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Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM
3. Claim is unenforceable
4. Res judicata
If a motion to dismiss is based on failure to state cause of action, the rule is if detect
may be corrected by amendment, court should allow amendment; however of plaintiff
cannot or does not amend, dismissal is with prejudice.
Grounds for motion to dismiss may be pleaded as an affirmative defense during
trial even if the motion to dismiss has been denied.
The dismissal of the complaint shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer.
A motion to dismiss on the ground of failure to state a cause of action in the
complaint must hypothetically admit the truth of the facts alleged in the complaint. The
admission, however, is limited only to all material and relevant facts which are well
pleaded in the complaint. The demurrer does not admit the truth of mere epithets
charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law;
nor matters of evidence; nor to legally impossible facts.
Note from Regalado:
If the same motion also raised other grounds or invoked some affirmative relief
which necessarily involves the exercise of jurisdiction of the court, such special
appearance will be of no avail and the party is thereby deemed to have submitted
himself to the jurisdiction of the court.
Where summons was not served on two of the defendants and a lawyer filed, in
their behalf but without their authority, a motion for extension of time to answer
the court does not acquire jurisdiction over said defendants.
Where a party invokes the jurisdiction of a court to obtain affirmative relief and
fails, he cannot thereafter repudiate such jurisdiction.
It has been held that even if the claim in the complaint was below the
jurisdictional limit for the then CFI, if the defendant, instead of moving to dismiss,
filed a counterclaim for P12,000 which was then within the exclusive original
jurisdiction of said CFI, such counterclaim cured the defect. It is submitted,
however, that said resolution, under the facts therein, was more properly
sustainable under the principle of estoppel by laches on the part of the
defendant, as discussed in the preliminary chapter of this book, and which
principle was also relied on by the Supreme Court in its aforesaid resolution in
that case.
Where the owner of a condominium corporation sold a unit thereof on
installments with reservation of ownership until the price is fully paid, and the
buyer defaults, the courts, and not the SEC, have jurisdiction over the nature of
the action because the owner remains as stockholder for the unit sold, hence no
intra-corporate issue is involved. Xxx An action to compel a corporation to issue
shares of its capital stock in payment of its contractual obligation is and
undertaking in favor the plaintiff will not be dismissed on the ground that the
court has no jurisdiction over the nature of the action since such situation does
not involve an intra-corporate matter contemplated in PD 902-A and is not within
Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM
Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM
Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM
If a counterclaim has been pleaded before the plaintiffs motion to dismiss, dismissal is
only limited to the complaint.
Dismissal due to the fault of the plaintiff may be motioned by the defendant or upon
courts own
order, such is with prejudice to filing a new action.
Instances of plaintiffs own fault (hence, dismissal is with prejudice to the filing of
a new action):
1. Failure of the plaintiff to appear without justifiable cause on date of presentation
of evidence (does not apply to probate of wills)
2. Failure of the plaintiff to prosecute his action for an unreasonable length of time
3. Failure of plaintiff to comply with the Rules of Court or any court order
The same rules apply to counter claim cross or third party complaint but must be made
before a responsive pleading or motion for summary judgment is served or if none,
before introduction of evidence.
However, the dismissal of a petition for probate of a will in a previous special
proceedings due to the failure of the petitioner and his counsel to appear on the date
and time set for the hearing thereof is not an adjudication on the merits.
Notes from Regalado
Dismissal is effected not by motion but by mere notice of dismissal which is a
matter of right such dismissal is without prejudice, except:
o Where the notice of dismissal so provides
o Where the plaintiff has previously dismissed the same case in a court of
competent jurisdiction; and
o Even where the notice of dismissal does not provide that it is with
prejudice but it is premised on the fact of payment by the defendant of the
claim involved.
The two-dismissal rule requires that both dismissals are granted by a court of
competent jurisdiction.
Where the plaintiff moves for the dismissal of his complaint to which a
counterclaim has been interposed, the dismissal shall be limited to the complaint.
Such dismissal shall be without prejudice to the right of the defendant to either
prosecute his counterclaim in a separate action or to have the same resolved in
the same action.
Secs 1 and 2 of this rule refers to the dismissal of the entire case.
The dismissal of the case for failure of the plaintiff to appear at the trial, to be
valid, now requires that
o His non-appearance is without justifiable cause, and
o Such prejudicious absence is limited to the date or dates when the
presentation of his evidence in chief on the complaint was scheduled or
expected.
since the plaintiffs presence is now required only during the presentation of
his evidence in chief, his absence during the presentation of the evidence of the
Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM
Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM
If defendant plaintiff may be allowed to present evidence ex parte and the Court to
render judgment on the basis thereof.
Parties must file a pre-trial brief and ensure receipt of such at least 3 days before date of
pre-trial.
The pre-trial brief shall contain, among others:
a. A statement of their willingness to enter into an amicable settlement
b. The summary of admitted facts and proposed stipulation of facts
c. The issues to be tried or resolved
d. The documents or exhibits to be presented, stating the purpose thereof
e. A manifestation of their having availed of or their intention to avail themselves of
discovery procedures or referral to commissioners
f. The number and names of the witnesses, and the substance of their respective
testimonies
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pretrial.
There shall be a record of the pre-trial where in the court issues an order which recites
matters taken up during the pre-trial.
RULE 19 INTERVENTION
Intervenor must:
1. Have legal interest in the matter of controversy
2. Have legal interest in the success of either of the parties
3. Have legal interest against both
Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM
INTERPLEADER
An original action.
Presupposes that the plaintiff has no
interest in the subject matter of the action
or has an interest therein which in whole or
in part is not disputed by the other parties
to the action.
Defendants are already original parties to Defendants are being sued to implead
the pending suit.
them.
Denial of motion for intervention is final and appealable.
Remedy for allowing or denying motion for intervention- either certiorari or mandamus
(to prevent multiplicity of suits)
Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM
RULE 21 SUBPOENA
SUBPOENA is a process directed to a person requiring him to attend and testify at a
hearing or trial or investigation or for the taking of his deposition.
SUBPOENA DUCES TECUM process which requires a person to bring with him
books, documents or other things under his control.
SUBPOENA AD TESTIFICATION - process which requires a person to attend and to
testify at the hearing or the trial of an action or at any investigation conducted by
competent authority or for the taking of his deposition.
SUBPOENA
SUMMONS
Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM