another action
In case of wilful and deliberate pending between the parties
forum shopping, which operates as for the same cause, or
dismissal with prejudice, hence,
3. that the action is barred by
In the latter case, Appeal prior judgment or by statute of
limitations,
In case of non exhaustion of
administrative remedies,

Exhaust then refile the court shall dismiss the claim

DENIED:

File an answer within the balance of the NOTE ALSO: Rule 7 S5


period prescribed by Rule 11 to which
entitled at the time of serving motion, but Hence, summing up Rule 16,
not less than 5 days in any event,
computed from receipt of notice of denial. WITH PREJUDICE- e, f, h, i of Rule 16
Then proceed with the trial, and when the

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

WITHOUT PREJUDICE- the rest of Rule 16 R48 or to comply with orders,


circulars, or directive of the court
without justifiable cause, and

9. The fact that the order or judgment


appealed from is not appealable

Rule 50 S1- Motion to dismiss appeal


Side note: RULES ON MOTION
An appeal may be dismissed by the CA on
its own motion or on that of appellee, Note requirements of written motion:
on the following grounds:
1. Notice of hearing (Due process)- 3
1. Failure of the record on appeal to daay notice rule
show on its face that the appeal
was taken within the period 2. Set hearing 10 days after filing of
prescribed by these Rules the motion

2. Failure to file notice of appeal or 3. Proof of service (different from


the record on appeal within the proof of mailing, only as far as
period prescribed by these Rules filing)

3. Failure of appellant to pay the - To see whether the adverse party


docket and other lawful fees was able to receive the motion
prescribed in S5 of R40 and S4 Rule
41 4. IF by registered mail, accompanied
by proof of service, explanation
4. Unauthorized alterations, why not done via personal service
omissions, or additions in the (R13 S11)
approved record on appeal as Other party files comment or
provided in S4 of Rule 44 objection

5. Failure of appellant to serve and 5. File reply to comment


file the required number of copies
of his brief or memorandum within
the time provided by these Rules IF requisites are not complied with,
6. Absence of specific assignment of 1. *the motion shall be treated as a
errors in the appellants brief, or of worthless piece of paper which the
page references to the record as clerk of court has no right to
required in S13 par a, c, d, f of Rule receive and the court has no
44 authority to act upon (mere scrap
7. Failure of appellant to take
of paper)
necessary steps for the correction
or completion of the record within 2. It does not interrupt the running of
the time limited by the court in its the prescriptive/reglementary
order period for the filing of the requisite
pleading
8. Failure of appellant to appear at
the preliminary conference under

81
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

3. It will be ground for denial of the Movant is entitled to the relief or


motion remedy sought as a matter of
discretion on the part of the court
4. The motion shall be considered as
not filed Litigated Motion
Execution of the act subject of the Motion made with notice to the
motion, because it would be adverse party to give him an
deemed as a final order opportunity to oppose it

If act is adversely ruled due to non Special Motion


compliance with the Rules on Motion, file A motion addressed to the
M4R within 15 days (Rule 37) discretion of the court

LITIGATED NON LITIGATED Examples of Litigated Motions:


MOTION MOTION
Motion to dismiss
Comply with No need to comply
requisites for with all the Motion to declare defendant in
written motion requirements, but default
with need to hear
Motion for summary judgment
on the motion

If not, would affect Motion for judgment on the


the right of parties pleadings
IF not, then not set
Motion for new trial
for hearing
Motion for reconsideration

Motion to dismiss complaint upon


What is a motion?
plaintiffs motion
R15 S1
Motion to lift order of default
A motion is an application for relief other
Motion to declare a party in direct
than by a pleading
contempt

Motion for demurrer to evidence


What are the kinds of motions?
Motion for consolidation or
Motion ex parte / Non Litigated severance of case
Motion
Motion for trial by commissioner
Made without the presence of or
notification to the other party Motion to strike out evidence or
because the question generally testimony off the record
presented is not debatable

Motion of course
Examples of non-litigated motions:

82
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Motion to reset pre trial Memorandum- not a pleading

Motion to postpone pre trial Amendment if order granting motion to


dismiss, pwede, for as long as the motion
Motion to extend time for filing is final and executory
pleadings

Motion to set case for pre trial


OF the 10 grounds,

Motion to dismiss after a


Motions that need to be verified: responsive pleading,
Motion for relief from judgment PWEDE, raise as affirmative defense, then
set the motion to dismiss for hearing
Motion to lift order of default

Motion to postpone trial


B. MOTION FOR BILL OF
Motion for new trial on ground of
PARTICULARS (R12)
FAME
(Note: Different from motion for bill of
All motions for provisional remedies: particulars in Criminal Procedure)

Motion for Bill of Motion for Bill of


Motion for preliminary attachment Particulars in Civ Particulars in
Pro Crim Pro
Motion for dissolution of
preliminary injunction Rule 12 R116 S9

Motion for writ of replevin May be filed before May be filed before
responding to a arraignment
Motion in support pendent lite pleading

Motion to postpone for absence of Address any matter Address alleged


evidence in the pleading not defects in the
averred with criminal complaint
Motion to postpone for illness of a sufficient or information
party or counsel definiteness or
particularity

Purpose is to Purpose is to enable


Rule 16- relate to Rule 10 prepare responsive properly to plead
pleading and prepare for trial
Amendment as a matter of right if a
motion to dismiss is filed- PWEDE!
Because motion to dismiss is NOT a
responsive pleading Note: the motion is a LITIGATED MOTION

Motion to dismiss- not a pleading To clarify ambiguities

Position paper- not a pleading Done before filing of a responsive pleading

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

What is a bill of particulars? 8. Motion and notice of hearing must


be served at least 3 days before
R12 S1 states that a bill of particulars is a the date of hearing
more definite statement of any matter
which is not averred with sufficient 9. Proof of service
definiteness or particularity, with the
purpose of aiding in the preparation of a
responsive pleading.
The motion for bill of particulars is
denied. Remedy?

When do you file bill of particulars? R12 S5

R12 S1 states that a bill of particulars is After service of the Bill of Particulars or of
filed before responding to a pleading, a more definite pleading, or after notice of
following the reglementary periods denial of his motion, the moving party
provided for under R11. (If the pleading is may file his responsive pleading within the
a reply, the motion must be filed within 10 period to which he was entitled at the time
days from service thereof) of filing his motion which shall not exceed
5 days in any event

Requirements for filing Bill of


Particulars: Effect of order of failure to comply to
file Bill of Particulars
(R12 S1 in relation to R15)
R12 S4
1. A written motion by the defending
party before the court for a bill of If the order is not obeyed, or in case of
particulars insufficient compliance therewith, the
court may order the striking out of the
2. If the pleading is a reply, the pleading or the portions thereof to which
motion must be filed within 10 the order was directed, or make such
days from service order as it deems just.

3. The motion shall point out the (File a motion to strike out the pleading)
defects complained of, the
paragraphs wherein they are
contained, and the details desired
Motion for Bill of Particulars:
4. The motion is to be filed before the
Granted: Clarify, file bill of particulars
filing of responsive pleading
Denied, answer within the plenary period
5. In writing

6. Hearing of motion set by applicant


IS bill of particulars part of a
7. Notice of hearing shall be
pleading?
addressed to all the parties
concerned not later than 10 days YES!
from the filing of the motion

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

R12 S6 provides that a bill of particulars admissions made in the old


becomes part of the pleading for which it pleading
is intended.

2. Amendment by leave of court:


C. MOTION TO AMEND THE (R10 S3)
PLEADING (Rule 10)
Except as provided in the next preceding
Amendment, as provided under R10 S1, is section, substantial amendments may be
the process of: made only upon leave of court

1. Adding or striking out an allegation - Amendment is substantial


or name of any party or - A responsive pleading had already
2. Correcting a mistake in the name been served
of a party or a written or
inadequate allegation or
description in any other respect,
3. Formal Amendments (R10 S4)
a. So that the actual merits of
the controversy may A defect in the designation of the parties
speedily be determined, or other clearly clerical or typographical
b. Without regard to
errors may be summarily corrected by the
technicalities,
c. And in the most expeditious court at any stage of the action, at its
initiative or on motion, provided no
and inexpensive manner
prejudice is caused thereby to the adverse
IN SHORT: party.

