Civ Pro Consi Notes

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[ IKEBUKURO NOTES ]

2015 CONSOLIDATED NOTES: CIVIL PROCEDURE

This tome attempts to consolidate the hundred lecture notes by Dean

Jara, the books of Dean Riano and Dean Regalado, and the Survey of

Supreme Court decisions and addendums by Dean Albano.

The intellectual property over the content of this compilation belongs

to them. All errors in the transcription, however, are mine to bear.

Due credit and appreciation are granted to the people who transcribed

the wonderful MAS POGI and POGI notes; the 2004, 2014, 2015 San

Beda BarOps; the San Beda Law Journal; and all people who helped

in one way or another.

This work was completed in haste. Please indulge the compiler if you

find grammar, spelling, and formatting mistakes.

This is version two and does not contain half the book of Dean Riano

and the entire book of Dean Regalado as envisioned. It does contain

the 2004, 2013, 2014 and 2015 lectures of Dean Jara, the Survey of

SC Decisions by Dean Albano from 2011 to 2014, and some more

case updates from browsing thelawyerspost.net.

JURISDICTION: GENERAL NOTES

Jurisdiction is the power and authority of a court to hear, try, and

decide a case, and execute its judgment.

Premise: Jurisdiction is a matter of substantive law.

This is not necessarily true.

Substantive law deals with jurisdiction over the subject matter and/or

jurisdiction over the nature of the action. This is the aspect of

jurisdiction governed by BP 129 and the other substantive laws on

jurisdiction. (Dean Riano: Since jurisdiction over the subject matter is

a matter of substantive law, it cannot be granted by agreement of the

parties; acquired, waived, enlarged, or diminished by any act or

omission of the parties; or conferred by the acquiescence of the

courts [p. 69])

Jurisdiction over the person of the litigants, jurisdiction over the

property involved, and jurisdiction over the issues of the case, on one

hand, are governed by the Rules of Court.

Dean Riano: The test of jurisdiction is whether the court has the

power to enter into the inquiry and not whether the decision is right

or wrong. The fact that the decision is erroneous does not divest the

court that rendered it of the jurisdiction conferred by law to try the

case.

When it appears that the court has no jurisdiction over the subject

matter of a complaint filed before it, the court has the duty to dismiss

the claim and can do so motu proprio (citing Rule 9, Section 1, p. 62-

63).

Q: Is it the duty of the court that dismissed the complaint on the

ground of lack of jurisdiction to forward it to the proper court?

Dean Riano: No. No such duty is dictated by the Rules of Court.

JURISDICTION OF THE SUPREME COURT

BP 129 does not mention anything about the SC. It begins with the

CA downwards, up to the MTC and the Sharia Courts. Supreme

Court exercises its authority from the Constitution. In the

Constitution, the SC exercises original jurisdiction and appellate

jurisdiction. But the Constitution does not say that original

jurisdiction of the SC is exclusive, nor about the appellate jurisdiction

being exclusive. The basis for this is in the old Judiciary Act of 1948

where SC jurisdiction is delineated in a very thorough manner,

providing exclusive original and appellate jurisdiction of the SC.

Note that BP 129 did not repeal the old Judiciary Act and hence it is

still in force. What BP 129 repealed are provisions of Judiciary Act

of 1948 that are inconsistent with BP 129. The best argument to

support this statement is Sec. 9 in BP 129.

Sec. 9 BP 129, paragraph 3, last sentence:

“3. Exclusive appellate jurisdiction over all final

judgments, resolutions, orders or awards of

Regional Trial Courts and quasi-judicial

agencies, instrumentalities, boards or

commission, including the Securities and

Exchange Commission, the Social Security

Commission, the Employees Compensation

Commission and the 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 under Presidential Decree No. 442, as

amended, the provisions of this Act, and of

subparagraph (1) of the third paragraph and

subparagraph 4 of the fourth paragraph of Section

17 of the Judiciary Act of 1948.”

The Constitution provides for a limited number of cases over which

the SC can exercise original jurisdiction and limited number of cases

over which it can exercise appellate jurisdiction. Unlike the old

Judiciary Act, the Constitution did not state that the jurisdiction of the

Supreme Court is exclusive.

See: Art. VIII, Section 5, 1987 Constitution


SC: EXCLUSIVE ORIGINAL JURISDICTION

Petitions for certiorari, prohibition and mandamus against the CA,

COMELEC, CoA, Sandiganbayan, and Court of Tax Appeals.

SC: CONCURRENT ORIGINAL JURISDICTION

1. With the RTC:

Cases affecting ambassadors, other public ministers and consuls

2. With the CA:

a. Petitions for certiorari, prohibition or mandamus

against the RTC, Civil Service Commission,

CBAA, NLRC, and other quasi-judicial agencies b. Petitions for Writ of Kalikasan

3. With the RTC and CA:

a. Petition for habeas corpus

b. Petition for quo warranto

c. Petitions for certiorari, prohibition or mandamus against MTC and other bodies

4. With the RTC, CA and Sandiganbayan:

a. Petition for Writ of Amparo b. Petition for Writ of Habeas Data

SC: APPELLATE JURISDICTION

1. By way of certiorari under Rule 45 against the CA,

Sandiganbayan, RTC (pure questions of law only), CTA en

banc, and

2. Cases on the constitutionality and validity of a law or

treaty, international agreement or executive agreement,

presidential decree, proclamation order, instruction,

ordinance or regulation, legality of a tax, impost,

assessment, toll or penalty, jurisdiction of a lower court.

Certiorari, Prohibition and Mandamus have been greatly limited by

certain procedural rules. The limitation is known as the hierarchy of

courts. Thus, while theoretically a petition can be filed directly to the

SC, one should follow the procedure under the principle of hierarchy

of courts. In Rule 65, it is expressly provided that petitions for

Certiorari, Prohibition and Mandamus (and even Quo Warranto and

Habeas Corpus - Dean Jara) should be filed directly only with two

courts, the RTC or the CA.

See: Rule 65, Section 4

It should be further noted that although the Supreme Court, the CA,

and the RTC have concurrent jurisdiction on petitions for certiorari,

prohibition, mandamus, habeas corpus, and quo warranto, the RTC

may only enforce these writs ‘in any part of their respective regions’.

The CA, on one hand, was once limited to issue these writs only in

aid of its appellate jurisdiction, but BP 129 repealed this rule, stating

now the phrase, ‘whether or not in aid of its appellate jurisdiction.’

As contrast, the Sandiganbayan also has jurisdiction to hear petitions

for certiorari, prohibition, and mandamus, but may only issue these

writs only in aid of its appellate jurisdiction.

Q: Jurisdiction of courts must be expressly conferred by law. Has

the CTA certiorari powers even though there is no express grant

of such power?

Dean Albano: Yes. In order for any appellate court to effectively

exercise its appellate jurisdiction, it must have the authority to issue,

among others, a writ of certiorari. In transferring exclusive

jurisdiction over appealed tax cases to the CTA, it can be reasonably

be assumed that the law intended to transfer also such power as is

deemed necessary, if not indispensable, in aid of such appellate

jurisdiction.

Furthermore, under Section 6, Rule 135, when by law, jurisdiction is

conferred on a court or a judicial officer, all auxiliary writs,

processes, and other means necessary to carry it into effect may be

employed by such court or officer (citing City of Manila v. Grecia-

Cuerdo).

Q: There is an apparent conflict between the Family Court Law,

BP 129, and the Constitution. Under the Family Courts Act of

1997, the Family Court shall have exclusive original jurisdiction,

among others, over ‘petitions for guardianship, custody of

children, habeas corpus in relation to the latter.’ The

Constitution dictates that the Supreme Court has jurisdiction

over habeas corpus cases, and BP 129, though enacted on an

earlier date than the Family Court Act, states that the RTC and

CA shall also have jurisdiction over habeas corpus cases. How do

you resolve this apparent conflict?

Under Thornton vs. Thornton, G.R. No. 154598, decided August 16,

2004, the Supreme Court held that RA 8369 (the Family Court Act)

did not divest the Court of Appeals and the Supreme Court of their

jurisdiction over habeas corpus cases involving the custody of minors

because:

1. It could not have been the intention of the lawmakers to

limit the writ to Family Courts which are limited only to

respective territories,

2. the primordial consideration is the welfare and best

interests of the child,

3. that a literal interpretation of the word ‘exclusive’ will

result in grave injustice,

4. that implied repeals are not favored, and

5. that A.M. 03-03-04-SC, or the Rule on Custody of Minors

and Writ of Habeas Corpus in Relation to Custody of

Minors, state that the Supreme Court and Court of Appeals shall have concurrent jurisdiction over said writs.

Among the basic principles of the enactment of BP 129 was to do

away with the concept of concurrent jurisdiction. BP 129 has not

been able to do away entirely with concurrent jurisdiction. BP 129

does not use the term concurrent in vesting jurisdiction upon courts.

Generally, BP 129 has been able to do away with the concept of

concurrence of jurisdiction, except with respect to certiorari,

prohibition, mandamus, quo warranto and habeas corpus. Since the

Constitution and BP 129 allocate original jurisdiction upon 3 courts,

then it is safe to conclude that these 3 courts exercise original and

concurrent jurisdiction over these petitions.


JURISDICTION OF THE COURT OF APPEALS

CA: EXCLUSIVE ORIGINAL JURISDICTION

Cases of annulment of judgment of an RTC.

CA: EXCLUSIVE APPELLATE JURISDICTION

1. Ordinary appeal from RTC and Family Courts

2. Petition for review from RTC in exercise of its appellate

jurisdiction

3. Petition for review from decisions, resolutions, orders or

awards from CSC, Ombudsman in administrative cases and

other quasi-judicial agencies in exercise of its quasi-judicial

functions as mentioned in Sec. 1 Rule 43.

CA: CONCURRENT ORIGINAL JURISDICTION

1. With the SC:

a. Petitions for certiorari, prohibition or mandamus

against the RTC, Civil Service Commission,

CBAA, NLRC, and other quasi-judicial agencies

b. Petitions for Writ of Kalikasan

2. With the RTC and SC:

a. Petition for habeas corpus

b. Petition for Quo warranto

c. Petitions for certiorari, prohibition or mandamus

against the MTC and other bodies

3. With the SC, RTC and Sandiganbayan:

a. Petition for Writ of Amparo b. Petition for Writ of Habeas Data

Q: Is the SC a court of general jurisdiction?

A: The SC, despite being the highest court of the land, is not a court

of general jurisdiction, it exercises only limited original jurisdiction

as provided for under the Constitution. It is generally not a trier of

facts. The same is true in the CA. In Sec. 9 BP 129, the CA’s

authority is very limited.

Under BP 129, the Court of Appeals may authorize itself to conduct

new trials and receive evidence in proper cases. The Constitution, and

even the Rules of Court, is silent whether or not the same power may

be done by the Supreme Court.

Q: CA has exclusive original jurisdiction over Annulment of

Judgment of an RTC under Rule 47. Does it mean that the CA

can annul a judgment rendered by an MTC?

A: Since the CA is a court of limited jurisdiction, it is allowed to

annul judgment only judgments from the RTC. It cannot annul

decisions of an MTC.

Q: Would it mean that the judgment of an MTC is immune from

annulment of its judgment by the CA?

Yes. The decision of an RTC can be annulled by the CA. But the

decision of an MTC is immune from annulment by the CA. But, the

decision of an MTC can be annulled by an RTC. It is not so provided

in BP 129 that an RTC can annul a judgment of an MTC, but it is

provided for under Section 10 of Rule 47 on Annulment of Judgment

in the Rules. Thus, jurisdiction is vested in the RTC under the Rules

for it to be able to annul judgments rendered by an MTC.

Q: Can we then challenge the jurisdiction of RTC as BP 129, a

special law, should take precedence over a substantive law, as BP

129 does not expressly give the RTC the authority to annul

judgment of an MTC? Why?

A: We cannot. This is because, under BP 129 there is an allocation to

the RTC of jurisdiction to entertain and decide all kinds of actions

which are not especially given to other courts. This is the provision

why an RTC can annul judgments of the MTC as well as the reason

why the RTC is considered as the real court of general jurisdiction in

our justice system. Since no substantive law has allocated to other

courts the jurisdiction to annul judgments of an MTC, it follows now

that the RTC is the proper court to decide on the matter as provided

under BP 129 for an RTC to entertain and decide all kinds of actions

not especially given to other courts.

See: Islamic Da'wah Case

Q: Can an RTC entertain and decide on cases of annulment of

judgments of another RTC prior to BP 129? Why?

A: Before BP 129, SC held yes, because the RTC is a court of general

jurisdiction. This is the reason why in BP 129, Congress deemed it

necessary to incorporate a provision giving exclusive authority to the

CA to annul a judgment rendered by the RTC to do away with the

anomalous situation where an RTC is able to annul judgments

rendered by another RTC, as there was no specific substantive law

prior to BP 129 which allocated to other courts the authority to annul

judgments of the RTC.

Q: Can the SC annul the judgment of the CA?

No. The Constitution and BP 129 does not provide authority for the

SC to annul judgments rendered by the CA. There is no substantive

law or special law authorizing SC to annul judgments rendered by the

CA.

It does not mean that the decisions of the CA are immune from

annulment. The SC could still exercise its equity jurisdiction, most

likely under Rule 65, in order to annul a judgment of the CA, based

on the same grounds given under Rule 47, extrinsic fraud and lack of

jurisdiction.

JURISDICTION OF THE REGIONAL TRIAL COURT

There are three factors that determine whether or not the Regional

Trial Court has jurisdiction over a given civil case:

1. Whether or not action is capable of pecuniary estimation;

2. Whether or not the action is a real action; and

3. If the amount is known, whether the amount is within the

ambit of the jurisdictional amount.

RTC: INCAPABLE OF PECUNIARY ESTIMATION


Not all actions incapable of pecuniary estimation are cognizable by

RTC.

For example, the following actions, though incapable of pecuniary

estimation, are not exclusively cognizable by the RTC:

1. Annulment of judgment rendered by RTC – not capable of

pecuniary estimation, cognizable only by the CA.

2. Annulment of arbitral award by barangay court acting as

arbitral body – cognizable by MTC, as provided by the

LGC, although incapable of pecuniary estimation.

3. Certiorari, prohibition and mandamus – not exclusively

cognizable by RTC, although incapable of pecuniary

estimation.

Dean Albano: Settled jurisprudence considers some civil actions as

incapable of pecuniary estimation, viz:

1. Actions for specific performance;

2. Actions for support which will require determination of the

civil status;

3. The right to support of the plaintiff;

4. Those for the annulment of decisions of lower courts;

5. Those for the rescission or reformation of contracts; and 6. Interpretation of a contractual stipulation.

RTC: JURISDICTION IN REAL ACTIONS

Q: Is it possible a real action is at the same time one incapable of

pecuniary estimation?

A: Yes. A good example of a real action that is incapable of

pecuniary estimation is foreclosure of real estate mortgage. It is not

capable of pecuniary estimation as the determinative issue here is the

right of the mortgagee to foreclose, not the value of the property.

Q: What do we do in determining jurisdiction of an action is a

real action but is incapable of pecuniary estimation? What factor

will be determinative to determine jurisdiction of the court?

A: SC held in a line of cases that if the action carries the feature of

real action and one incapable of pecuniary estimation, then the

determinative factor is the feature of incapable of pecuniary

estimation. Thus, RTC has exclusive jurisdiction of foreclosure

actions, even if the assessed value of the property involved is less

than the jurisdictional amount of the RTC. As long as the action is

foreclosure of mortgage, the RTC has jurisdiction.

The feature of foreclosure of mortgage as a real action will only be

important in determining the venue, not the jurisdiction.

A similar action which applies the same principle is expropriation.

Expropriation of a piece of land is one involving real action, but it

does not take into account the assessed value of the land in

determining jurisdiction. Thus, it is real action, although incapable of

pecuniary estimation, as the right to expropriate is the main issue, not

the value of the land involved.

HOWEVER, and you should take note of this, under the latest case

on the matter, the Supreme Court held in Barrido v. Norato, G.R. No.

176492, October 20, 2014, that ‘the MTCC has jurisdiction to take

cognizance of real actions or those affecting title to real property, or

for the recovery of possession, or for the partition or condemnation

of, or foreclosure of a mortgage on real property.’ Although the main

issue involved in the case is partition, it is unknown if the same rule

may be applied to expropriation and foreclosure proceedings.

Q: Between the plaintiff’s allegation in his complaint for

reconveyance of possession of real property that the property is

estimated to be worth P50,000, and an uncontroverted (common

evidence) tax declaration that states the property has an assessed

value of P11,160, which amount should prevail for the purpose of

jurisdiction?

Dean Riano: The uncontroverted tax declaration should prevail and

under BP 129, MTC should have jurisdiction over the complaint. The

estimated value, commonly referred to as the fair market value, is

entirely different from the assessed value of the property (p. 122).

Q: What if the property has no assessed value? What value will

then be used for purposes of jurisdiction?

There are several properties in the country which have not been

assessed for tax purposes. To determine jurisdiction, you go to the

neighboring lots until you locate a property that has an assessed

value. And that will be the basis in ascertaining the jurisdiction of the

court.

RTC: JURISDICTION IN MONEY CLAIMS

When it comes to personal actions, under BP 129, the determining

factor will be the amount sought to be recovered if it is a claim for

money, or if it is recovery of personal property, it is the value of the

personal property as alleged in the complaint.

The determining factor for jurisdiction in a pure collection suit is the

principal sought to be recovered, exclusive of charges interest,

attorney’s fees, damages, etc (IDALEC). If the amount sought to be

recovered by the plaintiff is 1M, it may be cognizable by the RTC if

the principal amount exceeds the jurisdictional amount (P200,000 or

P400,000 as the case may be), excluding IDALEC. If the principal is

only P200k and the rest are charges, damages, interest, etc., then the

MTC has jurisdiction over the case. It is therefore wrong to say that a

claim for P1 million is always cognizable by the RTC.

The entire amount, however, inclusive of IDALEC, shall be used to

fix the filing fees.

Q: What if the plaintiff seeks only recovery of damages inclusive

of actual, moral, nominal, among others? For example, plaintiff

sought 100K actual, 500K moral and 500k exemplary damages.

How do we determine jurisdiction here?

If the complaint is purely for damages, the aggregate (total) amount

of damages will determine jurisdiction, not the specific amounts

claimed. Thus, in the example, the RTC has jurisdiction. Even if the

complaint specified the amount of damages for each aspect, the

aggregate amount shall determine the jurisdiction.

Q: There is a complaint for a sum of money amounting to

P150,000. The case was filed with the MTC. During the trial, the

plaintiff presents evidence that he is entitled to P700,000. May

MTC award the P700,000?


No. The award is more than the jurisdictional amount granted by law

to inferior courts. The court cannot award the entire P700,000.

Q: What should the plaintiff do in this case?

He may waive the excess, but if he insists he should be awarded the

entire P700,000, the decision of the MTC is null and void.

Q: What if it’s in the reverse? What if there is a complaint for a

sum of money worth P700,000 but during trial the plaintiff was

only able to prove he is only entitled to P150,000? May the RTC

award P150,000?

Yes, applying the principle of adherence to jurisdiction.

RTC: RECOVERY OF PERSONAL PROPERTY

BP 129 as amended takes into account the assessed value only in the

case of real properties. Personal property values have no bearing in

jurisdiction. The value as stated in the complaint shall be

determinative (whether the figure is true or not).

Q: Plaintiff sought recovery of the car through replevin, claiming

that it is worth 800k. If the defendant challenges the value,

stating that the car is 30 years old, and willing to submit evidence

to show true value, will the court entertain the defendant’s

motion?

A: No. The court shall rely only on the allegations in the complaint.

Once the court acquires jurisdiction, it cannot be ousted; the court

proceeds with the case until finally adjudicated.

Q: What if it is found during trial that the car is actually worth

far less than the value claimed? Will the court remand the case to

the lower court?

A: No. It will continue to hear until final judgment. There will be

adherence of jurisdiction of the court over the case. The court will

continue trying the case until it is finally adjudicated.

The only way to oust jurisdiction in this regard is if Congress files a

law abandoning the principle of adherence of jurisdiction over a

particular case.

Q: Is there any exception to the rule that the court will not look

further the allegations in the complaint?

Dean Riano: Yes, in ejectment cases in which the defendant averred

the defense of the existence of a tenancy relationship between the

parties. However, there must first be a reception of evidence and, if

after hearing, tenancy had in fact been shown to be the real issue, the

court should dismiss the case for lack of jurisdiction (citing Ignacio v.

CFI of Bulacan and Hilado v. Chavez, p. 74-75).

Dean Albano: Although respondent averred tenancy as an affirmative

/ special defense in his answer, this did not automatically divest the

MTC of jurisdiction over the complaint. It continued to have the

authority to hear the case precisely to determine whether it had

jurisdiction to dispose of the ejectment suit on its merits (citing

Mendoza v. Geronimo, November 2010)

JURISDICTION OF MUNICIAL TRIAL COURTS

With respect to MTCs, notwithstanding the expanded jurisdiction

thereof, practically all cases decided by the RTC pertaining to

personal property can also be decided by the MTC, depending only

on the value of the property involved.

Note: MTC is still a court of limited jurisdiction despite the expanded

jurisdiction under BP 129 as amended. It can only try the cases given

to it under substantive law. The provision in BP 129 making the

RTCs courts of general jurisdiction is not given to MTCs. BP 129

stated explicitly that the RTC shall have exclusive original

jurisdiction over all actions that are not specially assigned to any

other court. This is not contained in the allocation of jurisdiction of

MTCs.

MTC: TOTALITY TEST

The totality test in BP 129 (Sec. 33(1), last proviso) is a proviso for

ascertainment of jurisdiction, more encompassing than that provided

in the Rules.

Q: What is the difference between the totality test in BP 129 and

the totality test in the Rules of Court?

Rules of Court – The totality test in Rule 2, Section 5(d) concerns

causes of action for money as to the amount. The totality of the

money claims shall be determinative of jurisdiction of courts.

BP 129 – The totality test refers to of all claims or causes of actions

in a complaint, whether they refer to the same or different parties or

arising out of the same or differing transactions. This is more

encompassing in scope.

MTC: DELEGATED JURISDICTION

The MTC, in its delegated jurisdiction, acts as if it were an RTC.

MTC acts as if it was a cadastral court (usually done by RTC). If the

land registration or cadastral case is contested, the assessed value of

the contested property is determinative of jurisdiction. If uncontested,

MTC acts as a cadastral as if it were an RTC, there being no

limitation as to jurisdiction. But BP 129 clearly states that if MTC

acts as a cadastral court the MTC’s decisions on cadastral cases shall

be appealable in the CA, not to the RTC (hierarchy of courts is not

followed).

Q: What is the step-ladder approach?

It states that appeals, as a general rule, have to follow the order of the

courts from the lowest to the highest court. Thus, appeals from the

inferior courts should go to RTC, and the RTC to the CA, so on.

MTC: SPECIAL / INTERLOCUTORY JURISDICTION

Habeas Corpus proceedings can be heard in the MTC, but only in

situations where petition was filed in the RTC, but no judges are

available in the RTC, so the petition is transferred to an MTC


wherein a judge is available. The MTC gains jurisdiction as habeas

corpus cases are urgent. In fact, habeas corpus cases are always given

special preference by the courts; and thus, if no RTC judges are

available to hear the petition, the clerk of court in the RTC must

transfer the case to the MTC, issuing in the process a certification

that there are no RTC judges to hear the case, and MTC must hear the

petition promptly. BP 129 does not authorize the filing of the habeas

corpus case directly in the MTC. Petition for habeas corpus filed in

the MTC can be challenged on jurisdictional grounds because BP 129

does not vest unto an MTC an authority to entertain a petition for

habeas corpus. It is only under circumstances where there are no RTC

judges available to entertain a petition for habeas corpus when an

MTC judge can now analyze and study the propriety the issuing of

the writ of habeas corpus.

RESIDUAL JURISDICTION

Take note that the trial court still has residual jurisdiction to act on

certain matters even if the case is already on appeal. See Rules 41 and

42. It is not correct to assume that if a case has been decided by the

trial court, after an appeal is perfected, the case is now under the

jurisdiction of the appellate court. Do not assume that the case is

entirely divested from the jurisdiction of the trial court, even if there

is a perfected appeal. The trial court continues to exercise jurisdiction

over certain matters for a limited period of time in its residual

jurisdiction. After the expiration of that period, absolute jurisdiction

will now be exercised by the appellate court.

PRIMARY JURISDICTION

In primary jurisdiction, this involves quasi-judicial bodies. What

happens in primary jurisdiction is that Congress enacts a law which

vests jurisdiction unto a quasi-judicial body to try and decide cases

which are cognizable by regular courts under BP 129. The reason

why Congress enacts these laws is that Congress feels that the quasi-

judicial body is better equipped to decide disputes of litigants in

certain cases than the regular courts.

For example, the HLURB has exclusive original jurisdiction to

adjudicate disputes between subdivision buyer/s and the subdivision

developers. In cases of breach of contract under the NCC on matters

pertaining to the jurisdiction of quasi-judicial bodies, the trial court

cannot take cognizance of these matters, although BP 129 gives

jurisdiction to regular courts over such matters, given the fact that

there is a substantive law vesting jurisdiction to the HLURB to

decide on such disputes. This is because it is presumed that the

HLURB is better equipped than a regular court to decide on such

cases due to its expertise.

Q: What if the subdivision developer filed in the MTC a

complaint for ejectment of a subdivision buyer who allegedly

violated the terms of the contract? The subdivision developer

sought to recover the property from the buyer, among other

prayers. The subdivision buyer challenged that MTC has no

jurisdiction over the case, and that it is HLURB which is the

proper body to take cognizance of the complaint. Does HLURB

have jurisdiction over the ejectment case?

SC held that the primary jurisdiction of the HLURB does not extend

to complaints of ejectment filed by one party against the other. In the

case of primary jurisdiction vested by substantive law to quasi-

judicial bodies, the authority of the quasi-judicial body is interpreted

strictly. Ejectment could really be a dispute between developer and

buyer, but since the complaint was for recovery of physical

possession of the property (or even accion publiciana), SC held that

regular courts should take cognizance.

DOCTRINE OF JUDICIAL STABILITY

Dean Riano: Courts of equal and coordinate jurisdiction cannot

interfere with each other’s orders. The principle also bars a court

from reviewing or interfering with the judgment of a co-equal court

over which it has no appellate jurisdiction or power of review (p. 34).

RULES OF COURT: GENERAL PROVISIONS

Q: What are the limitations provided in the Constitution limiting SC’s

authority in promulgating rules of procedure?

1. uniformity in all courts of the same grade

2. speedy and inexpensive determination of the case 3. does not modify, increase or decrease substantive rights

Any rule on procedure violating any one of the limitations given in

the Constitution, the rule can be properly challenged as to its validity

and applicability.

Q: A litigant challenged a rule on criminal procedure, stating

that Rule 115 (Rights of the Accused) is not procedural. He

argues that Rule 115 modifies substantive rights as espoused in

the Constitution, and should be deleted in the Rules of Court.

Decide.

The petition will be denied. SC said that while the authority of the SC

is to promulgate rules on proceedings, practice and procedure, and

substantive rights should not be covered by the provisions of the

Rules, SC said that it is practically impossible for rules of procedure

to be devised without incorporating certain provisions that are

dealing substantive law. The standard is that we take the Rules as

a whole, and determine whether it is procedural in character. If

the answer is yes, and there are certain provisions speaking about

substantive rights, that should not be a justification of deleting these

provisions in the Rules of Court.

Also, SC noted that the NCC, a substantive law, contains procedural

articles concerning court processes such as those concerning unlawful

detainer and forcible entry, but NCC still remain a substantive law.

According to the Rules, the Rules of Court should be interpreted

liberally. But the interpretation is one not in favor of the plaintiff or

defendant. The meaning of liberal interpretation is to promote the


ends of justice, to carry out the duty of the SC under the limitations

given under the Constitution.

Read: Alonso v. Villamor

Q: May the Rules be suspended in the interest of justice?

Qualify. The SC may suspend the Rules in favor of substantive law

or substantive rights. Lower courts may not suspend, but they have

the power and duty to construe and apply technical rules liberally in

favor of law and justice.

Q: Are they any Rules that require strict construction?

Yes. For example, the reglementary period for appeals is more often

than not strictly applied by the Courts. The perfection of an appeal in

the manner and within the period permitted by law is not only

mandatory but also jurisdictional.

Dean Riano: Furthermore, a reading of jurisprudence will reveal that

the rule on liberal construction cannot be successfully invoked where

a party seeking for its application cannot show a justification for his

deviation from the Rules (p. 16).

Dean Albano: Liberal application of procedural rules is allowed only

when two requisites are present:

1. There is a plausible explanation for the non-compliance;

and

2. The outright dismissal would defeat the administration of

justice (citing Domingo v. CA and Tible and Tible Co. v. Royal Savings and Loan Association)

DOCKET FEES

Q: Are docket fees jurisdictional?

A: Yes. This is known as the Manchester rule, after the ruling in

Manchester Development Corporation v. Court of Appeals.

If you look at Rule 141, that is the rule prescribing docket fees, you

will see that docket fees are not only limited to complaints but all

claim pleadings.

Q: Are docket fees required for compulsory counterclaims?

A: Although the Rules of Court state that there should be docket fees

for compulsory counterclaims, the Supreme Court relaxed the rule

and stated that compulsory counterclaims do not require docket fees

to be filed.

Q: When are docket fees not required to be paid?

A: If you take a look at the last section of Rule 141, that is, Section

22 of that rule, you will see that the Government is exempt from

paying docket fees. Also, if you take a look at A.M. 09-6-8-SC, or the

Rules of Procedure for Environmental Cases, you will see that a Writ

of Kalikasan and a Petition for Continuing Mandamus do not require

docket fees.

Dean Albano: The rule on docket fees, and its exception – where the

party does not deliberately intend to defraud the court in payment of

docket fees, and manifest its willingness to abide by the rules by

paying additional docket fees when required by the court – may be

found in a 2014 case, Gipa v. Southern Luzon Institute.

RULE 1, SECTION 5

A civil action is always commenced with the filing of a complaint.

This is the general rule. Some cases are commenced by a petition,

most notably in special civil actions. The filing of a complaint has

given rise to the action that when the case is filed, the court acquires

jurisdiction over the action. The court will then have to gain

jurisdiction over the person of the defendant. Service of summons

will gain jurisdiction over the defendant.

A recent decision of the SC held that if the person filing the case is

not authorized to file the case, then the court does not acquire

jurisdiction over the person of the plaintiff, and will not acquire even

the jurisdiction to decide the case. The court can examine whether or

not the person who filed the case is authorized. If not so authorized,

the court will not acquire jurisdiction over the person of the accused

and it will not acquire the authority to decide the case. The court will

be absolutely without jurisdiction to try and decide the case.

In complaints properly filed by the plaintiff, the plaintiff can amend

the complaint as a matter of right under Rule 10, provided an answer

has not yet been filed. If amendment is to implead a new defendant,

the court will accept such amended complaint as it is a matter of

right. As to the new defendant, the period to file an answer will relate

to the filing of the original complaint (Relating Back Doctrine).

But, if a new cause of action is introduced along with the new

defendant, it is not an amendment, as a new cause of action is being

included.

RULE 1, SECTION 3, correlating with RULE 2, SECTION 2

Q: Should there always be a violation of a right for cause of

action to accrue?

No. In the definition of a civil action, it is very clear that we do not

necessarily follow the definition of a cause of action as defined in

Rule 2. Under said rule, for a cause of action to accrue, the plaintiff

must allege he has a right, and then allege the defendant had violated

that right.

There are therefore two elements under the definition in Rule 2:

1. Plaintiff must allege he has a right. 2. Plaintiff must allege the defendant has violated that right.

The implication given by the definition of a cause of action in Rule 2

is that the right holder must wait for a violation of his right before he

can have a cause of action against such person who violated his right

and have a reason to go to court. That cause of action should always

be correlated to the definition of a civil action found in Section 3(a)

Rule 1.


Under Rule 1, a civil action is one by which a party sues another for

the enforcement or protection of a right, or the prevention or redress

of a wrong.

Civil action does not require prior violation of a right before

right holder can proceed to court. A plaintiff need not have his

right actually violated before a case can be filed. Even a threat to

violate a right gives rise to a cause of action.

Premise: All civil actions require a cause of action.

This is not correct. Read the Rules. All ordinary civil actions require

a cause of action. There are at least two special civil actions that do

not require a cause of action. The first is a complaint for impleader.

The second is a petition for declaratory relief. In interpleader and

declaratory relief, there is no cause of action that is alleged in the

complaint.

Q: Should the plaintiff allege that he suffered damages before he

may file an ordinary civil case in court?

No. Cause of action accrues when there is an allegation of a right and

an allegation of a violation of or a threat to violate that right. There is

no need to allege that he suffered damages.

CAUSE OF ACTION AND THE PRINCIPLE OF CONDITION

PRECEDENT

Q: The Rules of Procedure becomes more complicated if there

are several rights that are violated by one and the same wrongful

act. If there is just one wrongful act and there are several rights

violated, how will the causes of action accrue?

In order to determine whether several causes of actions will arise, if

there is one wrongful act and there are several rights that are violated,

is to determine whether these rights belong to the same person or to

different persons.

Several rights of one person violated by one and the same act:

1 cause of action = 1 complaint.

Several rights of several persons violated by one and the same act:

Several causes of action = separate complaints.

Q: If a person drives his car negligently, and causes damage or

wrecks 3 cars, how many causes of action accrue against him

using the standard given by the court?

Using the standard, determine whether the three cars belong to one

person only or the cars belong to three different persons. If the 3 cars

belong to only one person, only one cause of action will accrue. The

owner of the cars can only file one case against the negligent driver.

Otherwise, that will be splitting of causes of action. The owner had

only one right that was violated by the negligent driver.

If these 3 cars belong to 3 different owners, there are 3 separate

causes of action. Because there are 3 causes of action that arise, they

can file separate complaints, and they don’t have to be joined.

Conceivably, one owner can file his case in the RTC if he claims the

damages suffered by him amounted to more than 500k. Another

owner can file his case in the MTC if he claims that his car incurred

damages amounting to 200k. The filing of these complaints by 3

different owners will depend on the amount of damages each will

respectively claim in their respective complaints. The fact that there

are 3 different causes of action does not mean that they should go to

the same court in order to recover the damages suffered by them.

Q: Using the first example where the owner of the 3 cars can only

file one complaint for recovery of damages, can he properly and

rightfully go to court right away?

No. If we rely solely on substantive law alone, it would seemingly be

yes. But if we apply other procedural principles, the owner may be

precluded from filing a complaint right away. The owner has to first

satisfy certain conditions precedent before cause of action could

accrue. If these conditions precedent are not satisfied, the filing of the

complaint shall be premature and shall cause the dismissal of his

complaint.

Q: What are some examples of condition precedents?

Conditions precedent given under procedural rules and substantive

law are as follows:

1. Prior barangay conciliation

2. Arbitration clause

3. Certification on non-forum shopping

4. Exhaustion of administrative remedies

5. Earnest efforts towards a compromise

Prior Barangay Conciliation

Even if a right has been violated and a cause of action indeed

accrued, if the action is covered under the circular on prior barangay

conciliation, the trial court can dismiss or not entertain the case and

order the parties to undergo barangay conciliation first.

Arbitration Clause

Invariably provides that in case of breach of contract, the parties must

first undergo arbitration before a complaint can be filed by the

innocent party.

Certification on Non-Forum Shopping

The complaint/initiatory pleading must have Certification on Non-

Forum Shopping. The effect of a complaint/initiatory pleading

without Certification on Non-Forum Shopping is that the court

acquires jurisdiction over the case, but the court can order the

dismissal of the case for non-observance of Certification on Non-

Forum Shopping as a condition precedent.

Q: Is there forum shopping if there is a variation of the causes of

action but founded on same facts and evidence?

Dean Albano: Yes. Forum shopping can be committed in three ways:

1. Filing multiple cases based on the same cause of action and

with the same prayer, the previous not having been

resolved yet (litis pendencia)

2. Filing multiple cases based on the same cause of action and

the same prayer, the previous case having been finally

resolved (res judicata); or


3. Filing multiple cases based on the same cause of action, but

with different prayers (splitting a cause of action, where the

ground for dismissal is also either litis pendencia or res

judicata).

Common in these types of forum shopping is the identity of the

causes of action in the difference cases filed (citing Asia United Bank

v. Goodland Co., Inc.).

Q: Is the absence of a certificate of non-forum shopping

jurisdictional?

Dean Albano: No. While the certification requirement is obligatory,

non-compliance or a defect in the certificate could be cured by its

subsequent correction or submission under special circumstances or

compelling reasons, or on the ground of substantial compliance

(citing Lim v. CA and Mindanao Station).

A violation of the rule against forum shopping other than a willful

and deliberate forum shopping did not authorize the RTC to dismiss

the proceeding without motion and hearing. Specifically, the

submission of a false certification of non-forum shopping did not

automatically warrant the dismissal of the proceeding, even if it

might have constituted contempt of court, for Section 5, Rule 7, of

the 1997 Rules of Civil Procedure is clear on the matter.

Exhaustion of Administrative Remedies

This is in keeping with the doctrine of primary jurisdiction.

Earnest Efforts towards a Compromise

In the NCC, in disputes between members of the same family, it must

be shown that earnest efforts to reconcile or compromise have been

attempted but was unsuccessful. There are, however, exceptions to

the rule.

Q: If prior recourse to compromise in a complaint between

immediate members of a family is not alleged, is it waivable?

Dean Albano: Yes. It is waivable if not pointed out by the defendant

in a Motion to Dismiss. Since it is not one of the four non-waivable

defenses, the court may not dismiss the case motu proprio.

Thus, the definition of a cause of action under the Rules is now

qualified by certain conditions precedent before the injured party can

go to court. He must see to it that these conditions precedent, if

applicable, must first be observed. The risk of not doing so is that the

court, although competent and may have jurisdiction over the case,

may refuse to file the case and issue an order directing the plaintiff to

undergo or comply with these conditions precedent.

If the conditions precedents have been met, the general rule that we

follow is that for every cause of action, the plaintiff/right holder can

file one complaint.

Q: What if the designation of the complaint states it is a case for

unlawful detainer, but the body of the complaint states that it is

for the recovery of P1 million in principal loan, which court has

jurisdiction over the case?

The RTC. The cause of action in a complaint is not what the

designation of the complaint states, but what the allegations in the

body of the complaint define and describe.

SPLITTING A CAUSE OF ACTION

Splitting a cause of action is abhorred by the court.

For example, a creditor filed one civil action for the recovery of the

principal and another action for the interest earned by the principal.

Even if there are two different courts where these complaints are

filed, there is still splitting a cause of actions.

Q: What are the sanctions for splitting a cause of action?

1. Filing of one could be used to dismiss the other due to litis

pendencia

2. If one of the case has been decided, the other case can be

dismissed due to res judicata

3. Both cases can be dismissed on the ground of forum shopping.

It is now settled that if the party is guilty of splitting his cause of

action, he is also guilty of forum shopping. There is no need to

elaborate as to whether there is forum shopping as long as it can be

shown that there is splitting causes of action.

Q: Why do the Rules prohibit splitting?

It is because the effect of splitting a cause of action could be harmful

to the integrity of our courts. If splitting is allowed, and one case each

will be filed for example in the RTC and MTC, there is the possibility

that one court will decide differently from the other and would result

in the courts looking funny, even if the same facts, the same parties

and the same pieces of evidence were presented therein. The rule on

splitting is designed more for protecting the integrity of our courts.

The likelihood that different courts will render conflicting decisions

involving the same issue, the same parties and the same pieces of

evidence and thus destroy the credibility of the judicial system is

sought to be prevented.

Q: Suppose the plaintiff filed 2 complaints arising from the same

cause of action, but the defendant ignores this. Defendant did not

act on the fact. Can the court motu propio dismiss the cases?

Yes. Res judicata and litis pendencia are both non-waivable offenses

under Rule 9. Even if the defendant did not waive these, the court

motu propio can order dismissal of these cases once these becomes

clear during trial. But if the ground for dismissal is litis pendencia,

only one of the cases will be dismissed. If the ground for dismissal is

res judicata, all cases filed will be dismissed.

In litis pendencia, movant cannot move for dismissal of all cases,

only one can be dismissed.

(Tip: If you are counsel for the defendant, if cases are filed in 2

different courts [RTC and MTC], move for the dismissal of the case

in the RTC as the amount involved in the MTC is smaller. Hence, if

the amount involved in total should have been 2.2M, and the amount


involved in the MTC is only 200k, only 200k will be extent of

liability that your client will have in case of judgment against him.)

Q: Can we have the defendant have the remedy of dismissal of

both cases filed in RTC and MTC?

Yes, on the ground of forum shopping. If a plaintiff is guilty of forum

shopping, the court shall order the dismissal of ALL cases. But the

qualification is that the dismissal is without prejudice, not an

adjudication on the merits. Exception to the dismissal being without

prejudice is when the forum shopping was DELIBERATE, then

dismissal is with prejudice.

Q: Between forum shopping and the defense of litis pendencia,

which should you use as lawyer of your client?

Dean Albano: It depends. Although taken in its face forum shopping

seems to be more beneficial since it will result to the dismissal of all

the cases, unless there is deliberate forum shopping on the part of the

other party, there may be some instances when it is beneficial for the

client to only allege litis pendencia.

Collection of Payments Payable on Installments

The rule of thumb is that for each installment that becomes due and

unpaid, one cause of action arises for that particular installment.

If the installment becomes due and unpaid, the creditor has one cause

of action against the debtor for recovery of money. But his cause of

action against the debtor is only for the recovery of the installment

that was overdue.

Q: Can the creditor insist on recovery of the entire amount

instead of installments?

General rule, no. Each installment must be due so that right of

recovery can be had.

Exception: The contract has an acceleration clause. It is a clause in

contracts payable in installments where parties stipulate that in case

of default in the payment of a certain number of installments (or even

just one), the entire obligation becomes due.

So if there was an acceleration clause in the contract wherein the

whole obligation becomes due after default of the first installment,

the creditor will have one cause of action only to recover the entire

amount. Suppose the creditor indeed filed one case only, and later a

judgment was decided in his favor and that has become final, and

later the second installment has become due, he cannot file another

case for the recovery of the second installment by virtue of the

acceleration clause. Only one cause of action shall arise.

But without an acceleration clause, the rule of thumb is that each

installment that is unpaid shall give rise to a different cause of action

when they become due and unpaid. There will be as many cases as

there are installments filed by the creditor against the same debtor,

but each case corresponding to a different installment.

Read: Larena v. Villanueva

Q: What if all installments are due? For example, plaintiff did

not file a case for the first installment, second installment… until

all the installments became due. How many causes of action will

there be?

If all installments are due by the time the complaint is filed, the

plaintiff must seek for the recovery of all the installments because by

then he only has one cause of action. The cause of action at that time

has become complete and total.

Rule on Anticipatory Breach

Even if the obligations are not yet due according to the contract, but

the debtor has expressed formally his desire not to pay, then that is an

anticipatory breach of contract from which creditor can file a case

against the debtor to collect the entire obligation. This anticipatory

breach should be formally pleaded in the complaint.

The basis for this may be found in Civil Law. The period for payment

is presumed to be for the benefit of both debtor and creditor. The

debtor cannot compel the creditor to receive his tender of payment

before the maturity date, and the creditor cannot compel the debtor to

pay also before such date. When the debtor expresses his desire not to

pay at all, as in Blossom v. Manila Gas, the debtor loses the benefit of

the period and the creditor may thus compel him to pay even before

the arrival of the maturity date.

Read: Blossom vs. Manila Gas

Q: If such anticipatory breach was not pleaded in the complaint

filed, and defendant failed to file an answer, the court will set the

case for pre-trial. By the time the pre-trial was conducted, the

first installment had become due. The trial was scheduled, but by

that time, the whole obligation became due and unpaid. Can the

court properly decide the case in favor of the plaintiff?

No.

If a plaintiff files a complaint in court although he has no cause of

action at all, and the claim of the plaintiff matures at the time the case

is tried, the court still does not have any authority to decide the case.

This is because at the time of the filing of the complaint, the plaintiff

did not have a cause of action. This is known as the Swagman Rule,

after Swagman Hotel v. Court of Appeals.

Q: Can we not apply Rule 10, Section 5, or amendment to

conform to evidence?

SC held that we cannot apply amendment to conform to evidence, if

in the first place the plaintiff does not have a cause of action at the

time of the filing of the complaint. It is essential under the Swagman

Rule that a complaint should be filed after the cause of action has

accrued. If there is no cause of action that has accrued and a

complaint is filed, the court will have no authority to decide the case,

even if that obligation matures and becomes defaulted during the trial

of the case. We apply Rule 10 only if there is a cause of action at the

time of the filing of the complaint.

Read: Swagman Hotel v. Court of Appeals


JOINDER OF CAUSES OF ACTIONS

Splitting is prohibited but joinder of causes of action is encouraged

by the Rules.

The Rules encourages a plaintiff to incorporate as many causes of

action he may have against the same defendant, although his causes

of action are totally unrelated to one another. This is allowed so long

as the parties remain the same.

A plaintiff can file a complaint against a defendant for accion

reinvindicatoria, for recovery of money arising from the loan,

recovery of damages arising from a quasi-delict committed by the

defendant, although these actions are in reality different transactions.

There is nothing wrong if the plaintiff sets up three different causes

of action in a complaint that arose of different transactions

There are three limitations to joinder of causes of action under the

Rules of Court, respectively (a), (b), and (c) of Rule 2, Section 5.

MISJOINDER DUE TO INCOMPATIBLE JURISDICTION

If the plaintiff files a complaint against the defendant for accion

reinvindicatoria, and the assessed value of the property is 1k only,

and the second cause of action is the recovery of money, obviously

the actions are misjoined. This is because accion reinvindicatoria, the

property being only 1k, is cognizable only by the MTC.

Q: In a complaint filed by the plaintiff against the defendant, the

first cause of action was for partition, and second cause of action

was for rescission of a donation. Both actions are cognizable by

the RTC.

If we rely solely on Rule 2, is there misjoinder of actions? Why?

Yes. This is because a complaint for partition is a special civil action

while rescission is an ordinary civil action. They are governed by

different procedures, and thus there is misjoinder of causes of action

under Rule 2 Sec. 5(b).

Q: On the same facts above, the defendant did not notice the

misjoinder and did nothing, whereas the court did nothing also.

The judge most likely waited for the defendant to move to split

the misjoinder causes. But since nothing was done by defendant,

the judge proceeded to try the two misjoined cases.

Under the rules, can a court, motu propio, order the severance of

one of the misjoined causes of action?

Yes. The court can do so. Under the Rules, there is no need for a

motion from the defendant if the court finds out that causes of action

are misjoined. It can motu propio order the severance of cases. This is

done for the benefit of the court, because if the court will wait for the

defendant to make a motion, to raise the misjoinder of causes, the

court will find himself confused with the procedure he will follow.

This is because partition will involve a different procedure from

ordinary civil actions. In fact, under our Rules now, partition is a

multi-stage proceedings. Rescission is an ordinary civil actions.

The court went ahead and tried the case, until a decision was finally

issued by the court. Only then did the defendant raised, on appeal to

the SC, the misjoinder of causes of action.

If nobody objected, the court may proceed in the disposition of the

case. The Supreme Court held in Ada v. Baylon, if the court decided

on the case despite the misjoinder of causes of action, the decision

will still be valid. SC made a qualification that these misjoined causes

should be within the jurisdiction of the trial court under BP 129.

In other words, under the Ada v. Baylon ruling, this rule on misjoined

causes could be a ground for severance of these causes. But it if it is

not raised timely, and the court did not severe the cases and decided

on it instead, the court’s decision is valid as long as the trial court has

jurisdiction over the misjoined causes.

Q: Does the RTC have jurisdiction over a complaint for

partition? Does the RTC have jurisdiction over rescission of a

donation?

Note that a case for partition is one incapable of pecuniary

estimation. So even if there are misjoined causes in one complaint,

but this misjoinder is not raised before the trial court, the parties are

deemed to have waived this issue of misjoinder of causes of action,

the judgment rendered by the court is valid and the same can be

executed if it is duly entered.

If the court does not motu propio order the severance, the defendant

cannot blame the court for it. It is the burden of the defendant to raise

this as an issue before the trial court.

Read: Ada v. Baylon

Q: Can a complaint be filed where these two causes of action are

set up, first, petition for certiorari, and then, as a second cause,

petition for habeas corpus?

Yes, the petition is allowed, by way of exception, according to SC.

Read: Galvez v. Court of Appeals, G.R. No. 114046

Q: A complaint was filed in the MTC. The first cause of action

was for accion reinvindicatoria where the assessed value of the

land was 1k. The other cause of action is unlawful detainer of a

condominium unit, with value of back rentals being 2M. Can an

MTC have jurisdiction over the action?

Yes. The assessed value of the land in the accion reinvindicatoria is

only 1K and therefore cognizable by the MTC. On the other hand, the

unlawful detainer case, regardless of the amount of back rentals

sought to be recovered, will also be cognizable by the MTC.

Q: Are the causes properly joined?

No. There is still misjoinder, although both causes are cognizable by

an MTC. This is because accion reinvindicatoria, although

cognizable by the MTC, shall be governed by ordinary proceedings


while unlawful detainer will be governed by summary procedure. We

cannot join causes of action which are governed by different Rules of

Procedure, although they may fall within the jurisdiction of that same

court.

Note:

Dean Jara, in his lecture this year (2015), states that when the action

involves a case of unlawful detainer and a case for collection of sum

of money worth P1 million excluding IDALEC, although there is in

reality misjoinder since they pertain to different jurisdictions (MTC

and RTC respectively), if the case is filed in the RTC, under Rule 2,

Section 5(b), the joinder will be held valid.

Q: Is there such thing as non-joinder of causes of action?

No. It is purely voluntary in the part of the plaintiff if he wishes to

join his causes of action. There may misjoinder of causes of action,

misjoinder of parties, and non-joinder of parties, but there is no non-

joinder of causes of action.

VOLUNTARY JOINDER OF PARTIES

Q: What are the limitations in joinder of causes which involve

joinder of parties?

The joinder of parties should arise from transactions arising out of the

same contract or series of contracts. The parties involved are not

necessarily indispensable parties. There are several causes of action

involving plurality of parties.

For example, if a truck driven by A hits two cars respectively owned

by B and C, B and C each have a cause of action against A. Although

they may separately file a complaint against A, they may also join as

plaintiffs and file a single complaint containing two causes of action

against A. The joinder is not mandatory, only permissive. It should be

noted that the two causes of action arose from a single event, i.e., the

vehicular accident.

On another hand, if a tire dealer sold a set of tires of A, and in a

separate transaction sold another set of tires to B, and both A and B

failed to pay their respective obligations, the tire dealer may NOT file

a single complaint against A and B. The two contracts, though both

contracts of sale, are totally different from each other. The causes of

action did not arise from the same or series of transaction.

JOINDER OF PARTIES: INDISPENSABLE PARTIES

Unlike joinder of parties, there is a rule against misjoinder of causes

of action, in the same way there is a rule on misjoinder of parties.

There is no rule on non-joinder of causes of action, while there is

non-joinder and misjoinder of parties. The reason why there is no rule

on non-joinder of causes is because it is permissive, it is always at the

option of the plaintiff. The plaintiff can join as many causes of action

as he may have. The court cannot force him to do so. But there is a Q:

rule against misjoinder of parties.

Permissive Joinder of Parties

It envisions a situation where there are two or more plaintiffs, or two

or more defendants, or both, and where there is one or a series of

transactions, with common questions of fact concerning the same

parties.

Q: The owner of a land discovered that his property has been

occupied forcibly by 11 informal settlers and they retained

physical possession thereof. The informal settlers had constructed

houses therein. The owner wanted to recover the possession

thereof. Should the owner file 11 cases of forcible entry or just

one against the 11, or one complaint wherein there is a joinder of

parties?

SC said that the owner has the option of choosing any one of these

remedies. Plaintiff can file 11 separate complaints impleading only

one defendant in each complaint. If plaintiff chooses to file just one

action, in that complaint, he must allege 11 causes of action. The last

recourse will involve joinder of parties.

The joinder of parties is permissive in this case.

Compulsory Joinder of Indispensible Parties

Even if the court tries a case without impleading an indispensible

party, such non-joinder will render the proceedings void. The

decision is void and will never be entered, and thus cannot be made

final and executory.

Before the 1997 Rules of Civil Procedure, the constant ruling by the

SC has always been that failure to implead indispensable parties will

render the judgment void. The remedy of the defendant would be to

file a Motion to Dismiss on the ground of failure to state a cause of

action. If proven, the case would be dismissed with prejudice.

