Beruflich Dokumente
Kultur Dokumente
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1. This applies to both civil and criminal actions. The allegations in a complaint or
information help the Judge determine whether he or she has jurisdiction over the case
and can therefore act on it.
2. Without a law conferring jurisdiction, the courts are useless. When there is jurisdiction
conferred by law, the court through the Judges now have the power to hear, try, and
decide a case.
o How does the court acquire jurisdiction over the person of the plaintiff? By the
filing of the complaint and by payment of filing fees. Payment of filing fees is jurisdictional.
1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the
payment of the prescribed docket fee that vests a trial court with jurisdiction over the
subject matter or nature of the action. Where the filing of the initiatory pleading is not
accompanied by payment of the docket fee, the court may allow payment of the fee
within a reasonable time but in no case beyond the applicable prescriptive or
reglementary period. (Sun Insurance vs. Asuncion, 1989).
2. The same rule applies to permissive counterclaims, third party claims and similar
pleadings, which shall not be considered filed until and unless the filing fee prescribed
therefor is paid. The court may also allow payment of said fee within a reasonable time
but also in no case beyond its applicable prescriptive or reglementary period. (Id.)
3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate
pleading and payment of the prescribed filing fee but, subsequently, the judgment
awards a claim not specified in the pleading, or if specified the same has been left for
determination by the court, the additional filing fee therefor shall constitute a lien on
the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized
deputy to enforce said lien and assess and collect the additional fee. (Id.)
o You are to pay filing fees for permissive counterclaims, because for all intents and purposes,
a permissive counterclaim is independent of the principal action. It has no relationship at all
to the principal action.
o In 2004, Rule 141 was amended to include compulsory counterclaim in the payment of filing
fees. And then in the same year, the Supreme Court came up with a resolution suspending
Rule 141, specifically filing fees on compulsory counterclaims until today.
o Two (2) instances where the lien on the judgment award can be applied:
1. Where there is incorrectly assessed or paid filing fee;
2. Where the court has discretion to fix the amount of the award, i.e. where the court
awards damages which were not prayed for.
o If you relied in good faith, on a computation of the Clerk of Court, and based on that
computation, you paid filing fees, the court has acquired jurisdiction. And if by chance, it is
later discovered that it is incorrect, or deficient, there will be a lien on the judgment award
because it was incorrectly assessed or paid. Jurisdiction is acquired because it was not the
fault of the party.
o Do you need to pay filing fees for the amount of interest which accrued at the
time of the filing of the complaint? Yes, because it has already accrued. However, in
cases where the court awards interest to the prevailing party, interest which accrued during
the pendency of the case will be a lien on the judgment award.
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o Do you need to pay filing fees for a supplemental complaint? Yes. While the court
already acquired jurisdiction on the principal complaint, you need to pay filing fees for the
supplemental complaint. Otherwise, the court cannot act on it.
1. There is no waiver on filing fees on the part of the parties (inaction, failure to object,
etc.). Even the lower courts cannot waive the filing fees, only the Supreme Court can
waive the payment of filing fees.
o If your case is classified as incapable of pecuniary estimation, the filing fee is a fixed
amount. But if it involves actions on title to, possession of, or interest over real property, you
will have to pay filing fees.
1. In actions on title to, possession of, or interest over real property, for purposes of
jurisdiction, the threshold amounts are PhP 20K and PhP 50K. But under Rule 141, if
the action is capable of pecuniary estimation, and it involves real property, it will be
based not on the assessed value (AV), but on the fair market value (FMV) or zonal
valuation or, in the absence of which, based on the allegations of the complaint.
2. Jurisdiction over actions for partition depends on what is to be partitioned. If the
property to be partitioned is a real property, the basis is the assessed value.
o How do you determine jurisdiction in terms of the claim? You determine it based
on the amount of the claim, exclusive of damages, interest, attorneys fees, and costs of suit.
However, where the claim is purely for damages, jurisdiction is determined by the amount of
damages claimed (SC Circular No. 09-94).
o How does the court acquire jurisdiction over the person of the defendant?
Through service of summons under Rule 14; or voluntary appearance/submission to the
jurisdiction of the court.
1. The general rule is that the question of jurisdiction could be raised at any time even on
appeal. An exception to this rule is estoppel on the question of jurisdiction (Tijam
vs. Sibonghanoy, 1968).
o Declaratory Relief under Rule 63 is covered only by the first paragraph. The second
paragraph refers to Other Similar Remedies, i.e. quieting of title or removal of cloud
therefrom, reformation of an instrument, and consolidation of ownership.
1. The case of Sps. Sabitsana vs. Muertegui (2013) treated Other Similar Remedies
under Rule 63 as a Declaratory Relief, and for that reason, it is the RTC that has
original jurisdiction. The ruling in this case is more attuned to the civil code provision.
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Rule 3, Sec. 6. Permissive joinder of parties. All persons in whom or against whom any right to relief in respect to or
arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative,
may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question
of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders
as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings
in which he may have no interest.
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comes in when a party asks for consolidation because the cases are now pending before
the court.
4. You can join a personal and a real action in one complaint, but the joinder of the
causes of action is dictated by the case falling within the jurisdiction of the RTC.
o Can you join an ordinary action with a special civil action in one complaint? How
about a special civil action with another special civil action? No. If the rules are
covered by different rules, you cannot join them.
o Misjoinder of causes of action: A misjoinder of the causes of action will not lead to the
dismissal of the case. Filing fees already paid will be forfeited. There is no refund of filing fee.
o Totality Rule: It is the sum of all your monetary claims; recovery of sums of money. You
can institute one case for each cause of action; but you can also join all causes of action, in
which case jurisdiction will be determined by the total amount of the claim.
o Splitting of Cause of Action3
1. For all intents and purposes, splitting a cause of action is forum-shopping.
2. Forum-shopping can be committed in three (3) ways:
a. There are multiple cases based on the same cause of action, with the same
prayer, the previous case not having been resolved (litis pendencia);
b. There are multiple cases based on the same cause of action, with the same
prayer, the previous case having been finally resolved (res judicata);
c. There are multiple cases based on the same cause of action, but with different
prayers (splitting cause of action).
3. Splitting cause of action is not a ground to dismiss. The proper ground under Rule 16
in a Motion to Dismiss4 is res judicata or litis pendencia.
o Can you amend a case or complaint when at the outset, there is no cause of
action? No. When at the outset there is no cause of action, you cannot amend the case
because in the first place there is no case to speak of.
o Can you amend a complaint to substantially alter the cause of action? Yes. In a
case, the Supreme Court held that even if the cause of action is substantially altered, for as
long as there is a cause of action, amendment is left to the discretion of the court. What is
important is there is a cause of action.
Rule 2, Sec. 4. Splitting a single cause of action; effect of. If two or more suits are instituted on the basis of the same
cause of action, the filing of one (litis pendencia) or a judgment upon the merits (res judicata) in any one is available as a ground
for the dismissal of the others. (Emphasis and annotations supplied).
3
Rule 16, Sec. 1. Grounds for a Motion to Dismiss. Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:
a. That the court has no jurisdiction over the person of the defending party;
b. That the court has no jurisdiction over the subject matter of the claim;
c. That venue is improperly laid;
d. That the plaintiff has no legal capacity to sue;
e. That there is another action pending between the same parties for the same cause;
f.
That the cause of action is barred by a prior judgment or by the statute of limitations;
g. That the pleading asserting the claim states no cause of action;
h. That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;
i.
That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds;
j.
That a condition precedent for filing the claim has not been complied with.
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Rule 3, Sec. 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
5
Rule 3, Sec. 18. Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court, upon motion
with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal
guardian or guardian ad litem.
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Rule 3, Sec. 3. Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative
or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the
real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be
sued without joining the principal except when the contract involves things belonging to the principal.
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5. In case of death of a party, check the facts of the problem as to whether who died,
and what the nature of the action is, because these will determine whether Sec. 168
(substitution), or Sec. 209 of Rule 3 will apply.
a. In Sec. 16, death refers to the death of any party as long as the nature of the
action is that which would not be extinguished by reason of death, and it does
not involve a sum of money.
b. Sec. 16 is substitution by reason of death. This is a matter of due process.
Even if the process of substitution is not followed, but the heirs actively
participated and submitted themselves to the jurisdiction of the court, the
requirement of due process is faithfully satisfied. The proceedings cannot be
declared null and void. The proceedings will only be declared null and void if
due process was not served.
c. If there is no court order for substitution, or if the lawyers notice was defective,
there is no substitution. The general rule therefore is that if the process for
substitution in Sec. 16 (the two steps: duty of the counsel, and duty of the court)
were not followed, there will be no successful substitution; and because there is
no successful substitution, the proceedings are null and void because due
process was not observed.
i.
ii.
d. Sec. 20 will apply only under these conditions: the defendant dies, and the
nature of the action is a sum of money.
i.
Sec. 20 has a very narrow application. If it was the plaintiff who died,
and it is a money claim, Sec. 20 will not apply. It is Sec. 16 which will
apply.
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Rule 3, Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death or the fact thereof, and
to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a
ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the
specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or
administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.
Rule 3, Sec. 20. Action on contractual money claims. When the action is for recovery of money arising from contract,
express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time
of such death, it shall not be dismissed but shall instead be allowed to continue until the entry of final judgment. A favorable
judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person.
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ii.
iii.
6. In case of public officers10 who die, resign, or otherwise cease to hold office during
the pendency of an action in which such public officer is a party, the law requires that
within thirty (30) days from the time that a successor has been named or appointed,
there should be an indication or showing whether the successor will adopt or continue
to adopt the act of his predecessor; and for that reason, he should be given notice and
opportunity to be heard. This is the essence of due process.
a. If the successor adopts the acts of his predecessor, the case instituted by or
against the predecessor continues. This is a case of substitution.
7. In case of transfer of interest11, and the transferor dies during the pendency of the
action, the transferee cannot be the substitute because death has already set in.
Transfer of interest can only apply if both the transferor and the transferee are alive.
a. What will apply in case the transferor dies during the pendency of the action
even if he has transferred his interest, is Rule 3, Sec. 16.
b. In Jocson v. Court of Appeals (1990), the court held that the BPI is bound by
the decision of the trial court being the transferee pendente lite of the original
defendant therein, despite the fact that it had not been substituted for the
original defendant and had not been notified of the proceedings against it.
(Heritage Park vs. CIAC, 2008)
c. A transferee pendente lite stands in exactly the same position as its
predecessor-in-interest, the original defendant, and is bound by the
proceedings had in the case before the property was transferred to it. It is a
proper but not an indispensable party as it would in any event be bound by the
judgment against his predecessor. This would follow even if it is not formally
included as a defendant through an amendment of the complaint. (Id.)
o Can a domestic corporation sue and be sued? Under what capacity (basis)? Yes.
Capacity is that it is duly organized and incorporated under the rules whether of the PH, or
in the country where it was organized.
1. In every pleading, you will have to state capacity - of an individual, of legal age; of a
corporation, that they are duly organized under the law by which they are formed.
Rule 3, Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an action in
his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted
by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it
and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution
is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application
therefor and accorded an opportunity to be heard.
10
11
Rule 3, Sec. 19. Transfer of interest. In case of any transfer of interest, the action may be continued by or against the
original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action
or joined with the original party.
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2. If you would like to make an issue out of capacity, you will have to state it, or you will
have to deny it, and you will have to identify the particulars why you oppose the
capacity; and if there are documents, you will have to attach the documents.
o Can a foreign corporation sue in the PH?
1. Where the foreign corporation is licensed and has submitted to the jurisdiction of the
court, and is doing business in the PH, such foreign corporation can sue and be sued
in the PH.
2. Where the foreign corporation is not licensed and has not submitted to the jurisdiction
of the PH law, but it is doing business in the PH, it cannot sue in the PH, but it can be
sued.
a. Exception: If the domestic corporation or individual benefitted from his
relationship with the foreign corporation which is not licensed to do business
in the PH, he is estopped from raising the abovementioned defense. Hence,
such foreign corporation can sue in the PH.
3. Where the foreign corporation is not licensed, but has only dealt with a domestic
corporation or a Filipino individual on an isolated transaction, i.e. not in the regular
or ordinary course of business, such foreign corporation can sue and be sued in the
PH.
o Can a non-juridical12 entity sue? No, it cannot institute an action because it has no
juridical existence, but the individuals comprising the non-juridical entity can sue.
1. Can it be sued? Yes it can be sued. This is for the protection of the public because
the public was made to believe that they are dealing with a juridical entity, but the
truth is they are not. If you sue a non-juridical entity, it is the duty of its members to
disclose in their answer, their true names and addresses.
2. How do you serve summons?13 You serve the summons to any one of the members
of the non-juridical entity or someone in charge of its office.
3. A judgment14 against the non-juridical entity will be a judgment against its individual
members assuming they were made parties to a case, not against the non-juridical
entity because it has no separate juridical existence.
o Entities authorized by law: Labor organizations; Political parties; Estate.
o Indispensable and Necessary Parties
1. An indispensable party is someone who should be impleaded in order to have a final
determination of the case. If you dont implead an indispensable party, any judgment
will be null and void. It is the duty of the court to stop the proceedings if it identifies
Rule 3, Sec 15. Entity without juridical personality as defendant. When two or more persons not organized as an
entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly
known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed.
12
13
Rule 14, Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without
juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all
the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in
such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been
severed before the action was brought.
Rule 36, Sec. 6. Judgment against entity without juridical personality. When judgment is rendered against two or
more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known.
14
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that the indispensable party was not impleaded, because it is useless to proceed with
the case.
a. If the court orders that an indispensable party be impleaded, but despite the
order of the court, the indispensable party was not impleaded, the court should
dismiss the case.
b. In an action for judicial partition, a co-owner of a property is an indispensable
party. Under the Rules of Court, partition cannot proceed because an
indispensable party is not included.
