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Rule 17.-Dismissal of Actions Sec. 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by a plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a) Does dismissal under sec. 1 amount to res judicata? No, except: 1.When the notice states otherwise[not the court] 2.When it is the second dismissal at instance of plaintiff [2 dismissal rule] Notes: 1. How is it revived? Ortigas v. Velasco, 234 SCRA 455 [1994] 2. When does it take effect? Notice or order? Implied in O.B. Jovenir Construction and Development Corporation v. Macamir Realty and Development, March 28, 2006 compare with old rules [3.. Is the right absolute? trial court has no choice but to consider the complaint as dismissed, since the plaintiff may opt for such dismissal as a matter of right, regardless of the ground. Dael v. Benedicto, April 30, 20084. Must one indicate in the certificate agains forum shopping that a case was previously filed and dismissed? Roxas v. CA, 363 SCRA 208 (2001) Sec. 2.Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiffs instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a) Dismissal after answer (Sec. 2) Effect on counterclaim: it stands Option: by defendant [not court] 1. Continue it in the same action 2. File a separate action What if it is compulsory? Questions: 1. Is the dismissal with prejudice? Generally, no. Exception is when court states otherwise. 2. Is dismissal an absolute right of the plaintiff? Class Suits Sec.3.Dismissal due to fault of plaintiff.If for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint maybe dismissed upon motion of the defendant or upon the courts own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.(3a) (1)GroundfordismissalunderRule17,Sec.3:

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Sec.2.Nature and purpose.The pre-trial is mandatory. The court shall consider:

(1) Failure to appear w/o justifiable cause on the date of his presentation of
his evidence. [not trial] [Jaloverv.Ytorriaga,80SCRA100] (2 )Failure of the plaintiff prosecute his action for an unreasonable length of time; [Malayanv.Ipil,500SCRA242(2006)

a)The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; b) The simplification of the issues; c) The necessity or desirability of amendments to the pleadings; d)The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; e) The limitation of the number of witnesses; f)The advisability of a preliminary reference of issues to a commissioner; g)The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground there for be found to exist; h) The advisability or necessity of suspending the proceedings; and I)Such other matters as may aid in the prompt disposition of the action. (1a, R20) Sec. 3.Notice of pre-trial. The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. (n) Agulto v. Tecson, 476 SCRA 395 [2005] -counsel suggested date Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (n)

(2) Failure of the plaintiff to comply with the Rules of Court or any order of the
Court. Notes: 1. On whose initiative? upon motion of defendant or upon the courts own motion [see Sec. 1, Rule 9] 2. What is the effect on counterclaim? 3. Is dismissal res judicata? Yes, except Sec. 4.Dismissal or counterclaim, cross-claim, or third-party complaint. The provisions of this Rule shall apply to the dismissal of any counterclaim, crossclaim, or third-party complaint. A voluntary dismissal by the claimant by notice as in Section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4a) Add to Quiz No. 8: 1. Sps. Zepeda v. China Banking, 504 SCRA126 (2006) 2. CIR v. Manila Mining, 468 SCRA571 (2005) Rule 18.-Pre-Trial Sec. 1.When Conducted. -After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pretrial. (5a, R20)

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Sec. 5.Effect of failure to appear. The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (2a, R20) Effect of failure: 1. Of plaintiff [lawyer?]dismissal with prejudice, unless [counter-claim?] 2. Of defendant[lawyer?]-plaintiff presents evidence ex parte No declaration of default oras in default Sec.6.Pre-trialbrief.The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pretrial briefs which shall contain, among others: a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; b)A summary of admitted facts and proposed stipulation of facts; c) The issues to be tried or resolved; d)The documents or exhibits to be presented, stating the purpose thereof; e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and f) The number and names of witnesses, and the substance of their respective testimonies. . Failure to file the pre-trial brief shall have the same effect as failure to appear at Sample Pre-Trial Brief Republic of the Philippines REGIONAL TRIAL COURT Family Court/Branch 2 11TH Judicial Region Tagum City, Davao del Norte _________________ Petitioner, -versus-Civill Case No. 4075 For: DECLARATION OF NULLITY ALFREDO D. _______, OF BIGAMOUS MARRIAGE Respondent. the pre-trial. (n) Sec. 7.Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. (5a, R20) 1.Tiu v. Middleton, 310 SCRA 580 (1999) names of witnesses 2.Villanueva v. CA, 427 SCRA 439 (2004) Can an issue raised in the answer but not included in the pre-trial order be tried? Prescription and laches

