Civil Procedure Rule 9-70 - Salvador Lectures 2017

Civil
Procedure Based on Salvador Lectures 2017 1

Case: Funa v. Agra
Case was still resolved even if moot and academic.
Exception:
- Grave violation of the Constitution
- Exceptional character; paramount public interet
- Includes controlling principle to guide the Bar, Bench and the public
- Capable of repetition evading review

REAL PARTY-IN-INTEREST
- someone who would ebenfit or suffer injury by reason of the avails of the suit or action.

Locus Standi
- Right of appearance in a court of justice in a given question
- Most common is Taxpayers Suit
- Taxpayer, Voter, Concerned Citizen, Legislator
- When the cases involve constitutionality issue
- Taxpayers; illegal disbursement of public funds, or tax measure is unconstitutional.
- Voters; showing of obvious interest in the validity of the election in question
- Concerned Citizen; issues raised are of transcendental importance
- Legislators; official action complained of infringes upon the prerogatives of the legislators (David v.
Arroyo)

PARTIES
NECESSARY (NP) INDISPENSABLE (IP)
- Should be impleaded in order to have a - Should be impleaded in order to have a final
complete determination of the case. determination of the case.

What will happen if the IP was not impleaded despite the order of the court?
- Case will be DISMISSED.

What if it is the NP?
- Case will NOT BE DISMISSED. There will be a waiver of a right of the non-impleaded party.

What if the court renders judgment in the absence of an IP?
- Judgment is NULL AND VOID.

What if NP?
- Valid judgment.

Mesina v. Fian (2014)
The heirs of Mesina, a non-juridical entity, can be a party to the case. Order to implead first, before
dismissal of the case. Dismissal will be only after non-compliance of the order.
ACTIONABLE DOCUMENT
Duty of the DEFENDANT
SPECIFIC DENIAL
- Specifically deny it under oath
In the answer, your refer to the particular paragraph where it was raised
Under oath
Prepare verification at the bottom
Failing to do so it is considered as ADMITTED

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2 Civil Procedure Based on Salvador Lectures 2017

How do you allege an actionable document?
1. State the substance in the body of the complaint and attach a copy/original.
2. By reproducing in the body of the complaint the text of the document

Songco v. Selner
How to deny the genuineness and due execution of an actionable document?
The defendant must declare under oath that he did not sign the document or it is otherwise false or
fabricated

Camtin Case
A denial is not specific simply because it was qualified as specific. A general denial does not become specific
by the use of word specifically.
Ignorance will not amount to specific denial.

Mistake & Fraud under RULE 8
- Will have to be alleged with particularity
- General averment is not enough
(You cannot say that Mr. A defrauded you, without telling the Court how he defrauded you.)
- Malice, intent, knowledge, or other conditions of the mind, should be generally averred.

Do you need to state that the court acted within its competent jurisdiction?
- No. General Averment will suffice. Read with disputable presumptions.

RULE 9 - DEFAULT
1. Default under Rule 9
- when you failed to file a responsive pleading and there is motion to declare you in default.
a. failure to file within the reglementary period
b. there should be proof of such failure

If there is a motion to declare in default, can the court already render a judgment?
- Yes, based on what the pleading may warrant.
- Presentation of evidence ex parte

REMEDY:
Motion to lift order of default
- Under oath; on the ground of FAMEN
FRAUD extrinsic fraud (prevented in participating in the proceedings)
ACCIDENT
MISTAKE of fact
EXCUSABLE NEGLIGENCE
+ MERITORIOUS DEFENSE

PARTIAL DEFAULT
- When there are multiple parties; if there are answering defendants, no presentation of evidence ex
parte.

NO DEFAULT IN NULLITY/ANNULMENT/LEGAL SEPARATION
- If there is no answer, the matter will be referred to a prosecutor to determine if collusion exist.
Certification that there was no collusion must be issued.

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Civil Procedure Based on Salvador Lectures 2017 3

REMEDY IN JUDGMENT BY DEFAULT
Lina v. CA (cited in Cereso v. Tuazon)
1. Within the reglementary period, file an APPEAL
2. File a motion for new trial
3. If final and executory, file petition for relief from judgment
4. If there is GAD amounting to L/E of Jurisdiction, RULE 65

2. General Default
- Happens in a situation when there is no specific defendant; usually present in actions In Rem.
Ex. Petitions for Registration of Land (failure to appear in Court in the designated date, as published in a
newspaper of general circulation; deemed waive in appearance and declared in General Default)

3. As In Default
- During pre-trial, when the defendant is absent; the plaintiff will be allowed to present evidence ex parte.
- Not present in the rule but the effect still remains

- In RULE 18, no remedy
Remedy not found in the rules, but in Jurisprudence.

SAGUID V. CA
- File an MR, ground of FAMEN
- No need to state that you have a meritorious defense; because you already have an answer kasi pre-
trial na e

Can the absence in the hearing be a basis of default?
Monson v. Relova
- Petitioner had not failed to file an answer. Mere non-appearance of defendants at an ordinary
hearing does not constitute default.
- Failure to attend when it is presentation of evidence (against defendant amounts to a waiver to
object and to cross-examine), but not be declared in default.
- Not amounting to waiver in presentation of evidence by defendant.
- Absent in his own schedule of presentation of evidence, defendant may waive right to present
evidence because of repeated absence.

RULE 10 AMENDMENT & SUPPLEMENT

Can you amend a complaint when at the outset it has no cause of action?
Turner Case
- You cannot amend if there is no cause of action.

Lisam Enterprises Case
- There is COA but you will substantially alter the COA in amendment, yes it is allowed. Left in the
sound discretion of the court.
- Sec. 3 Rule 10 Amendment with Leave of Court

Take Note:
1. Amendment as a matter of right
2. Amendment with leave of court (after an answer)

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3. Typographical or clerical amendment (wrong spelling, wrong name, wrong numbering), can be effected
motu proprio; also upon motion of a party
4. Amendment to conform with the evidence
- Sec. 5 Rule 10
Covers:
a. The other party does not object
b. The other party objects left to the discretion of the court
Always Remember:
For every actual proposition, it should be supported by evidence (Rule 128, Sec. 1)

Sy v. CA
- In this action for support, issue was discussed in the trial. There was already an implied consent. And
since there was, even if there was no motion, and no amendment had been ordered, the Court holds
that the RTC validly rendered judgment on the issue.

Pagcor v. Lopez
Can you change your cause of action?
YES.
First filed: Specific Performance and Injuction; with prayer for TRO and Preliminary Injuction
Amended: Recovery of Sum of Money
- Because the plaintiff has provided funds for pre-operating expenses and capital
Court has jurisdiction over the amended complaint because it has jurisdiction in the original complaint.

Swagman v. CA (erroneous interpretation of Sec. 5 Rule 10)
No COA, can you amend the pleading to conform with evidence?
Sec. 5, Rule 10 amendment to conform with evidenceThe curing effect under Sec. 5 is applicable only if a
COA exists at the time of complaint is filed.

Roces v. Jalandoni
There was a COA, and the only problem was the insufficiency of the allegations.
COA that has not yet accrued cannot be cured by an amendment or supplemental pleading.

SUPPLEMENT
Memorize: You file a supplement because there are events, transactions, or occurrences,
after the filing of the pleading sought to be supplemented.

Are there instances where a court can order an amendment without an application?
No motion, but the court issues amendment?
YES.
1. Implied Consent
2. Motion to Dismiss
3. Motion for Bill of Particulars (vague/insufficient complaint)

When is amendment as a matter of right?
- Before an answer. File a NOTICE to amend.

After an answer, file a Motion.

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CIVIL CRIMINAL
Answer Plea
Before Answer: Before Plea:
File a Notice to Amend - Amend as to matters of Form/Substance
- Downgrade; upon motion, with notice to the
offended party and with leave of court.
- Exclusion; dropping of defendant/s
- Substitution of Information
- Death; Criminal case will be dismissed, Civil
will survive. It will proceed against the estate.

After Plea:
- Only as to matters of Form, for as long as
it will not prejudice the rights of the
accused.
- Death; Civil and Criminal are both
extinguished

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS

PERIODS
Answer 15 days
Extension of time in ordinary civil action? Yes, subject to the discretion of the court.
Foreign Juridical Entity 30 days
Third Party Complaint 15 days
Cross Claim/Counterclaim 10 days
Amendment as a matter of right 15 days
Amendment with leave of court 10 days from receipt of Notice
Do you need to attach the amended complaint to the Notice/Motion to Amend?
- YES.
Answer to a Supplemental Complaint 10 days from notice

Is failure to raise a counterclaim waivable?
Rule 9 Sec.2 counterclaim not raised is BARRED. Remedy is to file an amendment.

RULE 12 BILL OF PARTICULARS

BILL OF PARTICULARS
- prepared by plaintiff, if the court grants the motion for bill of particulars.

MOTION FOR BILL OF PARTICULARS
- seeks the other party (plaintiff), to make his allegations clearer; prepared by the defendant

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HOW:
1. Identify the specific paragraphs that you claim as vague/defective
2. State the details desired

A Motion for Bill of Particulars is NOT A MANDATORY PLEADING.

