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[ IKEBUKURO NOTES ] Dean Riano: The test of jurisdiction is whether the court has the

2015 CONSOLIDATED NOTES: CIVIL PROCEDURE power to enter into the inquiry and not whether the decision is right
or wrong. The fact that the decision is erroneous does not divest the
court that rendered it of the jurisdiction conferred by law to try the
case.

When it appears that the court has no jurisdiction over the subject
matter of a complaint filed before it, the court has the duty to dismiss
the claim and can do so motu proprio (citing Rule 9, Section 1, p. 62-
63).
This tome attempts to consolidate the hundred lecture notes by Dean
Jara, the books of Dean Riano and Dean Regalado, and the Survey of Q: Is it the duty of the court that dismissed the complaint on the
Supreme Court decisions and addendums by Dean Albano. ground of lack of jurisdiction to forward it to the proper court?
Dean Riano: No. No such duty is dictated by the Rules of Court.
The intellectual property over the content of this compilation belongs
to them. All errors in the transcription, however, are mine to bear.
JURISDICTION OF THE SUPREME COURT
Due credit and appreciation are granted to the people who transcribed
the wonderful MAS POGI and POGI notes; the 2004, 2014, 2015 San BP 129 does not mention anything about the SC. It begins with the
Beda BarOps; the San Beda Law Journal; and all people who helped CA downwards, up to the MTC and the Sharia Courts. Supreme
in one way or another. Court exercises its authority from the Constitution. In the
Constitution, the SC exercises original jurisdiction and appellate
jurisdiction. But the Constitution does not say that original
This work was completed in haste. Please indulge the compiler if you jurisdiction of the SC is exclusive, nor about the appellate jurisdiction
find grammar, spelling, and formatting mistakes. being exclusive. The basis for this is in the old Judiciary Act of 1948
where SC jurisdiction is delineated in a very thorough manner,
This is version two and does not contain half the book of Dean Riano providing exclusive original and appellate jurisdiction of the SC.
and the entire book of Dean Regalado as envisioned. It does contain Note that BP 129 did not repeal the old Judiciary Act and hence it is
the 2004, 2013, 2014 and 2015 lectures of Dean Jara, the Survey of still in force. What BP 129 repealed are provisions of Judiciary Act
SC Decisions by Dean Albano from 2011 to 2014, and some more of 1948 that are inconsistent with BP 129. The best argument to
case updates from browsing thelawyerspost.net. support this statement is Sec. 9 in BP 129.

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


JURISDICTION: GENERAL NOTES “3. Exclusive appellate jurisdiction over all final
judgments, resolutions, orders or awards of
Jurisdiction is the power and authority of a court to hear, try, and Regional Trial Courts and quasi-judicial
decide a case, and execute its judgment. agencies, instrumentalities, boards or
commission, including the Securities and
Premise: Jurisdiction is a matter of substantive law. Exchange Commission, the Social Security
Commission, the Employees Compensation
This is not necessarily true. Commission and the Civil Service Commission,
Except those falling within the appellate
Substantive law deals with jurisdiction over the subject matter and/or jurisdiction of the Supreme Court in accordance
jurisdiction over the nature of the action. This is the aspect of with the Constitution, the Labor Code of the
jurisdiction governed by BP 129 and the other substantive laws on Philippines under Presidential Decree No. 442, as
jurisdiction. (Dean Riano: Since jurisdiction over the subject matter is amended, the provisions of this Act, and of
a matter of substantive law, it cannot be granted by agreement of the subparagraph (1) of the third paragraph and
parties; acquired, waived, enlarged, or diminished by any act or subparagraph 4 of the fourth paragraph of Section
omission of the parties; or conferred by the acquiescence of the 17 of the Judiciary Act of 1948.”
courts [p. 69])
The Constitution provides for a limited number of cases over which
Jurisdiction over the person of the litigants, jurisdiction over the the SC can exercise original jurisdiction and limited number of cases
property involved, and jurisdiction over the issues of the case, on one over which it can exercise appellate jurisdiction. Unlike the old
hand, are governed by the Rules of Court. Judiciary Act, the Constitution did not state that the jurisdiction of the
Supreme Court is exclusive.

See: Art. VIII, Section 5, 1987 Constitution

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Q: Jurisdiction of courts must be expressly conferred by law. Has
SC: EXCLUSIVE ORIGINAL JURISDICTION the CTA certiorari powers even though there is no express grant
Petitions for certiorari, prohibition and mandamus against the CA, of such power?
COMELEC, CoA, Sandiganbayan, and Court of Tax Appeals. Dean Albano: Yes. In order for any appellate court to effectively
exercise its appellate jurisdiction, it must have the authority to issue,
SC: CONCURRENT ORIGINAL JURISDICTION among others, a writ of certiorari. In transferring exclusive
jurisdiction over appealed tax cases to the CTA, it can be reasonably
1. With the RTC: be assumed that the law intended to transfer also such power as is
Cases affecting ambassadors, other public ministers and deemed necessary, if not indispensable, in aid of such appellate
consuls jurisdiction.

2. With the CA: Furthermore, under Section 6, Rule 135, when by law, jurisdiction is
a. Petitions for certiorari, prohibition or mandamus
conferred on a court or a judicial officer, all auxiliary writs,
against the RTC, Civil Service Commission,
CBAA, NLRC, and other quasi-judicial agencies processes, and other means necessary to carry it into effect may be
b. Petitions for Writ of Kalikasan employed by such court or officer (citing City of Manila v. Grecia-
Cuerdo).
3. With the RTC and CA:
a. Petition for habeas corpus Q: There is an apparent conflict between the Family Court Law,
b. Petition for quo warranto BP 129, and the Constitution. Under the Family Courts Act of
c. Petitions for certiorari, prohibition or mandamus 1997, the Family Court shall have exclusive original jurisdiction,
against MTC and other bodies
among others, over ‘petitions for guardianship, custody of
children, habeas corpus in relation to the latter.’ The
4. With the RTC, CA and Sandiganbayan:
a. Petition for Writ of Amparo Constitution dictates that the Supreme Court has jurisdiction
b. Petition for Writ of Habeas Data over habeas corpus cases, and BP 129, though enacted on an
earlier date than the Family Court Act, states that the RTC and
SC: APPELLATE JURISDICTION CA shall also have jurisdiction over habeas corpus cases. How do
1. By way of certiorari under Rule 45 against the CA, you resolve this apparent conflict?
Sandiganbayan, RTC (pure questions of law only), CTA en
banc, and Under Thornton vs. Thornton, G.R. No. 154598, decided August 16,
2. Cases on the constitutionality and validity of a law or 2004, the Supreme Court held that RA 8369 (the Family Court Act)
treaty, international agreement or executive agreement,
did not divest the Court of Appeals and the Supreme Court of their
presidential decree, proclamation order, instruction,
ordinance or regulation, legality of a tax, impost, jurisdiction over habeas corpus cases involving the custody of minors
assessment, toll or penalty, jurisdiction of a lower court. because:
1. It could not have been the intention of the lawmakers to
Certiorari, Prohibition and Mandamus have been greatly limited by limit the writ to Family Courts which are limited only to
certain procedural rules. The limitation is known as the hierarchy of respective territories,
2. the primordial consideration is the welfare and best
courts. Thus, while theoretically a petition can be filed directly to the
interests of the child,
SC, one should follow the procedure under the principle of hierarchy 3. that a literal interpretation of the word ‘exclusive’ will
of courts. In Rule 65, it is expressly provided that petitions for result in grave injustice,
Certiorari, Prohibition and Mandamus (and even Quo Warranto and 4. that implied repeals are not favored, and
Habeas Corpus - Dean Jara) should be filed directly only with two 5. that A.M. 03-03-04-SC, or the Rule on Custody of Minors
courts, the RTC or the CA. and Writ of Habeas Corpus in Relation to Custody of
Minors, state that the Supreme Court and Court of Appeals
shall have concurrent jurisdiction over said writs.
See: Rule 65, Section 4
Among the basic principles of the enactment of BP 129 was to do
It should be further noted that although the Supreme Court, the CA,
away with the concept of concurrent jurisdiction. BP 129 has not
and the RTC have concurrent jurisdiction on petitions for certiorari,
been able to do away entirely with concurrent jurisdiction. BP 129
prohibition, mandamus, habeas corpus, and quo warranto, the RTC
does not use the term concurrent in vesting jurisdiction upon courts.
may only enforce these writs ‘in any part of their respective regions’. Generally, BP 129 has been able to do away with the concept of
The CA, on one hand, was once limited to issue these writs only in
concurrence of jurisdiction, except with respect to certiorari,
aid of its appellate jurisdiction, but BP 129 repealed this rule, stating
prohibition, mandamus, quo warranto and habeas corpus. Since the
now the phrase, ‘whether or not in aid of its appellate jurisdiction.’
Constitution and BP 129 allocate original jurisdiction upon 3 courts,
then it is safe to conclude that these 3 courts exercise original and
As contrast, the Sandiganbayan also has jurisdiction to hear petitions concurrent jurisdiction over these petitions.
for certiorari, prohibition, and mandamus, but may only issue these
writs only in aid of its appellate jurisdiction.

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JURISDICTION OF THE COURT OF APPEALS in the Rules. Thus, jurisdiction is vested in the RTC under the Rules
for it to be able to annul judgments rendered by an MTC.
CA: EXCLUSIVE ORIGINAL JURISDICTION
Cases of annulment of judgment of an RTC. Q: Can we then challenge the jurisdiction of RTC as BP 129, a
special law, should take precedence over a substantive law, as BP
CA: EXCLUSIVE APPELLATE JURISDICTION 129 does not expressly give the RTC the authority to annul
1. Ordinary appeal from RTC and Family Courts judgment of an MTC? Why?
2. Petition for review from RTC in exercise of its appellate A: We cannot. This is because, under BP 129 there is an allocation to
jurisdiction the RTC of jurisdiction to entertain and decide all kinds of actions
3. Petition for review from decisions, resolutions, orders or which are not especially given to other courts. This is the provision
awards from CSC, Ombudsman in administrative cases and
why an RTC can annul judgments of the MTC as well as the reason
other quasi-judicial agencies in exercise of its quasi-judicial
functions as mentioned in Sec. 1 Rule 43. why the RTC is considered as the real court of general jurisdiction in
our justice system. Since no substantive law has allocated to other
CA: CONCURRENT ORIGINAL JURISDICTION courts the jurisdiction to annul judgments of an MTC, it follows now
1. With the SC: that the RTC is the proper court to decide on the matter as provided
a. Petitions for certiorari, prohibition or mandamus under BP 129 for an RTC to entertain and decide all kinds of actions
against the RTC, Civil Service Commission, not especially given to other courts.
CBAA, NLRC, and other quasi-judicial agencies
b. Petitions for Writ of Kalikasan See: Islamic Da'wah Case
2. With the RTC and SC:
a. Petition for habeas corpus Q: Can an RTC entertain and decide on cases of annulment of
b. Petition for Quo warranto judgments of another RTC prior to BP 129? Why?
c. Petitions for certiorari, prohibition or mandamus A: Before BP 129, SC held yes, because the RTC is a court of general
against the MTC and other bodies jurisdiction. This is the reason why in BP 129, Congress deemed it
necessary to incorporate a provision giving exclusive authority to the
3. With the SC, RTC and Sandiganbayan: CA to annul a judgment rendered by the RTC to do away with the
a. Petition for Writ of Amparo
anomalous situation where an RTC is able to annul judgments
b. Petition for Writ of Habeas Data
rendered by another RTC, as there was no specific substantive law
prior to BP 129 which allocated to other courts the authority to annul
Q: Is the SC a court of general jurisdiction? judgments of the RTC.
A: The SC, despite being the highest court of the land, is not a court
of general jurisdiction, it exercises only limited original jurisdiction Q: Can the SC annul the judgment of the CA?
as provided for under the Constitution. It is generally not a trier of No. The Constitution and BP 129 does not provide authority for the
facts. The same is true in the CA. In Sec. 9 BP 129, the CA’s SC to annul judgments rendered by the CA. There is no substantive
authority is very limited. law or special law authorizing SC to annul judgments rendered by the
CA.
Under BP 129, the Court of Appeals may authorize itself to conduct
new trials and receive evidence in proper cases. The Constitution, and It does not mean that the decisions of the CA are immune from
even the Rules of Court, is silent whether or not the same power may annulment. The SC could still exercise its equity jurisdiction, most
be done by the Supreme Court. likely under Rule 65, in order to annul a judgment of the CA, based
on the same grounds given under Rule 47, extrinsic fraud and lack of
jurisdiction.
Q: CA has exclusive original jurisdiction over Annulment of
Judgment of an RTC under Rule 47. Does it mean that the CA
can annul a judgment rendered by an MTC?
A: Since the CA is a court of limited jurisdiction, it is allowed to JURISDICTION OF THE REGIONAL TRIAL COURT
annul judgment only judgments from the RTC. It cannot annul
decisions of an MTC. There are three factors that determine whether or not the Regional
Trial Court has jurisdiction over a given civil case:
Q: Would it mean that the judgment of an MTC is immune from 1. Whether or not action is capable of pecuniary estimation;
annulment of its judgment by the CA? 2. Whether or not the action is a real action; and
Yes. The decision of an RTC can be annulled by the CA. But the 3. If the amount is known, whether the amount is within the
decision of an MTC is immune from annulment by the CA. But, the ambit of the jurisdictional amount.
decision of an MTC can be annulled by an RTC. It is not so provided
in BP 129 that an RTC can annul a judgment of an MTC, but it is RTC: INCAPABLE OF PECUNIARY ESTIMATION
provided for under Section 10 of Rule 47 on Annulment of Judgment

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Not all actions incapable of pecuniary estimation are cognizable by of, or foreclosure of a mortgage on real property.’ Although the main
RTC. issue involved in the case is partition, it is unknown if the same rule
may be applied to expropriation and foreclosure proceedings.
For example, the following actions, though incapable of pecuniary
estimation, are not exclusively cognizable by the RTC: Q: Between the plaintiff’s allegation in his complaint for
1. Annulment of judgment rendered by RTC – not capable of reconveyance of possession of real property that the property is
pecuniary estimation, cognizable only by the CA. estimated to be worth P50,000, and an uncontroverted (common
2. Annulment of arbitral award by barangay court acting as evidence) tax declaration that states the property has an assessed
arbitral body – cognizable by MTC, as provided by the
value of P11,160, which amount should prevail for the purpose of
LGC, although incapable of pecuniary estimation.
3. Certiorari, prohibition and mandamus – not exclusively jurisdiction?
cognizable by RTC, although incapable of pecuniary Dean Riano: The uncontroverted tax declaration should prevail and
estimation. under BP 129, MTC should have jurisdiction over the complaint. The
estimated value, commonly referred to as the fair market value, is
Dean Albano: Settled jurisprudence considers some civil actions as entirely different from the assessed value of the property (p. 122).
incapable of pecuniary estimation, viz:
1. Actions for specific performance; Q: What if the property has no assessed value? What value will
2. Actions for support which will require determination of the then be used for purposes of jurisdiction?
civil status; There are several properties in the country which have not been
3. The right to support of the plaintiff;
assessed for tax purposes. To determine jurisdiction, you go to the
4. Those for the annulment of decisions of lower courts;
5. Those for the rescission or reformation of contracts; and neighboring lots until you locate a property that has an assessed
6. Interpretation of a contractual stipulation. value. And that will be the basis in ascertaining the jurisdiction of the
court.
RTC: JURISDICTION IN REAL ACTIONS
RTC: JURISDICTION IN MONEY CLAIMS
Q: Is it possible a real action is at the same time one incapable of
pecuniary estimation? When it comes to personal actions, under BP 129, the determining
A: Yes. A good example of a real action that is incapable of factor will be the amount sought to be recovered if it is a claim for
pecuniary estimation is foreclosure of real estate mortgage. It is not money, or if it is recovery of personal property, it is the value of the
capable of pecuniary estimation as the determinative issue here is the personal property as alleged in the complaint.
right of the mortgagee to foreclose, not the value of the property.
The determining factor for jurisdiction in a pure collection suit is the
Q: What do we do in determining jurisdiction of an action is a principal sought to be recovered, exclusive of charges interest,
real action but is incapable of pecuniary estimation? What factor attorney’s fees, damages, etc (IDALEC). If the amount sought to be
will be determinative to determine jurisdiction of the court? recovered by the plaintiff is 1M, it may be cognizable by the RTC if
A: SC held in a line of cases that if the action carries the feature of the principal amount exceeds the jurisdictional amount (P200,000 or
real action and one incapable of pecuniary estimation, then the P400,000 as the case may be), excluding IDALEC. If the principal is
determinative factor is the feature of incapable of pecuniary only P200k and the rest are charges, damages, interest, etc., then the
estimation. Thus, RTC has exclusive jurisdiction of foreclosure MTC has jurisdiction over the case. It is therefore wrong to say that a
actions, even if the assessed value of the property involved is less claim for P1 million is always cognizable by the RTC.
than the jurisdictional amount of the RTC. As long as the action is
foreclosure of mortgage, the RTC has jurisdiction. The entire amount, however, inclusive of IDALEC, shall be used to
fix the filing fees.
The feature of foreclosure of mortgage as a real action will only be
important in determining the venue, not the jurisdiction. Q: What if the plaintiff seeks only recovery of damages inclusive
of actual, moral, nominal, among others? For example, plaintiff
A similar action which applies the same principle is expropriation. sought 100K actual, 500K moral and 500k exemplary damages.
Expropriation of a piece of land is one involving real action, but it How do we determine jurisdiction here?
does not take into account the assessed value of the land in If the complaint is purely for damages, the aggregate (total) amount
determining jurisdiction. Thus, it is real action, although incapable of of damages will determine jurisdiction, not the specific amounts
pecuniary estimation, as the right to expropriate is the main issue, not claimed. Thus, in the example, the RTC has jurisdiction. Even if the
the value of the land involved. complaint specified the amount of damages for each aspect, the
aggregate amount shall determine the jurisdiction.
HOWEVER, and you should take note of this, under the latest case
on the matter, the Supreme Court held in Barrido v. Norato, G.R. No. Q: There is a complaint for a sum of money amounting to
176492, October 20, 2014, that ‘the MTCC has jurisdiction to take P150,000. The case was filed with the MTC. During the trial, the
cognizance of real actions or those affecting title to real property, or plaintiff presents evidence that he is entitled to P700,000. May
for the recovery of possession, or for the partition or condemnation MTC award the P700,000?

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No. The award is more than the jurisdictional amount granted by law
to inferior courts. The court cannot award the entire P700,000. JURISDICTION OF MUNICIAL TRIAL COURTS

Q: What should the plaintiff do in this case? With respect to MTCs, notwithstanding the expanded jurisdiction
He may waive the excess, but if he insists he should be awarded the thereof, practically all cases decided by the RTC pertaining to
entire P700,000, the decision of the MTC is null and void. personal property can also be decided by the MTC, depending only
on the value of the property involved.
Q: What if it’s in the reverse? What if there is a complaint for a
sum of money worth P700,000 but during trial the plaintiff was Note: MTC is still a court of limited jurisdiction despite the expanded
only able to prove he is only entitled to P150,000? May the RTC jurisdiction under BP 129 as amended. It can only try the cases given
award P150,000? to it under substantive law. The provision in BP 129 making the
Yes, applying the principle of adherence to jurisdiction. RTCs courts of general jurisdiction is not given to MTCs. BP 129
stated explicitly that the RTC shall have exclusive original
RTC: RECOVERY OF PERSONAL PROPERTY jurisdiction over all actions that are not specially assigned to any
other court. This is not contained in the allocation of jurisdiction of
BP 129 as amended takes into account the assessed value only in the MTCs.
case of real properties. Personal property values have no bearing in
jurisdiction. The value as stated in the complaint shall be MTC: TOTALITY TEST
determinative (whether the figure is true or not).
The totality test in BP 129 (Sec. 33(1), last proviso) is a proviso for
Q: Plaintiff sought recovery of the car through replevin, claiming ascertainment of jurisdiction, more encompassing than that provided
that it is worth 800k. If the defendant challenges the value, in the Rules.
stating that the car is 30 years old, and willing to submit evidence
to show true value, will the court entertain the defendant’s Q: What is the difference between the totality test in BP 129 and
motion? the totality test in the Rules of Court?
A: No. The court shall rely only on the allegations in the complaint. Rules of Court – The totality test in Rule 2, Section 5(d) concerns
Once the court acquires jurisdiction, it cannot be ousted; the court causes of action for money as to the amount. The totality of the
proceeds with the case until finally adjudicated. money claims shall be determinative of jurisdiction of courts.

Q: What if it is found during trial that the car is actually worth BP 129 – The totality test refers to of all claims or causes of actions
far less than the value claimed? Will the court remand the case to in a complaint, whether they refer to the same or different parties or
the lower court? arising out of the same or differing transactions. This is more
A: No. It will continue to hear until final judgment. There will be encompassing in scope.
adherence of jurisdiction of the court over the case. The court will
continue trying the case until it is finally adjudicated. MTC: DELEGATED JURISDICTION

The only way to oust jurisdiction in this regard is if Congress files a The MTC, in its delegated jurisdiction, acts as if it were an RTC.
law abandoning the principle of adherence of jurisdiction over a
particular case. MTC acts as if it was a cadastral court (usually done by RTC). If the
land registration or cadastral case is contested, the assessed value of
Q: Is there any exception to the rule that the court will not look the contested property is determinative of jurisdiction. If uncontested,
further the allegations in the complaint? MTC acts as a cadastral as if it were an RTC, there being no
Dean Riano: Yes, in ejectment cases in which the defendant averred limitation as to jurisdiction. But BP 129 clearly states that if MTC
the defense of the existence of a tenancy relationship between the acts as a cadastral court the MTC’s decisions on cadastral cases shall
parties. However, there must first be a reception of evidence and, if be appealable in the CA, not to the RTC (hierarchy of courts is not
after hearing, tenancy had in fact been shown to be the real issue, the followed).
court should dismiss the case for lack of jurisdiction (citing Ignacio v.
CFI of Bulacan and Hilado v. Chavez, p. 74-75). Q: What is the step-ladder approach?
It states that appeals, as a general rule, have to follow the order of the
Dean Albano: Although respondent averred tenancy as an affirmative courts from the lowest to the highest court. Thus, appeals from the
/ special defense in his answer, this did not automatically divest the inferior courts should go to RTC, and the RTC to the CA, so on.
MTC of jurisdiction over the complaint. It continued to have the
authority to hear the case precisely to determine whether it had MTC: SPECIAL / INTERLOCUTORY JURISDICTION
jurisdiction to dispose of the ejectment suit on its merits (citing
Mendoza v. Geronimo, November 2010) Habeas Corpus proceedings can be heard in the MTC, but only in
situations where petition was filed in the RTC, but no judges are
available in the RTC, so the petition is transferred to an MTC

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wherein a judge is available. The MTC gains jurisdiction as habeas jurisdiction over the case, and that it is HLURB which is the
corpus cases are urgent. In fact, habeas corpus cases are always given proper body to take cognizance of the complaint. Does HLURB
special preference by the courts; and thus, if no RTC judges are have jurisdiction over the ejectment case?
available to hear the petition, the clerk of court in the RTC must SC held that the primary jurisdiction of the HLURB does not extend
transfer the case to the MTC, issuing in the process a certification to complaints of ejectment filed by one party against the other. In the
that there are no RTC judges to hear the case, and MTC must hear the case of primary jurisdiction vested by substantive law to quasi-
petition promptly. BP 129 does not authorize the filing of the habeas judicial bodies, the authority of the quasi-judicial body is interpreted
corpus case directly in the MTC. Petition for habeas corpus filed in strictly. Ejectment could really be a dispute between developer and
the MTC can be challenged on jurisdictional grounds because BP 129 buyer, but since the complaint was for recovery of physical
does not vest unto an MTC an authority to entertain a petition for possession of the property (or even accion publiciana), SC held that
habeas corpus. It is only under circumstances where there are no RTC regular courts should take cognizance.
judges available to entertain a petition for habeas corpus when an
MTC judge can now analyze and study the propriety the issuing of
the writ of habeas corpus. DOCTRINE OF JUDICIAL STABILITY

Dean Riano: Courts of equal and coordinate jurisdiction cannot


RESIDUAL JURISDICTION interfere with each other’s orders. The principle also bars a court
from reviewing or interfering with the judgment of a co-equal court
Take note that the trial court still has residual jurisdiction to act on over which it has no appellate jurisdiction or power of review (p. 34).
certain matters even if the case is already on appeal. See Rules 41 and
42. It is not correct to assume that if a case has been decided by the
trial court, after an appeal is perfected, the case is now under the RULES OF COURT: GENERAL PROVISIONS
jurisdiction of the appellate court. Do not assume that the case is
entirely divested from the jurisdiction of the trial court, even if there Q: What are the limitations provided in the Constitution limiting SC’s
is a perfected appeal. The trial court continues to exercise jurisdiction authority in promulgating rules of procedure?
over certain matters for a limited period of time in its residual 1. uniformity in all courts of the same grade
jurisdiction. After the expiration of that period, absolute jurisdiction 2. speedy and inexpensive determination of the case
will now be exercised by the appellate court. 3. does not modify, increase or decrease substantive rights

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


PRIMARY JURISDICTION the Constitution, the rule can be properly challenged as to its validity
and applicability.
In primary jurisdiction, this involves quasi-judicial bodies. What
happens in primary jurisdiction is that Congress enacts a law which Q: A litigant challenged a rule on criminal procedure, stating
vests jurisdiction unto a quasi-judicial body to try and decide cases that Rule 115 (Rights of the Accused) is not procedural. He
which are cognizable by regular courts under BP 129. The reason argues that Rule 115 modifies substantive rights as espoused in
why Congress enacts these laws is that Congress feels that the quasi- the Constitution, and should be deleted in the Rules of Court.
judicial body is better equipped to decide disputes of litigants in Decide.
certain cases than the regular courts. The petition will be denied. SC said that while the authority of the SC
is to promulgate rules on proceedings, practice and procedure, and
For example, the HLURB has exclusive original jurisdiction to substantive rights should not be covered by the provisions of the
adjudicate disputes between subdivision buyer/s and the subdivision Rules, SC said that it is practically impossible for rules of procedure
developers. In cases of breach of contract under the NCC on matters to be devised without incorporating certain provisions that are
pertaining to the jurisdiction of quasi-judicial bodies, the trial court dealing substantive law. The standard is that we take the Rules as
cannot take cognizance of these matters, although BP 129 gives a whole, and determine whether it is procedural in character. If
jurisdiction to regular courts over such matters, given the fact that the answer is yes, and there are certain provisions speaking about
there is a substantive law vesting jurisdiction to the HLURB to substantive rights, that should not be a justification of deleting these
decide on such disputes. This is because it is presumed that the provisions in the Rules of Court.
HLURB is better equipped than a regular court to decide on such
cases due to its expertise. Also, SC noted that the NCC, a substantive law, contains procedural
articles concerning court processes such as those concerning unlawful
Q: What if the subdivision developer filed in the MTC a detainer and forcible entry, but NCC still remain a substantive law.
complaint for ejectment of a subdivision buyer who allegedly
violated the terms of the contract? The subdivision developer According to the Rules, the Rules of Court should be interpreted
sought to recover the property from the buyer, among other liberally. But the interpretation is one not in favor of the plaintiff or
prayers. The subdivision buyer challenged that MTC has no defendant. The meaning of liberal interpretation is to promote the

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ends of justice, to carry out the duty of the SC under the limitations docket fees, and manifest its willingness to abide by the rules by
given under the Constitution. paying additional docket fees when required by the court – may be
found in a 2014 case, Gipa v. Southern Luzon Institute.
Read: Alonso v. Villamor

Q: May the Rules be suspended in the interest of justice? RULE 1, SECTION 5


Qualify. The SC may suspend the Rules in favor of substantive law
or substantive rights. Lower courts may not suspend, but they have A civil action is always commenced with the filing of a complaint.
the power and duty to construe and apply technical rules liberally in This is the general rule. Some cases are commenced by a petition,
favor of law and justice. most notably in special civil actions. The filing of a complaint has
given rise to the action that when the case is filed, the court acquires
Q: Are they any Rules that require strict construction? jurisdiction over the action. The court will then have to gain
Yes. For example, the reglementary period for appeals is more often jurisdiction over the person of the defendant. Service of summons
than not strictly applied by the Courts. The perfection of an appeal in will gain jurisdiction over the defendant.
the manner and within the period permitted by law is not only
mandatory but also jurisdictional. A recent decision of the SC held that if the person filing the case is
not authorized to file the case, then the court does not acquire
Dean Riano: Furthermore, a reading of jurisprudence will reveal that jurisdiction over the person of the plaintiff, and will not acquire even
the rule on liberal construction cannot be successfully invoked where the jurisdiction to decide the case. The court can examine whether or
a party seeking for its application cannot show a justification for his not the person who filed the case is authorized. If not so authorized,
deviation from the Rules (p. 16). the court will not acquire jurisdiction over the person of the accused
and it will not acquire the authority to decide the case. The court will
Dean Albano: Liberal application of procedural rules is allowed only be absolutely without jurisdiction to try and decide the case.
when two requisites are present:
1. There is a plausible explanation for the non-compliance; In complaints properly filed by the plaintiff, the plaintiff can amend
and the complaint as a matter of right under Rule 10, provided an answer
2. The outright dismissal would defeat the administration of has not yet been filed. If amendment is to implead a new defendant,
justice (citing Domingo v. CA and Tible and Tible Co. v.
the court will accept such amended complaint as it is a matter of
Royal Savings and Loan Association)
right. As to the new defendant, the period to file an answer will relate
to the filing of the original complaint (Relating Back Doctrine).
DOCKET FEES
But, if a new cause of action is introduced along with the new
defendant, it is not an amendment, as a new cause of action is being
Q: Are docket fees jurisdictional?
included.
A: Yes. This is known as the Manchester rule, after the ruling in
Manchester Development Corporation v. Court of Appeals.

If you look at Rule 141, that is the rule prescribing docket fees, you RULE 1, SECTION 3, correlating with RULE 2, SECTION 2
will see that docket fees are not only limited to complaints but all
claim pleadings. Q: Should there always be a violation of a right for cause of
action to accrue?
Q: Are docket fees required for compulsory counterclaims? No. In the definition of a civil action, it is very clear that we do not
A: Although the Rules of Court state that there should be docket fees necessarily follow the definition of a cause of action as defined in
for compulsory counterclaims, the Supreme Court relaxed the rule Rule 2. Under said rule, for a cause of action to accrue, the plaintiff
and stated that compulsory counterclaims do not require docket fees must allege he has a right, and then allege the defendant had violated
to be filed. that right.

Q: When are docket fees not required to be paid? There are therefore two elements under the definition in Rule 2:
A: If you take a look at the last section of Rule 141, that is, Section 1. Plaintiff must allege he has a right.
2. Plaintiff must allege the defendant has violated that right.
22 of that rule, you will see that the Government is exempt from
paying docket fees. Also, if you take a look at A.M. 09-6-8-SC, or the
The implication given by the definition of a cause of action in Rule 2
Rules of Procedure for Environmental Cases, you will see that a Writ
is that the right holder must wait for a violation of his right before he
of Kalikasan and a Petition for Continuing Mandamus do not require
can have a cause of action against such person who violated his right
docket fees.
and have a reason to go to court. That cause of action should always
be correlated to the definition of a civil action found in Section 3(a)
Dean Albano: The rule on docket fees, and its exception – where the
Rule 1.
party does not deliberately intend to defraud the court in payment of

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Under Rule 1, a civil action is one by which a party sues another for Conceivably, one owner can file his case in the RTC if he claims the
the enforcement or protection of a right, or the prevention or redress damages suffered by him amounted to more than 500k. Another
of a wrong. owner can file his case in the MTC if he claims that his car incurred
damages amounting to 200k. The filing of these complaints by 3
Civil action does not require prior violation of a right before different owners will depend on the amount of damages each will
right holder can proceed to court. A plaintiff need not have his respectively claim in their respective complaints. The fact that there
right actually violated before a case can be filed. Even a threat to are 3 different causes of action does not mean that they should go to
violate a right gives rise to a cause of action. the same court in order to recover the damages suffered by them.

Premise: All civil actions require a cause of action. Q: Using the first example where the owner of the 3 cars can only
file one complaint for recovery of damages, can he properly and
This is not correct. Read the Rules. All ordinary civil actions require rightfully go to court right away?
a cause of action. There are at least two special civil actions that do No. If we rely solely on substantive law alone, it would seemingly be
not require a cause of action. The first is a complaint for impleader. yes. But if we apply other procedural principles, the owner may be
The second is a petition for declaratory relief. In interpleader and precluded from filing a complaint right away. The owner has to first
declaratory relief, there is no cause of action that is alleged in the satisfy certain conditions precedent before cause of action could
complaint. accrue. If these conditions precedent are not satisfied, the filing of the
complaint shall be premature and shall cause the dismissal of his
Q: Should the plaintiff allege that he suffered damages before he complaint.
may file an ordinary civil case in court?
No. Cause of action accrues when there is an allegation of a right and Q: What are some examples of condition precedents?
an allegation of a violation of or a threat to violate that right. There is Conditions precedent given under procedural rules and substantive
no need to allege that he suffered damages. law are as follows:
1. Prior barangay conciliation
2. Arbitration clause
CAUSE OF ACTION AND THE PRINCIPLE OF CONDITION 3. Certification on non-forum shopping
PRECEDENT 4. Exhaustion of administrative remedies
5. Earnest efforts towards a compromise
Q: The Rules of Procedure becomes more complicated if there
are several rights that are violated by one and the same wrongful Prior Barangay Conciliation
act. If there is just one wrongful act and there are several rights Even if a right has been violated and a cause of action indeed
violated, how will the causes of action accrue? accrued, if the action is covered under the circular on prior barangay
In order to determine whether several causes of actions will arise, if conciliation, the trial court can dismiss or not entertain the case and
there is one wrongful act and there are several rights that are violated, order the parties to undergo barangay conciliation first.
is to determine whether these rights belong to the same person or to
different persons. Arbitration Clause
Invariably provides that in case of breach of contract, the parties must
Several rights of one person violated by one and the same act: first undergo arbitration before a complaint can be filed by the
1 cause of action = 1 complaint. innocent party.

Several rights of several persons violated by one and the same act: Certification on Non-Forum Shopping
Several causes of action = separate complaints. The complaint/initiatory pleading must have Certification on Non-
Forum Shopping. The effect of a complaint/initiatory pleading
Q: If a person drives his car negligently, and causes damage or without Certification on Non-Forum Shopping is that the court
wrecks 3 cars, how many causes of action accrue against him acquires jurisdiction over the case, but the court can order the
using the standard given by the court? dismissal of the case for non-observance of Certification on Non-
Using the standard, determine whether the three cars belong to one Forum Shopping as a condition precedent.
person only or the cars belong to three different persons. If the 3 cars
belong to only one person, only one cause of action will accrue. The Q: Is there forum shopping if there is a variation of the causes of
owner of the cars can only file one case against the negligent driver. action but founded on same facts and evidence?
Otherwise, that will be splitting of causes of action. The owner had Dean Albano: Yes. Forum shopping can be committed in three ways:
only one right that was violated by the negligent driver. 1. Filing multiple cases based on the same cause of action and
with the same prayer, the previous not having been
resolved yet (litis pendencia)
If these 3 cars belong to 3 different owners, there are 3 separate
2. Filing multiple cases based on the same cause of action and
causes of action. Because there are 3 causes of action that arise, they the same prayer, the previous case having been finally
can file separate complaints, and they don’t have to be joined. resolved (res judicata); or

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3. Filing multiple cases based on the same cause of action, but The RTC. The cause of action in a complaint is not what the
with different prayers (splitting a cause of action, where the designation of the complaint states, but what the allegations in the
ground for dismissal is also either litis pendencia or res body of the complaint define and describe.
judicata).

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


causes of action in the difference cases filed (citing Asia United Bank SPLITTING A CAUSE OF ACTION
v. Goodland Co., Inc.).
Splitting a cause of action is abhorred by the court.
Q: Is the absence of a certificate of non-forum shopping
jurisdictional? For example, a creditor filed one civil action for the recovery of the
Dean Albano: No. While the certification requirement is obligatory, principal and another action for the interest earned by the principal.
non-compliance or a defect in the certificate could be cured by its Even if there are two different courts where these complaints are
subsequent correction or submission under special circumstances or filed, there is still splitting a cause of actions.
compelling reasons, or on the ground of substantial compliance
(citing Lim v. CA and Mindanao Station). Q: What are the sanctions for splitting a cause of action?
1. Filing of one could be used to dismiss the other due to litis
pendencia
A violation of the rule against forum shopping other than a willful
2. If one of the case has been decided, the other case can be
and deliberate forum shopping did not authorize the RTC to dismiss dismissed due to res judicata
the proceeding without motion and hearing. Specifically, the 3. Both cases can be dismissed on the ground of forum
submission of a false certification of non-forum shopping did not shopping.
automatically warrant the dismissal of the proceeding, even if it
might have constituted contempt of court, for Section 5, Rule 7, of It is now settled that if the party is guilty of splitting his cause of
the 1997 Rules of Civil Procedure is clear on the matter. action, he is also guilty of forum shopping. There is no need to
elaborate as to whether there is forum shopping as long as it can be
Exhaustion of Administrative Remedies shown that there is splitting causes of action.
This is in keeping with the doctrine of primary jurisdiction.
Q: Why do the Rules prohibit splitting?
Earnest Efforts towards a Compromise It is because the effect of splitting a cause of action could be harmful
In the NCC, in disputes between members of the same family, it must to the integrity of our courts. If splitting is allowed, and one case each
be shown that earnest efforts to reconcile or compromise have been will be filed for example in the RTC and MTC, there is the possibility
attempted but was unsuccessful. There are, however, exceptions to that one court will decide differently from the other and would result
the rule. in the courts looking funny, even if the same facts, the same parties
and the same pieces of evidence were presented therein. The rule on
Q: If prior recourse to compromise in a complaint between splitting is designed more for protecting the integrity of our courts.
immediate members of a family is not alleged, is it waivable? The likelihood that different courts will render conflicting decisions
Dean Albano: Yes. It is waivable if not pointed out by the defendant involving the same issue, the same parties and the same pieces of
in a Motion to Dismiss. Since it is not one of the four non-waivable evidence and thus destroy the credibility of the judicial system is
defenses, the court may not dismiss the case motu proprio. sought to be prevented.

Thus, the definition of a cause of action under the Rules is now Q: Suppose the plaintiff filed 2 complaints arising from the same
qualified by certain conditions precedent before the injured party can cause of action, but the defendant ignores this. Defendant did not
go to court. He must see to it that these conditions precedent, if act on the fact. Can the court motu propio dismiss the cases?
applicable, must first be observed. The risk of not doing so is that the Yes. Res judicata and litis pendencia are both non-waivable offenses
court, although competent and may have jurisdiction over the case, under Rule 9. Even if the defendant did not waive these, the court
may refuse to file the case and issue an order directing the plaintiff to motu propio can order dismissal of these cases once these becomes
undergo or comply with these conditions precedent. clear during trial. But if the ground for dismissal is litis pendencia,
only one of the cases will be dismissed. If the ground for dismissal is
If the conditions precedents have been met, the general rule that we res judicata, all cases filed will be dismissed.
follow is that for every cause of action, the plaintiff/right holder can
file one complaint. In litis pendencia, movant cannot move for dismissal of all cases,
only one can be dismissed.
Q: What if the designation of the complaint states it is a case for
unlawful detainer, but the body of the complaint states that it is (Tip: If you are counsel for the defendant, if cases are filed in 2
for the recovery of P1 million in principal loan, which court has different courts [RTC and MTC], move for the dismissal of the case
jurisdiction over the case? in the RTC as the amount involved in the MTC is smaller. Hence, if
the amount involved in total should have been 2.2M, and the amount

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involved in the MTC is only 200k, only 200k will be extent of Q: What if all installments are due? For example, plaintiff did
liability that your client will have in case of judgment against him.) not file a case for the first installment, second installment… until
all the installments became due. How many causes of action will
Q: Can we have the defendant have the remedy of dismissal of there be?
both cases filed in RTC and MTC? If all installments are due by the time the complaint is filed, the
Yes, on the ground of forum shopping. If a plaintiff is guilty of forum plaintiff must seek for the recovery of all the installments because by
shopping, the court shall order the dismissal of ALL cases. But the then he only has one cause of action. The cause of action at that time
qualification is that the dismissal is without prejudice, not an has become complete and total.
adjudication on the merits. Exception to the dismissal being without
prejudice is when the forum shopping was DELIBERATE, then Rule on Anticipatory Breach
dismissal is with prejudice. Even if the obligations are not yet due according to the contract, but
the debtor has expressed formally his desire not to pay, then that is an
Q: Between forum shopping and the defense of litis pendencia, anticipatory breach of contract from which creditor can file a case
which should you use as lawyer of your client? against the debtor to collect the entire obligation. This anticipatory
Dean Albano: It depends. Although taken in its face forum shopping breach should be formally pleaded in the complaint.
seems to be more beneficial since it will result to the dismissal of all
the cases, unless there is deliberate forum shopping on the part of the The basis for this may be found in Civil Law. The period for payment
other party, there may be some instances when it is beneficial for the is presumed to be for the benefit of both debtor and creditor. The
client to only allege litis pendencia. debtor cannot compel the creditor to receive his tender of payment
before the maturity date, and the creditor cannot compel the debtor to
Collection of Payments Payable on Installments pay also before such date. When the debtor expresses his desire not to
The rule of thumb is that for each installment that becomes due and pay at all, as in Blossom v. Manila Gas, the debtor loses the benefit of
unpaid, one cause of action arises for that particular installment. the period and the creditor may thus compel him to pay even before
the arrival of the maturity date.
If the installment becomes due and unpaid, the creditor has one cause
of action against the debtor for recovery of money. But his cause of Read: Blossom vs. Manila Gas
action against the debtor is only for the recovery of the installment
that was overdue. Q: If such anticipatory breach was not pleaded in the complaint
filed, and defendant failed to file an answer, the court will set the
Q: Can the creditor insist on recovery of the entire amount case for pre-trial. By the time the pre-trial was conducted, the
instead of installments? first installment had become due. The trial was scheduled, but by
General rule, no. Each installment must be due so that right of that time, the whole obligation became due and unpaid. Can the
recovery can be had. court properly decide the case in favor of the plaintiff?
No.
Exception: The contract has an acceleration clause. It is a clause in
contracts payable in installments where parties stipulate that in case If a plaintiff files a complaint in court although he has no cause of
of default in the payment of a certain number of installments (or even action at all, and the claim of the plaintiff matures at the time the case
just one), the entire obligation becomes due. is tried, the court still does not have any authority to decide the case.
This is because at the time of the filing of the complaint, the plaintiff
So if there was an acceleration clause in the contract wherein the did not have a cause of action. This is known as the Swagman Rule,
whole obligation becomes due after default of the first installment, after Swagman Hotel v. Court of Appeals.
the creditor will have one cause of action only to recover the entire
amount. Suppose the creditor indeed filed one case only, and later a Q: Can we not apply Rule 10, Section 5, or amendment to
judgment was decided in his favor and that has become final, and conform to evidence?
later the second installment has become due, he cannot file another SC held that we cannot apply amendment to conform to evidence, if
case for the recovery of the second installment by virtue of the in the first place the plaintiff does not have a cause of action at the
acceleration clause. Only one cause of action shall arise. time of the filing of the complaint. It is essential under the Swagman
Rule that a complaint should be filed after the cause of action has
But without an acceleration clause, the rule of thumb is that each accrued. If there is no cause of action that has accrued and a
installment that is unpaid shall give rise to a different cause of action complaint is filed, the court will have no authority to decide the case,
when they become due and unpaid. There will be as many cases as even if that obligation matures and becomes defaulted during the trial
there are installments filed by the creditor against the same debtor, of the case. We apply Rule 10 only if there is a cause of action at the
but each case corresponding to a different installment. time of the filing of the complaint.

Read: Larena v. Villanueva Read: Swagman Hotel v. Court of Appeals

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JOINDER OF CAUSES OF ACTIONS This is because partition will involve a different procedure from
ordinary civil actions. In fact, under our Rules now, partition is a
Splitting is prohibited but joinder of causes of action is encouraged multi-stage proceedings. Rescission is an ordinary civil actions.
by the Rules.
The court went ahead and tried the case, until a decision was finally
The Rules encourages a plaintiff to incorporate as many causes of issued by the court. Only then did the defendant raised, on appeal to
action he may have against the same defendant, although his causes the SC, the misjoinder of causes of action.
of action are totally unrelated to one another. This is allowed so long
as the parties remain the same. If nobody objected, the court may proceed in the disposition of the
case. The Supreme Court held in Ada v. Baylon, if the court decided
A plaintiff can file a complaint against a defendant for accion on the case despite the misjoinder of causes of action, the decision
reinvindicatoria, for recovery of money arising from the loan, will still be valid. SC made a qualification that these misjoined causes
recovery of damages arising from a quasi-delict committed by the should be within the jurisdiction of the trial court under BP 129.
defendant, although these actions are in reality different transactions.
There is nothing wrong if the plaintiff sets up three different causes In other words, under the Ada v. Baylon ruling, this rule on misjoined
of action in a complaint that arose of different transactions causes could be a ground for severance of these causes. But it if it is
not raised timely, and the court did not severe the cases and decided
There are three limitations to joinder of causes of action under the on it instead, the court’s decision is valid as long as the trial court has
Rules of Court, respectively (a), (b), and (c) of Rule 2, Section 5. jurisdiction over the misjoined causes.

Q: Does the RTC have jurisdiction over a complaint for


MISJOINDER DUE TO INCOMPATIBLE JURISDICTION partition? Does the RTC have jurisdiction over rescission of a
donation?
If the plaintiff files a complaint against the defendant for accion Note that a case for partition is one incapable of pecuniary
reinvindicatoria, and the assessed value of the property is 1k only, estimation. So even if there are misjoined causes in one complaint,
and the second cause of action is the recovery of money, obviously but this misjoinder is not raised before the trial court, the parties are
the actions are misjoined. This is because accion reinvindicatoria, the deemed to have waived this issue of misjoinder of causes of action,
property being only 1k, is cognizable only by the MTC. the judgment rendered by the court is valid and the same can be
executed if it is duly entered.
Q: In a complaint filed by the plaintiff against the defendant, the
first cause of action was for partition, and second cause of action If the court does not motu propio order the severance, the defendant
was for rescission of a donation. Both actions are cognizable by cannot blame the court for it. It is the burden of the defendant to raise
the RTC. this as an issue before the trial court.

If we rely solely on Rule 2, is there misjoinder of actions? Why? Read: Ada v. Baylon

Yes. This is because a complaint for partition is a special civil action Q: Can a complaint be filed where these two causes of action are
while rescission is an ordinary civil action. They are governed by set up, first, petition for certiorari, and then, as a second cause,
different procedures, and thus there is misjoinder of causes of action petition for habeas corpus?
under Rule 2 Sec. 5(b). Yes, the petition is allowed, by way of exception, according to SC.

Q: On the same facts above, the defendant did not notice the Read: Galvez v. Court of Appeals, G.R. No. 114046
misjoinder and did nothing, whereas the court did nothing also.
The judge most likely waited for the defendant to move to split Q: A complaint was filed in the MTC. The first cause of action
the misjoinder causes. But since nothing was done by defendant, was for accion reinvindicatoria where the assessed value of the
the judge proceeded to try the two misjoined cases. land was 1k. The other cause of action is unlawful detainer of a
condominium unit, with value of back rentals being 2M. Can an
Under the rules, can a court, motu propio, order the severance of MTC have jurisdiction over the action?
one of the misjoined causes of action? Yes. The assessed value of the land in the accion reinvindicatoria is
only 1K and therefore cognizable by the MTC. On the other hand, the
Yes. The court can do so. Under the Rules, there is no need for a unlawful detainer case, regardless of the amount of back rentals
motion from the defendant if the court finds out that causes of action sought to be recovered, will also be cognizable by the MTC.
are misjoined. It can motu propio order the severance of cases. This is
done for the benefit of the court, because if the court will wait for the Q: Are the causes properly joined?
defendant to make a motion, to raise the misjoinder of causes, the No. There is still misjoinder, although both causes are cognizable by
court will find himself confused with the procedure he will follow. an MTC. This is because accion reinvindicatoria, although
cognizable by the MTC, shall be governed by ordinary proceedings

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while unlawful detainer will be governed by summary procedure. We
cannot join causes of action which are governed by different Rules of Permissive Joinder of Parties
Procedure, although they may fall within the jurisdiction of that same It envisions a situation where there are two or more plaintiffs, or two
court. or more defendants, or both, and where there is one or a series of
transactions, with common questions of fact concerning the same
Note: parties.

Dean Jara, in his lecture this year (2015), states that when the action Q: The owner of a land discovered that his property has been
involves a case of unlawful detainer and a case for collection of sum occupied forcibly by 11 informal settlers and they retained
of money worth P1 million excluding IDALEC, although there is in physical possession thereof. The informal settlers had constructed
reality misjoinder since they pertain to different jurisdictions (MTC houses therein. The owner wanted to recover the possession
and RTC respectively), if the case is filed in the RTC, under Rule 2, thereof. Should the owner file 11 cases of forcible entry or just
Section 5(b), the joinder will be held valid. one against the 11, or one complaint wherein there is a joinder of
parties?
Q: Is there such thing as non-joinder of causes of action? SC said that the owner has the option of choosing any one of these
No. It is purely voluntary in the part of the plaintiff if he wishes to remedies. Plaintiff can file 11 separate complaints impleading only
join his causes of action. There may misjoinder of causes of action, one defendant in each complaint. If plaintiff chooses to file just one
misjoinder of parties, and non-joinder of parties, but there is no non- action, in that complaint, he must allege 11 causes of action. The last
joinder of causes of action. recourse will involve joinder of parties.

The joinder of parties is permissive in this case.


VOLUNTARY JOINDER OF PARTIES
Compulsory Joinder of Indispensible Parties
Q: What are the limitations in joinder of causes which involve Even if the court tries a case without impleading an indispensible
joinder of parties? party, such non-joinder will render the proceedings void. The
The joinder of parties should arise from transactions arising out of the decision is void and will never be entered, and thus cannot be made
same contract or series of contracts. The parties involved are not final and executory.
necessarily indispensable parties. There are several causes of action
involving plurality of parties. Before the 1997 Rules of Civil Procedure, the constant ruling by the
SC has always been that failure to implead indispensable parties will
For example, if a truck driven by A hits two cars respectively owned render the judgment void. The remedy of the defendant would be to
by B and C, B and C each have a cause of action against A. Although file a Motion to Dismiss on the ground of failure to state a cause of
they may separately file a complaint against A, they may also join as action. If proven, the case would be dismissed with prejudice.
plaintiffs and file a single complaint containing two causes of action
against A. The joinder is not mandatory, only permissive. It should be With the advent of the 1997 Rules of Civil Procedure, the procedure
noted that the two causes of action arose from a single event, i.e., the became much different. Failure to implead indispensable parties will
vehicular accident. not always render the judgment void. This will be explained later in
the lecture.
On another hand, if a tire dealer sold a set of tires of A, and in a
separate transaction sold another set of tires to B, and both A and B Take note, however, of two cases decided last 2013 – Macawadib v.
failed to pay their respective obligations, the tire dealer may NOT file PNP, G.R. No. 186610, and Republic v. Uy, G.R. No. 198010.
a single complaint against A and B. The two contracts, though both Although these cases involve special proceedings, particularly Rule
contracts of sale, are totally different from each other. The causes of 108, I think this applies also to civil actions. In these cases, the SC
action did not arise from the same or series of transaction. held, citing Go v. Distinction Properties, ‘The absence of an
indispensable party renders all subsequent actions of the court
null and void for want of authority to act, not only as to the
absent parties but even to those present.’
JOINDER OF PARTIES: INDISPENSABLE PARTIES

Unlike joinder of parties, there is a rule against misjoinder of causes Dean Albano: There is now a 2014 case which states that if
of action, in the same way there is a rule on misjoinder of parties. indispensable parties are not joined, the judgment is null and void.
There is no rule on non-joinder of causes of action, while there is The case is Crisologo v. JEWM Agro-Industrial Corp.)
non-joinder and misjoinder of parties. The reason why there is no rule
on non-joinder of causes is because it is permissive, it is always at the Q: Who are indispensable parties?
option of the plaintiff. The plaintiff can join as many causes of action A: They are parties in interest without whom no final determination
as he may have. The court cannot force him to do so. But there is a Q: can be had.
rule against misjoinder of parties.

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Q: What is the sanction if the complaint is filed without Yes, applying the provisions of the NCC, the creditor can go after A,
impleading indispensible party? but recovery can be had only to the extent of the amount owed by A.
It is not per se a ground for dismissal as very clearly stated in Section In this example, debtor A is an indispensible party.
11, Rule 3, but if the defendant uses another ground, i.e., failure to
state a cause of action, then the complaint will be dismissed. Q: How about debtor B, is he a necessary party?
Yes. His presence in the case against debtor A is not indispensible.
As stated before, before the 1997 Rules, if the defendant files a The court may require B be impleaded to complete the determination
Motion to Dismiss on the ground that there is failure to state a cause the subject matter.
of action, and such ground was proven in court, the court will dismiss
the case without prejudice. Q: If the liability of the debtors is joint and several, i.e., solidary,
do we consider all of them indispensable or necessary parties?
The 1997 Rules, however, particularly Rule 16, allows the court to A: Under the NCC, if the debtors are solidary liable, the creditor may
order amendment of the pleadings. Under Section 3, Rule 16, after sue one, or some, or all of them. Each of the debtors, therefore, is an
the hearing [of the Motion to Dismiss], the court may dismiss the indispensable party to the entire share. If there are remaining debtors
action or claim, deny the motion, or order the amendment of the not impleaded to the complaint, they are neither considered necessary
pleading. It should also be noted that under Section 11, Rule 3, the or indispensable parties.
trial court may order any party to be dropped or added on its own
initiative. A Motion to Dismiss by the defendant therefore is not Q: What is the duty of the plaintiff if a necessary party is not
required before the court may order the addition of an indispensable impleaded?
party. The only duty of the plaintiff is to tell the court that he has left out a
necessary party. He is not compelled to include such party. The court
If the order is not complied with, the court, on motion or motu will have to determine if it is essential for the court to order requiring
proprio, may dismiss the case under Section 3, Rule 17. It should be that necessary party to be impleaded.
noted that the dismissal here is with prejudice, an adjudication on the
merits, unless otherwise declared by the court. Q: If plaintiff ignored the court order to implead the necessary
party, is Rule 17 applicable?
This procedure, applying Section 3, Rule 16 first, then Section 3, No, Rule 3 should apply, which provides for the sanction if plaintiff
Rule 17 second, is in keeping with the rule in Section 11, Rule 3 that refuses to obey an order to implead necessary party. The case will
non-joinder of parties is not a ground for dismissal. continue. But the plaintiff would be deemed to have waived any right
of action against necessary party. If later on, the plaintiff decides to
file a complaint against such necessary party, the complaint will not
NECESSARY PARTIES prosper, as the necessary party can claim that the right to file a claim
against him has been paid, waived, abandoned or otherwise
Q: How do we distinguish whether a debtor or creditor is extinguished under Rule 16.
necessary or indispensable?
The rule to guide us in this fact is the NCC on liability of debtors.
REPRESENTATIVE PARTIES
If there are two parties to the contract of loan, one creditor and one
debtor, if in case there is a violation of the contract, both the creditor Q: In the enumeration of representatives under Rule 3, Section 3,
and debtor are of course indispensible parties. why is it that only trustees of an express trust included? Why not
the trustees of an implied trust?
If there are two or more debtors, plaintiff should evaluate whether It might be possible, it might be highly likely, that the trustee in an
debtors’ liabilities are solidary or joint. In the NCC, in the absence of implied trust is unaware that he is the trustee of the beneficiary or the
any other stipulations/factors, when there are two debtors of the same trustor. Implied trusts are created by operation of law.
indebtedness, the assumption will be that they are joint creditors. If
there are stipulations referring to the debt as solidary, then they are Q: What is the duty of the plaintiff if the defendant is represented
solidary debtors. The provisions of the NCC will be the guide in this by another party?
situation. The plaintiff should identify not only the representative but also the
real party-in-interest.
Q: If we apply the provisions of the NCC, and the creditor filed a
case to recover the entire debt, and debtor A and B are joint Q: May the court compel the plaintiff to identify the real party in
debtors, do we consider both debtors to be indispensible parties? interest?
Yes. If the purpose of the creditor is to recover the entire obligation, Yes. The defendant may move to dismiss the case for failure to state
then both debtors should be impleaded in the complaint. a cause of action and the court may compel the plaintiff to amend the
complaint. If the plaintiff still does not comply with the order of the
Q: Can the creditor file a case against only debtor A?

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court, the court may dismiss the case under Rule 17 for failure to
comply with an order of the court. This dismissal is with prejudice.
ASSIGNMENT/TRANSFER OF INTEREST
Q: What is ‘interest’ in real party in interest?
Dean Albano: Interest within the meaning of the Rules means There is a creditor who lent 1M to the debtor. The debtor
material interest or an interest in issue to be affected by the decree or defaults in payment. But before the creditor filed a complaint, the
judgment of the case, as distinguished from mere curiosity about the creditor felt the need for money. He assigned his claim to another
question involved. One having no material interest to protect cannot for a certain value. Such person now stands in the shoes of the
invoke the jurisdiction of the court as the plaintiff in an action. When creditor, and may file a claim against the debtor. The creditor
the plaintiff is not the real party in interest, the case is dismissible on sold his rights to X for 700K.
the ground of lack of cause of action.
Q: Can the assignor/original creditor, file a claim for 1M against
creditor?
UNWILLING CO-PLAINTIFF No, he is no longer a real party in interest, as he has assigned his
rights to another.
Q: Who is an unwilling co-plaintiff?
An unwilling co-plaintiff is a person who has done no wrong in so far Q: What if assignee files a complaint against debtor?
as the plaintiff is concerned but refuses to file a complaint even if he Assignee is the proper party to file a complaint against debtor, so the
and the plaintiff have a common interest over the claim. case will prosper.

Q: May the court compel a person to file a complaint? Q: How much may the assignee recover?
No. Under our system, the filing of a complaint is left entirely to the He is entitled to recover 1M. The assignee steps into the shoes of the
discretion of the plaintiff. If a plaintiff does not want to go to court to creditor who sold his right to the assignor for 1M.
protect his rights or to enforce his rights there is nothing which the
State or which the law could do. Q: What if the original creditor has not assigned his credit for
1M. He files a case against debtor. While the case was pending in
Since we cannot compel a right-holder to become a party-plaintiff, the RTC, the plaintiff/creditor assigned his claim to another for
the only means available under the Rules to another right-holder with 700K. Will the assignee be considered as indispensable party?
a common interest is to implead the other right-holder as defendant. No. Under Rule 3, assignee pendente lite, though may be a real party
By making the other right-holder as a defendant he will now come in interest, is not considered an indispensable party and the court may
within the jurisdiction of the court. ignore such party.

Q: Must the unwilling co-plaintiff file an Answer? Q: Using the factual details of the preceding question, may the
No. He is impleaded only for the purpose of bringing him under the debtor pay the assignee 700K, and if he does not accept, tender it
jurisdiction of the court. He need not file an Answer nor should he be in court, so the case will be dismissed against him?
declared in default if he does not do so. Yes. This is allowed under Art. 1634 of the NCC.

If the unwilling co-plaintiff, however, chooses to answer, he may do Article 1634. When a credit or other incorporeal right in
so. Usually, the unwilling co-plaintiff files an answer to set up a litigation is sold, the debtor shall have a right to extinguish
counterclaim against the original plaintiff. There is no prohibition in it by reimbursing the assignee for the price the latter paid
the Rules of Court. therefor, the judicial costs incurred by him, and the interest
on the price from the day on which the same was paid.
Q: Is there such thing as an unwilling co-defendant?
No. It is presumed that all defendants are unwilling. A credit or other incorporeal right shall be considered in
litigation from the time the complaint concerning the same
is answered.
MINOR AND INCOMPETENT PERSONS
The debtor may exercise his right within thirty days from
Q: Is there any conflict between the Family Court Act and a the date the assignee demands payment from him.
complaint with the RTC or MTC as the case may be impleading a
minor accompanied by a prayer or a motion for the appointment Q: Will Art. 1634 apply if the credit was assigned before the
of a guardian ad litem? complaint is filed?
Dean Jara: No. The guardianship that is allocated to a Family Court is No. In such case the debtor has to pay the assignee the amount of the
what we call a general guardianship, a guardianship over the property credit in full, not only the amount the assignee paid for such credit.
or person of a minor. But when the guardian is simply a guardian ad
litem, that is an incident or collateral to the main action itself.

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Q: If the assignee pendelite lite wishes to join the case, what will SC held that there is no need. Only a representative number can be
he do? impleaded as they represent all of the class. Determination made on
He may file a motion for substitution or joinder. He need not file a such representative class is tantamount to determination for all of the
motion for intervention. members of the class.

Q: Why did SC hold that all such members of the class are
SPOUSES AS PARTIES deemed indispensable?
SC pointed to the last sentence of Sec. 12 Rule 3 which states that
Q: What is the general rule regarding spouses as parties? “Any party in interest shall have the right to intervene to protect his
Husband and wife shall sue or be sued jointly. individual interest.” This effectively means that each member of the
class is an indispensable party.
Q: What are the exceptions?
Section 4, Rule 3, states that the exception is that provided by law. Generally, under Rule 19, intervention is subject to the discretion of
the trial court. As an exception, the court cannot deny intervention of
SC held that the law contemplated in the exemption is the Family a member of the class in a class suit.
Code or NCC as the case may be. This is pertinent on the rule of
partnership and co-ownership in case of husband and wife. It is
impertinent to compel a husband to implead the wife as co-plaintiff. DECEASED LITIGANT

In case of co-owner, a partner can file a complaint without A contract of agency is present when a lawyer is engaged by his
impleading the co-owners. The same would be applicable to husband client, an agency which exists until the client dies. The lawyer has to
and wife. The wife may file a case without impleading her husband. inform the court about the death of his client. The court may then
cause substitution of the representatives of the estate of the deceased.
There is a caveat: If the husband as a co-owner files a complaint
against another, he should indicate in the complaint that he is filing A distinction should be made if it is the plaintiff or the defendant who
such case as co-owner. But if he claims sole ownership, he should died.
implead the wife. The law authorizes either spouse alone to file a
complaint. The spouse left behind is not considered a necessary party If the plaintiff dies, the court would require the lawyer to submit the
as a complete determination of the case could be had even with just names of the heirs in order to act as substitute plaintiff.
one spouse as a party.
If all heirs refused to act as substitute parties, the court can require
Other exceptions: the defendant to seek the appointment of an administrator or executor
1. When the husband and wife are judicially declared legally of the estate. This may be done by settlement of estate under special
separated from each other, the other party must be proceedings.
impleaded; and
2. If the husband and wife are separated in fact for at least one If the executor or administrator has been chosen, he will be tasked to
year.
represent the estate until final judgment.

If there is an appeal on the decision of the trial court, the


CLASS SUIT
executor/administrator shall represent the estate. Their representative
capacity ends upon final entry of judgment.
Q: When is class suit proper?
There is a common interest among persons so numerous that it would
If it is the defendant who died, and his death did not extinguish the
be impracticable to bring them all to court. It is not required that all
obligation, there is a transfer of interest from the debtor to his estate.
be presented in court, but only enough to represent the rest of those
There will have to be proper substitution of parties similar to that
who are party to the same suit.
stated with the deceased plaintiff above.

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


Q: What criterion do we use to determine if the action survives
Kalikasan through the Citizen’s Suit on behalf of persons yet unborn.
the death of the petitioner?
This is effectively a class suit.
Dean Albano: If the action affects primarily and principally property
or property rights, then it survives the death of the plaintiff.
Q: Do we consider the members of the class as indispensable or
necessary parties?
A Petition for Declaration of Nullity of Deed of Sale of Real Property
SC held that all members of the class involved in the litigation are
for instance, is one relating to property and property rights, and thus
considered indispensable parties.
survives the death of the petitioner (citing Bonilla v. Barcena, Torres
v. Rodellas, Sumaljag v. Literato)
Q: Should they all be identified?

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complaint can be filed naming A or B as plaintiffs in the alternative
Q: If there is a decision against debtor that was final and against X, the one who has run away with the car.
executory, can the substituted party ask for motion for writ of
execution for satisfaction of the deceased’s claim?
No. It cannot be subject to execution under Rule 39. Creditor must UNKNOWN DEFENDANT
file a claim with the estate, attaching the said judgment as evidence
of a valid claim, under Rule 86. This usually happens in a case of replevin, or recovery of possession
of personal property.
Q: If the defendant dies, and the lawyer was not able to inform
the court of his death, and the court continued with the Usually personal properties are transferred from one hand to another,
proceedings not knowing the defendant is dead, is the judgment so the problem of the creditor who tries to recover the property is if
of said court valid? he files a complaint for replevin against the person who bought the
A: Yes, the judgment is valid. personal property from him, there is a chance that when the sheriff
goes to this defendant, the defendant is no longer in possession of the
Q: If the lawyer informed the court, or the court, independent of property, so the sheriff will not be able to confiscate the property. It
the lawyer’s notice was able to discover that the defendant is is possible that the first possessor of the property has transferred the
truly dead, but the court nevertheless continued with the possession in the meantime to another person.
proceedings, is the judgment valid?
A: No, the judgment is void. In order to avoid this situation, the plaintiff in a case of replevin will
usually implead at least two defendants: the first possessor of the
Q: Should the court dismiss the case if the lawyer failed to inform property or the second possessor if known to the plaintiff, and then a
the court of his client’s death? third defendant called John Doe. John Doe here is impleaded as an
No. It is not a ground for dismissal of the action but only disciplinary unknown defendant; whoever is in possession of the personal
action against the counsel. property will be the John Doe who is impleaded in that complaint.

Q: Is there an unknown plaintiff?


ALTERNATIVE DEFENDANTS No. Since it is the plaintiff himself who institutes the action, it is the
duty of the plaintiff to identify himself to the court.
The situation is simply one where the plaintiff has the right that has
been violated but at the time of filing of the complaint he is not sure
as to who, between two or more persons, has violated the right and INDIGENT PARTY
who should be held liable for the violation.
The general rule on motions is that a motion should not be heard ex
Q: If there are alternative defendants, are there alternative parte. When it comes to an indigent litigant, the rule expressly allows
causes of action? that a motion presented by a litigant to be allowed to try the case as
Yes. See Rule 2, Section 5. It says ‘in the alternative.’ If you take a an indigent could be submitted to the court through an ex parte
look at Rule 8, Section 2, it also says ‘two or more statements of a motion.
claim… alternatively.’
The motion to declare oneself as an indigent party may be submitted
Q: How about alternative defenses? to the court even before filing a complaint. This is the only motion
Yes. See Rule 8, Section 2, it says ‘defense alternatively or that may be filed before filing a complaint.
hypothetically.’
The fact that a person is salaried, is gainfully employed, does not
Q: How about an alternative judgment? mean to say he could not become an indigent party. The only
Yes. If you take a look at Rule 60, Section 9, it says ‘shall render qualification now is that the litigant can prove that he cannot support
judgment in the alternative.’ himself and his family, even if he is a salaried employee.

Q: How about alternative plaintiffs? The declaration by a court that a litigant may be considered as an
There is nothing in the Rules, but if we take a look in the Federal indigent litigant is purely interlocutory. It could be assailed later on in
Rules of Civil Procedure of the United States from which we copied the course of the trial as an adverse party.
some of the provisions of the Rules of Court, it is expressly allowed.

Q: Give an example of alternative plaintiffs. VENUE OF ACTIONS


Suppose A and B are disputing who between them owns a specific
car. The car was stolen by X. Who can file a complaint against X for The Supreme Court, under the Constitution, may disregard the rules
the recovery of the car? Under the Federal Rules of Civil Procedure a on venue. All other courts cannot disregard the rules on venue. The

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trial courts, however, can incorporate in their decision an advisory to
the defeated party to appeal the matter to the SC. Q: What is the remedy if there is improper venue?
The defendant must file a Motion to Dismiss or else it is waived.
In purely civil actions, venue can be subject to stipulation of parties.
Q: May the court motu proprio dismiss the case?
Elements: No. Improper venue is not one of the four non-waivable defenses that
1. It must be in writing, the court may use as ground to dismiss the case motu proprio.
2. It must be contracted before the case is filed, and
3. It must contain features of exclusivity. Dean Riano: This is not necessarily true. Under summary procedure
and small claims proceedings, the court may dismiss the case motu
If the stipulation will cause undue inconvenience to parties, then such
proprio since it has the authority to examine the complaint and such
stipulation can be dispensed with by parties. Rule 4 is designed for
evidence that may be attached thereto and dismiss the case on any of
the convenience of complaining parties, not for the benefit of
the grounds apparent therefrom for the dismissal of a civil action (p.
defendants.
175).

Read: Sweet Lines v. Teves


Q: What if a corporation sues another corporation? What should
be the venue?
In a real action, the venue, in absence of any stipulation designating a Dean Albano: Follow the ordinary rules on venue if it is a real action.
specific venue, is the place where the property or a part thereof is
located.
If it is a personal action, specifically with respect to a domestic
corporation, it is ‘in a metaphysical sense a resident of the place
In a mixed action – action is both real and personal – the venue in where its principal office is located as stated in the articles of
absence of stipulation is the same as that of the rule in real actions.
incorporation’ (citing Golden Arches Dev. Corp v. St. Francis Square
Holdings, Inc.)
Dean Riano: Examples of words with restrictive meanings are: only,
solely, exclusively in th si court, in no other court save -, particularly,
Q: What if the Articles of Incorporation state that the address of
nowhere else but / except -, or words of equal import (p. 172).
the plaintiff is in Manila, but the principal office is actually in
Mandaluyong? Will a case filed in Mandaluyong be dismissed by
Q: What is the venue if it is a personal action and the defendant the defendant on the ground of improper venue?
does not reside and is not found in the Philippines? Dean Albano: No. Respondent’s choice must be respected as ‘the
We normally cannot file a case against someone who does not reside controlling factor in determining venue for cases is the primary
and is not found in the Philippines. There are only two instances objection for which said cases are filed’ (citing Saludo v. American
where a civil case can be filed against them – when the civil action Express Inc.)
pertains to the civil status of the plaintiff, or if it involves a property
of the non-resident defendant in the Philippines. In these instances
Q: What are some examples of real actions?
there is a res from which the court may have jurisdiction.
Dean Riano:
1. Actions for unlawful detainer, forcible entry, accion
Q: What if it is the plaintiff who is a non-resident and cannot be publiciana, accion reinvidicatoria, to quiet title, or to
found in the Philippines? remove a cloud on a title;
There is no problem. He voluntarily submits to the jurisdiction of the 2. An action to recover possession of real property plus
court once he filed the complaint. damages (compare this with an action for damages to real
property, which is only a personal action);
3. If one of the party seeks to rescind or annul a contract AND
Q: Will rules on venue apply to the SC or CA?
that the other party return possession of a real property, it is
It is not possible to state a rule of venue that applies to the Supreme a real action;
Court or the Court of Appeals because unlike trial courts which are 4. An action to foreclose a real estate mortgage (but an action
distributed throughout the country, we only have one Supreme Court to compel the mortgagee to accept payment of the debt and
based in Manila and the Court of Appeals that is likewise based in to release the mortgage is a personal action);
Manila. So the features of trial courts in different regions do not 5. An action praying that the defendant accept the payment
being made by the plaintiff for the lot to which the latter
apply when it comes to the SC and the CA.
contracted to buy on an installment basis from the former;
6. Action for cancellation of a TCT;
Q: May the parties agree to a change of venue which has the
feature of exclusivity but which is entered after the case is filed in Q: What are examples of personal actions?
court? 1. An action for a declaration of nullity of marriage;
Yes. The court, however, cannot be forced to enforce this agreement. 2. An action for specific performance with damages (but if the
Once a case is filed in court, the court will continue to have authority performance sought to be done is the issuance of deed of
to try the case notwithstanding any agreement on exclusive venue sale for a parcel of land to acquire ownership of the land, it
that the parties will enter into later on. is in reality an action to recover a parcel of land, and is thus

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a real action; BUT THEN AGAIN, if the ownership is not This does not apply to, among others:
in issue and the plaintiff only seeks for the issuance of a 1. Rule 65 cases, nor in petition for relief cases.
deed of sale ALONE, this is an exception to the exception 2. Cases that involve public officers or LGUs.
and is a personal action); 3. Certiorari, Prohibition, Mandamus
3. An action to annul a loan and its accessory real estate 4. It does not apply to expropriation or quo warranto.
mortgage;
In these cases the Government or public officers are usually involved
and according to the LGC are not covered by barangay conciliation.

IN REM, IN PERSONAM ACTIONS Q: If your client, a creditor of a loan worth P1 million, wishes to
file a complaint in court without undergoing prior barangay
The determination of whether or not an action is real or personal conciliation, as lawyer how do you counsel your client?
should not be confused whether or not an action is an action in rem, A: I will counsel him to attach with his complaint a petition for a
in personam, or quasi in rem. Not all real actions are in rem actions, provisional remedy, such as preliminary attachment. Under the LGC,
and not all in rem actions are real actions. these cases are also not covered by barangay conciliation.

For example, settlement of estate involving personal properties of the Q: If the case is filed directly in court in violation of the LGC,
deceased is a personal action, since the action does not involve title will the court still acquire jurisdiction?
or possession or interest to real property, but it is still an action in Yes, under BP 129.
rem since it is enumerated under Section 47 (a) of Rule 39.
Q: What are the remedies of the defendant and the court if prior
An example of a real action and in personam action, on another hand, barangay conciliation was not done?
is an accion reinvidicatoria. Although the court may adjudge A is the The defendant can file a motion for dismissal for lack of cause of
owner of the land as between him and B, this will not stop X, a third action while the court can compel, on motion or motu proprio, both
party, to file a complaint against A for another accion reivindicatoria. the plaintiff and defendant to submit to barangay conciliation while
X is not bound by the judgment in the first case between A and B. the case is being held in suspension. The court can hold the case in
abeyance until conciliation was had or had failed.
An example of a real action and in rem action is a cadastral or land
registration proceeding. Q: Are barangay courts part of the judiciary?
Barangay Court is not part of the judiciary, but part of the executive.
An example, finally, of a personal action and in personam action is a Inherently, barangay courts are not allowed to adjudicate, only to
collection suit for a sum of money. mediate, to conciliate, and convince parties to arrive into a
compromise agreement and settle amicably. They act as an arbitration
The rule on venue does not apply to CA, CTA and SC. It is only court; that is, if parties have mutually agreed in writing to constitute
applicable to trial courts and other lower courts. the barangay court as an arbitration court for their dispute.

The barangay courts follow procedurally the same rules as that of


PRIOR BARANGAY CONCILIATION court cases.

Prior barangay conciliation, as a general rule, is a condition precedent The pleadings could be verbal, although the barangay court usually
to the accrual of a cause of action. asks for pleadings to be written. In Manila, they also require payment
of minimal docket fees, regardless of the amount of claim.
2 requisites:
1. The parties must be natural persons, and The barangay court may issue summons and subpoena.
2. They reside in the same city or municipality
If the complainant fails to appear repeatedly during the conferences
As long as these two requisites are present, as a general rule, prior called by the Barangay Court, the Barangay Court can order the
barangay conciliation is a must regardless of the nature of the action. dismissal of the complaint, and that dismissal is with prejudice. The
For example, if there is a claim for collection of a sum of money, complainant loses his right to recover against the respondent.
regardless of the amount involved, prior barangay conciliation is still
a must. It should be further noted that prior barangay conciliation is If it is the defendant who fails to appear, the barangay court will just
required not only in filing cases before the MTC or RTC but also the issue the certificate that there is failure to compromise. The plaintiff
CA, SC, and other judicial bodies. may then proceed to court.

Barangay conciliation applies to civil actions, as well as special civil The rule on venue in barangay conciliation is different from Rule 4.
actions in appropriate cases. The venue is the residence of the respondent. If the complainant and

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respondent reside in different barangays, the complaint should be the fault of the judgment debtor, the judgment creditor cannot enforce
filed in the barangay where the respondent resides. his original claim anymore. He may only enforce the judgment based
on a compromise through Rule 39.
If they are unable to settle, the barangay court issues a certification
that no compromise was entered into. This enables the plaintiff to file Q: Why is there a difference between a settlement agreement
a case in court. filed in a court of law, and a settlement agreement being enforced
with the barangay court?
Q: What if there is irregularity in the issuance of certificate to file Barangay courts do not have any power to render a judgment to
action by the Barangay Captain? confirm the settlement or compromise agreement. They are a part of
Dean Albano: First of all, the Barangay Captain, as a public official, the executive, not the judiciary. Thus, the most they can do is only to
is presumed to act regularly in the performance of official duty. Even enforce the settlement agreement.
grating, however, that an irregularity had intervened in the Barangay
Captain’s issuance of the certification, the SC notes that the The parties may also agree in writing to convert the barangay court to
irregularity is not a jurisdictional flaw that warrants the dismissal of an arbitral tribunal. In such case, the barangay court becomes a quasi-
the criminal cases before MTC. The irregularity merely affected the judicial body. This written agreement may be repudiated within five
parties’ cause of action (citing Sabay v. People). days from filing said agreement.

If they, however, were able to settle before the Barangay Court and a The barangay court, as an arbitration court, can make arbitral awards.
compromise agreement was made between them, that agreement will This award may not be appealed. The aggrieved party, however, may
be considered final and executory, subject to repudiation by any party file a petition to nullify the arbitral award, similar to annulment of
within 10 days from execution of the agreement. Grounds are any of judgment, with the MTC.
the vices of consent. If there is repudiation, the barangay court will
issue certification allowing plaintiff to file the case in court. If this award is not annulled, it becomes final and executory and like
the settlement agreement may be enforced by the barangay court. If
There is no need for the barangay court to ask for confirmation of the there is no satisfaction of the claim, the remedy for the creditor is to
compromise agreement. After the lapse of the 10-day period, it enforce the award with the MTC.
becomes final and executory. It can become subject to execution by
the barangay court. If the terms of the agreement are not complied Q: The claim of the creditor was 500k. The creditor and the
with, the barangay court can execute the judgment, provided such debtor submitted the matter for conciliation in the barangay
judgment should be executed within six months from signing of court. The claim of 500k was reduced substantially in the
compromise agreement. proceedings, i.e., 250k paid in installments. The debtor failed to
comply. The agreement was not repudiated. The creditor filed a
While the barangay court can make a levy on execution, it is limited complaint in the regular court for recovery of the 500k. CA held
to personal properties belonging to respondents. It cannot levy on real that the only recourse of the creditor was to enforce the
properties owned by respondents. It can also sell these levied compromise agreement as provided in LGC and the
personal properties at public auction to satisfy the compromise implementing circulars, the creditor having lost the right to claim
agreement. If there is no satisfaction of the claim, the remedy for the the 500k. Decide.
creditor is to either (1) file a case of collection in the MTC to satisfy
the compromise agreement; or, (2) according to Miguel v. Montanez, SC held that failure to comply with the compromise agreement is
treat the settlement agreement as rescinded and file the original claim considered as a repudiation of that compromise agreement. SC cited
with the proper court. Art. 2041 of the NCC which states that when a party fails to comply
with the compromise agreement, the agreement is rescinded by
Q: Why is it the barangay courts are not allowed to levy real operation of law, and thus the creditor is entitled to recover the
property if they are already allowed to levy on execution over original claim in the courts of justice.
personal property?
The lawmakers thought it would be best to reserve levy on execution There is no need to file rescission of the compromise agreement
over real property for the courts. It should be noted that under Rule in this instance. The effect is that the creditor who has agreed to the
39, levy on execution over real property involve legal processes such compromise agreement will be reverted to his original position as a
as redemption. These legal processes require mastery of the law, and creditor claiming the amount in his original claim before the
in a situation where lawyers are not even allowed to participate in the compromise agreement.
proceedings, it is best that these legal processes will be allowed only
in a court of law. Mere refusal or failure to comply with compromise agreement is
tantamount to repudiation of the compromise agreement.
There is a difference, however, if the settlement agreement was
submitted to court. The court will render a judgment based on a Read: Montañez vs. Miguel
compromise and this will become the law between the parties. Once
the judgment is subject to execution, and the execution failed due to

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SUMMARY PROCEEDINGS This is also the reason why the court may ignore the motion and
consider it as not filed.
Summary Proceedings refers to the summary procedure followed by
lower courts in unlawful detainer, forcible entry and money claims up Q: If the defendant is prohibited from filing a motion to dismiss,
to P200,000, exclusive of interests and costs. but the defendant, after evaluating the complaint that the case
should be dismissed based on any ground in Rule 16, can he still
Q: Is it correct to say that only MTC follow summary procedure? make use of these grounds to cause dismissal eventually?
No. There are some cases which follow summary procedure that is Yes. The defendant should follow Rule 16 by making use of the
cognizable by the RTC. However, these cases involve family-related grounds as an affirmative defense in his answer, and later on raise
cases. They are not civil actions involving summary procedures under these issues.
the rules. If you take a look under your Family Code, there are cases
there that involve summary procedure and they must be filed either in One of the prohibited motions also in Summary Procedure, and this is
the RTC or Family Courts as the case may be. also true with Small Claims, is the motion to declare the defendant in
default.
Under Section 3 of the circular governing summary procedure, there
are only four pleadings that may be filed in court: If defendant failed to answer on time, the plaintiff can move for
1. Complaint judgment on the pleadings.
2. Answer
3. Compulsory Counterclaim In ordinary proceedings, a motion to declare defendant in default
4. Cross-Claims
must be initiated by plaintiff before the court can declare defendant in
default. Unless such motion is made, the court can do nothing.
Q: Are permissive counterclaims allowed?
No, permissive counterclaims are not allowed, unlike in small claims
The reason why the rules on summary procedure do not allow the
proceedings.
court to declare defendant in default is because the rules under Rule 9
cannot be allowed in summary proceedings. It will be tantamount to
Under Section 19, there is a list of prohibited pleadings and motions.
allowing a defendant in default to ask for lifting the order of default,
This list is similar with the list in small claims proceedings.
defeating the purpose of the rule on summary proceedings. It will not
be summary anymore.
One of the motions prohibited by the circular is a Motion to Dismiss,
except on the grounds of lack of jurisdiction over the subject matter,
Motion for new trial, motion for reconsideration and petition for
or failure to comply with a condition precedent, i.e., prior barangay
relief from judgment are prohibited in summary proceedings. This
conciliation.
does not mean the defendant has no remedy after judgment. The only
remedy available for a defendant is to appeal the judgment.
Q: May the court summarily dismiss the case without a Motion to
Annulment of judgment under Rule 47 can also be had under these
Dismiss from the defendant?
proceedings. But before he can avail of Rule 47, he must comply with
Yes. The court itself will examine the contents of the complaint. If
the strict requirements under Rule 47. Thus the aggrieved party must
the court finds the case should be dismissed under Rule 16, it can do
first appeal if that is available to him.
so motu propio, without a correlative motion to dismiss filed by the
defendant.
One important aspect of Summary Procedure is the presence of a
preliminary conference. This is similar to pre-trial under civil actions
Ordinarily, under ordinary procedures, a court cannot simply dismiss
in ordinary procedure.
the case without a correlative motion to dismiss.
Q: Is it correct to say that there is no trial or hearing in summary
The defendant is given time to file a responsive pleading for a shorter
procedure?
period than in ordinary procedure, i.e., 10 days. The period is non-
No A trial is not absolutely prohibited in summary proceedings, as
extendible.
certain criminal cases are governed by summary proceedings. A trial
has to be conducted because the court cannot deprive the accused of
If defendant ignores the period, but files a motion for extension of 5
his constitutional right of confrontation and from cross-examining the
days to file an answer, the court can ignore it, considering it as if it
witnesses.
was not filed. If such a motion was filed, and there was failure of the
defendant to file an answer within 10 days, plaintiff can move for
Q: Why did not the SC adopt a common summary procedure for
judgment on the pleadings.
civil and criminal cases? Why disallow trial in civil cases under
summary proceedings?
Q: The circular does not state that the 10 days is non-extendible.
This is because SC cannot violate the rights of an accused in a
What is the basis for this argument?
criminal case. The same right is not availing to a defendant in a civil
It is stated in Section 19. One of the prohibited motions is a motion
case under summary procedures.
for extension of time to file pleadings, affidavits or any other paper.

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Q: If the aggrieved party appeals the case to the RTC, will RTC Yes, he may. The claim for P50,000 is within the jurisdiction of the
follow the rules of summary procedure as well? Small Claims Court.
No. Summary procedure applies only to inferior courts. Once the case
is elevated to the RTC in appeal, the appellate court has to comply Q: Using the above problem, may he foreclose the mortgage if the
with the ordinary rules of procedure under the Rules of Court. claim is not satisfied?
No, he may not. Small Claims Court only has jurisdiction to enforce
Read: Rule 70 of the Rules of Court money claims. Once the mortgagee-creditor has enforced his claim in
a Small Claims Court, the mortgage is automatically cancelled by
operation of law.
SMALL CLAIMS PROCEEDINGS
Q: In a contract of lease and a contract of mortgage then, is it
A Small Claims Court has jurisdiction over payment of money where better for the lessor or creditor not to file their cases in a Small
the value of the claim does not exceed P100,000, exclusive of interest Claims Court?
and cost. This is slightly different from the general rule of ‘exclusive It depends. If the lessor or creditor wishes to only enforce the money
of interest, damages, attorney’s fees, litigation expenses, and cost.’ claim aspect of their cases, the Small Claims Court is a better court
since it is faster and more advantageous to their interest. However, if
Q: Why are attorney’s fees not included? they wish to evict the lessee, or foreclose the mortgage, they are
For the simple reason that lawyers are not allowed to participate over much better not to file their cases with the Small Claims Court.
Small Claims Proceedings.
The scheme in Small Claims proceedings is that they are not required
Joinder of causes of action is allowed, so long as the aggregate to prepare their own pleadings. In Metro Manila, the MTC assigned
amount should not go beyond P100,000. to entertain these claims have ready forms for complaints (called a
Statement of Claim) or answer (called a Response) to be filed in
Q: From where must this payment of money originate? court. The complainant only has to fill in the blanks. Minimal docket
According to the circular, the claim or demand may be for (1) money fee is paid.
owed under contract, (2) damages arising from tort, quasi-contract, or
contract, and (3) enforcement of a barangay amicable settlement or Unlike Summary Procedure, permissive counterclaims are allowed in
an arbitration award involving a money claim. Small Claims Proceedings.

Q: Suppose there is a contract of lease between A and B. A is the There are prohibited pleadings and motions similar to Summary
lessor and B, the lessee. Under the contract, B must pay A Procedure. One of these prohibited pleadings is a Motion to Dismiss.
P10,000 as monthly rent. B is in arrears for five months, meaning Like Summary Procedure, however, the court by itself may dismiss
he is indebted to A for P50,000 in back rentals. May B go to the the complaint if one of the grounds under Rule 16 is apparent in the
Small Claims Court to enforce his claim for P50,000? face of the document. The unavailability of a Motion to Dismiss does
Yes, he may. The claim for P50,000 back rentals is within the not mean that the defendant may not incorporate in his Response the
jurisdiction of a Small Claims Court. defenses under Rule 16.

Q: Suppose A also wishes to recover possession of the land from At the time of filing the Statement of Claim or Response, certified
B, may he do so? photocopies of the actionable documents subject to the claim or
No, he may not. If he wishes to recover possession of the land from defense as the case may be, as well as the affidavits of the witnesses
B, he must file an unlawful detainer case. The Small Claims Court and other evidence must be attached with the Claim or Response.
only has jurisdiction over purely money claims.
Judicial Dispute Resolution
Q: Suppose A filed an unlawful detainer case against B in the The MTC encourages parties as much as possible to enter into a
MTC, may he do so? compromise agreement. Judicial Dispute Resolution is similar to pre-
Yes, there is something wrong with the complaint. Provided that he trial in ordinary civil actions and preliminary conference in Summary
has also a pending case with the Small Claims Court, he cannot split Procedure.
the action so that he is collecting back rentals from one court, and an
unlawful detainer case in another court. That would be tantamount to In Manila, based on experience, it is usual that the JDR court and the
splitting a cause of action. actual court that will decide the case are different from each other. If
you take a look in your circulars, absent an agreement of the parties
Q: Suppose there is a contract of real estate mortgage between A that the JDR judge will be the same judge that will decide the case,
and B as security for a loan worth P50,000. A is the mortgagor- there will be another pairing judge that will decide the case instead.
debtor and B, the mortgagee-creditor. May B go to the Small
Claims Court and demand from A his claim for P50,000? Unlike Summary Procedure, small claims proceedings have nothing
to do with criminal cases, only civil collection cases.

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In small claims procedure, the judgment is immediately final and Rule 9, Section 2, if he fails to do so, a compulsory counterclaim, or a
executory, no appeal is available. Motion for new trial, motion for cross-claim, not set up shall be barred.
reconsideration and petition for relief from judgment are not
available since they are prohibited pleadings under the circular. The Q: Are there any actions where some pleadings are not allowed?
only remedy available to an aggrieved party is under Rule 65, Yes. For example, cases governed under Summary Procedure, Small
Certiorari. Thus, there is no appeal, plain, speedy or adequate remedy Claims Proceedings, Environmental Cases, the Writs of Kalikasan,
available. Amparo and Habeas Data, and expropriation, among others, prohibit
certain pleadings and motions.
Q: Does it mean that the aggrieved party in small claims
procedure is treated more kindly than in summary procedure?
No. The availability of Rule 65 in Small Claims procedure is not INITIATORY AND NON-INITIATORY PLEADINGS
really a benefit. A petition under Rule 65 does not stop the
respondent court from carrying out its decision. There are two classification of pleadings under Rule 7:
1. Initiatory Pleadings
Unlike in an appeal, usually, execution is not allowed, except in Under Rule 7, all claim pleadings are initiatory pleadings.
forcible entry and unlawful detainer. In case of unlawful detainer,
under Rule 70, the payment of supersedeas bond and the payment of There should be a certification on non-forum shopping, the
current rate of monthly rentals can stop enforcement of the summary violation thereof could lead to adverse consequences such
proceedings judgment. as dismissal with or without prejudice; and the court shall
impose docket fees under Rule 141. The payment of docket
The only way Rule 65 can prevent immediate execution in small fees is considered jurisdictional.
claims is that the court taking cognizance of Rule 65 will issue a
TRO or writ of preliminary injunction upon application of appellant. 2. Non-Initiatory Pleadings
There is a need to post an injunction bond to avail of the TRO or writ Non-initiatory pleadings need no certification of non-forum
of preliminary injunction. shopping; and no docket fees are required.

Q: Is it always practical to proceed with Rule 65 if there is an Q: Compulsory counterclaims and cross-claims are claim
adverse decision against a party? pleadings. Are they also initiatory pleadings?
No. Small claims proceedings involve, as the name implies, small No, they are not initiatory pleadings and therefore do not require a
claims. It is sometimes impractical to proceed with Rule 65 since it is certification of non-forum shopping or the payment of docket fees. It
possible that the attorney’s fees and litigation expenses will be more should be noted that they are contained in an Answer and the latter is
than the actual sum to be collected. not a claim but a responsive pleading.

Q: Rule 141 states that compulsory counterclaims and cross-


PLEADINGS AND CONTENTS OF PLEADINGS claims require docket fees. What is the basis that compulsory
counterclaims do not require docket fees if not the Rules of
Let us take Rule 6, 7, 8, 9, and 10. Take them as one set, as they refer Court?
to the same thing, pleadings and content of pleadings. With respect to compulsory counterclaims, courts do not consider it
an initiatory pleading which will necessitate the payment of docket
Pleadings should always be in writing. We do not recognize in our fees.
system oral pleadings.
See Santo Tomas University v. Surla.
Pleading is a written statement or allegations of the cause or defenses
submitted to the court for judgment. In 2010, SC decided that if the defendant files an answer with
permissive counterclaims, fails to pay docket fees, and the court has
Under Rule 6, the litigants are allowed to make use of nine pleadings, neglected to collect docket fees thereto tries the case resulting in the
but numerous motions. dismissal of the complaint and granting the permissive counterclaim,
the decision over the permissive counterclaim is void due to lack of
Classes of pleadings: jurisdiction, there being no showing that the court acquired
1. Claim pleading (7 kinds) jurisdiction over the counter-claim. The defendant has the duty to
remind the clerk of court that docket fees should be collected against
2. Responsive pleading (2 kinds)
the defendant so as to enable the execution of a decision in favor of
the defendant.
There are several pleadings that may only be allowed if accompanied
by another pleading. For example, under Rule 11, Section 8, a
compulsory counterclaim or a cross-claim that a defending party has
at the time he files his answer shall be contained therein. And under COMPLAINT

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Ultimate Facts will not be considered as a specific denial. It will be considered as a
In ordinary civil cases, ultimate facts should be alleged in the general denial, and a general denial will be treated as a judicial
complaint. The plaintiff, however, is not sanctioned if evidentiary admission to the allegations contained in the complaint. As a result, a
facts are included therein. They will only be considered as surplusage judgment on the pleadings can be had upon motion of the plaintiff.
by the court.
Negative Pregnant
In several circulars, in certain proceedings, a complaint need not state Another form of denial frowned upon by jurisprudence are the
just ultimate facts. In a complaint filed under Summary Proceedings, following: “I specifically deny paragraph 1 because I had not dealt
plaintiff is encouraged to include in his complaint evidentiary facts with the plaintiff” or “I specifically deny paragraph 2 of the
and to attach his evidence in the document. In Kalikasan proceedings, complaint.” They are considered as negative pregnant. They are
the plaintiff is required to attach to his complaints all the evidence specific denials that contain no ground relied upon in support of the
that are in the possession of the plaintiff (documentary, testamentary denial, and thus are considered as general denial. The remedy of the
or object). Also in Kalikasan cases, the defendant should include his defendant is to amend the answer as a matter of right as provided in
evidence in the answer, aside from specific denials. Rule 10.

The ultimate facts are those that constitute the cause of action, an Q: Are they cases where general denial is allowed?
allegation that the plaintiff has a right, an allegation that the A general denial is allowed in Habeas Corpus cases, but expressly
defendant has violated that right, or an allegation of compliance with prohibited in Writ of Amparo and Habeas Data cases.
conditions precedent that gave rise to accrual of the cause of action.

COUNTERCLAIMS
ANSWER
It is a claim made by the defendant against the plaintiff.
Insofar as the answer is concerned, it is the pleading in response to a
complaint. It may contain positive or negative defenses or both along Q: What is the difference between a compulsory and permissive
with evidentiary facts. The defendant, however, cannot move for the counterclaim?
court to order the plaintiff to present evidentiary facts in his Compulsory Counterclaim Permissive Counterclaim
complaint as the statement of the ultimate facts alone is sufficient.
One which arises out of or is
Problems arise when an answer interposes a negative defense. necessarily connected with the It does not arise out of nor is it
transaction or occurrence that is necessarily connected with the
Negative Defense the subject matter of the subject matter of the opposing
In civil cases, a negative defense is always an important part of the opposing party’s claim (Sec.7, party’s claim
answer. A negative defense must always be in the form of a specific Rule 6)
denial. It does not require for its It may require for its
adjudication the presence of adjudication the presence of
Q: What is the standard to follow that a denial is specific? third parties of whom the court third parties over whom the court
It is found in Section 10, Rule 8. There are three modes, three ways, cannot acquire jurisdiction cannot acquire jurisdiction
in which a denial may be considered specific. These are:
Barred if not set up in the action Not barred even if not set up in
1. Total denial of the allegations in the complaint with (Sec. 2, Rule 9) the action
accompanying statements upon which he relies to support Need not be answered; No Must be answered,: Otherwise,
his denial; default default
2. Part denial and part admission; and
3. Just a statement by defendant that he has no knowledge Initiatory pleading. (Riano, p.
Not an initiatory pleading.
or information about the truth of the allegation. 336)

Must be accompanied by a
Theoretically, the defendant can make use of any mode of denial
certification against forum
right away.
Need not be accompanied by a shopping and whenever required
certification against forum by law, also a certificate to file
The court, however, has in several cases discouraged the 3rd mode of shopping and certificate to file action by the Lupong
specific denial, and imposed some sanctions if a defendant insists in action by the Lupong Tagapamayapa (Santo Tomas
using the 3rd mode as the only mode contained in his answer. Tagapamayapa. University v. Surla, G.R. No.
129718, Aug. 17, 1998) (2007
SC held that if the defendant had no knowledge or information on the Bar Question).
matter, defendant should explain why. If he fails to do so, such denial

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Must be within the jurisdiction No. The new matter alleged in the answer is deemed controverted
of the court where the case is even without a reply. The plaintiff need not submit a reply as the
The court has jurisdiction to pending and cognizable by rules itself state that the new allegation or matter is deemed
entertain both as to the amount regular courts of justice controverted.
and nature (Sec. 7, Rule 6; Ibid otherwise, defendant will have to
p.331) file it in separate proceeding Exception to Uselessness of a Reply
which requires payment of There is only one exception to the rule, and that is where the defense
docket fee in the answer is based on an actionable document. A reply under oath
Rule 8 must be made. Otherwise, the genuineness and due execution
of the document shall be deemed admitted, and that admission is
Q: Is there any difference between a compulsory counterclaim
considered as a judicial admission.
filed in the RTC and a compulsory counterclaim filed in the
MTC?
Q: How about allegations of usury? Is it an exception?
A compulsory counterclaim filed in RTC cannot be a compulsory
No. Under our present rules, allegations of usury MUST be contained
counterclaim filed in the MTC.
in a complaint or similar pleadings. The law is not specific, but given
the liberal interpretation of the rules, it leads to the conclusion that as
For example, a counterclaim filed in the RTC states that the case filed
long as the allegations of usury are contained in a complaint or
was unjust and defendant claimed legal expenses amounting to
similar pleading like counter-claim or cross-claim, there is a need for
P200,000. This is considered to be a compulsory counterclaim in the
specific denial. The responsive pleading would be an answer, not a
RTC even if such amount is below the threshold for claims in the
reply. If the allegation of usury is contained in a counterclaim/cross-
RTC. We cannot challenge the RTC’s jurisdiction by the amounts
claim, the responsive pleading is an answer to the counterclaim/cross-
claimed in the counterclaim because of the principle of ancillary
claim. If the allegation of usury is contained in an answer, there is no
jurisdiction.
need to specifically deny in the reply.

If, on the other hand, the counterclaim filed in the MTC by a


Q: What is an actionable document?
defendant was claiming 500k in moral damages, under the rules, this
It is the document relied upon by the plaintiff and the defendant for
is no longer a compulsory counterclaim. It is treated as a permissive
his action or defense (Araneta, Inc. vs. Lyric Factor Exchange, Inc.
counterclaim. The MTC can order dismissal of the counterclaim, as
58 Phil 736)
the counterclaim is outside the jurisdiction of the MTC. We cannot
apply adherence to jurisdiction since the amount of P500,000 is over
For example, a promissory note in an action for collection of a sum of
and above the jurisdictional amount allowed by law, i.e., BP 129.
money is an actionable document (Riano, Civil Procedure: A
Restatement for the Bar, p. 101, 2009 ed.).
In sum, if the amount to be recovered is beyond the jurisdictional
amount of the MTC, the compulsory counterclaim is converted to a
Q: How are actionable documents pleaded?
permissive counterclaim. If the amount to be recovered is below the
1. By setting forth the substance of such document in the
jurisdictional amount of the RTC, the counterclaim is still treated as a
pleading and attaching said document thereto as an exhibit;
compulsory counterclaim.
or
2. By including the contents of the document verbatim in
the pleading (Sec. 7, Rule 8).
REPLY
A variance in the substance of the document set forth in the pleading
The filing of a reply is generally not necessary. It is in fact next to and the document annexed thereto does not warrant the dismissal of
useless. the action (Convets, Inc. v. National Development Co., G.R. No. L-
10232, Feb. 28, 1958). However, the contents of the document
Why is it useless? If the plaintiff does not reply, still, the matters not annexed are controlling.
answered in the reply are deemed controverted. In a complaint, if the
allegations therein are not specifically denied or were not dealt with For example, the defendant alleges payment in his answer supported
in the answer, they are deemed admitted. If the defendant does not by a receipt issued by the plaintiff, acknowledging full liquidation of
specifically deny or does not set up proper affirmative defenses in the the indemnity. Under law, if the claim or demand is based on an
answer, the defendant is sanctioned by law. This will lead the court to actionable document, it is imperative upon the misleader to allege on
conclude that the defendant has admitted all allegations in the the pleading the actionable document.
complaint, and thus will lead to a judgment on the pleadings.
Q: Can the plaintiff simply file an affidavit in opposing the
Q: The defendant includes in his answer an affirmative defense, actionable document?
and the new matter asserts a positive defense of extinguishment, The only way that a plaintiff can make a specific denial under oath
for example, full payment of the loan. The plaintiff does not file a against the actionable document alleged in an answer is by way of a
reply. Is the plaintiff deemed to have admitted the new matter? reply. A reply is the only pleading that is available that responds to an

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answer. If the plaintiff makes a reply setting up a specific denial, he Q: Why do we need leave of court in order to file a third party
should also see to it that the specific denial is under oath. If he did not complaint?
do so, the genuineness and due execution of the actionable document This is because a third party complaint will forcibly bring into the
is deemed admitted. action a stranger to the case. The third party defendant is a stranger to
the case. This is why the rules require that the court should be given
Take note, however, of Titan Construction Corp. v. David, where it discretion whether to allow or not to allow the third party complaint
says that a plaintiff who files a VERIFIED complaint is not anymore to see if there is a need to bring a stranger to the case or even if there
required to file a verified reply against an answer which contains an may be a need, the claim is unrelated to the subject to the case. If the
actionable document. court denies the motion for admission of a third party complaint, the
remedy of the defendant is to file a separate complaint against the
Q: What if the plaintiff titles his reply as an answer? Will that be third party defendant.
fatal to his defense?
No. The contents of the pleading shall be controlling and not the title Q: What is a third (fourth, etc.) party complaint?
asserted by the one making it. A: A third (fourth, etc.) party complaint is a claim that a defending
party may, with leave of court, file against a person not a party to the
There are, however, exceptions to the exception. In these cases, even action, called the third (fourth, etc.) party defendant, for contribution,
if the plaintiff does not make a reply under oath, or the defendant indemnity, subrogation or any other relief, in respect of his
does not make an answer under oath, their failure to do so will not be opponent's claim. (Sec.11, Rule 6)
considered by the court as a judicial admission to the genuineness or
due execution of the actionable document. These cases are: Q: Distinguish a third-party complaint from the rules on
1. When the adverse party does not admit being a party to bringing in new parties under Section 12.
that document, or A: A third-party complaint is proper when not one of the third-party
2. Even if such party is a party to the document, there being defendants therein is a party to the main action. Whereas in bringing
an order issued by the court for the inspection of the in new parties, if one or more of the defendants in a counterclaim or
original document, the party does not comply with that cross-claim is already a party to the action, then the other necessary
order. parties may be brought in under the rules on bringing in new parties.