Amendment is the process of


adding or striking out or correcting
4. Amendments to conform or to
a name or allegation
authorize presentation of
Amendment as a matter of right evidence (R10 S5)

- To correct alterations in a When issues not raised in the pleadings


PLEADING (not in a motion) are tried with the express or implied
consent of parties, they shall be treated as
if raised in the pleadings, pleadings may
be amended to conform to the evidence,
Kinds of amendments:
and failure to amend does not affect the
1. Amendment as a matter of result of the trial of these issues
right: (R10 S2)
- With already presentation of
A party may amend his pleading once as a evidence, but as far as allegations
matter of right at any time before a are concerned, there is
responsive pleading is served or in the discrepancy, so, amendment is
case of a reply, at any time within 10 days allowed to conform to evidence
o NOTE: meron din to sa
after it is served.
criminal procedure
- Once the pleading is amended, the
old pleading is no more, EXCEPT,

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

5. Substantial amendments remedies, and the original is


superseded by amendment, any
Amendment of the pleading which would provisional remedy is affected by
change the original cause of action amendment

Amendment of complaint, which includes


prayer for writ of attachment, the
6. Amendment to confer
provisional remedy shall be DISSOLVED.
jurisdiction

Amendment as a matter of right, so far as


no responsive pleading is served Relate Rule 10 to Rule 6

- When the answer does not allege


cross claim, counterclaim,
Question: Amendment as a matter of o Remedy: AMENDMENT of
right, there is second motion to amend
the pleading
(not once as a matter of right), is the - Answer omitted counterclaim or
second motion to amend a matter of right cross claim,
or a matter of discretion? o Remedy is to AMEND the
answer
(Question unanswered yet)

Relate to Rule 2
If there is no responsive pleading yet-
amendment as a matter of right - In case of non joinder of causes of
action,
Once- matter of discretion o AMEND the pleading

Amendment as a matter of right


Relate to Rule 3
DENIED: remedy- MANDAMUS
- Related to joinder of parties,
o AMEND the complaint

Amendment with leave of court (after the


filing of a responsive pleading) Related to Rule 14 and Rule 57
DENIED: Remedy? - In personam to quasi in rem,
publication is allowed
Certiorari Rule 65 in relation to Rule
- Substantial amendment
41 S1 o Service of summons
Order is interlocutory
required
- Amendment of complaint to join
another party,
Relate Rule 10 to Provisional Remedies o Need to serve summons

If the original complaint or verified


complaint has provisional

86
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Amendment of the answer? 3PC? 4PC? of the order S7)


Complaint in intervention? admitting the same.
An answer earlier
PWEDE!- amendment of the pleadings filed may serve as
naman ang tinutukoy eh the answer to the
amended complaint
if no new answer is
filed (R11 S3)

Amended Supplemental Supersedes original Supplements


Pleading Pleading pleading original pleading

Refers to facts Refers to facts With or without With leave of court


existing at the time arising after the leave of court
of the filing of the original
commencement of pleading
the action Relate to Rule 16

Takes the place of Taken together with The court may either deny the
the original the original motion to dismiss, grant the motion
pleading pleading to dismiss, or ORDER THE
AMENDMENT OF THE PLEADING
Can be made as Always with leave of
matter of right court
when no responsive
pleading has yet Is there amendment of the pleading
been filed in summary procedure?

When amended A substantial YES


pleading is filed, a pleading does not
new copy of the require the filing of - As a matter of right
entire pleading a new copy of the - As a matter of discretion
o NO PROHIBITION under the
must be filed entire pleading
Rules on Summary
Amendment as a A supplemental Procedure
matter of right is to pleading may be
be answered before answered within 10
the filing of the days from notice of
D. MOTION FOR EXTENSION OF
responsive the order admitting
TIME TO FILE RESPONSIVE
pleading, (within 15 the same, unless a
PLEADING (Rule 11)
days after being different period is
served with a copy fixed by the court. Rule 11 S11
thereof)(R11 S3) The answer to the
complaint shall Section 11
serve as answer to
the supplemental
Amendment by
complaint if no new
leave of court is to Upon motion and on such terms as may
or supplemental
be answered within be just,
answer is filed (R11
10 days from notice

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

the court may extend the time to plead EXCEPTION TO EXCEPTION:


provided in these Rules
Small Claims Cases- motion to dismiss
absolutely hindi pwede

The court may also, upon like terms,

allow an answer or E. SUMMARY JUDGMENT (Rule 35)

other pleading to be filed Summary judgment

after the time fixed by these Rules - judgment rendered by the court
without trial if it clearly appears
that there exists no genuine issue
or controversy as to any material
Extend, BASED ON CAUSE
fact, except as to the amount of
damages

Not a litigated motion S1 and 2- PLAINTIFF or DEFENDANT Files

no need for hearing, notice, and Plaintiff- at any time after the pleading
filing in answer thereto has been served

Defendant- at any time

3 day notice rule- further motion 3 days NOTE: LITIGATED MOTION


before hearing
GRANTED:
10 days- motion set for hearing at least 10
- remedy is APPEAL
days o final judgment on the merits

DENIED:
Is bill of particulars allowed in Summary
- plead
Procedure? o there is issue, but there is
no genuine issue
NO (Prohibited pleading)

Maganda ka? Maganda ka nga


Motion to dismiss in Summary Procedure?

NO (prohibited pleading)
ORDER OF DEFAULT /
EXCEPT:
JUDGMENT BY DEFAULT (Rule 9)
1. lack of jurisdiction over the person
of the defending party Order of Default Judgment by
2. lack of jurisdiction over the person Default
of the defendant
Order issued by the Decision or
3. failure to comply with the Barangay
court where judgment by the
Conciliation Proceedings
defendant failed to court after order of

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

file answer default and


presentation of
evidence ex parte NATURE OF ORDER OF DEFAULT:
by plaintiff interlocutory (making reference to R41)

REMEDY:
ORDER OF DEFAULT
MOTION TO LIFT ORDER OF DEFAULT
Rule 9 S3 provides that a defending party
Verified, FAME, Affidavit of Merit
who fails to file an answer to an initiatory
(note what it is, and in what
pleading within the time allowed therefor
instances required [all FAME])
may be declared in default.
Granted: File answer

Denied,
DEFENDING PARTY INCLUDES:
FILE MOTION FOR RECONSIDERATION
In a permissive counterclaim-
original plaintiff - S4 R65
In a 3PC- 3rd party defendant - Interlocutory
In a cross claim- co defendant o NOT Rule 37 as basis
(because Rule 37 applies
Requirements for declaration of
only to Final orders)
default: (R9 S3)
Denied,
1. The court must have validly
acquired jurisdiction over the CERTIORARI RULE 65 with TRO or
person of the defendant either by injunction
service of summons or voluntary
appearance - Dahil pag wala, at may order of
default, tuloy tuloy na + judgment
2. Proof of service of summons on the of default
defendant

3. The defendant fails to answer


within the time allowed therefore NOTE: umaakyat to hanggang SC-
Ordinary and Special Civil actions (from
4. Written motion by claiming party to MTC), [not Spec Pro]
declare defendant in default (NOT
oral motion!)
(state R15 requirements)
MTC

(all special civil actions, original actions in


exercise of original jurisdiction, final
judgment)
Plaintiff failed to file answer, be declared
in default ORDINARY CIVIL ACTION

(R9 in relation to Rule 6) Order of default

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

DENIED,

Motion for reconsideration R9 S3 in relation to Rule 10

DENIED, - Order of default issued by court,


there is amendment of the
Certiorari Rule 65 RTC with TRO (S7 R9 pleading, order of default is
amended by AM 7-7-12) dissolved

DENIED,

Motion for reconsideration Rule 37 with R9 in relation to Modes of Discovery


RTC
- R29
DENIED, o Due to refusal to comply
with the modes of
Notice of appeal with CA Rule 41 (original
discovery, the refusing
jurisdiction of RTC ang certiorari Rule 65)
party may be declared in
apply Neypes, doctrine of hierarchy of
default
courts

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

SC M4R Rule 52
Summary Proceedings

Motion to declare defendant in


DOCTRINE OF HIERARCHY OF COURTS default is a PROHIBITED PLEADING

Higher courts will not entertain any As plaintiff in such a case, file MOTION TO
case brought before it unless the RENDER JUDGMENT
same is decided before the lower
As defendant, dont file motion to admit
courts
answer

- It is equal to motion for extension


Effect of order of default: of time to file pleadings
o PROHIBITED PLEADING
- Lose standing
- Not to participate at the trial but ETO DISKARTE MO, ikaw ang defendant
shall be entitled to notices
- Entitled to 2 copies of decision, - Go to office of the clerk of court,
resolution, substantially amended file your answer, at pag ayaw
pleadings tanggapin, file it by registered mail

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

o Pag nag argue ang kalaban, place is presented by


motion to strike out answer, defendant
WEH!
R1 S6- Liberal GENERAL RULE: certiorari is not a
application of the substitute for lost appeal;
rules, HENCE, you
EXCEPTION: when appeal is not a speedy,
can file answer
adequate remedy

Denied. Remedy?
Summary Procedure
File a motion for reconsideration of the
Given 10 days to answer from judgment or final resolution within 15 days
receipt of service of summons from service thereof before the CA, with
proof of service on the adverse party.

Basis: R52 S1
JUDGMENT BY DEFAULT

Nature: Final Judgment


Denied. Remedy?
R9 in relation to R11
File a petition for review on certiorari
Based on presentation of evidence ex before the SC raising only questions of law
parte which must be distinctly set forth, within
15 days from notice of the denial of
petitioners motion for reconsideration
filed in due time after notice of the
BEFORE JUDGMENT BECOMES FINAL
judgment.
AND EXECUTORY:
Basis: R45 S2 and R45 S1-- CA
REMEDY:
judgment, final order, or resolution
Motion to set aside judgment or final order can be elevated to the SC raising
due to FAME only questions of law

Denied,

Motion for reconsideration Denied. Remedy?

