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CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)

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OVERVIEW OF CIVIL PROCEDURE

STAGES OF COURT PROCEEDINGS IN CIVIL CASES

Initiation of actions -exchange of pleadings -clarification of facts and issues Judgment on the pleadings
Initiation of actions
-exchange of pleadings
-clarification of facts and issues
Judgment on the pleadings
Type Title Here
Summary
judgment
Pre-trial
Modes of Discovery
Trial
Rendition of Judgment or final order
Remedies after rendition of judgment or final o
A. Motions
B. Appeal
C. Exceptional remedies
Entry of Judgment
Execution of judgmen

ORDINARY CIVIL ACTIONS V. CRIMINAL ACTIONS (WHEREIN THE STATE IS A PARTY)

For civil actions, A v. B

Ordinary civil actions v. special civil actions

WHAT IS THE DIFFERENCE BETWEEN INITIATION OF ACTION AND COMMENCEMENT OF ACTION?

In initiation of action, before the exchange of pleadings, there is

the commencement of action, which is through the filing of the complaint by the plaintiff.

Also note that upon filing of complaint, there is issuance of summons, to which the complaint is attached to.

THE VERTICAL AND HORIZONTAL THINKING OF JURISDICTION AND VENUE

When we think of jurisdiction, think vertically. There is level to speak of.

After jurisdiction, there is venue. When we speak of venue this time, we think horizontally. Which RTC or MTC should we file the case in? This is addressed by rule 4 of the Rules Of Court.

JURISDICTION

VENUE

JURISDICTION VENUE
JURISDICTION VENUE

NOTE:

Jurisprudence mentions that the failure to pay docket fees or the proper amount, the action has not yet been commenced

UPON FILING OF THE COMPLAINT, A SUMMONS IS GIVEN TO THE DEFENDANT AND THERE IS AN ORDER FOR HIM TO FILE

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AN ANSWER—KEY PERSON IS THE PROCESS SERVER AND THIS MIGHT BE THE SAME WITH THE SHERIFF

THE NEXT STEP IS THE EXCHANGE OF PLEADINGS

Upon receipt of the complaint, the defendant has two options:

one is to file an answer to the complaint wherein the defenses are mentioned—which is either negative or affirmative. Another option is the filing of a motion to dismiss.

Examples of affirmative defense are statute of frauds, statute of limitations/prescription, payment.

NOTE: A PRACTICAL OBSERVATION

For a motion to dismiss, this is dreaded by most lawyers. Rule 16

governs the grounds for a motion to dismiss—examples are prescription, lack of jurisdiction over person of defendant or subject matter, failure to cite a cause of action, etc.

It could be the situation wherein the alllegations cannot be intelligently answered by the defendant that clarifications must be made. A bill of particulars may be filed.

AFTER EXCHANGE OF PLEADING, ISSUES HAVE BEEN JOINED.

NEXT STEP IS PRE-TRIAL.

In pre-trial, there is determination of possibility of amicable settlement through submission of issues to ADR or alternative dispute resolution (mediation, conciliation, arbitration)

You cannot discuss an issue, which wasn’t discussed during the pre-trial.

FOR MOTIONS,

There are motions that can put an end to the proceedings.

One is the motion for judgment on the pleadings.

This happens when an answer has been filed and there is no denial of the allegations.

The plaintiff may file said motion since the defendant admits anyway.

Another is a motion for summary judgment. supported by affidavits or depositions.

This must be

NEXT TO PRE-TRIAL IS THE TRIAL PROPER

When we talk of trial proper, you associate this all the time with evidence.

Types of evidence ordinarily speaks of testimonial and documentary evidence. Testimonial evidence talks about presentation of evidence while documentary evidence talks about the presentation of authenticated evidence.

Regarding trial, upon presentation of your own witness, there will be direct examination. This will be followed by a cross- examination. This can be followed by a redirect examination then followed, if allowed by a recross-examination.

Upon presentation of evidence, parties may be required by the court to file their respective memoranda. Seldom does the court resort to oral arguments. The memoranda summarizes the evidence presented by both parties and makes an argument that the preponderance of evidence is with your side.

A COURT RENDERS A FINAL JUDGMENT UNDER RULE 36

After the rendition of judgment, there are remedies available to

a losing party.

A motion for reconsideration or new trial may be filed. A petition for relief of judgment may also be filed.

Under petition for relief, the decision has becomes final and executory but for some reason, you feel that you have been deprived of your day in court.

If the motion for reconsideration is denied after appropriate hearing, the order is the final order and terminates the whole thing.

JUDGMENT/DECISION V. FINAL ORDER: WHAT’S THE DIFF?

Judgment/decision=trial on the merits

Final order=otherwise terminates the case

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THE REMEDY MOST COMMON IS THE APPEAL

MTC RTC CA SC

RTC pure questions of law SC mix of questions of law and fact CA

OTHER EXTRAORDINARY REMEDIES AVAILABLE

Certiorari (under rule 65, its not a form of appeal and is an original action);

Annulment of judgment (rule 47, grounds are extrinsic fraud— fraud perpetuated resulting to deprivation of your day in court— and lack of jurisdiction—dragon you can slay anytime unless barred by laches and estoppel)

LAST STAGE IS THE EXECUTION OF JUDGMENT. ACTOR IS THE SHERIFF.

THE LEAD

The sheriff must demand first.

The judgment debtor may voluntarily pay.

The second step is to levy the properties belonging to the debtor.

After the levy, there will be an execution sale.

The property will be in custodia legis.

The judgment debtor may redeem property within 1 year.

BETWEEN JUDGMENT AND EXECUTION ARE THE PROVISIONAL REMEDIES—ATTACHMENT, RECEIVERSHIP, SUPPORT PENDENTE LITE, REPLEVIN, ETC. THE INITIAL PURPOSE IS PRESERVATION.

PRELIMINARY CONSIDERATIONS: JUDICIAL POWER

DEFINITION OF JUDICIAL POWER IN THE CONSTITUTION

The judicial power shall be vested in one Supreme Court and in

such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not

there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

BP 129: JUDICIAL REORGANIZATION ACT OF 1980

Supreme Court

Court of Appeals

Regional Trial Courts

Municipal Trial Courts/Metropolitan Trial Courts/Municipal Circuit Trial Courts

CONSTITUTIONAL COMMISSIONS

1. Commission on Elections

2. Commission on Audit

3. Civil Service Commission

EXAMPLES

QUASI-JUDICIAL POWERS (most of them are regulatory and exercise adjudicatory powers)

OF ADMINISTRATIVE AGENCIES EXERCISING

1. NTC

2. HLURB

3. NLRC

4. SEC

5. DARAB

ORGANIZATION OF COURTS

THE SUPREME COURT

The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

COURT OF APPEALS

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The Court of Appeals shall consist of a Presiding Justice and 68 Associate Justices and shall be appointed by the President of the Philippines and shall sit in 23 divisions of three justices each

The Presiding Justice and Associate Justices shall have the same qualifications as those provided for in the Constitution for Justices of the Supreme Court

REGIONAL TRIAL COURTS

There are 13 overall but with many branches

It is important to know the 13 judicial regions

1. The First Judicial Region, consisting of the provinces of Abra, Benguet, Ilocos Norte, Ilocos Sur, La Union, Mountain Province, and Pangasinan, and cities of Baguio, Dagupan, Laog and San Carlos;

2. The Second Judicial Region, consisting of the provinces of Batanes, Cagayan, Ifugao, Kalinga-Apayao, Nueva Viscaya, and Quirino;

3. The Third Judicial Region, consisting of the provinces of Bataan, Bulacan (except the municipality of valenzuela), Nueva Ecija, Pampanga, Tarlac, and Zambales, and the cities of Angeles, Cabanatuan, Olongapo, Palayan and San Jose;

4. The National Capital Judicial Region, consisting of the cities of Manila, Quezon, Pasay, Caloocan and Mandaluyong, and the municipalities of Navotas, Malabon, San Juan, Makati, Pasig, Pateros, Taguig, Marikina, Parañaque, Las Piñas, Muntinlupa, and Valenzuela;

5. The Fourth Judicial Region, consisting of the provinces of Batangas, Cavite, Laguna, Marinduque, Mindoro Occidental, Mindoro Oriental, Palawan, Quezon, Rizal (except the cities and municipalities embraced within the National Capital Judicial Region0, Romblon, and Aurora, and the cities of Batangas, Cavite,

Lipa, Lucena, Puerto Princessa, San Pablo, Tagaytay, and Trece Martires;

6. The Fifth Judicial Region, consisting of the provinces of Albay, Camarines Sur, Camarines Norte, Catanduanes, Masbate, and Sorsogon, and the cities of Legaspi, Naga and Iriga;

7. The Sixth Judicial Region, consisting of the provinces of Aklan, Antique, Capiz, Iloilo, La Calota, Roxas, San Carlos, and Silay, and the subprovince of Guimaras;

8. The Seventh Judicial Region, consisting of the provinces of Bohol, Cebu, Negros Oriental, and Siquijor, and the cities of Bais, Canlaon, Cebu, Danao, Dumaguete, Lapu-lapu, Mandaue, Tagbilaran, and Toledo,

9. The Eighth Judicial Region, consisting of the provinces or Eastern Samar, Leyte, Northern, Samar, Southern Leyte, Ormoc, and Tacloban:

10. The Ninth Judicial Region, consisting of the provinces of Basilan, Sulu, Tawi-Tawi, Zamboanga del Sur, and the cities of Dapitan, Dipolog, Pagadian, and Zamboanga;

11. The Tenth Judicial Region, consisting of the provinces of Agusan del Norte, Agusan del Sur, Bukidnon, Camiguin, Misamis Occidental, Misamis Oriental, and Surigao del Norte, and the cities of Butuan, Cagayan de Oro, Gingoog, Ozamis, Oroquieta, Surigao, and Tangub;

12. The Eleventh Judicial Region, consistingnof the provinces of Davao del Norte, Davao Oriental, Davao del Sur, South Cotabato, and Surigao del Sur, and the cities of Davao, and General Santos; and

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13. The Twelfth Judicial Region, consisting of the provinces of Lanao del Norte, Lanao del Sur, Maguindanao, North Cotabato, and Sultan Kudarat, and the cities of Cotabato, Iligan, and Marawi.

METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, AND MUNICIPAL CIRCUIT TRIAL COURTS

Metropolitan trial court is created in each metropolitan area created by law

Municipal trial court is created in each other city or municipality

Municipal Circuit trial court is created in each circuit comprising such cities and municipalities as are grouped together pursuant to law

SPECIAL COURTS

1. Family courts

2. Special criminal courts

3. Commercial courts

JURISDICTION OF THE COURTS

WHAT IS JURISDICTION?

It is the legal authority to hear and determine a cause or the right to act in a case

CERTAIN

JURISDICTION

PRINCIPLES

TO

REMEMBER

WITH

REGARD

1. Conferred by law over the cause or subject matter (it is law that DETERMINES jurisdiction)

a. Jurisdiction cannot be stipulated by the parties

b. Cannot be affected by estoppel or laches

c. Tigam v. Sibonghanoy is more of an exception than the rule

2. Error of jurisdiction v. error of judgment

a. Error of jurisdiction—void or voidable; remedy is the filing of a petition for prohibition or certiorari

b. Error of judgment—court had jurisdiction to rule; remedy is to appeal

CLASSES OF JURISDICTION

1. General v. limited

a. General jurisdiction—extends to all controversies which

may be brought before a court within the legal bounds of rights and remedies

b. Limited or special jurisdiction—is confined to particular causes or can be exercised only under the limitations and circumstances prescribed by the statute

2. Original v. appellate

a. Original—inherent in a court of first instance

b. Appellate—power and authority conferred upon a superior court to rehear and determine causes which have been tried in inferior courts

3. Over subject matter v. over person v. over the property

a. Over subject matter—power to hear and determine cases of the general class to which the proceedings in question belong

b. Over the person—power to render a personal judgment against a person and is acquired by the voluntary appearance of the party in court and his submission to

its authority, or by the coercive power of legal process exerted over the person

c. Over the property—seizure of the property under legal process of the court, whereby it is held to abide by such order as the court makes, and with respect to the persons whose rights in the property are to be affected; it may be attained by constructive service of process, it not being necessary that they should brought within the reach of the process of the court or should receive actual notice

4. Exclusive v. concurrent/coordinate

a. Exclusive—confined to a particular tribunal or grade of courts and possessed by it to the exclusion of all others

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b. Concurrent—exercise by different courts at the same time over the same subject matter and within the same territory, and wherein litigants may, in the first instance, resort to either indifferently (note: remember the doctrine of judicial hierarchy)

MUNICIPAL TRIAL COURTS

APPELLATE JURISDICTION

None

MTC is the lowest court in the judicial hierarchy

ORIGINAL AND CONCURRENT

None also

ORIGINAL AND EXCLUSIVE JURISDICTION OVER THE FOLLOWING

1. Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed P300,000 or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed P400,000 exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions;

2. Admiralty and maritime cases where the demand or claim doesn’t exceed P300,000 or in Metro Manila, where such demand doesn’t exceed P400,000. Where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all cases in all the causes of action irrespective

of whether the causes of action arose out of the same or different transactions

3. Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession.

4. Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That value of such property shall be determined by the assessed value of the adjacent lots.

5. Inclusion and exclusion of voters

REGIONAL TRIAL COURTS

ORIGINAL AND EXCLUSIVE

1. In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;

2. In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty thousand pesos (P20,000.00) or for civil actions in Metro Manila, where such the value exceeds Fifty thousand pesos (50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts;

3. In all actions in admiralty and maritime jurisdiction where he demand or claim exceeds three hundred thousand pesos (P300,000.00) or , in Metro Manila, where such demand or claim exceeds four hundred thousand pesos (400,000.00);

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4. In all matters of probate, both testate and intestate, where the gross value of the estate exceeds three hundred thousand pesos (P300,000.00) or, in probate matters in Metro Manila, where such gross value exceeds four hundred thousand pesos

(400,000.00);

5. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions;

6. In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds three hundred thousand pesos (300,000.00) or, in such other abovementioned items exceeds four hundred thousand pesos (200,000.00). (as amended by R.A. No. 7691*)

ORIGINAL AND CONCURRENT WITH THE SUPREME COURT

1. Actions affecting ambassadors and other public ministers and consuls

ORIGINAL AND CONCURRENT WITH THE SUPREME COURT AND COURT OF APPEALS

1. In the issuance of writs of certiorari, prohibition, mandamus, quo

warranto, habeas corpus and injunction which may be enforced in any part of their respective regions

APPELLATE JURISDICTION

1. Regional Trial Courts shall exercise appellate jurisdiction over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictions.

COURT OF APPEALS

ORIGINAL AND EXCLUSIVE

1. Actions for annulment of judgments of the RTC on the ground of extrinsic fraud and lack of jurisdiction

ORIGINAL AND CONCURRENT WITH THE SUPREME COURT

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;

ORIGINAL AND CONCURRENT WITH THE SUPREME COURT AND REGIONAL TRIAL COURT

1. Petitions for habeas corpus and quo warranto

2. Petitions for the issuance of writs of certiorari, prohibition and mandamus against lower courts or bodies

APPELLATE JURISDICTION

1. Ordinary appeal

a. From RTC: Rule 45

b. From RTC: constitutional, tax, and jurisdiction

c. Appeal from decisions or orders from the Family courts

2. Appeal by petition for review

NB:

1. If it’s questions of facts, questions of facts and law, questions of law—go to the Court of Appeals under Rule 43

2. RTC in exercise of its original jurisdiction—depends on the questions raised

a. If it is questions of law then go straight to the Supreme Court

b. If it is a mix of questions of law and fact—then go first to the CA

WHERE WILL YOU FILE FOR ANNULMENT OF JUDGMENT/FINAL

ORDER OF THE MTC BASED ON EXTRINSIC FRAUD OR LACK OF JURISDICTION?

You will file it with the RTC

Why? Because the RTC is the court which has jurisdiction over all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions

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SUPREME COURT

ORIGINAL AND EXCLUSIVE

1. Petitions for the issuances of writs of certiorari, prohibition, and

mandamus against the following—

a. Court of Appeals

b. Commission on Elections

c. Commission on Audit

d. Sandiganbayan

APPELLATE JURISDICTION

1. From the RTC—in its exercise of original jurisdiction, involving

questions of law

2. From the CA—in its exercise of its original and exclusive jurisdiction, as well as its exercise of appellate jurisdiction

APPEAL (AN EXERCISE ON APPEAL)

ORDINARY APPEAL

For example you file with the RTC in its original jurisdiction and you lose

You appeal to the CA on the questions of fact

PETITION FOR REVIEW

Second time to appeal to a higher court

MTC YOU LOSE ORDINARY APPEAL RTC YOU LOSE AGAIN PETITION FOR REVIEW, SECOND APPEAL COURT OF APPEALS

Petition for review: discretion to give course on the appeal

PETITION FOR CERTIORARI

Rule 65, original action

PETITION FOR REVIEW ON CERTIORARI, APPEAL BY CERTIORARI

It is by nature an appeal to the Supreme Court on pure questions of law

You are making a plea to the court

This denotes discretion

RULE 1: GENERAL PROVISIONS

Section 1. Title of the Rules. cited as the Rules of Court. (1)

These Rule shall be known and

Section 2. In what courts applicable. These Rules shall apply in all the courts, except as otherwise provided by the Supreme Court. (n)

Section 3. Cases governed.

procedure to be

special proceedings.

These Rules shall govern the

observed in actions, civil or criminal and

(a) 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, (1a, R2)

A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. (n)

(b) A criminal action is one by which the State prosecutes a

person for an act or omission punishable by law. (n)

(c) A special proceeding is a remedy by which a party seeks to

establish a status, a right, or a particular fact. (2a, R2)

WHAT ARE THE DIFFERENT KINDS OF ACTION?

1. Civil action

2. Criminal action

3. Special proceedings

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CIVIL ACTIONS

An action by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong

CRIMINAL ACTIONS

One by which the State prosecutes a person for an act or omission punishable by law

SPECIAL PROCEEDINGS

Remedy by which a party seeks to establish a status, right or particular fact

ACTION V. PROCEEDING

Action—formal demand of one’s legal rights in a court of justice in the manner prescribed by the court of by the law

Special proceeding—application or proceeding to establish the status or right of a party or a particular fact

REAL ACTIONS V. PERSONAL ACTIONS

Real actions—actions affecting title to, or possession of real property, or interest therein, or forcible entry and detainer actions

Personal actions—actions founded on privity of contract or for the enforcement or resolution of a contract, or for recovery of personal property

ACTIONS IN PERSONAM, IN REM, QUASI IN REM

IN PERSONAM

 

IN REM

 

QUASI IN REM

 

Claim

against some

The

object

is

to

bar

An individual is named as defendant and the

particular person, with a judgment which is generally in theory at least, binds his body, or to bar some

indifferently

all

who

might

be

minded

to

purpose

of

the

make an objection of

proceeding

is

to

any

sort against the

subject

his

interest

right

sought

to

be

therein

to

the

individual claim

or

established,

 

and

if

obligation

or

lien

objection so that only

anyone in

the world

burdening

the

certain

persons are

has

a

right

to

be

property

entitled to

be

heard

heard on the strength

on defense

of alleging facts which

if true

show

an

inconsistent interest

Section 4. In what case not applicable. These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (R143a)

WHEN ARE THE RULES NOT APPLICABLE?

1. Election cases

2. Land registration

3. Cadastral

4. Naturalization

5. Insolvency proceedings

6. And other cases not herein provided for

Section 5. Commencement of action. A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the dated of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.

(6a)

WHEN DOES AN ACTION COMMENCE?

It is commenced by the filing of the original complaint in court

In case of an additional defendant, action is commenced with regard to him on the dated of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.

Section 6. Construction. These Rules shall be liberally construed in order to promote their objective of securing a

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just, speedy and inexpensive disposition of every action and proceeding. (2a)

RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS

Section 1. Uniform procedure. The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure. (n)

Section 2. Meaning of terms. The term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. (1a)

CIVIL ACTIONS: ORDINARY CIVIL ACTIONS RULE 2: CAUSE OF ACTION

Section 1. Ordinary civil actions, basis of. Every ordinary civil action must be based on a cause of action. (n)

A cause of action is the

act or omission by which a party violates a right of another.