Q: Is impleading an actionable document mandatory? Q: What are the tests to determine whether the third-party
The mode of impleading an actionable document was held by the SC complaint is in relation to the subject matter of the claim in the
to be mandatory. If the party impleading such document did not complaint?
follow the modes provided in the Rules, the party will not be allowed A:
to present proof of his cause of action or defense as the case may be, 1. Whether it arises out of the same transaction on which
as the attachment of the actionable document after the answer or the plaintiff’s claim is based, or, although arising out of
reply has been filed will adversely affect the other party. another or different transaction, is connected with the
plaintiff’s claim;
2. Whether the third-party defendant would be liable to the
THIRD-PARTY COMPLAINT plaintiff or to the defendant for all or part of the plaintiff’s
claim against the original defendant; and
There can potentially be no end to the number of parties in the 3. Whether the third-party defendant may assert any
complaint as long as the allegations in the pleadings have something defenses which the third-party plaintiff has or may have to
to do with the claim of the plaintiff in his complaint. If you would the plaintiff’s claim.
notice among the pleadings, it is only the third/fourth party complaint
that requires leave of court. Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third party complaint, regardless of the amount
The third/fourth party complaint must allege that the third/fourth involved as a third-party complaint is merely auxiliary to and is a
party defendant is liable to said third/fourth party plaintiff, by reason continuation of the main action (Republic v. Central Surety &
of contribution, subrogation or any other relief in relation to the Insurance Co., G.R. No. L-27802, Oct. 26, 1968).
subject matter of the claim in the complaint. The third/fourth party
complaint is always connected to the subject matter of the complaint. A third party complaint is not proper in an action for declaratory
relief. (Commissioner of Customs v. Cloribel, G.R. No. L-21036, June
If a complaint for instance is for the recovery of an unpaid loan, a 30, 1977).
third party complaint cannot contain a claim for the recovery of
ownership of a piece of land. The subject of the third party complaint The court is vested with the discretion to allow or disallow a party to
should always be related to the subject of the complaint. an action to implead an additional party. Thus, a defendant has no
vested right to file a third party complaint (China Banking
Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p.
342, 2009 ed.).

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Q: Is it correct to say that third party complaint or fourth party
Q: Abby obtained a favorable judgment against UNICAP for a complaint would be the only pleadings which will enable a
sum of money. For failure to get full payment, Abby went after litigant to bring in a stranger to the case? Can a litigant bring in
UNICAP’s debtor Ben. Ben is a policy holder of Insular. The a stranger without a third or fourth party complaint?
court’s sheriff then served a notice of garnishment to Insular No. The Rule does not say that it is the only means/pleading available
over several account receivables due to Ben. Insular refused to to bring in a stranger to the case.
comply with the order alleging adverse claims over the garnished
amounts. The trial court ordered Insular to release to Abby the Q: Can the defendant compel a stranger to be a party to the case
said account receivables of Ben under the policies. Insular then by filing a counterclaim or cross-claim? What is your basis?
filed a petition for certiorari with the CA alleging that the trial The law authorizes the defendant to bring in a stranger by filing a
judge gravely abused his discretion when he issued the permissive or compulsory counter-claim. The law authorizes the
garnishment order despite its adverse claim on the garnished defendant to bring in a stranger to the case through the filing of a
amounts. The CA gave due course to the petition and annulled cross-claim. Although the Rules defines a cross-claim as a claim by a
the order of the trial court. Is the Court of Appeals correct? defendant against his co-defendant, the Rules does not say that in
A: No. Neither an appeal nor a petition for certiorari is the proper filing a cross-claim against a co-defendant that a third person can be
remedy from the denial of a third-party claim. Since the third-party impleaded in the cross-claim.
claimant is not one of the parties to the action, he could not, strictly
speaking, appeal from the order denying its claim, but should file a In the definition of a counterclaim, the defendant could set up the
separate reinvindicatory action against the execution creditor or a counterclaim against the plaintiff or against any party or person who
complaint for damages against the bond filed by the judgment is not yet a party to the case, as long as the court can acquire
creditor in favor of the sheriff. The rights of a third-party claimant jurisdiction over the person of the said person.
should be decided in a separate action to be instituted by the third
person (Solidum v. CA, G.R. No. 161647, June 22, 2006). The basis is found in Section 12, Rule 6, of the Rules of Court.

Q: What is Doctrine of Ancillary Jurisdiction? Q: Why do we allow a defendant to bring in a stranger to the case
A: It involves the inherent or implied powers of the court to by not using a third-party complaint but by cross-claim or
determine issues incidental to the exercise of its primary jurisdiction. counterclaim, especially when such is compulsory?
Because there is another provision in the Rules which say that if there
Under its ancillary jurisdiction, a court may determine all questions is a compulsory counterclaim or cross-claim not set up in the answer,
relative to the matters brought before it, regulate the manner in which that compulsory counterclaim or cross-claim are barred. If there is a
a trial shall be conducted, determine the hours at which the witnesses need to implead a stranger, he should be allowed to implead a
and lawyers may be heard, and grant an injunction, attachment or stranger, although not via a third party complaint.
garnishment.

Q: Let us say that the subject of the complaint is the recovery of STRIKING OUT OF PLEADING OR MATTER CONTAINED
1M unpaid loan. The competent court is an RTC. The defendant THEREIN
asks the court for permission to file an answer with a third party
complaint. In the third party complaint, the defendant asserts There are certain limitations to matters that may be included in a
that Juan de la Cruz is bound to pay defendant the sum of 200K motion or pleading. The law does not allow scandalous and indecent
by reason of contribution, indemnity, subrogation or any other matters to be alleged in a pleading. The remedy of the other party in
relief. With respect to the complaint, there is no question as to these cases is to ask the court to strike out the pleading itself or the
jurisdiction as the competent court is really an RTC. It is with scandalous or indecent matter contained therein.
respect to the third party complaint where a jurisdictional issue
is present. The third party complaint is effectively a complaint Q: If the complaint contains scandalous and indecent matters
filed by the defendant against a stranger to the case, and the and the defendant moves to strike out these matters, will the
amount sought to be recovered is 200k, which is an amount not running of the period to answer be suspended?
within the jurisdiction of the RTC. Can the court, upon motion Yes. The Rules do not expressly say so, but the period is interrupted
by the third party defendant, order the dismissal of that third until the court has finally resolved the motion.
party complaint on the ground of lack of jurisdiction over the
subject matter of the case? Personal Opinion: The reason might be that, similar to a motion for a
No. We apply rule of ancillary jurisdiction of a trial court. If the trial bill of particulars, the defendant cannot properly prepare his answer
court has jurisdiction over the principal complaint filed by the until and unless the court resolves if the complaint is proper or not.
plaintiff against the defendant, the same court will exercise ancillary
jurisdiction over all collateral pleadings, incidental pleadings that are
Q: May striking out of pleadings or any matter contained therein
related to the complaint. Thus, the third party complaint to recover
be done by courts motu proprio?
200k is still cognizable by the same court.

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Yes. The court has authority to do so even without motion from the The absence of verification may be corrected by requiring an oath.
adverse party. The rule is in keeping with the principle that rules of procedure are
established to secure substantial justice and that technical
requirements may be dispensed with in meritorious cases.
FORMS OF A PLEADING: SIGNING
Q: How are pleadings verified?
A pleading must always be signed. An unsigned pleading will be A: It is verified by an affidavit. This affidavit declares that the:
treated as a sham pleading. You cannot submit an unsigned pleading. 1. Affiant has read the pleading; and
The court motu propio can order the striking out of the pleading. 2. Allegations therein are true and correct of his personal
knowledge or based on authentic records.
Q: Who will sign the pleading?
The litigant can sign the pleading. Or, his counsel can sign for him. If the verification is not according to the tone given in the Rules, that
Either or both can sign the pleading. will be an inadequate or insufficient verification. And under Rule 7,
the absence or inadequacy of the verification shall result in an
Q: Are there pleadings that are inadmissible by the court if the effectively unsigned pleading.
only signature is that of the lawyer’s?
By way of exception, yes, in case of marriage annulment cases. But the SC keeps on ignoring the Rules on verification. Although it
According to the SC Circular, the complaint and the answer must be would appear in Rule 7 that absence of verification could be a fatal
signed also by the party himself. If signed only by the lawyer alone, defect, the SC keeps on ruling that the absence of verification is only
the court will not accept the pleading. a formal defect. If you come across a question concerning the need to
verify a pleading or determining the adequacy of verification in a
But generally, the signature of the counsel is enough for a pleading to pleading, and you are asked what the effect is, based on rulings by
be accepted by the court. the SC, in instances required by law for submission of a pleading
with an inadequate verification is only a formal defect.
Q: What is the effect of lawyer’s signature?
A: The signature of counsel constitutes: Q: A complaint, a permissive counterclaim, cross-claim, a
1. A certificate by him that he has read the pleadings; third/fourth party complaint, all of these being initiatory
2. That to the best of his knowledge, information and belief pleadings, must have a certification of non-forum shopping. Does
there is good ground to support it; and it mean to say that verification of a pleading is now the general
3. That it is not interposed for delay. (Sec. 3, Rule 7) rule, given that in Rule 7, initiatory pleadings must carry with
them a certification of non-forum shopping?
No. Certification of non-forum shopping is different from verification
of a pleading.
FORMS OF A PLEADING: VERIFICATION

Verification of a pleading refers to the allegations in the pleading.


Q: Is verification necessary in pleadings?
The verification states that one has read the pleading and that it is
A: No, except when otherwise specifically required by law or rule,
correct based on his personal knowledge or based on authentic
pleadings need not be under oath, verified or accompanied by
records. The contents of certification of non-forum shopping does not
affidavit.
have anything to do with the contents of an initiatory pleading, as it
simply certifies that no similar case had been filed in any other court,
Q: What is the significance of verification?
tribunal or body, and to notify the court right away if one should
Dean Riano: It is intended to secure an assurance that the allegations
come to know of such fact.
in a pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed
In the case of a Certification of Non-Forum Shopping, the SC appears
in good faith. The absence of a proper verification is cause to treat the
to have adapted the rule of substantial compliance as to the
pleading as unsigned and dismissible (citing Chua vs. Torres, 468
requirements of the certification’s contents. Take note that the Rules
SCRA 358, p. 60.)
say that all principal plaintiffs should sign the certification.
Otherwise, the certification will be ineffective. This defect is not
Q: What are the effects of lack of verification?
curable by amendment under Rule 7.
A pleading required to be verified but lacks the proper verification
shall be treated as an unsigned. Hence, it produces no legal effect.
There was a recent case wherein the complaint had 5 principal
plaintiffs and only two of them signed. The defendant challenged the
It does not, however, necessarily render the pleading defective. It is
authority of the court receive the case as the certification was
only a formal and not a jurisdictional requirement. The requirement is
ineffective. The court refused to dismiss the case. The court said that
a condition affecting only the form of the pleading and non-
it will go ahead with the case but will drop the claims where the non-
compliance therewith does not necessarily render it fatally defective.
signing plaintiffs are concerned. In effect, the court said the signature

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of the two plaintiffs will of substantial compliance with the
requirement.
OMNIBUS MOTION RULE
As to the issue of a lawyer signing the certification of non-forum
shopping, the general rule being that a party himself must sign, if the Q: What is the Omnibus Motion Rule?
lawyer sign for the plaintiff, the lawyer must be able to show his All available grounds for objection in attacking a pleading, order,
authority to do so via a special power of attorney authorizing him to judgment, or proceeding should be invoked at one time; otherwise,
sign in the stead of his client. they shall be deemed waived.

Q: Are there any exceptions to the Omnibus Motion Rule?


CORPORATION EXECUTING THE VERIFICATION AND The court may dismiss the case motu propio based on:
CERTIFICATION OF NON-FORUM SHOPPING 1. Lack of jurisdiction over the subject matter;
2. Litis pendencia;
Q: What is the rule when the plaintiff is a juridical person? 3. Res judicata; and
Dean Riano: The certification against forum shopping where the 4. Barred by statute of limitations (prescription).
plaintiff is a juridical entity like a corporation, may be executed by
properly authorized person. This person may be a lawyer of a These are we call as non-waivable defenses in civil procedure.
corporation. As long as he is duly authorized by the corporation and
has personal knowledge of the facts required to be disclosed in the Q: Are there any non-waivable defenses in criminal procedure?
certification, such may be signed by the authorized lawyer. Yes. These grounds are:
1. That the facts charged do not constitute an offense;
Dean Albano: The following officials or employees of the company 2. That the court trying the case has no jurisdiction over the
can sign the verification and certification without need of a board offense charged;
resolution: 3. That the criminal liability has been extinguished; and
4. Double jeopardy.
1. The Chairperson of the Board
2. The President of the Corporation
3. The General Manager or Acting GM A previous decision or judgment will bar the filing of another case
4. Personnel Officer similar or tackling the same issues, having the same parties, and the
5. Employment Specialist in a labor case same or related reliefs. In a civil case, it is called res judicata, while
in a criminal case, it is called double jeopardy.
Q: If the officer is required to present a Secretary’s Certificate to
prove he is authorized but failed to do so, will the complaint be In criminal cases, there is the defense that the information does not
dismissed? charge an offense. In civil cases, this is equivalent to failure to state a
Dean Albano: Qualify. cause of action. In civil cases, if the complaint does not properly
allege a cause of action and the complaint was not amended at all,
The failure to attach the Secretary’s Certificate, attesting to the GM’s where the defendant does not file a motion to dismiss, the case went
authority to sign the Verification and Certification of Non-Forum to trial, and the plaintiff showed in the trial that he indeed has cause
Shopping, should be not be considered fatal to the filing of the of action without objection from the defendant, the complaint is
petition. The subsequent submission of the board resolution, together deemed amended. This is called amendment to pleadings to conform
with the pertinent documents can be considered as substantial to evidence.
compliance with the rules.
Thus, unlike criminal cases, in civil cases, the failure to state a cause
If there is substantial compliance (but not non-compliance), the of action is waivable, the remedy being an amendment to conform to
complaint will not be dismissed (citing Mid-Pasig Land Dev. Corp. v. evidence. The court may order such amendment be made.
Tablante).

Q: Corporation XYZ is the petitioner in a civil case. Alexander, AMENDED / SUPPLEMENTAL PLEADINGS
president of corporation XYZ, signed the certification against
forum shopping in behalf of said corporation without presenting Q: A plaintiff files a case for accion reinvindicatoria. As what we
any proof of authority from the corporation. Is the certification learned before in jurisdiction, the assessed value of the property
against forum shopping valid? If not, how may it be cured? properly determines jurisdiction. The case was filed in the RTC.
A: No. When the petitioner in a case is a corporation, the certification No allegation was included as to the value of the property. Can
against forum shopping should be signed by its duly authorized RTC dismiss the case?
director or representative. The authorized director or representative of Yes. If the court is unable to determine that it has jurisdiction over
the corporation should be vested with authority by a valid board the case, as in this instant, it may dismiss the case for lack of
resolution. A proof of said authority must be attached with the jurisdiction over the subject matter of the case.
certification (PAL v. FASAP, G.R. No. 143088, Jan. 24, 2006).

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Q: In the example above the plaintiff failed to make the necessary does not involve prejudice to substantial justice. Hence, if the
jurisdictional averment. Having discovered it, he amended the complaint was amended not as a matter of right, the defendant can
complaint and submitted it before the defendant may answer. Is also amend his answer, if needed, to properly respond to the amended
the plaintiff correct? complaint. In the Gothong Case, the SC encouraged trial courts to
Yes. The amendment was an amendment as a matter of right. The liberally the Rule on amendment of pleadings, whether as a matter of
plaintiff has the right amend his complaint once before a responsive right or as a matter of discretion.
pleading is filed, even to the extent of amending the averment to
confer jurisdiction. Thus, the plaintiff is correct to amend his Q: In case the complaint has been amended, are new summons
pleading to include the jurisdictional averment. still required?
If no answer has yet been filed, summons is still necessary. If there is
This situation is also applicable, for example, in unlawful detainer. If already an answer, the Court held that there is no more need to issue
the plaintiff failed to allege in his complaint that a final demand had new summons. The amendment in that case is with leave of court and
been made, the plaintiff may amend his complaint as a matter of right more importantly, the defendant is furnished a copy of the amended
to include the said allegation. complaint.

Q: What if the defendant files a Motion to Dismiss? May the Personal Opinion: There will however be a new set of summons if the
plaintiff amend his complaint as a matter of right before the date amended complaint impleads new defendants. This is only necessary
of hearing for the Motion to Dismiss? for due process.
Yes. A Motion to Dismiss is not a responsive pleading. Even if the
defendant files a Motion to Dismiss, the plaintiff reserves the right to Q: How many amendments may be made by a party?
amend his complaint once as a matter of right. A: As many times as he wants, but amendment as a matter of right
can only be availed of once, and only before an answer has been
If the plaintiff does amend his complaint, the trial court has no other filed. The second, third, fourth… amendments need leave of court.
recourse except to deny the Motion to Dismiss. The defects cited by
the defendant are already remedied by the amended complaint. Q: Can we amend pleadings if the case has already been decided
and is on appeal either in the CA or SC?
Q: What if the plaintiff waits for the date of hearing and opposes Yes. Amendments can be done if it is only formal in nature. But if the
the defendant’s Motion to Dismiss but lost? May he still amend amendment is substantial, appellate courts will hesitate as such
his complaint as a matter of right even if there is an order by the amendment will injure the rights of parties who had not appealed.
court dismissing the complaint? What can be brought on appeal are issues that have been raised from
Yes. The order of dismissal only becomes final until the lapse of the the trial court.
15-day period from the time the order of dismissal is entered. If the
plaintiff does not wish to appeal the order of dismissal or even file a Q: When is amendment made to conform to or authorize
petition for certiorari under Rule 65 as the case may be, he has a third presentation of evidence?
remedy and that is to amend his complaint as a matter of right. The 1. When issues not raised by the pleadings are tried with the express
plaintiff may still exercise this amendatory right before the order of or implied consent of the parties.
dismissal becomes final.
2. Amendment may also be made to authorize presentation of
Q: The plaintiff changed his cause of action in the complaint, and evidence if evidence is objected to at the trial on the ground that it is
the amendment was as a matter of right. Is this allowed? What if not within the issues made by the pleadings, if the presentation of the
an answer was already filed? merits of the action and the ends of substantial justice will be
If amendment is a matter of right, the plaintiff can change his subserved thereby.
pleading’s cause of action.
If the evidence presented by the plaintiff is not material to the
If amendment is not a matter of right, the plaintiff must be authorized allegations in his complaint, and there is an objection by the
by the court to amend the pleading to include another cause of action defendant, that objection should be sustained. But if the presentation
or change a cause of action. of evidence that is not material to the complaint is not objected to, the
court can motu propio tell the plaintiff not to continue the
All pleadings can be amended as a matter of right or with prior leave presentation of that evidence.
of court.
Q: A filed an accion reinvidicatoria against B. During the trial, A
Read: Philippine Ports Authority vs. Gothong presented evidence that B has an outstanding loan against the
former for P500K. Although this loan is independent and alien to
Change in the cause of action in the complaint is a matter of the original action, B’s counsel did not object to the presentation
discretion upon the court once an answer had already been filed. As of evidence in court. May the trial court in its decision award A
long as the amendment gives the parties the opportunity to tell the with P500K?
court what is the true dispute between the parties, and as long as it

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Yes. A’s complaint is deemed to have been amended to conform to
evidence. A does not even have to file a motion requesting to amend Q: When is a declaration of default proper?
his complaint. Amendment to conform to evidence takes place by A: If the defending party fails to answer within the time allowed
operation of law. therefor, the court shall upon motion of the claiming party with notice
to the defending party, and proof of such failure, declare the
Q: Distinguish an amended pleading from a supplemental defending party in default.
pleading.
A: Q: In what situations where declaration of default is proper?
Amended Pleading Supplemental Pleading A: It is proper in 3 situations:
1. Defendant did not file any answer or responsive pleading
Refer to the facts existing at the Refers to facts occurring after despite valid service of summons;
time of filing of original the filing of the original 2. Defendant filed an answer or responsive pleading but beyond
pleading pleading. the reglementary period; and
Supersedes the original, causes Merely supplements the 3. Defendant filed an answer to the court but failed to serve the
of action may be changed original pleading. plaintiff a copy as required by the Rules.

May be amended without leave Q: Will the plaintiff be in default if he fails to file an answer with
of court before a responsive Always with leave of court respect to the compulsory counterclaim filed by the defendant?
pleading is filed. No. The compulsory counterclaim is an exception to the general rule
There is no such requirement in that all claim pleadings may lead to default if unanswered.
Amendment must be supplemental pleadings
appropriately marked. (Herrera, Vol. I, p. 854, 2007 Q: How about a cross-claim?
ed.) In one case decided in 1999, the SC held that if a cross-claim is not
answered, the cross-plaintiff or cross-claimant can file a motion to
declare the cross-defendant in default. But the SC said that court may
Q: What is the effect of an amended pleading? or may not grant the order of default.
An amended pleading supersedes the pleading it amends. However,
admissions in the superseded pleading can still be received in
Q: What are the effects of an order of default?
evidence against the pleader. Claims or defenses alleged therein but
A:
not incorporated or reiterated in the amended pleading are deemed
1. The party declared in default loses his standing in court. The
waived.
loss of such standing prevents him from taking part in the
trial.
Q: An amended pleading takes the place of the original pleading.
2. While the defendant can no longer take part in the trial, he is
Will the court discard the original pleading?
nevertheless entitled to notices of subsequent proceedings. He
No, the court will retain the pleading for court record purposes.
may, however, still be a witness for his co-defendants in case
Admissions made in superseded pleadings are considered extra-
of partial default.
judicial admissions. They can be rebutted.
3. A declaration of default is not an admission of the truth or the
validity of the plaintiff’s claims.
Admissions made in the original pleadings are still admissions, but
cannot be considered as judicial admissions. They are mere extra-
Under Rule 9, if all the defendants are declared in default, the court is
judicial admission by the person making it.
given two choices:
1. To render a judgment of default based on the complaint
A judicial admission is always conclusive. It cannot be subject to (judgment on the pleadings); or
rebuttal by evidence. 2. To order the complainant to present evidence ex-parte in
support of his allegations and render a judgment based on
Q: The information submitted by the prosecutor did not really that evidence.
allege a crime was committed. But the prosecutor was able to
show in court by the evidence presented that indeed a crime was Q: If a defendant is in default, does that mean he automatically
committed. Can amendment of pleadings to conform to evidence loses the case?
be allowed in this case? Not necessarily. A declaration of default is not a judicial admission of
No, it cannot be allowed. It will violate the constitutional right of the the complaint. The court still has to ascertain if there is any merit or
accused to be informed of the charges against him. We can apply substance with the complaint.
amendment of pleadings to conform to evidence in a criminal case so
long as the constitutional right of the defendant is not violated. Q: What are the reliefs from an order of default?
A:

DEFAULT

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1. After notice of order and before judgment – The defendant must plaintiff can result to the complaint being dismissed for failure to
file a verified motion to set aside the order of default upon proper prosecute for an unreasonable length of time under Rule 17. It is a
showing that: dismissal with prejudice.
a. His failure to answer was due to fraud, accident, mistake
or excusable negligence; and Q: If in a case the plaintiff did not move to declare the defendant
b. That he has a meritorious defense. (2000 & 1999 Bar in default, may the court set the case for pre-trial?
Question) No. Unless all the pleadings are in, the court has no business setting
the case for pre-trial. If the defendant does not wish to answer and the
2. After judgment and before judgment becomes final and executory – plaintiff does not wish to declare the defendant in default, since the
He may file a motion for new trial under Rule 37. He may also appeal court cannot set up the case for pre-trial, the most the court can do is
from the judgment as being contrary to the evidence or the law. He to dismiss the complaint under Rule 17 for failure of the plaintiff to
may even prove during appeal that the evidence received during trial prosecute (nolle prosequi).
is hearsay.
Dean Albano: But you should read Soliman v. Fernandez, a 2014
3. After the judgment becomes final and executory – he may file a case. The SC held that the court should not dismiss the case if the
petition for relief from judgment under Rule 38 (2006, 1998 Bar plaintiff fails to take further steps to prosecute or set it for pre-trial
Question) because the further steps is not his, but for the clerk of court, to take.
Within five days from date of filing of the reply, the plaintiff must
4. Where the defendant has however, been wrongly or improvidently move ex parte that the case be set for pre-trial conference. If the
declared in default, the court can be considered to have acted with plaintiff fails to file said motion within the given period, the Branch
grave abuse of discretion amounting to lack or excess of jurisdiction Clerk of Court shall file a notice of pre-trial.
and when the lack of jurisdiction is patent in the face of the judgment
or from the judicial records, he may avail of the special civil action of Q: Suppose plaintiff files a motion for declaration of defendant in
certiorari under Rule 65. default, but the motion was for that of an ex-parte motion to
declare defendant in default. The reasoning is that since the
Q: What is the effect of partial default? defendant had not bothered to file an answer, there is no use of
As a general rule, the court will try the case against all defendants serving notice to the defendant. This is for the plaintiff to prevent
upon the answer of some. the defendant from entertaining the idea that he must file an
answer to prevent being declared in default. Is plaintiff correct?
Exception: Where the defense is personal to the one who answered, it No. Rule 9 is very clear that a copy of the motion to declare
will not benefit those who did not answer e.g. forgery. (1995 Bar defendant in default should be served upon the defendant. If such
Question) copy is not served upon the defendant, that motion will not be acted
upon by the court.
Q: What is the extent of relief?
A: The judgment shall not exceed the amount or be different in kind Q: What if the defendant filed an answer after receiving a copy of
from that prayed for nor award unliquidated damages. However, if the motion to declare him in default, can the court still declare
the court orders submission of evidence, unliquidated damages may him in default?
be awarded based on such. Yes, if the court follows strictly Rule 9. But, as a matter of policy, an
answer filed out of time will not result in the defendant in being
Q: When is default not allowed? declared in default. SC held repeatedly that as much as possible the
There are several instances where declaration of default is prohibited technical aspects of default should not be applied strictly in the
like mortgage, the rules on summary procedures, Writ of Amparo, interest of furtherance of justice. Even if the period to answer has
Writ of Habeas Data, marriage related cases, and in special civil already expired, but an answer is filed out of time, the courts will still
actions like certiorari, prohibition, and mandamus (since in these last admit that answer and deny the motion to declare the defendant in
cases a comment and not a reply is given by the defendant). default.

It is not correct to say that it is absolute in civil actions that if a The reason why SC adopted this policy is because at present, under
defendant does not file his responsive pleading, he can be declared in Rule 9, if defendant is declared in default, the court can right away
default. What is clear is the general rule: If a complaint is filed and render a judgment in default against defendant without conducting a
summons is served upon the defendant, but the defendant did not file trial. Under Rule 9, the court is given 2 choices: Render a judgment
an answer within the reglementary period given by the Rules, the of default based on the complaint (judgment on the pleadings), or to
defendant can be declared in default upon motion of the plaintiff. order the complainant to present evidence ex-parte in support of his
allegations. At least in the second option, there can be presentation of
Q: May the court motu proprio declare the defendant in default? evidence, unlike in the first option where only the pleadings will be
The court cannot motu propio declare the defendant in default. the basis of the judgment. And if there is a trial ex-parte on default
Motion must be made by the plaintiff before declaration of default ordered by the court, the defendant will not be allowed to participate
can be had. Failure to file the motion for declaration of default by the

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in the proceedings, unless he is able to secure an order to lift the to present evidence to prove his allegations, what the plaintiff was
default. able to prove shall be the basis of the court’s judgment.

Rule 9 is very explicit in stating that the award in default judgments Partial Default
cannot be greater than that prayed for in the complaint, even if there There is partial default when one of several defendants, sued under a
is an ex-parte presentation of evidence showing evidence thereto. common cause of action, is declared in default, while the others can
still participate in the case.
Default Under Rule 18 Pre-Trial
Under Rule 18, if the plaintiff does not appear during the pre-trial or Q: Can there be a judgment in default against the non-answering
failed to submit pre-trial brief, his complaint will be dismissed and defendants?
the dismissal is with prejudice. No, the court cannot do that. In case of several defendants, of whom
some have filed an answer, the most that the court can do is to
On the other hand, if the defendant does not appear during pre-trial or declare the non-answering defendants in default. The court cannot
did not submit his pre-trial brief on time, the court will allow to the declare the answering defendants in default as there is no reason to do
plaintiff to present his evidence ex parte and the court will render a that. Insofar as the non-answering defendant is concerned, they shall
judgment based thereon. be declared in default but there could be a separate judgment that will
be rendered.
Although Rule 9 and Rule 18 both contains ‘ex parte presentation of
evidence,’ there are vital differences between the two. Q: Can the answering defendant call the defendants in default as
witnesses?
Comparison between Rule 9 and Rule 18 Default Yes. Defendants declared in default can be witnesses, although he
Rule 9 Rule 18 will not be allowed to participate as a litigant.

Under Rule 18, a plaintiff shall Q: If the court finds for the answering defendant, will that
be declared in default for not
decision also affect the defendants declared in default?
appearing during pre-trial or
In Rule 9, defendant shall be Yes. Whatever happens to the case, the defendants in default shall be
failure to submit a pre-trial
declared in default for not filing subject to the decisions rendered. Thus, if the answering defendant
brief, while a defendant shall
an answer.
be declared in default for not wins, the decision shall also be in favor of the defendants in default.
appearing or submitting a pre- This is one situation where a defaulting defendant can prevail in the
trial brief on time. case. The reason is that the non-answering defendants are sued under
The court can grant a relief a common cause of action with answering defendants.
The court cannot grant a relief more than that alleged, based
more than that alleged in the on what the plaintiff can prove Q: The creditor sued two defendants where one answered and the
complaint. based on his evidence other failed to answer. The one debtor who failed to answer was
presented. declared in default. The plaintiff wisely moved for the dismissal
In Rule 18, the defendant of the complaint against the answering defendant. The answering
already filed an answered. The defendant did not object to the dismissal. The case caption was
defendant’s failure to comply then changed to plaintiff versus the defendant in default. Can the
with attending a pre-trial court now ask for presentation of evidence ex-parte?
In Rule 9, the defendant in conference or file a pre-trial
SC held that it is not necessary. Even if the answering defendant has
default has not filed an answer at brief is meted with severe
all. The court is considered to sanction. Also, the fact that the been dropped from the case upon the initiative of the plaintiff, what
have been taking pity on a court gives the plaintiff the the trial should examine is whether or not the answering defendant is
defendant who had surrendered. opportunity to present his an indispensable party to the case. If answering defendant is an
evidence, what the plaintiff indispensable party, then the court should require the inclusion of
proves on evidence shall be the such party. What the court should do is to order the plaintiff to amend
basis of the judgment of the
his pleadings and include the indispensable party. Failure to do so
court.
will be dismissal of the complaint with prejudice under Rule 17. This
is because if answering defendant is an indispensable party but he is
not around, the proceedings of the court could be void, it would be
Q: During ex parte presentation during pre-trial, the plaintiff was useless for the court to try the case. And under the new doctrines
able to prove damages of 2M. However, the complaint alleges enunciated by the SC, if an indispensable party has not been included
only 1M. The court awarded 2M. Is the court correct? Why? or has been dropped from the case, the court should compel the
Yes, the court is correct. This is because the defendant has failed to indispensable party to be impleaded via an amendment to the
comply with a court order to either appear in pre-trial or to submit a complaint. Failure of plaintiff to do so will allow the court to dismiss
pre-trial brief, and thus the court can sanction defendant at default. the case with prejudice under Rule 17 for refusal to obey a lawful
Also, since the court allows the plaintiff, as provided under Rule 18, court order.

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Q: Since it is disadvantageous for a non-answering defendant to
be declared in default, what are the remedies given by law to the If the case, however, is governed by small claims proceedings, appeal
defaulting defendant? is not available because the decision of the small claims court is final
The defendant should file a motion to lift the order of default at any and executory. It is unappealable. The aggrieved party, however, may
time before judgment. The motion must be filed with an affidavit of use Rule 65, but only when he can prove there is lack of jurisdiction
merit along with his proposed answer, alleging the reasons of why he or in excess of its jurisdiction in the part of the court.
defaulted and alleging that he has a good defense as stated in the
proposed answer.
PERIOD TO FILE PLEADINGS
An affidavit of merit is required since he has to substantiate that he
was in default because of FAME. He must also his attach his answer In the periods for filing of pleadings, there is nothing mentioned as to
since he has to show that he has a meritorious defense. These are the the period as to when a complaint should be filed. Nothing is fixed in
two requirements for a proper motion to lift the order of default. the rules. The reason is that the filing of the complaint is solely
dependent upon the whim of the plaintiff. If SC does fix such period,
If the motion to lift the order of default is denied, it is inappealable, it will be invading the turf of substantive law.
being an interlocutory decision. Although Rule 65 can be had, i.e.,
certiorari, the appellant must show that the court acted with lack or in If there is a period fixed as to when that complaint should be filed, it
excess of jurisdiction is determined by substantive law. Prescription of a cause of action is
a matter of substantive law. With respect to counterclaim, cross-claim
If the court has already rendered judgment by default (after motion to or third party complaint, there is a period fixed in the Rules. Of
life order of default has been denied), the defendant can appeal. A particular is the period for filing a cross-claim and a compulsory
judgment by default is adjudication on the merits, hence appealable. counter-claim. They must be filed within the period as that for the
Since appeal is available, Rule 65 is not available. Rule 65 is only filing of an answer.
available if there is no remedy under the Rules or under law.
Why? Will it not violate substantive law?
Aside from appeal, the defendant may also file a motion for new trial
or a motion for reconsideration. If the judgment has become final and Even if the cross-claim, counter-claim or third-party complaint are
executory, he may even file a petition for relief from judgment. claim pleadings, the rules do not allow the defending party to file an
answer separately from a counterclaim, cross-claim or a third-party
Q: In summary procedure and small claims proceedings, may the complaint. These pleadings must be included in his answer. Thus a
plaintiff declare the non-answering defendant in default? defendant must file an answer with a counterclaim, cross-claim or a
No. A Motion to Dismiss is prohibited in summary procedure and third-party complaint. Otherwise, defendant may file a motion for
small claims proceedings. The court will not declare the defendant in leave to file an amended answer with cross-claim, counterclaim, etc.
default. With respect to a third-party complaint, defendant would have to first
file a motion for leave to file a third-party complaint along with the
In summary procedure, if the defendant does not answer, the court amended answer, attaching the amended answer to the motion.
shall render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein Because of this rule, the filing of a compulsory counterclaim should
be the same as that provided for the filing of an answer. If there is an
In small claims proceedings, if the defendant fails to file his response answer filed, but the defendant feels he should file a counterclaim, he
AND fails to appear at the date set for hearing, the court shall render will have to file a motion for leave to file an amended answer with
judgment on the same day. counterclaim (with a copy of the amended answer attached).

If he fails to file his response but appears at the date set for hearing, Q: May the court extend the period to file an answer?
the court shall ascertain what defense he had to offer as if a Response It depends.
has been filed.
In an ordinary civil action, yes, but only if the circumstances warrant.
Q: What is the remedy of the defendant in summary procedure If the case is under summary procedure or small claims proceedings
and small claims proceedings if there is a judgment by default? (in the form of a response), no. A motion for extension to file
The defendant cannot assail the judgment by default through a pleadings, affidavits, or any other paper is one of the prohibited
motion for new trial or a motion for reconsideration. These are motions in summary procedure and small claims proceedings.
prohibited pleadings in summary procedure and small claims
proceedings. The defendant also cannot file a petition for relief from Q: May the court reduce the period to file an answer?
judgment because that is prohibited as well. As a general rule, no.

If the case is governed by summary procedure, the defendant may


appeal. It is not prohibited under summary procedure.

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The only exception is in quo warranto proceedings. Under Rule 66, plaintiff, a reply. It is useless if a defendant files a motion for bill of
the court may, if it deems just, fix a period that is shorter than that particulars after he has already filed his answer. It is understood that
provided in the Rules of Court. if a defendant has filed an answer, it would mean that he has
understood fully the allegations stated in the complaint.

BILL OF PARTICULARS Q: When may a party avail a bill of particulars?


A: Before responding to a pleading, a party may move for a definite
Q: What is a bill of particulars? statement or for a bill of particulars of any matter which is not
Motion for leave to file bill of particulars is proper if there is averred with sufficient definiteness or particularity to enable him
inadequacy of the allegations contained in the complaint. properly to prepare his responsive pleading. If the pleading is a reply,
the motion must be filed within 10 days from service thereof.
As a rule, under Rule 16, the inadequacy of the allegations in the
complaint is NOT a ground for the filing of a motion to dismiss the If the motion is granted, in case of a defendant, the court will order
complaint. Unless the inadequacy is in such a way that there is failure the submission of an amended complaint or a bill of particulars,
to state a cause of action, the complaint may not be dismissed by the which will form part of the allegations contained in the complaint.
court.
Q: If the plaintiff does not obey the order of the court to submit a
Q: What is the difference of a bill of particulars in civil actions bill of particulars, what is the remedy of the defendant?
and a bill of particulars in criminal cases? The remedy is either (1) to strike out the parts of the pleading that are
There is a great difference. In a civil case, the purpose why a bill of vague; or, the more practical move, (2) the defendant may move to
particulars may be availed of by a litigant to enable him to prepare a strike out the entire pleading, wherein the case is dismissed.
responsive pleading. In a criminal case, the purpose of the accused is
to enable him to prepare for trial. If the defendant disobeyed the court order to amend his answer or to
supply bill of particulars, the situation will be as if the defendant has
Q: Is a bill of particulars available to all parties? not filed an answer at all. The next recourse of the plaintiff is to file a
Yes. It is available to any party who has the right to file a responsive motion to declare the defendant in default. This is one instance where
pleading. Even a plaintiff may file a bill of particulars if the answer the defendant can be declared in default even though he had filed an
of the defendant is particularly vague. answer on time. Therefore, if the defendant did not amend his answer
or file a bill of particulars, the court can order the striking out of the
Q: Can there be an instance when a trial court may dismiss a answer and thereafter, upon motion, the defendant can be declared in
case on ground of inadequacy or vagueness in the allegations in default.
the complaint?
Yes, by way of exception. The only instance when a defendant may If it is the plaintiff who disobeyed the court order, the situation will
file motion to dismiss due to vagueness or inadequacy of the be as if the plaintiff has not filed a complaint at all. The defendant in
allegations in the complaint, instead of filing motion for bill of such case may move to dismiss the case for failure to state a cause of
particulars, is when the RTC is sitting as a commercial court. In this action.
case, where there is indefiniteness or vagueness in the allegations of
the complaint, defendant may file a motion to dismiss. This is Q: If the motion for a bill of particulars is denied, may the
because, in commercial courts, a motion for bill of particulars is aggrieved party appeal?
forbidden as outlined in the circular for commercial courts. No. The denial of the motion is an interlocutory order. The aggrieved
party, however, may avail of Rule 65 if proper.
In ordinary civil cases, motion for bill of particulars is available to
both sides. They should be in the form of a motion.
FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND
Q: What is the difference between an ordinary motion and a OTHER PAPERS
motion for a bill of particulars?
While a motion for bill of particulars should comply with the Q: Which comes first – filing or service?
requisites of a motion, so as not to be deemed as a useless piece of As a general rule, service comes before filing.
paper, when the motion is submitted to the court, the court can act
upon the motion right away, without waiting for the hearing set for Complaint is one of the exceptions. You have to file the complaint
the motion, either granting or denying such motion. first, and then the complaint will be served to the defendant together
with the summons.
Q: May the defendant file a motion for a bill of particulars after
filing an answer? A third-party complaint is an exception. Since third-party complaints
No. By its very nature, a motion for a bill of particulars should be require leave of court, it needs to be filed first before it can be served
filed by a defendant before submitting an answer, or in case of a to the third-party defendant.

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him should be served upon him also by publication at the expense of
Judgments, resolutions, and orders are exceptions as well. According the prevailing party.
to the Rules, the judge will first submit a copy or the original of the
decision with the clerk of court. It is the duty of the clerk of court to Q: Is service by courier (such as LBC) allowed?
serve copies of the judgment or order upon the adverse parties. Dean Albano: No. Service and filing of pleadings by courier service
is a mode not provided in the Rules.
Q: What is the order of priority when it comes to service?
The order of priority merely states that personal service must always Service by courier, however, is allowed under ADR rules.
be resorted to. If personal service is not resorted to, there must be an
explanation given by the party why he has not resorted to personal
service. If a motion is filed and the motion served through registered SUMMONS
mail without an explanation, the court has every reason to consider
that motion as a useless scrap of paper. Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the action
Recently this has been relaxed by the court, depending on the nature brought against him. An important part of that notice is a direction to
of the case or depending on the nature of the motion to be served or the defendant that he must answer the complaint within a specified
the pleading filed in the court. period, and that unless he so answers, plaintiff will take judgment by
default and may be granted the relief applied for.
But in case of a motion to dismiss, the courts are very strict, personal
service is a must. If it was served by mail, the court requires Q: What are the purposes of summons?
submission of proof of actual delivery/receipt by mail (the registry For actions in personam:
return card). If such proof is not presented, the court will not act on a. To acquire jurisdiction over the person of the defendant;
the motion to dismiss for failure to observe the requirements and
concerning service of this important motion. b. To give notice to the defendant that an action has been
commenced against him.
Q: What are the modes of service of these motions, pleadings,
orders and judgments? For actions in rem and quasi in rem - not to acquire jurisdiction over
The first in priority when it comes to service is personal service, then the defendant but mainly to satisfy the constitutional requirement of
service by mail and then substituted service and service by due process.
publication. It’s only in unusual, exceptional circumstances when
there is service by publication. Q: What is the effect of voluntary appearance before the court?
As a general rule, the defendant’s voluntary appearance shall be
Q: If the defendant has counsel, to whom should the service be equivalent to service of summons and the consequent submission of
given – the defendant himself, or his counsel? one’s person to the jurisdiction of the court. If there are defects in the
Service must be made upon the counsel. If service is not made upon a summons, voluntary appearance cures such defects.
counsel but upon the party himself, that is not proper service.
As an exception, if there is a special appearance in court to challenge
Q: What is substituted service and how does it differ to substitute its jurisdiction over his person, it shall not be deemed as a voluntary
service of summons? appearance. This is true even if the defendant includes in his Motion
If the motion/pleading/other papers cannot be served in person or by to Dismiss several other grounds aside from lack of jurisdiction over
registered mail, the movant should submit the motion and the his own person.
pleadings with the clerk of court with proof that personal and mail
service failed. Upon receipt of court, substituted service is now Q: What are several instances when appearance of defendant is
completed. not tantamount to voluntary submission to the jurisdiction of the
court?
Substitute service of summons: This is resorted to when there is (a) When defendant files the necessary pleading;
failure on the part of sheriff to serve summons in person upon the (b) When defendant files a motion for reconsideration of the
defendant after several attempts and despite diligent efforts. Sheriff judgment by default;
then can serve the summons at the resident of the defendant upon a (c) When defendant files a petition to set aside the judgment of
person of sufficient age of discretion, or instead of the residence, at default;
his place of business, upon a competent person in charge. The reason (d) When the parties jointly submit a compromise agreement for
for resorting to such substituted service must be explained. approval of the court;
(e) When defendant files an answer to the contempt charge;
Q: Service by publication is rare – when is this resorted to? (f) When defendant files a petition for certiorari without
This is resorted to if a party summoned by publication has failed to questioning the court‘s jurisdiction over his person.
appear in the action. Judgments, final orders and resolution against

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Q: Aside from summons and voluntary appearance, is there any It is in the acquisition of jurisdiction over natural persons that there is
way a court may obtain jurisdiction over a person? conflict in jurisprudence.
Yes, but only in limited circumstances. For example, under Rule 65,
in certiorari, prohibition, and mandamus, the court does not issue a Q: What if the defendant is a minor or an incompetent?
summons. It simply issues an order addressed to the defending party Service of summons must not only be served upon the guardian but
to file a comment. That is a process which will confer upon the court, also the minor or incompetent.
by compulsion, jurisdiction over the person of the respondents. As a
consequence, the court cannot declare the respondents in default if Q: What is the order of priority in serving summons?
they failed to respond. Service in person will always be preferred over substitute service.
And service by publication cannot be held unless the court is
Q: What is the proper service of summons upon an unregistered convinced that personal service or substitute service have been
foreign corporation with no resident agent in the country? resorted to but it has not been successfully carried out.
In a 2011 Circular, summons upon a foreign private corporation can
be served in four ways, with leave of court: Personal Service
1. Personal service of summons upon a foreign private Q: When is personal service of summons proper?
corporation not doing business in RP, with assistance of DFA A: Only if the suit is one strictly in personam. The service of
and the court of the country where the foreign corporation’s summons must be made by service in person on the defendant. This
main office is located; is effected by handing a copy of the summons to the defendant in
2. Publication of the summons in the country where the foreign person, or if he refuses to receive it, by tendering the copy of the
corporation has its office summons to him.
3. By facsimile message or by any electronic device authorized
by the trial court Unlike service of pleadings, motions, and other papers in Rule 13, the
4. A combination of any one of the three as authorized by the meaning of ‘personal service’ in summons is literal: Summons should
court. be handed to the defendant himself, not his counsel.

Q: What if the foreign corporation is registered or has an agent Substituted Service


in the Philippines? Q: When is substituted service of summons proper?
Service may be made on its resident agent designated in accordance A: In our jurisdiction, for substituted service of summons to be valid,
with law for that purpose, or if there be no such agent, on the it is necessary to establish the following:
government official designated by law to that effect, or on any of its 1. The impossibility of service of summons in person within a
officers or agents within the Philippines. reasonable time;
2. The efforts exerted to locate the person to be served; and
Q: What if it is a domestic corporation? 3. Service upon a person of sufficient age and discretion in the
With respect to domestic private corporations, service of summons same place as the defendant or some competent person in charge
must be effected as stated in the Villarosa vs. Benito case. It must be of his office or regular place of business
served upon the officers of the corporation stated specifically in the
Rules of Court (President, Managing Partner, General Manager, Q: Defendant owed money to a corporation. Defendant lived in a
Treasurer, Corporate Secretary or In-House Counsel - PMGCTI). gated subdivision. The sheriff was not allowed inside the
subdivision. What the sheriff did was to leave a copy of the
In the Villarosa case, the branch manager was the one served with summons, together with the complaint, with the guards. Is there
summons, who is not among those officers listed in the Rules. Thus, valid service of summons?
the trial court did not acquire jurisdiction over the corporation. This is To be literal, no, there was no valid substituted service of summons.
still the rule observed. If the summons and the complaint were left only with the security
guard, it did not comply with leaving at the place of residence of
Read: Villarosa v. Benito the defendant with some person of suitable age and discretion
then residing therein. The guards do not actually reside in the place
Q: What if it is a partnership? of residence of the defendant.
What the rules require is that summons must be made upon the GM
or managing partner as the case may be. The SC stated that the meaning of sufficient age and discretion does
not mean that the person to be served could be a minor. This person
If there are four partners in the partnership, service upon any of the means that this person should mean a person at least 18 years of age
partners will be a valid service of summons. All partners under the with a relationship involving confidence with the defendant. So, if the
NCC are considered as managing partners. Since all partners under service of summons was given to a person who was only a visitor of
the NCC are presumed to be managing partners, service upon anyone the defendant, it will not comply with this requirement.
will be a valid service of summons.
In 2009, the SC decided a case involving the validity of a substituted
service of summons not in accordance with the Rules. If substitute

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service of summons is not in accordance with Sec. 7 of Rule 14, the Personal service of summons were made to the defendant but failed
service is invalid, the court does not acquire jurisdiction over the because the latter cannot be located in his last known address despite
defendant. Any proceedings taken by the court are invalidated. earnest efforts to do so. Subsequently, on plaintiff’s motion, the trial
court allowed service of summons by publication. Plaintiff caused the
Constructive Service publication of the summons in a newspaper of general circulation in
Q: Is leave of court required in constructive service of summons? the Philippines.
Yes. This service always requires permission of the court.
Petitioner still failed to answer within the prescribed period despite
When it comes to Sections 14, 15 and 16, you should take note of two the publication of summons. Hence, respondent filed a motion for the
cases – Citizen’s Surety v. Herrera and Santos v. PNOC. reception of its evidence ex parte. Trial court granted said motion and
proceeded with the ex parte presentation and formal offer of its
Let’s begin with Citizen’s Surety. evidence.

The sheriff stated that summons could not be served personally or by Petitioner filed an Omnibus Motion for Reconsideration and to Admit
substituted service. The plaintiff filed an ex parte motion to issue a Attached Answer, alleging that the affidavit of service submitted by
summons by publication. The court granted it. Plaintiff caused the respondent failed to comply with Section 19, Rule 14 of the Rules of
publication of the summons. After 60 days, there was no responsive Court as it was not executed by the clerk of court. Trial court denied
pleading. Plaintiff filed a motion to declare defendant in default. the said motion and held that the rules did not require such execution
During the hearing of the motion, plaintiff presented the court the with the clerk of court. It also denied the motion to admit petitioner’s
order authorizing publication and affidavit of the publisher. Plaintiff answer because the same was filed way beyond the reglementary
expected the court to grant his motion. The court did not grant it, but period.
instead asked the plaintiff to explain why the complaint should not be
dismissed. The court stated that publication did not enable the court The Supreme Court held that:
to acquire jurisdiction over the defendant. The requirement left out (1) Section 14, Rule 14 provides that in any action
was a constitutional requirement of due process. where the defendant is designated as an unknown
owner or the like or when his whereabouts are
The proper recourse for the creditor is to locate properties, real unknown and cannot be ascertained by diligent inquiry,
or personal, of the resident defendant debtor with unknown service may, by leave of court, be effected upon him by
address and cause them to be attached, in which case, the publication in a newspaper of general circulation and in
attachment converts the action into a proceeding in rem or quasi such places and for such times as the court may order.
in rem and the summons by publication may be valid. Since petitioner could not be personally served with
summons despite diligent efforts to locate his whereabouts,
The court interpreted the Rules to mean that if there is publication of respondent sought and was granted leave of court to effect
the summons, there should preliminary attachment over the the service of summons upon him by publication in a
properties of the defendant. Otherwise, the court will be unable to newspaper of general circulation. Thus, petitioner was
acquire jurisdiction over the person of the defendant. If we are not proper served with summons by publication and that there
able to convert the action in personam to that in rem, the court will is jurisdiction over his person.
not be able to acquire jurisdiction over the person of the defendant,
and therefore, the court will not have authority at all to entertain the (2) The in rem/in personam distinction was significant
case. under the old rule because it was silent as to the kind of
action to which the rule was applicable but this has been
If the court still did not still acquire jurisdiction over the defendant changed, it now applies to any action. The present rule
despite the attachment of the properties of the defendant (there might expressly states that it applies “in any action where the
be no properties to attach), then the case will be archived. There will defendant is designated as an unknown owner, or the like,
be no dismissal of the case. The case will not prescribe since the case or whenever his whereabouts are unknown and cannot be
will be archived and prescription will not run during this period. ascertained by diligent inquiry.” Hence, the petitioner’s
contention that the complaint filed against him is not
Q: When will the case be converted from an action in personam covered by said rule because the action for recovery of sum
to an action in rem? of money is an action in personam is now not applicable.
The case will convert from an action in personam to that in rem once
there is actual attachment of personal or real property. A mere motion (3) The service of summons by publication is
requesting for preliminary attachment will not convert the action complemented by service of summons by registered mail to
defendant’s last known address. This complementary
In 2008, Santos vs. PNOC was decided, which changed the principles service is evidenced by an affidavit “showing the deposit of
held under Citizen’s Surety vs. Herrera. a copy of the summons and order for publication in the post
office, postage for prepaid, directed to the defendant by
registered mail to his last known address”. The rules,

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however, do not require that the affidavit of complementary
service be executed by the clerk of court. While the trial Q: In what form should a motion be?
court ordinarily does the mailing of copies of its orders and As a general rule, if it is not made in open court, the motion must be
processes, the duty to make the complementary service by reduced into writing. It must satisfy all the requirements in the Rules
registered mail is imposed on the party who resorts to concerning motions.
service by publication.
Q: What are the requirements for a proper motion?
Since 2008, the lawyers have made use of Santos vs. PNOC as the A written motion has two basic requirements:
authority to convince a trial court that there is no need for a 1. It must be served upon the adverse party; and
publication of summons for the issuance of a writ of preliminary 2. It must be set for hearing
attachment before the court could acquire jurisdiction over the person
of the defendant. Q: What is the rule on hearing of motions?
General Rule: Every written motion shall be set for hearing by the
In 2010, SC resolved another case, Palma vs. Galvez. In the case of applicant.
Palma vs. Galvez, the SC held that we should literally apply what the
Rules provides, particularly Section 16 of Rule 14. If you read Exception: A motion which the court may act upon without
Section 16, the defendant is a resident of RP temporarily out of the prejudicing the rights of the adverse party.
country. In relation to Section 14, if the whereabouts of the defendant
is unknown, there could be publication of summons, and that would Q: What shall the notice of hearing specify?
enable the court to acquire jurisdiction over the person of the A: It shall specify the time and date of the hearing which shall not be
defendant. later than ten (10) days after the filing of the motion and it shall be
addressed to the parties concerned.
It would seem that the principle adhered to for a long time since
Citizen’s Surety vs. Herrera is no longer binding. They can ignore the Notice of Hearing is usually addressed by lawyers to the branch clerk
requirement of prior attachment of properties of the defendant before of court. This is an error. The notice of hearing MUST be addressed
availing of a publication of summons to enable a court to acquire to the adverse party or the counsel thereof. Remember that the SC has
jurisdiction over the person of the defendant. Read over Sections 14, emphasized that a motion that does not comply with the requirements
15 and 16, correlating them with the cases of Santos vs. PNOC and set down in the Rules shall be treated as a scrap of paper.
Palma vs. Galvez. There is really no need for an action in personam
to be converted to an action in rem or quasi in rem, via a writ of Note: Failure to comply with the mandatory requirements of the rule
preliminary attachment, in order for a court to be able to acquire regarding notice of hearing is pro forma and presents no question
jurisdiction over the person of the defendant. which merits the attention of the court.

