Atty George Aquino Civpro (2018).docx.pdf

PRE-BAR LECTURE NOTES REMEDIAL LAW CIVIL PROCEDURE ATTY. GEORGE S.D. AQUINO 2018 WHAT ARE THE ASPECTS OF JURISDICTION? (1) Jurisdiction over the subject matter (2) Jurisdiction over the parties; (3) Jurisdiction over the issues of the case; and (4) Jurisdiction over the res or the thing which is the subject of the litigation. (Boston Equity Resources, Inc., vs. Court of Appeals and Lolita G. Toledo, G.R. No. 173946, 19 June 2013) SUBJECT MATTER JURISDICTION • Jurisdiction over the subject matter is "the power to hear and determine cases of the general class to which the proceedings in question belong. • It is conferred by law, which may either be the Constitution or a statute. • Jurisdiction over the subject matter means "the nature of the cause of action and the relief sought." • Thus, the cause of action and character of the relief sought as alleged in the complaint are examined to determine whether a court had jurisdiction over the subject matter. • Any decision rendered by a court without jurisdiction over the subject matter of the action is void. (Department of Finance v. Dela Cruz,G.R. No. 209331, 24 August 2015) 1. Jurisdiction over the subject matter is determined based on the law in effect as of the filing of the complaint. 2. Jurisdiction depends on the allegations in the complaint, not on the eventual decision, nor on the defenses raised by opposing party. 3. Doctrine of continuing jurisdiction – once jurisdiction has been acquired, the court retains the same until it finally disposes of the case. 4. In Figueroa v. People, G.R. No. 147406, 14 July 2008: Supreme Court ruled that jurisdiction over the subject matter is conferred by law (the sovereign authority) and cannot be waived. Therefore, it cannot be conferred by consent of the parties nor lost by estoppel. 5. However, the case of Tijam v. Sibonghanoy, G.R. No. L-21450, 15 April 1968, gives an exception to the aforementioned rule. In said case, the Supreme Court introduced the doctrine of JURISDICTION by ESTOPPEL where the Supreme Court ruled that when a party participated and sought affirmative relief, he cannot thereafter repudiate that jurisdiction after an adverse judgment has been rendered. 6. Doctrine of Primary Jurisdiction- if an administrative agency has jurisdiction over a dispute, regular courts ought to respect that jurisdiction. Jurisdiction over the parties HOW DO COURTS ACQUIRE JURISDICTION OVER THE PLAINTIFF? • upon the filing of the complaint. HOW DO COURTS ACQUIRE JURISDICTION OVER THE DEFENDANT? • either through the service of summons upon them or through their voluntary appearance in court and their submission to its authority (Chu v. Mach Asia Trading, G.R. No. 184333, 1 April 2013). • Voluntary appearance comes by way of the filing of a motion or pleading expressly submitting to the court’s jurisdiction or seeking affirmative relief therefrom. • In a case where the defendant filed an Urgent Motion to Set Aside Order of Default and to Admit Attached Answer, she is deemed to have submitted to the court’s jurisdiction

even if there were defects in the service of summons. (Planters’ Development Bank v. Chandumal, G.R. No. 195619, 5 September 2012). Jurisdiction over the parties • However, if the defendant filed an Answer by way of Special Appearance (without prejudice to jurisdictional challenges), this is NOT to be considered a voluntary appearance. (Prudential Bank v. Magdamit, Jr., G.R. No. 183795, 12 November 2014). • Under Section 20, Rule 14 of the Rules of Court, when a party files a Motion to Dismiss, even if he includes grounds other thank lack of jurisdiction over the person, this shall NOT be considered a voluntary appearance. Jurisdiction over the Issues • determined and conferred by the pleadings filed in the case by the parties, or by their agreement in a pre-trial order or stipulation, or, at times by their implied consent as by the failure of a party to object to evidence on an issue not covered by the pleadings (Regalado Law Compendium, cited in De Joya v. Marquez, G.R. No. 162416, 31 January 2006) Jurisdiction over the Res • This is acquired either: (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective.

RULE 1 GENERAL PROVISIONS What are the rules on docket fees vis-à-vis its commencement? • Specify the amount of damages being prayed for not only in the body of the pleading but also in the prayer. • Any pleading that fails to comply with this requirement shall not be accepted nor admitted, or shall otherwise be expunged from the record.” (Manchester Development Corp. v. Court of Appeals, No. L- 75919, 7 May 1987) • If the judgment awards a claim not specified in the pleading, or • if specified the same has been left for determination by the court,  the additional filing fee therefor shall constitute a lien on the judgment. (Sun Insurance Office, Ltd. v. Asuncion, G.R. Nos. 79937-38, February 1989)

13

What are the actions governed by the Rules of Court? • Civil Action action that seeks to enforce or protecta right or to prevent a wrong • Special Civil Action - an independent action based on specific grounds • Criminal Action action that seeks to prosecute an act or omission punishable by law • Special Proceeding - a remedy by which a party seeks to establish a status, right or a particular fact. To initiate a special proceeding, a petition and not a complaint should be filed. Rules of Court not applicable in certain cases • • •

Election case Land Registration Cadastral

• • • •

Naturalization Insolvency Rehabilitation Other cases

EXCEPTION is when the application of the provisions of the Rules of Court is only by analogy or in a suppletory character and it is practicable and convenient. When is an action deemed commenced? • On the date of the filing of the original complaint o EXCEPTION - when an additional defendant is impleaded, the action is commenced as to him on the date of the filing of the amended pleading. BUT, with regard to the other parties, the action is commenced still on the date of filing of the original complaint.

RULE 2 CAUSE OF ACTION Elements: 1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created; 2. An obligation on the part of the named defendant to respect or not to violate such right; and 3. Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief. (Swagman v. Court of Appeals, G.R. No. 161135, 8 April 2005) • The test of the sufficiency of the facts alleged in the complaint is whether or not, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer of plaintiff. • The focus is on the sufficiency, not the veracity, of the material allegations. • Failure to make a sufficient allegation of a cause of action in the complaint warrants its dismissal. (Anchor Savings Bank v. Furigay, G.R. No. 191178, 13 March 2013). RULE 2 Failure to State a Cause of Action v. Lack of Cause of Action Failure to State a Cause of Action is a ground to dismiss; lack of cause of action is NOT. Examples: • Plaintiff filed case against defendant to compel the latter to extend a contract of lease. Even assuming the allegations of the complaint are true, this does not give rise to an actionable right as the extension of a contract of lease must be mutually agreed upon and not compelled by court action. • In an action for injunction by a plaintiff against a defendant who is allegedly encroaching on his property, defendant raised the defense of “lack of cause of action” because he allegedly had title over the property. Defendant argued that in effect, plaintiff was seeking to nullify his title. The Supreme Court ruled that plaintiff had stated a sufficient cause of action because his allegations (as to ownership and alleged encroachment) are hypothetically admitted as true. (Ceroferr v. CA, 5 February 2002) HYPOTHETICAL ADMISSIONS DO NOT EXTEND TO CONCLUSIONS (Westmont Bank v. Funai, 8 July 2015). • Unless the plaintiff has a valid and subsisting cause of action at the time his action is commenced, the defect cannot be cured or remedied by the acquisition or accrual of one while the action is pending, and a supplemental complaint or an amendment setting up

such after-accrued cause of action is not permissible (Swagman v. Court of Appeals, G.R. No. 161135, 8 April 2005) WHAT IS ANTICIPATORY BREACH? • “If the contract is divisible in its performance and the future periodic deliveries are not yet due, and if the obligor has already manifested his refusal to comply with his future periodic obligations, ‘the contract is entire and the breach total’, hence, there can only be one action for damages.” • (Danfoss, Inc. v. Continental Cement Corp., G.R. No. 143788, 9 September 2005, citing Blossom & Company, Inc. v. Manila Gas Corporation, G.R. No. L-32958, 8 November 1930) WHAT IS THE RULE ON CAUSES OF ACTION? • JOIN

A party cannot split a single cause of as many causes of action against an opposing party.

action but

may

TEST AS TO WHETHER THE CASE INVOLVES THE SAME CAUSE OF ACTION: (a)whether the same evidence would support and sustain both the first and second causes of action (also known as the "same evidence" test), (b) whether the defenses in one case may be used to substantiate the complaint in the other. (c) whether the cause of action in the second case existed at the time of the filing of the first complaint. (Umale v. Canoga, G.R. No. 167246, 20 July 2011) Examples of splitting a cause of action: • In Riviera v. CCA, 17 June 2015, the SC ruled that two cases which are based on (a) failure to pay license fees and (b) damages due to unearned profits, respectively, SPLIT a cause of action because they are “ultimately anchored” on the breach of one agreement. • In Marilag v. Martinez, 22 July 2015, a petitioner instituted an action for JUDICIAL foreclosure and later on filed a personal action for collection of the debt. This was considered as SPLITTING a CAUSE OF ACTION. But note that this does not preclude a filing for motion for the deficiency judgment after the foreclosure sale. • When there are several installment payments due, each payment due constitutes one cause of action. However, ALL due as of the time of filing must be brought in the same action. (BPI v. Coscolluela, 27 June 2006) Q: In one case, a lessee who violated the terms of its lease was subjected to an unlawful detainer case. (Case 1) While Case 1 was pending appeal, the lease agreement expired and the lessor filed another unlawful detainer case (Case 2). Is this considered as “splitting a cause of action”? A: No. In Umale v. Canoga, 20 July 2011, the Supreme Court ruled that the violations of the terms of the lease and the eventual expiration of the lease constitute separate causes of action, and they do not constitute a “SPLITTING”. RULES ON JOINDER: Sec. 5. Joinder of causes of action. – A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: (a) The party joining the causes of action shall comply with the rules on joinder of parties; (b) The joinder shall not includespecial civil actons or actions governed by special rules;

RULES ON JOINDER: (c) Where the causes of action are between the same parties but pertain to different venues or jurisdiction, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and (d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (5a)

EFFECT OF SPLITTING A CAUSE OF ACTION: • If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment on the merits in any one is ground for the dismissal of the others. (Umale v. Canoga, G.R. No. 167246, 20 July 2011). • NOTE: It need not be the second action that is dismissed. • Considerations to determine which action should prevail: 1. The date of the filing, with preference generally to the first action filed to be retained; 2. Whether the action sought to be dismissed was filed merely to preempt the later action or to anticipate its filing and lay the basis for is dismissal; and 3. Whether the action is the appropriate vehicle for litigating the issues between the parties.” • The dismissal may occur while the two actions are pending (based on litis pendentia) or, after the first case is filed and terminated, a second case may be barred by res judicata. (Benavidez v. Salvador, G.R. No. 173331, 11 December 2013) Joinder of causes of action allowed in the RTC even if other causes of action pertain to the MTC provided one of the causes of action falls within its jurisdiction • As the RTC has jurisdiction over the action to declare the interest rates and foreclosure void, the RTC is allowed to decide the action for violation of the Truth Lending Act which was jointly instituted even if such cause of action falls within the jurisdiction of the MTC (UCPB v. Spouses Beluso, GR No. 159912, August 17, 2007)

Where all the causes of action are principally for recovery of money, what is the test of jurisdiction? • The aggregate amount claimed. o This embodies the "totality rule" as exemplified by Section 33 (1) of B.P. Blg. 129 which states, among others, that "where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions." Misjoinder of causes of action NOT a ground for dismissal • Misjoinder of the action for quieting of tile which is a special civil action under Rule 63 and an action for declaration of nullity in one suit is not a ground for the dismissal of the case (Roman Catholic Archbishop of San Fernando v. Soriano, GR Nos. 153829 and 160909, August 17, 2011) What is the effect of a misjoinder of causes of action and parties? • The Court can order: 1. The severance of the misjoined cause of action, to be proceeded with separately (in case of misjoinder of causes of action); and/or 2. The dropping of a party and the severance of any claim against said misjoined party,

also to be proceeded with separately (in case of misjoinder of parties). (Republic v. Herbieto)

RULE 3 PARTIES

Who are parties to a civil action? • Plaintiff • Defendant Who may be plaintiffs/defendants? • Natural or • Juridical Persons or • entities authorized by law (Section 1, Rule 3) EXAMPLES: • When a group of individuals claiming to represent an association filed a case and all signed the verification, and the association was not duly registered or incorporated, the Supreme Court held that the plaintiff had no personality to sue (Dueñas v. Santos Subdivision Homeowners Association, G.R. No. 149417, 4 June 2004). • When a dissolved corporation filed a case beyond the 3-year winding up period, it was considered to be without personality to sue. The Supreme Court explained the rule that if the corporation commenced the suit within the 3-year period, even if litigation ends after the said period, the corporation is deemed to have personality. (Alabang Development Corporation v. Alabang Hills, G.R. No. 187456, 2 June 2014). • Note: under Section122 of the Corporation Code, the suit o the dissolved corporation must be in connection with the closure and settlement of its affairs. NOTE: under Section 15 of Rule 3, as a party defendant, “two or more persons NOT organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.” Examples of entities authorized by law to be parties: 1. Estate of a deceased person 2. Legitimate Labor organization 3. Corporation under dissolution under Section 122 of the Corporation Code.

REAL PARTY IN INTEREST • Who is a real party in interest? o One who has a material interest in the case and stands to be benefited or injured by the judgment in the case. The rule is that every civil action must be prosecuted in the name of the real party in interest. • The rule is that every civil action must be prosecuted in the name of the real party in interest. o What is the ground for dismissal if it is not?  Failure of the complaint to state a cause of action

EXAMPLE: • A Petition for Declaration of Nullity of Marriage may only be brought by the husband or wife. Hence, even if an heir of one of the spouses will benefit (by inheritance) if the marriage is declared null, he/she cannot file the Petition himself/herself. (Carlos v. Sandoval, G.R. No. 179922, 16 December 2008) Who is the real party in interest in an action for recovery of possession or ownership?

• The rule is that any one of the co-owners may bring any kind of action for the recovery of co-owned properties since the suit is presumed to have been filed for the benefit of all co-owners. This clear under Article 487 of the Civil Code which covers all kinds of action for the recovery of possession and ownership (Estreller v. Ysmael, GR No. 170264, March 13, 2009). Rule 3 INDISPENSABLE PARTIES: Q: When can an agent sue in his own name? A: When: (1) the agent acted in his own name during the transaction; (2) the agent acted for the benefit of an undisclosed principal; and (3) the transaction did not involve the property of the principal. (Section 3, Rule 3)

REAL PARTY IN INTEREST In V-Gent v. Morning Star, 22 July 2015, the Supreme Court ruled that V-Gent, which purchased various airline tickets for individual passengers, cannot sue the travel agency without impleading the individual ticketholders.

The Supreme Court held: “In the present case, only the first element is present; the purchase order and the receipt were in the name of V-Gent. However, the remaining elements are absent because: (1) V-Gent disclosed the names of the passengers to Morning Star — in fact the tickets were in their names; and (2) the transaction was paid using the passengers' money. Therefore, Rule 3, Section 3 of the Rules of Court cannot apply.

INDISPENSABLE PARTIES (SECTION 7, RULE 3) Who is an indispensable party? An indispensable party is one whose interest in a case is such that a final judgment cannot be rendered therein without affecting his interest. His interest is inextricably linked and not separable from the interest of the other parties to the case.

EXAMPLES: • In a case for nullification of title, the registered owner of the property is an indispensable party (Cagatao v. Almonte, G.R. No. 174004, 9 October 2013) • All co-owners in a partition suit are indispensable parties. (Salvador v. Court of Appeals, G.R. No. 109910, 5 April 1995) • However, not ALL co-owners are indispensable parties to bring an action against a third party who poses a challenge to their land (Article 487, Civil Code). • In a Petition for Certiorari, the main respondent is the public respondent. Not all of the private parties in the case a quo are indispensable parties. (Siok Ping Tang v. Subic Bay Distribution, Inc., G.R. No. 162575, 15 December 2010) What is the effect of the failure to implead an indispensable party? • Failure to implead an indispensable party is not a ground for dismissal of case. Neither misjoinder nor non joinder of parties is a ground for dismissal of an action (Leonis Navigation v. Catalina Villamater, GR No. 179169, March 3, 2010).

