Civil Procedure

NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW edstf@yahoo.
com
JURISDICTION IN CIVIL CASES

SUPREME COURT
A. Supreme Court has original: I. Exclusive Jurisdiction over - Petitions for issuance of writs of certiorari, prohibition, and mandamus against the following: a. Court of Appeals b. Commission on Elections c. Commission on Audit d. Sandiganbayan II. a. b. c. d. e. III. Concurrent Jurisdiction with the Court of Appeals over Petitions for issuance of writs of certiorari, prohibition, and mandamus against the following: National Labor Relations Commission under the Labor Code Civil Service Commission Central Board of Assessment Appeals Court of Tax Appeals and Quasi-Judicial Agencies Regional Trial Courts and lower courts
Concurrent Jurisdiction with the Court of Appeals and the Regional Trial Courts over a. Petitions for habeas corpus and quo warranto b. Petitions for issuance of writs of certiorari, prohibition, and mandamus against the lower courts or bodies Concurrent Jurisdiction with the Regional Trial Courts over a. Actions affecting ambassadors and other public ministers and consuls
IV.
B. Supreme Court has appellate jurisdiction over: I. Notice of Appeal a. From the Regional Trial Courts or the Sandiganbayan in all criminal cases involving offenses for which the penalty imposed is reclusion perpetua, life imprisonment or death, and those involving other offenses which, although not so punished, arose out of the same concurrence or which may have been committed by the accused on the same occasion b. Automatic review in criminal cases where the Regional Trial Court or the Sandiganbayan imposes the death penalty II. Petition for review on Certiorari over: a. Appeals from the Court of Appeals b. Appeals from the Sandiganbayan on pure questions of law, except cases where the penalty imposed is reclusion perpetua, life imprisonment or death c. Appeals from the Regional Trial Courts exercising original jurisdiction in the following cases: c-1. If no question of fact is involved and the case involves:
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NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW edstf@yahoo.com
Constitutionality or validity of treaty, international or executive agreement, laws, presidential decree, proclamation, order, instruction, ordinance or regulation - Legality of a tax, impost, assessments or toll or penalty in relation thereto - Jurisdiction of lower courts c-2. All cases in which only errors or questions of law are involved c-3. Special Civil Action of Certiorari filed within thirty (30) days with the: - Commission on Elections - Commission on Audit -
COURT OF APPEALS
A. The Court of Appeals has original: I. Exclusive Jurisdiction over: - Actions for annulment of judgements of Regional Trial Courts II. Jurisdiction over: - The issuance of writs of certiorari, prohibition, mandamus, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction a. b. c. d. Exclusive Appellate Jurisdiction over All final judgements, decisions, resolutions, orders or awards of the Regional Trial Courts and Quasi-Judicial agencies, instrumentality, boards or commissions, including the: Securities and Exchange Commission Social Security Commission Employees Compensation Commission Civil Service Commission Except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines, the provisions of Batas Pambansa Blg. 129, and of subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948
III.
REGIONAL TRIAL COURT

A. The Regional Trial Court has exclusive jurisdiction: 1. In all civil actions in which the subject of the litigation is incapable of pecuniary estimation 2. In all civil actions which involve title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds twenty thousand pesos (P 20,000.00) or, for civil actions in Metro Manila, where such value exceeds fifty thousand pesos (P 50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
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NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW edstf@yahoo.com 3.
4.
5. 6. 7. 8.
In all actions in admiralty and maritime jurisdiction where the demand or claims exceeds two hundred thousand pesos (P 200,000.00) 1 or in Metro Manila where such demand or claim exceeds four hundred thousand pesos (P400,000) In all matters of probate, both estate and intestate, where the gross value of the estate exceeds two hundred thousand pesos (P 200,000) or, in probate matters in Metro Manila, where such gross value exceeds four hundred thousand pesos (P 400,000) In all actions involving the contract of marriage and marital relations. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds two hundred thousand pesos (P 200,000) or, in such other cases in Metro Manila, where the demand, exclusive of the above-mentioned items exceed four hundred thousand pesos (P 400,000).
B. The Regional Trial Court has appellate jurisdiction over all cases decided by the: 1. Metropolitan Trial Courts 2. Municipal Trial Courts 3. Municipal Circuit Trial Courts within their respective territorial jurisdiction
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS

A. Exclusive Original Jurisdiction 1. Over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate or amount of the demand does not exceed two thousand pesos (P 200,000) or, in Metro Manila, where such personal property, estate or amount of the demand does not exceed four hundred thousand (P 400,000), exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs, the amount of which must be specially alleged; Provided, that interest, damages of whatever kind attorneys fees, litigation expenses, and costs shall be included in the determination of the filing fees; Provided further, that where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims
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B.P. Blg. 129 as amended by R.A. No. 7691, approved on March 25, 1994, provides that After five (5) years from effectivity of R.A. No. 7691, the jurisdictional amounts mentioned in Section 19 (3), (4), and (8); and Section 33 (1) of B.P. Blg. 129, as amended by R.A. No. 7691, shall be adjusted to two hundred thousand pesos (P 200,000). Five years thereafter, such jurisdictional amounts shall be adjusted further to three hundred thousand pesos (P 300,000); Provided, however, that in the case of Metro Manila, the above-mentioned jurisdictional amounts shall be adjusted after five (5) years from the effectivity of R.A. No. 7691 to four hundred thousand pesos (P 400,000).
in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions 2. Over cases of forcible entry and unlawful detainer; Provided, that when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession 3. In all civil actions which involve title to or possession of, real property, or interest therein where the assessed value of the property or interest therein does not exceed twenty thousand pesos (P 20,000) or in civil actions in Metro Manila, where such assessed value does not exceed fifty thousand pesos (P 50,000) exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs; Provided, that in cases of land, not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots B. Delegated Jurisdiction As may be assigned by the Supreme Court to hear and determine cadastral or land registration cases covering lots where there is no controversy or opposition or contested lots where the value of which does not exceed one hundred thousand pesos (P 100,000), such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one or from the corresponding tax declaration of real property.
BASIC ELEMENTS OF PROCEDURE

1. Right
The right must be violated so that an obligation shall arise or a cause of action shall exist. A legal obligation arises from law, contract, quasi-contract, delict or quasi-delict. A cause of action is the wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. The elements of which are as follows: a. a legal right on the part of the plaintiff b. a correlative obligation of the defendant c. an act or omission of the defendant in violation of a legal right 2. Real Party in Interest
It is the party who would be benefited or injured by the judgement. It is one who has an actual or substantial interest in the subject matter of the suit as distinguished to one who has only a nominal interest. A
case filed by a party other than a real party in interest has no standing and will be dismissed for lack of cause of action. 3. Jurisdiction
It is the power or capacity given by the law to court or tribunal to entertain, hear, and determine certain controversies. Jurisdiction may be exercised over: a. the subject matter of the case the authority of the court to hear and decide a particular class of action b. the party to the case the power of the court to bind the parties to its orders and judgements c. the issues of the case the power of the court to decide the issues raised in the pleadings d. the RES (subject of the litigation) the power of the court to dispose a thing that is the subject of the litigation
SUBJECT MATTER SOURCE

It is derived from law (e.g. Constitution, Judiciary Reorganization Act, RA 7691). It is vested by law upon a court. It cannot be a subject of contractual stipulation. General Rule: If the court did not have jurisdiction over the subject matter of the case, then the entire proceedings would be null and void. Exceptions: a) Doctrine of Equitable Estoppel (jurisdiction) In the case of Tijam vs Sibonghanoy, the Court held that where a party to a case knowingly asserted his claim in a court which has no jurisdiction over the subject matter of such claim, such party will not be allowed later on to assail the jurisdiction of the trial court if and when he loses in the proceedings. b) If a case is filed before the MTC and it is later on appealed in the RTC on the
THE PARTY IN THE CASE

proper service of summons (note: In the case of plaintiff, the court acquires jurisdiction over his person the moment he files the case. In the case of the defendant, it is upon proper service of summons.) If the court has no jurisdiction over the party, that party is not bound to follow or obey the orders or judgement of the court.
THE ISSUE IN THE CASE

the allegations and counterallegations in the pleadings
THE RES
the actual physical or constructive control of the court over the thing If the court has no jurisdiction over the thing, it will not be able to dispose the thing and the case becomes moot.
EFFECT
Technically, the court cannot resolve issues that were not raised by the parties. However, under the present rules, the court can resolve issues that are directly related to the issue raised in the pleadings.

sole issue of jurisdiction over the subject matter, the RTC will (if it finds the appeal to be meritorious) set aside the judgement as if the case was filed for the first time in the RTC. It is determined by a reading of the allegation in the complaint
HOW DETERMINED
It is determined by the sheriffs return indicating proper service of summons. [Note: If there is a voluntary appearance on the part of the defendant before the court, service of summons is no longer required. There is voluntary appearance by: a) actual physical appearance; b) if the defendant should file a pleading asking for an affirmative relief.] However, the filing of a motion to dismiss does not waive the requirement of summons in as much as the motion to dismiss contains only prayer for negative relief.
It is determined by the reading of the allegations in the complaint and the answer.
It is determined by the actual, physical or constructive control of the court over the thing.
CIVIL PROCEDURE
Complaint is filed by the plaintiff Summons is served by the sheriff to the defendant Answer is filed by the defendant Pre-trial Conference
Execution
Post-judgement Remedies
Judgement
Trial on the Merits
Real Property Disputes
Ownership e.g. accion reinvindicatoria, not reconveyance suit, action to exceed cancel title, action to quiet year title, reversion suit, etc. e.g. eject-
Interest in or encumbrance upon e.g. cancellation of mortgage, foreclosure of mortgage, action for easement of right of way, partition, etc.
Possession exceeds 1 year 1 e.g. accion publiciana has
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Other Real Property

Within Metro Manila MTC < P 50,000.00 < RTC Outside Metro Manila MTC < P 20,000.00 < RTC
Money Claims, Recovery of Personal Property

Within Metro Manila MTC < P 400,000.00 < RTC Outside Metro Manila MTC < P 200,000.00 < RTC
Joinder of Causes of Action

A party may join as many causes in one action, provided such causes involve the same parties. In other words, joinder of causes is allowed, provided, there is also joinder of parties. If there is a misjoinder of parties and several causes are joined in an action, the litigation will be protracted unnecessarily. A misjoinder of parties is a procedural error. However, it is not a ground for the dismissal of the case. The remedy of the misjoined party is to file a motion for a separate trial of the cause of action against him or to file a motion to be dropped as a party so that the plaintiff can institute a separate action against him. A party may be dropped or added at the discretion of the court. Misjoinder of parties is not a jurisdictional error. Hence, the misjoined party must immediately question the improper misjoinder of causes; otherwise, any defects are cured.
Totality Rule
For purposes of determining the jurisdictional amount involved in a case, all the damages claimed, whether actual, moral or nominal, etc., plus attorneys fees are added. If there is a joinder of parties, then the totality of all the claims of the party/ies are obtained. However, the amount will not include future interest and other unliquidated amounts.
Parties to an Action
Natural Person Juridical Personality Partnership Corporation State Agent Trustee Juridical Person Class w/o Representative Party Entity Party
Public created under Special Law
Private created under General Corp. law Domestic Foreign
authorized not authorized to do busi- to do business ness in the in the Phils. Phils.
Parties from the Point of View of Importance
Real Party in Interest Party
Indispensable Party
Necessary
A real party-in-interest has a direct and actual interest in the case; it is a party who will be benefited or prejudiced by the judgement. Every suit must be brought for and in behalf of a real party-in-interest. An indispensable party is a real party-in-interest; he must be impleaded; otherwise, the case cannot proceed. Failure to implead an indispensable party is a fatal error. Necessary party is a mere nominal party; he may or may not be impleaded. A necessary party is impleaded only to give a complete relief to all the parties.
Natural Persons
a. In the case of minor, their legal guardian must be joined in the suit; incompetent persons are treated just like minors.
b. In the case of married persons, they should be joined with their spouse, except in suits involving the exclusive property of each spouse.
State
The State has the right to sue but it can only be sued with its consent (Doctrine of State Immunity). However, in the following instances, State immunity is deemed waived: a. if there is an express waiver of the State as when the State files the suit, it opens itself to a counterclaim b. if there is an implied waiver, as when the State enters into an ordinary commercial contract, then it descends to the level of an individual c. if there is a specific law allowing the State to be sued d. if it would be inequitable for the State to raise the defense of immunity, as was held in the case of Aberca vs Ver Note: Although State immunity can be waived, it does not follow that State property can be the subject of execution. It is illegal for the State property to be executed as it will violate the constitutional provision that all public property can only be disposed in accordance with law.
Corporations
A foreign corporation not registered to do business in the Philippines can only sue in Philippine Courts on the basis upon isolated transaction (a transaction not recurring).
Class Suit
This is an exception to the requirement that all indispensable parties should be impleaded in the action. Elements of a Class Suit 1. the subject matter must be of common interest 2. the parties are so numerous that it would be impracticable to bring them all to court 3. a sufficiently qualified representative brings the suit A class suit is based primarily on common injury, the absence of which is fatal to the suit. In the case of Newsweek vs CA, the Supreme Court held that a libel suit that was brought for and in behalf of several sugar planters against Newsweek for damages to their reputation arising from alleged libelous publication, may not be brought as a class suit because every sugar planter has his own reputation. There was held to be no common interest. However, in the case of Sulo ng Bayan vs Araneta, the Supreme Court held that there was a common interest considering that the members of
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the class sought to be represented will suffer a common injury from the acts of the defendant of driving them away from their place of residence.
Entity without Juridical Personality

Under the present law, a group of persons commonly known to be doing business as a group but without juridical personality may be sued under the name by which they are known. The law, however, requires the defendants to identify and give the address of the other defendants when they file their answers.
Splitting a Cause of Action

Several actions are brought for several elements or parts of a same cause. Splitting a cause of action will violate the following: a. the prohibition against forum shopping b. the rules on litis pendentia c. the rule on res adjudicata There is forum shopping when several cases are prosecuted before several courts or agencies on the same issue. Forum shopping is penalized by the dismissal of all the cases and disciplinary action against the legal counsel. There is litis pendentia when a case is filed for a cause of action that is being litigated in another pending case. If there is a litis pendentia, one of the cases may be pleaded in abatement of the other. There is res adjudicata if a case has been finally decided and the judgement has become final and executory. The judgement shall bind all the parties and their successor-in-interest. All the matter and issues between the parties can no longer be questioned in another proceeding between them (law of the case). Hence, if an action is brought for an issue that is considered res adjudicata, the suit shall be dismissed. Venue
Criminal Law Jurisdictional Real Action
Civil Law Procedural Personal Action
Venue is the place where an action is instituted.