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x----------------------------------x PETITIONERS AMENDEDPRE-TRIAL BRIEF Petitioner, through counsel, respectfully submits her amendedPre-Trial Brief so as to better address the matters raised in Respondents Pre-Trial Brief, as follows: A. Statement of the Dispute Petitioner seeks to annul her marriage with respondent on the ground that at the time it was celebrated the latter had a subsisting marriage with another woman. Despite the documentary evidence proving this, however, respondent denies having marriage twice. B: Possibility of Amicable Settlement Considering the nature of the action, which is for declaration of nullity of a marriage void ab initio,settlement is not possible, except insofar as it involves certain disputed properties. As to them, meaning the properties acquired through their joint effort, petitioner proposes their division as provided for in Art. 51, Art. 50, in relation to Art. 43 (2). This will mean amicably dividing the properties mentioned in paragraphs 9 (a), (b), (c) and (d) of the complaint among petitioner and respondent, as well as the two (2) children as their presumptive legitime. C. Propose Stipulation of Facts Since the law prohibits stipulation as to the ground for the annulment, petitioner proposes a stipulation on the following only: 1. That petitioner and respondent have physically separated since January 2005; 2. That the children Alfredo _____ and Elna ______. Elnar live with petitioner; and 3.That the parcel of land described in Paragraph 10 (a) was acquired by petitioner from his father Samuel _____, and respondent was not a party to the Deed, except to give his marital conformity.

D. Issues to be Resolved 1. Whether respondent had a valid subsisting marriage at the time she married petitioner and whether he acted in bad faith? 2. Whether the property describe in Paragraph 10 (a) is solely owned by petitioner? 3. Whether the Certificate of Live Birth of the 2 children be amended to reflect the surname of their mother to conform to Art. 176 of the Family Code? E. Documents to be Presented 1. Marriage Contract between petitioner and respondent dated Jan. 23, 1992 2. Marriage Contract between respondent and Leonor C. Patangan dated June 29, 1982 3. Petition filed by respondent before the Regional Trial Court, Branch 4, Panabo City, on June 23, 1994 for Declaration of Nullity/Annulment of Marriage with Leonor Patangan. 4. Decision of the Regional Trial Court, Branch 4, Panabo City dated March 18, 1996 annulling the marriage between respondent and Leonor Patangan 5. Birth Certificate of Alfredo Elnar, Jr. 6. Birth Certificate of Elna B. Elnar 7. TCT No. T-120802 8. TCT No. T-168689 9. TCT No. T-128602 10. TCT No. T-C-8164 11. Deed of Absolute Sale dated May 28, 1996

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12. TCT No. T-121875 13. Certification from City Assessor of Tagum City F. Discovery Procedures Within ten (10) day after the pre-trial, petitioner intents to serve written interrogatories and a request for admission to respondent. G. Laws and Jurisprudence 1. On the marriage being null and void ab initio:Art. 40 of the Family Code and Marbella-Bobis v. Bobis, 336 SCRA 474 (200). 2. On the property regime governing the parties: Art. 148 of the Family Code. 3. On how the property should be divided: Art. 51, Art. 50, in relation to Art. 43 (2) of the Family Code. 4. On the use by the children of the surname of the mother: Art. 176 of the Family. H. Proposed Testimonies of Witnesses 1. __________ petitioner will testify that respondent contracted a bigamous marriage with her, the identities of the children that were born of the bigamous union, and the properties acquired by them at the time of their marriage, both through their joint effort, as well as those coming from her parents; and 2. _______ father of petitioner, will testify that the property described in Paragraph 10 (a) of the Petition was originally owned by him and he passed it on to petitioner. Petitioner will need about three (3) hours for her testimony, while the other witness will testify only for about one (1) hour. Tagum City, Davao del Norte, March 9, 2010. GIL A. DE LA BANDA Counsel for Petitioner

