Civil Procedure Notes

[ IKEBUKURO NOTES ]
2015 CONSOLIDATED NOTES: CIVIL PROCEDURE
Dean Riano: The test of jurisdiction is whether the court has the
power to enter into the inquiry and not whether the decision is right
or wrong. The fact that the decision is erroneous does not divest the
court that rendered it of the jurisdiction conferred by law to try the
case.
When it appears that the court has no jurisdiction over the subject
matter of a complaint filed before it, the court has the duty to dismiss
the claim and can do so motu proprio (citing Rule 9, Section 1, p. 6263).
This tome attempts to consolidate the hundred lecture notes by Dean

Jara, the books of Dean Riano and Dean Regalado, and the Survey of
Supreme Court decisions and addendums by Dean Albano.
Q: Is it the duty of the court that dismissed the complaint on the

ground of lack of jurisdiction to forward it to the proper court?
Dean Riano: No. No such duty is dictated by the Rules of Court.
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
Beda BarOps; the San Beda Law Journal; and all people who helped
in one way or another.
This work was completed in haste. Please indulge the compiler if you
find grammar, spelling, and formatting mistakes.
This is version two and does not contain half the book of Dean Riano
and the entire book of Dean Regalado as envisioned. It does contain
the 2004, 2013, 2014 and 2015 lectures of Dean Jara, the Survey of
SC Decisions by Dean Albano from 2011 to 2014, and some more
case updates from browsing thelawyerspost.net.
JURISDICTION: GENERAL NOTES

Jurisdiction is the power and authority of a court to hear, try, and
decide a case, and execute its judgment.
Premise: Jurisdiction is a matter of substantive law.
This is not necessarily true.
Substantive law deals with jurisdiction over the subject matter and/or
jurisdiction over the nature of the action. This is the aspect of
jurisdiction governed by BP 129 and the other substantive laws on
jurisdiction. (Dean Riano: Since jurisdiction over the subject matter is
a matter of substantive law, it cannot be granted by agreement of the
parties; acquired, waived, enlarged, or diminished by any act or
omission of the parties; or conferred by the acquiescence of the
courts [p. 69])
Jurisdiction over the person of the litigants, jurisdiction over the
property involved, and jurisdiction over the issues of the case, on one
hand, are governed by the Rules of Court.
BP 129 does not mention anything about the SC. It begins with the
CA downwards, up to the MTC and the Sharia Courts. Supreme
Court exercises its authority from the Constitution. In the
Constitution, the SC exercises original jurisdiction and appellate
jurisdiction. But the Constitution does not say that original
jurisdiction of the SC is exclusive, nor about the appellate jurisdiction
being exclusive. The basis for this is in the old Judiciary Act of 1948
where SC jurisdiction is delineated in a very thorough manner,
providing exclusive original and appellate jurisdiction of the SC.
Note that BP 129 did not repeal the old Judiciary Act and hence it is
still in force. What BP 129 repealed are provisions of Judiciary Act
of 1948 that are inconsistent with BP 129. The best argument to
support this statement is Sec. 9 in BP 129.
Sec. 9 BP 129, paragraph 3, last sentence:
3. Exclusive appellate jurisdiction over all final
judgments, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial
agencies,
instrumentalities,
boards
or
commission, including the Securities and
Exchange Commission, the Social Security
Commission, the Employees Compensation
Commission and the Civil Service Commission,
Except those falling within the appellate
jurisdiction of the Supreme Court in accordance
with the Constitution, the Labor Code of the
Philippines under Presidential Decree No. 442, as
amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and
subparagraph 4 of the fourth paragraph of Section
17 of the Judiciary Act of 1948.
The Constitution provides for a limited number of cases over which
the SC can exercise original jurisdiction and limited number of cases
over which it can exercise appellate jurisdiction. Unlike the old
Judiciary Act, the Constitution did not state that the jurisdiction of the
Supreme Court is exclusive.
See: Art. VIII, Section 5, 1987 Constitution
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SC: EXCLUSIVE ORIGINAL JURISDICTION

Petitions for certiorari, prohibition and mandamus against the CA,
COMELEC, CoA, Sandiganbayan, and Court of Tax Appeals.
SC: CONCURRENT ORIGINAL JURISDICTION
1.
With the RTC:

Cases affecting ambassadors, other public ministers and
consuls
2.
With the CA:

a. Petitions for certiorari, prohibition or mandamus
against the RTC, Civil Service Commission,
CBAA, NLRC, and other quasi-judicial agencies
b. Petitions for Writ of Kalikasan
3.
With the RTC and CA:

a. Petition for habeas corpus
b. Petition for quo warranto
c. Petitions for certiorari, prohibition or mandamus
against MTC and other bodies
4.
With the RTC, CA and Sandiganbayan:

a. Petition for Writ of Amparo
b. Petition for Writ of Habeas Data
SC: APPELLATE JURISDICTION

1. By way of certiorari under Rule 45 against the CA,
Sandiganbayan, RTC (pure questions of law only), CTA en
banc, and
2. Cases on the constitutionality and validity of a law or
treaty, international agreement or executive agreement,
presidential decree, proclamation order, instruction,
ordinance or regulation, legality of a tax, impost,
assessment, toll or penalty, jurisdiction of a lower court.
Certiorari, Prohibition and Mandamus have been greatly limited by
certain procedural rules. The limitation is known as the hierarchy of
courts. Thus, while theoretically a petition can be filed directly to the
SC, one should follow the procedure under the principle of hierarchy
of courts. In Rule 65, it is expressly provided that petitions for
Certiorari, Prohibition and Mandamus (and even Quo Warranto and
Habeas Corpus - Dean Jara) should be filed directly only with two
courts, the RTC or the CA.
See: Rule 65, Section 4
It should be further noted that although the Supreme Court, the CA,
and the RTC have concurrent jurisdiction on petitions for certiorari,
prohibition, mandamus, habeas corpus, and quo warranto, the RTC
may only enforce these writs in any part of their respective regions.
The CA, on one hand, was once limited to issue these writs only in
aid of its appellate jurisdiction, but BP 129 repealed this rule, stating
now the phrase, whether or not in aid of its appellate jurisdiction.
As contrast, the Sandiganbayan also has jurisdiction to hear petitions
for certiorari, prohibition, and mandamus, but may only issue these
writs only in aid of its appellate jurisdiction.
Q: Jurisdiction of courts must be expressly conferred by law. Has

the CTA certiorari powers even though there is no express grant
of such power?
Dean Albano: Yes. In order for any appellate court to effectively
exercise its appellate jurisdiction, it must have the authority to issue,
among others, a writ of certiorari. In transferring exclusive
jurisdiction over appealed tax cases to the CTA, it can be reasonably
be assumed that the law intended to transfer also such power as is
deemed necessary, if not indispensable, in aid of such appellate
jurisdiction.
Furthermore, under Section 6, Rule 135, when by law, jurisdiction is
conferred on a court or a judicial officer, all auxiliary writs,
processes, and other means necessary to carry it into effect may be
employed by such court or officer (citing City of Manila v. GreciaCuerdo).
Q: There is an apparent conflict between the Family Court Law,
BP 129, and the Constitution. Under the Family Courts Act of
1997, the Family Court shall have exclusive original jurisdiction,
among others, over petitions for guardianship, custody of
children, habeas corpus in relation to the latter. The
Constitution dictates that the Supreme Court has jurisdiction
over habeas corpus cases, and BP 129, though enacted on an
earlier date than the Family Court Act, states that the RTC and
CA shall also have jurisdiction over habeas corpus cases. How do
you resolve this apparent conflict?
Under Thornton vs. Thornton, G.R. No. 154598, decided August 16,
2004, the Supreme Court held that RA 8369 (the Family Court Act)
did not divest the Court of Appeals and the Supreme Court of their
jurisdiction over habeas corpus cases involving the custody of minors
because:
1. It could not have been the intention of the lawmakers to
limit the writ to Family Courts which are limited only to
respective territories,
2. the primordial consideration is the welfare and best
interests of the child,
3. that a literal interpretation of the word exclusive will
result in grave injustice,
4. that implied repeals are not favored, and
5. that A.M. 03-03-04-SC, or the Rule on Custody of Minors
and Writ of Habeas Corpus in Relation to Custody of
Minors, state that the Supreme Court and Court of Appeals
shall have concurrent jurisdiction over said writs.
Among the basic principles of the enactment of BP 129 was to do
away with the concept of concurrent jurisdiction. BP 129 has not
been able to do away entirely with concurrent jurisdiction. BP 129
does not use the term concurrent in vesting jurisdiction upon courts.
Generally, BP 129 has been able to do away with the concept of
concurrence of jurisdiction, except with respect to certiorari,
prohibition, mandamus, quo warranto and habeas corpus. Since the
Constitution and BP 129 allocate original jurisdiction upon 3 courts,
then it is safe to conclude that these 3 courts exercise original and
concurrent jurisdiction over these petitions.
JURISDICTION OF THE COURT OF APPEALS

CA: EXCLUSIVE ORIGINAL JURISDICTION
Cases of annulment of judgment of an RTC.
CA: EXCLUSIVE APPELLATE JURISDICTION
1. Ordinary appeal from RTC and Family Courts
2. Petition for review from RTC in exercise of its appellate
jurisdiction
3. Petition for review from decisions, resolutions, orders or
awards from CSC, Ombudsman in administrative cases and
other quasi-judicial agencies in exercise of its quasi-judicial
functions as mentioned in Sec. 1 Rule 43.
CA: CONCURRENT ORIGINAL JURISDICTION
1. With the SC:
a. Petitions for certiorari, prohibition or mandamus
against the RTC, Civil Service Commission,
CBAA, NLRC, and other quasi-judicial agencies
b. Petitions for Writ of Kalikasan
2.
With the RTC and SC:

a. Petition for habeas corpus
b. Petition for Quo warranto
c. Petitions for certiorari, prohibition or mandamus
against the MTC and other bodies
3.
With the SC, RTC and Sandiganbayan:

a. Petition for Writ of Amparo
b. Petition for Writ of Habeas Data
Q: Is the SC a court of general jurisdiction?

A: The SC, despite being the highest court of the land, is not a court
of general jurisdiction, it exercises only limited original jurisdiction
as provided for under the Constitution. It is generally not a trier of
facts. The same is true in the CA. In Sec. 9 BP 129, the CAs
authority is very limited.
Under BP 129, the Court of Appeals may authorize itself to conduct
new trials and receive evidence in proper cases. The Constitution, and
even the Rules of Court, is silent whether or not the same power may
be done by the Supreme Court.
Q: CA has exclusive original jurisdiction over Annulment of
Judgment of an RTC under Rule 47. Does it mean that the CA
can annul a judgment rendered by an MTC?
A: Since the CA is a court of limited jurisdiction, it is allowed to
annul judgment only judgments from the RTC. It cannot annul
decisions of an MTC.
Q: Would it mean that the judgment of an MTC is immune from
annulment of its judgment by the CA?
Yes. The decision of an RTC can be annulled by the CA. But the
decision of an MTC is immune from annulment by the CA. But, the
decision of an MTC can be annulled by an RTC. It is not so provided
in BP 129 that an RTC can annul a judgment of an MTC, but it is
provided for under Section 10 of Rule 47 on Annulment of Judgment
in the Rules. Thus, jurisdiction is vested in the RTC under the Rules
for it to be able to annul judgments rendered by an MTC.
Q: Can we then challenge the jurisdiction of RTC as BP 129, a
special law, should take precedence over a substantive law, as BP
129 does not expressly give the RTC the authority to annul
judgment of an MTC? Why?
A: We cannot. This is because, under BP 129 there is an allocation to
the RTC of jurisdiction to entertain and decide all kinds of actions
which are not especially given to other courts. This is the provision
why an RTC can annul judgments of the MTC as well as the reason
why the RTC is considered as the real court of general jurisdiction in
our justice system. Since no substantive law has allocated to other
courts the jurisdiction to annul judgments of an MTC, it follows now
that the RTC is the proper court to decide on the matter as provided
under BP 129 for an RTC to entertain and decide all kinds of actions
not especially given to other courts.
See: Islamic Da'wah Case
Q: Can an RTC entertain and decide on cases of annulment of
judgments of another RTC prior to BP 129? Why?
A: Before BP 129, SC held yes, because the RTC is a court of general
jurisdiction. This is the reason why in BP 129, Congress deemed it
necessary to incorporate a provision giving exclusive authority to the
CA to annul a judgment rendered by the RTC to do away with the
anomalous situation where an RTC is able to annul judgments
rendered by another RTC, as there was no specific substantive law
prior to BP 129 which allocated to other courts the authority to annul
judgments of the RTC.
Q: Can the SC annul the judgment of the CA?
No. The Constitution and BP 129 does not provide authority for the
SC to annul judgments rendered by the CA. There is no substantive
law or special law authorizing SC to annul judgments rendered by the
CA.
It does not mean that the decisions of the CA are immune from
annulment. The SC could still exercise its equity jurisdiction, most
likely under Rule 65, in order to annul a judgment of the CA, based
on the same grounds given under Rule 47, extrinsic fraud and lack of
jurisdiction.
JURISDICTION OF THE REGIONAL TRIAL COURT

There are three factors that determine whether or not the Regional
Trial Court has jurisdiction over a given civil case:
1. Whether or not action is capable of pecuniary estimation;
2. Whether or not the action is a real action; and
3. If the amount is known, whether the amount is within the
ambit of the jurisdictional amount.
RTC: INCAPABLE OF PECUNIARY ESTIMATION
Not all actions incapable of pecuniary estimation are cognizable by

RTC.
For example, the following actions, though incapable of pecuniary
estimation, are not exclusively cognizable by the RTC:
1. Annulment of judgment rendered by RTC not capable of
pecuniary estimation, cognizable only by the CA.
2. Annulment of arbitral award by barangay court acting as
arbitral body cognizable by MTC, as provided by the
LGC, although incapable of pecuniary estimation.
3. Certiorari, prohibition and mandamus not exclusively
cognizable by RTC, although incapable of pecuniary
estimation.
Dean Albano: Settled jurisprudence considers some civil actions as
incapable of pecuniary estimation, viz:
1. Actions for specific performance;
2. Actions for support which will require determination of the
civil status;
3. The right to support of the plaintiff;
4. Those for the annulment of decisions of lower courts;
5. Those for the rescission or reformation of contracts; and
6. Interpretation of a contractual stipulation.
of, or foreclosure of a mortgage on real property. Although the main

issue involved in the case is partition, it is unknown if the same rule
may be applied to expropriation and foreclosure proceedings.
Q: Between the plaintiffs allegation in his complaint for
reconveyance of possession of real property that the property is
estimated to be worth P50,000, and an uncontroverted (common
evidence) tax declaration that states the property has an assessed
value of P11,160, which amount should prevail for the purpose of
jurisdiction?
Dean Riano: The uncontroverted tax declaration should prevail and
under BP 129, MTC should have jurisdiction over the complaint. The
estimated value, commonly referred to as the fair market value, is
entirely different from the assessed value of the property (p. 122).
Q: What if the property has no assessed value? What value will
then be used for purposes of jurisdiction?
There are several properties in the country which have not been
assessed for tax purposes. To determine jurisdiction, you go to the
neighboring lots until you locate a property that has an assessed
value. And that will be the basis in ascertaining the jurisdiction of the
court.
RTC: JURISDICTION IN REAL ACTIONS

RTC: JURISDICTION IN MONEY CLAIMS
Q: Is it possible a real action is at the same time one incapable of
pecuniary estimation?
A: Yes. A good example of a real action that is incapable of
pecuniary estimation is foreclosure of real estate mortgage. It is not
capable of pecuniary estimation as the determinative issue here is the
right of the mortgagee to foreclose, not the value of the property.
Q: What do we do in determining jurisdiction of an action is a
real action but is incapable of pecuniary estimation? What factor
will be determinative to determine jurisdiction of the court?
A: SC held in a line of cases that if the action carries the feature of
real action and one incapable of pecuniary estimation, then the
determinative factor is the feature of incapable of pecuniary
estimation. Thus, RTC has exclusive jurisdiction of foreclosure
actions, even if the assessed value of the property involved is less
than the jurisdictional amount of the RTC. As long as the action is
foreclosure of mortgage, the RTC has jurisdiction.
The feature of foreclosure of mortgage as a real action will only be
important in determining the venue, not the jurisdiction.
A similar action which applies the same principle is expropriation.
Expropriation of a piece of land is one involving real action, but it
does not take into account the assessed value of the land in
determining jurisdiction. Thus, it is real action, although incapable of
pecuniary estimation, as the right to expropriate is the main issue, not
the value of the land involved.
HOWEVER, and you should take note of this, under the latest case
on the matter, the Supreme Court held in Barrido v. Norato, G.R. No.
176492, October 20, 2014, that the MTCC has jurisdiction to take
cognizance of real actions or those affecting title to real property, or
for the recovery of possession, or for the partition or condemnation
When it comes to personal actions, under BP 129, the determining

factor will be the amount sought to be recovered if it is a claim for
money, or if it is recovery of personal property, it is the value of the
personal property as alleged in the complaint.
The determining factor for jurisdiction in a pure collection suit is the
principal sought to be recovered, exclusive of charges interest,
attorneys fees, damages, etc (IDALEC). If the amount sought to be
recovered by the plaintiff is 1M, it may be cognizable by the RTC if
the principal amount exceeds the jurisdictional amount (P200,000 or
P400,000 as the case may be), excluding IDALEC. If the principal is
only P200k and the rest are charges, damages, interest, etc., then the
MTC has jurisdiction over the case. It is therefore wrong to say that a
claim for P1 million is always cognizable by the RTC.
The entire amount, however, inclusive of IDALEC, shall be used to
fix the filing fees.
Q: What if the plaintiff seeks only recovery of damages inclusive
of actual, moral, nominal, among others? For example, plaintiff
sought 100K actual, 500K moral and 500k exemplary damages.
How do we determine jurisdiction here?
If the complaint is purely for damages, the aggregate (total) amount
of damages will determine jurisdiction, not the specific amounts
claimed. Thus, in the example, the RTC has jurisdiction. Even if the
complaint specified the amount of damages for each aspect, the
aggregate amount shall determine the jurisdiction.
Q: There is a complaint for a sum of money amounting to
P150,000. The case was filed with the MTC. During the trial, the
plaintiff presents evidence that he is entitled to P700,000. May
MTC award the P700,000?
No. The award is more than the jurisdictional amount granted by law
to inferior courts. The court cannot award the entire P700,000.
Q: What should the plaintiff do in this case?
He may waive the excess, but if he insists he should be awarded the
entire P700,000, the decision of the MTC is null and void.
Q: What if its in the reverse? What if there is a complaint for a
sum of money worth P700,000 but during trial the plaintiff was
only able to prove he is only entitled to P150,000? May the RTC
award P150,000?
Yes, applying the principle of adherence to jurisdiction.
RTC: RECOVERY OF PERSONAL PROPERTY
BP 129 as amended takes into account the assessed value only in the
case of real properties. Personal property values have no bearing in
jurisdiction. The value as stated in the complaint shall be
determinative (whether the figure is true or not).
Q: Plaintiff sought recovery of the car through replevin, claiming
that it is worth 800k. If the defendant challenges the value,
stating that the car is 30 years old, and willing to submit evidence
to show true value, will the court entertain the defendants
motion?
A: No. The court shall rely only on the allegations in the complaint.
Once the court acquires jurisdiction, it cannot be ousted; the court
proceeds with the case until finally adjudicated.
JURISDICTION OF MUNICIAL TRIAL COURTS

With respect to MTCs, notwithstanding the expanded jurisdiction
thereof, practically all cases decided by the RTC pertaining to
personal property can also be decided by the MTC, depending only
on the value of the property involved.
Note: MTC is still a court of limited jurisdiction despite the expanded
jurisdiction under BP 129 as amended. It can only try the cases given
to it under substantive law. The provision in BP 129 making the
RTCs courts of general jurisdiction is not given to MTCs. BP 129
stated explicitly that the RTC shall have exclusive original
jurisdiction over all actions that are not specially assigned to any
other court. This is not contained in the allocation of jurisdiction of
MTCs.
MTC: TOTALITY TEST
The totality test in BP 129 (Sec. 33(1), last proviso) is a proviso for
ascertainment of jurisdiction, more encompassing than that provided
in the Rules.
Q: What is the difference between the totality test in BP 129 and
the totality test in the Rules of Court?
Rules of Court The totality test in Rule 2, Section 5(d) concerns
causes of action for money as to the amount. The totality of the
money claims shall be determinative of jurisdiction of courts.
Q: What if it is found during trial that the car is actually worth

far less than the value claimed? Will the court remand the case to
the lower court?
A: No. It will continue to hear until final judgment. There will be
adherence of jurisdiction of the court over the case. The court will
continue trying the case until it is finally adjudicated.
BP 129 The totality test refers to of all claims or causes of actions

in a complaint, whether they refer to the same or different parties or
arising out of the same or differing transactions. This is more
encompassing in scope.
The only way to oust jurisdiction in this regard is if Congress files a

law abandoning the principle of adherence of jurisdiction over a
particular case.
The MTC, in its delegated jurisdiction, acts as if it were an RTC.
Q: Is there any exception to the rule that the court will not look
further the allegations in the complaint?
Dean Riano: Yes, in ejectment cases in which the defendant averred
the defense of the existence of a tenancy relationship between the
parties. However, there must first be a reception of evidence and, if
after hearing, tenancy had in fact been shown to be the real issue, the
court should dismiss the case for lack of jurisdiction (citing Ignacio v.
CFI of Bulacan and Hilado v. Chavez, p. 74-75).
Dean Albano: Although respondent averred tenancy as an affirmative
/ special defense in his answer, this did not automatically divest the
MTC of jurisdiction over the complaint. It continued to have the
authority to hear the case precisely to determine whether it had
jurisdiction to dispose of the ejectment suit on its merits (citing
Mendoza v. Geronimo, November 2010)
MTC: DELEGATED JURISDICTION
MTC acts as if it was a cadastral court (usually done by RTC). If the

land registration or cadastral case is contested, the assessed value of
the contested property is determinative of jurisdiction. If uncontested,
MTC acts as a cadastral as if it were an RTC, there being no
limitation as to jurisdiction. But BP 129 clearly states that if MTC
acts as a cadastral court the MTCs decisions on cadastral cases shall
be appealable in the CA, not to the RTC (hierarchy of courts is not
followed).
Q: What is the step-ladder approach?
It states that appeals, as a general rule, have to follow the order of the
courts from the lowest to the highest court. Thus, appeals from the
inferior courts should go to RTC, and the RTC to the CA, so on.
MTC: SPECIAL / INTERLOCUTORY JURISDICTION
Habeas Corpus proceedings can be heard in the MTC, but only in
situations where petition was filed in the RTC, but no judges are
available in the RTC, so the petition is transferred to an MTC
wherein a judge is available. The MTC gains jurisdiction as habeas

corpus cases are urgent. In fact, habeas corpus cases are always given
special preference by the courts; and thus, if no RTC judges are
available to hear the petition, the clerk of court in the RTC must
transfer the case to the MTC, issuing in the process a certification
that there are no RTC judges to hear the case, and MTC must hear the
petition promptly. BP 129 does not authorize the filing of the habeas
corpus case directly in the MTC. Petition for habeas corpus filed in
the MTC can be challenged on jurisdictional grounds because BP 129
does not vest unto an MTC an authority to entertain a petition for
habeas corpus. It is only under circumstances where there are no RTC
judges available to entertain a petition for habeas corpus when an
MTC judge can now analyze and study the propriety the issuing of
the writ of habeas corpus.
RESIDUAL JURISDICTION
Take note that the trial court still has residual jurisdiction to act on
certain matters even if the case is already on appeal. See Rules 41 and
42. It is not correct to assume that if a case has been decided by the
trial court, after an appeal is perfected, the case is now under the
jurisdiction of the appellate court. Do not assume that the case is
entirely divested from the jurisdiction of the trial court, even if there
is a perfected appeal. The trial court continues to exercise jurisdiction
over certain matters for a limited period of time in its residual
jurisdiction. After the expiration of that period, absolute jurisdiction
will now be exercised by the appellate court.
PRIMARY JURISDICTION
In primary jurisdiction, this involves quasi-judicial bodies. What
happens in primary jurisdiction is that Congress enacts a law which
vests jurisdiction unto a quasi-judicial body to try and decide cases
which are cognizable by regular courts under BP 129. The reason
why Congress enacts these laws is that Congress feels that the quasijudicial body is better equipped to decide disputes of litigants in
certain cases than the regular courts.
For example, the HLURB has exclusive original jurisdiction to
adjudicate disputes between subdivision buyer/s and the subdivision
developers. In cases of breach of contract under the NCC on matters
pertaining to the jurisdiction of quasi-judicial bodies, the trial court
cannot take cognizance of these matters, although BP 129 gives
jurisdiction to regular courts over such matters, given the fact that
there is a substantive law vesting jurisdiction to the HLURB to
decide on such disputes. This is because it is presumed that the
HLURB is better equipped than a regular court to decide on such
cases due to its expertise.
Q: What if the subdivision developer filed in the MTC a
complaint for ejectment of a subdivision buyer who allegedly
violated the terms of the contract? The subdivision developer
sought to recover the property from the buyer, among other
prayers. The subdivision buyer challenged that MTC has no
jurisdiction over the case, and that it is HLURB which is the

proper body to take cognizance of the complaint. Does HLURB
have jurisdiction over the ejectment case?
SC held that the primary jurisdiction of the HLURB does not extend
to complaints of ejectment filed by one party against the other. In the
case of primary jurisdiction vested by substantive law to quasijudicial bodies, the authority of the quasi-judicial body is interpreted
strictly. Ejectment could really be a dispute between developer and
buyer, but since the complaint was for recovery of physical
possession of the property (or even accion publiciana), SC held that
regular courts should take cognizance.
DOCTRINE OF JUDICIAL STABILITY

Dean Riano: Courts of equal and coordinate jurisdiction cannot
interfere with each others orders. The principle also bars a court
from reviewing or interfering with the judgment of a co-equal court
over which it has no appellate jurisdiction or power of review (p. 34).
RULES OF COURT: GENERAL PROVISIONS

Q: What are the limitations provided in the Constitution limiting SCs
authority in promulgating rules of procedure?
1. uniformity in all courts of the same grade
2. speedy and inexpensive determination of the case
3. does not modify, increase or decrease substantive rights
Any rule on procedure violating any one of the limitations given in
the Constitution, the rule can be properly challenged as to its validity
and applicability.
Q: A litigant challenged a rule on criminal procedure, stating
that Rule 115 (Rights of the Accused) is not procedural. He
argues that Rule 115 modifies substantive rights as espoused in
the Constitution, and should be deleted in the Rules of Court.
Decide.
The petition will be denied. SC said that while the authority of the SC
is to promulgate rules on proceedings, practice and procedure, and
substantive rights should not be covered by the provisions of the
Rules, SC said that it is practically impossible for rules of procedure
to be devised without incorporating certain provisions that are
dealing substantive law. The standard is that we take the Rules as
a whole, and determine whether it is procedural in character. If
the answer is yes, and there are certain provisions speaking about
substantive rights, that should not be a justification of deleting these
provisions in the Rules of Court.
Also, SC noted that the NCC, a substantive law, contains procedural
articles concerning court processes such as those concerning unlawful
detainer and forcible entry, but NCC still remain a substantive law.
According to the Rules, the Rules of Court should be interpreted
liberally. But the interpretation is one not in favor of the plaintiff or
defendant. The meaning of liberal interpretation is to promote the
ends of justice, to carry out the duty of the SC under the limitations
given under the Constitution.
docket fees, and manifest its willingness to abide by the rules by

paying additional docket fees when required by the court may be
found in a 2014 case, Gipa v. Southern Luzon Institute.
Read: Alonso v. Villamor

Q: May the Rules be suspended in the interest of justice?
Qualify. The SC may suspend the Rules in favor of substantive law
or substantive rights. Lower courts may not suspend, but they have
the power and duty to construe and apply technical rules liberally in
favor of law and justice.
Q: Are they any Rules that require strict construction?
Yes. For example, the reglementary period for appeals is more often
than not strictly applied by the Courts. The perfection of an appeal in
the manner and within the period permitted by law is not only
mandatory but also jurisdictional.
Dean Riano: Furthermore, a reading of jurisprudence will reveal that
the rule on liberal construction cannot be successfully invoked where
a party seeking for its application cannot show a justification for his
deviation from the Rules (p. 16).
Dean Albano: Liberal application of procedural rules is allowed only
when two requisites are present:
1. There is a plausible explanation for the non-compliance;
and
2. The outright dismissal would defeat the administration of
justice (citing Domingo v. CA and Tible and Tible Co. v.
Royal Savings and Loan Association)
DOCKET FEES
Q: Are docket fees jurisdictional?
A: Yes. This is known as the Manchester rule, after the ruling in
Manchester Development Corporation v. Court of Appeals.
If you look at Rule 141, that is the rule prescribing docket fees, you
will see that docket fees are not only limited to complaints but all
claim pleadings.
Q: Are docket fees required for compulsory counterclaims?
A: Although the Rules of Court state that there should be docket fees
for compulsory counterclaims, the Supreme Court relaxed the rule
and stated that compulsory counterclaims do not require docket fees
to be filed.
Q: When are docket fees not required to be paid?
A: If you take a look at the last section of Rule 141, that is, Section
22 of that rule, you will see that the Government is exempt from
paying docket fees. Also, if you take a look at A.M. 09-6-8-SC, or the
Rules of Procedure for Environmental Cases, you will see that a Writ
of Kalikasan and a Petition for Continuing Mandamus do not require
docket fees.
Dean Albano: The rule on docket fees, and its exception where the
party does not deliberately intend to defraud the court in payment of
RULE 1, SECTION 5
A civil action is always commenced with the filing of a complaint.
This is the general rule. Some cases are commenced by a petition,
most notably in special civil actions. The filing of a complaint has
given rise to the action that when the case is filed, the court acquires
jurisdiction over the action. The court will then have to gain
jurisdiction over the person of the defendant. Service of summons
will gain jurisdiction over the defendant.
A recent decision of the SC held that if the person filing the case is
not authorized to file the case, then the court does not acquire
jurisdiction over the person of the plaintiff, and will not acquire even
the jurisdiction to decide the case. The court can examine whether or
not the person who filed the case is authorized. If not so authorized,
the court will not acquire jurisdiction over the person of the accused
and it will not acquire the authority to decide the case. The court will
be absolutely without jurisdiction to try and decide the case.
In complaints properly filed by the plaintiff, the plaintiff can amend
the complaint as a matter of right under Rule 10, provided an answer
has not yet been filed. If amendment is to implead a new defendant,
the court will accept such amended complaint as it is a matter of
right. As to the new defendant, the period to file an answer will relate
to the filing of the original complaint (Relating Back Doctrine).
But, if a new cause of action is introduced along with the new
defendant, it is not an amendment, as a new cause of action is being
included.
RULE 1, SECTION 3, correlating with RULE 2, SECTION 2

Q: Should there always be a violation of a right for cause of
action to accrue?
No. In the definition of a civil action, it is very clear that we do not
necessarily follow the definition of a cause of action as defined in
Rule 2. Under said rule, for a cause of action to accrue, the plaintiff
must allege he has a right, and then allege the defendant had violated
that right.
There are therefore two elements under the definition in Rule 2:
1. Plaintiff must allege he has a right.
2. Plaintiff must allege the defendant has violated that right.
The implication given by the definition of a cause of action in Rule 2
is that the right holder must wait for a violation of his right before he
can have a cause of action against such person who violated his right
and have a reason to go to court. That cause of action should always
be correlated to the definition of a civil action found in Section 3(a)
Rule 1.
Under Rule 1, a civil action is one by which a party sues another for
the enforcement or protection of a right, or the prevention or redress
of a wrong.
Civil action does not require prior violation of a right before
right holder can proceed to court. A plaintiff need not have his
right actually violated before a case can be filed. Even a threat to
violate a right gives rise to a cause of action.
Premise: All civil actions require a cause of action.
This is not correct. Read the Rules. All ordinary civil actions require
a cause of action. There are at least two special civil actions that do
not require a cause of action. The first is a complaint for impleader.
The second is a petition for declaratory relief. In interpleader and
declaratory relief, there is no cause of action that is alleged in the
complaint.
Q: Should the plaintiff allege that he suffered damages before he
may file an ordinary civil case in court?
No. Cause of action accrues when there is an allegation of a right and
an allegation of a violation of or a threat to violate that right. There is
no need to allege that he suffered damages.
CAUSE OF ACTION AND THE PRINCIPLE OF CONDITION

PRECEDENT
Q: The Rules of Procedure becomes more complicated if there
are several rights that are violated by one and the same wrongful
act. If there is just one wrongful act and there are several rights
violated, how will the causes of action accrue?
In order to determine whether several causes of actions will arise, if
there is one wrongful act and there are several rights that are violated,
is to determine whether these rights belong to the same person or to
different persons.
Several rights of one person violated by one and the same act:
1 cause of action = 1 complaint.
Several rights of several persons violated by one and the same act:
Several causes of action = separate complaints.
Q: If a person drives his car negligently, and causes damage or
wrecks 3 cars, how many causes of action accrue against him
using the standard given by the court?
Using the standard, determine whether the three cars belong to one
person only or the cars belong to three different persons. If the 3 cars
belong to only one person, only one cause of action will accrue. The
owner of the cars can only file one case against the negligent driver.
Otherwise, that will be splitting of causes of action. The owner had
only one right that was violated by the negligent driver.
If these 3 cars belong to 3 different owners, there are 3 separate
causes of action. Because there are 3 causes of action that arise, they
can file separate complaints, and they dont have to be joined.
Conceivably, one owner can file his case in the RTC if he claims the
damages suffered by him amounted to more than 500k. Another
owner can file his case in the MTC if he claims that his car incurred
damages amounting to 200k. The filing of these complaints by 3
different owners will depend on the amount of damages each will
respectively claim in their respective complaints. The fact that there
are 3 different causes of action does not mean that they should go to
the same court in order to recover the damages suffered by them.
Q: Using the first example where the owner of the 3 cars can only
file one complaint for recovery of damages, can he properly and
rightfully go to court right away?
No. If we rely solely on substantive law alone, it would seemingly be
yes. But if we apply other procedural principles, the owner may be
precluded from filing a complaint right away. The owner has to first
satisfy certain conditions precedent before cause of action could
accrue. If these conditions precedent are not satisfied, the filing of the
complaint shall be premature and shall cause the dismissal of his
complaint.
Q: What are some examples of condition precedents?
Conditions precedent given under procedural rules and substantive
law are as follows:
1. Prior barangay conciliation
2. Arbitration clause
3. Certification on non-forum shopping
4. Exhaustion of administrative remedies
5. Earnest efforts towards a compromise
Prior Barangay Conciliation
Even if a right has been violated and a cause of action indeed
accrued, if the action is covered under the circular on prior barangay
conciliation, the trial court can dismiss or not entertain the case and
order the parties to undergo barangay conciliation first.
Arbitration Clause
Invariably provides that in case of breach of contract, the parties must
first undergo arbitration before a complaint can be filed by the
innocent party.
Certification on Non-Forum Shopping
The complaint/initiatory pleading must have Certification on NonForum Shopping. The effect of a complaint/initiatory pleading
without Certification on Non-Forum Shopping is that the court
acquires jurisdiction over the case, but the court can order the
dismissal of the case for non-observance of Certification on NonForum Shopping as a condition precedent.
Q: Is there forum shopping if there is a variation of the causes of
action but founded on same facts and evidence?
Dean Albano: Yes. Forum shopping can be committed in three ways:
1. Filing multiple cases based on the same cause of action and
with the same prayer, the previous not having been
resolved yet (litis pendencia)
2. Filing multiple cases based on the same cause of action and
the same prayer, the previous case having been finally
resolved (res judicata); or
3.
Filing multiple cases based on the same cause of action, but

with different prayers (splitting a cause of action, where the
ground for dismissal is also either litis pendencia or res
judicata).
Common in these types of forum shopping is the identity of the

causes of action in the difference cases filed (citing Asia United Bank
v. Goodland Co., Inc.).
The RTC. The cause of action in a complaint is not what the

designation of the complaint states, but what the allegations in the
body of the complaint define and describe.
SPLITTING A CAUSE OF ACTION

Splitting a cause of action is abhorred by the court.
Q: Is the absence of a certificate of non-forum shopping

jurisdictional?
Dean Albano: No. While the certification requirement is obligatory,
non-compliance or a defect in the certificate could be cured by its
subsequent correction or submission under special circumstances or
compelling reasons, or on the ground of substantial compliance
(citing Lim v. CA and Mindanao Station).
A violation of the rule against forum shopping other than a willful
and deliberate forum shopping did not authorize the RTC to dismiss
the proceeding without motion and hearing. Specifically, the
submission of a false certification of non-forum shopping did not
automatically warrant the dismissal of the proceeding, even if it
might have constituted contempt of court, for Section 5, Rule 7, of
the 1997 Rules of Civil Procedure is clear on the matter.
Exhaustion of Administrative Remedies
This is in keeping with the doctrine of primary jurisdiction.
Earnest Efforts towards a Compromise
In the NCC, in disputes between members of the same family, it must
be shown that earnest efforts to reconcile or compromise have been
attempted but was unsuccessful. There are, however, exceptions to
the rule.
Q: If prior recourse to compromise in a complaint between
immediate members of a family is not alleged, is it waivable?
Dean Albano: Yes. It is waivable if not pointed out by the defendant
in a Motion to Dismiss. Since it is not one of the four non-waivable
defenses, the court may not dismiss the case motu proprio.
Thus, the definition of a cause of action under the Rules is now
qualified by certain conditions precedent before the injured party can
go to court. He must see to it that these conditions precedent, if
applicable, must first be observed. The risk of not doing so is that the
court, although competent and may have jurisdiction over the case,
may refuse to file the case and issue an order directing the plaintiff to
undergo or comply with these conditions precedent.
If the conditions precedents have been met, the general rule that we
follow is that for every cause of action, the plaintiff/right holder can
file one complaint.
Q: What if the designation of the complaint states it is a case for
unlawful detainer, but the body of the complaint states that it is
for the recovery of P1 million in principal loan, which court has
jurisdiction over the case?
For example, a creditor filed one civil action for the recovery of the
principal and another action for the interest earned by the principal.
Even if there are two different courts where these complaints are
filed, there is still splitting a cause of actions.
Q: What are the sanctions for splitting a cause of action?
1. Filing of one could be used to dismiss the other due to litis
pendencia
2. If one of the case has been decided, the other case can be
dismissed due to res judicata
3. Both cases can be dismissed on the ground of forum
shopping.
It is now settled that if the party is guilty of splitting his cause of
action, he is also guilty of forum shopping. There is no need to
elaborate as to whether there is forum shopping as long as it can be
shown that there is splitting causes of action.
Q: Why do the Rules prohibit splitting?
It is because the effect of splitting a cause of action could be harmful
to the integrity of our courts. If splitting is allowed, and one case each
will be filed for example in the RTC and MTC, there is the possibility
that one court will decide differently from the other and would result
in the courts looking funny, even if the same facts, the same parties
and the same pieces of evidence were presented therein. The rule on
splitting is designed more for protecting the integrity of our courts.
The likelihood that different courts will render conflicting decisions
involving the same issue, the same parties and the same pieces of
evidence and thus destroy the credibility of the judicial system is
sought to be prevented.
Q: Suppose the plaintiff filed 2 complaints arising from the same
cause of action, but the defendant ignores this. Defendant did not
act on the fact. Can the court motu propio dismiss the cases?
Yes. Res judicata and litis pendencia are both non-waivable offenses
under Rule 9. Even if the defendant did not waive these, the court
motu propio can order dismissal of these cases once these becomes
clear during trial. But if the ground for dismissal is litis pendencia,
only one of the cases will be dismissed. If the ground for dismissal is
res judicata, all cases filed will be dismissed.
In litis pendencia, movant cannot move for dismissal of all cases,
only one can be dismissed.
(Tip: If you are counsel for the defendant, if cases are filed in 2
different courts [RTC and MTC], move for the dismissal of the case
in the RTC as the amount involved in the MTC is smaller. Hence, if
the amount involved in total should have been 2.2M, and the amount
involved in the MTC is only 200k, only 200k will be extent of

liability that your client will have in case of judgment against him.)
Q: Can we have the defendant have the remedy of dismissal of
both cases filed in RTC and MTC?
Yes, on the ground of forum shopping. If a plaintiff is guilty of forum
shopping, the court shall order the dismissal of ALL cases. But the
qualification is that the dismissal is without prejudice, not an
adjudication on the merits. Exception to the dismissal being without
prejudice is when the forum shopping was DELIBERATE, then
dismissal is with prejudice.
Q: Between forum shopping and the defense of litis pendencia,
which should you use as lawyer of your client?
Dean Albano: It depends. Although taken in its face forum shopping
seems to be more beneficial since it will result to the dismissal of all
the cases, unless there is deliberate forum shopping on the part of the
other party, there may be some instances when it is beneficial for the
client to only allege litis pendencia.
Collection of Payments Payable on Installments
The rule of thumb is that for each installment that becomes due and
unpaid, one cause of action arises for that particular installment.
If the installment becomes due and unpaid, the creditor has one cause
of action against the debtor for recovery of money. But his cause of
action against the debtor is only for the recovery of the installment
that was overdue.
Q: Can the creditor insist on recovery of the entire amount
instead of installments?
General rule, no. Each installment must be due so that right of
recovery can be had.
Exception: The contract has an acceleration clause. It is a clause in
contracts payable in installments where parties stipulate that in case
of default in the payment of a certain number of installments (or even
just one), the entire obligation becomes due.
So if there was an acceleration clause in the contract wherein the
whole obligation becomes due after default of the first installment,
the creditor will have one cause of action only to recover the entire
amount. Suppose the creditor indeed filed one case only, and later a
judgment was decided in his favor and that has become final, and
later the second installment has become due, he cannot file another
case for the recovery of the second installment by virtue of the
acceleration clause. Only one cause of action shall arise.
Q: What if all installments are due? For example, plaintiff did

not file a case for the first installment, second installment until
all the installments became due. How many causes of action will
there be?
If all installments are due by the time the complaint is filed, the
plaintiff must seek for the recovery of all the installments because by
then he only has one cause of action. The cause of action at that time
has become complete and total.
Rule on Anticipatory Breach
Even if the obligations are not yet due according to the contract, but
the debtor has expressed formally his desire not to pay, then that is an
anticipatory breach of contract from which creditor can file a case
against the debtor to collect the entire obligation. This anticipatory
breach should be formally pleaded in the complaint.
The basis for this may be found in Civil Law. The period for payment
is presumed to be for the benefit of both debtor and creditor. The
debtor cannot compel the creditor to receive his tender of payment
before the maturity date, and the creditor cannot compel the debtor to
pay also before such date. When the debtor expresses his desire not to
pay at all, as in Blossom v. Manila Gas, the debtor loses the benefit of
the period and the creditor may thus compel him to pay even before
the arrival of the maturity date.
Read: Blossom vs. Manila Gas
Q: If such anticipatory breach was not pleaded in the complaint
filed, and defendant failed to file an answer, the court will set the
case for pre-trial. By the time the pre-trial was conducted, the
first installment had become due. The trial was scheduled, but by
that time, the whole obligation became due and unpaid. Can the
court properly decide the case in favor of the plaintiff?
No.
If a plaintiff files a complaint in court although he has no cause of
action at all, and the claim of the plaintiff matures at the time the case
is tried, the court still does not have any authority to decide the case.
This is because at the time of the filing of the complaint, the plaintiff
did not have a cause of action. This is known as the Swagman Rule,
after Swagman Hotel v. Court of Appeals.
But without an acceleration clause, the rule of thumb is that each

installment that is unpaid shall give rise to a different cause of action
when they become due and unpaid. There will be as many cases as
there are installments filed by the creditor against the same debtor,
but each case corresponding to a different installment.
Q: Can we not apply Rule 10, Section 5, or amendment to

conform to evidence?
SC held that we cannot apply amendment to conform to evidence, if
in the first place the plaintiff does not have a cause of action at the
time of the filing of the complaint. It is essential under the Swagman
Rule that a complaint should be filed after the cause of action has
accrued. If there is no cause of action that has accrued and a
complaint is filed, the court will have no authority to decide the case,
even if that obligation matures and becomes defaulted during the trial
of the case. We apply Rule 10 only if there is a cause of action at the
time of the filing of the complaint.
Read: Larena v. Villanueva
Read: Swagman Hotel v. Court of Appeals
JOINDER OF CAUSES OF ACTIONS

Splitting is prohibited but joinder of causes of action is encouraged
by the Rules.
The Rules encourages a plaintiff to incorporate as many causes of
action he may have against the same defendant, although his causes
of action are totally unrelated to one another. This is allowed so long
as the parties remain the same.
A plaintiff can file a complaint against a defendant for accion
reinvindicatoria, for recovery of money arising from the loan,
recovery of damages arising from a quasi-delict committed by the
defendant, although these actions are in reality different transactions.
There is nothing wrong if the plaintiff sets up three different causes
of action in a complaint that arose of different transactions
There are three limitations to joinder of causes of action under the
Rules of Court, respectively (a), (b), and (c) of Rule 2, Section 5.
MISJOINDER DUE TO INCOMPATIBLE JURISDICTION

If the plaintiff files a complaint against the defendant for accion
reinvindicatoria, and the assessed value of the property is 1k only,
and the second cause of action is the recovery of money, obviously
the actions are misjoined. This is because accion reinvindicatoria, the
property being only 1k, is cognizable only by the MTC.
This is because partition will involve a different procedure from

ordinary civil actions. In fact, under our Rules now, partition is a
multi-stage proceedings. Rescission is an ordinary civil actions.
The court went ahead and tried the case, until a decision was finally
issued by the court. Only then did the defendant raised, on appeal to
the SC, the misjoinder of causes of action.
If nobody objected, the court may proceed in the disposition of the
case. The Supreme Court held in Ada v. Baylon, if the court decided
on the case despite the misjoinder of causes of action, the decision
will still be valid. SC made a qualification that these misjoined causes
should be within the jurisdiction of the trial court under BP 129.
In other words, under the Ada v. Baylon ruling, this rule on misjoined
causes could be a ground for severance of these causes. But it if it is
not raised timely, and the court did not severe the cases and decided
on it instead, the courts decision is valid as long as the trial court has
jurisdiction over the misjoined causes.
Q: Does the RTC have jurisdiction over a complaint for
partition? Does the RTC have jurisdiction over rescission of a
donation?
Note that a case for partition is one incapable of pecuniary
estimation. So even if there are misjoined causes in one complaint,
but this misjoinder is not raised before the trial court, the parties are
deemed to have waived this issue of misjoinder of causes of action,
the judgment rendered by the court is valid and the same can be
executed if it is duly entered.
Q: In a complaint filed by the plaintiff against the defendant, the

first cause of action was for partition, and second cause of action
was for rescission of a donation. Both actions are cognizable by
the RTC.
If the court does not motu propio order the severance, the defendant
cannot blame the court for it. It is the burden of the defendant to raise
this as an issue before the trial court.
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

while rescission is an ordinary civil action. They are governed by
different procedures, and thus there is misjoinder of causes of action
under Rule 2 Sec. 5(b).
Q: Can a complaint be filed where these two causes of action are

set up, first, petition for certiorari, and then, as a second cause,
petition for habeas corpus?
Yes, the petition is allowed, by way of exception, according to SC.
Q: On the same facts above, the defendant did not notice the
misjoinder and did nothing, whereas the court did nothing also.
The judge most likely waited for the defendant to move to split
the misjoinder causes. But since nothing was done by defendant,
the judge proceeded to try the two misjoined cases.
Read: Galvez v. Court of Appeals, G.R. No. 114046
Under the rules, can a court, motu propio, order the severance of
one of the misjoined causes of action?
Yes. The court can do so. Under the Rules, there is no need for a
motion from the defendant if the court finds out that causes of action
are misjoined. It can motu propio order the severance of cases. This is
done for the benefit of the court, because if the court will wait for the
defendant to make a motion, to raise the misjoinder of causes, the
court will find himself confused with the procedure he will follow.
Q: A complaint was filed in the MTC. The first cause of action

was for accion reinvindicatoria where the assessed value of the
land was 1k. The other cause of action is unlawful detainer of a
condominium unit, with value of back rentals being 2M. Can an
MTC have jurisdiction over the action?
Yes. The assessed value of the land in the accion reinvindicatoria is
only 1K and therefore cognizable by the MTC. On the other hand, the
unlawful detainer case, regardless of the amount of back rentals
sought to be recovered, will also be cognizable by the MTC.
Q: Are the causes properly joined?
No. There is still misjoinder, although both causes are cognizable by
an MTC. This is because accion reinvindicatoria, although
cognizable by the MTC, shall be governed by ordinary proceedings
while unlawful detainer will be governed by summary procedure. We

cannot join causes of action which are governed by different Rules of
Procedure, although they may fall within the jurisdiction of that same
court.
Note:
Dean Jara, in his lecture this year (2015), states that when the action
involves a case of unlawful detainer and a case for collection of sum
of money worth P1 million excluding IDALEC, although there is in
reality misjoinder since they pertain to different jurisdictions (MTC
and RTC respectively), if the case is filed in the RTC, under Rule 2,
Section 5(b), the joinder will be held valid.
Q: Is there such thing as non-joinder of causes of action?
No. It is purely voluntary in the part of the plaintiff if he wishes to
join his causes of action. There may misjoinder of causes of action,
misjoinder of parties, and non-joinder of parties, but there is no nonjoinder of causes of action.
Permissive Joinder of Parties