2. A necessary party should be impleaded in order to have a complete determination or
settlement of the claim subject of the case.
a. If a necessary party is not impleaded, there can still be a valid judgment, unlike
in the case where an indispensable party is not impleaded, in which case there
will be no valid judgment.
o Can you still proceed with the non-impleaded necessary15 party?
1. If the court ordered that the necessary party be impleaded, and such order was not
followed, there will be waiver of claims against the necessary party.
2. But if there was no order from the court to implead the necessary party, that is without
prejudice to any action against the necessary party.
3. What is crucial here is the order from the court requiring you to implead the
necessary party.
o A class suit16 requires that there exists a common or general interest; that the parties are so
numerous that it is impracticable to bring all the parties to court; and that there is adequacy
of representation, i.e. whether the interests of the named party is co-extensive with the
interests of the other members of the class considering the proportion of those made a party
as it bears to the total membership of the class.
1. Where the interests of the plaintiffs and the other members of the class they seek to
represent are diametrically opposed, the class suit will not prosper. (Banda vs.
Ermita, 2010).
2. The mere fact that the complaint says that it is a class suit does not make it a class
suit. What makes it a class suit is that it satisfies the requirement of law under Rule 3,
Sec. 12, and likewise satisfies the requirement of adequacy of representation.
3. If there is diversity of interests among the members of a class, there is no class suit.
Once the common or general interests tweak, there is diversity. Hence, no class suit
will prosper.
15
Rule 3, Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted
a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court
find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his
person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver
of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action,
and the judgment rendered therein shall be without prejudice to the rights of such necessary party.
16
Rule 3, Sec. 12. Class suit. When the subject matter of the controversy is one of common or general interest to many
persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently
numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party
in interest shall have the right to intervene to protect his individual interest.
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o Who is an indigent party? - There are two (2) definitions of an indigent party under Rule
3, Sec. 21, and under Rule 141, Sec. 19.
1. Rule 3, Sec. 21: A party may be authorized to litigate his action, claim or defense as
an indigent if the court, upon an ex parte application and hearing, is satisfied that the
party is one who has no money or property sufficient and available for food, shelter
and basic necessities for himself and his family.
2. If the applicant for exemption meets the salary and property requirements under
Section 19 of Rule 141, then the grant of the application is mandatory. On the other
hand, when the application does not satisfy one or both requirements, then the
application should not be denied outright; instead, the court should apply the
"indigency test" under Section 21 of Rule 3 and use its sound discretion in determining
the merits of the prayer for exemption. (Sps. Algura vs. LGU of Naga City, 2006).
3. Under the provision of the Rules, there are two (2) benefits of being an indigent, i.e.
exemption from payment of docket fees (which will be a lien on the judgment award
in case of a favorable decision), and entitlement to the TSN.
o Tests of Indigency (Rule 141, Sec. 19): For an applicant for legal aid, the combined
means and merit tests shall be used to determine his/her eligibility:
1. Means Test - This test shall be based on the following criteria:
a. The applicant and that of his immediate family must have a gross monthly
income that does not exceed an amount double the monthly minimum wage of
an employee in the place where the applicant resides; and
b. He does not own real property with a FMV as stated in the current tax
declaration of more than PhP 300K.
2. Merit Test A case shall be considered meritorious if an assessment of the law
and evidence at hand discloses that the legal service will be in aid of justice or in the
furtherance thereof, taking into consideration the interests of the party and those of
society. A case fails this test if, after consideration of the law and evidence presented
by the applicant, it appears that it is intended merely to harass or injure the opposite
party or to work oppression or wrong. [A.M. No. 08-11-7-SC (IRR), Art. IV, Sec. 3]
o The PAO has a different basis in determining indigents. What Sec. 21 of Rule 3 refers to is the
determination of the court on who is to be an indigent; i.e. who is exempt from payment of
filing fees. The determination of an indigent for purposes of being represented by the PAO is
different this is for purposes of representation.
o Can a juridical entity claim that it is an indigent? No, the courts cannot grant to
foundations like the Good Shepherd Foundation, Inc. the same exemption from payment of
legal fees granted to indigent litigants even if the foundations are working for indigent and
underprivileged people. (Re: Query of Mr. Roger C. Prioreschi Re: Exemption from Legal and
Filing Fees of the Good Shepherd Foundation, Inc., A. M. No. 09-6-9-SC).
1. The clear intent and precise language of the provisions of the Rules of Court on
indigent parties indicate that only a natural party litigant may be regarded as an
indigent litigant. The Good Shepherd Foundation, Inc., xxx is a juridical person. As a
juridical person, therefore, it cannot be accorded the exemption from legal and filing
fees granted to indigent litigants. That the Good Shepherd Foundation, Inc. is working
for indigent and underprivileged people is of no moment. Clearly, the Constitution has
explicitly premised the free access clause on a persons poverty, a condition that only
a natural person can suffer. (Id.)
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RULE 4: Venue
o Can venue be a subject of waiver? Yes. Venue can be waived. It can be the subject of an
agreement of the parties, while jurisdiction, on the other hand, being conferred by law cannot
be subject of an agreement.
1. The court cannot dismiss the case motu proprio on the ground of improper venue,
because venue is waivable. If a party does not object to the improper venue either in a
motion to dismiss or in the answer, such ground for objection is deemed waived.
o Can the venue of real actions be stipulated upon by the parties? Yes. Rule 4, Sec. 4
provides that where the parties have validly agreed in writing before the filing of the action
on the exclusive venue thereof, the rule on venue of actions will not apply. The agreement of
the parties on venue prevails, most especially if there are words of exclusivity.
1. When there are words of exclusivity in the stipulation on agreement, it excludes all
other venues, even those provided for by law. The agreement prevails. In the absence
of words of exclusivity, the venue provided in the contract is only in addition to what
is provided for by law.
2. If there is a specific provision of law which provides for the venue of the action, such
provision shall prevail over the provisions of Rule 4.
o Venue in personal actions17 is dictated by the residence (not domicile) of the parties. In
civil procedure, residence refers to the place where the party is physically present.
o Venue in cases against a non-resident defendant:18
1. In a personal action, plaintiff may institute the action where the plaintiff or principal
plaintiff resides; or where the defendant is found at the option of the plaintiff;
2. In case where the personal status of the plaintiff is involved, the plaintiff may institute
the action in the place where he resides; and
3. Where the defendant-owner of a real property is not found in the PH, the case
involving the property of the non-resident defendant may be instituted in the place
where the property is located or found.
Rule 4, Sec. 2. Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of
the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident
defendant where he may be found, at the election of the plaintiff.
17
Rule 4, Sec. 3. Venue of actions against non-residents. If any of the defendants does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines,
the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion
thereof is situated or found.
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does not bind him and that it did not truly express the real intention of the parties,
respondents denials do not constitute an effective specific denial as contemplated by
law. (Permanent Savings vs. Velarde, 2004).
2. In the early case of Songco vs. Sellner (1917), the court expounded on how to deny the
genuineness and due execution of an actionable document, viz.: This means that the
defendant must declare under oath that he did not sign the document or that it is
otherwise false or fabricated. Neither does the statement of the answer to the effect
that the instrument was procured by fraudulent representation raise any issue as to its
genuineness or due execution. On the contrary such a plea is an admission both of the
genuineness and due execution thereof, since it seeks to avoid the instrument upon a
ground not affecting either.
o Why does the law require specific denial under oath of actionable documents
that if you fail to specifically deny it under oath, it is considered admitted? It is
considered admitted in order to dispense with authentication. You cut short the process of
trial because you do not need to authenticate it anymore. It is as if you stipulated on the
actionable documents genuineness and authenticity.
o A reply is not a mandatory pleading. It is filed only to meet the new matters raised in
an answer; but even though new matters are raised in an answer, and you did not file a reply,
the new matters are deemed as controverted, i.e. disputed.
o Compulsory and Permissive Counterclaims
1. A compulsory counterclaim necessarily arises from the principal action. A
compulsory counterclaim set up in the answer is not an initiatory or similar pleading.
The initiatory pleading is the plaintiffs complaint. A respondent has no choice but to
raise a compulsory counterclaim the moment the plaintiff files the complaint.
Otherwise, respondent waives the compulsory counterclaim. In short, the compulsory
counterclaim is a reaction or response, mandatory upon pain of waiver, to an initiatory
pleading which is the complaint. (Agana vs. Lagman, 2005).
2. The compelling test of compulsoriness characterizes a counterclaim as compulsory if
there should exist a logical relationship between the main claim and the counterclaim.
There exists such a relationship when conducting separate trials of the respective
claims of the parties would entail substantial duplication of time and effort by the
parties and the court; when the multiple claims involve the same factual and legal
issues; or when the claims are offshoots of the same basic controversy between the
parties. (Lafarge Cement vs. Continental Cement, 2004).
3. A permissive counterclaim is a claim independent of the principal action. There is no
logical relationship between the main claim and the permissive counterclaim; the
court can only cover a counterclaim within its jurisdiction, i.e. within the jurisdictional
amount.
o Do you need a Certificate of Non-Forum Shopping for a compulsory
counterclaim? For a permissive counterclaim?
1. In a compulsory counterclaim, you do not need a Certificate of Non-Forum
Shopping. It is not an initiatory pleading. It is a necessary offshoot of the main claim.
2. In a permissive counterclaim, however, such certificate is needed because, for all
intents and purposes, a permissive counterclaim is a separate action.
jjsummer&rain#foursisons2015-0016
o Can the plaintiff dismiss his complaint? Yes, that is clear under Rule 17. There are two
(2) possible scenarios on the dismissal of a plaintiff. These are as follow:
1. The plaintiff, upon filing his action and before there is yet an answer, can decide to
dismiss it. This is dismissal as a matter of right,20 and for this reason the dismissal
can only be initiated upon notice. What happens to the counterclaim? Since there is
no answer yet, then there is no counterclaim.
2. The plaintiff, upon motion, decides to dismiss his complaint after the defendant has
filed his answer. This dismissal is not as a matter of right, but subject to the
discretion of the court. What happens to the counterclaim? The counterclaim will
survive and will have to stand based on its own merits.
o What happens to the counterclaim if the principal action was dismissed? The
counterclaim survives. It will have to stand based on its own merits.
1. In the case of Pinga vs. Heirs of German Tinga (2006), the court held that: the
dismissal of a complaint due to fault of the plaintiff is without prejudice to the right of
the defendant to prosecute any pending counterclaims of whatever nature in the same
or separate action.
2. This is without regard as to the permissive or compulsory nature of the counterclaim.
The present rule ensures that any judgment thereon is based on the merit of the
counterclaim itself and not on the survival of the main complaint. (Id.)
o Do we need leave of court to file a counterclaim? Cross claim? No, there is no
need of leave of court to file a counterclaim or a cross claim because the court has already
acquired jurisdiction over the person of the other party.
o Do we need leave of court to file a third-party complaint? Yes, because the court
has not yet acquired jurisdiction over the person of the third party defendant. Summons is
required to be served because the court has not yet acquired jurisdiction.
1. A third-party claim is different from a third-party complaint. A third-party claim
is found under Rule 39, Sec. 16, re: execution of judgments.
o Requisites for a third-party complaint: The defendant may implead another as a thirdparty defendant on allegation of liability to the defendant on the following grounds:
1. For contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim; or
2. On the ground of direct liability of the third-party defendant to the plaintiff; or
3. On the ground of the third-party defendants liability to both the plaintiff and the
defendant.
o Should a pleading filed in court be signed? Yes, otherwise it produces no legal effect.
The signature of counsel constitutes a certificate by him that he has read the pleading; that to
the best of his knowledge, information, and belief there is good ground to support it; and
that it is not interposed for delay.
Rule 17, Sec. 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court
shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that
a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
20
jjsummer&rain#foursisons2015-0017
1. The lawyer is not expected to have personal knowledge of the facts of the case. All that
the law requires is that when you sign the pleading, you attest to the fact that you have
knowledge, information, and belief.
2. Only a lawyer can sign a pleading. While it could happen that another lawyer could
sign for you, a non-lawyer cannot sign the pleading, because the signature is an
attestation that that he has read the pleading; that to the best of his knowledge,
information, and belief there is good ground to support it; and that it is not interposed
for delay.
3. If an unsigned pleading was filed, and the failure to sign was inadvertently made, you
have to explain to the court that it was indeed inadvertently made. The court may
consider it as filed. But if the failure to sign was deliberate, and you made allegations
which are scandalous, or you changed your address without informing the court, you
may be sanctioned by the court. It is the duty of the counsel to promptly inform the
court of his change of address.
o Should a verification21 be based on knowledge, information, and belief? Who
should sign the verification? No, the verification must be based on personal knowledge
or based on authentic records. It is the client who must sign the verification. A lawyer cannot
sign the verification because he has no personal knowledge of the facts of the case.
o What if the party are the spouses, should they both sign the verification? Yes, the
rule is that both spouses must sign the verification.
o What if there are five (5) parties, will all of them be required to sign the
verification? Yes, all of them will have to sign.
o What if the party is a juridical entity, who will sign the verification? The person
authorized upon a board resolution embodied in a Secretarys Certificate attached to the
pleading.
o What if the proceedings are under the ADR Rule, can the lawyer sign the
verification? Yes, the lawyer is expressly allowed by the ADR Law to sign the verification in
behalf of a party.
o Is the requirement of verification jurisdictional? No, it is not jurisdictional. It is
only a formal requirement, and for that reason it can be cured. Verification is only required if
there is a law that requires a verification. If there is no law that requires a verification, forget
about it. You do not need to verify the pleading. However, where the law expressly provides
that the pleading shall be dismissed if it was filed without verification, the requirement of
verification becomes jurisdictional. A pleading required to be verified which lacks proper
verification shall be treated as an unsigned pleading.
o Does the lack of a Certificate of Non-Forum Shopping lead to a dismissal of the
case? Yes. Although a complaint without verification will not be dismissed, unless the law
expressly provides that the lack of verification shall lead to the dismissal of the case; a
complaint which lacks a certificate of non-forum shopping, shall be dismissed, although
such dismissal is without prejudice.