Can you deny the Motion for Bill of Particulars OUTRIGHT?
- Sec. 2: the judge can grant/deny outright.

ALWAYS UPON MOTION. Never motu propio.

Republic vs. Sandiganbayan
- Marcos Case
- Bongbong became the administrator. They filed thru the Estate, a motion for bill of particulars when
there is already an ORDER OF DEFAULT.
- Period to file MBP: 15 days
- MBP as granted, Order of default was set aside

Can you still file MBP when there is already an answer?
- NO. Purpose of BP is to be able to answer correctly.

Defendant filed MBP. Court granted. Plaintiff did not file the BP.
Verata v. SB case will be dismissed.
- Rule 17 Sec. 3 failure to comply with an order of the court

MBP was granted. Plaintiff disagrees. What if the remedy? Is the grant of MBP a final judgment or
interlocutory order?
- Grant/Denial it is an INTERLOCUTORY ORDER.
- Remedy is Rule 65 if GAD amounting to LEJ

PERIOD TO FILE ANY RESPONSIVE PLEADING = 15 days
RULE 22 Interruptions
- The act that caused the interruption is not excluded in the counting of the period.

Effect of Failure to Comply with BP
- Rule 17 Sec. 3

RULE 13 SERVICE

PRIORITY OF SERVICE
- PERSONAL (Rule 13 Sec. 11)
If you cannot serve it personally, EXPLAIN. If without explanation, the pleading produces no legal
effect.

EXCEPT FOR THOSE ORIGINATING FROM THE COURT.

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FILING (Party Court) SERVICE (Party Party/ from the Court)
Modes: Modes:
1. Personal 1. Personal
2. Registered Mail date of mailing is the date of a. By leaving a copy in his residence, to a person
filing of sufficient age and discretion residing therein.
b. To a person in charge of his office, 8am-6pm
Proof of Filing: 2. Mail
1. Personal it appears on the records of the a. Ordinary
case; if it does not appear on the records, that is b. Registered with return card; express mail
when you need your copy with the stamped not included except in QC
acknowledgement of the clerk.
2. Registered Mail affidavit of the person
mailing
Completeness of Service

1. Personal actual delivery
2. Mail
a. Ordinary After the lapse of 10 days
b. Registered actual receipt; or expiration of
the period of 5 days from 1st notice of mail,
whichever comes first

Proof of Service
1. Written acknowledgement
2. Official return prepared by the
sheriff/process server
Sec. 9 Originating from the court
1. Personal
2. Registered Mail
3. Affidavit of the person serving instances
where the recipient refuses to accept
4. Affidavit of Person Mailing Ordinary Mail
5. Registered Mail
+ Affidavit of the person mailing
+Registry Receipt
+ Return Card file it in court
- secure from the post office a certification
of the reason for the return.

Is there substituted service?
Yes. Sec. 8 Rule 13
- Proof of Failure of Personal Service and Service by Mail
- Unserved document must be filed in court

Republic v. Caguioa (2013)
- Petition should be serve on the counsel of the party ; if there is a counsel for record
- Service to a party is a patent nullity and is not binding upon the party wrongfully served
Exception: when faced with compelling reasons of substantive justice and the circumstances of the case

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Mindanao Terminal v. CA (2012)
- Receptionist of the building where the counsel of Mindanao Terminal holds office received the copy
of the decision. Almost a year after, MR was filed. Argued that he did not receive the decision, the
reglementary period has not commenced and that the decision is not final and executory.
- Sec. 9 and 10 of Rule 13

FEU v. FEU-NRMF
- Assumption of Jurisdiction Order
- Posting of Orders is not allowed

Aberca v. Ver
- Notice to Answer was published.
- Wrong mode of service

LIS PENDENS
- Notice of Lis Pendens is not Litis Pendentia
- An Annotation
- Notice that a property is a subject of a pending litigation (directly affecting the title)
- Principal Action must involve title to, possession or interest over real property
* look at the principal action

Gonzales Case
- Subsequent annotation of lis pendens could not defeat the rights of a mortgagee or a purchaser in an
auction sale who derived the rights under a prior mortgage validly registered.
- Cannot defeat an existing encumbrance
- Auction sale retroacts to the date of the mortgage

Atlantic Case
- By express provision of law, the doctrine of lis pendens does not apply to attachments, levies of
execution, proceedings for probates of will, or administration of the estate of deceased persons.
- Sum of money case
- Doctrine of Lis Pendens has no application in a proceeding of recovery of money, even if it is
incidentally affected

Purpose of a Lis Pendens
1. To keep the properties in litigation within the power of the court until the litigation is terminated and to
prevent the defeat of judgment by subsequent alienation.
2. To announce to the whole world that a particular property is in litigation and serves as a warning that
one who acquires an interest over the property does so at his own risk; and he gambles on the result of the
litigation.

- NO NEED FOR ORDER FROM THE COURT (IT IS A NOTICE ONLY)
Annotation: letter
Cancel: Order from the court

Reasons for cancellation
1. If the purpose is to molest
2. Annotation is not necessary to protect the title of the party who caused it to be annotated

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Which court has the power to cancel a notice of lis pendens?
- RTC
- CA (can also reinstate)

Does a notice of lis pendens affect the merits of the case? (Avera case)
- NO. Neither affects the merits of the case nor creates a right or a lien. It serves to protect the real rights.
PURE AND SIMPLE NOTICE.

WHERE LIS PENDENS IS NOT ALLOWED
1. Preliminary Attachment
2. Probate of Will
3. Levies on Execution
4. Proceedings on Administration of Estate of Deceased
5. Proceeding where the only object is Recovery of a Money Judgment

NOTICE OF LIS PENDENS SHOULD CONTAIN A STATEMENT OF THE INSTITUTION OF AN ACTION OR
PROCEEDING, TH COURT WHERE THE SAME IS PENDING.

RULE 14 - SUMMONS

NATURAL PERSON
How to serve summons:
1. Personal
- If there is refusal, TENDER. Depends on the circumstances of the case. Should be decent and
proper.

Is it necessary that the summons be served in the address indicated in the complaint?
Sancio Case:
Service of summons can be effected WHEREVER HE MAY BE FOUND IN THE PHILIPPINES.

2. SUBSTITUTED SERVICE (Sec. 7 Rule 14)
- If there is impossibility of personal service, evidenced by a sheriffs return. It is the duty of the
sheriff to deliver a copy of the return to the Plaintiff.
- there should have been repeated attempts to serve, at least 3 times in 2 separate days.
SUMMONS NOT SERVE FOR UNREASONABLE LENGTH OF TIME
- COURT WILL DISMISS THE CASE FOR FAILURE TO PROSECUTE

Substituted Service should be made:
a. In his Residence
b. Person of sufficient age (age of majority) and discretion residing therein
OR
a. Office
b. In-Charge of the Office (President/General Manager)
Can there be substituted service if the defendant does not reside in the Philippines?
GR: NO
Exception: The resident spouse has been designated as the attorney-in-fact in another action. You can
serve it to the resident spouse.

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Action In Rem/Quasi In Rem
- Service could be effected by PUBLICATION
- It is important for the court to acquire jurisdiction over the RES
- Service of summons to the defendant is only necessary to comply with the requirement of due
process

3. By Publication in an In Personam action?
Sec.14 Rule 14
YES.
Under the following conditions:
1. Any action (in rem, quasi in rem, in personam)
2. Defendant in Not Known
3. Defendants whereabouts is unknown

JURIDICAL PERSON
DOMESTIC FOREIGN
Sec. 11 Sec. 12
President - any officer in its transacting business
General Manager (agent/representative in the Philippines).
Managing Partner When not transacting/not doing business
Corporate Secretary with leave of court.
Treasurer - by electronic service as long as proof can
In-House Counsel be generated.
- by publication in a NGC in the place
Cathay Metal Corp v. Laguna West Coop where the corporation holds business.
- Exclusive enumeration in Sec. 11, service - Service by registered mail in the last
of summons other than those known address
enumerated, INVALID. Even substantial - Service thru the assistance with the DFA
compliance is not sufficient service of
summons.

Proceedings from improper service of summons
until judgment is rendered are NULL and VOID.

Service of Summons is waivable if you
participated in the case after the improper
service.

NON-JURIDICAL ENTITY
- service to anyone of them/ anyone in charge of the office

SEC. 14 (PUBLICATION) SEC.15 SEC.16
- if the defendant or his - not a resident; or - resident; temporarily absent
whereabouts is - not found in the - same as Sec. 15
unknown Philippines - not mandatory
- ANY ACTION - IN REM/QUASI IN REM
- but the preferred is a. can be made personally
always PERSONAL service b. publication in the
Philippines & registered

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mail in the last known
PROOF OF PUBLICATION address
- c. other modes the court
may deem convenient

Sec. 20
- you can only claim this if you did not claim any relief

Romulo v. Peralta
Proof of Registered Mail
- the person preparing the affidavit should be the person mailing, not the one directing someone to
mail

ALIAS SUMMONS
Sec.5
Issued when the first one has been lost, or when the summons originally served has returned unserved.

Do you need an ALIAS WRIT OF EXECUTION?
- No need. 5 years life of writ.

ALIAS WARRANT OF ARREST?
- No need. Effective until it is served.