It envisions a situation where there are two or more plaintiffs, or two
or more defendants, or both, and where there is one or a series of
transactions, with common questions of fact concerning the same
parties.
Q: The owner of a land discovered that his property has been
occupied forcibly by 11 informal settlers and they retained
physical possession thereof. The informal settlers had constructed
houses therein. The owner wanted to recover the possession
thereof. Should the owner file 11 cases of forcible entry or just
one against the 11, or one complaint wherein there is a joinder of
parties?
SC said that the owner has the option of choosing any one of these
remedies. Plaintiff can file 11 separate complaints impleading only
one defendant in each complaint. If plaintiff chooses to file just one
action, in that complaint, he must allege 11 causes of action. The last
recourse will involve joinder of parties.
The joinder of parties is permissive in this case.
VOLUNTARY JOINDER OF PARTIES

Q: What are the limitations in joinder of causes which involve
joinder of parties?
The joinder of parties should arise from transactions arising out of the
same contract or series of contracts. The parties involved are not
necessarily indispensable parties. There are several causes of action
involving plurality of parties.
For example, if a truck driven by A hits two cars respectively owned
by B and C, B and C each have a cause of action against A. Although
they may separately file a complaint against A, they may also join as
plaintiffs and file a single complaint containing two causes of action
against A. The joinder is not mandatory, only permissive. It should be
noted that the two causes of action arose from a single event, i.e., the
vehicular accident.
On another hand, if a tire dealer sold a set of tires of A, and in a
separate transaction sold another set of tires to B, and both A and B
failed to pay their respective obligations, the tire dealer may NOT file
a single complaint against A and B. The two contracts, though both
contracts of sale, are totally different from each other. The causes of
action did not arise from the same or series of transaction.
JOINDER OF PARTIES: INDISPENSABLE PARTIES

Unlike joinder of parties, there is a rule against misjoinder of causes
of action, in the same way there is a rule on misjoinder of parties.
There is no rule on non-joinder of causes of action, while there is
non-joinder and misjoinder of parties. The reason why there is no rule
on non-joinder of causes is because it is permissive, it is always at the
option of the plaintiff. The plaintiff can join as many causes of action
as he may have. The court cannot force him to do so. But there is a Q:
rule against misjoinder of parties.
Compulsory Joinder of Indispensible Parties

Even if the court tries a case without impleading an indispensible
party, such non-joinder will render the proceedings void. The
decision is void and will never be entered, and thus cannot be made
final and executory.
Before the 1997 Rules of Civil Procedure, the constant ruling by the
SC has always been that failure to implead indispensable parties will
render the judgment void. The remedy of the defendant would be to
file a Motion to Dismiss on the ground of failure to state a cause of
action. If proven, the case would be dismissed with prejudice.
With the advent of the 1997 Rules of Civil Procedure, the procedure
became much different. Failure to implead indispensable parties will
not always render the judgment void. This will be explained later in
the lecture.
Take note, however, of two cases decided last 2013 Macawadib v.
PNP, G.R. No. 186610, and Republic v. Uy, G.R. No. 198010.
Although these cases involve special proceedings, particularly Rule
108, I think this applies also to civil actions. In these cases, the SC
held, citing Go v. Distinction Properties, The absence of an
indispensable party renders all subsequent actions of the court
null and void for want of authority to act, not only as to the
absent parties but even to those present.
Dean Albano: There is now a 2014 case which states that if
indispensable parties are not joined, the judgment is null and void.
The case is Crisologo v. JEWM Agro-Industrial Corp.)
Q: Who are indispensable parties?
A: They are parties in interest without whom no final determination
can be had.
Q: What is the sanction if the complaint is filed without

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

why is it that only trustees of an express trust included? Why not
the trustees of an implied trust?
It might be possible, it might be highly likely, that the trustee in an
implied trust is unaware that he is the trustee of the beneficiary or the
trustor. Implied trusts are created by operation of law.
Q: What is the duty of the plaintiff if the defendant is represented
by another party?
The plaintiff should identify not only the representative but also the
real party-in-interest.
Q: May the court compel the plaintiff to identify the real party in
interest?
Yes. The defendant may move to dismiss the case for failure to state
a cause of action and the court may compel the plaintiff to amend the
complaint. If the plaintiff still does not comply with the order of the
Q: Can the creditor file a case against only debtor A?
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
material interest or an interest in issue to be affected by the decree or
judgment of the case, as distinguished from mere curiosity about the
question involved. One having no material interest to protect cannot
invoke the jurisdiction of the court as the plaintiff in an action. When
the plaintiff is not the real party in interest, the case is dismissible on
the ground of lack of cause of action.
UNWILLING CO-PLAINTIFF
Q: Who is an unwilling co-plaintiff?
An unwilling co-plaintiff is a person who has done no wrong in so far
as the plaintiff is concerned but refuses to file a complaint even if he
and the plaintiff have a common interest over the claim.
Q: May the court compel a person to file a complaint?
No. Under our system, the filing of a complaint is left entirely to the
discretion of the plaintiff. If a plaintiff does not want to go to court to
protect his rights or to enforce his rights there is nothing which the
State or which the law could do.
There is a creditor who lent 1M to the debtor. The debtor

defaults in payment. But before the creditor filed a complaint, the
creditor felt the need for money. He assigned his claim to another
for a certain value. Such person now stands in the shoes of the
creditor, and may file a claim against the debtor. The creditor
sold his rights to X for 700K.
Q: Can the assignor/original creditor, file a claim for 1M against
creditor?
No, he is no longer a real party in interest, as he has assigned his
rights to another.
Q: What if assignee files a complaint against debtor?
Assignee is the proper party to file a complaint against debtor, so the
case will prosper.
Q: How much may the assignee recover?
He is entitled to recover 1M. The assignee steps into the shoes of the
creditor who sold his right to the assignor for 1M.
Since we cannot compel a right-holder to become a party-plaintiff,

the only means available under the Rules to another right-holder with
a common interest is to implead the other right-holder as defendant.
By making the other right-holder as a defendant he will now come
within the jurisdiction of the court.
Q: What if the original creditor has not assigned his credit for
1M. He files a case against debtor. While the case was pending in
the RTC, the plaintiff/creditor assigned his claim to another for
700K. Will the assignee be considered as indispensable party?
No. Under Rule 3, assignee pendente lite, though may be a real party
in interest, is not considered an indispensable party and the court may
ignore such party.
Q: Must the unwilling co-plaintiff file an Answer?

No. He is impleaded only for the purpose of bringing him under the
jurisdiction of the court. He need not file an Answer nor should he be
declared in default if he does not do so.
Q: Using the factual details of the preceding question, may the

debtor pay the assignee 700K, and if he does not accept, tender it
in court, so the case will be dismissed against him?
Yes. This is allowed under Art. 1634 of the NCC.
If the unwilling co-plaintiff, however, chooses to answer, he may do

so. Usually, the unwilling co-plaintiff files an answer to set up a
counterclaim against the original plaintiff. There is no prohibition in
the Rules of Court.
Article 1634. When a credit or other incorporeal right in

litigation is sold, the debtor shall have a right to extinguish
it by reimbursing the assignee for the price the latter paid
therefor, the judicial costs incurred by him, and the interest
on the price from the day on which the same was paid.
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

Q: Is there any conflict between the Family Court Act and a
complaint with the RTC or MTC as the case may be impleading a
minor accompanied by a prayer or a motion for the appointment
of a guardian ad litem?
Dean Jara: No. The guardianship that is allocated to a Family Court is
what we call a general guardianship, a guardianship over the property
or person of a minor. But when the guardian is simply a guardian ad
litem, that is an incident or collateral to the main action itself.
The debtor may exercise his right within thirty days from
the date the assignee demands payment from him.
Q: Will Art. 1634 apply if the credit was assigned before the
complaint is filed?
No. In such case the debtor has to pay the assignee the amount of the
credit in full, not only the amount the assignee paid for such credit.
Q: If the assignee pendelite lite wishes to join the case, what will
he do?
He may file a motion for substitution or joinder. He need not file a
motion for intervention.
SPOUSES AS PARTIES
Q: What is the general rule regarding spouses as parties?
Husband and wife shall sue or be sued jointly.
Q: What are the exceptions?
Section 4, Rule 3, states that the exception is that provided by law.
SC held that the law contemplated in the exemption is the Family
Code or NCC as the case may be. This is pertinent on the rule of
partnership and co-ownership in case of husband and wife. It is
impertinent to compel a husband to implead the wife as co-plaintiff.
In case of co-owner, a partner can file a complaint without
impleading the co-owners. The same would be applicable to husband
and wife. The wife may file a case without impleading her husband.
There is a caveat: If the husband as a co-owner files a complaint
against another, he should indicate in the complaint that he is filing
such case as co-owner. But if he claims sole ownership, he should
implead the wife. The law authorizes either spouse alone to file a
complaint. The spouse left behind is not considered a necessary party
as a complete determination of the case could be had even with just
one spouse as a party.
Other exceptions:
1. When the husband and wife are judicially declared legally
separated from each other, the other party must be
impleaded; and
2. If the husband and wife are separated in fact for at least one
year.
CLASS SUIT
Q: When is class suit proper?
There is a common interest among persons so numerous that it would
be impracticable to bring them all to court. It is not required that all
be presented in court, but only enough to represent the rest of those
who are party to the same suit.
For example, Oposa vs. Factoran is now enshrined in the Writ of
Kalikasan through the Citizens Suit on behalf of persons yet unborn.
This is effectively a class suit.
Q: Do we consider the members of the class as indispensable or
necessary parties?
SC held that all members of the class involved in the litigation are
considered indispensable parties.
Q: Should they all be identified?
SC held that there is no need. Only a representative number can be

impleaded as they represent all of the class. Determination made on
such representative class is tantamount to determination for all of the
members of the class.
Q: Why did SC hold that all such members of the class are
deemed indispensable?
SC pointed to the last sentence of Sec. 12 Rule 3 which states that
Any party in interest shall have the right to intervene to protect his
individual interest. This effectively means that each member of the
class is an indispensable party.
Generally, under Rule 19, intervention is subject to the discretion of
the trial court. As an exception, the court cannot deny intervention of
a member of the class in a class suit.
DECEASED LITIGANT
A contract of agency is present when a lawyer is engaged by his
client, an agency which exists until the client dies. The lawyer has to
inform the court about the death of his client. The court may then
cause substitution of the representatives of the estate of the deceased.
A distinction should be made if it is the plaintiff or the defendant who
died.
If the plaintiff dies, the court would require the lawyer to submit the
names of the heirs in order to act as substitute plaintiff.
If all heirs refused to act as substitute parties, the court can require
the defendant to seek the appointment of an administrator or executor
of the estate. This may be done by settlement of estate under special
proceedings.
If the executor or administrator has been chosen, he will be tasked to
represent the estate until final judgment.
If there is an appeal on the decision of the trial court, the
executor/administrator shall represent the estate. Their representative
capacity ends upon final entry of judgment.
If it is the defendant who died, and his death did not extinguish the
obligation, there is a transfer of interest from the debtor to his estate.
There will have to be proper substitution of parties similar to that
stated with the deceased plaintiff above.
Q: What criterion do we use to determine if the action survives
the death of the petitioner?
Dean Albano: If the action affects primarily and principally property
or property rights, then it survives the death of the plaintiff.
A Petition for Declaration of Nullity of Deed of Sale of Real Property
for instance, is one relating to property and property rights, and thus
survives the death of the petitioner (citing Bonilla v. Barcena, Torres
v. Rodellas, Sumaljag v. Literato)
Q: If there is a decision against debtor that was final and

executory, can the substituted party ask for motion for writ of
execution for satisfaction of the deceaseds claim?
No. It cannot be subject to execution under Rule 39. Creditor must
file a claim with the estate, attaching the said judgment as evidence
of a valid claim, under Rule 86.
Q: If the defendant dies, and the lawyer was not able to inform
the court of his death, and the court continued with the
proceedings not knowing the defendant is dead, is the judgment
of said court valid?
A: Yes, the judgment is valid.
Q: If the lawyer informed the court, or the court, independent of
the lawyers notice was able to discover that the defendant is
truly dead, but the court nevertheless continued with the
proceedings, is the judgment valid?
A: No, the judgment is void.
Q: Should the court dismiss the case if the lawyer failed to inform
the court of his clients death?
No. It is not a ground for dismissal of the action but only disciplinary
action against the counsel.
ALTERNATIVE DEFENDANTS
The situation is simply one where the plaintiff has the right that has
been violated but at the time of filing of the complaint he is not sure
as to who, between two or more persons, has violated the right and
who should be held liable for the violation.
Q: If there are alternative defendants, are there alternative
causes of action?
Yes. See Rule 2, Section 5. It says in the alternative. If you take a
look at Rule 8, Section 2, it also says two or more statements of a
claim alternatively.
Q: How about alternative defenses?
Yes. See Rule 8, Section 2, it says defense alternatively or
hypothetically.
Q: How about an alternative judgment?
Yes. If you take a look at Rule 60, Section 9, it says shall render
judgment in the alternative.
complaint can be filed naming A or B as plaintiffs in the alternative

against X, the one who has run away with the car.
UNKNOWN DEFENDANT
This usually happens in a case of replevin, or recovery of possession
of personal property.
Usually personal properties are transferred from one hand to another,
so the problem of the creditor who tries to recover the property is if
he files a complaint for replevin against the person who bought the
personal property from him, there is a chance that when the sheriff
goes to this defendant, the defendant is no longer in possession of the
property, so the sheriff will not be able to confiscate the property. It
is possible that the first possessor of the property has transferred the
possession in the meantime to another person.
In order to avoid this situation, the plaintiff in a case of replevin will
usually implead at least two defendants: the first possessor of the
property or the second possessor if known to the plaintiff, and then a
third defendant called John Doe. John Doe here is impleaded as an
unknown defendant; whoever is in possession of the personal
property will be the John Doe who is impleaded in that complaint.
Q: Is there an unknown plaintiff?
No. Since it is the plaintiff himself who institutes the action, it is the
duty of the plaintiff to identify himself to the court.
INDIGENT PARTY
The general rule on motions is that a motion should not be heard ex
parte. When it comes to an indigent litigant, the rule expressly allows
that a motion presented by a litigant to be allowed to try the case as
an indigent could be submitted to the court through an ex parte
motion.
The motion to declare oneself as an indigent party may be submitted
to the court even before filing a complaint. This is the only motion
that may be filed before filing a complaint.
The fact that a person is salaried, is gainfully employed, does not
mean to say he could not become an indigent party. The only
qualification now is that the litigant can prove that he cannot support
himself and his family, even if he is a salaried employee.
Q: How about alternative plaintiffs?

There is nothing in the Rules, but if we take a look in the Federal
Rules of Civil Procedure of the United States from which we copied
some of the provisions of the Rules of Court, it is expressly allowed.
The declaration by a court that a litigant may be considered as an

indigent litigant is purely interlocutory. It could be assailed later on in
the course of the trial as an adverse party.
Q: Give an example of alternative plaintiffs.

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

the defeated party to appeal the matter to the SC.
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.

Elements:
1. It must be in writing,
2. It must be contracted before the case is filed, and
3. It must contain features of exclusivity.
If the stipulation will cause undue inconvenience to parties, then such
stipulation can be dispensed with by parties. Rule 4 is designed for
the convenience of complaining parties, not for the benefit of
defendants.
Read: Sweet Lines v. Teves
In a real action, the venue, in absence of any stipulation designating a
specific venue, is the place where the property or a part thereof is
located.
In a mixed action action is both real and personal the venue in
absence of stipulation is the same as that of the rule in real actions.
Dean Riano: Examples of words with restrictive meanings are: only,
solely, exclusively in th si court, in no other court save -, particularly,
nowhere else but / except -, or words of equal import (p. 172).
Q: What is the venue if it is a personal action and the defendant
does not reside and is not found in the Philippines?
We normally cannot file a case against someone who does not reside
and is not found in the Philippines. There are only two instances
where a civil case can be filed against them when the civil action
pertains to the civil status of the plaintiff, or if it involves a property
of the non-resident defendant in the Philippines. In these instances
there is a res from which the court may have jurisdiction.
Q: What if it is the plaintiff who is a non-resident and cannot be
found in the Philippines?
There is no problem. He voluntarily submits to the jurisdiction of the
court once he filed the complaint.
Q: Will rules on venue apply to the SC or CA?
It is not possible to state a rule of venue that applies to the Supreme
Court or the Court of Appeals because unlike trial courts which are
distributed throughout the country, we only have one Supreme Court
based in Manila and the Court of Appeals that is likewise based in
Manila. So the features of trial courts in different regions do not
apply when it comes to the SC and the CA.
Q: May the parties agree to a change of venue which has the
feature of exclusivity but which is entered after the case is filed in
court?
Yes. The court, however, cannot be forced to enforce this agreement.
Once a case is filed in court, the court will continue to have authority
to try the case notwithstanding any agreement on exclusive venue
that the parties will enter into later on.
Q: May the court motu proprio dismiss the case?

No. Improper venue is not one of the four non-waivable defenses that
the court may use as ground to dismiss the case motu proprio.
Dean Riano: This is not necessarily true. Under summary procedure
and small claims proceedings, the court may dismiss the case motu
proprio since it has the authority to examine the complaint and such
evidence that may be attached thereto and dismiss the case on any of
the grounds apparent therefrom for the dismissal of a civil action (p.
175).
Q: What if a corporation sues another corporation? What should
be the venue?
Dean Albano: Follow the ordinary rules on venue if it is a real action.
If it is a personal action, specifically with respect to a domestic
corporation, it is in a metaphysical sense a resident of the place
where its principal office is located as stated in the articles of
incorporation (citing Golden Arches Dev. Corp v. St. Francis Square
Holdings, Inc.)
Q: What if the Articles of Incorporation state that the address of
the plaintiff is in Manila, but the principal office is actually in
Mandaluyong? Will a case filed in Mandaluyong be dismissed by
the defendant on the ground of improper venue?
Dean Albano: No. Respondents choice must be respected as the
controlling factor in determining venue for cases is the primary
objection for which said cases are filed (citing Saludo v. American
Express Inc.)
Q: What are some examples of real actions?
Dean Riano:
1. Actions for unlawful detainer, forcible entry, accion
publiciana, accion reinvidicatoria, to quiet title, or to
remove a cloud on a title;
2. An action to recover possession of real property plus
damages (compare this with an action for damages to real
property, which is only a personal action);
3. If one of the party seeks to rescind or annul a contract AND
that the other party return possession of a real property, it is
a real action;
4. An action to foreclose a real estate mortgage (but an action
to compel the mortgagee to accept payment of the debt and
to release the mortgage is a personal action);
5. An action praying that the defendant accept the payment
being made by the plaintiff for the lot to which the latter
contracted to buy on an installment basis from the former;
6. Action for cancellation of a TCT;
Q: What are examples of personal actions?
1. An action for a declaration of nullity of marriage;
2. An action for specific performance with damages (but if the
performance sought to be done is the issuance of deed of
sale for a parcel of land to acquire ownership of the land, it
is in reality an action to recover a parcel of land, and is thus
3.
a real action; BUT THEN AGAIN, if the ownership is not

in issue and the plaintiff only seeks for the issuance of a
deed of sale ALONE, this is an exception to the exception
and is a personal action);
An action to annul a loan and its accessory real estate
mortgage;
This does not apply to, among others:

1. Rule 65 cases, nor in petition for relief cases.
2. Cases that involve public officers or LGUs.
3. Certiorari, Prohibition, Mandamus
4. It does not apply to expropriation or quo warranto.
In these cases the Government or public officers are usually involved
and according to the LGC are not covered by barangay conciliation.
IN REM, IN PERSONAM ACTIONS

The determination of whether or not an action is real or personal
should not be confused whether or not an action is an action in rem,
in personam, or quasi in rem. Not all real actions are in rem actions,
and not all in rem actions are real actions.
Q: If your client, a creditor of a loan worth P1 million, wishes to

file a complaint in court without undergoing prior barangay
conciliation, as lawyer how do you counsel your client?
A: I will counsel him to attach with his complaint a petition for a
provisional remedy, such as preliminary attachment. Under the LGC,
these cases are also not covered by barangay conciliation.
For example, settlement of estate involving personal properties of the

deceased is a personal action, since the action does not involve title
or possession or interest to real property, but it is still an action in
rem since it is enumerated under Section 47 (a) of Rule 39.
Q: If the case is filed directly in court in violation of the LGC,

will the court still acquire jurisdiction?
Yes, under BP 129.
An example of a real action and in personam action, on another hand,

is an accion reinvidicatoria. Although the court may adjudge A is the
owner of the land as between him and B, this will not stop X, a third
party, to file a complaint against A for another accion reivindicatoria.
X is not bound by the judgment in the first case between A and B.
Q: What are the remedies of the defendant and the court if prior
barangay conciliation was not done?
The defendant can file a motion for dismissal for lack of cause of
action while the court can compel, on motion or motu proprio, both
the plaintiff and defendant to submit to barangay conciliation while
the case is being held in suspension. The court can hold the case in
abeyance until conciliation was had or had failed.
An example of a real action and in rem action is a cadastral or land

registration proceeding.
The rule on venue does not apply to CA, CTA and SC. It is only
applicable to trial courts and other lower courts.
Q: Are barangay courts part of the judiciary?

Barangay Court is not part of the judiciary, but part of the executive.
Inherently, barangay courts are not allowed to adjudicate, only to
mediate, to conciliate, and convince parties to arrive into a
compromise agreement and settle amicably. They act as an arbitration
court; that is, if parties have mutually agreed in writing to constitute
the barangay court as an arbitration court for their dispute.
PRIOR BARANGAY CONCILIATION
The barangay courts follow procedurally the same rules as that of

court cases.
An example, finally, of a personal action and in personam action is a

collection suit for a sum of money.
Prior barangay conciliation, as a general rule, is a condition precedent

to the accrual of a cause of action.
2 requisites:
1. The parties must be natural persons, and
2. They reside in the same city or municipality
As long as these two requisites are present, as a general rule, prior
barangay conciliation is a must regardless of the nature of the action.
For example, if there is a claim for collection of a sum of money,
regardless of the amount involved, prior barangay conciliation is still
a must. It should be further noted that prior barangay conciliation is
required not only in filing cases before the MTC or RTC but also the
CA, SC, and other judicial bodies.
Barangay conciliation applies to civil actions, as well as special civil
actions in appropriate cases.
The pleadings could be verbal, although the barangay court usually

asks for pleadings to be written. In Manila, they also require payment
of minimal docket fees, regardless of the amount of claim.
The barangay court may issue summons and subpoena.
If the complainant fails to appear repeatedly during the conferences
called by the Barangay Court, the Barangay Court can order the
dismissal of the complaint, and that dismissal is with prejudice. The
complainant loses his right to recover against the respondent.
If it is the defendant who fails to appear, the barangay court will just
issue the certificate that there is failure to compromise. The plaintiff
may then proceed to court.
The rule on venue in barangay conciliation is different from Rule 4.
The venue is the residence of the respondent. If the complainant and
respondent reside in different barangays, the complaint should be

filed in the barangay where the respondent resides.
If they are unable to settle, the barangay court issues a certification
that no compromise was entered into. This enables the plaintiff to file
a case in court.
Q: What if there is irregularity in the issuance of certificate to file
action by the Barangay Captain?
Dean Albano: First of all, the Barangay Captain, as a public official,
is presumed to act regularly in the performance of official duty. Even
grating, however, that an irregularity had intervened in the Barangay
Captains issuance of the certification, the SC notes that the
irregularity is not a jurisdictional flaw that warrants the dismissal of
the criminal cases before MTC. The irregularity merely affected the
parties cause of action (citing Sabay v. People).
If they, however, were able to settle before the Barangay Court and a
compromise agreement was made between them, that agreement will
be considered final and executory, subject to repudiation by any party
within 10 days from execution of the agreement. Grounds are any of
the vices of consent. If there is repudiation, the barangay court will
issue certification allowing plaintiff to file the case in court.
There is no need for the barangay court to ask for confirmation of the
compromise agreement. After the lapse of the 10-day period, it
becomes final and executory. It can become subject to execution by
the barangay court. If the terms of the agreement are not complied
with, the barangay court can execute the judgment, provided such
judgment should be executed within six months from signing of
compromise agreement.
While the barangay court can make a levy on execution, it is limited
to personal properties belonging to respondents. It cannot levy on real
properties owned by respondents. It can also sell these levied
personal properties at public auction to satisfy the compromise
agreement. If there is no satisfaction of the claim, the remedy for the
creditor is to either (1) file a case of collection in the MTC to satisfy
the compromise agreement; or, (2) according to Miguel v. Montanez,
treat the settlement agreement as rescinded and file the original claim
with the proper court.
Q: Why is it the barangay courts are not allowed to levy real
property if they are already allowed to levy on execution over
personal property?
The lawmakers thought it would be best to reserve levy on execution
over real property for the courts. It should be noted that under Rule
39, levy on execution over real property involve legal processes such
as redemption. These legal processes require mastery of the law, and
in a situation where lawyers are not even allowed to participate in the
proceedings, it is best that these legal processes will be allowed only
in a court of law.
There is a difference, however, if the settlement agreement was
submitted to court. The court will render a judgment based on a
compromise and this will become the law between the parties. Once
the judgment is subject to execution, and the execution failed due to
the fault of the judgment debtor, the judgment creditor cannot enforce
his original claim anymore. He may only enforce the judgment based
on a compromise through Rule 39.
Q: Why is there a difference between a settlement agreement
filed in a court of law, and a settlement agreement being enforced
with the barangay court?
Barangay courts do not have any power to render a judgment to
confirm the settlement or compromise agreement. They are a part of
the executive, not the judiciary. Thus, the most they can do is only to
enforce the settlement agreement.
The parties may also agree in writing to convert the barangay court to
an arbitral tribunal. In such case, the barangay court becomes a quasijudicial body. This written agreement may be repudiated within five
days from filing said agreement.
The barangay court, as an arbitration court, can make arbitral awards.
This award may not be appealed. The aggrieved party, however, may
file a petition to nullify the arbitral award, similar to annulment of
judgment, with the MTC.
If this award is not annulled, it becomes final and executory and like
the settlement agreement may be enforced by the barangay court. If
there is no satisfaction of the claim, the remedy for the creditor is to
enforce the award with the MTC.
Q: The claim of the creditor was 500k. The creditor and the
debtor submitted the matter for conciliation in the barangay
court. The claim of 500k was reduced substantially in the
proceedings, i.e., 250k paid in installments. The debtor failed to
comply. The agreement was not repudiated. The creditor filed a
complaint in the regular court for recovery of the 500k. CA held
that the only recourse of the creditor was to enforce the
compromise agreement as provided in LGC and the
implementing circulars, the creditor having lost the right to claim
the 500k. Decide.
SC held that failure to comply with the compromise agreement is
considered as a repudiation of that compromise agreement. SC cited
Art. 2041 of the NCC which states that when a party fails to comply
with the compromise agreement, the agreement is rescinded by
operation of law, and thus the creditor is entitled to recover the
original claim in the courts of justice.
There is no need to file rescission of the compromise agreement
in this instance. The effect is that the creditor who has agreed to the
compromise agreement will be reverted to his original position as a
creditor claiming the amount in his original claim before the
compromise agreement.
Mere refusal or failure to comply with compromise agreement is
tantamount to repudiation of the compromise agreement.
Read: Montaez vs. Miguel
SUMMARY PROCEEDINGS
Summary Proceedings refers to the summary procedure followed by
lower courts in unlawful detainer, forcible entry and money claims up
to P200,000, exclusive of interests and costs.
Q: Is it correct to say that only MTC follow summary procedure?
No. There are some cases which follow summary procedure that is
cognizable by the RTC. However, these cases involve family-related
cases. They are not civil actions involving summary procedures under
the rules. If you take a look under your Family Code, there are cases
there that involve summary procedure and they must be filed either in
the RTC or Family Courts as the case may be.
Under Section 3 of the circular governing summary procedure, there
are only four pleadings that may be filed in court:
1. Complaint
2. Answer
3. Compulsory Counterclaim
4. Cross-Claims
Q: Are permissive counterclaims allowed?
No, permissive counterclaims are not allowed, unlike in small claims
proceedings.
Under Section 19, there is a list of prohibited pleadings and motions.
This list is similar with the list in small claims proceedings.
One of the motions prohibited by the circular is a Motion to Dismiss,
except on the grounds of lack of jurisdiction over the subject matter,
or failure to comply with a condition precedent, i.e., prior barangay
conciliation.
Q: May the court summarily dismiss the case without a Motion to
Dismiss from the defendant?
Yes. The court itself will examine the contents of the complaint. If
the court finds the case should be dismissed under Rule 16, it can do
so motu propio, without a correlative motion to dismiss filed by the
defendant.
Ordinarily, under ordinary procedures, a court cannot simply dismiss
the case without a correlative motion to dismiss.
The defendant is given time to file a responsive pleading for a shorter
period than in ordinary procedure, i.e., 10 days. The period is nonextendible.
If defendant ignores the period, but files a motion for extension of 5
days to file an answer, the court can ignore it, considering it as if it
was not filed. If such a motion was filed, and there was failure of the
defendant to file an answer within 10 days, plaintiff can move for
judgment on the pleadings.
Q: The circular does not state that the 10 days is non-extendible.
What is the basis for this argument?
It is stated in Section 19. One of the prohibited motions is a motion
for extension of time to file pleadings, affidavits or any other paper.
This is also the reason why the court may ignore the motion and
consider it as not filed.
Q: If the defendant is prohibited from filing a motion to dismiss,
but the defendant, after evaluating the complaint that the case
should be dismissed based on any ground in Rule 16, can he still
make use of these grounds to cause dismissal eventually?
Yes. The defendant should follow Rule 16 by making use of the
grounds as an affirmative defense in his answer, and later on raise
these issues.
One of the prohibited motions also in Summary Procedure, and this is
also true with Small Claims, is the motion to declare the defendant in
default.
If defendant failed to answer on time, the plaintiff can move for
In ordinary proceedings, a motion to declare defendant in default
must be initiated by plaintiff before the court can declare defendant in
default. Unless such motion is made, the court can do nothing.
The reason why the rules on summary procedure do not allow the
court to declare defendant in default is because the rules under Rule 9
cannot be allowed in summary proceedings. It will be tantamount to
allowing a defendant in default to ask for lifting the order of default,
defeating the purpose of the rule on summary proceedings. It will not
be summary anymore.
Motion for new trial, motion for reconsideration and petition for
relief from judgment are prohibited in summary proceedings. This
does not mean the defendant has no remedy after judgment. The only
remedy available for a defendant is to appeal the judgment.
Annulment of judgment under Rule 47 can also be had under these
proceedings. But before he can avail of Rule 47, he must comply with
the strict requirements under Rule 47. Thus the aggrieved party must
first appeal if that is available to him.
One important aspect of Summary Procedure is the presence of a
preliminary conference. This is similar to pre-trial under civil actions
in ordinary procedure.
Q: Is it correct to say that there is no trial or hearing in summary
procedure?
No A trial is not absolutely prohibited in summary proceedings, as
certain criminal cases are governed by summary proceedings. A trial
has to be conducted because the court cannot deprive the accused of
his constitutional right of confrontation and from cross-examining the
witnesses.
Q: Why did not the SC adopt a common summary procedure for
civil and criminal cases? Why disallow trial in civil cases under
summary proceedings?
This is because SC cannot violate the rights of an accused in a
criminal case. The same right is not availing to a defendant in a civil
case under summary procedures.
Q: If the aggrieved party appeals the case to the RTC, will RTC
follow the rules of summary procedure as well?
No. Summary procedure applies only to inferior courts. Once the case
is elevated to the RTC in appeal, the appellate court has to comply
with the ordinary rules of procedure under the Rules of Court.
Read: Rule 70 of the Rules of Court
Yes, he may. The claim for P50,000 is within the jurisdiction of the
Small Claims Court.
Q: Using the above problem, may he foreclose the mortgage if the
claim is not satisfied?
No, he may not. Small Claims Court only has jurisdiction to enforce
money claims. Once the mortgagee-creditor has enforced his claim in
a Small Claims Court, the mortgage is automatically cancelled by
operation of law.
SMALL CLAIMS PROCEEDINGS

A Small Claims Court has jurisdiction over payment of money where
the value of the claim does not exceed P100,000, exclusive of interest
and cost. This is slightly different from the general rule of exclusive
of interest, damages, attorneys fees, litigation expenses, and cost.
Q: Why are attorneys fees not included?
For the simple reason that lawyers are not allowed to participate over
Small Claims Proceedings.
Joinder of causes of action is allowed, so long as the aggregate
amount should not go beyond P100,000.
Q: From where must this payment of money originate?
According to the circular, the claim or demand may be for (1) money
owed under contract, (2) damages arising from tort, quasi-contract, or
contract, and (3) enforcement of a barangay amicable settlement or
an arbitration award involving a money claim.
Q: In a contract of lease and a contract of mortgage then, is it

better for the lessor or creditor not to file their cases in a Small
Claims Court?
It depends. If the lessor or creditor wishes to only enforce the money
claim aspect of their cases, the Small Claims Court is a better court
since it is faster and more advantageous to their interest. However, if
they wish to evict the lessee, or foreclose the mortgage, they are
much better not to file their cases with the Small Claims Court.
The scheme in Small Claims proceedings is that they are not required
to prepare their own pleadings. In Metro Manila, the MTC assigned
to entertain these claims have ready forms for complaints (called a
Statement of Claim) or answer (called a Response) to be filed in
court. The complainant only has to fill in the blanks. Minimal docket
fee is paid.
Unlike Summary Procedure, permissive counterclaims are allowed in
Small Claims Proceedings.
Q: Suppose there is a contract of lease between A and B. A is the

lessor and B, the lessee. Under the contract, B must pay A
P10,000 as monthly rent. B is in arrears for five months, meaning
he is indebted to A for P50,000 in back rentals. May B go to the
Small Claims Court to enforce his claim for P50,000?
Yes, he may. The claim for P50,000 back rentals is within the
jurisdiction of a Small Claims Court.
There are prohibited pleadings and motions similar to Summary

Procedure. One of these prohibited pleadings is a Motion to Dismiss.
Like Summary Procedure, however, the court by itself may dismiss
the complaint if one of the grounds under Rule 16 is apparent in the
face of the document. The unavailability of a Motion to Dismiss does
not mean that the defendant may not incorporate in his Response the
defenses under Rule 16.
Q: Suppose A also wishes to recover possession of the land from

B, may he do so?
No, he may not. If he wishes to recover possession of the land from
B, he must file an unlawful detainer case. The Small Claims Court
only has jurisdiction over purely money claims.
At the time of filing the Statement of Claim or Response, certified

photocopies of the actionable documents subject to the claim or
defense as the case may be, as well as the affidavits of the witnesses
and other evidence must be attached with the Claim or Response.
Q: Suppose A filed an unlawful detainer case against B in the

MTC, may he do so?
Yes, there is something wrong with the complaint. Provided that he
has also a pending case with the Small Claims Court, he cannot split
the action so that he is collecting back rentals from one court, and an
unlawful detainer case in another court. That would be tantamount to
splitting a cause of action.
Q: Suppose there is a contract of real estate mortgage between A
and B as security for a loan worth P50,000. A is the mortgagordebtor and B, the mortgagee-creditor. May B go to the Small
Claims Court and demand from A his claim for P50,000?
Judicial Dispute Resolution

The MTC encourages parties as much as possible to enter into a
compromise agreement. Judicial Dispute Resolution is similar to pretrial in ordinary civil actions and preliminary conference in Summary
Procedure.
In Manila, based on experience, it is usual that the JDR court and the
actual court that will decide the case are different from each other. If
you take a look in your circulars, absent an agreement of the parties
that the JDR judge will be the same judge that will decide the case,
there will be another pairing judge that will decide the case instead.
Unlike Summary Procedure, small claims proceedings have nothing
to do with criminal cases, only civil collection cases.
In small claims procedure, the judgment is immediately final and

executory, no appeal is available. Motion for new trial, motion for
reconsideration and petition for relief from judgment are not
available since they are prohibited pleadings under the circular. The
only remedy available to an aggrieved party is under Rule 65,
Certiorari. Thus, there is no appeal, plain, speedy or adequate remedy
available.
Q: Does it mean that the aggrieved party in small claims
procedure is treated more kindly than in summary procedure?
No. The availability of Rule 65 in Small Claims procedure is not
really a benefit. A petition under Rule 65 does not stop the
respondent court from carrying out its decision.
Unlike in an appeal, usually, execution is not allowed, except in
forcible entry and unlawful detainer. In case of unlawful detainer,
under Rule 70, the payment of supersedeas bond and the payment of
current rate of monthly rentals can stop enforcement of the summary
proceedings judgment.
The only way Rule 65 can prevent immediate execution in small
claims is that the court taking cognizance of Rule 65 will issue a
TRO or writ of preliminary injunction upon application of appellant.
There is a need to post an injunction bond to avail of the TRO or writ
of preliminary injunction.
Q: Is it always practical to proceed with Rule 65 if there is an
adverse decision against a party?
No. Small claims proceedings involve, as the name implies, small
claims. It is sometimes impractical to proceed with Rule 65 since it is
possible that the attorneys fees and litigation expenses will be more
than the actual sum to be collected.
PLEADINGS AND CONTENTS OF PLEADINGS

Let us take Rule 6, 7, 8, 9, and 10. Take them as one set, as they refer
to the same thing, pleadings and content of pleadings.
Pleadings should always be in writing. We do not recognize in our
system oral pleadings.
Rule 9, Section 2, if he fails to do so, a compulsory counterclaim, or a

cross-claim, not set up shall be barred.
Q: Are there any actions where some pleadings are not allowed?
Yes. For example, cases governed under Summary Procedure, Small
Claims Proceedings, Environmental Cases, the Writs of Kalikasan,
Amparo and Habeas Data, and expropriation, among others, prohibit
certain pleadings and motions.
INITIATORY AND NON-INITIATORY PLEADINGS

There are two classification of pleadings under Rule 7:
1. Initiatory Pleadings
Under Rule 7, all claim pleadings are initiatory pleadings.
There should be a certification on non-forum shopping, the
violation thereof could lead to adverse consequences such
as dismissal with or without prejudice; and the court shall
impose docket fees under Rule 141. The payment of docket
fees is considered jurisdictional.
2. Non-Initiatory Pleadings
Non-initiatory pleadings need no certification of non-forum
shopping; and no docket fees are required.
Q: Compulsory counterclaims and cross-claims are claim
pleadings. Are they also initiatory pleadings?
No, they are not initiatory pleadings and therefore do not require a
certification of non-forum shopping or the payment of docket fees. It
should be noted that they are contained in an Answer and the latter is
not a claim but a responsive pleading.
Q: Rule 141 states that compulsory counterclaims and crossclaims require docket fees. What is the basis that compulsory
counterclaims do not require docket fees if not the Rules of
Court?
With respect to compulsory counterclaims, courts do not consider it
an initiatory pleading which will necessitate the payment of docket
fees.
See Santo Tomas University v. Surla.
Pleading is a written statement or allegations of the cause or defenses

submitted to the court for judgment.
Under Rule 6, the litigants are allowed to make use of nine pleadings,
but numerous motions.
Classes of pleadings:
1. Claim pleading (7 kinds)
2. Responsive pleading (2 kinds)
There are several pleadings that may only be allowed if accompanied
by another pleading. For example, under Rule 11, Section 8, a
compulsory counterclaim or a cross-claim that a defending party has
at the time he files his answer shall be contained therein. And under
In 2010, SC decided that if the defendant files an answer with

permissive counterclaims, fails to pay docket fees, and the court has
neglected to collect docket fees thereto tries the case resulting in the
dismissal of the complaint and granting the permissive counterclaim,
the decision over the permissive counterclaim is void due to lack of
jurisdiction, there being no showing that the court acquired
jurisdiction over the counter-claim. The defendant has the duty to
remind the clerk of court that docket fees should be collected against
the defendant so as to enable the execution of a decision in favor of
the defendant.
COMPLAINT
Ultimate Facts
In ordinary civil cases, ultimate facts should be alleged in the
complaint. The plaintiff, however, is not sanctioned if evidentiary
facts are included therein. They will only be considered as surplusage
by the court.
In several circulars, in certain proceedings, a complaint need not state
just ultimate facts. In a complaint filed under Summary Proceedings,
plaintiff is encouraged to include in his complaint evidentiary facts
and to attach his evidence in the document. In Kalikasan proceedings,
the plaintiff is required to attach to his complaints all the evidence
that are in the possession of the plaintiff (documentary, testamentary
or object). Also in Kalikasan cases, the defendant should include his
evidence in the answer, aside from specific denials.
The ultimate facts are those that constitute the cause of action, an
allegation that the plaintiff has a right, an allegation that the
defendant has violated that right, or an allegation of compliance with
conditions precedent that gave rise to accrual of the cause of action.
will not be considered as a specific denial. It will be considered as a

general denial, and a general denial will be treated as a judicial
admission to the allegations contained in the complaint. As a result, a
judgment on the pleadings can be had upon motion of the plaintiff.
Negative Pregnant
Another form of denial frowned upon by jurisprudence are the
following: I specifically deny paragraph 1 because I had not dealt
with the plaintiff or I specifically deny paragraph 2 of the
complaint. They are considered as negative pregnant. They are
specific denials that contain no ground relied upon in support of the
denial, and thus are considered as general denial. The remedy of the
defendant is to amend the answer as a matter of right as provided in
Rule 10.
Q: Are they cases where general denial is allowed?
A general denial is allowed in Habeas Corpus cases, but expressly
prohibited in Writ of Amparo and Habeas Data cases.
COUNTERCLAIMS
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
with evidentiary facts. The defendant, however, cannot move for the
court to order the plaintiff to present evidentiary facts in his
complaint as the statement of the ultimate facts alone is sufficient.
Problems arise when an answer interposes a negative defense.
Negative Defense
In civil cases, a negative defense is always an important part of the
answer. A negative defense must always be in the form of a specific
denial.
Q: What is the standard to follow that a denial is specific?
It is found in Section 10, Rule 8. There are three modes, three ways,
in which a denial may be considered specific. These are:
1. Total denial of the allegations in the complaint with
accompanying statements upon which he relies to support
his denial;
2. Part denial and part admission; and
3. Just a statement by defendant that he has no knowledge
or information about the truth of the allegation.
Theoretically, the defendant can make use of any mode of denial
right away.
The court, however, has in several cases discouraged the 3rd mode of
specific denial, and imposed some sanctions if a defendant insists in
using the 3rd mode as the only mode contained in his answer.
SC held that if the defendant had no knowledge or information on the
matter, defendant should explain why. If he fails to do so, such denial
Q: What is the difference between a compulsory and permissive

counterclaim?
Compulsory Counterclaim
Permissive Counterclaim
One which arises out of or is

necessarily connected with the
transaction or occurrence that is
the subject matter of the
opposing partys claim (Sec.7,
Rule 6)
It does not arise out of nor is it

necessarily connected with the
subject matter of the opposing
partys claim
It does not require for its

adjudication the presence of
third parties of whom the court
cannot acquire jurisdiction
It may require for its

adjudication the presence of
third parties over whom the court
cannot acquire jurisdiction
Barred if not set up in the action

(Sec. 2, Rule 9)
Not barred even if not set up in

the action
Need not be answered; No

default
Must be answered,: Otherwise,

default
Not an initiatory pleading.
Initiatory pleading. (Riano, p.