(n)

Section 2. Cause of action, defined.

ELEMENTS OF A CAUSE OF ACTION

1. Legal right of the plaintiff

2. Correlative obligations of the defendant

3. Act or omission of the defendant in violation of the plaintiff’s said legal right

RIGHT OF ACTION

Remedial right belonging to a person

Section 3. One suit for a single cause of action. A party may not institute more than one suit for a single cause of action.

(3a)

Section 4. Splitting a single cause of action; effect of. If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. (4a)

PURPOSE OF THE RULE

To prevent repeated litigation between the same parties with respect to the same subject of controversy and to protect the

defendant from unnecessary vexation, and to avoid costs and expenses incurred for numerous suits

This rule also applies to counterclaims and crossclaims

Section 5. Joinder of causes of action. A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

(a) The party joining the causes of action shall comply with

the rules on joinder of parties;

(b) The joinder shall not include special civil actions or actions

governed by special rules;

(c) Where the causes of action are between the same parties

but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and

(d) Where the claims in all the causes action are principally

for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (5a)

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TOTALITY RULE

1. The party joining the causes of action shall comply with the rules on joinder of parties;

2. The joinder shall not include special civil actions or actions governed by special rules;

3. Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and

4. Where the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

Misjoinder of

causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. (n)

Section 6. Misjoinder of causes of action.

RULE 4: VENUE OF ACTIONS

Section 1. Venue of real actions. Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.

Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated. (1[a], 2[a]a)

REAL ACTIONS DISTINGUISHED FROM PERSONAL ACTIONS

Real actions—those affecting title to or possession of real property

Personal actions—all other actions

VENUE OF REAL ACTIONS

The venue is the same for RTC and MTC

The court which has jurisdiction over the area wherein the real property involved or a portion thereof is situated

DOES

THE RTC OF LAOAG HAVE JURISDICTION OVER THE REAL ACTION?

QUESTION: PROPERTY IS LOCATED IN PARANAQUE.

Yes but it will be the improper venue

In civil cases, jurisdiction and venue is not the same

Section 2. Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non- resident defendant where he may be found, at the election of the plaintiff. (2[b]a)

Section 3. Venue of actions against nonresidents. If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. (2[c]a)

ACTION AFFECTING THE PROPERTY OF NONRESIDENT DEFENDANT

If the action affects the property of the non-resident defendant located in the Philippines, the venue is the place where the property or any portion thereof is situated

JURISDICTION OVER THE DEFENDANT IS LIMITED TO THE RES

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In proceedings in rem or quasi in rem against a non-resident who is not served personally within the state, and who doesn't appear, the relief must be confined to the res, and the court cannot lawfully render personal judgment against him

Section 4. When Rule not applicable. apply.

This Rule

shall not

(a)

In

those

cases where a

specific rule

or

law

provides

otherwise; or

(b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (3a,

5a)

N.B

1. Rules on venue is for the convenience of the parties

2. In case of improper venue, when you file the action once again, there is a payment of docket fees anew

RULE 3: PARTIES TO CIVIL ACTIONS

Section 1. Who may be parties; plaintiff and defendant. Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counter-claim, the cross-defendant, or the third (fourth, etc.) party defendant. (1a)

WHO MAY BE PARTIES?

1. Natural persons

2. Juridical persons

3. Entities authorized by law

WHO IS THE PLAINTIFF?

Generally is the claiming party

HOW ABOUT THE DEFENDANT, WHO IS HE?

He is the defending party

A v. B v. C

*A is the plaintiff *B is the defendant as well as the third-party plaintiff *C is the third-party defendant

Section 2. Parties in interest. A real party in interest is 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. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. (2a)

WHO IS THE REAL PARTY IN INTEREST?

He is 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

Section 3. Representatives as parties. Where the action is allowed to be prosecuted and defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real property in interest. A representative may be a trustee of an expert trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. (3a)

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 13 -

WHAT HAPPENS IF AN ACTION IS ALLOWED TO BE PROSECUTED OR DEFENDED BY A REPRESENTATIVE OR ONE ACTING IN A FIDUCIARY CAPACITY?

The beneficiary shall be included in the title of the case and shall be deemed to be the real property in interest

WHO IS DEEMED A REPRESENTATIVE?

1. Trustee of an express trust

2. Guardian

3. Executor or administrator

4. Party authorized by law or these Rules

5. Note that an agent acting on his own name and for the benefit of an undisclosed principal may sue and be sued without joining the principal except when the contract involves things belonging to the principal

IS THIS VALID—X BANK, FOR AND BEHALF OF Y V. X?

No

It should have been Y, represented by X bank v. X

Section 4. Spouses as parties. Husband and wife shall sue or be sued jointly, except as provided by law. (4a)

EXCEPTIONS TO THE GENERAL RULE

1. A spouse without just cause abandons the other or fails to comply with his or her obligation to the family with respect to marital, parental or property relations

2. A spouse of age mortgages, encumbers, alienates or otherwise disposes of his or her exclusive property

3. The regime of separation of property governs

Section 5. Minor or incompetent persons. A minor or a person alleged to be incompetent, may sue or be sued with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. (5a)

Section 6. Permissive joinder of parties. All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. (6n)

REQUISITES FOR PERMISSIVE JOINDER OF PARTIES

1. Right to relief with respect to or arising out of the same transaction or series of transactions

2. Common question of law or fact in the action

Section 7. Compulsory joinder of indispensable parties. Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. (7)

INDISPENSIBLE PARTY V. NECESSARY PARTY

INDISPENSIBLE PARTY

NECESSARY PARTY

One

whose

interest

will be

One whose interest in the controversy and subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does complete justice to the parties in court

affected by the court’s action in the litigation and without whom no final determination of the case can be had

Should be joined under any and all conditions, his presence being sine que non in the exercise of judicial power

Should be joined whenever possible since it would merely permit complete relief between him and those already parties to the action

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 14 -

Section 8. Necessary party. A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (8a)

Section 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. (8a, 9a)

WHAT IS THE EFFECT OF A NON-JOINDER?

Should the court find the reason for the omission unmeritorious,

it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a WAIVER of the claim against such party.

The waiver presupposes that the continuance of the proceeding shall reach the knowledge of the necessary party

WHAT ARE THE REPERCUSSIONS OF NOT INCLUDING A NECESSARY PARTY AND INDISPENSABLE PARTY?

With respect to the indispensable party, the dismissal of the complaint

With respect to the necessary party, waiver

Section 10. Unwilling co-plaintiff. If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. (10)

Section 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (11a)

Section 12. Class suit. When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. (12a)

REQUISITES OF A CLASS SUIT

1. The subject matter of the controversy is one of the common or general interest to many persons

2. The interested persons are so numerous that it is impracticable to join them all as parties

PHILIPPINE DOCTORS IN THE UNITED STATES WOULD LIKE TO FILE A CLASS SUIT AGAINST THE PRODUCERS OF DESPERATE HOUSEWIVES FOR THE REMARK AGAINST THEM IN AN EPISODE. WILL THIS PROSPER?

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 15 -

No since these doctors have different interests in their filing of the suit

The class suit shall not prosper

Section 13. Alternative defendants. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. (13a)

Section 14. Unknown identity or name of defendant. Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner heir devisee, or by such other designation as the case may require, when his identity or true name is discovered, the pleading must be amended accordingly.

(14)

Section 15. Entity without juridical personality as defendant. When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.

In the answer of such defendant, the name and addresses of the persons composing said entity must all be revealed. (15a)

Section 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with his duty shall be a ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an

executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (16a, 17a)

DEATH OF THE CLIENT TERMINATES THE ATTORNEY-CLIENT RELATIONSHIP

In the absence of a retainer of his deceased client, the attorney

would thereafter have no further power or authority to appear or take any further action in the case, save to inform the court of the client’s death and take the necessary steps to safeguard the deceased’s right in the case

WHAT IS THE DUTY OF COUNSEL?

Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives.

If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time to procure the appointment of an executor or administrator for the estate of the deceased and

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 16 -

the latter shall immediately appear for and on behalf of the deceased.

Priority is given to the legal representative of the deceased

DEATH OF INCOMPETENT WARD

This extinguishes the guardianship

The guardian if appointed as the administrator of the estate, shall be the legal representative of the deceased and shall appear for and on behalf of the interest of the deceased in his capacity as the administrator, and no longer as the judicial guardian of the incompetent ward

WHAT HAPPENS TO THE ACTION UPON THE DEATH OR SEPARATION OF THE PUBLIC OFFICER INVOLVED?

The action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue to adopt or continue the action of his predecessor

WHAT SHOULD BE DONE BEFORE SUBSTITUTION?

 

Before a substitution is made, the party or officer to be

TEST TO DETERMINE WHETHER ACTION SURVIVES OR NOT

affected, unless expressly assenting thereto, shall be given

The question as to whether an action survives or not depends on the nature of the action and the damages sued for

reasonable notice of the application therefor and accorded an opportunity to be heard.

NOTE:

Section 18. Incompetency or incapacity. If a party becomes

1.

Nullity of proceedings in case of non-substitution despite notice or knowledge of parties

incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the

2.

However, if there is no notice of death of party and the court has no knowledge thereof, the proceedings aren’t set aside

incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. (19a)

Section 17. Death or separation of a party who is a public officer. When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard.

(18a)

WHAT HAPPENS IN CASE A PARTY BECOMES INCOMPETENT OR INCAPACITATED?

The court upon motion with notice may allow the action to be continued by or against the incompetent or incapacitated person assisted by his guardian or guardian ad litem

Section 19. Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. (20)

CAN

INTEREST?

AN

ACTION

BE

CONTINUED

UPON

TRANSFER

OF

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 17 -

Yes, the action may be continued by or against the original party

Unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party

Section 20. Action and contractual money claims. When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

(21a)

WHAT HAPPENS IF THE DEFENDANT IN AN ACTION FOR MONEY CLAIMS DIES DURING PENDENCY OF THE ACTION?

An action shall not be dismissed but shall instead be allowed to

continue until entry of final judgment

A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person

Section 21. Indigent party. A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.

Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any

judgment rendered in the case favorable to the indigent, unless the court otherwise provides.

Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose.