RULE 15 MOTIONS
Remember:
Motion is not a pleading - does not lay a claim or defense; does not state a cause of action.
1. Notice of Hearing
2. 3-Day Notice Rule
3. 10-Day Rule
4. Motion Day

Cabrera v. Ng (2014)
Checks for 3 Million Pesos. Checks bounced.
Cabrera: we already paid to your son, Richard Ng.
RTC: Ordered Spouses Cabrera to pay.
MR was not heard on August 17 (date of hearing). New judge had just assumed office.
Set again at August 28. No hearing pursued.
RTC issued a notice of hearing, September 25. (Reset twice with due notice)

Mr. Ngs Contentions:
Received copy on August 21. (Violation of 3-day Notice Rule)
No Notice of Hearing = Motion is PRO FORMA; mere scrap of paper
MR will not interrupt the running of the reglementary period.
Judgment will become final and executory.

Court:
Requirement of the 3-Day Notice Rule is an integral component of due process. It is for the benefit of the
movant, not the adverse party.

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FILED AND SERVED 3 days before. ALWAYS APPLY THE RULE. Apply the notice of hearing requirement
and the 3-day notice rule.

Non-Litigious Motions (No Notice of Hearing Requirement)
- Postponement
- Extension
- Ex Parte Motion to set the case for Pre-Trial (Rule 18, Sec.1)

10-DAY RULE
- Set it for hearing no later than 10 days from its filing. (Also count Sat & Sun)
- Motion Day is FRIDAY, 2PM. Unless a Friday is holiday or non-working holliday, it will be the next
business day.

Bacelonia v. CA
MR filed on January 31, set for hearing February 15 at 8am
Non-compliance with the 10-day rule. PRO FORMA MOTION.

Anama Case
- Already final and executory. Reglementary period already lapsed.
- Remanded to the trial court for purposes of execution
- Filed a motion for execution without a notice of hearing.
SC: Notice of Hearing is not required. Execution was already a matter of right.

NEYPES RULE (Fresh Period Rule)
If MR is denied, your have a fresh period to file an Appeal.
Also applies to criminal cases.

RULE 16 MOTION TO DISMISS

MOTU PROPIO DISMISSAL (Grounds)
1. Lack of Jurisdiction over the Subject Matter
2. Res Judicata
3. Litis Pendentia
4. Statute of Limitations

Period to File MTD:
- within the reglementary period to file a responsive pleading

Remedy for a Denial of MTD:
Corrales v. Republic (2013)
- Denial of MTD is an interlocutory order.
Options:
1. Proceed to file an answer
2. Motion for Reconsideration on the denial
3. Rule 65 if there is GAD

Forum Shopping
File on Litis Pendentia or Res Judicata

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Brown-Araneta v. Araneta (illustration of forum shopping)
- Father was delinquent; filed an action for custody
- Mother not successfully served with summons; mother in-law was properly served
- Judge did not allow the mother to participate in the proceedings
- Mother filed an action in another court for TPO.
- Husband said there was forum shopping because the reliefs were almost the same.
- SC: yes, there was forum shopping.

Can a dismissed complaint be re-filed?
GR: YES.
Exceptions:
Sec. 1
(f) statute of limitations
(h) payment/waived/extinguishment
(i) unenforceable under the statute of frauds

Remedy if dismissal is without prejudice (on dismissal):
- Rule 65
- No Appeal on dismissal without prejudice

On F H and I remedy is an APPEAL.

Aquino v. Quiazon
- Filed an answer that pleading asserting the claim states no cause of action
Sec. 6 of Rule 16
- no MTD file, there can be a hearing on affirmative defenses; for as long as there was no previous
MTD filed
The lack of cause of action is not a ground for motion to dismiss under Rule 16, and not a basis for the
preliminary hearing on affirmative defenses (pleading asserting the claim states no cause of action).

Boston Equity v. CA
- complaint for recovery of sum of money with prayer for issuance of attachment
MTD was denied, trial court said it was filed out of time. Filed 6 years after amended answer.

Luim Case
- An order denying MTD is an interlocutory order.
- Cannot be subject of an appeal, unless final judgment
- Denial of MTD is NOT APPEALABLE.
- Rule 65 if tainted with GAD amounting to L/E of J.
- It is now specifically required that the resolution on the motion shall clearly and distinctly state the
reasons.

Can the court defer a resolution of MTD on the ground that it is not indubitable?
- NO. Court can no longer defer a resolution of MTD. Judge will have to resolve.

RULE 17 DISMISSAL OF ACTIONS

Ramon Ching Case
-Defendant filed MTD on the ground of LJ dismissed.

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-Plaintiff file again, then filed a dismissal of own complaint praying that it be dismissed without prejudice.
Granted, dismissal made without prejudice. Defendant filed an MR, praying that it be with prejudice saying
that it violates the 2-dismissal rule.
- Defendant is wrong. Two Dismissal rule does not apply.

Sec. 1
TWO DISMISSAL RULE
- No answer yet (kaya no counterclaim pa)
- Plaintiff dismisses, WITHOUT PREJUDICE
If another case is filed involving the same cause, plaintiff dismisses again, WITH PREJUDICE.
- To avoid vexatious litigation

Sec. 2
- With answer already
- Plaintiff dismisses, WITHOUT PREJUDICE unless the court says otherwise.
- If refiled and dismissed again, WITH PREJUDICE.

PINGA RULING
Principal Action dismissed, COUNTERCLAIM will have to stand on its own merits.
- will proceed in the main action if the defendant manifests it within the period of 15 days from the
grant of dismissal.
- If there is no manifestation, you could still file a separate action but pay filing fees.

Complaint, No MTD, but with Answer with Affirmative Defenses
- discretion of the judge to call for preliminary hearing;

If the court granted the dismissal on the ground of the affirmative defenses raised, what happens to the
counterclaim?
- Sec. 6 Rule 16: you could pursue counterclaim in the same or separate action

REQUISITES FOR DISMISSAL WITH PREJUDICE
1. Previous case was dismissed by a competent court
2. Both cases were based on or include the same claim
3. Notices for Dismissal were filed by the PLAINTIFF
4. When the MTD filed by the plaintiff was consented to by the defendant, on the ground that the latter paid
and satisfied all the claims of the former.

What to File:
BEFORE ANSWER NOTICE
AFTER ANSWER - MOTION

Sec. 3
- Defendant or the court, motu propio, dismisses the case
1. Failure to prosecute
2. Failure to present evidence for unreasonable length of time
3. Failure to present evidence-in-chief
4. Failure to comply with the rules or order of the court.

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RULE 18 PRE-TRIAL

After the filing of last pleading, within 5 days:
- The PLAINTIFF must file an ex parte motion to set the case for Pre-Trial

LBL Industries v. City of Lapu-Lapu
- Expropriation case
- LBL wanted the case to be dismissed.
Can a case be dismissed for failure to set the case for pre-trial?
Duty is with the Plaintiff, after the filing of the last pleading. Ex parte motion.
If the plaintiff will not, IT WILL BE THE DUTY OF THE CLERK OF COURT (Pre-trial Notice)
- Send pre-trial notice to the counsel of record, if none, to the party.
- Counsel shall inform the party on the date of the pre-trial conference

PRE-TRIAL BRIEF
- filed and served 3 days before date of pre-trial
Effect of Non-Compliance: Equivalent to NON-APPEARANCE

PRELIMINARY CONFERENCE
- before the mediation
- 3 days before date of pre-trial
- before the clerk of court
- for admissions, stipulations, preliminary marking, identification of witnesses

In the Guidelines:
Pre-Trial brief Mediation if not mediated, JDR Re-Raffle Pre-Trial Proper

PRE-TRIAL PROPER
- APPEARANCE OF THE PARTY is very important
Who should be present?
THE PARTIES
Except:
1. Valid Excuse
2. Authority is given on behalf of the client

Plaintiff present, Defendant absent
- AS IN DEFAULT SITUATION
- Plaintiff will be allowed to present evidence ex parte

Plaintiff absent
- case will be dismissed

Plaintiff Absent Lawyer Present
Defendant and Lawyer Present
- PARTY is important, must be present; unless duly authorized to take in the absence of the party.

Tolentino v. Toledo
- Tolentino was declared as in default for not appearing in the Pre-Trial
- Repeated absences; Ex Parte presentation of evidence by the plaintiff.