336)
Need not be accompanied by a

certification against forum
shopping and certificate to file
action by the Lupong
Tagapamayapa.
Must be accompanied by a
certification against forum
shopping and whenever required
by law, also a certificate to file
action by the Lupong
Tagapamayapa (Santo Tomas
University v. Surla, G.R. No.
129718, Aug. 17, 1998) (2007
Bar Question).
The court has jurisdiction to

entertain both as to the amount
and nature (Sec. 7, Rule 6; Ibid
p.331)
Must be within the jurisdiction

of the court where the case is
pending and cognizable by
regular courts of justice
otherwise, defendant will have to
file it in separate proceeding
which requires payment of
docket fee
Q: Is there any difference between a compulsory counterclaim

filed in the RTC and a compulsory counterclaim filed in the
MTC?
A compulsory counterclaim filed in RTC cannot be a compulsory
counterclaim filed in the MTC.
For example, a counterclaim filed in the RTC states that the case filed
was unjust and defendant claimed legal expenses amounting to
P200,000. This is considered to be a compulsory counterclaim in the
RTC even if such amount is below the threshold for claims in the
RTC. We cannot challenge the RTCs jurisdiction by the amounts
claimed in the counterclaim because of the principle of ancillary
jurisdiction.
If, on the other hand, the counterclaim filed in the MTC by a
defendant was claiming 500k in moral damages, under the rules, this
is no longer a compulsory counterclaim. It is treated as a permissive
counterclaim. The MTC can order dismissal of the counterclaim, as
the counterclaim is outside the jurisdiction of the MTC. We cannot
apply adherence to jurisdiction since the amount of P500,000 is over
and above the jurisdictional amount allowed by law, i.e., BP 129.
In sum, if the amount to be recovered is beyond the jurisdictional
amount of the MTC, the compulsory counterclaim is converted to a
permissive counterclaim. If the amount to be recovered is below the
jurisdictional amount of the RTC, the counterclaim is still treated as a
compulsory counterclaim.
No. The new matter alleged in the answer is deemed controverted

even without a reply. The plaintiff need not submit a reply as the
rules itself state that the new allegation or matter is deemed
controverted.
Exception to Uselessness of a Reply
There is only one exception to the rule, and that is where the defense
in the answer is based on an actionable document. A reply under oath
Rule 8 must be made. Otherwise, the genuineness and due execution
of the document shall be deemed admitted, and that admission is
considered as a judicial admission.
Q: How about allegations of usury? Is it an exception?
No. Under our present rules, allegations of usury MUST be contained
in a complaint or similar pleadings. The law is not specific, but given
the liberal interpretation of the rules, it leads to the conclusion that as
long as the allegations of usury are contained in a complaint or
similar pleading like counter-claim or cross-claim, there is a need for
specific denial. The responsive pleading would be an answer, not a
reply. If the allegation of usury is contained in a counterclaim/crossclaim, the responsive pleading is an answer to the counterclaim/crossclaim. If the allegation of usury is contained in an answer, there is no
need to specifically deny in the reply.
Q: What is an actionable document?
It is the document relied upon by the plaintiff and the defendant for
his action or defense (Araneta, Inc. vs. Lyric Factor Exchange, Inc.
58 Phil 736)
For example, a promissory note in an action for collection of a sum of
money is an actionable document (Riano, Civil Procedure: A
Restatement for the Bar, p. 101, 2009 ed.).
Q: How are actionable documents pleaded?
1. By setting forth the substance of such document in the
pleading and attaching said document thereto as an exhibit;
or
2. By including the contents of the document verbatim in
the pleading (Sec. 7, Rule 8).
REPLY
The filing of a reply is generally not necessary. It is in fact next to
useless.
Why is it useless? If the plaintiff does not reply, still, the matters not
answered in the reply are deemed controverted. In a complaint, if the
allegations therein are not specifically denied or were not dealt with
in the answer, they are deemed admitted. If the defendant does not
specifically deny or does not set up proper affirmative defenses in the
answer, the defendant is sanctioned by law. This will lead the court to
conclude that the defendant has admitted all allegations in the
complaint, and thus will lead to a judgment on the pleadings.
Q: The defendant includes in his answer an affirmative defense,
and the new matter asserts a positive defense of extinguishment,
for example, full payment of the loan. The plaintiff does not file a
reply. Is the plaintiff deemed to have admitted the new matter?
A variance in the substance of the document set forth in the pleading

and the document annexed thereto does not warrant the dismissal of
the action (Convets, Inc. v. National Development Co., G.R. No. L10232, Feb. 28, 1958). However, the contents of the document
annexed are controlling.
For example, the defendant alleges payment in his answer supported
by a receipt issued by the plaintiff, acknowledging full liquidation of
the indemnity. Under law, if the claim or demand is based on an
actionable document, it is imperative upon the misleader to allege on
the pleading the actionable document.
Q: Can the plaintiff simply file an affidavit in opposing the
actionable document?
The only way that a plaintiff can make a specific denial under oath
against the actionable document alleged in an answer is by way of a
reply. A reply is the only pleading that is available that responds to an
answer. If the plaintiff makes a reply setting up a specific denial, he

should also see to it that the specific denial is under oath. If he did not
do so, the genuineness and due execution of the actionable document
is deemed admitted.
Take note, however, of Titan Construction Corp. v. David, where it
says that a plaintiff who files a VERIFIED complaint is not anymore
required to file a verified reply against an answer which contains an
actionable document.
Q: What if the plaintiff titles his reply as an answer? Will that be
fatal to his defense?
No. The contents of the pleading shall be controlling and not the title
asserted by the one making it.
There are, however, exceptions to the exception. In these cases, even
if the plaintiff does not make a reply under oath, or the defendant
does not make an answer under oath, their failure to do so will not be
considered by the court as a judicial admission to the genuineness or
due execution of the actionable document. These cases are:
1. When the adverse party does not admit being a party to
that document, or
2. Even if such party is a party to the document, there being
an order issued by the court for the inspection of the
original document, the party does not comply with that
order.
Q: Is impleading an actionable document mandatory?
The mode of impleading an actionable document was held by the SC
to be mandatory. If the party impleading such document did not
follow the modes provided in the Rules, the party will not be allowed
to present proof of his cause of action or defense as the case may be,
as the attachment of the actionable document after the answer or
reply has been filed will adversely affect the other party.
THIRD-PARTY COMPLAINT
There can potentially be no end to the number of parties in the
complaint as long as the allegations in the pleadings have something
to do with the claim of the plaintiff in his complaint. If you would
notice among the pleadings, it is only the third/fourth party complaint
that requires leave of court.
The third/fourth party complaint must allege that the third/fourth
party defendant is liable to said third/fourth party plaintiff, by reason
of contribution, subrogation or any other relief in relation to the
subject matter of the claim in the complaint. The third/fourth party
complaint is always connected to the subject matter of the complaint.
If a complaint for instance is for the recovery of an unpaid loan, a
third party complaint cannot contain a claim for the recovery of
ownership of a piece of land. The subject of the third party complaint
should always be related to the subject of the complaint.
Q: Why do we need leave of court in order to file a third party

complaint?
This is because a third party complaint will forcibly bring into the
action a stranger to the case. The third party defendant is a stranger to
the case. This is why the rules require that the court should be given
discretion whether to allow or not to allow the third party complaint
to see if there is a need to bring a stranger to the case or even if there
may be a need, the claim is unrelated to the subject to the case. If the
court denies the motion for admission of a third party complaint, the
remedy of the defendant is to file a separate complaint against the
third party defendant.
Q: What is a third (fourth, etc.) party complaint?
A: A third (fourth, etc.) party complaint is a claim that a defending
party may, with leave of court, file against a person not a party to the
action, called the third (fourth, etc.) party defendant, for contribution,
indemnity, subrogation or any other relief, in respect of his
opponent's claim. (Sec.11, Rule 6)
Q: Distinguish a third-party complaint from the rules on
bringing in new parties under Section 12.
A: A third-party complaint is proper when not one of the third-party
defendants therein is a party to the main action. Whereas in bringing
in new parties, if one or more of the defendants in a counterclaim or
cross-claim is already a party to the action, then the other necessary
parties may be brought in under the rules on bringing in new parties.
Q: What are the tests to determine whether the third-party
complaint is in relation to the subject matter of the claim in the
complaint?
A:
1. Whether it arises out of the same transaction on which
the plaintiffs claim is based, or, although arising out of
another or different transaction, is connected with the
plaintiffs claim;
2. Whether the third-party defendant would be liable to the
plaintiff or to the defendant for all or part of the plaintiffs
claim against the original defendant; and
3. Whether the third-party defendant may assert any
defenses which the third-party plaintiff has or may have to
the plaintiffs claim.
Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third party complaint, regardless of the amount
involved as a third-party complaint is merely auxiliary to and is a
continuation of the main action (Republic v. Central Surety &
Insurance Co., G.R. No. L-27802, Oct. 26, 1968).
A third party complaint is not proper in an action for declaratory
relief. (Commissioner of Customs v. Cloribel, G.R. No. L-21036, June
30, 1977).
The court is vested with the discretion to allow or disallow a party to
an action to implead an additional party. Thus, a defendant has no
vested right to file a third party complaint (China Banking
Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p.
342, 2009 ed.).
Q: Abby obtained a favorable judgment against UNICAP for a

sum of money. For failure to get full payment, Abby went after
UNICAPs debtor Ben. Ben is a policy holder of Insular. The
courts sheriff then served a notice of garnishment to Insular
over several account receivables due to Ben. Insular refused to
comply with the order alleging adverse claims over the garnished
amounts. The trial court ordered Insular to release to Abby the
said account receivables of Ben under the policies. Insular then
filed a petition for certiorari with the CA alleging that the trial
judge gravely abused his discretion when he issued the
garnishment order despite its adverse claim on the garnished
amounts. The CA gave due course to the petition and annulled
the order of the trial court. Is the Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari is the proper
remedy from the denial of a third-party claim. Since the third-party
claimant is not one of the parties to the action, he could not, strictly
speaking, appeal from the order denying its claim, but should file a
separate reinvindicatory action against the execution creditor or a
complaint for damages against the bond filed by the judgment
creditor in favor of the sheriff. The rights of a third-party claimant
should be decided in a separate action to be instituted by the third
person (Solidum v. CA, G.R. No. 161647, June 22, 2006).
Q: What is Doctrine of Ancillary Jurisdiction?
A: It involves the inherent or implied powers of the court to
determine issues incidental to the exercise of its primary jurisdiction.
Under its ancillary jurisdiction, a court may determine all questions
relative to the matters brought before it, regulate the manner in which
a trial shall be conducted, determine the hours at which the witnesses
and lawyers may be heard, and grant an injunction, attachment or
garnishment.
Q: Let us say that the subject of the complaint is the recovery of
1M unpaid loan. The competent court is an RTC. The defendant
asks the court for permission to file an answer with a third party
complaint. In the third party complaint, the defendant asserts
that Juan de la Cruz is bound to pay defendant the sum of 200K
by reason of contribution, indemnity, subrogation or any other
relief. With respect to the complaint, there is no question as to
jurisdiction as the competent court is really an RTC. It is with
respect to the third party complaint where a jurisdictional issue
is present. The third party complaint is effectively a complaint
filed by the defendant against a stranger to the case, and the
amount sought to be recovered is 200k, which is an amount not
within the jurisdiction of the RTC. Can the court, upon motion
by the third party defendant, order the dismissal of that third
party complaint on the ground of lack of jurisdiction over the
subject matter of the case?
No. We apply rule of ancillary jurisdiction of a trial court. If the trial
court has jurisdiction over the principal complaint filed by the
plaintiff against the defendant, the same court will exercise ancillary
jurisdiction over all collateral pleadings, incidental pleadings that are
related to the complaint. Thus, the third party complaint to recover
200k is still cognizable by the same court.
Q: Is it correct to say that third party complaint or fourth party

complaint would be the only pleadings which will enable a
litigant to bring in a stranger to the case? Can a litigant bring in
a stranger without a third or fourth party complaint?
No. The Rule does not say that it is the only means/pleading available
to bring in a stranger to the case.
Q: Can the defendant compel a stranger to be a party to the case
by filing a counterclaim or cross-claim? What is your basis?
The law authorizes the defendant to bring in a stranger by filing a
permissive or compulsory counter-claim. The law authorizes the
defendant to bring in a stranger to the case through the filing of a
cross-claim. Although the Rules defines a cross-claim as a claim by a
defendant against his co-defendant, the Rules does not say that in
filing a cross-claim against a co-defendant that a third person can be
impleaded in the cross-claim.
In the definition of a counterclaim, the defendant could set up the
counterclaim against the plaintiff or against any party or person who
is not yet a party to the case, as long as the court can acquire
jurisdiction over the person of the said person.
The basis is found in Section 12, Rule 6, of the Rules of Court.
Q: Why do we allow a defendant to bring in a stranger to the case
by not using a third-party complaint but by cross-claim or
counterclaim, especially when such is compulsory?
Because there is another provision in the Rules which say that if there
is a compulsory counterclaim or cross-claim not set up in the answer,
that compulsory counterclaim or cross-claim are barred. If there is a
need to implead a stranger, he should be allowed to implead a
stranger, although not via a third party complaint.
STRIKING OUT OF PLEADING OR MATTER CONTAINED

THEREIN
There are certain limitations to matters that may be included in a
motion or pleading. The law does not allow scandalous and indecent
matters to be alleged in a pleading. The remedy of the other party in
these cases is to ask the court to strike out the pleading itself or the
scandalous or indecent matter contained therein.
Q: If the complaint contains scandalous and indecent matters
and the defendant moves to strike out these matters, will the
running of the period to answer be suspended?
Yes. The Rules do not expressly say so, but the period is interrupted
until the court has finally resolved the motion.
Personal Opinion: The reason might be that, similar to a motion for a
bill of particulars, the defendant cannot properly prepare his answer
until and unless the court resolves if the complaint is proper or not.
Q: May striking out of pleadings or any matter contained therein
be done by courts motu proprio?
Yes. The court has authority to do so even without motion from the
adverse party.
The absence of verification may be corrected by requiring an oath.

The rule is in keeping with the principle that rules of procedure are
established to secure substantial justice and that technical
requirements may be dispensed with in meritorious cases.
FORMS OF A PLEADING: SIGNING

A pleading must always be signed. An unsigned pleading will be
treated as a sham pleading. You cannot submit an unsigned pleading.
The court motu propio can order the striking out of the pleading.
Q: Who will sign the pleading?
The litigant can sign the pleading. Or, his counsel can sign for him.
Either or both can sign the pleading.
Q: Are there pleadings that are inadmissible by the court if the
only signature is that of the lawyers?
By way of exception, yes, in case of marriage annulment cases.
According to the SC Circular, the complaint and the answer must be
signed also by the party himself. If signed only by the lawyer alone,
the court will not accept the pleading.
But generally, the signature of the counsel is enough for a pleading to
be accepted by the court.
Q: What is the effect of lawyers signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the pleadings;
2. That to the best of his knowledge, information and belief
there is good ground to support it; and
3. That it is not interposed for delay. (Sec. 3, Rule 7)
FORMS OF A PLEADING: VERIFICATION

Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required by law or rule,
pleadings need not be under oath, verified or accompanied by
affidavit.
Q: What is the significance of verification?
Dean Riano: It is intended to secure an assurance that the allegations
in a pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed
in good faith. The absence of a proper verification is cause to treat the
pleading as unsigned and dismissible (citing Chua vs. Torres, 468
SCRA 358, p. 60.)
Q: What are the effects of lack of verification?
A pleading required to be verified but lacks the proper verification
shall be treated as an unsigned. Hence, it produces no legal effect.
It does not, however, necessarily render the pleading defective. It is
only a formal and not a jurisdictional requirement. The requirement is
a condition affecting only the form of the pleading and noncompliance therewith does not necessarily render it fatally defective.
Q: How are pleadings verified?

A: It is verified by an affidavit. This affidavit declares that the:
1. Affiant has read the pleading; and
2. Allegations therein are true and correct of his personal
knowledge or based on authentic records.
If the verification is not according to the tone given in the Rules, that
will be an inadequate or insufficient verification. And under Rule 7,
the absence or inadequacy of the verification shall result in an
effectively unsigned pleading.
But the SC keeps on ignoring the Rules on verification. Although it
would appear in Rule 7 that absence of verification could be a fatal
defect, the SC keeps on ruling that the absence of verification is only
a formal defect. If you come across a question concerning the need to
verify a pleading or determining the adequacy of verification in a
pleading, and you are asked what the effect is, based on rulings by
the SC, in instances required by law for submission of a pleading
with an inadequate verification is only a formal defect.
Q: A complaint, a permissive counterclaim, cross-claim, a
third/fourth party complaint, all of these being initiatory
pleadings, must have a certification of non-forum shopping. Does
it mean to say that verification of a pleading is now the general
rule, given that in Rule 7, initiatory pleadings must carry with
them a certification of non-forum shopping?
No. Certification of non-forum shopping is different from verification
of a pleading.
Verification of a pleading refers to the allegations in the pleading.
The verification states that one has read the pleading and that it is
correct based on his personal knowledge or based on authentic
records. The contents of certification of non-forum shopping does not
have anything to do with the contents of an initiatory pleading, as it
simply certifies that no similar case had been filed in any other court,
tribunal or body, and to notify the court right away if one should
come to know of such fact.
In the case of a Certification of Non-Forum Shopping, the SC appears
to have adapted the rule of substantial compliance as to the
requirements of the certifications contents. Take note that the Rules
say that all principal plaintiffs should sign the certification.
Otherwise, the certification will be ineffective. This defect is not
curable by amendment under Rule 7.
There was a recent case wherein the complaint had 5 principal
plaintiffs and only two of them signed. The defendant challenged the
authority of the court receive the case as the certification was
ineffective. The court refused to dismiss the case. The court said that
it will go ahead with the case but will drop the claims where the nonsigning plaintiffs are concerned. In effect, the court said the signature
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
lawyer sign for the plaintiff, the lawyer must be able to show his
authority to do so via a special power of attorney authorizing him to
sign in the stead of his client.
CORPORATION EXECUTING THE VERIFICATION AND

CERTIFICATION OF NON-FORUM SHOPPING
Q: What is the rule when the plaintiff is a juridical person?
Dean Riano: The certification against forum shopping where the
plaintiff is a juridical entity like a corporation, may be executed by
properly authorized person. This person may be a lawyer of a
corporation. As long as he is duly authorized by the corporation and
has personal knowledge of the facts required to be disclosed in the
certification, such may be signed by the authorized lawyer.
Dean Albano: The following officials or employees of the company
can sign the verification and certification without need of a board
resolution:
1. The Chairperson of the Board
2. The President of the Corporation
3. The General Manager or Acting GM
4. Personnel Officer
5. Employment Specialist in a labor case
Q: If the officer is required to present a Secretarys Certificate to
prove he is authorized but failed to do so, will the complaint be
dismissed?
Dean Albano: Qualify.
The failure to attach the Secretarys Certificate, attesting to the GMs
authority to sign the Verification and Certification of Non-Forum
Shopping, should be not be considered fatal to the filing of the
petition. The subsequent submission of the board resolution, together
with the pertinent documents can be considered as substantial
compliance with the rules.
If there is substantial compliance (but not non-compliance), the
complaint will not be dismissed (citing Mid-Pasig Land Dev. Corp. v.
Tablante).
Q: Corporation XYZ is the petitioner in a civil case. Alexander,
president of corporation XYZ, signed the certification against
forum shopping in behalf of said corporation without presenting
any proof of authority from the corporation. Is the certification
against forum shopping valid? If not, how may it be cured?
A: No. When the petitioner in a case is a corporation, the certification
against forum shopping should be signed by its duly authorized
director or representative. The authorized director or representative of
the corporation should be vested with authority by a valid board
resolution. A proof of said authority must be attached with the
certification (PAL v. FASAP, G.R. No. 143088, Jan. 24, 2006).
Q: What is the Omnibus Motion Rule?

All available grounds for objection in attacking a pleading, order,
judgment, or proceeding should be invoked at one time; otherwise,
they shall be deemed waived.
Q: Are there any exceptions to the Omnibus Motion Rule?
The court may dismiss the case motu propio based on:
1. Lack of jurisdiction over the subject matter;
2. Litis pendencia;
3. Res judicata; and
4. Barred by statute of limitations (prescription).
These are we call as non-waivable defenses in civil procedure.
Q: Are there any non-waivable defenses in criminal procedure?
Yes. These grounds are:
1. That the facts charged do not constitute an offense;
2. That the court trying the case has no jurisdiction over the
offense charged;
3. That the criminal liability has been extinguished; and
4. Double jeopardy.
A previous decision or judgment will bar the filing of another case
similar or tackling the same issues, having the same parties, and the
same or related reliefs. In a civil case, it is called res judicata, while
in a criminal case, it is called double jeopardy.
In criminal cases, there is the defense that the information does not
charge an offense. In civil cases, this is equivalent to failure to state a
cause of action. In civil cases, if the complaint does not properly
allege a cause of action and the complaint was not amended at all,
where the defendant does not file a motion to dismiss, the case went
to trial, and the plaintiff showed in the trial that he indeed has cause
of action without objection from the defendant, the complaint is
deemed amended. This is called amendment to pleadings to conform
to evidence.
Thus, unlike criminal cases, in civil cases, the failure to state a cause
of action is waivable, the remedy being an amendment to conform to
evidence. The court may order such amendment be made.
AMENDED / SUPPLEMENTAL PLEADINGS

Q: A plaintiff files a case for accion reinvindicatoria. As what we
learned before in jurisdiction, the assessed value of the property
properly determines jurisdiction. The case was filed in the RTC.
No allegation was included as to the value of the property. Can
RTC dismiss the case?
Yes. If the court is unable to determine that it has jurisdiction over
the case, as in this instant, it may dismiss the case for lack of
jurisdiction over the subject matter of the case.
Q: In the example above the plaintiff failed to make the necessary

jurisdictional averment. Having discovered it, he amended the
complaint and submitted it before the defendant may answer. Is
the plaintiff correct?
Yes. The amendment was an amendment as a matter of right. The
plaintiff has the right amend his complaint once before a responsive
pleading is filed, even to the extent of amending the averment to
confer jurisdiction. Thus, the plaintiff is correct to amend his
pleading to include the jurisdictional averment.
This situation is also applicable, for example, in unlawful detainer. If
the plaintiff failed to allege in his complaint that a final demand had
been made, the plaintiff may amend his complaint as a matter of right
to include the said allegation.
Q: What if the defendant files a Motion to Dismiss? May the
plaintiff amend his complaint as a matter of right before the date
of hearing for the Motion to Dismiss?
Yes. A Motion to Dismiss is not a responsive pleading. Even if the
defendant files a Motion to Dismiss, the plaintiff reserves the right to
amend his complaint once as a matter of right.
If the plaintiff does amend his complaint, the trial court has no other
recourse except to deny the Motion to Dismiss. The defects cited by
the defendant are already remedied by the amended complaint.
Q: What if the plaintiff waits for the date of hearing and opposes
the defendants Motion to Dismiss but lost? May he still amend
his complaint as a matter of right even if there is an order by the
court dismissing the complaint?
Yes. The order of dismissal only becomes final until the lapse of the
15-day period from the time the order of dismissal is entered. If the
plaintiff does not wish to appeal the order of dismissal or even file a
petition for certiorari under Rule 65 as the case may be, he has a third
remedy and that is to amend his complaint as a matter of right. The
plaintiff may still exercise this amendatory right before the order of
dismissal becomes final.
Q: The plaintiff changed his cause of action in the complaint, and
the amendment was as a matter of right. Is this allowed? What if
an answer was already filed?
If amendment is a matter of right, the plaintiff can change his
pleadings cause of action.
If amendment is not a matter of right, the plaintiff must be authorized
by the court to amend the pleading to include another cause of action
or change a cause of action.
All pleadings can be amended as a matter of right or with prior leave
of court.
Read: Philippine Ports Authority vs. Gothong
Change in the cause of action in the complaint is a matter of
discretion upon the court once an answer had already been filed. As
long as the amendment gives the parties the opportunity to tell the
court what is the true dispute between the parties, and as long as it
does not involve prejudice to substantial justice. Hence, if the

complaint was amended not as a matter of right, the defendant can
also amend his answer, if needed, to properly respond to the amended
complaint. In the Gothong Case, the SC encouraged trial courts to
liberally the Rule on amendment of pleadings, whether as a matter of
right or as a matter of discretion.
Q: In case the complaint has been amended, are new summons
still required?
If no answer has yet been filed, summons is still necessary. If there is
already an answer, the Court held that there is no more need to issue
new summons. The amendment in that case is with leave of court and
more importantly, the defendant is furnished a copy of the amended
complaint.
Personal Opinion: There will however be a new set of summons if the
amended complaint impleads new defendants. This is only necessary
for due process.
Q: How many amendments may be made by a party?
A: As many times as he wants, but amendment as a matter of right
can only be availed of once, and only before an answer has been
filed. The second, third, fourth amendments need leave of court.
Q: Can we amend pleadings if the case has already been decided
and is on appeal either in the CA or SC?
Yes. Amendments can be done if it is only formal in nature. But if the
amendment is substantial, appellate courts will hesitate as such
amendment will injure the rights of parties who had not appealed.
What can be brought on appeal are issues that have been raised from
the trial court.
Q: When is amendment made to conform to or authorize
presentation of evidence?
1. When issues not raised by the pleadings are tried with the express
or implied consent of the parties.
2. Amendment may also be made to authorize presentation of
evidence if evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, if the presentation of the
merits of the action and the ends of substantial justice will be
subserved thereby.
If the evidence presented by the plaintiff is not material to the
allegations in his complaint, and there is an objection by the
defendant, that objection should be sustained. But if the presentation
of evidence that is not material to the complaint is not objected to, the
court can motu propio tell the plaintiff not to continue the
presentation of that evidence.
Q: A filed an accion reinvidicatoria against B. During the trial, A
presented evidence that B has an outstanding loan against the
former for P500K. Although this loan is independent and alien to
the original action, Bs counsel did not object to the presentation
of evidence in court. May the trial court in its decision award A
with P500K?
Yes. As complaint is deemed to have been amended to conform to

evidence. A does not even have to file a motion requesting to amend
his complaint. Amendment to conform to evidence takes place by
operation of law.
Q: Distinguish an amended pleading from a supplemental
pleading.
A:
Amended Pleading
Supplemental Pleading
Refer to the facts existing at the

time of filing of original
pleading
Refers to facts occurring after

the filing of the original
pleading.
Supersedes the original, causes

of action may be changed
Merely supplements the

original pleading.
May be amended without leave

of court before a responsive
pleading is filed.
Always with leave of court
Amendment must be
appropriately marked.
There is no such requirement in

supplemental pleadings
(Herrera, Vol. I, p. 854, 2007
ed.)
Q: What is the effect of an amended pleading?

An amended pleading supersedes the pleading it amends. However,
admissions in the superseded pleading can still be received in
evidence against the pleader. Claims or defenses alleged therein but
not incorporated or reiterated in the amended pleading are deemed
waived.
Q: An amended pleading takes the place of the original pleading.
Will the court discard the original pleading?
No, the court will retain the pleading for court record purposes.
Admissions made in superseded pleadings are considered extrajudicial admissions. They can be rebutted.
Admissions made in the original pleadings are still admissions, but
cannot be considered as judicial admissions. They are mere extrajudicial admission by the person making it.
A judicial admission is always conclusive. It cannot be subject to
rebuttal by evidence.
Q: The information submitted by the prosecutor did not really
allege a crime was committed. But the prosecutor was able to
show in court by the evidence presented that indeed a crime was
committed. Can amendment of pleadings to conform to evidence
be allowed in this case?
No, it cannot be allowed. It will violate the constitutional right of the
accused to be informed of the charges against him. We can apply
amendment of pleadings to conform to evidence in a criminal case so
long as the constitutional right of the defendant is not violated.
Q: When is a declaration of default proper?

A: If the defending party fails to answer within the time allowed
therefor, the court shall upon motion of the claiming party with notice
to the defending party, and proof of such failure, declare the
defending party in default.
Q: In what situations where declaration of default is proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or responsive pleading
despite valid service of summons;
2. Defendant filed an answer or responsive pleading but beyond
the reglementary period; and
3. Defendant filed an answer to the court but failed to serve the
plaintiff a copy as required by the Rules.
Q: Will the plaintiff be in default if he fails to file an answer with
respect to the compulsory counterclaim filed by the defendant?
No. The compulsory counterclaim is an exception to the general rule
that all claim pleadings may lead to default if unanswered.
Q: How about a cross-claim?
In one case decided in 1999, the SC held that if a cross-claim is not
answered, the cross-plaintiff or cross-claimant can file a motion to
declare the cross-defendant in default. But the SC said that court may
or may not grant the order of default.
Q: What are the effects of an order of default?
A:
1. The party declared in default loses his standing in court. The
loss of such standing prevents him from taking part in the
trial.
2. While the defendant can no longer take part in the trial, he is
nevertheless entitled to notices of subsequent proceedings. He
may, however, still be a witness for his co-defendants in case
of partial default.
3. A declaration of default is not an admission of the truth or the
validity of the plaintiffs claims.
Under Rule 9, if all the defendants are declared in default, the court is
given two choices:
1. To render a judgment of default based on the complaint
(judgment on the pleadings); or
2. To order the complainant to present evidence ex-parte in
support of his allegations and render a judgment based on
that evidence.
Q: If a defendant is in default, does that mean he automatically
loses the case?
Not necessarily. A declaration of default is not a judicial admission of
the complaint. The court still has to ascertain if there is any merit or
substance with the complaint.
Q: What are the reliefs from an order of default?
A:
DEFAULT
1. After notice of order and before judgment The defendant must

file a verified motion to set aside the order of default upon proper
showing that:
a. His failure to answer was due to fraud, accident, mistake
or excusable negligence; and
b. That he has a meritorious defense. (2000 & 1999 Bar
Question)
2. After judgment and before judgment becomes final and executory
He may file a motion for new trial under Rule 37. He may also appeal
from the judgment as being contrary to the evidence or the law. He
may even prove during appeal that the evidence received during trial
is hearsay.
3. After the judgment becomes final and executory he may file a
petition for relief from judgment under Rule 38 (2006, 1998 Bar
Question)
4. Where the defendant has however, been wrongly or improvidently
declared in default, the court can be considered to have acted with
grave abuse of discretion amounting to lack or excess of jurisdiction
and when the lack of jurisdiction is patent in the face of the judgment
or from the judicial records, he may avail of the special civil action of
certiorari under Rule 65.
Q: What is the effect of partial default?
As a general rule, the court will try the case against all defendants
upon the answer of some.
Exception: Where the defense is personal to the one who answered, it
will not benefit those who did not answer e.g. forgery. (1995 Bar
Question)
Q: What is the extent of relief?
A: The judgment shall not exceed the amount or be different in kind
from that prayed for nor award unliquidated damages. However, if
the court orders submission of evidence, unliquidated damages may
be awarded based on such.
Q: When is default not allowed?
There are several instances where declaration of default is prohibited
like mortgage, the rules on summary procedures, Writ of Amparo,
Writ of Habeas Data, marriage related cases, and in special civil
actions like certiorari, prohibition, and mandamus (since in these last
cases a comment and not a reply is given by the defendant).
It is not correct to say that it is absolute in civil actions that if a
defendant does not file his responsive pleading, he can be declared in
default. What is clear is the general rule: If a complaint is filed and
summons is served upon the defendant, but the defendant did not file
an answer within the reglementary period given by the Rules, the
defendant can be declared in default upon motion of the plaintiff.
Q: May the court motu proprio declare the defendant in default?
The court cannot motu propio declare the defendant in default.
Motion must be made by the plaintiff before declaration of default
can be had. Failure to file the motion for declaration of default by the
plaintiff can result to the complaint being dismissed for failure to

prosecute for an unreasonable length of time under Rule 17. It is a
dismissal with prejudice.
Q: If in a case the plaintiff did not move to declare the defendant
in default, may the court set the case for pre-trial?
No. Unless all the pleadings are in, the court has no business setting
the case for pre-trial. If the defendant does not wish to answer and the
plaintiff does not wish to declare the defendant in default, since the
court cannot set up the case for pre-trial, the most the court can do is
to dismiss the complaint under Rule 17 for failure of the plaintiff to
prosecute (nolle prosequi).
Dean Albano: But you should read Soliman v. Fernandez, a 2014
case. The SC held that the court should not dismiss the case if the
plaintiff fails to take further steps to prosecute or set it for pre-trial
because the further steps is not his, but for the clerk of court, to take.
Within five days from date of filing of the reply, the plaintiff must
move ex parte that the case be set for pre-trial conference. If the
plaintiff fails to file said motion within the given period, the Branch
Clerk of Court shall file a notice of pre-trial.
Q: Suppose plaintiff files a motion for declaration of defendant in
default, but the motion was for that of an ex-parte motion to
declare defendant in default. The reasoning is that since the
defendant had not bothered to file an answer, there is no use of
serving notice to the defendant. This is for the plaintiff to prevent
the defendant from entertaining the idea that he must file an
answer to prevent being declared in default. Is plaintiff correct?
No. Rule 9 is very clear that a copy of the motion to declare
defendant in default should be served upon the defendant. If such
copy is not served upon the defendant, that motion will not be acted
upon by the court.
Q: What if the defendant filed an answer after receiving a copy of
the motion to declare him in default, can the court still declare
him in default?
Yes, if the court follows strictly Rule 9. But, as a matter of policy, an
answer filed out of time will not result in the defendant in being
declared in default. SC held repeatedly that as much as possible the
technical aspects of default should not be applied strictly in the
interest of furtherance of justice. Even if the period to answer has
already expired, but an answer is filed out of time, the courts will still
admit that answer and deny the motion to declare the defendant in
default.
The reason why SC adopted this policy is because at present, under
Rule 9, if defendant is declared in default, the court can right away
render a judgment in default against defendant without conducting a
trial. Under Rule 9, the court is given 2 choices: Render a judgment
of default based on the complaint (judgment on the pleadings), or to
order the complainant to present evidence ex-parte in support of his
allegations. At least in the second option, there can be presentation of
evidence, unlike in the first option where only the pleadings will be
the basis of the judgment. And if there is a trial ex-parte on default
ordered by the court, the defendant will not be allowed to participate
in the proceedings, unless he is able to secure an order to lift the

default.
to present evidence to prove his allegations, what the plaintiff was

able to prove shall be the basis of the courts judgment.
Rule 9 is very explicit in stating that the award in default judgments

cannot be greater than that prayed for in the complaint, even if there
is an ex-parte presentation of evidence showing evidence thereto.
Partial Default
There is partial default when one of several defendants, sued under a
common cause of action, is declared in default, while the others can
still participate in the case.
Default Under Rule 18 Pre-Trial

Under Rule 18, if the plaintiff does not appear during the pre-trial or
failed to submit pre-trial brief, his complaint will be dismissed and
the dismissal is with prejudice.
On the other hand, if the defendant does not appear during pre-trial or
did not submit his pre-trial brief on time, the court will allow to the
plaintiff to present his evidence ex parte and the court will render a
judgment based thereon.
Although Rule 9 and Rule 18 both contains ex parte presentation of
evidence, there are vital differences between the two.
Comparison between Rule 9 and Rule 18 Default
Rule 9
Rule 18
In Rule 9, defendant shall be

declared in default for not filing
an answer.
Under Rule 18, a plaintiff shall

be declared in default for not
appearing during pre-trial or
failure to submit a pre-trial
brief, while a defendant shall
be declared in default for not
appearing or submitting a pretrial brief on time.
The court cannot grant a relief

more than that alleged in the
complaint.
The court can grant a relief

more than that alleged, based
on what the plaintiff can prove
based on his evidence
presented.
In Rule 9, the defendant in

default has not filed an answer at
all. The court is considered to
have been taking pity on a
defendant who had surrendered.
In Rule 18, the defendant

already filed an answered. The
defendants failure to comply
with attending a pre-trial
conference or file a pre-trial
brief is meted with severe
sanction. Also, the fact that the
court gives the plaintiff the
opportunity to present his
evidence, what the plaintiff
proves on evidence shall be the
basis of the judgment of the
court.
Q: During ex parte presentation during pre-trial, the plaintiff was

able to prove damages of 2M. However, the complaint alleges
only 1M. The court awarded 2M. Is the court correct? Why?
Yes, the court is correct. This is because the defendant has failed to
comply with a court order to either appear in pre-trial or to submit a
pre-trial brief, and thus the court can sanction defendant at default.
Also, since the court allows the plaintiff, as provided under Rule 18,
Q: Can there be a judgment in default against the non-answering

defendants?
No, the court cannot do that. In case of several defendants, of whom
some have filed an answer, the most that the court can do is to
declare the non-answering defendants in default. The court cannot
declare the answering defendants in default as there is no reason to do
that. Insofar as the non-answering defendant is concerned, they shall
be declared in default but there could be a separate judgment that will
be rendered.
Q: Can the answering defendant call the defendants in default as
witnesses?
Yes. Defendants declared in default can be witnesses, although he
will not be allowed to participate as a litigant.
Q: If the court finds for the answering defendant, will that
decision also affect the defendants declared in default?
Yes. Whatever happens to the case, the defendants in default shall be
subject to the decisions rendered. Thus, if the answering defendant
wins, the decision shall also be in favor of the defendants in default.
This is one situation where a defaulting defendant can prevail in the
case. The reason is that the non-answering defendants are sued under
a common cause of action with answering defendants.
Q: The creditor sued two defendants where one answered and the
other failed to answer. The one debtor who failed to answer was
declared in default. The plaintiff wisely moved for the dismissal
of the complaint against the answering defendant. The answering
defendant did not object to the dismissal. The case caption was
then changed to plaintiff versus the defendant in default. Can the
court now ask for presentation of evidence ex-parte?
SC held that it is not necessary. Even if the answering defendant has
been dropped from the case upon the initiative of the plaintiff, what
the trial should examine is whether or not the answering defendant is
an indispensable party to the case. If answering defendant is an
indispensable party, then the court should require the inclusion of
such party. What the court should do is to order the plaintiff to amend
his pleadings and include the indispensable party. Failure to do so
will be dismissal of the complaint with prejudice under Rule 17. This
is because if answering defendant is an indispensable party but he is
not around, the proceedings of the court could be void, it would be
useless for the court to try the case. And under the new doctrines
enunciated by the SC, if an indispensable party has not been included
or has been dropped from the case, the court should compel the
indispensable party to be impleaded via an amendment to the
complaint. Failure of plaintiff to do so will allow the court to dismiss
the case with prejudice under Rule 17 for refusal to obey a lawful
court order.
Q: Since it is disadvantageous for a non-answering defendant to

be declared in default, what are the remedies given by law to the
defaulting defendant?
The defendant should file a motion to lift the order of default at any
time before judgment. The motion must be filed with an affidavit of
merit along with his proposed answer, alleging the reasons of why he
defaulted and alleging that he has a good defense as stated in the
proposed answer.
If the case, however, is governed by small claims proceedings, appeal

is not available because the decision of the small claims court is final
and executory. It is unappealable. The aggrieved party, however, may
use Rule 65, but only when he can prove there is lack of jurisdiction
or in excess of its jurisdiction in the part of the court.
PERIOD TO FILE PLEADINGS

An affidavit of merit is required since he has to substantiate that he
was in default because of FAME. He must also his attach his answer
since he has to show that he has a meritorious defense. These are the
two requirements for a proper motion to lift the order of default.
If the motion to lift the order of default is denied, it is inappealable,
being an interlocutory decision. Although Rule 65 can be had, i.e.,
certiorari, the appellant must show that the court acted with lack or in
excess of jurisdiction
If the court has already rendered judgment by default (after motion to
life order of default has been denied), the defendant can appeal. A
judgment by default is adjudication on the merits, hence appealable.
Since appeal is available, Rule 65 is not available. Rule 65 is only
available if there is no remedy under the Rules or under law.
In the periods for filing of pleadings, there is nothing mentioned as to

the period as to when a complaint should be filed. Nothing is fixed in
the rules. The reason is that the filing of the complaint is solely
dependent upon the whim of the plaintiff. If SC does fix such period,
it will be invading the turf of substantive law.
If there is a period fixed as to when that complaint should be filed, it
is determined by substantive law. Prescription of a cause of action is
a matter of substantive law. With respect to counterclaim, cross-claim
or third party complaint, there is a period fixed in the Rules. Of
particular is the period for filing a cross-claim and a compulsory
counter-claim. They must be filed within the period as that for the
filing of an answer.
Why? Will it not violate substantive law?
Aside from appeal, the defendant may also file a motion for new trial
or a motion for reconsideration. If the judgment has become final and
executory, he may even file a petition for relief from judgment.
Q: In summary procedure and small claims proceedings, may the
plaintiff declare the non-answering defendant in default?
No. A Motion to Dismiss is prohibited in summary procedure and
small claims proceedings. The court will not declare the defendant in
default.
In summary procedure, if the defendant does not answer, the court
shall render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein
In small claims proceedings, if the defendant fails to file his response
AND fails to appear at the date set for hearing, the court shall render
judgment on the same day.
If he fails to file his response but appears at the date set for hearing,
the court shall ascertain what defense he had to offer as if a Response
has been filed.
Q: What is the remedy of the defendant in summary procedure
and small claims proceedings if there is a judgment by default?
The defendant cannot assail the judgment by default through a
motion for new trial or a motion for reconsideration. These are
prohibited pleadings in summary procedure and small claims
proceedings. The defendant also cannot file a petition for relief from
judgment because that is prohibited as well.
Even if the cross-claim, counter-claim or third-party complaint are

claim pleadings, the rules do not allow the defending party to file an
answer separately from a counterclaim, cross-claim or a third-party
complaint. These pleadings must be included in his answer. Thus a
defendant must file an answer with a counterclaim, cross-claim or a
third-party complaint. Otherwise, defendant may file a motion for
leave to file an amended answer with cross-claim, counterclaim, etc.
With respect to a third-party complaint, defendant would have to first
file a motion for leave to file a third-party complaint along with the
amended answer, attaching the amended answer to the motion.
Because of this rule, the filing of a compulsory counterclaim should
be the same as that provided for the filing of an answer. If there is an
answer filed, but the defendant feels he should file a counterclaim, he
will have to file a motion for leave to file an amended answer with
counterclaim (with a copy of the amended answer attached).
Q: May the court extend the period to file an answer?
It depends.
In an ordinary civil action, yes, but only if the circumstances warrant.
If the case is under summary procedure or small claims proceedings
(in the form of a response), no. A motion for extension to file
pleadings, affidavits, or any other paper is one of the prohibited
motions in summary procedure and small claims proceedings.
Q: May the court reduce the period to file an answer?
As a general rule, no.
If the case is governed by summary procedure, the defendant may

appeal. It is not prohibited under summary procedure.
The only exception is in quo warranto proceedings. Under Rule 66,

the court may, if it deems just, fix a period that is shorter than that
provided in the Rules of Court.
plaintiff, a reply. It is useless if a defendant files a motion for bill of

particulars after he has already filed his answer. It is understood that
if a defendant has filed an answer, it would mean that he has
understood fully the allegations stated in the complaint.
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
statement or for a bill of particulars of any matter which is not
averred with sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading. If the pleading is a reply,
the motion must be filed within 10 days from service thereof.
Q: What is a bill of particulars?