Valle Hotel Bldg., Osmena St., Tagum City PTR No. 0884653; 1-5-10; Tagum City Roll No. 35845; IBP Life No. 01020 MCLE Exemption No. 11-001305; 7-16-07 Copy furnished: Atty. Rolando C. Casaway Counsel for Respondent 2nd Flr., Casaway Building Abad Santos St., Tagum City ________________________ Bar 1997, No. 7: Give 3 distinctions between pre-trial in a criminal case and a pre-trial in a civil case. 1989 Bar, No. 3 (1): Is pre-trial mandatory in all trial courts? Explain. Bar 2001, No. VI Lilio filed a complaint in the MTC of Lanuza for the recovery of a sum of money against Juan. The latter filed his answer to the complaint serving a copy thereof on Lilio. After the filing of the answer of Juan, whose duty is it to have the case set for pretrial? Why? Rule 19.-Intervention Sec. 1.Who may intervene.

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Action between A and B over ownership of a piece of land also claimed by C. Santarromana v. Barrios, 63 Phil. 459 Requisite/situation 4: adversely affected by disposition of property in custody of the court Property attached by court order during pendency of litigation. Manila Herald v. Ramos, 88 Phil. 94 Problems: 1. Suppose a suit for collection of P1 million is in progress, and I am also a creditor of defendant? Over property? 2. Whats the basis for intervention by NGOs in banana spraying case? Interest must be actual and material., direct and immediate, not contingent and expectant. Factors whether or not to allow: 1. It will not unduly delay or prejudice the adjudication of rights of original parties; 2. Intervenors right may not be fully protected in a separate proceeding. DISCRETIONARY Manalo v. CA, 366 SCRA 752 (2001) When is it a right? Sec. 2.Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleadings-inintervention shall be attached to the motion and served on the original parties.(n) Time to intervene: 1. Rockland v. Singzon, 508 SCRA 1 (2006) [after judgment?]

A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding. (2[a], [b]a, R12) Definition-A proceeding in an action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. [Ancheta v. MetroBank, 470 SCRA 157 (2005)] Grounds/Requisites: 1. Legal interest in the matter in litigation, or 2. Legal interest in the success of either party 3. Legal interest against both, or 4. Situated as to be adversely affected by a distribution or other disposition of property in court custody or officer thereof. Requisite/Situation 1: interest in the matter in litigation: Heirs in an action by administrator involving property. [Dais v. CFI, 51 Phil. 396 Children? Art. 777 of Civil Code[Actual, material and direct] Requisite/Situation 2: in the success of either Action by creditor against surety, intervention by principal. Behn v. Banco Espanol, 11 Phil. 253. Requisite/situation 3: interest against both

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2. Domingo v. Reed, 477 SCRA 227 (2005) [Petition before the Supreme Court] [also Director v. CA, Sept. 25, 1979 Sec.3.Pleadings-in-intervention.Theintervenorshallfileacomplaintininterventionifheassertsaclaimagainsteitheroralloftheoriginalparties,orananswerininterventionifheuniteswiththedefendingpartyinresistingaclaimagainstthelatter. (2[c]a,R12) Sec. 4.Answer to complaint-in-intervention. The answer to the complaint-in-intervention shall be filed within fifteen (15) days from the notice of the order admitting the same, unless a different period is fixed by the court. (2[d]a, R12) What is the effect of termination of the main action on the intervention? 1.Big Country v. CA, 227 SCRA 161 It is a collateral action; it cannot stand alone [main case decided with finality.] 2. Metrobank v. Presiding Judge, 189 SCRA 820 It can proceed alone. [original parties settled controvesy] Remedies: 1. If denied Appeal [Macias v. Cruz, 49 SCRA 80 (1973)] 2. If granted Certiorari [Batama v. Rosal, 42 SCRA 408 (1971)] Rule 20.-Calendar of Cases Sec. 1.Calendar of cases. The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. (1[a], R22)

Sec. 2.Assignment of cases. The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. (7a, R22)