(22a)

Section 22. Notice to the Solicitor General. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or a representative duly designated by him. (23a)

RULE 14: SUMMONS

SUMMONS

Served by the officer of the court duly authorized or designated

by the court

Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a)

Section 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal and contain (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)

-

18 -

time fixed by these Rules; (c) a notice that unless the defendant so answers plaintiff will take judgment by default and may be granted the relief applied for.

A copy of the complaint and order for appointment of guardian

ad litem if any, shall be attached to the original and each

copy of the summons. (3a)

WHAT ARE THE CONTENTS OF A SUMMONS?

1. It shall be directed to the defendant

2. Signed by the clerk of court under seal

3. Contains the name of the court

4. Contains the names of the parties to the action

5. Contains a direction that the defendant answer within the time fixed by the rules

6. Contains a notice that unless the defendant so answers plaintiff will take judgment by default and may be granted the relief applied for

7. Copy of the complaint shall be attached to the summons

IF AN ADDITIONAL DEFENDANT IS JOINED, SUMMONS MUST BE SERVED UPON HIM. EXCEPTIONS—

1. Where it is sought to bring in the administrator of a deceased party defendant in substitution of the deceased

2. Where upon the decease of an original defendant, his infant heirs are made parties

3. In cases of substitution of the deceased by legal representatives or heirs under Rule 3

WHEN SERVICE OF NEW SUMMONS WITH AMENDED COMPLAINT IS NECESSARY

1. If new causes of action are alleged in amended complaint filed before the defendant has appeared in court, another summons must be served on the defendant with the amended complaint

2. Where the defendant defaults as to the original complaint, and an amended complaint is filed while such default exists, to sustain a judgment upon the amended complaint as to any new

matter therein alleged, it should be served upon the defendant with the same formalities as to the original complaint and summons

EXCEPTIONS TO THE ABOVE

1. When jurisdiction had already been acquired over the defendants

who had appeared in court and filed a motion to dismiss

2. When defect in the summons is deemed waived

Section 3. By whom served. The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. (5a)

Section 4. Return. When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk, who issued it, accompanied by proof of service. (6a)

WHAT IS THE PURPOSE OF THE RETURN?

It is to enable the plaintiff to know and start counting

Answer within 15 days

Section 5. Issuance of alias summons.

returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a)

summons is

If

a

HOW CAN AN ALIEN SUMMONS BE ISSUED?

When the original summons is lost

Failure to serve the original summons

The plaintiff would have to file a motion for issuance of alias summons and this should be addressed to the clerk of court

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 19 -

Section 6. Service in person on defendant. Whenever

practicable, the summons shall be served by handling a copy

refuses to

receive and sign for it, by tendering it to him. (7a)

thereof to the

defendant in

person,

or,

if

he

WHAT PERSONAL SERVICE ON DEFENDANT MEANS?

Actual delivery or tender of the summons to the defendant personally

So it naturally means that service of summons to a dead person

is void

This service is the primary requirement

SUMMONS WAS SERVED TO THE DEFENDANT. INSTEAD OF FILING AN ANSWER, A MOTION TO DISMISS FOR LACK OF JURISDICTION OVER PERSON. HOW COULD THIS BE PROPERLY MADE WITHOUT VOLUNTARY APPEARANCE AND SURRENDER OF PERSON TO JURISDICTION OF COURT?

This is done by the filing of what is called a SPECIAL APPEARANCE

Special entry of appearance to submit motion to dismiss and without surrendering person to the court

Section 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (8a)

REQUISITES FOR SUBSTITUTED SERVICE

1. It is only when the defendant cannot be served personally within

a reasonable time that substituted service may be made

2. Impossibility of prompt service

HOW IS SUBSTITUTED SERVICE MADE?

1. By leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or

2. By leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.

SUBSTITUTED SERVICE OF SUMMONS UPON DEFENDANT TEMPORARILY ABSENT FROM THE PHILIPPINES, VALID. Summons in a suit in personam against a resident of the Philippines who is temporarily absent therefrom may be validly effected by substituted service under this present section

Section 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought.

(9a)

Section 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (12a)

Section 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. (l0a, 11a)

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 20 -

Section 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. (13a)

STRICT COMPLIANCE WITH THE RULE IS REQUIRED

In service of summons to a domestic corporation, the list of officers is exclusive

It could only be served to either the president, managing partner, general manager, corporate secretary, treasurer, or in- house counsel

Note however that service can be done outside the principal place of business of the corporation

Note also that in case of substituted service, the summons should be tried to serve to all of the above officers before substituted service can be actually permitted to be done (ika

nga, if you are the process server, hanapin mo muna bawat isa at halughugin mo sila bago mo masabi na dapat substituted service na lang )

Section 12. Service upon foreign private juridical entities. When the defendant is a foreign private juridical entity which has transacted business 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. (14a)

WHAT CONSTITUTES DOING BUSINESS

One single business transaction doesn't constitute doing business within the meaning of the law, and that transactions which are occasional, incidental, and casual, not of a character to indicate

the purpose to engage in business doesn't constitute the doing or engaging in business contemplated in law

Instead, there must be continuity of conduct and intention to establish a continuous business

TO WHOM SERVICE MAY BE MADE

1. Resident agent

2. To the government official designated by law to that effect

3. Or any of its officers or agents within the Philippines

Section 13. Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (15)

TO WHOM SHOULD SUMMONS BE SERVED IN CASE THE

REPUBLIC OF THE PHILIPPINES IS THE DEFENDANT?

It may be effected on the Solicitor General

IN CASE OF A PROVINCE, CITY OR MUNICIPALITY OR LIKE PUBLIC CORPORATIONS?

Service may be effected on its executive head or on such officer or officers as the law or the court may direct

Section 14. Service upon defendant whose identity or whereabouts are unknown. 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, 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 time as the court may order.

(16a)

Section 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 21 -

which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a)

In the case of non-resident defendants who are not found in the Philippines, extraterritorial service of summons is allowed only in an action in rem and quasi in rem, that is, when the action affects the personal status of the plaintiff, or any property of the defendant located in the Philippines

Section 15 is not for the purpose of vesting jurisdiction over the person of the defendant but for complying with the requirement of fair play or due process

SERVICE OF SUMMONS ON A NON-RESIDENT WHO IS NOT FOUND IN THE PHILIPPINES

1. By personal service

2. By publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant

3. By any other manner which the court may deem sufficient

A CASE WAS FILED FOR COLLECTION OF MONEY AGAINST A

PERSON

RECOURSE OF PLAINTIFF?

THE

WHO

MIGRATED

TO

CANADA.

WHAT

IS

The action cannot prosper—an action in personam

The court cannot have jurisdiction over the person

What is the recourse? Convert the action into an action in rem or quasi in rem. Then you can do extraterritorial service.

Publication in newspaper of general circulation and registered

o

Affects personal status

mail to last known address

o

Subject is property or any lien or any interest

SERVICE OF SUMMONS ON RESIDENT DEFENDANTS IN AN ACTION IN PERSONAM

o

Exclude defendant from any property or interest therein

If defendant cannot be personally served, substituted service is needed to acquire jurisdiction over the person of the defendant who refuses to voluntarily submit himself to the authority of the court

SERVICE OF SUMMONS IN AN ACTION IN REM OR QUASI IN REM

If the action is in rem or quasi in rem on the other hand, jurisdiction over the person of the defendant isn’t essential for giving the court jurisdiction so long as the court acquires jurisdiction over the property

AN ACTION WAS FILED FOR ANNULMENT OF MARRIAGE AND SUPPORT. DEFENDANT IS CURRENTLY LIVING IN JAPAN. WILL THE ACTIONS SUBSIST?

The action for support will not be enforceable and it will be invalid.

An action for support is a personal action

The only action that would be subsisting will be the action for annulment of marriage. It is an action in rem and affects the personal status of both parties.

HOW DO YOU USUALLY CONVERT AN ACTION IN PERSONAM TO AN ACTION IN REM?

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 22 -

Do preliminary attachment

WHAT IS THE RES?

Property wherein defendant may have an interest

Attachment of property in the Philippines—there is no qualification between real and personal property

ATTY. G: all cases pertained to real property and there is no reason for the prohibition of personal property to be attached since your only purpose is for you to publish in newspaper of general circulation and not to acquire jurisdiction

Philippines.

When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a)

Section 16. Residents temporarily

out

of

the

Section 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application.

(19)

Section 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy.

(20)

Section 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit

a

affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (21)

of the publication shall be attached and by an

copy

Section 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)

*Remember that summons cannot be given by mail!!!

RULE 6: KINDS OF PLEADINGS

Section 1. Pleadings defined. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a)

PLEADINGS, DEFINED

These are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment

PLEADINGS

 

MOTIONS

CLAIMS Complaint Counterclaim Cross-claim Third-party complaint Claim-in-intervention

Reply

 

DEFENSES

Affirmative

Negative

Anything that you are asking for the court

Counter-cross-claim

Counter-counterclaim

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 23 -

Section 2. Pleadings allowed. The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-in-intervention.

The defenses of a party are alleged in the answer to the pleading asserting a claim against him.

An answer may be responded to by a reply. (n)

WHAT ARE THOSE CONSIDERED AS PLEADINGS?

1. Complaint

2. Counterclaim

3. Cross-claim

4. Third-party complaint, etc.

5. Complaint-in-intervention

6. Answer

7. Reply

Section 3. Complaint. The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (3a)

WHAT IS THE COMPLAINT?

It is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.

ULTIMATE FACTS

Essential facts constituting the plaintiff’s cause of action

The complaint should contain a concise statement of the ultimate facts constituting a plaintiff’s cause of action and not evidentiary facts or legal conclusions

RELIEF

If the relief demanded is not the proper one which may be granted under the law, it doesn’t characterize or determine the nature of the plaintiff’s action, and that the relief to which the plaintiff is entitled based on the facts alleged by him in the complaint, although it is not the relief demanded, is what determines the nature of the action

ALLEGATIONS OF CONDITION PRECEDENT

If the plaintiff’s right of action depends upon a condition precedent, he must allege and prove the fulfillment of the condition or the legal excuse for its non-fulfillment

And if he omits such allegation, his complaint or petition will be bad on demurrer

EXHIBITS NOT SUFFICIENT

Exhibits attached to a complaint don’t take the place of allegations

They are referred to and annexed for the purpose merely of supporting the allegations of fact made in the complaint

Section 4. Answer.

defending party sets forth his defenses. (4a)

An

answer is

a

pleading

WHAT IS THE ANSWER?

in which

a

It is the pleading in which the defending party sets forth his defenses

Section 5. Defenses. affirmative.