Motion for leave to file bill of particulars is proper if there is
inadequacy of the allegations contained in the complaint.
As a rule, under Rule 16, the inadequacy of the allegations in the
complaint is NOT a ground for the filing of a motion to dismiss the
complaint. Unless the inadequacy is in such a way that there is failure
to state a cause of action, the complaint may not be dismissed by the
court.
Q: What is the difference of a bill of particulars in civil actions
and a bill of particulars in criminal cases?
There is a great difference. In a civil case, the purpose why a bill of
particulars may be availed of by a litigant to enable him to prepare a
responsive pleading. In a criminal case, the purpose of the accused is
to enable him to prepare for trial.
Q: Is a bill of particulars available to all parties?
Yes. It is available to any party who has the right to file a responsive
pleading. Even a plaintiff may file a bill of particulars if the answer
of the defendant is particularly vague.
Q: Can there be an instance when a trial court may dismiss a
case on ground of inadequacy or vagueness in the allegations in
the complaint?
Yes, by way of exception. The only instance when a defendant may
file motion to dismiss due to vagueness or inadequacy of the
allegations in the complaint, instead of filing motion for bill of
particulars, is when the RTC is sitting as a commercial court. In this
case, where there is indefiniteness or vagueness in the allegations of
the complaint, defendant may file a motion to dismiss. This is
because, in commercial courts, a motion for bill of particulars is
forbidden as outlined in the circular for commercial courts.
If the motion is granted, in case of a defendant, the court will order

the submission of an amended complaint or a bill of particulars,
which will form part of the allegations contained in the complaint.
Q: If the plaintiff does not obey the order of the court to submit a
bill of particulars, what is the remedy of the defendant?
The remedy is either (1) to strike out the parts of the pleading that are
vague; or, the more practical move, (2) the defendant may move to
strike out the entire pleading, wherein the case is dismissed.
If the defendant disobeyed the court order to amend his answer or to
supply bill of particulars, the situation will be as if the defendant has
not filed an answer at all. The next recourse of the plaintiff is to file a
motion to declare the defendant in default. This is one instance where
the defendant can be declared in default even though he had filed an
answer on time. Therefore, if the defendant did not amend his answer
or file a bill of particulars, the court can order the striking out of the
answer and thereafter, upon motion, the defendant can be declared in
default.
If it is the plaintiff who disobeyed the court order, the situation will
be as if the plaintiff has not filed a complaint at all. The defendant in
such case may move to dismiss the case for failure to state a cause of
action.
Q: If the motion for a bill of particulars is denied, may the
aggrieved party appeal?
No. The denial of the motion is an interlocutory order. The aggrieved
party, however, may avail of Rule 65 if proper.
In ordinary civil cases, motion for bill of particulars is available to

both sides. They should be in the form of a motion.
Q: What is the difference between an ordinary motion and a
motion for a bill of particulars?
While a motion for bill of particulars should comply with the
requisites of a motion, so as not to be deemed as a useless piece of
paper, when the motion is submitted to the court, the court can act
upon the motion right away, without waiting for the hearing set for
the motion, either granting or denying such motion.
Q: May the defendant file a motion for a bill of particulars after
filing an answer?
No. By its very nature, a motion for a bill of particulars should be
filed by a defendant before submitting an answer, or in case of a
FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND

OTHER PAPERS
Q: Which comes first filing or service?
As a general rule, service comes before filing.
Complaint is one of the exceptions. You have to file the complaint
first, and then the complaint will be served to the defendant together
with the summons.
A third-party complaint is an exception. Since third-party complaints
require leave of court, it needs to be filed first before it can be served
to the third-party defendant.
Judgments, resolutions, and orders are exceptions as well. According

to the Rules, the judge will first submit a copy or the original of the
decision with the clerk of court. It is the duty of the clerk of court to
serve copies of the judgment or order upon the adverse parties.
Q: What is the order of priority when it comes to service?
The order of priority merely states that personal service must always
be resorted to. If personal service is not resorted to, there must be an
explanation given by the party why he has not resorted to personal
service. If a motion is filed and the motion served through registered
mail without an explanation, the court has every reason to consider
that motion as a useless scrap of paper.
Recently this has been relaxed by the court, depending on the nature
of the case or depending on the nature of the motion to be served or
the pleading filed in the court.
But in case of a motion to dismiss, the courts are very strict, personal
service is a must. If it was served by mail, the court requires
submission of proof of actual delivery/receipt by mail (the registry
return card). If such proof is not presented, the court will not act on
the motion to dismiss for failure to observe the requirements
concerning service of this important motion.
Q: What are the modes of service of these motions, pleadings,
orders and judgments?
The first in priority when it comes to service is personal service, then
service by mail and then substituted service and service by
publication. Its only in unusual, exceptional circumstances when
there is service by publication.
Q: If the defendant has counsel, to whom should the service be
given the defendant himself, or his counsel?
Service must be made upon the counsel. If service is not made upon a
counsel but upon the party himself, that is not proper service.
Q: What is substituted service and how does it differ to substitute
service of summons?
If the motion/pleading/other papers cannot be served in person or by
registered mail, the movant should submit the motion and the
pleadings with the clerk of court with proof that personal and mail
service failed. Upon receipt of court, substituted service is now
completed.
Substitute service of summons: This is resorted to when there is
failure on the part of sheriff to serve summons in person upon the
defendant after several attempts and despite diligent efforts. Sheriff
then can serve the summons at the resident of the defendant upon a
person of sufficient age of discretion, or instead of the residence, at
his place of business, upon a competent person in charge. The reason
for resorting to such substituted service must be explained.
Q: Service by publication is rare when is this resorted to?
This is resorted to if a party summoned by publication has failed to
appear in the action. Judgments, final orders and resolution against
him should be served upon him also by publication at the expense of

the prevailing party.
Q: Is service by courier (such as LBC) allowed?
Dean Albano: No. Service and filing of pleadings by courier service
is a mode not provided in the Rules.
Service by courier, however, is allowed under ADR rules.
SUMMONS
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the action
brought against him. An important part of that notice is a direction to
the defendant that he must answer the complaint within a specified
period, and that unless he so answers, plaintiff will take judgment by
default and may be granted the relief applied for.
Q: What are the purposes of summons?
For actions in personam:
a. To acquire jurisdiction over the person of the defendant;
and
b. To give notice to the defendant that an action has been
commenced against him.
For actions in rem and quasi in rem - not to acquire jurisdiction over
the defendant but mainly to satisfy the constitutional requirement of
due process.
Q: What is the effect of voluntary appearance before the court?
As a general rule, the defendants voluntary appearance shall be
equivalent to service of summons and the consequent submission of
ones person to the jurisdiction of the court. If there are defects in the
summons, voluntary appearance cures such defects.
As an exception, if there is a special appearance in court to challenge
its jurisdiction over his person, it shall not be deemed as a voluntary
appearance. This is true even if the defendant includes in his Motion
to Dismiss several other grounds aside from lack of jurisdiction over
his own person.
Q: What are several instances when appearance of defendant is
not tantamount to voluntary submission to the jurisdiction of the
court?
(a) When defendant files the necessary pleading;
(b) When defendant files a motion for reconsideration of the
judgment by default;
(c) When defendant files a petition to set aside the judgment of
default;
(d) When the parties jointly submit a compromise agreement for
approval of the court;
(e) When defendant files an answer to the contempt charge;
(f) When defendant files a petition for certiorari without
questioning the courts jurisdiction over his person.
Q: Aside from summons and voluntary appearance, is there any

way a court may obtain jurisdiction over a person?
Yes, but only in limited circumstances. For example, under Rule 65,
in certiorari, prohibition, and mandamus, the court does not issue a
summons. It simply issues an order addressed to the defending party
to file a comment. That is a process which will confer upon the court,
by compulsion, jurisdiction over the person of the respondents. As a
consequence, the court cannot declare the respondents in default if
they failed to respond.
Q: What is the proper service of summons upon an unregistered
foreign corporation with no resident agent in the country?
In a 2011 Circular, summons upon a foreign private corporation can
be served in four ways, with leave of court:
1. Personal service of summons upon a foreign private
corporation not doing business in RP, with assistance of DFA
and the court of the country where the foreign corporations
main office is located;
2. Publication of the summons in the country where the foreign
corporation has its office
3. By facsimile message or by any electronic device authorized
by the trial court
4. A combination of any one of the three as authorized by the
court.
Q: What if the foreign corporation is registered or has an agent
in the Philippines?
Service may be made on its resident agent designated in accordance
with law for that purpose, or if there be no such agent, on the
government official designated by law to that effect, or on any of its
officers or agents within the Philippines.
Q: What if it is a domestic corporation?
With respect to domestic private corporations, service of summons
must be effected as stated in the Villarosa vs. Benito case. It must be
served upon the officers of the corporation stated specifically in the
Rules of Court (President, Managing Partner, General Manager,
Treasurer, Corporate Secretary or In-House Counsel - PMGCTI).
In the Villarosa case, the branch manager was the one served with
summons, who is not among those officers listed in the Rules. Thus,
the trial court did not acquire jurisdiction over the corporation. This is
still the rule observed.
Read: Villarosa v. Benito
Q: What if it is a partnership?
What the rules require is that summons must be made upon the GM
or managing partner as the case may be.
If there are four partners in the partnership, service upon any of the
partners will be a valid service of summons. All partners under the
NCC are considered as managing partners. Since all partners under
the NCC are presumed to be managing partners, service upon anyone
will be a valid service of summons.
It is in the acquisition of jurisdiction over natural persons that there is

conflict in jurisprudence.
Q: What if the defendant is a minor or an incompetent?
Service of summons must not only be served upon the guardian but
also the minor or incompetent.
Q: What is the order of priority in serving summons?
Service in person will always be preferred over substitute service.
And service by publication cannot be held unless the court is
convinced that personal service or substitute service have been
resorted to but it has not been successfully carried out.
Personal Service
Q: When is personal service of summons proper?
A: Only if the suit is one strictly in personam. The service of
summons must be made by service in person on the defendant. This
is effected by handing a copy of the summons to the defendant in
person, or if he refuses to receive it, by tendering the copy of the
summons to him.
Unlike service of pleadings, motions, and other papers in Rule 13, the
meaning of personal service in summons is literal: Summons should
be handed to the defendant himself, not his counsel.
Substituted Service
Q: When is substituted service of summons proper?
A: In our jurisdiction, for substituted service of summons to be valid,
it is necessary to establish the following:
1. The impossibility of service of summons in person within a
reasonable time;
2. The efforts exerted to locate the person to be served; and
3. Service upon a person of sufficient age and discretion in the
same place as the defendant or some competent person in charge
of his office or regular place of business
Q: Defendant owed money to a corporation. Defendant lived in a
gated subdivision. The sheriff was not allowed inside the
subdivision. What the sheriff did was to leave a copy of the
summons, together with the complaint, with the guards. Is there
valid service of summons?
To be literal, no, there was no valid substituted service of summons.
If the summons and the complaint were left only with the security
guard, it did not comply with leaving at the place of residence of
the defendant with some person of suitable age and discretion
then residing therein. The guards do not actually reside in the place
of residence of the defendant.
The SC stated that the meaning of sufficient age and discretion does
not mean that the person to be served could be a minor. This person
means that this person should mean a person at least 18 years of age
with a relationship involving confidence with the defendant. So, if the
service of summons was given to a person who was only a visitor of
the defendant, it will not comply with this requirement.
In 2009, the SC decided a case involving the validity of a substituted
service of summons not in accordance with the Rules. If substitute
service of summons is not in accordance with Sec. 7 of Rule 14, the

service is invalid, the court does not acquire jurisdiction over the
defendant. Any proceedings taken by the court are invalidated.
Constructive Service
Q: Is leave of court required in constructive service of summons?
Yes. This service always requires permission of the court.
When it comes to Sections 14, 15 and 16, you should take note of two
cases Citizens Surety v. Herrera and Santos v. PNOC.
Lets begin with Citizens Surety.
The sheriff stated that summons could not be served personally or by
substituted service. The plaintiff filed an ex parte motion to issue a
summons by publication. The court granted it. Plaintiff caused the
publication of the summons. After 60 days, there was no responsive
pleading. Plaintiff filed a motion to declare defendant in default.
During the hearing of the motion, plaintiff presented the court the
order authorizing publication and affidavit of the publisher. Plaintiff
expected the court to grant his motion. The court did not grant it, but
instead asked the plaintiff to explain why the complaint should not be
dismissed. The court stated that publication did not enable the court
to acquire jurisdiction over the defendant. The requirement left out
was a constitutional requirement of due process.
The proper recourse for the creditor is to locate properties, real
or personal, of the resident defendant debtor with unknown
address and cause them to be attached, in which case, the
attachment converts the action into a proceeding in rem or quasi
in rem and the summons by publication may be valid.
The court interpreted the Rules to mean that if there is publication of
the summons, there should preliminary attachment over the
properties of the defendant. Otherwise, the court will be unable to
acquire jurisdiction over the person of the defendant. If we are not
able to convert the action in personam to that in rem, the court will
not be able to acquire jurisdiction over the person of the defendant,
and therefore, the court will not have authority at all to entertain the
case.
If the court still did not still acquire jurisdiction over the defendant
despite the attachment of the properties of the defendant (there might
be no properties to attach), then the case will be archived. There will
be no dismissal of the case. The case will not prescribe since the case
will be archived and prescription will not run during this period.
Q: When will the case be converted from an action in personam
to an action in rem?
The case will convert from an action in personam to that in rem once
there is actual attachment of personal or real property. A mere motion
requesting for preliminary attachment will not convert the action
In 2008, Santos vs. PNOC was decided, which changed the principles
held under Citizens Surety vs. Herrera.
Personal service of summons were made to the defendant but failed

because the latter cannot be located in his last known address despite
earnest efforts to do so. Subsequently, on plaintiffs motion, the trial
court allowed service of summons by publication. Plaintiff caused the
publication of the summons in a newspaper of general circulation in
the Philippines.
Petitioner still failed to answer within the prescribed period despite
the publication of summons. Hence, respondent filed a motion for the
reception of its evidence ex parte. Trial court granted said motion and
proceeded with the ex parte presentation and formal offer of its
evidence.
Petitioner filed an Omnibus Motion for Reconsideration and to Admit
Attached Answer, alleging that the affidavit of service submitted by
respondent failed to comply with Section 19, Rule 14 of the Rules of
Court as it was not executed by the clerk of court. Trial court denied
the said motion and held that the rules did not require such execution
with the clerk of court. It also denied the motion to admit petitioners
answer because the same was filed way beyond the reglementary
period.
The Supreme Court held that:
(1) Section 14, Rule 14 provides that in any action
where the defendant is designated as an unknown
owner or the like or when his whereabouts are
unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in
such places and for such times as the court may order.
Since petitioner could not be personally served with
summons despite diligent efforts to locate his whereabouts,
respondent sought and was granted leave of court to effect
the service of summons upon him by publication in a
newspaper of general circulation. Thus, petitioner was
proper served with summons by publication and that there
is jurisdiction over his person.
(2) The in rem/in personam distinction was significant
under the old rule because it was silent as to the kind of
action to which the rule was applicable but this has been
changed, it now applies to any action. The present rule
expressly states that it applies in any action where the
defendant is designated as an unknown owner, or the like,
or whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry. Hence, the petitioners
contention that the complaint filed against him is not
covered by said rule because the action for recovery of sum
of money is an action in personam is now not applicable.
(3) The service of summons by publication is
complemented by service of summons by registered mail to
defendants last known address. This complementary
service is evidenced by an affidavit showing the deposit of
a copy of the summons and order for publication in the post
office, postage for prepaid, directed to the defendant by
registered mail to his last known address. The rules,
however, do not require that the affidavit of complementary

service be executed by the clerk of court. While the trial
court ordinarily does the mailing of copies of its orders and
processes, the duty to make the complementary service by
registered mail is imposed on the party who resorts to
service by publication.
Since 2008, the lawyers have made use of Santos vs. PNOC as the
authority to convince a trial court that there is no need for a
publication of summons for the issuance of a writ of preliminary
attachment before the court could acquire jurisdiction over the person
of the defendant.
In 2010, SC resolved another case, Palma vs. Galvez. In the case of
Palma vs. Galvez, the SC held that we should literally apply what the
Rules provides, particularly Section 16 of Rule 14. If you read
Section 16, the defendant is a resident of RP temporarily out of the
country. In relation to Section 14, if the whereabouts of the defendant
is unknown, there could be publication of summons, and that would
enable the court to acquire jurisdiction over the person of the
defendant.
It would seem that the principle adhered to for a long time since
Citizens Surety vs. Herrera is no longer binding. They can ignore the
requirement of prior attachment of properties of the defendant before
availing of a publication of summons to enable a court to acquire
jurisdiction over the person of the defendant. Read over Sections 14,
15 and 16, correlating them with the cases of Santos vs. PNOC and
Palma vs. Galvez. There is really no need for an action in personam
to be converted to an action in rem or quasi in rem, via a writ of
preliminary attachment, in order for a court to be able to acquire
jurisdiction over the person of the defendant.
Q: What is the advantage of using these principles in Citizens
Surety vs. Herrera?
The advantage is that if the plaintiff first moves for preliminary
attachment over properties of the defendant and then later ask the
court for publication of summons, when compared to just the plaintiff
asking for publication of summons without asking for preliminary
attachment, is that there is a security enjoyed by the plaintiff when
the property of the defendant is attached through a writ preliminary
attachment. If you read Rule 57, that is precisely the purpose of
preliminary attachment over the property of the defendant, to provide
security to the applicant to whatever judgment rendered in favor of
the plaintiff.
If there is a preliminary attachment of a property belonging to the
defendant, the act of actual attachment of the property is the act
which converts the case from in personam to that of in rem or quasiin rem. This is because the property is now within the jurisdiction of
the trial court.
Q: In what form should a motion be?

As a general rule, if it is not made in open court, the motion must be
reduced into writing. It must satisfy all the requirements in the Rules
concerning motions.
Q: What are the requirements for a proper motion?
A written motion has two basic requirements:
1. It must be served upon the adverse party; and
2. It must be set for hearing
Q: What is the rule on hearing of motions?
General Rule: Every written motion shall be set for hearing by the
applicant.
Exception: A motion which the court may act upon without
prejudicing the rights of the adverse party.
Q: What shall the notice of hearing specify?
A: It shall specify the time and date of the hearing which shall not be
later than ten (10) days after the filing of the motion and it shall be
addressed to the parties concerned.
Notice of Hearing is usually addressed by lawyers to the branch clerk
of court. This is an error. The notice of hearing MUST be addressed
to the adverse party or the counsel thereof. Remember that the SC has
emphasized that a motion that does not comply with the requirements
set down in the Rules shall be treated as a scrap of paper.
Note: Failure to comply with the mandatory requirements of the rule
regarding notice of hearing is pro forma and presents no question
which merits the attention of the court.
Q: There are nine pleadings. How many motions are there?
None. It is not possible for the Supreme Court to enumerate all the
possible motions because a motion will depend almost completely
upon the creativity of the lawyer. If a lawyer cannot ask for a relief in
a pleading, he can always do so in a motion. And it is up to him to
give the name of that motion.
Q: May a motion be filed in appeal?
Yes. Unlike a pleading, a motion may be filed during appeal.
Personal Opinion: The pleadings related to intervention, such as a
complaint-in-intervention or answer-in-intervention, may be filed on
appeal during very exceptional circumstances.
Moreover, there is a difference between a motion filed before the trial
court compared to motions filed before the appellate courts. A motion
filed before the Court of Appeals or Supreme Court does not have to
contain a notice of hearing because the Court of Appeals or Supreme
Court doesnt 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.
Motion to dismiss is prohibited in certain proceedings, as set down by

the Rules or based on circulars issued by the SC.
As a general rule, summary procedure, small claims proceedings, and
some special proceedings prohibit the filing of a motion to dismiss.
But under ordinary procedure, a motion to dismiss is allowed in civil
cases. A Motion to Dismiss under Rule 16 should be filed as a matter
of general practice before an answer can be filed by defendant.
Q: Can the defendant properly file an answer and a motion to
dismiss at the same time?
Under Rule 16, it is allowed that the grounds for a motion to dismiss
to be simply incorporated in the answer. Under Rule 16, if the
defendant does submit his responsive pleading right away, he can
incorporate in his answer the grounds in Rule as affirmative defenses.
If a defendant files his answer with affirmative defenses enumerated
under Rule 16 as grounds to dismiss, he being allowed to do that,
once the answer is filed with the court, the defendant can ask to court
to conduct a preliminary hearing on his affirmative defenses. The
court can grant it as if the defendant has filed previously a motion to
dismiss.
Q: May the defendant file a Motion to Dismiss one after another?
As a general rule, no. It will violate the Omnibus Motion Rule. All
the defenses known to the defendant must be entered in one Motion
to Dismiss or else it is deemed waived.
However, if the defenses are those that are non-waivable grounds for
dismissal under Rule 9, Section 1, it is possible for the defendant to
file motions to dismiss one after another without violation of the
Omnibus Motion Rule.
Theoretically:
If the first motion to dismiss based on prescription is denied, the
defendant is allowed to file a second motion to dismiss based on litis
pendencia. If that is again denied, the defendant files his third motion
to dismiss founded on lack of jurisdiction over the person of the
defendant. If it is again denied, the defendant can file a motion to
dismiss based on res judicata.
A motion to dismiss founded on a waivable defense shall preclude
the filing of another motion to dismiss based on other grounds under
Rule 16, except those non-waivable defenses. There will be waiver of
the other grounds because of the Omnibus Motion Rule, but not those
defenses which are non-waivable. Thus, if the defendant filed a
motion to dismiss solely on the ground of lack of jurisdiction over the
person of the defendant, which is a waivable defense, and the motion
was denied, the defendant is precluded from filing a motion to
dismiss based on the ground of improper venue. What will be
allowed would be the succeeding motions to dismiss are grounded on
non-waivable defenses.
Q: May the plaintiff file a Motion to Dismiss?
No. Rule 16 is designed to be used by the defending party. If the
plaintiff wishes to dismiss his own complaint, he should make use of
Rule 17, not Rule 16.
Q: May the court make use of a Motion to Dismiss?

It is not so much a Motion, but the court may dismiss the case using
the four non-waivable grounds under Rule 9, Section 1. These four
grounds are also included in Rule 16.
Q: What is the duty of the court if there is a Motion to Dismiss?
In the resolution of a motion to dismiss, Rule 16 gives to the court
three choices: grant the motion, deny the motion, or order an
amendment to the pleading.
Aside from these three, there is a fourth option by virtue of the law
on alternative disputes resolution. The court may refer the matter to
conciliation or mediation or arbitration, as the case may be, and
suspend further hearings.
Furthermore, the court is mandated to explain the reasons which
support the resolution of the court. In other motions, the court can
simply say, The motion is granted because it is meritorious or even,
Finding no merit, the motion is denied. But when it comes to a
motion to dismiss, whether the court grants or denies the motion or
orders an amendment to the pleading, the court must give reasons and
explain the basis of its resolution.
The evidence submitted during the hearing for a Motion to Dismiss
and everything that comes during the motion to dismiss are deemed
reproduced during the trial of the case. There is no more need for a
repetition of trial with reference to the issues already tackled during
hearing for a motion to dismiss.
Q: Is there any procedural advantage if the defendant simply
files an answer setting up as affirmative defenses those
enumerated in Rule 16?
Yes. If the defendant files an answer with affirmative defenses based
on grounds under Rule 16, and after preliminary hearing of the
affirmative defenses the court orders the dismissal of the case, the
defendant will be given an opportunity to recover his claim for
damages based on any counterclaims (compulsory or permissive) or
whatever relief he may have sought in his answer (answer with
affirmative defenses, permissive and compulsory counterclaims, and
other relief).
You will note that in Rule 16, Section 6, the dismissal of the action
will not affect any counterclaim or cross-claim or any other claim
submitted by the defendant in his answer. The defendant cannot file a
Motion to Dismiss with a counterclaim or cross-claim or any other
claim before the court. A Motion to Dismiss is not a pleading. It is in
an answer where we can have a cross-claim against a co-defendant or
counterclaim against the plaintiff.
First Ground: Lack of Jurisdiction over the Subject Matter
The source of jurisdiction over the subject matter cannot be found in
the Rules of Court. It is generally found in BP 129. The general law
on jurisdiction, however, must always give way to a special statute or
a special legislation. BP 129 is not the only source of jurisdiction.
Estoppel by Laches
With respect to lack of jurisdiction over the subject matter or over the
nature of the case, this ground is dealt with in Tijam vs. Sibonghanoy.
In this case, the trial court did not have jurisdiction over the subject
matter of the case, but the defendant kept silent about the issue of
absence of jurisdiction and allowed the case to proceed up to the CA.
Upon receipt of the adverse decision in the CA, the appellee
challenged the validity of the decision of the RTC and the CA, stating
that the court lacked jurisdiction from the start.
SC held that there was estoppel by laches. The case has been pending
for 15 years up to the appeal, the defendant appearing in the case for
all those years. SC said that although the decision may be challenged
by lack of jurisdiction over the subject matter even for the first time
on appeal, the defendant is guilty of estoppel by laches, by his
negligence to raise this issue as promptly as possible. He can no
longer challenge the decision of the court.
The Tijam Doctrine is incorporated in Rule 47, Section 2 before it
is barred by laches or estoppel. Estoppel by laches may be a defense
against lack of jurisdiction over the subject matter.
Estoppel in Pais
In other cases, the SC also used another kind of estoppel in order to
bar the party from raising the issue of jurisdiction, although the trial
court really did not have jurisdiction over the subject matter. Take a
look at Soliven v. Fast Forms.
The aggregate sum to be recovered was P800K. A complaint for
collection of money was filed in the RTC. The amount to be actually
collected was less than the jurisdictional amount of the RTC based on
BP 129 (the P800K includes IDALEC, hence the confusion).
There was an answer by defendant with a counterclaim. The court,
unaware it lacked jurisdiction over the case, as nobody brought it up.
rendered a judgment in favor of the plaintiff. The counsel for the
defendant found that the court had no jurisdiction. The defendant
filed a motion for reconsideration and raised lack of jurisdiction,
praying for dismissal of the case. RTC denied the motion, as the
defendant was now in estoppel to challenge the courts jurisdiction
just because an adverse result was had.
The Supreme Court held that the defendant cannot challenge any
more the jurisdiction of the court. SC stated that estoppel in pais
has set in. While jurisdiction may be assailed at any stage, a litigants
participation in all stages of the case before the trial court, including
the invocation of its authority in asking for affirmative relief, bars
such party from challenging the courts jurisdiction. A party cannot
invoke the jurisdiction of a court to secure affirmative relief
against his opponent and after obtaining or failing to obtain such
relief, repudiate or question that same jurisdiction. The Court
frowns upon the undesirable practice of a party participating in the
proceedings and submitting his case for decision and then accepting
judgment, only if favorable, and attacking it for lack of jurisdiction,
when adverse.
Q: Is the Soliven case applicable to criminal cases?
No. If it is a criminal case, we need to look at Figueroa v. People.

The accused was arraigned for reckless imprudence resulting to
homicide. This was filed in the RTC instead of MTC. The prosecutor
was unaware of RTCs lack of jurisdiction and the counsel for the
accused assumed the same. Nobody raised the issue of jurisdiction in
the RTC, so the case went on. A trial was had. Both parties presented
their respective evidence. The accused was eventually found guilty.
On appeal, the accused interposed the defense of lack of jurisdiction.
The Solicitor General cited Soliven vs. Fast Forms as defense. Active
participation means that the litigant is in estoppel from challenging
the validity of the proceedings. The CA agreed with the Solicitor
General.
The Supreme Court held that the judgment is void as estoppel in pais
is inapplicable in a criminal case. Lack of jurisdiction in a criminal
case can be cited as a defense even on appeal. The rights of the
accused being at stake, estoppel in pais is inapplicable.
Thus, if you are confronted with a problem on lack of jurisdiction in a
civil case, apply Soliven. If it is a criminal case, adopt Figueroa.
Read: Soliven v. Fast Forms, Figueroa v. People, NAPOCOR v.
Province of Quezon
In a hearing of a motion to dismiss grounded to lack of
jurisdiction over the subject matter, the court will not allow
presentation of evidence by the defendant. The reason is because
lack of jurisdiction over the subject matter is a purely legal question
and the only evidence to be taken into account is the complaint itself,
applying the principle that the court acquires jurisdiction, under BP
129, based on the allegations contained in the complaint.
In the hearing of a motion, the court will only allow presentation of
evidence if the question that will be raised is a factual issue like the
obligation has been paid, waived or otherwise extinguished. Thus, in
a motion to dismiss on the ground of lack of jurisdiction over the
subject matter, the court will resolve the motion based on the
complaint itself. The court can easily resolve the said motion based
on the allegations in the pleading itself.
Second Ground: Lack of Jurisdiction over the Defendant
Q: The defendant has a problem when a court issues a service of
summons in violation of Rule 14. The defendant must file a
Motion to Dismiss on ground of lack of jurisdiction over person
of the defendant. If he does file such motion, does not the
defendant admit that the court has jurisdiction over his person?
No. The filing of a motion to dismiss on that ground is the only
remedy available to him in order to tell the court that the court had
not acquired jurisdiction over his person. In court cases, what the
defendant can do is to tell that court right away that his appearance
before the court in filing the motion to dismiss should be considered
as a special appearance only for the purpose of telling the court that
the court has no jurisdiction over his person.
This Special Appearance Rule stems from another principle in the
past that when a defendant files a motion to dismiss on the ground
that the court has not acquired any jurisdiction over his person, when
he adds another ground found in Rule 16, the SC then held that when
another ground is added in the motion to dismiss aside from lack of
jurisdiction over the person of the defendant, he waives the ground of
lack of jurisdiction over his person. This has been changed in the
present Rules.
Under the Omnibus Motion Rule, the defendant who files a motion to
dismiss on the ground of lack of jurisdiction over his person plus any
other ground in Rule 16 does not anymore waive the ground of lack
of jurisdiction over his person.
Let us say the defendant who claims that the court has not acquired
jurisdiction over his person does not respond to the summons, as
filing of an answer is a waiver of his defense of lack of jurisdiction
over his person. He received a copy of the order of the court, and then
following the Rules, the defaulting defendant files a motion to lift the
order of default. The filing of a motion to lift the order of default is
acceptance by the defendant of jurisdiction of the court over his
person.
In another instance, the defendant receives the copy of the judgment
of default and the defendant files a motion for reconsideration and a
motion for new trial. The motion for reconsideration or new trial is a
submission of the defendant to the jurisdiction of the court over his
person. This is the reason why in Palma vs. Galvez, the defendant
claims that the court did not acquire jurisdiction over his person, and
when he filed a motion for new trial, he must qualify the motion must
not be treated as a voluntary submission to the jurisdiction of the
court over his person. He must always qualify his motion with that
ground.
Third Ground: Improper Venue
This has already been taken up in Rule 4.
Fourth Ground: Lack of Capacity to Sue on the Part of Plaintiff
Q: Suppose it is the defendant who lacks the capacity to be sued,
may he still dismiss the case?
Yes, but not under this ground but under another ground, i.e., failure
to state a cause of action.
Fifth Ground: Litis Pendencia
Q: When is there litis pendencia?
To answer this question, we need to take a look at Hongkong and
Shanghai Bank v. Aldecoa.
A property was mortgaged to the bank. The mortgagor filed a case
against the bank for the annulment of the mortgage. During the
pendency of that case, the debt became due and the mortgagor failed
to pay the obligation. The bank filed a complaint for the foreclosure
of the same mortgage. The mortgagor upon receipt of the summons
issued in the second case filed a motion to dismiss founded on litis
pendencia.
The Supreme Court held that in litis pendencia, the essential requisite
is that the outcome of anyone of the cases will be res judicata as to
the other cases, regardless of who is going to prevail in anyone of

these cases.
If we are going to use that standard, the argument of the mortgagor is
correct only partially. There are two possibilities. First, the mortgage
will be annulled. In this scenario there really will be res judicata over
the second case. The mortgagor, however, did not account for the 2nd
scenario the mortgage will be held valid. In this instance there will
be no res judicata over the second case. In this scenario the bank has
all the right to foreclose the mortgage.
There is therefore no litis pendencia between a case asking annulment
of a contract and a case enforcing that contract.
Notice of Lis Pendens
Q: Is there a difference between litis pendencia and a notice of lis
pendens?
Yes. Notice of lis pendens is a constructive notice in real actions. The
notice operates when the case involves title to or possession of real
property (i.e., real action) and one of the litigants requests the register
of deeds to annotate at the back of the title of the property involved
the fact that there is a pending action between the plaintiff and the
defendant involving that property.
Q: Does the interested party need permission from the court
before he can register a notice of lis pendens?
No. The Register of Deeds has the ministerial duty to record a notice
of lis pendens. The Register of Deeds cannot require the applicant to
produce permission from the court.
This is the reason why it is called a notice of lis pendens. A notice of
lis pendens does not require to be put in a motion or a pleading.
Q: What is the purpose of a notice of lis pendens? Will it prevent
the registered owner from disposing of the property?
A notice of lis pendens is only a notice to the whole world that there
is a pending action between the plaintiff and the defendant. The
registered owner of the property will not be prevented, he will not be
precluded from disposing of the property. The notice of lis pendens
will not be considered as an obstacle to the conveyance of the
property involved in the litigation.
Q: Does cancellation of a notice of lis pendens require permission
from the court?
Yes. Although the party wishing to register a notice of lis pendens
does not have to obtain permission from the court, cancellation of the
same is a different matter. There should be an order from the court to
carry out the cancellation.
Dean Albano: The cancellation of the annotation of an encumbrance
cannot be ordered without giving notice to the parties annotated in
the certificate of title itself.
Also, notice of lis pendens is not effective if the action is a personal
action like sum of money (citing Gagoomal v. Sps. Villacort).
Sixth Ground: Failure to State a Cause of Action
The Supreme Court in recent cases emphasize the difference of lack

of a cause of action and failure to state a cause of action:
Failure to state cause of action
Lack of cause of action
Insufficiency in the allegations

of the complaint
Failure to prove or establish by

evidence ones stated cause of
action
As a ground for dismissal

Raised in a motion to dismiss
under Rule 16 before a
responsive pleading is filed
Raised in a demurrer to
evidence under Rule 33 after
the plaintiff has rested his case
Determination
Determined only from the
allegations of the pleading and
not from evidentiary matters
Resolved only on the basis of

the evidence he has presented
in support of his claim
Failure to state a cause of action will be a ground to dismiss because

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

under substantive law.
The court said that the results enumerated under Section 16 are not
exclusive. We should include laches. Under the NCC, laches could
extinguish an obligation.
Remember that, procedurally, the court will not allow presentation of
evidence in a hearing for a motion to dismiss entirely based on a legal
issue. The court will simply read the allegations in the complaint. If
the issue is factual, the court will be forced to conduct a hearing for
presentation of evidence therein.
Q: Supposing the plaintiff commits an error in ascertaining the
dismissal. The dismissal was actually with prejudice. Although
the judgment already became final after 15 days, the plaintiff, 40
days after the judgment for dismissal was made, files a petition
for certiorari. The petition for certiorari was dismissed by the
higher court as the proper remedy was to appeal. May the
plaintiff still appeal once the petition for certiorari was denied?
At this time, he cannot appeal anymore as the time to appeal was 15
days from receipt of the order of dismissal. It has long expired, and
the judgment has been entered and had become final. Also, he cannot
file another complaint, as the dismissal is with prejudice.
Q: Let us say that the defendants motion is founded on letter h.
During the hearing, the defendant presents evidence. Then, the
motion was submitted for resolution. The court denies the
motion. What is the next move for the defendant if the motion is
denied?
The defendant should file an answer during the remaining period to
file, which should not be less than 5 days from the receipt of the
order of denial.
hearing as the said defenses had been already subject to a hearing

when the said defenses were contained as a ground for dismissal in
the prior motion that was denied.
So, during the trial of the case, the defendant may be able to present
to the court additional evidence in order to prove such ground under
Rule 16 that he has relied upon.
Seventh Ground: Res Judicata, Prescription
Eight Ground: Extinguished Claim
Ninth Ground: Unenforceable Contract
The Statute of Frauds only applies to executory contracts. A partially
or totally executed contract may be enforced in court even if it be oral
in form.
Tenth Ground: Condition Precedent
Take note of our discussion on condition precedents such as prior
barangay conciliation, an arbitration clause, certificate of non-forum
shopping, among others.
DISMISSAL OF ACTIONS
Lets attempt to summarize.
If a dismissal is found under Rule 16, we have to determine if it is
with prejudice or without prejudice. The dismissal is with prejudice if
it was dismissed under grounds (f), (h) and (i). The proper remedy is
to appeal.
Q: May the defendant appeal the denial of his Motion to Dismiss?

No. The denial of a Motion to Dismiss is an interlocutory order and
under Rule 41 is not subject to appeal.
If it was dismissed on any other ground aside from (f), (h) and (i), the
dismissal is without prejudice and the plaintiff may either just file
another complaint or, if the dismissal is marked with grave abuse of
discretion amounting to lack or excess of jurisdiction, he may just file
a petition under Rule 65.
Q: May the defendant make use of Rule 65?

Yes. Under Section 1, Rule 41, the aggrieved party may file an
appropriate special civil action as provided in Rule 65.
If a dismissal is found under Rule 17, we follow the same principle.

Rule 17 also states if a dismissal is with and without prejudice. We
follow the principle of dismissal under Rule 41 in relation to Rule 16.
Q: The defendant files an answer after his Motion to Dismiss was

denied. Can he incorporate the ground in the motion to dismiss
that was denied as an affirmative defense?
Yes, the defendant is allowed to do that. Under our rules, if there are
objections or grounds not raised in the pleadings, these grounds are
deemed waived.
A dismissal under Rule 18, under pre-trial, is always with prejudice,

and the plaintiff must appeal.
Q: Using the above scenario - Can the defendant, after filing his
answer with his affirmative defense move for a preliminary
hearing on his affirmative defense?
No, the court will not allow such a hearing anymore as there had been
a prior hearing for the same issue in the prior motion to dismiss that
was denied. Thus, although a defendant is all owed to use his ground
under Rule 16 in a motion to dismiss that was denied as an
affirmative defense, he is not allowed to have another preliminary
If the dismissal is without prejudice, in general, the plaintiff has not

much to worry. He can actually forget about Rule 41. He can just file
a second complaint, but he must make sure it is properly crafted. If
the plaintiff files a second complaint, but it was again dismissed,
there is the probability that under Rule 17, Section 1 that it will be a
dismissal with prejudice under the two-dismissal rule. Thus, if a
A dismissal under Rule 33, or demurrer on evidence, is a dismissal

with prejudice and the remedy is to file an appeal from the order of
dismissal.
complaint has been dismissed twice, the second dismissal may

operate as an adjudication of the merits.
Q: Does it mean that a second dismissal is always a dismissal with
prejudice?
No. The second dismissal will still be without prejudice as provided
for in Rule 17, unless there is a statement of such dismissal being
with prejudice in the notice of dismissal.
Remember our discussion regarding indispensable parties.
The theory behind the doctrine that a complaint must always implead
an indispensable party is for the court to have a final determination of
the case. If an indispensable party has not been impleaded, the court
may simply order the plaintiff to amend his complaint to include the
indispensable party (either as a resolution of a Motion to Dismiss for
failure to state a cause of action, OR under its own authority under
Section 11, Rule 3). In this instance, the plaintiff can then just file an
amended complaint, and the case can proceed.
If the plaintiff however failed to obey the order of the court to amend
his complaint, the court may dismiss the case under Rule 17, and the
dismissal is with prejudice. The ground is for failure to obey a lawful
order of the court. The remedy of the plaintiff in this instance is to
appeal.
Generally, the court is given discretion to state whether a dismissal is
with or without prejudice. If the dismissal, however, is not qualified,
Section 3 of Rule 17 is very clear, that dismissal is with prejudice.
Therefore, the remedy of the aggrieved party is to appeal and not to
file a petition under Rule 65.
We now tackle Sections 1, 2, and 3 of Rule 17 successively. These
sections are also grounds for dismissal.
Sections 1 and 2
Q: The plaintiff files a complaint today and the plaintiff changed
his mind tomorrow and moved to dismiss the case. The summons
had not been sent. May the plaintiff dismiss his own complaint
via a motion?
The plaintiff should not dismiss his case via a motion. The means for
a plaintiff to dismiss his case is provided for under Section 1, Rule
17. A motion implies that the court has the discretion to grant or deny
the motion.
Q: What if a notice of dismissal was given instead?
The court is left without discretion. The court has to dismiss it. Filing
of a timely notice of dismissal will result in the dismissal of the case.
The dismissal is without prejudice, unless plaintiff tells the court that
the notice of dismissal is to be considered adjudication on the merits.
Q: When is notice of dismissal proper?
A notice of dismissal is only proper before the service of an answer
or of a motion for summary judgment. If there is already an answer,
the plaintiff must instead file a motion to dismiss and the court may
either grant or deny the same.
Q: The case had been dismissed by the court because of the

plaintiffs notice of dismissal. What if plaintiff changed his mind
after the order of dismissal? What can he do?
He needs to wait ask for revival of the case within 15 days from the
filing of the order of dismissal. No new complaint need be filed, and
no docket fees need be paid again.
Q: Suppose the defendant filed a Motion to Dismiss, and the
plaintiff filed a notice of dismissal before the motion may even be
heard. How can this be resolved?
SC held that the court should confirm the notice of dismissal by the
plaintiff. The plaintiffs notice of dismissal prevails over the motion
to dismiss filed by the defendant.
Two-Dismissal Rule
Q: Plaintiff files a collection case for P500.000 against defendant.
Defendant visits the plaintiff and asked the plaintiff for the
dismissal of the case, promising payment. Plaintiff acquiesced
and files a notice of dismissal. The court dismisses the case. The
defendant still failed to pay. Can the plaintiff file another case
against defendant?
Yes, as the case was dismissed without prejudice.
Q: The defendant again approached plaintiff, asking again for
time. Plaintiff again agrees, and files another notice of dismissal.
It is again dismissed. What will be the effect?
The dismissal is with prejudice this time. If plaintiff files a case for
the same defendant for the same cause and the defendant again failed
to pay, the case will be dismissed as the second dismissal is one with
prejudice, and res judicata will lie.
Q: What if the defendant files a motion to dismiss but failed to
allege res judicata, can the court proceed to dismiss?
Yes, the court can do so, even if the defendant failed to allege it. It is
a non-waivable ground of dismissal, and anytime the court discovers
such fact, it will dismiss the case.
Q: Can the court say in its decision of dismissal that the second
dismissal is without prejudice?
No. The court cannot say the second dismissal is without prejudice as
the law itself dictates that such dismissal is with prejudice. The court
has no discretion if the second dismissal is with or without prejudice.
As long as it is the second dismissal of the same case, it will always
be with prejudice due to res judicata.
Q: Are there any situations where the second dismissal is without
prejudice?
1. If the first case was filed in court which lacked jurisdiction
thereto, and the second case was filed in a competent court
and there was a second dismissal, the second dismissal is
not res judicata. The two-dismissal rule will only lie if the
case had been filed in a court competent to hear it.
2.
In Section 2 Rule 17, a plaintiff may dismiss his complaint

via a motion to dismiss. Here, the defendant has already
filed an answer. If the plaintiff seeks to dismiss the
complaint, he must file a motion to dismiss his complaint,
copy furnished to the defendant.
Under the second instance, the likelihood is that the defendant will
not object. If the defendant does not object, and the court dismisses
the case without prejudice, the plaintiff is allowed to file another case
against the same defendant based on the same cause.
The defendant can insist that the dismissal be one with prejudice.
This is allowed because the dismissal is upon the initiative of the
plaintiff, and the defendant is given the opportunity to object. If you
were the defendants counsel, advise the defendant to object, and
state that the dismissal should be one with prejudice. It will preclude
the plaintiff from filing another case with the same claims against the
same defendant.
Q: What if the defendant has a counterclaim?
There will still be dismissal, but the defendant can ask that the court
to continue hearing on the counterclaim set up by defendant in his
answer. In the alternative, the defendant can ask the court to try the
counterclaim in a separate case.
Q: Will this apply even if the counterclaim is compulsory?
Yes. This is one of rare instances where a compulsory counterclaim
could survive without the principal action.
Section 3
Q: What are the grounds for dismissal under Section 3, Rule 17?
1. The plaintiff fails to appear on the date of the presentation of
his evidence in chief on the complaint;
2. Failure to prosecute his action for an unreasonable length of
time, or nolle prosequi;
3. Failure to comply with these Rules; and
4. Failure to comply with any order of the court
Under this section, the initiative for the dismissal of the case comes
from the defendant or the court itself.
Q: What if the plaintiff failed to appear during the trial set for
the presentation of rebuttal evidence? Will there be dismissal?
No. The plaintiff has already presented his evidence in chief. There is
a difference between evidence in chief and rebuttal evidence.
Q: How can the court order a dismissal under Section 3 of Rule
17 upon the ground that the plaintiff failed to obey the provisions
of the Rules of Court?
A good example can be had under Rule 18 on Pre-Trial. In Rule 18, it
is provided expressly that after the last pleading is filed, it is the duty
of the plaintiff to set his complaint for pre-trial. He must file a motion
to have the complaint set for pre-trial. When the plaintiff fails to set
the hearing for pre-trial for, let us say, one year ago up to the present,
and there is a finding that the plaintiff failed to do so, the court can
dismiss the case on the ground that the plaintiff failed to follow the
provision set upon in the Rules. This has been affirmed by the SC.
So, if it is the duty of the plaintiff to set the case for pre-trial, and he
neglects to do so for an unreasonable length of time, there is every
reason for the court to make use of Rule 17, to order the dismissal of
the case under Section 3. This is a dismissal with prejudice unless the
court makes the necessary qualification that it is a dismissal without

prejudice.
Dean Albano: But you should read Soliman v. Fernandez, a 2014
case. The SC held that the court should not dismiss the case if the
plaintiff fails to take further steps to prosecute or set it for pre-trial
because the further steps is not his, but for the clerk of court, to take.
Within five days from date of filing of the reply, the plaintiff must
move ex parte that the case be set for pre-trial conference. If the
plaintiff fails to file said motion within the given period, the Branch
Clerk of Court shall file a notice of pre-trial.
Dean Jara, continuing: In most courts (RTC or MTC), if the court
calls the case for trial on the merits, and plaintiff does not appear
during trial, the lawyer for the defendant may ask for the dismissal
under Section 3, Rule 17 for failure of the plaintiff to prosecute for an
unreasonable length of time or for failure of the plaintiff to appear on
the date of the presentation of his evidence in chief on the complaint.
And usually, the trial court accommodates the defendants move
because if a trial court dismisses the case, that is one case where the
judge can present that he has been resolving speedily the cases that
are assigned to him.
The Supreme Court came out with a resolution concerning this
particular provision in relation to Shimizu vs. Magsalin. Study this
case as it would be a good problem in the bar.
In Shimizu, the Court held that an order of dismissal with prejudice
should always comply with Rule 36 and the Constitution. Otherwise,
it shall be open to collateral and direct attack. A trial court should
always specify the reasons why the complaint was dismissed so that
on appeal, the reviewing court can readily determine the prima facie
justification for the dismissal.
Shimizu involves a case of nolle prosequi, or failure to prosecute. The
court failed to substantiate its judgment aside from a short sentence
the case was dismissed for failure to prosecute.
A valid judgment must contain factual findings and it must have
conclusions as to the law available. If the court simply says that the
dismissal was for failure to prosecute for an unreasonable length of
time, that is not a factual finding nor a conclusion based on law. It is
just a conclusion of the court.
The SC said that for a trial court to render a valid judgment, the court
should explain why and how the court came to the conclusion that the
plaintiff is guilty of nolle prosequi. The court should give instances
pertaining to the records of the case that enabled the court to
conclude that the plaintiff has failed to prosecute for an unreasonable
length of time. Without such explanation, even if the judgment is
entered, it can be subjected to direct or collateral attack.
An order of dismissal with prejudice under Rules 16, 17, 33 or even
under any rule allowing dismissal of the action must comply with the
requirements of Section 1, Rule 36.
PRE-TRIAL
Pre-trial is mandatory in all cases, even in summary procedure, where
it is called a preliminary conference. It is present even in small claims
procedure, where there is a semblance of pre-trial in the preliminary
conference called a Judicial Dispute Resolution.
It is the duty of the plaintiff to schedule his complaint for pre-trial
after the last pleading has been filed. If he fails to do so, the case may
be dismissed with prejudice under Rule 17. Again, following the rule
in Shimizu, the order of dismissal should explain how the court has
arrived at the conclusion that the plaintiff has not obeyed the Rules of
Court.
Q: When is pre-trial not mandatory?
It is not mandatory if all the defendants have been declared in default.
The reason is obvious there is no defendant to have pre-trial with.
Mediation and Conciliation
This rule on pre-trial has been modified by the SC, applying the rules
of mediation and conciliation.
The Trial Court calls the parties to pre-trial. The parties are told to
attend a mediation/conciliation process. The case might be terminated
while in this process. The mediator/conciliator usually issues notices
to the parties as to the schedule of the mediation/conciliation
conference. If the plaintiff does not appear, he repeatedly ignores the
notices, the mediator/conciliator will submit a report to the trial court
and the court may dismiss the case with prejudice. If the court orders
that the parties should attend a mediation/conciliation conference, the
conference is deemed part of the pre-trial process. It is tantamount to
the plaintiff absenting himself from a hearing in the trial, and thus a
violation of an order of the court. Thus, such disobedience by the
plaintiff shall be a ground for dismissal with prejudice.
If the mediator/conciliator fails to mediate or to settle the case, they
will file an official report to the trial court. The case will proceed to
pre-trial proper. Parties will be ordered to submit a pre-trial brief and
attend the pre-trial conference.
Pre-Trial Proper
If any one of them fails to submit a pre-trial brief, there are serious
sanctions imposed. Also, even if the parties have timely submitted
their pre-trial brief but a party was absent in the pre-trial conference,
there are serious consequences.
If the plaintiff failed to file a pre-trial brief or attend the pre-trial
conference, the case will be dismissed and the dismissal is with
prejudice.
If it is the defendant who failed to file a pre-trial brief or attend the
pre-trial conference, the plaintiff is allowed to present his evidence ex
parte. The decision of the court will be based on such evidence.
Do you still remember the difference between ex parte presentation
of evidence under Rule 9 and Rule 18?
Under Rule 18, if the defendant filed an answer but fails to submit a
pre-trial brief or did not attend pre-trial conference, the plaintiff can
present evidence ex parte and the court will make an award according
with the evidence presented by plaintiff (application of amendment to
pleadings in order to conform to evidence).
Under Rule 9, the defendant is in default, ex parte evidence can be
presented, and the court will only award those reliefs prayed for in
the complaint.
Q: May a third party such as his counsel appear for the party?
Yes, but the third party must be armed by a power of attorney, and in
writing, that will empower him to enter into stipulations, to submit to
arbitration or other ADR, or to enter into a compromise agreement.
Q: What if there are two preliminary conferences; the defendant
attended the first but did not attend the second one? Will he be
sanctioned?
No. After the termination of the first pre-trial conference, it is
arbitrary and capricious on the part of the trial court to schedule
a second conference. But it is essential that the first one must have
been terminated.
Q: What are the differences between a criminal case and a civil
case when it comes to pre-trial?
In a civil case, stipulations of facts can be had; joint stipulation of
facts can be had; parties are encouraged to agree on the existence of
certain facts, making them part of the records of the case; and verbal
stipulations of facts can be allowed and considered valid. These
stipulations need not be presented in evidence, as the court will take
judicial notice of these stipulations, and will be considered as judicial
admissions.
The rules in a criminal case are much stricter. Stipulation of facts
should be reduced into writing, signed by the counsel of the accused
and accused himself, and approved in court. Otherwise, it will be
inadmissible in court.
Q: One of the purposes for pre-trial is the advisability or
necessity of suspending the proceedings. What are the grounds
for suspending the proceedings?
The grounds are not in the Rules of Court. It is in the NCC. Read Art.
2030 under Title XIV, or Compromises and Arbitrations:
Art. 2030. Every civil action or proceeding shall
be suspended:
1. If willingness to discuss a possible
compromise is expressed by one or
both parties; or
2. If it appears that one of the parties,
before the commencement of the action
or proceeding, offered to discuss a
possible compromise but the other
refused the offer
Pre-Trial Order
The court is required to issue a pre-trial order after the termination of
the pre-trial conference, stating therein the matters to be taken up and
will serve to control the proceedings in trial proper. The court is

required to specify the issues that have not been stipulated upon and
what should be the object of the trial whenever the court finds it
necessary to conduct a trial. This is an important document in a civil
case insofar as the triable issues are concerned.
If we follow the decisions of the SC, since the issues specified in the
pre-trial order control the proceedings to be taken thereafter by the
court, the court may disregard the pleadings submitted by the parties
after the pre-trial.
Q: The complaint was for collection of a large sum of money
amounting to P1M. During pre-trial, the parties agree that the
real issue is to recover possession and ownership from defendant
of a piece of land, instead of collection of P1M as stated in the
complaint. That is the issue embodied in the pre-trial order. Is
the pre-trial order valid?
Yes. Although it is in conflict with pleadings, Rule 18 is very clear
that it is the pre-trial order that will govern the proceedings, not the
pleadings.
Although we learn in Evidence that the issues are those found in the
pleadings in a civil case, the triable issues for the purposes of a civil
case are those found in the pre-trial order. There is nothing wrong in
a civil case if we start with a collection of money case and that was
converted to a recovery of property case in pre-trial even without
amending the complaint. This is because what governs the course of
the proceedings is the triable issue that is specified in the pre-trial
order, as specified under the last section of Rule 18. Thus, in our last
example, the court will simply ignore the issue as to the claim for a
sum of money, as the issue to be tried will be the issue on the
recovery of possession and ownership of a piece of land, the issue
found in the pre-trial order.
Q: Why do we allow the trial court to change the issues without
changing the pleadings?
This is because, during the pre-trial hearings, the parties are present
therein. If they both agreed to the change, such as changing the issues
of the complaint from collection for a sum of money to a recovery of
possession and ownership of property, then the court will be simply
following the desire of the litigants as to what issue to be tried during
the trial.
Note, this principle is allowed in civil cases only. It is inapplicable in
a criminal case.
Let us say the court strictly follows the pre-trial order and reminds
the parties that the issue in the trial will be recovery by the plaintiff of
possession and ownership of property from the defendant. During the
trial, if the plaintiff was able to show that he was indeed entitled to
recover, then there is nothing wrong with that as the evidence is
relevant and material.
Q: What if during the trial, the plaintiff also presented evidence
that he is also entitled to recover 1M along with the property, will
it be allowed?
He cannot, if the defendant objects. If the defendant, however, failed

to object, the plaintiff will be able to present evidence on an issue not
raised in the pre-trial order.
Q: Why do we allow the plaintiff to present evidence on an issue
not raised in the pre-trial order, about his entitlement to recover
from the defendant the amount of 1M?
This is because of the rule of amendment to conform to evidence. In a
civil case, we can jump from one issue to another so long as parties
agree. The issue in the pre-trial order could be different from that
raised in the pleadings, and even issue tried during trial could be
different from that raised in the pre-trial order. The parties are given
much flexibility and allowance in a civil case to present evidence on
any issue they so desire. The only limitation is that the other party
might object to evidence presented that is not related to the issue
found in the pre-trial order, that the evidence is irrelevant and
immaterial. If evidence is allowed, the court shall issue judgment
based on evidence presented, based on the rule of amendment to
conform to evidence.
Alternative Dispute Resolution (ADR)
The NCC expresses the policy of the state that the courts should
encourage litigants to settle disputes amicably or to submit to
arbitration if they cannot voluntarily agree to settle the dispute by
themselves.
Read: Domestic Arbitration Act (RA 876), and A.M. No. 07-11-08SC Special Rules on ADR
The law on ADR gave autonomy to contracting parties in submitting
their disputes to alternative modes of dispute resolution, including the
prerogative to agree on the procedure to be followed in case they
enter into any mode of ADR.
There are 3 recent cases dealing with ADR. The principles formed in
these 3 cases form the circular on arbitration.
These cases are:
1. Gonzales v. RTC,
2. ABS-CBN Broadcasting Corporation v. World Interactive
Network Systems (WINS) Japan Co., Ltd., and
3. Korea Technologies Co., Ltd., v. Hon. Alberto A. Lerma, et
al.
Gonzales v. RTC explains the doctrine of separability or severability.
Doctrine of Separability / Severability (Case)
This doctrine enunciates that an arbitration agreement is independent
of the main contract. The arbitration agreement is to be treated as a
separate agreement and the arbitration agreement does not
automatically terminate when the contract of which it is part comes to
an end.
The separability of the arbitration agreement is especially significant
to the determination of whether the invalidity of the main contract
also nullifies the arbitration clause. Indeed, the doctrine denotes that
the invalidity of the main contract, also referred to as the container

contract, does not affect the validity of the arbitration agreement.
Judicial Remedies
ABS-CBN v. WINS enumerates the remedies of a party aggrieved by
an arbitral award.
According to the Supreme Court, a party aggrieved by an arbitral
award has three (3) remedies, to wit:
(a) a petition in the proper trial court to issue an order to vacate
the award under Republic Act No. 876 (which applies to
domestic arbitration);
(b) a petition for review with the Court of Appeals under Rule
43 of the Rules of Court on questions of fact, of law, or
mixed questions of fact and law; and
(c) a petition for certiorari with the Court of Appeals under Rule
65 of the Rules of Court if the arbitrator acted without or in
excess of his jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
The grounds to vacate under Section 24 are:
(a) The award was procured by corruption, fraud, or other
undue means; or
(b) That there was evident partiality or corruption in the
arbitrators or any of them; or
(c) That the arbitrators were guilty of misconduct in
refusing to postpone the hearing upon sufficient cause
shown, or in refusing to hear evidence pertinent and
material to the controversy; that one or more of the
arbitrators was disqualified to act as such under section
nine hereof, and willfully refrained from disclosing such
disqualifications or of any other misbehavior by which the
rights of any party have been materially prejudiced; or
(d) That the arbitrators exceeded their powers, or so
imperfectly executed them, that a mutual, final and definite
award upon the subject matter submitted to them was not
made.
Rule 43
The Supreme Court noted that Rule 43 of the Rules of Court
expressly applies to awards, judgments, final orders or resolutions of
quasi-judicial agencies, including voluntary arbitrators authorized by
law.
international arbitral award only to the grounds specified under