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Venue is jurisdictional in criminal cases. This means that the criminal case must be instituted in the place where the offense was committed; otherwise, the proceedings will be null and void. In civil cases, venue is merely a procedural requirement. This means that if improper venue is not assailed seasonably via motion to dismiss, then the defect is deemed waived or cured. Improper venue is a procedural defect that must be assailed as soon as possible. If it is not corrected on time, it can no longer be questioned on appeal.
Real Actions
It is any action that involves the recovery of ownership, interest in, encumbrance upon or possession over real property. In real actions, venue is laid where the property is located; if the real property is found in several places, venue may be laid in any of the places where a portion thereof is located. An action for rescission of a contract that would have the effect of conveying real property is a real action.
Personal Actions
A personal action is any action other than real. In personal action, venue is laid down as follows: a. where the parties are residence of the Philippines: - it is the place of residence of the plaintiff; or - it is the place of residence of the defendant; or - if there is a stipulation on venue in an agreement and the stipulation is not exclusive and restrictive, then the place stipulated can also be a venue Note: If the stipulation is exclusive and restrictive, then the venue can only be laid in the place stipulated. b. where one of the parties is a non-resident of the Philippines: - place where the non-resident can be found - where one is involve in a quasi in rem, it is the place where the property of the defendant can be found or the residence of the plaintiff c. special rules - In the case of Polytrade vs Blanco, the Supreme Court held that if a contract exclusively stipulates a venue, then it will bar any suit that is instituted in another place not stipulated. The contract, however, must have been fairly and freely agreed upon. - In the case of Sweet Lines vs Teves, the Supreme Court held that where the contract involved is a contract of adhesion and the subject matter thereof is affected with public policy, an exclusive and restrictive
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stipulation as to venue is considered null and void as it will deprive a party of his day in court.
accion pobliciana, ejectment quasi in rem proceedings
Real Action (venue) In Rem Proceeding (binding effect) land registration proceedings
Personal Action (venue) In Personam Proceeding (binding effect) almost all actions
In Rem Proceedings (binding effect of judgement)

The defendant in an in rem proceeding is theoretically the entire world and the general public; summons is served normally via publication. (e.g. land registration proceedings, settlement of estate, naturalization, etc.)
In Personam Proceedings
Only the parties who were properly summoned are bound by the action. Generally, almost all types of actions are in personam. Summons is served via: a. personal service b. substituted service c. extra-territorial service
Quasi In Rem Proceedings

Quasi in rem
recovery of money or property a. properties of the non-resident defendant must first be attached by the court b. the court shall allow extra-territorial service of summons (by publication) actions concerning personal status or family relations a. extra-territorial service of summons (by publication)
In quasi in rem cases, the defendant is a non-resident always. Hence, the court is unable to serve summons personally. The remedy is for extra-territorial service of summons to be effected.
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There are two types of quasi in rem cases, the first concerns recovery of property or money and the second type involves personal status and family relations. In the first type, a prior attachment of the property found in the Philippines of the absent defendant is required before extra-territorial service of summons could be allowed. Attachment insures that the proceedings will not be an exercise of futility, as there will be properties available to satisfy a favorable judgement for the plaintiff.
Duty of a Lawyer if his Client Dies

In case a party should die, the counsel concerned is required to notify the court of such fact within thirty (30) days from the time of death. Effect of Death
Plaintiff Purely Personal Action Action for Recovery Property or Money of case is dismissed substitution of parties Defendant case is dismissed substitution of parties
Substitution
administrator/executor of the estate heirs of the deceased
Complaint Execution
Summons
Answer
Pre-trial
Trial
Judgement judgement
Post-
allegation 1--------issue-------counter-allegation 1 allegation 2--------issue-------counter-allegation 2 allegation 3--------no issue
evidence is received
Pleadings
Primary Pleading e.g. complaint, answer, etc Secondary Pleading e.g. motions
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Pleadings
It refers to a collective noun that refers to all the documents or related papers that are filed by the parties in court. Pleadings are of two types. The first one is called the primary pleading. This is a pleading that is filed by a party on the main case. (e.g. complaint, answer, petition, third party complaint, complaint in intervention, etc.) The reliefs prayed for in the primary pleadings are either granted or denied in the judgement. The primary pleading contains the primary actions or the defense of the complaint. The second type of pleadings are called the secondary pleadings. These are pleadings that pray for remedies concerning incidental matters. (e.g. motions, manifestations, etc.) Generally, the remedies prayed for in the secondary pleadings are either granted or denied by the court in an interlocutory order.
Basic Rules for Pleadings

1. What is alleged, can be proved. 2. What is not alleged can not be the subject of proof. Note: However, if evidence is objectionable but the opposing party fails to assail the evidence on time, such evidence will be admitted. 3. All the necessary allegations must be stated; otherwise, they are deemed waived. 4. Only the ultimate facts must be stated in the pleadings. Note: An ultimate fact refers to the very basic element of the cause of action or defense of any party. Defenses in Litigation
Effective Defense Defective Defense
Affirmative Defense Actionable
Valid Negative Defense
General Denial Document not
Silence
Negative Pregnant
An
that is properly denied
Affirmative Defense
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It is a defense that admits hypothetically the allegation in the complaint but at the same time raises a valid legal justification to defeat the claim. (e.g. prescription, violation of the statute of fraud, condonation, legal merger, payment, etc.)
Valid Negative Defense

It consists of a denial that is specific. A denial is specific, if the party states the reasons, facts, and/or circumstances as the basis for the denial. A valid denial must traverse the points raised in the allegations. A denial based upon lack of knowledge sufficient to form a basis to determine the validity of the allegation is permitted. It is still considered a valid denial.
General Denial
A general denial is a plain denial that alleges nothing specific by way of facts and/or circumstances. It will result in an admission of the allegation in the complaint.
Silence
Self-explanatory. It will also result in an admission.
Negative Pregnant
It denies the peripheral or subsidiary aspect of the allegation but it fails to deny the main substance of the allegation. It also results in an admission.
Actionable Document
An actionable document is the document that is the very basis of the cause of action. (e.g. Bounced check in a collection case) As a rule, whenever an actionable document is alleged in a pleading, it must be specifically denied under oath in the opposing pleading. This is done by having the answer notarized or attaching an affidavit of denial to the answer. If there is failure to deny under oath the actionable document, the genuineness, authenticity and due execution of the document is deemed admitted. The exceptions to the rule are: 1. If the party who is required to make the denial is not a party to the instrument (res inter alios acta atters nec). This rule is based on the principle of res inter alios acta which means that a party will not be prejudiced by the acts of another.
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2. If the party who alleged the actionable document refuses to allow the opposing party to inspect the document after the court has previously given an order to allow inspection.
Default (A Process)
Complaint 15 days from receipt of summons to file the answer Summons
Answer is filed upon motion of the plaintiff Pre-Trial
Answer is not filed
Court issues an order of default
Trial on the Merits Court to render require judgement based presentation of Judgement parte (summary) Post-judgement Execution Judgement by default on the pleadings evidence exthe Court may
Consequences of an Order of Default

The defendant loses his standing to participate in the proceedings (e.g. cannot cross-examine witnesses; cannot present evidence etc.). However, the defendant is still required to be served with copies of all the pleadings or orders.
Remedies of a Default Defendant
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Motion to Declare Defendant in Default
Order of Default
Judgement by Default
1. file an answer 1. Motion to lift the order of 1. Appeal 2. file a motion or opposition to default on the grounds of: 2. Motion for New Trial the motion to declare defena. fraud 3. Motion for Reconsidedant in default b. accident ration c. excusable neglect 4. Rule 38 Petition for d. mistake Relief and that the defendant 5. Rule 47 Independent has a meritorious defense Action to Annul Judgement 6. Rule 65 Certiorari
Under Summary Procedure
filed Complaint is filed Summons is served Answer not filed
Court render pleading
can
motu
propio
judgement based on the
Instances when Default is not allowed

1. Petitions to Declare the Nullity of Marriage 2. Petitions for Legal Separation Note: This is so because the State is an interested party in marriage. Hence, collusion is prohibited. In the above cases, in the event that the other spouse fails to oppose, the State will intervene.
Notes on Default
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1. In those cases falling under the regular procedure, a motion to declare defendant in default must first be filed by the plaintiff before the court can issue an order of default. 2. However, in those cases falling under summary procedure (e.g. ejectment cases, claims not exceeding P 10,000.00), the court can motu propio render a judgement based on the pleadings if the defendant did not file his answer within the 10 day period. 3. The time to file an answer is as follows: a. for cases falling under the regular procedure, 15 days from receipt of summons b. for foreign corporation with a local agent, 30 days c. where summons was served via extra-territorial service (by publication), 60 days d. for cases under the summary procedure, 10 days from receipt of summons 4. Once the court issues an order of default, the defendant loses his standing to participate in the proceedings. However, he is still entitled to notice. 5. The defendant may avert being defaulted by filing an answer promptly before he received an order of default. 6. The defendant can file a motion to lift the order of default provided that no judgement of default has been rendered. Such a motion is based on the ground of extrinsic fraud, accident, mistake, excusable neglect and provided that the defendant has a meritorious defense. After the defendant received the judgement by default, he may avail any of the post-judgement remedies. 7. In case the defendant is declared in default, the court may choose any of the following: a. render a judgement based on the pleadings b. require the plaintiff to present evidence ex- parte on the theory that the interest of justice will be best served if evidence is presented. 8. A judgement by default is not necessarily in favor of the plaintiff. If the allegations in the complaint are insufficient or the evidence ex- parte is likewise insufficient, the court will dismiss the case.
Analogous Cases of Default

At the pre-trial conference, the plaintiff and the defendant are both required to appear together with their counsel. If the plaintiff fails to appear or his lawyer appears without authority, the defendant can orally move the court to declare the plaintiff as non-suited. Furthermore, the court will allow the defendant to present evidence ex-parte on his counterclaim. If the defendant fails to appear or his lawyer appears without authority, the plaintiff can orally move the court to declare defendant as in default. Furthermore, the court will allow the plaintiff to present evidence exparte.
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Note: The party who is declared non-suited or in default may file a motion for reconsideration so that the order will be set aside.
as to form (e.g. clerical mistakes) Note: may be made any time as a matter of right
Amendments to pleadings
if it changes the cause of action as to substance if it changes the theory of the defense
amendment may only be made with leave of court
after receipt Time of receipt of responsive pleading t amendment will be restrictive; before receipt amendment may be made as a matter of right it will only be allowed if amendment is meritorious Pre-trial
Notes on Amendments to Pleadings

1. A formal amendment refers to the correction of typographical errors. These are amendments that can be done any time as a matter of right. 2. A substantial amendment has the effect of altering or changing the theory of the case, cause of action, defenses, etc. Substantial amendments may be done as a matter of right before receipt of the responsive pleading sought to be amended. After receipt of the responsive pleading, an amendment could only be done with leave of court. Note: Generally, after pre-trial, amendments are seldom allowed except if the amendment is meritorious.
3. How to make amendments?
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The amended pleading must contain all the amendments properly underlined. Once admitted, the amended pleading supersedes the previous pleading. 4. Amendments to conform with the evidence If during the trial, evidence was admitted but which evidence does not prove any allegation in the pleading, the court may allow the pleading to be amended to conform to the evidence presented. 5. Amendments that cannot be permitted are: a. an amendment that cures a jurisdictional defect; an amendment that purports to confer jurisdiction upon the court, where none existed before b. where amendment is for dilatory purposes c. where amendments will alter the cause of action or the defense to the prejudice of the opposing party (e.g. if the amendment is sought to be made after the other party has already presented his evidence) 6. Amendments as compared to supplements An amendment supplants and replaces the pleading that was amended, while a supplemental pleading is considered as an appendix or annex to the previous pleading. (e.g. bill of particulars) Service
of notices, pleadings, orders (NPO) personal service service by mail substituted service of summons
personal service substituted service extra-territorial service by publication by mail other means
Some Basic Points with respect to Service