Non-Suited

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- Plaintiff did not appear in the pre-trial
- Dismissal is WITH PREJUDICE
Remedy: APPEAL (because it is a final disposition)

Defendant not present
- Plaintiff allowed to present evidence ex parte
- Remedy: File an MR
Ground: FAMEN (Saguid v. CA)

What happens during Pre-Trial?
1. Court will ask for a possibility of a compromise/amicable settlement
2. Are you to file amendments on the pleadings?
3. Motion for judgment on the pleadings or summary judgment?
4. Need for commissioners?
5. If there are admissions? (Judicial admissions made in the course of the proceedings. Rule 129
Sec.4 requires no evidence)
No need for introduction of evidence.
No duty to accept any stipulation.
You can only DISOWN A JUDICIAL ADMISSION if there is:
1. Palpable mistake; or
2. There is no intention to make such admission.
Social Justice Society Case
- Your judicial admission will only affect the case where you admitted it, cannot be used in
other cases
6. Preliminary Markings
- All documents that you are to present during trial MUST BE PRELIMINARY MARKED. (Guidelines
on Motion for Discovery of 2004)
- Not preliminarily marked, cannot be presented in court.
- Except when the judge allows it.
- Skips the marking of the document during trial, saves a lot of time.
But it doesnt mean that when preliminarily marked, such document is already your
evidence.
- During trial, witness will identify the document; then authenticate
Becomes evidence ONLY WHEN FORMALLY OFFERED.
After the plaintiff completed the presentation of evidence.
- Under the Rules, formal offer of evidence could be ORALLY OR WRITING.
But under the Judicial Affidavit Rule, requires an ORAL OFFER.
7. Identification of Witnesses
- Name the witnesses
- State the substance of their testimony
- Period of time that they will testify (number of hours required)
8. Trial Dates

PRE-TRIAL ORDER
- Ideally, should not proceed to trial if without pre-trial order
- It will control the proceedings during trial

RULE 19 INTERVENTION

Ongco v. Dalisay
- Dalisay applied for a registration of land; no oppositor except the Republic

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- Ongco filed a Motion for Intervention while the appeal of the RP was pending
Can Ongco properly intervene?
- CA denied intervention.

Who can intervene?
- Not a matter of right
- Left to the discretion of the court
- Legal interest must be present
- Must also consider the delay the proceedings of the case and if the rights of the intervenor
can be protected in a separate action. (Intervention be denied)
- Proper Timing
At anytime before rendition of judgment in the trial court.
EXCEPT:
If the intervenor is an INDISPENSABLE PARTY.

What if the principal action is dismissed, what happens to the intervention?
- ALSO DISMISSED because it is only ancillary (always attached to a principal action). Unlike a
counterclaim that can stand on its own merits.

What if the intervenor is a plaintiff, is legal interest sufficient?
- He should have his own cause of action.

Salas v. Aguila
Can a common-law-wife intervene?
- NO, on what appears to be properties of the spouses.

RULE 20 CALENDAR OF CASES

Clerk of Court
- sets the dates of the hearing
- prefer that the parties are present; can agree immediately on the dates, no need for notice of
hearing; ideally agree on common dates

RULE 21 SUBPOENA

- Compulsory process; applies to all proceedings
- Same manner as in the service of summons

1. SUBPOENA DUCES TECUM
- Bring the documents to court
- to present it during trial

How to quash?
1. Irrelevant
2. Unreasonable and Oppressive
3. Should be described with particularity
4. Witness Fees and Kilometrage

2. SUBPOENA AD TESTIFICANDUM

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- To appear and to testify

How to quash?
- Only if already issued; not motion for issuance (file an opposition)

Grounds of Motion to Quash
1. If you are NOT BOUND THEREBY; there is DISQUALIFICATION
- Rule 130 Sec. 20 Witness is able to perceive and can make known his perception to
another.
- Not bound due to privileges in the Rule on Evidence

2. WITNESS FEES were not tendered.
- Transportation expenses

3. No tender of Kilometrage
- If the witness is within 100kms, appearance can be compelled.
If ignored/refuses to appear:
o Held liable for INDIRECT CONTEMPT; or
o Arrested by virtue of a bench warrant

WRIT OF AMPARO
- served in the same manner as summons
- if not successful, effect a substituted service

RULE 23 DEPOSITIONS PENDING ACTION

Taking and Use are different.

Can deposition take the place of the testimony in court?
- NO. If the witness is available to testify, he should be presented in court.

ANY MATTER FOR AS LONG AS IT IS RELEVANT AND NOT PRIVILEGED (Sec. 2, Rule 23)

How to apply deposition?
Reference Point: ANSWER
Before Answer, after the court acquired deposition: by MOTION to take deposition
After Answer: NOTICE to take deposition
(Sec. 1 Rule 23)

ANSWER EX ABUDANTE AD CAUTELAM
- in order not to be declared in default
- cautionary answer
- given when MTD is denied, MR is denied, and you want to go for a Rule 65

Uses of Deposition (Sec. 4 Rule 23)
1. To impeach the testimony of deponent as a witness
Rule 132 Sec. 11 & 13
- his general reputation for truth, honesty, and integrity is bad
- contrary evidence
- on a prior inconsistent statement (in connection with DEPOSITION)

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2. For any purpose, by the adverse party.
- even juridical entities officer can be called on deposition
- written interrogatories must be served
In Rule 23:
Prepare questions
Other party will prepare cross-interrogatories
Re-direct interrogatories within 5 days
Re-cross interrogatories within 3 days
3. Deposition may be used by any party for any purpose if the court finds that:
- witness is dead
- witness resides at a distance more than 100 kms from the place of trial or hearing, or is OUT of the
Philippines, unless it appears that his absence was procured by the party offering the deposition.
- witness is unable to testify because of AGE, SICKNESS, INFIRMITY, or IMPRISONMENT
- party offering the deposition has been unable to procure the attendance of the witness by subpoena
- upon APPLICATION AND NOTICE, exceptional circumstances exist; in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally in open court

BEFORE WHOM SHOULD DEPOSITIONS BE TAKEN:
In the Philippines:
- before ANY judge
- before a notary public
- any person authorized to administer oath and stipulated upon by the parties
Outside the Philippines:
- before a consular office (consul/vice-consul/consul general/sec. of embassy/legation)
- before any person or officer as may be appointed by COMMISSION or UNDER LETTERS ROGATORY
What is letters rogatory?
- communication from one judicial authority to another
What is Commission?
- an appointment by the judge to act as the officer to receive the deposition in a foreign country
(follow the rules of the Philippines)

Dulay v. Dulay
- On Letters Rogatory & Commission
- Recovery of Money with application for attachment
- US-based brothers lawyer applied for taking of deposition
- Judge in the Philippines issued Letters Rogatory; court in Boston ignored
- Deposition was taken before a Notary Public in New York instead
- Philippine court wont accept; deposition went back to the US to be authenticated by the consular
office of the Philippines

Was it a valid deposition?
- YES, SC accepted the deposition.
- The fact that there was no letters rogatory, went to the notary public in New York for deposition, and
later on authenticated by the consular office.

THE MODES OF DISCOVERY ARE CUMULATIVE.
- you can use everything.

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Can an officer be disqualified in taking the deposition?
- YES.
1. Financially Interested
2. Related to the party within the 6th degree of consanguinity or affinity
3. Related to the lawyer within the same degree

GROUNDS TO OPPOSE/LIMIT DEPOSITION
1. Irrelevant OR Privileged
2. Sec. 16 & 18 in Rule 23
- examination being conducted in bad faith; to annoy, embarrass or oppress by the conduct of the
inquiry
- taking of depositions can be regulated
CONDUCT OF THE TAKING OF DEPOSITION
Sec. 17, 19, 20, 21 of Rule 23

What will happen if the process was not followed?
- Deposition will be suppressed.
- Motion to Suppress (Rule 23, Sec. 29)
- will not allow the court to accept the deposition

Ayala Land v. Tagle
Deposition was taken before a judge.
Deposition was not signed.
Rules were relaxed because it was conducted by a judge.

What is the difference between an oral deposition and a written interrogatory?
ORAL DEPOSITION WRITTEN INTERROGATORY
- on the day scheduled, both parties should - together with the application, the
be present together with counsel questions will be submitted
- will ask Direct, Cross, Re-Direct and Re- - within 10 days, Cross Interrogatories
Cross must be submitted based on the
questioned served
- within 10 days, prepare re-direct
interrogatories
- within 3 days, re-cross interrogatories

Deposition De Bene Esse Depositions in Perpetuam Rei in Memoriam
- pending action - perpetuation of testimony
- deposition before action
- RULE 24 (superseded Rule 134)

Can deposition be taken on a CHILD WITNESS?
- Child Witness Examination Rule
- YES
- Prosecutor or Counsel or Guardian ad Litem may apply for an order that a deposition be taken of a
testimony of a child, RECORDED and preserved in video tape.
- If the court finds the child will not be able to testify on trial, deposition must be taken, recorded.
- Judge will conduct the deposition.

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ERRORS/IRREGULARITIES
- at the very moment must be raised, otherwise it is waived
Except: Competency or Relevancy

WHEN CAN YOU APPLY FOR DEPOSITION?
After Pre-Trial
YES.

Can deposition be taken in criminal cases?
Go v. People
- Private prosecutor filed with the MTC a MOTION TO TAKE ORAL DEPOSITION
Of Lee Luen Ping, alleging being treated for lung infection in Laos, Cambodia.
MTC granted after submission of medical certificate.
RTC declared the order null and void.
CA reversed, MTC is correct.
SC: Whether Rule 23 is applicable in criminal cases
NO.
Can deposition be taken in criminal cases?
YES. But not Rule 23. Conditional Examination in criminal cases is equivalent of deposition.