With the advent of the 1997 Rules of Civil Procedure, the procedure

became much different. Failure to implead indispensable parties will

not always render the judgment void. This will be explained later in

the lecture.

Take note, however, of two cases decided last 2013 – Macawadib v.

PNP, G.R. No. 186610, and Republic v. Uy, G.R. No. 198010.

Although these cases involve special proceedings, particularly Rule

108, I think this applies also to civil actions. In these cases, the SC

held, citing Go v. Distinction Properties, ‘The absence of an

indispensable party renders all subsequent actions of the court

null and void for want of authority to act, not only as to the

absent parties but even to those present.’

Dean Albano: There is now a 2014 case which states that if

indispensable parties are not joined, the judgment is null and void.

The case is Crisologo v. JEWM Agro-Industrial Corp.)

Q: Who are indispensable parties?

A: They are parties in interest without whom no final determination

can be had.


Q: What is the sanction if the complaint is filed without

impleading indispensible party?

It is not per se a ground for dismissal as very clearly stated in Section

11, Rule 3, but if the defendant uses another ground, i.e., failure to

state a cause of action, then the complaint will be dismissed.

As stated before, before the 1997 Rules, if the defendant files a

Motion to Dismiss on the ground that there is failure to state a cause

of action, and such ground was proven in court, the court will dismiss

the case without prejudice.

The 1997 Rules, however, particularly Rule 16, allows the court to

order amendment of the pleadings. Under Section 3, Rule 16, after

the hearing [of the Motion to Dismiss], the court may dismiss the

action or claim, deny the motion, or order the amendment of the

pleading. It should also be noted that under Section 11, Rule 3, the

trial court may order any party to be dropped or added on its own

initiative. A Motion to Dismiss by the defendant therefore is not

required before the court may order the addition of an indispensable

party.

If the order is not complied with, the court, on motion or motu

proprio, may dismiss the case under Section 3, Rule 17. It should be

noted that the dismissal here is with prejudice, an adjudication on the

merits, unless otherwise declared by the court.

This procedure, applying Section 3, Rule 16 first, then Section 3,

Rule 17 second, is in keeping with the rule in Section 11, Rule 3 that

non-joinder of parties is not a ground for dismissal.

NECESSARY PARTIES

Q: How do we distinguish whether a debtor or creditor is

necessary or indispensable?

The rule to guide us in this fact is the NCC on liability of debtors.

If there are two parties to the contract of loan, one creditor and one

debtor, if in case there is a violation of the contract, both the creditor

and debtor are of course indispensible parties.

If there are two or more debtors, plaintiff should evaluate whether

debtors’ liabilities are solidary or joint. In the NCC, in the absence of

any other stipulations/factors, when there are two debtors of the same

indebtedness, the assumption will be that they are joint creditors. If

there are stipulations referring to the debt as solidary, then they are

solidary debtors. The provisions of the NCC will be the guide in this

situation.

Q: If we apply the provisions of the NCC, and the creditor filed a

case to recover the entire debt, and debtor A and B are joint

debtors, do we consider both debtors to be indispensible parties?

Yes. If the purpose of the creditor is to recover the entire obligation,

then both debtors should be impleaded in the complaint.

Q: Can the creditor file a case against only debtor A?

Yes, applying the provisions of the NCC, the creditor can go after A,

but recovery can be had only to the extent of the amount owed by A.

In this example, debtor A is an indispensible party.

Q: How about debtor B, is he a necessary party?

Yes. His presence in the case against debtor A is not indispensible.

The court may require B be impleaded to complete the determination

the subject matter.

Q: If the liability of the debtors is joint and several, i.e., solidary,

do we consider all of them indispensable or necessary parties?

A: Under the NCC, if the debtors are solidary liable, the creditor may

sue one, or some, or all of them. Each of the debtors, therefore, is an

indispensable party to the entire share. If there are remaining debtors

not impleaded to the complaint, they are neither considered necessary

or indispensable parties.

Q: What is the duty of the plaintiff if a necessary party is not

impleaded?

The only duty of the plaintiff is to tell the court that he has left out a

necessary party. He is not compelled to include such party. The court

will have to determine if it is essential for the court to order requiring

that necessary party to be impleaded.

Q: If plaintiff ignored the court order to implead the necessary

party, is Rule 17 applicable?

No, Rule 3 should apply, which provides for the sanction if plaintiff

refuses to obey an order to implead necessary party. The case will

continue. But the plaintiff would be deemed to have waived any right

of action against necessary party. If later on, the plaintiff decides to

file a complaint against such necessary party, the complaint will not

prosper, as the necessary party can claim that the right to file a claim

against him has been paid, waived, abandoned or otherwise

extinguished under Rule 16.

REPRESENTATIVE PARTIES

Q: In the enumeration of representatives under Rule 3, Section 3,

why is it that only trustees of an express trust included? Why not

the trustees of an implied trust?

It might be possible, it might be highly likely, that the trustee in an

implied trust is unaware that he is the trustee of the beneficiary or the

trustor. Implied trusts are created by operation of law.

Q: What is the duty of the plaintiff if the defendant is represented

by another party?

The plaintiff should identify not only the representative but also the

real party-in-interest.

Q: May the court compel the plaintiff to identify the real party in

interest?

Yes. The defendant may move to dismiss the case for failure to state

a cause of action and the court may compel the plaintiff to amend the

complaint. If the plaintiff still does not comply with the order of the


court, the court may dismiss the case under Rule 17 for failure to

comply with an order of the court. This dismissal is with prejudice.

Q: What is ‘interest’ in real party in interest?

Dean Albano: Interest within the meaning of the Rules means

material interest or an interest in issue to be affected by the decree or

judgment of the case, as distinguished from mere curiosity about the

question involved. One having no material interest to protect cannot

invoke the jurisdiction of the court as the plaintiff in an action. When

the plaintiff is not the real party in interest, the case is dismissible on

the ground of lack of cause of action.

UNWILLING CO-PLAINTIFF

Q: Who is an unwilling co-plaintiff?

An unwilling co-plaintiff is a person who has done no wrong in so far

as the plaintiff is concerned but refuses to file a complaint even if he

and the plaintiff have a common interest over the claim.

Q: May the court compel a person to file a complaint?

No. Under our system, the filing of a complaint is left entirely to the

discretion of the plaintiff. If a plaintiff does not want to go to court to

protect his rights or to enforce his rights there is nothing which the

State or which the law could do.

Since we cannot compel a right-holder to become a party-plaintiff,

the only means available under the Rules to another right-holder with

a common interest is to implead the other right-holder as defendant.

By making the other right-holder as a defendant he will now come

within the jurisdiction of the court.

Q: Must the unwilling co-plaintiff file an Answer?

No. He is impleaded only for the purpose of bringing him under the

jurisdiction of the court. He need not file an Answer nor should he be

declared in default if he does not do so.

If the unwilling co-plaintiff, however, chooses to answer, he may do

so. Usually, the unwilling co-plaintiff files an answer to set up a

counterclaim against the original plaintiff. There is no prohibition in

the Rules of Court.

Q: Is there such thing as an unwilling co-defendant?

No. It is presumed that all defendants are unwilling.

MINOR AND INCOMPETENT PERSONS

Q: Is there any conflict between the Family Court Act and a

complaint with the RTC or MTC as the case may be impleading a

minor accompanied by a prayer or a motion for the appointment

of a guardian ad litem?

Dean Jara: No. The guardianship that is allocated to a Family Court is

what we call a general guardianship, a guardianship over the property

or person of a minor. But when the guardian is simply a guardian ad

litem, that is an incident or collateral to the main action itself.

ASSIGNMENT/TRANSFER OF INTEREST

There is a creditor who lent 1M to the debtor. The debtor

defaults in payment. But before the creditor filed a complaint, the

creditor felt the need for money. He assigned his claim to another

for a certain value. Such person now stands in the shoes of the

creditor, and may file a claim against the debtor. The creditor

sold his rights to X for 700K.

Q: Can the assignor/original creditor, file a claim for 1M against

creditor?

No, he is no longer a real party in interest, as he has assigned his

rights to another.

Q: What if assignee files a complaint against debtor?

Assignee is the proper party to file a complaint against debtor, so the

case will prosper.

Q: How much may the assignee recover?

He is entitled to recover 1M. The assignee steps into the shoes of the

creditor who sold his right to the assignor for 1M.

Q: What if the original creditor has not assigned his credit for

1M. He files a case against debtor. While the case was pending in

the RTC, the plaintiff/creditor assigned his claim to another for

700K. Will the assignee be considered as indispensable party?

No. Under Rule 3, assignee pendente lite, though may be a real party

in interest, is not considered an indispensable party and the court may

ignore such party.

Q: Using the factual details of the preceding question, may the

debtor pay the assignee 700K, and if he does not accept, tender it

in court, so the case will be dismissed against him?

Yes. This is allowed under Art. 1634 of the NCC.

Article 1634. When a credit or other incorporeal right in

litigation is sold, the debtor shall have a right to extinguish

it by reimbursing the assignee for the price the latter paid

therefor, the judicial costs incurred by him, and the interest

on the price from the day on which the same was paid.

A credit or other incorporeal right shall be considered in

litigation from the time the complaint concerning the same

is answered.

The debtor may exercise his right within thirty days from

the date the assignee demands payment from him.

Q: Will Art. 1634 apply if the credit was assigned before the

complaint is filed?

No. In such case the debtor has to pay the assignee the amount of the

credit in full, not only the amount the assignee paid for such credit.


Q: If the assignee pendelite lite wishes to join the case, what will

he do?

He may file a motion for substitution or joinder. He need not file a

motion for intervention.

SPOUSES AS PARTIES

Q: What is the general rule regarding spouses as parties?

Husband and wife shall sue or be sued jointly.

Q: What are the exceptions?

Section 4, Rule 3, states that the exception is that provided by law.

SC held that the law contemplated in the exemption is the Family

Code or NCC as the case may be. This is pertinent on the rule of

partnership and co-ownership in case of husband and wife. It is

impertinent to compel a husband to implead the wife as co-plaintiff.

In case of co-owner, a partner can file a complaint without

impleading the co-owners. The same would be applicable to husband

and wife. The wife may file a case without impleading her husband.

There is a caveat: If the husband as a co-owner files a complaint

against another, he should indicate in the complaint that he is filing

such case as co-owner. But if he claims sole ownership, he should

implead the wife. The law authorizes either spouse alone to file a

complaint. The spouse left behind is not considered a necessary party

as a complete determination of the case could be had even with just

one spouse as a party.

Other exceptions:

1. When the husband and wife are judicially declared legally

separated from each other, the other party must be

impleaded; and

2. If the husband and wife are separated in fact for at least one year.

CLASS SUIT

Q: When is class suit proper?

There is a common interest among persons so numerous that it would

be impracticable to bring them all to court. It is not required that all

be presented in court, but only enough to represent the rest of those

who are party to the same suit.

For example, Oposa vs. Factoran is now enshrined in the Writ of

Kalikasan through the Citizen’s Suit on behalf of persons yet unborn.

This is effectively a class suit.

Q: Do we consider the members of the class as indispensable or

necessary parties?

SC held that all members of the class involved in the litigation are

considered indispensable parties.

Q: Should they all be identified?

SC held that there is no need. Only a representative number can be

impleaded as they represent all of the class. Determination made on

such representative class is tantamount to determination for all of the

members of the class.

Q: Why did SC hold that all such members of the class are

deemed indispensable?

SC pointed to the last sentence of Sec. 12 Rule 3 which states that

“Any party in interest shall have the right to intervene to protect his

individual interest.” This effectively means that each member of the

class is an indispensable party.

Generally, under Rule 19, intervention is subject to the discretion of

the trial court. As an exception, the court cannot deny intervention of

a member of the class in a class suit.

DECEASED LITIGANT

A contract of agency is present when a lawyer is engaged by his

client, an agency which exists until the client dies. The lawyer has to

inform the court about the death of his client. The court may then

cause substitution of the representatives of the estate of the deceased.

A distinction should be made if it is the plaintiff or the defendant who

died.

If the plaintiff dies, the court would require the lawyer to submit the

names of the heirs in order to act as substitute plaintiff.

If all heirs refused to act as substitute parties, the court can require

the defendant to seek the appointment of an administrator or executor

of the estate. This may be done by settlement of estate under special

proceedings.

If the executor or administrator has been chosen, he will be tasked to

represent the estate until final judgment.

If there is an appeal on the decision of the trial court, the

executor/administrator shall represent the estate. Their representative

capacity ends upon final entry of judgment.

If it is the defendant who died, and his death did not extinguish the

obligation, there is a transfer of interest from the debtor to his estate.

There will have to be proper substitution of parties similar to that

stated with the deceased plaintiff above.

Q: What criterion do we use to determine if the action survives

the death of the petitioner?

Dean Albano: If the action affects primarily and principally property

or property rights, then it survives the death of the plaintiff.

A Petition for Declaration of Nullity of Deed of Sale of Real Property

for instance, is one relating to property and property rights, and thus

survives the death of the petitioner (citing Bonilla v. Barcena, Torres

v. Rodellas, Sumaljag v. Literato)


Q: If there is a decision against debtor that was final and

executory, can the substituted party ask for motion for writ of

execution for satisfaction of the deceased’s claim?

No. It cannot be subject to execution under Rule 39. Creditor must

file a claim with the estate, attaching the said judgment as evidence

of a valid claim, under Rule 86.

Q: If the defendant dies, and the lawyer was not able to inform

the court of his death, and the court continued with the

proceedings not knowing the defendant is dead, is the judgment

of said court valid?

A: Yes, the judgment is valid.

Q: If the lawyer informed the court, or the court, independent of

the lawyer’s notice was able to discover that the defendant is

truly dead, but the court nevertheless continued with the

proceedings, is the judgment valid?

A: No, the judgment is void.

Q: Should the court dismiss the case if the lawyer failed to inform

the court of his client’s death?

No. It is not a ground for dismissal of the action but only disciplinary

action against the counsel.

ALTERNATIVE DEFENDANTS

The situation is simply one where the plaintiff has the right that has

been violated but at the time of filing of the complaint he is not sure

as to who, between two or more persons, has violated the right and

who should be held liable for the violation.

Q: If there are alternative defendants, are there alternative

causes of action?

Yes. See Rule 2, Section 5. It says ‘in the alternative.’ If you take a

look at Rule 8, Section 2, it also says ‘two or more statements of a

claim… alternatively.’

Q: How about alternative defenses?

Yes. See Rule 8, Section 2, it says ‘defense alternatively or

hypothetically.’

Q: How about an alternative judgment?

Yes. If you take a look at Rule 60, Section 9, it says ‘shall render

judgment in the alternative.’

Q: How about alternative plaintiffs?

There is nothing in the Rules, but if we take a look in the Federal

Rules of Civil Procedure of the United States from which we copied

some of the provisions of the Rules of Court, it is expressly allowed.

Q: Give an example of alternative plaintiffs.

Suppose A and B are disputing who between them owns a specific

car. The car was stolen by X. Who can file a complaint against X for

the recovery of the car? Under the Federal Rules of Civil Procedure a

complaint can be filed naming A or B as plaintiffs in the alternative

against X, the one who has run away with the car.

UNKNOWN DEFENDANT

This usually happens in a case of replevin, or recovery of possession

of personal property.

Usually personal properties are transferred from one hand to another,

so the problem of the creditor who tries to recover the property is if

he files a complaint for replevin against the person who bought the

personal property from him, there is a chance that when the sheriff

goes to this defendant, the defendant is no longer in possession of the

property, so the sheriff will not be able to confiscate the property. It

is possible that the first possessor of the property has transferred the

possession in the meantime to another person.

In order to avoid this situation, the plaintiff in a case of replevin will

usually implead at least two defendants: the first possessor of the

property or the second possessor if known to the plaintiff, and then a

third defendant called John Doe. John Doe here is impleaded as an

unknown defendant; whoever is in possession of the personal

property will be the John Doe who is impleaded in that complaint.

Q: Is there an unknown plaintiff?

No. Since it is the plaintiff himself who institutes the action, it is the

duty of the plaintiff to identify himself to the court.

INDIGENT PARTY

The general rule on motions is that a motion should not be heard ex

parte. When it comes to an indigent litigant, the rule expressly allows

that a motion presented by a litigant to be allowed to try the case as

an indigent could be submitted to the court through an ex parte

motion.

The motion to declare oneself as an indigent party may be submitted

to the court even before filing a complaint. This is the only motion

that may be filed before filing a complaint.

The fact that a person is salaried, is gainfully employed, does not

mean to say he could not become an indigent party. The only

qualification now is that the litigant can prove that he cannot support

himself and his family, even if he is a salaried employee.

The declaration by a court that a litigant may be considered as an

indigent litigant is purely interlocutory. It could be assailed later on in

the course of the trial as an adverse party.

VENUE OF ACTIONS

The Supreme Court, under the Constitution, may disregard the rules

on venue. All other courts cannot disregard the rules on venue. The


trial courts, however, can incorporate in their decision an advisory to

the defeated party to appeal the matter to the SC.

In purely civil actions, venue can be subject to stipulation of parties.

Elements:

1. It must be in writing,

2. It must be contracted before the case is filed, and 3. It must contain features of exclusivity.

If the stipulation will cause undue inconvenience to parties, then such

stipulation can be dispensed with by parties. Rule 4 is designed for

the convenience of complaining parties, not for the benefit of

defendants.

Read: Sweet Lines v. Teves

In a real action, the venue, in absence of any stipulation designating a

specific venue, is the place where the property or a part thereof is

located.

In a mixed action – action is both real and personal – the venue in

absence of stipulation is the same as that of the rule in real actions.

Dean Riano: Examples of words with restrictive meanings are: only,

solely, exclusively in th si court, in no other court save -, particularly,

nowhere else but / except -, or words of equal import (p. 172).

Q: What is the venue if it is a personal action and the defendant

does not reside and is not found in the Philippines?

We normally cannot file a case against someone who does not reside

and is not found in the Philippines. There are only two instances

where a civil case can be filed against them – when the civil action

pertains to the civil status of the plaintiff, or if it involves a property

of the non-resident defendant in the Philippines. In these instances

there is a res from which the court may have jurisdiction.

Q: What if it is the plaintiff who is a non-resident and cannot be

found in the Philippines?

There is no problem. He voluntarily submits to the jurisdiction of the

court once he filed the complaint.

Q: Will rules on venue apply to the SC or CA?

It is not possible to state a rule of venue that applies to the Supreme

Court or the Court of Appeals because unlike trial courts which are

distributed throughout the country, we only have one Supreme Court

based in Manila and the Court of Appeals that is likewise based in

Manila. So the features of trial courts in different regions do not

apply when it comes to the SC and the CA.

Q: May the parties agree to a change of venue which has the

feature of exclusivity but which is entered after the case is filed in

court?

Yes. The court, however, cannot be forced to enforce this agreement.

Once a case is filed in court, the court will continue to have authority

to try the case notwithstanding any agreement on exclusive venue

that the parties will enter into later on.

Q: What is the remedy if there is improper venue?

The defendant must file a Motion to Dismiss or else it is waived.

Q: May the court motu proprio dismiss the case?

No. Improper venue is not one of the four non-waivable defenses that

the court may use as ground to dismiss the case motu proprio.

Dean Riano: This is not necessarily true. Under summary procedure

and small claims proceedings, the court may dismiss the case motu

proprio since it has the authority to examine the complaint and such

evidence that may be attached thereto and dismiss the case on any of

the grounds apparent therefrom for the dismissal of a civil action (p.

175).

Q: What if a corporation sues another corporation? What should

be the venue?

Dean Albano: Follow the ordinary rules on venue if it is a real action.

If it is a personal action, specifically with respect to a domestic

corporation, it is ‘in a metaphysical sense a resident of the place

where its principal office is located as stated in the articles of

incorporation’ (citing Golden Arches Dev. Corp v. St. Francis Square

Holdings, Inc.)

Q: What if the Articles of Incorporation state that the address of

the plaintiff is in Manila, but the principal office is actually in

Mandaluyong? Will a case filed in Mandaluyong be dismissed by

the defendant on the ground of improper venue?

Dean Albano: No. Respondent’s choice must be respected as ‘the

controlling factor in determining venue for cases is the primary

objection for which said cases are filed’ (citing Saludo v. American

Express Inc.)

Q: What are some examples of real actions?

Dean Riano:

1. Actions for unlawful detainer, forcible entry, accion

publiciana, accion reinvidicatoria, to quiet title, or to

remove a cloud on a title;

2. An action to recover possession of real property plus

damages (compare this with an action for damages to real

property, which is only a personal action);

3. If one of the party seeks to rescind or annul a contract AND

that the other party return possession of a real property, it is

a real action;

4. An action to foreclose a real estate mortgage (but an action

to compel the mortgagee to accept payment of the debt and

to release the mortgage is a personal action);

5. An action praying that the defendant accept the payment

being made by the plaintiff for the lot to which the latter

contracted to buy on an installment basis from the former; 6. Action for cancellation of a TCT;

Q: What are examples of personal actions?

1. An action for a declaration of nullity of marriage;

2. An action for specific performance with damages (but if the

performance sought to be done is the issuance of deed of

sale for a parcel of land to acquire ownership of the land, it

is in reality an action to recover a parcel of land, and is thus


a real action; BUT THEN AGAIN, if the ownership is not

in issue and the plaintiff only seeks for the issuance of a

deed of sale ALONE, this is an exception to the exception

and is a personal action);

3. An action to annul a loan and its accessory real estate

mortgage;

IN REM, IN PERSONAM ACTIONS

The determination of whether or not an action is real or personal

should not be confused whether or not an action is an action in rem,

in personam, or quasi in rem. Not all real actions are in rem actions,

and not all in rem actions are real actions.

For example, settlement of estate involving personal properties of the

deceased is a personal action, since the action does not involve title

or possession or interest to real property, but it is still an action in

rem since it is enumerated under Section 47 (a) of Rule 39.

An example of a real action and in personam action, on another hand,

is an accion reinvidicatoria. Although the court may adjudge A is the

owner of the land as between him and B, this will not stop X, a third

party, to file a complaint against A for another accion reivindicatoria.

X is not bound by the judgment in the first case between A and B.

An example of a real action and in rem action is a cadastral or land

registration proceeding.

An example, finally, of a personal action and in personam action is a

collection suit for a sum of money.

The rule on venue does not apply to CA, CTA and SC. It is only

applicable to trial courts and other lower courts.

PRIOR BARANGAY CONCILIATION

Prior barangay conciliation, as a general rule, is a condition precedent

to the accrual of a cause of action.

2 requisites:

1. The parties must be natural persons, and 2. They reside in the same city or municipality

As long as these two requisites are present, as a general rule, prior

barangay conciliation is a must regardless of the nature of the action.

For example, if there is a claim for collection of a sum of money,

regardless of the amount involved, prior barangay conciliation is still

a must. It should be further noted that prior barangay conciliation is

required not only in filing cases before the MTC or RTC but also the

CA, SC, and other judicial bodies.

Barangay conciliation applies to civil actions, as well as special civil

actions in appropriate cases.

This does not apply to, among others:

1. Rule 65 cases, nor in petition for relief cases.

2. Cases that involve public officers or LGUs.

3. Certiorari, Prohibition, Mandamus

4. It does not apply to expropriation or quo warranto.

In these cases the Government or public officers are usually involved

and according to the LGC are not covered by barangay conciliation.

Q: If your client, a creditor of a loan worth P1 million, wishes to

file a complaint in court without undergoing prior barangay

conciliation, as lawyer how do you counsel your client?

A: I will counsel him to attach with his complaint a petition for a

provisional remedy, such as preliminary attachment. Under the LGC,

these cases are also not covered by barangay conciliation.

Q: If the case is filed directly in court in violation of the LGC,

will the court still acquire jurisdiction?

Yes, under BP 129.

Q: What are the remedies of the defendant and the court if prior

barangay conciliation was not done?

The defendant can file a motion for dismissal for lack of cause of

action while the court can compel, on motion or motu proprio, both

the plaintiff and defendant to submit to barangay conciliation while

the case is being held in suspension. The court can hold the case in

abeyance until conciliation was had or had failed.

Q: Are barangay courts part of the judiciary?

Barangay Court is not part of the judiciary, but part of the executive.

Inherently, barangay courts are not allowed to adjudicate, only to

mediate, to conciliate, and convince parties to arrive into a

compromise agreement and settle amicably. They act as an arbitration

court; that is, if parties have mutually agreed in writing to constitute

the barangay court as an arbitration court for their dispute.

The barangay courts follow procedurally the same rules as that of

court cases.

The pleadings could be verbal, although the barangay court usually

asks for pleadings to be written. In Manila, they also require payment

of minimal docket fees, regardless of the amount of claim.

The barangay court may issue summons and subpoena.

If the complainant fails to appear repeatedly during the conferences

called by the Barangay Court, the Barangay Court can order the

dismissal of the complaint, and that dismissal is with prejudice. The

complainant loses his right to recover against the respondent.

If it is the defendant who fails to appear, the barangay court will just

issue the certificate that there is failure to compromise. The plaintiff

may then proceed to court.

The rule on venue in barangay conciliation is different from Rule 4.

The venue is the residence of the respondent. If the complainant and


respondent reside in different barangays, the complaint should be

filed in the barangay where the respondent resides.

If they are unable to settle, the barangay court issues a certification

that no compromise was entered into. This enables the plaintiff to file

a case in court.

Q: What if there is irregularity in the issuance of certificate to file

action by the Barangay Captain?

Dean Albano: First of all, the Barangay Captain, as a public official,

is presumed to act regularly in the performance of official duty. Even

grating, however, that an irregularity had intervened in the Barangay

Captain’s issuance of the certification, the SC notes that the

irregularity is not a jurisdictional flaw that warrants the dismissal of

the criminal cases before MTC. The irregularity merely affected the

parties’ cause of action (citing Sabay v. People).

If they, however, were able to settle before the Barangay Court and a

compromise agreement was made between them, that agreement will

be considered final and executory, subject to repudiation by any party

within 10 days from execution of the agreement. Grounds are any of

the vices of consent. If there is repudiation, the barangay court will

issue certification allowing plaintiff to file the case in court.

There is no need for the barangay court to ask for confirmation of the

compromise agreement. After the lapse of the 10-day period, it

becomes final and executory. It can become subject to execution by

the barangay court. If the terms of the agreement are not complied

with, the barangay court can execute the judgment, provided such

judgment should be executed within six months from signing of

compromise agreement.

While the barangay court can make a levy on execution, it is limited

to personal properties belonging to respondents. It cannot levy on real

properties owned by respondents. It can also sell these levied

personal properties at public auction to satisfy the compromise

agreement. If there is no satisfaction of the claim, the remedy for the

creditor is to either (1) file a case of collection in the MTC to satisfy

the compromise agreement; or, (2) according to Miguel v. Montanez,

treat the settlement agreement as rescinded and file the original claim

with the proper court.

Q: Why is it the barangay courts are not allowed to levy real

property if they are already allowed to levy on execution over

personal property?

The lawmakers thought it would be best to reserve levy on execution

over real property for the courts. It should be noted that under Rule

39, levy on execution over real property involve legal processes such

as redemption. These legal processes require mastery of the law, and

in a situation where lawyers are not even allowed to participate in the

proceedings, it is best that these legal processes will be allowed only

in a court of law.

There is a difference, however, if the settlement agreement was

submitted to court. The court will render a judgment based on a

compromise and this will become the law between the parties. Once

the judgment is subject to execution, and the execution failed due to

the fault of the judgment debtor, the judgment creditor cannot enforce

his original claim anymore. He may only enforce the judgment based

on a compromise through Rule 39.

Q: Why is there a difference between a settlement agreement

filed in a court of law, and a settlement agreement being enforced

with the barangay court?

Barangay courts do not have any power to render a judgment to

confirm the settlement or compromise agreement. They are a part of

the executive, not the judiciary. Thus, the most they can do is only to

enforce the settlement agreement.

The parties may also agree in writing to convert the barangay court to

an arbitral tribunal. In such case, the barangay court becomes a quasi-

judicial body. This written agreement may be repudiated within five

days from filing said agreement.

The barangay court, as an arbitration court, can make arbitral awards.

This award may not be appealed. The aggrieved party, however, may

file a petition to nullify the arbitral award, similar to annulment of

judgment, with the MTC.

If this award is not annulled, it becomes final and executory and like

the settlement agreement may be enforced by the barangay court. If

there is no satisfaction of the claim, the remedy for the creditor is to

enforce the award with the MTC.

Q: The claim of the creditor was 500k. The creditor and the

debtor submitted the matter for conciliation in the barangay

court. The claim of 500k was reduced substantially in the

proceedings, i.e., 250k paid in installments. The debtor failed to

comply. The agreement was not repudiated. The creditor filed a

complaint in the regular court for recovery of the 500k. CA held

that the only recourse of the creditor was to enforce the

compromise agreement as provided in LGC and the

implementing circulars, the creditor having lost the right to claim

the 500k. Decide.

SC held that failure to comply with the compromise agreement is

considered as a repudiation of that compromise agreement. SC cited

Art. 2041 of the NCC which states that when a party fails to comply

with the compromise agreement, the agreement is rescinded by

operation of law, and thus the creditor is entitled to recover the

original claim in the courts of justice.

There is no need to file rescission of the compromise agreement

in this instance. The effect is that the creditor who has agreed to the

compromise agreement will be reverted to his original position as a

creditor claiming the amount in his original claim before the

compromise agreement.

Mere refusal or failure to comply with compromise agreement is

tantamount to repudiation of the compromise agreement.

Read: Montañez vs. Miguel


SUMMARY PROCEEDINGS

Summary Proceedings refers to the summary procedure followed by

lower courts in unlawful detainer, forcible entry and money claims up

to P200,000, exclusive of interests and costs.

Q: Is it correct to say that only MTC follow summary procedure?

No. There are some cases which follow summary procedure that is

cognizable by the RTC. However, these cases involve family-related

cases. They are not civil actions involving summary procedures under

the rules. If you take a look under your Family Code, there are cases

there that involve summary procedure and they must be filed either in

the RTC or Family Courts as the case may be.

Under Section 3 of the circular governing summary procedure, there

are only four pleadings that may be filed in court:

1. Complaint

2. Answer

3. Compulsory Counterclaim 4. Cross-Claims

Q: Are permissive counterclaims allowed?

No, permissive counterclaims are not allowed, unlike in small claims

proceedings.

Under Section 19, there is a list of prohibited pleadings and motions.

This list is similar with the list in small claims proceedings.

One of the motions prohibited by the circular is a Motion to Dismiss,

except on the grounds of lack of jurisdiction over the subject matter,

or failure to comply with a condition precedent, i.e., prior barangay

conciliation.

Q: May the court summarily dismiss the case without a Motion to

Dismiss from the defendant?

Yes. The court itself will examine the contents of the complaint. If

the court finds the case should be dismissed under Rule 16, it can do

so motu propio, without a correlative motion to dismiss filed by the

defendant.

Ordinarily, under ordinary procedures, a court cannot simply dismiss

the case without a correlative motion to dismiss.

The defendant is given time to file a responsive pleading for a shorter

period than in ordinary procedure, i.e., 10 days. The period is non-

extendible.

If defendant ignores the period, but files a motion for extension of 5

days to file an answer, the court can ignore it, considering it as if it

was not filed. If such a motion was filed, and there was failure of the

defendant to file an answer within 10 days, plaintiff can move for

judgment on the pleadings.

Q: The circular does not state that the 10 days is non-extendible.

What is the basis for this argument?

It is stated in Section 19. One of the prohibited motions is a motion

for extension of time to file pleadings, affidavits or any other paper.

This is also the reason why the court may ignore the motion and

consider it as not filed.

Q: If the defendant is prohibited from filing a motion to dismiss,

but the defendant, after evaluating the complaint that the case

should be dismissed based on any ground in Rule 16, can he still

make use of these grounds to cause dismissal eventually?

Yes. The defendant should follow Rule 16 by making use of the

grounds as an affirmative defense in his answer, and later on raise

these issues.

One of the prohibited motions also in Summary Procedure, and this is

also true with Small Claims, is the motion to declare the defendant in

default.

If defendant failed to answer on time, the plaintiff can move for


In ordinary proceedings, a motion to declare defendant in default

must be initiated by plaintiff before the court can declare defendant in

default. Unless such motion is made, the court can do nothing.

The reason why the rules on summary procedure do not allow the

court to declare defendant in default is because the rules under Rule 9

cannot be allowed in summary proceedings. It will be tantamount to

allowing a defendant in default to ask for lifting the order of default,

defeating the purpose of the rule on summary proceedings. It will not

be summary anymore.

Motion for new trial, motion for reconsideration and petition for

relief from judgment are prohibited in summary proceedings. This

does not mean the defendant has no remedy after judgment. The only

remedy available for a defendant is to appeal the judgment.

Annulment of judgment under Rule 47 can also be had under these

proceedings. But before he can avail of Rule 47, he must comply with

the strict requirements under Rule 47. Thus the aggrieved party must

first appeal if that is available to him.

One important aspect of Summary Procedure is the presence of a

preliminary conference. This is similar to pre-trial under civil actions

in ordinary procedure.

Q: Is it correct to say that there is no trial or hearing in summary

procedure?

No A trial is not absolutely prohibited in summary proceedings, as

certain criminal cases are governed by summary proceedings. A trial

has to be conducted because the court cannot deprive the accused of

his constitutional right of confrontation and from cross-examining the

witnesses.

Q: Why did not the SC adopt a common summary procedure for

civil and criminal cases? Why disallow trial in civil cases under

summary proceedings?

This is because SC cannot violate the rights of an accused in a

criminal case. The same right is not availing to a defendant in a civil

case under summary procedures.


Q: If the aggrieved party appeals the case to the RTC, will RTC

follow the rules of summary procedure as well?

No. Summary procedure applies only to inferior courts. Once the case

is elevated to the RTC in appeal, the appellate court has to comply

with the ordinary rules of procedure under the Rules of Court.

Read: Rule 70 of the Rules of Court

SMALL CLAIMS PROCEEDINGS

A Small Claims Court has jurisdiction over payment of money where

the value of the claim does not exceed P100,000, exclusive of interest

and cost. This is slightly different from the general rule of ‘exclusive

of interest, damages, attorney’s fees, litigation expenses, and cost.’

Q: Why are attorney’s fees not included?

For the simple reason that lawyers are not allowed to participate over

Small Claims Proceedings.

Joinder of causes of action is allowed, so long as the aggregate

amount should not go beyond P100,000.

Q: From where must this payment of money originate?

According to the circular, the claim or demand may be for (1) money

owed under contract, (2) damages arising from tort, quasi-contract, or

contract, and (3) enforcement of a barangay amicable settlement or

an arbitration award involving a money claim.

Q: Suppose there is a contract of lease between A and B. A is the

lessor and B, the lessee. Under the contract, B must pay A

P10,000 as monthly rent. B is in arrears for five months, meaning

he is indebted to A for P50,000 in back rentals. May B go to the

Small Claims Court to enforce his claim for P50,000?

Yes, he may. The claim for P50,000 back rentals is within the

jurisdiction of a Small Claims Court.

Q: Suppose A also wishes to recover possession of the land from

B, may he do so?

No, he may not. If he wishes to recover possession of the land from

B, he must file an unlawful detainer case. The Small Claims Court

only has jurisdiction over purely money claims.

Q: Suppose A filed an unlawful detainer case against B in the

MTC, may he do so?

Yes, there is something wrong with the complaint. Provided that he

has also a pending case with the Small Claims Court, he cannot split

the action so that he is collecting back rentals from one court, and an

unlawful detainer case in another court. That would be tantamount to

splitting a cause of action.

Q: Suppose there is a contract of real estate mortgage between A

and B as security for a loan worth P50,000. A is the mortgagor-

debtor and B, the mortgagee-creditor. May B go to the Small

Claims Court and demand from A his claim for P50,000?

Yes, he may. The claim for P50,000 is within the jurisdiction of the

Small Claims Court.

Q: Using the above problem, may he foreclose the mortgage if the

claim is not satisfied?

No, he may not. Small Claims Court only has jurisdiction to enforce

money claims. Once the mortgagee-creditor has enforced his claim in

a Small Claims Court, the mortgage is automatically cancelled by

operation of law.

Q: In a contract of lease and a contract of mortgage then, is it

better for the lessor or creditor not to file their cases in a Small

Claims Court?

It depends. If the lessor or creditor wishes to only enforce the money

claim aspect of their cases, the Small Claims Court is a better court

since it is faster and more advantageous to their interest. However, if

they wish to evict the lessee, or foreclose the mortgage, they are

much better not to file their cases with the Small Claims Court.

The scheme in Small Claims proceedings is that they are not required

to prepare their own pleadings. In Metro Manila, the MTC assigned

to entertain these claims have ready forms for complaints (called a

Statement of Claim) or answer (called a Response) to be filed in

court. The complainant only has to fill in the blanks. Minimal docket

fee is paid.

Unlike Summary Procedure, permissive counterclaims are allowed in

Small Claims Proceedings.

There are prohibited pleadings and motions similar to Summary

Procedure. One of these prohibited pleadings is a Motion to Dismiss.

Like Summary Procedure, however, the court by itself may dismiss

the complaint if one of the grounds under Rule 16 is apparent in the

face of the document. The unavailability of a Motion to Dismiss does

not mean that the defendant may not incorporate in his Response the

defenses under Rule 16.

At the time of filing the Statement of Claim or Response, certified

photocopies of the actionable documents subject to the claim or

defense as the case may be, as well as the affidavits of the witnesses

and other evidence must be attached with the Claim or Response.

Judicial Dispute Resolution

The MTC encourages parties as much as possible to enter into a

compromise agreement. Judicial Dispute Resolution is similar to pre-

trial in ordinary civil actions and preliminary conference in Summary

Procedure.

In Manila, based on experience, it is usual that the JDR court and the

actual court that will decide the case are different from each other. If

you take a look in your circulars, absent an agreement of the parties

that the JDR judge will be the same judge that will decide the case,

there will be another pairing judge that will decide the case instead.

Unlike Summary Procedure, small claims proceedings have nothing

to do with criminal cases, only civil collection cases.


In small claims procedure, the judgment is immediately final and

executory, no appeal is available. Motion for new trial, motion for

reconsideration and petition for relief from judgment are not

available since they are prohibited pleadings under the circular. The

only remedy available to an aggrieved party is under Rule 65,

Certiorari. Thus, there is no appeal, plain, speedy or adequate remedy

available.

Q: Does it mean that the aggrieved party in small claims

procedure is treated more kindly than in summary procedure?

No. The availability of Rule 65 in Small Claims procedure is not

really a benefit. A petition under Rule 65 does not stop the

respondent court from carrying out its decision.

Unlike in an appeal, usually, execution is not allowed, except in

forcible entry and unlawful detainer. In case of unlawful detainer,

under Rule 70, the payment of supersedeas bond and the payment of

current rate of monthly rentals can stop enforcement of the summary

proceedings judgment.

The only way Rule 65 can prevent immediate execution in small

claims is that the court taking cognizance of Rule 65 will issue a

TRO or writ of preliminary injunction upon application of appellant.

There is a need to post an injunction bond to avail of the TRO or writ

of preliminary injunction.

Q: Is it always practical to proceed with Rule 65 if there is an

adverse decision against a party?

No. Small claims proceedings involve, as the name implies, small

claims. It is sometimes impractical to proceed with Rule 65 since it is

possible that the attorney’s fees and litigation expenses will be more

than the actual sum to be collected.

PLEADINGS AND CONTENTS OF PLEADINGS

Let us take Rule 6, 7, 8, 9, and 10. Take them as one set, as they refer

to the same thing, pleadings and content of pleadings.

Pleadings should always be in writing. We do not recognize in our

system oral pleadings.

Pleading is a written statement or allegations of the cause or defenses

submitted to the court for judgment.

Under Rule 6, the litigants are allowed to make use of nine pleadings,

but numerous motions.

Classes of pleadings:

1. Claim pleading (7 kinds)

2. Responsive pleading (2 kinds)

There are several pleadings that may only be allowed if accompanied

by another pleading. For example, under Rule 11, Section 8, a

compulsory counterclaim or a cross-claim that a defending party has

at the time he files his answer shall be contained therein. And under

Rule 9, Section 2, if he fails to do so, a compulsory counterclaim, or a

cross-claim, not set up shall be barred.

Q: Are there any actions where some pleadings are not allowed?

Yes. For example, cases governed under Summary Procedure, Small

Claims Proceedings, Environmental Cases, the Writs of Kalikasan,

Amparo and Habeas Data, and expropriation, among others, prohibit

certain pleadings and motions.

INITIATORY AND NON-INITIATORY PLEADINGS

There are two classification of pleadings under Rule 7:

1. Initiatory Pleadings

Under Rule 7, all claim pleadings are initiatory pleadings.

There should be a certification on non-forum shopping, the

violation thereof could lead to adverse consequences such

as dismissal with or without prejudice; and the court shall

impose docket fees under Rule 141. The payment of docket

fees is considered jurisdictional.

2. Non-Initiatory Pleadings

Non-initiatory pleadings need no certification of non-forum shopping; and no docket fees are required.

Q: Compulsory counterclaims and cross-claims are claim

pleadings. Are they also initiatory pleadings?

No, they are not initiatory pleadings and therefore do not require a

certification of non-forum shopping or the payment of docket fees. It

should be noted that they are contained in an Answer and the latter is

not a claim but a responsive pleading.

Q: Rule 141 states that compulsory counterclaims and cross-

claims require docket fees. What is the basis that compulsory

counterclaims do not require docket fees if not the Rules of

Court?

With respect to compulsory counterclaims, courts do not consider it

an initiatory pleading which will necessitate the payment of docket

fees.

See Santo Tomas University v. Surla.

In 2010, SC decided that if the defendant files an answer with

permissive counterclaims, fails to pay docket fees, and the court has

neglected to collect docket fees thereto tries the case resulting in the

dismissal of the complaint and granting the permissive counterclaim,

the decision over the permissive counterclaim is void due to lack of

jurisdiction, there being no showing that the court acquired

jurisdiction over the counter-claim. The defendant has the duty to

remind the clerk of court that docket fees should be collected against

the defendant so as to enable the execution of a decision in favor of

the defendant.

COMPLAINT


Ultimate Facts

In ordinary civil cases, ultimate facts should be alleged in the

complaint. The plaintiff, however, is not sanctioned if evidentiary

facts are included therein. They will only be considered as surplusage

by the court.

In several circulars, in certain proceedings, a complaint need not state

just ultimate facts. In a complaint filed under Summary Proceedings,

plaintiff is encouraged to include in his complaint evidentiary facts

and to attach his evidence in the document. In Kalikasan proceedings,

the plaintiff is required to attach to his complaints all the evidence

that are in the possession of the plaintiff (documentary, testamentary

or object). Also in Kalikasan cases, the defendant should include his

evidence in the answer, aside from specific denials.

The ultimate facts are those that constitute the cause of action, an

allegation that the plaintiff has a right, an allegation that the

defendant has violated that right, or an allegation of compliance with

conditions precedent that gave rise to accrual of the cause of action.

ANSWER

Insofar as the answer is concerned, it is the pleading in response to a

complaint. It may contain positive or negative defenses or both along

with evidentiary facts. The defendant, however, cannot move for the

court to order the plaintiff to present evidentiary facts in his

complaint as the statement of the ultimate facts alone is sufficient.

Problems arise when an answer interposes a negative defense.

Negative Defense

In civil cases, a negative defense is always an important part of the

answer. A negative defense must always be in the form of a specific

denial.

Q: What is the standard to follow that a denial is specific?

It is found in Section 10, Rule 8. There are three modes, three ways,

in which a denial may be considered specific. These are:

1. Total denial of the allegations in the complaint with

accompanying statements upon which he relies to support

his denial;

2. Part denial and part admission; and

3. Just a statement by defendant that he has no knowledge

or information about the truth of the allegation.

Theoretically, the defendant can make use of any mode of denial

right away.

The court, however, has in several cases discouraged the 3rd mode of

specific denial, and imposed some sanctions if a defendant insists in

using the 3rd mode as the only mode contained in his answer.

SC held that if the defendant had no knowledge or information on the

matter, defendant should explain why. If he fails to do so, such denial

will not be considered as a specific denial. It will be considered as a

general denial, and a general denial will be treated as a judicial

admission to the allegations contained in the complaint. As a result, a

judgment on the pleadings can be had upon motion of the plaintiff.

Negative Pregnant

Another form of denial frowned upon by jurisprudence are the

following: “I specifically deny paragraph 1 because I had not dealt

with the plaintiff” or “I specifically deny paragraph 2 of the

complaint.” They are considered as negative pregnant. They are

specific denials that contain no ground relied upon in support of the

denial, and thus are considered as general denial. The remedy of the

defendant is to amend the answer as a matter of right as provided in

Rule 10.

Q: Are they cases where general denial is allowed?

A general denial is allowed in Habeas Corpus cases, but expressly

prohibited in Writ of Amparo and Habeas Data cases.

COUNTERCLAIMS

It is a claim made by the defendant against the plaintiff.

Q: What is the difference between a compulsory and permissive

counterclaim?

Compulsory Counterclaim Permissive Counterclaim

One which arises out of or is

necessarily connected with the

transaction or occurrence that is

the subject matter of the

opposing party’s claim (Sec.7,

Rule 6)

It does not arise out of nor is it

necessarily connected with the

subject matter of the opposing

party’s claim

It does not require for its

adjudication the presence of

third parties of whom the court

cannot acquire jurisdiction

It may require for its

adjudication the presence of

third parties over whom the court

cannot acquire jurisdiction

Barred if not set up in the action

(Sec. 2, Rule 9)

Not barred even if not set up in

the action

Need not be answered; No

default

Must be answered,: Otherwise,

default

Not an initiatory pleading. Initiatory pleading. (Riano, p.

336)

Need not be accompanied by a

certification against forum

shopping and certificate to file

action by the Lupong

Tagapamayapa.

Must be accompanied by a

certification against forum

shopping and whenever required

by law, also a certificate to file

action by the Lupong

Tagapamayapa (Santo Tomas

University v. Surla, G.R. No.

129718, Aug. 17, 1998) (2007

Bar Question).


The court has jurisdiction to

entertain both as to the amount

and nature (Sec. 7, Rule 6; Ibid

p.331)

Must be within the jurisdiction

of the court where the case is

pending and cognizable by

regular courts of justice

otherwise, defendant will have to

file it in separate proceeding

which requires payment of

docket fee

Q: Is there any difference between a compulsory counterclaim

filed in the RTC and a compulsory counterclaim filed in the

MTC?

A compulsory counterclaim filed in RTC cannot be a compulsory

counterclaim filed in the MTC.

For example, a counterclaim filed in the RTC states that the case filed

was unjust and defendant claimed legal expenses amounting to

P200,000. This is considered to be a compulsory counterclaim in the

RTC even if such amount is below the threshold for claims in the

RTC. We cannot challenge the RTC’s jurisdiction by the amounts

claimed in the counterclaim because of the principle of ancillary

jurisdiction.

If, on the other hand, the counterclaim filed in the MTC by a

defendant was claiming 500k in moral damages, under the rules, this

is no longer a compulsory counterclaim. It is treated as a permissive

counterclaim. The MTC can order dismissal of the counterclaim, as

the counterclaim is outside the jurisdiction of the MTC. We cannot

apply adherence to jurisdiction since the amount of P500,000 is over

and above the jurisdictional amount allowed by law, i.e., BP 129.

In sum, if the amount to be recovered is beyond the jurisdictional

amount of the MTC, the compulsory counterclaim is converted to a

permissive counterclaim. If the amount to be recovered is below the

jurisdictional amount of the RTC, the counterclaim is still treated as a

compulsory counterclaim.

REPLY

The filing of a reply is generally not necessary. It is in fact next to

useless.

Why is it useless? If the plaintiff does not reply, still, the matters not

answered in the reply are deemed controverted. In a complaint, if the

allegations therein are not specifically denied or were not dealt with

in the answer, they are deemed admitted. If the defendant does not

specifically deny or does not set up proper affirmative defenses in the

answer, the defendant is sanctioned by law. This will lead the court to

conclude that the defendant has admitted all allegations in the

complaint, and thus will lead to a judgment on the pleadings.

Q: The defendant includes in his answer an affirmative defense,

and the new matter asserts a positive defense of extinguishment,

for example, full payment of the loan. The plaintiff does not file a

reply. Is the plaintiff deemed to have admitted the new matter?

No. The new matter alleged in the answer is deemed controverted

even without a reply. The plaintiff need not submit a reply as the

rules itself state that the new allegation or matter is deemed

controverted.

Exception to Uselessness of a Reply

There is only one exception to the rule, and that is where the defense

in the answer is based on an actionable document. A reply under oath

Rule 8 must be made. Otherwise, the genuineness and due execution

of the document shall be deemed admitted, and that admission is

considered as a judicial admission.

Q: How about allegations of usury? Is it an exception?

No. Under our present rules, allegations of usury MUST be contained

in a complaint or similar pleadings. The law is not specific, but given

the liberal interpretation of the rules, it leads to the conclusion that as

long as the allegations of usury are contained in a complaint or

similar pleading like counter-claim or cross-claim, there is a need for

specific denial. The responsive pleading would be an answer, not a

reply. If the allegation of usury is contained in a counterclaim/cross-

claim, the responsive pleading is an answer to the counterclaim/cross-

claim. If the allegation of usury is contained in an answer, there is no

need to specifically deny in the reply.

Q: What is an actionable document?

It is the document relied upon by the plaintiff and the defendant for

his action or defense (Araneta, Inc. vs. Lyric Factor Exchange, Inc.

58 Phil 736)

For example, a promissory note in an action for collection of a sum of

money is an actionable document (Riano, Civil Procedure: A

Restatement for the Bar, p. 101, 2009 ed.).

Q: How are actionable documents pleaded?

1. By setting forth the substance of such document in the

pleading and attaching said document thereto as an exhibit;

or

2. By including the contents of the document verbatim in

the pleading (Sec. 7, Rule 8).

A variance in the substance of the document set forth in the pleading

and the document annexed thereto does not warrant the dismissal of

the action (Convets, Inc. v. National Development Co., G.R. No. L-

10232, Feb. 28, 1958). However, the contents of the document

annexed are controlling.

For example, the defendant alleges payment in his answer supported

by a receipt issued by the plaintiff, acknowledging full liquidation of

the indemnity. Under law, if the claim or demand is based on an

actionable document, it is imperative upon the misleader to allege on

the pleading the actionable document.

Q: Can the plaintiff simply file an affidavit in opposing the

actionable document?

The only way that a plaintiff can make a specific denial under oath

against the actionable document alleged in an answer is by way of a

reply. A reply is the only pleading that is available that responds to an


answer. If the plaintiff makes a reply setting up a specific denial, he

should also see to it that the specific denial is under oath. If he did not

do so, the genuineness and due execution of the actionable document

is deemed admitted.

Take note, however, of Titan Construction Corp. v. David, where it

says that a plaintiff who files a VERIFIED complaint is not anymore

required to file a verified reply against an answer which contains an

actionable document.

Q: What if the plaintiff titles his reply as an answer? Will that be

fatal to his defense?

No. The contents of the pleading shall be controlling and not the title

asserted by the one making it.

There are, however, exceptions to the exception. In these cases, even

if the plaintiff does not make a reply under oath, or the defendant

does not make an answer under oath, their failure to do so will not be

considered by the court as a judicial admission to the genuineness or

due execution of the actionable document. These cases are:

1. When the adverse party does not admit being a party to

that document, or

2. Even if such party is a party to the document, there being

an order issued by the court for the inspection of the

original document, the party does not comply with that

order.

Q: Is impleading an actionable document mandatory?

The mode of impleading an actionable document was held by the SC

to be mandatory. If the party impleading such document did not

follow the modes provided in the Rules, the party will not be allowed

to present proof of his cause of action or defense as the case may be,

as the attachment of the actionable document after the answer or

reply has been filed will adversely affect the other party.

THIRD-PARTY COMPLAINT

There can potentially be no end to the number of parties in the

complaint as long as the allegations in the pleadings have something

to do with the claim of the plaintiff in his complaint. If you would

notice among the pleadings, it is only the third/fourth party complaint

that requires leave of court.

The third/fourth party complaint must allege that the third/fourth

party defendant is liable to said third/fourth party plaintiff, by reason

of contribution, subrogation or any other relief in relation to the

subject matter of the claim in the complaint. The third/fourth party

complaint is always connected to the subject matter of the complaint.

If a complaint for instance is for the recovery of an unpaid loan, a

third party complaint cannot contain a claim for the recovery of

ownership of a piece of land. The subject of the third party complaint

should always be related to the subject of the complaint.

Q: Why do we need leave of court in order to file a third party

complaint?