1. If a counsel represents a party then service to counsel is service in law and service to the party is not service under the law. 2. A counsel of record remains as counsel until he withdraws.
Service of Notice, Pleadings, and Orders

a. Personal Service of NPO It is done by giving a copy personally to the party or if he is represented by a counsel, to his counsel. A copy of the NPO may be left at the partys residence or principal office between the hours of 8:00 a.m. to 6:00 p.m. with a person of sufficient age and discretion who is in charge of the office.
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b. Service by Mail of NPO If personal service could not be effected or there is great difficulty in pursuing personal service, service by mail may be allowed. However, the party making the service by mail is required to prepare a written explanation as to why personal service could not be effected. This explanation must be contained in the pleading to be served. Service by mail could be done through registered mail or ordinary mail. If it is done by a registered mail, there must be an instruction to the postmaster to return the parcel to the sender after 10 days if undelivered. If service is done by ordinary mail, the party making the service is required to prepare an affidavit of service indicating the circumstances as to how the mail matter was sent. The proof of service for registered mail is the return card; and the proof of service for ordinary mail is the affidavit of service. In the case of Gabas vs CA, the Supreme Court held that the day of mailing is considered as the day of filing, provided that the mail matter was actually received. c. Substituted Service of NPO This is done only if there is a failure of personal service and service by mail. In substituted service, the copy of what is to be delivered will be sent to the clerk of court with proof of failure of personal service and service by mail. Note: This does not cover judgements that are required to be delivered personally or by mail. In those instances, where summons was published, the judgement is also required to be published.
Summons
It is defined as a process (because if a case is filed summons is automatically issued) that is issued by the court against a defendant in a pending case. The purpose of summons is to inform the defendant of the pending case against him and that he is being given a reasonable period of time within which to file his answer; otherwise, the proper steps may be taken for judgement by default against said defendant. Summons is served by the court to enable it to acquire jurisdiction over the person of the defendant. a. Personal Service of Summons This is done by the sheriff who delivers a copy of the summons and the complaint to the defendant in person. If the defendant refuses to receive the summons, the sheriff can tender summons upon said defendant and in the sheriffs return that is prepared, the sheriff can state that the tender
21
was made. If there was proper service of summons, then the service is deemed complete. - Service of summons upon domestic juridical entities Under the present law, summons must be served only upon the president, managing partner, general manager, corporate secretary, treasurer or in-house counsel. - Foreign Juridical Entity Summons could be served upon the designated agent in the Philippines of such foreign entity. - Republic of the Philippines or any of its agencies Summons must be served upon the Office of the Solicitor General. In case the defendant is a local government unit, service of summons could be effected upon the Chief Executive of the Local Government Unit. - Where the defendant is unknown but is a resident Where the whereabouts of the defendant could not be determined, under the present law, publication of summons may be allowed. Apparently, the present law applies this even to resident defendant. Justice Feria opines that publication of summons against a resident defendant, whose whereabouts could not be located, is void as it deprives the defendant of his right to due process and to his right to a day in court. In a long line of cases decided by the Supreme Court, notably the case of Citizens Surety vs Melencio-Herrera, the Supreme Court has ruled that publication of summons is only justified if the defendant is a non-resident. The burden, therefore, falls upon the plaintiff to look for the defendant. - Where the defendant resident is temporarily out of the Philippines publication of summons is also allowed, but again, this is subject to exception in the preceding paragraph. b. Substituted Service This is done by the sheriff only if there is failure of personal service of summons despite diligent efforts. It is done by leaving a copy of the summons and the complaint with a person of sufficient age and discretion, who resides in the place or is in-charge of the office. c. Extra-territorial Service of Summons This is allowed only if there is a showing of failure of personal or substituted service despite diligent efforts. Furthermore, it is only permissible if the defendant is a non-resident. It has three modes: - by publication in a newspaper of general circulation - by sending registered mail to the last known address of the defendant - any other means convenient to the court
22
Extra-territorial service is also known as the long arm statute because it enables a local court to acquire jurisdiction over a person who is residing outside of the territorial jurisdiction of the trial court. Extra-territorial service is a legal fiction and it is intended to enable the defendant to acquire knowledge of the pending suit. It is part of due process. Extra-territorial service is required in quasi in rem cases. The period to file an answer shall not be less than 60 days from the date of last publication.
Defect in the Service of Summons

The defendant may question the failure of the court to acquire jurisdiction over his person by filing a motion to dismiss. Such motion will not waive the defect in the service of summons because the motion to dismiss on the ground of lack of jurisdiction is a negative defense. Failure or defects in the service of summons, however, can be cured by voluntary appearance that may take any of the following form: a. if the defendant files a motion that prays for an affirmative relief (i.e. a motion that requires the plaintiff to do something) b. if the defendant physically appears in court c. if the defendant files another action before another court to restrain the trial court in question Summons can only be served by the sheriff of the branch that issued the summons. However, a motion for special sheriff may be filed for the purpose of enabling the court to deputize another sheriff, a peace officer or a government agency to serve summons.
Notice of Lis Pendens

It refers to the notice annotated in the certificate of title that is on file with the Registry of Deeds. It is a notice that warns the general public of a pending litigation involving the property. Anyone who buys the property buys it at his own risk subject to the outcome of the litigation. In effect, a notice of lis pendens operates as a notice to every one.
Mechanics of Annotation
1. The complaint for the recovery of real property is filed in court. 2. A copy of the complaint together with a formal request for annotation is submitted to the Registry of Deeds. 3. The annotation fee is paid. 4. The annotation is then made. How a Notice is lifted?
23
A motion to lift the notice of lis pendens must be filed in court. If the court grants the motion then the notice is lifted.
Effects of the Notice

1. The notice is considered as a summons to the general public. 2. The notice is treated just like any other encumbrance; hence, it is superior to those who are registered after it, but inferior to those who are registered before it.
CLAIM P 1M COMPLAINT IN THIRD PARTY
F
INTERVENTION
vs
C
CROSS CLAIM
D
COMPLAINT
P 1M
COUNTERCLAIM P 1M
A,
Plaintiff, -versus-
B,C,D,
Defendant. x-----------------------------x
D,
Third Party Plaintiff, -versus-
E,
Third Party Defendant. x----------------------------------------x
F,
Intervenor, -versus-
A,
Defendant. x-------------------------x
Counterclaim
Compulsory Permissive
24
Compulsory Counterclaim
A compulsory counterclaim is a claim of the defendant against the plaintiff that arises out or is connected to the same fact, act, transaction or occurrence constituting the subject matter of the case that was filed by the plaintiff. A compulsory counterclaim must be filed or set up in the answer; otherwise, it is barred and may not be claimed any more in a subsequent proceeding. Note: A compulsory counterclaim must be within the jurisdiction of the trial court except in pure money claims where any amount may be counterclaimed in the RTC.
Permissive Counterclaim
(Recoupment or Set-off)
A permissive counterclaim has no relation to the case that was filed by the plaintiff. By itself, it can be the basis of a separate and independent action. It can only be set up if the court gives permission. A permissive counterclaim is treated just like an ordinary complaint and therefore, the defendant who receives it is required to pay filing fees. Furthermore, the plaintiff is required to file an answer to the permissive counterclaim by way of a reply; otherwise, the plaintiff could be declared in default with respect to the permissive counterclaim. A permissive counterclaim will not be allowed if it is outside the jurisdiction of the trial court. It is not barred even if it is not set up.
Cross Claims
It is a claim filed by the defendant against a co-defendant or by the plaintiff against a co-plaintiff. The rule on compulsory counterclaim is applicable to counterclaims.
Third Party Complaint

It is a claim that is brought by a party in an existing case against a third party not previously impleaded. Normally, the subject of a third party complaint is reimbursement. This subject to the discretion of the trial court and will not be allowed if it is inconvenient or beyond the jurisdiction of the trial court.
Intervention
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This takes place when a party not previously impleaded in the case seeks to be joined as a party in litigation to protect his interest. The intervenor is someone who has a direct interest in the pending action or someone who may be prejudiced by the outcome of the litigation. Intervention is subject to the discretion of the trial court and will not be allowed if the cause of the intervenor is outside the jurisdiction of the trial court.
After-Acquired Counterclaim
It is technically a compulsory counterclaim that arises only after the answer was filed or it comes to the knowledge of the defendant after he filed his answer. If in the discretion of the trial court, the filing of the after-acquired counterclaim will best serve the interest of justice, then the after-acquired counterclaim will be allowed through a supplemental answer. However, the defendant may opt to file a separate action for the after acquired counterclaim which is not barred.
REPUBLIC OF THE PHILIPPINES 26
NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW edstf@yahoo.com REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION BRANCH ___ MANILA
Norberto Manero, Plaintiff, -versusLibel Philippine Daily Inquirer, Defendant. x------------------------------------x COMPLAINT COMES NOW PLAINTIFF, by counsel and before this Honorable Court, respectfully manifests: 1. Plaintiff is a resident of 123 C.M. Recto, Manila, where he may be served with process. Defendant is a Newspaper Publishing Company with address at 456 Edsa, Quezon City, where he may be served with summons. 2. On February 1, 2000, defendant published an article which reads: Manero ate a priest [p.1, Annex A hereof]; 3. The said article destroyed the reputation of plaintiff and exposed him to public ridicule and causing plaintiff to suffer P 10 M in damages. PRAYER WHEREFORE, it is respectfully prayed that defendant be condemned to pay plaintiff the amount of P 10 M as damages. Respectfully submitted. Manila. February 14, 2000. Case No. 007 Civil Damages for
Counsel for Plaintiff (Sgd.) Atty. Mike Velarde PTR No. IBP No. C.M. Recto, Manila
Certification Against Forum Shopping
27
NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW edstf@yahoo.com I, Norberto Manero after having been sworn hereby, depose and state: 1. that I caused the preparation of the foregoing complaint; 2. that all its contents are true and correct of my own personal knowledge; 3. that I have not filed any similar action or proceeding against defendant before any other tribunal, agency or court; 4. that if I should know of any similar proceeding, I shall promptly inform the court thereof within 5 days from knowledge.
Norberto Manero (Sgd.) Affiant
BEFORE ME, a notary public, personally appeared the affiant who presented his Residence Certificate No. ____, which was issued on ______ at ______. WITNESS my hand and seal, this _______ day of _______, 2000 at _______.
NOTARY PUBLIC
Doc No. Page No. Book No. Series of
28
NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW edstf@yahoo.com REPUBLIC OF THE PHILIPPINES REIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION BRANCH ___ MANILA Norberto Manero, Plaintiff, -versusLibel Philippine Daily Inquirer, Defendant. x------------------------------------x ANSWER COMES NOW Defendant, by counsel, and before this Honorable Court, respectfully avers: 1. Defendant admits paragraph (1) of the complaint. 2. Defendant, however, denies the importance and meaning of Paragraph (2) of the complaint the truth being that which is stated in defendants special defense hereunder; 3. Defendant also denies the validity of Paragraph (3) of the complaint for the same reason stated in Paragraph (2) above; 4. By way of SPECIAL DEFENSES, defendant avers that: What defendant wrote is that Manero ate the breast of the pig The word Manero is generic and does not necessarily refer to a Norberto Manero Case No. 007 Civil Damages for
5. By way of COUNTERCLAIM, defendant avers that: Defendant sustained damges to its reputation of P 100M as a result of the filing of this suit Plaintiff enjoyed Free Advertising for his restaurant named Manero Eats: Tinadtad Special as a result of filing this baseless suit. This advertisement is worth at least P 5M. PRAYER WHEREFORE, it is respectfully prayed that the complaint be dismissed and that plaintiff be ordered to pay for counterclaims as follows: a. damages to reputation P 100M b. free advertisement P 5M Respectfully submitted. Manila. March 1,2000. Atty. Ely Soriano (Sgd) Counsel for Defense IBP PTR 123, Manila
Parts of a Pleading
29
1. Caption It identifies all the parties in the case, the case number and the court where the case is pending. 2. Body It contains all the allegations of the ultimate facts concerning the case. The ultimate facts consist of the basic or bare facts constituting the cause of action or the defense. 3. The Petitory Portion It contains all the remedies and the reliefs prayed for. In case of conflict between the body and the petitory portion, the latter prevails. It is normally use for purposes of computing the appropriate filing fees. Note: In the case of Manchester vs CA, the petitioner stated his claim in the body but prayed for a lower amount in the petitory portion. The same was considered in bad faith by the appellate court and it was held that it is as if the complaint was not filed. 4. Signature of a Lawyer When a lawyer signs a pleading, the implications are a) it means that he has read the pleading; b) that there are good reasons to support the pleading; and c) the pleading was filed not because it was intended to cause delay. 5. Certification Against Forum Shopping An initiatory pleading will not be allowed or accepted in the docket if it is not accompanied by the certification against forum shopping. If there is no such certification, the defendant may file a motion to dismiss on the ground of failure to comply with a condition precedent.
Preparation of the Answer