Defenses may either be negative or

(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 24 -

bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. (5a)

NEGATIVE DEFENSE

Specific denial

AFFIRMATIVE DEFENSE

Allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would prevent or bar recovery

HOW TO PLEAD AFFIRMATIVE DEFENSES

In pleading estoppel, the facts constituting estoppel should be alleged

In all averments of fraud and mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or some other condition of the mind of the person may be averred generally

Section 6. Counterclaim.

defending party may have against an opposing party. (6a)

A counterclaim is any claim which a

NATURE OF COUNTERCLAIM

Nature of a cross-complaint

Although it may be alleged in the answer, it is not part of the answer

It is a distinct and independent cause of action.

Upon its filing, the same proceedings are had as in the original complaint. For this reason, it must be answered within 10 days from service

When a counterclaim is properly interposed, the defendant becomes in respect of all matters pleaded, an actor

Section 7. Compulsory counterclaim.

counterclaim is one which, being cognizable by the regular

A compulsory

courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counter-claim may be considered compulsory regardless of the amount. (n)

REQUIREMENTS OF A COMPULSORY COUNTERCLAIM

1. It must arise out of, or be necessarily connected with, the transaction or occurrence that it is the subject matter of the opposing party’s or co-party’s claim

2. It doesn’t require for its adjudication the presence of third persons of whom the court cannot acquire jurisdiction

3. It must be within the jurisdiction of the court, and is cognizable by the regular courts of justice

REQUIREMENTS OF A PERMISSIVE COUNTERCLAIM

1. It doesn’t arise out of or isn’t necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim

2. It doesn’t require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction

3. It must be within the jurisdiction of the court, and is cognizable by the regular courts of justice

Section 8. Cross-claim. A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (7)

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A

counter-claim may be asserted against an original counter-

Section 9. Counter-counterclaims and counter-crossclaims.

claimant.

A cross-claim may also be filed against an original cross-

claimant. (n)

Section 11. Third, (fourth, etc.) party complaint. 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. (12a)

Section 10. Reply.

 

A

reply

is

a

pleading, the office or

 

function of which

is

to

deny, or allege

facts in

denial or

avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted.

TESTS TO DETERMINE PROPRIERTY OF A THIRD-PARTY COMPLAINT

Whether it arises out of the same transaction on which the plaintiff’s claim is based, or the third-party’s claim, although arising out of another or different contract or transaction, is connected with the plaintiff’s claim

1.

If

the plaintiff wishes to interpose any claims arising out of

2.

Whether the plaintiff could have joined him originally as

the new matters so alleged, such claims shall be set forth in

defendant—but this could only be applied if there could be

an

amended or supplemental complaint. (11)

 

asserted against the defendant as the third-party defendant,

PROPER FUNCTION OF A REPLY

 

jointly and severally, or in the alternative, any right to relief arising out of the same transaction

 

To allege new matters in avoidance of any affirmative defense in

3.

The abovementioned is not always applicable. Another rule is

 

the answer

that a third-party complaint is proper if he would be liable to

WHEN REPLY IS NOT NECESSARY

 

the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant, although the liability might

 

It is not necessary to file a reply if the only purpose is to deny

 

have arose from a different transaction.

 

the new

matters alleged in

the answer because even if he

4.

Whether the third-party defendant may assert any defenses

doesn’t make a

reply,

all

the

new

matters will be deemed

which the third-party plaintiff has or may have to the plaintiff’s

controverted

claim. If he may properly assert such defenses, then he would

WHEN REPLY IS IMPROPER

 

be a proper third-party defendant. Otherwise, he is not and the claim against him cannot be considered a third-party complaint.

 

A reply to a counterclaim or crossclaim is improper

 

5.

A defendant cannot file a third-party complaint in a different

An answer thereto must be frilled instead within 10 days from receipt thereof

capacity in which he is being sued. Otherwise, his claim against the third-party defendant would not be in respect to the

WHAT HAPPENS IF A REPLY IS NOT FILED?

 

plaintiff’s claim.

 

All new matters alleged in the answer are deemed controverted

NOTE:

Controverted? It means that the new matters are deemed

1.

Indemnity

opposed to or disputed by the plaintiff

2.

Contribution

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 26 -

3.

Subrogation

LEAVE OF COURT, HOW OBTAINED.

By motion under rule 15

OTHER IMPORTANT THINGS

Allowance of third-party complaint is discretionary

Summons on third-party defendant is necessary

Original claimant may amend pleading

If the original complaint is dismissed, the third-party complaint shall also be dismissed

Section 12. Bringing new parties. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. (14)

Section 13. Answer to third (fourth, etc.)party complaint. A third (fourth, etc.) party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.) party plaintiff may

have against the original plaintiff's claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff.

(n)

RULE 7: PARTS OF A PLEADING

The caption sets forth the name of the

court, the title of the action, and the docket number if

Section 1. Caption.

assigned.

The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition;

but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties.

Their respective participation in the case shall be indicated. (1a, 2a)

Section 2. The body. The body of the pleading sets fourth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. (n)

(a) Paragraphs. The allegations in the body of a pleading

shall be divided into paragraphs so numbered to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a)

(b) Headings. When two or more causes of action are joined

the statement of the first shall be prefaced by the words "first cause of action,'' of the second by "second cause of action", and so on for the others.

When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (4)

(c) Relief. The pleading shall specify the relief sought, but it

may add a general prayer for such further or other relief as may be deemed just or equitable. (3a, R6)

(d) Date. Every pleading shall be dated. (n)

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 27 -

ALLEGATIONS BY EXPRESS REFERENCE

Each cause of action must contain all of the essential facts necessary to constitute a cause of action, but where a complaint contains two or more causes of action, allegations contained in one cause may be incorporated in the other by express reference without the necessity of rewriting the same in the second cause

Section 3. Signature and address. Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box.

The signature of counsel constitutes a certificate by him that

he has read the pleading; that to the best of his knowledge,

information, and belief there is good ground to support it; and that it is not interposed for delay.

An unsigned pleading produces no legal effect. However, the

court may, in its discretion, allow such deficiency to be

remedied if it shall appear that the same was due to mere

inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails promptly report to the court a change

of his address, shall be subject to appropriate disciplinary

action. (5a)

Section 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit .(5a)

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief.

A pleading

verification

required

based

on

to

be

verified

"information

and

which

contains

or

a

upon

belief",

"knowledge, information and belief", or lacks a proper verification, shall be treated as an unsigned pleading. (6a)

WHAT IS VERIFICATION AND HOW IS IT DONE?

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief

A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge, information and belief", or lacks a proper verification, shall be treated as an unsigned pleading.

It is a statement under oath made by a party attesting to causing preparation of the complaint and that he has read and understood the same to be correct and true

Section 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to

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the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n)

WHAT SHOULD BE CONTAINED IN THE SWORN STATEMENT?

1. That he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi- judicial agency and, to the best of his knowledge, no such other action or claim is pending therein;

2. If there is such other pending action or claim, a complete statement of the present status thereof; and

3. If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

TEST TO DETERMINE FORUM-SHOPPING

Identity of parties

Rights or causes of action

Reliefs sought

WHAT IS THE CONSEQUENCE OF FAILURE TO COMPLY WITH CERTIFICATION REQUIREMENTS?

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

WHAT IF THERE IS FINDING THAT THE STATEMENT SUBMITTED IS FALSE?

It shall constitute indirect contempt of court

This is without prejudice to the corresponding administrative and

criminal actions

If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Section 1. In general. Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. (1)

pertinent

provisions thereof and their applicability to him shall be clearly and concisely stated. (n)

If

a

defense

relied on

is

based on

law,

the

NOTE: Unlike a complaint, which only alleges ultimate facts, the answer may cite legal provisions relied upon for defense.

Section 2. Alternative causes of action or defenses. A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2)

ALTERNATIVE CAUSES OF ACTION OR DEFENSES DISTINGUISHED FROM ALTERNATIVE RELIEFS

Should be distinguished from alternative reliefs

A single cause of action may entitle a party to alternative

reliefs

ALTERNATIVE ALLEGATIONS

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There are cases where facts, essential to the plaintiff’s cause of action, are within the knowledge of the defendant, but of which the plaintiff is so imperfectly informed that he cannot state them with certainty, even on information and belief

He may however know that one out of two or more sets of facts

is true without knowing which of them is true

The facts being essential to his cause of action, he must state them in one form or another and cannot very well file his complaint before so doing

The proper procedure is for the plaintiff to state the facts within his knowledge with certainty, but to plead in the alternative the, to him, doubtful facts, which are wholly within the defendant’s knowledge, and call upon the defendant to make

a full disclosure of these facts

INCONSISTENT DEFENSES

It is sufficient that they are consistent with itself

Section 3. Conditions precedent. In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (3)

Section 4. Capacity. Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of person that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (4)

SPECIFIC NEGATIVE AVERMENT OR SPECIFIC DENIAL

If the defendant wishes to raise an issue as to the plaintiff’s

legal capacity to sue, he may file a motion to dismiss on that ground, or set it up as an affirmative defense

On the other hand, if the defendant wishes to raise an issue as to his legal capacity to be sued, he may question the jurisdiction of the court over his person

Section 5. Fraud, mistake, condition of the mind. In all averments of fraud or mistake the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of a person may be averred generally.(5a)

Section 6. Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (6)

NOTE:

presumed.