Denied, File a motion for reconsideration of the


judgment or final resolution within 15 days
CERTIORARI Rule 65 with TRO/injunction- from service thereof before the SC, with
PREFERRED over appeal proof of service on the adverse party.

- Because appeal is not the Basis: R52 S1


adequate, speedy remedy
o Judgment kasi is based on
evidence ex parte- no
AFTER FINALITY OF JUDGMENT:
evidence to review because
no evidence in the first Any of the following remedies:

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

Answer to amended counterclaim


1. File petition for relief from
judgment, order, or other Answer to amended cross claim
proceeding on the ground of entry
Answer to amended 3rd 4th etc party
of such judgment or final order, or
complaint
any other proceeding is thereafter
taken against a party in a court Answer to amended complaint in
through FAME (Rule 38 S1) intervention
2. File petition for annulment of Answer to supplemental complaint
judgment or final order or
resolution on the ground of Rejoinder
extrinsic fraud (R47 S1 and 2)
Answer to counter counterclaim
3. File petition for certiorari (Rule 65)
Answer to counter cross claim
4. Collateral Attack
Answer to amended counter
counterclaim
V. FILING OF ANSWER
Answer to amended counter cross
Answer- the pleading setting forth the claim
defending partys defenses

(Bears the same parts of a pleading)


Discuss the periods to answer to
WITHIN WHEN? responsive pleadings under Rule 11
of the Rules of Court:
What are the responsive pleadings?
1. Answer to the original
Rule 6 of the Rules of Court in relation to
complaint
Rule 11 provides for the following
responsive pleadings: R13 S1

Answer to the original complaint Defendant shall file answer to the


complaint within 15 days after service
Compulsory counterclaim
of summons, unless a different period is
Answer to the permissive fixed by the court
counterclaim
R13 S2
Answer to cross claim
Where the defendant is a foreign private
rd th
Answer to 3 4 etc party juridical entity and service of summons is
complaint made:

Answer to complaint in intervention - to a resident agent, answer shall be


filed within 15 days from
Reply service of summons to him

Answer to amended complaint - when it has no resident agent but


has an agent or officer in the

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

Philippines, answer shall be filed


within 15 days after service of
summons to said agent or 3. Answer to permissive
officer counterclaim

- if it has no resident agent nor an R11 S4


agent or officer, and summons is
A permissive counterclaim must be
made on the proper government
answered within 10 days from service
office designated by law to receive
the same (SEC), which will then
send a copy thereof by registered
mail within 10 days to the home 4. Answer to cross claim
office of the foreign private
corporation, answer shall be filed R11 S4
within 30 days after receipt of
A cross claim must be answered within
summons by the home office of
10 days from service
the foreign private entity

R14 S15
5. Answer to 3rd 4th etc party
In case of summons by publication,
complaint
answer shall be filed within the time
specified in the order granting leave to R11 S5
serve summons by publication which shall
not be less than 60 days after notice, Time to answer a 3rd 4th etc party
within which the defendant must complaint shall be governed by the same
answer. rule as the answer to the complaint
(hence, follow R11 S1, 2 plus
In case of a non resident defendant in amendments)
whom extraterritorial service of summons
is made, the period to answer should be
at least 60 days.
6. Answer to complaint in
intervention

2. Compulsory counterclaim R19 S4

(note above periods?) The answer to the complaint in


intervention shall be filed within 15 days
from notice of the order admitting
the same, unless a different period is
fixed by the court

7. Reply

R11 S6

A reply may be filed within 10 days from


service of the pleading responded to

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

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 17-18.


answer to an amended counter claim,
amended cross claim, amended 3rd 4th etc R11 S3 (?)note the periods
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
R11 S7 raise Counterclaim or cross claim?

A supplemental complaint may be YES!


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

Counterclaim Cross Claim


11. Rejoinder
Any claim which a Any claim by one
(?) defending party party against a co
may have against party arising out of
the opposing party the transaction or
occurrence that is
the subject matter
either of the original

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

action or of a If permissive counterclaim, PWEDE


counterclaim Kasi, independent sa main action
therein

Counterclaim with respect to Rule 17

Pwede, proceed after service of


Compulsory Permissive answer (Rule 17 S1 and 2)
Counterclaim Counterclaim

Arises out of or is Does not arise out


necessarily of nor is necessarily Counterclaim with respect to Rule 18
connected with the connected with the
Plaintiff failed to appear in pre trial,
transaction or subject matter of
case is dismissed with prejudice,
occurrence that is the opposing
without prejudice to counterclaim
the subject matter partys claim
of the opposing
partys claim
DEFENSES and DENIALS
Does not require for It may require for its
its adjudication the adjudication the What are the types of defenses?
presence of third presence of third
parties over whom parties over which 1. Negative defense
the court cannot the court cannot
R6 S5
acquire jurisdiction acquire jurisdiction

Barred if not set up Not barred even if Negative defense is the specific denial of
in the action not set up in the the material fact or facts alleged in the
action pleading of the claimant essential to his
cause or causes of action.
Need not be Must be answered
answered, not result or else defendant 2. Affirmative defense
in default can be declared in
R6 S5
default
An affirmative defense is an allegation of
Not an initiatory Initiatory pleading
new matter which, while hypothetically
pleading
admitting the material allegations in the
Docket fees are With docket fees pleading of the claimant, would
suspended nevertheless prevent or bar recovery by
him. 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

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

j. Any other matter by way of substance of the matters relied


confession and avoidance upon for such denial

Ground for motion to dismiss (if M2D not With support dapat
filed or M2D denied), may be pleaded as
an affirmative defense in the answer Specifically deny par 2 __ for being untrue,
the truth of the matter is that...
Motion to set affirmative defense for
hearing,
2. Partial specific denial
- Equivalent to motion to dismiss
o During hearing, defending - Part admission and part denial
party to present evidence
With support dapat
first
INVERTED TRIAL
3. Disavowal of knowledge

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

In good faith, or else, deemed an


admission

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

What is a negative pregnant? Specific not necessarily Specific Denial

- General denials are deemed Answer- no need to verify


admissions
EXCEPT:

1. Actionable Document
Plaintiffs remedy in such a case?
- Document which creates rights,
- JUDGMENT ON THE PLEADINGS which serves as basis for filing of
(Rule 34) the complaint

2. Usury in a complaint

Kinds of Denials: 3. Summary procedure

1. Specific Absolute Denial 4. Answer with permissive


counterclaim
- By specifically denying the
averment and whenever
practicable, setting forth the

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

Not denied under oath an actionable May be taken with leave of court when:
document such as deed of sale or
mortgage, 1. After jurisdiction has been obtained
over any defendant or over the
Failure to verify = deemed property which is the subject of the
admitted action but before an answer has
HENCE, judgment on the pleadings been filed
2. Deposition of a person confined in
Except: prison

1. Fraud/forgery May be taken without leave of court:


2. Not a party to the actionable
document 1. After answer and deponent is not
confined in prison

Scope of examinations:
After jurisdiction is acquired by court,
parties may resort to: 1. Matter which is relevant to the
subject of the pending action
VI. MODES OF DISCOVERY 2. Not privileged
3. Not restricted by a protective order
Rules 23-28
2. Depositions before action or
- Depositions pending action (under pending appeal (Rule 24)
R23)
- Depositions before action or Aka perpetuam rei memoriam
pending appeal (R24)
- Interrogatories to parties under - Objective is to perpetuate
R25 testimony of a witness for future
- Admission by adverse party (R26) use
- Production or inspection of o Taken conditionally, to be
documents or things under (Rule used at the trial only in case
27) deponent is not available
- Physical and mental examination of - Do not prove existence of any right
persons under (Rule 28) and the testimony perpetuated is
not in itself conclusive proof, either
of the existence of any right nor
Discussing each: even of the facts to which they
relate, as it can be controverted at
1. Depositions pending action the trial in the same manner as
(R23) though no perpetuation of
testimony was ever had
Deposition- a written testimony of a BUT, in the absence of any
witness given in the course of a judicial objection to its taking, and even if
proceeding in advance of the trial or the deponent did not testify at the
hearing upon oral examination or in hearing, the perpetuated testimony
response to written interrogatories and constitutes prima facie proof of
where an opportunity is given for cross facts referred to in the deposition
examination

Aka depositions de bene esse 3. Interrogatories to parties (R25)

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

identified, or else, the petition will


- Purpose is to elicit facts from any not prosper
adverse party
- Answers may also be used as This mode of discovery does not authorize
admissions of the adverse party the opposing party or clerk or other
- Written interrogatories and the functionaries of the court to distrain the
answers thereto must be both filed articles or deprive the person who
and served, hence, the answers produced the same of their possession,
may constitute as judicial even temporarily
admissions

6. Physical and Mental


4. Admission by Adverse Party Examination of Persons under
under Rule 26 Rule 28

- Purpose is to expedite trial and - This mode of discovery is available


relieve parties of the costs of in an action in which the mental or
proving facts which will not be physical condition of a party is in
disputed on trial and the truth of controversy, usually arising in
which can be ascertained by controversy in proceedings for
reasonable inquiry guardianship over an imbecile or
- An admission made is for the insane person, while the physical
purpose of the pending action only condition of the party is generally
and cannot be used in other involved in physical injuries cases
proceedings
- Since the results of the
examination are intended to be
made public, the same are not
5. Production or inspection of
covered by physician-patient
documents or things under
privilege
Rule 27