1. The answer must traverse all the allegations in the complaint to prevent the admission of any issue or fact. 2. All compulsory counterclaims must be set-up; otherwise, they will not be allowed to be claimed in future action. 3. The answer must be verified if an actionable document was attached or annexed to the pleading.
Manchester Doctrine
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In the case of Manchester Development Corporation vs Court of Appeals, the Supreme Court held that if the correct filing fee is not paid, it is as if no pleading was filed and the court would therefore, have no jurisdiction over the case. The payment of docket fee was considered indispensable and the only exception is in the case of a pauper litigant. However, in the subsequent case of Sunlife Assurance Corporation vs Honorable Judge Asuncion, the Supreme Court modified the Manchester Doctrine and held that unpaid or deficient filing fee shall be considered as a lien on a favorable judgement. This means that the unpaid filing fee must first be satisfied before any award given to the winning party.
REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REION BRANCH ___ MANILA S. CUEVAS, Plaintiff, -versusJ. BARRICAN, Defendant. x------------------------------------x MOTION COMES NOW Plaintiff, by counsel and to this Honorable Court, respectfully alleges: 1. During the hearing of this case on February 14, 2000, defendant testified under oath and said Si Cuevas ay kalbo gaya ni Manero (p 239 TSN, February 14, 2000); 2. The aforesaid statement is irrelevant to the pending case and intended merely to humiliate plaintiff; 3. Even if the statement is true, it does not prove or disprove the claim or defense of the defendant; 4. There is a need to strikeout the same in the transcript of stenographic notes. PRAYER WHEREFORE, it is respectfully prayed that the subject statement be expunged from the records. Respectfully submitted. February 29,2000. Manila. 31 Case No. 007 Collection of a sum of money
Atty. Billy Balbastro (Sgd) Counsel for Movant PTR IBP 123 Recto, Manila
NOTICE OF HEARING To Atty. Lolit Solis Counsel for Defendant The Branch Clerk of Court Regional Trial Court Branch ___ Manila Greetings. Take note that counsel will submit the foregoing motion for hearing and consideration on March 15,2000, Friday, motion day, at 8:30 am.
Atty. Billy Balbastro (Sgd)
BEFORE ME, a Notary Public, personally appeared the affiant who presented his Residence Certificate No. ________ which was issued on ______ at ________.
NOTARY PUBLIC
Doc No. Page No. Book No. Series of
RECEIVED BY COUNSEL FOR DEFENDANT FEB. 24,2000
32
ORDER
FINAL (appealable) Litigated
INTERLOCUTORY (not appealable) Non-litigated
MOTIONS
Oral
Written
Any application for a court order is a motion. A motion is a secondary pleading. Generally, reliefs prayed for are merely interlocutory; however, there are some motions that may give rise to a final order. A motion to dismiss for instance, if granted, will result in a final order. However, an order denying a motion to dismiss is merely interlocutory. A final order is appealable while an interlocutory order is not appealable.
General Requirements for Motions

1. The requirement of Notice A copy must be served on the opposing party by personal service, if not possible, then service by mail. If service by mail is resorted to, there must be a written explanation stating the reason as to why personal service could not be effected. There must be a proof of service to indicate that notice was given. 2. Three Day Rule A copy of the motion must be served upon the opposing party at least three (3) days before the scheduled hearing of the motion. The exceptions to the three-day rule are:
33
a)
In the case of urgent motion, the three day rule can be waived if there is a showing of an urgent necessity and provided the movant can explain the reason for urgency; and b) In the case of motions for summary judgement, the required notice must be given ten (10) days before the hearing of the motion. 3. The motion must be properly scheduled for hearing There must be an indication of the date and time of the hearing.
Consequences of Failure to Comply with the Requirements

If one of the requirements stated above is not complied with, the motion is considered as a mere scrap of paper and without legal effect or validity.
Additional Requirements for Special Motions

1. In the case of motions for provisional remedies such as attachment, injunction, receivership, delivery of personal property, and support pendente lite, the movant is also required to submit an affidavit of merits plus the required bond. 2. In the case of motions for post-judgement remedies, the movant is also required to submit an affidavit of merit. 3. In the case of motions for summary judgement, the movant is required to attach all the pertinent affidavits and documents.
Litigated Motions
It is a motion that will prejudice the right of the opposing parties and hence, there must be strict compliance with the requirements.
Non-litigated Motions
It is a motion that will not prejudice the substantial right of the adverse party and hence, the requirements are not strictly observed.
Oral Motions
Generally, oral motions are not allowed because our courts are considered as court of records. However, there are instances where oral motions may be permitted: 1. Motions for Continuance Postponements may be prayed for orally for meritorious reasons. However, dates fixed at the pre-trial order may not be cancelled orally.
34
2. Motion to Declare Plaintiff as Non-suited or Motion to Declare Defendant in Default At the pre-trial conference, an oral motion to declare the plaintiff as nonsuited or the defendant in default may be entertained.
Omnibus Motion Rule

Under this rule, a movant is required to state all the possible arguments concerning the subject of his motion; otherwise, any agreement not stated is deemed waived. However, this rule will not apply if the subject of the motion is jurisdiction of the court on the subject matter of the case because a jurisdictional matter may be asserted even after judgement.
DISMISSAL OF ACTIONS
Dismissal of Actions
Without prejudice (sin perjuicio)
With prejudice
case can be refiled
case can no longer be refiled after the order of dismissal has become final and executory
A court order dismissing an action must state whether or not the dismissal is with prejudice. If the dismissal is with prejudice, the losing party must either move for reconsideration or file an appeal during the period available to file an appeal so that the dismissal will not become final and executory. Once the dismissal is final and executory, res judicata will set in. Note: There is res adjudicata if a case is dismissed with prejudice and it involves the same parties, same cause of action, same issues, and any subsequent case between the same parties may be barred if there is res adjudicata.
35
How Actions are Dismissed
By notice on the part of the fault plaintiff plaintiff
By motion on the part of the plaintiff
By motion on the part of the defendant
By the court due to the of the
A case may be dismissed by mere notice given to the court by the plaintiff before the latter receives a copy of the answer. The dismissal is a matter of right and is sin perjuicio. A second notice of dismissal of a similar case is considered as an adjudication on the merits and therefor with prejudice. After the plaintiff has received the answer, the plaintiff can still file a motion to dismiss. However, the dismissal of the case will not include the counterclaim of the defendant. Such counterclaim will continue to be litigated. Note: The correct remedy, therefore, is for the plaintiff to secure the consent of the defendant to a dismissal that includes the counterclaim. A case can also be dismissed by the court motu propio if there is an unreasonable delay on the part of the plaintiff to prosecute the action or by the repeated failure of the plaintiff to present evidence. Dismissal under this ground is sin perjuicio. However, the court may issue an order for the dismissal with prejudice. Complaint Summons Answer
Motion to Dismiss
Motion to Dismiss
It is one of the methods of cutting short or abbreviating litigation. It is used to test the sufficiency of the allegations in the complaint. It is also use to test whether or not the cause of action in the complaint had been extinguished by condonation, prior payment or prescription A motion to dismiss is use to win out patently unmeritorious cases. It must be availed of during the same period to file an answer. Hence, if an answer has been filed, a motion to dismiss must be based on the ground of lack of jurisdiction over the subject matter.
36
Grounds for motion to dismiss are as follows:

1. no jurisdiction on the person of the defendant 2. no jurisdiction over the subject matter 3. improper venue 4. plaintiff has no legal capacity to sue 5. litis pendentia (forum shopping) 6. res adjudicata 7. prescription 8. the complaint does not state a cause of action 9. the claim has been paid, waived, abandoned or extinguished 10. the obligation is unenforceable 11. failure to comply with a condition precedent (e.g. failure to undergo barangay conciliation, if required; no certification against forum shopping; etc.)
Hypothetical Admission Rule

For purposes of resolving the ground of whether or not the complaint states a cause of action, the court shall consider all the allegations to be true and then determines if the allegations are sufficient. The defendant is not allowed to present evidence on a motion to dismiss. However, by way of exception, if the ground for the motion to dismiss is that the claim has been paid, waived, abandoned or extinguished or when there is prescription the defendant is allowed to present evidence on a motion to dismiss.
Alternative to a Motion to Dismiss

The defendant may opt to file an answer and incorporate in his answer the grounds for a motion to dismiss. Thereafter, the defendant may file a motion for preliminary hearing of his special defenses and the same should be resolved just like a motion to dismiss. If a motion to dismiss was filed, instead of an answer, and the same was denied, the defendant would have the remaining period of time, but not less than five days, to file his answer. A motion to dismiss based on lack of jurisdiction or that the claim has been paid, waived or abandoned, res adjudicata, prescription or unenforceability, if granted, the order is with prejudice.
37
Summary Procedure
to render judgement based on the pleading
Complaint
Summons
Answer
Pre-trial
Judgement
filed with the MTC
to conduct a limited trial Appeal to RTC ..
Procedure Observed by Trial Courts
Regional Trial Court
Municipal Trial Court
Regular Procedure Procedure
Regular Procedure
Summary
1. Summary procedure was intended to speed up the litigation of small claims before inferior courts. 2. Coverage of summary procedure: a. In civil cases All ejectment cases whether by forcible entry or unlawful detainer irrespective of the back rentals or damages claimed. All other civil cases except probate proceedings where the total claim does not exceed P 10,000.00. b. In criminal cases Violation of traffic laws Violation of rental laws Violation of municipal or city ordinance All other criminal cases where the penalty of imprisonment does not exceed six (6) months or fine not exceeding P 1,000.00 as to cases of reckless imprudence resulting to damage to property covered by summary procedure if the imposeable fine does not exceed P 1,000.00.
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Exceptions to the Coverage of Summary Procedure

1. Summary procedure will not be applied if a cause of action, cognizable under summary procedure, is pleaded with another cause of action cognizable under regular procedure, in which case the regular procedure would be applied to both cases. 2. In criminal cases, if the crime cognizable under summary procedure is necessarily related to another offense charged which is covered by the ordinary criminal procedure, the latter will be applied.
Characteristics of Summary Procedure

1. Only the complaint and the answer are allowed to be filed in court. All other pleadings are prohibited except motion to dismiss on the ground of lack of jurisdiction over the subject matter and motion for preliminary mandatory injunction in forcible entry cases. 2. All pleadings must be verified, which means they must be sworn before the notary public. 3. The time to file the answer is only ten (10) days from the receipt of summons. Note: By way of comparison, under the rules on regular procedure, there is a need for a motion to declare the defendant in default to be filed, before the court can declare the defendant in default. 4. With respect to the consequences of failure to answer on time, under the rules on summary procedure, the court may motu propio render judgement based on the pleadings. Note: In comparison to ordinary proceedings, a motion to declare defendant in default must be filed. The court can not act motu propio. 5. Under the rules on summary procedure, the affidavits of the witnesses can be presented and admitted as evidence under direct examination without the necessity of requiring the affiant to testify on his affidavit. Note: By way of comparison, under the rules of regular procedure, the affiant must testify in court; otherwise, the affidavit per se is considered hearsay. 6. With respect to the conduct of trial, under the summary procedure it is discretionary. The court may opt to conduct trial for the purpose of clarifying some points in the affidavits of the witnesses. Otherwise, the court can decide on the basis of the affidavits and documents presented. By way of comparison, under the regular procedure, trial on the merits is mandatory. 7. The parties are required to file position papers. Note: A position paper is a memorandum that summarizes the case of a party; attached to it are the affidavit and documents concerning the case. 8. If the case is covered by a barangay conciliation and there was a failure to comply with such requirement, the trial court can motu propio dismiss the case without prejudice for referral to the Lupon ng Tagapamayapa.
39
Note: By way of comparison under the rules on regular procedure, the court cannot dismiss the case unless the proper motion to dismiss was filed before it alleging failure to undergo barangay conciliation. 9. Decisions of the MTC are appealable before the RTC. A motion for reconsideration is not permitted.
Barangay Conciliation
Complainant notifies the Lupon of the complaint
Lupon notifies the respondent of the grievance and schedule of the conciliation
Lupon prepares a certificate to file action
Complainant attaches the Certification to the complaint and files it in court
Actual litigation
No
Conciliation meeting takes place Dispute is settled
Yes
Agreement is signed by the parties
If agreement is violated, suit for breach of contract will be filed
Notes on Barangay Conciliation