Section 34 of the Model Law (e.g., incapacity of a party to the
arbitration agreement or the invalidity of the arbitration agreement
under the applicable law). Neither the Model Law, nor the New York
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, to which the Philippines acceded in 1967, recognize the
setting aside of international/foreign on the broader grounds of errors
of law and/or fact or grave abuse of discretion.
Notably, the ruling in ABS-CBN treated the case as a domestic
arbitration even though one of the parties, i.e., WINS, was a Japanese
corporation and a substantial portion of the obligation, i.e., the
distribution and sublicensing of the The Filipino Channel, was
performed in Japan. Perhaps this may be explained by the fact that
the arbitral award in this case was rendered prior to the enactment of
the ADR Law. It was only under the ADR Law that a distinction was
made between domestic arbitration and international arbitration.
Under the ADR Law, international arbitration shall be governed by
the Model Law, while domestic arbitration shall be governed by R.A.
No, 876. The ADR Law adopts the definition of international
arbitration under Article 1(3) of the Model Law. Domestic
arbitration, on the other hand, defines domestic arbitration as
arbitration that is not international.
Retroactive Effect
In Koreatec v. Lerma, the Supreme Court held that the ADR Law,
being a procedural law, may be given retroactive effect. Hence, there
appears to be a conflict in this respect between ABS-CBN and Korea
Technologies.
While RA 9285 was passed only in 2004, it nonetheless applies in the
instant case since it is a procedural law which has a retroactive effect.
Likewise, KOGIES filed its application for arbitration before the
KCAB on July 1, 1998 and it is still pending because no arbitral
award has yet been rendered. Thus, RA 9285 is applicable to the
instant case. Well-settled is the rule that procedural laws are
construed to be applicable to actions pending and undetermined at the
time of their passage, and are deemed retroactive in that sense and to
that extent. As a general rule, the retroactive application of
procedural laws does not violate any personal rights because no
vested right has yet attached nor arisen from them.
General Principles and Process
There are certain principles to keep in mind concerning arbitration
proceedings.
Rule 65
As for the remedy under Rule 65, the Supreme Court stressed that it
will not hesitate to review a voluntary arbitrators award where there
is a showing of grave abuse of authority or discretion amounting to
lack or excess of jurisdiction, and there is no appeal, nor any plain,
speedy remedy in the course of law.
It should be noted that the Philippine Alternative Dispute Resolution
Act of 2004 (ADR Law) adopted and incorporated the provisions
of the UNCITRAL Model Law on International Commercial
Arbitration (Model Law), which limits recourse against an
Take note particularly of these three principles:

1. Principle of Separability or Severability
2. Principle of Judicial Restraint
3. Competence- Competence
Principle of Separability (Discussion)
Under the pricinple of separability, the arbitration clause is treated as
an agreement independent of the other terms of the contract of which
it forms part. A decision that the contract is null and void shall not
entail ipso jure the invalidity of the arbitration clause.
If there is a judgment by a court that the container contract is

unenforceable, that will not affect the arbitration clause as it is a
separate contract by itself. This clause will still govern the
relationship of parties concerning the filing of cases in court or
arbitration board as the case may be.
If the arbitration clause is still valid, and one of the parties filed a
case in court, allegedly for the enforcement of his right, then the
court, confronted with the arbitration clause will have to either
dismiss the complaint or suspend the proceedings and compel the
parties to go into arbitration.
Under the decisions of the three cases, the court also emphasized that
there could be a complaint to declare the unenforceability of or to
declare void the arbitration contract. It is an RTC that has jurisdiction
to do so. But even if there is a pendency of such a case to declare
unenforceability of or to declare void the arbitration contract, it shall
not serve to prevent the parties from proceeding to arbitration. In fact,
these cases came out with a principle which the court called the
Principle of Anti-Suit Injunction.
The Principle of Anti-Suit Injunction means that the court has no
authority to issue a writ of injunction to prevent an arbitration from
proceeding or an arbitration board to be constituted for the purpose of
enforcing the arbitration clause.
Competence-Competence
The principle of competence-competence states that the arbitral body
has the power to initially rule on the question of its jurisdiction over a
dispute including any objections with respect to the existence or
validity of the arbitration agreement or any condition precedent to the
filing of a request of arbitration.
The Special ADR Rules recognize the principle of competencecompetence, which means that the arbitral tribunal may initially rule
on its own jurisdiction, including any objections with respect to the
existence or validity of the arbitration agreement or any condition
precedent to the filing of a request for arbitration.
Restatement of the Rule:
Before the arbitral tribunal is constituted, the regular courts have
jurisdiction to determine the issue of competence of a tribunal. The
moment the arbitral tribunal is constituted, the arbitral tribunal has
the prerogative to rule on its own jurisdiction.
Q: So where does prima facie finding of the court come in?

How is it prima facie?
Since the finding of the court is only prima facie, this means that the
same issue may be passed upon by the arbitral tribunal, which has the
effect of superseding the previous of the court.
This is the after ruling.
Q: What about the after-after ruling?
The same issue on jurisdiction may be passed upon in an action to
vacate or set aside the arbitral award. In this case, it is no longer a
prima facie determination of such issue or issues, but will be a full
review of such issue with due regard, however, to the standard of
review for arbitral awards.
Personal Opinion:
The relation between the prima facie ruling, after ruling, and afterafter ruling seems to be confusing at first. Try to apply it in a scenario
like this one.
There is a contract between A and B and that contract contains an
arbitration clause. There was a violation of that contract and A wishes
to enforce the arbitration clause. B, however, is adamant that the
adamant clause is actually null and void. He states he was only forced
to agree to the arbitration clause. Before the arbitration tribunal is
constituted, B sought the help of the court to declare the arbitration
clause void. The court determined the arbitration clause is really void.
This declaration, however, is merely prima facie and is not final. This
is the prima facie ruling part of ADR.
Since the ruling of the court is merely prima facie, the arbitration
tribunal may still be constituted. When it was in fact constituted and
it did here, the tribunal passed upon on the same issue. It stated the
arbitration clause is valid. This is the after ruling and is the very
embodiment of the principle of competence-competence.
Since the arbitration tribunal determined the clause is valid, B may
petition the appropriate court again for judicial relief. He may make
use of Rule 3 under the Special Rules on ADR if there is no arbitral
award yet, or if there is one, he must vacate or set aside the award
under Rule 11. The ruling of the court will be the after-after ruling
and will be a full review of such issue.
Read: Rules 3 and 11 of the Special Rules on ADR
There arises a policy of judicial restraint, such that the finding of the
court on the jurisdiction of the arbitral tribunal is at best prima facie.
The RTC has the authority to entertain a petition to declare void or
unenforceable an arbitration clause. The decision of the RTC,
however, is merely prima facie.
Q: Does the prima facie finding of the court mean that the
arbitral tribunal can still be formed?
Yes. If the court finds that the arbitration agreement is null and void,
inoperative or incapable of being performed, a party may
nevertheless commence arbitration and constitute the arbitral tribunal.
The Supreme Court has inserted in the rules remedies available to the
parties in ordinary cases.
If the local court or an arbitral body makes a finding that the
arbitration clause is really valid and binding, it is inappealable.
If the arbitral body makes a finding that the clause is invalid, the
decision is appealable to a trial court. If there is a finding that the
arbitrator is qualified, a motion for reconsideration, appeal, or a
petition under Rule 65 against such finding are all prohibited. This is
to emphasize the policy of judicial restraint insofar as arbitration

proceedings are concerned.
Principle of Judicial Restraint
Under this principle, there should be least intervention by the courts
of law insofar as arbitration proceedings are concerned. If there is an
ongoing arbitration, or even if there is a pending case where there is a
right to compel one of the parties to submit to arbitration, the court
should not interfere in the constitution of the arbitral board.
The reasoning behind this principle is that when the parties crafted
the arbitration clause, there is an implicit understanding between the
parties that an arbitral board, and not a court of justice, should resolve
their dispute. The court deems this as a valid contract the policy is to
give autonomy to the parties in choosing the manner to adjudicate
their disputes. They do not need to go to a court of justice. They can
go to an arbitration body, which is a faster and practical means of
settling their disputes.
Q: May an arbitral body grant provisional remedies?
The circular on arbitration as well as jurisprudence states that yes, an
arbitration board can be allowed to grant provisional remedies or
interim relief. The UNCITRAL Model Law on ICA also grants courts
power and jurisdiction to issue interim measures. Thus, a panel of
arbitrators can issue a writ of preliminary injunction, a writ of
preliminary attachment, they can even appoint a receiver, and issue a
protection order so that the property in dispute may be preserved.
If a court of justice grants interim relief or provisional relief that is in
conflict with the relief granted by the arbitral body, it is the relief
granted by the arbitral body that shall prevail. This emanates from the
principle of Anti-Suit Injunction and Principle of Judicial Restraint.
Arbitration Process
The complaint in the arbitration board must contain evidence in the
form of attachments and the legal brief, an argument supporting the
partys stand why his claim must be given weight and granted. The
defendant must file a response of similar composition also with legal
brief. The legal brief is similar to a memorandum (in ordinary civil
procedure, when there is an appeal, as a general rule we require filing
of a brief in court.).In short, this is a shortcut of the civil procedure.
There is no summons issued by the arbitration board, just a notice for
filing a response. Service thereof can be had by private courier.
Because of the requirement of prior submission of evidence together
with the filing of pleadings and legal brief, it is easy to appreciate
how the arbitration board can easily grasp what the issues are all
about and they can right away render an arbitral award. The body,
however, may still require the submission of additional evidence if
needed. There is a provision in the ADR rules which states that the
technical rules of evidence will not govern proceedings therein.
Confirmation, Correction or Vacation of Award
Let us say that the winning party wants the arbitral award to be
treated like a judgment of the court, he simply files with the RTC to
confirm arbitral award. He can do it at any time. If arbitral award is
confirmed by the RTC, the arbitral award ceases to be such and is

now a judgment that can be executed under Rule 39. Violation of the
judgment can cause the winning party to file motion for execution of
judgment. In arbitration, an arbitral award is final and executory,
especially if confirmed by the RTC.
The losing party can file a petition with the same RTC which has
authority to confirm the award for purpose of vacating, correcting or
modifying said award.
Q: Supposing the RTC vacates the arbitral award and sets the
award aside. Can the RTC make its own decision concerning the
merits of the decision?
Not possible. Although a court of justice can vacate, modify or
correct an arbitral award, it has no authority to render its own
judgment on the merits. The domestic arbitration law and the SC
Circular said that if the court decides to vacate the award, the court
does not have the authority to change the conclusions of law of the
arbiter. A court cannot render its own decision on a case already
submitted for arbitration. While it can vacate, modify or correct the
award, and it does so, the court should return the decision to the
arbitration panel for further study, or the parties can opt to have a
new arbitration panel constituted. The court cannot impose its own
judgment on the merits of the case. The court can review the case,
and modify, vacate or correct the award, but it cannot reverse the
findings of facts and conclusions of the arbiter.
Q: Supposing the RTC affirms the arbitral award, does the losing
party still have a recourse?
The recourse of the losing party is to appeal in the CA via Petition for
Review under Rule 43. The justification for this remedy is that in the
enumeration of quasi-judicial bodies whose decision can be reviewed
by the CA, it includes the review of an award made by arbitrators.
From Rule 43, there can be an appeal to the SC via a Petition for
Review under Rule 45.
There is a judicial review for reviewing arbitration cases. But the
reviewing courts will have limited authority concerning the manner
by which the judgment could be held. The court cannot change the
factual findings of an arbitral body. In case of a review brought to the
RTC, CA or SC involving arbitral award, there are few grounds
mentioned. We cannot raise questions of law or fact. We have to
follow the grounds mentioned in RA 876.
The grounds for justifying a court of justice in issuing an order to
vacate the award are not the usual grounds of appeal in civil cases.
The courts should see to it that causes should be founded on these
grounds for granting the vacation of an award.
Furthermore, if there is an appeal in the higher court for a petition for
review of an arbitral award, the ADR law provides that the appellant
should file a bond equal to the award given by the panel of
arbitrators. This is an exception to the rule because in ordinary court
procedure, there is no need to file an appeal bond as it has been done
away by BP 129.
International Commercial Arbitration
With respect to International Commercial Arbitration, the arbitration

may be held here in the Philippines or elsewhere.
An answer-in-intervention is filed if the intervenor wants to side with

the defendant.
The remedy of a winning party in a case decided by a foreign court,

for the enforcement thereof in the country, is to file a petition for the
enforcement of the foreign judgment. There is no need to file a
petition for recognition of a foreign judgment. Our laws do not
recognize a foreign arbitral award as a judgment of a foreign court. It
is just an arbitral award. Thus, the prevailing party in an arbitral
award cannot make use of Section 48 under Rule 39. He must avail of
another remedy provided by the SC Circular, which is a petition for
recognition and enforcement of foreign arbitral award in the RTC.
Q: Since the Rules only allow these two pleadings to be filed, does
that mean the intervenor may not file a cross-claim or a thirdparty complaint, among others?
The filing of these pleadings does not preclude the intervenor from
availing of the other pleadings allowed in a civil case (counter-claim,
cross-claim, third-party complaint, etc.)
The court can refuse to resolve a petition for recognition and

enforcement of a foreign arbitral award. This is not like the case of a
foreign judgment rendered by a foreign court where the decision is
conclusive upon our courts, subject to the last paragraph of Section
48, Rule 39. We do not apply Section 48, Rule 39 to a foreign arbitral
award as it is not a judgment rendered by a foreign court.
INTERVENTION
There are four kinds of intervention in our Rules of Court and various
circulars by the Supreme Court:
Q: Do we recognize a motion to intervene as a matter of right on

the part of the intervenor?
Yes, this is found on Rule 3, under the provision on class suits, where
any member of the class has the right to intervene as a matter of right.
The court has no option but to grant the intervention.
(2) Court-mandated intervention
In marriage-related cases under Rule 9, if the defendant does not
answer, the court has no authority to declare the defendant in default.
The court will direct the prosecutor to intervene in order to determine
that there is no collusion between parties.
(3) Forced intervention
There are forced interventions under Rule 39 and 57. These two have
to do with garnishment.
(1) Intervention under Rule 19

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

to a principal action.
there could be a final determination of the case or whether or not the

decision can be finally be executed under the provisions of Rule 39.
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
Philippines intervenes in the case. If the Republic of the Philippines,
via the Solicitor General, intervenes in a case that is already on
appeal, the SC said that the intervention of the Solicitor General must
be of national importance, since the Solicitor General intervenes only
when the case is of paramount interest to the Republic of the
Philippines.
A motion for intervention was filed while the case was pending. The
court granted the intervention. After receipt of the order allowing him
to intervene, the party filed a complaint-in-intervention against all the
parties in the case. Intervenor did not realize that the parties of the
case were settling. The parties did arrive at an amicable settlement.
The parties sought for the dismissal of the case, which was allowed.
The intervenor objected to the idea of having his petition dismissed.
The principal parties told the court that it is axiomatic in intervention
that once the principal action has been terminated, the subsidiary
action is dismissed also.
The Supreme Court held that the intervention was already allowed.
The principle that the contention of the parties was applicable only in
the instance the motion to intervene was not yet granted. In this case,
the court has already granted the motion to intervene. The interest of
intervenor was not common with the interest against the other
parties, having filed a complaint-in-intervention against both
parties. Thus, the intervention should be allowed to stand, the
standing of which, the intervention is considered a separate case
against the parties. Here, the intervention survived.
The Metrobank case involves a situation where the intervention will
survive the dismissal of the main complaint. But for the intervention
to survive, the pleading to be filed must be a complaint-inintervention against both parties to the case. This will not be
applicable if the intervention was in the form of a complaint-inintervention where the intervenor sides with the plaintiff or if the
intervention was via an answer-in-intervention.
Q: Are there any instances where intervention is prohibited?

Yes. A motion for intervention is prohibited in summary procedure
and small claims proceedings. It is also not available in the writs of
Amparo and Habeas Data.
Q: What if the motion for intervention is denied? What is the
remedy of the failed intervenor?
This is a gray area, but jurisprudence before the 1997 Rules state that
the intervenor may appeal from the denial.
Q: What if the motion for intervention is granted? May the
original parties appeal?
Although this is another gray area, the general consensus seems to be,
no, it is unappealable since the grant of the motion for intervention is
interlocutory. They may make use of Rule 65.
CALENDAR OF CASES
The Rules of Court have adopted the Civil Code principle that in
computing periods, exclude the first day and include the last.
Read: Metrobank v. CA
Also, in computing periods, include Saturdays and Sundays.
Q: Is there any exception to the rule that the intervention should

only be allowed before judgment is rendered by the trial court?
Yes. Although the rule provides a time frame for an intervenor to be
allowed to intervene, the SC has allowed intervention to take place,
even if there is already a pending appeal before the CA. The Rule is
very clear that intervention should be allowed before judgment is
rendered by the trial court. After judgment is rendered by the trial
court, intervention should no longer be allowed. But the Supreme
Court recognized the propriety of an intervention even if the case was
already pending appeal in the CA or the SC.
Q: What is pretermission of holidays?

If the last day falls on a Saturday, Sunday, or a holiday, the period
will be extended until the next working day.
In the first instance where the court will allow an intervention, even
on appeal, is when the intervenor is an indispensible party. If an
intervenor attempts to intervene if the case is already on appeal, that
will save the trial court, CA and SC from another procedural
problem. We learned that if the trial court renders a decision in a case
where an indispensable party is not impleaded, that decision will
never be final and executory. So, if on appeal, if the indispensable
party intervenes, then he should be allowed to do so, because if he is
allowed, that will cure all the procedural effects that will be present
in this particular case. That will solve the problem of whether or not
Q: What if it is a holiday in Manila but not Makati?

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

pending appeal?
The trial court still exercises jurisdiction to allow the taking of a
deposition pending appeal. It is not the appellate court that has the
authority to order the taking of a deposition pending appeal, it is still
the court of origin.
Taking of Depositions
The court has allowed the use of these modes of discovery as a
fishing expedition. Practically there is no limitation as to what
matters can be inquired into insofar as availment of discovery
measures are concerned. It is not required that the matters sought be
discovered are relevant right away to the issues presented in the case.
When the law says that the statutes of discovery allow a fishing
expedition, it does not mean to say that the statutes of discovery are
intended only to gather evidence on behalf of the interested party. He
may want to obtain information only for tactical advantage during the
course of the case. He does not have to present evidence in court
information that is gathered by him via these modes of discovery.
Q: How will this help declogging the heavy docket of the court?
It is possible that, after the parties have availed of these modes of
discovery, they will enter into a stipulation of facts.
If there is a stipulation of facts, it may be possible that there will be
no more probandum, no more trial. At the very least there will be a
shorter trial since the parties have already agreed on some of the facts
of the case.
If the plaintiff was able to gather information, let us say, from a
witness who according to the pre-trial brief of the defendant would be
a principal witness for the defendant, it does not mean that the
deposition given by such witness will be admissible in court because
of the deposition. The fact that a party has taken the deposition of a
potential witness does not mean to say that this potential witness will
now be excused from going to court to give his testimony. The giving
of deposition is different from the giving of testimony in open court.
A party may give his deposition, but it does not mean that he is
excused from testifying in court. In fact, the Rules require that if the
party has already given his deposition, he is still required to testify in
court. His deposition will not take the place of his the testimony in
court. This is because the taking of his deposition is only a discovery
measure. The deponent does not appear before the trial court to
testify. He gives his deposition not before a trial judge, but before
another person who is simply authorized to administer oaths.
Q: If the case is pending here in Manila, and there is a potential
witness whose deposition is required by the plaintiff, and this
witness is also a resident of Manila, can the plaintiff require this
potential witness to give his deposition?
Yes.
Q: What if the witness is in Cebu or Davao?
RTC Manila may not compel the witness to go to Manila even if the
interested party is willing to pay for his transportation. The reason is
that the witness may invoke his viatory right.
Where the witness resides more than one hundred (100) kilometers
from his residence to the place where he is to testify by the ordinary
course of travel, the witness may invoke that he be not allowed to
testify. This is known as invoking his viatory right.
Q: What is the remedy of the interested party if he really wishes
to obtain the deposition of the Cebu or Davao resident?
The interested party may ask any RTC in Cebu or Davao to issue a
subpoena. The interested party, therefore, and his counsel, must go to
Cebu or Davao to take the deposition of the faraway resident.
Q: What if the potential witness is in Ikebukuro, Japan?
The interested party has to make use of a commission or letters
rogatory.
Q: What is a commission?
A commission is a request to the consulate of the Philippines in the
foreign country to take the deposition of the person residing in that
foreign country.
Q: What is a letter rogatory?
It is a request issued by a local court addressed to a foreign court
requesting the latter to take the deposition of a person who is within
the territorial jurisdiction of that foreign country.
The letter rogatory will be passed to the DFA, who will in turn pass
the letter to our consulate in that foreign country, and who (meaning,
the consul) will in turn deliver the letter to the foreign court.
Q: After the potential witness has given his deposition, and later
on, this witness receives a subpoena requiring him to give
testimony in open court, can the potential witness file a motion to
quash subpoena as he had given a deposition of his testimony?
No, as the giving of a deposition cannot take the place of giving
testimony in open court. The deponent can always be compelled to
give his testimony in open court. Though his testimony may be a
repetition of his deposition, it still does not matter. He still has to give
his testimony in open court.
Q: If the witness has given testimony in open court, what is the
use of the deposition he had previously given?
Deposition previously given can be used to impeach the witness or
corroborate the witness statements in the testimony. This is the
principle of evidence called laying the predicate.
Q: What is laying the predicate?
This refers to statements, oral or documentary, made by the witness
sought to be impeached on occasions other than the trial in which he
is testifying.
Q: What are the elements of laying the predicate?
Dean Riano:
1.
2.
The alleged statements must be related to the witness

including the circumstances of the times and places and the
persons present. If the statements are in writing they must
be shown to him;
He must be asked whether he made such statements and
also to explain them if he admits making those statements
(p. 327).
Q: When is the rule on laying the predicate inapplicable?

Dean Regalado: It is inapplicable if the prior inconsistent statement
appears in a deposition of the adverse party, and not a mere witness,
that adverse party who testifies may be impeached without laying the
predicate as such prior statements are in the nature of admissions of
said adverse party (Vol. II, p. 852).
Q: What is the purpose of laying the predicate?
The purpose is to allow the witness to admit or deny the prior
statement and afford him an opportunity to explain the same.
Non-compliance with the foundational elements for this mode of
impeachment will be a ground for an objection based on improper
impeachment. Over a timely objection, extrinsic evidence of a prior
inconsistent statement without the required foundation is not
admissible.
Q: Is it possible that the deposition can be the testimony of the
witness?
It is possible.
Where the witness resides more than one hundred (100) kilometers
from his residence to the place where he is to testify by the ordinary
course of travel, the witness may invoke that he be not allowed to
testify. This is known as invoking his viatory right. The witness can
ask the court that he be excused from giving his testimony in open
court. Even if the court issues a subpoena, the witness may ignore
such subpoena. He cannot be cited in contempt for disobedience. The
remedy of the court is to allow the taking of the deposition, and the
court can then consider the deposition taken as his testimony. In other
words, the fact that a deposition has already been taken from a person
does not mean that the said person will be excused thereafter from
going to court in order to be a witness. That is possible only in
exceptional cases mentioned in Rules, one of them being when the
witness invokes his viatory right. Or even if there is no viatory right,
if the witness/deponent is physically incapable of going to court in
order to testify, or is dead, the court can consider the deposition
previously given as his testimony in court.
Q: What does ordinary course of travel mean?
It means land transportation. Thus, even if Cebu is 45 minutes away
from Manila, the RTC in Manila may not bind a person in Cebu with
a subpoena.
Q: Aside from invoking his viatory right, what other reasons may
a person quash a subpoena?
He may quash the subpoena if it is not properly issued or served upon
the witness.
For example, in subpoena duces tecum, if the books or documents are

totally irrelevant to the issue, or it would involve trade secrets, it may
be quashed by the interested party.
If it is subpoena ad testificandum, the person may quash the subpoena
if the interested party did not pay the formers transportation fee or
witness fee. It is a good ground for the quashal of the subpoena.
Q: How do we take the deposition of a witness?
There are two ways. It may be an oral examination, or upon written
interrogatories.
The procedure between the two is practically the same, except that in
deposition upon oral examination, the deponent is personally present,
the lawyer for the plaintiff is personally present, and the lawyer for
the defendant is also personally present. They will conduct a hearing
of sorts; there will be direct examination, cross, re-direct, re-cross.
Everything is verbal and is presented before the presiding officer of
that proceeding.
If it is deposition upon written interrogatories, the lawyers do not
have to be personally present. They just have to give a questionnaire
in writing. These papers will be sent to the presiding officer who will
read the questions and jot down the answers given by the deponent.
Q: May the presiding officer rule on objections?
No. Even if the presiding officer is a judge, he cannot rule on the
objections. The presiding officer is unaware of what the issues really
are. This is one of the reasons why depositions, as a general rule, are
not equivalent to testimony in open court. At least in testimony in
open court, the objections will be ruled by the judged.
Q: What happens if there really is a objection during the taking
of depositions? Do we do away with objections?
No. The presiding officer, however, will simply say, The objection
is noted but the witness should still answer the question.
Q: What if the deponent refuses to answer?
The interested party has to go back to the court of origin and ask for
the issuance of an order directing the witness to give an answer for
that particular question.
Q: May the deponent or any of the interested parties file a motion
to terminate or limit the examination?
Yes. If the witness or any of the parties can convince the court that
the taking of deposition is designed to primarily annoy or embarrass
the witness, they may ask the court of origin to issue an order to
terminate the taking of the deposition.
Q: What happens if the deposition is over?
The presiding officer will send the transcript of the proceedings to the
court of origin under seal.
Q: Will this transcript be considered evidence?
No. In order that the transcript will be considered as evidence, it
should be submitted, it should be offered as documentary evidence by
anyone of the interested parties. And it is during this offer of the
transcript as evidence when the trial court can rule on the objections
that were noted by the presiding officer. This time the trial court will
have the authority to rule on the objections because the trial court is
the one that is actually trying the case.
Production and Inspection of Documents and Things
Q: What is the difference between a subpoena duces tecum and
this mode of discovery?
First, in a subpoena duces tecum, the process may be directed either
to a party to the case or a plain witness to the case. When it comes to
production of documents as a mode of discovery, it could only be
addressed to a party.
Second, they differ in purpose. In a subpoena duces tecum, there is an
assumption that the interested party will introduce these documents
as evidence. On the other hand, in production of documents, the only
purpose is for discovery.
Third, the scope of production and inspection of documents and
things are broader. It may involve real estate, it may involve entry
into or inspection of land. Since land is incapable of manual delivery,
it cannot be subject to a subpoena duces tecum.
Q: What if the party refuses to obey the order of production and
inspection of documents?
Dean Albano: He will be cited in contempt. A person guilty of
disobedience of or resistance to a lawful order of a court or commits
any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice may be punished for
indirect contempt.
TRIAL
Q: Can a trial court decide a case properly and validly if the
court does not conduct a pre-trial or a trial for that matter?
Yes. Although pre-trial is mandatory and though trial must be had
due to triable issues, the court can just skip these stages and render
judgment.
For example, in a judgment by default, there is no trial and no pretrial. Under Rule 9, if the court declares defendant in default since he
did not file an answer, one of the options is to immediately render a
judgment without requiring plaintiff to present his evidence ex parte.
In effect the trial court has skipped from the filing of pleadings to the
judgment phase immediately.
Q: Supposedly the defendant filed his answer, can we still do
away with the trial?
Yes, we follow the special kinds of judgments whenever an answer is
filed as found under the rules.
There can be a judgment on the pleadings if the answer does not
raise any issue at all, or even admits the allegations in the pleadings.
There is no pre-trial and trial in this case. The plaintiff can move right
away for a judgment on the pleadings.
There is also judgment based upon a compromise. If the parties

entered into a compromise agreement during pre-trial, and the court
concurs with the validity of the compromise agreement, the court will
render a judgment based upon compromise without going into trial.
In summary judgments, there is a trial but it is not a full-blown trial.
Furthermore, under demurrer to evidence, although there is a trial, it
is not a full-blown trial. Since demurrer to evidence occurs only after
the plaintiff has presented his evidence, and before the defendant
presented his, only a half of the trial contemplated under Rule 30 has
occurred.
But in instances where there are genuine triable issues, and the parties
cannot agree to a stipulation of facts, the court will have to conduct a
trial. The parties are given the opportunity to make use of evidentiary
rules. There is no offer of evidence during pre-trial. At most, if there
is evidence presented during pre-trial, it is only for marking them as
exhibits. In a pre-trial brief, the parties just identify the documentary
evidence, the real evidence and testimonial evidence in the form of
affidavits.
The pre-trial order shall govern the trial of the case. Only the issues
specified in the pre-trial order will be proven in trial. But this Rule is
not strict because we allow amendment to conform to evidence. If we
follow strictly the Rules and we do not allow amendment to conform
to evidence, then only the issues specified in the pre-trial order will
be tried.
Q: If there are genuine triable issues, can the court still do away
with the trial?
Yes. The parties can help the court avoid a trial if the parties
stipulates on facts that are in dispute. If the parties submit to the court
complete stipulation of facts, and the court need only review the law
applicable (questions of law), then the court can render a decision on
the case without conducting a trial. Trial is only necessary if there are
factual issues. The courts are presumed to know the law applicable to
a given state of facts. The trial contemplated under Rule 30 is a trial
of facts in dispute. But if the parties decide that these facts are no
longer disputed, and they manifested to the court that they agree fully
to the existence of these facts, then the trial may be avoided. The next
stage will just be the rendition of judgment.
Q: Are verbal stipulation of facts allowed?
Yes. In civil procedure, although there is a section in Rule 30 which
provides for written stipulation on facts, the court liberally allows
verbal stipulations. For example, during the pre-trial conference,
everything stipulated upon may be done verbally. But since the pretrial conference is part of the court proceedings, everything is
recorded by the court stenographer. The stenographer will transcribe
the records and what the court will readily decide that there has been
a stipulation of facts between the parties.
Q: What is the order of trial?
The order of trial in Rule 30 is the general rule. The order of trial
follows the sequence of argumentation of pleadings. The affirmative
side, the plaintiff, will first present his side, then the negative side,
the defendant, will set forth his defenses. Once the defendant is done
presenting his evidence, then the court may allow parties to submit
rebuttal evidence or even sur-rebuttal evidence. But if the court does
not allow presentation of rebuttal evidence or sur-rebuttal evidence,
the trial will end after the defendant has rest his case.
Q: Can the court terminate the case after the defendant rests?
Rule 30 gives an option to the judge to require the parties to submit
their respective memoranda to help the court in arriving at a decision.
Q: Does failure to submit memoranda when required to do so
result in dismissal of the case?
Yes, under Rule 17, for failure to obey lawful court orders.
Q: May the order of trial be reversed?
The order of trial can be changed. If the court requires defendant to
present evidence ahead, then there is a reverse order of trial. If the
defendant set up affirmative defenses like for example, payment, then
the order of trial is reversed. Under our Rules, if the defendant sets up
only an affirmative defense, there is no negative defense, then that
constitutes a hypothetical admission of the allegations contained in
the complaint.
If the defendant hypothetically admits, for purposes of trial, that he
incurred a loan, then there really is no need for the plaintiff to prove
the existence of the loan. It is now the duty of the defendant to show
that the loan had been paid, so the order of trial is changed. Thus, the
defendant is allowed to present his evidence first. Thereafter, if the
plaintiff does not find it necessary to file rebuttal evidence, the court
will consider the case as submitted for decision.
Q: Who will receive the evidence? Is it always the judge?
Generally, when a trial is conducted by the court, it is the judge
appointed in that sala that should sit in the proceedings. But there are
certain instances when the judge may excuse himself from presiding
the case.
The first one is when the parties so agree; second, when the parties
appoints a commissioner for the presentation of evidence; and third,
when the branch clerk of court, upon delegation of the judge, may sit
in ex parte presentation of evidence. However, in these instances, it is
still the judge who will have to write and sign the decision.
Q: When may the branch clerk of court accept evidence in lieu of
the judge?
1. In default proceedings;
2. In ex parte proceedings; and
3. If the parties agree that it is the branch clerk of court who
should preside when the evidence is presented by them.
Consolidation of Cases
Q: Distinguish consolidation of cases from severance.
A:
Consolidation
Severance
Involves several actions having

a common question of law or
fact which may be jointly tried
(Sec.1, Rule 31).
Contemplates a single action

having a number of claims,
counterclaims, cross-claims,
third-party complaints, or
issues which may be separately
tried.
Q: When is consolidation proper?

1. There are two or more cases;
2. These cases have common questions of law or fact; and
3. They are pending in the same court.
Q: What are the ways of consolidating cases?
A:
Recasting the Cases
Reshaping of the
cases by amending
the pleading,
dismissing some
cases and retaining
only one case. There
must be joinder of
causes of action and
of parties.
Consolidation
Proper
Test-Case
Method
It is a joint trial with

joint decision, the
cases retaining their
original docket
numbers.
By hearing only
the principal case
and suspending the
hearing on the
other cases until
judgment has been
rendered in the
principal case. The
cases retain their
original docket
numbers (Riano,
Civil Procedure, p.
96, 2009 ed.).
Q: What is the rule on consolidation of cases?

As a general rule, consolidation is discretionary upon the court to
avoid multiplicity of suits, guard against oppression or abuse, prevent
delay, clear congested dockets, and simplify the work of the trial
court and save unnecessary costs and expenses.
As an exception, consolidation becomes a matter of duty:
1. If two or more cases are pending before the same judge; or
2. If filed with the different branches of the same RTC and
one of such cases has not been partially tried.
A consolidated case may be appealed separately.
Q: May there be consolidation if the cases are all pending in the
same court (like the Regional Trial Court of Cebu) but different
salas (Branches 1, 2, and 3)?
In these cases, the internal rules of RTCs will be followed. The judge
in one branch cannot issue an order directing the others to agree to
the consolidation of cases, as there is a need to coordinate with each
branch first. One judge cannot simply issue an order to be obeyed by
another judge of the same level. The internal rules of the RTC state
that if there is a consolidation consented by all the judges, it will be
tried by the sala with the lowest docket number. So it is possible so
long as there is consent of all the judges.
Q: What if the cases are pending in different courts?
If one case is in RTC Manila, and the other is in RTC Bulacan, then
the Supreme Court may order consolidation. Only the Supreme Court
has the power to consolidate these cases. Even if the parties agree, or
the judges agree, they cannot consolidate the cases on their own.
The opposite of consolidation is severance of several issues contained
in one complaint. A trial court is given the authority to tell the parties
that the trial to be conducted is only for the purpose of hearing a third
party complaint, a counterclaim, or a cross-claim, depending upon the
discretion of the court
Trial by Commissioners
The language used in the Rule is not mandatory. This is discretionary
on the court.
There are, however, exceptional circumstances under the Rules where
there is mandatory appointment of commissioners. These are:
1. In expropriation proceedings, for determining the value of
just compensation;
2. In partition cases, if there is a need to determine how the
property will be divided between the co-owners;
3. Under Rule 39, Sections 36 and 37, when the judgment was
not executed fully or no execution was had; and
4. In the settlement of estates of deceased persons, money
claims have to be submitted to the settlement court within
the statute of non-claims, and have to be responded to by
the executor or administrator. If administrator of the estate
contests the validity of these claims, then these claims will
become contested claims, and the court may appoint a
commissioner to determine these contested claims.
Q: What is the statute of non-claims?
It is a period fixed by the courts for the filing of claims against the
estate for examination and allowance.
Q: When should claims be filed?
As a general rule, within the time fixed in the notice which shall not
be more than 12 months nor less than 6 months after the date of the
first publication. Such period once fixed by the court is mandatory.
Otherwise, the claims are barred forever.
to file his claim within the time fixed by the court in the notice, then
the claim is barred forever. However, both statute of non-claims and
statute of limitations must concur in order for a creditor to collect.
Q: What is the difference between trial by commissioners and the
delegation to the clerk of court under Rule 30?
The power of a commissioner is much broader than the clerk of court.
Furthermore, the clerk of court has to be a lawyer. A commissioner
need not be one. A commissioner must in fact have a profession that
corresponds to the issue. If the issue calls for knowledge on mining,
for example, the commissioner must be at least a mining engineer or
a geologist.
A commissioner has the power to rule on objections while the clerk
of court cannot.
Finally, a commissioner may be appointed to try issues that arise
even after the judgment has become final and executory. This is
possible in Rule 39. Since the clerk of court is limited to reception to
evidence, then this prerogative does not pertain to them.
JUDGMENTS
Under Rule 36, Section 1, judgment or final orders should have these
four formal requisites in order to be valid:
3. It must be written personally and directly by the judge;
4. It must be signed by the judge;
5. Must be given to the branch clerk of court; and
6. Should include basis from factual findings and conclusions
of law
Q: What are the other requirements of a valid judgment?
1. The court must have authority to hear and determine the
case;
2. The court must obtain jurisdiction over the parties or the
res;
3. The parties must have been given an opportunity to adduce
evidence; and
4. The evidence must have been considered by the tribunal in
deciding the case.
Belated claims, however, are an exception.