- Applies only to a pending action


and the documents or things Use of depositions:
subject of the motion must only be
those within the possession, 1. Impeach adverse partys witness
control, or custody of a party (relate to evidence)
2. Residing 100 km away, sick or
The documents to be produced must infirm
have the following requisites:

1. Should not be privileged R23 R24- Relate to R134 (Deposition)


2. Should constitute or contain
evidence material to any matter
involved in the action and which
Interrogatories/Admission by adverse
are in the partys possession,
custody, or control party
3. In a petition for production of
1. File answer or comment, or else,
papers and documents, they must
the facts are deemed admitted, no
be sufficiently described and

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

issue, hence, judgment on the evidence


pleadings

Mental and Physical examination of


Production/Inspection of documents or Persons vs Hospitalization of Insane
things Persons

For photographing, copying, Hospitalization of Physical and


inspecting Insane Persons Mental
examination of
Production or Subpoena persons
Inspection of
Documents or Governed by Rule Governed by Rule
Things 101 28

Mode of discovery Process Special proceeding Mode of discovery

By motion By request File a petition File a motion

Filed by Regional Any party may avail


Director of DOH of
Production or Original of
Inspection of Evidence in
Documents or Custody of
Another remedy which may be availed of:
Things Adverse Party
MOTION TO DISMISS BY
Mode of discovery Exception to the
PLAINTIFF (Rule 17)
best evidence rule

By motion By notice What are the grounds for dismissal


under Rule 17?

1. Dismissal upon notice by


If there is no plaintiff (R17 S1)
original document,
because such is in - At any time before service of the
the presence of answer or of a motion for summary
adverse party, the judgment
requesting party
Before filing responsive pleading or
can ask for
motion for summary judgment
production of the
original by way of
notice 2. Dismissal upon motion by
plaintiff (R17 S2)
Without prior With prior
knowledge as to knowledge of Upon approval of the court and
contents contents of the Upon such terms and conditions as
document, because the court deems proper
the requesting party
has the secondary With answer, by way of motion
without prejudice to counterclaim

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

judgment, plaintiff filed notice of


May be filed independently or dismissal of the second complaint
separately based on or including the same
claim as the first complaint

Effect of 2 dismissal rule (R17 S1):


3. Dismissal due to fault of
plaintiff, when for justifiable The second notice of dismissal shall
cause, operate as an adjudication upon the
merits.
Plaintiff fails to appear on the date
of the presentation of his evidence
in chief on the complaint
Exceptions to 2 Dismissal Rule:
Plaintiff fails to prosecute his action
for an unreasonable length of time 1. 1st action is not related to the
second action
Plaintiff fails to comply with these
Rules or any order of the court 2. Court dismissing the second action
is a court not of competent
jurisdiction

What is the 2 dismissal rule? What


are its elements?
Nature of Dismissal of actions under
(R17 S1) -..the notice of dismissal by Rule 17:
plaintiff operates as an adjudication upon
the merits when filed by a plaintiff who (S1), upon notice by plaintiff
has once dismissed in a competent court
an action based on or including the same Unless otherwise stated in the
claim notice, the dismissal is without
prejudice,

(*2 dismissal rule) ..except that a


Elements of 2 dismissal rule: (R17 S1) notice operates as an adjudication
upon the merits when filed by a
1. First complaint filed by plaintiff plaintiff who has once dismissed in
before court of competent a competent court an action based
jurisdiction on or including the same claim
2. At any time before service of
answer or of motion for summary
judgment, plaintiff filed notice of (S2), upon motion of plaintiff
dismissal of the first complaint,
which the court granted (effect The dismissal shall be without
without prejudice) prejudice, unless otherwise
3. Second complaint filed by plaintiff specified in the order
involving an action based on or
including the same claim before (S3), due to fault of plaintiff
court of competent jurisdiction
4. At any time before service of The dismissal shall have the effect
answer or of motion for summary of an adjudication upon the merits

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

unless otherwise declared by the However, in an action for declaration of


court
- nullity or
- annulment of marriage or
- for legal separation,
What are your remedies, as plaintiff,
in such cases? the material facts alleged in the complaint
shall always be proved
S1- dismissal upon notice by plaintiff

refile the case (unless the 2-


dismissal rule applies [?]) Exception that JoP be on motion:

or if so declared with prejudice, - if at pre trial court finds that


appeal the dismissal judgment on the pleadings is
proper, it can render such
judgment motu proprio

S2- dismissal upon motion of plaintiff

Refile the case Allegations not deemed admitted by filing


of judgment on the pleadings:
If the court declares that the
dismissal is with prejudice, appeal - irrelevant allegations
the dismissal - immaterial allegations
- allegations of damages in the
complaint
S3- dismissal due to fault of plaintiff

Appeal the dismissal


Judgment on the Summary
If the court declares that the Pleadings Judgment
dismissal is without prejudice, refile
the case 3 day notice rule 10 day notice rule

Filed by plaintiff Filed by defendant

Another: Based solely on the Based on pleadings,


pleadings depositions,
JUDGMENT ON THE PLEADINGS admissions,
(Rule 34) affidavits

S1 Answer fails to No genuine issue


tender an issue or between the parties
Where the answer there is an
admission of
- fails to tender an issue or material allegations
- otherwise admits the material
allegations of the adverse partys On the merits Interlocutory or on
pleading, the merits

the court may, on motion of that party, There is answer If filed by plaintiff,
direct judgment on such pleading filed filed at any time

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

before answer is Pre Trial Conference- yes


served

Answer
If filed by
defendant, may be Answer to permissive counterclaim
filed at any time
Answer to cross claim
even before answer
Answer to third party complaint
Answer to complaint in intervention
VII. REPLY (R6 S10)
Reply to answer
A pleading, the office or function of which
Reply to answer to permissive
is to deny or allege facts in denial or
counterclaim
avoidance of new matters alleged by way
of defense in the answer and thereby join Reply to answer to cross claim
or make issue as to such new matters.
Reply to answer to third party
If a party does not file such reply, all the complaint
new matters alleged in the answer are
deemed controverted. Reply to answer to complaint in
intervention
R11- may be filed within 10 days from
service of the pleading responded to Rejoinder

VIII. REJOINDER By MOTION

Second pleading on the party on If the motion is not filed, is the case
the part of defendant being his dismissed for failure to prosecute?
answer to the plaintiffs replication
Another form of responsive - Techinically, yes, but ff R1 S6
pleading (liberal construction,
o It is not dismissed

Hence, if plaintiff failed to file motion ex


IX. PRE TRIAL (Rule 18) parte that the case be set for pre trial, the
clerk of court shall issue notice of pre trial
Rule 18 S1 COMPLETE: conference

AFTER the LAST PLEADING ASSERTING


A CLAIM has been served and filed, or
AFTER the EXPIRATION OF THE TIME FOR Pre Trial in Pre Trial in Civil
FILING THE LAST PLEADING ASSERTING A Criminal Cases Cases
CLAIM, a pre trial is to be conducted upon
motion ex parte by plaintiff that the case Mandatory requirement
be set for pre trial After arraignment, After the last
within 30 days from pleading asserting a

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

the date the court claim has been


acquires jurisdiction served and filed
over the accused Pr trial agreement Signed by parties
is in writing, signed and counsel (?)
Rule 118 Rule 18 by accused and
counsel, or else,
No pre trial brief Pre trial brief is cannot be used
required to be filed against accused
and served
Considerations in Considerations in
Counsel of accused Parties and counsel pre trial conference: pre trial:
and prosecutor are are required to
required to appear appear

Plea Possibility of
bargaining amicable
Non appearance Stipulation settlement
may be excused of facts or
only if valid cause is submission
shown, or Marking of
to
representative shall identification
alternative
appear in behalf of evidence
modes of
duly authorized in of the
dispute
writing to enter into parties
resolution
amicable
settlement, submit Waiver of
Simplificatio
to ADR, enter into objections to
n of the
stipulations of facts admissibility
issues
and of document of evidence
Necessity or
Failure of counsel of Failure of plaintiff to Modification
desirability
accused or appear, dismissal of of order of
of
prosecutor to the case with trial if
amendments
appear, and without prejudice, unless accused
to the
acceptable excuse otherwise ordered admits the
pleadings
for lack of by the court charge but
cooperation, court interposes a Possibility of
may impose proper lawful obtaining
sanctions or defense stipulations
Failure of defendant
penalties or
to appear, plaintiff Such
admissions
to present evidence matters as
of facts and
ex parte will promote
of
Presence of private a fair and
documents
offended party is expeditious
to avoid
not required (as trial of the
unnecessary
only required to criminal and
proof
appear at civil aspects
arraignment) of the case Limitation on
the number