What is the proper remedy when an indispensable party

has not been impleaded as a party to the case? • The proper remedy is to implead the indispensable party at any stage of the action even after a judgment has been rendered. (Leonis Navigation v. Catalina Villamater, GR No. 179169, March 3, 2010).

Who is a necessary party? • A necessary party is one who is not an indispensable party but one who should be joined as a party in order to accord a complete relief to the original parties or to have a complete determination of the claim subject of the case. What is the test for determining if a party is a necessary party? • The test is by ascertaining the relief prayed for in the complaint. If a complete relief cannot be afforded to the original parties or a complete determination of the claim subject of the case cannot be made without impleading the party, then such party is a necessary party. NECESSARY PARTIES • • • •

EXAMPLES: Joint Obligors Junior Mortgagees If one co-owner files a other co- owners are necessary parties

case, on

behalf of

property,

Q: A private law office was engaged by a GOCC. The payment of fees to the Law office was disallowed by the COA. The private law office filed a Petition to the Supreme Court challenging the disallowance. Is a private law office the real party in interest to challenge the disallowance by the COA? A: Yes. The law office does not have “a mere incidental interest and the interest is not merely consequential. xxx The net effect of upholding or setting aside the assailed COA rulings would be to either disallow or allow the payment of legal fees to (the law office).” (Law Firm of Laguesma v. COA, 13 January 2015).

Q:

Should the GOCC be a party to the case?

A: Yes, it is a necessary party as it will ultimately be ordered to pay. Its inclusion will accord a complete relief to the original parties or to have complete determination of the claim subject of the case. Foreign corporations and their capacities to sue • An unlicensed foreigncorporation not doing business in the Philippines has the capacity to sue • An unlicensed foreign corporation doing business in the Philippines cannot sue before Philippine courts but such corporation can sue if it is not doing business (Sec. 133, Corporation Code). • A private company owned by a foreigngovernment is not immune from suit A misjoinder of party plaintiff is not a ground for dismissal of the complaint What is the remedy in case of misjoinder of parties? • The remedy is to move for the dropping of misjoined parties from the complaint.

This may be done through amendment of the complaint or through motu propio order of the RTC.

Substitution in case of death of parties • When a party dies in an action that survives, the deceased party shall be substituted by his heirs, administrator or legal representative • The rule does not apply to all kinds of actions. Substitution is required only in actions that survive the death of the party • Purpose of the rule: to protect the right to due process of parties who may be affected by the death of a party. It is not a jurisdictional requirement but non compliance of the rule results in violation of the right to due process of those affected by the judgment. What is the test for determining whether an action survives the death of the plaintiff? • Ascertain the nature of the action and the damage sued for. If the complained acts affect or relate to property and property rights, the action survives. If they affect or relate to the person, the action does not survive. What is the effect of the failure to effect substitution of parties on the proceedings or judgment? • If no valid substitution of parties is made, the proceedings and judgment are void because the court acquired no jurisdiction over the person of the heirs upon whom the judgment would be binding. • Moreover, the attorneys for the offended party ceased to be the attorneys for the deceased upon the death of the latter, the principal.

The deceased cannot be substituted by a person who is not an heir, legal representative, or administrator • The reason for the rule is to protect all those who may be affected by the death. A substitute should not have a claim against the interest of the deceased through the transfer of the latter’s interest in the litigation to another party (Judge Sumaljag v. Literato). What are the requirements for automatic qualification as indigent parties? 1. The income requirement: the applicant’s gross income and that of his family must not exceed an amount double the monthly minimum wage of an employee 2. The property requirement: the applicant must not own real property with a fair market value of more than P300,000. • If these requirements are met, the motionshall automatically and as a matter of right (Spouses Algura v. LGU)

be

granted

When is a hearing required to determine if a party is entitled to litigate as a pauper litigant? • If one or both of these requirements have not been met, the motion should not be denied outright but the trial court shall set the case for hearing to enable the applicant to prove that he has no money sufficient and available for food, shelter and basic necessities for himself and his family in accordance with Section 21, Rule 3 and use its sound discretion in determining the merits of the prayer for exemption (Id.)

CLASS SUIT:

• Requisites: (1) that the subject matter of the controversy is one of common or general interest to many persons; and (2) that the parties are so numerous that it is impracticable to bring them all before the court (Sulo ng Bayan v. Araneta, G.R. No. L-31061, 17 August 1976).

CLASS SUIT • Action to dissolve a voluntary association, for accounting and liquidation was considered a class suit. (Borlasa v. Polistico, G.R. No. L-22909, 28 January 1925). • Families of airplane crash victims CANNOT bring a class suit because the basis for their damages would be different (Bar 1991) • An association of sugar planters cannot bring a class suit on behalf of individual planters against a magazine for alleged libel because the circumstances of the planters are all different. (Newsweek. V. IAC, G.R. No. L-63559, 30 May 1986).

RULE 4 VENUE

Venue • Not jurisdictional – it is procedural • Waivable - When improper venue is not objected to in a motion to dismiss, it is deemed waived except in criminal cases. o Improper venue should be raised seasonably, else it is deemed waived. It should be raised either in a motion to dismiss or in the affirmative defense in the Answer.

What is the purpose of the rule on venue? • To provide convenience to the parties, rather than restrict their access to the courts. • To make it more convenient for the parties to file actions pursuant to the policy that everyone should be allowed free access to courts of justice.

Venue in personal actions • Venue is in the court of the place where the plaintiff or the defendant resides at the election of the plaintiff. •

EXCEPTION: The rule on venue does not apply when there is an exclusive venue stipulation of the parties in a contract (Spouses Lantin v. Jane Lantion). Here, the loan and mortgage documents – which plaintiffs seek to annul contain an exclusive venue stipulation restricting the venue of any suit in Metro Manila. Thus, the action filed in Lipa Batangas was improperly laid.

EXCLUSIVE VENUE STIPULATIONS • The mere stipulation on the venue of an action is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. (Spouses Lantin v. Lantion, G.R. No. 160052, 28 August 2006.)

•

WHAT IS

THE

EFFECTIF

THE

VENUE STIPULATION IS

NOT

RESTRICITVE? • The said stipulation merely provides for another permissible venue. But the venue stipulation is NOT per se invalidated. (Philbanking Corporation v. Tensuan, G.R. No. 104649, 28 February 1994) • Examples of “restrictive words”: "only," "solely," "exclusively in this court," "in no other court save —," "particularly," "nowhere else but/except —," or words of equal import. (Pacific Consultants v. Schonfeld, G.R. No. 166920, 19 February 2007).

EXCLUSIVE VENUE STIPULATIONS • Can there be a valid venue stipulation for real actions? • Yes. (See Briones v. Court of Appeals, G.R. No. 204444, 14 January 2015). • If the case merely assails the provisions of the agreement, the venue stipulation stated therein is valid and must be followed (Spouses Lantin v. Lantion, G.R. No. 160052, 28 August 2006.) But if what is assailed is the very validity of the agreement containing the stipulation, the venue stipulation is no longer controlling (Briones v. Court of Appeals, G.R. No. 204444, 14 January 2015).

Q: Will an exclusive venue stipulation Mortgage apply to extrajudicial foreclosure proceedings?

in

a

Real

Estate

A: No. In Ochoa v. Chinabank, 23 March 2011, the SC ruled that an exclusive venue stipulation cannot apply to extrajudicial foreclosure. “(W)ith respect to the venue of extrajudicial foreclosure sales, Act No. 3135, as amended, applies, it being a special law dealing particularly with extrajudicial foreclosure sales of real estate mortgages, and not the general provisions of the Rules of Court on Venue of Actions. RULE 4 EXAMPLE OF COMPLEMENTARY-CONTRACTS-CONSTRUED TOGETHER DOCTRINE: Q: In a case, there was a Promissory Note with an exclusive venue stipulation and a Surety Agreement which did not contain the venue stipulation. If a case is filed enforcing the Surety Agreement, will the venue stipulation govern? A: Yes. In PBCom V. Lim, 12 April 2005, the SC ruled that “(i)n enforcing a surety contract, the complementary-contracts-construed-together doctrine finds application. According to this principle, an accessory contract must be read in its entirety and together with the principal agreement. This principle is used in construing contractual stipulations in order to arrive at their true meaning; certain stipulations cannot be segregated and then made to control.”

Where is the venue in derivative suits? • The place of principal office of the corporation o Venue is in the court of the place where the corporation holds its principal office (Hi-Yield v. CA).

Illustrative Cases: • A case which prays for the declaration of nullity of a loan agreement and its accompanying surety agreement and real and chattel mortgage was deemed to be a PERSONAL ACTION. The Supreme Court noted that because there was no transfer of the real property yet, it could not be categorized as a real action (BPI v. Hontanosas, G.R. No. 157163, 25 June 2014) • An action to recover the deficiency after extrajudicial foreclosure is a PERSONAL ACTION. (BPI v. Yujuico, G.R. No. 175796, 22 July 2015)

• What is the venue for a revival of action? It depends on the nature of the prayer for revival. In a case where the original action was for specific performance and damages, the action to revive which now focused on the delivery of a certain real property arising from the judgment – was considered a REAL ACTION. (Infante v. Aran Builders, G.R. No. 156596, 24 August 2007). • The inclusion of a party plaintiff who was NOT the principal plaintiff in the action cannot justify filing the case in said party’s place of residence. (Marcos-Araneta v. Court of Appeals, G.R. No. 154096, 22 August 2008). Where is the venue of the action if there is more than one plaintiff? • Residence of the principal party o The residence of the principal parties is the basis for determining venue if there is more than one plaintiff in a personal action. (Irene Marcos Araneta v. CA) Here, the complaint for reconveyance of shares was dismissed for improper venue. While her MR was pending, Irene filed an amended complaint in which 3 individuals appeared as additional plaintiffs – all of whom are from Ilocos Norte and allegedly Irene’s new trustees

• Purpose of the rule: to prevent the plaintiff from choosing the residence of a minor plaintiff or defendant as the venue which would thereby defeat the purpose of the rule as the minor party would not have the degree of interest in the subject of the action.

Rule 5 – Uniform Procedure in Trial Courts An appeal of a judgment for unlawful detainer before the RTC is not covered by Summary Procedure • Proceedings in the RTC are not covered by the Summary Rules even for appeal of cases that are covered by the Summary Rules (Estate of Macadangdang v. Gaviola). • The failure of a defendant to file an answer or to appear at a preliminary conference shall entitle the plaintiff to a judgment on the basis of the facts alleged in the complaint (Soriente v. Estate of Concepcion) • A Motionfor Reconsideration is a prohibited pleading. The filing thereof will render the order of dismissal final and executory o MR is prohibited under the summary rules. Sec 19 (c) considers a motion for reconsideration of a judgment a prohibited pleading. The filing thereof did not interrupt or stop the running of the period for appeal. Thus, the period for appeal had long lapsed when Spouses filed their appeal. The lapse of the period for appeal rendered the RTC without any jurisdiction to entertain much less grant the appeal from the final and immutable judgment of the MTC. (Spouses Edillo v. Spouses Dulpina)

RULE 6 –KINDS OF PLEADINGS

WHAT IS A PLEADING? • statement of a party’s claims or defenses action that is submitted to the court for appropriate judgment IS A MOTION A PLEADING? • strictly speaking, NO. • Sec 1, Rule 15: a motion is an application for relief other than by a pleading WHAT ARE THE PLEADINGS ALLOWED UNDER THE ROC?

in

an

• • • • • • •

complaint counterclaim crossclaim third party complaint complaint in intervention answer to a pleading asserting a claim reply to answer

WHAT ARE THE TWO KINDS OF DEFENSES? • NEGATIVE DEFENSE • AFFIRMATIVE DEFENSE

WHAT IS A NEGATIVE DEFENSE? • a defense that allegedin the complaint

specifically

denies the

material

facts

WHAT IS AN AFFIRMATIVE DEFENSE?

• an allegation of a new matter which would bar recovery by plaintiffs even if the allegations in the complaint are hypothetically admitted • • • •

Fraud Prescription Payment Release

• • • •

Illegality Statute of Frauds Estoppel Discharge in bankruptcy

WHAT IS AN ANSWER EX ABUNDANTE AD CAUTELA? • the answer is being filed “out of abundant caution” WHAT IS THE EFFECT OF ITS FILING? • same effect as filing of an answer as long as it sets forth the party’s defenses to the claim asserted against it in the complaint. • Its filing does not make it less of an answer • The contention of defendants that plaintiff cannot take deposition on them as they had not yet served their answers was incorrect since defendants had already filed an ex abundanti ad cautela answer after their motion to dismiss on the ground of lack of subject matter jurisdiction was denied (Rosete v. Lim, G.R. No. 136051, June 8, 2006). WHAT IS A COUNTERCLAIM? • a claim by a defending party against an opposing party. • may either be a compulsory or permissive counterclaim. WHEN IS IT COMPULSORY? (Reillo v. San Jose, G.R. No. 166393, June 18, 2009) (a) it arises out of or is necessarily connected with the transaction or occurrence subject of the opposing party's claim; (b) it is existing at the time of the filing of the answer; and (c) it does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction

WHEN IS IT PERMISSIVE?

•

if it does not arise out connected with the subject matter of the opposing party's claim • permissive counterclaim- essentially an filed separately in another case.

of

or

is

not

independent claim that

necessarily

may

be

COMPULSORY COUNTERCLAIM • • • • within

FOR CASES FILED BEFORE THE MTC must be within its jurisdiction both as to the amount and nature of the case FOR CASES FILED BEFORE THE RTC counterclaim is compulsory even if the amount is the jurisdiction of the MTC

COMPULSORY v. PERMISSIVE

COMPULSORY PERMISSIVE • necessarily connected with the claim asserted in the complaint, • independent of the claim asserted in the complaint. • should be set up in the answer in the same action; otherwise, they would be barred forever• may be filed separately in another case. • Payment of docket fee is not required • payment of docket fees is necessary before the court could acquire jurisdiction over the counterclaim. TEST FOR DETERMINING WHETHER A COUNTERCLAIM IS COMPULSORY (Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000) • Are the same issues of fact or law raised by the claim and counterclaim? • Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? • Will substantially the same evidence support or refute plaintiff’s claim as well as the defendant’s counterclaim? • Is there any logical relation between the claim and the counterclaim? COMPULSORY COUNTERCLAIM MUST BE RAISED IN THE ANSWER. OTHERWISE, SUCH CLAIM WILL BE BARRED

• If a compulsory counterclaim is not raised in the answer, a party is barred from interposing such claim in a future litigation. EXCEPTION: The claim is not barred even if it was necessarily connected with the claim in the complaint where the claim did not exist or mature at the time of the filing of the answer. (BDO v. CA G.R. No. 160354, August 25, 2005) The SC held that BDO’s claim for deficiency of debtor’s obligations after foreclosure of debtor’s property could not have been raised when the bank filed its answer with compulsory counterclaim to the debtor’s complaint. At that time, the cause of action for the deficiency amount had not yet arisen. It only arose after the foreclosure of the properties and after the debtor has refused and failed to settle the deficiency amount. • DISMISSAL OF COMPLAINT RESULTS IN DISMISSAL OF COMPULSORY COUNTERCLAIM (Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000) •

FILING OF A MOTION TO DISMISS IS AN IMPLIED WAIVER OF COMPULSORY

COUNTERCLAIM • the grant of counterclaim.

the

motionresults in

the

dismissal

of

the

(Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000). Financial Building filed an injunction case after Forbes Park Association enjoined prevented it from doing further construction work. The case was dismissed upon motion of Forbes Park Association. Thereafter, Forbes Park filed a complaint for damages against Financial Building. The SC held that Forbes Park’s claim is already barred due to its failure to set it up as a compulsory counterclaim in the prior injunction suit.