This is because a third party complaint will forcibly bring into the

action a stranger to the case. The third party defendant is a stranger to

the case. This is why the rules require that the court should be given

discretion whether to allow or not to allow the third party complaint

to see if there is a need to bring a stranger to the case or even if there

may be a need, the claim is unrelated to the subject to the case. If the

court denies the motion for admission of a third party complaint, the

remedy of the defendant is to file a separate complaint against the

third party defendant.

Q: What is a third (fourth, etc.) party complaint?

A: A third (fourth, etc.) party complaint is a claim that a defending

party may, with leave of court, file against a person not a party to the

action, called the third (fourth, etc.) party defendant, for contribution,

indemnity, subrogation or any other relief, in respect of his

opponent's claim. (Sec.11, Rule 6)

Q: Distinguish a third-party complaint from the rules on

bringing in new parties under Section 12.

A: A third-party complaint is proper when not one of the third-party

defendants therein is a party to the main action. Whereas in bringing

in new parties, if one or more of the defendants in a counterclaim or

cross-claim is already a party to the action, then the other necessary

parties may be brought in under the rules on bringing in new parties.

Q: What are the tests to determine whether the third-party

complaint is in relation to the subject matter of the claim in the

complaint?

A:

1. Whether it arises out of the same transaction on which

the plaintiff’s claim is based, or, although arising out of

another or different transaction, is connected with the

plaintiff’s claim;

2. Whether the third-party defendant would be liable to the

plaintiff or to the defendant for all or part of the plaintiff’s

claim against the original defendant; and

3. Whether the third-party defendant may assert any

defenses which the third-party plaintiff has or may have to

the plaintiff’s claim.

Where the trial court has jurisdiction over the main case, it also has

jurisdiction over the third party complaint, regardless of the amount

involved as a third-party complaint is merely auxiliary to and is a

continuation of the main action (Republic v. Central Surety &

Insurance Co., G.R. No. L-27802, Oct. 26, 1968).

A third party complaint is not proper in an action for declaratory

relief. (Commissioner of Customs v. Cloribel, G.R. No. L-21036, June

30, 1977).

The court is vested with the discretion to allow or disallow a party to

an action to implead an additional party. Thus, a defendant has no

vested right to file a third party complaint (China Banking

Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p.

342, 2009 ed.).


Q: Abby obtained a favorable judgment against UNICAP for a

sum of money. For failure to get full payment, Abby went after

UNICAP’s debtor Ben. Ben is a policy holder of Insular. The

court’s sheriff then served a notice of garnishment to Insular

over several account receivables due to Ben. Insular refused to

comply with the order alleging adverse claims over the garnished

amounts. The trial court ordered Insular to release to Abby the

said account receivables of Ben under the policies. Insular then

filed a petition for certiorari with the CA alleging that the trial

judge gravely abused his discretion when he issued the

garnishment order despite its adverse claim on the garnished

amounts. The CA gave due course to the petition and annulled

the order of the trial court. Is the Court of Appeals correct?

A: No. Neither an appeal nor a petition for certiorari is the proper

remedy from the denial of a third-party claim. Since the third-party

claimant is not one of the parties to the action, he could not, strictly

speaking, appeal from the order denying its claim, but should file a

separate reinvindicatory action against the execution creditor or a

complaint for damages against the bond filed by the judgment

creditor in favor of the sheriff. The rights of a third-party claimant

should be decided in a separate action to be instituted by the third

person (Solidum v. CA, G.R. No. 161647, June 22, 2006).

Q: What is Doctrine of Ancillary Jurisdiction?

A: It involves the inherent or implied powers of the court to

determine issues incidental to the exercise of its primary jurisdiction.

Under its ancillary jurisdiction, a court may determine all questions

relative to the matters brought before it, regulate the manner in which

a trial shall be conducted, determine the hours at which the witnesses

and lawyers may be heard, and grant an injunction, attachment or

garnishment.

Q: Let us say that the subject of the complaint is the recovery of

1M unpaid loan. The competent court is an RTC. The defendant

asks the court for permission to file an answer with a third party

complaint. In the third party complaint, the defendant asserts

that Juan de la Cruz is bound to pay defendant the sum of 200K

by reason of contribution, indemnity, subrogation or any other

relief. With respect to the complaint, there is no question as to

jurisdiction as the competent court is really an RTC. It is with

respect to the third party complaint where a jurisdictional issue

is present. The third party complaint is effectively a complaint

filed by the defendant against a stranger to the case, and the

amount sought to be recovered is 200k, which is an amount not

within the jurisdiction of the RTC. Can the court, upon motion

by the third party defendant, order the dismissal of that third

party complaint on the ground of lack of jurisdiction over the

subject matter of the case?

No. We apply rule of ancillary jurisdiction of a trial court. If the trial

court has jurisdiction over the principal complaint filed by the

plaintiff against the defendant, the same court will exercise ancillary

jurisdiction over all collateral pleadings, incidental pleadings that are

related to the complaint. Thus, the third party complaint to recover

200k is still cognizable by the same court.

Q: Is it correct to say that third party complaint or fourth party

complaint would be the only pleadings which will enable a

litigant to bring in a stranger to the case? Can a litigant bring in

a stranger without a third or fourth party complaint?

No. The Rule does not say that it is the only means/pleading available

to bring in a stranger to the case.

Q: Can the defendant compel a stranger to be a party to the case

by filing a counterclaim or cross-claim? What is your basis?

The law authorizes the defendant to bring in a stranger by filing a

permissive or compulsory counter-claim. The law authorizes the

defendant to bring in a stranger to the case through the filing of a

cross-claim. Although the Rules defines a cross-claim as a claim by a

defendant against his co-defendant, the Rules does not say that in

filing a cross-claim against a co-defendant that a third person can be

impleaded in the cross-claim.

In the definition of a counterclaim, the defendant could set up the

counterclaim against the plaintiff or against any party or person who

is not yet a party to the case, as long as the court can acquire

jurisdiction over the person of the said person.

The basis is found in Section 12, Rule 6, of the Rules of Court.

Q: Why do we allow a defendant to bring in a stranger to the case

by not using a third-party complaint but by cross-claim or

counterclaim, especially when such is compulsory?

Because there is another provision in the Rules which say that if there

is a compulsory counterclaim or cross-claim not set up in the answer,

that compulsory counterclaim or cross-claim are barred. If there is a

need to implead a stranger, he should be allowed to implead a

stranger, although not via a third party complaint.

STRIKING OUT OF PLEADING OR MATTER CONTAINED

THEREIN

There are certain limitations to matters that may be included in a

motion or pleading. The law does not allow scandalous and indecent

matters to be alleged in a pleading. The remedy of the other party in

these cases is to ask the court to strike out the pleading itself or the

scandalous or indecent matter contained therein.

Q: If the complaint contains scandalous and indecent matters

and the defendant moves to strike out these matters, will the

running of the period to answer be suspended?

Yes. The Rules do not expressly say so, but the period is interrupted

until the court has finally resolved the motion.

Personal Opinion: The reason might be that, similar to a motion for a

bill of particulars, the defendant cannot properly prepare his answer

until and unless the court resolves if the complaint is proper or not.

Q: May striking out of pleadings or any matter contained therein

be done by courts motu proprio?


Yes. The court has authority to do so even without motion from the

adverse party.

FORMS OF A PLEADING: SIGNING

A pleading must always be signed. An unsigned pleading will be

treated as a sham pleading. You cannot submit an unsigned pleading.

The court motu propio can order the striking out of the pleading.

Q: Who will sign the pleading?

The litigant can sign the pleading. Or, his counsel can sign for him.

Either or both can sign the pleading.

Q: Are there pleadings that are inadmissible by the court if the

only signature is that of the lawyer’s?

By way of exception, yes, in case of marriage annulment cases.

According to the SC Circular, the complaint and the answer must be

signed also by the party himself. If signed only by the lawyer alone,

the court will not accept the pleading.

But generally, the signature of the counsel is enough for a pleading to

be accepted by the court.

Q: What is the effect of lawyer’s signature?

A: The signature of counsel constitutes:

1. A certificate by him that he has read the pleadings;

2. That to the best of his knowledge, information and belief

there is good ground to support it; and

3. That it is not interposed for delay. (Sec. 3, Rule 7)

FORMS OF A PLEADING: VERIFICATION

Q: Is verification necessary in pleadings?

A: No, except when otherwise specifically required by law or rule,

pleadings need not be under oath, verified or accompanied by

affidavit.

Q: What is the significance of verification?

Dean Riano: It is intended to secure an assurance that the allegations

in a pleading are true and correct and not the product of the

imagination or a matter of speculation, and that the pleading is filed

in good faith. The absence of a proper verification is cause to treat the

pleading as unsigned and dismissible (citing Chua vs. Torres, 468

SCRA 358, p. 60.)

Q: What are the effects of lack of verification?

A pleading required to be verified but lacks the proper verification

shall be treated as an unsigned. Hence, it produces no legal effect.

It does not, however, necessarily render the pleading defective. It is

only a formal and not a jurisdictional requirement. The requirement is

a condition affecting only the form of the pleading and non-

compliance therewith does not necessarily render it fatally defective.

The absence of verification may be corrected by requiring an oath.

The rule is in keeping with the principle that rules of procedure are

established to secure substantial justice and that technical

requirements may be dispensed with in meritorious cases.

Q: How are pleadings verified?

A: It is verified by an affidavit. This affidavit declares that the:

1. Affiant has read the pleading; and

2. Allegations therein are true and correct of his personal

knowledge or based on authentic records.

If the verification is not according to the tone given in the Rules, that

will be an inadequate or insufficient verification. And under Rule 7,

the absence or inadequacy of the verification shall result in an

effectively unsigned pleading.

But the SC keeps on ignoring the Rules on verification. Although it

would appear in Rule 7 that absence of verification could be a fatal

defect, the SC keeps on ruling that the absence of verification is only

a formal defect. If you come across a question concerning the need to

verify a pleading or determining the adequacy of verification in a

pleading, and you are asked what the effect is, based on rulings by

the SC, in instances required by law for submission of a pleading

with an inadequate verification is only a formal defect.

Q: A complaint, a permissive counterclaim, cross-claim, a

third/fourth party complaint, all of these being initiatory

pleadings, must have a certification of non-forum shopping. Does

it mean to say that verification of a pleading is now the general

rule, given that in Rule 7, initiatory pleadings must carry with

them a certification of non-forum shopping?

No. Certification of non-forum shopping is different from verification

of a pleading.

Verification of a pleading refers to the allegations in the pleading.

The verification states that one has read the pleading and that it is

correct based on his personal knowledge or based on authentic

records. The contents of certification of non-forum shopping does not

have anything to do with the contents of an initiatory pleading, as it

simply certifies that no similar case had been filed in any other court,

tribunal or body, and to notify the court right away if one should

come to know of such fact.

In the case of a Certification of Non-Forum Shopping, the SC appears

to have adapted the rule of substantial compliance as to the

requirements of the certification’s contents. Take note that the Rules

say that all principal plaintiffs should sign the certification.

Otherwise, the certification will be ineffective. This defect is not

curable by amendment under Rule 7.

There was a recent case wherein the complaint had 5 principal

plaintiffs and only two of them signed. The defendant challenged the

authority of the court receive the case as the certification was

ineffective. The court refused to dismiss the case. The court said that

it will go ahead with the case but will drop the claims where the non-

signing plaintiffs are concerned. In effect, the court said the signature


of the two plaintiffs will of substantial compliance with the

requirement.

As to the issue of a lawyer signing the certification of non-forum

shopping, the general rule being that a party himself must sign, if the

lawyer sign for the plaintiff, the lawyer must be able to show his

authority to do so via a special power of attorney authorizing him to

sign in the stead of his client.

CORPORATION EXECUTING THE VERIFICATION AND

CERTIFICATION OF NON-FORUM SHOPPING

Q: What is the rule when the plaintiff is a juridical person?

Dean Riano: The certification against forum shopping where the

plaintiff is a juridical entity like a corporation, may be executed by

properly authorized person. This person may be a lawyer of a

corporation. As long as he is duly authorized by the corporation and

has personal knowledge of the facts required to be disclosed in the

certification, such may be signed by the authorized lawyer.

Dean Albano: The following officials or employees of the company

can sign the verification and certification without need of a board

resolution:

1. The Chairperson of the Board

2. The President of the Corporation

3. The General Manager or Acting GM

4. Personnel Officer 5. Employment Specialist in a labor case

Q: If the officer is required to present a Secretary’s Certificate to

prove he is authorized but failed to do so, will the complaint be

dismissed?

Dean Albano: Qualify.

The failure to attach the Secretary’s Certificate, attesting to the GM’s

authority to sign the Verification and Certification of Non-Forum

Shopping, should be not be considered fatal to the filing of the

petition. The subsequent submission of the board resolution, together

with the pertinent documents can be considered as substantial

compliance with the rules.

If there is substantial compliance (but not non-compliance), the

complaint will not be dismissed (citing Mid-Pasig Land Dev. Corp. v.

Tablante).

Q: Corporation XYZ is the petitioner in a civil case. Alexander,

president of corporation XYZ, signed the certification against

forum shopping in behalf of said corporation without presenting

any proof of authority from the corporation. Is the certification

against forum shopping valid? If not, how may it be cured?

A: No. When the petitioner in a case is a corporation, the certification

against forum shopping should be signed by its duly authorized

director or representative. The authorized director or representative of

the corporation should be vested with authority by a valid board

resolution. A proof of said authority must be attached with the

certification (PAL v. FASAP, G.R. No. 143088, Jan. 24, 2006).

OMNIBUS MOTION RULE

Q: What is the Omnibus Motion Rule?

All available grounds for objection in attacking a pleading, order,

judgment, or proceeding should be invoked at one time; otherwise,

they shall be deemed waived.

Q: Are there any exceptions to the Omnibus Motion Rule?

The court may dismiss the case motu propio based on:

1. Lack of jurisdiction over the subject matter;

2. Litis pendencia;

3. Res judicata; and

4. Barred by statute of limitations (prescription).

These are we call as non-waivable defenses in civil procedure.

Q: Are there any non-waivable defenses in criminal procedure?

Yes. These grounds are:

1. That the facts charged do not constitute an offense;

2. That the court trying the case has no jurisdiction over the

offense charged;

3. That the criminal liability has been extinguished; and 4. Double jeopardy.

A previous decision or judgment will bar the filing of another case

similar or tackling the same issues, having the same parties, and the

same or related reliefs. In a civil case, it is called res judicata, while

in a criminal case, it is called double jeopardy.

In criminal cases, there is the defense that the information does not

charge an offense. In civil cases, this is equivalent to failure to state a

cause of action. In civil cases, if the complaint does not properly

allege a cause of action and the complaint was not amended at all,

where the defendant does not file a motion to dismiss, the case went

to trial, and the plaintiff showed in the trial that he indeed has cause

of action without objection from the defendant, the complaint is

deemed amended. This is called amendment to pleadings to conform

to evidence.

Thus, unlike criminal cases, in civil cases, the failure to state a cause

of action is waivable, the remedy being an amendment to conform to

evidence. The court may order such amendment be made.

AMENDED / SUPPLEMENTAL PLEADINGS

Q: A plaintiff files a case for accion reinvindicatoria. As what we

learned before in jurisdiction, the assessed value of the property

properly determines jurisdiction. The case was filed in the RTC.

No allegation was included as to the value of the property. Can

RTC dismiss the case?

Yes. If the court is unable to determine that it has jurisdiction over

the case, as in this instant, it may dismiss the case for lack of

jurisdiction over the subject matter of the case.


Q: In the example above the plaintiff failed to make the necessary

jurisdictional averment. Having discovered it, he amended the

complaint and submitted it before the defendant may answer. Is

the plaintiff correct?

Yes. The amendment was an amendment as a matter of right. The

plaintiff has the right amend his complaint once before a responsive

pleading is filed, even to the extent of amending the averment to

confer jurisdiction. Thus, the plaintiff is correct to amend his

pleading to include the jurisdictional averment.

This situation is also applicable, for example, in unlawful detainer. If

the plaintiff failed to allege in his complaint that a final demand had

been made, the plaintiff may amend his complaint as a matter of right

to include the said allegation.

Q: What if the defendant files a Motion to Dismiss? May the

plaintiff amend his complaint as a matter of right before the date

of hearing for the Motion to Dismiss?

Yes. A Motion to Dismiss is not a responsive pleading. Even if the

defendant files a Motion to Dismiss, the plaintiff reserves the right to

amend his complaint once as a matter of right.

If the plaintiff does amend his complaint, the trial court has no other

recourse except to deny the Motion to Dismiss. The defects cited by

the defendant are already remedied by the amended complaint.

Q: What if the plaintiff waits for the date of hearing and opposes

the defendant’s Motion to Dismiss but lost? May he still amend

his complaint as a matter of right even if there is an order by the

court dismissing the complaint?

Yes. The order of dismissal only becomes final until the lapse of the

15-day period from the time the order of dismissal is entered. If the

plaintiff does not wish to appeal the order of dismissal or even file a

petition for certiorari under Rule 65 as the case may be, he has a third

remedy and that is to amend his complaint as a matter of right. The

plaintiff may still exercise this amendatory right before the order of

dismissal becomes final.

Q: The plaintiff changed his cause of action in the complaint, and

the amendment was as a matter of right. Is this allowed? What if

an answer was already filed?

If amendment is a matter of right, the plaintiff can change his

pleading’s cause of action.

If amendment is not a matter of right, the plaintiff must be authorized

by the court to amend the pleading to include another cause of action

or change a cause of action.

All pleadings can be amended as a matter of right or with prior leave

of court.

Read: Philippine Ports Authority vs. Gothong

Change in the cause of action in the complaint is a matter of

discretion upon the court once an answer had already been filed. As

long as the amendment gives the parties the opportunity to tell the

court what is the true dispute between the parties, and as long as it

does not involve prejudice to substantial justice. Hence, if the

complaint was amended not as a matter of right, the defendant can

also amend his answer, if needed, to properly respond to the amended

complaint. In the Gothong Case, the SC encouraged trial courts to

liberally the Rule on amendment of pleadings, whether as a matter of

right or as a matter of discretion.

Q: In case the complaint has been amended, are new summons

still required?

If no answer has yet been filed, summons is still necessary. If there is

already an answer, the Court held that there is no more need to issue

new summons. The amendment in that case is with leave of court and

more importantly, the defendant is furnished a copy of the amended

complaint.

Personal Opinion: There will however be a new set of summons if the

amended complaint impleads new defendants. This is only necessary

for due process.

Q: How many amendments may be made by a party?

A: As many times as he wants, but amendment as a matter of right

can only be availed of once, and only before an answer has been

filed. The second, third, fourth… amendments need leave of court.

Q: Can we amend pleadings if the case has already been decided

and is on appeal either in the CA or SC?

Yes. Amendments can be done if it is only formal in nature. But if the

amendment is substantial, appellate courts will hesitate as such

amendment will injure the rights of parties who had not appealed.

What can be brought on appeal are issues that have been raised from

the trial court.

Q: When is amendment made to conform to or authorize

presentation of evidence?

1. When issues not raised by the pleadings are tried with the express

or implied consent of the parties.

2. Amendment may also be made to authorize presentation of

evidence if evidence is objected to at the trial on the ground that it is

not within the issues made by the pleadings, if the presentation of the

merits of the action and the ends of substantial justice will be

subserved thereby.

If the evidence presented by the plaintiff is not material to the

allegations in his complaint, and there is an objection by the

defendant, that objection should be sustained. But if the presentation

of evidence that is not material to the complaint is not objected to, the

court can motu propio tell the plaintiff not to continue the

presentation of that evidence.

Q: A filed an accion reinvidicatoria against B. During the trial, A

presented evidence that B has an outstanding loan against the

former for P500K. Although this loan is independent and alien to

the original action, B’s counsel did not object to the presentation

of evidence in court. May the trial court in its decision award A

with P500K?


Yes. A’s complaint is deemed to have been amended to conform to

evidence. A does not even have to file a motion requesting to amend

his complaint. Amendment to conform to evidence takes place by

operation of law.

Q: Distinguish an amended pleading from a supplemental

pleading.

A:

Amended Pleading Supplemental Pleading

Refer to the facts existing at the

time of filing of original

pleading

Refers to facts occurring after

the filing of the original

pleading.

Supersedes the original, causes

of action may be changed

Merely supplements the

original pleading.

May be amended without leave

of court before a responsive

pleading is filed.

Always with leave of court

Amendment must be

appropriately marked.

There is no such requirement in

supplemental pleadings

(Herrera, Vol. I, p. 854, 2007

ed.)

Q: What is the effect of an amended pleading?

An amended pleading supersedes the pleading it amends. However,

admissions in the superseded pleading can still be received in

evidence against the pleader. Claims or defenses alleged therein but

not incorporated or reiterated in the amended pleading are deemed

waived.

Q: An amended pleading takes the place of the original pleading.

Will the court discard the original pleading?

No, the court will retain the pleading for court record purposes.

Admissions made in superseded pleadings are considered extra-

judicial admissions. They can be rebutted.

Admissions made in the original pleadings are still admissions, but

cannot be considered as judicial admissions. They are mere extra-

judicial admission by the person making it.

A judicial admission is always conclusive. It cannot be subject to

rebuttal by evidence.

Q: The information submitted by the prosecutor did not really

allege a crime was committed. But the prosecutor was able to

show in court by the evidence presented that indeed a crime was

committed. Can amendment of pleadings to conform to evidence

be allowed in this case?

No, it cannot be allowed. It will violate the constitutional right of the

accused to be informed of the charges against him. We can apply

amendment of pleadings to conform to evidence in a criminal case so

long as the constitutional right of the defendant is not violated.

DEFAULT

Q: When is a declaration of default proper?

A: If the defending party fails to answer within the time allowed

therefor, the court shall upon motion of the claiming party with notice

to the defending party, and proof of such failure, declare the

defending party in default.

Q: In what situations where declaration of default is proper?

A: It is proper in 3 situations:

1. Defendant did not file any answer or responsive pleading

despite valid service of summons;

2. Defendant filed an answer or responsive pleading but beyond

the reglementary period; and

3. Defendant filed an answer to the court but failed to serve the

plaintiff a copy as required by the Rules.

Q: Will the plaintiff be in default if he fails to file an answer with

respect to the compulsory counterclaim filed by the defendant?

No. The compulsory counterclaim is an exception to the general rule

that all claim pleadings may lead to default if unanswered.

Q: How about a cross-claim?

In one case decided in 1999, the SC held that if a cross-claim is not

answered, the cross-plaintiff or cross-claimant can file a motion to

declare the cross-defendant in default. But the SC said that court may

or may not grant the order of default.

Q: What are the effects of an order of default?

A:

1. The party declared in default loses his standing in court. The

loss of such standing prevents him from taking part in the

trial.

2. While the defendant can no longer take part in the trial, he is

nevertheless entitled to notices of subsequent proceedings. He

may, however, still be a witness for his co-defendants in case

of partial default.

3. A declaration of default is not an admission of the truth or the

validity of the plaintiff’s claims.

Under Rule 9, if all the defendants are declared in default, the court is

given two choices:

1. To render a judgment of default based on the complaint

(judgment on the pleadings); or

2. To order the complainant to present evidence ex-parte in

support of his allegations and render a judgment based on

that evidence.

Q: If a defendant is in default, does that mean he automatically

loses the case?

Not necessarily. A declaration of default is not a judicial admission of

the complaint. The court still has to ascertain if there is any merit or

substance with the complaint.

Q: What are the reliefs from an order of default?

A:


1. After notice of order and before judgment – The defendant must

file a verified motion to set aside the order of default upon proper

showing that:

a. His failure to answer was due to fraud, accident, mistake

or excusable negligence; and

b. That he has a meritorious defense. (2000 & 1999 Bar

Question)

2. After judgment and before judgment becomes final and executory –

He may file a motion for new trial under Rule 37. He may also appeal

from the judgment as being contrary to the evidence or the law. He

may even prove during appeal that the evidence received during trial

is hearsay.

3. After the judgment becomes final and executory – he may file a

petition for relief from judgment under Rule 38 (2006, 1998 Bar

Question)

4. Where the defendant has however, been wrongly or improvidently

declared in default, the court can be considered to have acted with

grave abuse of discretion amounting to lack or excess of jurisdiction

and when the lack of jurisdiction is patent in the face of the judgment

or from the judicial records, he may avail of the special civil action of

certiorari under Rule 65.

Q: What is the effect of partial default?

As a general rule, the court will try the case against all defendants

upon the answer of some.

Exception: Where the defense is personal to the one who answered, it

will not benefit those who did not answer e.g. forgery. (1995 Bar

Question)

Q: What is the extent of relief?

A: The judgment shall not exceed the amount or be different in kind

from that prayed for nor award unliquidated damages. However, if

the court orders submission of evidence, unliquidated damages may

be awarded based on such.

Q: When is default not allowed?

There are several instances where declaration of default is prohibited

like mortgage, the rules on summary procedures, Writ of Amparo,

Writ of Habeas Data, marriage related cases, and in special civil

actions like certiorari, prohibition, and mandamus (since in these last

cases a comment and not a reply is given by the defendant).

It is not correct to say that it is absolute in civil actions that if a

defendant does not file his responsive pleading, he can be declared in

default. What is clear is the general rule: If a complaint is filed and

summons is served upon the defendant, but the defendant did not file

an answer within the reglementary period given by the Rules, the

defendant can be declared in default upon motion of the plaintiff.

Q: May the court motu proprio declare the defendant in default?

The court cannot motu propio declare the defendant in default.

Motion must be made by the plaintiff before declaration of default

can be had. Failure to file the motion for declaration of default by the

plaintiff can result to the complaint being dismissed for failure to

prosecute for an unreasonable length of time under Rule 17. It is a

dismissal with prejudice.

Q: If in a case the plaintiff did not move to declare the defendant

in default, may the court set the case for pre-trial?

No. Unless all the pleadings are in, the court has no business setting

the case for pre-trial. If the defendant does not wish to answer and the

plaintiff does not wish to declare the defendant in default, since the

court cannot set up the case for pre-trial, the most the court can do is

to dismiss the complaint under Rule 17 for failure of the plaintiff to

prosecute (nolle prosequi).

Dean Albano: But you should read Soliman v. Fernandez, a 2014

case. The SC held that the court should not dismiss the case if the

plaintiff fails to take further steps to prosecute or set it for pre-trial

because the further steps is not his, but for the clerk of court, to take.

Within five days from date of filing of the reply, the plaintiff must

move ex parte that the case be set for pre-trial conference. If the

plaintiff fails to file said motion within the given period, the Branch

Clerk of Court shall file a notice of pre-trial.

Q: Suppose plaintiff files a motion for declaration of defendant in

default, but the motion was for that of an ex-parte motion to

declare defendant in default. The reasoning is that since the

defendant had not bothered to file an answer, there is no use of

serving notice to the defendant. This is for the plaintiff to prevent

the defendant from entertaining the idea that he must file an

answer to prevent being declared in default. Is plaintiff correct?

No. Rule 9 is very clear that a copy of the motion to declare

defendant in default should be served upon the defendant. If such

copy is not served upon the defendant, that motion will not be acted

upon by the court.

Q: What if the defendant filed an answer after receiving a copy of

the motion to declare him in default, can the court still declare

him in default?

Yes, if the court follows strictly Rule 9. But, as a matter of policy, an

answer filed out of time will not result in the defendant in being

declared in default. SC held repeatedly that as much as possible the

technical aspects of default should not be applied strictly in the

interest of furtherance of justice. Even if the period to answer has

already expired, but an answer is filed out of time, the courts will still

admit that answer and deny the motion to declare the defendant in

default.

The reason why SC adopted this policy is because at present, under

Rule 9, if defendant is declared in default, the court can right away

render a judgment in default against defendant without conducting a

trial. Under Rule 9, the court is given 2 choices: Render a judgment

of default based on the complaint (judgment on the pleadings), or to

order the complainant to present evidence ex-parte in support of his

allegations. At least in the second option, there can be presentation of

evidence, unlike in the first option where only the pleadings will be

the basis of the judgment. And if there is a trial ex-parte on default

ordered by the court, the defendant will not be allowed to participate


in the proceedings, unless he is able to secure an order to lift the

default.

Rule 9 is very explicit in stating that the award in default judgments

cannot be greater than that prayed for in the complaint, even if there

is an ex-parte presentation of evidence showing evidence thereto.

Default Under Rule 18 Pre-Trial

Under Rule 18, if the plaintiff does not appear during the pre-trial or

failed to submit pre-trial brief, his complaint will be dismissed and

the dismissal is with prejudice.

On the other hand, if the defendant does not appear during pre-trial or

did not submit his pre-trial brief on time, the court will allow to the

plaintiff to present his evidence ex parte and the court will render a

judgment based thereon.

Although Rule 9 and Rule 18 both contains ‘ex parte presentation of

evidence,’ there are vital differences between the two.

Comparison between Rule 9 and Rule 18 Default

Rule 9 Rule 18

In Rule 9, defendant shall be

declared in default for not filing

an answer.

Under Rule 18, a plaintiff shall

be declared in default for not

appearing during pre-trial or

failure to submit a pre-trial

brief, while a defendant shall

be declared in default for not

appearing or submitting a pre-trial brief on time.

The court cannot grant a relief

more than that alleged in the complaint.

The court can grant a relief

more than that alleged, based

on what the plaintiff can prove

based on his evidence

presented.

In Rule 9, the defendant in

default has not filed an answer at

all. The court is considered to

have been taking pity on a defendant who had surrendered.

In Rule 18, the defendant

already filed an answered. The

defendant’s failure to comply

with attending a pre-trial

conference or file a pre-trial

brief is meted with severe

sanction. Also, the fact that the

court gives the plaintiff the

opportunity to present his

evidence, what the plaintiff

proves on evidence shall be the

basis of the judgment of the

court.

Q: During ex parte presentation during pre-trial, the plaintiff was

able to prove damages of 2M. However, the complaint alleges

only 1M. The court awarded 2M. Is the court correct? Why?

Yes, the court is correct. This is because the defendant has failed to

comply with a court order to either appear in pre-trial or to submit a

pre-trial brief, and thus the court can sanction defendant at default.

Also, since the court allows the plaintiff, as provided under Rule 18,

to present evidence to prove his allegations, what the plaintiff was

able to prove shall be the basis of the court’s judgment.

Partial Default

There is partial default when one of several defendants, sued under a

common cause of action, is declared in default, while the others can

still participate in the case.

Q: Can there be a judgment in default against the non-answering

defendants?

No, the court cannot do that. In case of several defendants, of whom

some have filed an answer, the most that the court can do is to

declare the non-answering defendants in default. The court cannot

declare the answering defendants in default as there is no reason to do

that. Insofar as the non-answering defendant is concerned, they shall

be declared in default but there could be a separate judgment that will

be rendered.

Q: Can the answering defendant call the defendants in default as

witnesses?

Yes. Defendants declared in default can be witnesses, although he

will not be allowed to participate as a litigant.

Q: If the court finds for the answering defendant, will that

decision also affect the defendants declared in default?

Yes. Whatever happens to the case, the defendants in default shall be

subject to the decisions rendered. Thus, if the answering defendant

wins, the decision shall also be in favor of the defendants in default.

This is one situation where a defaulting defendant can prevail in the

case. The reason is that the non-answering defendants are sued under

a common cause of action with answering defendants.

Q: The creditor sued two defendants where one answered and the

other failed to answer. The one debtor who failed to answer was

declared in default. The plaintiff wisely moved for the dismissal

of the complaint against the answering defendant. The answering

defendant did not object to the dismissal. The case caption was

then changed to plaintiff versus the defendant in default. Can the

court now ask for presentation of evidence ex-parte?

SC held that it is not necessary. Even if the answering defendant has

been dropped from the case upon the initiative of the plaintiff, what

the trial should examine is whether or not the answering defendant is

an indispensable party to the case. If answering defendant is an

indispensable party, then the court should require the inclusion of

such party. What the court should do is to order the plaintiff to amend

his pleadings and include the indispensable party. Failure to do so

will be dismissal of the complaint with prejudice under Rule 17. This

is because if answering defendant is an indispensable party but he is

not around, the proceedings of the court could be void, it would be

useless for the court to try the case. And under the new doctrines

enunciated by the SC, if an indispensable party has not been included

or has been dropped from the case, the court should compel the

indispensable party to be impleaded via an amendment to the

complaint. Failure of plaintiff to do so will allow the court to dismiss

the case with prejudice under Rule 17 for refusal to obey a lawful

court order.


Q: Since it is disadvantageous for a non-answering defendant to

be declared in default, what are the remedies given by law to the

defaulting defendant?

The defendant should file a motion to lift the order of default at any

time before judgment. The motion must be filed with an affidavit of

merit along with his proposed answer, alleging the reasons of why he

defaulted and alleging that he has a good defense as stated in the

proposed answer.

An affidavit of merit is required since he has to substantiate that he

was in default because of FAME. He must also his attach his answer

since he has to show that he has a meritorious defense. These are the

two requirements for a proper motion to lift the order of default.

If the motion to lift the order of default is denied, it is inappealable,

being an interlocutory decision. Although Rule 65 can be had, i.e.,

certiorari, the appellant must show that the court acted with lack or in

excess of jurisdiction

If the court has already rendered judgment by default (after motion to

life order of default has been denied), the defendant can appeal. A

judgment by default is adjudication on the merits, hence appealable.

Since appeal is available, Rule 65 is not available. Rule 65 is only

available if there is no remedy under the Rules or under law.

Aside from appeal, the defendant may also file a motion for new trial

or a motion for reconsideration. If the judgment has become final and

executory, he may even file a petition for relief from judgment.

Q: In summary procedure and small claims proceedings, may the

plaintiff declare the non-answering defendant in default?

No. A Motion to Dismiss is prohibited in summary procedure and

small claims proceedings. The court will not declare the defendant in

default.

In summary procedure, if the defendant does not answer, the court

shall render judgment as may be warranted by the facts alleged in the

complaint and limited to what is prayed for therein

In small claims proceedings, if the defendant fails to file his response

AND fails to appear at the date set for hearing, the court shall render

judgment on the same day.

If he fails to file his response but appears at the date set for hearing,

the court shall ascertain what defense he had to offer as if a Response

has been filed.

Q: What is the remedy of the defendant in summary procedure

and small claims proceedings if there is a judgment by default?

The defendant cannot assail the judgment by default through a

motion for new trial or a motion for reconsideration. These are

prohibited pleadings in summary procedure and small claims

proceedings. The defendant also cannot file a petition for relief from

judgment because that is prohibited as well.

If the case is governed by summary procedure, the defendant may

appeal. It is not prohibited under summary procedure.

If the case, however, is governed by small claims proceedings, appeal

is not available because the decision of the small claims court is final

and executory. It is unappealable. The aggrieved party, however, may

use Rule 65, but only when he can prove there is lack of jurisdiction

or in excess of its jurisdiction in the part of the court.

PERIOD TO FILE PLEADINGS

In the periods for filing of pleadings, there is nothing mentioned as to

the period as to when a complaint should be filed. Nothing is fixed in

the rules. The reason is that the filing of the complaint is solely

dependent upon the whim of the plaintiff. If SC does fix such period,

it will be invading the turf of substantive law.

If there is a period fixed as to when that complaint should be filed, it

is determined by substantive law. Prescription of a cause of action is

a matter of substantive law. With respect to counterclaim, cross-claim

or third party complaint, there is a period fixed in the Rules. Of

particular is the period for filing a cross-claim and a compulsory

counter-claim. They must be filed within the period as that for the

filing of an answer.

Why? Will it not violate substantive law?

Even if the cross-claim, counter-claim or third-party complaint are

claim pleadings, the rules do not allow the defending party to file an

answer separately from a counterclaim, cross-claim or a third-party

complaint. These pleadings must be included in his answer. Thus a

defendant must file an answer with a counterclaim, cross-claim or a

third-party complaint. Otherwise, defendant may file a motion for

leave to file an amended answer with cross-claim, counterclaim, etc.

With respect to a third-party complaint, defendant would have to first

file a motion for leave to file a third-party complaint along with the

amended answer, attaching the amended answer to the motion.

Because of this rule, the filing of a compulsory counterclaim should

be the same as that provided for the filing of an answer. If there is an

answer filed, but the defendant feels he should file a counterclaim, he

will have to file a motion for leave to file an amended answer with

counterclaim (with a copy of the amended answer attached).

Q: May the court extend the period to file an answer?

It depends.

In an ordinary civil action, yes, but only if the circumstances warrant.

If the case is under summary procedure or small claims proceedings

(in the form of a response), no. A motion for extension to file

pleadings, affidavits, or any other paper is one of the prohibited

motions in summary procedure and small claims proceedings.

Q: May the court reduce the period to file an answer?

As a general rule, no.


The only exception is in quo warranto proceedings. Under Rule 66,

the court may, if it deems just, fix a period that is shorter than that

provided in the Rules of Court.

BILL OF PARTICULARS

Q: What is a bill of particulars?

Motion for leave to file bill of particulars is proper if there is

inadequacy of the allegations contained in the complaint.

As a rule, under Rule 16, the inadequacy of the allegations in the

complaint is NOT a ground for the filing of a motion to dismiss the

complaint. Unless the inadequacy is in such a way that there is failure

to state a cause of action, the complaint may not be dismissed by the

court.

Q: What is the difference of a bill of particulars in civil actions

and a bill of particulars in criminal cases?

There is a great difference. In a civil case, the purpose why a bill of

particulars may be availed of by a litigant to enable him to prepare a

responsive pleading. In a criminal case, the purpose of the accused is

to enable him to prepare for trial.

Q: Is a bill of particulars available to all parties?

Yes. It is available to any party who has the right to file a responsive

pleading. Even a plaintiff may file a bill of particulars if the answer

of the defendant is particularly vague.

Q: Can there be an instance when a trial court may dismiss a

case on ground of inadequacy or vagueness in the allegations in

the complaint?

Yes, by way of exception. The only instance when a defendant may

file motion to dismiss due to vagueness or inadequacy of the

allegations in the complaint, instead of filing motion for bill of

particulars, is when the RTC is sitting as a commercial court. In this

case, where there is indefiniteness or vagueness in the allegations of

the complaint, defendant may file a motion to dismiss. This is

because, in commercial courts, a motion for bill of particulars is

forbidden as outlined in the circular for commercial courts.

In ordinary civil cases, motion for bill of particulars is available to

both sides. They should be in the form of a motion.

Q: What is the difference between an ordinary motion and a

motion for a bill of particulars?

While a motion for bill of particulars should comply with the

requisites of a motion, so as not to be deemed as a useless piece of

paper, when the motion is submitted to the court, the court can act

upon the motion right away, without waiting for the hearing set for

the motion, either granting or denying such motion.

Q: May the defendant file a motion for a bill of particulars after

filing an answer?

No. By its very nature, a motion for a bill of particulars should be

filed by a defendant before submitting an answer, or in case of a

plaintiff, a reply. It is useless if a defendant files a motion for bill of

particulars after he has already filed his answer. It is understood that

if a defendant has filed an answer, it would mean that he has

understood fully the allegations stated in the complaint.

Q: When may a party avail a bill of particulars?

A: Before responding to a pleading, a party may move for a definite

statement or for a bill of particulars of any matter which is not

averred with sufficient definiteness or particularity to enable him

properly to prepare his responsive pleading. If the pleading is a reply,

the motion must be filed within 10 days from service thereof.

If the motion is granted, in case of a defendant, the court will order

the submission of an amended complaint or a bill of particulars,

which will form part of the allegations contained in the complaint.

Q: If the plaintiff does not obey the order of the court to submit a

bill of particulars, what is the remedy of the defendant?

The remedy is either (1) to strike out the parts of the pleading that are

vague; or, the more practical move, (2) the defendant may move to

strike out the entire pleading, wherein the case is dismissed.

If the defendant disobeyed the court order to amend his answer or to

supply bill of particulars, the situation will be as if the defendant has

not filed an answer at all. The next recourse of the plaintiff is to file a

motion to declare the defendant in default. This is one instance where

the defendant can be declared in default even though he had filed an

answer on time. Therefore, if the defendant did not amend his answer

or file a bill of particulars, the court can order the striking out of the

answer and thereafter, upon motion, the defendant can be declared in

default.

If it is the plaintiff who disobeyed the court order, the situation will

be as if the plaintiff has not filed a complaint at all. The defendant in

such case may move to dismiss the case for failure to state a cause of

action.

Q: If the motion for a bill of particulars is denied, may the

aggrieved party appeal?

No. The denial of the motion is an interlocutory order. The aggrieved

party, however, may avail of Rule 65 if proper.

FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND

OTHER PAPERS

Q: Which comes first – filing or service?

As a general rule, service comes before filing.

Complaint is one of the exceptions. You have to file the complaint

first, and then the complaint will be served to the defendant together

with the summons.

A third-party complaint is an exception. Since third-party complaints

require leave of court, it needs to be filed first before it can be served

to the third-party defendant.


Judgments, resolutions, and orders are exceptions as well. According

to the Rules, the judge will first submit a copy or the original of the

decision with the clerk of court. It is the duty of the clerk of court to

serve copies of the judgment or order upon the adverse parties.

Q: What is the order of priority when it comes to service?

The order of priority merely states that personal service must always

be resorted to. If personal service is not resorted to, there must be an

explanation given by the party why he has not resorted to personal

service. If a motion is filed and the motion served through registered

mail without an explanation, the court has every reason to consider

that motion as a useless scrap of paper.

Recently this has been relaxed by the court, depending on the nature

of the case or depending on the nature of the motion to be served or

the pleading filed in the court.

But in case of a motion to dismiss, the courts are very strict, personal

service is a must. If it was served by mail, the court requires

submission of proof of actual delivery/receipt by mail (the registry

return card). If such proof is not presented, the court will not act on

the motion to dismiss for failure to observe the requirements

concerning service of this important motion.

Q: What are the modes of service of these motions, pleadings,

orders and judgments?

The first in priority when it comes to service is personal service, then

service by mail and then substituted service and service by

publication. It’s only in unusual, exceptional circumstances when

there is service by publication.

Q: If the defendant has counsel, to whom should the service be

given – the defendant himself, or his counsel?

Service must be made upon the counsel. If service is not made upon a

counsel but upon the party himself, that is not proper service.

Q: What is substituted service and how does it differ to substitute

service of summons?

If the motion/pleading/other papers cannot be served in person or by

registered mail, the movant should submit the motion and the

pleadings with the clerk of court with proof that personal and mail

service failed. Upon receipt of court, substituted service is now

completed.

Substitute service of summons: This is resorted to when there is

failure on the part of sheriff to serve summons in person upon the

defendant after several attempts and despite diligent efforts. Sheriff

then can serve the summons at the resident of the defendant upon a

person of sufficient age of discretion, or instead of the residence, at

his place of business, upon a competent person in charge. The reason

for resorting to such substituted service must be explained.

Q: Service by publication is rare – when is this resorted to?

This is resorted to if a party summoned by publication has failed to

appear in the action. Judgments, final orders and resolution against

him should be served upon him also by publication at the expense of

the prevailing party.

Q: Is service by courier (such as LBC) allowed?

Dean Albano: No. Service and filing of pleadings by courier service

is a mode not provided in the Rules.

Service by courier, however, is allowed under ADR rules.

SUMMONS

Q: What is the nature of summons?

A: It is the writ by which the defendant is notified of the action

brought against him. An important part of that notice is a direction to

the defendant that he must answer the complaint within a specified

period, and that unless he so answers, plaintiff will take judgment by

default and may be granted the relief applied for.

Q: What are the purposes of summons?

For actions in personam:

a. To acquire jurisdiction over the person of the defendant;

and

b. To give notice to the defendant that an action has been

commenced against him.

For actions in rem and quasi in rem - not to acquire jurisdiction over

the defendant but mainly to satisfy the constitutional requirement of

due process.

Q: What is the effect of voluntary appearance before the court?

As a general rule, the defendant’s voluntary appearance shall be

equivalent to service of summons and the consequent submission of

one’s person to the jurisdiction of the court. If there are defects in the

summons, voluntary appearance cures such defects.

As an exception, if there is a special appearance in court to challenge

its jurisdiction over his person, it shall not be deemed as a voluntary

appearance. This is true even if the defendant includes in his Motion

to Dismiss several other grounds aside from lack of jurisdiction over

his own person.

Q: What are several instances when appearance of defendant is

not tantamount to voluntary submission to the jurisdiction of the

court?

(a) When defendant files the necessary pleading;

(b) When defendant files a motion for reconsideration of the

judgment by default;

(c) When defendant files a petition to set aside the judgment of

default;

(d) When the parties jointly submit a compromise agreement for

approval of the court;

(e) When defendant files an answer to the contempt charge;

(f) When defendant files a petition for certiorari without

questioning the court‘s jurisdiction over his person.


Q: Aside from summons and voluntary appearance, is there any

way a court may obtain jurisdiction over a person?

Yes, but only in limited circumstances. For example, under Rule 65,

in certiorari, prohibition, and mandamus, the court does not issue a

summons. It simply issues an order addressed to the defending party

to file a comment. That is a process which will confer upon the court,

by compulsion, jurisdiction over the person of the respondents. As a

consequence, the court cannot declare the respondents in default if

they failed to respond.

Q: What is the proper service of summons upon an unregistered

foreign corporation with no resident agent in the country?

In a 2011 Circular, summons upon a foreign private corporation can

be served in four ways, with leave of court:

1. Personal service of summons upon a foreign private

corporation not doing business in RP, with assistance of DFA

and the court of the country where the foreign corporation’s

main office is located;

2. Publication of the summons in the country where the foreign

corporation has its office

3. By facsimile message or by any electronic device authorized

by the trial court

4. A combination of any one of the three as authorized by the

court.

Q: What if the foreign corporation is registered or has an agent

in the Philippines?

Service may be made on its resident agent designated in accordance

with law for that purpose, or if there be no such agent, on the

government official designated by law to that effect, or on any of its

officers or agents within the Philippines.

Q: What if it is a domestic corporation?

With respect to domestic private corporations, service of summons

must be effected as stated in the Villarosa vs. Benito case. It must be

served upon the officers of the corporation stated specifically in the

Rules of Court (President, Managing Partner, General Manager,

Treasurer, Corporate Secretary or In-House Counsel - PMGCTI).

In the Villarosa case, the branch manager was the one served with

summons, who is not among those officers listed in the Rules. Thus,

the trial court did not acquire jurisdiction over the corporation. This is

still the rule observed.

Read: Villarosa v. Benito

Q: What if it is a partnership?

What the rules require is that summons must be made upon the GM

or managing partner as the case may be.

If there are four partners in the partnership, service upon any of the

partners will be a valid service of summons. All partners under the

NCC are considered as managing partners. Since all partners under

the NCC are presumed to be managing partners, service upon anyone

will be a valid service of summons.

It is in the acquisition of jurisdiction over natural persons that there is

conflict in jurisprudence.

Q: What if the defendant is a minor or an incompetent?

Service of summons must not only be served upon the guardian but

also the minor or incompetent.

Q: What is the order of priority in serving summons?

Service in person will always be preferred over substitute service.

And service by publication cannot be held unless the court is

convinced that personal service or substitute service have been

resorted to but it has not been successfully carried out.

Personal Service

Q: When is personal service of summons proper?

A: Only if the suit is one strictly in personam. The service of

summons must be made by service in person on the defendant. This

is effected by handing a copy of the summons to the defendant in

person, or if he refuses to receive it, by tendering the copy of the

summons to him.

Unlike service of pleadings, motions, and other papers in Rule 13, the

meaning of ‘personal service’ in summons is literal: Summons should

be handed to the defendant himself, not his counsel.

Substituted Service

Q: When is substituted service of summons proper?

A: In our jurisdiction, for substituted service of summons to be valid,

it is necessary to establish the following:

1. The impossibility of service of summons in person within a

reasonable time;

2. The efforts exerted to locate the person to be served; and

3. Service upon a person of sufficient age and discretion in the

same place as the defendant or some competent person in charge

of his office or regular place of business

Q: Defendant owed money to a corporation. Defendant lived in a

gated subdivision. The sheriff was not allowed inside the

subdivision. What the sheriff did was to leave a copy of the

summons, together with the complaint, with the guards. Is there

valid service of summons?

To be literal, no, there was no valid substituted service of summons.

If the summons and the complaint were left only with the security

guard, it did not comply with leaving at the place of residence of

the defendant with some person of suitable age and discretion

then residing therein. The guards do not actually reside in the place

of residence of the defendant.

The SC stated that the meaning of sufficient age and discretion does

not mean that the person to be served could be a minor. This person

means that this person should mean a person at least 18 years of age

with a relationship involving confidence with the defendant. So, if the

service of summons was given to a person who was only a visitor of

the defendant, it will not comply with this requirement.

In 2009, the SC decided a case involving the validity of a substituted

service of summons not in accordance with the Rules. If substitute


service of summons is not in accordance with Sec. 7 of Rule 14, the

service is invalid, the court does not acquire jurisdiction over the

defendant. Any proceedings taken by the court are invalidated.

Constructive Service

Q: Is leave of court required in constructive service of summons?

Yes. This service always requires permission of the court.

When it comes to Sections 14, 15 and 16, you should take note of two

cases – Citizen’s Surety v. Herrera and Santos v. PNOC.

Let’s begin with Citizen’s Surety.

The sheriff stated that summons could not be served personally or by

substituted service. The plaintiff filed an ex parte motion to issue a

summons by publication. The court granted it. Plaintiff caused the

publication of the summons. After 60 days, there was no responsive

pleading. Plaintiff filed a motion to declare defendant in default.

During the hearing of the motion, plaintiff presented the court the

order authorizing publication and affidavit of the publisher. Plaintiff

expected the court to grant his motion. The court did not grant it, but

instead asked the plaintiff to explain why the complaint should not be

dismissed. The court stated that publication did not enable the court

to acquire jurisdiction over the defendant. The requirement left out

was a constitutional requirement of due process.

The proper recourse for the creditor is to locate properties, real

or personal, of the resident defendant debtor with unknown

address and cause them to be attached, in which case, the

attachment converts the action into a proceeding in rem or quasi

in rem and the summons by publication may be valid.

The court interpreted the Rules to mean that if there is publication of

the summons, there should preliminary attachment over the

properties of the defendant. Otherwise, the court will be unable to

acquire jurisdiction over the person of the defendant. If we are not

able to convert the action in personam to that in rem, the court will

not be able to acquire jurisdiction over the person of the defendant,

and therefore, the court will not have authority at all to entertain the

case.

If the court still did not still acquire jurisdiction over the defendant

despite the attachment of the properties of the defendant (there might

be no properties to attach), then the case will be archived. There will

be no dismissal of the case. The case will not prescribe since the case

will be archived and prescription will not run during this period.

Q: When will the case be converted from an action in personam

to an action in rem?

The case will convert from an action in personam to that in rem once

there is actual attachment of personal or real property. A mere motion

requesting for preliminary attachment will not convert the action

In 2008, Santos vs. PNOC was decided, which changed the principles

held under Citizen’s Surety vs. Herrera.

Personal service of summons were made to the defendant but failed

because the latter cannot be located in his last known address despite

earnest efforts to do so. Subsequently, on plaintiff’s motion, the trial

court allowed service of summons by publication. Plaintiff caused the

publication of the summons in a newspaper of general circulation in

the Philippines.

Petitioner still failed to answer within the prescribed period despite

the publication of summons. Hence, respondent filed a motion for the

reception of its evidence ex parte. Trial court granted said motion and

proceeded with the ex parte presentation and formal offer of its

evidence.

Petitioner filed an Omnibus Motion for Reconsideration and to Admit

Attached Answer, alleging that the affidavit of service submitted by

respondent failed to comply with Section 19, Rule 14 of the Rules of

Court as it was not executed by the clerk of court. Trial court denied

the said motion and held that the rules did not require such execution

with the clerk of court. It also denied the motion to admit petitioner’s

answer because the same was filed way beyond the reglementary

period.

The Supreme Court held that:

(1) Section 14, Rule 14 provides that in any action

where the defendant is designated as an unknown

owner or the like or when his whereabouts are

unknown and cannot be ascertained by diligent inquiry,

service may, by leave of court, be effected upon him by

publication in a newspaper of general circulation and in

such places and for such times as the court may order.

Since petitioner could not be personally served with

summons despite diligent efforts to locate his whereabouts,

respondent sought and was granted leave of court to effect

the service of summons upon him by publication in a

newspaper of general circulation. Thus, petitioner was

proper served with summons by publication and that there

is jurisdiction over his person.

(2) The in rem/in personam distinction was significant

under the old rule because it was silent as to the kind of

action to which the rule was applicable but this has been

changed, it now applies to any action. The present rule

expressly states that it applies “in any action where the

defendant is designated as an unknown owner, or the like,

or whenever his whereabouts are unknown and cannot be

ascertained by diligent inquiry.” Hence, the petitioner’s

contention that the complaint filed against him is not

covered by said rule because the action for recovery of sum

of money is an action in personam is now not applicable.