Rule 7, Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.
21
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of
his personal knowledge or based on authentic records.
A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge, information
and belief," or lacks a proper verification, shall be treated as an unsigned pleading.
jjsummer&rain#foursisons2015-0018
1. While the verification is only a matter of form, and that it can be corrected even by
an amendment, a certificate of non-forum shopping is a requirement of law, and for
that reason in the absence of such certificate, it will result to a dismissal, although the
dismissal is without prejudice.
2. In practice, the verification and the certificate of non-forum shopping is contained in
a single document, i.e. verification and certification. That is why even pleadings not
required to be verified are verified (but for purposes of the bar, you only verify
pleadings which are required by law to be verified). It may seem that the case was
dismissed because of the lack of verification, but in truth, the case was dismissed
because of the lack of certification.
o Who should sign the Certificate of Non-Forum Shopping? The certificate of nonforum shopping should be signed by all the petitioners or plaintiffs in a case, and that the
signing by only one of them is insufficient. (Docena vs. Lapesura, 2007)
1. The attestation on non-forum shopping requires personal knowledge by the party
executing the same, and the lone signing petitioner cannot be presumed to have
personal knowledge of the filing or non-filing by his co-petitioners of any action or
claim the same as similar to the current petition. (Id.)
2. Cases involving co-ownership, similar interest in a family home, or spouses interest
wherein a party or just a handful of parties are allowed to sign are merely exceptions
by reason of substantial compliance, because of what you call common interest.
o What if the party is a juridical entity, who will sign the certificate? The person
authorized upon a board resolution embodied in a Secretarys Certificate attached to the
pleading.
o What if the pleading filed by the juridical entity has a certificate, but there was
no attached authority, or that the signatory was not authorized? The court may
consider the certificate duly signed based on the following: that there is a compelling reason
why you were not able to attach the authority; and that you submit the authority even
belatedly showing that indeed there was such an authority.
o Allegations in the body of the Certificate of Non-Forum Shopping:22
1. That there are no pending case(s) involving the same issue(s) in another court,
tribunal, or quasi-judicial agency;
2. That if there is a pending case, you will inform the court of the status thereof;
3. That if you learn later on that there is such a pending case, you will inform the court
of such fact within a period of five (5) days.
Rule 7, Sec. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously
filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is
such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that
the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.
22
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after
hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel
clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for administrative sanctions.
jjsummer&rain#foursisons2015-0019
jjsummer&rain#foursisons2015-0020
As-in Default refers to a case where the defendant does not appear in a pre-trial; and since the defendant did not appear,
the plaintiff will be allowed to present evidence ex parte.
23
jjsummer&rain#foursisons2015-0021
o What are the cases where the court cannot declare default? The court cannot
declare default in cases falling under Summary Procedure; and in actions for annulment or
declaration of nullity of marriage, or for legal separation.
1. If the defendant spouse fails to answer, there will be a motion to set the case for a
collusion conference before the prosecutor. Thereafter, the prosecutor will submit a
conference report to the court, then the court will issue a notice of pre-trial.
jjsummer&rain#foursisons2015-0022
24
Rule 11, Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or a cross-claim
through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim
or cross-claim by amendment before judgment.
jjsummer&rain#foursisons2015-0023
Rule 12, Sec. 1. Bill of Particulars; when applied for; purpose. Before responding to a pleading, a party may move for
a definite statement or for a bill of particulars of any matter which is not 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 ten (10) days
from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the
details desired.
25
jjsummer&rain#foursisons2015-0024
o What does the grant of a motion for a bill of particulars mean? The grant of a
motion for a bill of particulars means that the plaintiff will have to file a bill of particulars,
i.e. outlining what the court requires him to do, or the party may file an amended pleading.
o In case your motion for a bill of particulars is granted or denied, how many days
are left for you to file an Answer? You will have the remaining days in the 15-day period
to file an Answer. If the remaining period exceeds five (5) days, you will have said remaining
period as such. If the remaining period is less than five (5) days, you will have five (5) days.
1. Let us say that the complaint and summons were received on June 1, 2015. You have
15 days to file an Answer or until June 16, 2015. Within the 15-day reglementary
period, you can file a motion for a bill of particulars, if the complaint is defective; or
you can also file a motion to dismiss. You filed your motion for a bill of particulars on
the 7th day of the 15-day period, or on June 8, 2015. In case your motion for a bill of
particulars is denied, or is granted, and the plaintiff filed a bill of particulars which you
received, how many days more do you have to file an Answer?
You have nine (9) more days to file an Answer. The remaining period is not eight (8)
days even though you already consumed seven (7) days of the 15-day period.
Under Rule 22, Sec. 226, the act that caused the interruption is not included in the
counting of the period.
In the given problem, the filing of the motion for a bill of particulars on June 8, 2015
interrupted the counting of the period. Hence, the day on which the motion for a bill
of particulars is filed is not included in the counting of the period. Said period shall
start to run again on the day after the interruption. Thus, you have nine (9) more days
to file an Answer.
2. This is the same way to compute the period for a motion to dismiss.
o Is a grant or denial of a motion for a bill of particulars a final judgment, or an
interlocutory order? Either the grant or denial of a motion for a bill of particulars is an
interlocutory order.
o What if your motion for a bill of particulars is either granted or denied, what are
your remedies? You can file a motion for reconsideration; or if the grant or denial is tainted
with grave abuse of discretion amounting to lack or excess of jurisdiction, you can file a
petition for certiorari under Rule 65.
o What if the court granted the motion for a bill of particulars, but the plaintiff did
not submit a bill of particulars? The case may be dismissed for violation of Rule 17, Sec.
3, i.e. non-compliance with an order of the court; or his allegations may be stricken from the
complaint.
o What if the court granted the motion for a bill of particulars, and the plaintiff
filed his bill of particulars, but despite the filing of the bill of particulars, the
defendant did not file his Answer? The defendant could be declared in default.
Rule 22, Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the period, the
allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of
the act that caused the interruption shall be excluded in the computation of the period.
26
jjsummer&rain#foursisons2015-0025
RULE 13: Filing and Service of Pleadings, Judgments and Other Papers
o Filing, manner of: Filing refers to the submission of a pleading or a document before the
Clerk of Court. You file pleadings only by personal service (filing) or by registered mail.
1. Proof of personal service (filing): If the pleading appears on the records of the
case, that proves that you have filed the pleading; but if the pleading is not found in
the records of the case, you will have to present your receiving copy with the stamped
acknowledgement.
2. Proof of filing by registered mail: The rule on filing by registered mail is that the
date of mailing is the date of filing. Your proof of filing is the registry return card and
the affidavit of the person mailing.
o Service, mode of: Service is the act of providing a party with a copy of the pleading or paper
concerned. It always precedes filing. Before you file your case in court, you must first serve a
copy of the complaint to the adverse party. Service is done by personal service, or by mail,
i.e. ordinary mail or registered mail.
1. Personal Service: Service of the papers may be made by delivering personally a
copy to the party or his counsel, or by leaving it in his office with his clerk or with a
person having charge thereof. If no person is found in his office, or his office is not
known, or he has no office, then by leaving the copy, between the hours of eight in the
morning and six in the evening, at the party's or counsel's residence, if known, with a
person of sufficient age and discretion then residing therein. (Rule 13, Sec. 6)
a. This is still personal service, but under Rule 14 on the service of summons, this
manner of service is called substituted service. Service is complete upon
actual delivery.
b. Proof of personal service:
i. Written acknowledgement that the adverse party received it;
ii. Official return of the server (when the court serves); and
iii. Affidavit of the person serving, if the addressee or the person to be served
refuses to accept.
2. Service by mail: A party may serve by ordinary mail, or by registered mail, which
service can be made to a party, or even to the court in certain instances.
a. Service by ordinary mail is complete after expiration of ten (10) days after
mailing. The proof of service by ordinary mail is an affidavit of the person
mailing.
b. Service by registered mail is complete upon actual receipt, or expiration of five
(5) days from the first notice of the postmaster, whichever is earlier. The proof
of service by registered mail is the registry return card and the affidavit of the
person mailing.
3. Substituted service under Rule 13:27 When you talk of substituted service under
Rule 13, it means that there is failure of personal service, and service by mail (ordinary
mail and registered mail), in which case you need to bring to the court the unserved
document with an affidavit stating the reason why it cannot be served.
Rule 13, Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot
be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service
may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The
service is complete at the time of such delivery.
27
jjsummer&rain#foursisons2015-0026
a. When it comes to summons, do not apply Rule 13. You only apply Rule 14. Rule
13 and Rule 14 cannot be used interchangeably.
o Can service of pleadings, or orders, and processes from the court be made by
publication? No. The only modes of service of pleadings, motions, notices, orders,
judgments and other papers allowed by the rules are personal service, service by mail and
substituted service if either personal service or service by mail cannot be made, as stated in
Sections 6, 7 and 8 of Rule 13 of the Rules of Court . Nowhere under this rule is service of
notice to file answer by publication is mentioned, much less recognized. (Aberca vs. Ver,
2012).
1. The court pointed out that: service by publication only applies to service of summons
stated under Rule 14 of the Rules of Court where the methods of service of summons
in civil cases are: (1) personal service; (2) substituted service; and (3) service by
publication. Similarly, service by publication can apply to judgments, final orders and
resolutions as provided under Section 9, Rule 1328 of the Rules of Court. (Id.)
2. There is, however, nothing in the Rules that authorizes publication of a notice of
hearing to file answer. What is authorized to be published are: (1) summons, and (2)
final orders and judgments. Sec. 9 of Rule 13 cannot be used to justify the trial courts
action in authorizing service by publication. Firstly, what was published was not a
final order or judgment but a simple order or notice to file answer. Secondly, even
granting that the notice to file answer can be served by publication, it is explicit in the
Rule that publication is allowed only if the defendant-appellant was summoned by
publication. The record is clear that defendants-appellants were not summoned by
publication. (Id.)
o The court may also serve by personal service through the sheriff or the process server, or by
registered mail, because documents, like orders, resolutions, notices, decisions, judgments,
etc., can originate from the court.
o What if the registry return card together with the document to be served was
returned to you, what will you do? You must file with the court the registry return card
together with the unclaimed document with a certification from the post office as to the
reason for the return.
o To whom do you serve the pleadings? As a general rule, it is to be served to the counsel
of record. Any document or pleading filed shall be served upon the counsel of record, if there
is a counsel of record. Only when the court requires that an order be served to a party will it
be served to a party.
o What is the priority of service? Priority of service is by personal service. This is a
provision29 that applies only to the parties. You do not require the court to observe this
provision. If it be cannot served personally, you have to make an explanation to the court.
28
Rule 13, Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be
served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments,
final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.
Rule 13, Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and
other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to
consider the paper as not filed.
29
jjsummer&rain#foursisons2015-0027
o On the other hand, the doctrine of lis pendens has no application in the following cases:
1.
2.
3.
4.
5.
Preliminary attachments;
Proceedings for the probate of wills;
Levies on execution;
Proceedings for administration of estate of deceased persons; and
Proceedings in which the only object is the recovery of a money judgment.
o Will a lis pendens establish a right or an encumbrance? No. A notice of lis pendens
establishes no right nor even an encumbrance. A notice of lis pendens is pure and simple
notice. You are not in a better position because of it. It does not mean that the property is
encumbered because of a notice of lis pendens, except that there is a notice to the rest of the
world that such property is subject of a pending litigation.
jjsummer&rain#foursisons2015-0028
o How do you cause the annotation of a notice of lis pendens? First, you file a case
involving the title to, or possession of, the property; cause and write a memorandum
indicating the title of the case, and the details of the property, and then send it to the Registry
of Deeds where the property is located.
1. This is how easy it is to cause the annotation of the notice of lis pendens. What is
cumbersome is the removal of the annotation because such removal requires an order
from the court. You will have to convince the court that the notice of lis pendens was
only made to molest you, and not to protect the right of any party. This would require
a court hearing.
o Can the Court of Appeals reinstate a notice of lis pendens after it was cancelled
by the RTC? Yes, if there is reason to cause the re-annotation of the notice of lis pendens.
jjsummer&rain#foursisons2015-0029
ii.
iii.
Rule 14, Sec. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time
as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence
with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular
place of business with some competent person in charge thereof.
30
31
A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered
to have enough discernment to understand the importance of a summons. To be of sufficient discretion, such person must know
how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons
and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have
the relation of confidence to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the
summons. (Manotoc vs. CA, 2006). If the person who received the summons is just a visitor, or a transient not residing therein,
there would be no proper substituted service.
If the substituted service will be done at defendants office or regular place of business, then it should be served on a competent
person in charge of the place. Thus, the person on whom the substituted service will be made must be the one managing the office
or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand
the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons.
(Id.)
32
jjsummer&rain#foursisons2015-0030
from said answer that she is the representative and attorney-infact of her husband aforementioned civil case No. Q-2796, which
apparently was filed at her behest, in her aforementioned
representative capacity. In other words, Mrs. Schenker had
authority to sue, and had actually sued on behalf of her husband,
so that she was, also, empowered to represent him in suits filed
against him, particularly in a case, like the of the one at bar, which
is consequence of the action brought by her on his behalf.
(Annotations supplied).
2. If the resident spouse has been previously appointed as an
attorney-in-fact in another case also involving the non-resident
spouse, then the resident spouse can receive summons by
substituted service.
2. If the defendant is a prisoner33, summons must be made upon the warden.
If the defendant is a minor34, summons can be served to the minor himself or to
the parent or guardian.
3. If the defendants whereabouts is unknown, or that the defendant is
unknown,35 service may, by leave of court, be done by publication in a newspaper of
general circulation.
4. If the defendant does not reside, or is not found in the PH involving cases
which concern the personal status of the plaintiff, or a real property owned by a nonresident defendant, or any other action that involves an interest, whether actual or
contingent, over property, Sec. 15 of Rule 1436 (extraterritorial service) applies.