Barangay conciliation covers all kinds of cases (whether in the MTC or RTC and whether under summary procedure or regular procedure) where the parties are residence of the same barangay or adjoining barangays of the same municipality or adjoining barangays of different municipalities. The exceptions to the coverage are: 1. If one of the parties to the dispute is a corporation 2. Where the action is coupled with a provisional remedy (e.g. attachment, injunction, receivership, replevin, support pendente lite) 3. Where one of the parties is the government or the Republic of the Philippines 4. Where one of the parties is a public official and the dispute is related to his public function
Mechanics
1. If during the conciliation conference, an amicable settlement is reached, the parties will sign a written agreement that would be the basis of the suit for breach of the agreement. Note: Under the Local Government Code, it appears that the Lupon has the power to enforce such an agreement. However, it is submitted
40
that the same is questionable because the Lupon is not a court. It can not decide a dispute and neither can it execute its judgement. 2. If a settlement could not be reached, the Lupon ng Tagapamayapa will prepare a certificate to file an action. The complainant can use the certificate in filing a suit. Note: If a case was filed without going through barangay conciliation assuming that it is applicable, the defendant may file a motion to dismiss on the ground of failure to comply with a condition precedent. However, if the case falls also under summary procedure, the court can motu propio dismiss the case without prejudice and refer the same to barangay conciliation. 3. Barangay conciliation is merely a procedural requirement; it is not a jurisdictional prerequisite. Hence, if the defect of lack of barangay conciliation is not seasonably assailed, then the defect is cured. In the case of Gonzalez vs. CA, the Supreme Court held that defects in barangay conciliation do not give rise to jurisdictional questions.
Complaint Merits
Summons
Answer
Pre-trial Pre-trial
Trial on the
Pre-trial Conference
It is a mandatory process that is intended to accomplish the following objectives: 1. 2. 3. 4. 5. to enable the court to simplify the issue for trial to identify and limit the witnesses to amend and shorten pleadings if possible to mark exhibits to enable the parties to pursue discovery procedure (e.g. request for admission written interrogatories, depositions, etc.) 6. to enable the parties to pursue amicable settlement
Mechanics of Pre-trial
Upon submission of the last pleading, the plaintiff is required to calendar the date of the pre-trial conference by notifying the clerk of court and copy furnishes the defendant. Thereafter, the clerk of court notifies the defendant of the date and time of the pre-trial.
Pre-trial Brief
41
All the parties are required to submit pre-trial briefs at least three (3) days before the scheduled date of pre-trial. Failure to submit the pre-trial brief is considered as non-appearance at the pre-trial conference. The pretrial brief is a summary of the case of a party. It contains the proposed issues, identity of witnesses, list of exhibits, schedule of dates for trial.
Pre-trial Order
At the conclusion of the pre-trial conference, the court will issue a pre-trial order, which summarizes the result of the pre-trial. Only the issues tackled in the pre-trial order will be the subjects of trial.
Discovery Procedure
Modes of Discovery and their Mechanics 1. Depositions a. Pending Action It is the examination of the deponent regarding matters that are relevant to the subject of a pending action. Examination and crossexamination may proceed as permitted at the trial. b. Before Action or Pending Appeal A person who desires to perpetuate his own testimony may file a verified petition in the court of the place of residence of any expected adverse party. This is intended to preserve known testimony against damage or loss. 2. Interrogatories to Parties The party desiring to elicit material and relevant facts from the adverse party shall file and serve written interrogatories. The answer signed and sworn shall be filed and served within fifteen (15) days after service thereof. Time is under the discretion of the court. Objections may be presented within ten (10) days after service thereof. Answers shall be deferred until the objections are resolved. Failure to serve written interrogatories is sanctioned the adverse party can not be compelled to give testimony. 3. Admission of Adverse Parties After issues have been joined, request for admission may be filed regarding the genuineness of any material or relevant document. Admissions, requests and answers must be in writing. Its purpose is to establish a cause of action or defense. 4. Production or Inspection of Documents or Things
42
Upon motion, the court may order production and inspection of documents or permit entry upon property. The order shall specify the time, place, and manner of making inspection. 5. Physical and Mental Examination The court may require a person to undergo physical and mental examination, if it is in controversy. The order shall specify the time, place, manner, and scope of the examination.
Purpose of Discovery
1. to narrow and clarify the basic issues between parties 2. to ascertain facts relative to the issues
Advantages of Discovery
1. discloses acts, deeds or documents in aid of prosecution or defense, or the litigation by certain parties, witnesses or persons by judicial permission 2. discloses facts resting in the knowledge of the defendant
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Trial on the Merits
Plaintiff presents his evidencein-chief
Plaintiff offers his documentary exhibits
Plaintiff rests
Defendant presents his evidencein- chief
Defendant Defendant offers his rests documentary exhibits
At the discretion Defendant of the court, plain- presents tiff presents rebut- sur-rebuttal evidence tal evidence
End of trial
44
Evidence-in-chief
It refers to the entire body of evidence that is used by a party to prove his case. It includes testimonial evidence, real evidence, and documentary evidence. The presentation of evidence-in-chief is required to enable a party to prove the allegations in his pleadings.
Rebuttal and Sur-rebuttal Evidence

Their presentation is discretionary on the part of the court. They are intended to attack the credibility of the evidence-in-chief of the opposing party. However, no new matters may be introduced in support of the evidence-in-chief during rebuttal or sur-rebuttal.
Joint Stipulation of Facts

In lieu of a trial, the parties may agree to a joint stipulation of facts in writing. The stipulation is submitted to the court and the court may reconsider judgement based on the stipulation.
Reception of Evidence
The proceedings must be taken down in writing by way of stenographic notes. The judge is required to receive the evidence personally. However, he may delegate the reception of evidence to the clerk of court if all the parties agree. If evidence is presented to the clerk of court, any objections must be placed on record and it is up to the judge to rule on the objections.
Consolidation of Trial
If there are several pending cases in the same court and they all involve a common question of fact or law, the court can motu propio order a joint hearing of all the cases.
Trial by Commissioner
If the subject matter of the case is very technical, the parties may agree to refer the reception of evidence to a third party known as a trial commissioner who is knowledgeable about the subject matter. The trial commissioner is appointed by the court to gather evidence and resolve factual issues. However, the trial commissioner can not rule on the legal questions. At the end of the trial, the trial commissioner submits to the court his report on the evidence presented. The trial court may accept, modify or reject the report.
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Ways to Cut Short Litigation
Motion to Dismiss
Motion for Judgement on the Pleadings
Motion for Summary Judgement
Demurrer to Evidence
Judgement on the Pleadings

Where the responsive pleading fails to tender an issue or admits the allegations of the opposing pleadings, a motion for judgement on the pleadings may be filed. If the reasons cited on the judgement of the pleading are meritorious, res adjudicata will apply.
Motion for Summary Judgement

If there is no genuine issue or no factual issues really exist as proved by the affidavits, documents, and other depositions, a party can file a motion for summary judgement. The opposing party has ten (10) days notice before the motion is heard. However, resolving a motion for summary judgement is a matter of discretion on the part of the trial court. If the motion for summary judgement is granted in full then a judgement on the merits is rendered against the opposing party, as a result trial is avoided.
Pre-trial Trial Judgement
Plaintiff presents his evidencein-chief
Plaintiff offers his documentary exhibits
Plaintiff rests
Defendant presents his evidencein- chief
Defendant offers his documentary exhibits
Defendant rests
A demurrer to evidence may be filed after the plaintiff has rested in the presentation of his evidence but before the defendant has presented his evidence-in-chief. A demurrer to evidence is based on the ground that the evidence presented by the plaintiff is insufficient and therefore the defendant is not anymore required to present evidence in support of his case.
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Demurrer in Civil Case

After the Plaintiff has Rested Demurrer to Evidence is Filed
YES Case is dismissed No appeal Denied
Grante d
NO Trial continues
Appeal Granted
Reversal of the dismissal and there will be judgement for appellant. The defendant is deprived to present his evidence
A demurrer to evidence in civil cases is a remedy that may backfire on the defendant. If a demurrer is reversed on appeal, there will be a judgement in favor of appellant and the defendant will be deprived of his right to present evidence. An order granting a demurrer is a final order. On the other hand, an order denying a demurrer is merely an interlocutory order.
Demurrer in Criminal Cases

After the Prosecution has Rested Motion for Leave to Allow Demurrer Granted Demurrer is filed then the prosecution is given an opportunity to submit an opposition Granted Trial is ended (no appeal) Denied Denied Trial continues
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Judgements
A judgement in order to be valid must be final. It is final if it terminates the proceedings; it is also final if it resolves the merits or the issues in the case. If it leaves other things to still be done or it does not completely resolves the controversy, the judgement is not considered final and it is null and void without producing any legal effect. As a result, the period to appeal will not begin to run. Furthermore, a void judgement could not be the basis of a valid execution. A judgement has two parts, namely: a) the body which contains the reasons and comments of the court known as the obiter dicta; and b) the dispositive portion which resolves the issue in the case. It is the dispositive portion that is the subject of execution. In case of conflict between the body and the dispositive portion, the latter prevails. Moreover, it is the dispositive portion that is required to be entered in the book of judgement after such judgement has become executory. In civil cases, a judgement is promulgated at the time it is filed with the clerk of court and not at the time when the trial judge affixed his signature in the judgement. Note: In criminal cases, however, promulgation is done by reading the judgement before the accused in open court.
A judgement that is final a. b. c. d.
time
becomes executory
15 days after receipt and no appeal is taken 30 days (multiple appeals) 60 days if judgement was published in the case of compromise judgement, the judgement becomes executory immediately upon approval of the compromise
If the parties, in the course of litigation, arrived at a compromise, they may execute a compromise agreement. If the same is submitted to any approval by the court, it is treated just like a judgement and it is immediately executory.
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Ordinary Appeal Parties to the Appeal How Appeal is Done Perfection of the Appeal 15 Days By filing a Notice of Appeal By the expiration of the last day for the party to appeal
Multiple Appeal 30 Days By filing a Notice and the Record on Appeal Upon approval of the Record on Appeal
all remedies may be obtained from the trial court
all remedies may be obtained from the appellate court
judgement is executed by the trial court
judgement was rendered
when appeal is made
when appeal is perfected
appeal is resolved
mittimus is returned to the trial court
Multiple Appeal
A case of multiple appeal arises when a trial court renders a partial judgement on some but not all the causes of action in a case. The premise of partial judgement is that there are several independent causes of action in a case and the trial court does not resolve all of them in one judgement. Multiple appeal is now known as an appeal that requires a record on appeal. Multiple appeal is also present in special proceedings such as judicial settlement of an estate, probate of a will, etc.
Discretionary Execution
Generally, a judgement may not be executed if it has not become final and executory. An exception is discretionary execution (previously known as execution pending appeal). In extreme cases, for good and meritorious reasons, where the judgement creditor will be prejudiced by an appeal, the court will allow discretionary execution under a special order. If discretionary execution is done, the proceeds of the execution sale will be held in trust by the court and given to whoever wins in the appeal.
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Records on Appeal
It is a faithful reproduction of the case records indicating all the orders, stenographic notes, exhibits, and pleadings filed by the parties. It is generally a certified true copy of the case records.
Appeal
An appeal is the broadest and most comprehensive post-judgement remedy available. The appellate court has the authority to review, revise, reverse, modify or affirm the judgement that was rendered by the trial court. Strictly speaking, appeal is a process, it begins with the appeal proper which is a matter of right before the appellate court, and followed up by the parties for review under Rule 42 or a Petition for Review on Certiorari under Rule 45 before a reviewing court.
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REVIEWING COURT discretionary
SC
SC
SC
SC
SC
discretionary error & question of law Petition for Review on Certiorari Rule 45 15 Days
discretionary Petition for Review on Certiorari Rule 45 15 Days Direct Appeal
discretionary Petition for Review on Certiorari Rule 45 15 Days
discretionary questions of law Petition for Review on Certiorari Rule 45 15 Days
error of facts & law Petition for Review Rule 42 15 Days APPELLATE COURT
RTC
CA
CA
matter of right question of facts & law Appeal (15, 30, 60 Days) COURT OF ORIGIN
matter of right question of facts & law Appeal (15, 30, 60 Days)
There must be a certification that the only issue is a legal issue from the trial court
questions of facts & law appeal discretionary 15 Days
MTC
RTC
RTC
CA Sandiganbayan
Quasi Judicial Bodies
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Notes on Appeal
1. Rule 42 : Petition for Review a. Judgement under review in this remedy cannot be executed, the judgement is stayed except those cases falling under summary procedure. b. The Court of Appeals can issue orders granting provisional remedies. c. If due course was given to the petition, then the records are elevated to the Court of Appeals. d. Due course is given only if there is a prima facie merit on the face of the petition. e. The Court of Appeals can dismiss the petition outright if there was failure to comply with the documentary requirements. 2. Rule 45 : Petition for Review on Certiorari a. As a general rule, the review will not stay the execution of the judgement unless the Supreme Court issues a preliminary injunction or temporary restraining order. b. If due course is given, the records of the case are elevated to the Supreme Court. c. Review is proper if the appellate court departed from the proceedings (Grave Error Standard). d. Review is proper for an issue not previously decided. e. Review is of sound judicial discretion, simple error is not sufficient to justify a review. f. The Supreme Court can dismiss the case outright if the documentary requirements are not met. 3. Judgements that are not stayed by an appeal As a general rule, an appeal will stay the execution of the judgement. The exceptions to this rule are: a. actions for permanent injunction b. actions for receivership and accounting c. other cases where the law does not allow the stay of execution (e.g. forcible entry, unlawful detainer, cases covered under summary procedure, etc.) Note 1: In cases of unlawful detainer, execution can be stayed by filing a supersedeas bond and depositing accrued rentals in court while on appeal. Note 2: In those instances where the execution is not stayed by the appeal, the appellant must obtain a writ of preliminary injunction from the appellate court to stay the execution. 4. For purposes of reckoning, whether or not the appellant complied with the appeal period, the period to appeal shall begin to run from the time appellants counsel actually received the judgement of the trial court. 5. The period to file an appeal is jurisdictional. It can not be extended by motion. Nevertheless, the period for filing memoranda and/or the appeal brief can be a subject of extension.
6. Final orders can be the subject of an appeal. However, interlocutory orders can not be a subject of an appeal. 7. Payment of the appeal fee is jurisdictional. In criminal cases, appeal fees are not required. 8. Split appeals are prohibited. When the appellant files a Petition for Certiorari under Rule 65 before the Supreme Court to question a judgement that is pending on appeal with the Court of Appeals, it was held that there was forum shopping and accordingly, both cases were dismissed. (Borromeo vs IAC) 9. A Petition for Certiorari under Rule 65 is not a substitute for an appeal that could have been made. If an appeal could have been filed but in lieu thereof, a Petition for Certiorari under Rule 65 was availed of, the petition was held to be improper and accordingly dismissed. 10. The findings of fact made by the trial court are not generally disturbed on appeal unless it is shown that the trial court disregarded the evidence. Appreciation of evidence by the trial court is given great weight because it was in a position to see the witness who testified with respect to his conduct and demeanor. 11. In the following instances, the findings of fact by the trial court may be modified on appeal: a. where the trial courts conclusion is based on speculations b. where the inference that was made is absurd c. when the findings of fact are conflicting d. with respect to the Supreme Court, when the findings of the appellate court are contrary to the findings of fact made by the trial court 12. Settled is the rule that the appellate court has the authority to grant provisional remedies. However, after the appeal has been resolved and the records of the case (mittimus) are transmitted back to the trial court, then it will be the trial court that will execute the judgement. 13. If an appeal is a matter of right, then it means that the appellate court must resolve the appeal on the merits. This means that the appeal must be entertained (unless there was failure to comply with the requirements on the appeal). It means that the resolution of the appeal must contain all the reasons why the appeal is being denied or granted. 14. When the appeal is discretionary, as in a Petition for Certiorari under Rule 45, then it means that the reviewing court has the option not to entertain the appeal and to dismiss it outright by a minute resolution without stating the reasons for the dismissal. Note: If the appeal is given due course, it does not mean that the appellant or petitioner has already won the case. It merely shows that the appellate court or reviewing court has decided to consider the petition.
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POST-JUDGEMENT REMEDIES
Motion for Reconsideration All judgements and final orders -damage awarded is excessive -insufficiency of evidence to justify judgement -judgement contrary to law is -newly discovered evidence which if presented will alter the result Motion for New Trial Rule 37 All judgements and final orders -fraud, accident, mistake, excusable neglect (FAME) which ordinary prudence could not have guarded against Petition for Relief Rule 38 All judgements and final orders FAME Appeal See notes in the preceding pages Independent Action to Annul Judgement Rule 47 All judgements and final orders Petition for Certiorari Rule 65 All kinds of orders including interlocutory
COVERAGE
GROUNDS
WHEN AVAILABLE
It is available during the period to file an appeal.
It is available during the period to file an appeal.
It is available w/in 60 days from knowledge of the judgement but not more than 6 months after entry of judgement in the records.
-extrinsic fraud, lack of jurisdiction provided that new trial, motion for reconsideration, petition for relief and appeal are no longer possible Note: Extrinsic fraud is one that is committed during the course of the proceedings as to deprive the party of his right to due process or his day in court. It is distinguished from intrinsic fraud, which is fraud committed before the filing of the case and the very basis of the cause of action. Extrinsic fraud is the same kind of fraud for new trial and petition for relief. In the case of extrinsic fraud, 4 years from discovery. In the case of lack of jurisdiction, before laches or estoppel bars it.
NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW edstf@yahoo.com Motion for Reconsideration By filing a motion in the court that rendered judgement together with the affidavit of merits Motion for New Trial Rule 37 By filing a motion in the court that rendered judgement together with the affidavit of merits and affidavits of witnesses and other documents If granted, judgement is set aside and additional evidence is admitted. Thereafter, a new judgement is rendered. Petition for Relief Rule 38 By filing in the court that rendered judgement the petition together with the affidavit of merits and other relevant documents If given due course, the opposing party is given 15 days to answer. Thereafter, the petition is heard, and if there is sufficient basis, the previous judgement is set aside and it is as if a timely motion for new trial was filed. If the petition was denied, the litigation is terminated and the denial for a petition for relief is a final order. Independent Action to Annul Judgement Rule 47 By filing the action in the Court of Appeals, if the judgement in question is rendered by the RTC, supported by a certified true copy of the judgement and case records Petition for Certiorari Rule 65
Appeal
HOW IS IT DONE
EFFECTS
If granted, the previous judgement is set aside and a new judgement is rendered.
If the petition is given due course, the respondent will be given an opportunity to file a response. Thereafter, if the court finds a basis to continue, the petitioner will be given an opportunity to adduce evidence. The court hearing the petition may delegate the reception of evidence to a lower court. Thereafter, if the lower court grants the petition, the judgement in question is set aside, another court has the authority to order a restitution of what have been lost by petitioner. Once the judgement is set aside, the prevailing party may re-file the case.
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Execution
When and How Judgement can be Executed
Execution can be motion in the court made by motion By another action dent action to
By filing an indepenaction was filed 5 Years
By
where the independent execute 5 Years
5 Years
5 Years
Time when judgement becomes executory
10 years prescription period for written obligation Time limit must not be violated
10 years prescription period for written obligation Time limit must not be violated
Third Party Claim (Terceria)

In those instances where an erroneous execution will prejudice a third person, the third person may avoid prejudice by submitting an affidavit that is called a third party claim to the sheriff. The third party claim must state the circumstances indicating that the third party is the owner of the thing that is subject to execution. The third party as much as possible must attach the appropriate documents proving his ownership through the affidavit. Once a sheriff receives the third party claim, he is no longer bound to proceed with the execution. Nevertheless, the execution can still proceed if the judgement creditor pasts an indemnity bond equal to the value of the property and in favor of the third party that will be prejudiced by the execution. The third party claimant can run after the indemnity bond by filing a motion in the same case or by instituting an independent civil action. Claims against the indemnity bond must be made within 120 days from the date of filing the bond. If the execution has already taken place, the remedy of the third party is to obtain an order of restitution before the court which ordered the execution.
PROVISIONAL REMEDIES
ATTACHMENT (D.E.C.F.R.O.) A party is about to depart from the rule with intend to defraud; Where money and property is embezzled by a person in violation of his fiduciary obligation; Where property was concealed to prevent it from being found; Where a party is guilty of fraud in contracting debt or in the performance of an obligation; Where a party resides outside the Philippines on whom summons by extraterritorial service (in quasi in rem cases) is proper. INJUNCTION Preliminary Injunction is issued for two purposes: a. to compel the doing of an act; Preliminary Mandatory Injunction b. to restrain the doing of an act; Preliminary Prohibitive Injunction The applicant must have a legal right to restrain or compel the performance of an act. The applicant must show that the performance or non-performance of the act in question will inflict prejudice and injustice to the applicant. If the respondent is not restrained or compelled to do the act, the applicant will suffer RECEIVERSHIP Receivership for corporation and partnership is now a remedy that can only be availed of before the Securities and Exchange Commission (SEC) by virtue of PD 902-A; however, receivership of property may still be granted by regular courts. This remedy is available if the property is in danger of being lost during the course of the proceedings; if after judgement there is a need to DELIVERY OF PERSONAL PROPERTY (REPLEVIN) Replevin is an auxiliary remedy to an action for the recovery of personal property. The objective of replevin is to deliver the personal property to the applicant during the course of the litigation. The applicant is the owner of the thing or is entitled to the possession thereof; that there must have been a wrongful detention thereof by the respondent; and that the property must not be under custodia legis. In replevin, only personal property can be delivered to the applicant. SUPPORT PENDENTE LITE This is available only in those cases involving or affecting persons and family relations (e.g. legal separation, annulment of marriage, abduction, paternity suits). The applicant must have legal right to demand support and that respondent must have financial capability to give support. In support pendente lite, the applicant must serve a
Note: The foregoing grounds established the fact that the purpose of attachment is to preserve assets that will be the subject of future execution. However, the last ground (where the defendant resides outside) is an exception in such an instance, attachment is intended to enable the trial court to acquire jurisdiction over a non-resident defendant. Writ of Preliminary Attachment may be issued ex-parte but may not be enforced unless summons was served ahead or contemporaneously with the writ.
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ATTACHMENT Note: An exception is where the defendant resides outside the Philippines. In quasi in rem cases involving the recovery of property, attachment must first be completed before extra-territorial service of summons is allowed. The writ requires an attachment bond to cover damages that may be sustained by the respondent. No bond no writ. An affidavit of merits is also required, showing that there is a sufficient cause of action and that there is no other security for the claim. Once the writ of attachment is implemented, the properties of the respondent that are levied and attached are placed in custodia legis (under the legal custody of the court). Such properties are held in trust by the court or his agent to await the outcome of the pending case. If the applicant eventually prevails, then the properties that were attached will be a subject of an execution sale. Property previously attached can still be attached except that the latter attachment is treated as a junior lien. Attachment covers all kinds of property, whether real or personal. If it concerns receiveables and credit, it is normally called as a garnishment.
INJUNCTION irreparable injury and that any judgement will be rendered ineffectual and useless. A Writ of Preliminary Injunction can only be issued after notice and hearing (Please see discussion on TRO in the later part of this book). It requires an injunction bond to cover damages that will be sustained by the respondent. No bond no writ. Note: However, in certain exceptional cases, as when applicant is a pauper, the court may exempt the bond. The application must be accompanied by an affidavit of merits
RECEIVERSHIP preserve the said property; and when it is convenient for the court to protect the rights of all the litigants. The application must be verified under oath; the receiver who is appointed must accept his commission and may only be discharged from his duty by the order of the court. Note: The task of the receiver is to preserve or protect the assets in question.
DELIVERY OF PERSONAL PROPERTY (REPLEVIN) How replevin is effected? Once the sheriff seizes the personal property, he is required to hold it for 5 days and after which he will deliver the same to the applicant. However, during the time when the property is in possession of the sheriff, the respondent may pose a redelivery bond that is in favor of the applicant and equal to the replevin bond. The posting of the redelivery bond will prevent the delivery of the personal property. The application for replevin will be denied if there is no replevin bond (which is equal to double the value of the property in question). No bond no writ.
SUPPORT PENDENTE LITE copy of his motion to the respondent at least 5 days before the hearing. No bond is required for support pendente lite for obvious reasons.
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Notes on Provisional Remedies Attachments

The purpose of attachment is to secure the claims of the plaintiff or the defendant as the case may be. In attachment, the applicant faces the danger that he will not have any asset of the respondent that will be available to satisfy a judgement. In one instance, however, attachment is sought as a pre-requisite for extra-territorial service of summons in quasi in rem cases. The respondent in a writ of attachment may oppose the writ by filing a motion to lift the attachment. If the attachment was issued ex- parte and the same is subsequently opposed, the applicant has the burden of adducing evidence in a proper hearing to sustain the writ. Otherwise, the motion of the respondent to lift the writ of attachment will be granted without requiring the respondent to present evidence in support of the motion. In attachment, the claim of the applicant must be greater than the claim of the respondent; otherwise, attachment will be improper. Furthermore, attachment is not allowed if the applicant is secured.
Injunctions
Injunction Part of the main remedies prayed for (Permanent Injunction) Issued in the course of the litigation (Preliminary Injunction) Preliminary Prohibitive Injunction Temporary Restraining Order Permanent Injunction Complaint hearing Notice & Writ of Preliminary Prohibitive Injunction become final Temporary Restraining Order Judgement has Preliminary Mandatory Injunction
is filed
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In those extreme cases where there is urgent necessity, the executive judge may issue an ex-parte TRO good for 72 hrs
24 hours
writ of PPI during the course of Litigation
Writ of Permanent Injunction
Upon the filing judgement of an initiatory pleading with a prayer for TRO/PPI raffle to be sent to respondent takes place
notice of
raffle
records are
notice
summary
court issues a
court conducts
court
forwarded of hearing of a TRO good to the summary the appli- for 20 days Branch hearing is cation for from issuance; where it sent to TRO non-extendible; was raffled respondent no bond reqd
a hearing on issues the writ of PPI writ of (notice & PPI; hearing) bond is reqd
Preliminary injunction is known as the strong arm of equity and its primary purpose is to maintain and preserve the status quo ante. The status quo ante is defined as the last peaceful situation before the dispute occurred. Preliminary injunction will not be allowed if it creates a new legal relation, establish a new right or create injustice. Preliminary injunction will not be allowed if it will have the effect of deciding the case prematurely and preempt the court of its discretion. Furthermore, preliminary injunction will be proper to restrain an act that has already been committed. Between a writ of preliminary prohibitive injunction and a writ of preliminary mandatory injunction, the latter is seldom given because of the danger altering the status quo.
The applicant must show that he will suffer irreparable injury; otherwise, preliminary injunction will not be given.
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Prohibitive vis--vis Mandatory Injunction