WHAT IS A THIRD-PARTY COMPLAINT? • a claim that a defending party may, with leave of court, file against a person not a party to the action, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. THIRD PARTY COMPLAINT • In a case where the plaintiff sued defendant for the payment and rentals for various equipment, and the defendant sought to implead a third party in whose project the equipment were allegedly used, the Supreme Court ruled that this is not a proper third-party complaint on the ground that they were separate transactions. (Asian Construction v. Court of Appeals, G.R. No. 160242, 17 May 2005). TEST IN DETERMINING PROPRIETY OF A THIRDPARTY COMPLAINT (Asian Construction v. CA, GR 160242, May 17, 2005) (1) whether the 3rd party claim arises from the same transaction subject of the complaint; or whether the 3rd party claim, although arising out of different transaction, is connected with the plaintiff's claim; (2) whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff's claim against the original defendant, although the third-party defendant's liability arises out of another transaction or to both the plaintiff and the defendant; and (3) whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff's claim

THIRD PARTY COMPLAINT It is settled that a defendant in a contract action may join as third- party defendants those who may be liable to him in tort for the plaintiffs claim against him, or even DIRECTLY to the plaintiff. (Philtranco Services v. Paras, 25 April 2012)

• THIRD PARTY DEFENDANT MAY RAISE DEFENSES WHICH THIRD PARTY PLAINTIFF MAY HAVE AGAINST THE ORIGINAL PLAINTIFF • Sec. 13, Rule 6: a third party defendant may allege in his answer his defenses, counterclaims, cross-claims, including such defenses that the third party plaintiff may have against the original plaintiff’s claim. • THIRD PARTY DEFENDANT MAY ASSERT A COUNTERCLAIM AGAINST ORIGINAL PLAINTIFF • Sec. 13, Rule 6: in proper cases such as when the third party plaintiff imputes direct liability to the third party defendant, the latter may assert a counterclaim against the original plaintiff in respect of the latter’s claim against the third party plaintiff. NOTE:

WHAT IS A CROSS-CLAIM? • a claim by one party against a co-party. WHAT ARE THE REQUISITES OF A CROSS-CLAIM? • the claim must arise out of the transaction or occurrence subject of the complaint or counterclaim. Otherwise, it is not proper to assert such claim in a cross-claim. • There is no such thing as permissive cross-claim. • The cross-claim must be existing as of the time of the filing of the answer

• CROSS-CLAIM CANNOT HOLD CROSSDEFENDANT DIRECTLY LIABLE TO PLAINTIFF • Unlike a third party complaint, a cross-claim cannot pray that cross-defendant be held directly liable to the plaintiff.

WHAT IS THE FUNCTION OF A REPLY? • to deny or address new matters alleged by way of defense in the answer • If no reply is filed, all new matters allegedin answerare deemed controverted

the

RULE 7 PARTS OF A PLEADING When is a pleading sufficient in form? • A pleading is sufficient in form when it contains the following: • Caption, setting forth the name of the court, the title of the action indicating the names of the parties, and the docket number • Body, reflecting the designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading • Signature and Address of the party or counsel • Verification for some pleadings - designed to secure an assurance that the allegations have been made in good faith, or are true and correct and not merely speculative • Certificate of Non-forum Shopping for initiatory pleadings, which although not jurisdictional, the same is obligatory • Explanation where the pleading is not filed personally to the Court and served personally to the parties for pleadings subsequent to the complaint • • • • • •

Additional requirements include: Proof of service Roll of attorney’s number Professional tax receipt number IBP Official Receipt number MCLE Compliance certificate number and date of issue

WHAT IS THE SIGNIFICANCE OF COUNSEL’S SIGNATURE IN A PLEADING?

• signature of counsel constitutes an assurance by him: • that he has read the pleading; • that, to the best of his knowledge, information and belief, there is a good ground to support it; and • that it is not interposed for delay.

• PARTY CAN SIGN A PLEADING. • COUNSEL CAN DELEGATE SIGNING TO ANOTHER LAWYER BUT NOT TO A NON-LAWYER

WHAT IS THE EFFECT OF A PLEADING SIGNED BY A NON-LAWYER? •

A pleading signed by a non-lawyer is an pleading which produces no legal effect. It is as if the pleading was not filed in court. • Such pleading can be stricken out pursuant to Sec. 12, Rule 8.

unsigned

PLEADINGS IN WHICH CERTIFICATION IS REQUIRED • It is required in a complaint or other initiatory pleading asserting a claim for relief • Certification not required in appeal. FACTS REQUIRED TO BE STATED IN THE CERTIFICATION AGAINST FORUM SHOPPING: • Party has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and to the best of his knowledge, no such other action or claim is pending therein • If there is such other pending action or claim, a complete statement of the present status thereof • If should thereafter learn that the same or similar action has been filed or pending, he shall report that fact within 5 days therefrom to the court. PARTY WHO SHOULD SIGN THE CERTIFICATION AGAINST FORUM SHOPPING • Sec. 5, Rule 7: the plaintiff or principal party shall sign the certification. Thus, all plaintiffs or principal parties must sign the certification; otherwise, those who did not sign will be dropped as parties to the case. • If the party is a corporation, the certification should be signed by its duly authorized officer pursuant to Section 23, in relation to Sec. 25 of the Corporation Code. • The certification should be accompanied be a Secretary’s Certificate or Board Resolution showing the authority of the officer to sign the certification. • Failure to attach the proof of authority shall merit the dismissal of the complaint or petition. • •

EXCEPTION: When the merits of the petition justify the relaxation of the rule (Kaunlaran Lending v. Uy, GR 154974, February 4, 2008). • When it is signed by an officer who is in a position to verify the truthfulness and correctness of the allegations in the petition such as the Chairman of the Board, President, General Manager, Personnel Officer (Mid-Pasig Land v. Mario Tablante, GR No. 162924, February 4, 2010). EFFECT OF FAILURE TO COMPLY WITH THE RULE ON CERTIFICATION

• If no certification is attached to an initiatory pleading, the case shall be dismissed without prejudice unless otherwise provided upon motion and after hearing. • Submission of a false certification and non-compliance

with the undertakings therein shall constitute indirect contempt of court. • This should be distinguished from the effect of a willful and deliberate forum shopping which shall be a ground for dismissal with prejudice and shall constitute direct contempt. Distinction between violation of the rule on certification and willful forum shopping is: (Madara v. Hon. Perello , GR No. 172449, August 20, 2008)

Violation of the rule on certification Willful forum shopping Both are grounds for dismissal • Dismissal shall be upon motion and only after hearing, • Dismissal can be done motu proprio and summarily • dismissal is without prejudice unless otherwise provided • dismissal is with prejudice • constitutes indirect contempt • constitutes direct contempt of court CERTIFICATION AGAINST FORUM-SHOPPING The

Supreme Court enumerated the ways by which forum shopping may be committed, thus: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action, but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata) (Chua v. MetroBank, G.R. No. 182311, 19 August 2009, 596 SCRA 524, 535-536).

How is a pleading verified? • A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. • A pleading required to be verified which contains a verification based on “information and belief” or upon “knowledge, information and belief,” or lacks a proper verification, shall be treated as an unsigned pleading. • If a corporate officer verifies, he must be clothed with authority from the corporation. • However, in Mid Pasig Land v. Tablante, G.R. No. 162924, 4 February 2010, the Supreme Court explained that “the following officials or employees of the company can sign the verification and certification without need of a board resolution: (1) the Chairperson of the Board of Directors, (2) the President of a corporation, (3) the General Manager or Acting General Manager, (4) Personnel Officer, and (5) an Employment Specialist in a labor case.”

RULE 8

MANNER OF MAKING ALLEGATIONS PLEADING REQUIREMENT UNDER THE RULES OF COURT • ONLY ULTIMATE FACTS SHALL BE ALLEGED • Section 1 of Rule 8 declares that every pleading, including, of course, a complaint, "shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts . . . omitting the statement of mere evidentiary facts." WHAT ARE ULTIMATE FACTS? • Ultimate facts are the essential and substantial facts which form the basis of the primary right and duty or which directly make up the wrongful acts or omissions of the defendant. • Evidentiary facts are those which tend to prove or establish said ultimate facts.

What facts may be averred generally in a pleading? (a) (b)

performance of conditions precedent (Sec. 3) Malice,Intent, Knowledge, or Other Condition a Person (Sec. 5)

of

the

Mind of

What must be averred with PARTICULARITY? (a) Fraud, mistake, or circumstances surrounding fraud or mistake (Sec. 5) (b) Facts showing the capacity of a party to sue or be sued; authority of a party to sue or be sued in a representative capacity; legal existence of an organized association of persons (Sec. 4) • A party desiring to raise an issue as to the legal existence of any party or capacity to sue or be sued in a representative capacity, shall do so by SPECIFIC DENIAL and SHALL INCLUDE SUCH SUPPORTING PARTICULARS AS ARE PECULIARLY WITHIN THE PLEADER’S KNOWLEDGE WHAT IS AN ACTIONABLE DOCUMENT? • A document that serves as basis of the plaintiff’s cause of action or defendant’s defense must be attached to the complaint or answer, as the case may be. Failure to attach the document to the complaint will be dismissed for failure to state a cause of action or the answer will have no leg to stand on (Malayan Insurance v. Regis, GR 172156, November 23, 2007). In that case, the plaintiff filed a complaint for collection in its capacity as subrogee but it failed to attach to its complaint the document that serves as basis of its right to subrogation, i.e., the marine insurance policy. The SC held that its failure to do so casts an irremissible cloud on the substance of its very cause of action.

•

An in

actionable two

document

must be

set

forth in

pleading

ways: 1. ATTACHMENT: The substance of the actionable document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit (Annex). 2. COPYING IN. A copy of the actionable document (in its entirety) is set forth in the pleading. What are considered admitted? • By the admission of the genuineness and due execution of an instrument, as provided in this section, is meant that the party whose signature it bears admits: (a)

that he signed it or that it was signed by another for him with his authority;

(b) that at the time it was signed it was in words and figures exactly as set out in the pleading of the party relying upon it; (c) that the document was delivered; and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him. (See Hibberd v. Rohde, G.R. No. 8418, 9 December 1915)

The following defenses are therefore barred: (a) that the signature is a forgery (Puritan Mfg. Co. v. Toti & Gradi, 14 N. M., 425; Cox v. Northwestern Stage Co., 1 Idaho, 376; Woollen v. Whitacre, 73 Ind., 198; Smith v. Ehnert, 47 Wis., 479; Faelnar v. Escaho, 11 Phil. Rep., 92); (b) or that it was unauthorized, as in the case of an agent signing for his principal, or one signing in behalf of a partnership (County Bank v. Greenberg, 127 Cal., 26; Henshaw v. Root, 60 Ind., 220; Naftzker v. Lantz, 137 Mich., 441), or of a corporation (Merchant v. International Banking Corporation, 6 Phil. Rep., 314; Wanita v. Rollins, 75 Miss., 253; Barnes v. Spencer & Barnes Co., 162 Mich., 509); (c) or that, in the case of the latter, that the corporation was not authorized under its charter to sign the instrument (d) or that the party charged signed the instrument in some other capacity than that alleged in the pleading setting it out (e)or that it was never delivered (Hunt v. Weir, 29 Ill., 83; Elbring v. Mullen 4 Idaho, 199; Thorp v. Keokuk Co., 48 N. Y., 253; Fire Association of Philadelphia vs: Ruby, 60 Neb., 216)

The following defenses are NOT bared: • Fraud • mistake • compromise • payment • prescription • estoppel • want of consideration. When oath is NOT required: • The requirement of a specific denial under oath will not apply in either of the following cases: (a) When the adverse party does not appear to be a party to the instrument, or (b) When compliance with an order for an inspection of the original instrument is refused (Sec. 8, Rule 8, Rules of Court). An actionable document may be attached in an Answer. In such a case, the Plaintiff has to file a Reply under oath, otherwise, the document will be deemed admitted (Casent Realty v. Philbanking, G.R. No. 150731, 14 September 2007) HOW TO DENY ALLEGATIONS IN THE COMPLAINT? • Each allegation of fact has to be denied specifically • Modes of specific denial • By specifying the allegation that is denied and whenever practicable stating the allegations supporting the denial • By specifying a part of the allegation that is true and denying the remainder thereof • By stating that defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation HOW TO MAKE A SPECIFIC DENIAL?

• What is a “negative pregnant” denial? negative pregnant denial?

How do you avoid making a

Each allegation of fact must be specifically denied. Where the allegation of fact is qualified, both the allegation and the qualification must be specifically denied. If an allegation contains more than one thought or conveys more than one idea or fact, the allegation must be dissected and divided into separate allegations of facts and each allegation of fact must be specifically denied. Otherwise, the denial is a negative pregnant, i.e., a denial pregnant with the admission of substantial facts (Republic v. SB, GR No. 152154, July 15, 2003). Examples of Negative Pregnant: “(a) The defense alleges: “I had never borrowed money from the plaintiff from 2011 to 2013,” may imply that the pleader had borrowed money at some other time and was only denying that he did so during the years mentioned. (b) A complaint alleges: “Plaintiff extended a loan to Defendant in the amount of P500,000 on July 27, 2016 in Baguio City.” The defendant, In his answer, alleges: “Defendant specifically denies that Plaintiff extended a loan to Defendant in the amount of P500,000 in Baguio City.” (c) The plaintiff alleged that the defendant evicted the lawful occupants of the property by intimidating them with an assault rifle. The defendant alleged in his answer: “Defendant denies vigorously that he used or brandished an assault rifle against the plaintiffs.” The answer could be an admission of having intimidated the plaintiffs but not through the use of an assault rifle.” (RIANO, Civil Procedure, Vol. 1, 2016 ed.)

WHEN IS “LACK OF KNOWLEDGE” FORM OF DENIAL CONSIDERED AN EFFECTIVE DENIAL? • When the facts to which defendant claims to have no knowledge are not within the knowledge or control of the defendant nor are they readily accessible to him. (Republic v. SB, GR No. 152154, July 15, 2003). (Warner Barnes v. Reyes, GR L-9531, May 14, 1958). WHAT IS THE EFFECT OF FAILURE TO SPECIFICALLY DENY UNDER OATH AN ACTIONABLE DOCUMENT? •

Genuineness and due execution of the document will be deemed admitted. • Genuineness merely refers to the fact that the signatures were not falsified and/or whether there was no substantial alteration to the document. While due execution refers to whether the document was signed by one with authority. But the defendant is not precluded from presenting evidence to refute the facts stated in the documents. (Casent Realty v. Philbanking Corp, GR No. 150731, September 14, 2007).

RULE 9 EFFECT OF FAILURE TO PLEAD WHAT IS THE EFFECT OF FAILURE TO RAISE DEFENSES AND OBJECTIONS IN A MOTION TO DISMISS OR ANSWER? • Under Section 1, Rule 9, defenses and objections that are not timely raised in a motion to dismiss or answer are deemed waived. EXCEPTIONS: The following defenses are not deemed waived even if they are not raised in a motion to dismiss or answer: • Lack of jurisdiction over the subject matter • Litis pendencia – there is another action pending between the same parties for the

same cause • Res Judicata – the action is barred by a prior judgment • Prescription – the action is barred by statute of limitations • Instances where the court can motu proprio dismiss an action: • In addition to the four grounds above, the court can also dismiss motu proprio when there is willful and deliberate violation of the rule on forum shopping WHAT IS THE EFFECT OF FAILURE TO SET UP COMPULSORY COUNTERCLAIM OR CROSS-CLAIM IN THE ANSWER? • Section 2, Rule 9 states that they shall be barred if not set up in the Answer. • What are barred are claims existing at the time of the filing of Answer (BDO V. CA, GR No. 160354, August 25, 2005).