CONDITIONAL EXAMINATION of Witnesses
PROSECUTION ACCUSED
1. About to depart with no definite date of 1. Sick or Infirm
returning 2. More than 100kms from the place where
2. Sick or Infirm the hearing is conducted

- Conducted in the court where the action is - Before any judge in the Philippines
pending. - Before any member of the guard in good
standing
- Any inferior court if directed by a superior
court

RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
(PERPETUATION OF TESTIMONY)

BEFORE ACTION PENDING APPEAL
Where to File: Where to File:
In the place where the prospective adverse In the court that rendered the judgment.
party resides Contents of the Motion:
- Persons whose depositions are to be
Relief asked: taken
Order allowing you to take deposition - The substance
- Purpose for taking such deposition

Denied MTD, Denied MR, Filed Rule 65
Can you file for a deposition pending appeal?
- NO. Rule 65 is not an appeal.
But you can apply RULE 23, not 24.

Can you avail of deposition pending without
serving written interrogatories?

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- NO, should have served written
interrogatories.

RULE 26 ADMISSION BY ADVERSE PARTY

REQUEST FOR ADMISSION
- you could only apply AFTER ISSUES ARE JOINED.
- When an ANSWER has been filed.
- Directed to an adverse party

SUBJECT MATTER of a Request for Admission
1. Material and Relevant Facts
2. Genuineness and Due Execution of the ATTACHED documents.

FAILURE TO SERVE A REQUEST OF ADMISSION
- Will not be allowed to prove certain facts which are the subject of the request for admission

ANSWER OR OPPOSE WITHIN 15 DAYS
- Failure to react would mean an IMPLIED ADMISSION.
- Always respond: admit or oppose

MATTERS PREVIOUSLY DENIED
- can no longer be subject for a request for admission
- would not lead to an implied admission

MATTERS OF LAW and OPINIONS
- cannot be subject for a request of admission

RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
- books, papers, documents
- allowed to examine
- not compelled to present it in Court
o difference in Subpoena Duces Tecum

RULE 27 SUBPOENA DUCES TECUM
- Mode of discovery - Means of compelling production of
- Rules are limited to the parties to the evidence
action - Any person
- Can be applied before and or during trial - Can only be asked for during trial
- Order is issued only upon MOTION, with - May be issued upon even EX PARTE
notice to the other party

Equivalent in WRIT OF AMPARO
- production order
- inspection order
APPLIED BY THE PARTY

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- effective only for 5 DAYS

NOTICE TO PRODUCE
- It may be a preliminary to a presentation of secondary evidence, because the document is in the custody
of the adverse party.
- Establish existence, fact of execution, and fact that there is NOTICE TO PRODUCE.

Presentation of Secondary Evidence
Copy
Recital in some authentic document
Testimony

Gateway Case
- just like a subpoena, a motion for production of books, papers, and documents should also be established
that it is RELEVANT and there should be a REASONABLE DESCRIPTION of what you want him to produce.

RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS

- There should be a PENDING ACTION

Petition for declaration of nullity of marriage
- before action, there should be clinical testing appended to the petition

1. MOTION must be filed
2. Motion must show GOOD CAUSE.
3. NOTICE to all parties
4. Motion shall specify the TIME, PLACE, MANNER, CONDITIONS and SCOPE of the examinations.

- Order to submit to this examination is an INTERLOCUTORY ORDER
NOT APPEALABLE
- Once you request for a copy, you waive all your previous and subsequent examinations

RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY

- not a mode of discovery; not a deposition
- CONSEQUENCES OF NON-COMPLIANCE

REFUSAL TO ANSWER QUESTIONS
- secure an ORDER TO COMPEL AN ANSWER
- still no answer after order: DISMISSAL (plaintiff) OR DEFAULT (defendant)

ORDER TO COMPEL AN ANSWER
- if a party or the deponent refuses to answer upon oral examination
- a party or witness refuses to answer any interrogatory submitted under Rule 23 or 25
Where to get the order:
- court of the place where the deposition is being taken

WHEN REQUIRED TO PAY THE AMOUNT OF REASONABLE EXPENSES
- if there is a refusal to answer and the other party was compelled to secure an order
- answer to the question has no sufficient basis

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PARTY REFUSING TO ANSWER
- can be cited in contempt

OTHER CONSEQUENCES
Apply for an order
- fails to answer interrogatories
- fails to appear before an officer to take deposition

WARRANT OF ARREST may be issued.
- except submission to physical/mental examination

RULE 30 TRIAL

- read in relation to Rule 132 Sec. 1 to 18

1. ALL PROCEEDINGS IN COURT ARE RECORDED
2. Order of Presentation of Evidence
- Plaintiff
- Defendant
- 3rd Party Plaintiff
- 3rd Party Defendant

RULE 132 Examination of Witnesses
Direct Examination
Cross Examination test truthfulness and veracity of statements; illicit information
Re-Direct
Re-Cross

Under the present rule (Judicial Affidavit Rule), in all CIVIL CASES
- there is submission of judicial affidavit in lieu of direct examination
- no more oral direct examination in civil cases

In CRIMINAL CASES:
RTC: accused is NOT COMPELLED to submit a judicial affidavit; only if he consents.
MTC: judicial affidavit
RTC, only civil aspect: Yes, judicial affidavit.

Can you recall the witness after he has been terminated?
YES. Subject to the discretion of the court.

3. Postponement
Grounds:
1. Illness or Sickness of Counsel OR Party
- nature of illness will render his absence excusable
- attendance is indispensable
2. Absence of Evidence
- any type of evidence
Requisites:

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- that the evidence is material and relevant
- that the evidence is necessary for the court to render a valid judgment
- there should have been earnest efforts looking for it

Example:
Excuse of the counsel was her daughter is giving birth
Doctor witness who conducted evaluation was also out of the country attending a convention
- NOT UNAVOIDABLE AND ONE THAT COULD NOT HAVE BEEN FORSEEN.

Can a court order render a judgment without a trial?
YES. Partial or Full.
If there is an agreement on facts as provided for in Sec. 6, agreed by the parties.
Submission of respective memorandum, no trial anymore because no facts in controversy.

Can the power to hear the case be delegated by the judge?
- Judge can delegate the RECEPTION OF EVIDENCE to the CLERK OF COURT.
Instances:
1. Default cases
2. Ex Parte proceedings
3. Parties agree

Sec. 16
Present Recollection Revive
Past Recollection Recorded

RULE 31 CONSOLIDATION OR SEVERANCE

Can cases be consolidated?
YES. When there is common fact or law.

Consolidation cases are already pending
Joinder of causes still deciding whether to join them in an action

Different Judicial Stations
Ex: One in the province, one in Makati
Yes, can be consolidated.

Republic v. Sandiganbayan, Marcos, et al.
- Consolidated only for purposes for trial
- Deposition in one cannot be used in another

CRIMINAL CASES
- there is only consolidation for PURPOSES OF Trial

Is consolidation a remedy if there is an allegation of forum shopping?
NO.

Standard when it comes to MONEY CLAIMS

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Purely discretion of the court whether there is a separate trial.
General Rule: Single Trial

Santamaria & Boza v. Cleary (2016)
Rule 23, Section 1 is clear that the testimony of any person may be taken by deposition upon oral
examination or written interrogatories at the instance of any party.

RULE 32 TRIAL BY COMMISIONER

- For as long as the parties agree, any matter can be referred
When NO AGREEMENT, only when:
1. The records are long and voluminous.
2. There are facts arising other than on pleadings.
3. There are facts which are necessary for the court to be able to render a judgment

Are there other provisions on commissioners?
YES. Mandatory provision in Rule 67 Expropriation
- there are 2 stages: 1: Expropriation, 2: determination of just compensation
2nd Stage: mandatory appointment of 3 disinterested commissioners

- Under Judicial Partition under Rule 69, appointment of commissioner will only take place if the parties
cannot agree

CLERK OF COURT COMMISSIONER
Rule 30 - can rule on an objection
Can be appointed by the judge to receive - can determine admissibility of evidence if
evidence; can delegate in certain cases within the order of reference
- can issue any subpoena if within the
CANNOT RULE ON AN OBJECTION order of reference

CANNOT DETERMINE AN ADMISSIBILITY OF
EVIDENCE

Can issue a subpoena ad testificandum ex parte;
but only the court can issue duces tecum

WITHIN THE ORDER OF REFERENCE
- Authority given by the court for the commissioner to be able to act

ACTS:
- conduct conferences, adjourn from day to day
- duty to make a report to judge
- duty of the clerk to give copies to the parties
- 10 days to file comment of the parties
- with or without comments, judge can accept, reject, re-commit, accept a portion and reject the rest.