PRELIMINARY PROHIBITIVE INJUNCTION it is allowed but there must be a strong basis TRO is allowed as a subsidiary remedy notice and hearing is required PRELIMINARY MANDATORY INJUNCTION rarely allowed and if there are compelling reasons TRO is not allowed as a subsidiary remedy notice and hearing is required
Life Time of TRO
issued by RTC/MTC 20 days
issued by CA 60 days
issued by SC indefinite
A Temporary Restraining Order is a subsidiary remedy to the provisional remedy of Preliminary Prohibitive Injunction. A Temporary Restraining Order is issued for the purpose of maintaining the status quo for the period of 20 days, which is a reasonable period for the court to conduct a full blown hearing on the application for preliminary injunction. The 20-day period is supposed to cover the period of time that will be needed by the court to resolve the Preliminary Injunction. A Temporary Restraining Order issued by the RTC or the MTC has a fixed life of 20 days and it can not be extended; it self-destructs after the 20 th day. A Temporary Restraining Order may not be issued ex parte. It is now required that a summary hearing be conducted where the applicant is required to present his evidence as distinguished from the hearing that is required to the application of the Preliminary Injunction where both complainant and the respondent can prevent their evidence. However, the executive judge may issue an ex parte Temporary Restraining Order good for 72 hours in case of urgent necessity. A Temporary Restraining Order can only restrain an act; it can not compel the doing of an act. If within the 20-day period (after conducting a full hearing on the Preliminary Injunction) the court resolves to deny the application for Preliminary Injunction, the Temporary Restraining Order is automatically lifted.
Attachment vis--vis Replevin

Attachment
Purpose Object What is done w/ the property Bond To preserve the right of a party Real or personal property Custodia legis Attachment bond
Replevin
To recover personal property Personal property only Delivery of possession to applicant Replevin bond
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COUNTER REMEDIES
ATTACHMENT The respondents may file a motion to lift the writ of attachment based on the following: a. the grounds for attachment was not satisfied (merits) b. the claim of the applicant is secured or the claim of respondent is greater than the claim of the applicant c. the attachment bond is insufficient. Note: All of the above matters can be raised in a hearing on a motion to discharge attachment; once attachment is opposed, the applicant carries the burden of proof. The respondent can also post a counter-bond that is equal to the attachment bond of the applicant. However, once the counter-bond is accepted and approved by the court, the attachment is automatically lifted. If what is supposed to be attached is already in custodia legis, the writ shall be served upon the proper officer of the court that previously attached it. INJUNCTION In preliminary injunction, the respondent may file a motion to lift preliminary injunction upon the following grounds: a. the procedure (notice & hearing) was not observed b. that the applicant has not shown that he will suffer irreparable injury c. that the act to be restrained has already been committed d. the injunction will have the effect of altering the status quo e. that the applicant failed to show that he has a legal right that warrants protection f. that the injunction bond is insufficient It is possible for the respondent to post a counter-bond. And if the court is satisfied that it is the respondent that will suffer a greater loss or injury, the court will lift the injunction. RECEIVERSHIP A motion to discharge a receiver may be filed at the following grounds: a. the property in question is not in danger of being lost or destroyed b. the receivers bond is insufficient c. receivership is no longer necessary Furthermore, any affected party may file a motion to replace the receiver. REPLEVIN If the property in question has not yet been turned over by the sheriff to the applicant (during the 5-day waiting period) the respondent can post a redelivery bond in favor of the applicant and equal to the replevin bond to stop delivery. If delivery had been done, the respondent may still file a motion to discharge or refuse the replevin on the ground that the replevin bond is insufficient or that the respondent has a better right than the person having the possession. SUPPORT PENDENTE LITE The respondent can file his opposition or comment and argue that the applicant has no legal right to seek support or that the respondent is incapable of giving support.
Civil Cases
Ordinary Civil Action
Special Civil Action
Instituted by a complaint (plaintiff, defendant)
Instituted by a petition (petitioner, respondent)
Special Civil Action

Special civil actions are governed by certain special rules; however, the rules applicable for ordinary civil actions are also applied in cases of special civil actions. CERTIORARI
against whom the remedy is available It is available against a tribunal, board or officer (TBO) exercising judicial or quasi-judicial functions. Note: The respondent is a public agency or officer. The object is an act done with grave abuse of discretion amounting to a lack or excess in jurisdiction Note: Certiorari can be directed at any kind of order whether final or interlocutory. The objective of certiorari is to set aside the questioned order.
PROHIBITION
It is available against TBO exercising judicial, quasi-judicial or ministerial functions. The proceedings before the TBO is being done in excess of its jurisdiction or with grave abuse of discretion; the object of prohibition is to prevent the TBO from further executing any jurisdiction over the disputed case.
MANDAMUS
It is available against TBOCI that is performing a lawful duty or a public corporation or an intruder to a public office. Mandamus has two distinct objectives: a. to compel the performance of a lawful act which the respondent has refused or neglected to do. Mandamus covers ministerial functions. b. to oust a usurper or intruder to a public office; where there is an unlawful exclusion of another persons right to a public office or to enjoy the powers or prerogatives of said office, a writ of mandamus may be issued to enable the officer entitled to the position to recover the office
object of the remedy
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CERTIORARI
preconditions before the remedy can be availed of There is no more appeal and/or speedy and adequate remedy available (doctrine of exhaustion also known as doctrine of primary resort). Certiorari is an extreme remedy and it will not be allowed if the petitioner can still avail of other remedies. Note: Generally, a motion for reconsideration should have been availed of to show exhaustion of remedies; however, there are some exceptions: a) when appeal would be useless; b) when appeal would not be fast enough to avoid impending prejudice and where only a question of law is involved. Within 60 days from receipt of questioned order
PROHIBITION
-SAME-
MANDAMUS
-SAME-
when the remedy is available
Within 60 days from receipt of questioned order or from the time the act considered began If the petition is granted, the respondent is directed to refrain from further continuing with the proceedings. -SAME-
effect
If the petition is granted, the questioned order is set aside.
Within 60 days from receipt of the order or from the time there is refusal to comply with the lawful duty or 60 days from the moment of usurpation If the petition is granted: a) the respondent shall be compelled to perform his lawful duty; b) the respondent who is a usurper is ousted from the office. -SAME-
where to avail
It can be filed before the Regional Trial Court, Court of Appeals, or Supreme Court. If the respondent is a quasi-judicial agency, the petition must be filed with the Court of Appeals.
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CERTIORARI RULE 65 NATURE SUBJECT

It is an original action. The subject is grave abuse of discretion. The judgement on the case for certiorari under Rule 65 itself can be the subject of an appeal. If the remedy is granted, the questioned order is merely set aside. The remedy is available within 60 days from receipt of the order.
RULE 45
It is a mode of appeal. The subject is grave error. The judgement in certiorari under Rule 45 can no longer be appealed since a petition for certiorari under Rule 45 is the terminal step in the appeal process. If the petition is granted, the reviewing court may reverse, modify or alter the decision that was rendered by the trial court. The remedy is available within 15 days from receipt of the judgement that was rendered by the appellate court.
APPEALABILITY
EFFECT IF GRANTED
AVAILABILITY
In petitions for certiorari, prohibition and mandamus, a public respondent is required to be impleaded. Furthermore, any adverse party should likewise be impleaded as a private respondent. The private respondent is a nominal party and is impleaded in the concept of a necessary party. However, if the public respondent is not impleaded, such omission would be fatal to the petition.
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Condemnation Proceedings
Petition for the exercise of eminent domain Respondent must file an answer Court issues order of expropriation Court issues an order fixing compensation
The state can take possession of the property by posting a deposit for value in favor of respondent
YES
Responde nt opposes
Court determines w/n expropriation is proper
Court determines issue of compensation
NO
The State can exercise its inherent power of eminent domain by filing a petition for condemnation or expropriation. Under the present law, expropriation is now a two step process. The court determines two issues successively. First, whether or not the expropriation should be allowed, and second, whether or not the price offered by the government is sufficient compensation.
Notes on Condemnation Proceedings

1. The orders issued by the court, namely: a) order approving expropriation, and b) order fixing the compensation, can be the subject of separate appeals. 2. A petition for eminent domain can only be filed by the government. A local government unit can also file a petition for expropriation, provided, it is related to the exercise of the governmental functions of such Local Government Unit. 3. The government can take possession of the property after the petition was filed provided it posts a deposit for value. If the respondent believes that the deposit is insufficient, he can file a motion to increase the amount deposited. 4. In case the respondent opposes the eminent domain, he can file an answer containing all possible defenses, such as: a) the taking is unreasonable, b) the taking is not necessary, or c) the taking was unjust. 5. The order of expropriation is a final order and is independent of the issue of just compensation. 6. The matter of just compensation is the subject of another proceeding. Evidence for just compensation is received after the court has issued an order of expropriation. Under the present law, the court may appoint commissioners to determine the matter of just compensation. The factors used to determine compensation are as follows: a) declared value, b) zonal value, or c) market value.
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Quo Warranto
to cancel the registration of a private corporation to oust a usurper from a public office
instituted by the OSG, Public Prosecutor on its own, or upon the order of the president .
instituted by the OSG, Public Prosecutor at the behest of a third party
Note: This requires prior application in court
Quo Warranto
Quo warranto is made up of two types. The first type is to cancel a corporate charter and the second type is to oust an intruder to a public office. Quo warranto of the first type is now vested by law upon the Securities and Exchange Commission (SEC) by virtue of PD 902-A. Note: If a corporation is being used to commit fraud, to protect and/or defend crime, and/or to advance an illegal activity, the State may cancel the certificate of registration of such corporation. Under PD 902-A, the SEC, on its own or upon the complaint initiated by a third party, can initiate an action for cancellation of its corporate charter. With respect to quo warranto of the second type, there are two subtypes, namely: a) quo warranto initiated by the OSG on its own or upon orders of the president; or b) quo warranto instituted by the OSG at the behest of a third party. In the case of quo warranto at the behest of a third party, the law requires a prior application in court for permission to commence quo warranto. The OSG/Public Prosecutor may require the third party to post a bond or pay indemnity for whatever expenses and cost that may be incurred by the claimant in court. Note: The OSG could be the subject of counterclaim for damages. Thus, the OSG can ask for reimbursement. A petition for quo warranto must be filed within a period of one year from and after the time of usurpation.
Mandamus 60 days
QUO WARRANTO (1 YEAR) Usurpation
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Interpleader
A special civil action whereby one who has property (real or personal) in his possession, or obligation to render wholly or partially, without claiming any right, comes to court and asks that the persons who claim the property or who consider themselves entitled to demand compliance of the obligation, be required to litigate among themselves in order to determine with finality who is entitled to the property or obligation.
Petition for Interpleader is filed
Court will determine w/n it is sufficient in form and substance
Court issues an order directing all respondents to file their answer
Respondents may file complaint, answer or third party complaint
Court litigates the rights of the respondents
Court issues an order fixing the rights of the parties
In interpleader, there are several possible conflicting claims involving the same subject matter. Consequently, the party against whom such conflicting claims can be made may institute an action for the purpose of determining the rights as well as the obligation of the claimants. In interpleader, the respondents are potential litigants who have not yet decided to litigate their claims. Thus, the purpose of interpleader is to compel such parties to litigate. In interpleader, the respondents may file a motion to dismiss with respect to the claims asserted against them. The respondents may also file cross-claims, counterclaims, and/or third party complaints. The case is tried just like an ordinary civil action. After trial, the court will issue an order fixing and defining the rights of the parties. However, an action for interpleader is strictly in personam. Hence, parties not summoned are not bound by the judgement.
Declaratory Relief
A special civil action brought by: a) a person interested under a deed, will or contract, or written instrument, or b) a person whose rights are affected by statute, executive order, regulation, or ordinance, before breach or violation thereof. This special civil action is availed of to determine any question or construction of validity arising under the instrument or statute and for the declaration of his rights or duties thereunder.
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In declaratory relief, there is no breach or violation of any law, contract, and/or instrument. This is an exception to the general requirement that no action may be instituted unless there is a cause of action. The petitioner is theoretically asking the court to give an opinion on the subject matter before a dispute has occurred. The court, in declaratory relief, gives an opinion even before a cause of action arises. A Petition for Declaratory Relief can be converted any time to an ordinary civil action if a breach or violation of any right takes place during the proceedings. It is the RTC that has original and exclusive jurisdiction to entertain petitions for declaratory relief. The reason for this is that this action is classified as one involving a matter that is incapable of pecuniary estimation. The court has the discretion to deny a Petition for Declaratory Relief if in its opinion such petition will not completely avoid future litigation. The Supreme Court cannot entertain petitions for declaratory relief. In those instances where the constitutionality of any law or statute is under question, notice to the OSG is mandatory. Otherwise, the State will not be bound by the proceedings. In those cases where judicial review is done to determine the constitutionality of a statute, the following are the standard requisites for the exercise of judicial review: a. there must be an actual case or controversy b. the question of constitutionality must be raised by the proper party c. the constitutional question must be raised at the earliest possible opportunity d. there is necessity of deciding the constitutional question. Provisional remedies are improper and are not allowed in actions for declaratory relief.
Four Types of Petitions for Declaratory Relief