When is a defendant declared in default? 1. 2. 3. 4.

Fails to file an answer within the time allowed Failure to file pre-trial brief (defendant) Failure to appear at pre-trial (defendant) Failure to comply with discovery (Rule 29)

NOTE: Non-appearance of defendant and counsel at an ordinary hearing is NOT a ground for default (Monzon v. Relova, G.R. No. 171827, 17 September 2008) ORDER DECLARATION OF DEFAULT CAN BE MADE ONLY UPON MOTION • The court cannot motu proprio declare defendant in default. If no motion to declare a defendant in default, no default order should be issued by the court. (Santos v. PNOC, GR 170943, September 23, 2008). EFFECT OF ORDER OR DECLARATION OF DEFAULT • The court may render judgment on the basis of the allegations and relief prayed for in the complaint or it may require the plaintiff to present evidence. • If the court requires plaintiff to submit evidence, the defaulting party may not take part in the trial. • The defaulting party is entitled to notice of subsequent proceedings. (Santos v. PNOC, GR 170943, September 23, 2008). • Being declared in default does not constitute a waiver of rights except that of being heard and of presenting evidence in the trial court REMEDIES AVAILABLE TO A PARTY DECLARED IN DEFAULT: • Before judgment, file a verified motion to set aside order of default on the ground that the failure to file answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense (Sec. 3 (b), Rule 9) • After judgment but before finality, file a motion for new trial under Sec. 1 (a) of Rule 37 or appeal under Sec. 2 Rule 41 on the ground that the judgment is contrary to evidence or the law • After finality of judgment, file a petition for relief under Section of Rule 38 EXTENT OF RELIEF THAT CAN BE AWARDED IN A JUDGMENT BY DEFAULT • • •

It shall not exceed the amount prayed for It shall not be different in kind from that prayed for It shall not award unliquidated damages (Sec. 3, Rule 9)

WHEN IS THERE PARTIAL DEFAULT?

• Where there are several defendants, some of whom answer and the others fail to do so, the court can proceed to render judgment against the defaulting parties. • Example – A,B and C are joint debtors. Only A answers. B and C can be declared in default. • However, when the complaint asserts a common cause of action against all the defendants, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. • Example: A,B and C are solidary debtors. Only A answers. Case will be decided based on A’s answer and evidence.

NO DEFAULT IN CERTAIN CASES: • • •

Action for annulment or declaration of nullity of marriage Legal separation Summary Procedure

Rule 10 – Amended and Supplemental Pleadings When are amendments a matter of right? • Amendments are matter of right when they are filed before a responsive pleading is served, or in the case of a Reply, within 10 days after it is served. What is material is date of service of responsive pleading, not date of filing. • Amendment as a matter of right can only be done ONCE. Subsequent amendments even if filed before a responsive pleading is served require leave of court.

An amendment can introduce a new cause of action or alter the theory of the case • An amendment may change or alter a cause of action. (no prohibition against this under the 1997 Rules of Court) Thus, when an original complaint simply prayed for Injunction, and it was amended to include “Reformation of Instrument”, the amendment was still allowed (PPA v. Go thong and Aboitiz, G.R. No. 158401, 28 January 2008) Can an amendment be done to cure a jurisdictional error? • Yes, if it was done before responsive pleading because court has not exercised any jurisdiction yet. However, if there has already been a responsive pleading filed, the court cannot grant a substantial amendment which intends to grant jurisdiction (Rosario v. Carandang, G.R. No. L-7076, 28 April 1955). • If the original complaint stated a premature cause of action, the accrual of the cause of action subsequently cannot be the basis for an amendment (Swagman v. Court of Appeals, G.R. No. 161135, 8 April 2005). • A motion to Dismiss is NOT a responsive pleading. Hence, if a Complaint was amended after a Motion to Dismiss was filed, it can still be amended as a matter of right (Bautista v. Mayamaya, G.R. No. 148361, 29 November 2005; Marcos-Araneta v. Court of Appeals, G.R. No. 154096, 22 August 2008) Amendment of pleading can be made after dismissal provided it is filed before the finality of the dismissal • Plaintiff may file an amended complaint even after the original complaint was ordered dismissed provided that the order of dismissal is not yet final (Bautista v. Maya Maya, GR No. 148361, November 29. 2005). Effect of amended pleadings • The amended pleading supersedes the original pleading. • The settled rule is that the filing of an amended pleading does not retroact to the

date of the filing of the original; hence, the statute of limitation runs until the submission of the amendment (Wallem Philippines v. SR Farms, G.R. No. 161849. July 7, 2010). • Admission made in the original pleading may be received in evidence against the pleader • Claims and defenses alleged in the original pleading which are not incorporated in the amended pleading are deemed waived.

Supplemental pleadings • Should be filed with leave of court • Must allege facts – transactions, occurrences, or events – which have happened since the date of the filing of the original pleading. • Filing fees on additional claims alleged in a Supplemental Complaint must be paid (Do-All Metal v. Security Bank, G.R. No. 176339, January 10, 2011). In that case, the SC deleted the award of actual damages as prayed for in the Supplemental Complaint for failure of the plaintiffs to pay the required filing fees.

Rule 11 – When to File Responsive Pleadings

Period for filing answer • 15 days unless a different period is fixed by the court. • If a motion to dismiss is denied, period is the balance of the 15-day period which shall not be less than 5 days from receipt of the denial (Sec. 4, Rule 16). • Period to file answer under Summary Rules is 10 days • If motion for bill of particulars is filed, period is the balance of the 15- day period which shall not be less than 5 days from service of the bill of particulars or amended complaint or notice of denial of motion.

• Where the defendant is a foreign corporation and summons was served on it through a government official designated by law, period is 30 days after receipt of summons by such entity (Sec. 2, Rule 11). • Where the defendant is a foreign corporation and extra-territorial service of summons is made, period is “reasonable time” as may be determined by the court which shall not be less than 60 days from receipt of summons (Sec. 15, Rule 14). • Answer to Amended Complaint/Counterclaim/Cross-claim/Third- party Complaint o 15 days from service for amended pleading filed as a matter of right o 10 days from receipt of order for amended pleading filed with leave of court

• Answer to Counterclaim/Cross-claim – 10 days from service • Answer to Supplemental Complaint – 10 days from notice of Order admitting the same, unless a different period is fixed by the court • Answer to Complaint-in-Intervention – 15 days from notice of the order admitting the same. • Period for compliance with order for bill of particulars – 10 days from notice of Order

Answer to original complaint deemed answer to amended/supplemental complaint • Where plaintiff filed an amended complaint or supplemental complaint and defendant failed to file answer thereto, the defendant cannot be declared in default if it filed an answer to the original complaint. o The answershall serve as the answerto the amended/supplemental complaint. Counterclaim and cross-claim arising after filing of answer

• Before judgment, the counterclaim or cross-claim presented by supplemental pleading. • After judgment, it may be asserted in a separate action.

may

be

Omitted counterclaim/cross-claim • Effect of failure to assert a compulsory counterclaim and cross-claim in Answer: defendant shall be barred from asserting such claims. • (Sec. 10, Rule 11) Where deadline falls on a Saturday, Sunday, or legal holiday • Sec. 1, Rule 22 provides that where the last day of the period for doing an act as provided by law falls on a Saturday, a Sunday or a legal holiday in the place where the court sits, the time should not run until the next working day. (Alarilla v. Ocampo, GR No. 144697, December 10, 2003). • When the deadline falls on a holiday or weekend, an extension can be filed the next working day but should count the extended period from original deadline (Montajes v. People, G.R. 183449, 12 March 2012)

Rule 12 – Bill of Particulars • When the causes of action alleged in the complaint are vaguely or obscurely pleaded such that there is a need to clarify the basis of the action so that defendant can intelligently prepare a responsive pleading. (Bantillo v. IAC, G.R. No. 75311 October 18, 1988). • Plaintiff filed a complaint for reconveyance for herself as a surviving heir and in representation of other heirs of the owner of the property in question. • Defendant filed a motion for bill of particulars seeking the identity of the other heirs which she seeks to represent and her authority for representing them. • HELD: The filing of a motion for Bills of Particulars is proper as the complaint failed to allege a factual matter which, under the Rules, must be alleged or pleaded, i.e., identity of alleged co-heirs and co-plaintiffs is necessary for a proper defense.

When to file a motion for a bill of particulars? • COMPLAINT alleged that defendants acted in “unlawful concert”. • Defendant filed a motion for a bill of particulars, for clarification on the specific nature, manner and extent of his participation in the acquisition of the assets cited. (Republic v. SB, G.R. No. 148154, December 17, 2007). • SC ruled that this is proper for Bill of Particulars.

Order for bill of particulars • The order may direct the adverse party (a) to file a bill of particulars, or (b) to make the pleading referred to in the motion more definite and certain, either by amending or supplementing the same. (Bantillo v. IAC, G.R. No. 75311 October 18, 1988). What is the effect of the failure to comply with an order for bill of particulars? • Sec. 4, Rule 12 provides that the court may: 1. Order the striking out of the pleading or the portions thereof or 2. Make such other order as it deems just.

Rule 13 – Filing and Service of Pleadings, Judgments, and other papers

What are the modes of filing of pleadings, orders, or judgments? 1. Personal Filing – by presenting the originals personally to the clerk of court 2. Registered Mail – date of mailing shall be considered as the date of their filing

What is the rule on filing of pleadings, orders, or judgments? • The rule is that filing of pleadings shall be done personally. If filing is done by registered mail, a written explanation must be included in the pleading why filing was not done personally (Sec. 11, Rule 13). What are the modes of service of pleadings, orders, or judgments? 1. Personal Service - by delivering personally a copy to the party or counsel or by leaving a copy at his office with a person having charge thereof or if not available, at his residence with a person of sufficient age and discretion residing therein. 2. Registered Mail 3. Ordinary Mail - if no registry service is available in the locality of either the sender or the addressee 4. Substituted Service - by delivering a copy to the clerk of court, with proof of failure of both personal service and service by mail. What is the rule on service of pleadings, orders, or judgments? • The rule is service shall be done personally. Service by mail must be accompanied by a written explanation why service was not done personally. • Sec. 11, Rule 13 provides that a violation of the rule may cause to consider the paper as not filed.

Proof of filing • Best evidence is the existence of a pleading in the record of the case. • If a pleading is not in the record: • Proof of personal filing othe writtenor stamped acknowledgement of its filing clerk of court. • Proof of filing by registered mail – othe registry receipt and the affidavit of the person who mailed.

by

the

Proof of service • Proof of personal service – written acknowledgement of the party served or affidavit of service of the person who served, or official return of the server • Proof of service by ordinary mail – Affidavit of service of the person who mailed • Proof of service by registered mail – Affidavit of service and registry receipt issued by the Post Office. In one case, the SC held that "it is the registry receipt issued by the mailing office and the affidavit of the person mailing, which proves service made through registered mail." Absent one or the other, or worse both, there is no proof of service. (Republic v. Resins, G.R. No. 175891, January 12, 2010). • Filing or Service by Courier is NOT one of the accepted modes of filing service (Heirs of Miranda v. Miranda, G.R. No. 179638, 8 July 2013; Palileo v. Planters Development Bank, G.R. No. 193650, 8 October 2014) • For Requests for Admission under Rule 26, service to PARTY and not just

to counsel, is required. • When party is represented by counsel, it is service to counsel that is considered as proper service. (Delos Santos v. Elizalde, G.R. No. 141810 and 141812, 2 February 2007) • IMPORTANCE OF PROPER FILING AND SERVICE: This is considered as the reckoning period for compliance with/counting of, reglementary periods • A pleading not served is also deemed as not filed.

What is notice of lis pendens? • A Notice of Lis Pendens is a notice of the pendency of an action affecting title to or possession of property that is recorded by plaintiff in the Registry of Deeds. It serves as constructive notice of the pendency of the action to purchasers of the property affected by the notice.

Party affected by lis pendens • A notice of lis pendens affects a purchaser or a transferee of the property while the action is pending. He is bound by any judgment which may be rendered for or against the transferor (defendant) and his title is subject to the results of the pending litigation. • It does not affect the title of one who is not a party to the case. A notice of lis pendens concerns litigation between a transferor (defendant) and a third party (plaintiff), where the transferee who acquires property while the action is pending stands in the shoes of the transferor and his title is subject to the results of the action. (Spouses Vicente v. Avera, G.R. no. 169970, January 20, 2009)

Rule 14 - Summons

What are the modes of service of summons? 1. Personal Service - by handing a copy of summons to the defendant in person or by tendering it to the defendant if he refuses to accept and sign for it. 2. Substituted Service - by leaving a copy at the defendant’s residence with a person of suitable age and discretion residing therein or at the defendant’s office or place of business with a person in charge thereof. 3. Constructive Service – e.g., by publication in a newspaper of general circulation 4. Extra-territorial Service – service of summons abroad

What are the requirements of substituted service? 1. Impossibility of prompt personal service o i.e., it must be shown that defendant cannot be served promptly or there is impossibility of prompt service within a reasonable time, i.e., the sheriff must show several attempts for personal service of at least three times on at least two different dates 2. Specific details in the return oi.e., the sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service 3. Substituted service effected on a person of suitable age and discretion residing at defendant's house or residence; or on a competent person in charge of defendant's office or regular place of business (Garcia v. SB, GR 170122, October 12, 2009).

Substituted service •

In substituted service, it is not necessary that the person in charge of the

defendant's regular place of business be specifically authorized to receive the summons. It is enough that he appears to be in charge. (Guanzon v. Arradaza, GR 155392, December 6, 2006). • Substituted service to a representative of a law firm who claims to be the defendant’s counsel is ineffective. (Potenciano v. Barnes, GR 159421, August 20, 2008).

What are the 2 modes for effecting substituted service of summons? 1. By leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or 2. by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.

When does extraterritorial service apply? • Extraterritorialservice of summons applies only where action is in rem or quasi in rem, but not if an action is in personam (Perken Elmer v. Dakila Trading, G.R. No. 172242. August 14, 2007). o EXCEPTIONS: 1. Extraterritorial service applies even in action in personam in case of foreign corporations under the amendment to Sec. 12, Rule 14. 2. It also applies even in actions in personam against residents who are temporarily out of the Philippines.

When does extraterritorial service apply? • In short, extraterritorial service applies in the following: 1. Actions in rem and quasi in rem against any defendant, whether individuals, domestic juridical entity or foreign juridical entity; 2. In personam actions against foreign corporations; 3. In personam actions against residents who are temporarily out of the Philippines. When can constructive notice by publication be resorted to? 1. Actions in rem and quasi in rem againstany defendant, whether individuals or foreign corporation; 2. In personam actions against foreign corporations; 3. In personam actionsagainstresidents who are temporarily out of the Philippines; and 4. In personam actionsagainsta defendant whose identity or whereabouts is unknown.

Rule on service of summons • The rule on service of summons depends on the nature of the action and whether the defendant is an individual, domestic juridical entity or foreign juridical entity. • Where the defendant is an individual and the action is in personam, the general rule is PERSONAL SERVICE or SUBSTITUTED SERVICE, when appropriate.

oExceptions are: 1. When defendant or his whereabouts is unknown (Sec. 14, Rule 14) and 2. When defendant is a Philippine resident temporarily out of the Philippines (Sec. 16), where CONSTRUCTIVE NOTICE and EXTRA- TERRITORIAL SERVICE may be resorted.