You can serve summons under Sec. 15 in any of the following ways:
a. By personal service outside of the PH;
b. By publication in a newspaper of a general circulation and service by registered
mail in the last known address, and
c. By any other mode as may be determined by the court.
Rule 14, Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall
be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff
for said purpose.
33
34
Rule 14, Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an
incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad
litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or
mother.
35
Rule 14, Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the
defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained
by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and
in such places and for such time as the court may order.
1.
2.
3.
Before the amendment of the rules, this provision was only applicable to actions in rem and quasi in rem. But now, it is
also applicable in actions in personam.
The classification of in personam, in rem, and quasi in rem actions is important to determine the effect of judgment. If it
is in personam, it affects only the parties to the case.
In actions in rem, there is no designated defendant, while in actions quasi in rem, there is a designated defendant. In
both actions, the judgment affects the rest of the world.
Rule 14, Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in
which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in
part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by
publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of
the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other
manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than
sixty (60) days after notice, within which the defendant must answer.
36
jjsummer&rain#foursisons2015-0031
5. If the defendant is a resident temporarily out of the PH37 under Sec. 16 of Rule
14, service of summons may be made in the manner provided for under Sec. 15 of Rule
14 (extraterritorial service).
a. However, would you rather spend money for publication, or would you rather
send a person abroad to serve the summons? These modes of service are
expensive. Jurisprudence holds that service of summons to residents
temporarily out of the PH may be made by substituted service.
b. In the case of Montalban vs. Maximo (1968), the court held that: substituted
service of summons under the present Section 7, Rule 14 of the Rules of Court
in a suit in personam against residents of the Philippines temporarily absent
therefrom is the normal method of service of summons that will confer
jurisdiction on the court over such defendant.
c. Also, in the case of Palma vs. Galvez (2010), the court held that: because
Section 16 of Rule 14 uses the words may and also, it is not mandatory. Other
methods of service of summons allowed under the Rules may also be availed of
by the serving officer on a defendant-resident who is temporarily out of the
Philippines. Thus, if a resident defendant is temporarily out of the country, any
of the following modes of service may be resorted to: (1) substituted service set
forth in section 7, Rule 14; (2) personal service outside the country, with leave
of court; (3) service by publication, also with leave of court; or (4) in any other
manner the court may deem sufficient.
o Summons, service of (if the defendant is a juridical person):
1. If the defendant is a domestic corporation, service of the summons should be
made upon the president, general manager, managing partner, corporate secretary,
treasurer, or in-house counsel.38 (Rule 14, Sec. 11).
a. Service of summons cannot be made upon a retained counsel. But if the counsel
is employed by a corporation, service of summons can be made upon him as he
is an in-house counsel, i.e. general counsel, in case of multiple counsels in big
corporations.
b. In case of big corporations, they already have a receiving section for such
summons so as to not bother the general counsel anymore but this is still an
effective service of summons.
c. In case of multinational corporations with subsidiary companies incorporated
in the PH, or juridical persons, incorporated in the PH, located in an export
processing zone, Rule 14, Sec. 11 will also apply.
Rule 14, Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant
who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out
of the Philippines, as under the preceding section.
37
Rule 14, Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-house counsel.
38
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39
Rule 14, Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity
which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for
that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or
agents within the Philippines.
If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court,
be effected out of the Philippines through any of the following means:
a.
b.
c.
d.
By personal service coursed through the appropriate court in the foreign country with the assistance of the Department
of Foreign Affairs;
By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving
a copy of the summons and the court order by registered mail at the last known address of the defendant;
By facsimile or any recognized electronic means that could generate proof of service; or
By such other means as the court may in its discretion direct.
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1. You also have to consider the motion day of the courts, which is always set on a
Friday at 2:00 pm. Under the law, this rule is mandatory. But in practice, the motion
day is not always on a Friday. The day of the motion day depends on the Judge.
o If, for example, you filed a motion for reconsideration, but you did not incorporate a notice
of hearing, or you did not comply with the three-day notice rule, nor the ten-day rule,
your motion for reconsideration will not interrupt or toll the running of the reglementary
period. Failure to comply with the requirements of the rule on motions, your motion will be
treated as a mere scrap of paper. It will be denied.
o The requirements of notice of hearing, the three-day notice rule, or the ten-day rule
must be complied with at the time of the initial filing. Once these requirements have been
satisfied, and for one reason or another, the court is not available on the initial date set for
hearing, or because of a storm, or fortuitous event, the hearing is cancelled, you just have to
reset it. You will no longer be prejudiced.
o What is the omnibus motion rule? The rule simply states that you will have to plead
all grounds and objections available. Failure to do so means that grounds and objections not
raised in the motion are deemed waived.
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2. Lack of jurisdiction over the subject matter of the claim: When we refer to
this ground, you look at the law that confers jurisdiction. The basic law is BP No. 129
as amended by RA No. 7691, but there could be other laws that confer jurisdiction.
3. Improper venue: This ground should be raised by the defendant, otherwise it is
deemed waived. The court cannot raise this ground motu proprio.
4. The plaintiff has no legal capacity to sue: This ground can mean that the suing
individual is a minor and he is suing by himself, or that the party that presents itself
to be a corporation is not duly incorporated in the PH or in any country, or when you
claim to be a representative of an individual or a corporation, and you have not been
duly authorized or you cannot show their authorization.
5. Litis pendencia: Where there are identical causes of action, identical issues,
identical relief, and both cases are pending, there is litis pendencia.
6. Res judicata, or prescription;
a. Where there are identical causes of action, identical issues, identical relief, and
there is already a judgment in one case, there is res judicata.
b. Prescription (statute of limitation) refers to the periods provided for by law
when you are to enforce your rights or to file an action.
7. The pleading asserting the claim states no cause of action;
a. This ground means that upon simply reading the complaint, you will see that it
has no cause of action it has no legal leg to stand on. There is no right of the
plaintiff, there is no duty on the part of the defendant to respect that right, and
there appears to be no breach. There is no need for extraneous evidence to
convince the court that the pleading asserting the claim states no cause of
action. All you need to look at is the complaint.
b. In the case of Maramag vs. De Guzman (2009), the court held that: When a
motion to dismiss is premised on this ground, the ruling thereon should be
based only on the facts alleged in the complaint. The court must resolve the
issue on the strength of such allegations, assuming them to be true. The test of
sufficiency of a cause of action rests on whether, hypothetically admitting the
facts alleged in the complaint to be true, the court can render a valid judgment
upon the same, in accordance with the prayer in the complaint. This is the
general rule.
However, this rule is subject to well-recognized exceptions, such that there is
no hypothetical admission of the veracity of the allegations if:
i.
ii.
iii.
iv.
v.
jjsummer&rain#foursisons2015-0037
d. If you claim that you are not a real party-in-interest this is not the proper
ground. The proper ground is that the pleading asserting the claim states no
cause of action.
8. That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;
9. That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds;
a. The Civil Code requires that certain agreements be in writing to be enforceable.
If it is not embodied in a written agreement, what the parties apparently agreed
upon cannot be enforced.
b. Even in the absence of a written instrument, but if there was partial execution,
the contract can be enforced.
10. That a condition precedent for filing the claim has not been complied with.
a. Prior barangay conciliation is waived if not raised.
b. In a suit between members of the same family, there is a requirement of
amicable settlement or compromise before you go to court. If you fail to avail
of the same, and it was not raised by the other party, it is considered as waived.
c. Non-exhaustion of administrative remedies falls under this ground.
o Is a grant of a motion to dismiss a final judgment? It depends on what the ground
was for the motion to dismiss.
1. If the ground was any of the grounds under letters f, h, and i in the enumeration
under Sec. 1 of Rule 16, you cannot refile the motion to dismiss. In this case, the grant
is a final judgment. Your remedy therefore is to file an appeal.
2. If the ground was any of the rest of the grounds under Sec. 1 of Rule 16, dismissal is
without prejudice, you can therefore re-file your motion to dismiss. If you do not
agree with its dismissal, your remedy is to file a certiorari under Rule 65 because
under Rule 41, you do not appeal a dismissal which is without prejudice.
o Is the denial of a motion to dismiss a final judgment? No, it is not a final judgment.
It is an interlocutory order. Ordinarily, you do not have a remedy. What you should do is to
file an Answer.
1. But you could file a motion for reconsideration if you believe that the court
committed a mistake; and if you think that the court gravely abused its discretion
amounting to lack or excess of jurisdiction, you could go up on a Rule 65, file a petition
for certiorari for as long as the denial was tainted with grave abuse of discretion.
o Is an order of amendment a final judgment? No, it is not a final judgment. It is an
interlocutory order. The remedy would be to comply with the order of amendment.
1. If you disagree with the court, you could file a motion for reconsideration. If you
believe that the order was tainted with grave abuse of discretion, you could go up on a
Rule 65, file a petition for certiorari.
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Rule 17, Sec. 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court
shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that
a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
40
41
Rule 17, Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall not
be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems
proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the
dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his
counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without
prejudice. A class suit shall not be dismissed or compromised without the approval of the court.
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o Dismissal due to fault of plaintiff.42 A case may be dismissed, upon motion of the
defendant or upon the court's own motion, for the following reasons:
1. Failure 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;
3. Failure to comply with the Rules of Court ;
4. Failure to comply with any order of the court.
Dismissal under any of the abovementioned grounds shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court.
Rule 17, Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the date of
the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to
comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate
action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.
42
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It does not mean that a deposition or a mode of discovery can only be applied at any time before pre-trial. Deposition can even
be applied after pre-trial.
44
Under the Guidelines of Pre-Trial and Modes of Discovery of 2004, the rule is all of the documents that you will present in the
course of the trial should be duly-marked and annexed. Failure to present your document during pre-trial would mean waiver
of your right to present the document during the trial. In practice, lawyers place the phrase plaintiff reserves the right to present
documents if and necessary in the course of the trial this phrase is useless under the 2004 Guidelines.
45
Failure to name the witnesses in the pre-trial brief would mean waiver of the right to present any witness not named in the pretrial in the course of the trial.
46
jjsummer&rain#foursisons2015-0042
conciliator. Expect again that the proceedings shall be suspended for the next thirty (30) to
sixty (60) days depending on the negotiations of the parties to a compromise.
o Pre-Trial Proper: If the JDR is unsuccessful, there will be the pre-trial proper - let us say
September 15. In the pre-trial proper, those that are enumerated in your pre-trial brief will
be walked-through by the Judge with both parties. In addition to that, you will also identify
the trial dates.
1. Under the JDR concept, the Judge (referred to as the JDR Judge) to whom the
complaint was assigned will handle the case until the JDR stage.
2. After the conclusion of the JDR, and the compromise is unsuccessful, the case will be
re-raffled, unless both parties agree that the case shall stay with the original Judge,
to a trial Judge, which shall handle the case from the pre-trial stage until judgment.
This is to avoid any impression that the Judge has already prejudged the case.
3. The trial court has the discretion on whether to grant or deny a motion to postpone
and/or reschedule the pre-trial conference in accordance with the circumstances
obtaining in the case. This must be so as it is the trial court which is able to witness
firsthand the events as they unfold during the trial of a case. Postponements, while
permissible, must not be countenanced except for clearly meritorious grounds and in
light of the attendant circumstances. (Paraaque Kings Enterprises, Inc., vs. Santos,
2014).
o Pre-Trial Order: Once the pre-trial is completed, the court will issue a pre-trial order,
which contains what the parties have agreed upon, stipulated on, the legal issues if identified
by the court and the parties, the documents that have been marked, and the witnesses to be
presented. Thereafter, you can already proceed to trial.
1. Who should be present during the pre-trial?
a. It shall be the duty of the parties and their counsel to appear at the pre-trial.
The non-appearance of a party may be excused only if a valid cause is shown
therefor or if a representative shall appear in his behalf fully authorized in
writing to enter into an amicable settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or admissions of facts and of
documents. (Rule 18, Sec. 4).
b. The presence of the counsel is not sufficient. Both the parties and their counsel
shall appear at the pre-trial. That is why the court issues the notice of pre-trial
not only to the counsels, but also to the parties because the parties must be
present this is one of the exceptions to service of a notice to a non-lawyer.
2. Is there any excuse if the defendant is not present?
a. If there is a good reason for the absence, the court may allow it; and for that
reason, the pre-trial may be rescheduled.
b. The court or the party can name a representative who could appear in his place.
Most of the time, the defendants representative is the counsel.
3. What if the party is present, but the lawyer is absent? The pre-trial shall be
postponed reset to another date. You must present good reason for your absence,
because the court cannot proceed with pre-trial in the absence of a lawyer. The
consequence of your absence will not be suffered by your client because you are only a
lawyer.
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Rule 19, Sec. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the
trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.
47
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If the witness is within 100 kilometers from the place where the hearing is to be conducted, his appearance could be compelled
by subpoena. If he refuses to appear despite the service of subpoena, he could be arrested upon a bench warrant the court could
arrest him, or he could be placed on indirect contempt under Rule 71.
48
If the witness is not within, but more than 100 kilometers from the place where the hearing is to be conducted, he could not be
compelled by subpoena. The remedy of the person who would like to subpoena such witness is a deposition under Rule 23
(depositions pending action).
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Rule 130, Sec. 47. Testimony or deposition at a former proceeding. The testimony or deposition of a witness deceased
or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter,
may be given in evidence against the adverse party who had the opportunity to cross-examine him.
49
Rule 23, Sec. 4, par. (b). - The deposition of a party or of any one who at the time of taking the deposition was an officer,
director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an
adverse party for any purpose.
50
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Rule 23, Sec. 15. Deposition upon oral examination; notice; time and place. A party desiring to take the deposition
of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall
state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion
of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time.