Q: What is the advantage of using these principles in Citizen’s Q: There are nine pleadings. How many motions are there?
Surety vs. Herrera? None. It is not possible for the Supreme Court to enumerate all the
The advantage is that if the plaintiff first moves for preliminary possible motions because a motion will depend almost completely
attachment over properties of the defendant and then later ask the upon the creativity of the lawyer. If a lawyer cannot ask for a relief in
court for publication of summons, when compared to just the plaintiff a pleading, he can always do so in a motion. And it is up to him to
asking for publication of summons without asking for preliminary give the name of that motion.
attachment, is that there is a security enjoyed by the plaintiff when
the property of the defendant is attached through a writ preliminary Q: May a motion be filed in appeal?
attachment. If you read Rule 57, that is precisely the purpose of Yes. Unlike a pleading, a motion may be filed during appeal.
preliminary attachment over the property of the defendant, to provide
security to the applicant to whatever judgment rendered in favor of Personal Opinion: The pleadings related to intervention, such as a
the plaintiff. complaint-in-intervention or answer-in-intervention, may be filed on
appeal during very exceptional circumstances.
If there is a preliminary attachment of a property belonging to the
defendant, the act of actual attachment of the property is the act Moreover, there is a difference between a motion filed before the trial
which converts the case from in personam to that of in rem or quasi- court compared to motions filed before the appellate courts. A motion
in rem. This is because the property is now within the jurisdiction of filed before the Court of Appeals or Supreme Court does not have to
the trial court. contain a notice of hearing because the Court of Appeals or Supreme
Court doesn’t have what we call as a motion day.

MOTIONS
MOTION TO DISMISS
Q: What is a motion?
A: It is an application for relief other than by a pleading.

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Motion to dismiss is prohibited in certain proceedings, as set down by Q: May the court make use of a Motion to Dismiss?
the Rules or based on circulars issued by the SC. It is not so much a Motion, but the court may dismiss the case using
the four non-waivable grounds under Rule 9, Section 1. These four
As a general rule, summary procedure, small claims proceedings, and grounds are also included in Rule 16.
some special proceedings prohibit the filing of a motion to dismiss.
But under ordinary procedure, a motion to dismiss is allowed in civil Q: What is the duty of the court if there is a Motion to Dismiss?
cases. A Motion to Dismiss under Rule 16 should be filed as a matter In the resolution of a motion to dismiss, Rule 16 gives to the court
of general practice before an answer can be filed by defendant. three choices: grant the motion, deny the motion, or order an
amendment to the pleading.
Q: Can the defendant properly file an answer and a motion to
dismiss at the same time? Aside from these three, there is a fourth option by virtue of the law
Under Rule 16, it is allowed that the grounds for a motion to dismiss on alternative disputes resolution. The court may refer the matter to
to be simply incorporated in the answer. Under Rule 16, if the conciliation or mediation or arbitration, as the case may be, and
defendant does submit his responsive pleading right away, he can suspend further hearings.
incorporate in his answer the grounds in Rule as affirmative defenses.
If a defendant files his answer with affirmative defenses enumerated Furthermore, the court is mandated to explain the reasons which
under Rule 16 as grounds to dismiss, he being allowed to do that, support the resolution of the court. In other motions, the court can
once the answer is filed with the court, the defendant can ask to court simply say, ‘The motion is granted because it is meritorious’ or even,
to conduct a preliminary hearing on his affirmative defenses. The ‘Finding no merit, the motion is denied.’ But when it comes to a
court can grant it as if the defendant has filed previously a motion to motion to dismiss, whether the court grants or denies the motion or
dismiss. orders an amendment to the pleading, the court must give reasons and
explain the basis of its resolution.
Q: May the defendant file a Motion to Dismiss one after another?
As a general rule, no. It will violate the Omnibus Motion Rule. All The evidence submitted during the hearing for a Motion to Dismiss
the defenses known to the defendant must be entered in one Motion and everything that comes during the motion to dismiss are deemed
to Dismiss or else it is deemed waived. reproduced during the trial of the case. There is no more need for a
repetition of trial with reference to the issues already tackled during
However, if the defenses are those that are non-waivable grounds for hearing for a motion to dismiss.
dismissal under Rule 9, Section 1, it is possible for the defendant to
file motions to dismiss one after another without violation of the Q: Is there any procedural advantage if the defendant simply
Omnibus Motion Rule. files an answer setting up as affirmative defenses those
enumerated in Rule 16?
Theoretically: Yes. If the defendant files an answer with affirmative defenses based
If the first motion to dismiss based on prescription is denied, the on grounds under Rule 16, and after preliminary hearing of the
defendant is allowed to file a second motion to dismiss based on litis affirmative defenses the court orders the dismissal of the case, the
pendencia. If that is again denied, the defendant files his third motion defendant will be given an opportunity to recover his claim for
to dismiss founded on lack of jurisdiction over the person of the damages based on any counterclaims (compulsory or permissive) or
defendant. If it is again denied, the defendant can file a motion to whatever relief he may have sought in his answer (answer with
dismiss based on res judicata. affirmative defenses, permissive and compulsory counterclaims, and
other relief).
A motion to dismiss founded on a waivable defense shall preclude
the filing of another motion to dismiss based on other grounds under You will note that in Rule 16, Section 6, the dismissal of the action
Rule 16, except those non-waivable defenses. There will be waiver of will not affect any counterclaim or cross-claim or any other claim
the other grounds because of the Omnibus Motion Rule, but not those submitted by the defendant in his answer. The defendant cannot file a
defenses which are non-waivable. Thus, if the defendant filed a Motion to Dismiss with a counterclaim or cross-claim or any other
motion to dismiss solely on the ground of lack of jurisdiction over the claim before the court. A Motion to Dismiss is not a pleading. It is in
person of the defendant, which is a waivable defense, and the motion an answer where we can have a cross-claim against a co-defendant or
was denied, the defendant is precluded from filing a motion to counterclaim against the plaintiff.
dismiss based on the ground of improper venue. What will be
allowed would be the succeeding motions to dismiss are grounded on First Ground: Lack of Jurisdiction over the Subject Matter
non-waivable defenses. The source of jurisdiction over the subject matter cannot be found in
the Rules of Court. It is generally found in BP 129. The general law
Q: May the plaintiff file a Motion to Dismiss? on jurisdiction, however, must always give way to a special statute or
No. Rule 16 is designed to be used by the defending party. If the a special legislation. BP 129 is not the only source of jurisdiction.
plaintiff wishes to dismiss his own complaint, he should make use of
Rule 17, not Rule 16. Estoppel by Laches

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With respect to lack of jurisdiction over the subject matter or over the No. If it is a criminal case, we need to look at Figueroa v. People.
nature of the case, this ground is dealt with in Tijam vs. Sibonghanoy.
The accused was arraigned for reckless imprudence resulting to
In this case, the trial court did not have jurisdiction over the subject homicide. This was filed in the RTC instead of MTC. The prosecutor
matter of the case, but the defendant kept silent about the issue of was unaware of RTC’s lack of jurisdiction and the counsel for the
absence of jurisdiction and allowed the case to proceed up to the CA. accused assumed the same. Nobody raised the issue of jurisdiction in
Upon receipt of the adverse decision in the CA, the appellee the RTC, so the case went on. A trial was had. Both parties presented
challenged the validity of the decision of the RTC and the CA, stating their respective evidence. The accused was eventually found guilty.
that the court lacked jurisdiction from the start. On appeal, the accused interposed the defense of lack of jurisdiction.
The Solicitor General cited Soliven vs. Fast Forms as defense. Active
SC held that there was estoppel by laches. The case has been pending participation means that the litigant is in estoppel from challenging
for 15 years up to the appeal, the defendant appearing in the case for the validity of the proceedings. The CA agreed with the Solicitor
all those years. SC said that although the decision may be challenged General.
by lack of jurisdiction over the subject matter even for the first time
on appeal, the defendant is guilty of estoppel by laches, by his The Supreme Court held that the judgment is void as estoppel in pais
negligence to raise this issue as promptly as possible. He can no is inapplicable in a criminal case. Lack of jurisdiction in a criminal
longer challenge the decision of the court. case can be cited as a defense even on appeal. The rights of the
accused being at stake, estoppel in pais is inapplicable.
The Tijam Doctrine is incorporated in Rule 47, Section 2 – ‘before it
is barred by laches or estoppel’. Estoppel by laches may be a defense Thus, if you are confronted with a problem on lack of jurisdiction in a
against lack of jurisdiction over the subject matter. civil case, apply Soliven. If it is a criminal case, adopt Figueroa.

Estoppel in Pais Read: Soliven v. Fast Forms, Figueroa v. People, NAPOCOR v.


In other cases, the SC also used another kind of estoppel in order to Province of Quezon
bar the party from raising the issue of jurisdiction, although the trial
court really did not have jurisdiction over the subject matter. Take a In a hearing of a motion to dismiss grounded to lack of
look at Soliven v. Fast Forms. jurisdiction over the subject matter, the court will not allow
presentation of evidence by the defendant. The reason is because
The aggregate sum to be recovered was P800K. A complaint for lack of jurisdiction over the subject matter is a purely legal question
collection of money was filed in the RTC. The amount to be actually and the only evidence to be taken into account is the complaint itself,
collected was less than the jurisdictional amount of the RTC based on applying the principle that the court acquires jurisdiction, under BP
BP 129 (the P800K includes IDALEC, hence the confusion). 129, based on the allegations contained in the complaint.

There was an answer by defendant with a counterclaim. The court, In the hearing of a motion, the court will only allow presentation of
unaware it lacked jurisdiction over the case, as nobody brought it up. evidence if the question that will be raised is a factual issue like the
rendered a judgment in favor of the plaintiff. The counsel for the obligation has been paid, waived or otherwise extinguished. Thus, in
defendant found that the court had no jurisdiction. The defendant a motion to dismiss on the ground of lack of jurisdiction over the
filed a motion for reconsideration and raised lack of jurisdiction, subject matter, the court will resolve the motion based on the
praying for dismissal of the case. RTC denied the motion, as the complaint itself. The court can easily resolve the said motion based
defendant was now in estoppel to challenge the court’s jurisdiction on the allegations in the pleading itself.
just because an adverse result was had.
Second Ground: Lack of Jurisdiction over the Defendant
The Supreme Court held that the defendant cannot challenge any Q: The defendant has a problem when a court issues a service of
more the jurisdiction of the court. SC stated that estoppel in pais summons in violation of Rule 14. The defendant must file a
has set in. While jurisdiction may be assailed at any stage, a litigant’s Motion to Dismiss on ground of lack of jurisdiction over person
participation in all stages of the case before the trial court, including of the defendant. If he does file such motion, does not the
the invocation of its authority in asking for affirmative relief, bars defendant admit that the court has jurisdiction over his person?
such party from challenging the court’s jurisdiction. A party cannot No. The filing of a motion to dismiss on that ground is the only
invoke the jurisdiction of a court to secure affirmative relief remedy available to him in order to tell the court that the court had
against his opponent and after obtaining or failing to obtain such not acquired jurisdiction over his person. In court cases, what the
relief, repudiate or question that same jurisdiction. The Court defendant can do is to tell that court right away that his appearance
frowns upon the undesirable practice of a party participating in the before the court in filing the motion to dismiss should be considered
proceedings and submitting his case for decision and then accepting as a special appearance only for the purpose of telling the court that
judgment, only if favorable, and attacking it for lack of jurisdiction, the court has no jurisdiction over his person.
when adverse.
This Special Appearance Rule stems from another principle in the
Q: Is the Soliven case applicable to criminal cases? past that when a defendant files a motion to dismiss on the ground

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that the court has not acquired any jurisdiction over his person, when the other cases, regardless of who is going to prevail in anyone of
he adds another ground found in Rule 16, the SC then held that when these cases.
another ground is added in the motion to dismiss aside from lack of
jurisdiction over the person of the defendant, he waives the ground of If we are going to use that standard, the argument of the mortgagor is
lack of jurisdiction over his person. This has been changed in the correct only partially. There are two possibilities. First, the mortgage
present Rules. will be annulled. In this scenario there really will be res judicata over
the second case. The mortgagor, however, did not account for the 2nd
Under the Omnibus Motion Rule, the defendant who files a motion to scenario – the mortgage will be held valid. In this instance there will
dismiss on the ground of lack of jurisdiction over his person plus any be no res judicata over the second case. In this scenario the bank has
other ground in Rule 16 does not anymore waive the ground of lack all the right to foreclose the mortgage.
of jurisdiction over his person.
There is therefore no litis pendencia between a case asking annulment
Let us say the defendant who claims that the court has not acquired of a contract and a case enforcing that contract.
jurisdiction over his person does not respond to the summons, as
filing of an answer is a waiver of his defense of lack of jurisdiction Notice of Lis Pendens
over his person. He received a copy of the order of the court, and then Q: Is there a difference between litis pendencia and a notice of lis
following the Rules, the defaulting defendant files a motion to lift the pendens?
order of default. The filing of a motion to lift the order of default is Yes. Notice of lis pendens is a constructive notice in real actions. The
acceptance by the defendant of jurisdiction of the court over his notice operates when the case involves title to or possession of real
person. property (i.e., real action) and one of the litigants requests the register
of deeds to annotate at the back of the title of the property involved
In another instance, the defendant receives the copy of the judgment the fact that there is a pending action between the plaintiff and the
of default and the defendant files a motion for reconsideration and a defendant involving that property.
motion for new trial. The motion for reconsideration or new trial is a
submission of the defendant to the jurisdiction of the court over his Q: Does the interested party need permission from the court
person. This is the reason why in Palma vs. Galvez, the defendant before he can register a notice of lis pendens?
claims that the court did not acquire jurisdiction over his person, and No. The Register of Deeds has the ministerial duty to record a notice
when he filed a motion for new trial, he must qualify the motion must of lis pendens. The Register of Deeds cannot require the applicant to
not be treated as a voluntary submission to the jurisdiction of the produce permission from the court.
court over his person. He must always qualify his motion with that
ground. This is the reason why it is called a notice of lis pendens. A notice of
lis pendens does not require to be put in a motion or a pleading.
Third Ground: Improper Venue
This has already been taken up in Rule 4. Q: What is the purpose of a notice of lis pendens? Will it prevent
the registered owner from disposing of the property?
Fourth Ground: Lack of Capacity to Sue on the Part of Plaintiff A notice of lis pendens is only a notice to the whole world that there
Q: Suppose it is the defendant who lacks the capacity to be sued, is a pending action between the plaintiff and the defendant. The
may he still dismiss the case? registered owner of the property will not be prevented, he will not be
Yes, but not under this ground but under another ground, i.e., failure precluded from disposing of the property. The notice of lis pendens
to state a cause of action. will not be considered as an obstacle to the conveyance of the
property involved in the litigation.
Fifth Ground: Litis Pendencia
Q: When is there litis pendencia? Q: Does cancellation of a notice of lis pendens require permission
To answer this question, we need to take a look at Hongkong and from the court?
Shanghai Bank v. Aldecoa. Yes. Although the party wishing to register a notice of lis pendens
does not have to obtain permission from the court, cancellation of the
A property was mortgaged to the bank. The mortgagor filed a case same is a different matter. There should be an order from the court to
against the bank for the annulment of the mortgage. During the carry out the cancellation.
pendency of that case, the debt became due and the mortgagor failed
to pay the obligation. The bank filed a complaint for the foreclosure Dean Albano: The cancellation of the annotation of an encumbrance
of the same mortgage. The mortgagor upon receipt of the summons cannot be ordered without giving notice to the parties annotated in
issued in the second case filed a motion to dismiss founded on litis the certificate of title itself.
pendencia.
Also, notice of lis pendens is not effective if the action is a personal
The Supreme Court held that in litis pendencia, the essential requisite action like sum of money (citing Gagoomal v. Sps. Villacort).
is that the outcome of anyone of the cases will be res judicata as to
Sixth Ground: Failure to State a Cause of Action

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The Supreme Court in recent cases emphasize the difference of lack (h) That the claim or demand set forth in the plaintiff’s pleading
of a cause of action and failure to state a cause of action: has been paid, waived, abandoned, or otherwise extinguished;
Failure to state cause of action Lack of cause of action and
(i) That the claim on which the action is founded is
Failure to prove or establish by unenforceable under the provisions of the statute of frauds.
Insufficiency in the allegations
evidence one’s stated cause of
of the complaint
action Q: Why is it necessary to relate a motion to dismiss under Rule
As a ground for dismissal 16 with Rule 41, which is a rule on appeal?
If you read Section 1 of Rule 41, there is an enumeration of orders
Raised in a motion to dismiss Raised in a demurrer to where no appeal can be had, although they are final in character.
under Rule 16 before a evidence under Rule 33 after
responsive pleading is filed the plaintiff has rested his case In the enumeration under Section 1 of Rule 41, the last item is closely
Determination related to Rule 16, that it is a dismissal is without prejudice. In Rule
16, what the Rule tells us is that under items f, h and i of Sec. 5 Rule
Determined only from the Resolved only on the basis of 16 are subject to appeal. That means the dismissal is with prejudice
allegations of the pleading and the evidence he has presented as the remedy thereof is to appeal.
not from evidentiary matters in support of his claim
But when the dismissal on other grounds other than items f, h and i
Failure to state a cause of action will be a ground to dismiss because under Section 5, Rule 16, they are without prejudice. And Section
of immaturity of action. It assumes that the plaintiff really has a cause 1(h), Rule 41 tells the plaintiff that one of the recourses available to
of action, and the fault is due the lawyer who crafted the complaint. him when the dismissal is without prejudice. Appeal is not a remedy
available to him. Since the order is not appealable, the plaintiff must
Q: There is an accion reinvindicatoria filed in the RTC, but there file an appropriate petition under Rule 65. The plaintiff may file a
is no stated assessed value of the property. The defendant filed a petition for certiorari or prohibition with the CA or SC as the case
motion to dismiss for lack of jurisdiction for failure to state a may be.
cause of action. A hearing was had. The plaintiff’s attorney failed
to see what the motion was about. The court granted the motion. Q: Why do we allow the plaintiff to file a petition under Rule 65
The plaintiff’s lawyer received the order of dismissal, and then he challenging the dismissal of his complaint for lack of jurisdiction,
finally understood what was wrong with his complaint. Can the although the order of dismissal has already been entered after the
lawyer for the plaintiff amend his complaint? lapse of 15 day period?
Yes. The plaintiff or his counsel can still amend his complaint to Because under Rule 65, the period for filing the petition under this
incorporate in the allegation the assessed value of the property. This rule is 60 days, not 15 days. So if the 15-day period for entry of
is because the order of dismissal will not be entered until after the judgment has lapsed, the plaintiff has 45 days more to file a petition
lapse of 15 days, and the plaintiff can still amend and rectify the error under Rule 65.
committed by inserting the assessed value of the property. He can do
so as a matter of right, because, according to SC, a motion to dismiss But because the dismissal is without prejudice, the plaintiff can forget
is not a responsive pleading, and as long as the amendment is the first about going to a higher court. If the dismissal of his complaint was
amendment, under Rule 10, it is an amendment is a matter of right. without prejudice, he has another alternative: He can just file a new
The defendant will have to file an answer to the amended complaint. complaint in the same court involving the same party with the
:Q: Based on the above problem, if the dismissal became final complaint impleading the necessary allegations.
and executory, what can the plaintiff do?
Under Sec. 5 Rule 16, the rule makes a distinction between an Order If we compare this dismissal under Rule 16 based on lack of
of Dismissal under Rule 16, letters (f), (h) and (i) - in addition to jurisdiction on the ground of f, h and i, we can understand why they
laches under the NCC – and an order under other grounds. If it is the are not appealable. The order of dismissal based on these items will
former, the dismissal is subject to the right of appeal. The remedy of be a judgment on the merits. If the claim of the plaintiff alleged in the
the plaintiff is to appeal the order of dismissal. complaint has really been paid, waived, abandoned or otherwise
extinguished as provided in the NCC, then it would seem that he
If the case was dismissed on other grounds not letters (f), (h) and (i), really has no claim at all with the defendant, and thus the complaint is
it means we should not treat Rule 16 alone. We must look at other dismissed with prejudice. If the allegation of the defendant is that the
Rules to arrive at the correct remedy. We consult Sec. 1 under Rule claim has been paid, waived, abandoned or otherwise extinguished,
41. Since the dismissal is without prejudice, the dismissal should not that motion presents a factual issue. During the hearing of that
be appealed. motion, the defendant will be given an opportunity to prove that the
claim has really been paid, waived, abandoned or otherwise
Q: What are grounds under letters (f), (h), and (i)? extinguished. The hearing will be as if the court was actually trying
(f) That the cause of action is barred by a prior judgment or by the case, the defendant being allowed to present witnesses, or present
the statute of limitations; evidence of his allegation that the claim has been paid, waived,

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abandoned or otherwise extinguished based on grounds recognized hearing as the said defenses had been already subject to a hearing
under substantive law. when the said defenses were contained as a ground for dismissal in
the prior motion that was denied.
The court said that the results enumerated under Section 16 are not
exclusive. We should include laches. Under the NCC, laches could So, during the trial of the case, the defendant may be able to present
extinguish an obligation. to the court additional evidence in order to prove such ground under
Rule 16 that he has relied upon.
Remember that, procedurally, the court will not allow presentation of
evidence in a hearing for a motion to dismiss entirely based on a legal Seventh Ground: Res Judicata, Prescription
issue. The court will simply read the allegations in the complaint. If
the issue is factual, the court will be forced to conduct a hearing for Eight Ground: Extinguished Claim
presentation of evidence therein.
Ninth Ground: Unenforceable Contract
Q: Supposing the plaintiff commits an error in ascertaining the The Statute of Frauds only applies to executory contracts. A partially
dismissal. The dismissal was actually with prejudice. Although or totally executed contract may be enforced in court even if it be oral
the judgment already became final after 15 days, the plaintiff, 40 in form.
days after the judgment for dismissal was made, files a petition
for certiorari. The petition for certiorari was dismissed by the Tenth Ground: Condition Precedent
higher court as the proper remedy was to appeal. May the Take note of our discussion on condition precedents such as prior
plaintiff still appeal once the petition for certiorari was denied? barangay conciliation, an arbitration clause, certificate of non-forum
At this time, he cannot appeal anymore as the time to appeal was 15 shopping, among others.
days from receipt of the order of dismissal. It has long expired, and
the judgment has been entered and had become final. Also, he cannot
file another complaint, as the dismissal is with prejudice. DISMISSAL OF ACTIONS

Q: Let us say that the defendant’s motion is founded on letter h. Let’s attempt to summarize.
During the hearing, the defendant presents evidence. Then, the
motion was submitted for resolution. The court denies the If a dismissal is found under Rule 16, we have to determine if it is
motion. What is the next move for the defendant if the motion is with prejudice or without prejudice. The dismissal is with prejudice if
denied? it was dismissed under grounds (f), (h) and (i). The proper remedy is
The defendant should file an answer during the remaining period to to appeal.
file, which should not be less than 5 days from the receipt of the
order of denial. If it was dismissed on any other ground aside from (f), (h) and (i), the
dismissal is without prejudice and the plaintiff may either just file
Q: May the defendant appeal the denial of his Motion to Dismiss? another complaint or, if the dismissal is marked with grave abuse of
No. The denial of a Motion to Dismiss is an interlocutory order and discretion amounting to lack or excess of jurisdiction, he may just file
under Rule 41 is not subject to appeal. a petition under Rule 65.

Q: May the defendant make use of Rule 65? If a dismissal is found under Rule 17, we follow the same principle.
Yes. Under Section 1, Rule 41, the aggrieved party may file an Rule 17 also states if a dismissal is with and without prejudice. We
appropriate special civil action as provided in Rule 65. follow the principle of dismissal under Rule 41 in relation to Rule 16.

Q: The defendant files an answer after his Motion to Dismiss was A dismissal under Rule 18, under pre-trial, is always with prejudice,
denied. Can he incorporate the ground in the motion to dismiss and the plaintiff must appeal.
that was denied as an affirmative defense?
Yes, the defendant is allowed to do that. Under our rules, if there are A dismissal under Rule 33, or demurrer on evidence, is a dismissal
objections or grounds not raised in the pleadings, these grounds are with prejudice and the remedy is to file an appeal from the order of
deemed waived. dismissal.

Q: Using the above scenario - Can the defendant, after filing his If the dismissal is without prejudice, in general, the plaintiff has not
answer with his affirmative defense move for a preliminary much to worry. He can actually forget about Rule 41. He can just file
hearing on his affirmative defense? a second complaint, but he must make sure it is properly crafted. If
No, the court will not allow such a hearing anymore as there had been the plaintiff files a second complaint, but it was again dismissed,
a prior hearing for the same issue in the prior motion to dismiss that there is the probability that under Rule 17, Section 1 that it will be a
was denied. Thus, although a defendant is all owed to use his ground dismissal with prejudice under the two-dismissal rule. Thus, if a
under Rule 16 in a motion to dismiss that was denied as an
affirmative defense, he is not allowed to have another preliminary

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complaint has been dismissed twice, the second dismissal may Q: The case had been dismissed by the court because of the
operate as an adjudication of the merits. plaintiff’s notice of dismissal. What if plaintiff changed his mind
after the order of dismissal? What can he do?
Q: Does it mean that a second dismissal is always a dismissal with He needs to wait ask for revival of the case within 15 days from the
prejudice? filing of the order of dismissal. No new complaint need be filed, and
No. The second dismissal will still be without prejudice as provided no docket fees need be paid again.
for in Rule 17, unless there is a statement of such dismissal being
with prejudice in the notice of dismissal. Q: Suppose the defendant filed a Motion to Dismiss, and the
plaintiff filed a notice of dismissal before the motion may even be
Remember our discussion regarding indispensable parties. heard. How can this be resolved?
SC held that the court should confirm the notice of dismissal by the
The theory behind the doctrine that a complaint must always implead plaintiff. The plaintiff’s notice of dismissal prevails over the motion
an indispensable party is for the court to have a final determination of to dismiss filed by the defendant.
the case. If an indispensable party has not been impleaded, the court
may simply order the plaintiff to amend his complaint to include the Two-Dismissal Rule
indispensable party (either as a resolution of a Motion to Dismiss for Q: Plaintiff files a collection case for P500.000 against defendant.
failure to state a cause of action, OR under its own authority under Defendant visits the plaintiff and asked the plaintiff for the
Section 11, Rule 3). In this instance, the plaintiff can then just file an dismissal of the case, promising payment. Plaintiff acquiesced
amended complaint, and the case can proceed. and files a notice of dismissal. The court dismisses the case. The
defendant still failed to pay. Can the plaintiff file another case
If the plaintiff however failed to obey the order of the court to amend against defendant?
his complaint, the court may dismiss the case under Rule 17, and the Yes, as the case was dismissed without prejudice.
dismissal is with prejudice. The ground is for failure to obey a lawful
order of the court. The remedy of the plaintiff in this instance is to Q: The defendant again approached plaintiff, asking again for
appeal. time. Plaintiff again agrees, and files another notice of dismissal.
It is again dismissed. What will be the effect?
Generally, the court is given discretion to state whether a dismissal is The dismissal is with prejudice this time. If plaintiff files a case for
with or without prejudice. If the dismissal, however, is not qualified, the same defendant for the same cause and the defendant again failed
Section 3 of Rule 17 is very clear, that dismissal is with prejudice. to pay, the case will be dismissed as the second dismissal is one with
Therefore, the remedy of the aggrieved party is to appeal and not to prejudice, and res judicata will lie.
file a petition under Rule 65.
Q: What if the defendant files a motion to dismiss but failed to
We now tackle Sections 1, 2, and 3 of Rule 17 successively. These allege res judicata, can the court proceed to dismiss?
sections are also grounds for dismissal. Yes, the court can do so, even if the defendant failed to allege it. It is
a non-waivable ground of dismissal, and anytime the court discovers
Sections 1 and 2 such fact, it will dismiss the case.
Q: The plaintiff files a complaint today and the plaintiff changed
his mind tomorrow and moved to dismiss the case. The summons Q: Can the court say in its decision of dismissal that the second
had not been sent. May the plaintiff dismiss his own complaint dismissal is without prejudice?
via a motion? No. The court cannot say the second dismissal is without prejudice as
The plaintiff should not dismiss his case via a motion. The means for the law itself dictates that such dismissal is with prejudice. The court
a plaintiff to dismiss his case is provided for under Section 1, Rule has no discretion if the second dismissal is with or without prejudice.
17. A motion implies that the court has the discretion to grant or deny As long as it is the second dismissal of the same case, it will always
the motion. be with prejudice due to res judicata.

Q: What if a notice of dismissal was given instead? Q: Are there any situations where the second dismissal is without
The court is left without discretion. The court has to dismiss it. Filing prejudice?
of a timely notice of dismissal will result in the dismissal of the case. 1. If the first case was filed in court which lacked jurisdiction
The dismissal is without prejudice, unless plaintiff tells the court that thereto, and the second case was filed in a competent court
the notice of dismissal is to be considered adjudication on the merits. and there was a second dismissal, the second dismissal is
not res judicata. The two-dismissal rule will only lie if the
case had been filed in a court competent to hear it.
Q: When is notice of dismissal proper?
A notice of dismissal is only proper before the service of an answer 2. In Section 2 Rule 17, a plaintiff may dismiss his complaint
or of a motion for summary judgment. If there is already an answer, via a motion to dismiss. Here, the defendant has already
the plaintiff must instead file a motion to dismiss and the court may filed an answer. If the plaintiff seeks to dismiss the
either grant or deny the same. complaint, he must file a motion to dismiss his complaint,
copy furnished to the defendant.

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court makes the necessary qualification that it is a dismissal without
Under the second instance, the likelihood is that the defendant will prejudice.
not object. If the defendant does not object, and the court dismisses
the case without prejudice, the plaintiff is allowed to file another case Dean Albano: But you should read Soliman v. Fernandez, a 2014
against the same defendant based on the same cause. case. The SC held that the court should not dismiss the case if the
plaintiff fails to take further steps to prosecute or set it for pre-trial
The defendant can insist that the dismissal be one with prejudice. because the further steps is not his, but for the clerk of court, to take.
This is allowed because the dismissal is upon the initiative of the Within five days from date of filing of the reply, the plaintiff must
plaintiff, and the defendant is given the opportunity to object. If you move ex parte that the case be set for pre-trial conference. If the
were the defendant’s counsel, advise the defendant to object, and plaintiff fails to file said motion within the given period, the Branch
state that the dismissal should be one with prejudice. It will preclude Clerk of Court shall file a notice of pre-trial.
the plaintiff from filing another case with the same claims against the
same defendant. Dean Jara, continuing: In most courts (RTC or MTC), if the court
calls the case for trial on the merits, and plaintiff does not appear
Q: What if the defendant has a counterclaim? during trial, the lawyer for the defendant may ask for the dismissal
There will still be dismissal, but the defendant can ask that the court under Section 3, Rule 17 for failure of the plaintiff to prosecute for an
to continue hearing on the counterclaim set up by defendant in his unreasonable length of time or for failure of the plaintiff to appear on
answer. In the alternative, the defendant can ask the court to try the the date of the presentation of his evidence in chief on the complaint.
counterclaim in a separate case. And usually, the trial court accommodates the defendant’s move
because if a trial court dismisses the case, that is one case where the
Q: Will this apply even if the counterclaim is compulsory? judge can present that he has been resolving speedily the cases that
Yes. This is one of rare instances where a compulsory counterclaim are assigned to him.
could survive without the principal action.
The Supreme Court came out with a resolution concerning this
Section 3 particular provision in relation to Shimizu vs. Magsalin. Study this
Q: What are the grounds for dismissal under Section 3, Rule 17? case as it would be a good problem in the bar.
1. The plaintiff fails to appear on the date of the presentation of
his evidence in chief on the complaint; In Shimizu, the Court held that an order of dismissal with prejudice
2. Failure to prosecute his action for an unreasonable length of should always comply with Rule 36 and the Constitution. Otherwise,
time, or nolle prosequi; it shall be open to collateral and direct attack. A trial court should
3. Failure to comply with these Rules; and always specify the reasons why the complaint was dismissed so that
4. Failure to comply with any order of the court on appeal, the reviewing court can readily determine the prima facie
justification for the dismissal.
Under this section, the initiative for the dismissal of the case comes
from the defendant or the court itself. Shimizu involves a case of nolle prosequi, or failure to prosecute. The
court failed to substantiate its judgment aside from a short sentence
Q: What if the plaintiff failed to appear during the trial set for the case was dismissed for failure to prosecute.
the presentation of rebuttal evidence? Will there be dismissal?
No. The plaintiff has already presented his evidence in chief. There is A valid judgment must contain factual findings and it must have
a difference between evidence in chief and rebuttal evidence. conclusions as to the law available. If the court simply says that the
dismissal was for failure to prosecute for an unreasonable length of
Q: How can the court order a dismissal under Section 3 of Rule time, that is not a factual finding nor a conclusion based on law. It is
17 upon the ground that the plaintiff failed to obey the provisions just a conclusion of the court.
of the Rules of Court?
A good example can be had under Rule 18 on Pre-Trial. In Rule 18, it The SC said that for a trial court to render a valid judgment, the court
is provided expressly that after the last pleading is filed, it is the duty should explain why and how the court came to the conclusion that the
of the plaintiff to set his complaint for pre-trial. He must file a motion plaintiff is guilty of nolle prosequi. The court should give instances
to have the complaint set for pre-trial. When the plaintiff fails to set pertaining to the records of the case that enabled the court to
the hearing for pre-trial for, let us say, one year ago up to the present, conclude that the plaintiff has failed to prosecute for an unreasonable
and there is a finding that the plaintiff failed to do so, the court can length of time. Without such explanation, even if the judgment is
dismiss the case on the ground that the plaintiff failed to follow the entered, it can be subjected to direct or collateral attack.
provision set upon in the Rules. This has been affirmed by the SC.
So, if it is the duty of the plaintiff to set the case for pre-trial, and he An order of dismissal with prejudice under Rules 16, 17, 33 or even
neglects to do so for an unreasonable length of time, there is every under any rule allowing dismissal of the action must comply with the
reason for the court to make use of Rule 17, to order the dismissal of requirements of Section 1, Rule 36.
the case under Section 3. This is a dismissal with prejudice unless the

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PRE-TRIAL Under Rule 18, if the defendant filed an answer but fails to submit a
pre-trial brief or did not attend pre-trial conference, the plaintiff can
Pre-trial is mandatory in all cases, even in summary procedure, where present evidence ex parte and the court will make an award according
it is called a preliminary conference. It is present even in small claims with the evidence presented by plaintiff (application of amendment to
procedure, where there is a semblance of pre-trial in the preliminary pleadings in order to conform to evidence).
conference called a Judicial Dispute Resolution.
Under Rule 9, the defendant is in default, ex parte evidence can be
It is the duty of the plaintiff to schedule his complaint for pre-trial presented, and the court will only award those reliefs prayed for in
after the last pleading has been filed. If he fails to do so, the case may the complaint.
be dismissed with prejudice under Rule 17. Again, following the rule
in Shimizu, the order of dismissal should explain how the court has Q: May a third party such as his counsel appear for the party?
arrived at the conclusion that the plaintiff has not obeyed the Rules of Yes, but the third party must be armed by a power of attorney, and in
Court. writing, that will empower him to enter into stipulations, to submit to
arbitration or other ADR, or to enter into a compromise agreement.
Q: When is pre-trial not mandatory?
It is not mandatory if all the defendants have been declared in default. Q: What if there are two preliminary conferences; the defendant
The reason is obvious – there is no defendant to have pre-trial with. attended the first but did not attend the second one? Will he be
sanctioned?
Mediation and Conciliation No. After the termination of the first pre-trial conference, it is
This rule on pre-trial has been modified by the SC, applying the rules arbitrary and capricious on the part of the trial court to schedule
of mediation and conciliation. a second conference. But it is essential that the first one must have
been terminated.
The Trial Court calls the parties to pre-trial. The parties are told to
attend a mediation/conciliation process. The case might be terminated Q: What are the differences between a criminal case and a civil
while in this process. The mediator/conciliator usually issues notices case when it comes to pre-trial?
to the parties as to the schedule of the mediation/conciliation In a civil case, stipulations of facts can be had; joint stipulation of
conference. If the plaintiff does not appear, he repeatedly ignores the facts can be had; parties are encouraged to agree on the existence of
notices, the mediator/conciliator will submit a report to the trial court certain facts, making them part of the records of the case; and verbal
and the court may dismiss the case with prejudice. If the court orders stipulations of facts can be allowed and considered valid. These
that the parties should attend a mediation/conciliation conference, the stipulations need not be presented in evidence, as the court will take
conference is deemed part of the pre-trial process. It is tantamount to judicial notice of these stipulations, and will be considered as judicial
the plaintiff absenting himself from a hearing in the trial, and thus a admissions.
violation of an order of the court. Thus, such disobedience by the
plaintiff shall be a ground for dismissal with prejudice. The rules in a criminal case are much stricter. Stipulation of facts
should be reduced into writing, signed by the counsel of the accused
If the mediator/conciliator fails to mediate or to settle the case, they and accused himself, and approved in court. Otherwise, it will be
will file an official report to the trial court. The case will proceed to inadmissible in court.
pre-trial proper. Parties will be ordered to submit a pre-trial brief and
attend the pre-trial conference. Q: One of the purposes for pre-trial is the ‘advisability or
necessity of suspending the proceedings.’ What are the grounds
Pre-Trial Proper for suspending the proceedings?
If any one of them fails to submit a pre-trial brief, there are serious The grounds are not in the Rules of Court. It is in the NCC. Read Art.
sanctions imposed. Also, even if the parties have timely submitted 2030 under Title XIV, or Compromises and Arbitrations:
their pre-trial brief but a party was absent in the pre-trial conference,
there are serious consequences. Art. 2030. Every civil action or proceeding shall
be suspended:
If the plaintiff failed to file a pre-trial brief or attend the pre-trial 1. If willingness to discuss a possible
conference, the case will be dismissed and the dismissal is with compromise is expressed by one or
prejudice. both parties; or
2. If it appears that one of the parties,
before the commencement of the action
If it is the defendant who failed to file a pre-trial brief or attend the or proceeding, offered to discuss a
pre-trial conference, the plaintiff is allowed to present his evidence ex possible compromise but the other
parte. The decision of the court will be based on such evidence. refused the offer…

Do you still remember the difference between ex parte presentation Pre-Trial Order
of evidence under Rule 9 and Rule 18? The court is required to issue a pre-trial order after the termination of
the pre-trial conference, stating therein the matters to be taken up and

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will serve to control the proceedings in trial proper. The court is He cannot, if the defendant objects. If the defendant, however, failed
required to specify the issues that have not been stipulated upon and to object, the plaintiff will be able to present evidence on an issue not
what should be the object of the trial whenever the court finds it raised in the pre-trial order.
necessary to conduct a trial. This is an important document in a civil
case insofar as the triable issues are concerned. Q: Why do we allow the plaintiff to present evidence on an issue
not raised in the pre-trial order, about his entitlement to recover
If we follow the decisions of the SC, since the issues specified in the from the defendant the amount of 1M?
pre-trial order control the proceedings to be taken thereafter by the This is because of the rule of amendment to conform to evidence. In a
court, the court may disregard the pleadings submitted by the parties civil case, we can jump from one issue to another so long as parties
after the pre-trial. agree. The issue in the pre-trial order could be different from that
raised in the pleadings, and even issue tried during trial could be
Q: The complaint was for collection of a large sum of money different from that raised in the pre-trial order. The parties are given
amounting to P1M. During pre-trial, the parties agree that the much flexibility and allowance in a civil case to present evidence on
real issue is to recover possession and ownership from defendant any issue they so desire. The only limitation is that the other party
of a piece of land, instead of collection of P1M as stated in the might object to evidence presented that is not related to the issue
complaint. That is the issue embodied in the pre-trial order. Is found in the pre-trial order, that the evidence is irrelevant and
the pre-trial order valid? immaterial. If evidence is allowed, the court shall issue judgment
Yes. Although it is in conflict with pleadings, Rule 18 is very clear based on evidence presented, based on the rule of amendment to
that it is the pre-trial order that will govern the proceedings, not the conform to evidence.
pleadings.
Alternative Dispute Resolution (ADR)
Although we learn in Evidence that the issues are those found in the The NCC expresses the policy of the state that the courts should
pleadings in a civil case, the triable issues for the purposes of a civil encourage litigants to settle disputes amicably or to submit to
case are those found in the pre-trial order. There is nothing wrong in arbitration if they cannot voluntarily agree to settle the dispute by
a civil case if we start with a collection of money case and that was themselves.
converted to a recovery of property case in pre-trial even without
amending the complaint. This is because what governs the course of Read: Domestic Arbitration Act (RA 876), and A.M. No. 07-11-08-
the proceedings is the triable issue that is specified in the pre-trial SC Special Rules on ADR
order, as specified under the last section of Rule 18. Thus, in our last
example, the court will simply ignore the issue as to the claim for a The law on ADR gave autonomy to contracting parties in submitting
sum of money, as the issue to be tried will be the issue on the their disputes to alternative modes of dispute resolution, including the
recovery of possession and ownership of a piece of land, the issue prerogative to agree on the procedure to be followed in case they
found in the pre-trial order. enter into any mode of ADR.

Q: Why do we allow the trial court to change the issues without There are 3 recent cases dealing with ADR. The principles formed in
changing the pleadings? these 3 cases form the circular on arbitration.
This is because, during the pre-trial hearings, the parties are present
therein. If they both agreed to the change, such as changing the issues These cases are:
of the complaint from collection for a sum of money to a recovery of 1. Gonzales v. RTC,
possession and ownership of property, then the court will be simply 2. ABS-CBN Broadcasting Corporation v. World Interactive
following the desire of the litigants as to what issue to be tried during Network Systems (WINS) Japan Co., Ltd., and
the trial. 3. Korea Technologies Co., Ltd., v. Hon. Alberto A. Lerma, et
al.
Note, this principle is allowed in civil cases only. It is inapplicable in
Gonzales v. RTC explains the doctrine of separability or severability.
a criminal case.
Doctrine of Separability / Severability (Case)
Let us say the court strictly follows the pre-trial order and reminds
This doctrine enunciates that an arbitration agreement is independent
the parties that the issue in the trial will be recovery by the plaintiff of
of the main contract. The arbitration agreement is to be treated as a
possession and ownership of property from the defendant. During the
separate agreement and the arbitration agreement does not
trial, if the plaintiff was able to show that he was indeed entitled to
automatically terminate when the contract of which it is part comes to
recover, then there is nothing wrong with that as the evidence is
an end.
relevant and material.
The separability of the arbitration agreement is especially significant
Q: What if during the trial, the plaintiff also presented evidence
to the determination of whether the invalidity of the main contract
that he is also entitled to recover 1M along with the property, will
also nullifies the arbitration clause. Indeed, the doctrine denotes that
it be allowed?

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the invalidity of the main contract, also referred to as the “container” international arbitral award only to the grounds specified under
contract, does not affect the validity of the arbitration agreement. Section 34 of the Model Law (e.g., incapacity of a party to the
arbitration agreement or the invalidity of the arbitration agreement
Judicial Remedies under the applicable law). Neither the Model Law, nor the New York
ABS-CBN v. WINS enumerates the remedies of a party aggrieved by Convention on the Recognition and Enforcement of Foreign Arbitral
an arbitral award. Awards, to which the Philippines acceded in 1967, recognize the
setting aside of international/foreign on the broader grounds of errors
According to the Supreme Court, a party aggrieved by an arbitral of law and/or fact or grave abuse of discretion.
award has three (3) remedies, to wit:
(a) a petition in the proper trial court to issue an order to vacate Notably, the ruling in ABS-CBN treated the case as a “domestic”
the award under Republic Act No. 876 (which applies to arbitration even though one of the parties, i.e., WINS, was a Japanese
domestic arbitration); corporation and a substantial portion of the obligation, i.e., the
(b) a petition for review with the Court of Appeals under Rule distribution and sublicensing of the “The Filipino Channel”, was
43 of the Rules of Court on questions of fact, of law, or performed in Japan. Perhaps this may be explained by the fact that
mixed questions of fact and law; and the arbitral award in this case was rendered prior to the enactment of
(c) a petition for certiorari with the Court of Appeals under Rule the ADR Law. It was only under the ADR Law that a distinction was
65 of the Rules of Court if the arbitrator acted without or in made between domestic arbitration and international arbitration.
excess of his jurisdiction or with grave abuse of discretion Under the ADR Law, international arbitration shall be governed by
amounting to lack or excess of jurisdiction. the Model Law, while domestic arbitration shall be governed by R.A.
No, 876. The ADR Law adopts the definition of international
The grounds to vacate under Section 24 are: arbitration under Article 1(3) of the Model Law. Domestic
(a) The award was procured by corruption, fraud, or other arbitration, on the other hand, defines domestic arbitration as
undue means; or arbitration that is not international.
(b) That there was evident partiality or corruption in the
arbitrators or any of them; or Retroactive Effect
(c) That the arbitrators were guilty of misconduct in In Koreatec v. Lerma, the Supreme Court held that the ADR Law,
refusing to postpone the hearing upon sufficient cause being a procedural law, may be given retroactive effect. Hence, there
shown, or in refusing to hear evidence pertinent and appears to be a conflict in this respect between ABS-CBN and Korea
material to the controversy; that one or more of the Technologies.
arbitrators was disqualified to act as such under section
nine hereof, and willfully refrained from disclosing such While RA 9285 was passed only in 2004, it nonetheless applies in the
disqualifications or of any other misbehavior by which the instant case since it is a procedural law which has a retroactive effect.
rights of any party have been materially prejudiced; or Likewise, KOGIES filed its application for arbitration before the
(d) That the arbitrators exceeded their powers, or so KCAB on July 1, 1998 and it is still pending because no arbitral
imperfectly executed them, that a mutual, final and definite award has yet been rendered. Thus, RA 9285 is applicable to the
award upon the subject matter submitted to them was not instant case. Well-settled is the rule that procedural laws are
made. construed to be applicable to actions pending and undetermined at the
time of their passage, and are deemed retroactive in that sense and to
Rule 43 that extent. As a general rule, the retroactive application of
procedural laws does not violate any personal rights because no
The Supreme Court noted that Rule 43 of the Rules of Court vested right has yet attached nor arisen from them.
expressly applies to awards, judgments, final orders or resolutions of
quasi-judicial agencies, including voluntary arbitrators authorized by General Principles and Process
law. There are certain principles to keep in mind concerning arbitration
proceedings.
Rule 65
Take note particularly of these three principles:
As for the remedy under Rule 65, the Supreme Court stressed that it 1. Principle of Separability or Severability
will not hesitate to review a voluntary arbitrator’s award where there 2. Principle of Judicial Restraint
3. Competence- Competence
is a showing of grave abuse of authority or discretion amounting to
lack or excess of jurisdiction, and there is no appeal, nor any plain,
Principle of Separability (Discussion)
speedy remedy in the course of law.
Under the pricinple of separability, the arbitration clause is treated as
an agreement independent of the other terms of the contract of which
It should be noted that the Philippine Alternative Dispute Resolution
it forms part. A decision that the contract is null and void shall not
Act of 2004 (“ADR Law”) adopted and incorporated the provisions
entail ipso jure the invalidity of the arbitration clause.
of the UNCITRAL Model Law on International Commercial
Arbitration (“Model Law”), which limits recourse against an

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If there is a judgment by a court that the container contract is
unenforceable, that will not affect the arbitration clause as it is a Q: So where does “prima facie finding” of the court come in?
separate contract by itself. This clause will still govern the How is it prima facie?
relationship of parties concerning the filing of cases in court or Since the finding of the court is only prima facie, this means that the
arbitration board as the case may be. same issue may be passed upon by the arbitral tribunal, which has the
effect of superseding the previous of the court.
If the arbitration clause is still valid, and one of the parties filed a
case in court, allegedly for the enforcement of his right, then the This is the ‘after’ ruling.
court, confronted with the arbitration clause will have to either
dismiss the complaint or suspend the proceedings and compel the Q: What about the “after-after” ruling?
parties to go into arbitration. The same issue on jurisdiction may be passed upon in an action to
vacate or set aside the arbitral award. In this case, it is no longer a
Under the decisions of the three cases, the court also emphasized that prima facie determination of such issue or issues, but will be a full
there could be a complaint to declare the unenforceability of or to review of such issue with due regard, however, to the standard of
declare void the arbitration contract. It is an RTC that has jurisdiction review for arbitral awards.
to do so. But even if there is a pendency of such a case to declare
unenforceability of or to declare void the arbitration contract, it shall Personal Opinion:
not serve to prevent the parties from proceeding to arbitration. In fact, The relation between the prima facie ruling, after ruling, and after-
these cases came out with a principle which the court called the after ruling seems to be confusing at first. Try to apply it in a scenario
Principle of Anti-Suit Injunction. like this one.