(3) The service of summons by publication is

complemented by service of summons by registered mail to

defendant’s last known address. This complementary

service is evidenced by an affidavit “showing the deposit of

a copy of the summons and order for publication in the post

office, postage for prepaid, directed to the defendant by

registered mail to his last known address”. The rules,


however, do not require that the affidavit of complementary

service be executed by the clerk of court. While the trial

court ordinarily does the mailing of copies of its orders and

processes, the duty to make the complementary service by

registered mail is imposed on the party who resorts to

service by publication.

Since 2008, the lawyers have made use of Santos vs. PNOC as the

authority to convince a trial court that there is no need for a

publication of summons for the issuance of a writ of preliminary

attachment before the court could acquire jurisdiction over the person

of the defendant.

In 2010, SC resolved another case, Palma vs. Galvez. In the case of

Palma vs. Galvez, the SC held that we should literally apply what the

Rules provides, particularly Section 16 of Rule 14. If you read

Section 16, the defendant is a resident of RP temporarily out of the

country. In relation to Section 14, if the whereabouts of the defendant

is unknown, there could be publication of summons, and that would

enable the court to acquire jurisdiction over the person of the

defendant.

It would seem that the principle adhered to for a long time since

Citizen’s Surety vs. Herrera is no longer binding. They can ignore the

requirement of prior attachment of properties of the defendant before

availing of a publication of summons to enable a court to acquire

jurisdiction over the person of the defendant. Read over Sections 14,

15 and 16, correlating them with the cases of Santos vs. PNOC and

Palma vs. Galvez. There is really no need for an action in personam

to be converted to an action in rem or quasi in rem, via a writ of

preliminary attachment, in order for a court to be able to acquire

jurisdiction over the person of the defendant.

Q: What is the advantage of using these principles in Citizen’s

Surety vs. Herrera?

The advantage is that if the plaintiff first moves for preliminary

attachment over properties of the defendant and then later ask the

court for publication of summons, when compared to just the plaintiff

asking for publication of summons without asking for preliminary

attachment, is that there is a security enjoyed by the plaintiff when

the property of the defendant is attached through a writ preliminary

attachment. If you read Rule 57, that is precisely the purpose of

preliminary attachment over the property of the defendant, to provide

security to the applicant to whatever judgment rendered in favor of

the plaintiff.

If there is a preliminary attachment of a property belonging to the

defendant, the act of actual attachment of the property is the act

which converts the case from in personam to that of in rem or quasi-

in rem. This is because the property is now within the jurisdiction of

the trial court.

MOTIONS

Q: What is a motion?

A: It is an application for relief other than by a pleading.

Q: In what form should a motion be?

As a general rule, if it is not made in open court, the motion must be

reduced into writing. It must satisfy all the requirements in the Rules

concerning motions.

Q: What are the requirements for a proper motion?

A written motion has two basic requirements:

1. It must be served upon the adverse party; and

2. It must be set for hearing

Q: What is the rule on hearing of motions?

General Rule: Every written motion shall be set for hearing by the

applicant.

Exception: A motion which the court may act upon without

prejudicing the rights of the adverse party.

Q: What shall the notice of hearing specify?

A: It shall specify the time and date of the hearing which shall not be

later than ten (10) days after the filing of the motion and it shall be

addressed to the parties concerned.

Notice of Hearing is usually addressed by lawyers to the branch clerk

of court. This is an error. The notice of hearing MUST be addressed

to the adverse party or the counsel thereof. Remember that the SC has

emphasized that a motion that does not comply with the requirements

set down in the Rules shall be treated as a scrap of paper.

Note: Failure to comply with the mandatory requirements of the rule

regarding notice of hearing is pro forma and presents no question

which merits the attention of the court.

Q: There are nine pleadings. How many motions are there?

None. It is not possible for the Supreme Court to enumerate all the

possible motions because a motion will depend almost completely

upon the creativity of the lawyer. If a lawyer cannot ask for a relief in

a pleading, he can always do so in a motion. And it is up to him to

give the name of that motion.

Q: May a motion be filed in appeal?

Yes. Unlike a pleading, a motion may be filed during appeal.

Personal Opinion: The pleadings related to intervention, such as a

complaint-in-intervention or answer-in-intervention, may be filed on

appeal during very exceptional circumstances.

Moreover, there is a difference between a motion filed before the trial

court compared to motions filed before the appellate courts. A motion

filed before the Court of Appeals or Supreme Court does not have to

contain a notice of hearing because the Court of Appeals or Supreme

Court doesn’t have what we call as a motion day.

MOTION TO DISMISS


Motion to dismiss is prohibited in certain proceedings, as set down by

the Rules or based on circulars issued by the SC.

As a general rule, summary procedure, small claims proceedings, and

some special proceedings prohibit the filing of a motion to dismiss.

But under ordinary procedure, a motion to dismiss is allowed in civil

cases. A Motion to Dismiss under Rule 16 should be filed as a matter

of general practice before an answer can be filed by defendant.

Q: Can the defendant properly file an answer and a motion to

dismiss at the same time?

Under Rule 16, it is allowed that the grounds for a motion to dismiss

to be simply incorporated in the answer. Under Rule 16, if the

defendant does submit his responsive pleading right away, he can

incorporate in his answer the grounds in Rule as affirmative defenses.

If a defendant files his answer with affirmative defenses enumerated

under Rule 16 as grounds to dismiss, he being allowed to do that,

once the answer is filed with the court, the defendant can ask to court

to conduct a preliminary hearing on his affirmative defenses. The

court can grant it as if the defendant has filed previously a motion to

dismiss.

Q: May the defendant file a Motion to Dismiss one after another?

As a general rule, no. It will violate the Omnibus Motion Rule. All

the defenses known to the defendant must be entered in one Motion

to Dismiss or else it is deemed waived.

However, if the defenses are those that are non-waivable grounds for

dismissal under Rule 9, Section 1, it is possible for the defendant to

file motions to dismiss one after another without violation of the

Omnibus Motion Rule.

Theoretically:

If the first motion to dismiss based on prescription is denied, the

defendant is allowed to file a second motion to dismiss based on litis

pendencia. If that is again denied, the defendant files his third motion

to dismiss founded on lack of jurisdiction over the person of the

defendant. If it is again denied, the defendant can file a motion to

dismiss based on res judicata.

A motion to dismiss founded on a waivable defense shall preclude

the filing of another motion to dismiss based on other grounds under

Rule 16, except those non-waivable defenses. There will be waiver of

the other grounds because of the Omnibus Motion Rule, but not those

defenses which are non-waivable. Thus, if the defendant filed a

motion to dismiss solely on the ground of lack of jurisdiction over the

person of the defendant, which is a waivable defense, and the motion

was denied, the defendant is precluded from filing a motion to

dismiss based on the ground of improper venue. What will be

allowed would be the succeeding motions to dismiss are grounded on

non-waivable defenses.

Q: May the plaintiff file a Motion to Dismiss?

No. Rule 16 is designed to be used by the defending party. If the

plaintiff wishes to dismiss his own complaint, he should make use of

Rule 17, not Rule 16.

Q: May the court make use of a Motion to Dismiss?

It is not so much a Motion, but the court may dismiss the case using

the four non-waivable grounds under Rule 9, Section 1. These four

grounds are also included in Rule 16.

Q: What is the duty of the court if there is a Motion to Dismiss?

In the resolution of a motion to dismiss, Rule 16 gives to the court

three choices: grant the motion, deny the motion, or order an

amendment to the pleading.

Aside from these three, there is a fourth option by virtue of the law

on alternative disputes resolution. The court may refer the matter to

conciliation or mediation or arbitration, as the case may be, and

suspend further hearings.

Furthermore, the court is mandated to explain the reasons which

support the resolution of the court. In other motions, the court can

simply say, ‘The motion is granted because it is meritorious’ or even,

‘Finding no merit, the motion is denied.’ But when it comes to a

motion to dismiss, whether the court grants or denies the motion or

orders an amendment to the pleading, the court must give reasons and

explain the basis of its resolution.

The evidence submitted during the hearing for a Motion to Dismiss

and everything that comes during the motion to dismiss are deemed

reproduced during the trial of the case. There is no more need for a

repetition of trial with reference to the issues already tackled during

hearing for a motion to dismiss.

Q: Is there any procedural advantage if the defendant simply

files an answer setting up as affirmative defenses those

enumerated in Rule 16?

Yes. If the defendant files an answer with affirmative defenses based

on grounds under Rule 16, and after preliminary hearing of the

affirmative defenses the court orders the dismissal of the case, the

defendant will be given an opportunity to recover his claim for

damages based on any counterclaims (compulsory or permissive) or

whatever relief he may have sought in his answer (answer with

affirmative defenses, permissive and compulsory counterclaims, and

other relief).

You will note that in Rule 16, Section 6, the dismissal of the action

will not affect any counterclaim or cross-claim or any other claim

submitted by the defendant in his answer. The defendant cannot file a

Motion to Dismiss with a counterclaim or cross-claim or any other

claim before the court. A Motion to Dismiss is not a pleading. It is in

an answer where we can have a cross-claim against a co-defendant or

counterclaim against the plaintiff.

First Ground: Lack of Jurisdiction over the Subject Matter

The source of jurisdiction over the subject matter cannot be found in

the Rules of Court. It is generally found in BP 129. The general law

on jurisdiction, however, must always give way to a special statute or

a special legislation. BP 129 is not the only source of jurisdiction.

Estoppel by Laches


With respect to lack of jurisdiction over the subject matter or over the

nature of the case, this ground is dealt with in Tijam vs. Sibonghanoy.

In this case, the trial court did not have jurisdiction over the subject

matter of the case, but the defendant kept silent about the issue of

absence of jurisdiction and allowed the case to proceed up to the CA.

Upon receipt of the adverse decision in the CA, the appellee

challenged the validity of the decision of the RTC and the CA, stating

that the court lacked jurisdiction from the start.

SC held that there was estoppel by laches. The case has been pending

for 15 years up to the appeal, the defendant appearing in the case for

all those years. SC said that although the decision may be challenged

by lack of jurisdiction over the subject matter even for the first time

on appeal, the defendant is guilty of estoppel by laches, by his

negligence to raise this issue as promptly as possible. He can no

longer challenge the decision of the court.

The Tijam Doctrine is incorporated in Rule 47, Section 2 – ‘before it

is barred by laches or estoppel’. Estoppel by laches may be a defense

against lack of jurisdiction over the subject matter.

Estoppel in Pais

In other cases, the SC also used another kind of estoppel in order to

bar the party from raising the issue of jurisdiction, although the trial

court really did not have jurisdiction over the subject matter. Take a

look at Soliven v. Fast Forms.

The aggregate sum to be recovered was P800K. A complaint for

collection of money was filed in the RTC. The amount to be actually

collected was less than the jurisdictional amount of the RTC based on

BP 129 (the P800K includes IDALEC, hence the confusion).

There was an answer by defendant with a counterclaim. The court,

unaware it lacked jurisdiction over the case, as nobody brought it up.

rendered a judgment in favor of the plaintiff. The counsel for the

defendant found that the court had no jurisdiction. The defendant

filed a motion for reconsideration and raised lack of jurisdiction,

praying for dismissal of the case. RTC denied the motion, as the

defendant was now in estoppel to challenge the court’s jurisdiction

just because an adverse result was had.

The Supreme Court held that the defendant cannot challenge any

more the jurisdiction of the court. SC stated that estoppel in pais

has set in. While jurisdiction may be assailed at any stage, a litigant’s

participation in all stages of the case before the trial court, including

the invocation of its authority in asking for affirmative relief, bars

such party from challenging the court’s jurisdiction. A party cannot

invoke the jurisdiction of a court to secure affirmative relief

against his opponent and after obtaining or failing to obtain such

relief, repudiate or question that same jurisdiction. The Court

frowns upon the undesirable practice of a party participating in the

proceedings and submitting his case for decision and then accepting

judgment, only if favorable, and attacking it for lack of jurisdiction,

when adverse.

Q: Is the Soliven case applicable to criminal cases?

No. If it is a criminal case, we need to look at Figueroa v. People.

The accused was arraigned for reckless imprudence resulting to

homicide. This was filed in the RTC instead of MTC. The prosecutor

was unaware of RTC’s lack of jurisdiction and the counsel for the

accused assumed the same. Nobody raised the issue of jurisdiction in

the RTC, so the case went on. A trial was had. Both parties presented

their respective evidence. The accused was eventually found guilty.

On appeal, the accused interposed the defense of lack of jurisdiction.

The Solicitor General cited Soliven vs. Fast Forms as defense. Active

participation means that the litigant is in estoppel from challenging

the validity of the proceedings. The CA agreed with the Solicitor

General.

The Supreme Court held that the judgment is void as estoppel in pais

is inapplicable in a criminal case. Lack of jurisdiction in a criminal

case can be cited as a defense even on appeal. The rights of the

accused being at stake, estoppel in pais is inapplicable.

Thus, if you are confronted with a problem on lack of jurisdiction in a

civil case, apply Soliven. If it is a criminal case, adopt Figueroa.

Read: Soliven v. Fast Forms, Figueroa v. People, NAPOCOR v.

Province of Quezon

In a hearing of a motion to dismiss grounded to lack of

jurisdiction over the subject matter, the court will not allow

presentation of evidence by the defendant. The reason is because

lack of jurisdiction over the subject matter is a purely legal question

and the only evidence to be taken into account is the complaint itself,

applying the principle that the court acquires jurisdiction, under BP

129, based on the allegations contained in the complaint.

In the hearing of a motion, the court will only allow presentation of

evidence if the question that will be raised is a factual issue like the

obligation has been paid, waived or otherwise extinguished. Thus, in

a motion to dismiss on the ground of lack of jurisdiction over the

subject matter, the court will resolve the motion based on the

complaint itself. The court can easily resolve the said motion based

on the allegations in the pleading itself.

Second Ground: Lack of Jurisdiction over the Defendant

Q: The defendant has a problem when a court issues a service of

summons in violation of Rule 14. The defendant must file a

Motion to Dismiss on ground of lack of jurisdiction over person

of the defendant. If he does file such motion, does not the

defendant admit that the court has jurisdiction over his person?

No. The filing of a motion to dismiss on that ground is the only

remedy available to him in order to tell the court that the court had

not acquired jurisdiction over his person. In court cases, what the

defendant can do is to tell that court right away that his appearance

before the court in filing the motion to dismiss should be considered

as a special appearance only for the purpose of telling the court that

the court has no jurisdiction over his person.

This Special Appearance Rule stems from another principle in the

past that when a defendant files a motion to dismiss on the ground


that the court has not acquired any jurisdiction over his person, when

he adds another ground found in Rule 16, the SC then held that when

another ground is added in the motion to dismiss aside from lack of

jurisdiction over the person of the defendant, he waives the ground of

lack of jurisdiction over his person. This has been changed in the

present Rules.

Under the Omnibus Motion Rule, the defendant who files a motion to

dismiss on the ground of lack of jurisdiction over his person plus any

other ground in Rule 16 does not anymore waive the ground of lack

of jurisdiction over his person.

Let us say the defendant who claims that the court has not acquired

jurisdiction over his person does not respond to the summons, as

filing of an answer is a waiver of his defense of lack of jurisdiction

over his person. He received a copy of the order of the court, and then

following the Rules, the defaulting defendant files a motion to lift the

order of default. The filing of a motion to lift the order of default is

acceptance by the defendant of jurisdiction of the court over his

person.

In another instance, the defendant receives the copy of the judgment

of default and the defendant files a motion for reconsideration and a

motion for new trial. The motion for reconsideration or new trial is a

submission of the defendant to the jurisdiction of the court over his

person. This is the reason why in Palma vs. Galvez, the defendant

claims that the court did not acquire jurisdiction over his person, and

when he filed a motion for new trial, he must qualify the motion must

not be treated as a voluntary submission to the jurisdiction of the

court over his person. He must always qualify his motion with that

ground.

Third Ground: Improper Venue

This has already been taken up in Rule 4.

Fourth Ground: Lack of Capacity to Sue on the Part of Plaintiff

Q: Suppose it is the defendant who lacks the capacity to be sued,

may he still dismiss the case?

Yes, but not under this ground but under another ground, i.e., failure

to state a cause of action.

Fifth Ground: Litis Pendencia

Q: When is there litis pendencia?

To answer this question, we need to take a look at Hongkong and

Shanghai Bank v. Aldecoa.

A property was mortgaged to the bank. The mortgagor filed a case

against the bank for the annulment of the mortgage. During the

pendency of that case, the debt became due and the mortgagor failed

to pay the obligation. The bank filed a complaint for the foreclosure

of the same mortgage. The mortgagor upon receipt of the summons

issued in the second case filed a motion to dismiss founded on litis

pendencia.

The Supreme Court held that in litis pendencia, the essential requisite

is that the outcome of anyone of the cases will be res judicata as to

the other cases, regardless of who is going to prevail in anyone of

these cases.

If we are going to use that standard, the argument of the mortgagor is

correct only partially. There are two possibilities. First, the mortgage

will be annulled. In this scenario there really will be res judicata over

the second case. The mortgagor, however, did not account for the 2nd

scenario – the mortgage will be held valid. In this instance there will

be no res judicata over the second case. In this scenario the bank has

all the right to foreclose the mortgage.

There is therefore no litis pendencia between a case asking annulment

of a contract and a case enforcing that contract.

Notice of Lis Pendens

Q: Is there a difference between litis pendencia and a notice of lis

pendens?

Yes. Notice of lis pendens is a constructive notice in real actions. The

notice operates when the case involves title to or possession of real

property (i.e., real action) and one of the litigants requests the register

of deeds to annotate at the back of the title of the property involved

the fact that there is a pending action between the plaintiff and the

defendant involving that property.

Q: Does the interested party need permission from the court

before he can register a notice of lis pendens?

No. The Register of Deeds has the ministerial duty to record a notice

of lis pendens. The Register of Deeds cannot require the applicant to

produce permission from the court.

This is the reason why it is called a notice of lis pendens. A notice of

lis pendens does not require to be put in a motion or a pleading.

Q: What is the purpose of a notice of lis pendens? Will it prevent

the registered owner from disposing of the property?

A notice of lis pendens is only a notice to the whole world that there

is a pending action between the plaintiff and the defendant. The

registered owner of the property will not be prevented, he will not be

precluded from disposing of the property. The notice of lis pendens

will not be considered as an obstacle to the conveyance of the

property involved in the litigation.

Q: Does cancellation of a notice of lis pendens require permission

from the court?

Yes. Although the party wishing to register a notice of lis pendens

does not have to obtain permission from the court, cancellation of the

same is a different matter. There should be an order from the court to

carry out the cancellation.

Dean Albano: The cancellation of the annotation of an encumbrance

cannot be ordered without giving notice to the parties annotated in

the certificate of title itself.

Also, notice of lis pendens is not effective if the action is a personal

action like sum of money (citing Gagoomal v. Sps. Villacort).

Sixth Ground: Failure to State a Cause of Action


The Supreme Court in recent cases emphasize the difference of lack

of a cause of action and failure to state a cause of action:

Failure to state cause of action Lack of cause of action

Insufficiency in the allegations

of the complaint

Failure to prove or establish by

evidence one’s stated cause of

action

As a ground for dismissal

Raised in a motion to dismiss

under Rule 16 before a

responsive pleading is filed

Raised in a demurrer to

evidence under Rule 33 after

the plaintiff has rested his case

Determination

Determined only from the

allegations of the pleading and

not from evidentiary matters

Resolved only on the basis of

the evidence he has presented

in support of his claim

Failure to state a cause of action will be a ground to dismiss because

of immaturity of action. It assumes that the plaintiff really has a cause

of action, and the fault is due the lawyer who crafted the complaint.

Q: There is an accion reinvindicatoria filed in the RTC, but there

is no stated assessed value of the property. The defendant filed a

motion to dismiss for lack of jurisdiction for failure to state a

cause of action. A hearing was had. The plaintiff’s attorney failed

to see what the motion was about. The court granted the motion.

The plaintiff’s lawyer received the order of dismissal, and then he

finally understood what was wrong with his complaint. Can the

lawyer for the plaintiff amend his complaint?

Yes. The plaintiff or his counsel can still amend his complaint to

incorporate in the allegation the assessed value of the property. This

is because the order of dismissal will not be entered until after the

lapse of 15 days, and the plaintiff can still amend and rectify the error

committed by inserting the assessed value of the property. He can do

so as a matter of right, because, according to SC, a motion to dismiss

is not a responsive pleading, and as long as the amendment is the first

amendment, under Rule 10, it is an amendment is a matter of right.

The defendant will have to file an answer to the amended complaint.

:Q: Based on the above problem, if the dismissal became final

and executory, what can the plaintiff do?

Under Sec. 5 Rule 16, the rule makes a distinction between an Order

of Dismissal under Rule 16, letters (f), (h) and (i) - in addition to

laches under the NCC – and an order under other grounds. If it is the

former, the dismissal is subject to the right of appeal. The remedy of

the plaintiff is to appeal the order of dismissal.

If the case was dismissed on other grounds not letters (f), (h) and (i),

it means we should not treat Rule 16 alone. We must look at other

Rules to arrive at the correct remedy. We consult Sec. 1 under Rule

41. Since the dismissal is without prejudice, the dismissal should not

be appealed.

Q: What are grounds under letters (f), (h), and (i)?

(f) That the cause of action is barred by a prior judgment or by

the statute of limitations;

(h) That the claim or demand set forth in the plaintiff’s pleading

has been paid, waived, abandoned, or otherwise extinguished;

and

(i) That the claim on which the action is founded is

unenforceable under the provisions of the statute of frauds.

Q: Why is it necessary to relate a motion to dismiss under Rule

16 with Rule 41, which is a rule on appeal?

If you read Section 1 of Rule 41, there is an enumeration of orders

where no appeal can be had, although they are final in character.

In the enumeration under Section 1 of Rule 41, the last item is closely

related to Rule 16, that it is a dismissal is without prejudice. In Rule

16, what the Rule tells us is that under items f, h and i of Sec. 5 Rule

16 are subject to appeal. That means the dismissal is with prejudice

as the remedy thereof is to appeal.

But when the dismissal on other grounds other than items f, h and i

under Section 5, Rule 16, they are without prejudice. And Section

1(h), Rule 41 tells the plaintiff that one of the recourses available to

him when the dismissal is without prejudice. Appeal is not a remedy

available to him. Since the order is not appealable, the plaintiff must

file an appropriate petition under Rule 65. The plaintiff may file a

petition for certiorari or prohibition with the CA or SC as the case

may be.

Q: Why do we allow the plaintiff to file a petition under Rule 65

challenging the dismissal of his complaint for lack of jurisdiction,

although the order of dismissal has already been entered after the

lapse of 15 day period?

Because under Rule 65, the period for filing the petition under this

rule is 60 days, not 15 days. So if the 15-day period for entry of

judgment has lapsed, the plaintiff has 45 days more to file a petition

under Rule 65.

But because the dismissal is without prejudice, the plaintiff can forget

about going to a higher court. If the dismissal of his complaint was

without prejudice, he has another alternative: He can just file a new

complaint in the same court involving the same party with the

complaint impleading the necessary allegations.

If we compare this dismissal under Rule 16 based on lack of

jurisdiction on the ground of f, h and i, we can understand why they

are not appealable. The order of dismissal based on these items will

be a judgment on the merits. If the claim of the plaintiff alleged in the

complaint has really been paid, waived, abandoned or otherwise

extinguished as provided in the NCC, then it would seem that he

really has no claim at all with the defendant, and thus the complaint is

dismissed with prejudice. If the allegation of the defendant is that the

claim has been paid, waived, abandoned or otherwise extinguished,

that motion presents a factual issue. During the hearing of that

motion, the defendant will be given an opportunity to prove that the

claim has really been paid, waived, abandoned or otherwise

extinguished. The hearing will be as if the court was actually trying

the case, the defendant being allowed to present witnesses, or present

evidence of his allegation that the claim has been paid, waived,


abandoned or otherwise extinguished based on grounds recognized

under substantive law.

The court said that the results enumerated under Section 16 are not

exclusive. We should include laches. Under the NCC, laches could

extinguish an obligation.

Remember that, procedurally, the court will not allow presentation of

evidence in a hearing for a motion to dismiss entirely based on a legal

issue. The court will simply read the allegations in the complaint. If

the issue is factual, the court will be forced to conduct a hearing for

presentation of evidence therein.

Q: Supposing the plaintiff commits an error in ascertaining the

dismissal. The dismissal was actually with prejudice. Although

the judgment already became final after 15 days, the plaintiff, 40

days after the judgment for dismissal was made, files a petition

for certiorari. The petition for certiorari was dismissed by the

higher court as the proper remedy was to appeal. May the

plaintiff still appeal once the petition for certiorari was denied?

At this time, he cannot appeal anymore as the time to appeal was 15

days from receipt of the order of dismissal. It has long expired, and

the judgment has been entered and had become final. Also, he cannot

file another complaint, as the dismissal is with prejudice.

Q: Let us say that the defendant’s motion is founded on letter h.

During the hearing, the defendant presents evidence. Then, the

motion was submitted for resolution. The court denies the

motion. What is the next move for the defendant if the motion is

denied?

The defendant should file an answer during the remaining period to

file, which should not be less than 5 days from the receipt of the

order of denial.

Q: May the defendant appeal the denial of his Motion to Dismiss?

No. The denial of a Motion to Dismiss is an interlocutory order and

under Rule 41 is not subject to appeal.

Q: May the defendant make use of Rule 65?

Yes. Under Section 1, Rule 41, the aggrieved party may file an

appropriate special civil action as provided in Rule 65.

Q: The defendant files an answer after his Motion to Dismiss was

denied. Can he incorporate the ground in the motion to dismiss

that was denied as an affirmative defense?

Yes, the defendant is allowed to do that. Under our rules, if there are

objections or grounds not raised in the pleadings, these grounds are

deemed waived.

Q: Using the above scenario - Can the defendant, after filing his

answer with his affirmative defense move for a preliminary

hearing on his affirmative defense?

No, the court will not allow such a hearing anymore as there had been

a prior hearing for the same issue in the prior motion to dismiss that

was denied. Thus, although a defendant is all owed to use his ground

under Rule 16 in a motion to dismiss that was denied as an

affirmative defense, he is not allowed to have another preliminary

hearing as the said defenses had been already subject to a hearing

when the said defenses were contained as a ground for dismissal in

the prior motion that was denied.

So, during the trial of the case, the defendant may be able to present

to the court additional evidence in order to prove such ground under

Rule 16 that he has relied upon.

Seventh Ground: Res Judicata, Prescription

Eight Ground: Extinguished Claim

Ninth Ground: Unenforceable Contract

The Statute of Frauds only applies to executory contracts. A partially

or totally executed contract may be enforced in court even if it be oral

in form.

Tenth Ground: Condition Precedent

Take note of our discussion on condition precedents such as prior

barangay conciliation, an arbitration clause, certificate of non-forum

shopping, among others.

DISMISSAL OF ACTIONS

Let’s attempt to summarize.

If a dismissal is found under Rule 16, we have to determine if it is

with prejudice or without prejudice. The dismissal is with prejudice if

it was dismissed under grounds (f), (h) and (i). The proper remedy is

to appeal.

If it was dismissed on any other ground aside from (f), (h) and (i), the

dismissal is without prejudice and the plaintiff may either just file

another complaint or, if the dismissal is marked with grave abuse of

discretion amounting to lack or excess of jurisdiction, he may just file

a petition under Rule 65.

If a dismissal is found under Rule 17, we follow the same principle.

Rule 17 also states if a dismissal is with and without prejudice. We

follow the principle of dismissal under Rule 41 in relation to Rule 16.

A dismissal under Rule 18, under pre-trial, is always with prejudice,

and the plaintiff must appeal.

A dismissal under Rule 33, or demurrer on evidence, is a dismissal

with prejudice and the remedy is to file an appeal from the order of

dismissal.

If the dismissal is without prejudice, in general, the plaintiff has not

much to worry. He can actually forget about Rule 41. He can just file

a second complaint, but he must make sure it is properly crafted. If

the plaintiff files a second complaint, but it was again dismissed,

there is the probability that under Rule 17, Section 1 that it will be a

dismissal with prejudice under the two-dismissal rule. Thus, if a


complaint has been dismissed twice, the second dismissal may

operate as an adjudication of the merits.

Q: Does it mean that a second dismissal is always a dismissal with

prejudice?

No. The second dismissal will still be without prejudice as provided

for in Rule 17, unless there is a statement of such dismissal being

with prejudice in the notice of dismissal.

Remember our discussion regarding indispensable parties.

The theory behind the doctrine that a complaint must always implead

an indispensable party is for the court to have a final determination of

the case. If an indispensable party has not been impleaded, the court

may simply order the plaintiff to amend his complaint to include the

indispensable party (either as a resolution of a Motion to Dismiss for

failure to state a cause of action, OR under its own authority under

Section 11, Rule 3). In this instance, the plaintiff can then just file an

amended complaint, and the case can proceed.

If the plaintiff however failed to obey the order of the court to amend

his complaint, the court may dismiss the case under Rule 17, and the

dismissal is with prejudice. The ground is for failure to obey a lawful

order of the court. The remedy of the plaintiff in this instance is to

appeal.

Generally, the court is given discretion to state whether a dismissal is

with or without prejudice. If the dismissal, however, is not qualified,

Section 3 of Rule 17 is very clear, that dismissal is with prejudice.

Therefore, the remedy of the aggrieved party is to appeal and not to

file a petition under Rule 65.

We now tackle Sections 1, 2, and 3 of Rule 17 successively. These

sections are also grounds for dismissal.

Sections 1 and 2

Q: The plaintiff files a complaint today and the plaintiff changed

his mind tomorrow and moved to dismiss the case. The summons

had not been sent. May the plaintiff dismiss his own complaint

via a motion?

The plaintiff should not dismiss his case via a motion. The means for

a plaintiff to dismiss his case is provided for under Section 1, Rule

17. A motion implies that the court has the discretion to grant or deny

the motion.

Q: What if a notice of dismissal was given instead?

The court is left without discretion. The court has to dismiss it. Filing

of a timely notice of dismissal will result in the dismissal of the case.

The dismissal is without prejudice, unless plaintiff tells the court that

the notice of dismissal is to be considered adjudication on the merits.

Q: When is notice of dismissal proper?

A notice of dismissal is only proper before the service of an answer

or of a motion for summary judgment. If there is already an answer,

the plaintiff must instead file a motion to dismiss and the court may

either grant or deny the same.

Q: The case had been dismissed by the court because of the

plaintiff’s notice of dismissal. What if plaintiff changed his mind

after the order of dismissal? What can he do?

He needs to wait ask for revival of the case within 15 days from the

filing of the order of dismissal. No new complaint need be filed, and

no docket fees need be paid again.

Q: Suppose the defendant filed a Motion to Dismiss, and the

plaintiff filed a notice of dismissal before the motion may even be

heard. How can this be resolved?

SC held that the court should confirm the notice of dismissal by the

plaintiff. The plaintiff’s notice of dismissal prevails over the motion

to dismiss filed by the defendant.

Two-Dismissal Rule

Q: Plaintiff files a collection case for P500.000 against defendant.

Defendant visits the plaintiff and asked the plaintiff for the

dismissal of the case, promising payment. Plaintiff acquiesced

and files a notice of dismissal. The court dismisses the case. The

defendant still failed to pay. Can the plaintiff file another case

against defendant?

Yes, as the case was dismissed without prejudice.

Q: The defendant again approached plaintiff, asking again for

time. Plaintiff again agrees, and files another notice of dismissal.

It is again dismissed. What will be the effect?

The dismissal is with prejudice this time. If plaintiff files a case for

the same defendant for the same cause and the defendant again failed

to pay, the case will be dismissed as the second dismissal is one with

prejudice, and res judicata will lie.

Q: What if the defendant files a motion to dismiss but failed to

allege res judicata, can the court proceed to dismiss?

Yes, the court can do so, even if the defendant failed to allege it. It is

a non-waivable ground of dismissal, and anytime the court discovers

such fact, it will dismiss the case.

Q: Can the court say in its decision of dismissal that the second

dismissal is without prejudice?

No. The court cannot say the second dismissal is without prejudice as

the law itself dictates that such dismissal is with prejudice. The court

has no discretion if the second dismissal is with or without prejudice.

As long as it is the second dismissal of the same case, it will always

be with prejudice due to res judicata.

Q: Are there any situations where the second dismissal is without

prejudice?

1. If the first case was filed in court which lacked jurisdiction

thereto, and the second case was filed in a competent court

and there was a second dismissal, the second dismissal is

not res judicata. The two-dismissal rule will only lie if the case had been filed in a court competent to hear it.

2. In Section 2 Rule 17, a plaintiff may dismiss his complaint

via a motion to dismiss. Here, the defendant has already

filed an answer. If the plaintiff seeks to dismiss the

complaint, he must file a motion to dismiss his complaint,

copy furnished to the defendant.


Under the second instance, the likelihood is that the defendant will

not object. If the defendant does not object, and the court dismisses

the case without prejudice, the plaintiff is allowed to file another case

against the same defendant based on the same cause.

The defendant can insist that the dismissal be one with prejudice.

This is allowed because the dismissal is upon the initiative of the

plaintiff, and the defendant is given the opportunity to object. If you

were the defendant’s counsel, advise the defendant to object, and

state that the dismissal should be one with prejudice. It will preclude

the plaintiff from filing another case with the same claims against the

same defendant.

Q: What if the defendant has a counterclaim?

There will still be dismissal, but the defendant can ask that the court

to continue hearing on the counterclaim set up by defendant in his

answer. In the alternative, the defendant can ask the court to try the

counterclaim in a separate case.

Q: Will this apply even if the counterclaim is compulsory?

Yes. This is one of rare instances where a compulsory counterclaim

could survive without the principal action.

Section 3

Q: What are the grounds for dismissal under Section 3, Rule 17?

1. The plaintiff fails to appear on the date of the presentation of

his evidence in chief on the complaint;

2. Failure to prosecute his action for an unreasonable length of

time, or nolle prosequi;

3. Failure to comply with these Rules; and

4. Failure to comply with any order of the court

Under this section, the initiative for the dismissal of the case comes

from the defendant or the court itself.

Q: What if the plaintiff failed to appear during the trial set for

the presentation of rebuttal evidence? Will there be dismissal?

No. The plaintiff has already presented his evidence in chief. There is

a difference between evidence in chief and rebuttal evidence.

Q: How can the court order a dismissal under Section 3 of Rule

17 upon the ground that the plaintiff failed to obey the provisions

of the Rules of Court?

A good example can be had under Rule 18 on Pre-Trial. In Rule 18, it

is provided expressly that after the last pleading is filed, it is the duty

of the plaintiff to set his complaint for pre-trial. He must file a motion

to have the complaint set for pre-trial. When the plaintiff fails to set

the hearing for pre-trial for, let us say, one year ago up to the present,

and there is a finding that the plaintiff failed to do so, the court can

dismiss the case on the ground that the plaintiff failed to follow the

provision set upon in the Rules. This has been affirmed by the SC.

So, if it is the duty of the plaintiff to set the case for pre-trial, and he

neglects to do so for an unreasonable length of time, there is every

reason for the court to make use of Rule 17, to order the dismissal of

the case under Section 3. This is a dismissal with prejudice unless the

court makes the necessary qualification that it is a dismissal without

prejudice.

Dean Albano: But you should read Soliman v. Fernandez, a 2014

case. The SC held that the court should not dismiss the case if the

plaintiff fails to take further steps to prosecute or set it for pre-trial

because the further steps is not his, but for the clerk of court, to take.

Within five days from date of filing of the reply, the plaintiff must

move ex parte that the case be set for pre-trial conference. If the

plaintiff fails to file said motion within the given period, the Branch

Clerk of Court shall file a notice of pre-trial.

Dean Jara, continuing: In most courts (RTC or MTC), if the court

calls the case for trial on the merits, and plaintiff does not appear

during trial, the lawyer for the defendant may ask for the dismissal

under Section 3, Rule 17 for failure of the plaintiff to prosecute for an

unreasonable length of time or for failure of the plaintiff to appear on

the date of the presentation of his evidence in chief on the complaint.

And usually, the trial court accommodates the defendant’s move

because if a trial court dismisses the case, that is one case where the

judge can present that he has been resolving speedily the cases that

are assigned to him.

The Supreme Court came out with a resolution concerning this

particular provision in relation to Shimizu vs. Magsalin. Study this

case as it would be a good problem in the bar.

In Shimizu, the Court held that an order of dismissal with prejudice

should always comply with Rule 36 and the Constitution. Otherwise,

it shall be open to collateral and direct attack. A trial court should

always specify the reasons why the complaint was dismissed so that

on appeal, the reviewing court can readily determine the prima facie

justification for the dismissal.

Shimizu involves a case of nolle prosequi, or failure to prosecute. The

court failed to substantiate its judgment aside from a short sentence

the case was dismissed for failure to prosecute.

A valid judgment must contain factual findings and it must have

conclusions as to the law available. If the court simply says that the

dismissal was for failure to prosecute for an unreasonable length of

time, that is not a factual finding nor a conclusion based on law. It is

just a conclusion of the court.

The SC said that for a trial court to render a valid judgment, the court

should explain why and how the court came to the conclusion that the

plaintiff is guilty of nolle prosequi. The court should give instances

pertaining to the records of the case that enabled the court to

conclude that the plaintiff has failed to prosecute for an unreasonable

length of time. Without such explanation, even if the judgment is

entered, it can be subjected to direct or collateral attack.

An order of dismissal with prejudice under Rules 16, 17, 33 or even

under any rule allowing dismissal of the action must comply with the

requirements of Section 1, Rule 36.


PRE-TRIAL

Pre-trial is mandatory in all cases, even in summary procedure, where

it is called a preliminary conference. It is present even in small claims

procedure, where there is a semblance of pre-trial in the preliminary

conference called a Judicial Dispute Resolution.

It is the duty of the plaintiff to schedule his complaint for pre-trial

after the last pleading has been filed. If he fails to do so, the case may

be dismissed with prejudice under Rule 17. Again, following the rule

in Shimizu, the order of dismissal should explain how the court has

arrived at the conclusion that the plaintiff has not obeyed the Rules of

Court.

Q: When is pre-trial not mandatory?

It is not mandatory if all the defendants have been declared in default.

The reason is obvious – there is no defendant to have pre-trial with.

Mediation and Conciliation

This rule on pre-trial has been modified by the SC, applying the rules

of mediation and conciliation.

The Trial Court calls the parties to pre-trial. The parties are told to

attend a mediation/conciliation process. The case might be terminated

while in this process. The mediator/conciliator usually issues notices

to the parties as to the schedule of the mediation/conciliation

conference. If the plaintiff does not appear, he repeatedly ignores the

notices, the mediator/conciliator will submit a report to the trial court

and the court may dismiss the case with prejudice. If the court orders

that the parties should attend a mediation/conciliation conference, the

conference is deemed part of the pre-trial process. It is tantamount to

the plaintiff absenting himself from a hearing in the trial, and thus a

violation of an order of the court. Thus, such disobedience by the

plaintiff shall be a ground for dismissal with prejudice.

If the mediator/conciliator fails to mediate or to settle the case, they

will file an official report to the trial court. The case will proceed to

pre-trial proper. Parties will be ordered to submit a pre-trial brief and

attend the pre-trial conference.

Pre-Trial Proper

If any one of them fails to submit a pre-trial brief, there are serious

sanctions imposed. Also, even if the parties have timely submitted

their pre-trial brief but a party was absent in the pre-trial conference,

there are serious consequences.

If the plaintiff failed to file a pre-trial brief or attend the pre-trial

conference, the case will be dismissed and the dismissal is with

prejudice.

If it is the defendant who failed to file a pre-trial brief or attend the

pre-trial conference, the plaintiff is allowed to present his evidence ex

parte. The decision of the court will be based on such evidence.

Do you still remember the difference between ex parte presentation

of evidence under Rule 9 and Rule 18?

Under Rule 18, if the defendant filed an answer but fails to submit a

pre-trial brief or did not attend pre-trial conference, the plaintiff can

present evidence ex parte and the court will make an award according

with the evidence presented by plaintiff (application of amendment to

pleadings in order to conform to evidence).

Under Rule 9, the defendant is in default, ex parte evidence can be

presented, and the court will only award those reliefs prayed for in

the complaint.

Q: May a third party such as his counsel appear for the party?

Yes, but the third party must be armed by a power of attorney, and in

writing, that will empower him to enter into stipulations, to submit to

arbitration or other ADR, or to enter into a compromise agreement.

Q: What if there are two preliminary conferences; the defendant

attended the first but did not attend the second one? Will he be

sanctioned?

No. After the termination of the first pre-trial conference, it is

arbitrary and capricious on the part of the trial court to schedule

a second conference. But it is essential that the first one must have

been terminated.

Q: What are the differences between a criminal case and a civil

case when it comes to pre-trial?

In a civil case, stipulations of facts can be had; joint stipulation of

facts can be had; parties are encouraged to agree on the existence of

certain facts, making them part of the records of the case; and verbal

stipulations of facts can be allowed and considered valid. These

stipulations need not be presented in evidence, as the court will take

judicial notice of these stipulations, and will be considered as judicial

admissions.

The rules in a criminal case are much stricter. Stipulation of facts

should be reduced into writing, signed by the counsel of the accused

and accused himself, and approved in court. Otherwise, it will be

inadmissible in court.

Q: One of the purposes for pre-trial is the ‘advisability or

necessity of suspending the proceedings.’ What are the grounds

for suspending the proceedings?

The grounds are not in the Rules of Court. It is in the NCC. Read Art.

2030 under Title XIV, or Compromises and Arbitrations:

Art. 2030. Every civil action or proceeding shall

be suspended:

1. If willingness to discuss a possible

compromise is expressed by one or

both parties; or

2. If it appears that one of the parties,

before the commencement of the action

or proceeding, offered to discuss a

possible compromise but the other

refused the offer…

Pre-Trial Order

The court is required to issue a pre-trial order after the termination of

the pre-trial conference, stating therein the matters to be taken up and


will serve to control the proceedings in trial proper. The court is

required to specify the issues that have not been stipulated upon and

what should be the object of the trial whenever the court finds it

necessary to conduct a trial. This is an important document in a civil

case insofar as the triable issues are concerned.

If we follow the decisions of the SC, since the issues specified in the

pre-trial order control the proceedings to be taken thereafter by the

court, the court may disregard the pleadings submitted by the parties

after the pre-trial.

Q: The complaint was for collection of a large sum of money

amounting to P1M. During pre-trial, the parties agree that the

real issue is to recover possession and ownership from defendant

of a piece of land, instead of collection of P1M as stated in the

complaint. That is the issue embodied in the pre-trial order. Is

the pre-trial order valid?

Yes. Although it is in conflict with pleadings, Rule 18 is very clear

that it is the pre-trial order that will govern the proceedings, not the

pleadings.

Although we learn in Evidence that the issues are those found in the

pleadings in a civil case, the triable issues for the purposes of a civil

case are those found in the pre-trial order. There is nothing wrong in

a civil case if we start with a collection of money case and that was

converted to a recovery of property case in pre-trial even without

amending the complaint. This is because what governs the course of

the proceedings is the triable issue that is specified in the pre-trial

order, as specified under the last section of Rule 18. Thus, in our last

example, the court will simply ignore the issue as to the claim for a

sum of money, as the issue to be tried will be the issue on the

recovery of possession and ownership of a piece of land, the issue

found in the pre-trial order.

Q: Why do we allow the trial court to change the issues without

changing the pleadings?

This is because, during the pre-trial hearings, the parties are present

therein. If they both agreed to the change, such as changing the issues

of the complaint from collection for a sum of money to a recovery of

possession and ownership of property, then the court will be simply

following the desire of the litigants as to what issue to be tried during

the trial.

Note, this principle is allowed in civil cases only. It is inapplicable in

a criminal case.

Let us say the court strictly follows the pre-trial order and reminds

the parties that the issue in the trial will be recovery by the plaintiff of

possession and ownership of property from the defendant. During the

trial, if the plaintiff was able to show that he was indeed entitled to

recover, then there is nothing wrong with that as the evidence is

relevant and material.

Q: What if during the trial, the plaintiff also presented evidence

that he is also entitled to recover 1M along with the property, will

it be allowed?

He cannot, if the defendant objects. If the defendant, however, failed

to object, the plaintiff will be able to present evidence on an issue not

raised in the pre-trial order.

Q: Why do we allow the plaintiff to present evidence on an issue

not raised in the pre-trial order, about his entitlement to recover

from the defendant the amount of 1M?

This is because of the rule of amendment to conform to evidence. In a

civil case, we can jump from one issue to another so long as parties

agree. The issue in the pre-trial order could be different from that

raised in the pleadings, and even issue tried during trial could be

different from that raised in the pre-trial order. The parties are given

much flexibility and allowance in a civil case to present evidence on

any issue they so desire. The only limitation is that the other party

might object to evidence presented that is not related to the issue

found in the pre-trial order, that the evidence is irrelevant and

immaterial. If evidence is allowed, the court shall issue judgment

based on evidence presented, based on the rule of amendment to

conform to evidence.

Alternative Dispute Resolution (ADR)

The NCC expresses the policy of the state that the courts should

encourage litigants to settle disputes amicably or to submit to

arbitration if they cannot voluntarily agree to settle the dispute by

themselves.

Read: Domestic Arbitration Act (RA 876), and A.M. No. 07-11-08-

SC Special Rules on ADR

The law on ADR gave autonomy to contracting parties in submitting

their disputes to alternative modes of dispute resolution, including the

prerogative to agree on the procedure to be followed in case they

enter into any mode of ADR.

There are 3 recent cases dealing with ADR. The principles formed in

these 3 cases form the circular on arbitration.

These cases are:

1. Gonzales v. RTC,

2. ABS-CBN Broadcasting Corporation v. World Interactive

Network Systems (WINS) Japan Co., Ltd., and

3. Korea Technologies Co., Ltd., v. Hon. Alberto A. Lerma, et al.

Gonzales v. RTC explains the doctrine of separability or severability.

Doctrine of Separability / Severability (Case)

This doctrine enunciates that an arbitration agreement is independent

of the main contract. The arbitration agreement is to be treated as a

separate agreement and the arbitration agreement does not

automatically terminate when the contract of which it is part comes to

an end.

The separability of the arbitration agreement is especially significant

to the determination of whether the invalidity of the main contract

also nullifies the arbitration clause. Indeed, the doctrine denotes that


the invalidity of the main contract, also referred to as the “container”

contract, does not affect the validity of the arbitration agreement.

Judicial Remedies

ABS-CBN v. WINS enumerates the remedies of a party aggrieved by

an arbitral award.

According to the Supreme Court, a party aggrieved by an arbitral

award has three (3) remedies, to wit:

(a) a petition in the proper trial court to issue an order to vacate

the award under Republic Act No. 876 (which applies to

domestic arbitration);

(b) a petition for review with the Court of Appeals under Rule

43 of the Rules of Court on questions of fact, of law, or

mixed questions of fact and law; and

(c) a petition for certiorari with the Court of Appeals under Rule

65 of the Rules of Court if the arbitrator acted without or in

excess of his jurisdiction or with grave abuse of discretion

amounting to lack or excess of jurisdiction.

The grounds to vacate under Section 24 are:

(a) The award was procured by corruption, fraud, or other

undue means; or

(b) That there was evident partiality or corruption in the

arbitrators or any of them; or

(c) That the arbitrators were guilty of misconduct in

refusing to postpone the hearing upon sufficient cause

shown, or in refusing to hear evidence pertinent and

material to the controversy; that one or more of the

arbitrators was disqualified to act as such under section

nine hereof, and willfully refrained from disclosing such

disqualifications or of any other misbehavior by which the

rights of any party have been materially prejudiced; or

(d) That the arbitrators exceeded their powers, or so

imperfectly executed them, that a mutual, final and definite

award upon the subject matter submitted to them was not

made.

Rule 43

The Supreme Court noted that Rule 43 of the Rules of Court

expressly applies to awards, judgments, final orders or resolutions of

quasi-judicial agencies, including voluntary arbitrators authorized by

law.

Rule 65

As for the remedy under Rule 65, the Supreme Court stressed that it

will not hesitate to review a voluntary arbitrator’s award where there

is a showing of grave abuse of authority or discretion amounting to

lack or excess of jurisdiction, and there is no appeal, nor any plain,

speedy remedy in the course of law.

It should be noted that the Philippine Alternative Dispute Resolution

Act of 2004 (“ADR Law”) adopted and incorporated the provisions

of the UNCITRAL Model Law on International Commercial

Arbitration (“Model Law”), which limits recourse against an

international arbitral award only to the grounds specified under

Section 34 of the Model Law (e.g., incapacity of a party to the

arbitration agreement or the invalidity of the arbitration agreement

under the applicable law). Neither the Model Law, nor the New York

Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, to which the Philippines acceded in 1967, recognize the

setting aside of international/foreign on the broader grounds of errors

of law and/or fact or grave abuse of discretion.

Notably, the ruling in ABS-CBN treated the case as a “domestic”

arbitration even though one of the parties, i.e., WINS, was a Japanese

corporation and a substantial portion of the obligation, i.e., the

distribution and sublicensing of the “The Filipino Channel”, was

performed in Japan. Perhaps this may be explained by the fact that

the arbitral award in this case was rendered prior to the enactment of

the ADR Law. It was only under the ADR Law that a distinction was

made between domestic arbitration and international arbitration.

Under the ADR Law, international arbitration shall be governed by

the Model Law, while domestic arbitration shall be governed by R.A.

No, 876. The ADR Law adopts the definition of international

arbitration under Article 1(3) of the Model Law. Domestic

arbitration, on the other hand, defines domestic arbitration as

arbitration that is not international.

Retroactive Effect

In Koreatec v. Lerma, the Supreme Court held that the ADR Law,

being a procedural law, may be given retroactive effect. Hence, there

appears to be a conflict in this respect between ABS-CBN and Korea

Technologies.

While RA 9285 was passed only in 2004, it nonetheless applies in the

instant case since it is a procedural law which has a retroactive effect.

Likewise, KOGIES filed its application for arbitration before the

KCAB on July 1, 1998 and it is still pending because no arbitral

award has yet been rendered. Thus, RA 9285 is applicable to the

instant case. Well-settled is the rule that procedural laws are

construed to be applicable to actions pending and undetermined at the

time of their passage, and are deemed retroactive in that sense and to

that extent. As a general rule, the retroactive application of

procedural laws does not violate any personal rights because no

vested right has yet attached nor arisen from them.

General Principles and Process

There are certain principles to keep in mind concerning arbitration

proceedings.

Take note particularly of these three principles:

1. Principle of Separability or Severability

2. Principle of Judicial Restraint 3. Competence- Competence

Principle of Separability (Discussion)

Under the pricinple of separability, the arbitration clause is treated as

an agreement independent of the other terms of the contract of which

it forms part. A decision that the contract is null and void shall not

entail ipso jure the invalidity of the arbitration clause.


If there is a judgment by a court that the container contract is

unenforceable, that will not affect the arbitration clause as it is a

separate contract by itself. This clause will still govern the

relationship of parties concerning the filing of cases in court or

arbitration board as the case may be.

If the arbitration clause is still valid, and one of the parties filed a

case in court, allegedly for the enforcement of his right, then the

court, confronted with the arbitration clause will have to either

dismiss the complaint or suspend the proceedings and compel the

parties to go into arbitration.

Under the decisions of the three cases, the court also emphasized that

there could be a complaint to declare the unenforceability of or to

declare void the arbitration contract. It is an RTC that has jurisdiction

to do so. But even if there is a pendency of such a case to declare

unenforceability of or to declare void the arbitration contract, it shall

not serve to prevent the parties from proceeding to arbitration. In fact,

these cases came out with a principle which the court called the

Principle of Anti-Suit Injunction.

The Principle of Anti-Suit Injunction means that the court has no

authority to issue a writ of injunction to prevent an arbitration from

proceeding or an arbitration board to be constituted for the purpose of

enforcing the arbitration clause.

Competence-Competence

The principle of competence-competence states that the arbitral body

has the power to initially rule on the question of its jurisdiction over a

dispute including any objections with respect to the existence or

validity of the arbitration agreement or any condition precedent to the

filing of a request of arbitration.

The Special ADR Rules recognize the principle of competence-

competence, which means that the arbitral tribunal may initially rule

on its own jurisdiction, including any objections with respect to the

existence or validity of the arbitration agreement or any condition

precedent to the filing of a request for arbitration.

Restatement of the Rule:

Before the arbitral tribunal is constituted, the regular courts have

jurisdiction to determine the issue of competence of a tribunal. The

moment the arbitral tribunal is constituted, the arbitral tribunal has

the prerogative to rule on its own jurisdiction.

There arises a policy of judicial restraint, such that the finding of the

court on the jurisdiction of the arbitral tribunal is at best prima facie.

The RTC has the authority to entertain a petition to declare void or

unenforceable an arbitration clause. The decision of the RTC,

however, is merely prima facie.

Q: Does the “prima facie finding” of the court mean that the

arbitral tribunal can still be formed?

Yes. If the court finds that the arbitration agreement is null and void,

inoperative or incapable of being performed, a party may

nevertheless commence arbitration and constitute the arbitral tribunal.

Q: So where does “prima facie finding” of the court come in?

How is it prima facie?

Since the finding of the court is only prima facie, this means that the

same issue may be passed upon by the arbitral tribunal, which has the

effect of superseding the previous of the court.

This is the ‘after’ ruling.

Q: What about the “after-after” ruling?

The same issue on jurisdiction may be passed upon in an action to

vacate or set aside the arbitral award. In this case, it is no longer a

prima facie determination of such issue or issues, but will be a full

review of such issue with due regard, however, to the standard of

review for arbitral awards.

Personal Opinion:

The relation between the prima facie ruling, after ruling, and after-

after ruling seems to be confusing at first. Try to apply it in a scenario

like this one.

There is a contract between A and B and that contract contains an

arbitration clause. There was a violation of that contract and A wishes

to enforce the arbitration clause. B, however, is adamant that the

adamant clause is actually null and void. He states he was only forced

to agree to the arbitration clause. Before the arbitration tribunal is

constituted, B sought the help of the court to declare the arbitration

clause void. The court determined the arbitration clause is really void.

This declaration, however, is merely prima facie and is not final. This

is the prima facie ruling part of ADR.

Since the ruling of the court is merely prima facie, the arbitration

tribunal may still be constituted. When it was in fact constituted and

it did here, the tribunal passed upon on the same issue. It stated the

arbitration clause is valid. This is the ‘after’ ruling and is the very

embodiment of the principle of competence-competence.

Since the arbitration tribunal determined the clause is valid, B may

petition the appropriate court again for judicial relief. He may make

use of Rule 3 under the Special Rules on ADR if there is no arbitral

award yet, or if there is one, he must vacate or set aside the award

under Rule 11. The ruling of the court will be the ‘after-after’ ruling

and will be a full review of such issue.

Read: Rules 3 and 11 of the Special Rules on ADR

The Supreme Court has inserted in the rules remedies available to the

parties in ordinary cases.

If the local court or an arbitral body makes a finding that the

arbitration clause is really valid and binding, it is inappealable.

If the arbitral body makes a finding that the clause is invalid, the

decision is appealable to a trial court. If there is a finding that the

arbitrator is qualified, a motion for reconsideration, appeal, or a

petition under Rule 65 against such finding are all prohibited. This is


to emphasize the policy of judicial restraint insofar as arbitration

proceedings are concerned.

Principle of Judicial Restraint

Under this principle, there should be least intervention by the courts

of law insofar as arbitration proceedings are concerned. If there is an

ongoing arbitration, or even if there is a pending case where there is a

right to compel one of the parties to submit to arbitration, the court

should not interfere in the constitution of the arbitral board.

The reasoning behind this principle is that when the parties crafted

the arbitration clause, there is an implicit understanding between the

parties that an arbitral board, and not a court of justice, should resolve

their dispute. The court deems this as a valid contract the policy is to

give autonomy to the parties in choosing the manner to adjudicate

their disputes. They do not need to go to a court of justice. They can

go to an arbitration body, which is a faster and practical means of

settling their disputes.

Q: May an arbitral body grant provisional remedies?

The circular on arbitration as well as jurisprudence states that yes, an

arbitration board can be allowed to grant provisional remedies or

interim relief. The UNCITRAL Model Law on ICA also grants courts

power and jurisdiction to issue interim measures. Thus, a panel of

arbitrators can issue a writ of preliminary injunction, a writ of

preliminary attachment, they can even appoint a receiver, and issue a

protection order so that the property in dispute may be preserved.

If a court of justice grants interim relief or provisional relief that is in

conflict with the relief granted by the arbitral body, it is the relief

granted by the arbitral body that shall prevail. This emanates from the

principle of Anti-Suit Injunction and Principle of Judicial Restraint.

Arbitration Process

The complaint in the arbitration board must contain evidence in the

form of attachments and the legal brief, an argument supporting the

party’s stand why his claim must be given weight and granted. The

defendant must file a response of similar composition also with legal

brief. The legal brief is similar to a memorandum (in ordinary civil

procedure, when there is an appeal, as a general rule we require filing

of a brief in court.).In short, this is a shortcut of the civil procedure.

There is no summons issued by the arbitration board, just a notice for

filing a response. Service thereof can be had by private courier.

Because of the requirement of prior submission of evidence together

with the filing of pleadings and legal brief, it is easy to appreciate

how the arbitration board can easily grasp what the issues are all

about and they can right away render an arbitral award. The body,

however, may still require the submission of additional evidence if

needed. There is a provision in the ADR rules which states that the

technical rules of evidence will not govern proceedings therein.

Confirmation, Correction or Vacation of Award

Let us say that the winning party wants the arbitral award to be

treated like a judgment of the court, he simply files with the RTC to

confirm arbitral award. He can do it at any time. If arbitral award is

confirmed by the RTC, the arbitral award ceases to be such and is

now a judgment that can be executed under Rule 39. Violation of the

judgment can cause the winning party to file motion for execution of

judgment. In arbitration, an arbitral award is final and executory,

especially if confirmed by the RTC.

The losing party can file a petition with the same RTC which has

authority to confirm the award for purpose of vacating, correcting or

modifying said award.

Q: Supposing the RTC vacates the arbitral award and sets the

award aside. Can the RTC make its own decision concerning the

merits of the decision?

Not possible. Although a court of justice can vacate, modify or

correct an arbitral award, it has no authority to render its own

judgment on the merits. The domestic arbitration law and the SC

Circular said that if the court decides to vacate the award, the court

does not have the authority to change the conclusions of law of the

arbiter. A court cannot render its own decision on a case already

submitted for arbitration. While it can vacate, modify or correct the

award, and it does so, the court should return the decision to the

arbitration panel for further study, or the parties can opt to have a

new arbitration panel constituted. The court cannot impose its own

judgment on the merits of the case. The court can review the case,

and modify, vacate or correct the award, but it cannot reverse the

findings of facts and conclusions of the arbiter.

Q: Supposing the RTC affirms the arbitral award, does the losing

party still have a recourse?

The recourse of the losing party is to appeal in the CA via Petition for

Review under Rule 43. The justification for this remedy is that in the

enumeration of quasi-judicial bodies whose decision can be reviewed

by the CA, it includes the review of an award made by arbitrators.

From Rule 43, there can be an appeal to the SC via a Petition for

Review under Rule 45.

There is a judicial review for reviewing arbitration cases. But the

reviewing courts will have limited authority concerning the manner

by which the judgment could be held. The court cannot change the

factual findings of an arbitral body. In case of a review brought to the

RTC, CA or SC involving arbitral award, there are few grounds

mentioned. We cannot raise questions of law or fact. We have to

follow the grounds mentioned in RA 876.

The grounds for justifying a court of justice in issuing an order to

vacate the award are not the usual grounds of appeal in civil cases.

The courts should see to it that causes should be founded on these

grounds for granting the vacation of an award.

Furthermore, if there is an appeal in the higher court for a petition for

review of an arbitral award, the ADR law provides that the appellant

should file a bond equal to the award given by the panel of

arbitrators. This is an exception to the rule because in ordinary court

procedure, there is no need to file an appeal bond as it has been done

away by BP 129.

International Commercial Arbitration


With respect to International Commercial Arbitration, the arbitration

may be held here in the Philippines or elsewhere.

The remedy of a winning party in a case decided by a foreign court,

for the enforcement thereof in the country, is to file a petition for the

enforcement of the foreign judgment. There is no need to file a

petition for recognition of a foreign judgment. Our laws do not

recognize a foreign arbitral award as a judgment of a foreign court. It

is just an arbitral award. Thus, the prevailing party in an arbitral

award cannot make use of Section 48 under Rule 39. He must avail of

another remedy provided by the SC Circular, which is a petition for

recognition and enforcement of foreign arbitral award in the RTC.

The court can refuse to resolve a petition for recognition and

enforcement of a foreign arbitral award. This is not like the case of a

foreign judgment rendered by a foreign court where the decision is

conclusive upon our courts, subject to the last paragraph of Section

48, Rule 39. We do not apply Section 48, Rule 39 to a foreign arbitral

award as it is not a judgment rendered by a foreign court.

INTERVENTION

There are four kinds of intervention in our Rules of Court and various

circulars by the Supreme Court:

(1) Intervention under Rule 19

Under Rule 19, intervention is upon court’s discretion. A stranger to

a case voluntarily introduces himself as a party to the case, but must

seek court permission to do so through a Motion for Intervention.

The Motion for Intervention should show:

1. The intervenor has direct interest;

2. He has a grievance against both parties in the pending case;

3. He wants to side with one of the parties; or

4. He is situated in a very unfortunate position wherein the judgment of the court could adversely affect his properties.

As a general rule, intervention is not a matter of right because the

intervenor is required to file a motion subject to the court’s decision.

In the resolution of the motion, the court has the discretion to grant or

deny the motion. If the motion is denied, the intervenor can file a

separate case against any one, or both, of the parties. If his case is

already filed, he can seek to have the cases consolidated, in instances

where consolidation is proper.

If the motion is granted, intervenor is required to file a pleading in the

form of a complaint-in-intervention or answer-in-intervention.

Q: What is a complaint-in-intervention?

A complaint-in-intervention is filed if the intervenor wants to side

with the complainant or is against both complainant and defendant in

the main complaint.

Q: What is an answer-in-intervention?

An answer-in-intervention is filed if the intervenor wants to side with

the defendant.

Q: Since the Rules only allow these two pleadings to be filed, does

that mean the intervenor may not file a cross-claim or a third-

party complaint, among others?

The filing of these pleadings does not preclude the intervenor from

availing of the other pleadings allowed in a civil case (counter-claim,

cross-claim, third-party complaint, etc.)

Q: Do we recognize a motion to intervene as a matter of right on

the part of the intervenor?

Yes, this is found on Rule 3, under the provision on class suits, where

any member of the class has the right to intervene as a matter of right.

The court has no option but to grant the intervention.

(2) Court-mandated intervention

In marriage-related cases under Rule 9, if the defendant does not

answer, the court has no authority to declare the defendant in default.

The court will direct the prosecutor to intervene in order to determine

that there is no collusion between parties.

(3) Forced intervention

There are forced interventions under Rule 39 and 57. These two have

to do with garnishment.

Under Rule 39, when the court issues a writ of execution and the

properties of the losing party have been levied upon, the sheriff may

issue an ancillary writ of garnishment. When the properties of a

judgment debtor in the possession of a third person are subjected to a

writ of garnishment, that third person becomes a forced intervenor in

the proceedings. That person will have to obey the orders of the court

issued in relation to the execution, whether the third person likes it or

not.

Under Rule 57, if there is a writ of preliminary attachment issued by

the court, and following a supplemental writ of garnishment is issued,

and the writs were enforced by the sheriff upon a third person, that

third person becomes a forced intervenor in the proceedings.

(4) Court-encouraged intervention

Under environmental cases, it is encouraged by the courts for NGOs

and other parties to intervene whenever there is a petition filed under

the environmental laws. The court cannot compel the intervention of

these bodies, only to encourage them.

There are some cases whose positions it appears to be in conflict with

one another in reference to the intervention under Rule 19.

Q: Before the court was able to grant a motion for intervention,

the principal case was dismissed. What happens to the motion for

intervention?

It will render the motion academic. The motion presupposes the

presence of a principal action. There can be no intervention if there is


no principal action. As a general rule, intervention is always ancillary

to a principal action.

For the exception, you need to read Metrobank v. CA.

A motion for intervention was filed while the case was pending. The

court granted the intervention. After receipt of the order allowing him

to intervene, the party filed a complaint-in-intervention against all the

parties in the case. Intervenor did not realize that the parties of the

case were settling. The parties did arrive at an amicable settlement.

The parties sought for the dismissal of the case, which was allowed.

The intervenor objected to the idea of having his petition dismissed.

The principal parties told the court that it is axiomatic in intervention

that once the principal action has been terminated, the subsidiary

action is dismissed also.

The Supreme Court held that the intervention was already allowed.

The principle that the contention of the parties was applicable only in

the instance the motion to intervene was not yet granted. In this case,

the court has already granted the motion to intervene. The interest of

intervenor was not common with the interest against the other

parties, having filed a complaint-in-intervention against both

parties. Thus, the intervention should be allowed to stand, the

standing of which, the intervention is considered a separate case

against the parties. Here, the intervention survived.

The Metrobank case involves a situation where the intervention will

survive the dismissal of the main complaint. But for the intervention

to survive, the pleading to be filed must be a complaint-in-

intervention against both parties to the case. This will not be

applicable if the intervention was in the form of a complaint-in-

intervention where the intervenor sides with the plaintiff or if the

intervention was via an answer-in-intervention.

Read: Metrobank v. CA

Q: Is there any exception to the rule that the intervention should

only be allowed before judgment is rendered by the trial court?

Yes. Although the rule provides a time frame for an intervenor to be

allowed to intervene, the SC has allowed intervention to take place,

even if there is already a pending appeal before the CA. The Rule is

very clear that intervention should be allowed before judgment is

rendered by the trial court. After judgment is rendered by the trial

court, intervention should no longer be allowed. But the Supreme

Court recognized the propriety of an intervention even if the case was

already pending appeal in the CA or the SC.

In the first instance where the court will allow an intervention, even

on appeal, is when the intervenor is an indispensible party. If an

intervenor attempts to intervene if the case is already on appeal, that

will save the trial court, CA and SC from another procedural

problem. We learned that if the trial court renders a decision in a case

where an indispensable party is not impleaded, that decision will

never be final and executory. So, if on appeal, if the indispensable

party intervenes, then he should be allowed to do so, because if he is

allowed, that will cure all the procedural effects that will be present

in this particular case. That will solve the problem of whether or not

there could be a final determination of the case or whether or not the

decision can be finally be executed under the provisions of Rule 39.

Another situation that the SC allowed an intervention to happen even

if the case is already is on appeal is when the Republic of the

Philippines intervenes in the case. If the Republic of the Philippines,

via the Solicitor General, intervenes in a case that is already on

appeal, the SC said that the intervention of the Solicitor General must

be of national importance, since the Solicitor General intervenes only

when the case is of paramount interest to the Republic of the

Philippines.

Q: Are there any instances where intervention is prohibited?

Yes. A motion for intervention is prohibited in summary procedure

and small claims proceedings. It is also not available in the writs of

Amparo and Habeas Data.

Q: What if the motion for intervention is denied? What is the

remedy of the failed intervenor?

This is a gray area, but jurisprudence before the 1997 Rules state that

the intervenor may appeal from the denial.

Q: What if the motion for intervention is granted? May the

original parties appeal?

Although this is another gray area, the general consensus seems to be,

no, it is unappealable since the grant of the motion for intervention is

interlocutory. They may make use of Rule 65.

CALENDAR OF CASES

The Rules of Court have adopted the Civil Code principle that in

computing periods, exclude the first day and include the last.

Also, in computing periods, include Saturdays and Sundays.

Q: What is pretermission of holidays?

If the last day falls on a Saturday, Sunday, or a holiday, the period

will be extended until the next working day.

Q: What if it is a holiday in Manila but not Makati?

Take note of the phrase ‘in the place where the court sits.’ Thus, if it

is a holiday in Manila but not Makati, and the case is pending with

RTC Manila, then there will be pretermission of holidays. However,

if the case is pending in RTC Makati, even if the complainant or the

defendant lives in Manila (provided it is a real action), pretermission

will not apply.

Q: What if the party sought to extend the period to file a pleading

and the due date of that period falls on a holiday?

Dean Albano: Pretermission will still apply. If it was otherwise, that

would unjustly deprive the party of the full benefit of that extension

(citing Reinier Pacific International Shipping, Inc. v. Capt. Francisco

Gueverra).


MODES OF DISCOVERY

The modes of discovery that we have in civil procedure are also

available in a criminal case.

The Supreme Court in the WEBB CASE came out with the principle

that the Modes of Discovery available in civil cases are also available

in criminal cases. The only difference is that the use of the modes of

discovery in a criminal case should not violate or derogate the

constitutional rights of the accused.

For instance, in a civil case, there is nothing wrong if the plaintiff

takes the deposition of the defendant or the other way around. But in

a criminal case, there is something wrong if the prosecutor takes the

deposition of the accused. The prosecutor cannot take the deposition

of the accused in a criminal case since this is a violation of the

constitutional rights of the accused. The prosecutor, however, can

take the deposition of a witness whom the accused wants to present in

court, so long as the witness is not the spouse of the accused (due to

marital privilege, or the rule on evidence precluding a spouse being a

witness against the other spouse).

But in a civil case, there is nothing irregular about either the plaintiff

or defendant being subject to deposition. This is even encouraged by

the rules found in civil procedure.

Q: Do the rules compel litigants to avail modes of discovery?

In Rule 18, the plaintiff is asked to indicate if he desires to make use

modes of discovery or to use ADR. They are required to manifest that

to the court.

Q: Let us say that the plaintiff asked for leave to use modes of

discovery, but he failed to do so. Can the court compel the

plaintiff to avail it?

No, the court cannot compel, merely encourage the use of modes of

discovery. Modes of discovery are always voluntary, not mandatory,

although indirectly, the Rules have instances where the law compels

litigant to use modes of discovery or otherwise he will suffer some

sanctions given in the Rules.

Take, for example, Rule 25 and Rule 26.

In interrogatories to parties, the last section of Rule 25 (Section 6)

provides that while the plaintiff can compel the defendant, an adverse

party, to testify during the trial of the case as a witness for the

plaintiff, and at the same time, the defendant can compel the plaintiff

to testify as a witness during the trial, this cannot be done unless the

plaintiff or defendant has previously served upon the party concerned

an interrogatory. If the plaintiff serves a subpoena ad testificandum to

the defendant, requiring the defendant to appear and testify in court

on behalf of the plaintiff, the defendant can ask for that subpoena to

be quashed for failure of the plaintiff to comply with requirements

contained in Rule 25 Section 6.

Where the adverse party is a corporation, the bar on being compelled

to testify extends to the corporation’s officers.

The same sanction under Rule 25 Section 6 is practically the same for

admissions under Rule 26. The sanction under Rule 26 is also similar

to the rule on actionable documents. If the other party fails to make a

response to a request for admission of any document, the genuineness

and due execution of that document shall be deemed admitted. And

the admission, just like the rule in actionable documents, will be

considered as a judicial admission.

Q: Is there a conflict between Rule 26, or admission of adverse

party, and the rule on actionable documents?

No. Rule 26 involves only evidentiary matters, not documents which

form basis of the cause of action or defense. In other words, Rule 26

involves non-actionable documents.

Other than these two rules, there is nothing in our Rules that requires

a party to avail of the modes of discovery. Availment of a mode of

discovery, as a general rule, is purely voluntary on the part of an

interested party.

Q: Do modes of discovery require leave of court?

It depends. Another basic principle in discovery measures is that after

an answer has been filed by the defendant, availment of the modes of

discovery does not require permission of the court. The plaintiff or

defendant is given the prerogative to avail of the modes like taking of

depositions or interrogatories to parties or admissions to parties. The

other modes of discovery will ALWAYS require leave of court. Thus

production and inspection of documents or things in court will always

require leave of court, as does physical and mental examination of a

person. But in the case of depositions pending trial, interrogatories or

admissions, we do not need leave of court so long as the defendant

has already filed an answer.

Q: If it does not require permission from the court, who will take

the deposition?

According to the Rules, the taking of depositions may be taken before

a notary public or any person who can administer oaths.

Deposition Before an Action or on Appeal

This is called in the past as perpetuation of testimonies. Strictly, it

is not a mode of discovery, as modes of discovery assume that there

is a pending case in court. A deposition before an action does not

require an action to be pending, and is thus treated as an independent

action by itself. This is availed of by filing a Petition for Perpetuation

of Testimony, as there is no action filed yet.

Q: Since this is an independent proceeding, with what court

should we file the petition?

RTC. If we follow BP 129, that petition would be cognizable under

the Regional Trial Court since it is an independent action incapable

of pecuniary estimation. Regardless of the contemplated action which

we are going to file, the petition is always cognizable by an RTC.

Q: Will the court issue summons?

No. There is no respondent. The court will simply issue a notice that

will inform potential adversaries of the request for the perpetuation of

testimony.


Q: If the case is under appeal, what court will take depositions

pending appeal?

The trial court still exercises jurisdiction to allow the taking of a

deposition pending appeal. It is not the appellate court that has the

authority to order the taking of a deposition pending appeal, it is still

the court of origin.

Taking of Depositions

The court has allowed the use of these modes of discovery as a

fishing expedition. Practically there is no limitation as to what

matters can be inquired into insofar as availment of discovery

measures are concerned. It is not required that the matters sought be

discovered are relevant right away to the issues presented in the case.

When the law says that the statutes of discovery allow a fishing

expedition, it does not mean to say that the statutes of discovery are

intended only to gather evidence on behalf of the interested party. He

may want to obtain information only for tactical advantage during the

course of the case. He does not have to present evidence in court

information that is gathered by him via these modes of discovery.

Q: How will this help declogging the heavy docket of the court?

It is possible that, after the parties have availed of these modes of

discovery, they will enter into a stipulation of facts.

If there is a stipulation of facts, it may be possible that there will be

no more probandum, no more trial. At the very least there will be a

shorter trial since the parties have already agreed on some of the facts

of the case.

If the plaintiff was able to gather information, let us say, from a

witness who according to the pre-trial brief of the defendant would be

a principal witness for the defendant, it does not mean that the

deposition given by such witness will be admissible in court because

of the deposition. The fact that a party has taken the deposition of a

potential witness does not mean to say that this potential witness will

now be excused from going to court to give his testimony. The giving

of deposition is different from the giving of testimony in open court.

A party may give his deposition, but it does not mean that he is

excused from testifying in court. In fact, the Rules require that if the

party has already given his deposition, he is still required to testify in

court. His deposition will not take the place of his the testimony in

court. This is because the taking of his deposition is only a discovery

measure. The deponent does not appear before the trial court to

testify. He gives his deposition not before a trial judge, but before

another person who is simply authorized to administer oaths.

Q: If the case is pending here in Manila, and there is a potential

witness whose deposition is required by the plaintiff, and this

witness is also a resident of Manila, can the plaintiff require this

potential witness to give his deposition?

Yes.

Q: What if the witness is in Cebu or Davao?

RTC Manila may not compel the witness to go to Manila even if the

interested party is willing to pay for his transportation. The reason is

that the witness may invoke his viatory right.

Where the witness resides more than one hundred (100) kilometers

from his residence to the place where he is to testify by the ordinary

course of travel, the witness may invoke that he be not allowed to

testify. This is known as invoking his viatory right.

Q: What is the remedy of the interested party if he really wishes

to obtain the deposition of the Cebu or Davao resident?

The interested party may ask any RTC in Cebu or Davao to issue a

subpoena. The interested party, therefore, and his counsel, must go to

Cebu or Davao to take the deposition of the faraway resident.

Q: What if the potential witness is in Ikebukuro, Japan?

The interested party has to make use of a commission or letters

rogatory.

Q: What is a commission?

A commission is a request to the consulate of the Philippines in the

foreign country to take the deposition of the person residing in that

foreign country.

Q: What is a letter rogatory?

It is a request issued by a local court addressed to a foreign court

requesting the latter to take the deposition of a person who is within

the territorial jurisdiction of that foreign country.

The letter rogatory will be passed to the DFA, who will in turn pass

the letter to our consulate in that foreign country, and who (meaning,

the consul) will in turn deliver the letter to the foreign court.

Q: After the potential witness has given his deposition, and later

on, this witness receives a subpoena requiring him to give

testimony in open court, can the potential witness file a motion to

quash subpoena as he had given a deposition of his testimony?

No, as the giving of a deposition cannot take the place of giving

testimony in open court. The deponent can always be compelled to

give his testimony in open court. Though his testimony may be a

repetition of his deposition, it still does not matter. He still has to give

his testimony in open court.

Q: If the witness has given testimony in open court, what is the

use of the deposition he had previously given?

Deposition previously given can be used to impeach the witness or

corroborate the witness’ statements in the testimony. This is the

principle of evidence called ‘laying the predicate’.

Q: What is ‘laying the predicate’?

This refers to statements, oral or documentary, made by the witness

sought to be impeached on occasions other than the trial in which he

is testifying.

Q: What are the elements of laying the predicate?

Dean Riano:


1. The alleged statements must be related to the witness

including the circumstances of the times and places and the

persons present. If the statements are in writing they must

be shown to him;

2. He must be asked whether he made such statements and

also to explain them if he admits making those statements (p. 327).

Q: When is the rule on laying the predicate inapplicable?

Dean Regalado: It is inapplicable if the prior inconsistent statement

appears in a deposition of the adverse party, and not a mere witness,

that adverse party who testifies may be impeached without laying the

predicate as such prior statements are in the nature of admissions of

said adverse party (Vol. II, p. 852).

Q: What is the purpose of laying the predicate?

The purpose is to allow the witness to admit or deny the prior

statement and afford him an opportunity to explain the same.

Non-compliance with the foundational elements for this mode of

impeachment will be a ground for an objection based on “improper

impeachment.” Over a timely objection, extrinsic evidence of a prior

inconsistent statement without the required foundation is not

admissible.

Q: Is it possible that the deposition can be the testimony of the

witness?

It is possible.

Where the witness resides more than one hundred (100) kilometers

from his residence to the place where he is to testify by the ordinary

course of travel, the witness may invoke that he be not allowed to

testify. This is known as invoking his viatory right. The witness can

ask the court that he be excused from giving his testimony in open

court. Even if the court issues a subpoena, the witness may ignore

such subpoena. He cannot be cited in contempt for disobedience. The

remedy of the court is to allow the taking of the deposition, and the

court can then consider the deposition taken as his testimony. In other

words, the fact that a deposition has already been taken from a person

does not mean that the said person will be excused thereafter from

going to court in order to be a witness. That is possible only in

exceptional cases mentioned in Rules, one of them being when the

witness invokes his viatory right. Or even if there is no viatory right,

if the witness/deponent is physically incapable of going to court in

order to testify, or is dead, the court can consider the deposition

previously given as his testimony in court.

Q: What does ‘ordinary course of travel’ mean?

It means land transportation. Thus, even if Cebu is 45 minutes away

from Manila, the RTC in Manila may not bind a person in Cebu with

a subpoena.

Q: Aside from invoking his viatory right, what other reasons may

a person quash a subpoena?

He may quash the subpoena if it is not properly issued or served upon

the witness.

For example, in subpoena duces tecum, if the books or documents are

totally irrelevant to the issue, or it would involve trade secrets, it may

be quashed by the interested party.

If it is subpoena ad testificandum, the person may quash the subpoena

if the interested party did not pay the former’s transportation fee or

witness fee. It is a good ground for the quashal of the subpoena.

Q: How do we take the deposition of a witness?

There are two ways. It may be an oral examination, or upon written

interrogatories.

The procedure between the two is practically the same, except that in

deposition upon oral examination, the deponent is personally present,

the lawyer for the plaintiff is personally present, and the lawyer for

the defendant is also personally present. They will conduct a hearing

of sorts; there will be direct examination, cross, re-direct, re-cross.

Everything is verbal and is presented before the presiding officer of

that proceeding.

If it is deposition upon written interrogatories, the lawyers do not

have to be personally present. They just have to give a questionnaire

in writing. These papers will be sent to the presiding officer who will

read the questions and jot down the answers given by the deponent.

Q: May the presiding officer rule on objections?

No. Even if the presiding officer is a judge, he cannot rule on the

objections. The presiding officer is unaware of what the issues really

are. This is one of the reasons why depositions, as a general rule, are

not equivalent to testimony in open court. At least in testimony in

open court, the objections will be ruled by the judged.

Q: What happens if there really is a objection during the taking

of depositions? Do we do away with objections?

No. The presiding officer, however, will simply say, “The objection

is noted but the witness should still answer the question.”

Q: What if the deponent refuses to answer?

The interested party has to go back to the court of origin and ask for

the issuance of an order directing the witness to give an answer for

that particular question.

Q: May the deponent or any of the interested parties file a motion

to terminate or limit the examination?

Yes. If the witness or any of the parties can convince the court that

the taking of deposition is designed to primarily annoy or embarrass

the witness, they may ask the court of origin to issue an order to

terminate the taking of the deposition.

Q: What happens if the deposition is over?

The presiding officer will send the transcript of the proceedings to the

court of origin under seal.

Q: Will this transcript be considered evidence?

No. In order that the transcript will be considered as evidence, it

should be submitted, it should be offered as documentary evidence by

anyone of the interested parties. And it is during this offer of the


transcript as evidence when the trial court can rule on the objections

that were noted by the presiding officer. This time the trial court will

have the authority to rule on the objections because the trial court is

the one that is actually trying the case.

Production and Inspection of Documents and Things

Q: What is the difference between a subpoena duces tecum and

this mode of discovery?

First, in a subpoena duces tecum, the process may be directed either

to a party to the case or a plain witness to the case. When it comes to

production of documents as a mode of discovery, it could only be

addressed to a party.

Second, they differ in purpose. In a subpoena duces tecum, there is an

assumption that the interested party will introduce these documents

as evidence. On the other hand, in production of documents, the only

purpose is for discovery.

Third, the scope of production and inspection of documents and

things are broader. It may involve real estate, it may involve entry

into or inspection of land. Since land is incapable of manual delivery,

it cannot be subject to a subpoena duces tecum.

Q: What if the party refuses to obey the order of production and

inspection of documents?

Dean Albano: He will be cited in contempt. A person guilty of

disobedience of or resistance to a lawful order of a court or commits

any improper conduct tending, directly or indirectly, to impede,

obstruct, or degrade the administration of justice may be punished for

indirect contempt.

TRIAL

Q: Can a trial court decide a case properly and validly if the

court does not conduct a pre-trial or a trial for that matter?

Yes. Although pre-trial is mandatory and though trial must be had

due to triable issues, the court can just skip these stages and render

judgment.

For example, in a judgment by default, there is no trial and no pre-

trial. Under Rule 9, if the court declares defendant in default since he

did not file an answer, one of the options is to immediately render a

judgment without requiring plaintiff to present his evidence ex parte.

In effect the trial court has skipped from the filing of pleadings to the

judgment phase immediately.

Q: Supposedly the defendant filed his answer, can we still do

away with the trial?

Yes, we follow the special kinds of judgments whenever an answer is

filed as found under the rules.

There can be a judgment on the pleadings if the answer does not

raise any issue at all, or even admits the allegations in the pleadings.

There is no pre-trial and trial in this case. The plaintiff can move right

away for a judgment on the pleadings.

There is also judgment based upon a compromise. If the parties

entered into a compromise agreement during pre-trial, and the court

concurs with the validity of the compromise agreement, the court will

render a judgment based upon compromise without going into trial.

In summary judgments, there is a trial but it is not a full-blown trial.

Furthermore, under demurrer to evidence, although there is a trial, it

is not a full-blown trial. Since demurrer to evidence occurs only after

the plaintiff has presented his evidence, and before the defendant

presented his, only a half of the trial contemplated under Rule 30 has

occurred.

But in instances where there are genuine triable issues, and the parties

cannot agree to a stipulation of facts, the court will have to conduct a

trial. The parties are given the opportunity to make use of evidentiary

rules. There is no offer of evidence during pre-trial. At most, if there

is evidence presented during pre-trial, it is only for marking them as

exhibits. In a pre-trial brief, the parties just identify the documentary

evidence, the real evidence and testimonial evidence in the form of

affidavits.

The pre-trial order shall govern the trial of the case. Only the issues

specified in the pre-trial order will be proven in trial. But this Rule is

not strict because we allow amendment to conform to evidence. If we

follow strictly the Rules and we do not allow amendment to conform

to evidence, then only the issues specified in the pre-trial order will

be tried.

Q: If there are genuine triable issues, can the court still do away

with the trial?

Yes. The parties can help the court avoid a trial if the parties

stipulates on facts that are in dispute. If the parties submit to the court

complete stipulation of facts, and the court need only review the law

applicable (questions of law), then the court can render a decision on

the case without conducting a trial. Trial is only necessary if there are

factual issues. The courts are presumed to know the law applicable to

a given state of facts. The trial contemplated under Rule 30 is a trial

of facts in dispute. But if the parties decide that these facts are no

longer disputed, and they manifested to the court that they agree fully

to the existence of these facts, then the trial may be avoided. The next

stage will just be the rendition of judgment.

Q: Are verbal stipulation of facts allowed?

Yes. In civil procedure, although there is a section in Rule 30 which

provides for written stipulation on facts, the court liberally allows

verbal stipulations. For example, during the pre-trial conference,

everything stipulated upon may be done verbally. But since the pre-

trial conference is part of the court proceedings, everything is

recorded by the court stenographer. The stenographer will transcribe

the records and what the court will readily decide that there has been

a stipulation of facts between the parties.

Q: What is the order of trial?

The order of trial in Rule 30 is the general rule. The order of trial

follows the sequence of argumentation of pleadings. The affirmative


side, the plaintiff, will first present his side, then the negative side,

the defendant, will set forth his defenses. Once the defendant is done

presenting his evidence, then the court may allow parties to submit

rebuttal evidence or even sur-rebuttal evidence. But if the court does

not allow presentation of rebuttal evidence or sur-rebuttal evidence,

the trial will end after the defendant has rest his case.

Q: Can the court terminate the case after the defendant rests?

Rule 30 gives an option to the judge to require the parties to submit

their respective memoranda to help the court in arriving at a decision.

Q: Does failure to submit memoranda when required to do so

result in dismissal of the case?

Yes, under Rule 17, for failure to obey lawful court orders.

Q: May the order of trial be reversed?

The order of trial can be changed. If the court requires defendant to

present evidence ahead, then there is a reverse order of trial. If the

defendant set up affirmative defenses like for example, payment, then

the order of trial is reversed. Under our Rules, if the defendant sets up

only an affirmative defense, there is no negative defense, then that

constitutes a hypothetical admission of the allegations contained in

the complaint.

If the defendant hypothetically admits, for purposes of trial, that he

incurred a loan, then there really is no need for the plaintiff to prove

the existence of the loan. It is now the duty of the defendant to show

that the loan had been paid, so the order of trial is changed. Thus, the

defendant is allowed to present his evidence first. Thereafter, if the

plaintiff does not find it necessary to file rebuttal evidence, the court

will consider the case as submitted for decision.

Q: Who will receive the evidence? Is it always the judge?

Generally, when a trial is conducted by the court, it is the judge

appointed in that sala that should sit in the proceedings. But there are

certain instances when the judge may excuse himself from presiding

the case.

The first one is when the parties so agree; second, when the parties

appoints a commissioner for the presentation of evidence; and third,

when the branch clerk of court, upon delegation of the judge, may sit

in ex parte presentation of evidence. However, in these instances, it is

still the judge who will have to write and sign the decision.

Q: When may the branch clerk of court accept evidence in lieu of

the judge?

1. In default proceedings;

2. In ex parte proceedings; and

3. If the parties agree that it is the branch clerk of court who

should preside when the evidence is presented by them.

Consolidation of Cases

Q: Distinguish consolidation of cases from severance.

A:

Consolidation Severance

Involves several actions having

a common question of law or

fact which may be jointly tried

(Sec.1, Rule 31).

Contemplates a single action

having a number of claims,

counterclaims, cross-claims,

third-party complaints, or

issues which may be separately

tried.

Q: When is consolidation proper?

1. There are two or more cases;

2. These cases have common questions of law or fact; and

3. They are pending in the same court.

Q: What are the ways of consolidating cases?

A:

Recasting the Cases Consolidation

Proper

Test-Case

Method

Reshaping of the

cases by amending

the pleading,

dismissing some

cases and retaining

only one case. There

must be joinder of

causes of action and

of parties.

It is a joint trial with

joint decision, the

cases retaining their

original docket

numbers.

By hearing only

the principal case

and suspending the

hearing on the

other cases until

judgment has been

rendered in the

principal case. The

cases retain their

original docket

numbers (Riano,

Civil Procedure, p.

96, 2009 ed.).

Q: What is the rule on consolidation of cases?

As a general rule, consolidation is discretionary upon the court to

avoid multiplicity of suits, guard against oppression or abuse, prevent

delay, clear congested dockets, and simplify the work of the trial

court and save unnecessary costs and expenses.

As an exception, consolidation becomes a matter of duty:

1. If two or more cases are pending before the same judge; or

2. If filed with the different branches of the same RTC and one of such cases has not been partially tried.

A consolidated case may be appealed separately.

Q: May there be consolidation if the cases are all pending in the

same court (like the Regional Trial Court of Cebu) but different

salas (Branches 1, 2, and 3)?

In these cases, the internal rules of RTCs will be followed. The judge

in one branch cannot issue an order directing the others to agree to

the consolidation of cases, as there is a need to coordinate with each

branch first. One judge cannot simply issue an order to be obeyed by

another judge of the same level. The internal rules of the RTC state

that if there is a consolidation consented by all the judges, it will be

tried by the sala with the lowest docket number. So it is possible so

long as there is consent of all the judges.

Q: What if the cases are pending in different courts?


If one case is in RTC Manila, and the other is in RTC Bulacan, then

the Supreme Court may order consolidation. Only the Supreme Court

has the power to consolidate these cases. Even if the parties agree, or

the judges agree, they cannot consolidate the cases on their own.

The opposite of consolidation is severance of several issues contained

in one complaint. A trial court is given the authority to tell the parties

that the trial to be conducted is only for the purpose of hearing a third

party complaint, a counterclaim, or a cross-claim, depending upon the

discretion of the court

Trial by Commissioners

The language used in the Rule is not mandatory. This is discretionary

on the court.

There are, however, exceptional circumstances under the Rules where

there is mandatory appointment of commissioners. These are:

1. In expropriation proceedings, for determining the value of

just compensation;

2. In partition cases, if there is a need to determine how the

property will be divided between the co-owners;

3. Under Rule 39, Sections 36 and 37, when the judgment was

not executed fully or no execution was had; and

4. In the settlement of estates of deceased persons, money

claims have to be submitted to the settlement court within

the statute of non-claims, and have to be responded to by

the executor or administrator. If administrator of the estate

contests the validity of these claims, then these claims will

become contested claims, and the court may appoint a commissioner to determine these contested claims.

Q: What is the statute of non-claims?

It is a period fixed by the courts for the filing of claims against the

estate for examination and allowance.

Q: When should claims be filed?

As a general rule, within the time fixed in the notice which shall not

be more than 12 months nor less than 6 months after the date of the

first publication. Such period once fixed by the court is mandatory.

Otherwise, the claims are barred forever.

Belated claims, however, are an exception.

Q: What is the rule on belated claims?

Belated claims may be filed even beyond the period fixed by the

court:

1. On application of a creditor who has failed to file his claim

within the time previously limited, at any time before an

order of distribution is entered, the court may, for just

causes, allow such claim to be filed not exceeding 1 month

from the order allowing belated claims; or

2. Where the estate filed a claim against the creditor or

claimant who failed to present his claim against the estate

within the period fixed by the probate court for the

settlement of such claims, the creditor will be allowed to

set up the same as a counterclaim to the action filed by the estate against him.

Statute of non-claims supersedes the Statute of Limitations insofar as

the debts of deceased persons are concerned because if a creditor fails

to file his claim within the time fixed by the court in the notice, then

the claim is barred forever. However, both statute of non-claims and

statute of limitations must concur in order for a creditor to collect.

Q: What is the difference between trial by commissioners and the

delegation to the clerk of court under Rule 30?

The power of a commissioner is much broader than the clerk of court.

Furthermore, the clerk of court has to be a lawyer. A commissioner

need not be one. A commissioner must in fact have a profession that

corresponds to the issue. If the issue calls for knowledge on mining,

for example, the commissioner must be at least a mining engineer or

a geologist.

A commissioner has the power to rule on objections while the clerk

of court cannot.

Finally, a commissioner may be appointed to try issues that arise

even after the judgment has become final and executory. This is

possible in Rule 39. Since the clerk of court is limited to reception to

evidence, then this prerogative does not pertain to them.

JUDGMENTS

Under Rule 36, Section 1, judgment or final orders should have these

four formal requisites in order to be valid:

3. It must be written personally and directly by the judge;

4. It must be signed by the judge;

5. Must be given to the branch clerk of court; and

6. Should include basis from factual findings and conclusions of law

Q: What are the other requirements of a valid judgment?

1. The court must have authority to hear and determine the

case;

2. The court must obtain jurisdiction over the parties or the

res;

3. The parties must have been given an opportunity to adduce

evidence; and

4. The evidence must have been considered by the tribunal in deciding the case.

Do not forget the ruling in Shimizu v. Magsalin. We discussed this in

Rule 17. A final order of dismissal under Rule 17, which is generally

a dismissal with prejudice, is void if there is no explanation how and

why the case was dismissed by failure to prosecute.

Also, you should take note; these requisites under Rule 30, Section 1

apply only to judgments or final orders. It does not apply if the order

is not with prejudice.

Q: A case is pending in RTC Davao under Judge A. He presided

during the presentation of evidence by both parties. After

presentation of evidence, Judge A retires. Who will decide the

case?

The successor judge takes over and decides the case.


If the former judge makes the decision and turned it over to the clerk

of court, who then promulgates it and sends the said decision by mail,

that judgment is void.

Q: What if Judge A is transferred from RTC Davao to RTC

Manila, can he pen the decision and send it to his former sala?

Under the old Judiciary Act, that is a valid judgment. If the judge

who tried the case is subsequently transferred, he retains authority to

try the case and render a valid judgment thereon.

Q: Do we still follow the old Judiciary Act in this regard?

Yes. It is still in force insofar as its provisions are not in conflict with

BP 129. Since this situation is not covered by BP 129, then it is still a

valid provision.

Q: What if Judge A is promoted to become a Justice of the CA,

can he validly pen the judgment?

No. He can no longer decide the case. It is only when the trial judge

who has heard the case is given a new assignment to a coordinate

court shall the Judiciary Act of 1948 will give him authority to render

a valid decision.

Q: Is it possible to have a final judgment even if there is strictly

no adjudication on the merits?

Yes. The two-dismissal rule is with prejudice even if there is strictly

no adjudication on the merits. The same with nolle prosequi; the fact

that the plaintiff did not present his evidence in chief; the fact that the

party disobeyed the court; or even in pre-trial, where the plaintiff did

not appear during the conference. These are several instances where

there is a dismissal with prejudice even if strictly speaking the merits

of the case were not adjudicated by the court.

Entry of Judgment

We have a new concept of entry of judgment. Under Rule 36, entry

of judgment takes place by operation of law. Even if there is no

physical or actual entry of judgment, under Rule 36, the

judgment is deemed entered upon the expiration of the period to

appeal if no appeal is perfected. Hence, if no appeal is perfected,

right after the expiration of the 15/30-day period as the case may be,

that judgment is AUTOMATICALLY entered, and becomes final

and executory. Even if the clerk of court enters that in the records a

year later, it is not the physical entry on the record by the clerk of

court that will reckon the entry of judgment.

Q: Why do we consider entry of judgment as a very important

procedural principle?

In Rule 39, if a judgment has become final and executory, then the

court has the ministerial duty to grant a motion for execution and to

order execution of the judgment. In Rule 39 also, there is a period

fixed for that judgment to be executed. The first five years from entry

is the period to execute the judgment via a motion, and the second 5-

year period is for the revival of the judgment. We are more interested

in the first 5-year period within which to execute the judgment

through a motion.

If we reckon period under Rule 39, insofar as the first 5-year period is

concerned, it is 5 years from entry of judgment. This is why the

principle of entry of judgment is very important in implementing the

succeeding procedural principles relating to execution of judgment,

and also in determining if a particular remedy has been availed of on

time.

Let us take another example aside from Rule 39. If you recall, relief

of judgments has two periods to be taken into account; 60 days from

notice and 6 months from ENTRY of judgment.

Q: What are those which are not considered as decisions?

1. Resolutions of the Supreme Court denying the petitions to

review decisions of Court of Appeals.

2. Minute Resolutions – if issued by SC denying or dismissing

a petition or a motion for reconsideration for lack of merit,

it is understood that the challenged decision or order is

deemed sustained.

3. Interlocutory Orders– those that determine incidental

matters that do not touch on the merits of the case or put an

end to the proceedings, e.g. Order denying a motion to

dismiss, granting an extension of time or authorizing an

amendment.

Dean Albano: Minute resolutions are considered as res judicata with

respect to the same subject matter and the same issues concerning the

same parties. It is not binding precedent if it involves other parties or

another subject matter (citing Nationwide Security and Allied

Services v. Valderama).

Q: What is a judgment without trial?

The theory of a summary judgment is that although an answer may

on its face appear to tender issues—requiring trial—yet if it is

demonstrated by affidavits, depositions, or admissions that those

issues are not genuine, but sham or fictitious, the court is justified in

dispensing with the trial and rendering summary judgment for the

plaintiff. The court is expected to act chiefly on the basis of the

affidavits, depositions, admissions submitted by the movants, and

those of the other party in opposition thereto. The hearing

contemplated (with 10-day notice) is for the purpose of determining

whether the issues are genuine or not, not to receive evidence on the

issues set up in the pleadings. A hearing is not thus de rigueur. The

matter may be resolved, and usually is, on the basis of affidavits,

depositions, admissions. Under the circumstances of the case, a

hearing would serve no purpose, and clearly unnecessary. The

summary judgment is justified, considering the absence of opposing

affidavits to contradict the affidavits.

Interlocutory Judgments

Other sections of Rule 36 give us other classifications of judgment.

Q: What is a separate judgment?

It is a judgment rendered disposing of a claim among several others

presented in a case, after a determination of the issues material to a

particular claim and all counterclaims arising out of the transaction or

occurrence which is the subject matter of said claim.

Q: What are several judgments?

These are rendered by a court against one or more defendants and not

against all of them, leaving the action to proceed against the others.


The need for this classification of judgment stems from the principle

of civil actions that encourage joinder of courses of action. If there

are several causes of action embodied in a complaint, it is proper for

the court after the trial of a particular cause of action, that it

should render a judgment for that particular cause of action. If

there is joinder of parties, the court has also the prerogative to

render a separate decision concerning a particular party if his

claim has already been terminated when the presentation of

evidence on his claim is finished.

These are decisions that are exceptional, in the sense that we expect a

trial court to make only one judgment in one particular case. It is

unusual for the court to render several decisions involving one

particular case. That is why, even if Rule 36 authorizes the court to

promulgate separate or several decisions, if you will go to Rule 41,

Appeal From The RTCs, in Section 2, it is mentioned that if the

court renders separate or several judgments, although we call

these as judgments, they are not appealable.

These parties will have to wait until the court finally decides the case

in its entirety, unless the court allows the appeal to continue. Usually,

the court does not allow it, because that will lead to a situation where

several appeals emanate from one case, which is also frowned upon

by the SC. There should only be one decision in a particular case, and

there should be one appeal if a party decides to appeal.

This is also the reason why these decisions are sometimes referred to

as interlocutory judgments, because like interlocutory orders they

cannot be appealed by express provision of Rule 41, although they

can be validly rendered by the court.

So if you come across that term in your examinations, interlocutory

judgments, and you find the use of ‘interlocutory’ and ‘judgment’ to

be in conflict with one another, you apply the following view: A

judgment, technically, cannot be interlocutory. It is an adjudication of

the merits. If you characterize a judgment as interlocutory, it is only

to emphasize that the judgment, although it resolves the merits of the

case, cannot be appealed without the permission of the trial judge.

Q: May the plaintiff raise on certiorari under Rule 65 the

granting of a motion to dismiss of one defendant, if there are two

or more of them defendants?

Yes. Since a several judgment is unappealable (unless it is allowed by

the court), under Rule 41 it may be subject to Rule 65.

OTHER KINDS OF JUDGMENTS

Q: What are the different kinds of judgment under the Rules?

1. Judgment based upon a compromise One conferred by the court on the basis of a compromise

agreement entered into between the parties. This is known also as a judgment by consent.

2. Judgment by confession

It is one rendered by the court when a party expressly

agrees to the other party’s claim or acknowledges the

validity of the claim against him. Do not confuse this with

confession of judgment. This is also known as a judgment

relicta verificationem, cognovit actionem, or even cognovit actionem relictu verificetione.

3. Judgment upon the merits

It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case.

4. Clarificatory judgment

It is rendered to clarify an ambiguous judgment or one

difficult to comply with.

5. Judgment nunc pro tunc (lit. now for then)

A judgment intended to enter into the record the acts which

had already been done, but which do not appear in the

records. Its only function is to record some act of the court

which was done at a former time, but which was not then

recorded, in order to make the record speak the truth, without any changes in substance or any material respect.

6. Judgment sin perjuicio (lit. without prejudice)

A judgment without a statement of the facts in support of its conclusion. This is not allowed.

7. Judgment by default

Rendered by the court following a default order or after it received, ex parte, plaintiff’s evidence.

8. Judgment on the pleadings

Proper when an answer fails to tender an issue because of a

general or insufficient denial of the material allegations of

the complaint or when the answer admits the material allegations of the adverse party's pleading.

9. Summary judgment

One granted by the court for the prompt disposition of civil

actions wherein it clearly appears that there are no genuine

issue or controversy as to any material fact.

10. Several judgment

It is one rendered by a court against one or more defendants

and not against all of them, leaving the action to proceed against the others.

11. Separate judgment

It is one rendered disposing of a claim among several

others presented in a case, after a determination of the

issues material to a particular claim and all counterclaims

arising out of the transaction or occurrence which is the subject matter of said claim.

12. Special judgment

One which can only be complied with by the judgment

obligor because of his personal qualifications or

circumstances or one that requires the performance of an

act other than:

a. Payment of money; and

b. Sale of real and personal property.

13. Judgment for specific acts


Applicable in cases of:

a) Conveyance, delivery of deeds, or other specific

acts, vesting title;

b) Sale of real or personal property;

c) Delivery or restitution of real property;

d) Removal of improvements on property subject of

execution; or

e) Delivery of personal property.

14. Judgment on demurrer to evidence

A judgment rendered by the court dismissing a case upon

motion of the defendant, made after plaintiff has rested his

case, on the ground that upon the facts presented by the

plaintiff and the law on the matter, plaintiff has not shown

any right to relief.

15. Conditional judgment

It is one the effectivity of which depends upon the occurrence or non-occurrence of an event.

16. Final judgment

One which disposes of the whole subject matter or

terminates the particular proceedings or action, leaving

nothing to be done by the court but to enforce by execution

what has been determined.

17. Memorandum decision

One in which the appellate court may adopt by reference,

the findings of facts and conclusions of law contained in the decision appealed from. It is found in Rule 51.

DEMURRER TO EVIDENCE IN CIVIL CASES

In a judgment on demurrer to evidence, only the plaintiff presented

evidence. The judgment of dismissal is based on the insufficiency of

evidence to support the claim. This is the only ground.

When the plaintiff rests his case, the defendant, instead of presenting

his evidence, files a Motion for Judgment on Demurrer to Evidence.

The defendant asks the court for an order to dismiss the case based on

the ground that the plaintiff failed to show right of relief, that there is

insufficiency of the plaintiff’s evidence. What the defendant is saying

is that there is no preponderance of evidence to support the plaintiff’s

claim.

The court will have to resolve the motion. The court will either grant

or deny the motion. If the court denies the motion, the court in effect

tells the defendant that the plaintiff’s evidence is adequate. What the

defendant has to do now is not to appeal, because the denial of a

motion for judgment on demurrer to evidence is interlocutory.

No appeal is allowed.

Q: Can the defendant resort to Rule 65 on the ground that the

court has gravely abused its discretion amounting to lack or

excess of jurisdiction?

The defendant can try, but he should prove that there really is grave

abuse of discretion.

Under the Rules, if the defendant’s motion for judgment on demurrer

to evidence is denied, it is the duty of the defendant to present now

his own evidence. So he has two remedies – he may either present his

own evidence, or make use of Rule 65. But remember, Rule 65 may

be used only if there is grave abuse of discretion amounting to lack or

excess of jurisdiction on the part of the court. It cannot be used willy-

nilly, otherwise there will be serious consequences.

Q: Will the defendant present evidence with the motion for

judgment on demurrer to evidence?

No.

Demurrer to Evidence in a Civil and Criminal Case

Remember the rules of demurrer to evidence in civil procedure and

always compare them to demurrer in a criminal case. These topics are

usually involved in Bar Examinations.

In a civil case, if a defendant files a motion for the dismissal of the

complaint based on insufficiency of evidence, and that motion is

denied, what the defendant will do is to go ahead with the trial and

present his evidence. After the defendant has rested, the court will

render the decision. The decision is just an ordinary judgment on the

merits of the case under Rule 36. It is no longer a special type of a

judgment.

But if the trial court grants the motion, it means the court will order

the dismissal of the case. The dismissal is a judgment on the merits of

the case. The winning party is the defendant. The plaintiff can appeal

the dismissal.

Usually, if the trial court is the RTC, it will be brought to the CA. So,

it is brought to the CA. The CA will have to review the case based

solely on the records transferred to it by the RTC. The records will

show that the defendant has not presented any evidence at all. Right

away, the defendant will be at a disadvantage when the case is

reviewed by an appellate court. The court will review only the

evidence presented by the plaintiff. There is a great possibility that

the CA will not agree with the trial court, and will reverse the

dismissal of the case.

If the CA reverses the order of dismissal by demurrer to evidence and

the CA tells the parties that the evidence submitted is adequate, CA

simply render its own decision on the merits of the case, relying

solely on the evidence submitted by the plaintiff.

The defendant cannot ask the CA to present his evidence. It is not

proper since the evidence should have been presented in the trial

court. The CA, as a reviewing court, will only rely on the records

transmitted to it by the RTC.

Q: May the defendant argue that under BP 129, the CA is

expressly authorized to receive evidence?

No. The defendant cannot argue that the CA is authorized to receive

evidence under the provisions of BP 129. Under BP 129, the CA is

allowed to receive evidence if it acts in exercise of its original

jurisdiction, which is not the case in this instance as the CA is acting

under its appellate jurisdiction.


Although BP 129 also confers authority on the CA to receive

evidence even in appeal of cases from lower courts, the conferment

of authority while acting as an appellate court is only on one instance,

only on grant of motion for new trial based on newly-discovered

evidence. It will not apply to demurrer to evidence. The evidence the

defendant will present is hardly NDE as the defendant had these

pieces of evidence during the trial in the RTC. This is why in

demurrer to evidence in civil cases, the defendant waives his right to

present his evidence when the trial court grants his motion and the

case is dismissed but the dismissal is reversed on appeal.

Now we compare this to demurrer to evidence present in a criminal

case.

After the prosecution has rested its case, the accused can also file a

motion for judgment on demurrer to evidence. But there is one

requirement in a criminal case not found in a civil case: the accused

should get leave of court if the accused wants to preserve his right to

present evidence once the motion is denied by the trial court.

If the accused fails to get leave of court before filing the motion, and

the motion is subsequently denied, then the accused has waived his

right to present his evidence in the trial court. The trial court will not

allow the accused to present his evidence, and the next phase will be

a judgment of conviction, meaning that the evidence presented by the

prosecution is adequate to convict the accused, that the evidence has

met the quantum of evidence, i.e., proof beyond reasonable doubt. No

leave of court is required in demurrer to evidence in civil cases.

In a criminal case, demurrer to evidence can be initiated either by the

accused or the court itself motu propio. The idea of demurrer to

evidence can come from the court. So if the prosecution has rested,

the court can suggest to the accused to file a motion for judgment on

demurrer to evidence. If the idea comes from the court, the accused

should file because it is the court that already encourages you to file

the motion. That means to say, even to the court, the prosecution’s

evidence failed to meet the quantum of evidence required to convict

the accused. In a civil case, the court cannot initiate the idea to have

demurrer to evidence. It should come from the mind of the defendant

himself.

In a criminal case, if the demurrer to evidence is granted by the court,

the information will be dismissed and the dismissal is tantamount to

acquittal of the accused. The prosecution may no longer appeal, nor

Rule 65 availing, because double jeopardy has set in.

Take note, to clarify, there can be no appeal as to the dismissal of the

information, but there can be an appeal as to the civil aspect of the

criminal case. In a criminal case, if the trial court dismissed the civil

aspect, the plaintiff may appeal the dismissal as a general rule.

JUDGMENT ON THE PLEADINGS

Q: When is there a judgment based on pleadings?

Where an answer fails to tender an issue, or otherwise admits the

material allegations of the adverse party’s pleading, the court may, on

motion of that party, direct judgment on such pleading.

For example, if the defendant answered in this wise, ‘I admit I owe

the plaintiff. I admit I have not paid him,’ it is clear that there is no

issue. The defendant admits the allegations in the complaint.

Another example, if the defendant answered: ‘I deny that I owe the

plaintiff the loan alleged to have been obtained by me. I deny the fact

that I am liable to pay any obligation in favor of the plaintiff.’ There

is still judicial admission and therefore no probanda because these are

general, not specific, denials. The denial must be specific or else it is

not a denial at all.

Q: What if the defendant did not answer?

If the defendant did not answer, judgment based on the pleadings is

not proper. The appropriate judgment, upon proper prior process such

as a motion to declare the defendant in default, should be a judgment

by default.

Q: May the initiative to render this kind of judgment be done

motu proprio?

No. The judgment must be on motion of the claimant. It cannot be

rendered by the court motu propio.

Q: What are cases where judgment based on pleadings will not

apply?

A:

1. Actions for the declaration of nullity of a marriage

2. Actions for annulment of marriage 3. Actions for legal separation

In the above cases, the material facts alleged in the complaint shall

always be proved

Q: The defendant filed a motion for judgment of the pleadings,

although the answer has no counterclaim. What will be the effect

thereof?

SC held that if the movant defendant is asking for judgment on the

pleadings, the defendant is deemed to be admitting all the allegations

in the complaint.

In judgment on the pleadings, there is an answer filed by the

defendant. The answer, however, either admits the allegations in the

complaint; or, even if the answer in form denies the allegations in the

complaint, the denial is not specific as required in the Rules. We are

made familiar again with the principle that when a general denial is

made, that is deemed to be an admission, which is the reason why a

court need not conduct a pre-trial nor a trial.

If the plaintiff receives a copy of the answer which does not set up

any defenses at all, but instead admits all the allegations in the

complaint, what the plaintiff needs to do is to file a motion for a



In other words, if we follow the inherent nature of a judgment of the

pleadings, the movant should be the plaintiff in a complaint or a

permissive counterclaim or cross-claim. There should be a motion

initiated by the plaintiff asking the court for a judgment on the

pleadings.

Q: Is there any prohibition against the defendant who has filed

an answer to also move for judgment on the pleadings?

There is really nothing said in the Rules that prohibit a defendant,

upon filing of his answer, to file a motion for a judgment on the

pleadings. But it seems to be a crazy idea for the defendant himself to

move for a judgment on the pleadings.

In a case brought to the SC where it was the defendant himself who

moved for a judgment on the pleadings, although the answer was

purely an answer without any counterclaim, cross-claim or third party

complaint, but containing several meritorious defenses, the SC ruled

that if a defendant is a movant for a judgment on the pleadings, the

defendant is deemed to have admitted the allegations contained in the

complaint. So it is very risky for a defendant to be a movant for a

judgment on the pleadings. Even if his answer is properly crafted,

even if there is a specific denial, if it was the defendant that filed a

motion for a judgment on the pleadings, the defendant will be

considered to have admitted all the allegations in the complaint. So,

the court will render a judgment in favor of the plaintiff.

A judgment on the pleadings is also a judgment on the merits. It

should comply with the essentials of a valid judgment under Rule 36.

Q: What if the defendant filed a Motion to Dismiss but his

defenses are defect in the certificate of non-forum shopping, no

legal to capacity to sue, and fortuitous event? Is judgment on the

pleadings proper?

Dean Albano: Yes. The defendant admitted having entered into a

contract and that it was still unpaid. His answer fails to tender an

issue or otherwise admits the material allegation of the adverse

party’s pleading (citing Asian Construction and Dev. Corp. v.

Sannaedle Co., Ltd.).

SUMMARY JUDGMENTS

Q: What is a summary judgment?

A summary judgment or accelerated judgment is a procedural

technique to promptly dispose of cases where the facts appear

undisputed and certain from the pleadings, depositions, admissions

and affidavits on record, of for weeding out sham claims or defenses

at an early stage of the litigation to avoid the expense and loss of time

involved in a trial. Its object is to separate what is formal or

pretended denial or averment from what is genuine and substantial so

that only the latter may subject a party-in-interest to the burden of

trial. Moreover, said summary judgment must be premised on the

absence of any other triable genuine issues of fact. Otherwise, the

movants cannot be allowed to obtain immediate relief. A genuine

issue is such issue of fact which requires presentation of evidence as

distinguished from a sham, fictitious, contrived or false claim.

Q: What are the requisites of summary judgments?

1. There must be no genuine issue as to any material fact,

except for the amount of damages; and

2. The party presenting the motion for summary judgment

must be entitled to a judgment as a matter of law.

Q: When is a claimant allowed to file for summary judgment?

A party seeking to recover upon a claim, counterclaim, or cross-claim

or to obtain a declaratory relief may, at any time after the pleading in

answer thereto has been served, move with supporting affidavits,

depositions or admissions for a summary judgment in his favor upon

all or any part thereof.

Q: When is a defendant allowed to file for summary judgment?

A party against whom a claim, counterclaim, or cross-claim is

asserted or a declaratory relief is sought may, at any time, move with

supporting affidavits, depositions or admissions for a summary

judgment in his favor as to all or any part thereof.

Q: There is a difference between the claimant and the defendant

in summary judgment because the defendant may move for

summary judgment ‘at any time.’ Since a summary judgment

assumes that there is an issue, albeit not genuine, what could be

the issue if there is yet no answer?

If you take a look at Section 11, Rule 8, unliquidated damages shall

not be deemed admitted even if not specifically denied. Therefore,

even if there is no answer, unliquidated damages is automatically an

issue and may be subject to summary judgment.

Q: What is the difference between a judgment on the pleadings

and a summary judgment?

If you compare the provisions of a judgment on the pleadings to that

of a summary judgment as contained in Rule 34, we will immediately

notice that there is a section which talks about a summary judgment

by plaintiff and a summary judgment by defendant. Unlike in

judgment on the pleadings, where we expect the movant to be a

plaintiff, in a summary judgment, the law gives either parties the

option to file a motion for summary judgment. These motions are

expressly recognized in the rules.

In a summary judgment, unlike a judgment on the pleadings, the

court will conduct a summary hearing. In judgment on the pleadings,

the court will not conduct a hearing at all, as the court will simply

rely on the contents of the complaint and the answer. Since there is an

issue raised by the defendant in summary judgment, the court will

need to conduct a summary hearing in order to determine whether

that is a sham issue or a genuine issue. There is need by the parties to

present evidence in order to support their respective issues. The

parties could present affidavits, depositions, or any other document

that the parties may present. What the court will not allow is a full-

blown hearing on the matter as to whether the issue is genuine or not.

This issue will have to be proven only by documentary evidence,

affidavits or evidence taken under modes of discovery.

Q: Why will the court render a summary judgment?

The court will not conduct a full blown trial envisioned in Rule 30. In

a summary judgment designed not to conduct full-blown trial,


according to jurisprudence, there is an issue in the answer submitted

by the defendant, but it turns out to be a sham issue. Therefore, there

is no need for the court to conduct a full-blown trial on a sham issue.

Whether or not the issue is genuine will depend upon the

circumstances of the case.

An example of a summary judgment rendered by a court is where the

court found that the issue is not really genuine although there is really

an issue raised in the answer.

A complaint was filed by the plaintiff for an unpaid loan. The

complaint carried with it an actionable document attached to the

complaint, a printed promissory note. The promissory note contained

a blank as to the date of the maturity of the loan, which was

unfortunately not accomplished. So, the promissory note is

indeterminate as to the date of maturity. The defendant filed an

answer and set up the defense that the filing of the complaint was

premature because the debt has not matured, and the defendant

pointed out that the blank wherein the date of maturity was supposed

to be indicated has no entry. The defendant interposed that the court

should first fix the maturity date of the complaint before the plaintiff

can file a complaint for recovery of the loan. The plaintiff filed a

motion for summary judgment. And the court agreed with the

plaintiff that the defense set up by the defendant, that the maturity of

the loan has not yet happened, is really a sham issue, as the issue is in

conflict with the provisions of substantive law. The SC said that if

there is a promissory note without a date fixed as to maturity, that is

a note payable on demand, as provided in the NCC. If there is already

a demand made by the creditor, and the debtor failed to comply with

that demand, it means there is already a breach of the obligation by

the debtor.

Q: What if the court rendered a judgment based on the pleadings

when what was in the motion was for a summary judgment?

SC held that whether it is called a summary judgment or judgment on

the pleadings, it does not really matter at all, as there is adjudication

on the merits. The error was purely formal. SC said that the error in

the determination whether the judgment was a summary judgment or

a judgment on the pleadings will not prejudice the defendant, and

therefore cannot be declared as void. After all, it is a judgment that

complies with the requirements of Rule 36. There is a determination

of the rights and obligations of the parties involved in the cause of

action.

Partial Summary Judgment

There is a summary judgment that is similar to separate judgment and

several judgments insofar that it is interlocutory. If you read the Rule

on summary judgment, there is such a thing as partial summary

judgment. If the summary judgment is a partial summary judgment, it

is interlocutory because it does not dispose of the case completely. It

disposes only of the issue that was raised before the court. It cannot

be appealed.

Q: Are summary judgments available in real actions?

Yes. The SC has abandoned the old doctrine that summary judgments

cannot be available in actions for recovery of property. The SC has

decided in several cases which affirmed the availability of summary

judgments involving recovery of title to or possession of real

property. It is available in real or personal civil actions as long as the

requisite that the issue is not a genuine issue is present.

JUDGMENT BASED ON A COMPROMISE

Aside from the special kinds of judgments provided for in the Rules,

there is a special kind of judgment provided for in the NCC. There

are several provisions in the NCC which encourage the parties to

enter into an amicable settlement or compromise. The NCC considers

a compromise as a contract between the parties, and therefore, if the

parties entered into a contract where they signed a compromise

agreement, they do not have to submit that agreement to a court for

approval.

According to the SC, if there is a compromise agreement signed by

the parties, since that is a contract, then that is the law binding

between the parties (mutuality of contracts). There is no need for

court approval to validate the compromise agreement. For purposes

of validity, we follow the provisions of the NCC. It will be treated

like any other contract. As long as the parties give their consent

freely, i.e., their consent is not vitiated, and their signatures appear in

the agreement, then that will be the contract between them,that will

be the law between the parties.

There is a case for recovery of P2M loan filed by the creditor

against the debtor. They both agreed to settle their differences.

They signed a compromise agreement to the effect that the debtor

fully recognizes his obligation to the creditor, but they converted

the payment of the loan to that of payment in installments while

fixing the amount of installments at the same time. They did not

submit the compromise agreement for court approval but instead

moved for the dismissal of the case, which the court complied.

The debtor subsequently commits a breach in the payment of

installments.

Q: After the breach, can the creditor go back to the court and ask

for revival of the case?

No.

Q: Can the creditor file a new case for collection against the

debtor for recovery of the installment or of the whole account if

in case there is an acceleration clause?

Yes. It is not barred, as the cause of action of the creditor is now

different from the previous case filed. His claim is now based on a

compromise agreement, not a loan.

In order to enforce payment as provided in the written compromise

agreement, the creditor has to file a complaint against the defendant

debtor. They will have to undergo the same process when the first

case was filed concerning the loan. But this is a case of a compromise

agreement which does not carry with it the approval of the court.

The opposite is when there is a compromise agreement signed by the

parties, but this time, the parties do not jointly move for the dismissal

of the complaint, but instead submitted the compromise agreement to


the court for approval. The court renders what we call as a decision

based on a compromise agreement. If the debtor commits a breach in

the payment as agreed upon, what the creditor can do is to simply file

a motion for execution in the court. The judgment based upon a

compromise is a judgment on the merits. And under the NCC, a

judgment based upon a compromise is immediately executory. There

is no appeal.

Q: May the court cite the party in contempt if he does not comply

with the writ of execution of the judgment based on a

compromise?

Dean Albano: Yes (citing Gadrinab v. Salamanca).

Q: Does it mean to say that a party of a compromise agreement

has no recourse at all to challenge the validity of the judgment

based upon a compromise agreement?

There is a remedy under Sec. 1 Rule 41. The defendant may file a

motion to set aside the compromise agreement based on the ground

of vitiated consent. That is the remedy in order a judgment based

upon a compromise.

Remember, this is not an appeal. This is a motion to the trial court to

set aside the compromise agreement. It is still the trial court that will

hear the motion.

Q: Supposing the court does not set aside the judgment

notwithstanding the motion, can the defendant appeal?

No. Under the Rules, an order denying the motion is in the nature of

an interlocutory order which is inappealable.

Q: What is the remedy in cases where appeal is not allowed?

As a general rule, where the judgment or final order is not appealable,

the aggrieved party may file the appropriate special civil action under

Rule 65.

There is a remedy under the Rules of Court to assail an order denying

the motion to set aside the judgment under a compromise. It is Rule

65.

The aggrieved party may not avail of Rule 65 directly if there is a

judgment based on compromise. He has to first move to set aside the

compromise agreement based on vitiation of consent. If that motion

is denied, he may now make use of Rule 65, but only if he can prove

the court gravely abused its discretion amounting to lack or excess of

jurisdiction.

The same remedies are also available for a judgment by confession or

a judgment by consent.

Q: Why is appeal not allowed?

Appeal is not allowed because a judgment based on compromise is

final and executory. It is in the NCC. A compromise agreement is

always final and executory and has the effect of res judicata.

Q: May judgment be subject to a compromise agreement?

Yes. The parties can always change a decision rendered by a court of

justice, even if that decision has become final and executory by the

simple expedient of entering into a compromise agreement.

If, for example, the judgment rendered in favor of the plaintiff was

for P1M, but both the plaintiff and defendant agreed to decrease it to

P700K, the compromise agreement is valid even if the judgment for

P1M has become final and executory. The judgment was novated by

agreement of the parties.

Q: What if the judgment was rendered by the SC?

The same rule applies even if the judgment was rendered by the SC,

the highest court of the land.

REMEDIES TO ASSAIL A JUDGMENT

Q: What are the available remedies to the aggrieved party after

rendition of judgment?

The remedies against a judgment may refer to those remedies before

a judgment becomes final and executory and those remedies after the

same becomes executory.

1. Before a judgment becomes final and executory, the aggrieved

party may avail of the following remedies:

a. Motion for Reconsideration;

b. Motion for New Trial; and

c. Appeal

2. After the judgment becomes executory, the losing party may avail

of the following:

a. Petition for relief from judgment;

b. Action to annul judgment;

c. Certiorari under Rule 65; and

d. Collateral attack of a judgment.

Compare the remedies available to a party in a civil case to that in a

criminal case. The consequences of availing a remedy in a civil case

might be different in criminal cases. Also, there are remedies which

are applicable in civil cases which might not be applicable in a

criminal case.

For comparison, these are the remedies in a criminal case.

1. Before the judgment of conviction becomes final:

a. Motion for New Trial

b. Motion for Reconsideration

c. Appeal d. Reopening of a case due to NDE


2. After the judgment of conviction becomes final:

a. Habeas Corpus

b. Petition for Certiorari under Rule 65 in exercise of judiciary under its equity jurisdiction

Reopening of a Civil Case

Q: Is reopening available in civil cases?

Reopening is also available in civil cases but before the judgment is

rendered. If judgment is rendered, it is not available in a civil case.

Jurisprudence requires that no judgment has yet been handed down

by the court. The termination of the trial starts the period to move for

this remedy. As long as the judgment has not been rendered, any

party can move for reopening of the case.

Q: What are the grounds for reopening of civil cases?

There are no grounds given in the Rules of Court. It is not expressly

recognized, reopening is just an accepted remedy in jurisprudence. It

is a remedy availed of after trial has ended but before the judgment is

rendered.

Q: What is the purpose of reopening a case?

It is allowed in the interest of justice. It allows the movant to offer in

evidence those that he may have forgotten to present during the trial,

or additional evidence as the case may be.

Q: When should there be reopening in civil cases?

It is available before the court renders a decision or a final order. So

it occurs between the time when the parties have submitted their

evidence and the time when the court renders the decision.

Q: Is it really a product of jurisprudence?

It may be a product of jurisprudence, but it seems it is now expressly

recognized by the Rules. If you take a look at summary procedure or

small claims proceedings, one of the prohibited motions is reopening

of a case. That means to say that even in civil cases, reopening is

recognized as a remedy.

Q: How about reopening in criminal cases?

It is expressly allowed in the Rules. Under criminal procedure, the

court can reopen the case even if the accused has been convicted so

long as the judgment of conviction has not become final. So it may

not be accurate to consider entirely reopening as a product only from

jurisprudence.

Q: Is reopening allowed in special proceedings?

Yes. For example, in settlement of the estate, even if the proceedings

have been closed, if certain properties have been left out or if certain

heirs have been deprived in the proceedings, they can still ask for the

proceeding to be reopened. They cannot file a separate proceeding for

another settlement because this is prohibited by law. There could be

only one settlement court.

Q: Is an action to annul judgments available in criminal cases?

No. If the convict feels that his detention, although supported by a

judgment of final conviction, is unlawful, the remedy he may avail of

is Habeas Corpus, not a petition to annul judgment. The SC has made

this very clear. Rule 47 applies only to a civil case. It cannot apply to

a criminal case. The equivalent remedy in a criminal case is a petition

for habeas corpus. The SC in the exercise of its equity jurisdiction

cold also entertain a Petition for Certiorari under Rule 65 even if the

judgment of conviction has become final and executory

Q: May a petition for certiorari under Rule 65 be entertained

even if the judgment of conviction has long been final?

It can be had when the petition is applied in order for the judiciary to

rectify a wrong under its equity jurisdiction. A situation that calls for

a special remedy will always be answered by a petition for certiorari.

Certiorari is a remedy in both a civil or criminal case in order to

challenge a final and executory judgment if the situation calls for the

SC to exercise its equity jurisdiction. That is why in the enumeration

of remedies, in either criminal or civil case, we include certiorari

under Rule 65.

NEW TRIAL OR RECONSIDERATION

Q: What is a pro forma motion?

A: A pro forma motion is one which does not satisfy the requirements

of the rules and one which will be treated as a motion intended to

delay the proceedings.

In Rule 37, for civil cases, a motion for new trial or reconsideration

must strictly comply with the requirements of a motion so that such

motion will not fall under the concept of a pro-forma motion.

Pro forma motion for reconsideration in civil cases is almost always

denied. A pro forma motion for reconsideration does not suspend the

running of the reglementary period to appeal, and if the denial of the

motion comes after the expiration of the period to file an appeal,

entry of judgment takes place by operation of law under Rule 36.

Upon entry of judgment, the losing party loses the remedy of appeal

and is left only with the after-judgment remedies of petition for relief

from judgment, annulment from judgment or a petition for certiorari

under Rule 65.

Take note that in criminal procedure, nothing is mentioned about a

pro forma motion for new trial or reconsideration. The court cannot

simply discard the motion for new trial or reconsideration for non-

compliance even if the motion does not comply with the requirements

of a motion. The motion for reconsideration or new trial will always

stop the running of the period to appeal. The idea for the accused to

file motion for new trial or reconsideration could come from the

court. The court can even initiate a new trial or reconsideration as

long as the accused gives his consent.

Q: Who initiates a motion for new trial or reconsideration?

A motion for new trial or motion for reconsideration in civil cases is

always initiated by the losing party.

Q: What are the grounds for a motion for new trial or

reconsideration?


The grounds for motion for new trial are completely different from

grounds for a motion for reconsideration. These motions are distinct

and different from one another.

Under a Motion for New Trial:

1. Extrinsic fraud, accident, mistake or excusable negligence

(FAME) which ordinary prudence could not have guarded

against and by reason of which the rights of the aggrieved

party was impaired; or

2. Newly discovered evidence, which could not with

reasonable diligence, have been discovered and produced at

the trial, and which if presented, would probably alter the

result.

Under a Motion for Reconsideration:

1. The damages awarded are excessive;

2. The evidence is insufficient to satisfy the decision or final

order; or 3. The decision or final order is contrary to law.

Q: Let us say a losing defendant/accused is advised by his counsel

that they have three remedies while the period of appeal was

running, namely, motion for reconsideration, motion for new

trial and appeal. The defendant/accused told the counsel to avail

of all three. Thus, the counsel filed a motion for new trial, a

motion for reconsideration and lastly, an appeal. The trial court

received all three. The appeal was duly perfected. What remedy

will the court entertain?

SC held that if the aggrieved party files or perfects an appeal during

the pendency of his motions for new trial and reconsideration, the

motions shall be deemed abandoned.

It is really inconsistent for an aggrieved party to file a motion for new

trial or reconsideration, and while waiting for the resolution of his

motion, perfects an appeal. It will render the motions academic. The

court, upon perfection of the appeal and upon payment of the docket

fee, will lose jurisdiction over the case, and what will remain with the

court is residual jurisdiction.

Q: The winning party, after receiving a copy of the decision,

moved for execution pending appeal. It is a matter of discretion

to the court founded on special circumstances. The losing party

filed a motion for new trial while the former motion was pending.

Can the court grant the motion for execution pending appeal?

No. The trial court should resolve the motion for new trial first before

the motion pending appeal is resolved, even if the motion pending

execution is for special reasons. Motion for reconsideration or motion

for new trial of the aggrieved party should be given preference over

any other motion by the prevailing party.

Fraud, Accident, Mistake, and Excusable Negligence (FAME)

If a motion for new trial is based on FAME, it must be accompanied

by an affidavit of merit. The affidavit should be executed by persons

with personal knowledge surrounding the circumstances of FAMN.

It is not correct to say that in a motion for new trial, we always need

an affidavit of merit. We need affidavit of merit only if the ground

relied upon is FAME. Motion for new trial on ground of NDE will

not need an affidavit of merit, merely the affidavit of the new witness

who will give testimony, or an authentic copy of document or object

evidence to be presented.

Extrinsic Fraud

The principle in new trial in the case of fraud, the fraud committed

must always be extrinsic fraud. It cannot be intrinsic fraud. If the

fraud alleged in the motion is intrinsic, the motion will be denied.

Rule 37 gives us a good basis for making a distinction between these

two kinds of frauds. There are two clauses to justify extrinsic fraud as

a ground for new trial compared to extrinsic fraud: “which ordinary

prudence could not have guarded against” and “by reason of which

such aggrieved party has probably been impaired in his rights.”

If we rely solely on Rule 37, the court has allowed lawyers to ‘cheat’

one another, so long as ‘cheating’ is limited only to intrinsic fraud,

which could be prevented through the use of ordinary diligence.

For instance, the plaintiff wins the case because his cause of action is

supported by a document showing his title to recover from the

defendant. But later on, the aggrieved party is able to prove that the

document presented by the plaintiff, and which is the basis for the

judgment in his favor, is a forged document. Forging a document is a

crime. But in a trial, the admission of a forged document will not be a

ground for a new trial, or even as NDE. This is because the

presentation of a forged document by the plaintiff could easily be

avoided by the defendant through the exercise of ordinary diligence.

If confronted with such document, and the defendant is not sure as to

its authenticity, the defendant could have called upon witnesses, such

as an expert witness, to prove that such document was forged. His

failure to do so is a waiver of this fact.

Another instance of ‘cheating’ in trial which the SC did not consider

as extrinsic is when the prevailing party presented witnesses who had

perjured. But if the aggrieved party relies solely on the allegation that

all the witnesses presented by the party all committed perjury, that is

not a ground for new trial, that is only intrinsic fraud. The aggrieved

party should also have ‘cheated,’ he should also have been dishonest.

If the plaintiff presented two perjured witnesses, the defendant should

have called five. So the message given with respect to extrinsic and

intrinsic fraud is that litigants, through their lawyers, can be dishonest

during the course of litigation. But they should see to it that their

‘cheating’ will not amount to extrinsic fraud. They must not deprive

the other party of his day in court, that the other party will have the

opportunity to present his side in court.

That is the life of a lawyer, he is encouraged to be dishonest, he

should be deceptive in his relationship with others lawyers. Anyway,

lawyers will not go to heaven, it is a fact. It is found in the Bible. But

that is only a part of a passage in the Bible. The additional passage is

that lawyers do not go to hell. But that does not make the life of a

lawyer less worthwhile. If a lawyer cannot go to heaven or to hell,

where will the lawyer go after death? The implication is that a lawyer

does not have a soul.


That is how the SC looks at the situation. In fact the SC in several

cases said we should expect dishonesty in the course of litigation. We

cannot avoid that. SC said that if they allow every act of dishonesty

to be a ground for new trial, there will never be an end to a litigation,

because a lawyer will always be able to point out to the court certain

acts of dishonesty or ‘cheating’ in a motion for new trial.

Mistake

The mistake of a lawyer is the mistake of the client. If the aggrieved

party lost the case due to a mistake of the lawyer, and the party fires

his lawyer and gets a new one, the new lawyer cannot capitalize on

the mistake committed by the former lawyer. We must apply the rule

on agency. The act of the agent is the act of the principal.

There is, however, one situation where the SC relaxed the application

of this principle. The SC said that while it is true the mistake of the

lawyer will always be considered the mistake of the client, but if the

mistake of the lawyer was tantamount to bad faith, i.e., the lawyer

deliberately caused the loss of the case, then that is a ground for new

trial. The client’s rights should be protected in this situation.

Excusable Negligence

The negligence must be so gross that ordinary diligence and prudence

could not have guarded against it. This excusable negligence must

also be imputable to the party-litigant and not to his or her counsel

whose negligence binds his or her client.

Newly Discovered Evidence

This is an adaptation of an American principle called the Berry Rule:

“Newly discovered evidence, which he could not, with reasonable

diligence, have discovered and produced at the trial, and which if

presented would probably alter the result.”

Q: What are the requisites of newly discovered evidence as a

ground for New Trial?

1. The evidence was discovered after trial;

2. Such evidence could not have been discovered and

produced at the trial with reasonable diligence; and

3. Such evidence is material, not merely cumulative,

corroborative or impeaching, and is of such weight that if admitted would probably change the judgment.

The requirements state we cannot consider cumulative, corroborative

or impeaching evidence as NDE, as these cannot alter the result of

the case. The recantation of a witness is not NDE. In fact, the SC has

been emphatic in its ruling continuously that if a witness recants, the

recantation should not even be given any attention at all. If we give

attention to the recantation of a witness, you can expect lawyers to

produce recantations by witnesses who already testified in court. So,

the stand of the court is that the testimony of a witness given in open

court reflects the truth, not the recantation. The recantation shall not

be treated as NDE.

Q: What is forgotten evidence?

If evidence was already available to a party and he was not able to

present it through inadvertence or negligence of his counsel, that

evidence will not be considered as newly-discovered evidence. It will

simply fall within that concept of forgotten evidence, which is not a

ground for new trial.

Compare: Motion for New Trial and Reconsideration

There is a rule allowing only one motion for reconsideration by the

same party, either prevailing or aggrieved party. If that is denied, a

second motion for reconsideration will not be allowed, even if that

second motion for reconsideration is found on a different ground. The

rule against the filing of a second motion for reconsideration is

almost absolute.

Unlike a motion for new trial, the Rule allows a party to file a second

motion for new trial if found on a ground different from the one used

in the first motion for new trial.

But whether it is a motion for new trial or motion for reconsideration,

there is another rule contained in other provisions where the court

will not allow an extension of time to file motion for new trial or

reconsideration. The party must observe the 15/30-day period.

Q: What is the effect if the motion for reconsideration or new

trial is granted?

If the motion for reconsideration is favorably acted upon, the court

will simply render an amended judgment. If the court feels that the

judgment is contrary to law or the evidence does not fully support the

judgment, the motion for reconsideration should be granted to reduce

the liability of the aggrieved party, but the court will only amend the

previous judgment in order to reduce such liability.

If the motion for new trial in a civil case is granted, and such is not a

partial motion for new trial, the judgment will be vacated. But the

evidence presented during the trial will not be disturbed. There is no

need for the witnesses who had testified in the trial to give their

testimony again.

If the motion for new trial granted was that in a criminal case, the

judgment will also be vacated, and all evidence taken during the trial

need to be retaken and witnesses who testified will be recalled. The

grounds for new trial in a criminal case are serious irregularities or

errors committed by the trial court, not FAME. Even if the evidence

taken in court will not be retaken, there will be a recalling of the

witnesses who had testified during the trial.

Q: What is the remedy of the aggrieved party if his motion for

new trial or reconsideration is denied?

Under Rule 37, it is clearly provided that if a motion for new trial or

reconsideration is denied, the denial cannot be appealed or be subject

to Rule 65. What is to be appealed is the judgment rendered on the

merits, not the order of denial. Note that Rule 65 is now unavailing in

the amended Rules in Rule 41.

The only remedy is an appeal from the judgment on the merits that is

subject of the denied motion of new trial or reconsideration. SC said

that in appealing the judgment, the aggrieved party can assign as an

error the denial of the trial court of the motion for new trial or motion

for reconsideration. But he is no longer allowed to file a petition

under Rule 65 to challenge the denial of the motion and appeal at the


same time, which was allowed prior to the amendment of Section1 of

Rule 41.

Q: Are there instances where a motion for new trial or

reconsideration is not allowed?

Yes. For example, it is not allowed in summary procedure and small

claims proceedings. It is a prohibited motion.

It is, however, allowed if the aggrieved party in summary procedure

appealed the case to the RTC and from there filed a motion for new

trial or reconsideration against the decision of the RTC. Since RTC is

not governed by summary procedure, the enumeration of prohibited

pleadings and motions in the circular does not apply to that court.

Dean Albano: You should take note of De Leon v. Hercules Agro

Industrial Corp. The SC held that the period to file a motion for

reconsideration is non-extendible, and a motion for extension of time

to file a motion for reconsideration does not toll the reglementary

period to appeal.

RELIEF FROM JUDGMENT

Under the Rules, a motion for relief from judgment should be filed

within these two periods:

sixty (60) days from receipt of copy of judgment or notice

thereof; and

six (6) months from entry of judgment.

Q: What if the lawyer for the aggrieved party files a motion for

relief from judgment based on FAME when judgment has not yet

been entered? Will the motion be dismissed?

There was one case when the aggrieved party, before entry, filed

before the trial court a petition for relief from judgment founded on

FAME. The filing of the petition was irregular because the judgment

has not yet been entered. SC held that the trial court should not have

simply denied and dismissed the motion. What the trial court

should have done was to treat the motion for relief from

judgment as a motion for new trial, because the grounds of both

motions are similar. Even if the lawyer commits an error, and files a

petition for relief from judgment before the judgment was entered,

the court will consider the petition for relief as a motion for new trial,

provided that the petition will carry with it the requirements needed

under Rule 37, i.e., an affidavit of merit that will prove the presence

of FAME. The SC has taken a liberal attitude on this kind of error by

a lawyer. The court will ignore the error and just have to rule on the

merits of that motion.

Q: Is a petition for relief considered as one that is similar to that

of an annulment of judgment?

It is not so. A petition for relief is not an independent action. In fact,

it is just a continuation of the original case. If we consider petition for

relief a separate action from the original case, a petition for relief

should be filed before an RTC because it is incapable of pecuniary

estimation. But since it is not so, Rule 38 provides that it should be

filed in the same court which issued the judgment deciding the case.

So if the court that decided the case is an MTC, a petition for relief

could be filed in the same court. If the respondent of a petition for

relief challenged the jurisdiction of an MTC in deciding the petition

for relief on the ground that such petition is incapable of pecuniary

estimation, the reply to that argument is that a petition for relief is

just a continuation of the original case, not an independent and

separate action. Note that the old docket number is used in the title of

the case in a petition for relief. We also do not pay docket fees.

What is important is the timeframe in which to file a petition for

relief from judgment. The SC has been very strict. Time to file should

be observed. SC has been very strict with the time frame because the

judgment has been entered and has therefore become final and

executory. There is the likelihood that the winning party may already

file a motion for execution under Rule 39 as a matter of right.

Q: It could happen that the aggrieved party filed a petition for

relief from judgment and the prevailing party also files a motion

for execution of the judgment. Should the court grant the motion

for execution?

Yes. The court has a ministerial duty to execute the judgment once

the judgment has been entered and has become final and executory.

Motion to execute should be granted once made. The prevailing party

has the right to have the judgment in his favor enforced.

Q: If the court grants the motion for execution of judgment

because it is a matter of right on the part of the prevailing party,

will it not render academic the relief from judgment filed by the

aggrieved party?

The petition for relief will not be moot and academic simply because

of the granting a motion for execution as a matter of right. Rule 38

says that the executing court that granted motion for execution and

subsequently entertained a petition for relief from judgment can issue

a TRO or a preliminary injunction order to stop the enforcement of

the writ of execution.

You might say that in the rule on injunction, an injunctive relief

should be granted by a court higher than the court which rendered the

decision. In this case the court which decided the case and then

subsequently granted the motion for execution of its judgment

shall also issue the injunctive relief against the carrying out of the

writ of execution. That is one of the peculiarities of Rule 38. The

court which grants the execution of its judgment, as it really has no

choice as it is a matter of right, is the same court which will issue an

injunctive relief against the writ of execution it has previously issued.

If there is no injunctive relief issued by the said court, its decision

will be carried out until fully satisfied. This is an exception to the

principle in injunction where the injunctive relief should come from a

higher court. Here, the same court which decided the case shall be the

one who will issue an injunctive relief against its own officer from

executing the writ of execution the court has previously issued. That

is allowed in Rule 38.

Q: If the petition for relief is granted, can the prevailing party

appeal the order?

No. The order granting relief is interlocutory, hence unappealable.


Q: If a petition for relief is denied, the order denying petition for

relief is a final order. Can it be appealed? If not, what is the

remedy?

No, it is a final order which is unappealable under Section 1 of Rule

41. The remedy of the aggrieved party is to file a petition under Rule

65, a petition for certiorari or prohibition as the case may be.

Q: Is Rule 38 an extraordinary remedy?

It depends on how you define an extraordinary remedy.

If you limit the definition of an extraordinary remedy to any remedy

that violates the doctrine of immutability of judgments, then, yes, it is

an extraordinary remedy. Rule 38 may disturb judgments even if they

are already final and executory.

Now, if you limit the definition of an extraordinary remedy to any

remedy which is not a mode of appeal, then Rule 38 is not an

extraordinary remedy.

A petition for relief from judgment is not an independent action. It is

always a continuation of the old case. If the decision was rendered by

the MTC, the petition for relief should be filed with the MTC. It even

uses the same docket number used by the court in deciding the case.

Furthermore, there is no issuance of summons under Rule 38. If the

trial court finds the petition to be sufficient in form and substance, the

court may issue an order directing the respondent to file a comment.

It will not issue summons. The respondent who fails or refuses to

comment will not be declared in default. The court will simply

proceed with the hearing of the motion.

APPEAL

Appeal can be a matter of right or a matter of discretion.

Q: What is the remedy if the motion for new trial or

reconsideration is denied?

A: The remedy is to appeal from the judgment or final order itself

subject of the motion for reconsideration or new trial. The movant

has a fresh period of fifteen days from receipt or notice of the order

denying or dismissing the motion for reconsideration within which to

file a notice of appeal. It is no longer assailable by certiorari.

This fresh period rule, also known as the Neypes ruling, is derived

from Neypes v. Court of Appeals.

Read: Neypes v. Court of Appeals

Q: When does the fresh period rule apply?

A: It applies to:

1. Rule 40 – Appeals from MTC to RTC

2. Rule 41 – Appeals to RTC

3. Rule 42 – Petition for Review from RTC to CA

4. Rule 43 – Appeals from quasi-judicial agencies to CA 5. Rule 45 – Appeals by certiorari to the SC

The “fresh period rule” does not refer to the period within which to

appeal from the order denying the motion for reconsideration, but the

period within which to appeal from the judgment itself because an

order denying a motion for reconsideration is not appealable.

The last paragraph is really important. Read it again.

Q: Will the fresh period apply to a motion to dismiss under Rule

16 and a motion for a bill of particulars under Rule 11?

No. These periods will interrupt the period to file an answer but will

not grant a fresh period of 15/30/60 days as the case may be if denied

by the court. If these motions are denied, the defendant is given the

remaining period within which to respond or file an answer, but this

remaining period should not be less than five days.

Q: What does appeal as a matter of right mean?

It means when he has perfected the appeal within the period to do so,

the appellate court has no other choice but entertain the appeal,

review the decision and render its own decision.

Q: What does appeal as a matter of discretion mean?

When we say that appeal is a matter of discretion, the appellate court

will determine whether the appeal should be entertained or not. If that

discretion is given to the appellate court, it simply denies to the party

the right to appeal to that court.

In civil cases, there are three modes of appeal given under Rule 41:

Ordinary appeal

Petition for Review in the CA

Petition for Review on Certiorari under Rule 45

Q: Let’s say there are four defendants. They lost the case.

Defendant 1 appealed but the others did not. What happens if

Defendant obtains a favorable decision from the appellate court?

As a general rule, it will only benefit the defendant who appealed his

case. The decision of the trial court is already final and executory on

the others who did not appeal. However, the SC held that there may

be an exception in case the interests of the defendants are intertwined.

That is the term used by the SC – intertwined. If their interests are

intertwined, even if only one of them appealed, the decision of the

appellate court will also benefit his co-parties.

Compare this with a scenario where there are two defendants – A and

B. A was in default. B, however, won the case and was able to resist

the plaintiff’s claim. Will A benefit? Yes, he will benefit. This is the

general rule. This is different from the scenario in the last paragraph

because in that case there is already a judgment on all of them. Here,

in partial default, there is no judgment yet.

Q: Let’s say there are four defendants. There is already a

judgment against them. What happens if Defendant 1 makes use

of Rule 37, Defendant 2 makes use of Rule 38, Defendant 3 makes

use of Rule 47, and Defendant 4 makes use of appeal?

It is possible. Although there is plurality of parties and the remedies

pertain to different time periods (Rule 37 and appeal should be used

before the judgment became final and executory, while Rule 38 and

47 are available after the fact), it is possible that they make use of


different remedies. Remember that, as a general rule, appeal is only

beneficial to the person who appealed.

Appeal from the MTC to the RTC

If the origin of the case is the MTC, the only mode of appeal is an

ordinary appeal. Even if the only issue raised is a question of law, the

appeal should be an ordinary appeal to the RTC. Note that the Rules

do not divest the RTC or even the CA to hear appeals based purely on

questions of law. In fact, the Rules expressly say that an appeal to the

RTC from the MTC could either involve both questions of fact and

law or just purely questions of law.

An appeal from the MTC to the RTC is always a matter of right.

Q: What is the procedure of appeal from MTC to the RTC?

The party appealing in a civil case will need to file a Notice of

Appeal and pay the required docket fee. Cases involving special

proceedings and other cases of multiple or separate appeals will also

require submission of a Record on Appeal.

Docket fee is a jurisdictional requirement. Hence, if not paid on time,

SC held that the appellate court does not acquire jurisdiction over the

case. Try to remember the Manchester ruling.

Let us say a case for unlawful detainer was filed. A motion to

dismiss was filed by the defendant on the ground of lack of

jurisdiction over the subject matter, which was granted.

Premise: Under the provisions of Rule 41, the order of dismissal,

without prejudice, is not appealable. The aggrieved party cannot

appeal, but he can file petition under Rule 65.

Q: Is this premise true? Should we follow Rule 41 in appeals

from the MTC to the RTC?

No. Rule 40 does not follow Rule 41. In Section 8, Rule 40, when an

MTC dismisses a case cognizable by it for lack of jurisdiction over

the subject matter, even if the dismissal is without prejudice, the

remedy of the plaintiff is to appeal, via an ordinary appeal, the order

of dismissal rendered by the MTC.

Q: Why cannot we just follow Rule 41? It says that if a dismissal

is without prejudice, the order is not appealable, and the remedy

is a petition under Rule 65.

Insofar as the MTC and the RTC are concerned, there is a good

reason why Rule 40 says that the remedy of the plaintiff is to appeal

via ordinary appeal, to just file a notice of appeal in the appellate

court and pay docket fees. This is because there is a provision under

Rule 40 which says that if the matter is brought to the RTC, and the

RTC affirms the decision of the MTC, it is the duty of the RTC to

assume jurisdiction over the case as if that case originated with the

RTC.

Q: Why won’t RTC assume jurisdiction if Rule 65 is used?

If we tell the plaintiff to observe Rule 41, but the plaintiff still files a

petition for certiorari under Rule 65, the RTC has no authority to

assume jurisdiction over the case. An appeal is not a separate

proceeding, it is just a continuation of the old case. A petition under

Rule 65 is an independent proceeding, and not a continuation of the

original case that has been resolved by the MTC.

Q: In cases of unlawful detainer decided by the MTC, there could

be an appeal in the RTC involving factual and legal questions.

Insofar as the RTC and the prevailing party are concerned, is the

appeal by the losing party a matter of right?

Yes. Whenever the mode of appeal is ordinary appeal, the appeal is a

matter of right. The court has no discretion to outrightly dismiss the

appeal. It has the duty to review the case and render its own decision.

The RTC as an appellate court from a decision of an MTC in UD has

no discretion to tell the appellant that the appeal cannot be given due

course, which is allowed in petition for review and petition for review

on certiorari.

Q: Although the appeal of the losing party in the RTC is a matter

of right, may the RTC order the appeal’s dismissal even without

rendering its own decision because the appellant violated certain

orders or provisions of the Rules?

Yes. Although it is the right of the losing party to appeal to the RTC,

the losing party, as an appellant, should also obey the orders that

could be issued by the RTC in relation to the appeal.

One such order is given in Rule 41, Section 7[b]. The RTC acting as

an appellate court can require the appellant or appellee to submit an

appeal memorandum.

If the appellant does not submit an appeal memorandum as ordered,

that will be a ground for the dismissal of the appeal by the RTC.

Although appeal is a matter of right, it is still the duty of the appellant

to obey the orders of the appellate court issued in relation to his

appeal taken to the RTC.

In Rule 41, the RTC can also order the dismissal on appeal if it can

be shown that the docket fees have not been paid or that the appeal

was taken out of time. If the appeal was out of time, the appellate

court has no jurisdiction at all to review the judgment.

Q: If the RTC renders its own decision (affirm or reverse), can

there be a second appeal?

Yes, to the CA via a petition for review. The rule of thumb in the

case of second appeals is that the appeal is a matter of discretion. The

first appeal generally is a matter of right as to the appellant, as long

as the mode of appeal is an ordinary appeal. But even if the appeal is

a first appeal, but the mode is the one under Rule 45, that is a matter

of discretion on the part of the SC. The second appeal from the RTC

to the CA is a matter of discretion. The CA can either refuse or allow

the appeal.

Q: Before the CA, could there be a third appeal?

Yes, we can go to the SC under Rule 45, which is always a matter of

discretion in the civil case. The SC enjoys the prerogative whether to

entertain or not to entertain that appeal.

Summary:


From MTC, appeal to the RTC by notice/record of appeal whether it

involves a question of law, a question of fact, or both. This is a matter

of right.

From the RTC as an appellate court, appeal to the CA by petition for

review. The appeal may involve a question of law, a question of fact,

or both. Appeal here is discretionary.

From the CA, the aggrieved party may appeal to the SC by petition

for review on certiorari under Rule 45. Only questions of law may be

appealed. Petition for review on certiorari is always discretionary.

Q: Is it possible to appeal from MTC to the CA or SC directly?

Yes. If the MTC is exercising its delegated jurisdiction to try land

registration or cadastral cases, appeal from its decision or final order

may be taken directly to the SC or the CA as the case may be. The

MTC in this situation will be considered as if it were a RTC.

Procedure (MTC to RTC)

After the appeal is perfected, and it is perfected by the filing of a

notice of appeal, the RTC will now require the appellant to submit his

appeal memorandum.

Q: If the appellant does not submit his memorandum, the RTC

can dismiss the appeal. Why is the memorandum important?

It is important because, similar to a brief on appeal before the CA, it

points out to the RTC the errors committed by the inferior court.

There is always a disputable presumption that a decision rendered by

the court is correct. If the appellant refuses or fails to submit the

appeal memorandum, the presumption will stand and the appeal will

be dismissed.

However, if you take a look at Rule 40, Section 7 (c), it says the RTC

shall decide the case on the basis of the entire record of the

proceedings. The rule under Rule 51, Section 8, i.e., the rule that the

appellate court will only decide questions raised on the assignment of

errors, will therefore not apply to appeals from the MTC to the RTC.

Q: What is the difference between a final order and an

interlocutory order?

Final orders completely dispose of a case or particular matter therein.

On the other hand, an interlocutory order only determines incidental

matters that do not touch on the merits of the case or put an end to the

proceedings.

Q: What is the difference between a question of law and a

question of fact?

There is a question of law when the doubt or difference arises as to

what the law is on a certain set of facts.

A question of fact on the other hand is when the doubt or difference

arises as to the truth or falsehood of the facts alleged.

Q: What is a memorandum decision on appeal?

Memorandum decision is one in which the appellate court may adopt

by reference, the findings of facts and conclusions of law contained

in the decision appealed from. See Rule 51.

Q: What is the rule on harmless error?

Under Rule 51, Section 6, the court at every stage of the proceeding

must disregard any error which does not affect the substantial rights

of the parties.

Q: What is the material data rule?

The rule is an essential component for any mode of appeal whether it

is an ordinary appeal, petition for review or petition for review on

certiorari. It simply tells the appellant that he should see to it that he

informs the court about the date he received the decision, the date of

filing the motion, and the date of denial by the court of motion for

reconsideration or new trial, in order to help the court determine the

timeliness of appeal, which is determinant of the jurisdiction of the

appellate court. If an appeal is not perfected on time, the appellate

court does not gain jurisdiction over the matter on appeal.

Q: What is the difference between an erroneous appeal and an

improper appeal?

In improper appeals, the mode of appeal used is the correct mode, but

the questions raised in the appeal should not be raised in the appeal.

This may lead to the dismissal of the case.

For example, RTC rendered a decision. The decision was appealed to

the CA. The mode of appeal is an ordinary appeal via a notice of

appeal. Eventually, the records are transmitted to the CA. Under the

new rules, when there is an appeal by ordinary appeal via notice of

appeal, pure questions of fact, or mixed questions of fact and of law

could be raised. But the rules state that if the only question raised is

purely of law, the CA has no jurisdiction. So the CA can dismiss the

appeal when purely questions of law are raised.

In erroneous appeals, the mode of appeal is wrong. There are certain

cases where although the mode of appeal is wrong, it will not lead to

the dismissal of the appeal.

For example, under the rules, the correct mode is ordinary appeal, but

the mode used was petition for review. This is an erroneous appeal.

Petition for Review to the CA

If the court of origin is an MTC, the mode of appeal is an

ordinary appeal via a notice of appeal or a record on appeal (in

certain cases) to the RTC. From the RTC, as an appellate court,

there could be a second appeal in the CA, but this time, the mode

of appeal is a petition for review.

Q: From the MTC to the RTC, supposing the mode of appeal

used by the aggrieved party was a petition for review, can the

appeal be dismissed by the RTC on the ground that the appellant

has chosen the wrong mode of appeal?

SC held that if the appellate court is an RTC, and appellant has

chosen the mode of petition for review, RTC should disregard the

error committed by the appellant. The SC reasoned that the contents

of a petition for review meets, and even exceeds, the requirements of

a notice of appeal. A petition for review is a very lengthy document,

there is the application of the material data rule, there are errors that

are assigned and there are arguments embodied in the petition for


review. In a notice of appeal, it may compose of one paragraph where

an appellant is simply telling the court he is appealing the decision

rendered on such date, alleging the payment of docket fees. If the

appellant wrongfully chooses a petition for review, the RTC should

entertain the petition as the essentials for a notice of appeal are

already contained in the petition for review.

Q: From the RTC as an appellate court to the CA, supposing the

mode of appeal used by the aggrieved party was a notice of

appeal, can the appeal be dismissed by the CA on the ground that

the appellant has chosen the wrong mode of appeal?

The appeal will be dismissed. The mode of appeal used is erroneous

and will not confer jurisdiction upon the CA. In other words, there

are instances where the wrong mode of appeal will lead to the

dismissal of the appeal; and there are instances where the wrong

choice will be disregarded by the court.

Q: From the RTC in its original jurisdiction to the SC, supposing

the mode of appeal is a notice of appeal, can the appeal be

dismissed by the SC on the ground that the appellant has chosen

the wrong mode of appeal?

Under the Rules, the only mode of appeal allowed in civil cases to the

SC is Rule 45. From the decision of the RTC in its original

jurisdiction, there could be an appeal to the CA or SC as the case may

be. If the appellant decides to go to the SC immediately and filed a

notice of appeal, the SC will dismiss the appeal since the choice of

mode of appeal is erroneous under the Rules. A notice of appeal will

never satisfy the requirements of a petition for review on certiorari or

appeal by certiorari under Rule 45.

Q: Using the same problem above, supposing the mode of appeal

is titled ‘Petition for Certiorari under Rule 65’? Will the petition

be dismissed?