52
jjsummer&rain#foursisons2015-0048
the deposition is to be taken, the date, time, and the place where the deposition will be
taken; and of course, the reason for the taking of oral deposition.
a. In oral deposition, the applicant can present the deponent before the deposition
officer on the date, time, and place indicated in the notice or application, and
can ask direct and re-direct examination questions; while the other party can
conduct his cross-examination and re-cross-examination.
2. In written interrogatories,53 the contents of the notice or application for written
interrogatories are just the same in an application for the taking of oral deposition,
only that the questions, i.e. direct examination questions, prepared by the applicant
should be appended to the notice or application.
a. After which, the applicant serves it to the other party who will now prepare his
cross-written interrogatories within a period of ten (10) days from receipt - with
no answer yet at that time, the other party will have to anticipate and prepare
his cross-written interrogatories.
b. Once the other party serves his cross-written interrogatories to the applicant,
the applicant will have to prepare and serve his re-direct-written interrogatories
within a period of five (5) days.
c. Once the applicant serves it to the other party, the other party will have to
prepare and serve his re-cross-written interrogatories within a period of three
(3) days.
3. If you have objections54 on the taking of the written interrogatories, all of your
objections should be made within the time allowed for you to answer. If you have
objections, you must object immediately before you prepare your answer and/or
questions within the time allowed by the Rules. Otherwise, your objections will be
considered as waived.
o What is the difference between written interrogatories under Rule 23, and
written interrogatories under Rule 25?
1. Under Rule 23, there is direct, re-direct, cross, and re-cross written interrogatories.
Written interrogatories under this rule could be directed to a party, or a non-party to
the case.
2. Under Rule 25, there is no direct, re-direct, cross, and re-cross written interrogatories.
It is just a set of questions given to a party. Written interrogatories under this rule is
Rule 23, Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. A party desiring
to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the
name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom
the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party
proposing to take the deposition. Within five (5) days thereafter the latter may serve re-direct interrogatories upon a party who
has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition.
53
Rule 23, Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in
the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories
and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by
him.
Rule 23, Sec. 29, par. (e): As to form of written interrogatories. Objections to the form of written interrogatories
submitted under Sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the
time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories
authorized.
54
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just limited to a party to the case, and the form is only in the nature of a series of
questions.
o Why even serve a written interrogatory to a party to a case? The reason is found in
Sec. 6 of Rule 25.55 If you want to call the deponent on the witness stand as an adverse party
witness, the requirement is you have to serve written interrogatories in order not to surprise
the other party he should have been informed ahead of time of the subject of his possible
testimony. Also, if you have failed to serve written interrogatories, you cannot avail of
deposition pending appeal.
o What is the effect of failure to serve written interrogatories? The consequences of
the failure to serve written interrogatories are provided under Rule 29, Sec. 3 (c), and Sec. 5
viz:
1. Sec. 3 (c): Other consequences. If any party or an officer or managing agent of
a party refuses to obey an order made under Section 1 of this Rule requiring him to
answer designated questions, xxx the court may make such orders in regard to the
refusal as are just, and among others the following: An order striking out pleadings
or parts thereof, or staying further proceedings until the order is obeyed, or dismissing
the action or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
2. Sec. 5: Failure of party to attend or serve answers. If a party or an officer
or managing agent of a party willfully fails to appear before the officer who is to take
his deposition, after being served with a proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after proper service of such interrogatories,
the court on motion and notice, may strike out all or any part of any pleading of that
party, or dismiss the action or proceeding or any part thereof, or enter a judgment by
default against that party, and in its discretion, order him to pay reasonable expenses
incurred by the other, including attorney's fees.
3. But before you impose the serious consequence of default, you should first
compel the defendant to answer. There should be a court order compelling the
defendant to answer. In the case of Jaravata vs. Karolus (2007), the court held that:
The Court of Appeals rightly held that the court a quo erred in rendering a judgment
by default against the defendants for refusal or failure to answer written
interrogatories, without first requiring an application by the proponent to compel an
answer. This is the requisite procedure under Section 1 of Rule 29 of the 1997 Rules of
Civil Procedure.
o Manner of taking a deposition:56 This is almost the same with oral and written
interrogatories.
Rule 25, Sec. 6. Effect of failure to serve written interrogatories. Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending appeal.
55
Rule 23, Sec. 17. Record of examination; oath; objections. The officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony
of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time
of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties
served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the
witness and record the answers verbatim.
56
Rule 23, Sec. 19. Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall
be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by
the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the
deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed
by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the
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1. Let us say that the oral deposition is taken today before you as a deposition officer. The
statements of the deponent as questions are being asked by lawyers will have to be
recorded by a stenographer, which is under your direction as a deposition officer.
2. Once the deposition is taken by the stenographer, the draft deposition will be given to
the deponent for his review and examination of the deposition i.e. to check if the
draft is a faithful transcription of the deposition.
a. If the deponent is satisfied that it is indeed a faithful transcription of the
deposition, he will affix his signature.
b. If the deponent refuses to sign, the reason for his refusal should be indicated in
the deposition. The signing of the deposition can be waived if the parties agreed
to waive it.
c. The deposition once signed by the deponent will also contain a certification that
deposition was freely and voluntarily made.
3. Once the deposition has been signed and properly certified by you as a deposition
officer, it will then be placed in a sealed envelope, and at the dorsal portion of the same,
you will indicate: Deposition of (persons name), and the same will be submitted to
court.
o What is the significance of Sections 17, 19, 20, and 21 of Rule 23? If the manner of
taking deposition is not followed, expect a motion to suppress deposition. This is the effect
of failure to comply with Sections 17, 19, 20, and 21 of Rule 23.
1. This rule is also followed in written interrogatories57, except that the lawyers will not
speak. All of the questions will be given to and collated by the deposition officer, who
shall read all the questions. All of the answers to the questions will be recorded and
will be submitted in the manner provided for under Sections 17, 19, 20 and 21.
o All errors or irregularities in the taking of the deposition, as a rule, are waivable. If you do
promptly call the attention of the court, it is waived, except competency or relevancy of
evidence. As a rule, this is the only error that is not waivable, except if it is something that
could have been obviated or corrected if presented at that time.
deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or
absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may
then be used as fully as though signed, unless on a motion to suppress under Section 29(f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of the deposition in whole or in part.
Rule 23, Sec. 20. Certification and filing by officer. The officer shall certify on the deposition that the witness was duly
sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" and
shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing.
Rule 23, Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice of its filing to all the parties.
Rule 23, Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in
the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories
and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by
him.
57
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Rule 24, Sec. 1. Depositions before action; petition. A person who desires to perpetuate his own testimony or that of
another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court
of the place of the residence of any expected adverse party.
58
Rule 24, Sec. 7. Depositions pending appeal. If an appeal has been taken from a judgment of a court, including the
Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the
judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of
further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the
said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The
motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he
expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon
the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for
depositions taken in pending actions.
59
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the judgment was rendered to take the depositions of the witnesses to perpetuate their
testimony.
2. In your motion, you will have to identify the deponent, the purpose of the taking of the
deposition, the possible substance of his testimony, before whom the deposition
should be taken, and the date and time of the deposition.
o What is the consequence of refusal to answer a particular question? If only a
number of particular questions are not answered, Rule 29, Sec. 3 (c) will apply, viz: If any
party or an officer or managing agent of a party refuses to obey an order made under Section
1 of this Rule requiring him to answer designated questions, xxx the court may make such
orders in regard to the refusal as are just, and among others the following: An order striking
out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
1. In the case of Sps. Zepeda vs. China Banking Corporation (2006), the court held that:
the consequences enumerated in Section 3(c) of Rule 29 would only apply where the
party upon whom the written interrogatories is served, refuses to answer a particular
question in the set of written interrogatories and despite an order compelling him to
answer the particular question, still refuses to obey the order.
o What is the consequence of refusal to answer the entire set of written
interrogatories? In case of refusal to answer the entire set of written interrogatories, what
will apply is Rule 29, Sec. 5, viz: If a party or an officer or managing agent of a party willfully
fails to appear before the officer who is to take his deposition, after being served with a proper
notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper
service of such interrogatories, the court on motion and notice, may strike out all or any part
of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter
a judgment by default against that party, and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney's fees.
1. In the instant case, petitioners refused to answer the whole set of written
interrogatories, not just a particular question. Clearly then, respondent bank should
have filed a motion based on Section 5 and not Section 3(c) of Rule 29. xxx Due to
respondent banks filing of an erroneous motion, the trial court cannot be faulted for
ruling that the motion to expunge was premature for lack of a prior application to
compel compliance based on Section 3. (Id.)
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60
Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to
the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until
such objections are resolved, which resolution shall be made as early as practicable.
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Rule 27, Sec. 1. Motion for production or inspection; order. Upon motion of any party showing good cause therefor,
the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing,
by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in
his possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his possession
or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object
or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and
photographs, and may prescribe such terms and conditions as are just.
61
Rule 130, Sec. 1. Object as evidence. Objects as evidence are those addressed to the senses of the court. When an object
is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
62
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63
Rule 28, Sec. 4. Waiver of privilege. By requesting and obtaining a report of the examination so ordered or by taking the
deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the
same mental or physical examination.
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64
This rule is a provision on civil cases. Criminal procedure has a parallel provision, i.e. Rule 119.
Rule 132, Sec. 4. Order in the examination of an individual witness. The order in which an individual witness may be
examined is as follows:
65
(a)
(b)
(c)
(d)
Rule 132, Sec. 6. Cross-examination; its purpose and extent. Upon the termination of the direct examination, the
witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith,
with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to
elicit all important facts bearing upon the issue.
66
Rule 132, Sec. 11. Impeachment of adverse party's witness. A witness may be impeached by the party against whom
he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by
evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been
convicted of an offense.
67
Rule 132, Sec. 13. How witness impeached by evidence of inconsistent statements. Before a witness can be impeached
by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related
to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any
question is put to him concerning them.
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3. Re-direct examination.68 This is used to allow the party or his counsel to require
the witness to explain or to supplement his testimony. On re-direct examination, only
matters taken up on cross-examination can be asked.
a. On cross-examination in a criminal case, a question was asked this way:
Counsel 2: Were you with the rape victim on the night that she was raped?
(This is a very pointed question, just answerable by either a yes, or a no).
Witness: Attorney, I want to explain before I give the answer.
Counsel 2: No, you do not need to explain. Just tell me, were you there? Were
you with the victim on the night that she was raped? Just answer me, yes? or
no?
Witness: Yes.
b. On re-direct examination, the counsel of the witness can ask him this question:
Counsel 1: Mr. Witness, you answered a while ago a question that goes this
way: Were you with the rape victim on the night that she was raped? What
was your answer again, Mr. Witness?
Witness: Yes.
Counsel 1: Why were you there?
Witness: (Explains).
4. Re-cross-examination.69 As a rule, only matters taken up on re-direct examination
can be the subject of the re-cross-examination. But, the court can exercise reasonable
discretion to allow questions even if not taken up on re-direct examination.
o Cancellation of Hearing, grounds of: In criminal cases, cancellation of hearing is
referred to as continuance. There are only two (2) acceptable grounds for a cancellation of
hearing:
1. Absence of evidence70 includes absence of a witness - testimonial evidence,
absence of an object, or absence of a document. For the court to consider this reason,
you will have to establish that the evidence is material and relevant; and that despite
the exercise of reasonable diligence, you cannot present the evidence during trial.
a. But despite the fact that the evidence is not available, the court may allow the
proceeding or trial or the hearing to continue if there is a reservation of the
right to object to the evidence when it is presented.
Rule 132, Sec. 7. Re-direct examination; its purpose and extent. After the cross-examination of the witness has been
concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the crossexamination. On re-direct examination, questions on matters not dealt with during the cross-examination, may be allowed by the
court in its discretion.
68
69
Rule 132, Sec. 8. Re-cross-examination. Upon the conclusion of the re-direct examination, the adverse party may recross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by
the court in its discretion.
Rule 30, Sec. 3. Requisites of motion to postpone trial for absence of evidence. A motion to postpone a trial on the
ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that
due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or
reserves the right to object to their admissibility, the trial shall not be postponed.
70
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2. Illness of the counsel or the party71 - the requisites of this ground are as follow:
a. That the illness is that which would render his non-appearance as excusable;
and
b. That the presence in court of the counsel or the party is indispensable.
o Can the court render judgment without trial? Yes, the court can render a judgment
without a trial.72 When there is no factual controversy, whether wholly or partially, the court
can require the parties to simply submit memoranda, and since there is no factual
controversy, there is no need for evidence to be presented. All that is left for the court to
resolve would be the question of law.
o Who should receive evidence in court?73 It is the duty of the Judge to receive evidence
presented in court. But the duty to receive evidence can be delegated by the Judge to the Clerk
of Court in the following instances: in cases of ex parte proceedings, in cases of default, and
when the parties so stipulate.
1. Any matter could be delegated to the Clerk of Court if the parties so stipulate; but
ordinarily, the matter that is referred to a Clerk of Court for reception of evidence are
mostly ex parte and default cases because the defendant is not present.
o Cases where the reception of evidence can be delegated to the Clerk of Court:
1. Land registration cases, if there is no oppositor;
2. Change of name, if there is no oppositor;
o Can the reception of evidence in adoption cases be delegated to the Clerk of
Court? No, the reception of evidence in adoption cases cannot be delegated to the Clerk of
Court.
1. Under SC Circular No. 12 (October 2, 1986), Judges are directed to personally hear all
adoption cases and desist from the practice of delegating the reception of evidence of
the petitioner to the Clerk of Court - the matter of adoption being particularly the
concern not only of the State, but also of the courts.
Rule 30, Sec. 4. Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone a trial
on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence
of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance
excusable.
71
Rule 30, Section 6. Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved
in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties
agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe.
73
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is
pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any
case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of
the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections
shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the
hearing.
72
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Rule 31, Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial
of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues.