Q: What is the rule on belated claims?
Belated claims may be filed even beyond the period fixed by the
court:
1. On application of a creditor who has failed to file his claim
within the time previously limited, at any time before an
order of distribution is entered, the court may, for just
causes, allow such claim to be filed not exceeding 1 month
from the order allowing belated claims; or
2. Where the estate filed a claim against the creditor or
claimant who failed to present his claim against the estate
within the period fixed by the probate court for the
settlement of such claims, the creditor will be allowed to
set up the same as a counterclaim to the action filed by the
estate against him.
Do not forget the ruling in Shimizu v. Magsalin. We discussed this in

Rule 17. A final order of dismissal under Rule 17, which is generally
a dismissal with prejudice, is void if there is no explanation how and
why the case was dismissed by failure to prosecute.
Also, you should take note; these requisites under Rule 30, Section 1
apply only to judgments or final orders. It does not apply if the order
is not with prejudice.
Q: A case is pending in RTC Davao under Judge A. He presided
during the presentation of evidence by both parties. After
presentation of evidence, Judge A retires. Who will decide the
case?
The successor judge takes over and decides the case.
Statute of non-claims supersedes the Statute of Limitations insofar as

the debts of deceased persons are concerned because if a creditor fails
If the former judge makes the decision and turned it over to the clerk
of court, who then promulgates it and sends the said decision by mail,
that judgment is void.
Q: What if Judge A is transferred from RTC Davao to RTC
Manila, can he pen the decision and send it to his former sala?
Under the old Judiciary Act, that is a valid judgment. If the judge
who tried the case is subsequently transferred, he retains authority to
try the case and render a valid judgment thereon.
Q: Do we still follow the old Judiciary Act in this regard?
Yes. It is still in force insofar as its provisions are not in conflict with
BP 129. Since this situation is not covered by BP 129, then it is still a
valid provision.
Q: What if Judge A is promoted to become a Justice of the CA,
can he validly pen the judgment?
No. He can no longer decide the case. It is only when the trial judge
who has heard the case is given a new assignment to a coordinate
court shall the Judiciary Act of 1948 will give him authority to render
a valid decision.
Q: Is it possible to have a final judgment even if there is strictly
no adjudication on the merits?
Yes. The two-dismissal rule is with prejudice even if there is strictly
no adjudication on the merits. The same with nolle prosequi; the fact
that the plaintiff did not present his evidence in chief; the fact that the
party disobeyed the court; or even in pre-trial, where the plaintiff did
not appear during the conference. These are several instances where
there is a dismissal with prejudice even if strictly speaking the merits
of the case were not adjudicated by the court.
Entry of Judgment
We have a new concept of entry of judgment. Under Rule 36, entry
of judgment takes place by operation of law. Even if there is no
physical or actual entry of
judgment, under Rule 36, the
judgment is deemed entered upon the expiration of the period to
appeal if no appeal is perfected. Hence, if no appeal is perfected,
right after the expiration of the 15/30-day period as the case may be,
that judgment is AUTOMATICALLY entered, and becomes final
and executory. Even if the clerk of court enters that in the records a
year later, it is not the physical entry on the record by the clerk of
court that will reckon the entry of judgment.
Q: Why do we consider entry of judgment as a very important
procedural principle?
In Rule 39, if a judgment has become final and executory, then the
court has the ministerial duty to grant a motion for execution and to
order execution of the judgment. In Rule 39 also, there is a period
fixed for that judgment to be executed. The first five years from entry
is the period to execute the judgment via a motion, and the second 5year period is for the revival of the judgment. We are more interested
in the first 5-year period within which to execute the judgment
through a motion.
If we reckon period under Rule 39, insofar as the first 5-year period is
concerned, it is 5 years from entry of judgment. This is why the
principle of entry of judgment is very important in implementing the

succeeding procedural principles relating to execution of judgment,
and also in determining if a particular remedy has been availed of on
time.
Let us take another example aside from Rule 39. If you recall, relief
of judgments has two periods to be taken into account; 60 days from
notice and 6 months from ENTRY of judgment.
Q: What are those which are not considered as decisions?
1. Resolutions of the Supreme Court denying the petitions to
review decisions of Court of Appeals.
2. Minute Resolutions if issued by SC denying or dismissing
a petition or a motion for reconsideration for lack of merit,
it is understood that the challenged decision or order is
deemed sustained.
3. Interlocutory Orders those that determine incidental
matters that do not touch on the merits of the case or put an
end to the proceedings, e.g. Order denying a motion to
dismiss, granting an extension of time or authorizing an
amendment.
Dean Albano: Minute resolutions are considered as res judicata with
respect to the same subject matter and the same issues concerning the
same parties. It is not binding precedent if it involves other parties or
another subject matter (citing Nationwide Security and Allied
Services v. Valderama).
Q: What is a judgment without trial?
The theory of a summary judgment is that although an answer may
on its face appear to tender issuesrequiring trialyet if it is
demonstrated by affidavits, depositions, or admissions that those
issues are not genuine, but sham or fictitious, the court is justified in
dispensing with the trial and rendering summary judgment for the
plaintiff. The court is expected to act chiefly on the basis of the
affidavits, depositions, admissions submitted by the movants, and
those of the other party in opposition thereto. The hearing
contemplated (with 10-day notice) is for the purpose of determining
whether the issues are genuine or not, not to receive evidence on the
issues set up in the pleadings. A hearing is not thus de rigueur. The
matter may be resolved, and usually is, on the basis of affidavits,
depositions, admissions. Under the circumstances of the case, a
hearing would serve no purpose, and clearly unnecessary. The
summary judgment is justified, considering the absence of opposing
affidavits to contradict the affidavits.
Interlocutory Judgments
Other sections of Rule 36 give us other classifications of judgment.
Q: What is a separate judgment?
It is a judgment rendered disposing of a claim among several others
presented in a case, after a determination of the issues material to a
particular claim and all counterclaims arising out of the transaction or
occurrence which is the subject matter of said claim.
Q: What are several judgments?
These are rendered by a court against one or more defendants and not
against all of them, leaving the action to proceed against the others.
The need for this classification of judgment stems from the principle
of civil actions that encourage joinder of courses of action. If there
are several causes of action embodied in a complaint, it is proper for
the court after the trial of a particular cause of action, that it
should render a judgment for that particular cause of action. If
there is joinder of parties, the court has also the prerogative to
render a separate decision concerning a particular party if his
claim has already been terminated when the presentation of
evidence on his claim is finished.
These are decisions that are exceptional, in the sense that we expect a
trial court to make only one judgment in one particular case. It is
unusual for the court to render several decisions involving one
particular case. That is why, even if Rule 36 authorizes the court to
promulgate separate or several decisions, if you will go to Rule 41,
Appeal From The RTCs, in Section 2, it is mentioned that if the
court renders separate or several judgments, although we call
these as judgments, they are not appealable.
These parties will have to wait until the court finally decides the case
in its entirety, unless the court allows the appeal to continue. Usually,
the court does not allow it, because that will lead to a situation where
several appeals emanate from one case, which is also frowned upon
by the SC. There should only be one decision in a particular case, and
there should be one appeal if a party decides to appeal.
This is also the reason why these decisions are sometimes referred to
as interlocutory judgments, because like interlocutory orders they
cannot be appealed by express provision of Rule 41, although they
can be validly rendered by the court.
So if you come across that term in your examinations, interlocutory
judgments, and you find the use of interlocutory and judgment to
be in conflict with one another, you apply the following view: A
judgment, technically, cannot be interlocutory. It is an adjudication of
the merits. If you characterize a judgment as interlocutory, it is only
to emphasize that the judgment, although it resolves the merits of the
case, cannot be appealed without the permission of the trial judge.
Q: May the plaintiff raise on certiorari under Rule 65 the
granting of a motion to dismiss of one defendant, if there are two
or more of them defendants?
Yes. Since a several judgment is unappealable (unless it is allowed by
the court), under Rule 41 it may be subject to Rule 65.
OTHER KINDS OF JUDGMENTS

Q: What are the different kinds of judgment under the Rules?
1. Judgment based upon a compromise
One conferred by the court on the basis of a compromise
agreement entered into between the parties. This is known
also as a judgment by consent.
2.
Judgment by confession
It is one rendered by the court when a party expressly

agrees to the other partys claim or acknowledges the
validity of the claim against him. Do not confuse this with
confession of judgment. This is also known as a judgment
relicta verificationem, cognovit actionem, or even cognovit
actionem relictu verificetione.
3.
Judgment upon the merits

It is one that is rendered after consideration of the evidence
submitted by the parties during the trial of the case.
4.
Clarificatory judgment
It is rendered to clarify an ambiguous judgment or one
difficult to comply with.
5.
Judgment nunc pro tunc (lit. now for then)

A judgment intended to enter into the record the acts which
had already been done, but which do not appear in the
records. Its only function is to record some act of the court
which was done at a former time, but which was not then
recorded, in order to make the record speak the truth,
without any changes in substance or any material respect.
6.
Judgment sin perjuicio (lit. without prejudice)

A judgment without a statement of the facts in support of
its conclusion. This is not allowed.
7.
Judgment by default
Rendered by the court following a default order or after it
received, ex parte, plaintiffs evidence.
8.
Judgment on the pleadings

Proper when an answer fails to tender an issue because of a
general or insufficient denial of the material allegations of
the complaint or when the answer admits the material
allegations of the adverse party's pleading.
9.
Summary judgment
One granted by the court for the prompt disposition of civil
actions wherein it clearly appears that there are no genuine
issue or controversy as to any material fact.
10. Several judgment

It is one rendered by a court against one or more defendants
and not against all of them, leaving the action to proceed
against the others.
11. Separate judgment
It is one rendered disposing of a claim among several
others presented in a case, after a determination of the
issues material to a particular claim and all counterclaims
arising out of the transaction or occurrence which is the
subject matter of said claim.
12. Special judgment
One which can only be complied with by the judgment
obligor because of his personal qualifications or
circumstances or one that requires the performance of an
act other than:
a. Payment of money; and
b. Sale of real and personal property.
13. Judgment for specific acts
Applicable in cases of:

a) Conveyance, delivery of deeds, or other specific
acts, vesting title;
b) Sale of real or personal property;
c) Delivery or restitution of real property;
d) Removal of improvements on property subject of
execution; or
e) Delivery of personal property.
Under the Rules, if the defendants motion for judgment on demurrer

to evidence is denied, it is the duty of the defendant to present now
his own evidence. So he has two remedies he may either present his
own evidence, or make use of Rule 65. But remember, Rule 65 may
be used only if there is grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the court. It cannot be used willynilly, otherwise there will be serious consequences.
14. Judgment on demurrer to evidence

A judgment rendered by the court dismissing a case upon
motion of the defendant, made after plaintiff has rested his
case, on the ground that upon the facts presented by the
plaintiff and the law on the matter, plaintiff has not shown
any right to relief.
Q: Will the defendant present evidence with the motion for

judgment on demurrer to evidence?
No.
15. Conditional judgment

It is one the effectivity of which depends upon the
occurrence or non-occurrence of an event.
16. Final judgment
One which disposes of the whole subject matter or
terminates the particular proceedings or action, leaving
nothing to be done by the court but to enforce by execution
what has been determined.
17. Memorandum decision
One in which the appellate court may adopt by reference,
the findings of facts and conclusions of law contained in
the decision appealed from. It is found in Rule 51.
Demurrer to Evidence in a Civil and Criminal Case

Remember the rules of demurrer to evidence in civil procedure and
always compare them to demurrer in a criminal case. These topics are
usually involved in Bar Examinations.
In a civil case, if a defendant files a motion for the dismissal of the
complaint based on insufficiency of evidence, and that motion is
denied, what the defendant will do is to go ahead with the trial and
present his evidence. After the defendant has rested, the court will
render the decision. The decision is just an ordinary judgment on the
merits of the case under Rule 36. It is no longer a special type of a
judgment.
But if the trial court grants the motion, it means the court will order
the dismissal of the case. The dismissal is a judgment on the merits of
the case. The winning party is the defendant. The plaintiff can appeal
the dismissal.
DEMURRER TO EVIDENCE IN CIVIL CASES

In a judgment on demurrer to evidence, only the plaintiff presented
evidence. The judgment of dismissal is based on the insufficiency of
evidence to support the claim. This is the only ground.
When the plaintiff rests his case, the defendant, instead of presenting
his evidence, files a Motion for Judgment on Demurrer to Evidence.
The defendant asks the court for an order to dismiss the case based on
the ground that the plaintiff failed to show right of relief, that there is
insufficiency of the plaintiffs evidence. What the defendant is saying
is that there is no preponderance of evidence to support the plaintiffs
claim.
The court will have to resolve the motion. The court will either grant
or deny the motion. If the court denies the motion, the court in effect
tells the defendant that the plaintiffs evidence is adequate. What the
defendant has to do now is not to appeal, because the denial of a
motion for judgment on demurrer to evidence is interlocutory.
No appeal is allowed.
Q: Can the defendant resort to Rule 65 on the ground that the
court has gravely abused its discretion amounting to lack or
excess of jurisdiction?
The defendant can try, but he should prove that there really is grave
abuse of discretion.
Usually, if the trial court is the RTC, it will be brought to the CA. So,
it is brought to the CA. The CA will have to review the case based
solely on the records transferred to it by the RTC. The records will
show that the defendant has not presented any evidence at all. Right
away, the defendant will be at a disadvantage when the case is
reviewed by an appellate court. The court will review only the
evidence presented by the plaintiff. There is a great possibility that
the CA will not agree with the trial court, and will reverse the
dismissal of the case.
If the CA reverses the order of dismissal by demurrer to evidence and
the CA tells the parties that the evidence submitted is adequate, CA
simply render its own decision on the merits of the case, relying
solely on the evidence submitted by the plaintiff.
The defendant cannot ask the CA to present his evidence. It is not
proper since the evidence should have been presented in the trial
court. The CA, as a reviewing court, will only rely on the records
transmitted to it by the RTC.
Q: May the defendant argue that under BP 129, the CA is
expressly authorized to receive evidence?
No. The defendant cannot argue that the CA is authorized to receive
evidence under the provisions of BP 129. Under BP 129, the CA is
allowed to receive evidence if it acts in exercise of its original
jurisdiction, which is not the case in this instance as the CA is acting
under its appellate jurisdiction.
Although BP 129 also confers authority on the CA to receive

evidence even in appeal of cases from lower courts, the conferment
of authority while acting as an appellate court is only on one instance,
only on grant of motion for new trial based on newly-discovered
evidence. It will not apply to demurrer to evidence. The evidence the
defendant will present is hardly NDE as the defendant had these
pieces of evidence during the trial in the RTC. This is why in
demurrer to evidence in civil cases, the defendant waives his right to
present his evidence when the trial court grants his motion and the
case is dismissed but the dismissal is reversed on appeal.
Where an answer fails to tender an issue, or otherwise admits the

material allegations of the adverse partys pleading, the court may, on
motion of that party, direct judgment on such pleading.
For example, if the defendant answered in this wise, I admit I owe
the plaintiff. I admit I have not paid him, it is clear that there is no
issue. The defendant admits the allegations in the complaint.
Now we compare this to demurrer to evidence present in a criminal

case.
Another example, if the defendant answered: I deny that I owe the

plaintiff the loan alleged to have been obtained by me. I deny the fact
that I am liable to pay any obligation in favor of the plaintiff. There
is still judicial admission and therefore no probanda because these are
general, not specific, denials. The denial must be specific or else it is
not a denial at all.
After the prosecution has rested its case, the accused can also file a
motion for judgment on demurrer to evidence. But there is one
requirement in a criminal case not found in a civil case: the accused
should get leave of court if the accused wants to preserve his right to
present evidence once the motion is denied by the trial court.
Q: What if the defendant did not answer?

If the defendant did not answer, judgment based on the pleadings is
not proper. The appropriate judgment, upon proper prior process such
as a motion to declare the defendant in default, should be a judgment
by default.
If the accused fails to get leave of court before filing the motion, and
the motion is subsequently denied, then the accused has waived his
right to present his evidence in the trial court. The trial court will not
allow the accused to present his evidence, and the next phase will be
a judgment of conviction, meaning that the evidence presented by the
prosecution is adequate to convict the accused, that the evidence has
met the quantum of evidence, i.e., proof beyond reasonable doubt. No
leave of court is required in demurrer to evidence in civil cases.
Q: May the initiative to render this kind of judgment be done

motu proprio?
No. The judgment must be on motion of the claimant. It cannot be
rendered by the court motu propio.
In a criminal case, demurrer to evidence can be initiated either by the

accused or the court itself motu propio. The idea of demurrer to
evidence can come from the court. So if the prosecution has rested,
the court can suggest to the accused to file a motion for judgment on
demurrer to evidence. If the idea comes from the court, the accused
should file because it is the court that already encourages you to file
the motion. That means to say, even to the court, the prosecutions
evidence failed to meet the quantum of evidence required to convict
the accused. In a civil case, the court cannot initiate the idea to have
demurrer to evidence. It should come from the mind of the defendant
himself.
In a criminal case, if the demurrer to evidence is granted by the court,
the information will be dismissed and the dismissal is tantamount to
acquittal of the accused. The prosecution may no longer appeal, nor
Rule 65 availing, because double jeopardy has set in.
Take note, to clarify, there can be no appeal as to the dismissal of the
information, but there can be an appeal as to the civil aspect of the
criminal case. In a criminal case, if the trial court dismissed the civil
aspect, the plaintiff may appeal the dismissal as a general rule.
JUDGMENT ON THE PLEADINGS
Q: What are cases where judgment based on pleadings will not

apply?
A:
1. Actions for the declaration of nullity of a marriage
2. Actions for annulment of marriage
3. Actions for legal separation
In the above cases, the material facts alleged in the complaint shall
always be proved
Q: The defendant filed a motion for judgment of the pleadings,
although the answer has no counterclaim. What will be the effect
thereof?
SC held that if the movant defendant is asking for judgment on the
pleadings, the defendant is deemed to be admitting all the allegations
in the complaint.
In judgment on the pleadings, there is an answer filed by the
defendant. The answer, however, either admits the allegations in the
complaint; or, even if the answer in form denies the allegations in the
complaint, the denial is not specific as required in the Rules. We are
made familiar again with the principle that when a general denial is
made, that is deemed to be an admission, which is the reason why a
court need not conduct a pre-trial nor a trial.
If the plaintiff receives a copy of the answer which does not set up
any defenses at all, but instead admits all the allegations in the
complaint, what the plaintiff needs to do is to file a motion for a
Q: When is there a judgment based on pleadings?
In other words, if we follow the inherent nature of a judgment of the

pleadings, the movant should be the plaintiff in a complaint or a
permissive counterclaim or cross-claim. There should be a motion
initiated by the plaintiff asking the court for a judgment on the
pleadings.
Q: Is there any prohibition against the defendant who has filed
an answer to also move for judgment on the pleadings?
There is really nothing said in the Rules that prohibit a defendant,
upon filing of his answer, to file a motion for a judgment on the
pleadings. But it seems to be a crazy idea for the defendant himself to
move for a judgment on the pleadings.
In a case brought to the SC where it was the defendant himself who
moved for a judgment on the pleadings, although the answer was
purely an answer without any counterclaim, cross-claim or third party
complaint, but containing several meritorious defenses, the SC ruled
that if a defendant is a movant for a judgment on the pleadings, the
defendant is deemed to have admitted the allegations contained in the
complaint. So it is very risky for a defendant to be a movant for a
judgment on the pleadings. Even if his answer is properly crafted,
even if there is a specific denial, if it was the defendant that filed a
motion for a judgment on the pleadings, the defendant will be
considered to have admitted all the allegations in the complaint. So,
the court will render a judgment in favor of the plaintiff.
A judgment on the pleadings is also a judgment on the merits. It
should comply with the essentials of a valid judgment under Rule 36.
Q: What if the defendant filed a Motion to Dismiss but his
defenses are defect in the certificate of non-forum shopping, no
legal to capacity to sue, and fortuitous event? Is judgment on the
pleadings proper?
Dean Albano: Yes. The defendant admitted having entered into a
contract and that it was still unpaid. His answer fails to tender an
issue or otherwise admits the material allegation of the adverse
partys pleading (citing Asian Construction and Dev. Corp. v.
Sannaedle Co., Ltd.).
SUMMARY JUDGMENTS
Q: What is a summary judgment?
A summary judgment or accelerated judgment is a procedural
technique to promptly dispose of cases where the facts appear
undisputed and certain from the pleadings, depositions, admissions
and affidavits on record, of for weeding out sham claims or defenses
at an early stage of the litigation to avoid the expense and loss of time
involved in a trial. Its object is to separate what is formal or
pretended denial or averment from what is genuine and substantial so
that only the latter may subject a party-in-interest to the burden of
trial. Moreover, said summary judgment must be premised on the
absence of any other triable genuine issues of fact. Otherwise, the
movants cannot be allowed to obtain immediate relief. A genuine
issue is such issue of fact which requires presentation of evidence as
distinguished from a sham, fictitious, contrived or false claim.
Q: What are the requisites of summary judgments?

1. There must be no genuine issue as to any material fact,
except for the amount of damages; and
2. The party presenting the motion for summary judgment
must be entitled to a judgment as a matter of law.
Q: When is a claimant allowed to file for summary judgment?
A party seeking to recover upon a claim, counterclaim, or cross-claim
or to obtain a declaratory relief may, at any time after the pleading in
answer thereto has been served, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor upon
all or any part thereof.
Q: When is a defendant allowed to file for summary judgment?
A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory relief is sought may, at any time, move with
supporting affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof.
Q: There is a difference between the claimant and the defendant
in summary judgment because the defendant may move for
summary judgment at any time. Since a summary judgment
assumes that there is an issue, albeit not genuine, what could be
the issue if there is yet no answer?
If you take a look at Section 11, Rule 8, unliquidated damages shall
not be deemed admitted even if not specifically denied. Therefore,
even if there is no answer, unliquidated damages is automatically an
issue and may be subject to summary judgment.
Q: What is the difference between a judgment on the pleadings
and a summary judgment?
If you compare the provisions of a judgment on the pleadings to that
of a summary judgment as contained in Rule 34, we will immediately
notice that there is a section which talks about a summary judgment
by plaintiff and a summary judgment by defendant. Unlike in
judgment on the pleadings, where we expect the movant to be a
plaintiff, in a summary judgment, the law gives either parties the
option to file a motion for summary judgment. These motions are
expressly recognized in the rules.
In a summary judgment, unlike a judgment on the pleadings, the
court will conduct a summary hearing. In judgment on the pleadings,
the court will not conduct a hearing at all, as the court will simply
rely on the contents of the complaint and the answer. Since there is an
issue raised by the defendant in summary judgment, the court will
need to conduct a summary hearing in order to determine whether
that is a sham issue or a genuine issue. There is need by the parties to
present evidence in order to support their respective issues. The
parties could present affidavits, depositions, or any other document
that the parties may present. What the court will not allow is a fullblown hearing on the matter as to whether the issue is genuine or not.
This issue will have to be proven only by documentary evidence,
affidavits or evidence taken under modes of discovery.
Q: Why will the court render a summary judgment?
The court will not conduct a full blown trial envisioned in Rule 30. In
a summary judgment designed not to conduct full-blown trial,
according to jurisprudence, there is an issue in the answer submitted

by the defendant, but it turns out to be a sham issue. Therefore, there
is no need for the court to conduct a full-blown trial on a sham issue.
Whether or not the issue is genuine will depend upon the
circumstances of the case.
judgments involving recovery of title to or possession of real

property. It is available in real or personal civil actions as long as the
requisite that the issue is not a genuine issue is present.
JUDGMENT BASED ON A COMPROMISE

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

justice, even if that decision has become final and executory by the
simple expedient of entering into a compromise agreement.
If, for example, the judgment rendered in favor of the plaintiff was
for P1M, but both the plaintiff and defendant agreed to decrease it to
P700K, the compromise agreement is valid even if the judgment for
P1M has become final and executory. The judgment was novated by
agreement of the parties.
Q: What if the judgment was rendered by the SC?
The same rule applies even if the judgment was rendered by the SC,
the highest court of the land.
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?
No. Under the Rules, an order denying the motion is in the nature of
an interlocutory order which is inappealable.
Q: What is the remedy in cases where appeal is not allowed?
As a general rule, where the judgment or final order is not appealable,
the aggrieved party may file the appropriate special civil action under
Rule 65.
There is a remedy under the Rules of Court to assail an order denying
the motion to set aside the judgment under a compromise. It is Rule
65.
The aggrieved party may not avail of Rule 65 directly if there is a
judgment based on compromise. He has to first move to set aside the
compromise agreement based on vitiation of consent. If that motion
is denied, he may now make use of Rule 65, but only if he can prove
the court gravely abused its discretion amounting to lack or excess of
jurisdiction.
Q: What are the available remedies to the aggrieved party after

rendition of judgment?
The remedies against a judgment may refer to those remedies before
a judgment becomes final and executory and those remedies after the
same becomes executory.
1. Before a judgment becomes final and executory, the aggrieved
party may avail of the following remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal
2. After the judgment becomes executory, the losing party may avail
of the following:
a. Petition for relief from judgment;
b. Action to annul judgment;
c. Certiorari under Rule 65; and
d. Collateral attack of a judgment.
The same remedies are also available for a judgment by confession or

a judgment by consent.
Compare the remedies available to a party in a civil case to that in a

criminal case. The consequences of availing a remedy in a civil case
might be different in criminal cases. Also, there are remedies which
are applicable in civil cases which might not be applicable in a
criminal case.
Q: Why is appeal not allowed?

Appeal is not allowed because a judgment based on compromise is
final and executory. It is in the NCC. A compromise agreement is
always final and executory and has the effect of res judicata.
For comparison, these are the remedies in a criminal case.
Q: May judgment be subject to a compromise agreement?
1. Before the judgment of conviction becomes final:

a. Motion for New Trial
b. Motion for Reconsideration
c. Appeal
d. Reopening of a case due to NDE
2. After the judgment of conviction becomes final:

a. Habeas Corpus
b. Petition for Certiorari under Rule 65 in exercise of
judiciary under its equity jurisdiction
Reopening of a Civil Case
Q: Is reopening available in civil cases?
Reopening is also available in civil cases but before the judgment is
rendered. If judgment is rendered, it is not available in a civil case.
Jurisprudence requires that no judgment has yet been handed down
by the court. The termination of the trial starts the period to move for
this remedy. As long as the judgment has not been rendered, any
party can move for reopening of the case.
Q: What are the grounds for reopening of civil cases?
There are no grounds given in the Rules of Court. It is not expressly
recognized, reopening is just an accepted remedy in jurisprudence. It
is a remedy availed of after trial has ended but before the judgment is
rendered.
Q: What is the purpose of reopening a case?
It is allowed in the interest of justice. It allows the movant to offer in
evidence those that he may have forgotten to present during the trial,
or additional evidence as the case may be.
Q: When should there be reopening in civil cases?
It is available before the court renders a decision or a final order. So
it occurs between the time when the parties have submitted their
evidence and the time when the court renders the decision.
Q: Is it really a product of jurisprudence?
It may be a product of jurisprudence, but it seems it is now expressly
recognized by the Rules. If you take a look at summary procedure or
small claims proceedings, one of the prohibited motions is reopening
of a case. That means to say that even in civil cases, reopening is
recognized as a remedy.
Q: How about reopening in criminal cases?
It is expressly allowed in the Rules. Under criminal procedure, the
court can reopen the case even if the accused has been convicted so
long as the judgment of conviction has not become final. So it may
not be accurate to consider entirely reopening as a product only from
jurisprudence.
Q: Is reopening allowed in special proceedings?
Yes. For example, in settlement of the estate, even if the proceedings
have been closed, if certain properties have been left out or if certain
heirs have been deprived in the proceedings, they can still ask for the
proceeding to be reopened. They cannot file a separate proceeding for
another settlement because this is prohibited by law. There could be
only one settlement court.
Q: Is an action to annul judgments available in criminal cases?
No. If the convict feels that his detention, although supported by a
judgment of final conviction, is unlawful, the remedy he may avail of
is Habeas Corpus, not a petition to annul judgment. The SC has made
this very clear. Rule 47 applies only to a civil case. It cannot apply to
a criminal case. The equivalent remedy in a criminal case is a petition
for habeas corpus. The SC in the exercise of its equity jurisdiction
cold also entertain a Petition for Certiorari under Rule 65 even if the
judgment of conviction has become final and executory
Q: May a petition for certiorari under Rule 65 be entertained
even if the judgment of conviction has long been final?
It can be had when the petition is applied in order for the judiciary to
rectify a wrong under its equity jurisdiction. A situation that calls for
a special remedy will always be answered by a petition for certiorari.
Certiorari is a remedy in both a civil or criminal case in order to
challenge a final and executory judgment if the situation calls for the
SC to exercise its equity jurisdiction. That is why in the enumeration
of remedies, in either criminal or civil case, we include certiorari
under Rule 65.
NEW TRIAL OR RECONSIDERATION

Q: What is a pro forma motion?
A: A pro forma motion is one which does not satisfy the requirements
of the rules and one which will be treated as a motion intended to
delay the proceedings.
In Rule 37, for civil cases, a motion for new trial or reconsideration
must strictly comply with the requirements of a motion so that such
motion will not fall under the concept of a pro-forma motion.
Pro forma motion for reconsideration in civil cases is almost always
denied. A pro forma motion for reconsideration does not suspend the
running of the reglementary period to appeal, and if the denial of the
motion comes after the expiration of the period to file an appeal,
entry of judgment takes place by operation of law under Rule 36.
Upon entry of judgment, the losing party loses the remedy of appeal
and is left only with the after-judgment remedies of petition for relief
from judgment, annulment from judgment or a petition for certiorari
under Rule 65.
Take note that in criminal procedure, nothing is mentioned about a
pro forma motion for new trial or reconsideration. The court cannot
simply discard the motion for new trial or reconsideration for noncompliance even if the motion does not comply with the requirements
of a motion. The motion for reconsideration or new trial will always
stop the running of the period to appeal. The idea for the accused to
file motion for new trial or reconsideration could come from the
court. The court can even initiate a new trial or reconsideration as
long as the accused gives his consent.
Q: Who initiates a motion for new trial or reconsideration?
A motion for new trial or motion for reconsideration in civil cases is
always initiated by the losing party.
Q: What are the grounds for a motion for new trial or
reconsideration?
The grounds for motion for new trial are completely different from
grounds for a motion for reconsideration. These motions are distinct
and different from one another.
not need an affidavit of merit, merely the affidavit of the new witness
who will give testimony, or an authentic copy of document or object
evidence to be presented.
Under a Motion for New Trial:

1. Extrinsic fraud, accident, mistake or excusable negligence
(FAME) which ordinary prudence could not have guarded
against and by reason of which the rights of the aggrieved
party was impaired; or
2. Newly discovered evidence, which could not with
reasonable diligence, have been discovered and produced at
the trial, and which if presented, would probably alter the
result.
Extrinsic Fraud
The principle in new trial in the case of fraud, the fraud committed
must always be extrinsic fraud. It cannot be intrinsic fraud. If the
fraud alleged in the motion is intrinsic, the motion will be denied.
Under a Motion for Reconsideration:

1. The damages awarded are excessive;
2. The evidence is insufficient to satisfy the decision or final
order; or
3. The decision or final order is contrary to law.
Q: Let us say a losing defendant/accused is advised by his counsel
that they have three remedies while the period of appeal was
running, namely, motion for reconsideration, motion for new
trial and appeal. The defendant/accused told the counsel to avail
of all three. Thus, the counsel filed a motion for new trial, a
motion for reconsideration and lastly, an appeal. The trial court
received all three. The appeal was duly perfected. What remedy
will the court entertain?
SC held that if the aggrieved party files or perfects an appeal during
the pendency of his motions for new trial and reconsideration, the
motions shall be deemed abandoned.
It is really inconsistent for an aggrieved party to file a motion for new
trial or reconsideration, and while waiting for the resolution of his
motion, perfects an appeal. It will render the motions academic. The
court, upon perfection of the appeal and upon payment of the docket
fee, will lose jurisdiction over the case, and what will remain with the
court is residual jurisdiction.
Q: The winning party, after receiving a copy of the decision,
moved for execution pending appeal. It is a matter of discretion
to the court founded on special circumstances. The losing party
filed a motion for new trial while the former motion was pending.
Can the court grant the motion for execution pending appeal?
No. The trial court should resolve the motion for new trial first before
the motion pending appeal is resolved, even if the motion pending
execution is for special reasons. Motion for reconsideration or motion
for new trial of the aggrieved party should be given preference over
any other motion by the prevailing party.
Fraud, Accident, Mistake, and Excusable Negligence (FAME)
If a motion for new trial is based on FAME, it must be accompanied
by an affidavit of merit. The affidavit should be executed by persons
with personal knowledge surrounding the circumstances of FAMN.
It is not correct to say that in a motion for new trial, we always need
an affidavit of merit. We need affidavit of merit only if the ground
relied upon is FAME. Motion for new trial on ground of NDE will
Rule 37 gives us a good basis for making a distinction between these

two kinds of frauds. There are two clauses to justify extrinsic fraud as
a ground for new trial compared to extrinsic fraud: which ordinary
prudence could not have guarded against and by reason of which
such aggrieved party has probably been impaired in his rights.
If we rely solely on Rule 37, the court has allowed lawyers to cheat
one another, so long as cheating is limited only to intrinsic fraud,
which could be prevented through the use of ordinary diligence.
For instance, the plaintiff wins the case because his cause of action is
supported by a document showing his title to recover from the
defendant. But later on, the aggrieved party is able to prove that the
document presented by the plaintiff, and which is the basis for the
judgment in his favor, is a forged document. Forging a document is a
crime. But in a trial, the admission of a forged document will not be a
ground for a new trial, or even as NDE. This is because the
presentation of a forged document by the plaintiff could easily be
avoided by the defendant through the exercise of ordinary diligence.
If confronted with such document, and the defendant is not sure as to
its authenticity, the defendant could have called upon witnesses, such
as an expert witness, to prove that such document was forged. His
failure to do so is a waiver of this fact.
Another instance of cheating in trial which the SC did not consider
as extrinsic is when the prevailing party presented witnesses who had
perjured. But if the aggrieved party relies solely on the allegation that
all the witnesses presented by the party all committed perjury, that is
not a ground for new trial, that is only intrinsic fraud. The aggrieved
party should also have cheated, he should also have been dishonest.
If the plaintiff presented two perjured witnesses, the defendant should
have called five. So the message given with respect to extrinsic and
intrinsic fraud is that litigants, through their lawyers, can be dishonest
during the course of litigation. But they should see to it that their
cheating will not amount to extrinsic fraud. They must not deprive
the other party of his day in court, that the other party will have the
opportunity to present his side in court.
That is the life of a lawyer, he is encouraged to be dishonest, he
should be deceptive in his relationship with others lawyers. Anyway,
lawyers will not go to heaven, it is a fact. It is found in the Bible. But
that is only a part of a passage in the Bible. The additional passage is
that lawyers do not go to hell. But that does not make the life of a
lawyer less worthwhile. If a lawyer cannot go to heaven or to hell,
where will the lawyer go after death? The implication is that a lawyer
does not have a soul.
That is how the SC looks at the situation. In fact the SC in several

cases said we should expect dishonesty in the course of litigation. We
cannot avoid that. SC said that if they allow every act of dishonesty
to be a ground for new trial, there will never be an end to a litigation,
because a lawyer will always be able to point out to the court certain
acts of dishonesty or cheating in a motion for new trial.
Mistake
The mistake of a lawyer is the mistake of the client. If the aggrieved
party lost the case due to a mistake of the lawyer, and the party fires
his lawyer and gets a new one, the new lawyer cannot capitalize on
the mistake committed by the former lawyer. We must apply the rule
on agency. The act of the agent is the act of the principal.
There is, however, one situation where the SC relaxed the application
of this principle. The SC said that while it is true the mistake of the
lawyer will always be considered the mistake of the client, but if the
mistake of the lawyer was tantamount to bad faith, i.e., the lawyer
deliberately caused the loss of the case, then that is a ground for new
trial. The clients rights should be protected in this situation.
Excusable Negligence
The negligence must be so gross that ordinary diligence and prudence
could not have guarded against it. This excusable negligence must
also be imputable to the party-litigant and not to his or her counsel
whose negligence binds his or her client.
Newly Discovered Evidence
This is an adaptation of an American principle called the Berry Rule:
Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if
presented would probably alter the result.
Q: What are the requisites of newly discovered evidence as a
ground for New Trial?
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and
produced at the trial with reasonable diligence; and
3. Such evidence is material, not merely cumulative,
corroborative or impeaching, and is of such weight that if
admitted would probably change the judgment.
The requirements state we cannot consider cumulative, corroborative
or impeaching evidence as NDE, as these cannot alter the result of
the case. The recantation of a witness is not NDE. In fact, the SC has
been emphatic in its ruling continuously that if a witness recants, the
recantation should not even be given any attention at all. If we give
attention to the recantation of a witness, you can expect lawyers to
produce recantations by witnesses who already testified in court. So,
the stand of the court is that the testimony of a witness given in open
court reflects the truth, not the recantation. The recantation shall not
be treated as NDE.
Q: What is forgotten evidence?
If evidence was already available to a party and he was not able to
present it through inadvertence or negligence of his counsel, that
evidence will not be considered as newly-discovered evidence. It will
simply fall within that concept of forgotten evidence, which is not a

ground for new trial.
Compare: Motion for New Trial and Reconsideration
There is a rule allowing only one motion for reconsideration by the
same party, either prevailing or aggrieved party. If that is denied, a
second motion for reconsideration will not be allowed, even if that
second motion for reconsideration is found on a different ground. The
rule against the filing of a second motion for reconsideration is
almost absolute.
Unlike a motion for new trial, the Rule allows a party to file a second
motion for new trial if found on a ground different from the one used
in the first motion for new trial.
But whether it is a motion for new trial or motion for reconsideration,
there is another rule contained in other provisions where the court
will not allow an extension of time to file motion for new trial or
reconsideration. The party must observe the 15/30-day period.
Q: What is the effect if the motion for reconsideration or new
trial is granted?
If the motion for reconsideration is favorably acted upon, the court
will simply render an amended judgment. If the court feels that the
judgment is contrary to law or the evidence does not fully support the
judgment, the motion for reconsideration should be granted to reduce
the liability of the aggrieved party, but the court will only amend the
previous judgment in order to reduce such liability.
If the motion for new trial in a civil case is granted, and such is not a
partial motion for new trial, the judgment will be vacated. But the
evidence presented during the trial will not be disturbed. There is no
need for the witnesses who had testified in the trial to give their
testimony again.
If the motion for new trial granted was that in a criminal case, the
judgment will also be vacated, and all evidence taken during the trial
need to be retaken and witnesses who testified will be recalled. The
grounds for new trial in a criminal case are serious irregularities or
errors committed by the trial court, not FAME. Even if the evidence
taken in court will not be retaken, there will be a recalling of the
witnesses who had testified during the trial.
Q: What is the remedy of the aggrieved party if his motion for
new trial or reconsideration is denied?
Under Rule 37, it is clearly provided that if a motion for new trial or
reconsideration is denied, the denial cannot be appealed or be subject
to Rule 65. What is to be appealed is the judgment rendered on the
merits, not the order of denial. Note that Rule 65 is now unavailing in
the amended Rules in Rule 41.
The only remedy is an appeal from the judgment on the merits that is
subject of the denied motion of new trial or reconsideration. SC said
that in appealing the judgment, the aggrieved party can assign as an
error the denial of the trial court of the motion for new trial or motion
for reconsideration. But he is no longer allowed to file a petition
under Rule 65 to challenge the denial of the motion and appeal at the
same time, which was allowed prior to the amendment of Section1 of

Rule 41.
Q: Are there instances where a motion for new trial or
reconsideration is not allowed?
Yes. For example, it is not allowed in summary procedure and small
claims proceedings. It is a prohibited motion.
It is, however, allowed if the aggrieved party in summary procedure
appealed the case to the RTC and from there filed a motion for new
trial or reconsideration against the decision of the RTC. Since RTC is
not governed by summary procedure, the enumeration of prohibited
pleadings and motions in the circular does not apply to that court.
Dean Albano: You should take note of De Leon v. Hercules Agro
Industrial Corp. The SC held that the period to file a motion for
reconsideration is non-extendible, and a motion for extension of time
to file a motion for reconsideration does not toll the reglementary
period to appeal.
RELIEF FROM JUDGMENT

Under the Rules, a motion for relief from judgment should be filed
within these two periods:
sixty (60) days from receipt of copy of judgment or notice

thereof; and
six (6) months from entry of judgment.

Q: What if the lawyer for the aggrieved party files a motion for
relief from judgment based on FAME when judgment has not yet
been entered? Will the motion be dismissed?
There was one case when the aggrieved party, before entry, filed
before the trial court a petition for relief from judgment founded on
FAME. The filing of the petition was irregular because the judgment
has not yet been entered. SC held that the trial court should not have
simply denied and dismissed the motion. What the trial court
should have done was to treat the motion for relief from
judgment as a motion for new trial, because the grounds of both
motions are similar. Even if the lawyer commits an error, and files a
petition for relief from judgment before the judgment was entered,
the court will consider the petition for relief as a motion for new trial,
provided that the petition will carry with it the requirements needed
under Rule 37, i.e., an affidavit of merit that will prove the presence
of FAME. The SC has taken a liberal attitude on this kind of error by
a lawyer. The court will ignore the error and just have to rule on the
merits of that motion.
Q: Is a petition for relief considered as one that is similar to that
of an annulment of judgment?
It is not so. A petition for relief is not an independent action. In fact,
it is just a continuation of the original case. If we consider petition for
relief a separate action from the original case, a petition for relief
should be filed before an RTC because it is incapable of pecuniary
estimation. But since it is not so, Rule 38 provides that it should be
filed in the same court which issued the judgment deciding the case.
So if the court that decided the case is an MTC, a petition for relief
could be filed in the same court. If the respondent of a petition for

relief challenged the jurisdiction of an MTC in deciding the petition
for relief on the ground that such petition is incapable of pecuniary
estimation, the reply to that argument is that a petition for relief is
just a continuation of the original case, not an independent and
separate action. Note that the old docket number is used in the title of
the case in a petition for relief. We also do not pay docket fees.
What is important is the timeframe in which to file a petition for
relief from judgment. The SC has been very strict. Time to file should
be observed. SC has been very strict with the time frame because the
judgment has been entered and has therefore become final and
executory. There is the likelihood that the winning party may already
file a motion for execution under Rule 39 as a matter of right.
Q: It could happen that the aggrieved party filed a petition for
relief from judgment and the prevailing party also files a motion
for execution of the judgment. Should the court grant the motion
for execution?
Yes. The court has a ministerial duty to execute the judgment once
the judgment has been entered and has become final and executory.
Motion to execute should be granted once made. The prevailing party
has the right to have the judgment in his favor enforced.
Q: If the court grants the motion for execution of judgment
because it is a matter of right on the part of the prevailing party,
will it not render academic the relief from judgment filed by the
aggrieved party?
The petition for relief will not be moot and academic simply because
of the granting a motion for execution as a matter of right. Rule 38
says that the executing court that granted motion for execution and
subsequently entertained a petition for relief from judgment can issue
a TRO or a preliminary injunction order to stop the enforcement of
the writ of execution.
You might say that in the rule on injunction, an injunctive relief
should be granted by a court higher than the court which rendered the
decision. In this case the court which decided the case and then
subsequently granted the motion for execution of its judgment
shall also issue the injunctive relief against the carrying out of the
writ of execution. That is one of the peculiarities of Rule 38. The
court which grants the execution of its judgment, as it really has no
choice as it is a matter of right, is the same court which will issue an
injunctive relief against the writ of execution it has previously issued.
If there is no injunctive relief issued by the said court, its decision
will be carried out until fully satisfied. This is an exception to the
principle in injunction where the injunctive relief should come from a
higher court. Here, the same court which decided the case shall be the
one who will issue an injunctive relief against its own officer from
executing the writ of execution the court has previously issued. That
is allowed in Rule 38.
Q: If the petition for relief is granted, can the prevailing party
appeal the order?
No. The order granting relief is interlocutory, hence unappealable.
Q: If a petition for relief is denied, the order denying petition for

relief is a final order. Can it be appealed? If not, what is the
remedy?
No, it is a final order which is unappealable under Section 1 of Rule
41. The remedy of the aggrieved party is to file a petition under Rule
65, a petition for certiorari or prohibition as the case may be.
The fresh period rule does not refer to the period within which to
appeal from the order denying the motion for reconsideration, but the
period within which to appeal from the judgment itself because an
order denying a motion for reconsideration is not appealable.
Q: Is Rule 38 an extraordinary remedy?

It depends on how you define an extraordinary remedy.
Q: Will the fresh period apply to a motion to dismiss under Rule

16 and a motion for a bill of particulars under Rule 11?
No. These periods will interrupt the period to file an answer but will
not grant a fresh period of 15/30/60 days as the case may be if denied
by the court. If these motions are denied, the defendant is given the
remaining period within which to respond or file an answer, but this
remaining period should not be less than five days.
If you limit the definition of an extraordinary remedy to any remedy

that violates the doctrine of immutability of judgments, then, yes, it is
an extraordinary remedy. Rule 38 may disturb judgments even if they
are already final and executory.
Now, if you limit the definition of an extraordinary remedy to any
remedy which is not a mode of appeal, then Rule 38 is not an
extraordinary remedy.
A petition for relief from judgment is not an independent action. It is
always a continuation of the old case. If the decision was rendered by
the MTC, the petition for relief should be filed with the MTC. It even
uses the same docket number used by the court in deciding the case.
Furthermore, there is no issuance of summons under Rule 38. If the
trial court finds the petition to be sufficient in form and substance, the
court may issue an order directing the respondent to file a comment.
It will not issue summons. The respondent who fails or refuses to
comment will not be declared in default. The court will simply
proceed with the hearing of the motion.
APPEAL
Appeal can be a matter of right or a matter of discretion.
Q: What is the remedy if the motion for new trial or
reconsideration is denied?
A: The remedy is to appeal from the judgment or final order itself
subject of the motion for reconsideration or new trial. The movant
has a fresh period of fifteen days from receipt or notice of the order
denying or dismissing the motion for reconsideration within which to
file a notice of appeal. It is no longer assailable by certiorari.
This fresh period rule, also known as the Neypes ruling, is derived
from Neypes v. Court of Appeals.
Read: Neypes v. Court of Appeals
Q: When does the fresh period rule apply?
A: It applies to:
1. Rule 40 Appeals from MTC to RTC
2. Rule 41 Appeals to RTC
3. Rule 42 Petition for Review from RTC to CA
4. Rule 43 Appeals from quasi-judicial agencies to CA
5. Rule 45 Appeals by certiorari to the SC
The last paragraph is really important. Read it again.
Q: What does appeal as a matter of right mean?

It means when he has perfected the appeal within the period to do so,
the appellate court has no other choice but entertain the appeal,
review the decision and render its own decision.
Q: What does appeal as a matter of discretion mean?
When we say that appeal is a matter of discretion, the appellate court
will determine whether the appeal should be entertained or not. If that
discretion is given to the appellate court, it simply denies to the party
the right to appeal to that court.
In civil cases, there are three modes of appeal given under Rule 41:
Ordinary appeal
Petition for Review in the CA
Petition for Review on Certiorari under Rule 45

Q: Lets say there are four defendants. They lost the case.
Defendant 1 appealed but the others did not. What happens if
Defendant obtains a favorable decision from the appellate court?
As a general rule, it will only benefit the defendant who appealed his
case. The decision of the trial court is already final and executory on
the others who did not appeal. However, the SC held that there may
be an exception in case the interests of the defendants are intertwined.
That is the term used by the SC intertwined. If their interests are
intertwined, even if only one of them appealed, the decision of the
appellate court will also benefit his co-parties.
Compare this with a scenario where there are two defendants A and
B. A was in default. B, however, won the case and was able to resist
the plaintiffs claim. Will A benefit? Yes, he will benefit. This is the
general rule. This is different from the scenario in the last paragraph
because in that case there is already a judgment on all of them. Here,
in partial default, there is no judgment yet.
Q: Lets say there are four defendants. There is already a
judgment against them. What happens if Defendant 1 makes use
of Rule 37, Defendant 2 makes use of Rule 38, Defendant 3 makes
use of Rule 47, and Defendant 4 makes use of appeal?
It is possible. Although there is plurality of parties and the remedies
pertain to different time periods (Rule 37 and appeal should be used
before the judgment became final and executory, while Rule 38 and
47 are available after the fact), it is possible that they make use of
different remedies. Remember that, as a general rule, appeal is only

beneficial to the person who appealed.
Rule 65 is an independent proceeding, and not a continuation of the

original case that has been resolved by the MTC.
Appeal from the MTC to the RTC

If the origin of the case is the MTC, the only mode of appeal is an
ordinary appeal. Even if the only issue raised is a question of law, the
appeal should be an ordinary appeal to the RTC. Note that the Rules
do not divest the RTC or even the CA to hear appeals based purely on
questions of law. In fact, the Rules expressly say that an appeal to the
RTC from the MTC could either involve both questions of fact and
law or just purely questions of law.
Q: In cases of unlawful detainer decided by the MTC, there could

be an appeal in the RTC involving factual and legal questions.
Insofar as the RTC and the prevailing party are concerned, is the
appeal by the losing party a matter of right?
Yes. Whenever the mode of appeal is ordinary appeal, the appeal is a
matter of right. The court has no discretion to outrightly dismiss the
appeal. It has the duty to review the case and render its own decision.
The RTC as an appellate court from a decision of an MTC in UD has
no discretion to tell the appellant that the appeal cannot be given due
course, which is allowed in petition for review and petition for review
on certiorari.
An appeal from the MTC to the RTC is always a matter of right.

Q: What is the procedure of appeal from MTC to the RTC?
The party appealing in a civil case will need to file a Notice of
Appeal and pay the required docket fee. Cases involving special
proceedings and other cases of multiple or separate appeals will also
require submission of a Record on Appeal.
Docket fee is a jurisdictional requirement. Hence, if not paid on time,
SC held that the appellate court does not acquire jurisdiction over the
case. Try to remember the Manchester ruling.
Let us say a case for unlawful detainer was filed. A motion to
dismiss was filed by the defendant on the ground of lack of
jurisdiction over the subject matter, which was granted.
Premise: Under the provisions of Rule 41, the order of dismissal,
without prejudice, is not appealable. The aggrieved party cannot
appeal, but he can file petition under Rule 65.
Q: Is this premise true? Should we follow Rule 41 in appeals
from the MTC to the RTC?
No. Rule 40 does not follow Rule 41. In Section 8, Rule 40, when an
MTC dismisses a case cognizable by it for lack of jurisdiction over
the subject matter, even if the dismissal is without prejudice, the
remedy of the plaintiff is to appeal, via an ordinary appeal, the order
of dismissal rendered by the MTC.
Q: Why cannot we just follow Rule 41? It says that if a dismissal
is without prejudice, the order is not appealable, and the remedy
is a petition under Rule 65.
Insofar as the MTC and the RTC are concerned, there is a good
reason why Rule 40 says that the remedy of the plaintiff is to appeal
via ordinary appeal, to just file a notice of appeal in the appellate
court and pay docket fees. This is because there is a provision under
Rule 40 which says that if the matter is brought to the RTC, and the
RTC affirms the decision of the MTC, it is the duty of the RTC to
assume jurisdiction over the case as if that case originated with the
RTC.
Q: Why wont RTC assume jurisdiction if Rule 65 is used?
If we tell the plaintiff to observe Rule 41, but the plaintiff still files a
petition for certiorari under Rule 65, the RTC has no authority to
assume jurisdiction over the case. An appeal is not a separate
proceeding, it is just a continuation of the old case. A petition under
Q: Although the appeal of the losing party in the RTC is a matter

of right, may the RTC order the appeals dismissal even without
rendering its own decision because the appellant violated certain
orders or provisions of the Rules?
Yes. Although it is the right of the losing party to appeal to the RTC,
the losing party, as an appellant, should also obey the orders that
could be issued by the RTC in relation to the appeal.
One such order is given in Rule 41, Section 7[b]. The RTC acting as
an appellate court can require the appellant or appellee to submit an
appeal memorandum.
If the appellant does not submit an appeal memorandum as ordered,
that will be a ground for the dismissal of the appeal by the RTC.
Although appeal is a matter of right, it is still the duty of the appellant
to obey the orders of the appellate court issued in relation to his
appeal taken to the RTC.
In Rule 41, the RTC can also order the dismissal on appeal if it can
be shown that the docket fees have not been paid or that the appeal
was taken out of time. If the appeal was out of time, the appellate
court has no jurisdiction at all to review the judgment.
Q: If the RTC renders its own decision (affirm or reverse), can
there be a second appeal?
Yes, to the CA via a petition for review. The rule of thumb in the
case of second appeals is that the appeal is a matter of discretion. The
first appeal generally is a matter of right as to the appellant, as long
as the mode of appeal is an ordinary appeal. But even if the appeal is
a first appeal, but the mode is the one under Rule 45, that is a matter
of discretion on the part of the SC. The second appeal from the RTC
to the CA is a matter of discretion. The CA can either refuse or allow
the appeal.
Q: Before the CA, could there be a third appeal?
Yes, we can go to the SC under Rule 45, which is always a matter of
discretion in the civil case. The SC enjoys the prerogative whether to
entertain or not to entertain that appeal.
Summary:
From MTC, appeal to the RTC by notice/record of appeal whether it

involves a question of law, a question of fact, or both. This is a matter
of right.
From the RTC as an appellate court, appeal to the CA by petition for
review. The appeal may involve a question of law, a question of fact,
or both. Appeal here is discretionary.
From the CA, the aggrieved party may appeal to the SC by petition
for review on certiorari under Rule 45. Only questions of law may be
appealed. Petition for review on certiorari is always discretionary.
Q: Is it possible to appeal from MTC to the CA or SC directly?
Yes. If the MTC is exercising its delegated jurisdiction to try land
registration or cadastral cases, appeal from its decision or final order
may be taken directly to the SC or the CA as the case may be. The
MTC in this situation will be considered as if it were a RTC.
Q: What is the rule on harmless error?