Under this provision, the jurisdiction

of

the

court a

quo

is

Section 7. Action or defense based on document. Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (7)

HOW

DOCUMENT

TO

PLEAD

AN

ACTION

OR

DEFENSE

BASED

ON

A

The substance of the document must be set forth in the pleading

The original or copy of the document shall be attached to the pleading as an exhibit, or said copy shall be set forth in the pleading (You summarize the actionable document and then you attach as annex the actionable document)

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Section 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies them, and sets forth what he claims to be the facts, but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)

MEANING OF GENUINENESS AND DUE EXECUTION

The party whose signature the document bears admits that he signed it or that it was signed by another for him with his authority

That at the time it was signed, it was in words and figures exactly as set out in the pleading of the party relying upon it

That the document was delivered, and that any formal requisites required by law, such as a seal, an acknowledgement, or revenue stamp, which it lacks, are waived by him

GENUINENESS

DUE EXECUTION

The instrument is not spurious,

If signed by agent, it was with authority from the principal…

counterfeit, or of different import on its face from the one executed

Where the name of the corporation is signed to the document which is the basis of the action, that the officer executing the contract had authority to bind the corporation and that the corporation had the capacity to enter the contract

DEFENSES WAIVED BY ADMISSION

1. Forgery of the signature

2. Unauthorized signature

3. The corporation wasn’t authorized under the charter to sign the instrument

4. The party charged signed the instrument in some other capacity than that alleged in the complaint

5. At the time the document was signed, it was not in the words and figures exactly as set out in the pleading

6. The document was never delivered

WHEN IS THE PROVISION NOT APPLICABLE (WHEN OATH IS NOT REQUIRED IN A SPECIFIC DENIAL)

1. When adverse party doesn’t appear to be a party to the instrument

2. When compliance with an order for the inspection of the original

instruments is refused

Inasmuch as it is sufficient to attach a copy of the instrument to or copy it in the pleading, it may be necessary for the adverse party to examine the original in order to verify the genuineness of the signature and other details

SPECIFIC DENIAL UNDER OATH MUST BE BASED ON PERSONAL KNOWLEDGE

It is necessary that the genuineness and due execution of the instrument shall be specifically denied before an issue is raised upon this point

This means that the defendant must declare under oath that he didn’t sign the document or that it is otherwise false or fabricated

SPECIFIC DENIAL NOT UNDER OATH

What is deemed admitted only is the genuineness and due

execution of the instrument

Section 9. Official document or act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law.

(9)

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Section 10. Specific denial. A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made to the complaint, he shall so state, and this shall have the effect of a denial. (10a)

“DEFENDANT IS WITHOUT KNOWLEDGE OR INFORMATION SUFFICIENT TO FORM A BELIEF AS TO THE TRUTH OF A MATERIAL AVERMENT MADE IN THE COMPLAINT”

This must be availed of with sincerity and in good faith, certainly neither for the purpose of confusing the adverse party as to what allegations of the complaint are really put in issue nor for the purpose of delay

This defense is not applicable where the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plainly and necessarily within the defendant’s knowledge that his averment of ignorance must be palpably untrue

If there is something in the allegations you can neither admit nor deny, then just deny it and it will be considered as a specific denial

NEGATIVE PREGNANT

Where a fact alleged with some qualifying or modifying language, and the denial is specific

This is an ambiguous pleading since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied

Section 11. Allegations not specifically denied deemed admitted. Material averment in the complaint, other than

those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (1a, R9)

MATERIAL AVERMENTS

Those important to the claim

You don’t have to make a denial to each and every sentence in the complaint (it is a matter of style but there is a substantial element into it)

Some lawyers deny or try to answer each and every sentence to cover all areas but this can be forgone with since many are actually embellishments to the complaint

When there are conclusions of facts and of law, even if there was no denial of such, these wouldn’t be considered as admitted

EXCEPTIONS TO THE RULE: NO SPECIFIC DENIAL SHALL BE DEEMED ADMITTED

1. Conclusions of facts and laws

2. Immaterial averments

3. Unliquidated damages (v. liquidated damages—pre-agreed amount of money to be paid in case of breach of agreement)—must be proven

Section 12. Striking out of pleading or matter contained therein. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9)

RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

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Section 1. Amendments in general. Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (1)

Amendments Formal Substantial WHAT IS A FORMAL AMENDMENT? Designation of parties (plaintiff|defendant) Clerical or
Amendments
Formal
Substantial
WHAT IS A FORMAL AMENDMENT?
Designation of parties (plaintiff|defendant)
Clerical or typographical errors
WHAT IS A SUBSTANTIAL AMENDMENT?
Adding or striking an allegation
Mistaken or inadequate allegation or
description in any other manner
HOW CAN THIS BE MADE?
Motu propio
Motion of the party himself
HOW CAN THIS BE MADE?
Before service of the responsive pleading
When not as matter of right?
With leave of court.
If a matter of right:
D mailed his responsive pleading to P
Amended before copy was served by court
CAN PLAINTIFF STILL AMEND? Yes but 1x.

SITUATION: WHAT IF WIFE FILED A CASE FOR LEGAL SEPARATION AGAINST THE HUSBAND, WITH MANY ALLEGATIONS AGAINST THE LATTER. BEFORE THE HUSBAND REPLIES, THE WIFE CHANGES HER MIND AND WOULD ONLY WANT A SEPARATION OF PROPERTY. IS AMENDMENT PROPER?

No. What is proper is to have the wife move for the dismissal of her original complaint and then file another complaint for the different cause of action.

What is the basis for this? The context of Section 1—“Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.”

Section 2. Amendments as a matter of right. A party may

amend his pleading

once

as

a

matter of

right at any

time

before a responsive pleading

is

served or, in

the

case

of

a

reply, at any time within ten (10) days after it is served. (2a)

WHEN A MATTER OF RIGHT

A plaintiff may amend his complaint once as a matter of right at any time before the answer

There being no responsive pleading to a reply, a reply may be

amended within 10 days after it is served, without regard as to whether the action has been placed in the trial calendar

Defendant has the right to amend his answer before the reply is served on him

AN ANSWER IS A RESPONSIVE PLEADING, A MOTION TO DISMISS IS NOT

A plaintiff may amend his complaint as a matter of right after the filing of motion to dismiss by the defendant but before the service of an answer

There is no need for the court to allow the admission of an amended complaint that is filed after the defendant files a motion to dismiss but before the service of an answer

WHEN ANOTHER SUMMONS MUST BE SERVED ON DEFENDANT; WHEN ANOTHER SUMMONS IS UNNECESSARY

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 33 -

If new causes of action are alleged in the amended complaint filed before the defendant has appeared in court, another summons must be served on the defendant with the amended complaint

If the defendant has already appeared in court, a new summons isn’t necessary, and the defendant may be served a copy of the amended complaint either by personal service, by mail or by substituted service

Section 3. Amendments by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a)

NOTES ON THIS SECTION:

1. Amendments to pleadings liberally allowed in the furtherance of justice

2. An answer containing a general denial may be amended so as to contain a specific denial

3. A plaintiff cannot after defendant’s answer, amend his complaint by changing the cause of action or adding a new one without previously obtaining a leave of court

4. Lack of plaintiff’s capacity to sue may be raised by amendment after both parties had already rested their cases

5. A cause of action which hasn’t yet accrued cannot be cured by amended or supplemental pleadings

6. In an obligation payable in installments with an acceleration clause, inasmuch as the cause of action exists with respect to all the installments due and unpaid at the time of filing of the complaint, a supplemental complaint may be filed for the subsequent accruing installments

7. A new cause of action included in an amended complaint doesn’t relate back to the date of filing of the original complaint under the statute of limitations

MAY A COMPLAINT STATING NO CAUSE OF ACTION BE CURED BY AMENDMENT? Yes, if in fact a cause of action exists but the statement thereof is defective for failure to allege essential facts

Section 4. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (4a)

HOW ARE FORMAL AMENDMENTS MAY BE CORRECTED?

1. Motu propio

2. On motion

RELEVANT RULINGS OF THE COURT

1. Complaint may be amended by substituting the real party in interest as party plaintiff after the case has been submitted to the SC for decision on the merits

2. Amendment to cure defect of party plaintiff may be made in the SC even after the final decision is rendered

Section 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not effect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 34 -

pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a)

Section 6. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened

WHAT IS THIS SECTION ALL ABOUT?

This rule allows a complaint which states no cause of action to be cured either by evidence presented without objection or, in

since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a)

the event of an objection sustained by the court, by an

DISTINCTION

BETWEEN

AMENDED

AND

SUPPLEMENTAL

amendment of the complaint with leave of court

PLEADINGS

For example, during the course of the trial, the other party introduces evidence for a new cause of action, which wasn’t mentioned anywhere in the pleadings submitted or in the pre- trial order

This section isn’t applicable if no evidence whatsoever is introduced

AMENDMENT WITHOUT OBJECTION

It isn’t necessary to amend the pleading in order to make it

conform to the evidence

The result of the trial will not be affected because of the consent of both parties

AMENDMENT WITH OBJECTION

If the adverse party objects to the presentation of evidence of an essential fact not alleged in the pleading, the court may sustain the objection

But the court shall freely allow the pleadings to be amended when the presentation of the merits of the action will be subserved thereby and the admission of such evidence wouldn’t prejudice the objecting party in maintaining his action or defense upon the merits

After the amendment has been allowed and made, the evidence objected to may be presented, for in such case, the fact to be proved is already alleged in the pleading

It is discretionary upon the court to decide

AMENDED PLEADINGS

SUPPLEMENTAL PLEADINGS

Proper in order to allege facts which occurred prior to the filing of the original pleadings, but for which reason, such as oversight, inadvertence, or subsequent discovery, were not alleged therein

Proper in order to allege facts which occurred after the filing of the original pleadings

Designed to

include

matters

Are designed to cover matters subsequently occurring but pertaining to the original cause

occurring before the filing of the bill but either overlooked or not known at the time

SUPPLEMENTAL ANSWER AFTER JUDGMENT

Should be allowed where the defendant invokes therein a fact, which, although known to him at the time he submitted his answer, he justifiably cannot then assert because of the danger involved. Consequently, a new trial was in order.

A supplemental answer cannot be filed after judgment has become final

ISN’T THERE A SHORTER PERIOD GIVEN WITH THE TEN-DAY PERIOD TO FILE A RESPONSIVE PLEADING?

No because the 10-day period is counted from the date of notice of the order admitting the supplemental pleading and not upon the filing of said pleading

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 35 -

Section 7. Filing of amended pleadings. When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7a)

NOTE: Unlike a supplemental pleading which may allege separately the events that occurred after the original pleading, an amended pleading should incorporate all events which occurred prior to the original pleading in a new copy of the entire pleading.

Section 8. Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived.

(n)

RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS (What is important to know is how to count the period)

Section 1. Answer to the complaint. The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. (la)

NOTE:

computation of the fifteen days.