75
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o Consolidation, as taken in the above senses, is allowed under Rule 31. The counterpart, but
narrowed, rule for criminal cases is found in Sec. 22, Rule 119, viz: Sec. 22. Consolidation of
trials of related offenses. - Charges for offenses founded on the same facts or forming part of
a series of offenses of similar character may be tried jointly at the discretion of the court.
1. Quasi-consolidation is more common in criminal cases. You cannot have actual
consolidation in criminal cases because the nature of each of the cases must be
retained every offense has one (1) information. Criminal cases are consolidated only
for purposes of trial.
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76
Rule 32, Sec. 2. Reference ordered on motion. When the parties do not consent, the court may, upon the application of
either, or of its own motion, direct a reference to a commissioner in the following cases:
a.
b.
c.
When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner
may be directed to hear and report upon the whole issue or any specific question involved therein;
When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment
or order into effect;
When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for
carrying a judgment or order into effect.
Rule 32, Sec. 3. Order of reference; powers of the commissioner. When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner,
and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence
only, and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and
limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing
before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order.
He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference,
he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held
before the court.
77
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Rule 119, Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the
ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon
demurrer to evidence filed by the accused with or without leave of court.
78
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a nonextendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a nonextendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from
notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by
appeal or by certiorari before judgment.
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Rule 36, Sec. 2. Entry of judgments and final orders. If no appeal or motion for new trial or reconsideration is filed
within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries
of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall
contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment
or final order has become final and executory.
79
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2. In the case of Sps. Topacio vs. Banco Filipino (2010), the court held that: As a rule,
judgments are sufficiently served when they are delivered personally, or through
registered mail to the counsel of record, or by leaving them in his office with his clerk
or with a person having charge thereof.80 After service, a judgment or order which is
not appealed nor made subject of a motion for reconsideration within the prescribed
15-day period attains finality.
o A judgment can only have effect if it was rendered by the judge or the justice during the time
that he has authority, i.e. before his promotion, retirement, resignation, or death.
o Can a judge validly render a decision even if he did not hear the witnesses? Yes,
the judge can validly render a decision despite the fact that he did not hear any of the
witnesses. For as long as the judge was able to review the records and the TSN, he can render
a valid decision.
o Separate Judgment and Several Judgment, distinction: A separate judgment is
based on claims, e.g. partial summary judgment where the court resolves a particular claim;
while a several judgment is based on parties.
80
Rule 13, Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be
served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments,
final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.
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b. With the Neypes ruling today, you have the Fresh-Period Rule. If you file a
motion for reconsideration or a motion for new trial, and it is denied, your
period of fifteen (15) days starts to run again upon receipt of the denial.
c. The prevailing rule today is that whatever mode of appeal that you had, if there
was a motion for reconsideration previously filed which was denied, you will
have a fresh period of fifteen (15) days upon receipt of the denial.
d. The Neypes rule is also applicable in criminal cases. In the case of Yu vs. Tatad
(2011), the court held that: The provisions of Section 3 of Rule 41 and Section
6 of Rule 122, though differently worded, mean exactly the same. There is no
substantial difference between the two provisions insofar as legal results are
concerned the appeal period stops running upon the filing of a motion for new
trial or reconsideration and starts to run again upon receipt of the order
denying said motion for new trial or reconsideration. It was this situation that
Neypes addressed in civil cases. No reason exists why this situation in criminal
cases cannot be similarly addressed.
o Appeals (Rules 40 to 45) - the modes of appeal can be basically divided into three:
1. Ordinary Appeal81 under Rules 40 and 41;
2. Petition for Review under Rules 42 and 43; and
3. Petition for Review on Certiorari under Rule 45.
o Ordinary Appeal (Rules 40 and 41): The appeal to the Court of Appeals in cases decided
by the RTC in the exercise of its original jurisdiction shall be taken by filing a notice of appeal
or a record on appeal82 with the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse party.
1. Can the RTC, as an appellate court, review matters which were not
assigned as errors? Yes, the RTC can review matters which were not assigned as
errors. Under Rules 40 and 41, the RTC can review the entire records of the case, so
even if it was not assigned error, the court can pass judgment over the same.
2. Can the Court of Appeals review matters which were not assigned as
errors? No, the Court of Appeals cannot review matters which were not assigned as
errors. Under Rule 41, in relation to Rule 44, as differentiated from Rules 40 and 41 as
applied in the RTCs, the Court of Appeals can only review matters assigned as errors.
3. Is the procedure in the RTC as an appellate court the same as the
procedure in the Court of Appeals? No, the procedure is not the same. In the
81
The appeal is called an ordinary appeal because it is a one-step appeal. You can file a notice of appeal within 15 days, or a record
on appeal within 30 days, from receipt of the assailed judgment.
A notice of appeal must state that you received the decision, so that the reglementary period could be counted, that you are
willing to appeal, and that you are to pay the docket fees within the reglementary period. If a notice of appeal is filed in the court
that rendered the assailed judgment, the court of origin will elevate the entire records to the appellate court. A party's appeal by
notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. The court loses jurisdiction over
the case only upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. But
in practice, as long as the court has possession of the records, it can continue to act in the exercise of its residual jurisdiction.
82
A record on appeal is a compilation in a sequential manner of all pleadings and orders rendered by the court. This is required
in cases of special proceedings and in cases which require multiple appeals. This is to allow the appellate court to examine the
records without necessarily bringing up the original records. The records in the court of origin will not be elevated to the appellate
court, it is retained therein because there is something else yet to be done in the court of origin. You are to compile a copy of the
entire records in the court of origin which compilation (record) shall be elevated to the appellate court. A party's appeal by record
on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed
in due time. Without the approval of the court, the appeal will not be perfected. The court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other
parties. The 30-day period to file a record on appeal cannot be extended. You cannot ask for an extension of time, unless the court
itself authorizes alteration.
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RTCs exercise of its appellate jurisdiction, the parties are required to submit a
memoranda to be filed within a period of fifteen (15) days. In the Court of Appeals,
what is required to be submitted is an appellants or an appellees brief to be filed
within a period of forty-five (45) days. The appellant's reply brief may be filed within
twenty (20) days from receipt of appellee's brief.83
o Petition for Review to the Court of Appeals (Rules 42 and 43): The appeal to the
Court of Appeals in cases decided by the RTC in the exercise of its appellate jurisdiction shall
be by petition for review under Rule 42; and cases decided by quasi-judicial agencies shall be
brought to the Court of Appeals also via petition for review, but under Rule 43.
1. Petitions for Review under Rules 42 and 43 are used to correct errors of judgment. You
have a reglementary period of fifteen (15) days to file an appeal, extendible to a period
of another fifteen (15) days for as long as you pay docket fees within the reglementary
period. You cannot ask for another extension of time, except for the most compelling
reason.
2. Can you directly file an appeal from the decisions of the Provincial
Agrarian Reform Adjudication Board (PARAB) to the Court of Appeals?
Yes, through a petition for review under Rule 43. Under the Rules of Court, Rule 43
shall apply to appeals from awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions.
3. Can you directly file an appeal from the decisions of the National Labor
Relations Commissions (NLRC) to the Court of Appeals? Yes, but while the
supposed appeal goes directly through the Court of Appeals, it is not through a petition
for review under Rule 43, but through a special civil action under Rule 65. Under the
Labor Code, decisions of the NLRC is final and executory and for this reason, there is
no appeal nor plain and speedy remedy. That is why the remedy is through a petition
for certiorari under Rule 65 to the Court of Appeals in strict observance of the doctrine
on the hierarchy of courts as the appropriate forum for the relief desired.
4. What is your mode of appeal from a decision of the RTC as a commercial
court on intra-corporate disputes and corporate rehabilitation?84 Your
mode of appeal is through a petition for review under Rule 43. An appeal may now be
perfected by filing a petition for review within fifteen (15) days from notice of the
decision or final order of the trial court, directly to the Court of Appeals under Rule
43. There is no more need to file a notice of appeal and record on appeal.
5. Where do you go from a decision of the Court of Tax Appeals (CTA)? If it
is a decision of a CTA division, you have to elevate it to the CTA En Banc. Only when
the CTA En Banc resolves it can you elevate it to the Supreme Court on a petition for
review on certiorari under Rule 45.
6. Where do you go from a decision of the Housing and Land Use Arbiter?
The decision of the Housing and Land Use Arbiter will have to be elevated to the Board
of Commissioners of the HLURB, and from the decision of such board, it is then
elevated to the Office of the President.
7. Should the attachments in a petition for review under Rule 43 be certified
as authentic? Yes, everything that is attached to a petition for review to the Court of
83
If you simply follow the Rules of Court, the proper remedy should have been an ordinary appeal because the RTC as a commercial
court is a court of original jurisdiction. However, in A.M. No. 04-9-07-SC, the court clarified that the proper mode of appeal in
cases involving intra-corporate disputes and corporate rehabilitation is through a petition for review under Rule 43. The decision
of the RTC as a commercial court is treated as if it originates from a quasi-judicial agency.
84
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Appeals originating from a quasi-judicial agency should all be certified as true copies
of the original. This is so because the quasi-judicial agencies are not part of the judicial
system, and for this reason, there is no way by which the court could validate that the
records that you are submitting are authentic. The only that the court could validate
its authenticity is if it is certified true copy considering that these are official records
of government agencies.
o Petition for Review on Certiorari to the Supreme Court (Rule 45)
1. An appeal by certiorari is used to correct errors of judgment. You have a reglementary
period of fifteen (15) days to file an appeal. However, the Supreme Court, on motion
duly filed and served, with full payment of the docket and other lawful fees before the
expiration of the reglementary period, may for justifiable reasons grant an extension
of thirty (30) days only within which to file the petition.
2. The only way to go up to the Supreme Court in civil and criminal cases is only by a
petition for review on certiorari under Rule 45. However, in criminal cases where the
penalty is reclusion perpetua, and life imprisonment, the mode of appeal is not under
Rule 45, but through a notice of appeal under Rule 122, Sec. 3 (a) to the Court of
Appeals. But no notice of appeal is necessary where the RTC imposed the death penalty
the review of the judgment shall be automatically done by the Court of Appeals.
3. A decision of the RTC, whether in the exercise of its original jurisdiction or appellate
jurisdiction, on a pure question of law can be directly elevated to the Supreme Court
on a petition for review on certiorari. What cannot happen is a decision of the MTC
being reviewed directly by the Supreme Court, even if it is a pure question of law.
4. A decision of the Court of Appeals on a pure question of law; a decision of the CTA En
Banc; a decision of the Sandiganbayan, may all be elevated to the Supreme Court
under this Rule.
5. The Supreme Court is not a trier of facts, however, the court may review matters of
fact if: (1) the finding of facts in the RTC is inconsistent with the finding of facts of the
CA; and (2) when it appears that the conclusion reached by the RTC or the CA is highly
impossible.
6. Can the Supreme Court treat a petition for certiorari under Rule 65 as
an appeal under Rule 42, Rule 43, or Rule 45? As a general rule, a petition for
certiorari cannot be treated as an appeal. However, under certain circumstances, the
Supreme Court can treat a petition for certiorari as an appeal if it was filed within
the reglementary period of fifteen (15) days; and if the allegations show that it
questions an error of judgment, and not an error of jurisdiction. In which case, even if
it was wrongly titled, the court may still consider it as an appeal.
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o Petition for Review on Certiorari (Rule 45) and Petition for Certiorari (Rule 65),
compared:
1. Under Rule 45, the appeal by certiorari is referred to as a Petition for Review on
Certiorari; while under Rule 65, the special civil action is referred to as a Petition
for Certiorari with the RTC, Court of Appeals, and the Supreme Court having
concurrent jurisdiction, subject to the hierarchy of courts.
2. Under Rule 45, the mode of appeal would correct errors of judgment; while the special
civil action under Rule 65 would correct errors of jurisdiction.
3. Under Rule 45, the petition for review on certiorari must be filed within fifteen (15)
days, extendible for a period of thirty (30) days for justifiable reasons; while under
Rule 65, the petition for certiorari must be filed, as a general rule, within a nonextendible period of sixty (60) days. Under exceptional cases, however, the 60-day
period may be extended subject to the courts sound discretion.
o What is the difference between a petition for certiorari under the
Constitution, and a petition for certiorari under Rule 65? Under the Sec. 1, Article
VIII of the Constitution, a petition for certiorari could be filed if there is grave abuse of
discretion amounting to lack or excess of jurisdiction committed by any agency or
instrumentality of the government; while under Rule 65, a petition for certiorari could
only be filed against any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted with grave abuse of discretion amounting to lack or excess of jurisdiction.
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Rule 38, Sec. 1. Petition for relief from judgment, order, or other proceedings. When a judgment or final order is
entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside.
85
86
Rule 38, Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by any court in a
case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he
may file a petition in such court and in the same case praying that the appeal be given due course.
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3. There are only two (2) grounds for an annulment of judgment, i.e. extrinsic fraud, and
lack of jurisdiction (over the subject matter, and over the person of the defendant).
The period for filing the petition, if based on extrinsic fraud, is within a period of four
(4) years from its discovery; and if based on lack of jurisdiction, at any time before it
is barred by laches or estoppel.
4. You cannot use this remedy if you were negligent, or you were at fault in not availing
of the proper remedies. In the case of Jongco vs. Veloso (2002), the court held that:
The remedy of annulment of judgment can therefore be resorted to only where
ordinary and other appropriate remedies, including appeal, are no longer available
through no fault of the petitioner.
5. Can you raise the doctrine of res judicata in an annulment of judgment?
No, you cannot. A void judgment for want of jurisdiction is no judgment at all. It
cannot be the source of any right nor the creator of any obligation. All acts performed
pursuant to it and all claims emanating from it have no legal effect. Hence, it can never
become final and any writ of execution based on it is void.
a. In the 1968 case of Cordovis vs. De Obias, the court held that: Technically, the
doctrine of res judicata may not be invoked in the present case for the reason
that the very purpose of the action in Civil Case No. T-115 is to annul the
judgment in Civil Case No. 3660.