• Where the defendant is an individual and the action is in rem or quasi in rem, PERSONAL SERVICE, SUBSTITUTED SERVICE, CONSTRUCTIVE NOTICE OR EXTRA-TERRITORIAL SERVICE may be resorted to. • Where the defendant is a domestic juridical entity, the rule is PERSONAL SERVICE OR SUBSTITUTED SERVICE on the officers enumerated under Section 11, Rule 14. Exception is where the identity of the defendant corporation is unknown such unknown owner of a property that caused damage. • Where the defendant is a foreign juridical entity that has transacted business in the Philippines, EXTRATERRITORIAL SERVICE may be resorted to regardless of the nature of the action. PERSONAL SERVICE can also be made.

Service on individuals as defendants • When the action is in personam, service must be made on the individual within the Philippines, either by personal service or substituted service, when appropriate. If the defendant is a non- resident, summons cannot be served on him and the court cannot acquire jurisdiction over him. (Gomez v. CA, GR 127692, March 10, 2004). o Exception is where the defendant or his whereabouts is unknown or a resident who is temporarily outside of the Philippines.

Service on individuals as defendants • Where the action is in rem or quasi in rem, service of summons by publication or personal service abroad may be availed of (Sec. 17, Rule 14) • Defect in the service of summons on defendant individual will not invalidate the proceedings and judgment. HOWEVER, the defect will preclude the court from rendering a judgment on the personal liability of the defendants. (San Pedro v. Ong, GR 177598, October 17, 2008). • A defendant whose identity or whereabouts is unknown may be served by publication regardless of the nature of the action. I submit that the law presumes that he is a resident.

Service on individuals as defendants • A resident temporarily out of the Philippines may be served by personal service abroad or by publication (Sec. 19, Rule 14). But if the defendant is no longer residing and is already abroad at the time of the service of summons even if he was still residing in the Philippines 5 months before the date of service of summons, this rule will not apply (Arcenas v. CA, GR No. 130401, 4 December 1998). The SC ruled in that case that “residence” is determined at the time of service of summons. • In addition to that provided under Sec. 19, substituted service may also be resorted to (Montefalcon v. Vasquez, G.R. No. 165016. June 17, 2008; (PCIB v. Alejandro, G.R. No. 175587. September 21, 2007).

To whom should service on a domestic juridical entity be made? 1. President 2. Managing Partner 3. General Manager 4. Corporate Secretary 5. Treasurer 6. In-house counsel

• Service of summons to someone other than the corporation's president, managing partner, general manager, corporate secretary, treasurer, and in-house counsel, is not valid

(Paramount Insurance v. Ordonez, G.R. No. 175109, August 6, 2008).

• The enumeration under the new rule is restricted, limited and exclusive, following the rule in statutory construction that expressio unios est exclusio alterius. The doctrine of substantial compliance has already been overturned by Villarosa (Spouses Mason v. CA, G.R. No. 144662, October 13, 2003). What are the requisites for the application of the doctrine of substantial compliance? 1. There must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the Sheriff to the person served; 2. The person served must sign a receipt or the sheriff's return; and 3. There must be actual receipt of the summons by the corporation through the person on whom the summons was actually served. • The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained (Millennium v. Tan, G.R. No. 131724, February 28, 2000).

Service on foreign corporation • Personal service or extraterritorial service may be made on a foreign corporation that has transacted business in the Philippines regardless of the nature of the action (Sec. 12, Rule 14, as amended). • For registered foreign corporations, personal service or constructive service may be resorted to. Personal service - for service on its resident agent or any of its officers or agents in the Philippines. Constructive notice - for service on a government official designated by law like the SEC. Service on foreign corporation • For unregistered foreign corporations or foreign corporations without resident agents, extraterritorial service of summons may be made by: (a) personal service abroad, which must be coursed through the appropriate court in the foreign country; (b) publication abroad and registered mail at the last known address of defendant; (c ) facsimile or other recognized electronic means that could generate proof of service; (d) other means as the court may direct. • Through AM 11-3-6-SC, the SC expanded the ways by which service of summons may be done on a foreign corporation that has transacted business in the Philippines.

Voluntary appearance • Voluntary appearance is equivalent to service of summons. • In a motionto dismisschallenging the jurisdiction of the court, the inclusion of other grounds does not constitute voluntary appearance. • The filing of a motion or pleading seeking an affirmative relief constitutes or is tantamount to voluntary appearance. In a case wherein defendants filed a "Motion for Inhibition without submitting themselves to the jurisdiction of this Honorable Court" subsequent to their filing of a "Motion to Dismiss (for Lack of Jurisdiction), the SC held that defendants sought affirmative relief other than the dismissal of the case and thus have manifested their voluntary submission to the court's jurisdiction (Philippine Commercial International Bank v. Dy Hong Pi, G.R. No. 171137, June 5, 2009).

What does NOT constitute voluntary appearance? • The filing of pleadings by defendant solely for special appearance with the purpose of challenging the jurisdiction of the court over his cannot be deemed as voluntary appearance and submission to the jurisdiction of the court (Garcia v. SB, GR 170122, October 12, 2009).

• Filing of an Answer ad cautelam with compulsory counterclaim cannot be considered as voluntary appearance of petitioner before the RTC. (Perken Elmer v. Dakila Trading, G.R. No. 172242. August 14, 2007).

Rule 15 - Motions

Notice of hearing • The requirement of a notice of hearing, which should indicate the date and time of hearing and the 3-day notice rule, which requires the movant to ensure that the motion is filed and served at least three (3) days before the hearing, is mandatory. Failure to strictly comply with the requirements renders the motion fatally defective (KKK Foundation v. Bargas, G.R. No. 163785. December 27, 2007). Notice of hearing; defect substantially cured • Where a motion contains a defective notice of hearing but the adverse party was given the opportunity to file its comment thereon, the defect is substantially cured.

3-day notice rule • Every written motion required to be heard and the notice of hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. (Camarines Sur v. Aquino G.R. No. 167691 September 23, 2008)

Notice/hearing of motion is for the benefit of the opposing party • The requirement of setting a motion for hearing is intended for the benefit of the opposing party. The trial court can resolve the motion without waiting for the hearing date provided it is not adverse to the opposing party (China Banking Corp v. Abel, G.R. No. 182547, January 10, 2011).

RULE 16 MOTION TO DISMISS WHAT ARE THE GROUNDS FOR DISMISSAL ? (Sec. 1, Rule 16) • Lack of jurisdiction over the subject matter • Lack of jurisdiction over the person of the defendant • Improper venue • Lack of legal capacity to sue • Litis pendentia • Res judicata • Prescription • Failure to state a cause of action • Payment, waiver, abandonment, extinguishment of claim • Claim is unenforceable under the statute of frauds • Failure to comply with a condition precedent

WHAT ARE THE OTHER GROUNDS FOR

DISMISSAL ? • Dismissal upon notice by plaintiff (Sec. 1, Rule 17) • Dismissal upon motion by plaintiff (Sec. 2, Rule 17) • Dismissal due to fault of plaintiff (Sec. 3, Rule 17) • Failure of plaintiff to appear at pre-trial (Sec. 5, Rule 18) • Failure of plaintiff to file a pre-trial brief (Sec. 6, Rule 18) • Failure to complywith the rule on certification againstforum shopping (Sec. 5, Rule 7) • Commission of acts constituting willful and deliberate forum shopping (Sec. 5, Rule 7) • Failure to comply with an Order to implead an indispensable party (Sec. 11, Rule 3) • Failure to comply with an Order for bill of particulars, in relation to failure of plaintiff to comply with an order of the court (Sec. 4, Rule 12).

GROUNDS FOR DISMISSAL WHICH IF GRANTED WOULD BAR THE REFILING OF THE SAME ACTION • Res judicata (Sec. 5, Rule 16) • Prescription (Id.) • Payment, waiver, abandonment or extinguishment of claim (Id.) • Claim is unenforceable under the Statute of Frauds (Id.) • Dismissal upon notice by plaintiff which operates as an adjudication upon the merits (Sec. 1, Rule 17) • Dismissal upon motion by plaintiff when the order of dismissal states that dismissal is with prejudice (Sec. 2, Rule 17) • Dismissal due to fault of the plaintiff unless the order states otherwise (Sec. 3, Rule 17) • Dismissal due to willful and deliberate forum shopping • Dismissal due to failure of plaintiff to appear at pre-trial or file a pre- trial brief when the order of dismissal states that dismissal is with prejudice. GROUNDS FOR DISMISSAL WHICH IF GRANTED DO NOT BAR REFILING • Lack of jurisdiction over the subject matter • Lack of jurisdiction over the person of the defendant • Improper venue • Lack of legal capacity to sue • Litis pendencia • Failure to state a cause of action • Failure to comply with a condition precedent EFFECT OF, AND REMEDY FROM, DENIAL OF MOTION TO DISMISS • Defendant shall file his Answer within the balance of the period for filing the same but in no case less than 5 days. • Remedy is to file answer and go to trial or file petition for certiorari under Rule 65 if there is grave abuse of discretion. But as a general rule, the denial of a motion to dismiss cannot be questioned in a certiorari proceeding under Rule 65 (Malicdem v. Flores, G.R. No. 151001, September 8, 2006).

EFFECT OF AND REMEDY FROM DISMISSAL OR GRANT OF MOTION TO DISMISS • Action may be re-filed except where dismissal is based on res judicata, prescription, payment, waiver, abandonment or extinguishment of claim and claim is unenforceable under Statute of Frauds (Sec. 5, Rule 16). • Remedy is appeal under Rule 41 if the order of dismissal is with prejudice or petition for certiorari under Rule 65 if the order of dismissal is without prejudice (Sec. 5, Rule 16 in relation to Sec. 1, Rule 41).

GROUNDS FOR DISMISSAL AS AFFIRMATIVE DEFENSES • The grounds for dismissal under Rule 16 may be pleaded as affirmative defenses in the Answer. • Defendant is entitled to move for the hearing and resolution of its affirmative defenses asserted in the Answer. The Rules provide a preliminary hearing may be held as if a motion to dismiss had been filed in the discretion of the court. (PDI v. Hon. Alameda, G.R. No. 160604, March 28, 2008). • The grounds raised in a Motion to Dismiss can be repleaded in the Answer as affirmative defenses but defendant can no longer demand for a preliminary hearing thereon. (exception: Rasdas v. Estenor, 13 December 2005)

WHAT ARE THE REQUISITES OF RES JUDICATA • The former judgment or order must be final • It must be a judgment or order on the merits • The court which rendered it had jurisdiction over the subject matter and the parties • There must be between the first and second actions identity of parties, subject matter and cause of action (Heirs of Abalos v. Bucal, GR No. 156224, February 19, 2008)

JUDICIAL COMPROMISE HAS THE EFFECT OF RES JUDICATA • A judicial compromise has the effect of res judicata and is immediately executor and not appealable (Republic v. CA, GR No. 110020, September 25, 1998).

ASPECTS OF RES JUDICATA • ACTION COULD BE BARRED EITHER BY: • PRIOR JUDGMENT OR • CONCLUSIVENESS OF JUDGMENT • "Bar by prior judgment," is the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. • "Conclusiveness of judgment," issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action (Francisco v. Co, G.R. No. 151339, January 31, 2006). CONCLUSIVENESS OF JUDGMENT OPERATES AS A BAR EVEN IF THERE IS NO IDENTITY OF CAUSE OF ACTION ONLY SUBSTANTIAL IDENTITY OF PARTIES IS REQUIRED • Exact identity of parties is not necessary. Only substantial identity is necessary to warrant the application of res judicata. The principle of res judicata may not be evaded by the mere expedient of including an additional party to the first and second action. There is substantial identity of parties when there is a community of interest between a party in the first case and a party in the second case albeit the latter was not impleaded in the first case. (Cruz v. CA, GR 164797, February 13, 2006) PRESCRIPTION AS GROUND FOR DISMISSAL MUST BE APPARENT FROM THE ALLEGATIONS OF THE COMPLAINT • Prescription can effectively be used in a motion to dismiss only when the Complaint on its face shows that indeed the action has already prescribed. If it involves evidentiary matters requiring a full-blown trial on the merits, it cannot be determined in a motion to dismiss. (Heirs of Dolleton v. Fil-Estate, G.R. No. 170750, April 7, 2009).

DEFENSE OF PAYMENT, WAIVER OR ABANDONMENT OF CLAIM HYPOTHETICALLY ADMITS THE ALLEGATIONS IN THE COMPLAINT BUT THE COURT IS NOT CONFINED TO THE

ALLEGATIONS IN THE COMPLAINT • This ground essentially admits the obligation set out in the complaint but points out that such obligation has been extinguished, by payment, waiver or abandonment. (Dona Rosana Realty v. Molave, GR 180523, March 26, 2010)

RULE 17 DISMISSAL OF ACTIONS

INSTANCES WHERE THE COMPLAINT MAY BE DISMISSED DUE TO PLAINTIFF'S FAULT: (1) if he fails to appear on the date for the presentation of his evidence in chief; (2) if he fails to prosecute his action for an unreasonable length of time; or (3) if he fails to comply with the rules or any order of the court. DISMISSAL FOR FAILURE TO PROSECUTE IS AN ADJUDICATION ON THE MERITS

DISMISSAL UPON NOTICE BY PLAINTIFF IS EFFECTIVE UPON ITS FILING IN COURT • Dismissal is ipso facto upon notice. It is not filed through motion but through mere notice. (Dael v. Spouses Benedicto, GR 156470, April 30, 2008). DISMISSAL UPON NOTICE IS WITHOUT PREJUDICE • The rule is that dismissal upon notice by plaintiff is without prejudice. • Dismissal upon notice of a case is without prejudice to the re-filing thereof. Moreover, even if the same were tested under the rules on litis pendentia and res judicata, the danger of conflicting decisions cannot be present, since the case was dismissed even before a responsive pleading was filed. (Benedicto v. Lacson, GR 141508, May 5, 2010). EXCEPTIONS: (1) Where the notice of dismissal so provides (2) Where the plaintiff has previously dismissed a similar case in a court of competent jurisdiction (3) Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claims involved (Serrano v. Cabrera, 93 Phil 774 1953). 2-

DISMISSAL RULE

• Second Dismissal must be by Notice • Both dismissals must be upon the instance (Ching v. Cheng, G.R. No. 175507, 8 October 2014)

of

the

plaintiff

EFFECT OF DISMISSAL OF COMPLAINT ON MOTION OR DUE TO FAULT OF PLAINTIFF ON COUNTERCLAIM OR CROSS-CLAIM • Counterclaim and crossclaim will complaint whether compulsory or permissive.

RULE 18 PRE-TRIAL

survive the

dismissal

of

the

WHO HAS THE DUTY TO HAVE THE CASE SET FOR PRE-TRIAL? • Section 1 of Rule 18 of the Rules of Court imposes upon the plaintiff the duty to set the case for pre-trial after the last pleading is served and filed. • This duty of plaintiff is not affected by the fact that the Pre-trial Guidelines mandates the Clerk of Court to promptly issue a notice of pre-trial. SIGNIFICANCE OF DOCUMENTS PRESENTED AND MARKED DURING PRE-TRIAL: CAN BE CONSIDERED AS EVIDENCE EVEN IF NOT FORMALLY OFFERED • As a rule, documents which are not formally offered in evidence shall not be considered. EXCEPTION: • When the following requisites are present: (1) The same must have been duly identified by testimony duly recorded and, (2) The same must have been incorporated in the records of the case. (Ramos v. Spouses Dizon, GR 137247, Aug 7, 2006). WHO IS ENTITLED TO NOTICE OF PRE-TRIAL, COUNSEL OR PARTY? • As a rule, notice of pre-trial shall be served on counsel. A separate notice is not required to be sent to a party as the counsel is charged with the duty of notifying his client. • EXCEPTION: A party who has no counsel is entitled to receive a notice of pre-trial.