a. Petitions for Declaratory Relief Proper The subject is a deed, will, instrument, statute, rule, law, and other regulations. In this type of action, the petitioner prays for the opinion of the court concerning the interpretation of rights or construction of the aforesaid documents. b. Reformation of Instruments Under this particular type of action, the petitioner asks the court to order the reformation of an instrument to conform to the intent of the parties. Likewise, an action requesting the court to fix a period of payment upon litigation falls under this type of action.
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c. Action to Quiet Title over Real Property Under this type of action, the petitioner asks the court to determine who has a better title over the real property. d. Consolidation of Title in Pacto de Retro Sales Under this type, the buyer a retro can file an action in court for the purpose of consolidating his rights over a property that he acquired under a pacto de retro sale. Consolidation is proper only when the right of redemption has already expired.
Foreclosure of Rem
Judicial Rules of Court How
By filing a petition in court to foreclose a real estate mortgage. The case is tried just like any other civil case. Thereafter, the court renders judgement for the creditor mortgagee and an order of foreclosure is issued.
Extra-Judicial Act 3135

By requesting a notary public, with notice to ex-officio sheriff, to extrajudicially foreclose a real estate mortgage. Note: Extra-judicial foreclosure is only allowed if the deed of the real estate mortgage expressly states that the parties are bound by Act 3135, without such stipulation, extra-judicial foreclosure is not allowed. Upon registration of the certificate of foreclosure sale with the Registry of Deeds, the mortgagor is given a period of one year within which to redeem the property.
Time
The debtor mortgagor is given a period of not less than 60 days but not more than 120 days from the entry of judgement to pay or else the foreclosure sale takes place, the court will issue an order of confirmation of sale. However, before finality of the aforesaid order, the mortgagor may redeem the property (called equity of redemption). After the order becomes final and executory, redemption is no longer necessary/allowed, except if the mortgagee is a bank, in which case there will be a one-year redemption period.
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Notes on Foreclosure
Foreclosure does not affect holder of registered encumbrances (a.k.a. senior mortgages). This means that the senior mortgages must be respected and they have the same and in fact a superior right to foreclose the property. Junior encumbrances are cut-off when a superior encumbrance is foreclosed. Nevertheless, junior encumbrances have a right to the excess in the process of the foreclosure sale after deducting the proper amount to cover the senior encumbrance. Furthermore, junior encumbrance may participate in the equity of redemption in extra-judicial foreclosure. Seniority of encumbrance is determined by the date of registration not by the date of the instrument. In extra-judicial foreclosure, the mortgagee can bid at the foreclosure sale but his bid cannot be lower than the obligation. In judicial foreclosure, if the obligation is not paid fully, after the foreclosure sale, the mortgagee may pray for a deficiency judgement.
Real Property Disputes
Title
Possession
Accion Reivindicatoria
Reconveyance Suit
Petition Exceeds 1 Year Less than 1 Year for Accion Ejectment Suit Review of Pobliciana the Decree of Registration Forcible Unlawful Entry Detainer
Forcible Entry
There is forcible entry if there is deprivation of possession due to force, intimidation, strategy, threat, stealth (FISTS). The deprivation must not exceed one year from the time of dispossession. No prior demand to vacate is required. Forcible entry is governed by the rules on Summary procedure. Judgement is immediately executory. Execution is not stayed by an appeal.
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Unlawful Detainer
In unlawful detainer, the party entitled to the possession of the property is deprived of such possession by a lessor, vendor and/or vendee. The dispossession must not be more than one year, reckoned from the time a demand is made unless such demand is excused by stipulation. Unlawful detainer is governed by the rules on summary procedures and the judgement is immediately executory. However, execution may be stayed on appeal if the defendant posts a supersedeas bond and deposits to the court from time to time the accrued rentals.
Notes on Ejectment Cases

In ejectment, the only issue is possession. If the question of ownership is raised and the issue of possession may not be resolved without going through the question of ownership, the court will decide the issue of ownership but only for the purpose of determining the rightful possessor. Any resolution on the issue of ownership will not be final and not binding upon the parties. The parties must litigate the question of ownership in another proceeding. Note: In this case res adjudicata will not apply. Under the previous law, preliminary mandatory injunction is allowed only in forcible entry cases. However, under the present law, it appears that the plaintiff is allowed to file a motion for preliminary mandatory injunction to recover possession in all types of ejectment cases provided the motion is filed within 5 days from the time the filing of the complaint. Note: It is respectfully submitted that preliminary mandatory injunction should not be allowed in unlawful detainer cases because it will have the effect of altering the status quo. Preliminary mandatory injunction that is used to recover or transfer possession is a harsh remedy that may prejudice a defendant who is in fact lawful. A Writ of Demolition need not be issued if the tenor of the Writ of Execution includes an order to demolish structure. Judgements in ejectment cases are applicable against possessors who derived their possession from the losing defendants. In judgements for unlawful detainer, the court is allowed to award back rentals, irrespective of the value and amount, provided that if the court rendered a judgement of default, no back rentals will be awarded.
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Actions for Partitions

1. Partition is proper when there is co-ownership existing over a real property 2. The ownership arises out of contract or succession. 3. If it arises out of succession, a partition proceeding will have the effect of selling the estate of the deceased. 4. If it arises out of a contract, a petition for partition will only be entertained if there is a showing that the parties are unable to come to an agreement regarding the division of the property. 5. The order of partition will not bind a party who was not impleaded or summoned. 6. If a petition for partition is sufficient in form and substance, the court will give due course on it and may appoint a commissioner for the purpose of determining how the partition may be conducted. 7. Partition can be done physically or if not feasible the subject can be sold and partition may be done by dividing the price among the co-owners. Contempt
Direct Contempt Indirect Contempt
Contempt
1. Direct contempt is committed in the presence of the court. It is consists of a misbehavior or irrelevant act/conduct. 2. The respondent may be penalized by imprisonment for not more than 10 days (if the contempt was committed against an inferior court), or a fine not exceeding P 2,000.00. 3. Indirect contempt is one which is committed outside the presence of the court but which consists of an act that tends to obstruct the administration of justice. 4. Contempt orders are considered final orders and therefore appealable. Court Process
Summons Writs Subpoena Subpoena Duces Tecum
Subpoena Ad Testificandum
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Subpoena
It is a mandatory process directed to specific person requiring him to be present in court. Subpoena may be issued for the purpose of compelling a person to testify in which case it is called subpoena ad testificandum. Subpoena may be issued for the purpose of compelling a person to bring to court documents and papers in which case it is called subpoena duces tecum.
Manner of Service
Subpoena may be served in the same manner as personal or substituted service of summons. When subpoena is served, the original must be exhibited and a copy thereof is delivered to the person plus reasonable fees for one days attendance. In case of subpoena duces tecum, the reasonable fee for reproduction of documents must likewise be tendered. A witness is not compelled to obey the subpoena if he resides in a place more than 100 kms from the place of trial. Note: In criminal cases, the 100 kms rule is not applicable if sought by the accused. The requirement to tender the proper fee is not present. In those instances where the witness resides beyond 100 kms from the place of trial, the deposition of such witness may be taken before a local notary public.
Counter-Remedies against Subpoena

If subpoena is oppressive, unreasonable, does not specify the subject thereof or there is a failure to tender the required fees, the court may quash the subpoena upon motion by the proper party.
Consequences of Defying a Subpoena

If a witness defies a subpoena, the court may, upon proof of proper service of the subpoena, issue a warrant of arrest addressed to the sheriff or any other peace officer for the purpose of arresting such witness so that he can be brought to court. Furthermore, the witness can be cited for contempt and appropriately be penalized.
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Judgement
For money Claims
For Recovery of Property
For Requiring the Sale of Property
To Compel Performance of an Act
To Permanently Restrain the Performance of an Act
If a judgement involves payment of an amount or a money claim, the sheriff shall enforce the execution as follows: 1. By first tendering a demand in writing to the judgement debtor requiring him to pay the amount with a reasonable period of time. 2. If the judgement is not complied with, the sheriff thereafter levies on the property of the debtor sufficient to cover the judgement debt. 3. After the levy is completed, the sheriff is allowed to conduct an execution sale. If the property levied is a perishable property, a written notice of the time and date of the sale should be posted in three public places for not less than five days. If the property levied is real property, the notice of sale must be posted in three public places for at least 20 days; and if the value of the property is more than P 5,000.00, there must be a publication once a week for two consecutive weeks of the execution sale in a newspaper of general circulation in the province where the property is situated. In any event, the judgement creditor must always be notified of the execution sale. 4. After the execution sale takes place, the proceeds are turned over to the judgement creditor and any excess shall be turned over to the judgement debtor.
Redemption Rights
Real property sold at public auction may be returned within one year from the time the certificate of sale is registered with the Register of Deeds. The judgement debtor can redeem the property by paying the judgement debt. Notwithstanding the redemption by the judgement debtor, a redemptioner may redeem the property from the buyer at auction within sixty days from the time of sale and all other redemptioners may also redeem within sixty days after the redemptioner has paid the buyer at auction. Note: A redemptioner is any party who holds an encumbrance subsequent to the lien on execution. A redemptioner is given sixty days from time of sale to redeem the property.
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Judgement for Recovery

Where a deed is required to reconvey the property, the court can order the registered owner to execute such deed or if there is failure to execute such deed, the court can, on its own, divest the previous owner of his right over the property and convey it to the judgement creditor. If what is involved is the possession of the property, the court can authorize the sheriff to take material possession of the property provided the present possessor is given a three-day period within which to surrender possession. The sheriff may obtain the help of any peace officer for the purpose of recovering the possession of the property. If the judgement compels the performance of an act, the court may direct a third party to perform the act and the costs and expenses may be charged against the judgement debtor.
Judgement Permanently Restraining the Performance of an Act

The writ of execution is served upon the judgement debtor. If the judgement debtor violates the writ of execution, then he will be cited for contempt.
Other Kinds of Judgement

In those judgements that require change in registration or altering status, the court can issue an order directing the appropriate government agency to effect a change in registration.
Matters that are Exempt from Execution

1. 2. 3. 4. 5. 6. 7. family home ordinary tools and implements used in trade or employment 3 horses or 3 cows or 3 carabaos necessary clothing and articles of personal use but excluding jewelry household furniture provisions for subsistence for not more than 4 months professional libraries of lawyers, physicians, etc
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NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW edstf@yahoo.

JURISDICTION IN CIVIL CASES

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REGIONAL TRIAL COURT

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METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS

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BASIC ELEMENTS OF PROCEDURE

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SUBJECT MATTER SOURCE

THE PARTY IN THE CASE

THE ISSUE IN THE CASE

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Trial on the Merits

Real Property Disputes

Possession exceeds 1 year 1 e.g. accion publiciana has

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Other Real Property

Money Claims, Recovery of Personal Property

Joinder of Causes of Action

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Public created under Special Law

Private created under General Corp. law Domestic Foreign

Parties from the Point of View of Importance

Real Party in Interest Party

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Entity without Juridical Personality

Splitting a Cause of Action

Criminal Law Jurisdictional Real Action

Civil Law Procedural Personal Action

Venue is the place where an action is instituted.

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In Rem Proceedings (binding effect of judgement)

Quasi In Rem Proceedings

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Duty of a Lawyer if his Client Dies

allegation 1--------issue-------counter-allegation 1 allegation 2--------issue-------counter-allegation 2 allegation 3--------no issue

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Basic Rules for Pleadings

Affirmative Defense Actionable

Valid Negative Defense

General Denial Document not

that is properly denied

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Valid Negative Defense

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Answer is filed upon motion of the plaintiff Pre-Trial

Answer is not filed

Court issues an order of default

Consequences of an Order of Default

Remedies of a Default Defendant

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Motion to Declare Defendant in Default

Under Summary Procedure

filed Complaint is filed Summons is served Answer not filed

Court render pleading

judgement based on the

Instances when Default is not allowed

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Analogous Cases of Default

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