RULE 33 - DEMURRER TO EVIDENCE

CIVIL CRIMINAL

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When to File: SAME RULE
After the plaintiff has completed presentation of After the prosecution rested its case.
evidence - After acceptance by the judge of the offer
- After the action of the judge on the formal of evidence
offer of evidence considering the
comment of the other party Leave of Court is NOT MANDATORY
- Now ORAL, under the judicial affidavit But is HIGHLY RECOMMENDED
rule; unless documents are voluminous - Without Leave and Demurrer Denied, the
- No need for leave of court COURT CAN ALREADY RENDER A
JUDGMENT.
GRANTED: - With Leave, and denied, CAN STILL
- Case is DISMISSED; final disposition PRESENT EVIDENCE.
- Plaintiff can APPEAL
DENIED:
APPEAL: - NO RULE 65
RTC to CA
CA if reversed, already a judgment GRANT:
- Defendant will no longer present evidence - ACCQUITTAL
kaya panalo na yung plaintiff - DOUBLE JEOPARDY will attach

DENIED:
- Not a final disposition
- INTERLOCUTORY ORDER
- Not appealable
Options:
- Proceed to TRIAL or present your own
evidence
- MR
- RULE 65 if with GAD

Demurrer on Guardianship
- Allowed. Rules suppletorily apply in Special Proceedings

RULE 34 JUDGMENT ON THE PLEADING
RULE 35 SUMMARY JUDGMENT

RULE 34 - JOP RULE 35 - SJ
WHEN TO FILE: WHEN TO FILE
After an answer or responsive pleading has been As to who is filing:
filed. Plaintiff files: there must be an answer
- Generally filed by the plaintiff Defendant: can be filed at any time

ALWAYS COMPLETE COMPLETE/PARTIAL

- Court will only rely on the pleadings and - can rely on pleadings, affidavits,
its attachments documents, depositions

Definition:
THE ANSWER DOES NOT TENDER AN ISSUE THERE IS NO GENUINE ISSUE AS TO A

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OR ADMITS THE MATERIAL ALLEGATIONS OF MATERIAL FACT.
THE COMPLAINT. (Admitted the cause of action)

ANY ACTION can be subject of SUMMARY JUDGMENT, with the sole exception for actions for declaration of
nullity, annulment of marriage, and legal separation,

GENUINE ISSUE issue of fact that requires presentation of evidence

RULE 36 - JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

FINAL JUDGMENT INTERLOCUTORY ORDER
Final disposition of the case Proceed with the case until judgment
Nothing else to be done Not a final disposition
May be subject of an appeal

If not timely appealed, or subjected to MR will
attain finality.
Court can already issue an entry of judgment.

ENTRY OF JUDGMENT
- Tells you that it is ready for execution
- Will only kick in after the expiration of the reglementary period to appeal

THE WRIT OF EXECUTION CANNOT DEVIATE FROM THE DISPOSITIVE PORTION OF THE JUDGMENT.

Final and Executory
- immutable and unalterable
Exceptions:
1. CLERICAL ERROR
2. NULL AND VOID
3. NUNC PRO TUNC
- Judgment that does not speak the truth.
- does not reflect what the judgment says
PRO HAC VICE
- For that particular purpose only
- Will not have a doctrinal effect
- Litigants in the future cannot rely on it

VOID JUDGMENT OR ORDER
- Has no legal or binding effect
- Non-existent in contemplation of law
- No necessary steps to vacate or avoid
- May simply be ignored
- No judgment at all
- Writ of execution is likewise void

COMPROMISE JUDGMENT
- NOT APPEALABLE
Gadrinab v. Salamanca (2014)

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- One party did not follow the compromise agreement
- Filed a separate action
Not correct. There is already a final and executory judgment.
FILE A MOTION FOR EXECUTION instead (may judgment na nga e.)

Compromise Agreement not submitted in court
- File a joint motion to dismiss
- Just say that dismissal is with prejudice

Breached compromise agreement
- File a new case

RULE 37 - NEW TRIAL OR RECONSIDERATION
RULE 38 - RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

Within the Reglementary Period:
You can file any of the following

1. MOTION FOR RECONSIDERATION
- can be filed in FULL/PARTIAL
Grounds:
- Contrary to Law
- Not supported by evidence
- Damages are excessive

2. MOTION FOR NEW TRIAL
Grounds:
- exFAMEn
- newly discovered evidence
requires a TRIAL DE NOVO

Tadeja v. People
- EJ confession is a newly discovered evidence

Requisites of NDE
- discovered after trial
- could not have been discovered or produced at the trial even with exercise of diligence (most
important requisite)
- material and not merely cumulative
- of such weight that it would probably change the judgment if admitted

3. APPEAL
Rule 40-45

WHEN MR, MNT, APPEAL NOT FILED

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2 KINDS OF PETITION FOR RELIEF

1. PETITION FOR RELIEF FROM JUDGMENT/PROCEEDING
- Only available if the remedies of MR, MNT, and Appeal were not available without the fault of the
Petitioner.
Ground:
- exFAMEn
Who can file:
- Filed by a party
Alaban vs. CA
- Distribution of estate
- One heir made representation that he is the sole heir
- Entire estate was awarded to him
- Other heirs file MOTION TO SET ASIDE declaring him as the sole heir
- Trial Court denied.
- Filed PETITION FOR ANNULMENT OF JUDGMENT in CA.
SC:
- It was an action in rem, by reason of the publication, other heirs were deemed as parties.
- Remedy should have been PETITION FOR RELIEF FROM JUDGMENT
-

Period to File Petition
6 months from entry of judgment, BUT within 60 days from knowledge.

2. PETITION FOR RELIEF FROM DENIAL OF APPEAL
- When PREVENTED FROM FILING AN APPEAL

Porcon v. MRM Philippines
Where to file:
- If judgment is from RTC, file in RTC
- MTC, file in MTC

CA or SC (Porcon Case)
- CANNOT FILE

ANNULMENT OF JUDGMENT
Grounds
- Lack of Jurisdiction (both over the subject matter & person of the defendant)
Period: Until it is barred by laches.
- Extrinsic Fraud
Period: 4 years from discovery

Where to File
Decision of RTC: CA
Decision of MTC: RTC
Decision of CA: no annulment of judgment
- But CA can entertain from RTC

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Annulment of Judgment in Criminal Cases
- NO. ONLY CIVIL ACTIONS.

Pinausukan Seafood v. Far East Bank
- Petition for annulment of judgment is a remedy in equity
- So exceptional in nature that it may be availed of only when other remedies are wanting.
- And only the judgment final or final resolution sought to be annulled was rendered by a court
lacking jurisdiction or extrinsic fraud.

RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Division of Provisions
General Provisions: 1-14
Sale: 15-34
Remedies Available for the satisfaction of judgment: 35-43
Satisfaction of Judgment: 44-45
Effect of Judgment: 47-48
GENERAL PROVISIONS

Entry of judgment is not enough, FILE A MOTION FOR EXECUTION.
No writ of execution can issue motu propio.

Types of Execution:
1. EXECUTION A MATTER OF RIGHT
- If the judgment is already final and executory
Without Appeal:
- Became final and executory.
- Filed in the court where judgment was rendered.
- No need to attach the original copy of the judgment (same court eh!)
With Appeal:
- Attach original copy of the judgment

RTC CA SC
Final and executor judgment, where to file motion?
- IN THE COURT THAT RENDERED ORIGINAL JUDGMENT.
- Attach original true copy of the judgment that attained finality.

If you were the judge, will you act on the motion for execution?
- NO. Dispositive portion of appellate court is always MODIFY, AFFIRM, And REVERSE.

2. DISCRETIONARY EXECUTION (Execution Pending Appeal)
- There should be good reasons
- Embodied in a special order of the court

Can you question the grant of discretionary execution?
YES.

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Remedy: RULE 65; File an MR first. Not appealable.

Where to file:
- File in the RTC for as long as it has jurisdiction and in possession of the records of the case
- Court will only lose jurisdiction after the expiration of the period to appeal
- For as long as the court is in possession of the records of the case
(RESIDUAL JURISDICTION)

Section 6. Execution by motion or independent action
REVIVAL OF JUDGMENT UPON AN INDEPENDENT ACTION
- Within 5 years from entry of judgment, you can file a MOTION FOR EXECUTION
- After 5 years but not more 10 years (prescriptive period of judgment, in the civil code), from the entry of
judgment, you can file an INDEPENDENT ACTION FOR REVIVAL OF JUDGMENT.

Topacio v. Banco Filipino
- Foreclosure Motion for Writ of Possession
Section 6 Rule 39 does not apply in special proceedings. Civil actions only.
- Not applicable in this case.

Section 7. Execution in case of death of party
- Execution will take place against the executor/administrator
- Execution will take place against the estate (money judgment)

Section 8. Issuance, Form and Contents of a writ of execution

Section 9. Execution of judgments for MONEY
3 ways:
1. Immediate payment on demand
- Or if payment cannot be effected, to his representative
- No representative, to the sheriff, who will deliver the money to the clerk of court, who in turn will deposit
the money
2. Levy
- Judgment obligor would be given a choice
- Subject of a public sale
- If the judgment obligee doesnt make a choice, personal property will have to go first
3. Garnishment
2-Step Process:
1. Notice of Garnishment from the court
- Requiring the custodian of the funds, to disclose whether there are sufficient funds
2. Order of Release
- To be used to satisfy the judgment

PAL v. Baleber
There should be a demand to pay.

Section 10. Execution of judgments for SPECIFIC ACT
- If the losing party cannot perform, the court may require another person to do it
- If there is no one to do it, the court may consider it PERFORMED.
Ex. Demolition - apply for an order of demolition

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Section 11. Execution of SPECIAL JUDGMENTS
- Requires that you attach a certified true copy of the judgment
- Why special? Only you can perform it
- If you dont perform, you could be held liable for contempt.