6. Can you go to the Supreme Court on a petition for annulment of judgment
of the decision of the Court of Appeals? No, you cannot. Under Rule 56, the
Supreme Court cannot entertain an annulment of judgment it being not among the
original cases cognizable by the Supreme Court. Furthermore, the only mode of appeal
cognizable by the Supreme Court is a petition for review on certiorari under Rule 45.
a. In the case of Rufino vs. UP (2006), the court held that the Supreme Court has
no authority to take cognizance of an original action for annulment of
judgment of any lower court. The only original cases cognizable before this
Court are petitions for certiorari, prohibition, mandamus, quo warranto,
habeas corpus, disciplinary proceedings against members of the judiciary and
attorneys, and cases affecting ambassadors, other public ministers and consuls.
Petitions for annulment of judgment are not among the cases originally
cognizable by this Court.
b. A co-equal court cannot annul judgment of the same trial court. An annulment
of judgment can only be made by the next level court. If what is sought to be
annulled is the decision of the MTC, you file the petition with the RTC. If what
is sought to be annulled is the decision of the RTC, you file the petition with the
Court of Appeals.
7. Can the Court of Appeals, after annulling the judgment of the RTC,
determine the rights of the parties? No, it cannot. In accordance with Section 7,
Rule 47,87 a judgment of annulment shall set aside the questioned judgment or final
order or resolution and render the same null and void, without prejudice to the original
action being refiled in the proper court. The extent of the power of the appellate court
in an action for annulment of judgment is only to set aside and declare null and void
what was believed to be a judgment rendered without jurisdiction or with extrinsic
fraud. It cannot rule on the merits of the case.
Rule 47, Sec. 7. Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final order or
resolution and render the same null and void, without prejudice to the original action being refiled in the proper court. However,
where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the
trial court to try the case as if a timely motion for new trial had been granted therein.
87
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Rule 39, Sec. 1. Execution upon judgments or final orders. Execution shall issue as a matter of right, on motion, upon
a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal
has been duly perfected.
88
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders
sought to be enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue
the writ of execution.
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In Ong v. Court of Appeals (1991), the Court underscored the importance of the requisite "good reasons" for allowance of
execution pending appeal. It ruled that: The reasons allowing execution [pending appeal] must constitute superior circumstances
demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment. It is not
intended obviously that execution pending appeal shall issue as a matter of course. Good reasons, special, important, pressing
reasons must exist to justify it; otherwise, instead of an instrument of solicitude and justice, it may well become a tool of oppression
and inequity.
90
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91
Rule 39, Sec. 4. Judgments not stayed by appeal. Judgments in actions for injunction, receivership, accounting and
support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable
after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal
therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
92
The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection
of the rights of the adverse party.
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the Labor Arbiter shall thereafter motu proprio issue the writ. With the new
rules in place, there is hardly any difficulty in determining the employers
intransigence in immediately complying with the order. (Garcia vs. PAL,
2009)
b. Once the employer receives the order of reinstatement, it is incumbent upon
him to comply with the same within a period of ten (10) days from receipt.
Failure to comply with the order of reinstatement within the 10-day period will
lead to the issuance of a writ of execution.
7. Do you need a writ of execution for a judgment on a Rule 63 (declaratory
relief)? No, you do not need a writ of execution for a judgment under Rule 63, because
by its very nature, it need not be enforced it being merely a declaration of the validity
or interpretation of a deed, will, a written instrument, a law, a governmental
regulation, or an ordinance. You do not need a writ of execution, the decision will be
enough.
8. Can there be execution pending appeal in expropriation cases? No, as held
in Curata vs. PPA (2009), discretionary execution of judgments pending appeal under
Sec. 2 (a) of Rule 39 does not apply to eminent domain proceedings. Government
funds and properties cannot be seized under a writ of execution. Disbursements of
public funds must be covered by the corresponding appropriation as required by law.
The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and
specific objects, as appropriated by law. (Commissioner of Public Highways v. San
Diego, 1970).
o Execution by motion or by independent action:93 The rule is that you can enforce a
final and executory judgment upon motion, i.e. motion for the issuance of a writ of execution,
within a period of five (5) years from the date of its entry. But after five (5) years without the
judgment being executed, and before the expiration of ten (10) years from the date of its entry,
a judgment may only be enforced by action, i.e. a petition for revival of judgment.
1. What is the life of the writ of execution? Under Sec. 14 of Rule 39, the life of the
writ is the period within which the judgment may be enforced by motion, i.e. five (5)
years from issuance. The 30-day period (intervals) mentioned in the same section
pertains to the period within which the sheriff will have to make a report, i.e. every
thirty (30) days on the proceedings taken thereon until the judgment is satisfied in
full, or its effectivity expires.
2. As regards revival of judgment, the law sets no limit you can revive the
judgment all you want. But although the law sets no limit, you have to understand that
you could only file a petition for revival of judgment within the proper prescriptive
period.
3. Is Sec. 6 of Rule 39, which states that judgment may be enforced within
five years by motion, and after five (5) years but within ten (10) years by
an action, applicable to special proceedings? No, it has no application to special
proceedings. Rule 39 finds application only to civil actions.
a. In a long line of cases, the Supreme Court had consistently held that Rule 39
applies only to ordinary civil actions, not to other or extraordinary proceedings
93
Rule 39, Sec. 6. Execution by motion or by independent action. A final and executory judgment or order may be
executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the
statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five
(5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.
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not expressly governed by the Rules of Civil Procedure but by some other
specific law or legal modality such as land registration cases.
b. Section 6, Rule 39 of the Rules of Court is not applicable to an ex parte petition
for the issuance of the writ of possession as it is not in the nature of a civil action
governed by the Rules of Civil Procedure but a judicial proceeding governed
separately by Section 7 of Act No. 3135 which regulates the methods of effecting
an extrajudicial foreclosure of mortgage. (Sps. Topacio vs. Banco Filipino,
2010).
4. Where is the proper venue of the present action for revival of judgment?
The venue is dictated by the nature of the judgment. You do not consider the original
action, what you should look at is what the judgment to be revived says.
a. The proper venue depends on the determination of whether the present action
for revival of judgment is a real action or a personal action. If the action for
revival of judgment affects title to or possession of real property, or interest
therein, then it is a real action that must be filed with the court of the place
where the real property is located. If such action does not fall under the category
of real actions, it is then a personal action that may be filed with the court of the
place where the plaintiff or defendant resides. (Infante vs. Aran Builders, Inc.,
2007).
5. Can the court modify the original judgment that has been revived? No, the
court cannot modify the original judgment that has been revived. The purpose of an
action for revival of judgment is to merely give the creditor a new right of enforcement.
You do not need to re-litigate it, in fact you do not need a new cause of action.
6. A revived judgment should be final and executory. If the case is subject of a
motion for reconsideration, the case has not yet attained finality. In a case where the
records of the court had been burned, the remedy, there being no resolution on the
motion for reconsideration, should have been to re-constitute judicial records so that
the court can resolve the motion for reconsideration.
o Execution in case of death of party:94
1. If the judgment obligee dies, and judgment had become final and executory, forget
about substitution under Rule 3, Sec. 16 - apply Rule 39, Sec. 7 instead. The execution
may be enforced by the executor or administrator of the judgment obligees estate.
2. If the judgment obligor dies, and the case involves recovery of property, or
enforcement of a lien thereon, proceed against the executor or administrator of the
judgment obligors estate under Rule 87.95 If the case involves money claim, you do
Rule 39, Sec. 7. Execution in case of death of party. In case of the death of a party, execution may issue or be enforced
in the following manner:
(a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in
interest;
(b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment
be for the recovery of real or personal property, or the enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may
be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding
executor or administrator for any surplus in his hands.
94
95
Rule 87, Sec. 1. Actions which may and which may not be brought against executor or administrator. No action
upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property, real or personal, may be commenced against him.
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not use Rule 87 - go to Rule 86,96 and lay your money claim. If there is already a levy,
there will be preference over the property subject of the levy.
o Execution of judgments for money, how enforced: The law provides for a number of
options in execution of a money judgment. These are (1) payment, (2) levy,97 and (3)
garnishment.
1. Payment is to be made to the judgment obligee. If the latter is not available, to his
authorized representative. In case both are not available, payment is to be made to the
sheriff who will bring the payment to the clerk of court that issued the writ who will in
turn deposit the same for the account of the judgment obligee.
2. Levy can only be done after giving an opportunity to the judgment obligor to pay the
judgment debt. The sheriff is required to first make a demand of the obligor the
immediate payment of the full amount stated in the writ of execution before a levy can
be made. (PAL vs. Balubar, 2004). The levied properties are now set aside for the
purpose of satisfying the command of the writ of execution.
a. If the judgment obligor cannot pay all or part of the obligation in cash, the
sheriff shall levy upon the properties of the judgment obligor giving the latter
the option to immediately choose which property or part thereof may be levied
upon, sufficient to satisfy the judgment. If the judgment obligor does not
exercise the option, the officer shall first levy on the personal properties, if any,
and then on the real properties if the personal properties are insufficient to
answer for the judgment.
b. The option to choose which property is to be levied is granted to a judgment
obligor before the sheriff levies its properties and not after. Hence, the
judgment obligor should communicate to the sheriff its choices before the
sheriff implements the levy. The judgment obligor's failure to seasonably
exercise such option, either by deliberate inaction or mere oversight, cannot be
countenanced by this Court. (Solar Resources, Inc. vs. Inland Trailways, Inc.,
2008).
3. Garnishment is a concept of execution. Under the law, it is a two-step process:
a. Notice of Garnishment: The court first issues a notice of garnishment. Once
the party in custody of the credits (due the judgment obligor), including bank
deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery in the possession or control of third
parties, receives said notice, it is now his duty to make a written report to the
court within five (5) days.
Rule 86, Sec. 5. Claims which must be filed under the notice. If not filed, barred; exceptions. All claims for money
against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for
funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed
within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any
action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an
action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims
he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be
set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined
shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the
administration proceedings. Claims not yet due, or contingent, may be approved at their present value.
96
Levy is different from an execution sale. Levy has been defined as the act or acts by which an officer sets apart or
appropriates a part or the whole of a judgment debtors property for the purpose of satisfying the command of the writ of execution.
On the other hand, an execution sale is a sale by a sheriff or other ministerial officer under the authority of a writ of execution
which he has levied on property of the debtor. (Caja vs. Nanquil, 2004)
97
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b. Order of Release: Once the custodian has submitted his report to the court,
the court will issue an order of release directing the custodian of the credits to
deliver to the court within ten (10) days the funds in his custody, which funds
shall thereafter be used to satisfy the judgment.
o Execution of judgments for specific act, how enforced: A judgment for specific act
requires the judgment obligor to do something or perform a specific act. If the judgment
obligor does not perform, the court can require someone else to do it. If there is no one else
to do it, the court can consider it as performed.
1. The specific acts extend to conveyance, delivery of deeds, sale of real or personal
property, delivery or restitution of real property, delivery of personal property,
removal of improvements on property subject of execution, or other specific acts.
However, for purposes of removal of improvements, you can only remove
improvements or you can only demolish if there is a special order of the court, i.e.
order of demolition.
2. Contempt cannot lie under this provision if the judgment obligor refuses to comply
because the judgment can be done not only by the judgment obligor, but also by
someone else.
o Execution of special judgments, how enforced: this is the only writ that requires
the judgment obligee to attach a certified copy of the judgment to the writ of execution
because it is only the judgment obligee who can perform the act. When a person commits
under a contract to perform, but refuses to perform in accordance with the contract, the court
can compel the performance through a special judgment.
1. If the person still refuses to perform despite the order, he may be punished for
contempt because it is only him who can perform the act. He cannot say that to compel
him despite his refusal is involuntary servitude because he voluntarily entered into the
contract and there is consideration.
o Property exempt from execution: Except as otherwise expressly provided by law, or
upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage
thereon, the following property, and no other, shall be exempt from execution:
1.
2.
3.
4.
5.
6.
7.
8.
Family home, but only up to the value provided under the Family Code;
Homestead in which he resides, and land necessarily used in connection therewith;
Ordinary tools and implements to the extent of PhP 300K;
The professional libraries and equipment of professionals, not exceeding PhP 300K;
One fishing boat and accessories not exceeding the total value of PhP 100K;
Furniture and utensils necessary for housekeeping of a value not exceeding PhP 100K;
Provisions for individual or family use sufficient for four (4) months;
Earnings of the judgment obligor for his personal services within the four (4) months
preceding the levy as are necessary for the support of his family;
9. Monies, benefits, privileges, or annuities accruing out of any life insurance;
10. The right to receive legal support, or any pension or gratuity from the Government;
11. His necessary clothing and articles for ordinary personal use, excluding jewelry;
12. Three horses, or three cows, or three carabaos, or other beasts of burden;
13. Lettered gravestones;
14. Properties specially exempted by law.
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o Is it enough that there is a claim that the property is exempt from execution, and
on the basis of such claim, the court will just exempt it from execution? No, a
mere claim that the property is exempt from execution is not enough. The court should make
an earnest determination of the truth of the claim before rendering judgment thereon.
1. In the case of Josef vs. Santos (2008), the court held that: The court should have
made an earnest determination of the truth to petitioners claim that the house and lot
in which he and his children resided was their duly constituted family home. Since it
did not, its July 16, 2003 Order is thus null and void. Being void, the Order could not
have conferred any right to respondent. Any writ of execution based on it is likewise
void.
2. The court further held that: A claim for exemption from execution of the family home
should be set up and proved before the sale of the property at public auction, and
failure to do so would estop the party from later claiming the exemption since the right
of exemption is a personal privilege granted to the judgment debtor which must be
claimed by the judgment debtor himself at the time of the levy or within a reasonable
period thereafter. (Id.)
o Can a juridical claim exemption from execution under Rule 39, Sec. 13? No, a
juridical person cannot claim exemption from execution under Rule 39. The exemption
pertains only to natural persons and not to juridical entities.