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

of witnesses and filed

Advisability No pre trial brief With pre trial brief


of
Order of pre trial
preliminary
signed by accused
conference
and counsel so
of issues to
admissions are
commissione
binding
r
Failure to appear, Failure to appear by
Propriety of
sanctions against plaintiff, dismissal
rendering
counsel and of case with
judgment on
prosecutor prejudice
the
pleadings,
summary
judgment, Failure to appear by
dismissing defendant, plaintiff
the action to present evidence
should a ex parte
valid ground
therefor be
found to
What are the purposes of pre-trial?
exist
(Rule 18 S2)
Advisability
or necessity The court shall consider:
of
suspending a. The possibility of an amicable
the settlement or of a submission to
proceedings alternative modes of dispute
resolution
Such other
matters as b. The simplification of the issues
may aid in
the prompt c. The necessity or desirability of
disposition of amendments to the pleadings
the action
d. The possibility of obtaining
stipulations of admissions of facts
and of documents to avoid
(simplified) necessary proof

Pre Trial In Pre Trial in Civil e. The limitation of the number of


Criminal witnesses

After arraignment After last pleading f. The advisability of a preliminary


asserting a claim conference of issues to a
has been served commissioner

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

g. The propriety of rendering Failure to file the pre trial brief shall have
judgment on the pleadings or the same effect as failure to appear at the
summary judgment or of pre trial.
dismissing the action should a valid
ground therefore the found to exist

h. The advisability or necessity of PRE TRIAL BRIEF


suspending the pleadings
Required to be filed at least 3 days
i. Such other matters as may aid in before the Pre Trial Conference
the prompt disposition of the action
Ensure na really good, for filing
memoranda

S6- Pre trial brief (all remedies, may bayad, bawat pleading)
pagkakitaan
The parties shall file with the court and
serve on the adverse party, in such
manner as shall ensure their receipt
Failure to file at pre trial brief = failure to
thereof at least 3 days before the date of
appear at pre trial, same effect
the pre trial, their respective pre trial
briefs which shall contain, among others:

Requisites for appearance at the pre


trial:
a. A statement of their willingness to
enter into amicable settlement or (R18 S4)
alternative modes of dispute
resolution, indicating the desired 1. Duty of the parties and their
terms thereof counsel to appear at the pre trial

b. A summary of stipulated facts and 2. The non-appearance of a party


proposed stipulation of facts may be excused only if a valid
cause is shown therefor or IF A
c. The issues to be tried or resolved REPRENTATIVE SHALL APPEAR IN
HIS BEHALF FULLY AUTHORIZED IN
d. The documents or exhibits to be
WRITING
presented, stating the purpose
thereof
If party a NATURAL PERSON-
e. A manifestation of their having
representative is armed with SPECIAL
availed or their intention to avail
POWER OF ATTORNEY
themselves of discovery
procedures or referral to If party is a JURIDICAL PERSON
commissioners (corporations or partnerships)-
representative is armed with BOARD
f. The number and names of the
RESOLUTION (Board resolution is binding
witnesses, and the substance of
upon the entire corporation, because the
their respective testimonies
Board of Directors [in case of stock
corporations] or the Board of Trustees [in
case of non stock corporations] are the

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

ones who make the decisions of the NOTE: Defendant WILL NOT BE DECLARED
corporation through Board Resolution-- IN DEFAULT! Likewise, there is no such
note that Board Resolution prevails over thing under the 1997 Rules on Civil
SPA) Procedure AS IN DEFAULT (sa luma to)

When defendant fails to appear, 4


SCENARIOS ARE CONTEMPLATED:

- Issuance of order allowing ex parte


Effects of failure to appear at the pre presentation of evidence/before
trial: presentation of evidence
- Order allowing ex parte
Plaintiff fails to appear presentation of evidence was
issued, plaintiff presents ex parte
R18 S5
evidence
The failure of plaintiff to appear at the pre - Before judgment becomes final and
trial conference when so required shall be executory
- After judgment becomes final and
cause for the dismissal of the action. The
executory
dismissal shall be with prejudice, unless
otherwise ordered by the court.

Defendant fails to appear ORDER ALLOWING PLAINTIFFS


PRESENTATION OF EVIDENCE
R18 S5
EX PARTE
The failure of defendant to appear at the
REMEDIES: The order is interlocutory,
pre trial conference shall be cause to allow
hence,
the plaintiff to present his evidence ex
parte and the court to render judgment on File motion for reconsideration,
the basis thereof. based on R65 S4 and R41 S1
- R65 (4)- ..whether such m4r is
required or not..
- R41 (1)- the order allowing ex parte
Remedies in case of failure to appear
presentation of evidence is an
by plaintiff / defendant:
interlocutory order, hence, no
Plaintiff fails to appear appeal may be taken from it

Plaintiff can file an appeal, unless


the dismissal is ruled to be without If M4R denied, file petition for
prejudice, which in such a case, certiorari under Rule 65
defendant would be avail of the
- R41 (1)- the order allowing ex parte
remedy of refiling the case or filing
presentation of evidence is an
a petition for certiorari under Rule
interlocutory order, no appeal may
65
be taken from it, hence, aggrieved
Defendant fails to appear party may file the appropriate
special civil action under Rule 65,
which includes certiorari

106
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Before judgment becomes final


and executory
PRESENTATION OF EVIDENCE
EX PARTE REMEDIES:

Conducted by Court of CLERK OF COURT - Appeal the judgment (Rule 41)


or
- Clerk of court, a LAWYER
o Hence, if judge delegated to - File motion for reconsideration
clerk of court who is not a (Rule 37) or
lawyer, BAWAL
Ground: that the evidence is insufficient to
Can clerk of court charge Commissioners justify the decision or final order
Fee?

BAWAL accdg sa Manual of Clerk of Court - File a motion for new trial (Rule
(ugat ng corruption) 37)

The only time na pwede is when he Ground: FAME which ordinary prudence
is not an employee of a court could not have guarded against and by
reason of which such aggrieved party has
REMEDIES: been impaired in his right

File a motion for reconsideration +


Set aside the Evidence Ex parte
After judgment becomes final
- on the ground that the order is and executory
contrary to law [R37]? OR,
- that, the order allowing ex parte REMEDIES:
presentation of evidence is an
interlocutory order) - File Relief from judgment,
if you fail this, the evidence shall order, or other proceedings
form part of the records of the case under Rule 38 or
kawawa ka cge o GROUND: any proceeding is
thereafter taken against the
party in any court through
FAME
If the motion for reconsideration + motion
to set aside is denied, file a petition for - File for annulment of judgment,
certiorari under Rule 65 final order, or resolution under
Rule 47 or
R41 (1)- the order allowing ex parte o GROUND: extrinsic fraud
presentation of evidence is an
interlocutory order, no appeal may - File petition for certiorari under
be taken from it, hence, aggrieved Rule 65 or
party may file the appropriate o GROUND: GAD amounting
special civil action under Rule 65, to lack or excess of
which includes certiorari jurisdiction on the part of
the tribunal exercising
judicial functions, and there
is no appeal nor any plain,

107
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

speedy and adequate (Rule 30 in relation to Rule 132 S4, 5, 6, 7,


remedy in the ordinary 8)
course of law
A proceeding where parties present
- Make a collateral attack on the evidence and ends in oral
judgment argument

Pre Trial Order With respect to examination of witnesses

- Order issued by the court stating Pre trial brief (see above) presented in
what transpired during the pre trial trial
conference
o Can be amended
accordingly
o By filing motion to amend or All witnesses in pre trial brief to be
correct the pre trial order, presented
within 5 days after receipt
Before witness is presented, offer of
of the pre trial order
testimony, in accordance with purpose in
o NO NEED for counsel to sign
pre trial brief
the pre trial order

Pre Trial conference- relates to judicial


admissions under Rule 129 1. PROPONENTS / PLAINTIFFS
TESTIMONIES AND EVIDENCE IN
Adverse party admits your
CHIEF as well as that of
proposals/stipulations
witnesses
- Deemed admitted
With respect to Rule 7 (parts of a pleading)
Cause of action admitted by defendant, stating the cause of action in the body of
the pleading
- Rule 18 in relation to Rule 34
JUDGMENT ON THE Ultimate facts to be proven during the trial
PLEADINGS of the case
Conclusive on part of admitter, for
purposes of substantial justice ORDER:

Pre Trial Direct Examination

- May be delegated to clerk of court - Transform allegations of the


who is a lawyer complaint in the body of the
pleading
After PRE TRIAL, - Cause of action
- Direct testimony
X. TRIAL - Show sinumpaang salaysay

The best part of law practice HOW, WHEN, WHERE, WHAT, WHY

CONSIDER violations and exceptions:

Leading Questions

- Avoid except in preliminary matters

108
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

- Propound answers which proponent To impleach


desires testimony of
witness
NOTE EXCEPTIONS: hostile witnesses,
To refresh
minors, adverse party, preliminaries
memory of
Is your name Ms X? Leading the witness
Ididiscuss din
Is your age 27? Leading to isa isa sa
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
Requires knowledge of: the re direct examination
- Facts NOTE: Identify all witnesses
- Evidence
- Defenses Offer of Offer of Evidence
Testimony
Leading questions are allowed
Made at the time After termination of
Totoo bang ikaw ay maganda? Leading
the witness is presentation of
Obtain affirmative answers- GOOD presented on the evidence of
witness stand prosecution
Line of questioning:

Is it not a fact you are 1 of... YES

Executed sometime, etc... YES


Evidence in chief
NOTE: Lead mo papunta sayo
Evidence supporting allegations in
- Test credibility of witness, test the complaint
credibility of testimony
- Not from the mouth of credible
witness, but from credible
After presentation of all witnesses,
testimony
o WHY? Asa TSN- pag may
Offer of evidence
mali, ipa correct
TSN is best evidence
of what transpired
during trial Then,

Comment or objection

109
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

- Secondary NOTE: in summary proceedings, no trial,


- Not identical no demurrer to evidence

In Criminal Cases,

Then, There is demurrer to evidence in Summary


Procedure
Order of admission/Exclusion of
evidence - Constitutional Right to Due process

Admitted; Exh A, Exh B

Excluded: Exh C, etc Demurrer to Demurrer to


evidence in Civil evidence in
TENDER OF EXCLUDED
Procedure Criminal
EVIDENCE
Procedure
Considered by CA in appeal
Rule 33 Rule 119 S23

No leave of court With or without


After PLAINTIFF RESTS ITS CASE, required leave of court
(defendant may file) DEMURRER
TO EVIDENCE (Rule 33)
If with leave of
D2E vs M2D (simplified) court, accused
could present
D2E M2D
evidence if
Rule 33 Rule 16 demurrer is denied

After plaintiff rests Before filing of


its case responsive pleading
If without leave of
That plaintiff has 10 grounds court, accused
shown no right of could not present
relief evidence if
demurrer is denied
If granted, case If granted, case
dismissed dismissed, remedy If court finds that If court finds that
depends: evidence is prosecutions
insufficient (plaintiff evidence is
has shown no right insufficient,
If granted but on
to relief), complaint demurrer granted,
appeal order of With prejudice-
dismissed as accused is acquitted
dismissal is appeal
demurrer is granted
reversed, defendant
is deemed to have Without prejudice-
waived the right to refile Judgment of
present evidence acquittal not
appealable, hence,
Both by way of motion
DJ sets in

110
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Judgment of Judgment of
dismissal is acquittal is not
appealable appealable; DJ sets Rule 33 Rule 119 S23
in With or without With LoC- if denied,
leave of court accused presents
If demurrer is evidence
granted but on
appeal, order of If granted, but on
dismissal is appeal is reversed, Without LoC- if
reversed, defendant defendant loses the denied, defendant
is deemed to have right to present cannot present
waived the right to evidence, case evidence
present evidence submitted for
decision

(NO res judicata in


dismissal due to After plaintiff rests its case, no D2E or D2E
demurrer) denied no appeal,
Plaintiff files motion Court may motu 2. DEFENDANTS EVIDENCE IN
to deny motion due proprio deny motion CHIEF
to demurrer to
evidence Prove allegations in the body of the
answer (R7 S1)
If court denies If court denies
demurrer, demurrer, Order:
defendant will
present evidence Direct Examination

With LoC- accused Cross Examination


may present
evidence Re Direct Examination

Re Cross Examination

W/O LoC- accused Formal offer of evidence


can no longer
present evidence Comment
and submits case
Objection
for decision based
on prosecutions Offer
evidence
Tender of excluded evidence

DEFENDANT RESTS ITS CASE


(simplified version)
Note: No more D2E- Rule 33- after
PLAINTIFF rests its case...

D2E Civil D2E Criminal

111
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

- filed with the clerk of court

3. REBUTTAL EVIDENCE

Purpose is to rebut defendants CONSTITUTIONAL BASIS:


evidence in 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
4. SUR REBUTTAL EVIDENCE is based.
Purpose is to rebut the rebuttal No petition for review or motion for
reconsideration of a decision of the court
Order: (Same as previously stated)
shall be refused due course or denied
without starting the legal basis therefor.

5. MEMORANDUM

Narration of facts of the case, Kinds of Judgments:


issues, no cause of action, no
JUDGMENT UPON A
defenses, but only contain
COMPROMISE
discussions
- Judgment rendered by the court on
the basis of compromise
After trial, agreement entered into by the
parties
XI. JUDGMENT (Rule 36) - Immediately executory upon
signing of compromise agreement
Declares rights/reliefs of parties in absence of motion to set aside
Final consideration and on the ground of FAME
determination of a court of - Has effect of res judicata
competent jurisdiction upon the - Compromise agreement May be
matters submitted to it in an action submitted to by parties at any
or proceeding stage of a case, even after F and E,
even without court approval
S1- Rendition of judgments and final
orders: (A2028-2046, NCC)

A judgment or final order determines the


merits of a case, shall be
Court could render judgment upon a
- in writing, compromise, and, in case of breach of any
- personally and directly prepared by of the conditions, the party may ask the
the judge, court for execution of judgment.
- stating clearly and distinctly the
facts and the law on which it is
based,
- must contain a dispositive part, JUDGMENT UPON CONFESSION
- signed by him, and

112
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Judgment rendered by court when If denied, file petition for certiorari


a party expressly agrees to the under Rule 65 (R41 S1)
other partys claim or
acknowledges validity of the claim
against him
JUDGMENT UPON THE MERITS

Judgment that is rendered after


Judgment upon Judgment by consideration of the evidence
compromise confession submitted by the parties during the
trial of the case
Provisions and An affirmative and
terms are settled voluntary act of
and agreed upon by defendant himself.
CLARIFICATORY JUDGMENT
the parties to the The court exercises
action and which is a certain amount of Judgment rendered to clarify an
entered by the supervision over the ambiguous judgment or one
consent of the court entry of judgment difficult to comply with

2 kinds of judgment by confession:


JUDGMENT NON PRO TUNC
Judgment by Cognovit
Now for then
actionem Judgment intended to enter into
the record the acts which had
Defendant after service instead of
already been done, but which do
entering a plea, acknowledged and
not appear in the records
confessed that plaintiffs cause of
action was just and rightful

JUDGMENT SIN PERJUICIO


Judgment by Confession Relicta Without prejudice
Verificatione Refers to dismissal of a case
without prejudice to its being
After pleading and before trial, refiled
defendant both confesses the
plaintiffs cause of action and
withdrew or abandoned his plea or
other allegations, whereupon JUDGMENT BY DEFAULT (R9 S3)
judgment was entered against him
Judgment rendered by the court
without proceeding to trial
following an order of default,
granting the claiming party the
relief prayed for on the basis of his
Remedies to judgment by consent, evidence presented ex parte by
confession, compromise: plaintiff

File motion to set aside

113
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

JUDGMENT ON THE PLEADINGS determination of issues material to


(R34) a particular claim and all
counterclaims arising out of the
Judgment rendered by the court upon transaction or occurrence which is
motion by plaintiff where the answer of the subject matter of said claim
defendant

fails to tender an issue or


otherwise admits the material SPECIAL JUDGMENT
allegations of the adverse partys
pleading R39 S11

Judgment requiring performance of


an act other than execution of
SUMMARY JUDGMENT (R35) judgments for money execution of
judgments for a specific act,
Judgment rendered by the court if a certified copy of the judgment
the pleadings, supporting shall be attached to the writ of
affidavits, depositions and execution and shall be served by
admissions of plaintiff or defendant the officer upon the party against
show that: whom the same is rendered, or
upon any other person required
except as to the amount of
thereby, or by law, to obey the
damages, there is no genuine
same, and such party or person
issue as to any material fact
can be held liable for contempt for
and that the moving party is
disobedience of such special
entitled to judgment as a
judgment
matter of law

JUDGMENT FOR SPECIFIC ACTS


SEVERAL JUDGMENT
R39 S10
R36 S4
Judgment of a court directing a
Judgment rendered by the court
party to execute a conveyance of
where in an action against several
land or personal property or to
defendants, the court renders
deliver deeds or other documents,
judgment against one or more of
or to perform any other specific act
them, leaving the action to proceed
in connection therewith
against the others

JUDGMENT ON DEMURRER TO
SEPARATE JUDGMENT
EVIDENCE

R36 S5 R33

Judgment rendered disposing of a judgment rendered by court


claim among several others dismissing case upon motion of
presented in a case after a defendant, made after plaintiff

114
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

rested his case, on the ground that Res Judicata (note above)
upon the facts presented by
plaintiff and the law on the matter,
plaintiff has not shown any right to
relief
Stare Decisis
CONDITIONAL JUDGMENT

Judgment wherein effectivity of


such depends upon occurrence or
non occurrence of an event Obiter Dictum

FINAL JUDGMENT

Judgment which disposes of the


whole subject matter or terminates
the particular proceedings or Law of the Case
action, leaving nothing to be done
by the court but to enforce in
execution what has been
determined

If after judgment is promulgated, the


AMENDED JUDGMENT
judgment is ambiguous and difficult to
Aka clarified judgment; it is an comply,
entirely new judgment, which
MOTION FOR CLARIFICATORY
supersedes an original judgment
JUDGMENT
rendered by the court

XII. REMEDIES BEFORE


SUPPLEMENTAL JUDGMENT
JUDGMENT BECOMES FINAL
Judgment of the court which serves AND EXECUTORY:
to bolster or add to the original
Motion for reconsideration (Rule
judgment, and does not take place
37)
nor extinguish the original
judgment Motion for New Trial (Rule 37)