Corata v. PPA
Can there be execution pending appeal in EXPROPRIATION cases?
- NO. Even if you obtain an order of expropriation there could be no execution pending appeal.
- Discretionary Execution of judgments does not apply in EMINENT DOMAIN proceedings. Cannot be
allowed to be paralyzed.
- Cannot hamper the operations of government because of an execution pending appeal.

Is there a self-executory judgment?
YES. Labor cases.
Reinstatement aspect of the labor award. No need for writ of execution.
Employer is given the duty to submit compliance report.
Labor Arbiter only issues a writ of execution when employer disobeys.

Juco v. Heirs of Chung Fu
You cannot revive a judgment which has not yet attained finality.

VENUE FOR REVIVAL OF JUDGMENT
Infante v. Aran Builders
- dictated by the nature of judgment to be revived
- Ex. Property the place where the property is located

EXEMPT FROM EXECUTION
Properties exempt from execution cannot be attached.

Joseph v. Santos
- Judge must conduct determination of exemption of execution
EXEMPT FROM EXECUTION = ONLY FOR NATURAL PERSONS

Sec. 14 30 Days = interval of reporting on the part of the sheriff
- Not the life of the writ (period: 5 years)

SALE

NOTICE
1. Public
Perishable Goods: Postings in 3 public places
Real Properties: 20 days; 3 public places
Exceeding assessed value of 50k: Notice by Publication
Personal Properties: 5 days; 3 public places
2. Obligor at least 3 days before the sale, except sale of perishable

CERTIFICATE OF SALE

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Perishable Goods: same as personal property capable of manual delivery
Personal: capable of manual delivery, not mandatory, only provided if requested; not capable of
manual delivery, there should be a certificate of sale.
Real: Certificate of Sale is needed; Registered with the RD.
- Only when the certificate of sale is recorded when the redemption period will start to run.
-
REDEMPTION OF PERSONAL PROPERTY
- NONE. Cannot be redeemed.

REDEMPTION PERIOD (REAL PROPERTY ONLY)
1-Year Period (not extendible)
Judgment Obligor redeems, no more redemption.
NOT EXTENDIBLE.

During The Redemption Period, Possession: OBLIGOR

WHO CAN REDEEM (REDEMPTIONEER)

POSSESSION DURING THE PERIOD
- OBLIGOR

WHO IS ENTITLED TO PROFITS DURING THE PERIOD
o OBLIGOR, because he has possession.

CHANGE IN NATURE OF PROPERTY
o CANNOT CHANGE during the period

NATURE OF REDEMPTION

REMEDIES AVAILABLE TO A PURCHASER WITHOUT POSSESSION
Sec. 34
1. Recover the amount in the same action
2. Recover the amount in a separate action
3. Have the judgment revive in my name

Third-Party Claim (TERCERIA)
Rule 39 Sec. 16
Rule 57 Sec. 14
Rule 60 Sec. 8

Illustration:
Judgment Obligee Sheriff (for execution) Property
TPC serves affidavit to the Sheriff = execution will be SUSPENDED
Remedy of Judgment Obligee: Post a Bond in favor of TPC; for execution to pursue

How can Judgment Obligee vindicate his right?
- In the same action or separate action

How can TCP vindicate his right?

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- Separate action; not a party to the first case, which is final and executory wherein he cannot
intervene anymore

Villasi v. Garcia
Right of a TPC to file a terceria is FOUNDED ON HIS TITLE OR RIGHT OF POSSESSION
- Before the court can exercise supervisory power to release the power, claimant must first unmistakably
establish ownership or right of possession.
- Claimant must sufficiently establish his right to the property
- Court is limited to the determination whether the sheriff has acted rightly on the exercise of his duties
- Any ruling of the court cannot affect the title to the property

REMEDIES available to the judgment obligee
- Examine the judgment obligor
- Examine the debtor of the judgment obligor
- Debtors of the judgment obligor can pay directly to the sheriff, and will be applied as satisfaction of
judgment
- Court allows amortization payment basis; judgment obligor has sufficient income
- Receivership; if you think the property will be damaged to prevent it to be wasted
- If the judgment obligor has an interest either as mortgagor or mortgagee, and that property can be
sold on public sale.
- Denial of interest of judgment obligor by the possessor of the property; judgment Obligee can
request the court for an order to sell the property within 120 days.

SATISFACTION OF JUDGMENT
1. If the writ of execution returns to the court, fully satisfied.
2. Written acknowledgment of judgment obligee or his counsel.
3. Written endorsement by the judgment obligee in the face of the records of the case.

WITH OR WITHOUT ADMISSION (45)
With admission: just pick 2 items from 44

EFFECT OF A DOMESTIC JUDGMENT
-

APPEAL

ORDINARY PETITION FOR REVIEW PETITION FOR REVIEW
ON CERTIORARI
1. Rule 40 1. Rule 42 Rule 45
MTC renders a judgment RTC to CA (RT as an appellate court) SC
File NOTICE of appeal in File PR in CA - in civil cases, to go
MTC to appeal in RTC - 15 days; to SC on appeal, is
- Within 15 days - Can extend (15 days, pay docket fees) only PFRC
- No extension - No 2nd extension, except for the most - From RTC, pure
- File and pay docket compelling reason question of law
fees within the - Both questions of facts and law can be - From SB, go to SC
reglementary period raised - CTA En Banc

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- Being a petition, there are certain - CA
Record On Appeal attachments Period: 15 days
- Filed within 30 days i. Duplicate/original/certified true Singular extension of 30
- General rule, no copy of judgment days only with the most
extension. Except ii. Verified compelling reason
when the court iii. Certificate on non-forum shopping
requires an alteration iv. Pertinent pleadings should be
or amendment on attached
your record on v. Copy of the petition should be
appeal. served on the adverse party and
- Contains compilation the court which rendered the
of all the pleadings judgment
and all the orders vi. Affidavit of service
issued by the court in vii. Other than personal service,
a consequential explanation also filed
manner. viii. Corporation as party, also have a
- Applicable in Special secretarys certificate
proceedings and PETITION WILL BE DISMISSED IF ANY
those involving OF THE FOLLOWING IS NOT
multiple appeals ATTACHED

2. Rule 41 2. Rule 43
RTC QUASI-JUDICIAL AGENCY
Same: Notice of Contents are the same except;
Appeal/Record on Appeal That all pleadings attached must be certified
true copy.
RTC as appellate court:
filing of memorandum
- within 15 days
- appellant and
appelles
memorandum
RTC to CA (Rule 44)
Appellants Brief
- within 45 days
- failure to file, appeal
will be dismissed

COURT OF APPEALS
Original Action Appealed
46, 47, 48, 49, 51, 52, 53 41, 42, 43, 44
Certiorari, Prohibition, Mandamus, Quo
Warrant, Writ of Amparo, Habeas Data, Habeas
Corpus, Application for Freeze Order in AMLA,
Annulment of judgment
Jurisdiction Acquired:
1. by receipt of resolution showing the initial
action of the court
Containing:
The respondent without filing a motion to
dismiss is hereby required to file a comment

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within 10 days
2. Voluntary Appearance

Hearing? YES.
- Division can conduct hearing in original
cases

-Can direct an RTC to receive evidence for CA
-CA can also receive evidence

Requirements for Petition for Certiorari

SC
Original Appealed
46, 48, 49, 51, 52 45

PROVISIONAL REMEDIES (57-61)
- All of these remedies are ANCILLARY TO THE PRINCIPAL ACTION.
PRELIMINARY ATTACHMENT
PRELIMINARY INJUNCTION
RECEIVERSHIP
REPLEVIN
SUPPORT PENDETE LITE

Can there be a principal action for preliminary attachment or preliminary injunction?
- General rule, No.
- Exception, under the ADR Rule of 2004; Can be filed as an original action because it is an interim
relief.

PRELIMINARY ATTACHMENT
- To secure the judgment
- On final judgment, properties attached are applied first to satisfy the judgment.
Order:
1. Money
2. Perishable Goods Sold by reasons of attachment
3. Personal/Real Property will be subject of Public Sale

- If full amount not satisfied by the attachment under Rule 57, continue with ordinary execution under
Rule 39.