The Principle of Anti-Suit Injunction means that the court has no There is a contract between A and B and that contract contains an
authority to issue a writ of injunction to prevent an arbitration from arbitration clause. There was a violation of that contract and A wishes
proceeding or an arbitration board to be constituted for the purpose of to enforce the arbitration clause. B, however, is adamant that the
enforcing the arbitration clause. adamant clause is actually null and void. He states he was only forced
to agree to the arbitration clause. Before the arbitration tribunal is
Competence-Competence constituted, B sought the help of the court to declare the arbitration
The principle of competence-competence states that the arbitral body clause void. The court determined the arbitration clause is really void.
has the power to initially rule on the question of its jurisdiction over a This declaration, however, is merely prima facie and is not final. This
dispute including any objections with respect to the existence or is the prima facie ruling part of ADR.
validity of the arbitration agreement or any condition precedent to the
filing of a request of arbitration. Since the ruling of the court is merely prima facie, the arbitration
tribunal may still be constituted. When it was in fact constituted and
The Special ADR Rules recognize the principle of competence- it did here, the tribunal passed upon on the same issue. It stated the
competence, which means that the arbitral tribunal may initially rule arbitration clause is valid. This is the ‘after’ ruling and is the very
on its own jurisdiction, including any objections with respect to the embodiment of the principle of competence-competence.
existence or validity of the arbitration agreement or any condition
precedent to the filing of a request for arbitration. Since the arbitration tribunal determined the clause is valid, B may
petition the appropriate court again for judicial relief. He may make
Restatement of the Rule: use of Rule 3 under the Special Rules on ADR if there is no arbitral
Before the arbitral tribunal is constituted, the regular courts have award yet, or if there is one, he must vacate or set aside the award
jurisdiction to determine the issue of competence of a tribunal. The under Rule 11. The ruling of the court will be the ‘after-after’ ruling
moment the arbitral tribunal is constituted, the arbitral tribunal has and will be a full review of such issue.
the prerogative to rule on its own jurisdiction.
Read: Rules 3 and 11 of the Special Rules on ADR
There arises a policy of judicial restraint, such that the finding of the
court on the jurisdiction of the arbitral tribunal is at best prima facie. The Supreme Court has inserted in the rules remedies available to the
parties in ordinary cases.
The RTC has the authority to entertain a petition to declare void or
unenforceable an arbitration clause. The decision of the RTC, If the local court or an arbitral body makes a finding that the
however, is merely prima facie. arbitration clause is really valid and binding, it is inappealable.

Q: Does the “prima facie finding” of the court mean that the If the arbitral body makes a finding that the clause is invalid, the
arbitral tribunal can still be formed? decision is appealable to a trial court. If there is a finding that the
Yes. If the court finds that the arbitration agreement is null and void, arbitrator is qualified, a motion for reconsideration, appeal, or a
inoperative or incapable of being performed, a party may petition under Rule 65 against such finding are all prohibited. This is
nevertheless commence arbitration and constitute the arbitral tribunal.

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to emphasize the policy of judicial restraint insofar as arbitration confirmed by the RTC, the arbitral award ceases to be such and is
proceedings are concerned. now a judgment that can be executed under Rule 39. Violation of the
judgment can cause the winning party to file motion for execution of
Principle of Judicial Restraint judgment. In arbitration, an arbitral award is final and executory,
Under this principle, there should be least intervention by the courts especially if confirmed by the RTC.
of law insofar as arbitration proceedings are concerned. If there is an
ongoing arbitration, or even if there is a pending case where there is a The losing party can file a petition with the same RTC which has
right to compel one of the parties to submit to arbitration, the court authority to confirm the award for purpose of vacating, correcting or
should not interfere in the constitution of the arbitral board. modifying said award.

The reasoning behind this principle is that when the parties crafted Q: Supposing the RTC vacates the arbitral award and sets the
the arbitration clause, there is an implicit understanding between the award aside. Can the RTC make its own decision concerning the
parties that an arbitral board, and not a court of justice, should resolve merits of the decision?
their dispute. The court deems this as a valid contract the policy is to Not possible. Although a court of justice can vacate, modify or
give autonomy to the parties in choosing the manner to adjudicate correct an arbitral award, it has no authority to render its own
their disputes. They do not need to go to a court of justice. They can judgment on the merits. The domestic arbitration law and the SC
go to an arbitration body, which is a faster and practical means of Circular said that if the court decides to vacate the award, the court
settling their disputes. does not have the authority to change the conclusions of law of the
arbiter. A court cannot render its own decision on a case already
Q: May an arbitral body grant provisional remedies? submitted for arbitration. While it can vacate, modify or correct the
The circular on arbitration as well as jurisprudence states that yes, an award, and it does so, the court should return the decision to the
arbitration board can be allowed to grant provisional remedies or arbitration panel for further study, or the parties can opt to have a
interim relief. The UNCITRAL Model Law on ICA also grants courts new arbitration panel constituted. The court cannot impose its own
power and jurisdiction to issue interim measures. Thus, a panel of judgment on the merits of the case. The court can review the case,
arbitrators can issue a writ of preliminary injunction, a writ of and modify, vacate or correct the award, but it cannot reverse the
preliminary attachment, they can even appoint a receiver, and issue a findings of facts and conclusions of the arbiter.
protection order so that the property in dispute may be preserved.
Q: Supposing the RTC affirms the arbitral award, does the losing
If a court of justice grants interim relief or provisional relief that is in party still have a recourse?
conflict with the relief granted by the arbitral body, it is the relief The recourse of the losing party is to appeal in the CA via Petition for
granted by the arbitral body that shall prevail. This emanates from the Review under Rule 43. The justification for this remedy is that in the
principle of Anti-Suit Injunction and Principle of Judicial Restraint. enumeration of quasi-judicial bodies whose decision can be reviewed
by the CA, it includes the review of an award made by arbitrators.
Arbitration Process From Rule 43, there can be an appeal to the SC via a Petition for
The complaint in the arbitration board must contain evidence in the Review under Rule 45.
form of attachments and the legal brief, an argument supporting the
party’s stand why his claim must be given weight and granted. The There is a judicial review for reviewing arbitration cases. But the
defendant must file a response of similar composition also with legal reviewing courts will have limited authority concerning the manner
brief. The legal brief is similar to a memorandum (in ordinary civil by which the judgment could be held. The court cannot change the
procedure, when there is an appeal, as a general rule we require filing factual findings of an arbitral body. In case of a review brought to the
of a brief in court.).In short, this is a shortcut of the civil procedure. RTC, CA or SC involving arbitral award, there are few grounds
mentioned. We cannot raise questions of law or fact. We have to
There is no summons issued by the arbitration board, just a notice for follow the grounds mentioned in RA 876.
filing a response. Service thereof can be had by private courier.
The grounds for justifying a court of justice in issuing an order to
Because of the requirement of prior submission of evidence together vacate the award are not the usual grounds of appeal in civil cases.
with the filing of pleadings and legal brief, it is easy to appreciate The courts should see to it that causes should be founded on these
how the arbitration board can easily grasp what the issues are all grounds for granting the vacation of an award.
about and they can right away render an arbitral award. The body,
however, may still require the submission of additional evidence if Furthermore, if there is an appeal in the higher court for a petition for
needed. There is a provision in the ADR rules which states that the review of an arbitral award, the ADR law provides that the appellant
technical rules of evidence will not govern proceedings therein. should file a bond equal to the award given by the panel of
arbitrators. This is an exception to the rule because in ordinary court
Confirmation, Correction or Vacation of Award procedure, there is no need to file an appeal bond as it has been done
Let us say that the winning party wants the arbitral award to be away by BP 129.
treated like a judgment of the court, he simply files with the RTC to
confirm arbitral award. He can do it at any time. If arbitral award is International Commercial Arbitration

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With respect to International Commercial Arbitration, the arbitration An answer-in-intervention is filed if the intervenor wants to side with
may be held here in the Philippines or elsewhere. the defendant.

The remedy of a winning party in a case decided by a foreign court, Q: Since the Rules only allow these two pleadings to be filed, does
for the enforcement thereof in the country, is to file a petition for the that mean the intervenor may not file a cross-claim or a third-
enforcement of the foreign judgment. There is no need to file a party complaint, among others?
petition for recognition of a foreign judgment. Our laws do not The filing of these pleadings does not preclude the intervenor from
recognize a foreign arbitral award as a judgment of a foreign court. It availing of the other pleadings allowed in a civil case (counter-claim,
is just an arbitral award. Thus, the prevailing party in an arbitral cross-claim, third-party complaint, etc.)
award cannot make use of Section 48 under Rule 39. He must avail of
another remedy provided by the SC Circular, which is a petition for Q: Do we recognize a motion to intervene as a matter of right on
recognition and enforcement of foreign arbitral award in the RTC. the part of the intervenor?
Yes, this is found on Rule 3, under the provision on class suits, where
The court can refuse to resolve a petition for recognition and any member of the class has the right to intervene as a matter of right.
enforcement of a foreign arbitral award. This is not like the case of a The court has no option but to grant the intervention.
foreign judgment rendered by a foreign court where the decision is
conclusive upon our courts, subject to the last paragraph of Section (2) Court-mandated intervention
48, Rule 39. We do not apply Section 48, Rule 39 to a foreign arbitral
award as it is not a judgment rendered by a foreign court. In marriage-related cases under Rule 9, if the defendant does not
answer, the court has no authority to declare the defendant in default.
The court will direct the prosecutor to intervene in order to determine
INTERVENTION that there is no collusion between parties.

There are four kinds of intervention in our Rules of Court and various (3) Forced intervention
circulars by the Supreme Court: There are forced interventions under Rule 39 and 57. These two have
to do with garnishment.
(1) Intervention under Rule 19
Under Rule 39, when the court issues a writ of execution and the
Under Rule 19, intervention is upon court’s discretion. A stranger to properties of the losing party have been levied upon, the sheriff may
a case voluntarily introduces himself as a party to the case, but must issue an ancillary writ of garnishment. When the properties of a
seek court permission to do so through a Motion for Intervention. judgment debtor in the possession of a third person are subjected to a
writ of garnishment, that third person becomes a forced intervenor in
The Motion for Intervention should show: the proceedings. That person will have to obey the orders of the court
1. The intervenor has direct interest; issued in relation to the execution, whether the third person likes it or
2. He has a grievance against both parties in the pending case; not.
3. He wants to side with one of the parties; or
4. He is situated in a very unfortunate position wherein the Under Rule 57, if there is a writ of preliminary attachment issued by
judgment of the court could adversely affect his properties.
the court, and following a supplemental writ of garnishment is issued,
and the writs were enforced by the sheriff upon a third person, that
As a general rule, intervention is not a matter of right because the
third person becomes a forced intervenor in the proceedings.
intervenor is required to file a motion subject to the court’s decision.
In the resolution of the motion, the court has the discretion to grant or
(4) Court-encouraged intervention
deny the motion. If the motion is denied, the intervenor can file a
separate case against any one, or both, of the parties. If his case is
Under environmental cases, it is encouraged by the courts for NGOs
already filed, he can seek to have the cases consolidated, in instances
and other parties to intervene whenever there is a petition filed under
where consolidation is proper.
the environmental laws. The court cannot compel the intervention of
these bodies, only to encourage them.
If the motion is granted, intervenor is required to file a pleading in the
form of a complaint-in-intervention or answer-in-intervention.
There are some cases whose positions it appears to be in conflict with
one another in reference to the intervention under Rule 19.
Q: What is a complaint-in-intervention?
A complaint-in-intervention is filed if the intervenor wants to side
Q: Before the court was able to grant a motion for intervention,
with the complainant or is against both complainant and defendant in
the principal case was dismissed. What happens to the motion for
the main complaint.
intervention?
It will render the motion academic. The motion presupposes the
Q: What is an answer-in-intervention?
presence of a principal action. There can be no intervention if there is

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no principal action. As a general rule, intervention is always ancillary there could be a final determination of the case or whether or not the
to a principal action. decision can be finally be executed under the provisions of Rule 39.

For the exception, you need to read Metrobank v. CA. Another situation that the SC allowed an intervention to happen even
if the case is already is on appeal is when the Republic of the
A motion for intervention was filed while the case was pending. The Philippines intervenes in the case. If the Republic of the Philippines,
court granted the intervention. After receipt of the order allowing him via the Solicitor General, intervenes in a case that is already on
to intervene, the party filed a complaint-in-intervention against all the appeal, the SC said that the intervention of the Solicitor General must
parties in the case. Intervenor did not realize that the parties of the be of national importance, since the Solicitor General intervenes only
case were settling. The parties did arrive at an amicable settlement. when the case is of paramount interest to the Republic of the
The parties sought for the dismissal of the case, which was allowed. Philippines.
The intervenor objected to the idea of having his petition dismissed.
The principal parties told the court that it is axiomatic in intervention Q: Are there any instances where intervention is prohibited?
that once the principal action has been terminated, the subsidiary Yes. A motion for intervention is prohibited in summary procedure
action is dismissed also. and small claims proceedings. It is also not available in the writs of
Amparo and Habeas Data.
The Supreme Court held that the intervention was already allowed.
The principle that the contention of the parties was applicable only in Q: What if the motion for intervention is denied? What is the
the instance the motion to intervene was not yet granted. In this case, remedy of the failed intervenor?
the court has already granted the motion to intervene. The interest of This is a gray area, but jurisprudence before the 1997 Rules state that
intervenor was not common with the interest against the other the intervenor may appeal from the denial.
parties, having filed a complaint-in-intervention against both
parties. Thus, the intervention should be allowed to stand, the Q: What if the motion for intervention is granted? May the
standing of which, the intervention is considered a separate case original parties appeal?
against the parties. Here, the intervention survived. Although this is another gray area, the general consensus seems to be,
no, it is unappealable since the grant of the motion for intervention is
The Metrobank case involves a situation where the intervention will interlocutory. They may make use of Rule 65.
survive the dismissal of the main complaint. But for the intervention
to survive, the pleading to be filed must be a complaint-in-
intervention against both parties to the case. This will not be CALENDAR OF CASES
applicable if the intervention was in the form of a complaint-in-
intervention where the intervenor sides with the plaintiff or if the The Rules of Court have adopted the Civil Code principle that in
intervention was via an answer-in-intervention. computing periods, exclude the first day and include the last.

Read: Metrobank v. CA Also, in computing periods, include Saturdays and Sundays.

Q: Is there any exception to the rule that the intervention should Q: What is pretermission of holidays?
only be allowed before judgment is rendered by the trial court? If the last day falls on a Saturday, Sunday, or a holiday, the period
Yes. Although the rule provides a time frame for an intervenor to be will be extended until the next working day.
allowed to intervene, the SC has allowed intervention to take place,
even if there is already a pending appeal before the CA. The Rule is Q: What if it is a holiday in Manila but not Makati?
very clear that intervention should be allowed before judgment is Take note of the phrase ‘in the place where the court sits.’ Thus, if it
rendered by the trial court. After judgment is rendered by the trial is a holiday in Manila but not Makati, and the case is pending with
court, intervention should no longer be allowed. But the Supreme RTC Manila, then there will be pretermission of holidays. However,
Court recognized the propriety of an intervention even if the case was if the case is pending in RTC Makati, even if the complainant or the
already pending appeal in the CA or the SC. defendant lives in Manila (provided it is a real action), pretermission
will not apply.
In the first instance where the court will allow an intervention, even
on appeal, is when the intervenor is an indispensible party. If an Q: What if the party sought to extend the period to file a pleading
intervenor attempts to intervene if the case is already on appeal, that and the due date of that period falls on a holiday?
will save the trial court, CA and SC from another procedural Dean Albano: Pretermission will still apply. If it was otherwise, that
problem. We learned that if the trial court renders a decision in a case would unjustly deprive the party of the full benefit of that extension
where an indispensable party is not impleaded, that decision will (citing Reinier Pacific International Shipping, Inc. v. Capt. Francisco
never be final and executory. So, if on appeal, if the indispensable Gueverra).
party intervenes, then he should be allowed to do so, because if he is
allowed, that will cure all the procedural effects that will be present
in this particular case. That will solve the problem of whether or not

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MODES OF DISCOVERY The same sanction under Rule 25 Section 6 is practically the same for
admissions under Rule 26. The sanction under Rule 26 is also similar
The modes of discovery that we have in civil procedure are also to the rule on actionable documents. If the other party fails to make a
available in a criminal case. response to a request for admission of any document, the genuineness
and due execution of that document shall be deemed admitted. And
The Supreme Court in the WEBB CASE came out with the principle the admission, just like the rule in actionable documents, will be
that the Modes of Discovery available in civil cases are also available considered as a judicial admission.
in criminal cases. The only difference is that the use of the modes of
discovery in a criminal case should not violate or derogate the Q: Is there a conflict between Rule 26, or admission of adverse
constitutional rights of the accused. party, and the rule on actionable documents?
No. Rule 26 involves only evidentiary matters, not documents which
For instance, in a civil case, there is nothing wrong if the plaintiff form basis of the cause of action or defense. In other words, Rule 26
takes the deposition of the defendant or the other way around. But in involves non-actionable documents.
a criminal case, there is something wrong if the prosecutor takes the
deposition of the accused. The prosecutor cannot take the deposition Other than these two rules, there is nothing in our Rules that requires
of the accused in a criminal case since this is a violation of the a party to avail of the modes of discovery. Availment of a mode of
constitutional rights of the accused. The prosecutor, however, can discovery, as a general rule, is purely voluntary on the part of an
take the deposition of a witness whom the accused wants to present in interested party.
court, so long as the witness is not the spouse of the accused (due to
marital privilege, or the rule on evidence precluding a spouse being a Q: Do modes of discovery require leave of court?
witness against the other spouse). It depends. Another basic principle in discovery measures is that after
an answer has been filed by the defendant, availment of the modes of
But in a civil case, there is nothing irregular about either the plaintiff discovery does not require permission of the court. The plaintiff or
or defendant being subject to deposition. This is even encouraged by defendant is given the prerogative to avail of the modes like taking of
the rules found in civil procedure. depositions or interrogatories to parties or admissions to parties. The
other modes of discovery will ALWAYS require leave of court. Thus
Q: Do the rules compel litigants to avail modes of discovery? production and inspection of documents or things in court will always
In Rule 18, the plaintiff is asked to indicate if he desires to make use require leave of court, as does physical and mental examination of a
modes of discovery or to use ADR. They are required to manifest that person. But in the case of depositions pending trial, interrogatories or
to the court. admissions, we do not need leave of court so long as the defendant
has already filed an answer.
Q: Let us say that the plaintiff asked for leave to use modes of
discovery, but he failed to do so. Can the court compel the Q: If it does not require permission from the court, who will take
plaintiff to avail it? the deposition?
No, the court cannot compel, merely encourage the use of modes of According to the Rules, the taking of depositions may be taken before
discovery. Modes of discovery are always voluntary, not mandatory, a notary public or any person who can administer oaths.
although indirectly, the Rules have instances where the law compels
litigant to use modes of discovery or otherwise he will suffer some Deposition Before an Action or on Appeal
sanctions given in the Rules. This is called in the past as perpetuation of testimonies. Strictly, it
is not a mode of discovery, as modes of discovery assume that there
Take, for example, Rule 25 and Rule 26. is a pending case in court. A deposition before an action does not
require an action to be pending, and is thus treated as an independent
In interrogatories to parties, the last section of Rule 25 (Section 6) action by itself. This is availed of by filing a Petition for Perpetuation
provides that while the plaintiff can compel the defendant, an adverse of Testimony, as there is no action filed yet.
party, to testify during the trial of the case as a witness for the
plaintiff, and at the same time, the defendant can compel the plaintiff Q: Since this is an independent proceeding, with what court
to testify as a witness during the trial, this cannot be done unless the should we file the petition?
plaintiff or defendant has previously served upon the party concerned RTC. If we follow BP 129, that petition would be cognizable under
an interrogatory. If the plaintiff serves a subpoena ad testificandum to the Regional Trial Court since it is an independent action incapable
the defendant, requiring the defendant to appear and testify in court of pecuniary estimation. Regardless of the contemplated action which
on behalf of the plaintiff, the defendant can ask for that subpoena to we are going to file, the petition is always cognizable by an RTC.
be quashed for failure of the plaintiff to comply with requirements
contained in Rule 25 Section 6. Q: Will the court issue summons?
No. There is no respondent. The court will simply issue a notice that
Where the adverse party is a corporation, the bar on being compelled will inform potential adversaries of the request for the perpetuation of
to testify extends to the corporation’s officers. testimony.

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Q: If the case is under appeal, what court will take depositions RTC Manila may not compel the witness to go to Manila even if the
pending appeal? interested party is willing to pay for his transportation. The reason is
The trial court still exercises jurisdiction to allow the taking of a that the witness may invoke his viatory right.
deposition pending appeal. It is not the appellate court that has the
authority to order the taking of a deposition pending appeal, it is still Where the witness resides more than one hundred (100) kilometers
the court of origin. from his residence to the place where he is to testify by the ordinary
course of travel, the witness may invoke that he be not allowed to
Taking of Depositions testify. This is known as invoking his viatory right.
The court has allowed the use of these modes of discovery as a
fishing expedition. Practically there is no limitation as to what Q: What is the remedy of the interested party if he really wishes
matters can be inquired into insofar as availment of discovery to obtain the deposition of the Cebu or Davao resident?
measures are concerned. It is not required that the matters sought be The interested party may ask any RTC in Cebu or Davao to issue a
discovered are relevant right away to the issues presented in the case. subpoena. The interested party, therefore, and his counsel, must go to
Cebu or Davao to take the deposition of the faraway resident.
When the law says that the statutes of discovery allow a fishing
expedition, it does not mean to say that the statutes of discovery are Q: What if the potential witness is in Ikebukuro, Japan?
intended only to gather evidence on behalf of the interested party. He The interested party has to make use of a commission or letters
may want to obtain information only for tactical advantage during the rogatory.
course of the case. He does not have to present evidence in court
information that is gathered by him via these modes of discovery. Q: What is a commission?
A commission is a request to the consulate of the Philippines in the
Q: How will this help declogging the heavy docket of the court? foreign country to take the deposition of the person residing in that
It is possible that, after the parties have availed of these modes of foreign country.
discovery, they will enter into a stipulation of facts.
Q: What is a letter rogatory?
If there is a stipulation of facts, it may be possible that there will be It is a request issued by a local court addressed to a foreign court
no more probandum, no more trial. At the very least there will be a requesting the latter to take the deposition of a person who is within
shorter trial since the parties have already agreed on some of the facts the territorial jurisdiction of that foreign country.
of the case.
The letter rogatory will be passed to the DFA, who will in turn pass
If the plaintiff was able to gather information, let us say, from a the letter to our consulate in that foreign country, and who (meaning,
witness who according to the pre-trial brief of the defendant would be the consul) will in turn deliver the letter to the foreign court.
a principal witness for the defendant, it does not mean that the
deposition given by such witness will be admissible in court because Q: After the potential witness has given his deposition, and later
of the deposition. The fact that a party has taken the deposition of a on, this witness receives a subpoena requiring him to give
potential witness does not mean to say that this potential witness will testimony in open court, can the potential witness file a motion to
now be excused from going to court to give his testimony. The giving quash subpoena as he had given a deposition of his testimony?
of deposition is different from the giving of testimony in open court. No, as the giving of a deposition cannot take the place of giving
testimony in open court. The deponent can always be compelled to
A party may give his deposition, but it does not mean that he is give his testimony in open court. Though his testimony may be a
excused from testifying in court. In fact, the Rules require that if the repetition of his deposition, it still does not matter. He still has to give
party has already given his deposition, he is still required to testify in his testimony in open court.
court. His deposition will not take the place of his the testimony in
court. This is because the taking of his deposition is only a discovery Q: If the witness has given testimony in open court, what is the
measure. The deponent does not appear before the trial court to use of the deposition he had previously given?
testify. He gives his deposition not before a trial judge, but before Deposition previously given can be used to impeach the witness or
another person who is simply authorized to administer oaths. corroborate the witness’ statements in the testimony. This is the
principle of evidence called ‘laying the predicate’.
Q: If the case is pending here in Manila, and there is a potential
witness whose deposition is required by the plaintiff, and this Q: What is ‘laying the predicate’?
witness is also a resident of Manila, can the plaintiff require this This refers to statements, oral or documentary, made by the witness
potential witness to give his deposition? sought to be impeached on occasions other than the trial in which he
Yes. is testifying.

Q: What if the witness is in Cebu or Davao? Q: What are the elements of laying the predicate?
Dean Riano:

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1. The alleged statements must be related to the witness For example, in subpoena duces tecum, if the books or documents are
including the circumstances of the times and places and the totally irrelevant to the issue, or it would involve trade secrets, it may
persons present. If the statements are in writing they must be quashed by the interested party.
be shown to him;
2. He must be asked whether he made such statements and
also to explain them if he admits making those statements If it is subpoena ad testificandum, the person may quash the subpoena
(p. 327). if the interested party did not pay the former’s transportation fee or
witness fee. It is a good ground for the quashal of the subpoena.
Q: When is the rule on laying the predicate inapplicable?
Dean Regalado: It is inapplicable if the prior inconsistent statement Q: How do we take the deposition of a witness?
appears in a deposition of the adverse party, and not a mere witness, There are two ways. It may be an oral examination, or upon written
that adverse party who testifies may be impeached without laying the interrogatories.
predicate as such prior statements are in the nature of admissions of
said adverse party (Vol. II, p. 852). The procedure between the two is practically the same, except that in
deposition upon oral examination, the deponent is personally present,
Q: What is the purpose of laying the predicate? the lawyer for the plaintiff is personally present, and the lawyer for
The purpose is to allow the witness to admit or deny the prior the defendant is also personally present. They will conduct a hearing
statement and afford him an opportunity to explain the same. of sorts; there will be direct examination, cross, re-direct, re-cross.
Non-compliance with the foundational elements for this mode of Everything is verbal and is presented before the presiding officer of
impeachment will be a ground for an objection based on “improper that proceeding.
impeachment.” Over a timely objection, extrinsic evidence of a prior
inconsistent statement without the required foundation is not If it is deposition upon written interrogatories, the lawyers do not
admissible. have to be personally present. They just have to give a questionnaire
in writing. These papers will be sent to the presiding officer who will
Q: Is it possible that the deposition can be the testimony of the read the questions and jot down the answers given by the deponent.
witness?
It is possible. Q: May the presiding officer rule on objections?
No. Even if the presiding officer is a judge, he cannot rule on the
Where the witness resides more than one hundred (100) kilometers objections. The presiding officer is unaware of what the issues really
from his residence to the place where he is to testify by the ordinary are. This is one of the reasons why depositions, as a general rule, are
course of travel, the witness may invoke that he be not allowed to not equivalent to testimony in open court. At least in testimony in
testify. This is known as invoking his viatory right. The witness can open court, the objections will be ruled by the judged.
ask the court that he be excused from giving his testimony in open
court. Even if the court issues a subpoena, the witness may ignore Q: What happens if there really is a objection during the taking
such subpoena. He cannot be cited in contempt for disobedience. The of depositions? Do we do away with objections?
remedy of the court is to allow the taking of the deposition, and the No. The presiding officer, however, will simply say, “The objection
court can then consider the deposition taken as his testimony. In other is noted but the witness should still answer the question.”
words, the fact that a deposition has already been taken from a person
does not mean that the said person will be excused thereafter from Q: What if the deponent refuses to answer?
going to court in order to be a witness. That is possible only in The interested party has to go back to the court of origin and ask for
exceptional cases mentioned in Rules, one of them being when the the issuance of an order directing the witness to give an answer for
witness invokes his viatory right. Or even if there is no viatory right, that particular question.
if the witness/deponent is physically incapable of going to court in
order to testify, or is dead, the court can consider the deposition Q: May the deponent or any of the interested parties file a motion
previously given as his testimony in court. to terminate or limit the examination?
Yes. If the witness or any of the parties can convince the court that
Q: What does ‘ordinary course of travel’ mean? the taking of deposition is designed to primarily annoy or embarrass
It means land transportation. Thus, even if Cebu is 45 minutes away the witness, they may ask the court of origin to issue an order to
from Manila, the RTC in Manila may not bind a person in Cebu with terminate the taking of the deposition.
a subpoena.
Q: What happens if the deposition is over?
Q: Aside from invoking his viatory right, what other reasons may The presiding officer will send the transcript of the proceedings to the
a person quash a subpoena? court of origin under seal.
He may quash the subpoena if it is not properly issued or served upon
the witness. Q: Will this transcript be considered evidence?
No. In order that the transcript will be considered as evidence, it
should be submitted, it should be offered as documentary evidence by
anyone of the interested parties. And it is during this offer of the

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transcript as evidence when the trial court can rule on the objections
that were noted by the presiding officer. This time the trial court will There is also judgment based upon a compromise. If the parties
have the authority to rule on the objections because the trial court is entered into a compromise agreement during pre-trial, and the court
the one that is actually trying the case. concurs with the validity of the compromise agreement, the court will
render a judgment based upon compromise without going into trial.
Production and Inspection of Documents and Things
Q: What is the difference between a subpoena duces tecum and In summary judgments, there is a trial but it is not a full-blown trial.
this mode of discovery?
First, in a subpoena duces tecum, the process may be directed either Furthermore, under demurrer to evidence, although there is a trial, it
to a party to the case or a plain witness to the case. When it comes to is not a full-blown trial. Since demurrer to evidence occurs only after
production of documents as a mode of discovery, it could only be the plaintiff has presented his evidence, and before the defendant
addressed to a party. presented his, only a half of the trial contemplated under Rule 30 has
occurred.
Second, they differ in purpose. In a subpoena duces tecum, there is an
assumption that the interested party will introduce these documents But in instances where there are genuine triable issues, and the parties
as evidence. On the other hand, in production of documents, the only cannot agree to a stipulation of facts, the court will have to conduct a
purpose is for discovery. trial. The parties are given the opportunity to make use of evidentiary
rules. There is no offer of evidence during pre-trial. At most, if there
Third, the scope of production and inspection of documents and is evidence presented during pre-trial, it is only for marking them as
things are broader. It may involve real estate, it may involve entry exhibits. In a pre-trial brief, the parties just identify the documentary
into or inspection of land. Since land is incapable of manual delivery, evidence, the real evidence and testimonial evidence in the form of
it cannot be subject to a subpoena duces tecum. affidavits.

Q: What if the party refuses to obey the order of production and The pre-trial order shall govern the trial of the case. Only the issues
inspection of documents? specified in the pre-trial order will be proven in trial. But this Rule is
Dean Albano: He will be cited in contempt. A person guilty of not strict because we allow amendment to conform to evidence. If we
disobedience of or resistance to a lawful order of a court or commits follow strictly the Rules and we do not allow amendment to conform
any improper conduct tending, directly or indirectly, to impede, to evidence, then only the issues specified in the pre-trial order will
obstruct, or degrade the administration of justice may be punished for be tried.
indirect contempt.
Q: If there are genuine triable issues, can the court still do away
with the trial?
TRIAL Yes. The parties can help the court avoid a trial if the parties
stipulates on facts that are in dispute. If the parties submit to the court
Q: Can a trial court decide a case properly and validly if the complete stipulation of facts, and the court need only review the law
court does not conduct a pre-trial or a trial for that matter? applicable (questions of law), then the court can render a decision on
Yes. Although pre-trial is mandatory and though trial must be had the case without conducting a trial. Trial is only necessary if there are
due to triable issues, the court can just skip these stages and render factual issues. The courts are presumed to know the law applicable to
judgment. a given state of facts. The trial contemplated under Rule 30 is a trial
of facts in dispute. But if the parties decide that these facts are no
For example, in a judgment by default, there is no trial and no pre- longer disputed, and they manifested to the court that they agree fully
trial. Under Rule 9, if the court declares defendant in default since he to the existence of these facts, then the trial may be avoided. The next
did not file an answer, one of the options is to immediately render a stage will just be the rendition of judgment.
judgment without requiring plaintiff to present his evidence ex parte.
In effect the trial court has skipped from the filing of pleadings to the Q: Are verbal stipulation of facts allowed?
judgment phase immediately. Yes. In civil procedure, although there is a section in Rule 30 which
provides for written stipulation on facts, the court liberally allows
Q: Supposedly the defendant filed his answer, can we still do verbal stipulations. For example, during the pre-trial conference,
away with the trial? everything stipulated upon may be done verbally. But since the pre-
Yes, we follow the special kinds of judgments whenever an answer is trial conference is part of the court proceedings, everything is
filed as found under the rules. recorded by the court stenographer. The stenographer will transcribe
the records and what the court will readily decide that there has been
There can be a judgment on the pleadings if the answer does not a stipulation of facts between the parties.
raise any issue at all, or even admits the allegations in the pleadings.
There is no pre-trial and trial in this case. The plaintiff can move right Q: What is the order of trial?
away for a judgment on the pleadings. The order of trial in Rule 30 is the general rule. The order of trial
follows the sequence of argumentation of pleadings. The affirmative

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side, the plaintiff, will first present his side, then the negative side, Contemplates a single action
the defendant, will set forth his defenses. Once the defendant is done Involves several actions having having a number of claims,
presenting his evidence, then the court may allow parties to submit a common question of law or counterclaims, cross-claims,
rebuttal evidence or even sur-rebuttal evidence. But if the court does fact which may be jointly tried third-party complaints, or
not allow presentation of rebuttal evidence or sur-rebuttal evidence, (Sec.1, Rule 31). issues which may be separately
the trial will end after the defendant has rest his case. tried.

Q: Can the court terminate the case after the defendant rests?
Q: When is consolidation proper?
Rule 30 gives an option to the judge to require the parties to submit
1. There are two or more cases;
their respective memoranda to help the court in arriving at a decision.
2. These cases have common questions of law or fact; and
3. They are pending in the same court.
Q: Does failure to submit memoranda when required to do so
result in dismissal of the case? Q: What are the ways of consolidating cases?
Yes, under Rule 17, for failure to obey lawful court orders. A:
Consolidation Test-Case
Q: May the order of trial be reversed? Recasting the Cases
Proper Method
The order of trial can be changed. If the court requires defendant to
present evidence ahead, then there is a reverse order of trial. If the By hearing only
defendant set up affirmative defenses like for example, payment, then the principal case
the order of trial is reversed. Under our Rules, if the defendant sets up Reshaping of the and suspending the
only an affirmative defense, there is no negative defense, then that cases by amending hearing on the
constitutes a hypothetical admission of the allegations contained in the pleading, It is a joint trial with other cases until
the complaint. dismissing some joint decision, the judgment has been
cases and retaining cases retaining their rendered in the
If the defendant hypothetically admits, for purposes of trial, that he only one case. There original docket principal case. The
incurred a loan, then there really is no need for the plaintiff to prove must be joinder of numbers. cases retain their
the existence of the loan. It is now the duty of the defendant to show causes of action and original docket
that the loan had been paid, so the order of trial is changed. Thus, the of parties. numbers (Riano,
defendant is allowed to present his evidence first. Thereafter, if the Civil Procedure, p.
plaintiff does not find it necessary to file rebuttal evidence, the court 96, 2009 ed.).
will consider the case as submitted for decision.
Q: What is the rule on consolidation of cases?
Q: Who will receive the evidence? Is it always the judge? As a general rule, consolidation is discretionary upon the court to
Generally, when a trial is conducted by the court, it is the judge avoid multiplicity of suits, guard against oppression or abuse, prevent
appointed in that sala that should sit in the proceedings. But there are delay, clear congested dockets, and simplify the work of the trial
certain instances when the judge may excuse himself from presiding court and save unnecessary costs and expenses.
the case.
As an exception, consolidation becomes a matter of duty:
The first one is when the parties so agree; second, when the parties 1. If two or more cases are pending before the same judge; or
appoints a commissioner for the presentation of evidence; and third, 2. If filed with the different branches of the same RTC and
when the branch clerk of court, upon delegation of the judge, may sit one of such cases has not been partially tried.
in ex parte presentation of evidence. However, in these instances, it is
still the judge who will have to write and sign the decision. A consolidated case may be appealed separately.

Q: When may the branch clerk of court accept evidence in lieu of Q: May there be consolidation if the cases are all pending in the
the judge? same court (like the Regional Trial Court of Cebu) but different
1. In default proceedings; salas (Branches 1, 2, and 3)?
2. In ex parte proceedings; and In these cases, the internal rules of RTCs will be followed. The judge
3. If the parties agree that it is the branch clerk of court who in one branch cannot issue an order directing the others to agree to
should preside when the evidence is presented by them. the consolidation of cases, as there is a need to coordinate with each
branch first. One judge cannot simply issue an order to be obeyed by
Consolidation of Cases another judge of the same level. The internal rules of the RTC state
Q: Distinguish consolidation of cases from severance. that if there is a consolidation consented by all the judges, it will be
A: tried by the sala with the lowest docket number. So it is possible so
Consolidation Severance long as there is consent of all the judges.

Q: What if the cases are pending in different courts?

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If one case is in RTC Manila, and the other is in RTC Bulacan, then to file his claim within the time fixed by the court in the notice, then
the Supreme Court may order consolidation. Only the Supreme Court the claim is barred forever. However, both statute of non-claims and
has the power to consolidate these cases. Even if the parties agree, or statute of limitations must concur in order for a creditor to collect.
the judges agree, they cannot consolidate the cases on their own.
Q: What is the difference between trial by commissioners and the
The opposite of consolidation is severance of several issues contained delegation to the clerk of court under Rule 30?
in one complaint. A trial court is given the authority to tell the parties The power of a commissioner is much broader than the clerk of court.
that the trial to be conducted is only for the purpose of hearing a third Furthermore, the clerk of court has to be a lawyer. A commissioner
party complaint, a counterclaim, or a cross-claim, depending upon the need not be one. A commissioner must in fact have a profession that
discretion of the court corresponds to the issue. If the issue calls for knowledge on mining,
for example, the commissioner must be at least a mining engineer or
Trial by Commissioners a geologist.
The language used in the Rule is not mandatory. This is discretionary
on the court. A commissioner has the power to rule on objections while the clerk
of court cannot.
There are, however, exceptional circumstances under the Rules where
there is mandatory appointment of commissioners. These are: Finally, a commissioner may be appointed to try issues that arise
1. In expropriation proceedings, for determining the value of even after the judgment has become final and executory. This is
just compensation; possible in Rule 39. Since the clerk of court is limited to reception to
2. In partition cases, if there is a need to determine how the evidence, then this prerogative does not pertain to them.
property will be divided between the co-owners;
3. Under Rule 39, Sections 36 and 37, when the judgment was
not executed fully or no execution was had; and
4. In the settlement of estates of deceased persons, money JUDGMENTS
claims have to be submitted to the settlement court within
the statute of non-claims, and have to be responded to by Under Rule 36, Section 1, judgment or final orders should have these
the executor or administrator. If administrator of the estate four formal requisites in order to be valid:
contests the validity of these claims, then these claims will
become contested claims, and the court may appoint a 3. It must be written personally and directly by the judge;
commissioner to determine these contested claims. 4. It must be signed by the judge;
5. Must be given to the branch clerk of court; and
6. Should include basis from factual findings and conclusions
Q: What is the statute of non-claims? of law
It is a period fixed by the courts for the filing of claims against the
estate for examination and allowance. Q: What are the other requirements of a valid judgment?
1. The court must have authority to hear and determine the
Q: When should claims be filed? case;
As a general rule, within the time fixed in the notice which shall not 2. The court must obtain jurisdiction over the parties or the
be more than 12 months nor less than 6 months after the date of the res;
first publication. Such period once fixed by the court is mandatory. 3. The parties must have been given an opportunity to adduce
evidence; and
Otherwise, the claims are barred forever.
4. The evidence must have been considered by the tribunal in
deciding the case.
Belated claims, however, are an exception.
Do not forget the ruling in Shimizu v. Magsalin. We discussed this in
Q: What is the rule on belated claims? Rule 17. A final order of dismissal under Rule 17, which is generally
Belated claims may be filed even beyond the period fixed by the a dismissal with prejudice, is void if there is no explanation how and
court: why the case was dismissed by failure to prosecute.
1. On application of a creditor who has failed to file his claim
within the time previously limited, at any time before an Also, you should take note; these requisites under Rule 30, Section 1
order of distribution is entered, the court may, for just
apply only to judgments or final orders. It does not apply if the order
causes, allow such claim to be filed not exceeding 1 month
from the order allowing belated claims; or is not with prejudice.
2. Where the estate filed a claim against the creditor or
claimant who failed to present his claim against the estate Q: A case is pending in RTC Davao under Judge A. He presided
within the period fixed by the probate court for the during the presentation of evidence by both parties. After
settlement of such claims, the creditor will be allowed to presentation of evidence, Judge A retires. Who will decide the
set up the same as a counterclaim to the action filed by the case?
estate against him.
The successor judge takes over and decides the case.
Statute of non-claims supersedes the Statute of Limitations insofar as
the debts of deceased persons are concerned because if a creditor fails

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If the former judge makes the decision and turned it over to the clerk principle of entry of judgment is very important in implementing the
of court, who then promulgates it and sends the said decision by mail, succeeding procedural principles relating to execution of judgment,
that judgment is void. and also in determining if a particular remedy has been availed of on
time.
Q: What if Judge A is transferred from RTC Davao to RTC
Manila, can he pen the decision and send it to his former sala? Let us take another example aside from Rule 39. If you recall, relief
Under the old Judiciary Act, that is a valid judgment. If the judge of judgments has two periods to be taken into account; 60 days from
who tried the case is subsequently transferred, he retains authority to notice and 6 months from ENTRY of judgment.
try the case and render a valid judgment thereon.
Q: What are those which are not considered as decisions?
Q: Do we still follow the old Judiciary Act in this regard? 1. Resolutions of the Supreme Court denying the petitions to
Yes. It is still in force insofar as its provisions are not in conflict with review decisions of Court of Appeals.
BP 129. Since this situation is not covered by BP 129, then it is still a 2. Minute Resolutions – if issued by SC denying or dismissing
a petition or a motion for reconsideration for lack of merit,
valid provision.
it is understood that the challenged decision or order is
deemed sustained.
Q: What if Judge A is promoted to become a Justice of the CA, 3. Interlocutory Orders– those that determine incidental
can he validly pen the judgment? matters that do not touch on the merits of the case or put an
No. He can no longer decide the case. It is only when the trial judge end to the proceedings, e.g. Order denying a motion to
who has heard the case is given a new assignment to a coordinate dismiss, granting an extension of time or authorizing an
court shall the Judiciary Act of 1948 will give him authority to render amendment.
a valid decision.
Dean Albano: Minute resolutions are considered as res judicata with
respect to the same subject matter and the same issues concerning the
Q: Is it possible to have a final judgment even if there is strictly
same parties. It is not binding precedent if it involves other parties or
no adjudication on the merits?
another subject matter (citing Nationwide Security and Allied
Yes. The two-dismissal rule is with prejudice even if there is strictly
Services v. Valderama).
no adjudication on the merits. The same with nolle prosequi; the fact
that the plaintiff did not present his evidence in chief; the fact that the
Q: What is a judgment without trial?
party disobeyed the court; or even in pre-trial, where the plaintiff did
The theory of a summary judgment is that although an answer may
not appear during the conference. These are several instances where
on its face appear to tender issues—requiring trial—yet if it is
there is a dismissal with prejudice even if strictly speaking the merits
demonstrated by affidavits, depositions, or admissions that those
of the case were not adjudicated by the court.
issues are not genuine, but sham or fictitious, the court is justified in
dispensing with the trial and rendering summary judgment for the
Entry of Judgment
plaintiff. The court is expected to act chiefly on the basis of the
We have a new concept of entry of judgment. Under Rule 36, entry
affidavits, depositions, admissions submitted by the movants, and
of judgment takes place by operation of law. Even if there is no
those of the other party in opposition thereto. The hearing
physical or actual entry of judgment, under Rule 36, the
contemplated (with 10-day notice) is for the purpose of determining
judgment is deemed entered upon the expiration of the period to
whether the issues are genuine or not, not to receive evidence on the
appeal if no appeal is perfected. Hence, if no appeal is perfected,
issues set up in the pleadings. A hearing is not thus de rigueur. The
right after the expiration of the 15/30-day period as the case may be,
matter may be resolved, and usually is, on the basis of affidavits,
that judgment is AUTOMATICALLY entered, and becomes final
depositions, admissions. Under the circumstances of the case, a
and executory. Even if the clerk of court enters that in the records a
hearing would serve no purpose, and clearly unnecessary. The
year later, it is not the physical entry on the record by the clerk of
summary judgment is justified, considering the absence of opposing
court that will reckon the entry of judgment.
affidavits to contradict the affidavits.

Q: Why do we consider entry of judgment as a very important


Interlocutory Judgments
procedural principle?
Other sections of Rule 36 give us other classifications of judgment.
In Rule 39, if a judgment has become final and executory, then the
court has the ministerial duty to grant a motion for execution and to
Q: What is a separate judgment?
order execution of the judgment. In Rule 39 also, there is a period
It is a judgment rendered disposing of a claim among several others
fixed for that judgment to be executed. The first five years from entry
presented in a case, after a determination of the issues material to a
is the period to execute the judgment via a motion, and the second 5-
particular claim and all counterclaims arising out of the transaction or
year period is for the revival of the judgment. We are more interested
occurrence which is the subject matter of said claim.
in the first 5-year period within which to execute the judgment
through a motion.
Q: What are several judgments?
These are rendered by a court against one or more defendants and not
If we reckon period under Rule 39, insofar as the first 5-year period is
against all of them, leaving the action to proceed against the others.
concerned, it is 5 years from entry of judgment. This is why the

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It is one rendered by the court when a party expressly
The need for this classification of judgment stems from the principle agrees to the other party’s claim or acknowledges the
of civil actions that encourage joinder of courses of action. If there validity of the claim against him. Do not confuse this with
confession of judgment. This is also known as a judgment
are several causes of action embodied in a complaint, it is proper for
relicta verificationem, cognovit actionem, or even cognovit
the court after the trial of a particular cause of action, that it actionem relictu verificetione.
should render a judgment for that particular cause of action. If
there is joinder of parties, the court has also the prerogative to 3. Judgment upon the merits
render a separate decision concerning a particular party if his It is one that is rendered after consideration of the evidence
claim has already been terminated when the presentation of submitted by the parties during the trial of the case.
evidence on his claim is finished.
4. Clarificatory judgment
These are decisions that are exceptional, in the sense that we expect a It is rendered to clarify an ambiguous judgment or one
difficult to comply with.
trial court to make only one judgment in one particular case. It is
unusual for the court to render several decisions involving one
5. Judgment nunc pro tunc (lit. now for then)
particular case. That is why, even if Rule 36 authorizes the court to A judgment intended to enter into the record the acts which
promulgate separate or several decisions, if you will go to Rule 41, had already been done, but which do not appear in the
Appeal From The RTCs, in Section 2, it is mentioned that if the records. Its only function is to record some act of the court
court renders separate or several judgments, although we call which was done at a former time, but which was not then
these as judgments, they are not appealable. recorded, in order to make the record speak the truth,
without any changes in substance or any material respect.
These parties will have to wait until the court finally decides the case
6. Judgment sin perjuicio (lit. without prejudice)
in its entirety, unless the court allows the appeal to continue. Usually,
A judgment without a statement of the facts in support of
the court does not allow it, because that will lead to a situation where its conclusion. This is not allowed.
several appeals emanate from one case, which is also frowned upon
by the SC. There should only be one decision in a particular case, and 7. Judgment by default
there should be one appeal if a party decides to appeal. Rendered by the court following a default order or after it
received, ex parte, plaintiff’s evidence.
This is also the reason why these decisions are sometimes referred to
as interlocutory judgments, because like interlocutory orders they 8. Judgment on the pleadings
cannot be appealed by express provision of Rule 41, although they Proper when an answer fails to tender an issue because of a
general or insufficient denial of the material allegations of
can be validly rendered by the court.
the complaint or when the answer admits the material
allegations of the adverse party's pleading.
So if you come across that term in your examinations, interlocutory
judgments, and you find the use of ‘interlocutory’ and ‘judgment’ to 9. Summary judgment
be in conflict with one another, you apply the following view: A One granted by the court for the prompt disposition of civil
judgment, technically, cannot be interlocutory. It is an adjudication of actions wherein it clearly appears that there are no genuine
the merits. If you characterize a judgment as interlocutory, it is only issue or controversy as to any material fact.
to emphasize that the judgment, although it resolves the merits of the
case, cannot be appealed without the permission of the trial judge. 10. Several judgment
It is one rendered by a court against one or more defendants
Q: May the plaintiff raise on certiorari under Rule 65 the and not against all of them, leaving the action to proceed
granting of a motion to dismiss of one defendant, if there are two against the others.
or more of them defendants?
Yes. Since a several judgment is unappealable (unless it is allowed by 11. Separate judgment
It is one rendered disposing of a claim among several
the court), under Rule 41 it may be subject to Rule 65.
others presented in a case, after a determination of the
issues material to a particular claim and all counterclaims
arising out of the transaction or occurrence which is the
OTHER KINDS OF JUDGMENTS subject matter of said claim.

Q: What are the different kinds of judgment under the Rules? 12. Special judgment
One which can only be complied with by the judgment
1. Judgment based upon a compromise
obligor because of his personal qualifications or
One conferred by the court on the basis of a compromise
circumstances or one that requires the performance of an
agreement entered into between the parties. This is known
act other than:
also as a judgment by consent.
a. Payment of money; and
b. Sale of real and personal property.
2. Judgment by confession
13. Judgment for specific acts

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Applicable in cases of: Under the Rules, if the defendant’s motion for judgment on demurrer
a) Conveyance, delivery of deeds, or other specific to evidence is denied, it is the duty of the defendant to present now
acts, vesting title; his own evidence. So he has two remedies – he may either present his
b) Sale of real or personal property;
own evidence, or make use of Rule 65. But remember, Rule 65 may
c) Delivery or restitution of real property;
d) Removal of improvements on property subject of be used only if there is grave abuse of discretion amounting to lack or
execution; or excess of jurisdiction on the part of the court. It cannot be used willy-
e) Delivery of personal property. nilly, otherwise there will be serious consequences.

14. Judgment on demurrer to evidence Q: Will the defendant present evidence with the motion for
A judgment rendered by the court dismissing a case upon judgment on demurrer to evidence?
motion of the defendant, made after plaintiff has rested his No.
case, on the ground that upon the facts presented by the
plaintiff and the law on the matter, plaintiff has not shown
any right to relief. Demurrer to Evidence in a Civil and Criminal Case
Remember the rules of demurrer to evidence in civil procedure and
15. Conditional judgment always compare them to demurrer in a criminal case. These topics are
It is one the effectivity of which depends upon the usually involved in Bar Examinations.
occurrence or non-occurrence of an event.
In a civil case, if a defendant files a motion for the dismissal of the
16. Final judgment complaint based on insufficiency of evidence, and that motion is
One which disposes of the whole subject matter or
denied, what the defendant will do is to go ahead with the trial and
terminates the particular proceedings or action, leaving
nothing to be done by the court but to enforce by execution present his evidence. After the defendant has rested, the court will
what has been determined. render the decision. The decision is just an ordinary judgment on the
merits of the case under Rule 36. It is no longer a special type of a
17. Memorandum decision judgment.
One in which the appellate court may adopt by reference,
the findings of facts and conclusions of law contained in But if the trial court grants the motion, it means the court will order
the decision appealed from. It is found in Rule 51. the dismissal of the case. The dismissal is a judgment on the merits of
the case. The winning party is the defendant. The plaintiff can appeal
the dismissal.
DEMURRER TO EVIDENCE IN CIVIL CASES
Usually, if the trial court is the RTC, it will be brought to the CA. So,
In a judgment on demurrer to evidence, only the plaintiff presented it is brought to the CA. The CA will have to review the case based
evidence. The judgment of dismissal is based on the insufficiency of solely on the records transferred to it by the RTC. The records will
evidence to support the claim. This is the only ground. show that the defendant has not presented any evidence at all. Right
away, the defendant will be at a disadvantage when the case is
When the plaintiff rests his case, the defendant, instead of presenting reviewed by an appellate court. The court will review only the
his evidence, files a Motion for Judgment on Demurrer to Evidence. evidence presented by the plaintiff. There is a great possibility that
The defendant asks the court for an order to dismiss the case based on the CA will not agree with the trial court, and will reverse the
the ground that the plaintiff failed to show right of relief, that there is dismissal of the case.
insufficiency of the plaintiff’s evidence. What the defendant is saying
is that there is no preponderance of evidence to support the plaintiff’s If the CA reverses the order of dismissal by demurrer to evidence and
claim. the CA tells the parties that the evidence submitted is adequate, CA
simply render its own decision on the merits of the case, relying
The court will have to resolve the motion. The court will either grant solely on the evidence submitted by the plaintiff.
or deny the motion. If the court denies the motion, the court in effect
tells the defendant that the plaintiff’s evidence is adequate. What the The defendant cannot ask the CA to present his evidence. It is not
defendant has to do now is not to appeal, because the denial of a proper since the evidence should have been presented in the trial
motion for judgment on demurrer to evidence is interlocutory. court. The CA, as a reviewing court, will only rely on the records
No appeal is allowed. transmitted to it by the RTC.