Under Rule 51, Section 6, the court at every stage of the proceeding
must disregard any error which does not affect the substantial rights
of the parties.
Q: What is the material data rule?
The rule is an essential component for any mode of appeal whether it
is an ordinary appeal, petition for review or petition for review on
certiorari. It simply tells the appellant that he should see to it that he
informs the court about the date he received the decision, the date of
filing the motion, and the date of denial by the court of motion for
reconsideration or new trial, in order to help the court determine the
timeliness of appeal, which is determinant of the jurisdiction of the
appellate court. If an appeal is not perfected on time, the appellate
court does not gain jurisdiction over the matter on appeal.
Procedure (MTC to RTC)

After the appeal is perfected, and it is perfected by the filing of a
notice of appeal, the RTC will now require the appellant to submit his
appeal memorandum.
Q: What is the difference between an erroneous appeal and an

improper appeal?
In improper appeals, the mode of appeal used is the correct mode, but
the questions raised in the appeal should not be raised in the appeal.
This may lead to the dismissal of the case.
Q: If the appellant does not submit his memorandum, the RTC

can dismiss the appeal. Why is the memorandum important?
It is important because, similar to a brief on appeal before the CA, it
points out to the RTC the errors committed by the inferior court.
There is always a disputable presumption that a decision rendered by
the court is correct. If the appellant refuses or fails to submit the
appeal memorandum, the presumption will stand and the appeal will
be dismissed.
For example, RTC rendered a decision. The decision was appealed to

the CA. The mode of appeal is an ordinary appeal via a notice of
appeal. Eventually, the records are transmitted to the CA. Under the
new rules, when there is an appeal by ordinary appeal via notice of
appeal, pure questions of fact, or mixed questions of fact and of law
could be raised. But the rules state that if the only question raised is
purely of law, the CA has no jurisdiction. So the CA can dismiss the
appeal when purely questions of law are raised.
However, if you take a look at Rule 40, Section 7 (c), it says the RTC
shall decide the case on the basis of the entire record of the
proceedings. The rule under Rule 51, Section 8, i.e., the rule that the
appellate court will only decide questions raised on the assignment of
errors, will therefore not apply to appeals from the MTC to the RTC.
In erroneous appeals, the mode of appeal is wrong. There are certain

cases where although the mode of appeal is wrong, it will not lead to
the dismissal of the appeal.
Q: What is the difference between a final order and an

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

an appellant is simply telling the court he is appealing the decision
rendered on such date, alleging the payment of docket fees. If the
appellant wrongfully chooses a petition for review, the RTC should
entertain the petition as the essentials for a notice of appeal are
already contained in the petition for review.
Q: From the RTC as an appellate court to the CA, supposing the
mode of appeal used by the aggrieved party was a notice of
appeal, can the appeal be dismissed by the CA on the ground that
the appellant has chosen the wrong mode of appeal?
The appeal will be dismissed. The mode of appeal used is erroneous
and will not confer jurisdiction upon the CA. In other words, there
are instances where the wrong mode of appeal will lead to the
dismissal of the appeal; and there are instances where the wrong
choice will be disregarded by the court.
Q: From the RTC in its original jurisdiction to the SC, supposing
the mode of appeal is a notice of appeal, can the appeal be
dismissed by the SC on the ground that the appellant has chosen
the wrong mode of appeal?
Under the Rules, the only mode of appeal allowed in civil cases to the
SC is Rule 45. From the decision of the RTC in its original
jurisdiction, there could be an appeal to the CA or SC as the case may
be. If the appellant decides to go to the SC immediately and filed a
notice of appeal, the SC will dismiss the appeal since the choice of
mode of appeal is erroneous under the Rules. A notice of appeal will
never satisfy the requirements of a petition for review on certiorari or
appeal by certiorari under Rule 45.
Q: Using the same problem above, supposing the mode of appeal
is titled Petition for Certiorari under Rule 65? Will the petition
be dismissed?
If the appellant inadvertently calls his petition a Petition for Certiorari
under Rule 65, the SC will liberally consider that as a Petition for
Review under Rule 45. The contents of Certiorari under Rule 45 and
Rule 65 are essentially the same. But, the SC cautioned parties, the
erroneous appeal must be filed within the period of appeal (15 days).
If you should recall, the period for appeal by petition for certiorari
provided under Rule 45 is 15 days, whereas under Rule 65, the period
for filing a petition under this Rule is 60 days.
Q: Is a certificate of non-forum shopping available to a petition
for review?
Yes. Although a petition for review is not an initiatory pleading, the
Rules expressly directed it to prevent the possibility that the appellant
may have filed another appeal with a different court.
Appeal from Quasi-Judicial Bodies
The decisions that could be appealed to the CA do not necessarily
come from courts. It could be penned by quasi-judicial bodies. There
is just a common mode of appeal even for quasi-judicial (QJ) bodies,
petition for review under Rule 43.
There is no difference with respect to the content, but there is a great

difference in the execution of the judgment appealed.
If the decision comes from a trial court in the exercise of its appellate
jurisdiction, being appealed to the CA, the decision of the trial court
cannot be executed. There could be no execution. There could be an
execution, but it should be an execution pending appeal. The motion
should be supported by special reasons to convince the CA to order
the execution of judgment. Generally, when there is an appeal to the
CA from a court of justice like an RTC, the appealed decision cannot
be the subject of execution.
In case of QJ body decision, the appeal will not stay the execution of
the decision. The decision of the QJ body will be enforced. There is
only one way in which we can stop the execution of the decision
rendered by a QJ body during the pendency of the appeal, and that is
to ask the CA to issue a writ of preliminary injunction.
Another difference is the rule that when a decision comes from a QJ,
the factual findings of the QJ are conclusive upon the CA. As a
general rule, the CA cannot review factual findings of the QJ.
Q: Why is execution allowed in QJ bodies?
One reason given in the Rules is that the quantum of evidence needed
in QJ proceedings is only substantial evidence, while in trial courts,
the quantum of evidence is preponderance of evidence.
Q: Are there any cases where appeal from quasi-judicial bodies
may be directly made to the SC?
Yes.
A decision from the Commission on Audit may be brought by the
aggrieved party to the SC on certiorari under Rule 65.
A decision from the Commission on Elections may be brought also
on certiorari to the SC under Rule 65.
(The decision of third constitutional commission the Civil Service
Commission may be taken to the CA under Rule 43.)
A party adversely affected by a decision of the CTA en banc may file
with the SC a verified petition for review under Rule 45.
The ruling of the Ombudsman in criminal cases (not administrative
disciplinary cases, which is appealable to the CA under Rule 43) may
be elevated to the SC by way of Rule 65.
The decision of the Sandiganbayan is appealable to the SC by way of
certiorari under Rule 45.
As a special reminder, a review of the decision of the NLRC may be
brought to the CA using Rule 65. Remember, the CA, not the SC.
Read: St. Martins 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
Q: What is the difference between a notice of appeal and a record

on appeal?
The period to file a notice of appeal is 15 days. If it requires the filing
of a record of appeal, it is 30 days.
The period to file a notice of appeal is not extendible. The same is not
true with a record of appeal.
Q: Why is there discrimination between a notice of appeal and a
record on appeal when it comes to extension?
A notice of appeal is a very simple document. It is usually a one-page
document. On the other hand, a record on appeal could be a very
voluminous document because the record on appeal will copy all of
the pleadings as submitted by the parties. It will also copy all of the
relevant motions and the orders issued by the court.
Q: When is record on appeal proper?
If you take a look at Section 39 of BP 129, or Section 2, Rule 41 of
the Rules of Court, it states that no record of appeal shall be required
except in special proceedings and other cases of multiple or separate
appeals where the law or the Rules of Court so require.
Dean Riano: A party, therefore, may appeal only a particular incident
in the case and not all of the matters involved in the same case. For
example, in expropriation, there are two stages the first stage is the
determination of the lawful right of the plaintiff to take the property
sought to be expropriated culminating in an order of expropriation.
This order of expropriation may be appealed by any party by filing a
record on appeal.
The second stage of expropriation is the determination by the court of
the just compensation for the property sought to be expropriated. A
second and separate appeal may be taken from this order fixing the
just compensation.
If, however, the trial court has fully and finally resolved ALL issues
in the complaint for expropriation, there is no need to file a record on
appeal even in an expropriation case. The original records will be
sent to the appellate court even if a notice of appeal is used.
Q: If a record on appeal is required, is notice of appeal dispensed
with?
No. It should be a notice of appeal and a record on appeal. Besides, a
notice of appeal just specifies to the court an appeal is being taken. It
is given that a record on appeal always includes a notice of appeal.
Doctrine of Residual Jurisdiction
Q: What is residual jurisdiction?
It refers to the authority of the trial court to rule on certain matters
even if the appeal is already perfected. Even if the appeal is now
within the jurisdiction of the appellate court, the trial court will
retains jurisdiction to decide certain matters.
Q: What are these certain matters?
It is in the Rules of Court. These are:
1.
2.
3.
4.
5.
To issue orders for the protection and preservation of the

rights of the parties which do not involve any matters
litigated by the appeal;
To approve compromises;
To permit appeals of indigent litigants;
To order execution pending appeal if accordance with
Section 2, Rule 39; and
To allow withdrawal of the appeal.
Q: When is the doctrine of residual jurisdiction available?

It is available under Rules 41 and 42. Under Rule 41, if there is an
appeal from RTC to the CA or SC as the case may be, and prior to
the transmittal of the original record or the record on appeal, the court
may exercise their residual jurisdiction.
Under Rule 42, if there is a petition for review from RTC to the CA,
and before the CA gives due course to the petition, the RTC may also
exercise residual jurisdiction.
Rule 41 applies if it is an ordinary appeal. Rule 42 will apply if it is a
petition for review. There is a difference between them so take note
of the qualifiers when residual jurisdiction will end.
In one case decided by the Supreme Court, if docket fees have not
been paid but there was already an order transmitting the records to
the CA, the trial court still has jurisdiction to hear the motion to
dismiss the appeal and issue a writ of execution.
Q: The RTC is expressly given by the Rules the authority to rule
on certain matters under residual jurisdiction. Is this available to
the MTC?
Yes. If you take a look at Section 9, Rule 40, the other provisions of
Rule 41 shall apply to appeals from the MTC to the RTC insofar as
they are not inconsistent with or may serve to supplement the
provisions of Rule 40. It is therefore applicable to MTC.
Motion for New Trial In The CA
Under the Rules, it is not necessary for the appealing party to wait for
the case to be decided by the CA to file a motion for new trial. Even
if the case has not yet been decided by the CA, the movant can
already file a motion for new trial based on NDE. This is not
possible if the case is in the MTC or even in the RTC acting in its
appellate jurisdiction. In the RTC, we have to wait for the RTC to
render a decision before we can file a motion for reconsideration or
new trial. With respect to the CA, we also have to wait for the
decision of the CA before we can move for reconsideration. But
when it comes to a new trial, we can file a motion for new trial based
on NDE even before the case is decided by the CA. This is clearly
spelled out in the Rules. As long as the case is within the jurisdiction
of the CA, even if before the CA had made a decision on the case
appealed, a motion for new trial based only on NDE can be filed.
The SC is generally not a trier of facts. A motion for new trial will
always involve a question of fact like NDE, and thus will be
dismissed by the SC. The availability of a motion for new trial ends
with the CA, but the availability thereof is based only on the ground
of NDE.
Motion for Reconsideration before the CA

The Rules do not clearly state what the grounds are for a motion for
reconsideration before the CA. Since this is the case, then the same
grounds under Rule 37 may be used for a motion for reconsideration
before the CA.
of fact and law, the mode of appeal is an ordinary appeal through a

notice of appeal.
There may be only one motion for reconsideration before the CA, as
it is in the trial courts.
Q: What is a brief on appeal?

The purpose of a brief is to present to the court in a concise form the
points and question in controversy, and by fair argument on the facts
and law of the case, to assist the court in arriving at a just and proper
conclusion/ decision.
Relief of Judgment under Rule 38 before the CA

This is not possible.
First, there is no court in our system which is vested with authority to
entertain a petition for relief against a final and executory judgment
of the CA. The SC may not entertain the petition for relief because it
is a court of limited jurisdiction. And although the RTC is a court of
general jurisdiction, it is improper because the CA is a higher court
than the RTC.
Second, Rule 38 applies only to trial courts, not the CA. This may be
implied from the provisions of the Rule itself.
Annulment of Judgment before the CA
If you remember our discussion before, the SC may annul judgments
made by the CA under its equity jurisdiction. It is not expressly stated
in the Rules but it is possible as a jurisprudential rule.
APPEAL BY CERTIORARI TO THE SC

In civil cases, this is the only mode used to appeal to the SC. We
cannot use a notice of appeal or a petition for review if the SC strictly
applies these rules on appeal.
It is in this mode of appeal, i.e., an ordinary appeal to the CA, where

the appellant is required to submit a brief on appeal.
During the pendency of the appeal, the CA will require parties to

submit their briefs. The Rules provide for the brief of the appellant
and the appellee.
Q: What happens if the brief is not filed on time?
If it is the appellant case who does not submit his brief, the appeal is
dismissed. If it is the appellee who does not submit his brief, then the
court will simply decide the appeal without a brief coming from the
appellee. The appellee can choose not to submit a brief. It is the brief
of the appellant whose submission or non-submission could lead to
the dismissal of the appeal.
Q: Why is the CA very much interested in the assignment of
errors that must be contained in the brief, without which the
appeal will have to be dismissed?
The assignment of errors is essential in an ordinary appeal because
insofar as the CA is concerned, the decision of the trial court is a
correct decision. Remember that in our Rules of Evidence, there is a
presumption that a decision of a trial court is correct, i.e., there is a
presumption of regularity in the performance of official duties. The
CA will always apply that disputable presumption whenever there is
an appeal in the CA.
Q: Is it correct we cannot appeal to the SC by notice of appeal?

No. It does not mean to say that we cannot go up to the SC by simply
filing a notice of appeal or an ordinary appeal. What the Rules of
Court prohibits is the filing of an ordinary appeal to the SC, i.e., a
notice of appeal, if the case is a civil case.
That same attitude is also adopted by the SC. Whenever an appeal

under Rule 45 is raised to the SC, the SC adopts the disputable
presumption that the decision of the CA is correct.
If the case is a criminal case, there could be notice of appeal to the

SC. It is applicable in case the penalty imposed is life imprisonment
or reclusion perpetua. The appeal from that criminal case will be by
notice of appeal not via a petition for certiorari.
Since the CA adopts the presumption that the RTC decided on the
case correctly, the appellant must overwhelm that presumption by
convincing the CA that serious errors were committed by the RTC.
Since the appellant cannot be allowed to present evidence thereon,
since reception of evidence should have been done in the trial court,
appellant will have to rely on the records submitted from the RTC.
As a general rule, only questions of law can be raised before the SC.
However, raising questions of law with questions of fact before the
SC does not necessarily disallow the appeal. The Rules say that if the
issues raised in under Rule 45 are factual and legal, the SC has the
discretion to remand the case to the CA. When the SC sends the case
to the CA because the issues raised are both factual and legal, the CA
now has the duty to review the case and render its own decision.
The opposite, however, does not apply, such as when the CA is the
appellate court. If the court of origin is the RTC acting in its original
jurisdiction, and it involves pure questions of fact or mixed questions
The only way by which appellant can possibly convince that the RTC
committed serious errors is through the assignment of errors. If the
appellant cannot make an assignment of errors in the brief, it means
the appellant finds nothing wrong with the decision of the RTC.
Therefore, the disputable presumption stays, and this will be used by
the CA. That is why the assignment of errors is essential to the brief
of the appellant. Absence thereof is fatal to the appeal, and will cause
the appeals dismissal.
Q: Distinguish a brief from a memorandum.
A:
Brief
Memorandum
5.
6.
Ordinary appeals
Certiorari, prohibition,
mandamus, quo
warranto and habeas
corpus cases
Filed within 45 days
Filed within 30 days
Contents specified by rules
Shorter, briefer, only

one issue involved No
subject index or
assignment of errors,
just facts and law
applicable
Q: Can the appellant assign as the only error in the brief that the
RTC committed an error in deciding the case against the
appellant?
That is not an assignment of error expected by the CA. Assignment
of errors should specify particular acts done by the RTC which could
have affected his substantial rights.
Q: Reiterate the rule on harmless errors.
The trial court must have committed errors in the proceedings; it is
expressly provided in Rule 51 that only errors of the court in
admission of evidence and issuance of orders that affects
substantially the rights of the appellant could be considered by the
appellate court. Otherwise, the court will disregard that error, even if
made a part of the assignment of errors.
Q: What issues will be resolved on appeal?
In civil cases brought on appeal, the appellate court will resolve only
issues raised in the assignment of errors. No other issue, generally,
will be resolved by the court. The only exception is if the issue not
raised in the assignment is closely related to the issue raised in the
assignment of errors of the appellant.
Q: Is the rule above applicable to criminal cases?
No. In a criminal case, if there is an error committed by the trial
court, whether mentioned or not in the assignment of errors, the CA
or SC can take cognizance of such errors in resolving the appeal. The
appellate courts are very flexible in a criminal case whose decision
from the trial court was brought before it on appeal.
As a general rule, only errors assigned in the brief may be considered
on appeal. These are the exceptions:
1. Grounds not assigned as errors but affecting the jurisdiction
over the subject matter
2. Matters not assigned as errors on appeal but are evidently
plain or clerical errors within the contemplation of law;
3. Matters not assigned as errors on appeal but consideration
of which is necessary in arriving at a just decision and
complete resolution of the case or to serve the interest of
justice or to avoid dispensing piecemeal justice;
4. Matters not specifically assigned as errors on appeal but
raised in the trial court and are matters of record having
some bearing on the issue submitted which the parties
failed to raise or which the lower court ignored;
Matters not assigned as errors on appeal but closely related

to an error assigned; and
Matters not assigned as errors on appeal but upon which the
determination of a question properly assigned is dependent.
Questions before the SC

Although Rule 45 is explicit in saying that only questions of law can
be raised in a petition on certiorari, the SC has recognized a number
of exceptions:
1. When the findings are grounded entirely on speculation,
surmises or conjectures;
2. When the inference made is manifestly mistaken, absurd or
impossible;
3. When there is grave abuse of discretion;
4. When the judgment is based on misapprehension of facts;
5. When the findings of facts are conflicting;
6. When in making its findings, the CA went beyond the
issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
7. When the findings are contrary to the trial court;
8. When the findings are conclusions without citation of
specific evidence on which they are based;
9. When the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the
respondent;
10. When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record; and
11. When the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, could justify a different conclusion.
Dean Jara suggests memorizing at least five for the Bar Exams. For
recitation, he suggests to memorize at least eleven (haha).
Aside from these instances, the following cases also allow questions
of fact to be raised on appeal to the SC:
7. Kalikasan cases
8. Amparo cases
9. Habeas Data cases
Both factual and legal questions can be raised under Rule 45 in these
three situations.
Q: What if the appellant raises questions of fact before the SC?
Will the SC dismiss the case?
It may, but the SC is given the discretion to refer the appeal to the CA
instead.
Q: What are the differences between Rule 45, 64, and 65?
Rule 45
Rule 64
Rule 65
Petition for Review

on Certiorari
Certiorari against
COMELEC and
COA
Certiorari,
Prohibition, and
Mandamus
Mode of Appeal
Mode of Appeal
Independent Action
Cannot implead the

court as a party
COMELEC or
COA should be
impleaded as
respondent
The court or QJ
should be
impleaded
15 days
30 days
60 days
Question of Law
Question of Law
Question of Law
and limited to
Questions of
Jurisdiction
The order or
decision cannot be
executed.
The ruling of the

COMELEC or
COA will not be
stayed unless SC
issues an injunctive
relief
The ruling of the

court or QJ will not
be stayed unless SC
issues an injunctive
relief
SC
SC
SC, CA or RTC
Summary:
If the RTC is acting in its original jurisdiction, appeal may be had to
the CA or SC.
If the issues involve pure questions of fact or mixed questions of law
and fact, then appeal may be had by going up to the CA by ordinary
appeal. Ordinary appeal may take in the form of a notice of appeal or
record of appeal as the case may be. This is a matter of right.
If the issues involve pure questions of law, the appellant may proceed
to the SC directly by petition for review on certiorari under Rule 45.
This appeal is a matter of discretion.
In the case of quasi-judicial bodies, whether or not it involves factual
or legal issues or both, there may be appeal to the CA. The appeal is
in the form of a petition for review under Rule 43.
From the CA as an appellate court, the appellant may further appeal
to the SC by using a petition for review on certiorari under Rule 45.
This appeal is still a matter of discretion.
Motion for Reconsideration before the SC
It is possible.
Motion for New Trial before the SC
This is not possible. The SC will not entertain a motion for new trial
even if the ground is based on NDE. The Supreme Court is not a trier
of facts.
Further Appeal
The decision of a division of the SC is a decision of the SC. Thus, it
is not possible to appeal the decision of a division of the SC with the
SC en banc.
ANNULMENT OF JUDGMENT
Q: What is annulment of judgment?
A: It is a remedy in law independent of the case where the judgment
sought to be annulled was rendered. The purpose of such action is to
have the final and executor judgment set aside so that there will be
renewal of litigation.
NOTE: A co-equal court cannot annul the final judgment of a similar

court. CA has exclusive jurisdiction over actions for annulment of
judgments of RTC. An action to annul a judgment or final order of
MTC shall be filed in the RTC having jurisdiction in the former and
it shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47).
Extrinsic Fraud
Fraud is regarded as extrinsic when it prevents a party from having a
trial or from preventing a party from having a trial or from presenting
his entire case to the court, or where it operates upon matters
pertaining not to the judgment itself but to the manner in which it is
procured (Alaban v. CA, GR No. 156021, September 23, 2005).
Note, however, that extrinsic fraud, or collateral fraud, is not a valid
ground if it was availed of, or could have been availed of in a motion
for new trial or petition for relief.
Lack of Jurisdiction
Lack of jurisdiction as a ground for annulment of judgment refers to
either lack of jurisdiction over the person of the defending party or
over the subject matter of the claim.
Lack of jurisdiction over the subject matter and over the
person May be barred by estoppels by laches, which is
that failure to do something which should be done or to
claim or enforce a right at a proper time or a neglect to do
something which one should do or to seek or enforce a
right at a proper time. (1998 Bar Question)
The extraordinary action to annul a final judgment is restricted to the
grounds provided by law to prevent it from being used by a losing
party to make a mockery of a duly promulgated decision that has long
become final and executory.
Q: When may it be availed of?
A: The remedy of annulment of judgment may be availed of when
the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the
petitioner.
Q: Who may avail this remedy?
A: A person need not be a party to the judgment sought to be
annulled. What is essential is that he can prove his allegation that the
judgment was obtained by the use of fraud and collusion and he
would be adversely affected thereby.
Read: Islamic Dawah Council v. Court of Appeals
Q: Where should the petition be filed?
A:
Judgments of RTC
Judgments of MTC
Filed with the CA
Filed with the RTC
Basis It has exclusive original

jurisdiction over said action
under Sec. 9 (2), BP 129
Basis RTC as a court of

general jurisdiction under
Sec. 19 (6), BP 129
CA may dismiss the case

outright; it has the discretion on
whether or not to entertain the
petition.
RTC has no such discretion.

It is required to consider it as
an ordinary civil action.
Q: If a judgment of an MTC can be the subject of annulment by

CA or RTC as the case may be, can we also seek annulment of
the decisions by a quasi-judicial or administrative body?
A: Under BP 129, annulment of judgment, as procedurally explained
in Rule 47, does not extend to the quasi-judicial or administrative
body, unless such provision was allowed by the charter of such
administrative or quasi-judicial body.
Rule 47 refers to an action filed by a petitioner to annul a judgment
rendered by an RTC in a civil case. This is what literally BP 129
provided where CA is given the authority to annul decisions made by
an RTC in a civil action. Therefore, if the action is not a civil action
or rendered by a quasi-judicial or administrative body, we cannot use
Rule 47.
Q: Since Rule 47 says that the annulment contemplated in BP 129
refers to a judgment in a civil action, does it mean to say that the
judgment of an RTC acting as a criminal court cannot be subject
to annulment of judgment by the CA under Rule 47?
No.
If the judgment of the RTC is a judgment in a criminal case, we
cannot use Rule 47 as it is specifically stated in the said rule that
annulment of judgment is availing only to civil cases decided by the
RTC. Rule 47 is not a remedy to annul decisions or judgments
rendered by the RTC as a criminal court. A decision of an RTC in a
criminal case can be annulled by filing a case for habeas corpus.
Petition for habeas corpus is the equivalent in criminal cases of
petition for annulment of judgments in civil cases.
An RTC could act as a civil and criminal court. It exercises original
actions over both actions. RTC decisions in civil actions could be the
subject of annulment by CA under rule 47, but Rule 47 does not
apply if the decision is one rendered from criminal cases. The remedy
in order to annul a judgment in criminal cases is by filing a petition
for habeas corpus. BP 129 is very clear under Rule 47. What can be
annulled under Rule 47 are judgments in civil cases only.
Q: Is there a difference between Rule 47 (petition for annulment
of judgment rendered by an RTC in a civil case) and petition for
habeas corpus?
There are substantial differences.
Annulment under Rule 47 is a direct attack of a final and executory
judgment, the only purpose of which is to nullify and set aside a court
decision in a civil case. But in a criminal case where the decision of
the RTC may not be valid due to lack of jurisdiction or extrinsic
fraud, the remedy is petition for habeas corpus, which is an indirect
attack on the judgment of an RTC in the criminal case.
When a habeas corpus petition is filed in order to nullify a decision

on a criminal case, the principal relief which the petitioner seeks is to
declare the petitioner has been deprived of his liberty unlawfully. It is
not principally to set aside the judgment rendered by the RTC in a
criminal case.
The remedy of petition for habeas corpus in criminal case are more
advantageous than that of an annulment of judgment in civil cases.
This is because an annulment of judgment in civil cases is a direct
attack against the judgment in the civil case, while in the criminal
cases, the detainee can challenge the validity of the judgment of
conviction, although he is not attacking directly the validity of the
said judgment of conviction. He is attacking the validity of the
deprivation of his liberty.
Q: What is a collateral attack on judgment?
It is made in another action to obtain a different relief; an attack
on the judgment is made as an incident in said action. This is
proper only when the judgment, on its face is null and void, as
where it is patent that the court which rendered such judgment
has no jurisdiction (Co vs. Court of Appeals, 196 SCRA 705).
Note that Rule 47 is inserted in between the rules governing appeals.
The procedure for appeal starts with Rule 40 up to 56. Annulment of
judgment has nothing to do with appeals as it is a civil action.
Annulment of judgment is an original action that can be filed in the
RTC and CA. And, in Rule 47, when particularly applied to a petition
for annulment commenced before the CA, you will notice that some
of the features of a special civil action are carried by a petition to
annul the judgment filed with the CA. For instance, if a petition to
annul a judgment of an RTC in a civil case is filed in the CA, the CA
has the authority to outrightly dismiss the petition for lack of merit.
This is similar to Rule 65, where the petition for certiorari,
prohibition or mandamus can be outrightly dismissed if it is not
meritorious on its face.
Q: What if the decision in the RTC was already final and
executory, can the petition to annul judgment filed in the CA stop
the execution of the said judgment?
No. The petition will not stop the prevailing party from moving for
the execution of the final and executory judgment in the civil case,
notwithstanding the commencement of the petition to have the
judgment in the civil case annulled. The only remedies available to a
petitioner for annulment of judgment of an RTC in the CA is to apply
for the provisional remedy of PI or TRO to stop the RTC from
proceeding with the execution of the said judgment.
Q: Under Rule 47 in relation to BP 129 in the case of annulment
of judgments of an RTC filed in the CA, is it correct that only the
litigants thereto can file the petition to annul a judgment in a civil
case?
No. As held in the case of Islamic Da'wah vs. CA, the petition for
annulment of judgment in BP 129 and Rule 47 does not prohibit a
stranger from filing a petition to annul judgment. He can do so, so
long as he can show he will be prejudiced by the judgment sought to
be annulled.
In Islamic Dawah, in allowing a stranger to annul a judgment, then

he need not seek other remedies since the stranger to a case
cannot possibly avail of remedies that are available only to a
litigant in a case.
While CA has authority to outrightly dismiss annulment of judgment,
the RTC cannot. Insofar as RTC is concerned, petition to annulment
of a judgment by an MTC should be treated as any normal civil case.
In Rule 47, if the judgment is annulled, it is declared void by the
court. It is unenforceable, or if already enforced, CA can order
restitution if that is still possible.
Q: What is the general rule regarding execution pending appeal?

The judgment creditor cannot ask for execution of the judgment if the
case is pending appeal.
Q: Are there exceptions?
Yes. The Rules state four which are immediately executory:
1. Support
2. Receivership
3. Accounting
4. Injunction
A decision by the MTC in forcible entry and unlawful detainer cases
are also immediately executory.
Q: Is there a conflict between Rule 47, annulment of judgment,

and Rule 132, Section 29, or impeachment of a judicial record?
There is no conflict between Rule 132 and Rule 47 since they involve
very similar grounds. Although Rule 132 does include as one ground
collusion, extrinsic fraud under Rule 47 is broad enough to include
collusion. There is therefore, no real conflict.
Q: If a decision is immediately executory, does it mean the court

may execute the decision motu proprio?
No. There must be a correlative motion from the winning party. It is
immediately executory in the sense it may be executed even pending
appeal.
PRELIMINARY CONFERENCE IN APPEALS
Q: When is execution as a matter of discretion?

Under the Rules, if the decision is not among those decisions that are
immediately executory, the court may still execute the judgment even
pending appeal if the winning party proves good reasons in a hearing
before the court.
The preliminary conference before the appellate court is permissive,

not mandatory, unlike the rule on pre-trials under Rule 18. However,
if the CA or SC does call the parties to a preliminary conference and
the appellant does not attend, the appeal will be dismissed.
Q: May the winning party say that he is willing to put up a bond

in order to have an execution pending appeal?
No. The winning party must prove concrete good reasons. Putting up
a bond is not one of them.
Have a break. Have a Kitkat.
EXECUTION AND SATISFACTION OF JUDGMENT

Rule 39 has been described in jurisprudence as the one that gives life
to the law. It does so in the sense that the winning party will be able
to recover the award given in his favor. So if the civil case is the
recovery of money, and the court awards P2M to the prevailing party,
said party will not be satisfied until the P2M is given to him.
Q: Should Rule 39 always be resorted to in order to have
satisfaction of judgment?
No. It is not correct to assume that in order to satisfy a judgment, we
should always make use of Rule 39. Satisfaction of judgment as
conceived in Rule 39 is a forcible satisfaction of judgment. So if
the award in favor the judgment creditor is for the payment of the
judgment debtor of P2M, the judgment creditor does not even have to
think about Rule 39 if the judgment debtor immediately pays the
award of P2M.
It is only in that situation where the judgment debtor refuses to pay
that the only remedy of the judgment creditor to enforce payment is
to make use of Rule 39, to force the debtor to pay by levying his
properties and by selling his levied properties by public auction.
Q: May discretionary execution be stayed?

Yes. The judgment debtor only has to set up a supersedeas bond. If
there is an order of an execution pending appeal, he may go up using
Rule 65, provided there is grave abuse of discretion, and pray for an
injunctive relief against such order.
Q: What court will execute the judgment pending appeal?
It may be the appellate court or the trial court. As a general rule, it is
the appellate court which will execute the judgment pending appeal.
However, the trial court may also exercise its authority to execute the
judgment pending appeal if it has residual jurisdiction over the case.
It is one of the powers expressly enumerated by the Rules under the
doctrine of residual jurisdiction.
Q: What court executes the judgment the trial court or the
appellate court?
As a general rule, if there is an appeal from the decision rendered by
the trial court, and the case has reached the SC, even if the decision
of the trial court has been affirmed, and said decision by the SC has
been entered, it is not correct for the prevailing party to ask for
execution from the SC. The matter of execution is a duty of the court
of origin, not the appellate court. If the court of origin is the MTC, it
is the duty of the MTC to enforce the satisfaction of the judgment. It
is axiomatic that higher courts like the CA or SC do not usually issue
an order for execution of judgment.
Execution Pending Appeal
What a lawyer for the judgment creditor should do is to wait for the
records to be returned from the SC or CA to the court of origin. It
could take time for the records to be returned to the court of origin.
So, if a motion for execution was filed by the judgment creditor in the
court of origin before the records are returned, there is likelihood that
the court of origin will tell him they have not yet received the records
so they cannot act on the motion until the records reach the court of
origin. This is although the issuance of an order granting the motion
for execution is a ministerial duty of the court.
Rule 39, however, has provided for a remedy in this situation. The
appellate court will simply issue a certified true copy of the entry of
judgment. The certified true copy of the judgment will be submitted
to the court of origin in order to be a basis of the granting of the order
of a motion for execution. That is enough proof that there really is a
final and executory decision.
Q: Is there a need for the judgment creditor to file a motion for
execution, or will the issuance of a writ of execution come as a
matter of course?
There is always a need to file a motion for execution. If the judgment
creditor has not filed a motion for execution, the court has no
business to issue a writ of execution, because the court will not know
whether there was voluntary satisfaction of judgment.
Q: May a motion of execution be heard ex parte?
Since the judgment has become final and executory and it has now
become a ministerial duty of the court of origin to issue a writ of
execution, then the motion for execution will be heard ex parte,
without notice to the judgment debtor.
Although this issue has been the subject of conflicting decisions by
the SC, the latest jurisprudence said that a motion for execution of a
judgment that has become final and executory can be heard ex parte
by the trial court. Under the old doctrine, the judgment debtor should
also be given a copy of the motion for execution because the latter
may have grounds to oppose the issuance of the writ of for execution.
Q: What is the period granted by the Rules to file a motion for
execution?
Within the Rules, there is a period fixed within which the court can
grant a motion for execution as a ministerial duty. It is 5 years from
the entry of judgment. After the 5 years from entry, there can be
revival of judgment, no longer a motion, since this is an independent
action to revive the judgment. But the independent action to revive
judgment must be filed within the second 5-year period after the
entry of judgment.
Q: The Rules assume that the prescription period for the
execution of a judgment is the 10-year period. Is this a correct
assumption?
This is correct, as this is also provided under the NCC. A prescriptive
period of a final and executory judgment is really 10 years under the
NCC.
But what Rule 39 has provided was to divide the 10 years into two
parts; the first five years, and the second five years. Meaning, the first
five years, we can execute the judgment via a motion for execution.
After the lapse of the first five year period, the judgment creditor
cannot file a motion for execution. If he does so, the court will deny
the motion since the court will no longer have the authority to grant
the motion of execution. The second 5-year period is designed to
force the judgment creditor to file a separate independent action to
revive the judgment. So the motion for execution should be filed
within the first five years of the 10-year period.
Q: Is the first 5-year period strictly implemented by the rules?
It is not. It can be extended according to the Rules. The SC has
decided that if the institution of the judgment within the first five
years is delayed, and the delays are equitable or are attributable solely
to the conduct of the judgment debtor, then the 5-year period will be
correspondingly be extended, that is equal the delay caused by the
conduct of the judgment debtor.
For example, the judgment creditor filed a motion for execution of
the judgment on the third year of the first 5-year period. The court of
origin is an RTC. The judgment debtor received a copy of the motion.
After receiving the copy of the motion, the judgment debtor files a
petition for the annulment of judgment before the CA under Rule 47
with prayer for a preliminary injunction. CA granted the preliminary
injunction. Because of the preliminary injunction issued by the CA,
we cannot expect the RTC to order the execution of the judgment. It
took the CA two years to decide upon the petition of the judgment
debtor. In the end, CA ordered the dismissal of the petition for
annulment of judgment. There is now a delay of two years. If the 5year period has already lapsed due to the delay, another two years
will be added, the 5-year period will be automatically extended up to
seven years within which the judgment can be executed through the
filing of a motion for execution of judgment. That is how the SC
described how the first 5-year period and the second 5-year period
should be interpreted. It is not a fixed period.
Q: What does delay caused by the conduct of the judgment
debtor mean?
This simply means that the judgment debtor can legally delay the
execution of the final judgment. In fact, he is given two remedies
under the Rules to prevent the execution of a final judgment. Rule 38
is one means of delaying the execution of judgment. In Rule 38, the
court that decided the case can issue an injunction against the
enforcement of the judgment. Rule 47, or annulment of judgment, is
another remedy, but there should be a corresponding preliminary
injunction that is issued by the higher court. In annulment of
judgment, the court that will try the case will always be a higher
court. Thus, if the higher court hearing the petition issues an order to
stop the execution of the judgment, there is no way for the court of
origin to disobey such order.
Q: If the motion for execution is granted, which is expected, as
the judgment has become final and executory, can the judgment
debtor file an appeal against the order granting the motion for
execution?
No. Under Section 1 Rule 41, an order granting motion for execution
is not appealable. The order will be treated as a final order. The
remedy is to file a petition under Rule 65, a petition for prohibition.
Q: Suppose the court denies a motion for execution of judgment,

is appeal the remedy of a judgment creditor?
No, it does not seem so, based also under Section 1, Rule 41. The
creditor should also resort to Rule 65. The petition that he should file
is a petition for mandamus. Mandamus is proper because there is a
ministerial duty for the court to perform. Under Rule 39, as long as
the judgment has been entered, it has become a ministerial duty of the
court to grant a motion for execution. That is an act that can be
compelled by a writ of mandamus.
Q: May the judgment creditor file a motion for execution after
the first five-year period even if the judgment debtor consents?
No. The SC held that after the first five-year period, the court loses
jurisdiction to execute the judgment through a mere motion. The fact
that the judgment debtor did not oppose said motion does not matter
because the issue now is one of jurisdiction. Jurisdiction will not be
vested upon the court simply by inaction on the part of a party. Thus,
the proceedings taken by the court in granting the motion for
execution beyond the first 5-year period was held to be irregular. The
issuance of the writ of execution is void, and therefore the writ can be
quashed for lack of jurisdiction.
Q: Can the trial court promptly deny a motion for execution?
The general rule is that the trial court cannot quash or rightly deny a
motion for execution if the judgment has already been entered. But,
there are certain exceptions that the SC has recognized.
First, if the judgment has become dormant. This means the first five
years for executing the judgment has already lapsed. The execution
of the final judgment cannot be granted via a motion. The judgment
creditor must avail of the independent action of revival of judgment
to revive a dormant judgment.
Second, when the parties enter into a compromise agreement after the
judgment has become final and executory. If there is a compromise
agreement signed by both parties whose terms are not consistent with
the award given, the effect will be novating the judgment. The court
will no longer grant a motion for execution since there is nothing to
execute. The parties may agree to change the terms of the dispositive
portion of the judgment. This is an application of novation being a
mode of extinguishment of an obligation under the NCC.
Q: Is a writ of execution subject to a motion to quash?
Yes. A writ of execution may be quashed on certain grounds:
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the parties
making the execution inequitable or unjust;
3. When execution is sought to be enforced against a property
exempt from execution;
4. When it appears that the controversy has never been
submitted to the judgment of the court;
5. When the terms of the judgment are not clear enough and
there remains room for interpretation thereof;
6. When it appears that the writ of execution has been
improvidently issued;
7. When it appears that the writ of execution is defective in
substance, or is issued against the wrong party, or that the
judgment debt has been paid or otherwise satisfied or the

writ is issued without authority.
Q: What if the trial court denies the motion to quash?
Dean Albano: The party may appeal (either by ordinary appeal or a
petition for review) or by a special action of certiorari, prohibition, or
mandamus. Considerations of justice and equity dictate that there
must be some mode available to the party aggrieved of elevating the
question to a higher court (citing Banaga v. Majaducon).
Q: Suppose within the first 5-year period, the court grants a
motion for execution, and then issues a writ of execution. The
writ of execution is carried out by virtue of a levy on execution of
the properties of the judgment debtor. But the properties levied
upon were not sold during the first 5-year period. On the 6th
year, can the properties levied upon be sold at public auction?
Yes. According to the SC, the first 5-year period does not require that
the actual levy and sale of property on public auction must be done
within the first five years. What is important is that within the first 5
years, there must be an actual levy of the properties of the judgment
debtor, even if the auction sale was conducted in the sixth year. Levy
is the actual act of carrying out the judgment.
Revival of Dormant Judgment
Q: With respect to the revival mentioned in the Rules pertaining
to the second 5-year period, this is an independent action. If the
original action was a real action, will we still consider the revival
action as a real action?
Yes. If the original action is a real action, the action to revive that
judgment will also be a real action. Since it is a real action, in Rule 4,
the venue of the action will now be determined by the place where
the property is located. Thus, the revival of action will be filed in the
court having jurisdiction over the place where the property is
situated.
Q: To what court should revival of judgment be filed?
The case will be cognizable by the RTC because it is incapable of
pecuniary estimation.
Always remember that a petition to revive a dormant judgment is an
independent action separate and distinct from the original case. It is
not a mode of appeal or a continuation of that old case.
In fact, the decision of the revival court is not really a revival of the
old judgment. It is a new judgment altogether. This is the reason why
a judgment may be revived in perpetuity. Although it is true that the
NCC says that the judgment will prescribe after 10 years, since each
revived judgment is a new judgment altogether, so long as there is a
revival every ten years, it may last in perpetuity. Of course, this does
not factor laches and the articles of NCC against bad faith.
Q: May the judgment debtor raise want of jurisdiction against an
action to revive judgment?
No. Within the second five-year period from entry of judgment, the
debtor cannot oppose an action to revive judgment by setting up the
defense that the judgment is void due to lack of jurisdiction over the
person of the defendant, as this is a collateral attack on the judgment

rendered.
Q: It is possible that the parties of the original action and the
revival of judgment are different. Will the petition to revive the
judgment be dismissed?
No. The mere fact that the names appearing as parties in the
complaint for revival of judgment are different from the names of the
parties in the original case would not necessarily mean that they are
not the real parties-in-interest. What is important is that, as provided
in Section 1, Rule 3, they are the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails
of the suit.
If the judgment directs the judgment debtor to sign a deed of

conveyance or a deed of sale in favor of the judgment creditor,
and the judgment debtor refuses, the court can appoint another
person, usually the clerk of court, to sign the document on behalf of
the judgment debtor. That document cannot be considered a spurious
document, but one that is signed effectively by the judgment debtor
following a lawful order of the court.
If the judgment directs the judgment debtor to vacate a piece of
land or building, the court, through the sheriff, will forcibly oust
him from the building. The court will throw out the things belonging
to the occupants.
Revival of a Judgment Already Executed

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

executed, properties are levied upon, and these properties have been
sold at public auction, but the highest bidder, or anybody who
thereafter acquire the property, is not able to get possession of the
property because of opposition or legal complications that are related
to the execution of judgment. According to Section 34, the revival of
judgment could be had through a motion or through an independent
action. Thus, there is a difference between a revival of judgment
under Section 34, Rule 39 where it is a revival of a judgment already
executed via a motion or via an independent action, and the revival of
a dormant judgment where there has been no execution within the
first 5-year period prescriptive period of a judgment under Section 6
Rule 39.
Q: Can the court cite a judgment debtor for refusing to obey a

lawful order of the court in compliance with the judgment to be
executed?
No. Citation for contempt is generally not a remedy in enforcing a
judgment. Rule 39 contemplates an enforcement of a judgment by the
sheriff of the court making use of the processes in Rule 39. So if the
judgment debtor refuses to obey, a court cannot go to another court to
cite the judgment debtor in contempt. That is not contempt of court.
According to the SC, the writ is not addressed to the judgment debtor.
The writ is addressed to the sheriff of the court, and hence the sheriff
has the duty to carry out the dispositive portion of the judgment.
Take note of the differences between the two kinds of revival of

judgments in Rule 39, under Section 6 and Section 34.
Process
The improvement given by Rule 39 under the 1997 Rules, insofar as
the judgment creditor is concerned, is that under the present Rules,
the writ of execution issued by the court has a lifespan of five years.
The judgment creditor does not need to file one motion for execution
after another, which was the prior practice when the life of the writ of
execution was only 60 days. At any time during that five-year period,
the sheriff could enforce the writ, he may make levy the properties of
the judgment debtor. The only limitation imposed by the Rules is that
the sheriff must file periodic reports to the court as to the progress of
the process of execution.
Q: How does the court enforce a duly entered judgment?
It all depends on the tenor of the judgment.
If the judgment awards money, there will be levy and auction.
If the award involves delivery of properties or documents, there
will be no levy on execution, but the property to be delivered will just
be seized from the judgment debtor and promptly delivered to the
judgment creditor.
Q: Can there be contempt in collection of money cases by way of

exception?
Generally, no, but it is possible in support. Failure to give support can
result with the disobeying person being cited in contempt, as well as
being subjected to a criminal case for failure to give support.
Levy of Property
As a general rule, therefore, a judgment debtor who refuses to obey
the writ of execution cannot be cited in contempt. There are other
more effective remedies under Rule 39 in order to carry out the
possible satisfaction of the judgment. The more effective remedy
under Rule 39 is to levy the properties of the judgment debtor,
seizure thereof and sell them at public auction.
Q: Who possesses a property under levy on execution?
It depends.
Levy of properties under Rule 39 does not automatically mean that
possession of the levied properties will be in the hands of the sheriff
or the court. If properties of the judgment debtor that are levied upon
are real properties, the judgment debtor will continue to possess the
property and he will not be ousted. The court will simply submit a
copy of the levy of execution to the Register of Deeds and ask the
latter to annotate such fact. What is important to know in the levy of
real properties is that the judgment debtor will not be ousted from his
physical possession of the real property. He will continue to be in

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

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

even if the price is inequitably low, the sale will be valid.
The low price will not render the sale void because of the
existence of the right to redeem by the judgment debtor. If
the price is very low, that is advantageous to the judgment
debtor, because if he decides to redeem the property, he
need only to match the auction sale price.
Due to the above principles, the price generated during the auction
sale will be insufficient to pay the lien of the judgment creditor.
Q: Let us say that the judgment creditor has a lien of 1M, and a
piece of land owned by the judgment debtor was sold at public
auction, but generated only 500K. It is not enough to pay in full
the award given to the judgment creditor. The 500k will go to the
judgment creditor, but there is still a balance of 500k. When the
judgment debtor redeems the property, should he deliver to the
sheriff 500k or 1M?
The judgment debtor should deliver only 500k. He need not deliver
1M because the price paid by the highest bidder was only 500k.
Q: So, if the judgment debtor was able to redeem the property by
producing 500k, but the judgment creditor was not yet fully paid,
the judgment creditor will be tempted to have another levy on the
property. The judgment creditor could really entertain that idea
because he has not yet been fully paid. In Rule 39, there must be
full satisfaction of the award to put an end to the litigation. If the
judgment creditor decides to have another levy on the same
property previously levied upon, but the property had been
redeemed by the judgment debtor, can the same levying creditor
carry out another levy on the same property?
SC held that the same levying creditor cannot impose another levy on
the same property.
If the levying creditor wants to have full satisfaction of his lien, he
should make another lien on another property owned by the judgment
debtor. He could also avail of the other remedies provided for in Rule
39 if he cannot get full satisfaction of the judgment.
But this principle does not prevent other creditors from levying the
property that was already redeemed.
Q: Lets do a little backtrack. Who may redeem the property?
The judgment debtor, other creditors who has a lien subsequent to the
attaching creditor, and the assignee of the judgment debtors right to
redeem may all redeem the property.
Q: May the right of redemption be levied?
Yes. It could be a subject of a levy of execution, but not by the same
attaching creditor. For example, if A attaches Bs property where it is
eventually sold in an auction sale, another creditor, C, may attach Bs
right to redeem his property from A. But A may not attach the same
right of redemption because this would negate the idea of giving the
right of redemption to the debtor in the first place.
Q: The period of redemption is one year from the date of
registration of the certificate of sale. May the parties agree that
the period will be three years instead of one?
Yes. This shows the conversion of a legal redemption to conventional
redemption and is allowed by the NCC.
Q: How about they agree to reduce it to six months?
This is not possible. They may also extend the period, not reduce it.
Q: Who is entitled to the fruits of the levied property?