WHO ARE REQUIRED TO APPEAR AT PRE- TRIAL • The parties and their counsel shall appear at the pre-trial. • A representative may appear in behalf of a party provided that he is fully authorized in writing to enter into an amicable settlement, submit to alternative modes of dispute resolution, and to enter into stipulations or admission of facts and documents.

EFFECT OF FAILURE TO APPEAR AT PRE-TRIAL • Failure of plaintiff to appear at pre-trial shall be a cause for dismissal with prejudice unless otherwise ordered by the court. • Failure of defendant to appear is not a ground for default but the effects of a default are applied, i.e., the court may allow the plaintiff to present his evidence ex parte and render judgment on the basis thereof.

EFFECT OF FAILURE TO FILE PRE-TRIAL BRIEF • Failure of the defendant to file a pre-trial brief shall have the same effect as failure to appear at the pre-trial, i.e., the plaintiff may present his evidence ex parte and the court shall render judgment on the basis thereof. (Saguid v. CA, GR 150611, June 10, 2003).

RULE 19 INTERVENTION

REQUIREMENTS FOR INTERVENTION (1) Legal interest (a) in the matter in controversy; or (b) in the success of either of the parties; or (c) against both parties; or (d) person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer

thereof; (2) Intervention will not unduly delay or prejudice the adjudication of rights of original parties; (3) Intervenor's rights may not be fully protected in a separate proceeding. WHEN INTERVENTION SHOULD BE MADE • As a rule, intervention is allowed at any time before rendition of judgment by the trial court. After the lapse of this period, it will not be warranted anymore because intervention is not an independent action but is ancillary and supplemental to an existing litigation. (Salandanan v. Spouses Mendez, G.R. No. 160280, March 13, 2009) EXCEPTION: • Where intervenor was not impleaded despite being an indispensable party, and had not known of the existence of the case before the trial court and the effect of the final order is to deprive intervenor of his property. (Asia’s Emerging Dragon v. DOTC, G.R. No. 169914, April 18, 2008).

Rule 19: Q: In a case where the litigant terminated the services of her counsel, and eventually settled the case amicably on her own, can the previous counsel intervene in the pending case to protect his contingency fee? A: Yes. This is considered as a legal interest in the matter in litigation. (Malvar v. Kraft Foods, Inc., 9 September 2013)

Rule 21 - Subpoena

What are the modes of service of a subpoena? • Service of a subpoena shall be made in the same manner as personal or substituted service of summons (Macaspac v. Flores, A.M. No. P- 05-2072, August 13, 2008) What are the grounds for the quashal of a subpoena duces tecum? 1. Subpoena is unreasonable and oppressive - has a tendency to infringe on the right against invasion of privacy. (In re: Petition for cancellation and correction of entries in the record of birth, Lee v. CA G.R. No. 177861, July 13, 2010) o In that case, the SC held that the grounds of unreasonableness and oppresiveness are proper for subpoena duces tecum. 2. Relevancy of books, documents or things does not appear 3. Movant fails to advance reasonable cost of the production thereof. (Sec. 4, Rule 21)

What are the grounds for the quashal of a subpoena duces tecum? 4. 5. 6. 7. 8.

Documents not specifically described or designated Documents covered by privilege like attorney-client privilige Documents covered by RA 1405 or the Banks Secrecy Law, but note the exceptions Documents covered by Foreign Currency Law Executive Privilege

What are the grounds for the quashal of a subpoena ad testificandum?

1. Where witness is being called to testify against his parents, other direct ascendants, children or other direct descendants. (Sec. 25, Rule 130 on parental and filial privilege) 2. Where the witness is disqualified by reason of privileged communication – husband and wife as to communication received in confidence during their marriage, attorney or his secretary as to legal advice given to a client, a doctor in a civil case as to the advice or treatment given to his patient, a priest regarding a confession made to him or a public officer as to communication made to him in confidence (Sec. 22 – 24, Rule 130) 3. Executive privilege What are the grounds for the quashal of a subpoena ad testificandum? • Section 4, Rule 21 of the Rules of Civil Procedure, thus provides: The court may quash a subpoena ad testificandum on the ground that 1. The witness is not bound thereby. 2. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served.

Rule 23 – Depositions Pending Action

What is a deposition? • To depose means to get the testimony of a person. • Depositions serve as a device for ascertaining the facts relative to the issues of the case. The evident purpose is to enable the parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent the said trials from being carried out in the dark. (San Luis v. Roxas, G.R. No. 159127. March 3, 2008) • Deposition serves the double function of a method of discovery — with use on trial not necessarily contemplated — and a method of presenting testimony (Hyatt Industrial v. Ley Construction, G.R. No. 147143. March 10, 2006). What is the purpose of depositions/modes of discovery? 1. To enable the parties to a case to learn all the material and relevant facts 2. To uncover evidence (absence of evidence) 3. To preserve evidence 4. Emphasize issues 5. Prepare our evidence (preparing opponents) 6. Pin and size up the witness and counsel (harassment value) 7. Encourage settlement(dragging case)

Depositions may be taken at any time after the filing of the complaint • It may be done before and after trial, before and after appeal,and even during execution of the judgment. • Depositions may be taken at any time after the institution of any action, whenever necessary or convenient provided jurisdiction has been obtained over the defendant or property subject of the action. A deposition cannot be refused on the ground that it would violate the right against self-incrimination of the deponent • Thus, for a party in a civil case to possess the right to refuse to take the witness stand, the civil case must also partake of the nature of a criminal proceeding. ( Rosete v. Lim, G.R. No. 136051. June 8, 2006)

Delay is not a valid ground to refuse deposition • While speedy disposition of cases is important, such consideration however should not outweigh a thorough and comprehensive evaluation of cases, for the ends of justice are reached not only through the speedy disposal of cases but more importantly, through a meticulous and comprehensive evaluation of the merits of the case. (Hyatt Industrial v. Ley Construction, G.R. No. 147143. March 10, 2006) Availability of deponent to testify is not a ground to refuse deposition. Taking of deposition is different from the use of deposition on trial • The availability of the proposed deponent to testify in court does not constitute "good cause" to justify the court's order that his deposition shall not be taken. That the witness is unable to attend or testify is one of the grounds when the deposition of a witness may be used in court during the trial. But the same reason cannot be successfully invoked to prohibit the taking of his deposition. Taking of deposition is different from the use of deposition on trial • The right to take statements and the right to use them in court have been kept entirely distinct. The utmost freedom is allowed in taking depositions; restrictions are imposed upon their use. Taking of deposition is different from the use of deposition on trial • . . . [U]nder the concept adopted by the new Rules, the deposition serves the double function of a method of discovery — with use on trial not necessarily contemplated — and a method of presenting testimony. Accordingly, no limitations other than relevancy and privilege have been placed on the taking of depositions, while the use at the trial is subject to circumscriptions looking toward the use of oral testimony wherever practicable. (Hyatt Industrial v. Ley Construction, G.R. No. 147143. March 10, 2006)

What are the forms of depositions? 1. 2.

Oral Examination Written Interrogatories

When is leave of court necessary? • As a rule, leave of court is not necessary before deposition may be taken in pending actions. o EXCEPTIONS: 1. Before service of answer: Leave of court is necessary because issues are not yet joined and the disputed facts are not clear. 2. Deposition before action as when a person desires to perpetuate his own or that of another person (Sec. 1, Rule 24) 3. Deposition pending appeal or before taking of appeal as when a party desires to perpetuate testimonies of witnesses for use in the event of further proceedings (Sec. 7, Rule 24) Scope of examination in deposition: Any relevant matter, not privileged • What is chiefly contemplated is the discovery of of information which may be useful in the preparation for trial, such as 1. Relevant facts that are not privileged 2. Identity and location of persons having knowledge of relevant facts 3. Existence, description, nature,custody, condition, and of any

every bit

location

books, documents, or other tangible things. • Evidentiary matters may be inquired into and learned by the parties before trial. It is the policy of the law that parties before trial should discover all the facts relevant to the action, not only those known to them individually, but also those known to their adversaries. (Republic v. SB, G.R. No. 90478, November 21, 1991) Requirements for oral examination and written interrogatories on a witness 1. Oral Examination - A notice of deposition upon oral examination shall be served upon the adverse party stating (1) the time and place for the taking of deposition and (2) the name and address of the person to be examined and the deposing officer 2. Written Interrogatories - A notice of deposition and written interrogatories shall be served upon the adverse party stating the name and address of the deponent and the name, address and descriptive title of the deposing officer. Period for serving cross, re-direct, and recross interrogatories 1. 2. 3.

Cross Interrogatories – 10 days Re-direct Interrogatories – 5 days Re-cross Interrogatories – 3 days

Who shall answer written interrogatories served on juridical entities? • Interrogatories served on a juridical entity shall be answered by any officer competent to testify in its behalf. What is the remedy from a notice of or order for deposition? • Party or deponent may move for a protection order, i.e., that it may be taken only on written interrogatories or oral interrogatories, that certain matters shall not be inquired into, that secret processes, developments or research need not be disclosed, to protect the deponent from annoyance, embarrassment or oppression (Secs. 16 for oral examination and 28 for written interrogatories). Manner of taking depositions in the Philippines • Deposition within the Philippines may be taken before any judge, notary public or any person authorized to administer oaths when parties so stipulate in writing (Secs. 10 and 14, Rule 23) • Deposing officer shall put deponent on oath and shall personally or by someone acting under his direction and in his presence record the testimony of the witness.(Sec. 17) Manner of taking depositions in the Philippines • All objections made at the time of the examination to the qualifications of deposing officer, manner of taking it, evidence presented, conduct of any party and any other objection to the proceedings shall be noted by the deposing officer.(Sec. 17) Evidence objected to shall be taken subject to the objections. • In lieu of oral examination, a party may opt to submit written interrogatories to the deposing officer who shall propound them to the witness and record the answers verbatim. (Sec. 17) • Certification and filing by deposing officer of deposition (Sec. 20) and notice of filing to parties (Sec. 27)

Manner of taking depositions abroad • Depositions in foreign countries may be taken before: 1. Secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the Republic of the Philippines;(Sec. 11)

2. Person or officer as may be appointed by commission or foreign court or tribunal under letters rogatory; or (Sec. 11) 3. Any person authorized to administer oaths as stipulated in writing by the parties.(Sec. 14)

What is a commission? • Commissions are directives to officials of the issuing jurisdiction. Commissions are taken in accordance with the rules laid down by the court issuing the commission

What is a letter rogatory? • A letter rogatory is a request to a foreign court to give its aid, backed by its power, to secure desired information. The methods of procedure are under the control of the foreign tribunal. (Dulay v. Dulay, G.R. No. 158857, November 11, 2005) What is the remedy from an unreasonable conduct of deposition? • At any time during the taking of deposition, a party or deponent may move for a protective order or termination of the taking of deposition or limitation of the scope and manner of the taking of deposition (Sec. 18)

When can a protective order be issued? 1. 2.

Examination is being conducted in bad faith Examination is being conducted in such a manner to annoy, embarrass, or oppress the person subject to the inquiry. 3. When the inquiry touches upon the irrelevant facts 4. When the inquiry encroaches upon the recognized domains privilege. (Republic v. SB, G.R. No. 90478, November 21, 1991)

as

of

What is the effect of taking a deposition? • A party taking the deposition is not bound to make the deponent his own witness. He shall not be deemed to make the deponent his own witness for any purpose by taking his deposition. He may opt not to use at all the deposition as evidence (Sec. 7)

Use of deposition of a party and a witness • 1. 2.

Deposition of a party – Adverse party may use deposition: To contradict or impeach the testimony of the party; For any purpose, i.e., offer it in evidence in support of its claim.

• N.B. Deposition of officer, director or managing agent of a juridical entity which is a party to an action is considered as DEPOSITION OF A PARTY. Thus, it may be used for any purpose. Use of deposition of a party and a witness • Deposition of a witness - : Any party may use deposition: 1. To contradict or impeach the testimony of the party; 2. For any purpose if the court finds: a. That the witness is dead; or b. That the witness is out of the province and at a greater distance than 100 kilometers 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; or c. That the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or d. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or e. Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used

Entire deposition may be required to be introduced • If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the party introduced, and any party may introduce any other parts. What is the effect of participation in deposition? • No waiver of the right to object to its admissibility o The act of cross-examining the deponent during the taking of the deposition cannot, without more, be considered a waiver of the right to object to its admissibility as evidence in the trial proper. A party is not estopped from challenging the admissibility of the deposition just because he participated in the taking thereof. (Sales v. Sabino, G.R. No. 133154. December 9, 2005)

What is the effect of using deposition? • The rule is the introduction in evidence of the deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition (Sec. 8). o EXCEPTIONS: 1. Where the party used the deposition to contradict or impeach the testimony of the deponent in court; 2.

When the deponent is an officer, director or managing agent of the adverse party.

What is the effect of substitution of parties and dismissal of action on the right to use deposition? • The rule is the right of a party to use deposition previously taken before the substitution is binding on the substituted parties (Sec. 5) • When an action has been dismissed and another action involving the same subject is filed between the same parties, depositions taken in the former action may be used in the latter as if originally taken therefor (Sec. 5) When to raise objections to errors or irregularities in depositions? • As to Notice of deposition – writtenobjection should be promptly served upon the party who gave the notice. • As to Disqualification of officer – objection should be raised before the taking of the deposition begins or as soon thereafter as the disqualification becomes knows or could be discovered. • As to competency or relevance of evidence –objection may be raised when the deposition is introduced in evidence in court unless the ground of objection might have been obviated or removed if presented at that time When to raise objections to errors or irregularities in depositions? • As to manner of taking deposition, form of questions or answers, oath or affirmation, or conduct of parties in the deposition – objection must be raised at the taking of deposition. • As to the form of written interrogatories – objection must be raised within the time for filing answer to interrogatories to parties or cross- interrogatories.

• As to manner in which testimony is transcribed or deposition is prepared, signed, certified, sealed, transmitted or filed – objections must be raised within reasonable time from notice of such defect. What is the effect of the failure to raise timely objections to errors or irregularities in deposition? • The rule is the objections are deemed waived. oEXCEPTION: Objections to competency, relevancy or materiality of testimony are not waived even if they are not raised before or during the taking of deposition.

Disqualifications of deposing officers • The following are grounds for disqualification of the person before whom deposition is to be taken: 1. Officer is a relative within the 6th degree of consanguinity or affinity of any of the parties; 2. Officer is counsel or employee of any of the parties 3. Officer is a relative within the same degree or employee of such counsel 4. Officer is financially interested in the action. (Sec. 13)

Rule 24 – Depositions before Action or Pending Appeal Deposition before action • Any person may file a petition for deposition in order to perpetuate his own testimony or that of another person regarding any matter that is within the jurisdiction of Philippine courts. • The petition shall be filed before the RTC of the place of residence of any expected adverse party to take deposition.

Grounds for allowance of deposition before action •

Where the perpetuation of the testimony may prevent a failure or delay of justice.

Deposition before and after appeal • A party may file a motion before the court in which the judgment was rendered to take the deposition of witnesses to perpetuate their testimony for use in the event of further proceedings in said court. • Ground for allowance of motion for deposition is to prevent a failure or delay of justice.

Rule 25 – Interrogatories to Parties Leave of court not necessary after answer is filed • The rule is leave of court is not necessary when a party serves written interrogatories to the adverse party AFTER an answer has been served. o EXCEPTIONS (which means leave of court is necessary): 1. Before service of an answer to the complaint; 2. More than one set of interrogatories would be served on the same party. What is the effect of the failure to serve written interrogatories on the adverse party?