Q: Can the defendant resort to Rule 65 on the ground that the Q: May the defendant argue that under BP 129, the CA is
court has gravely abused its discretion amounting to lack or expressly authorized to receive evidence?
excess of jurisdiction? No. The defendant cannot argue that the CA is authorized to receive
The defendant can try, but he should prove that there really is grave evidence under the provisions of BP 129. Under BP 129, the CA is
abuse of discretion. allowed to receive evidence if it acts in exercise of its original
jurisdiction, which is not the case in this instance as the CA is acting
under its appellate jurisdiction.

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Where an answer fails to tender an issue, or otherwise admits the
Although BP 129 also confers authority on the CA to receive material allegations of the adverse party’s pleading, the court may, on
evidence even in appeal of cases from lower courts, the conferment motion of that party, direct judgment on such pleading.
of authority while acting as an appellate court is only on one instance,
only on grant of motion for new trial based on newly-discovered For example, if the defendant answered in this wise, ‘I admit I owe
evidence. It will not apply to demurrer to evidence. The evidence the the plaintiff. I admit I have not paid him,’ it is clear that there is no
defendant will present is hardly NDE as the defendant had these issue. The defendant admits the allegations in the complaint.
pieces of evidence during the trial in the RTC. This is why in
demurrer to evidence in civil cases, the defendant waives his right to Another example, if the defendant answered: ‘I deny that I owe the
present his evidence when the trial court grants his motion and the plaintiff the loan alleged to have been obtained by me. I deny the fact
case is dismissed but the dismissal is reversed on appeal. that I am liable to pay any obligation in favor of the plaintiff.’ There
is still judicial admission and therefore no probanda because these are
Now we compare this to demurrer to evidence present in a criminal general, not specific, denials. The denial must be specific or else it is
case. not a denial at all.

After the prosecution has rested its case, the accused can also file a Q: What if the defendant did not answer?
motion for judgment on demurrer to evidence. But there is one If the defendant did not answer, judgment based on the pleadings is
requirement in a criminal case not found in a civil case: the accused not proper. The appropriate judgment, upon proper prior process such
should get leave of court if the accused wants to preserve his right to as a motion to declare the defendant in default, should be a judgment
present evidence once the motion is denied by the trial court. by default.

If the accused fails to get leave of court before filing the motion, and Q: May the initiative to render this kind of judgment be done
the motion is subsequently denied, then the accused has waived his motu proprio?
right to present his evidence in the trial court. The trial court will not No. The judgment must be on motion of the claimant. It cannot be
allow the accused to present his evidence, and the next phase will be rendered by the court motu propio.
a judgment of conviction, meaning that the evidence presented by the
prosecution is adequate to convict the accused, that the evidence has Q: What are cases where judgment based on pleadings will not
met the quantum of evidence, i.e., proof beyond reasonable doubt. No apply?
leave of court is required in demurrer to evidence in civil cases. A:
1. Actions for the declaration of nullity of a marriage
In a criminal case, demurrer to evidence can be initiated either by the 2. Actions for annulment of marriage
accused or the court itself motu propio. The idea of demurrer to 3. Actions for legal separation
evidence can come from the court. So if the prosecution has rested,
the court can suggest to the accused to file a motion for judgment on In the above cases, the material facts alleged in the complaint shall
demurrer to evidence. If the idea comes from the court, the accused always be proved
should file because it is the court that already encourages you to file
the motion. That means to say, even to the court, the prosecution’s Q: The defendant filed a motion for judgment of the pleadings,
evidence failed to meet the quantum of evidence required to convict although the answer has no counterclaim. What will be the effect
the accused. In a civil case, the court cannot initiate the idea to have thereof?
demurrer to evidence. It should come from the mind of the defendant SC held that if the movant defendant is asking for judgment on the
himself. pleadings, the defendant is deemed to be admitting all the allegations
in the complaint.
In a criminal case, if the demurrer to evidence is granted by the court,
the information will be dismissed and the dismissal is tantamount to In judgment on the pleadings, there is an answer filed by the
acquittal of the accused. The prosecution may no longer appeal, nor defendant. The answer, however, either admits the allegations in the
Rule 65 availing, because double jeopardy has set in. complaint; or, even if the answer in form denies the allegations in the
complaint, the denial is not specific as required in the Rules. We are
Take note, to clarify, there can be no appeal as to the dismissal of the made familiar again with the principle that when a general denial is
information, but there can be an appeal as to the civil aspect of the made, that is deemed to be an admission, which is the reason why a
criminal case. In a criminal case, if the trial court dismissed the civil court need not conduct a pre-trial nor a trial.
aspect, the plaintiff may appeal the dismissal as a general rule.
If the plaintiff receives a copy of the answer which does not set up
any defenses at all, but instead admits all the allegations in the
complaint, what the plaintiff needs to do is to file a motion for a
JUDGMENT ON THE PLEADINGS
judgment on the pleadings.
Q: When is there a judgment based on pleadings?

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In other words, if we follow the inherent nature of a judgment of the Q: What are the requisites of summary judgments?
pleadings, the movant should be the plaintiff in a complaint or a
permissive counterclaim or cross-claim. There should be a motion !!! 1. There must be no genuine issue as to any material fact,
except for the amount of damages; and
initiated by the plaintiff asking the court for a judgment on the 2. The party presenting the motion for summary judgment
pleadings. must be entitled to a judgment as a matter of law.

Q: When is a claimant allowed to file for summary judgment?


Q: Is there any prohibition against the defendant who has filed
A party seeking to recover upon a claim, counterclaim, or cross-claim
an answer to also move for judgment on the pleadings?
or to obtain a declaratory relief may, at any time after the pleading in
There is really nothing said in the Rules that prohibit a defendant,
answer thereto has been served, move with supporting affidavits,
upon filing of his answer, to file a motion for a judgment on the
depositions or admissions for a summary judgment in his favor upon
pleadings. But it seems to be a crazy idea for the defendant himself to
all or any part thereof.
move for a judgment on the pleadings.

Q: When is a defendant allowed to file for summary judgment?


In a case brought to the SC where it was the defendant himself who
A party against whom a claim, counterclaim, or cross-claim is
moved for a judgment on the pleadings, although the answer was
asserted or a declaratory relief is sought may, at any time, move with
purely an answer without any counterclaim, cross-claim or third party
supporting affidavits, depositions or admissions for a summary
complaint, but containing several meritorious defenses, the SC ruled
judgment in his favor as to all or any part thereof.
that if a defendant is a movant for a judgment on the pleadings, the
defendant is deemed to have admitted the allegations contained in the
Q: There is a difference between the claimant and the defendant
complaint. So it is very risky for a defendant to be a movant for a
in summary judgment because the defendant may move for
judgment on the pleadings. Even if his answer is properly crafted,
summary judgment ‘at any time.’ Since a summary judgment
even if there is a specific denial, if it was the defendant that filed a
assumes that there is an issue, albeit not genuine, what could be
motion for a judgment on the pleadings, the defendant will be
the issue if there is yet no answer?
considered to have admitted all the allegations in the complaint. So,
If you take a look at Section 11, Rule 8, unliquidated damages shall
the court will render a judgment in favor of the plaintiff.
not be deemed admitted even if not specifically denied. Therefore,
even if there is no answer, unliquidated damages is automatically an
A judgment on the pleadings is also a judgment on the merits. It
issue and may be subject to summary judgment.
should comply with the essentials of a valid judgment under Rule 36.

Q: What is the difference between a judgment on the pleadings


Q: What if the defendant filed a Motion to Dismiss but his
and a summary judgment?
defenses are defect in the certificate of non-forum shopping, no
If you compare the provisions of a judgment on the pleadings to that
legal to capacity to sue, and fortuitous event? Is judgment on the
of a summary judgment as contained in Rule 34, we will immediately
pleadings proper?
notice that there is a section which talks about a summary judgment
Dean Albano: Yes. The defendant admitted having entered into a
by plaintiff and a summary judgment by defendant. Unlike in
contract and that it was still unpaid. His answer fails to tender an
judgment on the pleadings, where we expect the movant to be a
issue or otherwise admits the material allegation of the adverse
plaintiff, in a summary judgment, the law gives either parties the
party’s pleading (citing Asian Construction and Dev. Corp. v.
option to file a motion for summary judgment. These motions are
Sannaedle Co., Ltd.).
expressly recognized in the rules.

In a summary judgment, unlike a judgment on the pleadings, the


SUMMARY JUDGMENTS court will conduct a summary hearing. In judgment on the pleadings,
the court will not conduct a hearing at all, as the court will simply
Q: What is a summary judgment? rely on the contents of the complaint and the answer. Since there is an
A summary judgment or accelerated judgment is a procedural issue raised by the defendant in summary judgment, the court will
technique to promptly dispose of cases where the facts appear need to conduct a summary hearing in order to determine whether
undisputed and certain from the pleadings, depositions, admissions that is a sham issue or a genuine issue. There is need by the parties to
and affidavits on record, of for weeding out sham claims or defenses present evidence in order to support their respective issues. The
at an early stage of the litigation to avoid the expense and loss of time parties could present affidavits, depositions, or any other document
involved in a trial. Its object is to separate what is formal or that the parties may present. What the court will not allow is a full-
pretended denial or averment from what is genuine and substantial so blown hearing on the matter as to whether the issue is genuine or not.
that only the latter may subject a party-in-interest to the burden of This issue will have to be proven only by documentary evidence,
trial. Moreover, said summary judgment must be premised on the affidavits or evidence taken under modes of discovery.
absence of any other triable genuine issues of fact. Otherwise, the
movants cannot be allowed to obtain immediate relief. A genuine Q: Why will the court render a summary judgment?
issue is such issue of fact which requires presentation of evidence as The court will not conduct a full blown trial envisioned in Rule 30. In
distinguished from a sham, fictitious, contrived or false claim. a summary judgment designed not to conduct full-blown trial,

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according to jurisprudence, there is an issue in the answer submitted judgments involving recovery of title to or possession of real
by the defendant, but it turns out to be a sham issue. Therefore, there property. It is available in real or personal civil actions as long as the
is no need for the court to conduct a full-blown trial on a sham issue. requisite that the issue is not a genuine issue is present.
Whether or not the issue is genuine will depend upon the
circumstances of the case.
JUDGMENT BASED ON A COMPROMISE
An example of a summary judgment rendered by a court is where the
court found that the issue is not really genuine although there is really Aside from the special kinds of judgments provided for in the Rules,
an issue raised in the answer. there is a special kind of judgment provided for in the NCC. There
are several provisions in the NCC which encourage the parties to
A complaint was filed by the plaintiff for an unpaid loan. The enter into an amicable settlement or compromise. The NCC considers
complaint carried with it an actionable document attached to the a compromise as a contract between the parties, and therefore, if the
complaint, a printed promissory note. The promissory note contained parties entered into a contract where they signed a compromise
a blank as to the date of the maturity of the loan, which was agreement, they do not have to submit that agreement to a court for
unfortunately not accomplished. So, the promissory note is approval.
indeterminate as to the date of maturity. The defendant filed an
answer and set up the defense that the filing of the complaint was According to the SC, if there is a compromise agreement signed by
premature because the debt has not matured, and the defendant the parties, since that is a contract, then that is the law binding
pointed out that the blank wherein the date of maturity was supposed between the parties (mutuality of contracts). There is no need for
to be indicated has no entry. The defendant interposed that the court court approval to validate the compromise agreement. For purposes
should first fix the maturity date of the complaint before the plaintiff of validity, we follow the provisions of the NCC. It will be treated
can file a complaint for recovery of the loan. The plaintiff filed a like any other contract. As long as the parties give their consent
motion for summary judgment. And the court agreed with the freely, i.e., their consent is not vitiated, and their signatures appear in
plaintiff that the defense set up by the defendant, that the maturity of the agreement, then that will be the contract between them,that will
the loan has not yet happened, is really a sham issue, as the issue is in be the law between the parties.
conflict with the provisions of substantive law. The SC said that if
there is a promissory note without a date fixed as to maturity, that is There is a case for recovery of P2M loan filed by the creditor
a note payable on demand, as provided in the NCC. If there is already against the debtor. They both agreed to settle their differences.
a demand made by the creditor, and the debtor failed to comply with They signed a compromise agreement to the effect that the debtor
that demand, it means there is already a breach of the obligation by fully recognizes his obligation to the creditor, but they converted
the debtor. the payment of the loan to that of payment in installments while
fixing the amount of installments at the same time. They did not
Q: What if the court rendered a judgment based on the pleadings submit the compromise agreement for court approval but instead
when what was in the motion was for a summary judgment? moved for the dismissal of the case, which the court complied.
SC held that whether it is called a summary judgment or judgment on The debtor subsequently commits a breach in the payment of
the pleadings, it does not really matter at all, as there is adjudication installments.
on the merits. The error was purely formal. SC said that the error in
the determination whether the judgment was a summary judgment or Q: After the breach, can the creditor go back to the court and ask
a judgment on the pleadings will not prejudice the defendant, and for revival of the case?
therefore cannot be declared as void. After all, it is a judgment that No.
complies with the requirements of Rule 36. There is a determination
of the rights and obligations of the parties involved in the cause of Q: Can the creditor file a new case for collection against the
action. debtor for recovery of the installment or of the whole account if
in case there is an acceleration clause?
Partial Summary Judgment Yes. It is not barred, as the cause of action of the creditor is now
There is a summary judgment that is similar to separate judgment and different from the previous case filed. His claim is now based on a
several judgments insofar that it is interlocutory. If you read the Rule compromise agreement, not a loan.
on summary judgment, there is such a thing as partial summary
judgment. If the summary judgment is a partial summary judgment, it In order to enforce payment as provided in the written compromise
is interlocutory because it does not dispose of the case completely. It agreement, the creditor has to file a complaint against the defendant
disposes only of the issue that was raised before the court. It cannot debtor. They will have to undergo the same process when the first
be appealed. case was filed concerning the loan. But this is a case of a compromise
agreement which does not carry with it the approval of the court.
Q: Are summary judgments available in real actions?
Yes. The SC has abandoned the old doctrine that summary judgments The opposite is when there is a compromise agreement signed by the
cannot be available in actions for recovery of property. The SC has parties, but this time, the parties do not jointly move for the dismissal
decided in several cases which affirmed the availability of summary of the complaint, but instead submitted the compromise agreement to

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the court for approval. The court renders what we call as a decision Yes. The parties can always change a decision rendered by a court of
based on a compromise agreement. If the debtor commits a breach in justice, even if that decision has become final and executory by the
the payment as agreed upon, what the creditor can do is to simply file simple expedient of entering into a compromise agreement.
a motion for execution in the court. The judgment based upon a
compromise is a judgment on the merits. And under the NCC, a If, for example, the judgment rendered in favor of the plaintiff was
judgment based upon a compromise is immediately executory. There for P1M, but both the plaintiff and defendant agreed to decrease it to
is no appeal. P700K, the compromise agreement is valid even if the judgment for
P1M has become final and executory. The judgment was novated by
Q: May the court cite the party in contempt if he does not comply agreement of the parties.
with the writ of execution of the judgment based on a
compromise? Q: What if the judgment was rendered by the SC?
Dean Albano: Yes (citing Gadrinab v. Salamanca). The same rule applies even if the judgment was rendered by the SC,
the highest court of the land.
Q: Does it mean to say that a party of a compromise agreement
has no recourse at all to challenge the validity of the judgment
based upon a compromise agreement?
There is a remedy under Sec. 1 Rule 41. The defendant may file a
motion to set aside the compromise agreement based on the ground
of vitiated consent. That is the remedy in order a judgment based
upon a compromise.

Remember, this is not an appeal. This is a motion to the trial court to


set aside the compromise agreement. It is still the trial court that will
hear the motion.
REMEDIES TO ASSAIL A JUDGMENT
Q: Supposing the court does not set aside the judgment
notwithstanding the motion, can the defendant appeal? Q: What are the available remedies to the aggrieved party after
No. Under the Rules, an order denying the motion is in the nature of rendition of judgment?
an interlocutory order which is inappealable. The remedies against a judgment may refer to those remedies before
a judgment becomes final and executory and those remedies after the
Q: What is the remedy in cases where appeal is not allowed? same becomes executory.
As a general rule, where the judgment or final order is not appealable, 1. Before a judgment becomes final and executory, the aggrieved
the aggrieved party may file the appropriate special civil action under party may avail of the following remedies:
Rule 65. a. Motion for Reconsideration;
b. Motion for New Trial; and
There is a remedy under the Rules of Court to assail an order denying c. Appeal
the motion to set aside the judgment under a compromise. It is Rule
65. 2. After the judgment becomes executory, the losing party may avail
of the following:
The aggrieved party may not avail of Rule 65 directly if there is a a. Petition for relief from judgment;

?! judgment based on compromise. He has to first move to set aside the


compromise agreement based on vitiation of consent. If that motion
b. Action to annul judgment;
c. Certiorari under Rule 65; and
is denied, he may now make use of Rule 65, but only if he can prove d. Collateral attack of a judgment.
the court gravely abused its discretion amounting to lack or excess of
jurisdiction.
Compare the remedies available to a party in a civil case to that in a
criminal case. The consequences of availing a remedy in a civil case
The same remedies are also available for a judgment by confession or might be different in criminal cases. Also, there are remedies which
a judgment by consent. are applicable in civil cases which might not be applicable in a
criminal case.
Q: Why is appeal not allowed?
Appeal is not allowed because a judgment based on compromise is For comparison, these are the remedies in a criminal case.
final and executory. It is in the NCC. A compromise agreement is
always final and executory and has the effect of res judicata. 1. Before the judgment of conviction becomes final:
a. Motion for New Trial
Q: May judgment be subject to a compromise agreement? b. Motion for Reconsideration
c. Appeal
d. Reopening of a case due to NDE

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Hc is the equivalent of annulment of jdgmnt

this very clear. Rule 47 applies only to a civil case. It cannot apply to
2. After the judgment of conviction becomes final: a criminal case. The equivalent remedy in a criminal case is a petition
a. Habeas Corpus for habeas corpus. The SC in the exercise of its equity jurisdiction
b. Petition for Certiorari under Rule 65 in exercise of cold also entertain a Petition for Certiorari under Rule 65 even if the
judiciary under its equity jurisdiction judgment of conviction has become final and executory

Reopening of a Civil Case Q: May a petition for certiorari under Rule 65 be entertained
Q: Is reopening available in civil cases? even if the judgment of conviction has long been final?
Reopening is also available in civil cases but before the judgment is It can be had when the petition is applied in order for the judiciary to
rendered. If judgment is rendered, it is not available in a civil case. rectify a wrong under its equity jurisdiction. A situation that calls for
Jurisprudence requires that no judgment has yet been handed down a special remedy will always be answered by a petition for certiorari.
by the court. The termination of the trial starts the period to move for Certiorari is a remedy in both a civil or criminal case in order to
this remedy. As long as the judgment has not been rendered, any challenge a final and executory judgment if the situation calls for the
party can move for reopening of the case. SC to exercise its equity jurisdiction. That is why in the enumeration
of remedies, in either criminal or civil case, we include certiorari
Q: What are the grounds for reopening of civil cases? under Rule 65.
There are no grounds given in the Rules of Court. It is not expressly
recognized, reopening is just an accepted remedy in jurisprudence. It
is a remedy availed of after trial has ended but before the judgment is
NEW TRIAL OR RECONSIDERATION
rendered.

Q: What is a pro forma motion?


Q: What is the purpose of reopening a case?
A: A pro forma motion is one which does not satisfy the requirements
It is allowed in the interest of justice. It allows the movant to offer in
of the rules and one which will be treated as a motion intended to
evidence those that he may have forgotten to present during the trial,
delay the proceedings.
or additional evidence as the case may be.

In Rule 37, for civil cases, a motion for new trial or reconsideration
Q: When should there be reopening in civil cases?
must strictly comply with the requirements of a motion so that such
It is available before the court renders a decision or a final order. So
motion will not fall under the concept of a pro-forma motion.
it occurs between the time when the parties have submitted their
evidence and the time when the court renders the decision.
Pro forma motion for reconsideration in civil cases is almost always
denied. A pro forma motion for reconsideration does not suspend the
Q: Is it really a product of jurisprudence?
running of the reglementary period to appeal, and if the denial of the
It may be a product of jurisprudence, but it seems it is now expressly
motion comes after the expiration of the period to file an appeal,
recognized by the Rules. If you take a look at summary procedure or
entry of judgment takes place by operation of law under Rule 36.
small claims proceedings, one of the prohibited motions is reopening
Upon entry of judgment, the losing party loses the remedy of appeal
of a case. That means to say that even in civil cases, reopening is
and is left only with the after-judgment remedies of petition for relief
recognized as a remedy.
from judgment, annulment from judgment or a petition for certiorari
under Rule 65. Writing stating the grounds, written notice; if for NT: manner
Q: How about reopening in criminal cases? for proving proof of motions; NOT FINISHED
It is expressly allowed in the Rules. Under criminal procedure, the
Take note that in criminal procedure, nothing is mentioned about a
court can reopen the case even if the accused has been convicted so
pro forma motion for new trial or reconsideration. The court cannot
long as the judgment of conviction has not become final. So it may
simply discard the motion for new trial or reconsideration for non-
not be accurate to consider entirely reopening as a product only from
compliance even if the motion does not comply with the requirements
jurisprudence.
of a motion. The motion for reconsideration or new trial will always
stop the running of the period to appeal. The idea for the accused to
Q: Is reopening allowed in special proceedings?
file motion for new trial or reconsideration could come from the
Yes. For example, in settlement of the estate, even if the proceedings
court. The court can even initiate a new trial or reconsideration as
have been closed, if certain properties have been left out or if certain long as the accused gives his consent.
heirs have been deprived in the proceedings, they can still ask for the
proceeding to be reopened. They cannot file a separate proceeding for
Q: Who initiates a motion for new trial or reconsideration?
another settlement because this is prohibited by law. There could be
A motion for new trial or motion for reconsideration in civil cases is
only one settlement court.
always initiated by the losing party.

Q: Is an action to annul judgments available in criminal cases?


Q: What are the grounds for a motion for new trial or
No. If the convict feels that his detention, although supported by a
reconsideration?
judgment of final conviction, is unlawful, the remedy he may avail of
is Habeas Corpus, not a petition to annul judgment. The SC has made

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The grounds for motion for new trial are completely different from not need an affidavit of merit, merely the affidavit of the new witness
grounds for a motion for reconsideration. These motions are distinct who will give testimony, or an authentic copy of document or object
and different from one another. evidence to be presented.

Under a Motion for New Trial: Extrinsic Fraud


1. Extrinsic fraud, accident, mistake or excusable negligence The principle in new trial in the case of fraud, the fraud committed
(FAME) which ordinary prudence could not have guarded must always be extrinsic fraud. It cannot be intrinsic fraud. If the
against and by reason of which the rights of the aggrieved fraud alleged in the motion is intrinsic, the motion will be denied.
party was impaired; or
2. Newly discovered evidence, which could not with
reasonable diligence, have been discovered and produced at Rule 37 gives us a good basis for making a distinction between these
the trial, and which if presented, would probably alter the two kinds of frauds. There are two clauses to justify extrinsic fraud as
result. a ground for new trial compared to extrinsic fraud: “which ordinary
prudence could not have guarded against” and “by reason of which
Under a Motion for Reconsideration: such aggrieved party has probably been impaired in his rights.”
1. The damages awarded are excessive;
2. The evidence is insufficient to satisfy the decision or final If we rely solely on Rule 37, the court has allowed lawyers to ‘cheat’
order; or one another, so long as ‘cheating’ is limited only to intrinsic fraud,
3. The decision or final order is contrary to law.
which could be prevented through the use of ordinary diligence.
Q: Let us say a losing defendant/accused is advised by his counsel
For instance, the plaintiff wins the case because his cause of action is
that they have three remedies while the period of appeal was
supported by a document showing his title to recover from the
running, namely, motion for reconsideration, motion for new
defendant. But later on, the aggrieved party is able to prove that the
trial and appeal. The defendant/accused told the counsel to avail
document presented by the plaintiff, and which is the basis for the
of all three. Thus, the counsel filed a motion for new trial, a
judgment in his favor, is a forged document. Forging a document is a
motion for reconsideration and lastly, an appeal. The trial court
crime. But in a trial, the admission of a forged document will not be a
received all three. The appeal was duly perfected. What remedy
ground for a new trial, or even as NDE. This is because the
will the court entertain?
presentation of a forged document by the plaintiff could easily be
SC held that if the aggrieved party files or perfects an appeal during
avoided by the defendant through the exercise of ordinary diligence.
the pendency of his motions for new trial and reconsideration, the
If confronted with such document, and the defendant is not sure as to
motions shall be deemed abandoned.
its authenticity, the defendant could have called upon witnesses, such
as an expert witness, to prove that such document was forged. His
It is really inconsistent for an aggrieved party to file a motion for new
failure to do so is a waiver of this fact.
trial or reconsideration, and while waiting for the resolution of his
motion, perfects an appeal. It will render the motions academic. The
Another instance of ‘cheating’ in trial which the SC did not consider
court, upon perfection of the appeal and upon payment of the docket
as extrinsic is when the prevailing party presented witnesses who had
fee, will lose jurisdiction over the case, and what will remain with the
perjured. But if the aggrieved party relies solely on the allegation that
court is residual jurisdiction.
all the witnesses presented by the party all committed perjury, that is
not a ground for new trial, that is only intrinsic fraud. The aggrieved
Q: The winning party, after receiving a copy of the decision,
party should also have ‘cheated,’ he should also have been dishonest.
moved for execution pending appeal. It is a matter of discretion
If the plaintiff presented two perjured witnesses, the defendant should
to the court founded on special circumstances. The losing party
have called five. So the message given with respect to extrinsic and
filed a motion for new trial while the former motion was pending.
intrinsic fraud is that litigants, through their lawyers, can be dishonest
Can the court grant the motion for execution pending appeal?
during the course of litigation. But they should see to it that their
No. The trial court should resolve the motion for new trial first before
‘cheating’ will not amount to extrinsic fraud. They must not deprive
the motion pending appeal is resolved, even if the motion pending
the other party of his day in court, that the other party will have the
execution is for special reasons. Motion for reconsideration or motion
opportunity to present his side in court.
for new trial of the aggrieved party should be given preference over
any other motion by the prevailing party.
That is the life of a lawyer, he is encouraged to be dishonest, he
should be deceptive in his relationship with others lawyers. Anyway,
Fraud, Accident, Mistake, and Excusable Negligence (FAME)
lawyers will not go to heaven, it is a fact. It is found in the Bible. But
If a motion for new trial is based on FAME, it must be accompanied
that is only a part of a passage in the Bible. The additional passage is
by an affidavit of merit. The affidavit should be executed by persons
that lawyers do not go to hell. But that does not make the life of a
with personal knowledge surrounding the circumstances of FAMN.
lawyer less worthwhile. If a lawyer cannot go to heaven or to hell,
where will the lawyer go after death? The implication is that a lawyer
It is not correct to say that in a motion for new trial, we always need
does not have a soul.
an affidavit of merit. We need affidavit of merit only if the ground
relied upon is FAME. Motion for new trial on ground of NDE will
WTF
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That is how the SC looks at the situation. In fact the SC in several simply fall within that concept of forgotten evidence, which is not a
cases said we should expect dishonesty in the course of litigation. We ground for new trial.
cannot avoid that. SC said that if they allow every act of dishonesty
to be a ground for new trial, there will never be an end to a litigation, Compare: Motion for New Trial and Reconsideration
because a lawyer will always be able to point out to the court certain There is a rule allowing only one motion for reconsideration by the
acts of dishonesty or ‘cheating’ in a motion for new trial. same party, either prevailing or aggrieved party. If that is denied, a
second motion for reconsideration will not be allowed, even if that
Mistake second motion for reconsideration is found on a different ground. The
The mistake of a lawyer is the mistake of the client. If the aggrieved rule against the filing of a second motion for reconsideration is
party lost the case due to a mistake of the lawyer, and the party fires almost absolute.
his lawyer and gets a new one, the new lawyer cannot capitalize on
the mistake committed by the former lawyer. We must apply the rule Unlike a motion for new trial, the Rule allows a party to file a second
on agency. The act of the agent is the act of the principal. motion for new trial if found on a ground different from the one used
in the first motion for new trial.
There is, however, one situation where the SC relaxed the application
of this principle. The SC said that while it is true the mistake of the But whether it is a motion for new trial or motion for reconsideration,
lawyer will always be considered the mistake of the client, but if the there is another rule contained in other provisions where the court
mistake of the lawyer was tantamount to bad faith, i.e., the lawyer will not allow an extension of time to file motion for new trial or
deliberately caused the loss of the case, then that is a ground for new reconsideration. The party must observe the 15/30-day period.
trial. The client’s rights should be protected in this situation.
Q: What is the effect if the motion for reconsideration or new
Excusable Negligence trial is granted?
The negligence must be so gross that ordinary diligence and prudence If the motion for reconsideration is favorably acted upon, the court
could not have guarded against it. This excusable negligence must will simply render an amended judgment. If the court feels that the
also be imputable to the party-litigant and not to his or her counsel judgment is contrary to law or the evidence does not fully support the
whose negligence binds his or her client. judgment, the motion for reconsideration should be granted to reduce
the liability of the aggrieved party, but the court will only amend the
Newly Discovered Evidence previous judgment in order to reduce such liability.
This is an adaptation of an American principle called the Berry Rule:
“Newly discovered evidence, which he could not, with reasonable If the motion for new trial in a civil case is granted, and such is not a
diligence, have discovered and produced at the trial, and which if partial motion for new trial, the judgment will be vacated. But the
presented would probably alter the result.” evidence presented during the trial will not be disturbed. There is no
need for the witnesses who had testified in the trial to give their
Q: What are the requisites of newly discovered evidence as a testimony again.
ground for New Trial?
1. The evidence was discovered after trial; Af-not-mat If the motion for new trial granted was that in a criminal case, the
2. Such evidence could not have been discovered and judgment will also be vacated, and all evidence taken during the trial
produced at the trial with reasonable diligence; and need to be retaken and witnesses who testified will be recalled. The
3. Such evidence is material, not merely cumulative,
grounds for new trial in a criminal case are serious irregularities or
corroborative or impeaching, and is of such weight that if
admitted would probably change the judgment. errors committed by the trial court, not FAME. Even if the evidence
taken in court will not be retaken, there will be a recalling of the
The requirements state we cannot consider cumulative, corroborative witnesses who had testified during the trial.
or impeaching evidence as NDE, as these cannot alter the result of
the case. The recantation of a witness is not NDE. In fact, the SC has Q: What is the remedy of the aggrieved party if his motion for
been emphatic in its ruling continuously that if a witness recants, the new trial or reconsideration is denied?
recantation should not even be given any attention at all. If we give Under Rule 37, it is clearly provided that if a motion for new trial or
attention to the recantation of a witness, you can expect lawyers to reconsideration is denied, the denial cannot be appealed or be subject
produce recantations by witnesses who already testified in court. So, to Rule 65. What is to be appealed is the judgment rendered on the
the stand of the court is that the testimony of a witness given in open merits, not the order of denial. Note that Rule 65 is now unavailing in
court reflects the truth, not the recantation. The recantation shall not the amended Rules in Rule 41.
be treated as NDE.
The only remedy is an appeal from the judgment on the merits that is
Q: What is forgotten evidence? subject of the denied motion of new trial or reconsideration. SC said
If evidence was already available to a party and he was not able to that in appealing the judgment, the aggrieved party can assign as an
present it through inadvertence or negligence of his counsel, that error the denial of the trial court of the motion for new trial or motion
evidence will not be considered as newly-discovered evidence. It will for reconsideration. But he is no longer allowed to file a petition
under Rule 65 to challenge the denial of the motion and appeal at the

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same time, which was allowed prior to the amendment of Section1 of could be filed in the same court. If the respondent of a petition for
Rule 41. relief challenged the jurisdiction of an MTC in deciding the petition
for relief on the ground that such petition is incapable of pecuniary
Q: Are there instances where a motion for new trial or estimation, the reply to that argument is that a petition for relief is
reconsideration is not allowed? just a continuation of the original case, not an independent and
Yes. For example, it is not allowed in summary procedure and small separate action. Note that the old docket number is used in the title of
claims proceedings. It is a prohibited motion. the case in a petition for relief. We also do not pay docket fees.

It is, however, allowed if the aggrieved party in summary procedure What is important is the timeframe in which to file a petition for
appealed the case to the RTC and from there filed a motion for new relief from judgment. The SC has been very strict. Time to file should
trial or reconsideration against the decision of the RTC. Since RTC is be observed. SC has been very strict with the time frame because the
not governed by summary procedure, the enumeration of prohibited judgment has been entered and has therefore become final and
pleadings and motions in the circular does not apply to that court. executory. There is the likelihood that the winning party may already
file a motion for execution under Rule 39 as a matter of right.
Dean Albano: You should take note of De Leon v. Hercules Agro
Industrial Corp. The SC held that the period to file a motion for Q: It could happen that the aggrieved party filed a petition for
reconsideration is non-extendible, and a motion for extension of time relief from judgment and the prevailing party also files a motion
to file a motion for reconsideration does not toll the reglementary for execution of the judgment. Should the court grant the motion
period to appeal. for execution?
Yes. The court has a ministerial duty to execute the judgment once
the judgment has been entered and has become final and executory.
RELIEF FROM JUDGMENT Motion to execute should be granted once made. The prevailing party
has the right to have the judgment in his favor enforced.
Under the Rules, a motion for relief from judgment should be filed
within these two periods: Q: If the court grants the motion for execution of judgment
x sixty (60) days from receipt of copy of judgment or notice because it is a matter of right on the part of the prevailing party,
thereof; and will it not render academic the relief from judgment filed by the
x six (6) months from entry of judgment. aggrieved party?
The petition for relief will not be moot and academic simply because
Q: What if the lawyer for the aggrieved party files a motion for of the granting a motion for execution as a matter of right. Rule 38
relief from judgment based on FAME when judgment has not yet says that the executing court that granted motion for execution and
been entered? Will the motion be dismissed? subsequently entertained a petition for relief from judgment can issue
There was one case when the aggrieved party, before entry, filed a TRO or a preliminary injunction order to stop the enforcement of
before the trial court a petition for relief from judgment founded on the writ of execution.
FAME. The filing of the petition was irregular because the judgment
has not yet been entered. SC held that the trial court should not have You might say that in the rule on injunction, an injunctive relief
simply denied and dismissed the motion. What the trial court should be granted by a court higher than the court which rendered the
should have done was to treat the motion for relief from decision. In this case the court which decided the case and then
judgment as a motion for new trial, because the grounds of both subsequently granted the motion for execution of its judgment
motions are similar. Even if the lawyer commits an error, and files a shall also issue the injunctive relief against the carrying out of the
petition for relief from judgment before the judgment was entered, writ of execution. That is one of the peculiarities of Rule 38. The
the court will consider the petition for relief as a motion for new trial, court which grants the execution of its judgment, as it really has no
provided that the petition will carry with it the requirements needed choice as it is a matter of right, is the same court which will issue an
under Rule 37, i.e., an affidavit of merit that will prove the presence injunctive relief against the writ of execution it has previously issued.
of FAME. The SC has taken a liberal attitude on this kind of error by If there is no injunctive relief issued by the said court, its decision
a lawyer. The court will ignore the error and just have to rule on the will be carried out until fully satisfied. This is an exception to the
merits of that motion. principle in injunction where the injunctive relief should come from a
higher court. Here, the same court which decided the case shall be the
Q: Is a petition for relief considered as one that is similar to that one who will issue an injunctive relief against its own officer from
of an annulment of judgment? executing the writ of execution the court has previously issued. That
It is not so. A petition for relief is not an independent action. In fact, is allowed in Rule 38.
it is just a continuation of the original case. If we consider petition for
relief a separate action from the original case, a petition for relief Q: If the petition for relief is granted, can the prevailing party
should be filed before an RTC because it is incapable of pecuniary appeal the order?
estimation. But since it is not so, Rule 38 provides that it should be No. The order granting relief is interlocutory, hence unappealable.
filed in the same court which issued the judgment deciding the case.
So if the court that decided the case is an MTC, a petition for relief

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Q: If a petition for relief is denied, the order denying petition for The “fresh period rule” does not refer to the period within which to
relief is a final order. Can it be appealed? If not, what is the appeal from the order denying the motion for reconsideration, but the
remedy? period within which to appeal from the judgment itself because an
No, it is a final order which is unappealable under Section 1 of Rule order denying a motion for reconsideration is not appealable.
41. The remedy of the aggrieved party is to file a petition under Rule
65, a petition for certiorari or prohibition as the case may be. The last paragraph is really important. Read it again.

Q: Is Rule 38 an extraordinary remedy? Q: Will the fresh period apply to a motion to dismiss under Rule
It depends on how you define an extraordinary remedy. 16 and a motion for a bill of particulars under Rule 11?
No. These periods will interrupt the period to file an answer but will
If you limit the definition of an extraordinary remedy to any remedy not grant a fresh period of 15/30/60 days as the case may be if denied
that violates the doctrine of immutability of judgments, then, yes, it is by the court. If these motions are denied, the defendant is given the
an extraordinary remedy. Rule 38 may disturb judgments even if they remaining period within which to respond or file an answer, but this
are already final and executory. remaining period should not be less than five days.

Now, if you limit the definition of an extraordinary remedy to any Q: What does appeal as a matter of right mean?
remedy which is not a mode of appeal, then Rule 38 is not an It means when he has perfected the appeal within the period to do so,
extraordinary remedy. the appellate court has no other choice but entertain the appeal,
review the decision and render its own decision.
A petition for relief from judgment is not an independent action. It is
always a continuation of the old case. If the decision was rendered by Q: What does appeal as a matter of discretion mean?
the MTC, the petition for relief should be filed with the MTC. It even When we say that appeal is a matter of discretion, the appellate court
uses the same docket number used by the court in deciding the case. will determine whether the appeal should be entertained or not. If that
discretion is given to the appellate court, it simply denies to the party
Furthermore, there is no issuance of summons under Rule 38. If the the right to appeal to that court.
trial court finds the petition to be sufficient in form and substance, the
court may issue an order directing the respondent to file a comment. In civil cases, there are three modes of appeal given under Rule 41:
It will not issue summons. The respondent who fails or refuses to x Ordinary appeal
comment will not be declared in default. The court will simply x Petition for Review in the CA
proceed with the hearing of the motion. x Petition for Review on Certiorari under Rule 45

Q: Let’s say there are four defendants. They lost the case.
APPEAL Defendant 1 appealed but the others did not. What happens if
Defendant obtains a favorable decision from the appellate court?
Appeal can be a matter of right or a matter of discretion. As a general rule, it will only benefit the defendant who appealed his
case. The decision of the trial court is already final and executory on
the others who did not appeal. However, the SC held that there may
Q: What is the remedy if the motion for new trial or
be an exception in case the interests of the defendants are intertwined.
reconsideration is denied?
That is the term used by the SC – intertwined. If their interests are
A: The remedy is to appeal from the judgment or final order itself
intertwined, even if only one of them appealed, the decision of the
subject of the motion for reconsideration or new trial. The movant
appellate court will also benefit his co-parties.
has a fresh period of fifteen days from receipt or notice of the order
denying or dismissing the motion for reconsideration within which to
file a notice of appeal. It is no longer assailable by certiorari. Compare this with a scenario where there are two defendants – A and
B. A was in default. B, however, won the case and was able to resist
the plaintiff’s claim. Will A benefit? Yes, he will benefit. This is the
This fresh period rule, also known as the Neypes ruling, is derived
general rule. This is different from the scenario in the last paragraph
from Neypes v. Court of Appeals.
because in that case there is already a judgment on all of them. Here,
in partial default, there is no judgment yet.
Read: Neypes v. Court of Appeals

Q: Let’s say there are four defendants. There is already a


Q: When does the fresh period rule apply?
judgment against them. What happens if Defendant 1 makes use
A: It applies to:
of Rule 37, Defendant 2 makes use of Rule 38, Defendant 3 makes
1. Rule 40 – Appeals from MTC to RTC
2. Rule 41 – Appeals to RTC use of Rule 47, and Defendant 4 makes use of appeal?
3. Rule 42 – Petition for Review from RTC to CA It is possible. Although there is plurality of parties and the remedies
4. Rule 43 – Appeals from quasi-judicial agencies to CA pertain to different time periods (Rule 37 and appeal should be used
5. Rule 45 – Appeals by certiorari to the SC before the judgment became final and executory, while Rule 38 and
47 are available after the fact), it is possible that they make use of

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different remedies. Remember that, as a general rule, appeal is only Rule 65 is an independent proceeding, and not a continuation of the
beneficial to the person who appealed. original case that has been resolved by the MTC.

Appeal from the MTC to the RTC Q: In cases of unlawful detainer decided by the MTC, there could
If the origin of the case is the MTC, the only mode of appeal is an be an appeal in the RTC involving factual and legal questions.
ordinary appeal. Even if the only issue raised is a question of law, the Insofar as the RTC and the prevailing party are concerned, is the
appeal should be an ordinary appeal to the RTC. Note that the Rules appeal by the losing party a matter of right?
do not divest the RTC or even the CA to hear appeals based purely on Yes. Whenever the mode of appeal is ordinary appeal, the appeal is a
questions of law. In fact, the Rules expressly say that an appeal to the matter of right. The court has no discretion to outrightly dismiss the
RTC from the MTC could either involve both questions of fact and appeal. It has the duty to review the case and render its own decision.
law or just purely questions of law. The RTC as an appellate court from a decision of an MTC in UD has
no discretion to tell the appellant that the appeal cannot be given due
An appeal from the MTC to the RTC is always a matter of right. course, which is allowed in petition for review and petition for review
on certiorari.
Q: What is the procedure of appeal from MTC to the RTC?
The party appealing in a civil case will need to file a Notice of Q: Although the appeal of the losing party in the RTC is a matter
Appeal and pay the required docket fee. Cases involving special of right, may the RTC order the appeal’s dismissal even without
proceedings and other cases of multiple or separate appeals will also rendering its own decision because the appellant violated certain
require submission of a Record on Appeal. orders or provisions of the Rules?
Yes. Although it is the right of the losing party to appeal to the RTC,
Docket fee is a jurisdictional requirement. Hence, if not paid on time, the losing party, as an appellant, should also obey the orders that
SC held that the appellate court does not acquire jurisdiction over the could be issued by the RTC in relation to the appeal.
case. Try to remember the Manchester ruling.
One such order is given in Rule 41, Section 7[b]. The RTC acting as
Let us say a case for unlawful detainer was filed. A motion to an appellate court can require the appellant or appellee to submit an
dismiss was filed by the defendant on the ground of lack of appeal memorandum.
jurisdiction over the subject matter, which was granted.
If the appellant does not submit an appeal memorandum as ordered,
Premise: Under the provisions of Rule 41, the order of dismissal, that will be a ground for the dismissal of the appeal by the RTC.
without prejudice, is not appealable. The aggrieved party cannot Although appeal is a matter of right, it is still the duty of the appellant
appeal, but he can file petition under Rule 65. to obey the orders of the appellate court issued in relation to his
appeal taken to the RTC.
Q: Is this premise true? Should we follow Rule 41 in appeals
from the MTC to the RTC? In Rule 41, the RTC can also order the dismissal on appeal if it can
No. Rule 40 does not follow Rule 41. In Section 8, Rule 40, when an be shown that the docket fees have not been paid or that the appeal
MTC dismisses a case cognizable by it for lack of jurisdiction over was taken out of time. If the appeal was out of time, the appellate
the subject matter, even if the dismissal is without prejudice, the court has no jurisdiction at all to review the judgment.
remedy of the plaintiff is to appeal, via an ordinary appeal, the order
of dismissal rendered by the MTC. Q: If the RTC renders its own decision (affirm or reverse), can
there be a second appeal?
Q: Why cannot we just follow Rule 41? It says that if a dismissal Yes, to the CA via a petition for review. The rule of thumb in the
is without prejudice, the order is not appealable, and the remedy case of second appeals is that the appeal is a matter of discretion. The
is a petition under Rule 65. first appeal generally is a matter of right as to the appellant, as long
Insofar as the MTC and the RTC are concerned, there is a good as the mode of appeal is an ordinary appeal. But even if the appeal is
reason why Rule 40 says that the remedy of the plaintiff is to appeal a first appeal, but the mode is the one under Rule 45, that is a matter
via ordinary appeal, to just file a notice of appeal in the appellate of discretion on the part of the SC. The second appeal from the RTC
court and pay docket fees. This is because there is a provision under to the CA is a matter of discretion. The CA can either refuse or allow
Rule 40 which says that if the matter is brought to the RTC, and the the appeal.
RTC affirms the decision of the MTC, it is the duty of the RTC to
assume jurisdiction over the case as if that case originated with the Q: Before the CA, could there be a third appeal?
RTC. Yes, we can go to the SC under Rule 45, which is always a matter of
discretion in the civil case. The SC enjoys the prerogative whether to
Q: Why won’t RTC assume jurisdiction if Rule 65 is used? entertain or not to entertain that appeal.
If we tell the plaintiff to observe Rule 41, but the plaintiff still files a
petition for certiorari under Rule 65, the RTC has no authority to Summary:
assume jurisdiction over the case. An appeal is not a separate
proceeding, it is just a continuation of the old case. A petition under

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From MTC, appeal to the RTC by notice/record of appeal whether it
involves a question of law, a question of fact, or both. This is a matter Q: What is the rule on harmless error?
of right. Under Rule 51, Section 6, the court at every stage of the proceeding
must disregard any error which does not affect the substantial rights
From the RTC as an appellate court, appeal to the CA by petition for of the parties.
review. The appeal may involve a question of law, a question of fact,
or both. Appeal here is discretionary. Q: What is the material data rule?
The rule is an essential component for any mode of appeal whether it
From the CA, the aggrieved party may appeal to the SC by petition is an ordinary appeal, petition for review or petition for review on
for review on certiorari under Rule 45. Only questions of law may be certiorari. It simply tells the appellant that he should see to it that he
appealed. Petition for review on certiorari is always discretionary. informs the court about the date he received the decision, the date of
filing the motion, and the date of denial by the court of motion for
Q: Is it possible to appeal from MTC to the CA or SC directly? reconsideration or new trial, in order to help the court determine the
Yes. If the MTC is exercising its delegated jurisdiction to try land timeliness of appeal, which is determinant of the jurisdiction of the
registration or cadastral cases, appeal from its decision or final order appellate court. If an appeal is not perfected on time, the appellate
may be taken directly to the SC or the CA as the case may be. The court does not gain jurisdiction over the matter on appeal.
MTC in this situation will be considered as if it were a RTC.
Q: What is the difference between an erroneous appeal and an
Procedure (MTC to RTC) improper appeal?
After the appeal is perfected, and it is perfected by the filing of a In improper appeals, the mode of appeal used is the correct mode, but
notice of appeal, the RTC will now require the appellant to submit his the questions raised in the appeal should not be raised in the appeal.
appeal memorandum. This may lead to the dismissal of the case.

Q: If the appellant does not submit his memorandum, the RTC For example, RTC rendered a decision. The decision was appealed to
can dismiss the appeal. Why is the memorandum important? the CA. The mode of appeal is an ordinary appeal via a notice of
It is important because, similar to a brief on appeal before the CA, it appeal. Eventually, the records are transmitted to the CA. Under the
points out to the RTC the errors committed by the inferior court. new rules, when there is an appeal by ordinary appeal via notice of
There is always a disputable presumption that a decision rendered by appeal, pure questions of fact, or mixed questions of fact and of law
the court is correct. If the appellant refuses or fails to submit the could be raised. But the rules state that if the only question raised is
appeal memorandum, the presumption will stand and the appeal will purely of law, the CA has no jurisdiction. So the CA can dismiss the
be dismissed. appeal when purely questions of law are raised.