GROUNDS:

1. Claim for money arising from an obligation
- person is about to depart
- with intent to defraud

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2. Embezzlement, Misappropriation, Abuse of Trust (Estafa)
Sec. 2 Rule 127 also a ground for attachment in a criminal case
3. For recovery of possession of property, fraudulently or unjustly taken, removed, concealed or disposed
of to prevent its being found (no distinction with real or personal property)

4. There is fraud in contracting/in the performance of obligations

5. Does not reside in the Philippines.

When to apply:
- Anytime BEFORE entry of judgment

Contents of an Affidavit:
1. Statement that there is a cause of action
2. State the grounds
3. Amount appearing in the order above all legal counterclaims
4. That there is no sufficient security

Equitable Bank vs. Special Steel Products
- details must be indicated of what is required in the contents of an affidavit

PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS
- on the defendant
- Mauna yung summons o kaya sabay sabay

IN CUSTODIA LEGIS in personal properties
- Bring the properties to the court
- To secure the judgment

Real Properties
- Annotation of attachment on the title of the property
- Possession remains with the owner

Money
- Garnishment (you cannot withdraw)
The court takes and applies

Shares of Stock
- notice given to the manager or president
- annotated in the books of the company

Writ was serves, alias summons belatedly served
- no cure in fatal defect of the enforcement of the writ
- no jurisdiction acquired over the person of the defendant

Is a sole proprietorship a juridical entity?
- No juridical entity.
- Personal liability of the registered name

Sec. 20 Rule 57
DAMAGES

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- thats why bond is posted
- for wrongful attachment (actual)
- malicious or in bad faith (moral or exemplary damages)
Amount of unrealized profits
- must be established and supported by independent evidence by the main income of the business
interrupted by the illegal seizure
Attorneys Fees
- not granted when there is no moral or exemplary damages
- you can recover in wrongful attachment
- not because of the main case; only in wrongful attachment

HOW TO DISSOLVE ATTACHMENT
Sec. 12 &13 of Rule 57

1. That it was irregular, improper or excessive
Irregular process was not observed
Improper no ground/wrongful ground
2. Counter-bond
COUNTER-BOND
- when ground for attachment is same as the cause of action
- can only be posted after the writ of attachment has been enforced
- there could be a PARTIAL RELEASE

Third Party Claim
- Sheriff will not continue with an attachment if he receives an AFFIDAVIT
- Motion to release property on attachment was also filed
- Motion can be treated as (1) continuation of the TPC or (2) interevention

PREFERENCE ON LEVY
The Levy on Attachment DULY REGISTERED takes preference over a PRIOR unregistered sale.

PRELIMINARY INJUNCTION
Bacolod Water v. Labaye
Injuction v. Preliminary Injunction
Preliminary Injunction = PROVISIONAL REMEDY
Injuction = ORDINARY ACTION

Preliminary Injuction
- to stop; to enjoin.
- No definite period of expiration

Preliminary Mandatory Injunction
- under Rule 70 (ejectment), to apply for this within 5 days from the filing of the complaint
- to take possession of the property
- also within 10 days after appeal is perfected (Ejectment)

REQUISITES:
1. Clear and unmistakable right

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2. Right has been violated and the invasion is material
3. There is urgent and permanent necessity for the writ to prevent serious damage

TEMPORARY RESTRAINING ORDER
- to stop for a period of 20 days (no extension)
- bond is required
- automatically expires
in CA: 60 days
in SC: until further orders of the Court (as if you get a Preliminary Injunction)

WHERE TO APPLY:
- MTC, RTC, CA, SC

Filed ancillary to Rule 65, Rule 45, Rule 42
- YES, as long as the requisites are available.

While the action is pending?
- Yes, can be applied as part of an initiatory pleading or a motion while the case is pending.

TEPO (Temporary Environmental Protection Order)
- bond is not required

Temporary Order of Protection
- equivalent of a TRO under an interim relief

Barangay protection order/ temporary protection order
- a relief given in instances of VAWC

Can there be an ex parte TRO?
- YES.
- When there is a complaint, and there is an application for TRO and Preliminary Injuction (show
urgency and great and irreparable injury)
- Issued by an EXECUTIVE JUDGE OF A MULTI-SALA COURT

MANDAMUS
- there is a law that requires performance
- it does not require discretion, purely ministerial

CONTINUING MANDAMUS
- requires to perform acts that protects the environment and healthful ecology
- court continues with its jurisdiction to see to it that the order was properly complied with.
- original jurisdiction is with RTC (, CA, SC
- no docket fees

WRIT OF KALIKASAN
- it is the damaged environment of that magnitude as to prejudice life, health, or property in at least 2
cities or provinces.
- Filed in the SC, returnable to the CA (the answer)

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- Not in this magnitude, file citizens suit or continuing mandamus

QUO WARRANTO
Grounds:
1. Ursurpation someone takes on your office
2. Forfeiture of Office by reason of your act
3. Association not duly incorporated or licensed in the Philippines

Who institutes the action?
- GOVERNMENT (general rule)

How instituted?
1. Solicitor General, if directed by the President)
2. Solicitor General, upon sufficient complaint
3. Solicitor General, upon the relation of another person

Exception:
- aggrieved party filing an action against the usurper
Liban v. Gordon
- the very moment it appears that the person instituting the action is not entitled to the office, the case
will be dismissed.

Moro v. Del Castillo
- accountant of the general headquarters of the AFP
- suspended then dismissed
- on appeal, he wants to be reinstated
What is the effect of dismissal by the Ombudsman?
- immediately executory (think of Junjun Binay)
As in the case of Datumanong, an appeal shall not stop the decision of the Ombudsman for being
executory. Dismissal order is immediately executory even pending appeal.

Emerson de Castro v. Carlos
- Where a private person in his own name files the action, he must prove that he is entitled in the
controverted position.

Divinagracia v. Consolidated Broadcasting System
- non-use of a franchise, the remedy is quo warranto

EXPROPRIATION

Bardillon Case
- RTC has jurisdiction
- Dictated by the exercise of the right

PERSONAL PROPERTY
- can also be expropriated
- under the Rules

Republic v. Mangotara
- Who are indispensable parties in an action for expropriation?

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o Republic, LGU, or Instrumentality of the Government as plaintiffs; Registered owner or
possessor (defendant)
- In this case, Mangotara is an OCCUPANT.
- Republic owns the property, can file a complaint on the private person occupying the property.
- Implead as defendant, possessor/OCCUPANTS.

Decision or Order of Expropriation by itself, is APPEALABLE.
No need to wait for the determination of just compensation.
Mode of Appeal: RECORD ON APPEAL

- Because it involves multiple appeals
1 order in expropriation; 1 order in just compensation (kaya multiple)
- Compilation of all the pleading and orders in court

BENEFITS SHALL NOT EXCEED CONSEQUENTIAL DAMAGES

Government: ASSESSED VALUE
LGU: 15% of the Fair Market Value
- there is a need of an ORDINANCE
Government Infrastructure Project
NAIA 3 Case:
RA 8974 Expropriation for National Government Infrastructure Projects: Not only that you need
to deposit, the government is required to make immediate payment to the property owner upon the
filing of the complaint to be entitled to the writ of possession. Current relevant zonal valuation of the
BIR must be the basis of amount.

Rule 67, what is required is only to make an initial deposit, equivalent of the assessed value.

DPWH v. Tatad (2013)
Can expropriation continue if there is a dispute on ownership?
- DPWH may be allowed to present evidence, only necessary to determine who is entitled to just
compensation.
- There can be reception of evidence as to matter of ownership to determine to whom just
compensation will be paid.

Can the Republic withdraw expropriation?
- Yes, at anytime before the order of expropriation.

What happens to the damages suffered based on initial actions of the Government?
- Entitled to DAMAGES

Public purpose sought is no longer present, can it be withdrawn?
- YES, for as long as the public purpose is no longer available.

Counting of Just Compensation: Time of Taking OR Time of Filing of the Complaint?
- WHICHEVER COMES FIRST

Amount can be deposited to the court until the one entitled to just compensation is determined, until the
court ascertains who is entitled to just compensation.

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MORTGAGE

JUDICIAL FORECLOSURE EXTRA-JUDICIAL FORECLOSURE
- File and Pay Docket Fees - File a Petition for EJF in the Office of the
Clerk of Court under the Executive Judge
(Clerk of the whole station)

Redemption Period: Redemption Period:
Equity of Redemption period of not less than 1 year
90 days but not more than 120 days

1 year if there is a law that gives a longer
period. Ex. Banking Law

Who will be in possession during the period? Who will be in possession during the period?
OWNER OWNER

Entitled to PROFITS & RENTS: Entitled to PROFITS & RENTS:
OWNER OWNER

JUDICIAL CONFIRMATION OF SALE CERTIFICATE OF SALE

Robles v. Yapsinco (2014)
Action for Judicial Foreclosure
- failure of the winning bidder to register is of no consequence
- certificate of sale need not be registered
- only equity of redemption is allowed in judicial foreclosure
Effect of failure to obtain judicial confirmation only prevents the transfer of title.
Nor did such failure invalidate the foreclosure proceedings.

Lim v. DBP
Additional stipulation in Act 3135
- what is required is only posting of notice in 3 public places and publication in a NGC.
- you can freely stipulate (giving of notice was added, valid stipulation).

PARTITION
Stages of Partition:
1. Determination of existence of co-ownership
2. Partition

Who are indispensable parties in an action for judicial partition?
- ALL co-owners

Appointment of Commissioner
- Not mandatory
- Will only take place when the parties do not agree to stipulate

Is judicial partition within the jurisdiction of DAR?
- NO. Agency with limited jurisdiction. Only limited to agrarian disputes.
(Rosario v. Rosario)

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Quintos v. Decolas (2014)
- Action for partition; case was dismissed for failure to prosecute
- Failure to prosecute = adjudication on the merits, with prejudice
- Entered into a deed of adjudication of transfer of title (agreement)
- Later on, others dont recognize the agreement anymore
- Action for quieting of title was filed
Counterclaim: involving partition
- Is this barred by prior judgment?
NO.

RULE 70 FORCIBLE ENTRY & UNLAWFUL DETAINER

- Summary Proceeding

Demand Letter
- Not needed in FORCIBLE ENTRY
- Only in UNLAWFUL DETAINER
Contents:
1. Comply and vacate; or
2. Pay and vacate
- Always with demand to vacate

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