• The adverse party may not be compelled testimony in open court or to give a deposition pending appeal.

to

give

Answer to written interrogatories • Answer shall be signed and sworn to by the person making them. If the party served is a juridical entity, answer shall be made by any officer thereof competent to testify in its behalf. • Answer shall be filed within 15 days after service thereof or within such time as the court may allow.

Objections to interrogatories • •

Objections shall be filed within 10 days from Filing of objections shall defer the to interrogatories.

service of the interrogatories. service and filing of answer

Rule 26 – Admission by Adverse Party

When request for admission can be filed • After the defendant has filed his answer as the Rules provide that a request for admission may be filed at any time after issues have been joined. Important requisite for request for admission • Do not simply reproduce allegations in previous pleading o A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party's pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party's cause of action or defense.(Po v. CA, G.R. No. L-34341, August 22, 1988) What is the scope of the request for admission? • Under Section 1 of Rule 26 of the Rules of Court, the scope of matters that a party may request the adversary to admit are: 1. The genuineness of any material and relevant document described in and exhibited in the request; and 2. The truth of any material and relevant matter of fact set forth in the request. • The demand for admission relate to relevant and material matters of facts— and not for admission of matters of law, conclusions, or opinions. (DBP v. CA, G.R. No. 153034, September 20, 2005) What is the period to file an answer to a request for admission? • •

15 days from service of request for admission Such further time as the court may allow on motion and notice.

Form of answer to request for admission • The Answer shall either deny specifically the matters of which an admission is requested or set forth in detail the reasons why he cannot truthfully either admit or deny those matters. • Answer must be under oath Request must be served directly upon the party •

The request for admission must be served directly upon the party (Briboneria v. CA,

G.R. No. 101682, December 14, 1992). Otherwise, the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document described in and exhibited with the request or relevant matters of fact set forth therein, on account of failure to answer the request for admission. What is the effect of the failure to file an answer to a request for admission? • The matters set forth in the request for admission are deemed admitted by the requested party(Sec. 2, Rule 26). In short, the truth of the matters upon which admissions were requested are deemed admitted. o EXCEPTION: If the factual allegations in the complaint or answer are the very same allegations set forth in the request for admission and have already been specifically denied or otherwise dealt with in the answer or reply, a response to the request is no longer required. Effect of failure to file an answer to request for admission; Exception • If the matters in a Request for Admission were already admitted or denied in previous pleadings by the requested party, the latter cannot be compelled to admit or deny them anew (Spouses Limos v. Spouses Odones, G.R. No. 186979, August 11, 2010) What is the effect where the answer to a request for admissions is not under oath? • That the Answer to Request for Admission was not under oath is not a substantive, but merely a formal, defect which can be excused in the interest of justice conformably to the well-entrenched doctrine that all pleadings should be liberally construed as to do substantial justice. (DBP v. CA, G.R. No. 153034, September 20, 2005) What is the effect of an admission in a request for admission? • Admission is for the purpose of the pending action only. It shall not constitute as an admission for any other purpose. • Admission made in an action cannot be used against him in any other proceeding.

Withdrawal of admission • The court may allow a party to withdraw or amend an admission upon such terms are may be just (Sec. 4, Rule 26). What is the effect of the failure to file and serve a request for admission? • A party shall not be permitted to present evidence on relevant facts which are within the personal knowledge of the adverse party • The rule is the failure to file and serve request for admission on the adverse party of material fact at issue which are or ought to be within the personal knowledge of the adverse party – shall not be permitted to present evidence on such facts. o EXCEPTION: Good cause and to prevent a failure of justice

Rule 27 – Production or Inspection of Documents or Things Matters subject of motion for production or inspection • Documents, papers, books, accounts, letters, photographs, objects, or tangible things • Land or other property in possession or control of a party What is the relief prayed for in a motion for production or inspection? • For documents, relief is to produce and permit inspection and copying or photographing • For land or other property, relief is to permit entry for the purpose of inspecting,

measuring, surveying or photographing The rule on production of documents permits fishing for evidence; Requirements • Rule 27 of the Revised Rules of Court permits "fishing" for evidence, the only limitation being that the documents, papers, etc., sought to be produced are not privileged, they are in the possession of the party ordered to produce them; and they are material to any matter involved in the action. (Solidbank v. Gateway Electronics, G.R. No. 164805, April 30, 2008). What are the requisites in order that a party may compel the other party to produce or allow the inspection of documents or things? 1. The party must file a motionfor the production or inspection of documents or things, showing good cause therefor; 2. Notice of the motion must be served to all other parties of the case; 3. The motion must designate the documents, papers, books, accounts, letters, photographs, objects or tangible things which the party wishes to be produced and inspected; 4. Such documents, etc., are not privileged; 5. Such documents, etc., constitute or contain evidence material to any matter involved in the action, and 6. Such documents, etc., are in the possession, custody or control of the other party. (Solidbank v. Gateway Electronics, G.R. No. 164805, April 30, 2008).

Rule 28 – Physical and Mental Examination of Persons When a motion for physical or mental examination may be filed • When the mental or physical condition of a party is in controversy, he may be required to submit to physical or mental examination. Party examined entitled to a copy of written report of findings • The party examined may secure a copy of a detailed written report of the examining physician setting out his findings and conclusions. Effect of securing copy of written report of findings • The party causing the examination shall be entitled to receive report of previous examination of the same physical or mental condition. • The party examined waives any privilege he may have in that action or other action involving the same controversy regarding the testimony of the examining physician in respect of the same mental or physical examination.

Rule 29 – Refusal to Comply with Modes of Discovery What is the effect of the failure to comply with the modes of discovery? • The law imposes serious sanctions on the party who refuses to make discovery (Republic v. SB, G.R. No. 90478, November 21, 1991), such as: 1. Dismissing the action or proceeding or part thereof, rendering judgment by default against disobedient party, striking out all or any any part of the pleading of the party – Failure of a party to: o Serve answers to written interrogatories under Rule 25 o Appear before the deposing officer for oral examination o Comply with an order under Rule 27 to produce any document for inspection, photocopying or photographing o Comply with an order under Rule 28 requiring him to submit to physical or mental examination o Comply with an order to answer designated questions upon oral examination or

written interrogatory 2. Contempt of court – o Refusal of a witness to be sworn o Refusal of a witness to answer any question after being directed to do so by the court 3. Arrest of the party or agent of the party – o In lieu of other consequences under Sec. 3 when a party fails or refuses to comply with an order under Rule 27 on production of document, Rule 28 on physical or mental examination or with an order to answer designated questions.

4. Payment of the amount of reasonable expenses incurred in obtaining a court order to compel discovery, including attorney’s fees – Failure of a party to: o Serve answers to written interrogatories under Rule 25 o Appear before the deposing officer for oral examination 5. Taking the matters inquired into as established in accordance with the claim of the party seeking discovery – Failure of a party to: o File a sworn answer to a Request for Admission o Comply with an order under Rule 27 to produce any document for inspection, photocopying or photographing o Comply with an order under Rule 28 requiring him to submit to physical or mental examination o Comply with an order to answer designated questions upon oral examination or written interrogatory

6. Refusal to allow the disobedient party support or oppose designated claims or defenses or staying further proceedings – Failure of a party to: o Comply with an order under Rule 27 to produce any document for inspection, photocopying or photographing o Comply with an order under Rule 28 requiring him to submit to physical or mental examination o Comply with an order to answer designated questions upon oral examination or written interrogatory

Rule 30 - Trial Trial can be dispensed with by agreement of the parties • The trial court can render a decision without a full-blown trial, based solely on the pleadings of the parties and the documents appended to their memorandum where the parties themselves agreed to forego a full-blown trial and to instead file their respective "Memorandum of Authority" and to submit evidence in support of their respective contentions. (Republic v. Vda De Neri, G.R. No. 139588, March 4, 2004). Absence of a party during trial constitutes a waiver of his right to present evidence or cross-examine the opposing party’s witnesses • The absence of a party during trial constitutes waiver of his right to present evidence and cross-examine the opponent's witnesses. • Although a defendant who answered the complaint but fails to appear at the scheduled trial cannot be declared in default, the trial, however, may proceed without his presence. And if the absence of a party during the hearing was due to his own fault, he cannot later on complain that he was deprived of his day in court. (Spouses Calo v. Spouses Tan, G.R. No. 151266, November 29, 2005).

Rule 31 - Consolidation

What are the requisites of consolidation? 1. Two or more actions are pending before the court involving the same parties;

2. Both or all actions arise from the same act, event transaction, involve the same or like issues, and depend largely or substantially on the same evidence 3. The court has jurisdiction over the cases to be consolidated (Republic v. CA, G.R. No. 116463, June 10, 2003). 4. Consolidation would not result in prejudice to any of the parties or would not cause complications, delay, or restrict the rights of a party. (Teston v. DBP, G.R. No. 144374, November 11, 2005). 5. The nature of both actions is the same (Espinoza v. UOB, G.R. No. 175380, March 22, 2010)

What is the purpose of consolidation? • The obvious purpose of the rule allowing consolidation is to avoid multiplicity of suits to guard against oppression or abuse, to prevent delays, to clear congested dockets, to simplify the work of the trial court; in short the attainment of justice with the least expense and vexation to the parties litigants.

Consolidation addressed to the sound discretion of the court • Consolidation of actions is addressed to the sound discretion of the court and its action in consolidating will not be disturbed in the absence of manifest abuse of discretion. Court must have jurisdiction over the cases sought to be consolidated • In Republic v. CA, the SC held that an essential requisite of consolidation is that the court must have jurisdiction over all the cases consolidated before it. Since the Sandiganbayan does not have jurisdiction over the collection case, the same cannot be consolidated with the criminal cases even if these cases involve similar questions of fact and law. A civil case can be consolidated with a criminal case • As a rule, consolidation of civil and criminal cases is allowed when all the requisites of consolidation are present. In one case, the SC allowed a civil action not arising from the offense charged (arising ex contractu) to be consolidated with the criminal action (Naguiat v. Intermediate Appellate Court) • In another case, the Court consolidated a civil action for the recovery of wage differential with a criminal action for violation of the Minimum Wage Law (Canos v. Peralta) A civil case can be consolidated with a criminal case; Exception • EXCEPTION (which means that a civil case cannnot be consolidated with the criminal case) -- If the civil case amounts to a counterclaim or a third party complaint in a criminal case. In one case, the SC held that a consolidation of the collection case with the criminal cases will have the same effect of a counterclaim or a third-party complaint against the complainant. In such case, the rule against counterclaims and third-party complaints in criminal cases may be applied by analogy. (Republic v. CA, G.R. No. 116463, June 10, 2003).

Rule 32 – Trial by Commissioner Court can decide a case on the basis of a commissioner’s report and adopt in whole the findings of commissioners • In one case, the trial court acted properly when it adopted the Majority Report of the commissioners as part and parcel of its Decision. That is allowed in Section 11, Rule 32 which provides that the court may adopt, modify, or reject the report in whole or in part or it may receive further evidence or may recommit it with instructions. (Manotok Realty v. CLT Realty, G.R. No. 123346, November 29, 2005)

• In this case, the overlapping of titles necessitates the assistance of experts in the field of geodetic engineering. The very reason why commissioners were appointed by the trial court, upon agreement of the parties, was precisely to make an evaluation and analysis of the titles in conflict with each other. Given their background, expertise and experience, these commissioners are in a better position to determine which of the titles is valid. Thus, the trial court may rely on their findings and conclusions. It bears stressing that the parties opted to submit the case for decision on the bases, among others, of their respective objections/comments on the commissioners' reports.

Rule 33 – Demurrer to Evidence

What is a demurrer to evidence? • Demurrer to evidence as "an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue." (Casent Realty v. Philbanking, G.R. No. 150731, September 14, 2007). What is the purpose of a demurrer to evidence? • To discourage prolonged litigations. o The demurrer, therefore, is an aid or instrument for the expeditious termination of an action, similar to a motion to dismiss, which a court or tribunal may either grant or deny. Heirs of Santioque v. Heirs of Calma, G.R. No. 160832, October 27, 2006 Evidence to be considered in demurrer to evidence • What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is entitled to the relief based on the facts and the law. The evidence contemplated by the rule on demurrer is that which pertains to the merits of the case, excluding technical aspects such as capacity to sue. • However, the plaintiff's evidence should not be the only basis in resolving a demurrer to evidence. The "facts" referred to in Section 8 should include all the means sanctioned by the Rules of Court in ascertaining matters in judicial proceedings. These include judicial admissions, matters of judicial notice, stipulations made during the pre-trial and trial, admissions, and presumptions, the only exclusion being the defendant's evidence. (Casent Realty v. Philbanking, G.R. No. 150731, September 14, 2007). What is the effect of the filing of a demurrer to evidence? • If demurrer is denied, defendant’s right to offer evidence is not waived as the case still remains before the trial court. • If the demurrer is granted but on appeal, the dismissal is reversed, defendant lose the right to present evidence. (Radiowealth v. Spouses Del Rosario, G.R. No. 138739, July 6, 2000). The appellate court should not remand the case to the trial court • CA should not remand case to trial court. It shall proceed to render decision on the merits based on the evidence on record. (Radiowealth v. Spouses Del Rosario, G.R. No. 138739, July 6, 2000).

RULE 34 AND 35

JUDGMENT ON THE PLEADINGS/SUMMARY JUDGMENT

• The existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for summary judgment from one for a judgment on the pleadings. • In a proper case for judgment on the pleadings, there is no ostensible issue at all because of the failure of the defending party’s answer to raise an issue. • On the other hand, in the case of a summary judgment, issues apparently exist i.e. facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer but the issues thus arising from the pleadings are sham, fictitious or not genuine, as shown by affidavits, depositions, or admissions. • In other words, a judgment on the pleadings is a judgment on the facts as pleaded, while a summary judgment is a judgment on the facts as summarily proven by affidavits, depositions, or admissions (Narra Integrated Company v. Court of Appeals, G.R. No. 137915, 15 November 2000)

Illustrative examples: 1. A was the lessor of B. B subleased the premises without permission from A. A padlocked the premises to prevent B and sublessees from entering. B filed a case for damages. A filed an Answer alleging that the proper interpretation of the contract disallows a sublease. Is this proper for Judgment on the Pleadings? A: Yes. The only issue was (Sunbanun v. Go, 2 February 2010)

as

to

the

interpretation of contract

2. A was the lessor of B. During the term of the lease, B pre- terminated the contract and vacated the premises. A claimed that the lease agreement does not provide for pre-termination and filed a case for damages. B filed an Answer admitting that he had vacated and argued that based on the Civil Code, he could pre- terminate the lease because of a change in the circumstances. Is JUDGMENT on the PLEADINGS still proper? A: YES. A judgment can be based exclusively upon the allegations appearing in the pleadings of the parties and the accompanying annexes. The defense which is based on an interpretation of law can be resolved through a review of the pleadings. (Comglasco v. Santos Car Check, 25 March 2015).

3. A failed to pay B insurance premium for one quarter. B sued A for collection of unpaid premiums. A raised in its Answer the defense that collection is not proper because legally, the effect of non- payment is that the insurance/reinsurance contracts becomes ineffective. Hence, there is no cause of action for collection. A claimed asked for Judgment on the Pleadings. Proper? A: Yes. The answer depended solely on the legal interpretation of the effect of non-payment of an insurance premium. This can be resolved based on the pleadings and an interpretation of the applicable law. (GSIS v. Prudential, 20 November 2013) 4. A executed a Real Estate Mortgage in favor of B, in connection with a loan it incurred. After B foreclosed on the REM, A filed a case to annul the foreclosure sale claiming that he merely took on the loan for his company, and proceeds did not go to him. B filed an Answer admitting the material allegations, but countered that the evidence shows that A incurred the obligation solidarily with his company. B then moved for Summary Judgment. Proper? A: Yes, proper, because there was no genuine issue raised by A. A does not deny the loan nor that his property was mortgaged. Even assuming A just lent his name as guarantor for the loan, B can still claim from A and his property. (Evangelista v. Mercator Finance, 21 August 2003)

Q:

Why is this not proper for Judgment of the Pleadings instead?