However, if you take a look at Rule 40, Section 7 (c), it says the RTC In erroneous appeals, the mode of appeal is wrong. There are certain
shall decide the case on the basis of the entire record of the cases where although the mode of appeal is wrong, it will not lead to
proceedings. The rule under Rule 51, Section 8, i.e., the rule that the the dismissal of the appeal.
appellate court will only decide questions raised on the assignment of
errors, will therefore not apply to appeals from the MTC to the RTC. For example, under the rules, the correct mode is ordinary appeal, but
the mode used was petition for review. This is an erroneous appeal.
Q: What is the difference between a final order and an
interlocutory order? Petition for Review to the CA
Final orders completely dispose of a case or particular matter therein. If the court of origin is an MTC, the mode of appeal is an
On the other hand, an interlocutory order only determines incidental ordinary appeal via a notice of appeal or a record on appeal (in
matters that do not touch on the merits of the case or put an end to the certain cases) to the RTC. From the RTC, as an appellate court,
proceedings. there could be a second appeal in the CA, but this time, the mode
of appeal is a petition for review.
Q: What is the difference between a question of law and a
question of fact? Q: From the MTC to the RTC, supposing the mode of appeal
There is a question of law when the doubt or difference arises as to used by the aggrieved party was a petition for review, can the
what the law is on a certain set of facts. appeal be dismissed by the RTC on the ground that the appellant
has chosen the wrong mode of appeal?
A question of fact on the other hand is when the doubt or difference SC held that if the appellate court is an RTC, and appellant has
arises as to the truth or falsehood of the facts alleged. chosen the mode of petition for review, RTC should disregard the
error committed by the appellant. The SC reasoned that the contents
Q: What is a memorandum decision on appeal? of a petition for review meets, and even exceeds, the requirements of
Memorandum decision is one in which the appellate court may adopt a notice of appeal. A petition for review is a very lengthy document,
by reference, the findings of facts and conclusions of law contained there is the application of the material data rule, there are errors that
in the decision appealed from. See Rule 51. are assigned and there are arguments embodied in the petition for

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review. In a notice of appeal, it may compose of one paragraph where There is no difference with respect to the content, but there is a great
an appellant is simply telling the court he is appealing the decision difference in the execution of the judgment appealed.
rendered on such date, alleging the payment of docket fees. If the
appellant wrongfully chooses a petition for review, the RTC should If the decision comes from a trial court in the exercise of its appellate
entertain the petition as the essentials for a notice of appeal are jurisdiction, being appealed to the CA, the decision of the trial court
already contained in the petition for review. cannot be executed. There could be no execution. There could be an
execution, but it should be an execution pending appeal. The motion
Q: From the RTC as an appellate court to the CA, supposing the should be supported by special reasons to convince the CA to order
mode of appeal used by the aggrieved party was a notice of the execution of judgment. Generally, when there is an appeal to the
appeal, can the appeal be dismissed by the CA on the ground that CA from a court of justice like an RTC, the appealed decision cannot
the appellant has chosen the wrong mode of appeal? be the subject of execution.
The appeal will be dismissed. The mode of appeal used is erroneous
and will not confer jurisdiction upon the CA. In other words, there In case of QJ body decision, the appeal will not stay the execution of
are instances where the wrong mode of appeal will lead to the the decision. The decision of the QJ body will be enforced. There is
dismissal of the appeal; and there are instances where the wrong only one way in which we can stop the execution of the decision
choice will be disregarded by the court. rendered by a QJ body during the pendency of the appeal, and that is
to ask the CA to issue a writ of preliminary injunction.
Q: From the RTC in its original jurisdiction to the SC, supposing
the mode of appeal is a notice of appeal, can the appeal be Another difference is the rule that when a decision comes from a QJ,
dismissed by the SC on the ground that the appellant has chosen the factual findings of the QJ are conclusive upon the CA. As a
the wrong mode of appeal? general rule, the CA cannot review factual findings of the QJ.
Under the Rules, the only mode of appeal allowed in civil cases to the
SC is Rule 45. From the decision of the RTC in its original Q: Why is execution allowed in QJ bodies?
jurisdiction, there could be an appeal to the CA or SC as the case may One reason given in the Rules is that the quantum of evidence needed
be. If the appellant decides to go to the SC immediately and filed a in QJ proceedings is only substantial evidence, while in trial courts,
notice of appeal, the SC will dismiss the appeal since the choice of the quantum of evidence is preponderance of evidence.
mode of appeal is erroneous under the Rules. A notice of appeal will
never satisfy the requirements of a petition for review on certiorari or Q: Are there any cases where appeal from quasi-judicial bodies
appeal by certiorari under Rule 45. may be directly made to the SC?
Yes.
Q: Using the same problem above, supposing the mode of appeal
is titled ‘Petition for Certiorari under Rule 65’? Will the petition A decision from the Commission on Audit may be brought by the
be dismissed? aggrieved party to the SC on certiorari under Rule 65.
If the appellant inadvertently calls his petition a Petition for Certiorari
under Rule 65, the SC will liberally consider that as a Petition for A decision from the Commission on Elections may be brought also
Review under Rule 45. The contents of Certiorari under Rule 45 and on certiorari to the SC under Rule 65.
Rule 65 are essentially the same. But, the SC cautioned parties, the
erroneous appeal must be filed within the period of appeal (15 days). (The decision of third constitutional commission – the Civil Service
If you should recall, the period for appeal by petition for certiorari Commission may be taken to the CA under Rule 43.)
provided under Rule 45 is 15 days, whereas under Rule 65, the period
for filing a petition under this Rule is 60 days. A party adversely affected by a decision of the CTA en banc may file
with the SC a verified petition for review under Rule 45.
Q: Is a certificate of non-forum shopping available to a petition
for review? The ruling of the Ombudsman in criminal cases (not administrative
Yes. Although a petition for review is not an initiatory pleading, the disciplinary cases, which is appealable to the CA under Rule 43) may
Rules expressly directed it to prevent the possibility that the appellant be elevated to the SC by way of Rule 65.
may have filed another appeal with a different court.
The decision of the Sandiganbayan is appealable to the SC by way of
Appeal from Quasi-Judicial Bodies certiorari under Rule 45.
The decisions that could be appealed to the CA do not necessarily
come from courts. It could be penned by quasi-judicial bodies. There As a special reminder, a review of the decision of the NLRC may be
is just a common mode of appeal even for quasi-judicial (QJ) bodies, brought to the CA using Rule 65. Remember, the CA, not the SC.
petition for review under Rule 43.
Read: St. Martin’s Funeral Home v. NLRC
Q: What is the difference if the appealed decision is from the
RTC, and if it comes from a QJ body? Notice of Appeal and Record on Appeal

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Q: What is the difference between a notice of appeal and a record 1. To issue orders for the protection and preservation of the
on appeal? rights of the parties which do not involve any matters
The period to file a notice of appeal is 15 days. If it requires the filing litigated by the appeal;
2. To approve compromises;
of a record of appeal, it is 30 days.
3. To permit appeals of indigent litigants;
4. To order execution pending appeal if accordance with
The period to file a notice of appeal is not extendible. The same is not Section 2, Rule 39; and
true with a record of appeal. 5. To allow withdrawal of the appeal.

Q: Why is there discrimination between a notice of appeal and a Q: When is the doctrine of residual jurisdiction available?
record on appeal when it comes to extension? It is available under Rules 41 and 42. Under Rule 41, if there is an
A notice of appeal is a very simple document. It is usually a one-page appeal from RTC to the CA or SC as the case may be, and prior to
document. On the other hand, a record on appeal could be a very the transmittal of the original record or the record on appeal, the court
voluminous document because the record on appeal will copy all of may exercise their residual jurisdiction.
the pleadings as submitted by the parties. It will also copy all of the
relevant motions and the orders issued by the court. Under Rule 42, if there is a petition for review from RTC to the CA,
and before the CA gives due course to the petition, the RTC may also
Q: When is record on appeal proper? exercise residual jurisdiction.
If you take a look at Section 39 of BP 129, or Section 2, Rule 41 of
the Rules of Court, it states that ‘no record of appeal shall be required Rule 41 applies if it is an ordinary appeal. Rule 42 will apply if it is a
except in special proceedings and other cases of multiple or separate petition for review. There is a difference between them so take note
appeals where the law or the Rules of Court so require.’ of the qualifiers when residual jurisdiction will end.

Dean Riano: A party, therefore, may appeal only a particular incident In one case decided by the Supreme Court, if docket fees have not
in the case and not all of the matters involved in the same case. For been paid but there was already an order transmitting the records to
example, in expropriation, there are two stages – the first stage is the the CA, the trial court still has jurisdiction to hear the motion to
determination of the lawful right of the plaintiff to take the property dismiss the appeal and issue a writ of execution.
sought to be expropriated culminating in an order of expropriation.
This order of expropriation may be appealed by any party by filing a Q: The RTC is expressly given by the Rules the authority to rule
record on appeal. on certain matters under residual jurisdiction. Is this available to
the MTC?
The second stage of expropriation is the determination by the court of Yes. If you take a look at Section 9, Rule 40, the other provisions of
the just compensation for the property sought to be expropriated. A Rule 41 shall apply to appeals from the MTC to the RTC insofar as
second and separate appeal may be taken from this order fixing the they are not inconsistent with or may serve to supplement the
just compensation. provisions of Rule 40. It is therefore applicable to MTC.

If, however, the trial court has fully and finally resolved ALL issues Motion for New Trial In The CA
in the complaint for expropriation, there is no need to file a record on Under the Rules, it is not necessary for the appealing party to wait for
appeal even in an expropriation case. The original records will be the case to be decided by the CA to file a motion for new trial. Even
sent to the appellate court even if a notice of appeal is used. if the case has not yet been decided by the CA, the movant can
already file a motion for new trial based on NDE. This is not
Q: If a record on appeal is required, is notice of appeal dispensed possible if the case is in the MTC or even in the RTC acting in its
with? appellate jurisdiction. In the RTC, we have to wait for the RTC to
No. It should be a notice of appeal and a record on appeal. Besides, a render a decision before we can file a motion for reconsideration or
notice of appeal just specifies to the court an appeal is being taken. It new trial. With respect to the CA, we also have to wait for the
is given that a record on appeal always includes a notice of appeal. decision of the CA before we can move for reconsideration. But
when it comes to a new trial, we can file a motion for new trial based
Doctrine of Residual Jurisdiction on NDE even before the case is decided by the CA. This is clearly
Q: What is residual jurisdiction? spelled out in the Rules. As long as the case is within the jurisdiction
It refers to the authority of the trial court to rule on certain matters of the CA, even if before the CA had made a decision on the case
even if the appeal is already perfected. Even if the appeal is now appealed, a motion for new trial based only on NDE can be filed.
within the jurisdiction of the appellate court, the trial court will
retains jurisdiction to decide certain matters. The SC is generally not a trier of facts. A motion for new trial will
always involve a question of fact like NDE, and thus will be
Q: What are these certain matters? dismissed by the SC. The availability of a motion for new trial ends
It is in the Rules of Court. These are: with the CA, but the availability thereof is based only on the ground
of NDE.

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Motion for Reconsideration before the CA of fact and law, the mode of appeal is an ordinary appeal through a
The Rules do not clearly state what the grounds are for a motion for notice of appeal.
reconsideration before the CA. Since this is the case, then the same
grounds under Rule 37 may be used for a motion for reconsideration It is in this mode of appeal, i.e., an ordinary appeal to the CA, where
before the CA. the appellant is required to submit a brief on appeal.

There may be only one motion for reconsideration before the CA, as Q: What is a brief on appeal?
it is in the trial courts. The purpose of a brief is to present to the court in a concise form the
points and question in controversy, and by fair argument on the facts
Relief of Judgment under Rule 38 before the CA and law of the case, to assist the court in arriving at a just and proper
This is not possible. conclusion/ decision.

First, there is no court in our system which is vested with authority to During the pendency of the appeal, the CA will require parties to
entertain a petition for relief against a final and executory judgment submit their briefs. The Rules provide for the brief of the appellant
of the CA. The SC may not entertain the petition for relief because it and the appellee.
is a court of limited jurisdiction. And although the RTC is a court of
general jurisdiction, it is improper because the CA is a higher court Q: What happens if the brief is not filed on time?
than the RTC. If it is the appellant case who does not submit his brief, the appeal is
dismissed. If it is the appellee who does not submit his brief, then the
Second, Rule 38 applies only to trial courts, not the CA. This may be court will simply decide the appeal without a brief coming from the
implied from the provisions of the Rule itself. appellee. The appellee can choose not to submit a brief. It is the brief
of the appellant whose submission or non-submission could lead to
Annulment of Judgment before the CA the dismissal of the appeal.
If you remember our discussion before, the SC may annul judgments
made by the CA under its equity jurisdiction. It is not expressly stated Q: Why is the CA very much interested in the assignment of
in the Rules but it is possible as a jurisprudential rule. errors that must be contained in the brief, without which the
appeal will have to be dismissed?
The assignment of errors is essential in an ordinary appeal because
APPEAL BY CERTIORARI TO THE SC insofar as the CA is concerned, the decision of the trial court is a
correct decision. Remember that in our Rules of Evidence, there is a
In civil cases, this is the only mode used to appeal to the SC. We presumption that a decision of a trial court is correct, i.e., there is a
cannot use a notice of appeal or a petition for review if the SC strictly presumption of regularity in the performance of official duties. The
applies these rules on appeal. CA will always apply that disputable presumption whenever there is
an appeal in the CA.
Q: Is it correct we cannot appeal to the SC by notice of appeal?
No. It does not mean to say that we cannot go up to the SC by simply That same attitude is also adopted by the SC. Whenever an appeal
filing a notice of appeal or an ordinary appeal. What the Rules of under Rule 45 is raised to the SC, the SC adopts the disputable
Court prohibits is the filing of an ordinary appeal to the SC, i.e., a presumption that the decision of the CA is correct.
notice of appeal, if the case is a civil case.
Since the CA adopts the presumption that the RTC decided on the
If the case is a criminal case, there could be notice of appeal to the case correctly, the appellant must overwhelm that presumption by
SC. It is applicable in case the penalty imposed is life imprisonment convincing the CA that serious errors were committed by the RTC.
or reclusion perpetua. The appeal from that criminal case will be by Since the appellant cannot be allowed to present evidence thereon,
notice of appeal not via a petition for certiorari. since reception of evidence should have been done in the trial court,
appellant will have to rely on the records submitted from the RTC.
As a general rule, only questions of law can be raised before the SC.
However, raising questions of law with questions of fact before the The only way by which appellant can possibly convince that the RTC
SC does not necessarily disallow the appeal. The Rules say that if the committed serious errors is through the assignment of errors. If the
issues raised in under Rule 45 are factual and legal, the SC has the appellant cannot make an assignment of errors in the brief, it means
discretion to remand the case to the CA. When the SC sends the case the appellant finds nothing wrong with the decision of the RTC.
to the CA because the issues raised are both factual and legal, the CA Therefore, the disputable presumption stays, and this will be used by
now has the duty to review the case and render its own decision. the CA. That is why the assignment of errors is essential to the brief
of the appellant. Absence thereof is fatal to the appeal, and will cause
The opposite, however, does not apply, such as when the CA is the the appeal’s dismissal.
appellate court. If the court of origin is the RTC acting in its original
jurisdiction, and it involves pure questions of fact or mixed questions Q: Distinguish a brief from a memorandum.
A:

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Brief Memorandum 5. Matters not assigned as errors on appeal but closely related
to an error assigned; and
Certiorari, prohibition, 6. Matters not assigned as errors on appeal but upon which the
mandamus, quo determination of a question properly assigned is dependent.
Ordinary appeals
warranto and habeas
corpus cases Questions before the SC
Although Rule 45 is explicit in saying that only questions of law can
Filed within 45 days Filed within 30 days be raised in a petition on certiorari, the SC has recognized a number
of exceptions:
Shorter, briefer, only
one issue involved – No 1. When the findings are grounded entirely on speculation,
surmises or conjectures;
subject index or 2. When the inference made is manifestly mistaken, absurd or
Contents specified by rules
assignment of errors, impossible;
just facts and law 3. When there is grave abuse of discretion;
applicable 4. When the judgment is based on misapprehension of facts;
5. When the findings of facts are conflicting;
6. When in making its findings, the CA went beyond the
Q: Can the appellant assign as the only error in the brief that the issues of the case, or its findings are contrary to the
RTC committed an error in deciding the case against the admissions of both the appellant and the appellee;
appellant? 7. When the findings are contrary to the trial court;
That is not an assignment of error expected by the CA. Assignment 8. When the findings are conclusions without citation of
of errors should specify particular acts done by the RTC which could specific evidence on which they are based;
9. When the facts set forth in the petition as well as in the
have affected his substantial rights.
petitioner‘s main and reply briefs are not disputed by the
respondent;
Q: Reiterate the rule on harmless errors. 10. When the findings of fact are premised on the supposed
The trial court must have committed errors in the proceedings; it is absence of evidence and contradicted by the evidence on
expressly provided in Rule 51 that only errors of the court in record; and
admission of evidence and issuance of orders that affects 11. When the Court of Appeals manifestly overlooked certain
substantially the rights of the appellant could be considered by the relevant facts not disputed by the parties, which, if properly
considered, could justify a different conclusion.
appellate court. Otherwise, the court will disregard that error, even if
made a part of the assignment of errors.
Dean Jara suggests memorizing at least five for the Bar Exams. For
recitation, he suggests to memorize at least eleven (haha).
Q: What issues will be resolved on appeal?
In civil cases brought on appeal, the appellate court will resolve only
Aside from these instances, the following cases also allow questions
issues raised in the assignment of errors. No other issue, generally, of fact to be raised on appeal to the SC:
will be resolved by the court. The only exception is if the issue not
7. Kalikasan cases
raised in the assignment is closely related to the issue raised in the 8. Amparo cases
assignment of errors of the appellant. 9. Habeas Data cases

Q: Is the rule above applicable to criminal cases? Both factual and legal questions can be raised under Rule 45 in these
No. In a criminal case, if there is an error committed by the trial three situations.
court, whether mentioned or not in the assignment of errors, the CA
or SC can take cognizance of such errors in resolving the appeal. The Q: What if the appellant raises questions of fact before the SC?
appellate courts are very flexible in a criminal case whose decision Will the SC dismiss the case?
from the trial court was brought before it on appeal. It may, but the SC is given the discretion to refer the appeal to the CA
instead.
As a general rule, only errors assigned in the brief may be considered
on appeal. These are the exceptions: Q: What are the differences between Rule 45, 64, and 65?
1. Grounds not assigned as errors but affecting the jurisdiction Rule 45 Rule 64 Rule 65
over the subject matter
2. Matters not assigned as errors on appeal but are evidently Certiorari against Certiorari,
Petition for Review
plain or clerical errors within the contemplation of law; COMELEC and Prohibition, and
on Certiorari
3. Matters not assigned as errors on appeal but consideration COA Mandamus
of which is necessary in arriving at a just decision and
Mode of Appeal Mode of Appeal Independent Action
complete resolution of the case or to serve the interest of
justice or to avoid dispensing piecemeal justice; COMELEC or
4. Matters not specifically assigned as errors on appeal but The court or QJ
Cannot implead the COA should be
raised in the trial court and are matters of record having should be
court as a party impleaded as
some bearing on the issue submitted which the parties impleaded
respondent
failed to raise or which the lower court ignored;

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15 days 30 days 60 days NOTE: A co-equal court cannot annul the final judgment of a similar
court. CA has exclusive jurisdiction over actions for annulment of
Question of Law judgments of RTC. An action to annul a judgment or final order of
and limited to
Question of Law Question of Law MTC shall be filed in the RTC having jurisdiction in the former and
Questions of
Jurisdiction it shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47).

The ruling of the Extrinsic Fraud


The ruling of the
COMELEC or
The order or court or QJ will not Fraud is regarded as extrinsic when it prevents a party from having a
COA will not be
decision cannot be be stayed unless SC trial or from preventing a party from having a trial or from presenting
stayed unless SC
executed. issues an injunctive his entire case to the court, or where it operates upon matters
issues an injunctive
relief
relief pertaining not to the judgment itself but to the manner in which it is
procured (Alaban v. CA, GR No. 156021, September 23, 2005).
SC SC SC, CA or RTC

Note, however, that extrinsic fraud, or collateral fraud, is not a valid


Summary:
ground if it was availed of, or could have been availed of in a motion
If the RTC is acting in its original jurisdiction, appeal may be had to
for new trial or petition for relief.
the CA or SC.
Lack of Jurisdiction
If the issues involve pure questions of fact or mixed questions of law
Lack of jurisdiction as a ground for annulment of judgment refers to
and fact, then appeal may be had by going up to the CA by ordinary
either lack of jurisdiction over the person of the defending party or
appeal. Ordinary appeal may take in the form of a notice of appeal or
over the subject matter of the claim.
record of appeal as the case may be. This is a matter of right.
Lack of jurisdiction over the subject matter and over the
If the issues involve pure questions of law, the appellant may proceed
person – May be barred by estoppels by laches, which is
to the SC directly by petition for review on certiorari under Rule 45.
that failure to do something which should be done or to
This appeal is a matter of discretion.
claim or enforce a right at a proper time or a neglect to do
something which one should do or to seek or enforce a
In the case of quasi-judicial bodies, whether or not it involves factual right at a proper time. (1998 Bar Question)
or legal issues or both, there may be appeal to the CA. The appeal is
in the form of a petition for review under Rule 43.
The extraordinary action to annul a final judgment is restricted to the
grounds provided by law to prevent it from being used by a losing
From the CA as an appellate court, the appellant may further appeal party to make a mockery of a duly promulgated decision that has long
to the SC by using a petition for review on certiorari under Rule 45. become final and executory.
This appeal is still a matter of discretion.
Q: When may it be availed of?
Motion for Reconsideration before the SC A: The remedy of annulment of judgment may be availed of when
It is possible. the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the
Motion for New Trial before the SC petitioner.
This is not possible. The SC will not entertain a motion for new trial
even if the ground is based on NDE. The Supreme Court is not a trier Q: Who may avail this remedy?
of facts.
A: A person need not be a party to the judgment sought to be
annulled. What is essential is that he can prove his allegation that the
Further Appeal judgment was obtained by the use of fraud and collusion and he
The decision of a division of the SC is a decision of the SC. Thus, it would be adversely affected thereby.
is not possible to appeal the decision of a division of the SC with the
SC en banc. Read: Islamic Da’wah Council v. Court of Appeals

Q: Where should the petition be filed?


ANNULMENT OF JUDGMENT A:
Judgments of RTC Judgments of MTC
Q: What is annulment of judgment?
A: It is a remedy in law independent of the case where the judgment Filed with the CA Filed with the RTC
sought to be annulled was rendered. The purpose of such action is to
Basis – It has exclusive original Basis – RTC as a court of
have the final and executor judgment set aside so that there will be
jurisdiction over said action general jurisdiction under
renewal of litigation.
under Sec. 9 (2), BP 129 Sec. 19 (6), BP 129

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CA may dismiss the case When a habeas corpus petition is filed in order to nullify a decision
RTC has no such discretion. on a criminal case, the principal relief which the petitioner seeks is to
outright; it has the discretion on
It is required to consider it as declare the petitioner has been deprived of his liberty unlawfully. It is
whether or not to entertain the
an ordinary civil action. not principally to set aside the judgment rendered by the RTC in a
petition.
criminal case.

Q: If a judgment of an MTC can be the subject of annulment by


The remedy of petition for habeas corpus in criminal case are more
CA or RTC as the case may be, can we also seek annulment of
advantageous than that of an annulment of judgment in civil cases.
the decisions by a quasi-judicial or administrative body?
This is because an annulment of judgment in civil cases is a direct
A: Under BP 129, annulment of judgment, as procedurally explained
attack against the judgment in the civil case, while in the criminal
in Rule 47, does not extend to the quasi-judicial or administrative
cases, the detainee can challenge the validity of the judgment of
body, unless such provision was allowed by the charter of such
conviction, although he is not attacking directly the validity of the
administrative or quasi-judicial body.
said judgment of conviction. He is attacking the validity of the
deprivation of his liberty.
Rule 47 refers to an action filed by a petitioner to annul a judgment
rendered by an RTC in a civil case. This is what literally BP 129
Q: What is a collateral attack on judgment?
provided where CA is given the authority to annul decisions made by
It is made in another action to obtain a different relief; an attack
an RTC in a civil action. Therefore, if the action is not a civil action
on the judgment is made as an incident in said action. This is
or rendered by a quasi-judicial or administrative body, we cannot use
proper only when the judgment, on its face is null and void, as
Rule 47.
where it is patent that the court which rendered such judgment
has no jurisdiction (Co vs. Court of Appeals, 196 SCRA 705).
Q: Since Rule 47 says that the annulment contemplated in BP 129
refers to a judgment in a civil action, does it mean to say that the
Note that Rule 47 is inserted in between the rules governing appeals.
judgment of an RTC acting as a criminal court cannot be subject
The procedure for appeal starts with Rule 40 up to 56. Annulment of
to annulment of judgment by the CA under Rule 47?
judgment has nothing to do with appeals as it is a civil action.
No.
Annulment of judgment is an original action that can be filed in the
RTC and CA. And, in Rule 47, when particularly applied to a petition
If the judgment of the RTC is a judgment in a criminal case, we
for annulment commenced before the CA, you will notice that some
cannot use Rule 47 as it is specifically stated in the said rule that
of the features of a special civil action are carried by a petition to
annulment of judgment is availing only to civil cases decided by the
annul the judgment filed with the CA. For instance, if a petition to
RTC. Rule 47 is not a remedy to annul decisions or judgments annul a judgment of an RTC in a civil case is filed in the CA, the CA
rendered by the RTC as a criminal court. A decision of an RTC in a has the authority to outrightly dismiss the petition for lack of merit.
criminal case can be annulled by filing a case for habeas corpus. This is similar to Rule 65, where the petition for certiorari,
Petition for habeas corpus is the equivalent in criminal cases of
prohibition or mandamus can be outrightly dismissed if it is not
petition for annulment of judgments in civil cases.
meritorious on its face.

An RTC could act as a civil and criminal court. It exercises original


Q: What if the decision in the RTC was already final and
actions over both actions. RTC decisions in civil actions could be the
executory, can the petition to annul judgment filed in the CA stop
subject of annulment by CA under rule 47, but Rule 47 does not
the execution of the said judgment?
apply if the decision is one rendered from criminal cases. The remedy
No. The petition will not stop the prevailing party from moving for
in order to annul a judgment in criminal cases is by filing a petition
the execution of the final and executory judgment in the civil case,
for habeas corpus. BP 129 is very clear under Rule 47. What can be
notwithstanding the commencement of the petition to have the
annulled under Rule 47 are judgments in civil cases only.
judgment in the civil case annulled. The only remedies available to a
petitioner for annulment of judgment of an RTC in the CA is to apply
Q: Is there a difference between Rule 47 (petition for annulment for the provisional remedy of PI or TRO to stop the RTC from
of judgment rendered by an RTC in a civil case) and petition for proceeding with the execution of the said judgment.
habeas corpus?
There are substantial differences.
Q: Under Rule 47 in relation to BP 129 in the case of annulment
of judgments of an RTC filed in the CA, is it correct that only the
Annulment under Rule 47 is a direct attack of a final and executory litigants thereto can file the petition to annul a judgment in a civil
judgment, the only purpose of which is to nullify and set aside a court case?
decision in a civil case. But in a criminal case where the decision of No. As held in the case of Islamic Da'wah vs. CA, the petition for
the RTC may not be valid due to lack of jurisdiction or extrinsic annulment of judgment in BP 129 and Rule 47 does not prohibit a
fraud, the remedy is petition for habeas corpus, which is an indirect stranger from filing a petition to annul judgment. He can do so, so
attack on the judgment of an RTC in the criminal case. long as he can show he will be prejudiced by the judgment sought to
be annulled.

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In Islamic Da’wah, in allowing a stranger to annul a judgment, then Q: What is the general rule regarding execution pending appeal?
he need not seek other remedies since the stranger to a case The judgment creditor cannot ask for execution of the judgment if the
cannot possibly avail of remedies that are available only to a case is pending appeal.
litigant in a case.
Q: Are there exceptions?
While CA has authority to outrightly dismiss annulment of judgment, Yes. The Rules state four which are ‘immediately executory’:
the RTC cannot. Insofar as RTC is concerned, petition to annulment 1. Support
of a judgment by an MTC should be treated as any normal civil case. 2. Receivership
3. Accounting
4. Injunction
In Rule 47, if the judgment is annulled, it is declared void by the
court. It is unenforceable, or if already enforced, CA can order
A decision by the MTC in forcible entry and unlawful detainer cases
restitution if that is still possible.
are also immediately executory.

Q: Is there a conflict between Rule 47, annulment of judgment,


Q: If a decision is immediately executory, does it mean the court
and Rule 132, Section 29, or impeachment of a judicial record?
may execute the decision motu proprio?
There is no conflict between Rule 132 and Rule 47 since they involve
No. There must be a correlative motion from the winning party. It is
very similar grounds. Although Rule 132 does include as one ground
immediately executory in the sense it may be executed even pending
‘collusion,’ extrinsic fraud under Rule 47 is broad enough to include
appeal.
collusion. There is therefore, no real conflict.

Q: When is execution as a matter of discretion?


Under the Rules, if the decision is not among those decisions that are
PRELIMINARY CONFERENCE IN APPEALS immediately executory, the court may still execute the judgment even
pending appeal if the winning party proves good reasons in a hearing
The preliminary conference before the appellate court is permissive, before the court.
not mandatory, unlike the rule on pre-trials under Rule 18. However,
if the CA or SC does call the parties to a preliminary conference and
Q: May the winning party say that he is willing to put up a bond
the appellant does not attend, the appeal will be dismissed.
in order to have an execution pending appeal?
No. The winning party must prove concrete good reasons. Putting up
a bond is not one of them.
Have a break. Have a Kitkat.
Q: May discretionary execution be stayed?
Yes. The judgment debtor only has to set up a supersedeas bond. If
EXECUTION AND SATISFACTION OF JUDGMENT there is an order of an execution pending appeal, he may go up using
Rule 65, provided there is grave abuse of discretion, and pray for an
Rule 39 has been described in jurisprudence as the one that gives life injunctive relief against such order.
to the law. It does so in the sense that the winning party will be able
to recover the award given in his favor. So if the civil case is the Q: What court will execute the judgment pending appeal?
recovery of money, and the court awards P2M to the prevailing party, It may be the appellate court or the trial court. As a general rule, it is
said party will not be satisfied until the P2M is given to him. the appellate court which will execute the judgment pending appeal.
However, the trial court may also exercise its authority to execute the
Q: Should Rule 39 always be resorted to in order to have judgment pending appeal if it has residual jurisdiction over the case.
satisfaction of judgment? It is one of the powers expressly enumerated by the Rules under the
No. It is not correct to assume that in order to satisfy a judgment, we doctrine of residual jurisdiction.
should always make use of Rule 39. Satisfaction of judgment as
conceived in Rule 39 is a forcible satisfaction of judgment. So if Q: What court executes the judgment – the trial court or the
the award in favor the judgment creditor is for the payment of the appellate court?
judgment debtor of P2M, the judgment creditor does not even have to As a general rule, if there is an appeal from the decision rendered by
think about Rule 39 if the judgment debtor immediately pays the the trial court, and the case has reached the SC, even if the decision
award of P2M. of the trial court has been affirmed, and said decision by the SC has
been entered, it is not correct for the prevailing party to ask for
It is only in that situation where the judgment debtor refuses to pay execution from the SC. The matter of execution is a duty of the court
that the only remedy of the judgment creditor to enforce payment is of origin, not the appellate court. If the court of origin is the MTC, it
to make use of Rule 39, to force the debtor to pay by levying his is the duty of the MTC to enforce the satisfaction of the judgment. It
properties and by selling his levied properties by public auction. is axiomatic that higher courts like the CA or SC do not usually issue
an order for execution of judgment.
Execution Pending Appeal

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What a lawyer for the judgment creditor should do is to wait for the five years, we can execute the judgment via a motion for execution.
records to be returned from the SC or CA to the court of origin. It After the lapse of the first five year period, the judgment creditor
could take time for the records to be returned to the court of origin. cannot file a motion for execution. If he does so, the court will deny
So, if a motion for execution was filed by the judgment creditor in the the motion since the court will no longer have the authority to grant
court of origin before the records are returned, there is likelihood that the motion of execution. The second 5-year period is designed to
the court of origin will tell him they have not yet received the records force the judgment creditor to file a separate independent action to
so they cannot act on the motion until the records reach the court of revive the judgment. So the motion for execution should be filed
origin. This is although the issuance of an order granting the motion within the first five years of the 10-year period.
for execution is a ministerial duty of the court.
Q: Is the first 5-year period strictly implemented by the rules?
Rule 39, however, has provided for a remedy in this situation. The It is not. It can be extended according to the Rules. The SC has
appellate court will simply issue a certified true copy of the entry of decided that if the institution of the judgment within the first five
judgment. The certified true copy of the judgment will be submitted years is delayed, and the delays are equitable or are attributable solely
to the court of origin in order to be a basis of the granting of the order to the conduct of the judgment debtor, then the 5-year period will be
of a motion for execution. That is enough proof that there really is a correspondingly be extended, that is equal the delay caused by the
final and executory decision. conduct of the judgment debtor.

Q: Is there a need for the judgment creditor to file a motion for For example, the judgment creditor filed a motion for execution of
execution, or will the issuance of a writ of execution come as a the judgment on the third year of the first 5-year period. The court of
matter of course? origin is an RTC. The judgment debtor received a copy of the motion.
There is always a need to file a motion for execution. If the judgment After receiving the copy of the motion, the judgment debtor files a
creditor has not filed a motion for execution, the court has no petition for the annulment of judgment before the CA under Rule 47
business to issue a writ of execution, because the court will not know with prayer for a preliminary injunction. CA granted the preliminary
whether there was voluntary satisfaction of judgment. injunction. Because of the preliminary injunction issued by the CA,
we cannot expect the RTC to order the execution of the judgment. It
Q: May a motion of execution be heard ex parte? took the CA two years to decide upon the petition of the judgment
Since the judgment has become final and executory and it has now debtor. In the end, CA ordered the dismissal of the petition for
become a ministerial duty of the court of origin to issue a writ of annulment of judgment. There is now a delay of two years. If the 5-
execution, then the motion for execution will be heard ex parte, year period has already lapsed due to the delay, another two years
without notice to the judgment debtor. will be added, the 5-year period will be automatically extended up to
seven years within which the judgment can be executed through the
Although this issue has been the subject of conflicting decisions by filing of a motion for execution of judgment. That is how the SC
the SC, the latest jurisprudence said that a motion for execution of a described how the first 5-year period and the second 5-year period
judgment that has become final and executory can be heard ex parte should be interpreted. It is not a fixed period.
by the trial court. Under the old doctrine, the judgment debtor should
also be given a copy of the motion for execution because the latter Q: What does ‘delay caused by the conduct of the judgment
may have grounds to oppose the issuance of the writ of for execution. debtor’ mean?
This simply means that the judgment debtor can legally delay the
Q: What is the period granted by the Rules to file a motion for execution of the final judgment. In fact, he is given two remedies
execution? under the Rules to prevent the execution of a final judgment. Rule 38
Within the Rules, there is a period fixed within which the court can is one means of delaying the execution of judgment. In Rule 38, the
grant a motion for execution as a ministerial duty. It is 5 years from court that decided the case can issue an injunction against the
the entry of judgment. After the 5 years from entry, there can be enforcement of the judgment. Rule 47, or annulment of judgment, is
revival of judgment, no longer a motion, since this is an independent another remedy, but there should be a corresponding preliminary
action to revive the judgment. But the independent action to revive injunction that is issued by the higher court. In annulment of
judgment must be filed within the second 5-year period after the judgment, the court that will try the case will always be a higher
entry of judgment. court. Thus, if the higher court hearing the petition issues an order to
stop the execution of the judgment, there is no way for the court of
Q: The Rules assume that the prescription period for the origin to disobey such order.
execution of a judgment is the 10-year period. Is this a correct
assumption? Q: If the motion for execution is granted, which is expected, as
This is correct, as this is also provided under the NCC. A prescriptive the judgment has become final and executory, can the judgment
period of a final and executory judgment is really 10 years under the debtor file an appeal against the order granting the motion for
NCC. execution?
No. Under Section 1 Rule 41, an order granting motion for execution
But what Rule 39 has provided was to divide the 10 years into two is not appealable. The order will be treated as a final order. The
parts; the first five years, and the second five years. Meaning, the first remedy is to file a petition under Rule 65, a petition for prohibition.

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judgment debt has been paid or otherwise satisfied or the
Q: Suppose the court denies a motion for execution of judgment, writ is issued without authority.
is appeal the remedy of a judgment creditor?
No, it does not seem so, based also under Section 1, Rule 41. The Q: What if the trial court denies the motion to quash?
creditor should also resort to Rule 65. The petition that he should file Dean Albano: The party may appeal (either by ordinary appeal or a
is a petition for mandamus. Mandamus is proper because there is a petition for review) or by a special action of certiorari, prohibition, or
ministerial duty for the court to perform. Under Rule 39, as long as mandamus. Considerations of justice and equity dictate that there
the judgment has been entered, it has become a ministerial duty of the must be some mode available to the party aggrieved of elevating the
court to grant a motion for execution. That is an act that can be question to a higher court (citing Banaga v. Majaducon).
compelled by a writ of mandamus.
Q: Suppose within the first 5-year period, the court grants a
Q: May the judgment creditor file a motion for execution after motion for execution, and then issues a writ of execution. The
the first five-year period even if the judgment debtor consents? writ of execution is carried out by virtue of a levy on execution of
No. The SC held that after the first five-year period, the court loses the properties of the judgment debtor. But the properties levied
jurisdiction to execute the judgment through a mere motion. The fact upon were not sold during the first 5-year period. On the 6th
that the judgment debtor did not oppose said motion does not matter year, can the properties levied upon be sold at public auction?
because the issue now is one of jurisdiction. Jurisdiction will not be Yes. According to the SC, the first 5-year period does not require that
vested upon the court simply by inaction on the part of a party. Thus, the actual levy and sale of property on public auction must be done
the proceedings taken by the court in granting the motion for within the first five years. What is important is that within the first 5
execution beyond the first 5-year period was held to be irregular. The years, there must be an actual levy of the properties of the judgment
issuance of the writ of execution is void, and therefore the writ can be debtor, even if the auction sale was conducted in the sixth year. Levy
quashed for lack of jurisdiction. is the actual act of carrying out the judgment.

Q: Can the trial court promptly deny a motion for execution? Revival of Dormant Judgment
The general rule is that the trial court cannot quash or rightly deny a Q: With respect to the revival mentioned in the Rules pertaining
motion for execution if the judgment has already been entered. But, to the second 5-year period, this is an independent action. If the
there are certain exceptions that the SC has recognized. original action was a real action, will we still consider the revival
action as a real action?
First, if the judgment has become dormant. This means the first five Yes. If the original action is a real action, the action to revive that
years for executing the judgment has already lapsed. The execution judgment will also be a real action. Since it is a real action, in Rule 4,
of the final judgment cannot be granted via a motion. The judgment the venue of the action will now be determined by the place where
creditor must avail of the independent action of revival of judgment the property is located. Thus, the revival of action will be filed in the
to revive a dormant judgment. court having jurisdiction over the place where the property is
situated.
Second, when the parties enter into a compromise agreement after the
judgment has become final and executory. If there is a compromise Q: To what court should revival of judgment be filed?
agreement signed by both parties whose terms are not consistent with The case will be cognizable by the RTC because it is incapable of
the award given, the effect will be novating the judgment. The court pecuniary estimation.
will no longer grant a motion for execution since there is nothing to
execute. The parties may agree to change the terms of the dispositive Always remember that a petition to revive a dormant judgment is an
portion of the judgment. This is an application of novation being a independent action separate and distinct from the original case. It is
mode of extinguishment of an obligation under the NCC. not a mode of appeal or a continuation of that old case.

Q: Is a writ of execution subject to a motion to quash? In fact, the decision of the ‘revival court’ is not really a revival of the
Yes. A writ of execution may be quashed on certain grounds: old judgment. It is a new judgment altogether. This is the reason why
1. When the writ of execution varies the judgment; a judgment may be revived in perpetuity. Although it is true that the
2. When there has been a change in the situation of the parties NCC says that the judgment will prescribe after 10 years, since each
making the execution inequitable or unjust; ‘revived’ judgment is a new judgment altogether, so long as there is a
3. When execution is sought to be enforced against a property revival every ten years, it may last in perpetuity. Of course, this does
exempt from execution; not factor laches and the articles of NCC against bad faith.
4. When it appears that the controversy has never been
submitted to the judgment of the court;
5. When the terms of the judgment are not clear enough and Q: May the judgment debtor raise want of jurisdiction against an
there remains room for interpretation thereof; action to revive judgment?
6. When it appears that the writ of execution has been No. Within the second five-year period from entry of judgment, the
improvidently issued; debtor cannot oppose an action to revive judgment by setting up the
7. When it appears that the writ of execution is defective in defense that the judgment is void due to lack of jurisdiction over the
substance, or is issued against the wrong party, or that the

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person of the defendant, as this is a collateral attack on the judgment
rendered. If the judgment directs the judgment debtor to sign a deed of
conveyance or a deed of sale in favor of the judgment creditor,
Q: It is possible that the parties of the original action and the and the judgment debtor refuses, the court can appoint another
revival of judgment are different. Will the petition to revive the person, usually the clerk of court, to sign the document on behalf of
judgment be dismissed? the judgment debtor. That document cannot be considered a spurious
No. The mere fact that the names appearing as parties in the document, but one that is signed effectively by the judgment debtor
complaint for revival of judgment are different from the names of the following a lawful order of the court.
parties in the original case would not necessarily mean that they are
not the real parties-in-interest. What is important is that, as provided If the judgment directs the judgment debtor to vacate a piece of
in Section 1, Rule 3, they are the party who stands to be benefited or land or building, the court, through the sheriff, will forcibly oust
injured by the judgment in the suit, or the party entitled to the avails him from the building. The court will throw out the things belonging
of the suit. to the occupants.

Revival of a Judgment Already Executed In a writ of execution, the writ will be directed to the sheriff. The writ
There is another revival of judgment, this time under Section 34 Rule will contain verbatim the dispositive portion of the decision. The writ
39. The revival of judgment in Section 34 Rule 39 is not the revival of execution directs the sheriff to carry out the duty of executing the
of a dormant judgment, but refers to a judgment already executed. dispositive portion of the judgment of execution.

The situation contemplated in Section 34 Rule 39 is that judgment is Q: Can the court cite a judgment debtor for refusing to obey a
executed, properties are levied upon, and these properties have been lawful order of the court in compliance with the judgment to be
sold at public auction, but the highest bidder, or anybody who executed?
thereafter acquire the property, is not able to get possession of the No. Citation for contempt is generally not a remedy in enforcing a
property because of opposition or legal complications that are related judgment. Rule 39 contemplates an enforcement of a judgment by the
to the execution of judgment. According to Section 34, the revival of sheriff of the court making use of the processes in Rule 39. So if the
judgment could be had through a motion or through an independent judgment debtor refuses to obey, a court cannot go to another court to
action. Thus, there is a difference between a revival of judgment cite the judgment debtor in contempt. That is not contempt of court.
under Section 34, Rule 39 where it is a revival of a judgment already According to the SC, the writ is not addressed to the judgment debtor.
executed via a motion or via an independent action, and the revival of The writ is addressed to the sheriff of the court, and hence the sheriff
a dormant judgment where there has been no execution within the has the duty to carry out the dispositive portion of the judgment.
first 5-year period prescriptive period of a judgment under Section 6
Rule 39. Q: Can there be contempt in collection of money cases by way of
exception?
Take note of the differences between the two kinds of revival of Generally, no, but it is possible in support. Failure to give support can
judgments in Rule 39, under Section 6 and Section 34. result with the disobeying person being cited in contempt, as well as
being subjected to a criminal case for failure to give support.
Process
The improvement given by Rule 39 under the 1997 Rules, insofar as Levy of Property
the judgment creditor is concerned, is that under the present Rules, As a general rule, therefore, a judgment debtor who refuses to obey
the writ of execution issued by the court has a lifespan of five years. the writ of execution cannot be cited in contempt. There are other
The judgment creditor does not need to file one motion for execution more effective remedies under Rule 39 in order to carry out the
after another, which was the prior practice when the life of the writ of possible satisfaction of the judgment. The more effective remedy
execution was only 60 days. At any time during that five-year period, under Rule 39 is to levy the properties of the judgment debtor,
the sheriff could enforce the writ, he may make levy the properties of seizure thereof and sell them at public auction.
the judgment debtor. The only limitation imposed by the Rules is that
the sheriff must file periodic reports to the court as to the progress of Q: Who possesses a property under levy on execution?
the process of execution. It depends.

Q: How does the court enforce a duly entered judgment? Levy of properties under Rule 39 does not automatically mean that
It all depends on the tenor of the judgment. possession of the levied properties will be in the hands of the sheriff
or the court. If properties of the judgment debtor that are levied upon
If the judgment awards money, there will be levy and auction. are real properties, the judgment debtor will continue to possess the
property and he will not be ousted. The court will simply submit a
If the award involves delivery of properties or documents, there copy of the levy of execution to the Register of Deeds and ask the
will be no levy on execution, but the property to be delivered will just latter to annotate such fact. What is important to know in the levy of
be seized from the judgment debtor and promptly delivered to the real properties is that the judgment debtor will not be ousted from his
judgment creditor.

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physical possession of the real property. He will continue to be in The sheriff shall not be liable for damages for the taking or keeping
possession of the real property although it is already subject of a levy. of the property to any third-party claimant if there is a bond filed by
the winning party. If there is no bond, the sale cannot proceed.
But when the property levied upon is personal property, the physical However, the judgment obligee can claim damages against a third-
possession of the property will be turned over to the sheriff. In fact, party claimant who filed a frivolous or plainly spurious claim, and
the properties will literally be placed in custodia legis. such judgment obligee can institute proceedings therefor in the same
or separate action.
Q: What happens after the levy is implemented by the court?
Levy of properties under Rule 39 should always be followed by sale Replevin is also a remedy of the true owner of the personal property
by public auction. We will not have execution if we stop at levying of if it was improperly levied and sold
properties. The levy must always be accompanied by a sale by
auction. If there is only levy without a sale by auction, then that levy If the property is a real property, the true owner/third-party claimant
can be nullified by the court. It is the duty of the court to see to it that can file an independent action to prevent the sheriff from selling the
an actual levy of properties should be followed by a public auction property.
sale.
The easiest and most practical remedy available right away to the true
Under Rule 39 and under certain special laws, there are certain owner is a Third Party Claim. It does not require the filing of a
properties of a judgment debtor that is exempt from levy. If the complaint, just the submission of an affidavit to the sheriff and to the
property of the debtor that is exempt from execution is levied upon, court, setting forth his ownership and entitlement to the possession,
the levy is void, and the sale thereof is also be void. The validity of and that the property should not be levied upon because this is not a
an auction sale shall always stem from the validity of a prior levy. property of the judgment debtor. Evidence appurtenant thereto must
Even if there is valid levy, but if there are requirements not complied be attached.
with before, during or after auction sale, the sale will be void, and the
buyer will not acquire title to the property sold. Q: Can the court render a judgment that will tell the sheriff that
the property is not the third party claimant’s but that of the
Terceria / Third-Party Claim judgment debtor?
The principles in Rule 39 and Rule 16 are practically identical. No. The third party claim is an incident to the execution process, the
trial proceedings are over insofar the court is concerned. The court
Terceria is predicated on the premise that the property levied upon by has no power to resolve an issue of ownership involving the property
the sheriff for the purpose of executing of the duly entered judgment levied upon. It should be threshed out in a separate complaint.
does not belong to the judgment debtor. If the property levied upon Regardless of a finding by the execution court that the true owner is
belongs to another person, the levy is not valid. Rule 39 expects that the judgment debtor, that will have no bearing on the third party
the property levied upon by the sheriff belongs to a judgment debtor. claimant. That order will not be entered, it will not be considered a
If the sheriff makes a levy on properties which do not belong to the judgment on the merits and will not constitute res judicata insofar as
judgment debtor, you can expect the true owner to complain. The true a third-party claimant. If at all, the consequence of the finding of the
owner can file a complaint for the recovery of the real property from court is that the sheriff can go ahead with the sale of the property.
the sheriff. The filing of such complaint of the owner is just one of
the several remedies which the owner can avail of. In Rule 39, the Q: If the sheriff schedules the sale, can third party file an
remedy refers to the filing of a third party claim. independent action to stop the sale of real property?
Yes, he can file the complaint in another court, RTC, for injunction
Terceria, however, is not the only remedy available to the true owner. with claims for damages, if any.
He may have other remedies.
Q: If the property levied upon is a personal property of a third-
Q: What are the remedies available to a third-party claimant in party claimant, can the third-party file a complaint for replevin?
levy of real property? Yes. The claimant must implead the sheriff and the judgment creditor
A: / judgment obligee.
1. Summary hearing before the court which authorized the
execution; Q: If the executing court is an RTC, and third party claimant
2. Terceria or third party claim filed with the sheriff; files a case for replevin, can he file it in the MTC?
3. Action for damages on the bond posted by judgment
Yes, as replevin is cognizable by the MTC depending upon the value
creditors; or
4. Independent reinvindicatory action. of the thing subject to the auction sale. PERSONAL

The remedies are cumulative and may be resorted to independently of Q: Is this interference with the other court? Can the sheriff in the
or separately from the others. other court claim that the seizure is interfering with the
proceedings of the other court?
No. The sheriff of the MTC can seize the personal property from the
sheriff of the other court.

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The right of the first levy holder to redeem is a distinct right from the
Q: Cannot the sheriff of the MTC capitalize on the provisions of second levy holder to redeem the property. If it is the second holder
Rule 60 on replevin that the writ of replevin cannot be enforced who redeems the property, there could be another redemption by the
when the property is subject to attachment? judgment debtor. Under Rule 39, when it is the judgment debtor who
If you go to Rule 60, it is really a requisite in the issuance of a writ of redeems the property from the highest bidder, other rights of
replevin. The issuing court can issue a writ of replevin validly if the redemption are cut off by virtue of the redemption by the judgment
property to be seized is not under custodia legis, not under a levy of debtor. There are successive redemptions only if the redemptioner is
execution or attachment. If the property is subject of a levy on not the judgment debtor himself. If the one who redeems the property
execution, it is under custodia legis. is another lien holder, we can apply the rule of successive redemption
which says that another redemption can be had within 60 days from
But notwithstanding that provision in Rule 60, the SC said that a writ the efficacy of the first redemption, even if the one-year period for
of replevin issued by the MTC will prevail over the levy on execution redemption has already expired.
writ by the sheriff because the writ of execution by the sheriff is void.
Rule 60 assumes that there was a prior valid levy on execution. For a For example, there are three redemptioners, one being the judgment
property to be validly levied upon, the property must be owned by the debtor. If the redemption is carried out by the judgment debtor, the
judgment debtor. Otherwise, the levy is void. Therefore, the property rights of redemption of the other two are cut off. Redemption for all
can be the subject of a seizure by another sheriff in compliance with a of them is one year from the registration of the sale in the certificate
writ of replevin issued by another court, even if it is an MTC. It is of title. So we have to assume that redemption should be within one
proper for the MTC to issue a writ of preliminary mandatory year from the registration of the certificate of sale in the certificate of
injunction directed against the sheriff to prevent the sheriff from title. If the second levy holder redeems the property, then the third
going ahead with the sale. levy holder can further redeem the property within 60 days from the
last redemption. But within the one-year period, the judgment debtor
In Rule 39, if the property of judgment debtor has been subjected can redeem the property, who upon his exercise of his right of
to levy on execution, can it be subjected to another levy on redemption, the rights of the others to redeem will be cut off.
execution?
Yes. If there are several cases where the property is subject to levy, it Q: Will this not cause prejudice to the other levy holders if we cut
is possible the same property can be subject again to another levy on off their right to redemption?
execution. The debtor remains to be the owner of the land, and the No, it will not. The levy holders will simply enforce their levy since
levy creates a lien only over the property. The first levy annotated on the property is in the hands of the judgment debtor. They can have
the title of the property shall be superior to the subsequent levies another public auction sale of that levied property.
following the principle of seniority. The SC held that if the property
is the subject of different levies, and the judgment debtor sells the In civil law, as well as in Rule 39, the SC has accepted the principle
property, the sale is valid, as the judgment debtor is still the owner of that whenever there is a doubt in the interpretation of redemption
the property at the time of the sale. But the buyer must respect the rules and laws, the interpretation should always be in favor of the
annotations of levies in the title as to the liens imposed. So, if the redemptioner, the judgment debtor.
property is sold at public auction sale later on in execution of the first
judgment, the person who bought it from the judgment debtor stands Rule 39 is also very clear in saying that right of redemption will exist
to lose the property. The buyer is not considered a buyer in good faith only when the property sold at public auction is real property. When
due to the said annotation of the levies in the title. the property levied upon and sold at public auction is a personal
property, there is no right of redemption.
Q: If the property was mortgaged by the judgment obligor to a
bank, can the sheriff still subsequently levy the property? Q: Why is there no right of redemption in the auction sale of
Yes. The levy only creates a lien. The judgment obligor only loses personal properties?
ownership if there was a public auction sale thereon. But ownership 1. If personal property is sold in auction, and the price
shall not immediately be lost, so long as judgment debtor still has the generated is inequitably low, the sale is void. The highest
right of redemption. bidder does not acquire ownership of the property. The
court will issue an order declaring the sale as ineffectual.
Sheriff must schedule another auction sale until the price
Right of Redemption generated is not inequitably low.
If in cases where there are two different levies over the same piece of
land of the judgment debtor, usually, the property will be sold as a 2. If real property is sold at public auction, it does not matter
result of the first levy of the property. If the property is later on sold even if the price is inequitably low, the sale will be valid.
at public auction, and since the law gives to the judgment obligor the The low price will not render the sale void because of the
right of redemption, this right of redemption will also be enjoyed by existence of the right to redeem by the judgment debtor. If
the buyer. the price is very low, that is advantageous to the judgment
debtor, because if he decides to redeem the property, he
need only to match the auction sale price.
Q: What is the rule on successive redemption?