Rule 39 is clear. The fruits of the property sold at public auction
during the period of redemption shall redound to the benefit of the
judgment debtor when the redemption period is still running.
The basis of course is that the judgment debtor still retains ownership
over the property.
Q: What are the rights of a judgment debtor during the period of
redemption?
1. To remain in possession of the property until the expiration
of period of redemption;
2. To collect rents and profits until the expiration of period of
redemption;
3. To use the property in the same manner it was previously
used;
4. To make necessary repairs; and
5. Use it in the ordinary course of husbandry.
Auction Sale
In the auction sale, anybody can bid, even the judgment creditor. It is
usually the judgment creditor who will be offering the highest bid
because the judgment creditor can give an amount equivalent to the
award given by the court. If the award given by the court is 1M, then
the judgment creditor can give an amount as high as 1M. He need not
turn over any cash to the sheriff, because he will just tell the sheriff
that he will consider the 1M lien as fulfillment of his claim.
If a stranger is the highest bidder, this stranger is expected to give the
P1M to the sheriff.
Q: Can the judgment creditor be forced to shell out the
equivalent of the highest bid even if the highest bid is exactly
equivalent to the amount of his claim?
Generally, no. But if there is a third party claim, a terceria, and the
highest bid was that of the judgment creditor, the judgment creditor
must still shell out cash in order to be treated by the sheriff and the
court as the highest bidder.
Q: Lets say there is a highest bidder other than the creditor. To
whom should he deliver the cash or issue the check for?
He must issue the check to the order of the judgment creditor, not the
sheriff or the court.
Q: What happens if there is still a balance after auction sale?
If the judgment creditor is not fully paid, there are other options
given to him in order to fully satisfy the claim:
1. File a motion in the court for an examination of the
judgment debtor.
2. File a motion in the executing court for the examination of
a debtor of the judgment debtor.
3. File a motion for the appointment of a receiver for the
remaining properties of the judgment debtor.
Under the second ground, if there is evidence to show that these third
persons really owe the judgment debtor certain amounts of money,
which are not exempt from levy on execution, the court can issue an
order allowing the judgment creditor to file a separate complaint for
Fruits
the recovery of these accounts. Although the judgment creditor has

no cause of action against the third persons themselves, it is possible
under the Rules.
Receivership is allowed by the court, although the case has already
been terminated. This is one instance where a provisional remedy can
be used even after a case has been decided by the court. The usual
concept of a provisional remedy is that they are availed of during the
pendency of the case, before entry of judgment. But in the case of
receivership, this remedy can be availed of under Rule 39 even if the
case has already been decided, judgment has been entered and is now
subject to execution.
THE PRINCIPLE OF RES JUDICATA

Res judicata under Rule 39 consists of two sections, Sections 47 and
48. Dean Jara advises to memorize these two sections. For recitation
purposes, definitely memorize these two sections.
Section 47 is concerned with the effect of local judgment after it is
entered, and Section 48 is the effect of a foreign judgment.
In our study of res judicata, there are 3 essential elements:
1. Identity of parties
2. Identity of causes of action
3. Identity of subject matter
Besides this identity element, there should also be:
1. A competent court;
2. An adjudication on the merits; and
3. The decision must have become final and executory.
Section 47
Section 47 comprises of three subparagraphs.
Subparagraph (a) has to do with a judgment in rem.
Subparagraph (b) has to do with judgments in personam.
And subparagraph (c) talks about conclusiveness of judgment. This is
also known as preclusion of issues.
Subparagraphs (a) and (b) are also known as bar by prior judgment or
preclusion of claims.
When the judgment is entered as contemplated in Section 47, Rule
39, then the effect of the judgment is similar to a judgment in rem or
judgment in personam as the case may be. The collateral principle
that we adopt from this principle on res judicata is the doctrine of
finality of judgment, also known as immutability of judgment.
Under this doctrine, a decision that has acquired finality becomes
immutable and unalterable, and may no longer be modified in any
respect, even if the modification is meant to correct erroneous
conclusions of fact and law, and whether it be made by the court that
rendered it or by the Highest Court of the land. Any act which

violates this principle must immediately be struck down.
Q: Rule 39 implies that the petition to revive a dormant
judgment is an independent action. Will this not violate the
principle of res judicata?
No. Although there is identity of parties, there is no identity of causes
of action. The cause of action for the petition to revive the dormant
judgment, which is obviously the revival of the dormant judgment, is
different from the first case.
This is the same reason why Rule 47 will not violate the principle of
res judicata. Although the parties are the same, the causes of action
are not. The cause of action in Rule 47 is the annulment of judgment
of the court. It is different from the cause of action in the first case.
Q: Are there any exceptions?
Yes. If you read FGU Insurance, there are exceptions to the doctrine
of immutability of judgment. These are:
1. The correction of clerical errors;
2. the so-called nunc pro tunc entries which cause no
prejudice to any party;
3. void judgments; and
4. whenever circumstances transpire after the finality of the
decision rendering its execution unjust and inequitable.
Read: FGU Insurance v. RTC
Note: Dean Jara says there is a fifth ground involving a 2007 case. I
cannot find it. The old notes say when substantial justice so requires
but he denies this is the fifth ground during our recitation. Or Im just
sleepy during that time. Anyway, make more research, and read more
notes. There is a fifth ground, I just dont know what.
If you read Dean Albanos Survey of SC Decisions (San Beda Law
Journal, Vol. XLIX), Dean Jara might be referring to either unjust
enrichment or the courts exercise of its equity jurisdiction.
Unjust enrichment is covered, however, by number 4, and equity
jurisdiction is more the reason, the root cause, why these judgments,
though immutable, may be still changed. So theres that.
Q: How do you rectify void judgments?
A collateral attack since void judgments are ineffective anyway, or a
direct attack in the form of a petition for relief from judgment or a
petition to annul the judgment.
Q: What is a judgment nunc pro tunc?
It is a judgment intended to enter into the record the acts which had
already been done, but which do not appear in the records. Its only
function is to record some act of the court which was done at a
former time, but which was not then recorded, in order to make the
record speak the truth, without any changes in substance or any
material respect.
Judgment In Rem
Under subparagraph (a) the law says the judgment is conclusive upon
the title to the thing, the will or administration, or the condition,
status or relationship of the person.
This is the reason why a cadastral proceeding is considered as an
action in rem. The judgment in that litigation is conclusive upon the
title and is not conclusive upon the plaintiff or defendant. Since the
judgment in a cadastral proceeding is conclusive upon the title of the
property, that judgment will have to be binding against the litigants as
well as anybody who has an interest over the property, although these
persons might have not been involved in the litigation.
In the probate of a will, which is another procedure in rem, when
there is a decision of the court admitting the will to probate, it is
conclusive upon the will or administration. Therefore, anybody who
has an interest in the will must respect the decision of the court.
But you will notice that there is a caveat when it comes to a probate
of a will: It is not conclusive as to the fact that the testator is dead.
There is only a disputable presumption, unless proof thereof is
presented. The reason for this is that in civil law as well as in the
Rules, it is possible that probate may be commenced even when the
testator is still alive, provided that the probate of the will is initiated
by the testator himself.
If a person has been issued a decree of adoption of a child named
Juan dela Cruz, the decree is conclusive upon the personal status of
that adoptee. Therefore, anyone who meets the adoptee and transacts
with him shall be bound by the issued decree of adoption.
Judgment In Personam
Under subparagraph (b), the law says the judgment is conclusive
between the parties and their successors in interest by title subsequent
to the commencement of the action or special proceeding, litigating
for the same thing and under the same title and in the same capacity.
In letter b, when the law says that judgment is conclusive upon the
parties and their successors in interest as to matters directly adjudged
or as to matters that could have been adjudged, that phrase litigating
for the same thing and under the same title and in the same capacity
will refer, for instance, to a compulsory counterclaim or a crossclaim. This is because we learned that a compulsory counterclaim or
a cross-claim that is not raised in the same action shall be barred. The
reason they will be barred is because they are matters that could have
been raised in relation to the principal action.
An example of an action in personam is reconveyance of property. If
the action is an accion reinvindicatoria, it is an action in personam.
Although real property is involved, still it is an action in personam. It
is an example of a real action that is still in personam.
Q: Plaintiff won the case for reconveyance of property. Judgment
is entered. The plaintiff is now the owner of the property insofar
as the judgment is concerned. However, X, the true owner of the
property, filed a case for recovery of the property. Is there res
judicata?
No. There is no identity of parties between the first and second case.
There is therefore no res judicata.
Q: If there is identity in the subject matter, does it not follow that
there will be identity in the causes of action?
No. There could be identity as to the subject matter, but the causes of
action could still be different.
For instance, in accion reinvindicatoria, the subject matter involves a
piece of land. The case involves title to a piece of land. If there was
another complaint filed involving the same piece of land, the cause of
action could be different, although they are referring to the same
land. For instance, there could be a case for unlawful detainer filed
involving the same property. Though involving the same property,
the same subject matter, the causes of action are different. Accion
reinvindicatoria involves recovery of title to property, while unlawful
detainer involves recovery of physical possession of the property.
The second case cannot be dismissed by reason of res judicata since
there is no identity of causes of action.
Q: What is the essential difference between a judgment in rem
and a judgment in personam?
The big difference is to whom the binding effect of res judicata shall
attach. If it is a judgment in rem, the judgment shall be binding to the
world. If it is a judgment in personam, it is only binding between the
parties and their successors in interest.
Conclusiveness of Judgment
Subparagraph (c) of Section 47 is a kind of res judicata with limited
application. There could be identity of parties and subject matter, but
there is no identity of causes of action. Thus, subsequent cases may
prosper due to absence of res judicata.
Q: The debt based on a promissory note was 1M payable in two
installments. The debtor defaulted in the first installment. The
creditor filed a case where creditor stated that the PNs signature
was forged. The court held that the signature on the note was
genuine. Then, the second installment became due. Can another
complaint be had?
Yes. Each installment gives rise to a separate cause of action.
Q: Can forgery be raised again on the promissory note?
No. The judgment on the first case is conclusive insofar as the
genuineness of the note is concerned.
Q: Lets have another example. A filed a case against B where the
issue is ownership of a certain building. It was settled that A is
the owner. B, however, filed another case against A, but this time
its possession of said building. Will the case be dismissed under
subparagraphs (a) or (b) of Rule 39?
No. Although there is identity of parties (A and B) and identity of the
subject matter (the building), there are no identity of causes of action.
The question in the first case is ownership. In the second case, its
possession.
Q: May B raise the question of ownership in the second case?
No, he may not. Although there is no identity of causes of action,

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

When the judgment is patently void on its face, it is vulnerable to
collateral attacks.
For example, a creditor cannot file a case solely for the purpose of
obtaining a preliminary attachment. Preliminary attachment should be
a relief prayed for in an independent case.
Support pendente lite cannot be a principal action, but there can be a
principal action called a complaint for support, with application of
the provisional remedy of support pendente lite.
PROVISIONAL REMEDIES
Provisional remedies are also called interim reliefs or provisional
orders. They are called provisional because they are only temporary,
auxiliary. It is not possible for the plaintiff to file a complaint solely
for the purpose of obtaining any of these provisional remedies.
Writ of Amparo and Writ of Habeas Data are actions in themselves,

but may be treated as provisional remedies. If there is a criminal case
already filed involving the disappearance of a person, that criminal
action being the principal case, a writ of Amparo or a writ of Habeas
Data may be used as a provisional remedy.
Q: What are the Provisional Remedies under the Rules of Court?

1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
Although we have several provisional reliefs, interim reliefs or

provisional orders, it is incorrect to assume that they are the same.
These different circulars have not adopted the provisions in the Rules
of Court (Rules 57 to 61).
Q: The enumeration of provisional remedies in the rules is no

longer exclusive. What are other provisional remedies available?
1. Writ of Habeas Data
2. Writ of Amparo
3. The provisional remedies under a writ of amparo:
a. Protection Order
b. Production Order
c. Witness Protection Order
d. Inspection Order
4. Provisional Remedies in Marriage-Related Cases:
a. Spousal Support
b. Child Support
c. Visitation Rights
d. Temporary Custody of Minor/s
e. Hold Departure Order
f. Protection Order
g. Administration of Common Property
5.
See: A.M. 02-11-12-SC

Provisional Remedies under a Writ of Kalikasan:
a. Temporary Environmental Protection
(TEPO)
b. Preliminary Attachment
c. Cease and Desist Order
Order
Also, these discovery measures that appears to be

considered as provisional remedies:
d.
e.
Ocular Inspection Order

Production Order
Q: What is the common element of provisional remedies?

There is a pending principal action, except when the provisional
remedy by itself is or can be treated as a principal action, such as
Replevin, Writ of Amparo and Writ of Habeas Data.
We cannot file an independent action solely for the purpose of
obtaining as a principal relief any of these provisional remedies.
If you will notice under Rules 57 to 61, one of the common

requirements is the posting of bond by the applicant (except support
pendente lite). For example, we have an attachment bond, receivers
bond, production bond, and the like.
In the circular on marriage-related cases, the family court can grant
these provisional orders with or without bond at the discretion of the
family court. Also, in the same circular, the family court can grant
these provisional orders with or without a hearing, which is similar to
some provision in the Rules that some remedies can be granted ex
parte.
In the Amparo circular, when it comes to the provisional relief of a
Production Order and Inspection Order, there must be a motion filed
by the applicant and a hearing conducted. In the case of a Witness
Protection Order and Protection Order, they can be issued ex parte.
In the Amparo circular, there is nothing mentioned about the posting
of a bond by the applicant.
In the circular for the Writ of Kalikasan, the issuance of Temporary
Environmental Protection Order (TEPO) does not require a bond. Just
like preliminary injunction, there can be TRO good for 72 hours, but
can be extended until the end of the case. What is peculiar is that
the party required to post a bond in a TEPO is not the applicant
but the adverse party who will apply the lifting of the TEPO.
When the adverse party moves for the lifting of the TEPO, the
adverse party is required to file a bond to protect the other party.
In most preliminary reliefs, it is the applicant who files a bond. The
filing of a counterbond will lift the preliminary relief. The same is
true with a TEPO, but the applicant does not have to file a bond. If
the TEPO is issued, and the adverse party wants to have the TEPO
lifted, he will be required to post a bond to protect the interest of the
applicants.
A common rule of provisional remedies that is also applicable to the
issuance of the interim reliefs is that the interim relief or provisional
order is always interlocutory; it is not a final order and has nothing to

do with the merits of the case. Appeal is not allowed.
The accepted remedy to challenge the issuance of a provisional
remedy or interim relief or a provisional order is Rule 65, but in some
circulars, that also has been changed substantially.
For instance, under summary procedure, when it grants a provisional
order, it is not appealable, and the adverse party cannot file a petition
under Rule 65. The reason is that the application of availment of Rule
65 in order to challenge an interlocutory order is prohibited under
summary proceedings.
Likewise in Amparo, there is a similar provision stating that the grant
of provisional order is interlocutory and Rule 65 is not available,
being an express prohibited pleading.
In the circular of Kalikasan, the issuance of TEPO is also
interlocutory. Although TEPO can be challenged, the problem is that
the challenge on a TEPO can only be filed before the SC under Rule
65. Only SC can entertain a petition assailing the issuance of a TEPO.
Q: May MTC grant interim relief?
Yes. This has been settled under BP 129. Under Sec. 33 of BP 129, it
is clearly provided that MTCs have authority to grant provisional
remedies so long as it has jurisdiction over the principal case.
PRELIMINARY ATTACHMENT
You will notice in Section 1 that there are six (6) instances where one
can file for the relief of preliminary attachment. In the first five, there
is a common denominator, intent to defraud the applicant.
The last is closely related to Rule 14, i.e., summons. The applicant is
moving for an interim relief in order to enable him to secure for
himself a judgment in court by attaching the properties of the party
who otherwise could not be served with summons in any manner,
including publication. When property of the absent party is attached,
the action in personam will be converted to an action in rem or quasi
in rem by virtue of a preliminary attachment issued by the court and
actually implemented by the sheriff.
Except for the last part of Section 1, the only purpose of the applicant
in moving for the issuance of a writ of preliminary attachment is to
obtain a security for any judgment that may be rendered later on by
the trial court in his favor.
If we will note the cases enumerated in Section 1, the conduct of the
adverse party is criminal in character. The fraud committed could be
a criminal fraud or a civil fraud. The conduct should fall in any one
of the instances under Section 1 of Rule 57.
Thus, the issuance of a bouncing check can cause the filing of an
information and an application for attachment of properties of the
drawer. There is fraud in the performance of an obligation. Under the
NCC, there is fraud either in the performance of an obligation (dolo

incidente), or in contracting (dolo causante, a deception employed by
one party prior to or simultaneous to the contract in order to secure
the consent of the other). In both instances, they are justification for
the issuance of preliminary relief.
Q: A borrower obtains a loan from a bank and later on the
borrower became addicted to gambling. He loses tons of money
and he defaults in the payment of the loan. The bank naturally
filed a complaint for the recovery of the loan. May the bank ask
to levy the properties on the ground that the borrower is a
gambling addict?
No. This is not one of the grounds enumerated in Section 1, Rule 57.
Q: Supposing the plaintiff has a creditor that holds collateral. If
there is default in payment of indebtedness, and there is a case of
collection with allegation of intent to defraud, can the creditor
move for preliminary attachment over properties other than the
collateral?
Yes. Although applicant may already have a security or a collateral in
hand, the court may still grant preliminary attachment if the applicant
proves such collateral/security is insufficient to satisfy the debt. Thus,
creditor can look for other properties of the debtor sufficient to secure
the obligation due once the court grants preliminary attachment.
Q: When may preliminary attachment be asked and issued?
It may be issued from the commencement of the action until the
judgment is entered. It is quite long and may even be applied for even
during appeal.
Q: What should the application for preliminary attachment say?
The application should be verified and contain the following:
1. A sufficient cause of action exists;
2. That the case is one of those mentioned in Section 1;
3. That there is no other sufficient security for the claim
sought to be enforced; and
4. That the amount due to the applicant, or the value of the
property the possession of which he is entitled to recover, is
as much as the sum for which the order is granted above all
legal counterclaims.
The applicant must also post an attachment bond, the value of which
shall be determined by the court.
In preliminary attachment, there are two rules that are applicable to
preliminary attachment as well as other provisional remedies in the
Rules when they are granted ex parte:
1. Prior and/or contemporaneous service of summons
2. Principle under Section 20 Rule 57
Prior and/or contemporaneous service of summons
For a court to act validly, the court must acquire jurisdiction over the
cause of action, the person of the plaintiff and the person of the
defendant.
Preliminary attachment is available even before jurisdiction over the
defendant can be had. The plaintiff only had to post a bond and prove
during hearing ex parte that the grounds under Section 1 are complied
with. To carry out the writ, the sheriff must first serve the summons
and then the notice of attachment, or serve them contemporaneously.
This will remedy the lack of jurisdiction by the court over the person
of the defendant.
This principle is applicable to all provisional remedies that may be
granted ex parte even before the court has gained jurisdiction over
the person of the defendant. This can be applied, for instance, in
preliminary injunction and the preliminary relief of replevin.
Q: Why is preliminary attachment allowed to be heard ex parte,
even before the defendant may answer?
The plaintiff is contending before the court that the defendant is truly
a dishonest person. If the defendant be allowed to know about the
application for preliminary attachment, and he truly is dishonest,
there is great danger, a great possibility, that he will continue his acts
of dishonesty and hide all of his properties from the court.
This is true for all the grounds under Section 1, except the last. Under
the last ground, where the defendant is not a resident and is not found
in the Philippines, the purpose is to obtain jurisdiction over the case.
Q: What happens if the summons is not delivered?
The attachment is void, except if:
1. The summons cannot be delivered personally or by
substituted service despite diligent efforts;
2. the defendant is a resident of the Philippines temporarily
absent therefrom;
3. the defendant is a non-resident of the Philippines; or
4. the action is one in rem or quasi in rem.
Q: Who takes possession of the attached property?
It depends.
If properties of the defendant are going to be subject to attachment,
and these properties are those capable of delivery, like a car, they will
be seized in custodia legis so long as the preliminary attachment is
not lifted. But the property will not be delivered to the plaintiff, nor
used by the defendant. It will be in the custody of the court. If the
court takes three years to decide the case, the property will be under
custody of the court for three years.
In case of real property, the title will be annotated with a lien. The
owner will not lose ownership or possession. He can sell it, but the
buyer will be notified via the annotation on the title that there is a lien
and it is possible that the property can be subject to auction sale later
on. The buyer could stand to lose his title on the property. The buyer
cannot be considered a buyer in good faith. He will always be a buyer
with notice of the existence of the preliminary attachment.
If the defendant has a sizable bank account, the sheriff will simply
prepare a writ of garnishment and serve it upon the bank. When the
bank receives the writ, the bank will freeze the account up to the
amount of the claim. And if the bank account is frozen, the defendant
cannot use these funds anymore. The bank will not allow him to
withdraw. If it is a checking account and the defendant issued checks
thereon, the bank will dishonor the checks that are presented to it.
Thus, a preliminary attachment is a serious derogation of the rights of

ownership of the defendant.
In that writ of garnishment, which is also applicable to Rule 39, there
will be a new relationship created as an incident to the case, which
we call forced intervention the bank, whether it likes it or not, will
be subject to orders of the court. So if a bank account is garnished,
whether the bank likes it or not, the bank will be forced to follow the
orders of the court, in the sense that the bank will have to freeze the
bank account of the defendant.
Q: Is it possible that a property under custodia legis be subject to
preliminary attachment?
Yes. The court that issued the preliminary attachment, however, will
not take over the control of the property attached.
Q: May there be multiple attachments over the same property?
Yes. It is possible. The reason is because a preliminary attachment
only creates a lien over the property that has been attached, and that
lien is not a certainty because the court will still try the case. If the
court later on rules against the applicant, the lien will be set aside.
Q: What if the property is under mortgage? May it be attached?
Yes. The preliminary attachment will only create a lien over the same
property. The mortgage also creates a lien over the property. In this
case, the principle of seniority of liens shall apply. The mortgage lien,
since it was made earlier than the attachment, will be the senior lien.
The preliminary attachment will only create a junior lien.
Terceria
The rules on terceria or a third-party claim under Rule 39 shall apply
to preliminary attachment. The only difference between Rule 39 and
Rule 57 is that the third party in Rule 57 may intervene, he may file a
motion for leave of court to intervene with the case. This is not at all
possible in Rule 39 because Rule 39 presupposes that there is already
a final and executory judgment. The right to intervene ends upon the
entry of judgment.
Lifting or Setting Aside of the Preliminary Attachment
Q: How is preliminary attachment lifted?
1. File a cash deposit with the court equal to the attachment
bond;
2. File a counterbond via surety authorized by the court; or
3. File a motion for lifting the preliminary attachment due to
being improper or irregular.
Q: If the defendant has already posted a counterbond and the
preliminary attachment has already been lifted, can he apply for
reversal of the order granting preliminary attachment?
Yes. Even if the defendant has caused the lifting of the preliminary
attachment by payment of cash deposit or by counterbond, he can still
file a motion to lift the preliminary attachment. This is because he has
put up counterbond or cash deposit enough to secure the satisfaction
of the claim of the plaintiff in lieu of the property. If his motion is
granted, he will obtain the counterbond or cash deposit.
Principle under Section 20, Rule 57
Q: If there is a pending case and the applicant wins, there is now

a judgment on the merits in favor of the applicant. Can the losing
party, the defendant, still hold the applicant liable for improper
or irregular attachment even if he lost the case?
Yes. If the applicant eventually wins the case, it means the applicant
has a cause of action. But it does not necessarily follow that the cause
of action falls under Section 1 of Rule 57. He may not have been able
to prove dishonesty or intent to defraud. So, if the applicant failed to
prove that his case falls under the cases mentioned in Section 1 of
Rule 57, it means that the issuance of the court of the writ of
preliminary attachment was irregular and improper. The only
instances the court should grant preliminary attachment are the
instances mentioned in Section, 1 Rule 57. If the defendant wins the
case, the applicant shall be liable for damages as a matter of course.
But Section 20 is the procedure to be followed in rendering the
applicant liable for damages for a wrongful or improper issuance of a
writ of preliminary attachment.
the time the case is decided, the car may already be in bad condition.
That is the role of a writ of replevin. If the plaintiff files a complaint
today for the recovery of a car, if he wants to gain possession of the
car right away, he should file an application for a writ of replevin in
order for him to immediately gain possession of the car.
The first principle under Section 20 Rule 57 is that the recovery

of damages should be had in the same case, not in an independent
action. The adverse party must submit an application for damages for
improper issuance of writ of preliminary attachment. The most
practical way of informing the court right away is to set up in his
answer a compulsory counterclaim for recovery of damages. If the
defendant did set up a counterclaim for recovery of damages, and
then the defendant eventually wins, he will just file an application
through a motion to conduct a hearing on the extent of liability to
which the defendant is entitled to recover.
The value of the bond required is different than the other provisional
remedies. The bond is double the value of the property subject to
seizure as alleged in the complaint. The trial court has no authority
to increase or decrease the bond. It will be based solely on the value
of the property as alleged in the complaint.
It is not possible for the defendant who has won the case to file a
separate complaint for recovery of damages arising out of a wrongful
attachment. If he did so, that independent case will be dismissed,
even motu propio. due to res judicata.
The solution to this is to advise the plaintiff to implead 2 defendants,

one who was known by the plaintiff to possess the thing subject to
the complaint and an unknown defendant. As a result, the sheriff can
rightfully seize the car from anybody who might be in possession, as
long as the unknown defendant is impleaded in the complaint.
Under Section 20, Rule 57, it is very clear that the extent of damages
to be recovered need not be equivalent to the attachment bond filed in
court. If the attachment bond is insufficient, the defendant may avail
of a levy of execution under Rule 39.
Remember that Section 20 of Rule 57 is applicable to preliminary
injunction, receivership, and replevin.
Writ of replevin is tilted always in favor of the applicant. The court

can grant the motion or application ex parte. This is one provisional
remedy which cannot be granted by an appellate court. Only the court
of original jurisdiction can grant it because this can be granted only
before the defendant answers. But, like preliminary attachment (PA)
in some circumstances, there must be prior/contemporaneous service
of summons to cure the defect in jurisdiction over the person of the
defendant. Once served, the sheriff will seize the personal property.
To repeat, replevin is only available as a provisional remedy before
the defendant answers.
Also, if the sheriff finds that the property is not in possession of the
defendant but a third person who is not a litigant, and said person
claims ownership of the property, the sheriff has no authority to seize
the property.
The sheriff has a five-day holding period after seizure. If there is no

challenge on the sufficiency of the replevin bond, the sheriff shall
turn over possession to the plaintiff. This is the advantage of replevin,
it immediately enables the plaintiff to recover possession of the
personal property that is the subject of litigation.
Within the holding period of 5 days, the defendant can file a motion
to challenge the sufficiency of the bond.
REPLEVIN
Replevin is accepted as a main action and as a provisional remedy at
the same time. Recovery of possession of property capable of manual
delivery is termed a complaint for replevin. It automatically rules out
a real action.
If a 3rd person claims to be a true owner of the thing (like in Rule 57

and Rule 39), he must file a third-party claim with the sheriff. But in
replevin, the third party claim must be filed within the 5-day holding
period; otherwise, the third party claim is useless. After the fivew-day
holding period, the sheriff shall deliver the car to the applicant.
In replevin cases, without an application of a provisional remedy of a

writ of replevin, the plaintiff recovers possession of a personal
property only after the case has been decided in his favor. So, if the
plaintiff filed the case today for recovery of a car without an
application for the provisional remedy of a writ of replevin, and the
case was decided five years later, the car shall remain under the
possession of the defendant during those five years. Chances are, by
Q: A complaint for replevin was filed by X for recovery of a car.

The court issued the writ but the sheriff submitted a return
saying he cannot enforce the writ as the car can no longer be
found. What the plaintiff did after receiving the return was to file
another application for Preliminary Attachment of the properties
of the defendant based on the same complaint on the ground that
the defendant has gotten hold of the property fraudulently and
that he has hidden the car so it cannot be found and be subject to

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

further subjected to another writ of replevin?
Yes, this is possible. The property is not under custodia legis. It is
under the possession of the last person who had the writ of replevin
issued.
Both require an injunction bond.
Also, in replevin, the decision of the court can be in the alternative. If

the property itself cannot be delivered, the value of such property can
be delivered to the prevailing party.
TRO can be granted ex parte, by way of exception, in instances when

there is grave and irreparable injury that will be caused to the
applicant, and in no way shall the total period of the TRO be longer
than 20 days. The court will still fix a TRO bond. During the 20-day
period, the court will still conduct a hearing to determine whether or
not a writ of PI will be needed.
Q: What if the party wishes to obtain possession of a real

property? What is his remedy if not replevin?
The party may make use of preliminary mandatory injunction (PMI).
This is not only recognized in the Rules but also the NCC.
PRELIMINARY INJUNCTION
The principal action could be any action coupled with an application
for a TRO or a writ of preliminary injunction. A special action for
certiorari under Rule 65 is usually accompanied by a verified
application for TRO and writ for PI. The relief usually asked for in
Rule 65 is for a writ to prevent or prohibit the respondent court from
going ahead with the case pending before the court, or in case of
certiorari, to set aside the decision or interlocutory order of the
respondent court. Preliminary injunction and TRO can be availed of
in any civil proceeding where the principal relief sought by the
applicant or petitioner is to prevent an act or compel performance of
an act. PI can also be had in criminal cases or special proceedings, as
long the principal relief is to compel or to prevent the performance of
an act.
Q: Who issues injunctive relief?
It may be granted b the court where the action is pending. If the
action or proceeding is pending in the CA or the SC, it may be issued
by the court or any member thereof.
As a general rule, the court cannot grant TRO or a writ of PI without

a hearing, unlike preliminary attachment. You should always expect a
summary hearing, with notice to both parties, to be conducted.
PI, on the other hand, absolutely requires a summary hearing. A court

cannot grant a PI without a hearing. There is no exception. It is only
in the issuance of a TRO where there is an exception to the general
rule where it can be issued ex parte.
Q: What is the meaning of the phrase irreparable injury?
It means it is an injury that is of constant and frequent recurrence, not
necessarily involving money, by reason which a fair redress could not
be had in a trial court.
Do not forget the modifications of a SC Circular to Rule 58. It states
that if a court has issued a writ of PI which has no term, the court that
issued such writ of PI must decide the principal action within a period
of 6 months. This is the modification in that circular. If the court does
not place a limit of six months to decide the principal action, the writ
will effectively be a perpetual injunction because it is effective until
the case has finally been decided. If the court grants the PI today, it
has only 6 months within which to decide the case. In deciding the
principal case, the trial court could rule in favor of the plaintiff or
defendant. If it ruled in favor of the defendant, the PI is automatically
lifted, meaning the plaintiff has no right at all to ask for the writ of
PI.
Although the authority of the court is very broad in the issuance of a
writ of PI, there are instances where a court cannot grant a writ of PI
or TRO:
1.
2.
3.
4.
5.
6.
In the enforcement of Kalikasan Statutes (except the SC, as

only SC is authorized to issue TRO or PI in Kalikasan
cases)
If there is a TEPO issued by any court (it is only the SC
that can prevent the carrying out of the TEPO)
In case of infrastructure projects of the national government
(only the SC that can prevent the carrying out of the
project)
When it is a government bank that forecloses the mortgage
(only the SC that can prevent the carrying out of the
foreclosure, either judicial or extra-judicial)
The court has no authority to grant injunctive relief against
the BoC. (violation of separation of powers)
The court cannot grant injunctive relief against deportation
of aliens (violation of separation of powers)
Q: What is the relief of the person against whom an injunctive

writ has been issued?
If we compare the remedies available to a defendant against whom an
injunctive writ has been issued to a person whose property has been
preliminary attached, in Rule 57, in PA, if the defendant files with the
court a counterbond, the lifting of the PA is ministerial to the court.
The properties will be returned. In PI, the PI cannot be lifted without
a hearing despite posting of counterbond. The court cannot rely on
the filing of a counterbond to lift the PI, as it has to study the merit of
the lifting of the injunction. It is not a matter of right of the adverse
party to expect the injunction court to lift the PI just because of the
filing of a counterbond. The reason why the Rules do not make it a
ministerial duty of the court to lift the PI simply because there is a
counterbond is due to the ground of grave and irreparable injury. The
injury cannot be measured exactly, there is no mathematical formula
to determine extent of damages that applicant can suffer in injunction
cases.
We should always relate PI to forcible entry and unlawful detainer in
the NCC. The MTC is expressly allowed to grant a Preliminary
Injunction or Preliminary Mandatory Injunction.
The NCC contains some procedures in matters pertaining to Forcible
Entry or Unlawful Detainer. In the NCC, which is copied by Rule 70,
it is provided that the court can grant PI or PMI in cases of ejectment.
If the MTC grants PI or PMI, that cannot be appealed or challenged
by a petition under Rule 65. Under the rule on summary proceedings,
Rule 65 is a prohibited pleading in summary proceedings in
challenging an interlocutory order.
But when that ejectment case is appealed to the RTC, in the exercise
of its appellate jurisdiction, the NCC, as well as the Rules, provides
that the RTC can grant PMI or PI if applied by the plaintiff/applicant.
The PI or PMI granted by the RTC as an appellate court remains
unappealable because it is interlocutory, but can now be challenged
under Rule 65. This is because summary procedure is in effect while
the case is in the MTC, whereas on appeal in the RTC, the regular
procedure applies, and challenge under Rule 65 is allowed.
Take note that a writ of preliminary injunction is deemed dissolved
upon the dismissal of the main case.
RECEIVERSHIP
Receivership has a feature not present in other provisional remedies.
Provisional remedies are contemplated to be used during the
pendency of the case. In receivership, the court can appoint a receiver
not only during the pendency of a case but also after the judgment
has been issued or in the process of execution of said judgment. This
feature makes this remedy unique. There is no fixed time in which a
court can appoint a receiver.
Relate this to the remedies of a judgment creditor in Rule 39 when he
is unable to recover full satisfaction of his account. Under Rule 39,
the judgment creditor can ask for examination of the judgment debtor
for any properties. If there are still properties present, the judgment
creditor can apply that such properties be placed in receivership.
There always has to be a summary hearing. No ex parte appointment
of a receiver is allowed.
The grounds for appointment of receiver are quite broad. Whenever
the court feels that there is a need for the appointment of a receiver to
preserve the property in litigation, it shall do so.
The property, however, has to be in litigation. The court should not
appoint a receiver if the effect would be to dispossess the parties. The
remedy of receivership is not intended to dispossess the possessor of
the property during the pendency of the case.
The Rules also provide in foreclosure of a mortgage, the mortgagee
can move for the court to have the mortgaged property placed under
receivership, even if there is no proof that the collateral will be lost or
deteriorate. This can be done when the deed of mortgage contains a
stipulation authorizing the mortgagee to move for the appointment of
a receiver. But generally, the purpose of receivership is to preserve
the property under litigation from loss or deterioration.
Q: Who does the receiver represent?
SC held that the receiver is not a representative of either party. It
classified the receiver as a representative and an officer of the court.
As a result, the receiver cannot file a case as a receiver without the
consent of the court. If a receiver needs to file a case to recover
certain properties under receivership, he needs permission from the
court to do so. On the other hand, if a third person has a grievance
against the receiver in his capacity as a receiver, the third person
cannot simply file a case against such receiver because that third
person must seek permission of the court first. We find here a
situation where the filing of a case will need permission of the court.
If not granted, that action will fail.
Practically every issue is left to the court. The court determines how
much compensation to give to the receiver, the qualifications of a
receiver, how many receivers may be needed. If the court can appoint
a receiver, it can also fire him and appoint a new one, whenever there
is a need to preserve the property.
There is another feature in receivership that is not found in the other
provisional remedies. In receivership, there are two bonds:
1.
2.
Bond of the applicant

Bond of the receiver
The applicant should manifest that he is able to post bond. Once the
court appoints the receiver, the receiver shall also post a bond. The
receivers bond is designed to protect the parties to the litigation from
any abuse or mischief by the receiver in the performance of his duty.
If you are asked why the Family Court can order support without a
hearing, just state that there is no need to determine the needs of the
spouse or of the minor children, there is no need for the court to
determine the financial ability of the defendant, because in familyrelated cases, there is a need for an inventory of properties submitted
to the Family Court by the petitioner. Based on the inventory, the
court can conclude how much the spouse is entitled and how much
the minors are entitled to support.
SUPPORT PENDENTE LITE

This is found under the Rules and also mentioned in the SC Circular
on Provisional Remedies in Marriage-Related Cases. In fact, the
circular of the court is more expansive. It does not only mention
support pendente lite, but also classifies it into spousal support and
child support, and are treated differently.
Under the circular, the Family Courts can grant both spousal support
and child support even without hearing and without requiring the
filing of a bond.
This is different in trial in courts that are not functioning as family
court. This is because under the Rules of Court, it is not proper for an
ordinary court to grant an application of support pendente lite without
conducting a hearing. Under the Rules, support pendente lite can only
be allowed after a hearing, and the applicant and respondent are given
the chance to explain. The reason why this is required in the Rules is
because a court cannot conceivably issue an order unless the court is
able to determine that the petitioner needs support, and even if the
fact that the petitioner does need support is proven, to determine that
the respondent is capable of grant such support. This is because if the
court simply grants an application for support pendente lite without
examining the financial ability of the respondent, the provisional
remedy will be useless. If the respondent cannot comply, as he had no
means to give support, he could be jailed. This is one action where
the court can imprison a respondent who does not comply with its
order to give support, although the respondent really may not have
the ability to really do so.
Q: Since the applicant is not required to post a bond, what may

the defendant do if he eventually proves the applicant is not
really entitled to support?
The party may go after the person who is supposed to give support or
he may go after the beneficiary to refund the money. These remedies
are quite impractical because it is really possible that the beneficiary
has already used the money.
Other Provisional Orders in Marriage-Related Cases
Also, with respect to the provisional orders granted by Family Courts
in marriage-related cases, although some of the provisional orders are
called by some other name, they actually are similar to injunction.
For example, Temporary Protection Orders (TPO) in marriage-related
cases are actually a prohibitory injunction and a mandatory injunction
at the same time. This is because in the protection order, the Family
Court prohibits respondent from doing certain acts, which is similar
in effect to a prohibitory injunction. Also, the Family Court can order
the respondent not to enter the former conjugal dwelling and to
remove his personal properties from the house. Thus, it also partakes
of a mandatory injunction.
We also have receivership in marriage-related cases where the court
may appoint an administrator of the common or conjugal properties
of the spouses. The administrator is in effect a receiver of properties
owned in common.
ENVIRONMENTAL CASES
There are in fact three remedies in case of violation against giving of
support under substantive law:
1. Imprisonment for commission of a crime
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against the violator under
Rule 39
Of particular interest is the third remedy. Although Rule 39 generally
applies only to final judgments, a writ of execution may be used to
enforce support pendente lite.
Under the Rules, you will notice that the principle in Section 20, Rule
57 is not followed at all. As a general rule, the remedy to recover
damages in wrongful issuance of provisional remedies should be in
the same case. There must be no separate action to recover damages.
But if you read the provisions for support pendente lite, it is expressly
provided that there could be an independent action for recovery of
money given as support in compliance with an order of the court.
Do not confuse an environmental case from a writ of Kalikasan and a

writ of Continuing Mandamus.
An environmental case may be civil or criminal. The jurisdiction and
venue shall be governed by the respective law violated. For example,
if it is the Clean Air Act which is violated, the provisions of such law
where to file the case shall govern.
A writ of Kalikasan may be commenced in SC or CA. A writ of
Continuing Mandamus may be commenced in RTC, SC, or CA.
Whether it is an environmental case (except criminal cases), a writ of
Kalikasan, or a writ of Continuing Mandamus, the complainant and
respondent must attach in his complaint or answer, as the case may
be, documentary and/or object evidence available to him.
In a civil environmental case, should the defendant fail to answer the

complaint within 15 days from receipt of summons (10 days if it is an
answer to a compulsory counterclaim or cross-claim), the court shall
declare the defendant in default motu proprio. This is an exception to
the general rule.
A motion to declare the defendant in default is prohibited in civil
environmental cases. Upon motion of the plaintiff, the court shall
receive evidence ex parte.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree
approving the agreement between the parties.
Q: What is a consent decree?
This is similar to a judgment based upon a compromise. Under the
Rules, it is defined as a judicially-approved settlement between the
concerned parties based on public interest and public policy to protect
and preserve the environment.
The Rules on Evidence are not necessarily followed. The quantum of
evidence required in civil environmental cases is mere preponderance
of evidence. However, there are several instances in Kalikasan cases
where mere substantial evidence is enough, which is also followed in
Amparo cases.
Q: Is a Environmental Protection Order a preliminary injunction
or a preliminary mandatory injunction?
It may be both. If you take a look at the definition of an EPO, it says
it may direct or enjoin any person or government agency to perform
or desist from performing an act. Thus, it may be in the form of a PI
or a PMI.
Q: What are the differences between a TEPO and TRO/PI under
the Rules of Court?
1. Although both TRO and TEPO may be issued ex parte, a
TRO may last 20 days or 72 hours as the case may be while
TEPO only lasts 72 hours.
2. The period of 72 hours in TEPO is counted from receipt of
the TEPO by the party enjoined while the 72 hours in TRO
is counted from the issuance of the same.
3. A TRO only lasts for 20 days. A TEPO may last until the
termination of the case if so extended.
4. The applicant in TEPO is exempted from posting a bond.
Q: A civil environmental case involves EPO, TEPO, TRO, and
PI. What are the differences between them?
I really dont know either, and Dean Jara did not really discuss this in
class (or I was again daydreaming), but let me attempt to resolve this
problem. Read at your own risk!
If the applicant wishes to stop government agencies from enforcing
an environmental law or from preventing violations thereof, he must
file a TRO or PI with the Supreme Court and the SC only. The Rules
of Court shall be followed and the distinctions between TRO and PI
there will be followed.
If the applicant wishes the court to direct or enjoin any person or a

government agency to perform or desist from performing an act in
order to protect, preserve, rehabilitate the environment, he must file
EPO or TEPO as the case may be.
The difference between EPO and TEPO on one hand, and TRO and
PI on the other hand, therefore, may be (and just may be) the fact that
TRO and PI wishes to enjoin a government agency from enforcing an
environmental law. If there is no environmental law involved (or it is
not a government agency), use EPO or TEPO.
Again, this is conjecture, but it seems the difference between TEPO
and EPO is that EPO is a final order, it is permanent, while TEPO as
its name suggests is only temporary. This is different from TRO and
PI because TRO and PI are both interlocutory. TRO may only last for
20 days, while PI may only last for 6 months if filed in a court other
than the SC.
Q: What is the difference between EPO and a writ of Continuing
Mandamus?
It seems there is no great difference between a permanent EPO and a
writ of continuing mandamus in so far as effect goes, except it seems
EPO may direct or enjoin while a writ of Continuing Mandamus may
only direct.
A petition for a writ of Continuing Mandamus seems to be also faster
than a civil environmental case with a prayer for EPO since it skips a
few steps, such as pre-trial, and may expedite proceedings. The trial
in a writ of Continuing Mandamus is also only summary in nature.
Q: May TEPO be subject to Rule 65?
No. Rule 65 is available only if there is no other remedy available to
the aggrieved party. The party or person enjoined by the TEPO may
file a sufficient bond to dissolve the TEPO and only after hearing. If
after the hearing, the motion for dissolution of the TEPO is denied,
then the aggrieved party may now proceed with Rule 65. Although
the order is interlocutory, there is no prohibition in the Environmental
Rules from filing a petition for certiorari under Rule 65, unlike in
summary procedure and small claims proceedings.
Q: What is the precautionary principle?
The precautionary principle states that when human activities may
lead to threats of serious and irreversible damage to the environment
that is scientifically plausible but uncertain, actions shall be taken to
avoid or diminish that threat.
Q: What is SLAPP?
SLAPP refers to Strategic Lawsuit Against Public Participation. It is
an action, whether civil, criminal or administrative, brought against
any person, institution or any government agency or LGU or its
officials and employees, with the intent to harass, vex, or exert
undue pressure or stifle any legal recourse that such person,
institution or government agency has taken or may take in the
enforcement of environmental laws, protection of the environment, or
assertion of environmental rights.
Q: Anonymous collator, you failed to discuss Writ of Kalikasan

and Continuing Mandamus extensively!
Dean Jara will discuss this in Special Civil Actions. They are special
civil actions, they are not ordinary environmental civil cases. If you
take a look at the circular, it really is like a mini Rules of Court.
If you have review materials and wish to join a

share and share alike group, send me an e-mail:
lexosthenes@gmail.com.
You may also email me if you wish to obtain a
DOCX/DOC/PDF format of this document or an
update of the same.
Thank you!

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[ IKEBUKURO NOTES ]

2015 CONSOLIDATED NOTES: CIVIL PROCEDURE

This tome attempts to consolidate the hundred lecture notes by Dean

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

The intellectual property over the content of this compilation belongs

JURISDICTION: GENERAL NOTES

SC: EXCLUSIVE ORIGINAL JURISDICTION

With the RTC:

With the CA:

With the RTC and CA:

With the RTC, CA and Sandiganbayan:

SC: APPELLATE JURISDICTION

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

JURISDICTION OF THE COURT OF APPEALS

With the RTC and SC:

With the SC, RTC and Sandiganbayan:

Q: Is the SC a court of general jurisdiction?

JURISDICTION OF THE REGIONAL TRIAL COURT

Not all actions incapable of pecuniary estimation are cognizable by

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

RTC: JURISDICTION IN REAL ACTIONS

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

JURISDICTION OF MUNICIAL TRIAL 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

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.

MTC: DELEGATED JURISDICTION

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

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

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

DOCTRINE OF JUDICIAL STABILITY

RULES OF COURT: GENERAL PROVISIONS

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

Read: Alonso v. Villamor

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

CAUSE OF ACTION AND THE PRINCIPLE OF CONDITION

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

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

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

SPLITTING A CAUSE OF ACTION

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

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

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

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

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

Read: Larena v. Villanueva

Read: Swagman Hotel v. Court of Appeals

JOINDER OF CAUSES OF ACTIONS

MISJOINDER DUE TO INCOMPATIBLE JURISDICTION

This is because partition will involve a different procedure from

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

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

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

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

while unlawful detainer will be governed by summary procedure. We

Permissive Joinder of Parties

VOLUNTARY JOINDER OF PARTIES

JOINDER OF PARTIES: INDISPENSABLE PARTIES