If the appellant inadvertently calls his petition a Petition for Certiorari

under Rule 65, the SC will liberally consider that as a Petition for

Review under Rule 45. The contents of Certiorari under Rule 45 and

Rule 65 are essentially the same. But, the SC cautioned parties, the

erroneous appeal must be filed within the period of appeal (15 days).

If you should recall, the period for appeal by petition for certiorari

provided under Rule 45 is 15 days, whereas under Rule 65, the period

for filing a petition under this Rule is 60 days.

Q: Is a certificate of non-forum shopping available to a petition

for review?

Yes. Although a petition for review is not an initiatory pleading, the

Rules expressly directed it to prevent the possibility that the appellant

may have filed another appeal with a different court.

Appeal from Quasi-Judicial Bodies

The decisions that could be appealed to the CA do not necessarily

come from courts. It could be penned by quasi-judicial bodies. There

is just a common mode of appeal even for quasi-judicial (QJ) bodies,

petition for review under Rule 43.

Q: What is the difference if the appealed decision is from the

RTC, and if it comes from a QJ body?

There is no difference with respect to the content, but there is a great

difference in the execution of the judgment appealed.

If the decision comes from a trial court in the exercise of its appellate

jurisdiction, being appealed to the CA, the decision of the trial court

cannot be executed. There could be no execution. There could be an

execution, but it should be an execution pending appeal. The motion

should be supported by special reasons to convince the CA to order

the execution of judgment. Generally, when there is an appeal to the

CA from a court of justice like an RTC, the appealed decision cannot

be the subject of execution.

In case of QJ body decision, the appeal will not stay the execution of

the decision. The decision of the QJ body will be enforced. There is

only one way in which we can stop the execution of the decision

rendered by a QJ body during the pendency of the appeal, and that is

to ask the CA to issue a writ of preliminary injunction.

Another difference is the rule that when a decision comes from a QJ,

the factual findings of the QJ are conclusive upon the CA. As a

general rule, the CA cannot review factual findings of the QJ.

Q: Why is execution allowed in QJ bodies?

One reason given in the Rules is that the quantum of evidence needed

in QJ proceedings is only substantial evidence, while in trial courts,

the quantum of evidence is preponderance of evidence.

Q: Are there any cases where appeal from quasi-judicial bodies

may be directly made to the SC?

Yes.

A decision from the Commission on Audit may be brought by the

aggrieved party to the SC on certiorari under Rule 65.

A decision from the Commission on Elections may be brought also

on certiorari to the SC under Rule 65.

(The decision of third constitutional commission – the Civil Service

Commission may be taken to the CA under Rule 43.)

A party adversely affected by a decision of the CTA en banc may file

with the SC a verified petition for review under Rule 45.

The ruling of the Ombudsman in criminal cases (not administrative

disciplinary cases, which is appealable to the CA under Rule 43) may

be elevated to the SC by way of Rule 65.

The decision of the Sandiganbayan is appealable to the SC by way of

certiorari under Rule 45.

As a special reminder, a review of the decision of the NLRC may be

brought to the CA using Rule 65. Remember, the CA, not the SC.

Read: St. Martin’s Funeral Home v. NLRC

Notice of Appeal and Record on Appeal


Q: What is the difference between a notice of appeal and a record

on appeal?

The period to file a notice of appeal is 15 days. If it requires the filing

of a record of appeal, it is 30 days.

The period to file a notice of appeal is not extendible. The same is not

true with a record of appeal.

Q: Why is there discrimination between a notice of appeal and a

record on appeal when it comes to extension?

A notice of appeal is a very simple document. It is usually a one-page

document. On the other hand, a record on appeal could be a very

voluminous document because the record on appeal will copy all of

the pleadings as submitted by the parties. It will also copy all of the

relevant motions and the orders issued by the court.

Q: When is record on appeal proper?

If you take a look at Section 39 of BP 129, or Section 2, Rule 41 of

the Rules of Court, it states that ‘no record of appeal shall be required

except in special proceedings and other cases of multiple or separate

appeals where the law or the Rules of Court so require.’

Dean Riano: A party, therefore, may appeal only a particular incident

in the case and not all of the matters involved in the same case. For

example, in expropriation, there are two stages – the first stage is the

determination of the lawful right of the plaintiff to take the property

sought to be expropriated culminating in an order of expropriation.

This order of expropriation may be appealed by any party by filing a

record on appeal.

The second stage of expropriation is the determination by the court of

the just compensation for the property sought to be expropriated. A

second and separate appeal may be taken from this order fixing the

just compensation.

If, however, the trial court has fully and finally resolved ALL issues

in the complaint for expropriation, there is no need to file a record on

appeal even in an expropriation case. The original records will be

sent to the appellate court even if a notice of appeal is used.

Q: If a record on appeal is required, is notice of appeal dispensed

with?

No. It should be a notice of appeal and a record on appeal. Besides, a

notice of appeal just specifies to the court an appeal is being taken. It

is given that a record on appeal always includes a notice of appeal.

Doctrine of Residual Jurisdiction

Q: What is residual jurisdiction?

It refers to the authority of the trial court to rule on certain matters

even if the appeal is already perfected. Even if the appeal is now

within the jurisdiction of the appellate court, the trial court will

retains jurisdiction to decide certain matters.

Q: What are these certain matters?

It is in the Rules of Court. These are:

1. To issue orders for the protection and preservation of the

rights of the parties which do not involve any matters

litigated by the appeal;

2. To approve compromises;

3. To permit appeals of indigent litigants;

4. To order execution pending appeal if accordance with

Section 2, Rule 39; and

5. To allow withdrawal of the appeal.

Q: When is the doctrine of residual jurisdiction available?

It is available under Rules 41 and 42. Under Rule 41, if there is an

appeal from RTC to the CA or SC as the case may be, and prior to

the transmittal of the original record or the record on appeal, the court

may exercise their residual jurisdiction.

Under Rule 42, if there is a petition for review from RTC to the CA,

and before the CA gives due course to the petition, the RTC may also

exercise residual jurisdiction.

Rule 41 applies if it is an ordinary appeal. Rule 42 will apply if it is a

petition for review. There is a difference between them so take note

of the qualifiers when residual jurisdiction will end.

In one case decided by the Supreme Court, if docket fees have not

been paid but there was already an order transmitting the records to

the CA, the trial court still has jurisdiction to hear the motion to

dismiss the appeal and issue a writ of execution.

Q: The RTC is expressly given by the Rules the authority to rule

on certain matters under residual jurisdiction. Is this available to

the MTC?

Yes. If you take a look at Section 9, Rule 40, the other provisions of

Rule 41 shall apply to appeals from the MTC to the RTC insofar as

they are not inconsistent with or may serve to supplement the

provisions of Rule 40. It is therefore applicable to MTC.

Motion for New Trial In The CA

Under the Rules, it is not necessary for the appealing party to wait for

the case to be decided by the CA to file a motion for new trial. Even

if the case has not yet been decided by the CA, the movant can

already file a motion for new trial based on NDE. This is not

possible if the case is in the MTC or even in the RTC acting in its

appellate jurisdiction. In the RTC, we have to wait for the RTC to

render a decision before we can file a motion for reconsideration or

new trial. With respect to the CA, we also have to wait for the

decision of the CA before we can move for reconsideration. But

when it comes to a new trial, we can file a motion for new trial based

on NDE even before the case is decided by the CA. This is clearly

spelled out in the Rules. As long as the case is within the jurisdiction

of the CA, even if before the CA had made a decision on the case

appealed, a motion for new trial based only on NDE can be filed.

The SC is generally not a trier of facts. A motion for new trial will

always involve a question of fact like NDE, and thus will be

dismissed by the SC. The availability of a motion for new trial ends

with the CA, but the availability thereof is based only on the ground

of NDE.


Motion for Reconsideration before the CA

The Rules do not clearly state what the grounds are for a motion for

reconsideration before the CA. Since this is the case, then the same

grounds under Rule 37 may be used for a motion for reconsideration

before the CA.

There may be only one motion for reconsideration before the CA, as

it is in the trial courts.

Relief of Judgment under Rule 38 before the CA

This is not possible.

First, there is no court in our system which is vested with authority to

entertain a petition for relief against a final and executory judgment

of the CA. The SC may not entertain the petition for relief because it

is a court of limited jurisdiction. And although the RTC is a court of

general jurisdiction, it is improper because the CA is a higher court

than the RTC.

Second, Rule 38 applies only to trial courts, not the CA. This may be

implied from the provisions of the Rule itself.

Annulment of Judgment before the CA

If you remember our discussion before, the SC may annul judgments

made by the CA under its equity jurisdiction. It is not expressly stated

in the Rules but it is possible as a jurisprudential rule.

APPEAL BY CERTIORARI TO THE SC

In civil cases, this is the only mode used to appeal to the SC. We

cannot use a notice of appeal or a petition for review if the SC strictly

applies these rules on appeal.

Q: Is it correct we cannot appeal to the SC by notice of appeal?

No. It does not mean to say that we cannot go up to the SC by simply

filing a notice of appeal or an ordinary appeal. What the Rules of

Court prohibits is the filing of an ordinary appeal to the SC, i.e., a

notice of appeal, if the case is a civil case.

If the case is a criminal case, there could be notice of appeal to the

SC. It is applicable in case the penalty imposed is life imprisonment

or reclusion perpetua. The appeal from that criminal case will be by

notice of appeal not via a petition for certiorari.

As a general rule, only questions of law can be raised before the SC.

However, raising questions of law with questions of fact before the

SC does not necessarily disallow the appeal. The Rules say that if the

issues raised in under Rule 45 are factual and legal, the SC has the

discretion to remand the case to the CA. When the SC sends the case

to the CA because the issues raised are both factual and legal, the CA

now has the duty to review the case and render its own decision.

The opposite, however, does not apply, such as when the CA is the

appellate court. If the court of origin is the RTC acting in its original

jurisdiction, and it involves pure questions of fact or mixed questions

of fact and law, the mode of appeal is an ordinary appeal through a

notice of appeal.

It is in this mode of appeal, i.e., an ordinary appeal to the CA, where

the appellant is required to submit a brief on appeal.

Q: What is a brief on appeal?

The purpose of a brief is to present to the court in a concise form the

points and question in controversy, and by fair argument on the facts

and law of the case, to assist the court in arriving at a just and proper

conclusion/ decision.

During the pendency of the appeal, the CA will require parties to

submit their briefs. The Rules provide for the brief of the appellant

and the appellee.

Q: What happens if the brief is not filed on time?

If it is the appellant case who does not submit his brief, the appeal is

dismissed. If it is the appellee who does not submit his brief, then the

court will simply decide the appeal without a brief coming from the

appellee. The appellee can choose not to submit a brief. It is the brief

of the appellant whose submission or non-submission could lead to

the dismissal of the appeal.

Q: Why is the CA very much interested in the assignment of

errors that must be contained in the brief, without which the

appeal will have to be dismissed?

The assignment of errors is essential in an ordinary appeal because

insofar as the CA is concerned, the decision of the trial court is a

correct decision. Remember that in our Rules of Evidence, there is a

presumption that a decision of a trial court is correct, i.e., there is a

presumption of regularity in the performance of official duties. The

CA will always apply that disputable presumption whenever there is

an appeal in the CA.

That same attitude is also adopted by the SC. Whenever an appeal

under Rule 45 is raised to the SC, the SC adopts the disputable

presumption that the decision of the CA is correct.

Since the CA adopts the presumption that the RTC decided on the

case correctly, the appellant must overwhelm that presumption by

convincing the CA that serious errors were committed by the RTC.

Since the appellant cannot be allowed to present evidence thereon,

since reception of evidence should have been done in the trial court,

appellant will have to rely on the records submitted from the RTC.

The only way by which appellant can possibly convince that the RTC

committed serious errors is through the assignment of errors. If the

appellant cannot make an assignment of errors in the brief, it means

the appellant finds nothing wrong with the decision of the RTC.

Therefore, the disputable presumption stays, and this will be used by

the CA. That is why the assignment of errors is essential to the brief

of the appellant. Absence thereof is fatal to the appeal, and will cause

the appeal’s dismissal.

Q: Distinguish a brief from a memorandum.

A:


Brief Memorandum

Ordinary appeals

Certiorari, prohibition,

mandamus, quo

warranto and habeas

corpus cases

Filed within 45 days Filed within 30 days

Contents specified by rules

Shorter, briefer, only

one issue involved – No

subject index or

assignment of errors,

just facts and law

applicable

Q: Can the appellant assign as the only error in the brief that the

RTC committed an error in deciding the case against the

appellant?

That is not an assignment of error expected by the CA. Assignment

of errors should specify particular acts done by the RTC which could

have affected his substantial rights.

Q: Reiterate the rule on harmless errors.

The trial court must have committed errors in the proceedings; it is

expressly provided in Rule 51 that only errors of the court in

admission of evidence and issuance of orders that affects

substantially the rights of the appellant could be considered by the

appellate court. Otherwise, the court will disregard that error, even if

made a part of the assignment of errors.

Q: What issues will be resolved on appeal?

In civil cases brought on appeal, the appellate court will resolve only

issues raised in the assignment of errors. No other issue, generally,

will be resolved by the court. The only exception is if the issue not

raised in the assignment is closely related to the issue raised in the

assignment of errors of the appellant.

Q: Is the rule above applicable to criminal cases?

No. In a criminal case, if there is an error committed by the trial

court, whether mentioned or not in the assignment of errors, the CA

or SC can take cognizance of such errors in resolving the appeal. The

appellate courts are very flexible in a criminal case whose decision

from the trial court was brought before it on appeal.

As a general rule, only errors assigned in the brief may be considered

on appeal. These are the exceptions:

1. Grounds not assigned as errors but affecting the jurisdiction

over the subject matter

2. Matters not assigned as errors on appeal but are evidently

plain or clerical errors within the contemplation of law;

3. Matters not assigned as errors on appeal but consideration

of which is necessary in arriving at a just decision and

complete resolution of the case or to serve the interest of

justice or to avoid dispensing piecemeal justice;

4. Matters not specifically assigned as errors on appeal but

raised in the trial court and are matters of record having

some bearing on the issue submitted which the parties

failed to raise or which the lower court ignored;

5. Matters not assigned as errors on appeal but closely related

to an error assigned; and

6. Matters not assigned as errors on appeal but upon which the

determination of a question properly assigned is dependent.

Questions before the SC

Although Rule 45 is explicit in saying that only questions of law can

be raised in a petition on certiorari, the SC has recognized a number

of exceptions:

1. When the findings are grounded entirely on speculation,

surmises or conjectures;

2. When the inference made is manifestly mistaken, absurd or

impossible;

3. When there is grave abuse of discretion;

4. When the judgment is based on misapprehension of facts;

5. When the findings of facts are conflicting;

6. When in making its findings, the CA went beyond the

issues of the case, or its findings are contrary to the

admissions of both the appellant and the appellee;

7. When the findings are contrary to the trial court;

8. When the findings are conclusions without citation of

specific evidence on which they are based;

9. When the facts set forth in the petition as well as in the

petitioner‘s main and reply briefs are not disputed by the

respondent;

10. When the findings of fact are premised on the supposed

absence of evidence and contradicted by the evidence on

record; and

11. When the Court of Appeals manifestly overlooked certain

relevant facts not disputed by the parties, which, if properly

considered, could justify a different conclusion.

Dean Jara suggests memorizing at least five for the Bar Exams. For

recitation, he suggests to memorize at least eleven (haha).

Aside from these instances, the following cases also allow questions

of fact to be raised on appeal to the SC:

7. Kalikasan cases

8. Amparo cases

9. Habeas Data cases

Both factual and legal questions can be raised under Rule 45 in these

three situations.

Q: What if the appellant raises questions of fact before the SC?

Will the SC dismiss the case?

It may, but the SC is given the discretion to refer the appeal to the CA

instead.

Q: What are the differences between Rule 45, 64, and 65?

Rule 45 Rule 64 Rule 65

Petition for Review

on Certiorari

Certiorari against

COMELEC and COA

Certiorari,

Prohibition, and Mandamus

Mode of Appeal Mode of Appeal Independent Action

Cannot implead the court as a party

COMELEC or

COA should be

impleaded as respondent

The court or QJ

should be impleaded


15 days 30 days 60 days

Question of Law Question of Law

Question of Law

and limited to

Questions of Jurisdiction

The order or

decision cannot be

executed.

The ruling of the

COMELEC or

COA will not be

stayed unless SC

issues an injunctive relief

The ruling of the

court or QJ will not

be stayed unless SC

issues an injunctive relief

SC SC SC, CA or RTC

Summary:

If the RTC is acting in its original jurisdiction, appeal may be had to

the CA or SC.

If the issues involve pure questions of fact or mixed questions of law

and fact, then appeal may be had by going up to the CA by ordinary

appeal. Ordinary appeal may take in the form of a notice of appeal or

record of appeal as the case may be. This is a matter of right.

If the issues involve pure questions of law, the appellant may proceed

to the SC directly by petition for review on certiorari under Rule 45.

This appeal is a matter of discretion.

In the case of quasi-judicial bodies, whether or not it involves factual

or legal issues or both, there may be appeal to the CA. The appeal is

in the form of a petition for review under Rule 43.

From the CA as an appellate court, the appellant may further appeal

to the SC by using a petition for review on certiorari under Rule 45.

This appeal is still a matter of discretion.

Motion for Reconsideration before the SC

It is possible.

Motion for New Trial before the SC

This is not possible. The SC will not entertain a motion for new trial

even if the ground is based on NDE. The Supreme Court is not a trier

of facts.

Further Appeal

The decision of a division of the SC is a decision of the SC. Thus, it

is not possible to appeal the decision of a division of the SC with the

SC en banc.

ANNULMENT OF JUDGMENT

Q: What is annulment of judgment?

A: It is a remedy in law independent of the case where the judgment

sought to be annulled was rendered. The purpose of such action is to

have the final and executor judgment set aside so that there will be

renewal of litigation.

NOTE: A co-equal court cannot annul the final judgment of a similar

court. CA has exclusive jurisdiction over actions for annulment of

judgments of RTC. An action to annul a judgment or final order of

MTC shall be filed in the RTC having jurisdiction in the former and

it shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47).

Extrinsic Fraud

Fraud is regarded as extrinsic when it prevents a party from having a

trial or from preventing a party from having a trial or from presenting

his entire case to the court, or where it operates upon matters

pertaining not to the judgment itself but to the manner in which it is

procured (Alaban v. CA, GR No. 156021, September 23, 2005).

Note, however, that extrinsic fraud, or collateral fraud, is not a valid

ground if it was availed of, or could have been availed of in a motion

for new trial or petition for relief.

Lack of Jurisdiction

Lack of jurisdiction as a ground for annulment of judgment refers to

either lack of jurisdiction over the person of the defending party or

over the subject matter of the claim.

Lack of jurisdiction over the subject matter and over the

person – May be barred by estoppels by laches, which is

that failure to do something which should be done or to

claim or enforce a right at a proper time or a neglect to do

something which one should do or to seek or enforce a

right at a proper time. (1998 Bar Question)

The extraordinary action to annul a final judgment is restricted to the

grounds provided by law to prevent it from being used by a losing

party to make a mockery of a duly promulgated decision that has long

become final and executory.

Q: When may it be availed of?

A: The remedy of annulment of judgment may be availed of when

the ordinary remedies of new trial, appeal, petition for relief or other

appropriate remedies are no longer available through no fault of the

petitioner.

Q: Who may avail this remedy?

A: A person need not be a party to the judgment sought to be

annulled. What is essential is that he can prove his allegation that the

judgment was obtained by the use of fraud and collusion and he

would be adversely affected thereby.

Read: Islamic Da’wah Council v. Court of Appeals

Q: Where should the petition be filed?

A:

Judgments of RTC Judgments of MTC

Filed with the CA Filed with the RTC

Basis – It has exclusive original

jurisdiction over said action

under Sec. 9 (2), BP 129

Basis – RTC as a court of

general jurisdiction under

Sec. 19 (6), BP 129


CA may dismiss the case

outright; it has the discretion on

whether or not to entertain the

petition.

RTC has no such discretion.

It is required to consider it as

an ordinary civil action.

Q: If a judgment of an MTC can be the subject of annulment by

CA or RTC as the case may be, can we also seek annulment of

the decisions by a quasi-judicial or administrative body?

A: Under BP 129, annulment of judgment, as procedurally explained

in Rule 47, does not extend to the quasi-judicial or administrative

body, unless such provision was allowed by the charter of such

administrative or quasi-judicial body.

Rule 47 refers to an action filed by a petitioner to annul a judgment

rendered by an RTC in a civil case. This is what literally BP 129

provided where CA is given the authority to annul decisions made by

an RTC in a civil action. Therefore, if the action is not a civil action

or rendered by a quasi-judicial or administrative body, we cannot use

Rule 47.

Q: Since Rule 47 says that the annulment contemplated in BP 129

refers to a judgment in a civil action, does it mean to say that the

judgment of an RTC acting as a criminal court cannot be subject

to annulment of judgment by the CA under Rule 47?

No.

If the judgment of the RTC is a judgment in a criminal case, we

cannot use Rule 47 as it is specifically stated in the said rule that

annulment of judgment is availing only to civil cases decided by the

RTC. Rule 47 is not a remedy to annul decisions or judgments

rendered by the RTC as a criminal court. A decision of an RTC in a

criminal case can be annulled by filing a case for habeas corpus.

Petition for habeas corpus is the equivalent in criminal cases of

petition for annulment of judgments in civil cases.

An RTC could act as a civil and criminal court. It exercises original

actions over both actions. RTC decisions in civil actions could be the

subject of annulment by CA under rule 47, but Rule 47 does not

apply if the decision is one rendered from criminal cases. The remedy

in order to annul a judgment in criminal cases is by filing a petition

for habeas corpus. BP 129 is very clear under Rule 47. What can be

annulled under Rule 47 are judgments in civil cases only.

Q: Is there a difference between Rule 47 (petition for annulment

of judgment rendered by an RTC in a civil case) and petition for

habeas corpus?

There are substantial differences.

Annulment under Rule 47 is a direct attack of a final and executory

judgment, the only purpose of which is to nullify and set aside a court

decision in a civil case. But in a criminal case where the decision of

the RTC may not be valid due to lack of jurisdiction or extrinsic

fraud, the remedy is petition for habeas corpus, which is an indirect

attack on the judgment of an RTC in the criminal case.

When a habeas corpus petition is filed in order to nullify a decision

on a criminal case, the principal relief which the petitioner seeks is to

declare the petitioner has been deprived of his liberty unlawfully. It is

not principally to set aside the judgment rendered by the RTC in a

criminal case.

The remedy of petition for habeas corpus in criminal case are more

advantageous than that of an annulment of judgment in civil cases.

This is because an annulment of judgment in civil cases is a direct

attack against the judgment in the civil case, while in the criminal

cases, the detainee can challenge the validity of the judgment of

conviction, although he is not attacking directly the validity of the

said judgment of conviction. He is attacking the validity of the

deprivation of his liberty.

Q: What is a collateral attack on judgment?

It is made in another action to obtain a different relief; an attack

on the judgment is made as an incident in said action. This is

proper only when the judgment, on its face is null and void, as

where it is patent that the court which rendered such judgment

has no jurisdiction (Co vs. Court of Appeals, 196 SCRA 705).

Note that Rule 47 is inserted in between the rules governing appeals.

The procedure for appeal starts with Rule 40 up to 56. Annulment of

judgment has nothing to do with appeals as it is a civil action.

Annulment of judgment is an original action that can be filed in the

RTC and CA. And, in Rule 47, when particularly applied to a petition

for annulment commenced before the CA, you will notice that some

of the features of a special civil action are carried by a petition to

annul the judgment filed with the CA. For instance, if a petition to

annul a judgment of an RTC in a civil case is filed in the CA, the CA

has the authority to outrightly dismiss the petition for lack of merit.

This is similar to Rule 65, where the petition for certiorari,

prohibition or mandamus can be outrightly dismissed if it is not

meritorious on its face.

Q: What if the decision in the RTC was already final and

executory, can the petition to annul judgment filed in the CA stop

the execution of the said judgment?

No. The petition will not stop the prevailing party from moving for

the execution of the final and executory judgment in the civil case,

notwithstanding the commencement of the petition to have the

judgment in the civil case annulled. The only remedies available to a

petitioner for annulment of judgment of an RTC in the CA is to apply

for the provisional remedy of PI or TRO to stop the RTC from

proceeding with the execution of the said judgment.

Q: Under Rule 47 in relation to BP 129 in the case of annulment

of judgments of an RTC filed in the CA, is it correct that only the

litigants thereto can file the petition to annul a judgment in a civil

case?

No. As held in the case of Islamic Da'wah vs. CA, the petition for

annulment of judgment in BP 129 and Rule 47 does not prohibit a

stranger from filing a petition to annul judgment. He can do so, so

long as he can show he will be prejudiced by the judgment sought to

be annulled.


In Islamic Da’wah, in allowing a stranger to annul a judgment, then

he need not seek other remedies since the stranger to a case

cannot possibly avail of remedies that are available only to a

litigant in a case.

While CA has authority to outrightly dismiss annulment of judgment,

the RTC cannot. Insofar as RTC is concerned, petition to annulment

of a judgment by an MTC should be treated as any normal civil case.

In Rule 47, if the judgment is annulled, it is declared void by the

court. It is unenforceable, or if already enforced, CA can order

restitution if that is still possible.

Q: Is there a conflict between Rule 47, annulment of judgment,

and Rule 132, Section 29, or impeachment of a judicial record?

There is no conflict between Rule 132 and Rule 47 since they involve

very similar grounds. Although Rule 132 does include as one ground

‘collusion,’ extrinsic fraud under Rule 47 is broad enough to include

collusion. There is therefore, no real conflict.

PRELIMINARY CONFERENCE IN APPEALS

The preliminary conference before the appellate court is permissive,

not mandatory, unlike the rule on pre-trials under Rule 18. However,

if the CA or SC does call the parties to a preliminary conference and

the appellant does not attend, the appeal will be dismissed.

Have a break. Have a Kitkat.

EXECUTION AND SATISFACTION OF JUDGMENT

Rule 39 has been described in jurisprudence as the one that gives life

to the law. It does so in the sense that the winning party will be able

to recover the award given in his favor. So if the civil case is the

recovery of money, and the court awards P2M to the prevailing party,

said party will not be satisfied until the P2M is given to him.

Q: Should Rule 39 always be resorted to in order to have

satisfaction of judgment?

No. It is not correct to assume that in order to satisfy a judgment, we

should always make use of Rule 39. Satisfaction of judgment as

conceived in Rule 39 is a forcible satisfaction of judgment. So if

the award in favor the judgment creditor is for the payment of the

judgment debtor of P2M, the judgment creditor does not even have to

think about Rule 39 if the judgment debtor immediately pays the

award of P2M.

It is only in that situation where the judgment debtor refuses to pay

that the only remedy of the judgment creditor to enforce payment is

to make use of Rule 39, to force the debtor to pay by levying his

properties and by selling his levied properties by public auction.

Execution Pending Appeal

Q: What is the general rule regarding execution pending appeal?

The judgment creditor cannot ask for execution of the judgment if the

case is pending appeal.

Q: Are there exceptions?

Yes. The Rules state four which are ‘immediately executory’:

1. Support

2. Receivership

3. Accounting 4. Injunction

A decision by the MTC in forcible entry and unlawful detainer cases

are also immediately executory.

Q: If a decision is immediately executory, does it mean the court

may execute the decision motu proprio?

No. There must be a correlative motion from the winning party. It is

immediately executory in the sense it may be executed even pending

appeal.

Q: When is execution as a matter of discretion?

Under the Rules, if the decision is not among those decisions that are

immediately executory, the court may still execute the judgment even

pending appeal if the winning party proves good reasons in a hearing

before the court.

Q: May the winning party say that he is willing to put up a bond

in order to have an execution pending appeal?

No. The winning party must prove concrete good reasons. Putting up

a bond is not one of them.

Q: May discretionary execution be stayed?

Yes. The judgment debtor only has to set up a supersedeas bond. If

there is an order of an execution pending appeal, he may go up using

Rule 65, provided there is grave abuse of discretion, and pray for an

injunctive relief against such order.

Q: What court will execute the judgment pending appeal?

It may be the appellate court or the trial court. As a general rule, it is

the appellate court which will execute the judgment pending appeal.

However, the trial court may also exercise its authority to execute the

judgment pending appeal if it has residual jurisdiction over the case.

It is one of the powers expressly enumerated by the Rules under the

doctrine of residual jurisdiction.

Q: What court executes the judgment – the trial court or the

appellate court?

As a general rule, if there is an appeal from the decision rendered by

the trial court, and the case has reached the SC, even if the decision

of the trial court has been affirmed, and said decision by the SC has

been entered, it is not correct for the prevailing party to ask for

execution from the SC. The matter of execution is a duty of the court

of origin, not the appellate court. If the court of origin is the MTC, it

is the duty of the MTC to enforce the satisfaction of the judgment. It

is axiomatic that higher courts like the CA or SC do not usually issue

an order for execution of judgment.


What a lawyer for the judgment creditor should do is to wait for the

records to be returned from the SC or CA to the court of origin. It

could take time for the records to be returned to the court of origin.

So, if a motion for execution was filed by the judgment creditor in the

court of origin before the records are returned, there is likelihood that

the court of origin will tell him they have not yet received the records

so they cannot act on the motion until the records reach the court of

origin. This is although the issuance of an order granting the motion

for execution is a ministerial duty of the court.

Rule 39, however, has provided for a remedy in this situation. The

appellate court will simply issue a certified true copy of the entry of

judgment. The certified true copy of the judgment will be submitted

to the court of origin in order to be a basis of the granting of the order

of a motion for execution. That is enough proof that there really is a

final and executory decision.

Q: Is there a need for the judgment creditor to file a motion for

execution, or will the issuance of a writ of execution come as a

matter of course?

There is always a need to file a motion for execution. If the judgment

creditor has not filed a motion for execution, the court has no

business to issue a writ of execution, because the court will not know

whether there was voluntary satisfaction of judgment.

Q: May a motion of execution be heard ex parte?

Since the judgment has become final and executory and it has now

become a ministerial duty of the court of origin to issue a writ of

execution, then the motion for execution will be heard ex parte,

without notice to the judgment debtor.

Although this issue has been the subject of conflicting decisions by

the SC, the latest jurisprudence said that a motion for execution of a

judgment that has become final and executory can be heard ex parte

by the trial court. Under the old doctrine, the judgment debtor should

also be given a copy of the motion for execution because the latter

may have grounds to oppose the issuance of the writ of for execution.

Q: What is the period granted by the Rules to file a motion for

execution?

Within the Rules, there is a period fixed within which the court can

grant a motion for execution as a ministerial duty. It is 5 years from

the entry of judgment. After the 5 years from entry, there can be

revival of judgment, no longer a motion, since this is an independent

action to revive the judgment. But the independent action to revive

judgment must be filed within the second 5-year period after the

entry of judgment.

Q: The Rules assume that the prescription period for the

execution of a judgment is the 10-year period. Is this a correct

assumption?

This is correct, as this is also provided under the NCC. A prescriptive

period of a final and executory judgment is really 10 years under the

NCC.

But what Rule 39 has provided was to divide the 10 years into two

parts; the first five years, and the second five years. Meaning, the first

five years, we can execute the judgment via a motion for execution.

After the lapse of the first five year period, the judgment creditor

cannot file a motion for execution. If he does so, the court will deny

the motion since the court will no longer have the authority to grant

the motion of execution. The second 5-year period is designed to

force the judgment creditor to file a separate independent action to

revive the judgment. So the motion for execution should be filed

within the first five years of the 10-year period.

Q: Is the first 5-year period strictly implemented by the rules?

It is not. It can be extended according to the Rules. The SC has

decided that if the institution of the judgment within the first five

years is delayed, and the delays are equitable or are attributable solely

to the conduct of the judgment debtor, then the 5-year period will be

correspondingly be extended, that is equal the delay caused by the

conduct of the judgment debtor.

For example, the judgment creditor filed a motion for execution of

the judgment on the third year of the first 5-year period. The court of

origin is an RTC. The judgment debtor received a copy of the motion.

After receiving the copy of the motion, the judgment debtor files a

petition for the annulment of judgment before the CA under Rule 47

with prayer for a preliminary injunction. CA granted the preliminary

injunction. Because of the preliminary injunction issued by the CA,

we cannot expect the RTC to order the execution of the judgment. It

took the CA two years to decide upon the petition of the judgment

debtor. In the end, CA ordered the dismissal of the petition for

annulment of judgment. There is now a delay of two years. If the 5-

year period has already lapsed due to the delay, another two years

will be added, the 5-year period will be automatically extended up to

seven years within which the judgment can be executed through the

filing of a motion for execution of judgment. That is how the SC

described how the first 5-year period and the second 5-year period

should be interpreted. It is not a fixed period.

Q: What does ‘delay caused by the conduct of the judgment

debtor’ mean?

This simply means that the judgment debtor can legally delay the

execution of the final judgment. In fact, he is given two remedies

under the Rules to prevent the execution of a final judgment. Rule 38

is one means of delaying the execution of judgment. In Rule 38, the

court that decided the case can issue an injunction against the

enforcement of the judgment. Rule 47, or annulment of judgment, is

another remedy, but there should be a corresponding preliminary

injunction that is issued by the higher court. In annulment of

judgment, the court that will try the case will always be a higher

court. Thus, if the higher court hearing the petition issues an order to

stop the execution of the judgment, there is no way for the court of

origin to disobey such order.

Q: If the motion for execution is granted, which is expected, as

the judgment has become final and executory, can the judgment

debtor file an appeal against the order granting the motion for

execution?

No. Under Section 1 Rule 41, an order granting motion for execution

is not appealable. The order will be treated as a final order. The

remedy is to file a petition under Rule 65, a petition for prohibition.


Q: Suppose the court denies a motion for execution of judgment,

is appeal the remedy of a judgment creditor?

No, it does not seem so, based also under Section 1, Rule 41. The

creditor should also resort to Rule 65. The petition that he should file

is a petition for mandamus. Mandamus is proper because there is a

ministerial duty for the court to perform. Under Rule 39, as long as

the judgment has been entered, it has become a ministerial duty of the

court to grant a motion for execution. That is an act that can be

compelled by a writ of mandamus.

Q: May the judgment creditor file a motion for execution after

the first five-year period even if the judgment debtor consents?

No. The SC held that after the first five-year period, the court loses

jurisdiction to execute the judgment through a mere motion. The fact

that the judgment debtor did not oppose said motion does not matter

because the issue now is one of jurisdiction. Jurisdiction will not be

vested upon the court simply by inaction on the part of a party. Thus,

the proceedings taken by the court in granting the motion for

execution beyond the first 5-year period was held to be irregular. The

issuance of the writ of execution is void, and therefore the writ can be

quashed for lack of jurisdiction.

Q: Can the trial court promptly deny a motion for execution?

The general rule is that the trial court cannot quash or rightly deny a

motion for execution if the judgment has already been entered. But,

there are certain exceptions that the SC has recognized.

First, if the judgment has become dormant. This means the first five

years for executing the judgment has already lapsed. The execution

of the final judgment cannot be granted via a motion. The judgment

creditor must avail of the independent action of revival of judgment

to revive a dormant judgment.

Second, when the parties enter into a compromise agreement after the

judgment has become final and executory. If there is a compromise

agreement signed by both parties whose terms are not consistent with

the award given, the effect will be novating the judgment. The court

will no longer grant a motion for execution since there is nothing to

execute. The parties may agree to change the terms of the dispositive

portion of the judgment. This is an application of novation being a

mode of extinguishment of an obligation under the NCC.

Q: Is a writ of execution subject to a motion to quash?

Yes. A writ of execution may be quashed on certain grounds:

1. When the writ of execution varies the judgment;

2. When there has been a change in the situation of the parties

making the execution inequitable or unjust;

3. When execution is sought to be enforced against a property

exempt from execution;

4. When it appears that the controversy has never been

submitted to the judgment of the court;

5. When the terms of the judgment are not clear enough and

there remains room for interpretation thereof;

6. When it appears that the writ of execution has been

improvidently issued;

7. When it appears that the writ of execution is defective in

substance, or is issued against the wrong party, or that the

judgment debt has been paid or otherwise satisfied or the writ is issued without authority.

Q: What if the trial court denies the motion to quash?

Dean Albano: The party may appeal (either by ordinary appeal or a

petition for review) or by a special action of certiorari, prohibition, or

mandamus. Considerations of justice and equity dictate that there

must be some mode available to the party aggrieved of elevating the

question to a higher court (citing Banaga v. Majaducon).

Q: Suppose within the first 5-year period, the court grants a

motion for execution, and then issues a writ of execution. The

writ of execution is carried out by virtue of a levy on execution of

the properties of the judgment debtor. But the properties levied

upon were not sold during the first 5-year period. On the 6th

year, can the properties levied upon be sold at public auction?

Yes. According to the SC, the first 5-year period does not require that

the actual levy and sale of property on public auction must be done

within the first five years. What is important is that within the first 5

years, there must be an actual levy of the properties of the judgment

debtor, even if the auction sale was conducted in the sixth year. Levy

is the actual act of carrying out the judgment.

Revival of Dormant Judgment

Q: With respect to the revival mentioned in the Rules pertaining

to the second 5-year period, this is an independent action. If the

original action was a real action, will we still consider the revival

action as a real action?

Yes. If the original action is a real action, the action to revive that

judgment will also be a real action. Since it is a real action, in Rule 4,

the venue of the action will now be determined by the place where

the property is located. Thus, the revival of action will be filed in the

court having jurisdiction over the place where the property is

situated.

Q: To what court should revival of judgment be filed?

The case will be cognizable by the RTC because it is incapable of

pecuniary estimation.

Always remember that a petition to revive a dormant judgment is an

independent action separate and distinct from the original case. It is

not a mode of appeal or a continuation of that old case.

In fact, the decision of the ‘revival court’ is not really a revival of the

old judgment. It is a new judgment altogether. This is the reason why

a judgment may be revived in perpetuity. Although it is true that the

NCC says that the judgment will prescribe after 10 years, since each

‘revived’ judgment is a new judgment altogether, so long as there is a

revival every ten years, it may last in perpetuity. Of course, this does

not factor laches and the articles of NCC against bad faith.

Q: May the judgment debtor raise want of jurisdiction against an

action to revive judgment?

No. Within the second five-year period from entry of judgment, the

debtor cannot oppose an action to revive judgment by setting up the

defense that the judgment is void due to lack of jurisdiction over the


person of the defendant, as this is a collateral attack on the judgment

rendered.

Q: It is possible that the parties of the original action and the

revival of judgment are different. Will the petition to revive the

judgment be dismissed?

No. The mere fact that the names appearing as parties in the

complaint for revival of judgment are different from the names of the

parties in the original case would not necessarily mean that they are

not the real parties-in-interest. What is important is that, as provided

in Section 1, Rule 3, they are the party who stands to be benefited or

injured by the judgment in the suit, or the party entitled to the avails

of the suit.

Revival of a Judgment Already Executed

There is another revival of judgment, this time under Section 34 Rule

39. The revival of judgment in Section 34 Rule 39 is not the revival

of a dormant judgment, but refers to a judgment already executed.

The situation contemplated in Section 34 Rule 39 is that judgment is

executed, properties are levied upon, and these properties have been

sold at public auction, but the highest bidder, or anybody who

thereafter acquire the property, is not able to get possession of the

property because of opposition or legal complications that are related

to the execution of judgment. According to Section 34, the revival of

judgment could be had through a motion or through an independent

action. Thus, there is a difference between a revival of judgment

under Section 34, Rule 39 where it is a revival of a judgment already

executed via a motion or via an independent action, and the revival of

a dormant judgment where there has been no execution within the

first 5-year period prescriptive period of a judgment under Section 6

Rule 39.

Take note of the differences between the two kinds of revival of

judgments in Rule 39, under Section 6 and Section 34.

Process

The improvement given by Rule 39 under the 1997 Rules, insofar as

the judgment creditor is concerned, is that under the present Rules,

the writ of execution issued by the court has a lifespan of five years.

The judgment creditor does not need to file one motion for execution

after another, which was the prior practice when the life of the writ of

execution was only 60 days. At any time during that five-year period,

the sheriff could enforce the writ, he may make levy the properties of

the judgment debtor. The only limitation imposed by the Rules is that

the sheriff must file periodic reports to the court as to the progress of

the process of execution.

Q: How does the court enforce a duly entered judgment?

It all depends on the tenor of the judgment.

If the judgment awards money, there will be levy and auction.

If the award involves delivery of properties or documents, there

will be no levy on execution, but the property to be delivered will just

be seized from the judgment debtor and promptly delivered to the

judgment creditor.

If the judgment directs the judgment debtor to sign a deed of

conveyance or a deed of sale in favor of the judgment creditor,

and the judgment debtor refuses, the court can appoint another

person, usually the clerk of court, to sign the document on behalf of

the judgment debtor. That document cannot be considered a spurious

document, but one that is signed effectively by the judgment debtor

following a lawful order of the court.

If the judgment directs the judgment debtor to vacate a piece of

land or building, the court, through the sheriff, will forcibly oust

him from the building. The court will throw out the things belonging

to the occupants.

In a writ of execution, the writ will be directed to the sheriff. The writ

will contain verbatim the dispositive portion of the decision. The writ

of execution directs the sheriff to carry out the duty of executing the

dispositive portion of the judgment of execution.

Q: Can the court cite a judgment debtor for refusing to obey a

lawful order of the court in compliance with the judgment to be

executed?

No. Citation for contempt is generally not a remedy in enforcing a

judgment. Rule 39 contemplates an enforcement of a judgment by the

sheriff of the court making use of the processes in Rule 39. So if the

judgment debtor refuses to obey, a court cannot go to another court to

cite the judgment debtor in contempt. That is not contempt of court.

According to the SC, the writ is not addressed to the judgment debtor.

The writ is addressed to the sheriff of the court, and hence the sheriff

has the duty to carry out the dispositive portion of the judgment.

Q: Can there be contempt in collection of money cases by way of

exception?

Generally, no, but it is possible in support. Failure to give support can

result with the disobeying person being cited in contempt, as well as

being subjected to a criminal case for failure to give support.

Levy of Property

As a general rule, therefore, a judgment debtor who refuses to obey

the writ of execution cannot be cited in contempt. There are other

more effective remedies under Rule 39 in order to carry out the

possible satisfaction of the judgment. The more effective remedy

under Rule 39 is to levy the properties of the judgment debtor,

seizure thereof and sell them at public auction.

Q: Who possesses a property under levy on execution?

It depends.

Levy of properties under Rule 39 does not automatically mean that

possession of the levied properties will be in the hands of the sheriff

or the court. If properties of the judgment debtor that are levied upon

are real properties, the judgment debtor will continue to possess the

property and he will not be ousted. The court will simply submit a

copy of the levy of execution to the Register of Deeds and ask the

latter to annotate such fact. What is important to know in the levy of

real properties is that the judgment debtor will not be ousted from his


physical possession of the real property. He will continue to be in

possession of the real property although it is already subject of a levy.

But when the property levied upon is personal property, the physical

possession of the property will be turned over to the sheriff. In fact,

the properties will literally be placed in custodia legis.

Q: What happens after the levy is implemented by the court?

Levy of properties under Rule 39 should always be followed by sale

by public auction. We will not have execution if we stop at levying of

properties. The levy must always be accompanied by a sale by

auction. If there is only levy without a sale by auction, then that levy

can be nullified by the court. It is the duty of the court to see to it that

an actual levy of properties should be followed by a public auction

sale.

Under Rule 39 and under certain special laws, there are certain

properties of a judgment debtor that is exempt from levy. If the

property of the debtor that is exempt from execution is levied upon,

the levy is void, and the sale thereof is also be void. The validity of

an auction sale shall always stem from the validity of a prior levy.

Even if there is valid levy, but if there are requirements not complied

with before, during or after auction sale, the sale will be void, and the

buyer will not acquire title to the property sold.

Terceria / Third-Party Claim

The principles in Rule 39 and Rule 16 are practically identical.

Terceria is predicated on the premise that the property levied upon by

the sheriff for the purpose of executing of the duly entered judgment

does not belong to the judgment debtor. If the property levied upon

belongs to another person, the levy is not valid. Rule 39 expects that

the property levied upon by the sheriff belongs to a judgment debtor.

If the sheriff makes a levy on properties which do not belong to the

judgment debtor, you can expect the true owner to complain. The true

owner can file a complaint for the recovery of the real property from

the sheriff. The filing of such complaint of the owner is just one of

the several remedies which the owner can avail of. In Rule 39, the

remedy refers to the filing of a third party claim.

Terceria, however, is not the only remedy available to the true owner.

He may have other remedies.

Q: What are the remedies available to a third-party claimant in

levy of real property?

A:

1. Summary hearing before the court which authorized the

execution;

2. Terceria or third party claim filed with the sheriff;

3. Action for damages on the bond posted by judgment

creditors; or 4. Independent reinvindicatory action.

The remedies are cumulative and may be resorted to independently of

or separately from the others.

The sheriff shall not be liable for damages for the taking or keeping

of the property to any third-party claimant if there is a bond filed by

the winning party. If there is no bond, the sale cannot proceed.

However, the judgment obligee can claim damages against a third-

party claimant who filed a frivolous or plainly spurious claim, and

such judgment obligee can institute proceedings therefor in the same

or separate action.

Replevin is also a remedy of the true owner of the personal property

if it was improperly levied and sold

If the property is a real property, the true owner/third-party claimant

can file an independent action to prevent the sheriff from selling the

property.

The easiest and most practical remedy available right away to the true

owner is a Third Party Claim. It does not require the filing of a

complaint, just the submission of an affidavit to the sheriff and to the

court, setting forth his ownership and entitlement to the possession,

and that the property should not be levied upon because this is not a

property of the judgment debtor. Evidence appurtenant thereto must

be attached.

Q: Can the court render a judgment that will tell the sheriff that

the property is not the third party claimant’s but that of the

judgment debtor?

No. The third party claim is an incident to the execution process, the

trial proceedings are over insofar the court is concerned. The court

has no power to resolve an issue of ownership involving the property

levied upon. It should be threshed out in a separate complaint.

Regardless of a finding by the execution court that the true owner is

the judgment debtor, that will have no bearing on the third party

claimant. That order will not be entered, it will not be considered a

judgment on the merits and will not constitute res judicata insofar as

a third-party claimant. If at all, the consequence of the finding of the

court is that the sheriff can go ahead with the sale of the property.

Q: If the sheriff schedules the sale, can third party file an

independent action to stop the sale of real property?

Yes, he can file the complaint in another court, RTC, for injunction

with claims for damages, if any.

Q: If the property levied upon is a personal property of a third-

party claimant, can the third-party file a complaint for replevin?

Yes. The claimant must implead the sheriff and the judgment creditor

/ judgment obligee.

Q: If the executing court is an RTC, and third party claimant

files a case for replevin, can he file it in the MTC?

Yes, as replevin is cognizable by the MTC depending upon the value

of the thing subject to the auction sale.

Q: Is this interference with the other court? Can the sheriff in the

other court claim that the seizure is interfering with the

proceedings of the other court?

No. The sheriff of the MTC can seize the personal property from the

sheriff of the other court.


Q: Cannot the sheriff of the MTC capitalize on the provisions of

Rule 60 on replevin that the writ of replevin cannot be enforced

when the property is subject to attachment?

If you go to Rule 60, it is really a requisite in the issuance of a writ of

replevin. The issuing court can issue a writ of replevin validly if the

property to be seized is not under custodia legis, not under a levy of

execution or attachment. If the property is subject of a levy on

execution, it is under custodia legis.

But notwithstanding that provision in Rule 60, the SC said that a writ

of replevin issued by the MTC will prevail over the levy on execution

writ by the sheriff because the writ of execution by the sheriff is void.

Rule 60 assumes that there was a prior valid levy on execution. For a

property to be validly levied upon, the property must be owned by the

judgment debtor. Otherwise, the levy is void. Therefore, the property

can be the subject of a seizure by another sheriff in compliance with a

writ of replevin issued by another court, even if it is an MTC. It is

proper for the MTC to issue a writ of preliminary mandatory

injunction directed against the sheriff to prevent the sheriff from

going ahead with the sale.

In Rule 39, if the property of judgment debtor has been subjected

to levy on execution, can it be subjected to another levy on

execution?

Yes. If there are several cases where the property is subject to levy, it

is possible the same property can be subject again to another levy on

execution. The debtor remains to be the owner of the land, and the

levy creates a lien only over the property. The first levy annotated on

the title of the property shall be superior to the subsequent levies

following the principle of seniority. The SC held that if the property

is the subject of different levies, and the judgment debtor sells the

property, the sale is valid, as the judgment debtor is still the owner of

the property at the time of the sale. But the buyer must respect the

annotations of levies in the title as to the liens imposed. So, if the

property is sold at public auction sale later on in execution of the first

judgment, the person who bought it from the judgment debtor stands

to lose the property. The buyer is not considered a buyer in good faith

due to the said annotation of the levies in the title.

Q: If the property was mortgaged by the judgment obligor to a

bank, can the sheriff still subsequently levy the property?

Yes. The levy only creates a lien. The judgment obligor only loses

ownership if there was a public auction sale thereon. But ownership

shall not immediately be lost, so long as judgment debtor still has the

right of redemption.

Right of Redemption

If in cases where there are two different levies over the same piece of

land of the judgment debtor, usually, the property will be sold as a

result of the first levy of the property. If the property is later on sold

at public auction, and since the law gives to the judgment obligor the

right of redemption, this right of redemption will also be enjoyed by

the buyer.

Q: What is the rule on successive redemption?

The right of the first levy holder to redeem is a distinct right from the

second levy holder to redeem the property. If it is the second holder

who redeems the property, there could be another redemption by the

judgment debtor. Under Rule 39, when it is the judgment debtor who

redeems the property from the highest bidder, other rights of

redemption are cut off by virtue of the redemption by the judgment

debtor. There are successive redemptions only if the redemptioner is

not the judgment debtor himself. If the one who redeems the property

is another lien holder, we can apply the rule of successive redemption

which says that another redemption can be had within 60 days from

the efficacy of the first redemption, even if the one-year period for

redemption has already expired.

For example, there are three redemptioners, one being the judgment

debtor. If the redemption is carried out by the judgment debtor, the

rights of redemption of the other two are cut off. Redemption for all

of them is one year from the registration of the sale in the certificate

of title. So we have to assume that redemption should be within one

year from the registration of the certificate of sale in the certificate of

title. If the second levy holder redeems the property, then the third

levy holder can further redeem the property within 60 days from the

last redemption. But within the one-year period, the judgment debtor

can redeem the property, who upon his exercise of his right of

redemption, the rights of the others to redeem will be cut off.

Q: Will this not cause prejudice to the other levy holders if we cut

off their right to redemption?

No, it will not. The levy holders will simply enforce their levy since

the property is in the hands of the judgment debtor. They can have

another public auction sale of that levied property.

In civil law, as well as in Rule 39, the SC has accepted the principle

that whenever there is a doubt in the interpretation of redemption

rules and laws, the interpretation should always be in favor of the

redemptioner, the judgment debtor.

Rule 39 is also very clear in saying that right of redemption will exist

only when the property sold at public auction is real property. When

the property levied upon and sold at public auction is a personal

property, there is no right of redemption.

Q: Why is there no right of redemption in the auction sale of

personal properties?

1. If personal property is sold in auction, and the price

generated is inequitably low, the sale is void. The highest

bidder does not acquire ownership of the property. The

court will issue an order declaring the sale as ineffectual.

Sheriff must schedule another auction sale until the price generated is not inequitably low.

2. If real property is sold at public auction, it does not matter

even if the price is inequitably low, the sale will be valid.

The low price will not render the sale void because of the

existence of the right to redeem by the judgment debtor. If

the price is very low, that is advantageous to the judgment

debtor, because if he decides to redeem the property, he need only to match the auction sale price.


Due to the above principles, the price generated during the auction

sale will be insufficient to pay the lien of the judgment creditor.

Q: Let us say that the judgment creditor has a lien of 1M, and a

piece of land owned by the judgment debtor was sold at public

auction, but generated only 500K. It is not enough to pay in full

the award given to the judgment creditor. The 500k will go to the

judgment creditor, but there is still a balance of 500k. When the

judgment debtor redeems the property, should he deliver to the

sheriff 500k or 1M?

The judgment debtor should deliver only 500k. He need not deliver

1M because the price paid by the highest bidder was only 500k.

Q: So, if the judgment debtor was able to redeem the property by

producing 500k, but the judgment creditor was not yet fully paid,

the judgment creditor will be tempted to have another levy on the

property. The judgment creditor could really entertain that idea

because he has not yet been fully paid. In Rule 39, there must be

full satisfaction of the award to put an end to the litigation. If the

judgment creditor decides to have another levy on the same

property previously levied upon, but the property had been

redeemed by the judgment debtor, can the same levying creditor

carry out another levy on the same property?

