Notes- Civilprocedure_finals.docx

Notes in Remedial Law Civil Procedure_Finals

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REVIEWER IN CIVIL PROCEDURE (NACHURA) RULE 18 PRE TRIAL 1.

Pre-trial is a procedural device hold prior to the trial for the court to consider the following purposes: (PSNPLAPAO) Possibility of amicable settlement or submission to the alterntove modes of dispute resolution; Simplification of issues; Necessity and desirability of amendments to the pleadings; Possibility of obtaining stipulations or admission of facts or of documents to avoid unnecessary proof; Limitation to the number of witnesses; Advisability of preliminary reference of issues to a commissioner; Propriety of rendering judgement on the pleadings, or summary judgment, or dismissal of action should a valid ground be found to exist; Advisability and necessity of the suspending the proceedings; Such Other matters as may aid in the prompt disposition of the action

2.

Pre-trial is mandatory in civil cases and in all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, MTC, METC, MCTC.

3.

Preliminary Conference is mandatory in both Civil and Criminal Cases under the Rules on Summary Procedure.

4.

Effect Of Failure To Conduct A Pre-Trial “It is elementary and plain that the holding of such pre-trial conference is mandatory and failure to do so is inexcusable. When the law or procedure is so elementary, such as the provisions of the Rules of Court, not to know it or to act as if one does not know it constitutes gross ignorance of the law. It sadly amounts to gross ignorance and warrants a corresponding penalty.” 5.

The judge is mandated to refer the parties and/or their counsels to the Philippine Mediation Center for purposes of mediation.

6.

Pre-trial is set at the instance of the PLAINTIFF. The Plaintiff should file a motion to set the case for pre-trial FIVE (5) DAYS (AM No. 3-99) after the last pleading has been served and filed. The motion should be ex-parte or does not need to be the subject of a hearing.

7.

The last permissible pleading that a party can file is the reply to the answer to the last pleading asserting a claim. Where the last pleading has not yet been served and filed, the case is not yet ready for pre-trial. However, the “last pleading” need not be literally construed as one having been served and filed. For purposes of the pre-trial, the expiration of the period of filing the last pleading, without it having been filed, is sufficient.

8.

If the plaintiff failed to file such motion within the given period the Branch Clerk of Court shall issue a Notice of Pre-Trial.

9.

Notice of Pre-Trial; (Section 3, Rule 18) The Notice of Pre-Trial shall be served on the counsel of the party, if the latter is represented by counsel. THE COUNSEL SERVED WITH SUCH NOTICE IS CHARGED WITH THE DUTY OF NOTIFYING THE PARTY REPRESENTED BY HIM. Service is made on the party ONLY if he has no counsel. Sending a notice of pre-trial stating the date, time and place of the trial is mandatory. Its absence will render the pre-trial and subsequent proceedings void. 10. Appearance of Parties; (Section 4; Rule 18)

Notes in Remedial Law Civil Procedure_Finals

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GENERAL RULE: It is the duty of the parties and their counsel to appear at the pre-trial. EXCEPTION: The non-apperance of a party may be excused ONLY: -if a valid cause is shown therefor; or -if a representative shall appear in his behalf fully authorized in writing to enter into a amicable settlement, to submit to alternative modes of dispute resolution, and enter into stipulation or admission of facts and of documents. The written authority must be in the form of a Special Power of Attorney. An incomplete authority does not satisfy the requirements of the Rules and should be deemed the equivalent of having no authority at all. 11. Mediation is a part of pre-trial and failure of the plaintiff to appear therein merits sanction on the part of the absent party. 12. Effect of failure to appear by the Plaintiff; (Section 5, Rule 18) GENERAL RULE: The failure of the plaintiff to appear shall be cause for the dismissal of the action with prejudice and shall have the effect of an adjudication on the merits, thus final. EXCEPTION: when the court orders otherwise. REMEDY: The plaintiff may appeal the order of dismissal since the dismissal is with prejudice. A dismissal with prejudice is to be considered an adjudication on the merits of the case, where the proper remedy is appeal under Rule 41. 13. Effect of failure to appear by the Defendant; (Section 5, Rule 18) GENERAL RULE: The failure of the Defendant to appear in the pre-trial shall be cause to allow the plaintiff to present his evidence ex parte and for the court to render judgement in the basis of the evidence presented by the plaintiff. REMEDY: The order of the court allowing the plaintiff to present his evidence ex-parte does not dispose of the case with finality. The order is, therefore interlocutory order; hence not appealable. The defendant who feels aggrieved by the order may move for the reconsideration of the order, and if denial is tainted with grave abuse of discretion, he may file a petition for certiorari. 14. Pre-trial Brief:Filing (Section 6; Rule 18) The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof AT LEAST THREE (3) DAYS BEFORE THE DATE OF THE PRE-TRIAL. 15. Pre-trial brief: Content (Section 6, Rule 18) The pre-trial brief shall contain the following matters: (SSIDMN) Statement of their willingness to enter into an amicable settlement or to an alternative mode of dispute resolution, indicating the desired terms thereof; Summary of admitted facts and proposed stipulation of facts; Issues to be tried or resolved; Documents or exhibits to be presented, stating the purpose thereof; Manifestation of their availed of or their intention to avail of the discovery procedures or referral to commissioners; and Number and names of witnesses, and the substance of their respective testimonies. 16. GENERAL RULE: No evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in-chief other than those that had been earlier identified and pre-marked during the trial.