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Due to the above principles, the price generated during the auction Q: Who is entitled to the fruits of the levied property?
sale will be insufficient to pay the lien of the judgment creditor. Rule 39 is clear. The fruits of the property sold at public auction
during the period of redemption shall redound to the benefit of the
Q: Let us say that the judgment creditor has a lien of 1M, and a judgment debtor when the redemption period is still running.
piece of land owned by the judgment debtor was sold at public
auction, but generated only 500K. It is not enough to pay in full The basis of course is that the judgment debtor still retains ownership
the award given to the judgment creditor. The 500k will go to the over the property.
judgment creditor, but there is still a balance of 500k. When the
judgment debtor redeems the property, should he deliver to the Q: What are the rights of a judgment debtor during the period of
sheriff 500k or 1M? redemption?
The judgment debtor should deliver only 500k. He need not deliver 1. To remain in possession of the property until the expiration
1M because the price paid by the highest bidder was only 500k. of period of redemption;
2. To collect rents and profits until the expiration of period of
redemption;
Q: So, if the judgment debtor was able to redeem the property by
3. To use the property in the same manner it was previously
producing 500k, but the judgment creditor was not yet fully paid, used;
the judgment creditor will be tempted to have another levy on the 4. To make necessary repairs; and
property. The judgment creditor could really entertain that idea 5. Use it in the ordinary course of husbandry.
because he has not yet been fully paid. In Rule 39, there must be
full satisfaction of the award to put an end to the litigation. If the Auction Sale
judgment creditor decides to have another levy on the same In the auction sale, anybody can bid, even the judgment creditor. It is
property previously levied upon, but the property had been usually the judgment creditor who will be offering the highest bid
redeemed by the judgment debtor, can the same levying creditor because the judgment creditor can give an amount equivalent to the
carry out another levy on the same property? award given by the court. If the award given by the court is 1M, then
SC held that the same levying creditor cannot impose another levy on the judgment creditor can give an amount as high as 1M. He need not
the same property. turn over any cash to the sheriff, because he will just tell the sheriff
that he will consider the 1M lien as fulfillment of his claim.
If the levying creditor wants to have full satisfaction of his lien, he
should make another lien on another property owned by the judgment If a stranger is the highest bidder, this stranger is expected to give the
debtor. He could also avail of the other remedies provided for in Rule P1M to the sheriff.
39 if he cannot get full satisfaction of the judgment.
Q: Can the judgment creditor be forced to shell out the
But this principle does not prevent other creditors from levying the equivalent of the highest bid even if the highest bid is exactly
property that was already redeemed. equivalent to the amount of his claim?
Generally, no. But if there is a third party claim, a terceria, and the
Q: Let’s do a little backtrack. Who may redeem the property? highest bid was that of the judgment creditor, the judgment creditor
The judgment debtor, other creditors who has a lien subsequent to the must still shell out cash in order to be treated by the sheriff and the
attaching creditor, and the assignee of the judgment debtor’s right to court as the highest bidder.
redeem may all redeem the property.
Q: Let’s say there is a highest bidder other than the creditor. To
Q: May the right of redemption be levied? whom should he deliver the cash or issue the check for?
Yes. It could be a subject of a levy of execution, but not by the same He must issue the check to the order of the judgment creditor, not the
attaching creditor. For example, if A attaches B’s property where it is sheriff or the court.
eventually sold in an auction sale, another creditor, C, may attach B’s
right to redeem his property from A. But A may not attach the same Q: What happens if there is still a balance after auction sale?
right of redemption because this would negate the idea of giving the If the judgment creditor is not fully paid, there are other options
right of redemption to the debtor in the first place. given to him in order to fully satisfy the claim:
1. File a motion in the court for an examination of the
Q: The period of redemption is one year from the date of judgment debtor.
registration of the certificate of sale. May the parties agree that 2. File a motion in the executing court for the examination of
a debtor of the judgment debtor.
the period will be three years instead of one?
3. File a motion for the appointment of a receiver for the
Yes. This shows the conversion of a legal redemption to conventional remaining properties of the judgment debtor.
redemption and is allowed by the NCC.
Under the second ground, if there is evidence to show that these third
Q: How about they agree to reduce it to six months? persons really owe the judgment debtor certain amounts of money,
This is not possible. They may also extend the period, not reduce it. which are not exempt from levy on execution, the court can issue an
order allowing the judgment creditor to file a separate complaint for
Fruits

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the recovery of these accounts. Although the judgment creditor has rendered it or by the Highest Court of the land. Any act which
no cause of action against the third persons themselves, it is possible violates this principle must immediately be struck down.
under the Rules.
Q: Rule 39 implies that the petition to revive a dormant
Receivership is allowed by the court, although the case has already judgment is an independent action. Will this not violate the
been terminated. This is one instance where a provisional remedy can principle of res judicata?
be used even after a case has been decided by the court. The usual No. Although there is identity of parties, there is no identity of causes
concept of a provisional remedy is that they are availed of during the of action. The cause of action for the petition to revive the dormant
pendency of the case, before entry of judgment. But in the case of judgment, which is obviously the revival of the dormant judgment, is
receivership, this remedy can be availed of under Rule 39 even if the different from the first case.
case has already been decided, judgment has been entered and is now
subject to execution. This is the same reason why Rule 47 will not violate the principle of
res judicata. Although the parties are the same, the causes of action
are not. The cause of action in Rule 47 is the annulment of judgment
THE PRINCIPLE OF RES JUDICATA of the court. It is different from the cause of action in the first case.

Res judicata under Rule 39 consists of two sections, Sections 47 and Q: Are there any exceptions?
48. Dean Jara advises to memorize these two sections. For recitation Yes. If you read FGU Insurance, there are exceptions to the doctrine
purposes, definitely memorize these two sections. of immutability of judgment. These are:
1. The correction of clerical errors;
Section 47 is concerned with the effect of local judgment after it is 2. the so-called nunc pro tunc entries which cause no
prejudice to any party;
entered, and Section 48 is the effect of a foreign judgment.
3. void judgments; and
4. whenever circumstances transpire after the finality of the
In our study of res judicata, there are 3 essential elements: decision rendering its execution unjust and inequitable.
1. Identity of parties
2. Identity of causes of action Read: FGU Insurance v. RTC
3. Identity of subject matter
Note: Dean Jara says there is a fifth ground involving a 2007 case. I
Besides this identity element, there should also be:
cannot find it. The old notes say ‘when substantial justice so requires’
1. A competent court;
but he denies this is the fifth ground during our recitation. Or I’m just
2. An adjudication on the merits; and
3. The decision must have become final and executory. sleepy during that time. Anyway, make more research, and read more
notes. There is a fifth ground, I just don’t know what.
Section 47
Section 47 comprises of three subparagraphs. If you read Dean Albano’s Survey of SC Decisions (San Beda Law
Journal, Vol. XLIX), Dean Jara might be referring to either unjust
Subparagraph (a) has to do with a judgment in rem. enrichment or the court’s exercise of its equity jurisdiction.

Subparagraph (b) has to do with judgments in personam. Unjust enrichment is covered, however, by number 4, and equity
jurisdiction is more the reason, the root cause, why these judgments,
And subparagraph (c) talks about conclusiveness of judgment. This is though immutable, may be still changed. So there’s that.
also known as preclusion of issues.
Q: How do you rectify void judgments?
Subparagraphs (a) and (b) are also known as bar by prior judgment or A collateral attack since void judgments are ineffective anyway, or a
preclusion of claims. direct attack in the form of a petition for relief from judgment or a
petition to annul the judgment.
When the judgment is entered as contemplated in Section 47, Rule
39, then the effect of the judgment is similar to a judgment in rem or Q: What is a judgment nunc pro tunc?
judgment in personam as the case may be. The collateral principle It is a judgment intended to enter into the record the acts which had
that we adopt from this principle on res judicata is the doctrine of already been done, but which do not appear in the records. Its only
finality of judgment, also known as immutability of judgment. function is to record some act of the court which was done at a
former time, but which was not then recorded, in order to make the
Under this doctrine, a decision that has acquired finality becomes record speak the truth, without any changes in substance or any
immutable and unalterable, and may no longer be modified in any material respect.
respect, even if the modification is meant to correct erroneous
conclusions of fact and law, and whether it be made by the court that Judgment In Rem

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Under subparagraph (a) the law says the judgment is conclusive upon No. There is no identity of parties between the first and second case.
the title to the thing, the will or administration, or the condition, There is therefore no res judicata.
status or relationship of the person.
Q: If there is identity in the subject matter, does it not follow that
This is the reason why a cadastral proceeding is considered as an there will be identity in the causes of action?
action in rem. The judgment in that litigation is conclusive upon the No. There could be identity as to the subject matter, but the causes of
title and is not conclusive upon the plaintiff or defendant. Since the action could still be different.
judgment in a cadastral proceeding is conclusive upon the title of the
property, that judgment will have to be binding against the litigants as For instance, in accion reinvindicatoria, the subject matter involves a
well as anybody who has an interest over the property, although these piece of land. The case involves title to a piece of land. If there was
persons might have not been involved in the litigation. another complaint filed involving the same piece of land, the cause of
action could be different, although they are referring to the same
In the probate of a will, which is another procedure in rem, when land. For instance, there could be a case for unlawful detainer filed
there is a decision of the court admitting the will to probate, it is involving the same property. Though involving the same property,
conclusive upon the will or administration. Therefore, anybody who the same subject matter, the causes of action are different. Accion
has an interest in the will must respect the decision of the court. reinvindicatoria involves recovery of title to property, while unlawful
detainer involves recovery of physical possession of the property.
But you will notice that there is a caveat when it comes to a probate The second case cannot be dismissed by reason of res judicata since
of a will: It is not conclusive as to the fact that the testator is dead. there is no identity of causes of action.
There is only a disputable presumption, unless proof thereof is
presented. The reason for this is that in civil law as well as in the Q: What is the essential difference between a judgment in rem
Rules, it is possible that probate may be commenced even when the and a judgment in personam?
testator is still alive, provided that the probate of the will is initiated The big difference is to whom the binding effect of res judicata shall
by the testator himself. attach. If it is a judgment in rem, the judgment shall be binding to the
world. If it is a judgment in personam, it is only binding between the
If a person has been issued a decree of adoption of a child named parties and their successors in interest.
Juan dela Cruz, the decree is conclusive upon the personal status of
that adoptee. Therefore, anyone who meets the adoptee and transacts Conclusiveness of Judgment
with him shall be bound by the issued decree of adoption. Subparagraph (c) of Section 47 is a kind of res judicata with limited
application. There could be identity of parties and subject matter, but
Judgment In Personam there is no identity of causes of action. Thus, subsequent cases may
Under subparagraph (b), the law says the judgment is conclusive prosper due to absence of res judicata.
between the parties and their successors in interest by title subsequent
to the commencement of the action or special proceeding, litigating Q: The debt based on a promissory note was 1M payable in two
for the same thing and under the same title and in the same capacity. installments. The debtor defaulted in the first installment. The
creditor filed a case where creditor stated that the PN’s signature
In letter b, when the law says that judgment is conclusive upon the was forged. The court held that the signature on the note was
parties and their successors in interest as to matters directly adjudged genuine. Then, the second installment became due. Can another
or as to matters that could have been adjudged, that phrase “litigating complaint be had?
for the same thing and under the same title and in the same capacity” Yes. Each installment gives rise to a separate cause of action.
will refer, for instance, to a compulsory counterclaim or a cross-
claim. This is because we learned that a compulsory counterclaim or Q: Can forgery be raised again on the promissory note?
a cross-claim that is not raised in the same action shall be barred. The No. The judgment on the first case is conclusive insofar as the
reason they will be barred is because they are matters that could have genuineness of the note is concerned.
been raised in relation to the principal action.
Q: Let’s have another example. A filed a case against B where the
An example of an action in personam is reconveyance of property. If issue is ownership of a certain building. It was settled that A is
the action is an accion reinvindicatoria, it is an action in personam. the owner. B, however, filed another case against A, but this time
Although real property is involved, still it is an action in personam. It it’s possession of said building. Will the case be dismissed under
is an example of a real action that is still in personam. subparagraphs (a) or (b) of Rule 39?
No. Although there is identity of parties (A and B) and identity of the
Q: Plaintiff won the case for reconveyance of property. Judgment subject matter (the building), there are no identity of causes of action.
is entered. The plaintiff is now the owner of the property insofar The question in the first case is ownership. In the second case, it’s
as the judgment is concerned. However, X, the true owner of the possession.
property, filed a case for recovery of the property. Is there res
judicata? Q: May B raise the question of ownership in the second case?

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No, he may not. Although there is no identity of causes of action, Yes, the remedy is found in Section 48 (b) of Rule 39. The judgment
conclusiveness of judgment shall apply. The same issue of ownership from the Japanese court is a presumptive evidence of the judgment
has been tackled before in the first case. As to that particular issue, creditor’s right against the judgment debtor.
between the parties, it is now res judicata. The second case, however,
will still proceed. Q: How does the judgment creditor make use of that rule that the
decision of the Japan court is presumptive evidence of his right
Law of the Case against the judgment debtor?
Q: State the principle of ‘law of the case.’ The judgment creditor should file an independent complaint for the
This refers to questions of law that arise out of one case, and the enforcement of decision of the Japan court. The only evidence that he
question of law is brought on appeal to a higher court. If that question needs to convince the court is to present a certified true copy of the
of law is finally resolved by the appellate court, and the decision of decision rendered by the Japan court. If he is able to present a
that appellate court has become final and executory, that decision of certified true copy of the decision to the Philippine court, the court
the appellate court on this particular question of law shall be binding will then apply the presumption given under Section 48(b) Rule 39.
when the case is remanded to the trial court for further proceedings.
In Section 48, there is a last paragraph talking about repelling of a
For example, A filed a case against B in the RTC. B filed a foreign judgment. A judgment of a foreign court can be repelled by:
Motion to Dismiss. The court denied the Motion to Dismiss. B 1. Evidence of want of jurisdiction
raised the issue to the CA by certiorari. The CA resolved the 2. Want of notice to the party
issue of jurisdiction. The court affirmed the denial of the Motion 3. Collusion
4. Fraud
to Dismiss. The CA says, ‘Yes, the court has jurisdiction.’ B filed
5. Clear mistake of law or fact committed by the foreign court
an answer. The court continued to hear the case.
Hence, if the creditor files a case for the enforcement of the decision
After trial, of course, the court rendered a decision. The decision of the Japan court, the judgment debtor can present evidence that will
is in favor of A. B appealed to the CA. May he assign as an error repel the foreign decision, such as want of jurisdiction.
during appeal the question of jurisdiction?
No, he may not. He can no longer raise this as an issue since this has
Q: Can all these grounds repel a local judgment?
long been resolved by a higher court in a prior petition for certiorari
No. The defenses available for repelling the execution of a foreign
and prohibition. As long as the parties remain the same and the facts judgment are not availing to repel a local judgment.
have not changed, the decision of the appellate court on this issue of
jurisdiction will continue to be binding as the law of the case between
Q: Why cannot the defendant oppose the execution of a local
the parties.
judgment using the grounds to repel a foreign judgment?
We do not allow a motion for execution to be denied on the argument
The law of the case is almost similar to conclusiveness of judgment
based on want of jurisdiction, want of notice to the party, collusion,
except the law of the case pertains only to questions of law and these
fraud, or clear mistake of law or fact committed by the court because
questions must have been decided by a higher court.
that will be a collateral attack on the judgment, which is generally not
allowed under the Rules.
Foreign judgments in rem and in personam
If the foreign judgment is in rem, it is conclusive upon the title of the
We can only allow a direct attack on the judgment by filing a petition
thing. If the judgment is in personam, there is only the presumptive
to annul that judgment, on the ground of lack of jurisdiction over the
evidence of a right as between the parties and their successors in
subject matter, lack of jurisdiction over the person of the defendant or
interest by a subsequent title.
extrinsic fraud. We cannot use these grounds to collaterally attack the
judgment in our system.
Q: There is a foreign judgment rendered by the Japanese Court.
The relief which the creditor stated in the Japanese court is the When we say collateral attack, the person attacking the judgment
fulfillment of an unpaid loan of 100k. The Japanese court decides does not file a separate complaint for the purpose of having that
the case in favor of the debtor. The debtor is required to pay the judgment set aside. If he only opposes a motion for execution, and
100k in the Japanese court. The Japanese court had not executed the ground is that of lack of jurisdiction over the case, it is not
the judgment. Somehow, the debtor and creditor were now living allowed since that is a collateral attack on the judgment.
in the Philippines. The judgment debtor has accumulated certain
properties in the Philippines. Can the judgment creditor in that
Section 48 allows collateral attacks only against a foreign judgment,
Japan case file a motion for execution in the Philippine courts?
which cannot be allowed insofar as local judgments are concerned.
No. The Philippine court cannot entertain the motion as it knows
nothing about the claim of the judgment creditor against the judgment
With respect to collusion and fraud, they are also grounds to attack
debtor in the Japan case.
directly the judgment under Rule 47 (Annulment of Judgments), and
under Rule 38 (Petition for Relief from Judgments). What cannot be
Q: Is there a remedy available to the judgment creditor to done is a collateral attack against a final and executory judgment.
enforce the judgment of the Japan court in the Philippines?

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For example, a creditor cannot file a case solely for the purpose of
Q: When can a collateral attack be had against a judgment? obtaining a preliminary attachment. Preliminary attachment should be
When the judgment is patently void on its face, it is vulnerable to a relief prayed for in an independent case.
collateral attacks.
Support pendente lite cannot be a principal action, but there can be a
principal action called a complaint for support, with application of
PROVISIONAL REMEDIES the provisional remedy of support pendente lite.

Provisional remedies are also called interim reliefs or provisional Writ of Amparo and Writ of Habeas Data are actions in themselves,
orders. They are called provisional because they are only temporary, but may be treated as provisional remedies. If there is a criminal case
auxiliary. It is not possible for the plaintiff to file a complaint solely already filed involving the disappearance of a person, that criminal
for the purpose of obtaining any of these provisional remedies. action being the principal case, a writ of Amparo or a writ of Habeas
Data may be used as a provisional remedy.
Q: What are the Provisional Remedies under the Rules of Court?
1. Preliminary Attachment (Rule 57) Although we have several provisional reliefs, interim reliefs or
2. Preliminary Injunction (Rule 58) provisional orders, it is incorrect to assume that they are the same.
3. Receivership (Rule 59) These different circulars have not adopted the provisions in the Rules
4. Replevin (Rule 60) of Court (Rules 57 to 61).
5. Support Pendente Lite (Rule 61)
If you will notice under Rules 57 to 61, one of the common
Q: The enumeration of provisional remedies in the rules is no
requirements is the posting of bond by the applicant (except support
longer exclusive. What are other provisional remedies available?
pendente lite). For example, we have an attachment bond, receiver’s
1. Writ of Habeas Data
bond, production bond, and the like.
2. Writ of Amparo
3. The provisional remedies under a writ of amparo:
a. Protection Order In the circular on marriage-related cases, the family court can grant
b. Production Order these provisional orders with or without bond at the discretion of the
c. Witness Protection Order family court. Also, in the same circular, the family court can grant
d. Inspection Order these provisional orders with or without a hearing, which is similar to
4. Provisional Remedies in Marriage-Related Cases: some provision in the Rules that some remedies can be granted ex
a. Spousal Support
parte.
b. Child Support
c. Visitation Rights
d. Temporary Custody of Minor/s In the Amparo circular, when it comes to the provisional relief of a
e. Hold Departure Order Production Order and Inspection Order, there must be a motion filed
f. Protection Order by the applicant and a hearing conducted. In the case of a Witness
g. Administration of Common Property Protection Order and Protection Order, they can be issued ex parte.

See: A.M. 02-11-12-SC


In the Amparo circular, there is nothing mentioned about the posting
5. Provisional Remedies under a Writ of Kalikasan:
of a bond by the applicant.
a. Temporary Environmental Protection Order
(TEPO)
b. Preliminary Attachment In the circular for the Writ of Kalikasan, the issuance of Temporary
c. Cease and Desist Order Environmental Protection Order (TEPO) does not require a bond. Just
like preliminary injunction, there can be TRO good for 72 hours, but
Also, these discovery measures that appears to be can be extended until the end of the case. What is peculiar is that
considered as provisional remedies: the party required to post a bond in a TEPO is not the applicant
but the adverse party who will apply the lifting of the TEPO.
d. Ocular Inspection Order When the adverse party moves for the lifting of the TEPO, the
e. Production Order adverse party is required to file a bond to protect the other party.

Q: What is the common element of provisional remedies?


In most preliminary reliefs, it is the applicant who files a bond. The
There is a pending principal action, except when the provisional
filing of a counterbond will lift the preliminary relief. The same is
remedy by itself is or can be treated as a principal action, such as
true with a TEPO, but the applicant does not have to file a bond. If
Replevin, Writ of Amparo and Writ of Habeas Data.
the TEPO is issued, and the adverse party wants to have the TEPO
lifted, he will be required to post a bond to protect the interest of the
We cannot file an independent action solely for the purpose of
applicants.
obtaining as a principal relief any of these provisional remedies.
A common rule of provisional remedies that is also applicable to the
issuance of the interim reliefs is that the interim relief or provisional

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order is always interlocutory; it is not a final order and has nothing to NCC, there is fraud either in the performance of an obligation (dolo
do with the merits of the case. Appeal is not allowed. incidente), or in contracting (dolo causante, a deception employed by
one party prior to or simultaneous to the contract in order to secure
The accepted remedy to challenge the issuance of a provisional the consent of the other). In both instances, they are justification for
remedy or interim relief or a provisional order is Rule 65, but in some the issuance of preliminary relief.
circulars, that also has been changed substantially.
Q: A borrower obtains a loan from a bank and later on the
For instance, under summary procedure, when it grants a provisional borrower became addicted to gambling. He loses tons of money
order, it is not appealable, and the adverse party cannot file a petition and he defaults in the payment of the loan. The bank naturally
under Rule 65. The reason is that the application of availment of Rule filed a complaint for the recovery of the loan. May the bank ask
65 in order to challenge an interlocutory order is prohibited under to levy the properties on the ground that the borrower is a
summary proceedings. gambling addict?
No. This is not one of the grounds enumerated in Section 1, Rule 57.
Likewise in Amparo, there is a similar provision stating that the grant
of provisional order is interlocutory and Rule 65 is not available, Q: Supposing the plaintiff has a creditor that holds collateral. If
being an express prohibited pleading. there is default in payment of indebtedness, and there is a case of
collection with allegation of intent to defraud, can the creditor
In the circular of Kalikasan, the issuance of TEPO is also move for preliminary attachment over properties other than the
interlocutory. Although TEPO can be challenged, the problem is that collateral?
the challenge on a TEPO can only be filed before the SC under Rule Yes. Although applicant may already have a security or a collateral in
65. Only SC can entertain a petition assailing the issuance of a TEPO. hand, the court may still grant preliminary attachment if the applicant
proves such collateral/security is insufficient to satisfy the debt. Thus,
Q: May MTC grant interim relief? creditor can look for other properties of the debtor sufficient to secure
Yes. This has been settled under BP 129. Under Sec. 33 of BP 129, it the obligation due once the court grants preliminary attachment.
is clearly provided that MTCs have authority to grant provisional
remedies so long as it has jurisdiction over the principal case. Q: When may preliminary attachment be asked and issued?
It may be issued from the commencement of the action until the
judgment is entered. It is quite long and may even be applied for even
PRELIMINARY ATTACHMENT during appeal.

You will notice in Section 1 that there are six (6) instances where one Q: What should the application for preliminary attachment say?
can file for the relief of preliminary attachment. In the first five, there The application should be verified and contain the following:
is a common denominator, intent to defraud the applicant. 1. A sufficient cause of action exists;
2. That the case is one of those mentioned in Section 1;
3. That there is no other sufficient security for the claim
The last is closely related to Rule 14, i.e., summons. The applicant is sought to be enforced; and
moving for an interim relief in order to enable him to secure for 4. That the amount due to the applicant, or the value of the
himself a judgment in court by attaching the properties of the party property the possession of which he is entitled to recover, is
who otherwise could not be served with summons in any manner, as much as the sum for which the order is granted above all
including publication. When property of the absent party is attached, legal counterclaims.
the action in personam will be converted to an action in rem or quasi
in rem by virtue of a preliminary attachment issued by the court and The applicant must also post an attachment bond, the value of which
actually implemented by the sheriff. shall be determined by the court.

Except for the last part of Section 1, the only purpose of the applicant In preliminary attachment, there are two rules that are applicable to
in moving for the issuance of a writ of preliminary attachment is to preliminary attachment as well as other provisional remedies in the
obtain a security for any judgment that may be rendered later on by Rules when they are granted ex parte:
the trial court in his favor. 1. Prior and/or contemporaneous service of summons
2. Principle under Section 20 Rule 57
If we will note the cases enumerated in Section 1, the conduct of the
Prior and/or contemporaneous service of summons
adverse party is criminal in character. The fraud committed could be
For a court to act validly, the court must acquire jurisdiction over the
a criminal fraud or a civil fraud. The conduct should fall in any one
cause of action, the person of the plaintiff and the person of the
of the instances under Section 1 of Rule 57.
defendant.

Thus, the issuance of a bouncing check can cause the filing of an


Preliminary attachment is available even before jurisdiction over the
information and an application for attachment of properties of the
defendant can be had. The plaintiff only had to post a bond and prove
drawer. There is fraud in the performance of an obligation. Under the
during hearing ex parte that the grounds under Section 1 are complied

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with. To carry out the writ, the sheriff must first serve the summons Thus, a preliminary attachment is a serious derogation of the rights of
and then the notice of attachment, or serve them contemporaneously. ownership of the defendant.
This will remedy the lack of jurisdiction by the court over the person
of the defendant. In that writ of garnishment, which is also applicable to Rule 39, there
will be a new relationship created as an incident to the case, which
This principle is applicable to all provisional remedies that may be we call forced intervention – the bank, whether it likes it or not, will
granted ex parte even before the court has gained jurisdiction over be subject to orders of the court. So if a bank account is garnished,
the person of the defendant. This can be applied, for instance, in whether the bank likes it or not, the bank will be forced to follow the
preliminary injunction and the preliminary relief of replevin. orders of the court, in the sense that the bank will have to freeze the
bank account of the defendant.
Q: Why is preliminary attachment allowed to be heard ex parte,
even before the defendant may answer? Q: Is it possible that a property under custodia legis be subject to
The plaintiff is contending before the court that the defendant is truly preliminary attachment?
a dishonest person. If the defendant be allowed to know about the Yes. The court that issued the preliminary attachment, however, will
application for preliminary attachment, and he truly is dishonest, not take over the control of the property attached.
there is great danger, a great possibility, that he will continue his acts
of dishonesty and hide all of his properties from the court. Q: May there be multiple attachments over the same property?
Yes. It is possible. The reason is because a preliminary attachment
This is true for all the grounds under Section 1, except the last. Under only creates a lien over the property that has been attached, and that
the last ground, where the defendant is not a resident and is not found lien is not a certainty because the court will still try the case. If the
in the Philippines, the purpose is to obtain jurisdiction over the case. court later on rules against the applicant, the lien will be set aside.

Q: What happens if the summons is not delivered? Q: What if the property is under mortgage? May it be attached?
The attachment is void, except if: Yes. The preliminary attachment will only create a lien over the same
1. The summons cannot be delivered personally or by property. The mortgage also creates a lien over the property. In this
substituted service despite diligent efforts; case, the principle of seniority of liens shall apply. The mortgage lien,
2. the defendant is a resident of the Philippines temporarily since it was made earlier than the attachment, will be the senior lien.
absent therefrom;
The preliminary attachment will only create a junior lien.
3. the defendant is a non-resident of the Philippines; or
4. the action is one in rem or quasi in rem.
Terceria
Q: Who takes possession of the attached property? The rules on terceria or a third-party claim under Rule 39 shall apply
It depends. to preliminary attachment. The only difference between Rule 39 and
Rule 57 is that the third party in Rule 57 may intervene, he may file a
If properties of the defendant are going to be subject to attachment, motion for leave of court to intervene with the case. This is not at all
and these properties are those capable of delivery, like a car, they will possible in Rule 39 because Rule 39 presupposes that there is already
be seized in custodia legis so long as the preliminary attachment is a final and executory judgment. The right to intervene ends upon the
not lifted. But the property will not be delivered to the plaintiff, nor entry of judgment.
used by the defendant. It will be in the custody of the court. If the
court takes three years to decide the case, the property will be under Lifting or Setting Aside of the Preliminary Attachment
custody of the court for three years. Q: How is preliminary attachment lifted?
1. File a cash deposit with the court equal to the attachment
In case of real property, the title will be annotated with a lien. The bond;
2. File a counterbond via surety authorized by the court; or
owner will not lose ownership or possession. He can sell it, but the
3. File a motion for lifting the preliminary attachment due to
buyer will be notified via the annotation on the title that there is a lien being improper or irregular.
and it is possible that the property can be subject to auction sale later
on. The buyer could stand to lose his title on the property. The buyer Q: If the defendant has already posted a counterbond and the
cannot be considered a buyer in good faith. He will always be a buyer preliminary attachment has already been lifted, can he apply for
with notice of the existence of the preliminary attachment. reversal of the order granting preliminary attachment?
Yes. Even if the defendant has caused the lifting of the preliminary
If the defendant has a sizable bank account, the sheriff will simply attachment by payment of cash deposit or by counterbond, he can still
prepare a writ of garnishment and serve it upon the bank. When the file a motion to lift the preliminary attachment. This is because he has
bank receives the writ, the bank will freeze the account up to the put up counterbond or cash deposit enough to secure the satisfaction
amount of the claim. And if the bank account is frozen, the defendant of the claim of the plaintiff in lieu of the property. If his motion is
cannot use these funds anymore. The bank will not allow him to granted, he will obtain the counterbond or cash deposit.
withdraw. If it is a checking account and the defendant issued checks
thereon, the bank will dishonor the checks that are presented to it. Principle under Section 20, Rule 57

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Q: If there is a pending case and the applicant wins, there is now the time the case is decided, the car may already be in bad condition.
a judgment on the merits in favor of the applicant. Can the losing That is the role of a writ of replevin. If the plaintiff files a complaint
party, the defendant, still hold the applicant liable for improper today for the recovery of a car, if he wants to gain possession of the
or irregular attachment even if he lost the case? car right away, he should file an application for a writ of replevin in
Yes. If the applicant eventually wins the case, it means the applicant order for him to immediately gain possession of the car.
has a cause of action. But it does not necessarily follow that the cause
of action falls under Section 1 of Rule 57. He may not have been able Writ of replevin is tilted always in favor of the applicant. The court
to prove dishonesty or intent to defraud. So, if the applicant failed to can grant the motion or application ex parte. This is one provisional
prove that his case falls under the cases mentioned in Section 1 of remedy which cannot be granted by an appellate court. Only the court
Rule 57, it means that the issuance of the court of the writ of of original jurisdiction can grant it because this can be granted only
preliminary attachment was irregular and improper. The only before the defendant answers. But, like preliminary attachment (PA)
instances the court should grant preliminary attachment are the in some circumstances, there must be prior/contemporaneous service
instances mentioned in Section, 1 Rule 57. If the defendant wins the of summons to cure the defect in jurisdiction over the person of the
case, the applicant shall be liable for damages as a matter of course. defendant. Once served, the sheriff will seize the personal property.
But Section 20 is the procedure to be followed in rendering the
applicant liable for damages for a wrongful or improper issuance of a To repeat, replevin is only available as a provisional remedy before
writ of preliminary attachment. the defendant answers.

The first principle under Section 20 Rule 57 is that the recovery The value of the bond required is different than the other provisional
of damages should be had in the same case, not in an independent remedies. The bond is double the value of the property subject to
action. The adverse party must submit an application for damages for seizure as alleged in the complaint. The trial court has no authority
improper issuance of writ of preliminary attachment. The most to increase or decrease the bond. It will be based solely on the value
practical way of informing the court right away is to set up in his of the property as alleged in the complaint.
answer a compulsory counterclaim for recovery of damages. If the
defendant did set up a counterclaim for recovery of damages, and Also, if the sheriff finds that the property is not in possession of the
then the defendant eventually wins, he will just file an application defendant but a third person who is not a litigant, and said person
through a motion to conduct a hearing on the extent of liability to claims ownership of the property, the sheriff has no authority to seize
which the defendant is entitled to recover. the property.

It is not possible for the defendant who has won the case to file a The solution to this is to advise the plaintiff to implead 2 defendants,
separate complaint for recovery of damages arising out of a wrongful one who was known by the plaintiff to possess the thing subject to
attachment. If he did so, that independent case will be dismissed, the complaint and an unknown defendant. As a result, the sheriff can
even motu propio. due to res judicata. rightfully seize the car from anybody who might be in possession, as
long as the unknown defendant is impleaded in the complaint.
Under Section 20, Rule 57, it is very clear that the extent of damages
to be recovered need not be equivalent to the attachment bond filed in The sheriff has a five-day holding period after seizure. If there is no
court. If the attachment bond is insufficient, the defendant may avail challenge on the sufficiency of the replevin bond, the sheriff shall
of a levy of execution under Rule 39. turn over possession to the plaintiff. This is the advantage of replevin,
it immediately enables the plaintiff to recover possession of the
Remember that Section 20 of Rule 57 is applicable to preliminary personal property that is the subject of litigation.
injunction, receivership, and replevin.
Within the holding period of 5 days, the defendant can file a motion
to challenge the sufficiency of the bond.
REPLEVIN
If a 3rd person claims to be a true owner of the thing (like in Rule 57
Replevin is accepted as a main action and as a provisional remedy at and Rule 39), he must file a third-party claim with the sheriff. But in
the same time. Recovery of possession of property capable of manual replevin, the third party claim must be filed within the 5-day holding
delivery is termed a complaint for replevin. It automatically rules out period; otherwise, the third party claim is useless. After the fivew-day
a real action. holding period, the sheriff shall deliver the car to the applicant.

In replevin cases, without an application of a provisional remedy of a Q: A complaint for replevin was filed by X for recovery of a car.
writ of replevin, the plaintiff recovers possession of a personal The court issued the writ but the sheriff submitted a return
property only after the case has been decided in his favor. So, if the saying he cannot enforce the writ as the car can no longer be
plaintiff filed the case today for recovery of a car without an found. What the plaintiff did after receiving the return was to file
application for the provisional remedy of a writ of replevin, and the another application for Preliminary Attachment of the properties
case was decided five years later, the car shall remain under the of the defendant based on the same complaint on the ground that
possession of the defendant during those five years. Chances are, by the defendant has gotten hold of the property fraudulently and

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that he has hidden the car so it cannot be found and be subject to Although the Rules state that any member of the CA may issue a writ
seizure. Is this proper? of preliminary injunction, the internal rules of the CA state that when
The conversion of application for a writ of replevin into one for an there is a motion filed to lift or set aside the PI, the member who
issuance for PA is not proper. SC held that if plaintiff does not caused the issuance of the writ must consult the other members of the
succeed via replevin, he cannot use PA. If he desires to use PA, he division. He may not unilaterally decide the case alone. The reason is
should overhaul his complaint. The allegations for the application for that the member himself issued the writ. If he alone decides whether
a writ of replevin are different from that for issuance of a writ of PA. or not it is effective, he of course will decide the case in his favor.
In application for issuance of a writ of replevin, the plaintiff alleges
he is the owner or entitled to possession. PA is for security purposes, Q: What is the difference between PI and PMI?
the ownership of the property subject to it belongs to the defendant, PI is prohibitive, while PMI seeks the performance of a particular act
not a property of the plaintiff. or acts. PMI applies where the act sought to be prevented has already
been done but the applicant wishes to restore the status quo. Whether
Q: May a property under preliminary attachment be subject to a or not the case is PI or PMI, the rest of Rule 58 shall equally apply.
writ of replevin?
No. The property, if under preliminary attachment, is under custodia There are two provisional remedies contemplated under this Rule:
legis. Remember that in PA, if it is a personal property, the sheriff 1. Temporary Restraining Order (TRO)
will obtain the property and put it in custodia legis. 2. Writ of Preliminary Injunction

Q: May a property previously subjected to a writ of replevin be Both require an injunction bond.
further subjected to another writ of replevin?
Yes, this is possible. The property is not under custodia legis. It is As a general rule, the court cannot grant TRO or a writ of PI without
under the possession of the last person who had the writ of replevin a hearing, unlike preliminary attachment. You should always expect a
issued. summary hearing, with notice to both parties, to be conducted.

Also, in replevin, the decision of the court can be in the alternative. If TRO can be granted ex parte, by way of exception, in instances when
the property itself cannot be delivered, the value of such property can there is grave and irreparable injury that will be caused to the
be delivered to the prevailing party. applicant, and in no way shall the total period of the TRO be longer
than 20 days. The court will still fix a TRO bond. During the 20-day
Q: What if the party wishes to obtain possession of a real period, the court will still conduct a hearing to determine whether or
property? What is his remedy if not replevin? not a writ of PI will be needed.
The party may make use of preliminary mandatory injunction (PMI).
This is not only recognized in the Rules but also the NCC. PI, on the other hand, absolutely requires a summary hearing. A court
cannot grant a PI without a hearing. There is no exception. It is only
in the issuance of a TRO where there is an exception to the general
rule where it can be issued ex parte.
PRELIMINARY INJUNCTION

Q: What is the meaning of the phrase ‘irreparable injury’?


The principal action could be any action coupled with an application
It means it is an injury that is of constant and frequent recurrence, not
for a TRO or a writ of preliminary injunction. A special action for
necessarily involving money, by reason which a fair redress could not
certiorari under Rule 65 is usually accompanied by a verified
be had in a trial court.
application for TRO and writ for PI. The relief usually asked for in
Rule 65 is for a writ to prevent or prohibit the respondent court from
going ahead with the case pending before the court, or in case of Do not forget the modifications of a SC Circular to Rule 58. It states
certiorari, to set aside the decision or interlocutory order of the that if a court has issued a writ of PI which has no term, the court that
respondent court. Preliminary injunction and TRO can be availed of issued such writ of PI must decide the principal action within a period
in any civil proceeding where the principal relief sought by the of 6 months. This is the modification in that circular. If the court does
applicant or petitioner is to prevent an act or compel performance of not place a limit of six months to decide the principal action, the writ
an act. PI can also be had in criminal cases or special proceedings, as will effectively be a perpetual injunction because it is effective until
long the principal relief is to compel or to prevent the performance of the case has finally been decided. If the court grants the PI today, it
an act. has only 6 months within which to decide the case. In deciding the
principal case, the trial court could rule in favor of the plaintiff or
defendant. If it ruled in favor of the defendant, the PI is automatically
Q: Who issues injunctive relief?
lifted, meaning the plaintiff has no right at all to ask for the writ of
It may be granted b the court where the action is pending. If the
PI.
action or proceeding is pending in the CA or the SC, it may be issued
by the court or any member thereof.
Although the authority of the court is very broad in the issuance of a
writ of PI, there are instances where a court cannot grant a writ of PI
or TRO:

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1. In the enforcement of Kalikasan Statutes (except the SC, as RECEIVERSHIP
only SC is authorized to issue TRO or PI in Kalikasan
cases) Receivership has a feature not present in other provisional remedies.
2. If there is a TEPO issued by any court (it is only the SC
Provisional remedies are contemplated to be used during the
that can prevent the carrying out of the TEPO)
3. In case of infrastructure projects of the national government pendency of the case. In receivership, the court can appoint a receiver
(only the SC that can prevent the carrying out of the not only during the pendency of a case but also after the judgment
project) has been issued or in the process of execution of said judgment. This
4. When it is a government bank that forecloses the mortgage feature makes this remedy unique. There is no fixed time in which a
(only the SC that can prevent the carrying out of the court can appoint a receiver.
foreclosure, either judicial or extra-judicial)
5. The court has no authority to grant injunctive relief against
the BoC. (violation of separation of powers) Relate this to the remedies of a judgment creditor in Rule 39 when he
6. The court cannot grant injunctive relief against deportation is unable to recover full satisfaction of his account. Under Rule 39,
of aliens (violation of separation of powers) the judgment creditor can ask for examination of the judgment debtor
for any properties. If there are still properties present, the judgment
Q: What is the relief of the person against whom an injunctive creditor can apply that such properties be placed in receivership.
writ has been issued?
If we compare the remedies available to a defendant against whom an There always has to be a summary hearing. No ex parte appointment
injunctive writ has been issued to a person whose property has been of a receiver is allowed.
preliminary attached, in Rule 57, in PA, if the defendant files with the
court a counterbond, the lifting of the PA is ministerial to the court. The grounds for appointment of receiver are quite broad. Whenever
The properties will be returned. In PI, the PI cannot be lifted without the court feels that there is a need for the appointment of a receiver to
a hearing despite posting of counterbond. The court cannot rely on preserve the property in litigation, it shall do so.
the filing of a counterbond to lift the PI, as it has to study the merit of
the lifting of the injunction. It is not a matter of right of the adverse The property, however, has to be in litigation. The court should not
party to expect the injunction court to lift the PI just because of the appoint a receiver if the effect would be to dispossess the parties. The
filing of a counterbond. The reason why the Rules do not make it a remedy of receivership is not intended to dispossess the possessor of
ministerial duty of the court to lift the PI simply because there is a the property during the pendency of the case.
counterbond is due to the ground of grave and irreparable injury. The
injury cannot be measured exactly, there is no mathematical formula The Rules also provide in foreclosure of a mortgage, the mortgagee
to determine extent of damages that applicant can suffer in injunction can move for the court to have the mortgaged property placed under
cases. receivership, even if there is no proof that the collateral will be lost or
deteriorate. This can be done when the deed of mortgage contains a
We should always relate PI to forcible entry and unlawful detainer in stipulation authorizing the mortgagee to move for the appointment of
the NCC. The MTC is expressly allowed to grant a Preliminary a receiver. But generally, the purpose of receivership is to preserve
Injunction or Preliminary Mandatory Injunction. the property under litigation from loss or deterioration.

The NCC contains some procedures in matters pertaining to Forcible Q: Who does the receiver represent?
Entry or Unlawful Detainer. In the NCC, which is copied by Rule 70, SC held that the receiver is not a representative of either party. It
it is provided that the court can grant PI or PMI in cases of ejectment. classified the receiver as a representative and an officer of the court.
If the MTC grants PI or PMI, that cannot be appealed or challenged As a result, the receiver cannot file a case as a receiver without the
by a petition under Rule 65. Under the rule on summary proceedings, consent of the court. If a receiver needs to file a case to recover
Rule 65 is a prohibited pleading in summary proceedings in certain properties under receivership, he needs permission from the
challenging an interlocutory order. court to do so. On the other hand, if a third person has a grievance
against the receiver in his capacity as a receiver, the third person
But when that ejectment case is appealed to the RTC, in the exercise cannot simply file a case against such receiver because that third
of its appellate jurisdiction, the NCC, as well as the Rules, provides person must seek permission of the court first. We find here a
that the RTC can grant PMI or PI if applied by the plaintiff/applicant. situation where the filing of a case will need permission of the court.
The PI or PMI granted by the RTC as an appellate court remains If not granted, that action will fail.
unappealable because it is interlocutory, but can now be challenged
under Rule 65. This is because summary procedure is in effect while Practically every issue is left to the court. The court determines how
the case is in the MTC, whereas on appeal in the RTC, the regular much compensation to give to the receiver, the qualifications of a
procedure applies, and challenge under Rule 65 is allowed. receiver, how many receivers may be needed. If the court can appoint
a receiver, it can also fire him and appoint a new one, whenever there
Take note that a writ of preliminary injunction is deemed dissolved is a need to preserve the property.
upon the dismissal of the main case.
There is another feature in receivership that is not found in the other
provisional remedies. In receivership, there are two bonds:

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1. Bond of the applicant
2. Bond of the receiver If you are asked why the Family Court can order support without a
hearing, just state that there is no need to determine the needs of the
The applicant should manifest that he is able to post bond. Once the spouse or of the minor children, there is no need for the court to
court appoints the receiver, the receiver shall also post a bond. The determine the financial ability of the defendant, because in family-
receiver’s bond is designed to protect the parties to the litigation from related cases, there is a need for an inventory of properties submitted
any abuse or mischief by the receiver in the performance of his duty. to the Family Court by the petitioner. Based on the inventory, the
court can conclude how much the spouse is entitled and how much
the minors are entitled to support.
SUPPORT PENDENTE LITE
Q: Since the applicant is not required to post a bond, what may
This is found under the Rules and also mentioned in the SC Circular the defendant do if he eventually proves the applicant is not
on Provisional Remedies in Marriage-Related Cases. In fact, the really entitled to support?
circular of the court is more expansive. It does not only mention The party may go after the person who is supposed to give support or
support pendente lite, but also classifies it into spousal support and he may go after the beneficiary to refund the money. These remedies
child support, and are treated differently. are quite impractical because it is really possible that the beneficiary
has already used the money.
Under the circular, the Family Courts can grant both spousal support
and child support even without hearing and without requiring the Other Provisional Orders in Marriage-Related Cases
filing of a bond. Also, with respect to the provisional orders granted by Family Courts
in marriage-related cases, although some of the provisional orders are
This is different in trial in courts that are not functioning as family called by some other name, they actually are similar to injunction.
court. This is because under the Rules of Court, it is not proper for an
ordinary court to grant an application of support pendente lite without For example, Temporary Protection Orders (TPO) in marriage-related
conducting a hearing. Under the Rules, support pendente lite can only cases are actually a prohibitory injunction and a mandatory injunction
be allowed after a hearing, and the applicant and respondent are given at the same time. This is because in the protection order, the Family
the chance to explain. The reason why this is required in the Rules is Court prohibits respondent from doing certain acts, which is similar
because a court cannot conceivably issue an order unless the court is in effect to a prohibitory injunction. Also, the Family Court can order
able to determine that the petitioner needs support, and even if the the respondent not to enter the former conjugal dwelling and to
fact that the petitioner does need support is proven, to determine that remove his personal properties from the house. Thus, it also partakes
the respondent is capable of grant such support. This is because if the of a mandatory injunction.
court simply grants an application for support pendente lite without
examining the financial ability of the respondent, the provisional We also have receivership in marriage-related cases where the court
remedy will be useless. If the respondent cannot comply, as he had no may appoint an administrator of the common or conjugal properties
means to give support, he could be jailed. This is one action where of the spouses. The administrator is in effect a receiver of properties
the court can imprison a respondent who does not comply with its owned in common.
order to give support, although the respondent really may not have
the ability to really do so.
ENVIRONMENTAL CASES
There are in fact three remedies in case of violation against giving of
support under substantive law: Do not confuse an environmental case from a writ of Kalikasan and a
1. Imprisonment for commission of a crime writ of Continuing Mandamus.
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against the violator under
Rule 39 An environmental case may be civil or criminal. The jurisdiction and
venue shall be governed by the respective law violated. For example,
Of particular interest is the third remedy. Although Rule 39 generally if it is the Clean Air Act which is violated, the provisions of such law
applies only to final judgments, a writ of execution may be used to where to file the case shall govern.
enforce support pendente lite.
A writ of Kalikasan may be commenced in SC or CA. A writ of
Under the Rules, you will notice that the principle in Section 20, Rule Continuing Mandamus may be commenced in RTC, SC, or CA.
57 is not followed at all. As a general rule, the remedy to recover
damages in wrongful issuance of provisional remedies should be in Whether it is an environmental case (except criminal cases), a writ of
the same case. There must be no separate action to recover damages. Kalikasan, or a writ of Continuing Mandamus, the complainant and
But if you read the provisions for support pendente lite, it is expressly respondent must attach in his complaint or answer, as the case may
provided that there could be an independent action for recovery of be, documentary and/or object evidence available to him.
money given as support in compliance with an order of the court.

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In a civil environmental case, should the defendant fail to answer the If the applicant wishes the court to direct or enjoin any person or a
complaint within 15 days from receipt of summons (10 days if it is an government agency to perform or desist from performing an act in
answer to a compulsory counterclaim or cross-claim), the court shall order to protect, preserve, rehabilitate the environment, he must file
declare the defendant in default motu proprio. This is an exception to EPO or TEPO as the case may be.
the general rule.
The difference between EPO and TEPO on one hand, and TRO and
A motion to declare the defendant in default is prohibited in civil PI on the other hand, therefore, may be (and just may be) the fact that
environmental cases. Upon motion of the plaintiff, the court shall TRO and PI wishes to enjoin a government agency from enforcing an
receive evidence ex parte. environmental law. If there is no environmental law involved (or it is
not a government agency), use EPO or TEPO.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree Again, this is conjecture, but it seems the difference between TEPO
approving the agreement between the parties. and EPO is that EPO is a final order, it is permanent, while TEPO as
its name suggests is only temporary. This is different from TRO and
Q: What is a consent decree? PI because TRO and PI are both interlocutory. TRO may only last for
This is similar to a judgment based upon a compromise. Under the 20 days, while PI may only last for 6 months if filed in a court other
Rules, it is defined as a judicially-approved settlement between the than the SC.
concerned parties based on public interest and public policy to protect
and preserve the environment. Q: What is the difference between EPO and a writ of Continuing
Mandamus?
The Rules on Evidence are not necessarily followed. The quantum of It seems there is no great difference between a permanent EPO and a
evidence required in civil environmental cases is mere preponderance writ of continuing mandamus in so far as effect goes, except it seems
of evidence. However, there are several instances in Kalikasan cases EPO may direct or enjoin while a writ of Continuing Mandamus may
where mere substantial evidence is enough, which is also followed in only direct.
Amparo cases.
A petition for a writ of Continuing Mandamus seems to be also faster
Q: Is a Environmental Protection Order a preliminary injunction than a civil environmental case with a prayer for EPO since it skips a
or a preliminary mandatory injunction? few steps, such as pre-trial, and may expedite proceedings. The trial
It may be both. If you take a look at the definition of an EPO, it says in a writ of Continuing Mandamus is also only summary in nature.
it may direct or enjoin any person or government agency to perform
or desist from performing an act. Thus, it may be in the form of a PI Q: May TEPO be subject to Rule 65?
or a PMI. No. Rule 65 is available only if there is no other remedy available to
the aggrieved party. The party or person enjoined by the TEPO may
Q: What are the differences between a TEPO and TRO/PI under file a sufficient bond to dissolve the TEPO and only after hearing. If
the Rules of Court? after the hearing, the motion for dissolution of the TEPO is denied,
1. Although both TRO and TEPO may be issued ex parte, a then the aggrieved party may now proceed with Rule 65. Although
TRO may last 20 days or 72 hours as the case may be while the order is interlocutory, there is no prohibition in the Environmental
TEPO only lasts 72 hours. Rules from filing a petition for certiorari under Rule 65, unlike in
2. The period of 72 hours in TEPO is counted from receipt of summary procedure and small claims proceedings.
the TEPO by the party enjoined while the 72 hours in TRO
is counted from the issuance of the same.
3. A TRO only lasts for 20 days. A TEPO may last until the Q: What is the precautionary principle?
termination of the case if so extended. The precautionary principle states that when human activities may
4. The applicant in TEPO is exempted from posting a bond. lead to threats of serious and irreversible damage to the environment
that is scientifically plausible but uncertain, actions shall be taken to
Q: A civil environmental case involves EPO, TEPO, TRO, and avoid or diminish that threat.
PI. What are the differences between them?
I really don’t know either, and Dean Jara did not really discuss this in Q: What is SLAPP?
class (or I was again daydreaming), but let me attempt to resolve this SLAPP refers to Strategic Lawsuit Against Public Participation. It is
problem. Read at your own risk! an action, whether civil, criminal or administrative, brought against
any person, institution or any government agency or LGU or its
If the applicant wishes to stop government agencies from enforcing officials and employees, with the intent to harass, vex, or exert
an environmental law or from preventing violations thereof, he must undue pressure or stifle any legal recourse that such person,
file a TRO or PI with the Supreme Court and the SC only. The Rules institution or government agency has taken or may take in the
of Court shall be followed and the distinctions between TRO and PI enforcement of environmental laws, protection of the environment, or
there will be followed. assertion of environmental rights.

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Q: Anonymous collator, you failed to discuss Writ of Kalikasan
and Continuing Mandamus extensively!
Dean Jara will discuss this in Special Civil Actions. They are special
civil actions, they are not ordinary environmental civil cases. If you
take a look at the circular, it really is like a mini Rules of Court.

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