The date

of service

of

the

summons is excluded in

the

Section 2. Answer of a defendant foreign private juridical entity. Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (2a)

GOVERNMENT OFFICIALS DESIGNATED BY LAW TO RECEIVE SUMMONS

1. Foreign corporation—SEC

2. Foreign banking corporation—Bangko Sentral Deputy Governor In- Charge of the supervising and examining departments should there be no Philippine agent designed to receive such

3. Foreign insurance company—Insurance Commissioner

Section 3. Answer to amended complaint. When the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (l0) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.

This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)party complaint, and amended complaint-in-intervention.

(3a)

Section 4. Answer to counterclaim or cross-claim. A counterclaim or cross-claim must be answered within ten (10) days from service. (4)

NOTE: A compulsory counterclaim that merely reiterates special defenses which are deemed controverted even without a reply, or raises issues which are deemed automatically joined by the allegations of the complaint, need not be answered. However, a compulsory counterclaim which raises issues not covered by the complaint should be answered within 10 days from service thereof; otherwise, the plaintiff may be declared in default.

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 36 -

Section 5. Answer to third (fourth, etc.)-party complaint. The time to answer a third (fourth, etc.)party complaint shall be governed by the same rule as the answer to the complaint.

The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (7)

(5a)

NOTE:

1.

A

motion for extension of time to plead must be filed before the

Section 6. Reply. A reply may be filed within ten (10) days

expiration of the time sought to be extended

from service of the pleading responded to. (6)

2.

If the last day of the period for filing a pleading falls on a

regardless of the fact that said date is a Saturday, Sunday, or a

Section 7. Answer to supplemental complain. A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is

Saturday, Sunday or holiday, any extension of time to file the same should be counted from the expiration of the period

holiday.

fixed by the court. The answer to the complaint shall serve as

3.

In case the date the pleading is due falls on a Sunday. You file

the answer to the supplemental complaint if no new or supplemental answer is filed. (n)

a motion for extension on a Friday. How will the period be

counted? From the original deadline, in this case Sunday. The 15-day period will be counted from Sunday and not when the

Section 8. Existing counterclaim or cross-claim.

A compulsory

motion for extension has been filed.

counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (8a,

4.

In case you file a motion for extension of time to plead and the court acts on the motion for a long time, the period will run still

R6)

from the original due date of the pleading. (The court is in actuality just affirming your motion)

Section 9. Counterclaim or cross-claim arising after answer. A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (9, R6)

5.

What if in case the court shall deny the motion for extension of time? You assumed that you can file the pleading during the expected extended period. What will happen is that your opponent capitalizes on this. What is important is that the motion is filed already and is in the records of the court. You can bank on this and use it to indulge the court not to strike out the motion.

Section 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. (3, R9)

6.

In filing the motion for extension of time to plead, there is no mention in the rules on how long the time will be. You need to indicate the number of days and it shall be discretionary on the part of the court on whether to grant that number of days or not. The rules will usually specify the number of days to be granted in motions for extension with respect to higher courts.

Section 11. Extension of time to plead. Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules.

PLEADING TO BE FILED

 

WHEN TO FILE

Answer to the complaint; answer to a third party complaint

Within 15

days from

service of

summons

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 37 -

Answer by foreign juridical entity

If

it

is made

on

the government

Counterclaim or crossclaim arising or maturing after filing of an answer

May, with the permission

of

the

official designated by law to

court, be

presented

as

a

receive the same, the answer shall

counterclaim or a cross-claim by

be filed within

thirty (30) days

 

supplemental

pleading

before

after receipt of summons by such entity.

judgment

 

*For example—in case of a foreign insurance company, summons was served to the Insurance commission on November 11. The company received it by the 20 th . The 30- days should be counted from the 20 th of November and not the 11 th .

 

RULE 9: EFFECT OF FAILURE TO PLEAD

 

Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no

Answer to amended complaint (also applicable to answer to an amended counterclaim, croosclaim, 3 rd party complaint, compliant-in- intervention)

It depends.

 

jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)

If

it

is

a

matter of right, the

defendant shall answer the same

 

within fifteen (15) days after being served with a copy thereof.

WHAT IS THE OMNIBUS MOTION RULE?

 
 

Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.

When it is not a matter of right, the defendant shall answer the amended complaint within ten (l0)

In connection with summons, in case summons wasn’t properly served on you. You want to question jurisdiction of court over your person. You file by special appearance a motion to dismiss. The first ground you’ll mention is that there is no jurisdiction over your person. Under the omnibus motion rule, you can add other grounds. The inclusion of these grounds will not be considered as a voluntary appearance. This is only compliance with the rules that you have to mention every ground.

days from notice of the order admitting the same.

An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.

Reply

Within 10 days from the filing of the pleading to be responded to

EXCEPTIONS

1.

Lack of jurisdiction over the subject matter

 

Answered

to

supplemental

Within 10 days from the notice of order admitting the same

 

Jurisdiction over the person must be reasonably raised. Voluntary appearance shall be deemed a waiver of this defense. The assertion however of affirmative defenses shall not be construed as an estoppel or as a waiver of such defense.

complaint

Existing counterclaim or crossclaim

The same time with filing answer

of

his

 

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 38 -

Where the court itself clearly has no jurisdiction over

the subject matter or the nature of the action, the invocation of this defense may be done at any time. it is neither for the courts nor the parties to violate or disregard that rule, let alone confer that jurisdiction, the matter being legislative in character. Barring highly meritorious and exceptional circumstances, such as hereinbefore exemplified, neither estoppel nor waiver shall apply

2. Pendency of another action between the same parties for the same cause or litis pendentia

3. Bar by prior judgment or res judicata

4. Statute of limitations or prescription

If these grounds appear from the pleadings or the evidence on record, the court shall dismiss the claim

The former rule limited the exceptions to failure to state a cause of action and lack of jurisdiction over the subject matter

The waiver under this section isn’t irrevocable and relief may be obtained from the consequences of such waiver by amendment with section 3 and 5 of Rule 10

A motion to dismiss for failure to state a cause of action may be made after the answer has been filed, or at any stage of the proceedings when the motion is based upon a plaintiff’s failure to state a cause of action

The failure to state a cause of action may however be cured under Section 5 of Rule 10

Section 2. Compulsory counterclaim, or cross-claim, not set up

barred.

up shall be barred. (4a)

A compulsory counterclaim, or a cross-claim, not set

WHEN AMENDED ANSWER IS PROPER

If the counterclaim or crossclaim already existed at the time the original answer is filed, but due to oversight, inadvertence,

or excusable neglect, it wasn’t set up

WHEN SUPPLEMENTAL ANSWER IS PROPER

A supplemental answer is proper if the counterclaim or crossclaim matures or is acquired after the answer is filed

In both cases, the amended or supplemental answer must be filed with leave of court before judgment

THE ONE COMPELLING TEST OF COMPULSORINESS

Any claim a party has against an opposing party that is logically related to the claim being asserted by the opposing party and that isn’t within the exceptions to the rule is a compulsory counterclaim

A counterclaim is logically related to the opposing party’s claim where separate trials of each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts

Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are off- shoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimants be permitted to maintain his cause of action

CLAIM FOR ATTORNEY’S FEES

In respect of attorney’s fees, where a claim therefor arises out of the filing of the complaint, they, too should be considered as in the nature of a compulsory counterclaim

They should be pleaded or prayed for in the answer to the complaint in order to be revocable, otherwise, they would be barred

But a claim against the lawyer of plaintiff cannot be filed as a counterclaim and should be filed in a separate action

AFTER-ACQUIRED COUNTERCLAIM IS NOT COMPULSORY

After-acquired counterclaim—one of the recognized exemptions to the general rule that a counterclaim is compulsory and must

be asserted if it arises out of the same transactions as the opposing party’s claim

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 39 -

It is not barred even if it not set up in the previous case as a counterclaim

It may by the court’s permission be included in the same case by way of supplemental pleading before judgment

And the same may be allowed unless the case has progressed so far that it may be inconvenient or confusing to allow the additional claim to be pleaded

COMPULSORY COUNTERCLAIM CURES JURISDICTIONAL DEFECT, IF ANY, IN COMPLAINT

Although the original claim involves less than the jurisdictional amount, jurisdiction can be sustained if the compulsory counterclaim falls within the jurisdictional amount

WHAT IS THE EFFECT OF FAILURE TO ANSWER A THIRD- PARTY COMPLAINT?

The same situation

The third-party complainant may file a motion to declare the third-party defendant in default

WHAT IF THE COMPLAINT IS AMENDED AND YOU FAILED TO ANSWER THE AMENDED COMPLAINT. WHAT WOULD BE THE CONSEQUENCE?

The original answer will stand and that in case of new matters raised in the amended complaint, it will be risky to just sit on the amended complaint

WHAT IF THERE IS A SUPPLEMENTAL COMPLAINT AND THERE WAS FAILURE TO ANSWER. WHAT WOULD BE THE CONSEQUENCE?

The answer in the original complaint shall be deemed to be the answer to the supplemental complaint

It is riskier for one not to answer the supplemental complaint— there are new occurrences or transactions that have been included you haven’t covered yet in your defense

WHAT

COUNTERCLAIM?

IF

THERE

IS

FAILURE

TO

ANSWER

TO

A

A VS. B (counterclaim)

A VS. B

(counterclaim)

If the counterclaim is compulsory, A will not be declared in default.

If the counterclaim is permissive, A can be declared in default

The same goes with a cross-claim. It must be answered.

WHAT WOULD HAPPEN IF IT IS THE COMPLAINT YOU FAILED TO FILE?

Your cause of action may prescribe and you may be held guilty of laches

Section 3. Default; declaration of. 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. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (1a, R18)

(a) Effect of order of default. A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (2a, R18)

(b) Relief from order of default. A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 40 -

meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (3a, R18)

(c) Effect of partial default. When a pleading asserting a

claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a, R18).

(d) Extent of relief to be awarded. A judgment rendered

against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18).

(e) Where no defaults allowed. If the defending party in an

action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion

The claiming party must prove that the defendant is in default (the most important proof is the sheriff’s return—it indicates the date when the defendant received the summons; another is to refer to the records of the case—there is no answer filed by the defendant). Important to establish the starting point as well as the records.