SC held that the same levying creditor cannot impose another levy on

the same property.

If the levying creditor wants to have full satisfaction of his lien, he

should make another lien on another property owned by the judgment

debtor. He could also avail of the other remedies provided for in Rule

39 if he cannot get full satisfaction of the judgment.

But this principle does not prevent other creditors from levying the

property that was already redeemed.

Q: Let’s do a little backtrack. Who may redeem the property?

The judgment debtor, other creditors who has a lien subsequent to the

attaching creditor, and the assignee of the judgment debtor’s right to

redeem may all redeem the property.

Q: May the right of redemption be levied?

Yes. It could be a subject of a levy of execution, but not by the same

attaching creditor. For example, if A attaches B’s property where it is

eventually sold in an auction sale, another creditor, C, may attach B’s

right to redeem his property from A. But A may not attach the same

right of redemption because this would negate the idea of giving the

right of redemption to the debtor in the first place.

Q: The period of redemption is one year from the date of

registration of the certificate of sale. May the parties agree that

the period will be three years instead of one?

Yes. This shows the conversion of a legal redemption to conventional

redemption and is allowed by the NCC.

Q: How about they agree to reduce it to six months?

This is not possible. They may also extend the period, not reduce it.

Fruits

Q: Who is entitled to the fruits of the levied property?

Rule 39 is clear. The fruits of the property sold at public auction

during the period of redemption shall redound to the benefit of the

judgment debtor when the redemption period is still running.

The basis of course is that the judgment debtor still retains ownership

over the property.

Q: What are the rights of a judgment debtor during the period of

redemption?

1. To remain in possession of the property until the expiration

of period of redemption;

2. To collect rents and profits until the expiration of period of

redemption;

3. To use the property in the same manner it was previously

used;

4. To make necessary repairs; and 5. Use it in the ordinary course of husbandry.

Auction Sale

In the auction sale, anybody can bid, even the judgment creditor. It is

usually the judgment creditor who will be offering the highest bid

because the judgment creditor can give an amount equivalent to the

award given by the court. If the award given by the court is 1M, then

the judgment creditor can give an amount as high as 1M. He need not

turn over any cash to the sheriff, because he will just tell the sheriff

that he will consider the 1M lien as fulfillment of his claim.

If a stranger is the highest bidder, this stranger is expected to give the

P1M to the sheriff.

Q: Can the judgment creditor be forced to shell out the

equivalent of the highest bid even if the highest bid is exactly

equivalent to the amount of his claim?

Generally, no. But if there is a third party claim, a terceria, and the

highest bid was that of the judgment creditor, the judgment creditor

must still shell out cash in order to be treated by the sheriff and the

court as the highest bidder.

Q: Let’s say there is a highest bidder other than the creditor. To

whom should he deliver the cash or issue the check for?

He must issue the check to the order of the judgment creditor, not the

sheriff or the court.

Q: What happens if there is still a balance after auction sale?

If the judgment creditor is not fully paid, there are other options

given to him in order to fully satisfy the claim:

1. File a motion in the court for an examination of the

judgment debtor.

2. File a motion in the executing court for the examination of

a debtor of the judgment debtor.

3. File a motion for the appointment of a receiver for the remaining properties of the judgment debtor.

Under the second ground, if there is evidence to show that these third

persons really owe the judgment debtor certain amounts of money,

which are not exempt from levy on execution, the court can issue an

order allowing the judgment creditor to file a separate complaint for


the recovery of these accounts. Although the judgment creditor has

no cause of action against the third persons themselves, it is possible

under the Rules.

Receivership is allowed by the court, although the case has already

been terminated. This is one instance where a provisional remedy can

be used even after a case has been decided by the court. The usual

concept of a provisional remedy is that they are availed of during the

pendency of the case, before entry of judgment. But in the case of

receivership, this remedy can be availed of under Rule 39 even if the

case has already been decided, judgment has been entered and is now

subject to execution.

THE PRINCIPLE OF RES JUDICATA

Res judicata under Rule 39 consists of two sections, Sections 47 and

48. Dean Jara advises to memorize these two sections. For recitation

purposes, definitely memorize these two sections.

Section 47 is concerned with the effect of local judgment after it is

entered, and Section 48 is the effect of a foreign judgment.

In our study of res judicata, there are 3 essential elements:

1. Identity of parties

2. Identity of causes of action 3. Identity of subject matter

Besides this identity element, there should also be:

1. A competent court;

2. An adjudication on the merits; and 3. The decision must have become final and executory.

Section 47

Section 47 comprises of three subparagraphs.

Subparagraph (a) has to do with a judgment in rem.

Subparagraph (b) has to do with judgments in personam.

And subparagraph (c) talks about conclusiveness of judgment. This is

also known as preclusion of issues.

Subparagraphs (a) and (b) are also known as bar by prior judgment or

preclusion of claims.

When the judgment is entered as contemplated in Section 47, Rule

39, then the effect of the judgment is similar to a judgment in rem or

judgment in personam as the case may be. The collateral principle

that we adopt from this principle on res judicata is the doctrine of

finality of judgment, also known as immutability of judgment.

Under this doctrine, a decision that has acquired finality becomes

immutable and unalterable, and may no longer be modified in any

respect, even if the modification is meant to correct erroneous

conclusions of fact and law, and whether it be made by the court that

rendered it or by the Highest Court of the land. Any act which

violates this principle must immediately be struck down.

Q: Rule 39 implies that the petition to revive a dormant

judgment is an independent action. Will this not violate the

principle of res judicata?

No. Although there is identity of parties, there is no identity of causes

of action. The cause of action for the petition to revive the dormant

judgment, which is obviously the revival of the dormant judgment, is

different from the first case.

This is the same reason why Rule 47 will not violate the principle of

res judicata. Although the parties are the same, the causes of action

are not. The cause of action in Rule 47 is the annulment of judgment

of the court. It is different from the cause of action in the first case.

Q: Are there any exceptions?

Yes. If you read FGU Insurance, there are exceptions to the doctrine

of immutability of judgment. These are:

1. The correction of clerical errors;

2. the so-called nunc pro tunc entries which cause no

prejudice to any party;

3. void judgments; and

4. whenever circumstances transpire after the finality of the

decision rendering its execution unjust and inequitable.

Read: FGU Insurance v. RTC

Note: Dean Jara says there is a fifth ground involving a 2007 case. I

cannot find it. The old notes say ‘when substantial justice so requires’

but he denies this is the fifth ground during our recitation. Or I’m just

sleepy during that time. Anyway, make more research, and read more

notes. There is a fifth ground, I just don’t know what.

If you read Dean Albano’s Survey of SC Decisions (San Beda Law

Journal, Vol. XLIX), Dean Jara might be referring to either unjust

enrichment or the court’s exercise of its equity jurisdiction.

Unjust enrichment is covered, however, by number 4, and equity

jurisdiction is more the reason, the root cause, why these judgments,

though immutable, may be still changed. So there’s that.

Q: How do you rectify void judgments?

A collateral attack since void judgments are ineffective anyway, or a

direct attack in the form of a petition for relief from judgment or a

petition to annul the judgment.

Q: What is a judgment nunc pro tunc?

It is a judgment intended to enter into the record the acts which had

already been done, but which do not appear in the records. Its only

function is to record some act of the court which was done at a

former time, but which was not then recorded, in order to make the

record speak the truth, without any changes in substance or any

material respect.

Judgment In Rem


Under subparagraph (a) the law says the judgment is conclusive upon

the title to the thing, the will or administration, or the condition,

status or relationship of the person.

This is the reason why a cadastral proceeding is considered as an

action in rem. The judgment in that litigation is conclusive upon the

title and is not conclusive upon the plaintiff or defendant. Since the

judgment in a cadastral proceeding is conclusive upon the title of the

property, that judgment will have to be binding against the litigants as

well as anybody who has an interest over the property, although these

persons might have not been involved in the litigation.

In the probate of a will, which is another procedure in rem, when

there is a decision of the court admitting the will to probate, it is

conclusive upon the will or administration. Therefore, anybody who

has an interest in the will must respect the decision of the court.

But you will notice that there is a caveat when it comes to a probate

of a will: It is not conclusive as to the fact that the testator is dead.

There is only a disputable presumption, unless proof thereof is

presented. The reason for this is that in civil law as well as in the

Rules, it is possible that probate may be commenced even when the

testator is still alive, provided that the probate of the will is initiated

by the testator himself.

If a person has been issued a decree of adoption of a child named

Juan dela Cruz, the decree is conclusive upon the personal status of

that adoptee. Therefore, anyone who meets the adoptee and transacts

with him shall be bound by the issued decree of adoption.

Judgment In Personam

Under subparagraph (b), the law says the judgment is conclusive

between the parties and their successors in interest by title subsequent

to the commencement of the action or special proceeding, litigating

for the same thing and under the same title and in the same capacity.

In letter b, when the law says that judgment is conclusive upon the

parties and their successors in interest as to matters directly adjudged

or as to matters that could have been adjudged, that phrase “litigating

for the same thing and under the same title and in the same capacity”

will refer, for instance, to a compulsory counterclaim or a cross-

claim. This is because we learned that a compulsory counterclaim or

a cross-claim that is not raised in the same action shall be barred. The

reason they will be barred is because they are matters that could have

been raised in relation to the principal action.

An example of an action in personam is reconveyance of property. If

the action is an accion reinvindicatoria, it is an action in personam.

Although real property is involved, still it is an action in personam. It

is an example of a real action that is still in personam.

Q: Plaintiff won the case for reconveyance of property. Judgment

is entered. The plaintiff is now the owner of the property insofar

as the judgment is concerned. However, X, the true owner of the

property, filed a case for recovery of the property. Is there res

judicata?

No. There is no identity of parties between the first and second case.

There is therefore no res judicata.

Q: If there is identity in the subject matter, does it not follow that

there will be identity in the causes of action?

No. There could be identity as to the subject matter, but the causes of

action could still be different.

For instance, in accion reinvindicatoria, the subject matter involves a

piece of land. The case involves title to a piece of land. If there was

another complaint filed involving the same piece of land, the cause of

action could be different, although they are referring to the same

land. For instance, there could be a case for unlawful detainer filed

involving the same property. Though involving the same property,

the same subject matter, the causes of action are different. Accion

reinvindicatoria involves recovery of title to property, while unlawful

detainer involves recovery of physical possession of the property.

The second case cannot be dismissed by reason of res judicata since

there is no identity of causes of action.

Q: What is the essential difference between a judgment in rem

and a judgment in personam?

The big difference is to whom the binding effect of res judicata shall

attach. If it is a judgment in rem, the judgment shall be binding to the

world. If it is a judgment in personam, it is only binding between the

parties and their successors in interest.

Conclusiveness of Judgment

Subparagraph (c) of Section 47 is a kind of res judicata with limited

application. There could be identity of parties and subject matter, but

there is no identity of causes of action. Thus, subsequent cases may

prosper due to absence of res judicata.

Q: The debt based on a promissory note was 1M payable in two

installments. The debtor defaulted in the first installment. The

creditor filed a case where creditor stated that the PN’s signature

was forged. The court held that the signature on the note was

genuine. Then, the second installment became due. Can another

complaint be had?

Yes. Each installment gives rise to a separate cause of action.

Q: Can forgery be raised again on the promissory note?

No. The judgment on the first case is conclusive insofar as the

genuineness of the note is concerned.

Q: Let’s have another example. A filed a case against B where the

issue is ownership of a certain building. It was settled that A is

the owner. B, however, filed another case against A, but this time

it’s possession of said building. Will the case be dismissed under

subparagraphs (a) or (b) of Rule 39?

No. Although there is identity of parties (A and B) and identity of the

subject matter (the building), there are no identity of causes of action.

The question in the first case is ownership. In the second case, it’s

possession.

Q: May B raise the question of ownership in the second case?


No, he may not. Although there is no identity of causes of action,

conclusiveness of judgment shall apply. The same issue of ownership

has been tackled before in the first case. As to that particular issue,

between the parties, it is now res judicata. The second case, however,

will still proceed.

Law of the Case

Q: State the principle of ‘law of the case.’

This refers to questions of law that arise out of one case, and the

question of law is brought on appeal to a higher court. If that question

of law is finally resolved by the appellate court, and the decision of

that appellate court has become final and executory, that decision of

the appellate court on this particular question of law shall be binding

when the case is remanded to the trial court for further proceedings.

For example, A filed a case against B in the RTC. B filed a

Motion to Dismiss. The court denied the Motion to Dismiss. B

raised the issue to the CA by certiorari. The CA resolved the

issue of jurisdiction. The court affirmed the denial of the Motion

to Dismiss. The CA says, ‘Yes, the court has jurisdiction.’ B filed

an answer. The court continued to hear the case.

After trial, of course, the court rendered a decision. The decision

is in favor of A. B appealed to the CA. May he assign as an error

during appeal the question of jurisdiction?

No, he may not. He can no longer raise this as an issue since this has

long been resolved by a higher court in a prior petition for certiorari

and prohibition. As long as the parties remain the same and the facts

have not changed, the decision of the appellate court on this issue of

jurisdiction will continue to be binding as the law of the case between

the parties.

The law of the case is almost similar to conclusiveness of judgment

except the law of the case pertains only to questions of law and these

questions must have been decided by a higher court.

Foreign judgments in rem and in personam

If the foreign judgment is in rem, it is conclusive upon the title of the

thing. If the judgment is in personam, there is only the presumptive

evidence of a right as between the parties and their successors in

interest by a subsequent title.

Q: There is a foreign judgment rendered by the Japanese Court.

The relief which the creditor stated in the Japanese court is the

fulfillment of an unpaid loan of 100k. The Japanese court decides

the case in favor of the debtor. The debtor is required to pay the

100k in the Japanese court. The Japanese court had not executed

the judgment. Somehow, the debtor and creditor were now living

in the Philippines. The judgment debtor has accumulated certain

properties in the Philippines. Can the judgment creditor in that

Japan case file a motion for execution in the Philippine courts?

No. The Philippine court cannot entertain the motion as it knows

nothing about the claim of the judgment creditor against the judgment

debtor in the Japan case.

Q: Is there a remedy available to the judgment creditor to

enforce the judgment of the Japan court in the Philippines?

Yes, the remedy is found in Section 48 (b) of Rule 39. The judgment

from the Japanese court is a presumptive evidence of the judgment

creditor’s right against the judgment debtor.

Q: How does the judgment creditor make use of that rule that the

decision of the Japan court is presumptive evidence of his right

against the judgment debtor?

The judgment creditor should file an independent complaint for the

enforcement of decision of the Japan court. The only evidence that he

needs to convince the court is to present a certified true copy of the

decision rendered by the Japan court. If he is able to present a

certified true copy of the decision to the Philippine court, the court

will then apply the presumption given under Section 48(b) Rule 39.

In Section 48, there is a last paragraph talking about repelling of a

foreign judgment. A judgment of a foreign court can be repelled by:

1. Evidence of want of jurisdiction

2. Want of notice to the party

3. Collusion

4. Fraud 5. Clear mistake of law or fact committed by the foreign court

Hence, if the creditor files a case for the enforcement of the decision

of the Japan court, the judgment debtor can present evidence that will

repel the foreign decision, such as want of jurisdiction.

Q: Can all these grounds repel a local judgment?

No. The defenses available for repelling the execution of a foreign

judgment are not availing to repel a local judgment.

Q: Why cannot the defendant oppose the execution of a local

judgment using the grounds to repel a foreign judgment?

We do not allow a motion for execution to be denied on the argument

based on want of jurisdiction, want of notice to the party, collusion,

fraud, or clear mistake of law or fact committed by the court because

that will be a collateral attack on the judgment, which is generally not

allowed under the Rules.

We can only allow a direct attack on the judgment by filing a petition

to annul that judgment, on the ground of lack of jurisdiction over the

subject matter, lack of jurisdiction over the person of the defendant or

extrinsic fraud. We cannot use these grounds to collaterally attack the

judgment in our system.

When we say collateral attack, the person attacking the judgment

does not file a separate complaint for the purpose of having that

judgment set aside. If he only opposes a motion for execution, and

the ground is that of lack of jurisdiction over the case, it is not

allowed since that is a collateral attack on the judgment.

Section 48 allows collateral attacks only against a foreign judgment,

which cannot be allowed insofar as local judgments are concerned.

With respect to collusion and fraud, they are also grounds to attack

directly the judgment under Rule 47 (Annulment of Judgments), and

under Rule 38 (Petition for Relief from Judgments). What cannot be

done is a collateral attack against a final and executory judgment.


Q: When can a collateral attack be had against a judgment?

When the judgment is patently void on its face, it is vulnerable to

collateral attacks.

PROVISIONAL REMEDIES

Provisional remedies are also called interim reliefs or provisional

orders. They are called provisional because they are only temporary,

auxiliary. It is not possible for the plaintiff to file a complaint solely

for the purpose of obtaining any of these provisional remedies.

Q: What are the Provisional Remedies under the Rules of Court?

1. Preliminary Attachment (Rule 57)

2. Preliminary Injunction (Rule 58)

3. Receivership (Rule 59)

4. Replevin (Rule 60)

5. Support Pendente Lite (Rule 61)

Q: The enumeration of provisional remedies in the rules is no

longer exclusive. What are other provisional remedies available?

1. Writ of Habeas Data

2. Writ of Amparo

3. The provisional remedies under a writ of amparo:

a. Protection Order

b. Production Order

c. Witness Protection Order

d. Inspection Order

4. Provisional Remedies in Marriage-Related Cases:

a. Spousal Support

b. Child Support

c. Visitation Rights

d. Temporary Custody of Minor/s

e. Hold Departure Order

f. Protection Order g. Administration of Common Property

See: A.M. 02-11-12-SC

5. Provisional Remedies under a Writ of Kalikasan:

a. Temporary Environmental Protection Order

(TEPO)

b. Preliminary Attachment c. Cease and Desist Order

Also, these discovery measures that appears to be

considered as provisional remedies:

d. Ocular Inspection Order

e. Production Order

Q: What is the common element of provisional remedies?

There is a pending principal action, except when the provisional

remedy by itself is or can be treated as a principal action, such as

Replevin, Writ of Amparo and Writ of Habeas Data.

We cannot file an independent action solely for the purpose of

obtaining as a principal relief any of these provisional remedies.

For example, a creditor cannot file a case solely for the purpose of

obtaining a preliminary attachment. Preliminary attachment should be

a relief prayed for in an independent case.

Support pendente lite cannot be a principal action, but there can be a

principal action called a complaint for support, with application of

the provisional remedy of support pendente lite.

Writ of Amparo and Writ of Habeas Data are actions in themselves,

but may be treated as provisional remedies. If there is a criminal case

already filed involving the disappearance of a person, that criminal

action being the principal case, a writ of Amparo or a writ of Habeas

Data may be used as a provisional remedy.

Although we have several provisional reliefs, interim reliefs or

provisional orders, it is incorrect to assume that they are the same.

These different circulars have not adopted the provisions in the Rules

of Court (Rules 57 to 61).

If you will notice under Rules 57 to 61, one of the common

requirements is the posting of bond by the applicant (except support

pendente lite). For example, we have an attachment bond, receiver’s

bond, production bond, and the like.

In the circular on marriage-related cases, the family court can grant

these provisional orders with or without bond at the discretion of the

family court. Also, in the same circular, the family court can grant

these provisional orders with or without a hearing, which is similar to

some provision in the Rules that some remedies can be granted ex

parte.

In the Amparo circular, when it comes to the provisional relief of a

Production Order and Inspection Order, there must be a motion filed

by the applicant and a hearing conducted. In the case of a Witness

Protection Order and Protection Order, they can be issued ex parte.

In the Amparo circular, there is nothing mentioned about the posting

of a bond by the applicant.

In the circular for the Writ of Kalikasan, the issuance of Temporary

Environmental Protection Order (TEPO) does not require a bond. Just

like preliminary injunction, there can be TRO good for 72 hours, but

can be extended until the end of the case. What is peculiar is that

the party required to post a bond in a TEPO is not the applicant

but the adverse party who will apply the lifting of the TEPO.

When the adverse party moves for the lifting of the TEPO, the

adverse party is required to file a bond to protect the other party.

In most preliminary reliefs, it is the applicant who files a bond. The

filing of a counterbond will lift the preliminary relief. The same is

true with a TEPO, but the applicant does not have to file a bond. If

the TEPO is issued, and the adverse party wants to have the TEPO

lifted, he will be required to post a bond to protect the interest of the

applicants.

A common rule of provisional remedies that is also applicable to the

issuance of the interim reliefs is that the interim relief or provisional


order is always interlocutory; it is not a final order and has nothing to

do with the merits of the case. Appeal is not allowed.

The accepted remedy to challenge the issuance of a provisional

remedy or interim relief or a provisional order is Rule 65, but in some

circulars, that also has been changed substantially.

For instance, under summary procedure, when it grants a provisional

order, it is not appealable, and the adverse party cannot file a petition

under Rule 65. The reason is that the application of availment of Rule

65 in order to challenge an interlocutory order is prohibited under

summary proceedings.

Likewise in Amparo, there is a similar provision stating that the grant

of provisional order is interlocutory and Rule 65 is not available,

being an express prohibited pleading.

In the circular of Kalikasan, the issuance of TEPO is also

interlocutory. Although TEPO can be challenged, the problem is that

the challenge on a TEPO can only be filed before the SC under Rule

65. Only SC can entertain a petition assailing the issuance of a TEPO.

Q: May MTC grant interim relief?

Yes. This has been settled under BP 129. Under Sec. 33 of BP 129, it

is clearly provided that MTCs have authority to grant provisional

remedies so long as it has jurisdiction over the principal case.

PRELIMINARY ATTACHMENT

You will notice in Section 1 that there are six (6) instances where one

can file for the relief of preliminary attachment. In the first five, there

is a common denominator, intent to defraud the applicant.

The last is closely related to Rule 14, i.e., summons. The applicant is

moving for an interim relief in order to enable him to secure for

himself a judgment in court by attaching the properties of the party

who otherwise could not be served with summons in any manner,

including publication. When property of the absent party is attached,

the action in personam will be converted to an action in rem or quasi

in rem by virtue of a preliminary attachment issued by the court and

actually implemented by the sheriff.

Except for the last part of Section 1, the only purpose of the applicant

in moving for the issuance of a writ of preliminary attachment is to

obtain a security for any judgment that may be rendered later on by

the trial court in his favor.

If we will note the cases enumerated in Section 1, the conduct of the

adverse party is criminal in character. The fraud committed could be

a criminal fraud or a civil fraud. The conduct should fall in any one

of the instances under Section 1 of Rule 57.

Thus, the issuance of a bouncing check can cause the filing of an

information and an application for attachment of properties of the

drawer. There is fraud in the performance of an obligation. Under the

NCC, there is fraud either in the performance of an obligation (dolo

incidente), or in contracting (dolo causante, a deception employed by

one party prior to or simultaneous to the contract in order to secure

the consent of the other). In both instances, they are justification for

the issuance of preliminary relief.

Q: A borrower obtains a loan from a bank and later on the

borrower became addicted to gambling. He loses tons of money

and he defaults in the payment of the loan. The bank naturally

filed a complaint for the recovery of the loan. May the bank ask

to levy the properties on the ground that the borrower is a

gambling addict?

No. This is not one of the grounds enumerated in Section 1, Rule 57.

Q: Supposing the plaintiff has a creditor that holds collateral. If

there is default in payment of indebtedness, and there is a case of

collection with allegation of intent to defraud, can the creditor

move for preliminary attachment over properties other than the

collateral?

Yes. Although applicant may already have a security or a collateral in

hand, the court may still grant preliminary attachment if the applicant

proves such collateral/security is insufficient to satisfy the debt. Thus,

creditor can look for other properties of the debtor sufficient to secure

the obligation due once the court grants preliminary attachment.

Q: When may preliminary attachment be asked and issued?

It may be issued from the commencement of the action until the

judgment is entered. It is quite long and may even be applied for even

during appeal.

Q: What should the application for preliminary attachment say?

The application should be verified and contain the following:

1. A sufficient cause of action exists;

2. That the case is one of those mentioned in Section 1;

3. That there is no other sufficient security for the claim

sought to be enforced; and

4. That the amount due to the applicant, or the value of the

property the possession of which he is entitled to recover, is

as much as the sum for which the order is granted above all legal counterclaims.

The applicant must also post an attachment bond, the value of which

shall be determined by the court.

In preliminary attachment, there are two rules that are applicable to

preliminary attachment as well as other provisional remedies in the

Rules when they are granted ex parte:

1. Prior and/or contemporaneous service of summons 2. Principle under Section 20 Rule 57

Prior and/or contemporaneous service of summons

For a court to act validly, the court must acquire jurisdiction over the

cause of action, the person of the plaintiff and the person of the

defendant.

Preliminary attachment is available even before jurisdiction over the

defendant can be had. The plaintiff only had to post a bond and prove

during hearing ex parte that the grounds under Section 1 are complied


with. To carry out the writ, the sheriff must first serve the summons

and then the notice of attachment, or serve them contemporaneously.

This will remedy the lack of jurisdiction by the court over the person

of the defendant.

This principle is applicable to all provisional remedies that may be

granted ex parte even before the court has gained jurisdiction over

the person of the defendant. This can be applied, for instance, in

preliminary injunction and the preliminary relief of replevin.

Q: Why is preliminary attachment allowed to be heard ex parte,

even before the defendant may answer?

The plaintiff is contending before the court that the defendant is truly

a dishonest person. If the defendant be allowed to know about the

application for preliminary attachment, and he truly is dishonest,

there is great danger, a great possibility, that he will continue his acts

of dishonesty and hide all of his properties from the court.

This is true for all the grounds under Section 1, except the last. Under

the last ground, where the defendant is not a resident and is not found

in the Philippines, the purpose is to obtain jurisdiction over the case.

Q: What happens if the summons is not delivered?

The attachment is void, except if:

1. The summons cannot be delivered personally or by

substituted service despite diligent efforts;

2. the defendant is a resident of the Philippines temporarily

absent therefrom;

3. the defendant is a non-resident of the Philippines; or 4. the action is one in rem or quasi in rem.

Q: Who takes possession of the attached property?

It depends.

If properties of the defendant are going to be subject to attachment,

and these properties are those capable of delivery, like a car, they will

be seized in custodia legis so long as the preliminary attachment is

not lifted. But the property will not be delivered to the plaintiff, nor

used by the defendant. It will be in the custody of the court. If the

court takes three years to decide the case, the property will be under

custody of the court for three years.

In case of real property, the title will be annotated with a lien. The

owner will not lose ownership or possession. He can sell it, but the

buyer will be notified via the annotation on the title that there is a lien

and it is possible that the property can be subject to auction sale later

on. The buyer could stand to lose his title on the property. The buyer

cannot be considered a buyer in good faith. He will always be a buyer

with notice of the existence of the preliminary attachment.

If the defendant has a sizable bank account, the sheriff will simply

prepare a writ of garnishment and serve it upon the bank. When the

bank receives the writ, the bank will freeze the account up to the

amount of the claim. And if the bank account is frozen, the defendant

cannot use these funds anymore. The bank will not allow him to

withdraw. If it is a checking account and the defendant issued checks

thereon, the bank will dishonor the checks that are presented to it.

Thus, a preliminary attachment is a serious derogation of the rights of

ownership of the defendant.

In that writ of garnishment, which is also applicable to Rule 39, there

will be a new relationship created as an incident to the case, which

we call forced intervention – the bank, whether it likes it or not, will

be subject to orders of the court. So if a bank account is garnished,

whether the bank likes it or not, the bank will be forced to follow the

orders of the court, in the sense that the bank will have to freeze the

bank account of the defendant.

Q: Is it possible that a property under custodia legis be subject to

preliminary attachment?

Yes. The court that issued the preliminary attachment, however, will

not take over the control of the property attached.

Q: May there be multiple attachments over the same property?

Yes. It is possible. The reason is because a preliminary attachment

only creates a lien over the property that has been attached, and that

lien is not a certainty because the court will still try the case. If the

court later on rules against the applicant, the lien will be set aside.

Q: What if the property is under mortgage? May it be attached?

Yes. The preliminary attachment will only create a lien over the same

property. The mortgage also creates a lien over the property. In this

case, the principle of seniority of liens shall apply. The mortgage lien,

since it was made earlier than the attachment, will be the senior lien.

The preliminary attachment will only create a junior lien.

Terceria

The rules on terceria or a third-party claim under Rule 39 shall apply

to preliminary attachment. The only difference between Rule 39 and

Rule 57 is that the third party in Rule 57 may intervene, he may file a

motion for leave of court to intervene with the case. This is not at all

possible in Rule 39 because Rule 39 presupposes that there is already

a final and executory judgment. The right to intervene ends upon the

entry of judgment.

Lifting or Setting Aside of the Preliminary Attachment

Q: How is preliminary attachment lifted?

1. File a cash deposit with the court equal to the attachment

bond;

2. File a counterbond via surety authorized by the court; or

3. File a motion for lifting the preliminary attachment due to being improper or irregular.

Q: If the defendant has already posted a counterbond and the

preliminary attachment has already been lifted, can he apply for

reversal of the order granting preliminary attachment?

Yes. Even if the defendant has caused the lifting of the preliminary

attachment by payment of cash deposit or by counterbond, he can still

file a motion to lift the preliminary attachment. This is because he has

put up counterbond or cash deposit enough to secure the satisfaction

of the claim of the plaintiff in lieu of the property. If his motion is

granted, he will obtain the counterbond or cash deposit.

Principle under Section 20, Rule 57


Q: If there is a pending case and the applicant wins, there is now

a judgment on the merits in favor of the applicant. Can the losing

party, the defendant, still hold the applicant liable for improper

or irregular attachment even if he lost the case?

Yes. If the applicant eventually wins the case, it means the applicant

has a cause of action. But it does not necessarily follow that the cause

of action falls under Section 1 of Rule 57. He may not have been able

to prove dishonesty or intent to defraud. So, if the applicant failed to

prove that his case falls under the cases mentioned in Section 1 of

Rule 57, it means that the issuance of the court of the writ of

preliminary attachment was irregular and improper. The only

instances the court should grant preliminary attachment are the

instances mentioned in Section, 1 Rule 57. If the defendant wins the

case, the applicant shall be liable for damages as a matter of course.

But Section 20 is the procedure to be followed in rendering the

applicant liable for damages for a wrongful or improper issuance of a

writ of preliminary attachment.

The first principle under Section 20 Rule 57 is that the recovery

of damages should be had in the same case, not in an independent

action. The adverse party must submit an application for damages for

improper issuance of writ of preliminary attachment. The most

practical way of informing the court right away is to set up in his

answer a compulsory counterclaim for recovery of damages. If the

defendant did set up a counterclaim for recovery of damages, and

then the defendant eventually wins, he will just file an application

through a motion to conduct a hearing on the extent of liability to

which the defendant is entitled to recover.

It is not possible for the defendant who has won the case to file a

separate complaint for recovery of damages arising out of a wrongful

attachment. If he did so, that independent case will be dismissed,

even motu propio. due to res judicata.

Under Section 20, Rule 57, it is very clear that the extent of damages

to be recovered need not be equivalent to the attachment bond filed in

court. If the attachment bond is insufficient, the defendant may avail

of a levy of execution under Rule 39.

Remember that Section 20 of Rule 57 is applicable to preliminary

injunction, receivership, and replevin.

REPLEVIN

Replevin is accepted as a main action and as a provisional remedy at

the same time. Recovery of possession of property capable of manual

delivery is termed a complaint for replevin. It automatically rules out

a real action.

In replevin cases, without an application of a provisional remedy of a

writ of replevin, the plaintiff recovers possession of a personal

property only after the case has been decided in his favor. So, if the

plaintiff filed the case today for recovery of a car without an

application for the provisional remedy of a writ of replevin, and the

case was decided five years later, the car shall remain under the

possession of the defendant during those five years. Chances are, by

the time the case is decided, the car may already be in bad condition.

That is the role of a writ of replevin. If the plaintiff files a complaint

today for the recovery of a car, if he wants to gain possession of the

car right away, he should file an application for a writ of replevin in

order for him to immediately gain possession of the car.

Writ of replevin is tilted always in favor of the applicant. The court

can grant the motion or application ex parte. This is one provisional

remedy which cannot be granted by an appellate court. Only the court

of original jurisdiction can grant it because this can be granted only

before the defendant answers. But, like preliminary attachment (PA)

in some circumstances, there must be prior/contemporaneous service

of summons to cure the defect in jurisdiction over the person of the

defendant. Once served, the sheriff will seize the personal property.

To repeat, replevin is only available as a provisional remedy before

the defendant answers.

The value of the bond required is different than the other provisional

remedies. The bond is double the value of the property subject to

seizure as alleged in the complaint. The trial court has no authority

to increase or decrease the bond. It will be based solely on the value

of the property as alleged in the complaint.

Also, if the sheriff finds that the property is not in possession of the

defendant but a third person who is not a litigant, and said person

claims ownership of the property, the sheriff has no authority to seize

the property.

The solution to this is to advise the plaintiff to implead 2 defendants,

one who was known by the plaintiff to possess the thing subject to

the complaint and an unknown defendant. As a result, the sheriff can

rightfully seize the car from anybody who might be in possession, as

long as the unknown defendant is impleaded in the complaint.

The sheriff has a five-day holding period after seizure. If there is no

challenge on the sufficiency of the replevin bond, the sheriff shall

turn over possession to the plaintiff. This is the advantage of replevin,

it immediately enables the plaintiff to recover possession of the

personal property that is the subject of litigation.

Within the holding period of 5 days, the defendant can file a motion

to challenge the sufficiency of the bond.

If a 3rd person claims to be a true owner of the thing (like in Rule 57

and Rule 39), he must file a third-party claim with the sheriff. But in

replevin, the third party claim must be filed within the 5-day holding

period; otherwise, the third party claim is useless. After the fivew-day

holding period, the sheriff shall deliver the car to the applicant.

Q: A complaint for replevin was filed by X for recovery of a car.

The court issued the writ but the sheriff submitted a return

saying he cannot enforce the writ as the car can no longer be

found. What the plaintiff did after receiving the return was to file

another application for Preliminary Attachment of the properties

of the defendant based on the same complaint on the ground that

the defendant has gotten hold of the property fraudulently and


that he has hidden the car so it cannot be found and be subject to

seizure. Is this proper?

The conversion of application for a writ of replevin into one for an

issuance for PA is not proper. SC held that if plaintiff does not

succeed via replevin, he cannot use PA. If he desires to use PA, he

should overhaul his complaint. The allegations for the application for

a writ of replevin are different from that for issuance of a writ of PA.

In application for issuance of a writ of replevin, the plaintiff alleges

he is the owner or entitled to possession. PA is for security purposes,

the ownership of the property subject to it belongs to the defendant,

not a property of the plaintiff.

Q: May a property under preliminary attachment be subject to a

writ of replevin?

No. The property, if under preliminary attachment, is under custodia

legis. Remember that in PA, if it is a personal property, the sheriff

will obtain the property and put it in custodia legis.

Q: May a property previously subjected to a writ of replevin be

further subjected to another writ of replevin?

Yes, this is possible. The property is not under custodia legis. It is

under the possession of the last person who had the writ of replevin

issued.

Also, in replevin, the decision of the court can be in the alternative. If

the property itself cannot be delivered, the value of such property can

be delivered to the prevailing party.

Q: What if the party wishes to obtain possession of a real

property? What is his remedy if not replevin?

The party may make use of preliminary mandatory injunction (PMI).

This is not only recognized in the Rules but also the NCC.

PRELIMINARY INJUNCTION

The principal action could be any action coupled with an application

for a TRO or a writ of preliminary injunction. A special action for

certiorari under Rule 65 is usually accompanied by a verified

application for TRO and writ for PI. The relief usually asked for in

Rule 65 is for a writ to prevent or prohibit the respondent court from

going ahead with the case pending before the court, or in case of

certiorari, to set aside the decision or interlocutory order of the

respondent court. Preliminary injunction and TRO can be availed of

in any civil proceeding where the principal relief sought by the

applicant or petitioner is to prevent an act or compel performance of

an act. PI can also be had in criminal cases or special proceedings, as

long the principal relief is to compel or to prevent the performance of

an act.

Q: Who issues injunctive relief?

It may be granted b the court where the action is pending. If the

action or proceeding is pending in the CA or the SC, it may be issued

by the court or any member thereof.

Although the Rules state that any member of the CA may issue a writ

of preliminary injunction, the internal rules of the CA state that when

there is a motion filed to lift or set aside the PI, the member who

caused the issuance of the writ must consult the other members of the

division. He may not unilaterally decide the case alone. The reason is

that the member himself issued the writ. If he alone decides whether

or not it is effective, he of course will decide the case in his favor.

Q: What is the difference between PI and PMI?

PI is prohibitive, while PMI seeks the performance of a particular act

or acts. PMI applies where the act sought to be prevented has already

been done but the applicant wishes to restore the status quo. Whether

or not the case is PI or PMI, the rest of Rule 58 shall equally apply.

There are two provisional remedies contemplated under this Rule:

1. Temporary Restraining Order (TRO) 2. Writ of Preliminary Injunction

Both require an injunction bond.

As a general rule, the court cannot grant TRO or a writ of PI without

a hearing, unlike preliminary attachment. You should always expect a

summary hearing, with notice to both parties, to be conducted.

TRO can be granted ex parte, by way of exception, in instances when

there is grave and irreparable injury that will be caused to the

applicant, and in no way shall the total period of the TRO be longer

than 20 days. The court will still fix a TRO bond. During the 20-day

period, the court will still conduct a hearing to determine whether or

not a writ of PI will be needed.

PI, on the other hand, absolutely requires a summary hearing. A court

cannot grant a PI without a hearing. There is no exception. It is only

in the issuance of a TRO where there is an exception to the general

rule where it can be issued ex parte.

Q: What is the meaning of the phrase ‘irreparable injury’?

It means it is an injury that is of constant and frequent recurrence, not

necessarily involving money, by reason which a fair redress could not

be had in a trial court.

Do not forget the modifications of a SC Circular to Rule 58. It states

that if a court has issued a writ of PI which has no term, the court that

issued such writ of PI must decide the principal action within a period

of 6 months. This is the modification in that circular. If the court does

not place a limit of six months to decide the principal action, the writ

will effectively be a perpetual injunction because it is effective until

the case has finally been decided. If the court grants the PI today, it

has only 6 months within which to decide the case. In deciding the

principal case, the trial court could rule in favor of the plaintiff or

defendant. If it ruled in favor of the defendant, the PI is automatically

lifted, meaning the plaintiff has no right at all to ask for the writ of

PI.

Although the authority of the court is very broad in the issuance of a

writ of PI, there are instances where a court cannot grant a writ of PI

or TRO:


1. In the enforcement of Kalikasan Statutes (except the SC, as

only SC is authorized to issue TRO or PI in Kalikasan

cases)

2. If there is a TEPO issued by any court (it is only the SC

that can prevent the carrying out of the TEPO)

3. In case of infrastructure projects of the national government

(only the SC that can prevent the carrying out of the

project)

4. When it is a government bank that forecloses the mortgage

(only the SC that can prevent the carrying out of the

foreclosure, either judicial or extra-judicial)

5. The court has no authority to grant injunctive relief against

the BoC. (violation of separation of powers)

6. The court cannot grant injunctive relief against deportation of aliens (violation of separation of powers)

Q: What is the relief of the person against whom an injunctive

writ has been issued?

If we compare the remedies available to a defendant against whom an

injunctive writ has been issued to a person whose property has been

preliminary attached, in Rule 57, in PA, if the defendant files with the

court a counterbond, the lifting of the PA is ministerial to the court.

The properties will be returned. In PI, the PI cannot be lifted without

a hearing despite posting of counterbond. The court cannot rely on

the filing of a counterbond to lift the PI, as it has to study the merit of

the lifting of the injunction. It is not a matter of right of the adverse

party to expect the injunction court to lift the PI just because of the

filing of a counterbond. The reason why the Rules do not make it a

ministerial duty of the court to lift the PI simply because there is a

counterbond is due to the ground of grave and irreparable injury. The

injury cannot be measured exactly, there is no mathematical formula

to determine extent of damages that applicant can suffer in injunction

cases.

We should always relate PI to forcible entry and unlawful detainer in

the NCC. The MTC is expressly allowed to grant a Preliminary

Injunction or Preliminary Mandatory Injunction.

The NCC contains some procedures in matters pertaining to Forcible

Entry or Unlawful Detainer. In the NCC, which is copied by Rule 70,

it is provided that the court can grant PI or PMI in cases of ejectment.

If the MTC grants PI or PMI, that cannot be appealed or challenged

by a petition under Rule 65. Under the rule on summary proceedings,

Rule 65 is a prohibited pleading in summary proceedings in

challenging an interlocutory order.

But when that ejectment case is appealed to the RTC, in the exercise

of its appellate jurisdiction, the NCC, as well as the Rules, provides

that the RTC can grant PMI or PI if applied by the plaintiff/applicant.

The PI or PMI granted by the RTC as an appellate court remains

unappealable because it is interlocutory, but can now be challenged

under Rule 65. This is because summary procedure is in effect while

the case is in the MTC, whereas on appeal in the RTC, the regular

procedure applies, and challenge under Rule 65 is allowed.

Take note that a writ of preliminary injunction is deemed dissolved

upon the dismissal of the main case.

RECEIVERSHIP

Receivership has a feature not present in other provisional remedies.

Provisional remedies are contemplated to be used during the

pendency of the case. In receivership, the court can appoint a receiver

not only during the pendency of a case but also after the judgment

has been issued or in the process of execution of said judgment. This

feature makes this remedy unique. There is no fixed time in which a

court can appoint a receiver.

Relate this to the remedies of a judgment creditor in Rule 39 when he

is unable to recover full satisfaction of his account. Under Rule 39,

the judgment creditor can ask for examination of the judgment debtor

for any properties. If there are still properties present, the judgment

creditor can apply that such properties be placed in receivership.

There always has to be a summary hearing. No ex parte appointment

of a receiver is allowed.

The grounds for appointment of receiver are quite broad. Whenever

the court feels that there is a need for the appointment of a receiver to

preserve the property in litigation, it shall do so.

The property, however, has to be in litigation. The court should not

appoint a receiver if the effect would be to dispossess the parties. The

remedy of receivership is not intended to dispossess the possessor of

the property during the pendency of the case.

The Rules also provide in foreclosure of a mortgage, the mortgagee

can move for the court to have the mortgaged property placed under

receivership, even if there is no proof that the collateral will be lost or

deteriorate. This can be done when the deed of mortgage contains a

stipulation authorizing the mortgagee to move for the appointment of

a receiver. But generally, the purpose of receivership is to preserve

the property under litigation from loss or deterioration.

Q: Who does the receiver represent?

SC held that the receiver is not a representative of either party. It

classified the receiver as a representative and an officer of the court.

As a result, the receiver cannot file a case as a receiver without the

consent of the court. If a receiver needs to file a case to recover

certain properties under receivership, he needs permission from the

court to do so. On the other hand, if a third person has a grievance

against the receiver in his capacity as a receiver, the third person

cannot simply file a case against such receiver because that third

person must seek permission of the court first. We find here a

situation where the filing of a case will need permission of the court.

If not granted, that action will fail.

Practically every issue is left to the court. The court determines how

much compensation to give to the receiver, the qualifications of a

receiver, how many receivers may be needed. If the court can appoint

a receiver, it can also fire him and appoint a new one, whenever there

is a need to preserve the property.

There is another feature in receivership that is not found in the other

provisional remedies. In receivership, there are two bonds:


1. Bond of the applicant 2. Bond of the receiver

The applicant should manifest that he is able to post bond. Once the

court appoints the receiver, the receiver shall also post a bond. The

receiver’s bond is designed to protect the parties to the litigation from

any abuse or mischief by the receiver in the performance of his duty.

SUPPORT PENDENTE LITE

This is found under the Rules and also mentioned in the SC Circular

on Provisional Remedies in Marriage-Related Cases. In fact, the

circular of the court is more expansive. It does not only mention

support pendente lite, but also classifies it into spousal support and

child support, and are treated differently.

Under the circular, the Family Courts can grant both spousal support

and child support even without hearing and without requiring the

filing of a bond.

This is different in trial in courts that are not functioning as family

court. This is because under the Rules of Court, it is not proper for an

ordinary court to grant an application of support pendente lite without

conducting a hearing. Under the Rules, support pendente lite can only

be allowed after a hearing, and the applicant and respondent are given

the chance to explain. The reason why this is required in the Rules is

because a court cannot conceivably issue an order unless the court is

able to determine that the petitioner needs support, and even if the

fact that the petitioner does need support is proven, to determine that

the respondent is capable of grant such support. This is because if the

court simply grants an application for support pendente lite without

examining the financial ability of the respondent, the provisional

remedy will be useless. If the respondent cannot comply, as he had no

means to give support, he could be jailed. This is one action where

the court can imprison a respondent who does not comply with its

order to give support, although the respondent really may not have

the ability to really do so.

There are in fact three remedies in case of violation against giving of

support under substantive law:

1. Imprisonment for commission of a crime

2. Citation for contempt and imprisonment

3. Issuance of an order of execution against the violator under Rule 39

Of particular interest is the third remedy. Although Rule 39 generally

applies only to final judgments, a writ of execution may be used to

enforce support pendente lite.

Under the Rules, you will notice that the principle in Section 20, Rule

57 is not followed at all. As a general rule, the remedy to recover

damages in wrongful issuance of provisional remedies should be in

the same case. There must be no separate action to recover damages.

But if you read the provisions for support pendente lite, it is expressly

provided that there could be an independent action for recovery of

money given as support in compliance with an order of the court.

If you are asked why the Family Court can order support without a

hearing, just state that there is no need to determine the needs of the

spouse or of the minor children, there is no need for the court to

determine the financial ability of the defendant, because in family-

related cases, there is a need for an inventory of properties submitted

to the Family Court by the petitioner. Based on the inventory, the

court can conclude how much the spouse is entitled and how much

the minors are entitled to support.

Q: Since the applicant is not required to post a bond, what may

the defendant do if he eventually proves the applicant is not

really entitled to support?

The party may go after the person who is supposed to give support or

he may go after the beneficiary to refund the money. These remedies

are quite impractical because it is really possible that the beneficiary

has already used the money.

Other Provisional Orders in Marriage-Related Cases

Also, with respect to the provisional orders granted by Family Courts

in marriage-related cases, although some of the provisional orders are

called by some other name, they actually are similar to injunction.

For example, Temporary Protection Orders (TPO) in marriage-related

cases are actually a prohibitory injunction and a mandatory injunction

at the same time. This is because in the protection order, the Family

Court prohibits respondent from doing certain acts, which is similar

in effect to a prohibitory injunction. Also, the Family Court can order

the respondent not to enter the former conjugal dwelling and to

remove his personal properties from the house. Thus, it also partakes

of a mandatory injunction.

We also have receivership in marriage-related cases where the court

may appoint an administrator of the common or conjugal properties

of the spouses. The administrator is in effect a receiver of properties

owned in common.

ENVIRONMENTAL CASES

Do not confuse an environmental case from a writ of Kalikasan and a

writ of Continuing Mandamus.

An environmental case may be civil or criminal. The jurisdiction and

venue shall be governed by the respective law violated. For example,

if it is the Clean Air Act which is violated, the provisions of such law

where to file the case shall govern.

A writ of Kalikasan may be commenced in SC or CA. A writ of

Continuing Mandamus may be commenced in RTC, SC, or CA.

Whether it is an environmental case (except criminal cases), a writ of

Kalikasan, or a writ of Continuing Mandamus, the complainant and

respondent must attach in his complaint or answer, as the case may

be, documentary and/or object evidence available to him.


In a civil environmental case, should the defendant fail to answer the

complaint within 15 days from receipt of summons (10 days if it is an

answer to a compulsory counterclaim or cross-claim), the court shall

declare the defendant in default motu proprio. This is an exception to

the general rule.

A motion to declare the defendant in default is prohibited in civil

environmental cases. Upon motion of the plaintiff, the court shall

receive evidence ex parte.

The judge shall exert best efforts to persuade the parties to arrive at a

settlement of the dispute. The judge may issue a consent decree

approving the agreement between the parties.

Q: What is a consent decree?

This is similar to a judgment based upon a compromise. Under the

Rules, it is defined as a judicially-approved settlement between the

concerned parties based on public interest and public policy to protect

and preserve the environment.

The Rules on Evidence are not necessarily followed. The quantum of

evidence required in civil environmental cases is mere preponderance

of evidence. However, there are several instances in Kalikasan cases

where mere substantial evidence is enough, which is also followed in

Amparo cases.

Q: Is a Environmental Protection Order a preliminary injunction

or a preliminary mandatory injunction?

It may be both. If you take a look at the definition of an EPO, it says

it may direct or enjoin any person or government agency to perform

or desist from performing an act. Thus, it may be in the form of a PI

or a PMI.

Q: What are the differences between a TEPO and TRO/PI under

the Rules of Court?

1. Although both TRO and TEPO may be issued ex parte, a

TRO may last 20 days or 72 hours as the case may be while

TEPO only lasts 72 hours.

2. The period of 72 hours in TEPO is counted from receipt of

the TEPO by the party enjoined while the 72 hours in TRO

is counted from the issuance of the same.

3. A TRO only lasts for 20 days. A TEPO may last until the

termination of the case if so extended. 4. The applicant in TEPO is exempted from posting a bond.

Q: A civil environmental case involves EPO, TEPO, TRO, and

PI. What are the differences between them?

I really don’t know either, and Dean Jara did not really discuss this in

class (or I was again daydreaming), but let me attempt to resolve this

problem. Read at your own risk!

If the applicant wishes to stop government agencies from enforcing

an environmental law or from preventing violations thereof, he must

file a TRO or PI with the Supreme Court and the SC only. The Rules

of Court shall be followed and the distinctions between TRO and PI

there will be followed.

If the applicant wishes the court to direct or enjoin any person or a

government agency to perform or desist from performing an act in

order to protect, preserve, rehabilitate the environment, he must file

EPO or TEPO as the case may be.

The difference between EPO and TEPO on one hand, and TRO and

PI on the other hand, therefore, may be (and just may be) the fact that

TRO and PI wishes to enjoin a government agency from enforcing an

environmental law. If there is no environmental law involved (or it is

not a government agency), use EPO or TEPO.

Again, this is conjecture, but it seems the difference between TEPO

and EPO is that EPO is a final order, it is permanent, while TEPO as

its name suggests is only temporary. This is different from TRO and

PI because TRO and PI are both interlocutory. TRO may only last for

20 days, while PI may only last for 6 months if filed in a court other

than the SC.

Q: What is the difference between EPO and a writ of Continuing

Mandamus?

It seems there is no great difference between a permanent EPO and a

writ of continuing mandamus in so far as effect goes, except it seems

EPO may direct or enjoin while a writ of Continuing Mandamus may

only direct.

A petition for a writ of Continuing Mandamus seems to be also faster

than a civil environmental case with a prayer for EPO since it skips a

few steps, such as pre-trial, and may expedite proceedings. The trial

in a writ of Continuing Mandamus is also only summary in nature.

Q: May TEPO be subject to Rule 65?

No. Rule 65 is available only if there is no other remedy available to

the aggrieved party. The party or person enjoined by the TEPO may

file a sufficient bond to dissolve the TEPO and only after hearing. If

after the hearing, the motion for dissolution of the TEPO is denied,

then the aggrieved party may now proceed with Rule 65. Although

the order is interlocutory, there is no prohibition in the Environmental

Rules from filing a petition for certiorari under Rule 65, unlike in

summary procedure and small claims proceedings.

Q: What is the precautionary principle?

The precautionary principle states that when human activities may

lead to threats of serious and irreversible damage to the environment

that is scientifically plausible but uncertain, actions shall be taken to

avoid or diminish that threat.

Q: What is SLAPP?

SLAPP refers to Strategic Lawsuit Against Public Participation. It is

an action, whether civil, criminal or administrative, brought against

any person, institution or any government agency or LGU or its

officials and employees, with the intent to harass, vex, or exert

undue pressure or stifle any legal recourse that such person,

institution or government agency has taken or may take in the

enforcement of environmental laws, protection of the environment, or

assertion of environmental rights.


Q: Anonymous collator, you failed to discuss Writ of Kalikasan

and Continuing Mandamus extensively!

Dean Jara will discuss this in Special Civil Actions. They are special

civil actions, they are not ordinary environmental civil cases. If you

take a look at the circular, it really is like a mini Rules of Court.

If you have review materials and wish to join a

share and share alike group, send me an e-mail:

[email protected].

You may also email me if you wish to obtain a

DOCX/DOC/PDF format of this document or an

update of the same.

Thank you!

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