Reopening of Trial (Rule 119)

Conclusiveness of judgment Appeal (Rules 40-43, 45)

1. Motion for Reconsideration


(Rule 37)

115
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

R37 S1 2. Newly discovered evidence which


he could not, with reasonable
Within the period for taking an appeal, a diligence, have discovered and
motion for reconsideration may move for produced at the trial and which if
reconsideration on the grounds that: presented would probably alter the
result
a. Damages awarded are excessive

b. Evidence is insufficient to justify


the decision or final order 3. Reopening of Trial (civil in
relation to criminal procedure-
c. That the decision or order is
R119 S24)
contrary to law
Reopening of the proceedings to avoid
NOTE: M4R here is directed against miscarriage of justice
judgment or final order, not an
Civil- for reasons of EQUITY
interlocutory order which preceded
petition for certiorari (R41 S1 in relation to For criminal cases- for reason of admission
R65 yon) of additional evidence

NOTE: Interlocutory orders are non


appealable (AM 7-7-12-SC)
4. APPEAL (Rules 40-43, 45)
Under Summary Procedure, BAWAL ang
M4R and MNT R37 (General Rule) - from the judgment, order of denial,
assignment of errors
Exception: If against interlocutory order o FINAL ORDER- decision or
the denial of M4R or MNT

15 days- ordinary appeal


2. Motion for New Trial (Rule 37)
30 days- record on appeal (Spec Pro,
- Motion to Rehear a case already
Multiple Appeals- Expropriation, Partition)
decided by court but before
judgment thereon becomes final Neypes vs CA
and executory,
Fresh Period to Appeal:
filed within the period for taking an
appeal, to set aside the judgment or 15 days from denial of M4R/MNT
final order order and grant a new trial
based on the ff grounds materially 30 days from denial of M4R/MNT
affecting substantial rights of a party:
(R37 S1)
MTC decisions
1. FAME which ordinary prudence
could not have guarded against MTC Petition
and by reason of which such for M4R
Review Under
aggrieved party has probably been under Rule 37
RTC
impaired in his right or Rule 42
Notice
/ (from M4R
Record RTC Under
on decisions PetitioCA Rule 52
Appeal in n4 SC 116
under exercise review
of M4R
R40 on
appellate certiorRule
jurisdicti ari 52
on) under SC
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, appellants


Brief 45 days to file record on appeal

Rule 40 Rule 41 Rule 42 Rule Rule 45


43

Memorand Appellan Petition Petition Petition for


um of ts Brief for For Review on
appeal Review Review Certiorari

Notice or Notice Petition Petition Petition for


Record on or for for Review on
appeal record Review Review Certiorari
on (Appeal
appeal ?)

Of MTC Of RTC Of RTC Of Of CA,


decisions Decision decision quasi Sandiganba
s s judicial yan, CTA,
original appellat bodies RTC
jurisdicti e decisions
RTC decisions in exercise of original on jurisdicti
jurisdiction on
RTC
Questions Questio Questio Questio Questions
of fact law ns of ns of ns of of law
or both fact law fact law, fact law
or both or both or both

Notice To RTC To CA To CA To CA To SC
or
M4R Record CA
Under on
Rule 37 appeal
under
Rule M4R Petitio
41 Under n 4
SC 117
Rule 52review
M4RSC
on
certior Rule
ari 52
under
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

General Rule: 11. when certain material facts and


circumstances which have been
Finding of fact of CA are final and overlooked by the trial court which,
conclusive and cannot be reviewed on if taken into account, would alter
appeal to SC: the result of the case in that they
would entitle accused to acquittal
EXCEPTIONS:

1. When finding is grounded entirely REMEDIES AFTER JUDGMENT


on speculations, surmise, BECOMES FINAL AND EXECUTORY:
conjecture
1. Petition for relief from
2. When inference is manifestly
Judgment (Rule 38)
absurd, mistaken, or impossible
S1- Petition for relief from judgment,
3. When judgment is premised on a
orders, other proceedings
misrepresentation of facts
When a judgment or final order is entered,
4. When there is GAD in appreciation
or any other proceeding is thereafter
of facts
taken against a party in any court through
5. When findings of fact are FAME, he may file a petition in such court
conflicting and in the same case praying that the
6. When CA in making its findings judgment, order, or proceeding be set
went beyond the issues of the case aside
and the same is contrary to both
- OTHER PROCEEDING INCLUDES:
the admissions of appellants and
o Order or writ of execution
appellees o Order dismissing appeal
7. When findings of fact of CA are at S2- Petition for relief from denial of appeal
variance with those of the trial
court, the SC has to review the When judgment or final order is rendered
evidence in order to arrive at the by court in any case, and a party thereto,
correct findings based on record by FAME, has been prevented from taking
an appeal, he may file a petition in such
8. When findings of fact are court and in the same case and praying
conclusions without citation of that the appeal be given due course.
specific evidence on which they are
based

9. When facts set forth in the petition Filed within 60 days from knowledge of
as well as in the petitioners main judgment and within 6 months from entry
and reply briefs are not disputed by of judgment
respondents

10. when findings of fact of the CA is


premised on supposed evidence - Relate to appeal
and is contradicted by evidence on o Failure to appeal due to
record FAME

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

2. Petition for Annulment of


judgment (Rule 47)

RTC exclusive original jurisdiction to CA


EXECUTION OF JUDGMENT
MTC exclusive original jurisdiction to RTC
- Nothing left for the court but to
Ground: extrinsic fraud enforce its decision

Execution

Annulment of judgment - remedy afforded by law for the


enforcement of a judgment
- Remedy in law independent of the - object is to obtain satisfaction of
case where the judgment sought to the judgment on which the writ is
be annulled was rendered and may issued
be availed of though the judgment
has been executed BY MOTION- 5 years

AFTER 5 years

Important condition: Revival of Judgment- 10 YEARS, by


MOTION
- Petitioner failed to move for MNT,
appeal from, file petition for relief
against, or take other appropriate
Execution as a matter of right (R39 S1)
remedies assailing questioned
judgment or final order or Execution shall issue as a matter of right,
resolution through no fault on motion,
attributable to him
1. upon judgment or order that
disposes of the action or
proceeding
S2- Grounds
a. upon expiration of period to
1. Extrinsic or collateral fraud appeal therfrom if no appeal
2. Lack of jurisdiction over subject has been duly perfected
matter and over the person
NOTE: (rules on motion)

- ministerial on the part of the court


3. Certiorari under Rule 65
IF DENIED, mandamus or appeal is the
proper remedy

Nature of writ of execution:

4. Collateral Attack R39 S8

The writ of execution is issued in the name


of RP and shall state:

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

e. Name of court which 4. Improvidently issued


granted the motion
5. Defective in substance
f. Case number
6. Judgment is already satisfied
g. Dispositive portion of the
judgment or order subject of 7. Controversy was never submitted
the execution to the court

h. Shall require the sheriff or


Rule: Dispositive portion of decision is the
other proper officer to
part that becomes subject of execution
whom it is directed to
enforce the writ according Except:
to its terms
1. When there is ambiguity in the
dispositive portion

2. Where extensive and explicit


discussion and settlement of the
issue is found in the body of the
Rule: Matter of right on part of winning decision
party (execution), and court cannot refuse

Except: S2- Discretionary Execution

1. When judgment turns out to be Discretionary Execution as a


incomplete or conditional Execution matter of right
May issue before Period to appeal has
2. Judgment is novated by parties lapse of period to already lapsed, no
appeal, and even appeal is perfected
3. Equitable grounds like change in during appeal
Discretionary upon Ministerial duty of
situation of the parties which
the court; there is the court provided
makes execution inequitable inquiry on whether there are no
there is good supervening events
4. Execution is enjoined reason for
execution
5. Judgment has become dormant

6. Execution is unjust or impossible


S2- Discretionary execution

a. Execution of a judgment or a final


order pending appeal
When proper to Quash Writ of Execution:
On motion of the prevailing party with
1. Change in situation of parties notice to the adverse party filed in the trial
renders execution inequitable court

2. Issued against the wrong party - while it has jurisdiction over the
case and
3. Issued without authority

120
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

- is in possession of either the


original record or the record on
appeal, as the case may be, Supersedeas Bond
o at the time of the filing of
such motion, said court - Bond filed by petitioner and
may, in its discretion, approved by court before the
order execution of a judgment becomes final and
judgment or final executor and conditioned upon
order even before
performance of the judgment
the expiration of the
period to appeal appealed from, in case it be
affirmed wholly or in part

After the trial court has lost jurisdiction,


the motion for execution pending appeal
may be filed in the appellate court. Remedy in case of execution as matter of
discretion,
Discretionary execution may only issue
upon good reasons to be stated in a - CERTIORARI
special order after due hearing. o Interlocutory, without
prejudice to the outcome of
appeal
b. Execution of several, separate, or
partial judgments

A several, separate, or partial judgment


may be executed under the same terms S4- Judgments not stayed by appeal
and conditions as execution of a judgment
or final order pending appeal. (Exception to general rule)

In the following cases:

1. Injunction
2. Receivership
Grounds: 3. Accounting
4. Support
1. Insolvency of judgment debtor 5. Other judgments declared to be
2. Wastage of asset by judgment immediately executory unless
debtor otherwise ordered by trial court

Court may, in its discretion, order an S6- Execution by motion or independent


execution before expiration of the time action
within which to appeal, 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 adverse party 2. By independent action for revival of
judgment after 5 years from entry
3. There are good reasons stated in a and before it is barred by statute of
special order after due hearing

121
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

limitations which is 10 years from of judgment debtor for purposes of


entry under 1144, NCC execution sale

Revival of judgment Revival of judgment


S6 S34 Garnishment
Independent action Carried out through
filing of a motion in - Act of appropriation by the court
court when property of debtor is in the
Assumes there is no Assumes that hands of a third person
execution within judgment is
first 5 years executed within first
5 years
Party who files the Party who files such Attachment Garnishment
action is the motion is not the Refers to corporate Refers to money,
judgment creditor original judgment property in stocks, credits,
himself, or his creditor but he is possession of other incorporeal
assignee, or his the highest bidder judgment debtor property which
successor in in the public auction belong to judgment
intereest debtor but is in the
Filed due to lapse of Filed because possession or under
5 year period movant is deprived control of a third
of property person
purchased

S10- Execution of judgments for specific


S6 N/A to: act
1. Judgments for support 1. Conveyance, delivery of deeds,
2. Contempt orders in unauthorized
other specific acts vesting title
re-entry on land by ejected 2. Sale of real or personal property
defendant 3. Delivery or restitution of real
3. Issuance of writs of possession and property
4. Special proceedings and land 4. Removal of improvements on
registration cases property subject of execution
5. Delivery of personal property

S9- Award of judgments of money, how


enforced S13- Property Exempt from Execution:

1. Immediate payment on demand 1. Judgment obligors family home as


2. Satisfaction by levy provided by law, or the homestead
3. Garnishment of debts and credits
in which he resides, and the land
necessarily used in connection
therewith
Levy
2. Ordinary tools and implements
- Act by which officer sets apart or personally used by him in his trade,
appropriates part of whole property employment, or livelihood

122
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

3. 3 horses, 3 cows, 3 carabaos, other


beasts of burden such as judgment 13. Persons specially exempted by law
obligor may select necessarily used
BUT not article or species of articles of
by him in his ordinary occupation
property mentioned in this section shall be
4. Necessary clothing and articles for exempt from execution issued upon a
ordinary personal use, including judgment recovered for its price or upon a
jewelry judgment of foreclosure of a mortgage
thereon.
5. Household furniture and utensils
necessary for housekeeping, and
used for that purpose by the
S16- Proceedings where property claimed
judgment obligor and his family,
such as the judgment obligor may by third person
select, of a value not exceeding Remedies of 3rd party claimant:
100k pesos
1. Summary hearing before court of
6. Provisions for individual or family
competent jurisdiction
use sufficient for 4 months
2. Terceria or third party claim filed
7. Professional libraries and
with sheriff
equipment of judges, lawyers,
physicians, pharmacists, dentists, 3. Action for damages on the bond
engineers, surveyors, clergymen, posted by judgment creditors
teachers, other professionals, not
exceeding 300k pesos in value 4. Independent reivindicatory action

8. One fishing boat and accessories


not exceeding total value of 100k Terceria
pesos owned by a fisherman and
- A person claiming property levied
by the lawful use of which he earns
upon may execute affidavit of title
his livelihood
or right of possession over the
9. So much of the salaries, wages, or property
o Such affidavit must state
earnings of the judgment obligor
for his personal services within the the grounds of such right or
4 months preceding the levy as are title
o The affidavit shall be served
necessary for support of his family
upon officer making a levy
10. Lettered gravestones and a copy thereof must
also be served upon the
11. Monies, benefits, privileges, judgment oblige
annuities accruing or in any
manner growing out of any life Note: Cumulative remedies
insurance

12. Right to receive legal support, or


money or property obtained as Ordinary sale on Sale in judicial
execution foreclosure of
such support, or any pension or
mortgage
gratuity from government Need not be Must be confirmed

123
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

confirmed by court by court in order to


divest rights in the 3. Use the property in the same
property of the manner it was previously used
parties and to vest
the rights in the 4. Make necessary repairs to buildings
purchaser thereon while he occupies the
Right of redemption No right of property
exists redemption except
when mortgagee is 5. Use it in the ordinary course of
a bank or a banking
business
institution
Title is acquired Title is acquired
6. Collect rents, earnings, and income
after expiration of upon confirmation
redemption period and registration of derived from the property until
when final deed of the foreclosure sale expiration of the period of
conveyance is redemption
executed

S35- Remedies of judgment creditor in aid


S30- Proof required of redemption of execution

Redemptioner must produce to officer, or 1. If execution is returned unsatisfied,


person from whom he seeks to redeem, he may cause examination of
and serve with his notice to the officer: judgment debtor as to his property
and income
1. A copy of the judgment or final
order certified by the clerk of court 2. He may cause examination of
wherein the judgment or final order debtor of the judgment debtor as
is entered to any debt owed by him or to any
property of the judgment debtor in
2. If he redeems upon a mortgage or his possession
other lien, a memorandum of the
record thereof, certified by RD, or 3. If after examination, the court finds
property of the judgment debtor,
3. An original or certified copy of any either in his own hands or that of
assignment necessary to establish any person, the court may order
his claim, or the property applied to the
satisfaction of the judgment
4. An affidavit executed by him or his
agent showing the amount then
actually due on the lien A party or other person may be compelled,
by order or subpoena, to attend before the
court or commissioner to testify as
S32- Rents, Earnings, Income of property
provided by S36 and S37
pending redemption

Rights of judgment debtor: 4. If court finds the earnings of the


judgment debtor are more than
1. Remain in possession of property
sufficient for his familys needs, it
2. Cannot be ejected may order payment in instalments

124
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


5. Court may appoint a receiver for some definite period of time
the property of the judgment
debtor not exempt from execution
or forbid a transfer or disposition or
Conclusiveness of judgment
interference with such property

6. If court finds that the judgment - Issues actually and directly


resolved in a former suit cannot
debtor has an ascertainable
interest in real property either as again be raised in any future case
between the same parties involving
mortgagor, mortgagee or
otherwise, and his interest can be a different cause of action
ascertained without controversy,
the court may order the sale of
such interest Bar by former Conclusiveness of
judgment judgment
7. If the person alleged to have the Identity of parties, Identity of parties
property of the judgment debtor or subject matter, and subject matter
be indebted to him, claims an causes of action
adverse interest in the property or First judgment First judgment is
denies the debt, the court may constitutes absolute conclusive only as
bar to all matters to matters directly
authorize judgment creditor to
directly adjudged adjudged and
institute an action to recover the and those that actually litigated in
property, forbid is transfer and may might have been the first action.
punish disobedience for contempt adjudged Second action can
be prosecuted
Has the effect of Has the effect of
preclusion of claims preclusion only to
issues
S47- Effect of judgment or final order

Res judicata

- Bar by former judgment/direct Law of the case


estoppel by judgment
- Refers to the legal conclusions
Conclusiveness of judgment announced on a first appeal,
whether on the general law or the
- Estoppel by verdict, estoppel by
law as applied to the concrete
record, collateral estoppel by
facts, not only prescribe the duty
judgment or preclusion of issues or
and limit the power of the trial
rule of auter accion pendent,
court to conduct obedience and
covers par c
conformity thereto, but they
become and remain the law of the
case in all other steps, whether in
Public Policy Principle the lower court or in the appellate
court on a subsequent appeal
- Inalterability of final and executory
judgment

125
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

S48- Effect of foreign judgment or final R39 S8


orders
The effect of a foreign judgment or final
Public policy principle order of a tribunal of a foreign country,
having jurisdiction to render judgment or
- Judgment by a court is enforceable final order is as follows:
only within its territorial jurisdiction
a. In case of a judgment or final order
Effect of foreign judgments upon a specific thing, the judgment
or final order is conclusive upon the
- Provided that the tribunal has
title to the thing and
jurisdiction
b. In case of a judgment or final order
against a person, the judgment or
1. In case of judgment against a final order is presumptive evidence
specific thing, of a right as between the parties
a. Judgment is conclusive upon and their successors in interest by
title to the thing a subsequent title

2. In case of judgment against a In either case, a judgment or final order


person, may be repelled by evidence of:
a. Judgment is presumptive
evidence of a right as 1. Want of jurisdiction
2. Want of notice to a party
between the parties and
3. Collusion
their successors in interest 4. Fraud
by a subsequent title 5. Clear mistake of law or fact

2 ways of giving effect to a foreign


judgment:

1. Ordinary action to enforce the


foreign judgment may be filed in LAST NOTES ON CIVIL PROCEDURE
court or
Note latest Rules on ADR (2009) in relation
2. It may be pleaded in an answer or to Rule 18
motion to dismiss

In both instances, judgment may be


repelled by evidence of:

1. Want of jurisdiction
2. Want of notice
3. Collusion
4. Fraud

Effect of foreign judgment:

126
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

127