WHAT CAN BE A POSSIBLE GROUND THAT THE DEFENDANT CAN RAISE TO OPPOSE THE DECLARATION OF DEFAULT?

The answer was filed within the reglementary period but then it is not in the records yet because you filed it using registered mail (proof will be the return card)

WHAT WILL HAPPEN IF THE DEFENDANT IS DECLARED IN DEFAULT?

A party in default shall be entitled to notice of subsequent

proceedings but not to take part in the trial.

WHAT IS THE REMEDY OF THE DEFENDANT IN CASE OF DECLARATION OF DEFAULT?

between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (6a, R18)

SITUATION: YOU HAVE UNTIL TODAY TO FILE AN ANSWER TO THE COMPLAINT BUT YOU FILED YOUR ANSWER A WEEK FROM NOW. ARE YOU IN DEFAULT?

File a motion to set aside the order of default

The motion must be under oath and must be accompanied by an affidavit of merit (shows that the failure to file was due to fraud, accident, mistake or excusable negligence—state the particular facts constituting the same; and show that you have a meritorious defense)

No, the delay in filing a pleading doesn’t automatically declare one to be in default

There should proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense.

In such case, the order of default may be set aside on such

WHAT

IS

THE

PROCEDURE

IN

DECLARING

A

PARTY

IN

terms and conditions as the judge may impose in the interest of

DEFAULT?

 

justice.

The opposing party shall file a motion to declare defendant in default

The motion and notice shall be sent to the defendant

A hearing shall be set for the motion and the court may require the parties to submit evidence

WITH RESPECT TO

SIGNIFICANCE OF THE ORDER OF DEFAULT?

THE

PLAINTIFF,

WHAT

IS

THE

Most probably, it would be a favorable judgment

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 41 -

THE GENERAL RULE IS THAT NO TRIAL WILL BE COMMENCED IN CASE OF DEFAULT. THE JUDGE MAY STILL REQUIRE THE PRESENTATION OF EVIDENCE.

In case of ex parte presentation of evidence, the clerk of court may be the one to receive the evidence to be submitted by the plaintiff. This is discretionary on the part of the court.

SHOULD THE JUDGE CHOOSE TO RENDER JUDGMENT NOW, WITHOUT NEED TO PRESENT EVIDENCE BY THE PLAINTIFF, WHAT ARE THE LIMITATIONS TO THE JUDGMENT THAT THE COURT MAY RENDER?

A judgment rendered against a party in default shall not exceed

the amount or be different in kind from that prayed for nor award unliquidated damages.

IN CASE THE DEFENDANT IS DECLARED IN DEFAULT, DOES IT AUTOMATICALLY MEAN THAT THE PLAINTIFF IS THE VICTOR?

It doesn’t automatically mean that the movant is the ultimate victor because the court must still decide the merits of the case

Section 1 of Rule 9

WHAT ARE THE CASES ON WHICH THERE COULDN’T BE ANY ORDER OF DEFAULT?

1. Declaration of nullity of marriage

2. Legal separation

3. Annulment cases

4. Summary procedure

RULE 12: BILL OF PARTICULARS

Section 1. When applied for; purpose. 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 averted 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 ten (10) days from service

thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. (1a)

Section 2. Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it to the attention

of the court which may either deny or grant it outright, or

allow the parties the opportunity to be heard. (n)

The motion should be set for hearing

However, to avoid delay, the motion should be immediately brought to the attention of the court for appropriate action— whether to grant or deny it or hold a hearing thereon

Section 3. Compliance with order. If the motion is granted, either in whole or in part, the compliance therewith must be

effected within ten (10) days from notice of the order, unless

a different period is fixed by the court. The bill of

particulars or a more definite statement ordered by the court

may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (n)

The bill of particulars must be submitted either separately or incorporated in an amended pleading within 10 days from notice of the order granting the motion

Section 4. Effect of non-compliance. If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (1[c]a)

Failure to comply may be a ground for dismissal

The dismissal unless made without prejudice, would be a bar to any subsequent action on the same cause

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D)

-

42 -

Section 5. Stay of period to file responsive pleading. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (1[b]a)

If the motion is granted, the moving party may file his responsive pleading within the period remaining at the time when he filed the motion for bill of particulars, but in any event not less than 5 days, counted from the service of the bill of particulars or amended pleading

If the motion isn’t granted, the movant has the same period, counted from notice of denial, within which to file his responsive pleading

The filing of motion for bill of particulars suspends the running of the period to file an answer or a motion to dismiss. It is resumed upon the amended complaint being filed in compliance with the order of the court granting the motion.

IS IT POSSIBLE THAT THE DEFENDANT BE THE ONE ASKED OF

A BILL OF PARTICULARS?

Yes, in case of a reply to be filed by the plaintiff

IN CASE THE DEFENDANT FAILS TO COMPLY?

In case of a counterclaim, it may be dismissed

In case of his defense itself, for example fraud was posed as defense without specifying facts constituting the same. The defense of fraud will be stricken out but not the whole answer.

In case the whole defense was ambiguous and there was no compliance, the defense will be stricken out and he would then be considered in default.

IN A BILL OF PARTICULARS, ARE WE CONTEMPLATING THE ULTIMATE FACTS CONSTITUTING THE CAUSE OF ACTION?

No because if the ultimate facts are not there and the cause of action is not properly laid down, then the remedy is to file a motion to dismiss

The filing of bill of particulars pertain not to the cause of action

Section

becomes part of the pleading for which it is intended. (1[a]a)

6.

Bill

a

part of pleading.

A bill of particulars

The bill of particulars becomes an integral part of the pleading being supplied

RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Section 1. Coverage.

pleadings and other papers, as well as the service thereof, except those for which a different mode of service is

This Rule shall govern the filing of all

prescribed. (n)

Section 2. Filing and service, defined. Filing is the act of presenting the pleading or other paper to the clerk of court.

Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (2a)

FILING V. SERVICE

Filing is the act of presenting the pleading or other paper to the

clerk of court (filing=clerk of court)

Service is the act of providing a party with a copy of the pleading or paper concerned (service=adverse party)

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 43 -

WHEN SERVICE UPON PARTY HIMSELF MAY BE ORDERED

1. When the attorney of record cannot be located either because he gave no address or changed his given address

2. An order to show cause why a party shouldn’t be punished for contempt for disobeying a special judgment

OTHER PLEADINGS

Pertains to pleadings after the complaint

Section 3. Manner of filing. The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. (1a)

TRANSMISSION THROUGH PRIVATE LETTER-FORWARDER, NOT RECOGNIZED

The date of delivery of pleading to a private letter-forwarding agency, isn’t to be considered as the date of filing thereof in court, and that in such cases, the date of actual receipt by the court and not the date of delivery to the private carrier is deemed to be the date of filing of the pleading

MANNER OF FILING

Papers coming from the court—presenting original copies thereof to the clerk of court personally (it is HIGHLY impractical to have it sent through registered mail)

Papers coming from the court

1. Personal service to his person or counsel (if not found, first try out the office of either counsel or person himself and in case there is no office, the residence of again either counsel or person himself)

2. Note that compared to service of summons, the above situation still considered as personal service

3. It could also be done through registered mail

4. In case the two cannot be availed of, there will be substituted service (delivery to the clerk of court)

Section 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (2a)

PAPERS REQUIRED TO BE FILED AND SERVED

1. Papers coming from the court

a. Judgments, Orders, Resolutions, etc.

b. Filing first then the clerk of court through the process

server, will be served

2. Papers coming from the parties

a. Motions, Appearances, Pleadings

b. Service first before filing

WHAT CONSTITUTES PROMULGATION?

Judgments, orders, and resolutions of the court should first be filed with the clerk of court before they are served upon the parties concerned

The act of filing constitutes rendition or promulgation thereof

In the case of pleadings subsequent to the original complaint and written motions, etc. they should be first served on the parties affected before they are filed with the court

Ex-parte written motions are now required to be served on the parties affected, although they need not be set for hearing

CIVIL PROCEDURE NOTES (ATTY. GUEVARRA, 2D) - 44 -

Section 5. Modes of service. Service of pleadings motions, notices, orders, judgments and other papers shall be made either personally or by mail. (3a)

MODES OF SERVICE

1. Personal service

2. By mail

3. Substituted service or publication

MODES OF SERVICE MAY NOT BE CHANGED BY PARTIES

1. The mere fact that a party was either informed of, or gained access to, the records of the court and was thus able to take a look at the decision, doesn’t constitute service

2. A party isn’t considered as having been served with the judgment merely because he heard the judge dictating the said judgment in open court; it is necessary that he be served with a copy of the signed judgment that he has been filed with the clerk of court

SERVICE OF SUMMONS V. SERVICE OF PLEADINGS

Service of summons—important to acquire jurisdiction

Service of pleadings—after either service of summons or voluntary appearance of defendant, he may then be served with pleadings either personally or by mail

Section 6. Personal service. Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (4a)

MEANING OF SERVICE PERSONALLY

Service of process on one by actual delivery thereof to him

Distinguished from substituted service at his residence or constructive service by publication

SERVICE OF PAPERS DISTINGUISHED FROM SERVICE OF FINAL ORDERS OR JUDGMENTS

Service of papers may be made by personal service, registered mail, if available, and if not, by ordinary mail or substituted service

Service of final orders or judgments—shall be served either personally, or by registered mail, or by publication

Section 7. Service by mail. Service by registered mail shall be made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail. (5a; Bar Matter No. 803, 17 February 1998)

HOW IS REGISTERED MAIL DONE?

It is made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered

If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail

Section 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and

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service by mail. The service is complete at the time of such delivery. (6a)

WHAT IS SUBSTITUTED SERVICE WITH RESPECT TO SERVICE OF PLEADINGS?

It is when personal service and registered mail cannot be made because either the office and place of residence of the party or his counsel being unknown

Substituted service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail

Service is complete at time of delivery

WHAT IS THE PROOF BEING CONTEMPLATED IN THIS SECTION?

Proof of filing if it is in the records

Or with respect to registered mail, the registry receipt card and affidavit of the person who did the mailing

Section 9. Service of judgments, final orders, or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a)

Section 10. Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. (8a)

WHEN IS SERVICE COMPLETE?

Personal service=complete upon actual delivery

Service by ordinary mail=complete upon expiration of 10 days after mailing unless otherwise provided by the court