A: Because there appears to be a defense, but it is “sham” as a perusal of the evidence will clearly belie the claim. 5. Napocor and a private individual, A, entered into an agreement in connection with Napocor’s use of a portion of the property for transmission lines and towers. After Napocor had entered into the property, A discovered that Napocor paid his neighbors a higher amount per square meter. Thus, A filed a case for rescission of contract and damages. B filed an Answer claiming that the proper amount had already been paid. Proper for Summary Judgment? A: Yes. “What remained for the determination of the RTC was the proper amount of damages due the respondents for the portions of their lots taken by the petitioner.” (NAPOCOR v. Vda. De Capin, 17 October 2008)

RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF REQUISITES OF A VALID JUDGMENT • Even a dismissal of a case for failure to prosecute must comply with the requirements that the same clearly state the facts and law upon which it is based. (Shimizu Philippines Contractors v. Magsalin, G.R. No. 170026, 20 June 2012) Nunc pro tunc judgments have this Court in the following manner:

been defined

and

characterized by

• The office of a judgment nunc pro tunc is to record some act of the court done at a former time which was not then carried into the record, and the power of a court to make such entries is restricted to placing upon the record evidence of judicial action which has been actually taken. • It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. • If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper judgment, it has no power to remedy these errors or omissions by ordering the entry nunc pro tunc of a proper judgment. • Hence a court in entering a judgment nunc pro tunc has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered, but which had not been entered of record as rendered. • In all cases the exercise of the power to enter judgments nunc pro tunc presupposes the actual rendition of a judgment, and a mere right to a judgment will not furnish the basis for such an entry (Briones-Vasquez v. Court of Appeals, G.R. No. 144882, 4 February 2005) Q: A filed a case against B for easement of right of way. A claimed that it is through B’s property that A has best access to a highway. Since B closed the said pathway, A sought court relief to declare the same a legal easement. The Court ruled that there was another pathway through the southern portion of B’s property, and DISMISSED the case. When A sought to use the southern pathway, B again closed it. Can A move to open the southern portion based on the court’s previous decision? A: NO. The dispositive portion of the decision merely denied the complaint. Though the Court stated, as its reason, the existence of the southern pathway, that was an issue in the case and hence not part of the dispositive portion. (Obra v. Badua, 9 August 2007)

Q:

What is a several judgment?

A: “A several judgment is proper only when the liability of each party is clearly separable and distinct from that of his co-parties, such that the claims against each of them could have been the subject of separate suits, and judgment for or against one of them will not necessarily affect the other. Where a common cause of action exists against the defendants, as in actions against solidary debtors, a several judgment is not proper.” (De Leon v. Court of Appeals, 6 June 2002)

RULE 39 Rule on Execution - only final and executory judgments may be executed Exceptions: 1.

Judgments pending appeal

2. Immediately executory judgments (N.B. Both judgments are not final but may already be executed) 3. Supervening event which renders execution unjust or impossible such as where the decision of the CA was superceded by Compromise Agreement (Republic v. Antonio) Rule on Execution - only final and executory judgments may be executed 4. Equitable grounds such as where there is a change in the situation of the parties 5. Judgment has been novated by parties 6. Judgment has become dormant 7. Judgment turns out to be incomplete. (Items 3 to 7 can be used as grounds for quashal of writ of execution) Execution of final and executory judgment - matter of right REQUISITES – The requisites for the grant of an execution of a final and executory judgment are: (a) Motion by judgment obligee; (b) Notice to adverse party ; (c) Before court of origin; (d) Submit certified copy of judgment and entry of judgment. • Only trial court may issue the writ but appellate court may direct trial court to issue in the interest of justice Execution pending appeal – discretionary REQUISITES - The requisites for the grant of an execution of a judgment pending appeal are the following: (a) there must be a motionby the prevailing party with notice to the adverse party; (b) there must be good reasons for execution pending appeal; (c) the good reasons must be stated in the special order; and (d) trial court while it has jurisdiction and is in possession of the original record/appellate court after the trial court has lost jurisdiction. EXAMPLES: a. Appeal is unmeritorious • The well-established rule is that it is not for the trial court to determine the merits of the decision it rendered and use the same as basis for its order allowing execution pending appeal. The authority to determine the merits of the appeal and the correctness of the findings and conclusions of the trial court is lodged in the appellate court. (Heirs of Sangkay v. Napocor, G.R. No. 141447. May 4, 2006)

b. Appeal is dilatory • That the appeal is merely dilatory is not a good reason for granting execution pending appeal. Only an appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal. (Heirs of Sangkay v. Napocor, G.R. No. 141447. May 4, 2006) EXAMPLES: c. Financial distress of prevailing company • The Court held that even the financial distress of the prevailing company is not sufficient reason to call for execution pending appeal. • The financial distress of a juridical entity is not comparable to a case involving a natural person — such as a very old and sickly one without any means of livelihood, an heir seeking an order for support and monthly allowance for subsistence, or one who dies or who is ill, of advanced age or dying as to justify execution pending appeal. • Financial distress arising from a lone collection suit and not due to the advanced age of the party is not an urgent or compelling reason that would justify the immediate levy on the properties of Urban Bank pending appeal. (Urban Bank v. Pena, G.R. No. 145817, October 19, 2011)

EXAMPLES: d. If only one of the defendants held solidarily liable is insolvent • In cases where the two or more defendants are made subsidiarily or solidarily liable by the final judgment of the trial court, discretionary execution can be allowed if all the defendants have been found to be insolvent. (Urban Bank v. Pena, G.R. No. 145817, October 19, 2011) e. The prevailing party’s husband was ill and said party was willing to post a bond. • (Stronghold Insurance v. Felix) EXAMPLES: (f) Advanced age and illness of one of the prevailing parties, losing party’s dilatory and frivolous appeal and strong likelihood of becoming insolvent during the pendency of the appeal. • SC ruling – Only Rosario is in her old age and suffers from life threatening ailments. But the trial court has allowed execution pending appeal for all of the Florendos, not just for Rosario whose share in the subject lands had not been established. Paramount’s delaying tactics and the possibility that it could become insolvent during the appeal are purely speculative. As for the Florendos’ fear of Paramount’s insolvency, such is wholly irrelevant since the judgment did not require it to pay them any form of damages. Indeed, the Florendos are the ones required by the RTC to reimburse Paramount the value of its bid and the amounts of real estate taxes that it had paid on the properties. Lastly, the Florendos’ posting of a P4 million bond to answer for the damages that respondent Paramount might suffer in case the RTC decision is reversed on appeal is quite insufficient. The lands had a market value of P42 million in 2001. (Florendo v. Paramount, G.R. No. 167976 January 20, 2010) • If an execution pending appeal is issued, what is the remedy of the defeated party to stay the execution pending appeal? • Filing of supersedeas bond • Immediately executory judgments executable upon rendition but may be stayed by trial court or on appeal. • Injunction, receivership, accounting, support, support pendente lite • Effect of reversal of executed judgment • orders of restitution or reparation of damages

Mode of obtaining a writ of execution a. By Motion - within 5 years from date of entry of judgment; period is tolled when delay is caused by judgment obligor (Yao v. Silverio) • Writ issued and levy within 5 years, execution sale after 5 years

•

still okay provided sale is made within 10 years.

b. By action - after 5 years from date of entry of judgment but before it is barred by prescription; in such case, judgment becomes a mere right of action Execution in case of death of obligor (obligor dies before actual levy of his property) • If judgment is for recovery of property, shall be against executor or administrator. • What about if judgment is for payment of money? • If obligor dies after actual levy of property, the in the name of deceased obligor may be sold.

execution

property

Writ of execution is directed to the Sheriff • Contents: must state amount of interest as of the date of issuance of the writ • Where decision does not include payment of interest, writ shall not include legal interest but may include 12% legal interest from the time the judgment became final and executory • Where decision includes interest, writ shall include 6 % legal interest from date of filing of complaint or demand and may include 12% legal interest from the date the judgment became final and executory Execution of Money Judgment – Manner of enforcement A. Demand for Immediate Payment – cash, MC or other acceptable form of payment, payment shall be made directly to obligee or in his absence to executing Sheriff. B. Levy upon properties of obligor - obligor has option to choose property to be levied on. If option not exercised, Sheriff shall levy on personal properties first and then real properties. • Judgment for sum of money cannot be executed by issuing a writ of possession over a real property (Cardinal v. Asset). There is nothing in the rules that authorize the issuance of a writ of possession over a property of the judgment obligor in the execution of a money judgment. Execution of Money Judgment – Manner of enforcement C. Garnishment - made by service of notice upon third persons. Garnishee to make a report whether obligor has sufficient funds to satisfy judgment or if not sufficient state the amount of funds in its possession. • Garnished amount shall be paid in the name of obligee, not Sheriff. Payment shall be delivered within 10 working days from notice of delivery by Sheriff. • Instead of levy upon property and sale on execution, Court may order any property or money of Judgment Obligor in his possession or of another person to be applied to the satisfaction of the judgment (Sec 40)

Execution of Specific Act Judgment A. Judgments directing the (a) execution of Deeds of Conveyance of land or personal property or (b) delivery of documents • Should a party fail to comply within the time specified - court may direct the act to be done by another person. But if land or personal property is in the Phil, court in lieu of directing a conveyance thereof, may issue an order divesting title of obligor and vesting it in the obligee. This shall have the effect of a conveyance executed in due form of the law. B. Delivery of Real Property • Sheriff to serve a Notice to Vacate within 3 working days. If obligor fails to vacate, Sheriff shall oust obligor and ALL PERSONS claiming rights under him.

• Improvements introduced by obligor on real property shall not be destroyed or removed without a special order of demolition by the court. Demolition order shall be issued after hearing and after obligor fails to remove the same within a reasonable time. Removal of improvements is relevant only if obligor is a builder in good faith.

Execution of Special Judgment • Judgment declaring stockholders’ meeting and election of board of directors void, permanent injunction, validity and legality of certain acts or things – examples of a special judgment • copy

How enforced? Sheriff to serve the writ and of judgment upon the party against whom judgment is rendered.

certified

Remedy of a third person whose property is levied on execution • Serve Affidavit of 3rd Party Claim stating his right to possession or title on Sheriff and obligee. • Effect of serving such Affidavit - it won't stop delivery or sale of property but Sheriff for his protection may require obligee to post bond. Sheriff may or may not require obligee to post bond.

• Claim for damages against the bond - action shall be made within 120 days from filing of bond; otherwise it is barred. BUT 3rd party may still file a separate action for damages or action for recovery of property. Obligee may claim damages in the same or separate action against 3rd party for filing a frivolous or spurious claim. • Fermin v. Estevez – The claim of terceria is available to a third person other than the judgment obligor who claims a property levied on and put on auction by Sheriff. This is not the appropriate remedy where the third person’s property is subject of a writ of execution or writ of demolition arising from a civil case to which said third person was not a party and whose rights do not arise from the defendant in the said case.

Property Exempt From Execution • Claim for exemption of family home from execution must be set up and proved before the sale of the property at public auction (Honrado v. CA) • Exemption shall not apply to judgments for foreclosure of mortgage thereon or recovery for its price. Validity of Writ of Execution • valid and effective during the period within which the judgment may be enforced, i.e. 5 years from date of entry of judgment. • Shall be returned when judgment has been satisfied in full or part or 30 days from receipt of Writ and every 30 days thereafter until judgment is satisfied in full. Judgment obligee who purchases the property need not pay the amount of the bid. Conveyance of Real Property • Sheriff shall execute a the purchaser which shall be registered in the RD. Redemption of redeemed)

real

property

Certificate

sold

of

(only real

Sale

in

property

favor of

may

be

a. Who may redeem: judgment obligor or his successor in interest and redeeming creditor or redemptioner b.

Period of redemption: 1 year from date of registration of certificate of sale

WITHIN THE 1-YEAR PERIOD OF REDEMPTION a. Rents, earnings and income of property during redemption belong to Judgment Obligor b. Possession remains with Judgment Obligor c. No limit as to the number of times a property may be redeemed d. Notice requirement for redemption – must be given to Sheriff, RD; notice must indicate payment of taxes and liens; otherwise, these wont be paid by subsequent redemptioner e. Effect of redemption by judgment obligor – no further redemption shall be allowed and he is restored to his estate.

Effect of No Redemption a. Upon expiration of redemption period, judgment obligor shall be divested of all his rights, title, interest and claim to the property and the same shall be vested in the purchaser (Sec 33) b. Purchaser entitled to Deed of Final Conveyance and delivery of possession of the property. Sheriff to execute the Final Deed of Conveyance, but there is a need to file a Petition for Issuance of a New Title and with respect to possesion to file an ex parte Motion for Writ of Possession Remedy when judgment is unsatisfied A. Motion to require judgment obligor or debtor of judgment obligor to appear and be examined concerning his property and income • Provided the court or commissioner is within the city where such obligor resides. • Any other person may also be compelled to attend and testify on such matters B. Motion to require Judgment Obligor to pay in fixed monthly installments where his salary or earnings are more than necessary for the support of his family.

Remedy where debtor of Judgment Obligor denies the debt or another person claims the property: • File an action, with leave of the executing court, for the recovery of debt or interest and forbid a transfer or disposition of such debt or interest within 120 days from notice of order.

Entry of Satisfaction of Judgment • Clerk of Court shall enter satisfaction of a judgment in the court docket and in the execution book upon the filing of the Sheriff's Return or admission to the satisfaction of judgment by Judgment Obligee. • If judgment is satisfied other than by execution, Judgment Obligor may demand of the Judgment Obligee to execute an admission to the satisfaction of judgment or file a Motion for an Order to enter satisfaction of judgment.

RECOGNITION OF FOREIGN JUDGMENT EFFECT OF IN REM FOREIGN JUDGMENT AND IN PERSONAM FOREIGN JUDGMENT • For an action in rem, the foreign judgment is deemed conclusive upon the title to the thing.

• In an action in personam, the foreign judgment is presumptive, and not conclusive, of a right as between the parties and their successors in interest by a subsequent title. • In both cases, the foreign judgment is susceptible to impeachment in our local courts on the grounds of want of jurisdiction or notice to the party, collusion, fraud, or clear mistake of law or fact. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005) FILING FEE OF ENFORCEMENT OF FOREIGN MONEY JUDGMENT • Foreign judgment may be deemed as subsumed under Section 7(b)(3) of Rule 141, i.e., within the class of "all other actions not involving property." Thus, only the blanket filing fee of minimal amount is required. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005) HOW TO ENFORCE IN REM FOREIGN JUDGMENT • It is clear then that it is usually necessary for an action to be filed in order to enforce a foreign judgment, even if such judgment has conclusive effect as in the case of in rem actions, if only for the purpose of allowing the losing party an opportunity to challenge the foreign judgment, and in order for the court to properly determine its efficacy. Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its validity. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005) FRAUD AS GROUND TO SET ASIDE FOREIGN JUDGMENT IS EXTRINSIC FRAUD • Fraud to hinder the enforcement within the jurisdiction of a foreign judgment must be extrinsic, i.e., fraud based on facts not controverted or resolved in the case where judgment is rendered or that which would go to the jurisdiction of the court or would deprive the party against whom judgment is rendered a chance to defend the action to which he has a meritorious defense. Intrinsic fraud is one which goes to the very existence of the cause of action is deemed already adjudged, and it, therefore, cannot militate against the recognition or enforcement of the foreign judgment. (Asiavest v. CA G.R. No. 110263, July 20, 2001)