Notes in Remedial Law Civil Procedure_Finals

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EXCEPTION: If allowed by the court for good cause shown. 17. Effect of failure to file a Pre-Trial Brief; (Section 6, Rule 18) The failure to file a pre-trial brief shall have the same effect as failure to appear at the pre-trial. PLAINTIFF: such failure shall be cause of the dismissal of action. DEFENDANT: such failure shall be cause to allow the Plaintiff to present his evidence in ex-parte. The dismissal of a complaint for failure to file a pre-trial brief is discretionary on the part of the trial court. 18. ONE DAY EXAMINATION OF WITNESS RULE (A.M. No. 03-1-09-SC, July 13, 2004) Adherence to the One Day Examination of Witness Rule shall be required where the witness shall be fully examined in one day only, subject to the court’s discretion during the trial on whether or not to extend the examination for justifiable reasons. 19. MOST IMPORTANT WITNESS RULE (A.M. No. 03-1-09-SC, July 13, 2004) When no settlement has been effected, the court shall follow the MOST IMPORTANT WITNESS RULE, where the court shall determine the most important witnesses, limit the number of such witnesses and require the parties and/or counsels to submit to the branch clerk of court the names, addresses, and contact numbers of the witnesses to be summoned by subpoena. 20. PRE-TRIAL ORDER/ RECORD OF PRE-TRIAL; (Section 7, Rule 18) The proceedings in the pre-trial shall be recorded. The Pre-Trial Order shall be issued within TEN (10) DAYS after the termination of the pre-trial. GENERAL RULE: Should the action proceed to trial, the pre-trial order shall explicitly define and limits the issued to be tried, and controls the subsequent course of the action unless modified before trial to prevent manifest injustice. EXCEPTION: The rule should not, however, be construed to refer only to those issues mentioned in the pre-trial order. It also includes issues that are implied from those written in the order. 21. Details of the Pre-Trial: (MAAA) Matters taken up in the conference; Action taken thereon; Amendments allowed to the pleadings; and Agreements or admissions made by the parties as to any matters considered. 22. PRE-TRIAL IN CIVIL CASES VS. PRE-TRIAL IN CRIMINAL CASES Distinction As to manner of commencement

As to the time of commencement

Pre-Trial In Civ Cases Pre-Trial In Crim Cases Set when the Plaintiff moves Ordered by the court and ex-parte to set the case for no motion to set the case pre-trial for pre-trial is required from either the prosecution or the defense. Made after the last pleading Ordered by the court after has been served and filed. arraignment and within 30 days from the date the court acquired jurisdiction over the person of the

Notes in Remedial Law Civil Procedure_Finals

As to the possibility of amicable settlement

As to form

As to the sanction imposed upon failure to appear by a party As to the submission of Pre-Trial Brief

4 accused. Considers the possibility of Does not include the an amicable settlement is an possibility of amicable important objective. settlement of criminal liability as one of its purpose. The agreements and All agreements or admissions made in the pre- admissions made or trial are not required to be entered during the pre-trial signed by both the parties conference shall be reduced and their counsels. in writing and signed by BOTH the accused AND However, the SC now counsel; otherwise, they requires the proceedings cannot be used against the during the preliminary accused. conference to be recorded in the Minutes of Preliminary Conference and signed by both parties and/ or counsel. Imposed upon the plaintiff Imposed upon the counsel and the defendant. for the accused or the prosecutor. Required.

Not specifically required.

RULE 30 TRIAL 1.

Trial is the judicial examination and determination of the issues between the parties to the action. It is the judicial process of investigating and determining the legal controversies between or among the parties.

2.

Trial terminates when the judgment begins.

3.

TRIAL VS. HEARING Trial Hearing It is a stage of civil case where the Broader term and is not confined to parties adduce evidence in support of the trial and presentation of the their respective claims or defenses. evidence between because it embraces several stages in the litigation. Includes the pre-trial and the determination of granting or denying a motion.

4.

GENERAL RULE: Judgment should not be rendered without trial on the material facts in the pleadings of the parties which are in good faith controverted. EXCEPTION: Trial is unnecessary in the following cases (PPPCFP) Pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court; Pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment;

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Parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress; Complaint has been dismissed with prejudice, or when the dismissal has the effect of an adjudication on the merits; Falls under the operation of the Rules on Summary Procedure; Parties agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If however, there is no agreement as to all the facts in the case, trial may be held only as to the disputed facts. 5.

Notice of Trial; (Section 1, Rule 30) The clerk of court shall notify the parties of the date of the trial in such manner as to ensure the receipt of the notice at least FIVE (5) DAYS before such date. 6.

Adjournments and postponements; (Section 2, Rule 30)

GENERAL RULE: A court may adjourn a trial from day-to-day, and to any stated time, as the expeditious and convenient transaction of business may require. EXCEPTION: The court has no power to adjourn a trial for a period longer than one month for each adjournment, nor more than three months in all. EXCEPTION TO THE EXCEPTION: When authorized in writing by the Court Administrator, the Supreme Court. 7.

Postponement on the ground of absence of evidence; (Section3, Rule 30) Requisites of Motion to Postpone Trial for absence of evidence: (M,S, MD) Motion for postponement must be filed; Motion must be Supported by an affidavit or Sworn Certification showing the, Materiality or relevancy of the evidence, and that Due Diligence has been used to procure it.

8.

Postponement on the ground of illness; (Section4, Rule 30)

Requisited of Motion to postponement of Trial for Illness of Party or Counsel: (M,S,PI,C) Motion for postponement must be filed; Motion must be supported by an affidavit or Sworn Certification showing that, the Presence of the party or counsel at the trial is indispensable, and that the Character of his illness is such as to render his non-attendance excusable 9.

Postponement or continuance; not a matter of right The grant or denial of a motion for postponement is not a matter of right and solely depends on the sound discretion of the court