1. In the case of D Armoured Security vs. Orpia (2005), the court held that: Only
natural persons whose salaries, wages and earnings are indispensable for his own and
that of his familys support are exempted under Section 13 (i) of Rule 39 of the Rules
of Court. Undeniably, a corporate entity such as petitioner security agency is not
covered by the exemption.
2. If properties used in business are exempt from execution, there can hardly be an
instance when a judgment claim can be enforced against the business entity.
(Pentagon Security and Investigation Agency vs. Jimenez, 1990).
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98
In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall be held in
the office of the clerk of the court which issued the writ or which was designated by the appellate court. In the case of personal
property capable of manual delivery, the sale shall be held in the place where the property is located.
99
If the property is a conjugal or community property, the wife is not a stranger to the action. She need not file an affidavit of
third-party claim. She has the required personality to file any motion before the court where the case is pending although she is
not a party to the case.
100
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1. The interest of the judgment obligee is to satisfy the judgment. He deals with the
sheriff who in turn runs after the judgment obligors property.
2. If there is a third-party claimant who lays his claim to the levied property in an
affidavit of third-party claim and serves the same upon the sheriff and a copy thereof
upon the judgment obligee, the execution will be suspended.
3. For the sheriff to continue with his execution, the judgment obligee must post a bond101
approved by the court to indemnify the third-party claimant in a sum not less than the
value of the property levied on.
4. The judgment obligee who feels aggrieved by the third-party claim, which may be a
frivolous or plainly spurious claim, may vindicate his right by dragging the third-party
claimant in the same action or in a separate action.
5. The third-party claimant, on the other hand, may also vindicate his right but in a
separate action because he is not a part of the original case. The third-party claimant
is a stranger to the action, otherwise he could have been impleaded in the original case.
He can no longer intervene in the original case because the judgment is already final
and executory hence the execution.
o Third-Party Claim (Rule 57, Sec. 14) A third-party claim under this rule is not for
purposes of execution, but only for attachment. Unlike in Rule 39 where the property is levied
and then sold in execution, in Rule 57, the property is levied but is not subject to sale. It will
only be the subject of the writ of attachment or an annotation on the title of the property. The
owner of the levied property retains ownership and possession of the property.
1. The interest of the plaintiff is to attach the property of the adverse party as security for
the satisfaction of any judgment that may be recovered. He deals with the sheriff who
in turn runs after the adverse partys property.
2. If there is a third-party claimant who lays his claim to the levied property in an affidavit
and serves the same upon the sheriff and a copy thereof upon the plaintiff, the sheriff
shall not be bound to keep the property under attachment.
3. For the sheriff to continue with his attachment, the plaintiff must post a bond
approved by the court to indemnify the third-party claimant in a sum not less than the
value of the property levied upon.
4. The plaintiff who feels aggrieved by the third-party claim, which may be a frivolous or
plainly spurious claim, may vindicate his right by dragging the third-party claimant in
the same action or in a separate action.
5. The third-party claimant, unlike in Rule 39, may vindicate his right also in the same
action or in a separate action. He can intervene in the original action.
o Third-Party Claim (Rule 60, Sec. 7) - A third-party claim under this rule is not for
purposes of execution or attachment, but for recovery of possession of personal property. The
procedure in third-party claims under Rule 57, Sec. 14 is just the same as the procedure under
Rule 60, Sec. 7.
o Any individual could participate in the public sale of the levied property for as long as he pays
the amount. But usually, it is the judgment obligee who bids for and purchases the levied
property. When the purchaser is the judgment obligee, and no third-party claim has been
No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of the bond.
101
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filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment.
If it does, he shall pay only the excess.
o What is the remedy of a purchaser of a property in an execution sale who was
not able to take possession of the property that he purchased? The purchaser can
recover the amount in the same action; or in a separate action; or the purchaser can have the
judgment revived under his name considering that the judgment award to the judgment
obligee has been satisfied by the purchasers payment. The purchaser can have the revived
judgment under his name and can execute against the obligor of the judgment obligee under
Rule 39, Sec. 34.
o Redemption of Property Personal property sold cannot be redeemed. Only real
property sold can be redeemed. Real property sold may be redeemed only by the following
persons (redemptioner): (1) the judgment obligor, or his successor in interest; and (2) a
creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold
subsequent to the lien under which the property was sold. But once the judgment obligor
redeems, there can be no further redemption.
1. Within what period can you redeem? You can redeem the property from the
purchaser at any time within one (1) year from the date of the registration of the
certificate of sale. If the property is not redeemed within such period, title to the
property shall now be consolidated to the purchaser of the property.
2. Who is entitled to possession, rents, earnings, and income accruing to the
property during the redemption period?
a. Under Rule 39,102 the judgment obligor is entitled to possession and income;
b. Under Rule 68,103 the mortgagor is entitled to possession and income;
c. Under Act No. 3135,104 the mortgagor is entitled to possession and income.
3. What is the redemption period and who is entitled to possession of the
property during the redemption period if the mortgagee is a bank?
a. If the mortgagor is a natural person, and his property is mortgaged in
favor of a bank, the redemption period, whether under judicial or extrajudicial
foreclosure, is a period of one (1) year. The purchaser or the bank, if the bank is
the bidder, is entitled to possession during the redemption period.
b. If the mortgagor is a juridical person whose property is mortgaged in
favor of banks, the redemption period (right of redemption) is only: (1) until,
but not after, the registration of the certificate of foreclosure sale; or (2) ninety
(90) days after foreclosure, whichever comes first.105
Rule 39, Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the time
allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction,
on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession
of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue
to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the
necessary repairs to buildings thereon while he occupies the property.
102
Is there a redemption period in a judicial foreclosure sale? Yes. Under Rule 68, unless there is a law that gives a longer
period, the redemption period is what you call as equity of redemption, i.e. a period not less than 90 days nor more than 120
days.
103
Is there a redemption period in an extrajudicial foreclosure sale? Yes, you can redeem the property from the purchaser
at any time within one (1) year from the date of the registration of the certificate of sale.
104
RA No. 8791 (General Banking Law of 2000), Sec. 47: xxx Notwithstanding Act 3135, juridical persons whose property
is being sold pursuant to an extrajudicial foreclosure, shall have the right to redeem the property in accordance with this provision
until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall
105
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1. If there is an entry of judgment, it means that the judgment has become final and
executory. The entry of judgment shall, in the same way as a writ of execution, contain
only the dispositive portion of the judgment or final resolution.
2. In the Court of Appeals, you will not immediately receive the entry of judgment. Maybe
youll receive it a month or two (2) months later, but it does not mean that it has not
become final and executory on the day after the expiration of the period to appeal. The
physical delivery of the entry of judgment may take time, but once the reglementary
period lapses, the decision becomes final and executory.
o What if there is a discrepancy between the contents of the decision and the writ
of execution? The decision always prevails over the writ of execution. The sheriff or the
process server has no authority to expand nor add anything to the decision of the court.
RULES 52 (Motion for Reconsideration) and 53 (New Trial)
o What is the period to file a motion for reconsideration in the Court of Appeals?
The period to file a motion for reconsideration in the Court of Appeals and in the Supreme
Court is the same with the period in the lower courts, i.e. within fifteen (15) days from notice
of the decision.
1. The difference is the period within which the court has to resolve the motion for
reconsideration. In the trial courts, the period to resolve the motion for
reconsideration is thirty (30) days; in the Court of Appeals, the period to resolve the
motion for reconsideration is ninety (90) days.
o Can you file a motion for new trial in the Court of Appeals? Yes, you can file a motion
for new trial in the Court of Appeals, but only on the ground of newly-discovered evidence.
o What is the period to file a motion for new trial in the Court of Appeals? The
period to file a motion for new trial in the Court of Appeals is from the time an appeal from
the lower court has been perfected and as long as the Court of Appeals has jurisdiction over
the case.
1. The period to resolve the motion for new trial is ninety (90) days from the date the
court declares it submitted for resolution.
RULE 55: Publication of Judgments and Final Resolutions
o The published decisions and final resolutions of the Supreme Court shall be called "Philippine
Reports," while those of the Court of Appeals shall be known as the "Court of Appeals
Reports."
o The official publication of the Supreme Court is not through the Supreme Court Reports
Annotated (SCRA) a commercial publication of Central Bookstore, Inc.
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106
Rule
Rule
Rule
Rule
Rule
46:
48:
49:
51:
52:
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1
Rule 127, Sec. 1. Availability of provisional remedies. The provisional remedies in civil actions, insofar as they are
applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. But the provisional
remedy of replevin cannot be availed of because there is no answer in criminal cases.
2
The grounds upon which a writ of replevin may issue (as found in the contents of the affidavit filed by the applicant):
1. That the applicant is the owner of the property claimed, or is entitled to the possession thereof;
2. That the applicant is unlawfully deprived of the possession of his property by the adverse party;
3. That the deprivation is not upon a levy, tax assessment or a fine pursuant to law, or seized under a writ of execution or
preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or
custody;
4. That the fair market value of the property must be stated.
The sole ground for this provisional remedy is support, i.e. assistance for basic necessity food, clothing, shelter, etc.,
but you have to establish relationship, i.e. filiation.
jjsummer&rain#foursisons2015-0097
The affidavit will state that there is a ground for the preliminary attachment, that there is a cause of action, and that there is no
sufficient security, and that the amount appearing on the order is as much as the sum for which the order is granted above all
legal counterclaims.
7
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under his control, such credits or other personal property, or with his agent, a copy of
the writ, and notice that the debts owing by him to the party against whom attachment
is issued, and the credits and other personal property in his possession, or under his
control, belonging to said party, are attached in pursuance of such writ;
5. If it is an interest in property belonging to the estate of the decedent,
whether as heir, legatee, or devisee, by serving the executor or administrator or other
personal representative of the decedent with a copy of the writ and notice that said
interest is attached. A copy of said writ of attachment and of said notice shall also be
filed in the office of the clerk of the court in which said estate is being settled and
served upon the heir, legatee or devisee concerned.
6. If the property sought to be attached is in custodia legis, a copy of the writ of
attachment shall be filed with the proper court or quasi-judicial agency, and notice of
the attachment served upon the custodian of such property.
o Execution on Attached Properties: If there is a favorable judgment, the attached
properties will first be applied to satisfy the judgment. Money attached will have to go first.
Real and personal properties attached will be subject to public sale in accordance with Rule
39.
1. After the public sale, and the proceeds have been generated for payment or satisfaction
of judgment, whatever is left of the proceeds, or if there is an excess, the excess shall
be returned to the losing party. But this hardly happens. Usually, the proceeds are less
than the judgment award.
2. If the attached properties have all been applied, and yet the judgment has not been
fully satisfied, you will now proceed to ordinary execution, i.e. execution of money
judgment, execution of specific acts, or execution of special judgment under Rule 39.
o How to dissolve the writ of attachment:
1. By posting a counter-bond after the writ of attachment has been enforced. You cannot
post it in anticipation of a preliminary attachment; or
2. By motion on the ground that the attachment was improper or irregularly issued or
enforced, or excessive,8 or that the bond is insufficient.
o Does the mere posting of a counterbond automatically discharge the writ of
attachment? No, the mere posting of a counterbond is not enough. It is only after hearing
and after the judge has ordered the discharge of the attachment if a cash deposit is made or a
counterbond is executed that the writ is properly discharged.
1. The attachment bond is posted to cover the damages that may be suffered by the
person against whom the writ of attachment is issued. The counter-attachment bond
is posted to cover the damages that may be suffered by the applicant by reason of
this counterbond, the writ of attachment may be discharged.
2. The amount of the counter-attachment bond is to be measured against the value of the
attached property as determined by the judge to secure the payment of any judgment
that the attaching creditor may recover in the action.
When you say improper, there is no ground or cause for the issuance of a preliminary attachment. When you say irregular,
the process or the procedure was not followed, e.g. attachment was issued without a supporting bond, affidavit, or summons.
When you say excessive, the attached property is worth more than the necessary amount to satisfy the judgment in case it is
favorable to the plaintiff.
8
jjsummer&rain#foursisons2015-0099
o Does the posting of a counterbond amount to a waiver of the claim for damages
arising from the wrongful attachment? No, the mere posting of a counterbond does not
discharge a claim for damages. It does not amount to waiver.
o Claim for damages: An application for damages on account of improper, irregular or
excessive attachment must be filed during the pendency of the case.
1. The only exception where you can apply for damages even after the termination of the
case is when the court grants the motion to dismiss and you had no opportunity to
present evidence.
2. You can also claim damages sustained during the pendency of the appeal by filing an
application in the appellate court before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and decided by
the trial court.
3. To be able to award moral and exemplary damages, there should be malice and bad
faith. However, the mere existence of malice and bad faith would not per se warrant
the award of actual or compensatory damages. To grant such damages, sufficient
proof thereon is required.
jjsummer&rain#foursisons2015-0100
A grant of preliminary injunction if issued by the lower court can only be effective within the judicial district.
jjsummer&rain#foursisons2015-0101
jjsummer&rain#foursisons2015-0102
o Can the court issue an ex parte preliminary injunction? No, while a TRO can be
issued ex parte, a preliminary injunction cannot be issued ex parte. It should always be with
notice and hearing.
o Can you extend the period of a TRO? Under the Rules of Court, you cannot extend the
period of a TRO. But under the Special Rules of Court on ADR,10 you are entitled to a singular
extension of another twenty (20) days if the other party would ask for an extension of the
period to file his opposition or comment on why the interim measure of protection should
not be granted or to reset the hearing to a later date, and such request is granted.
o Is a grant of an injunctive relief a judgment on the merits? No, it is not a judgment
on the merits. It is interlocutory. The evidence submitted during the hearing for the
application for injunction is not conclusive or complete for only it is a sampling needed by
the trial court to have an idea of the justification for a preliminary injunction.
o What happens after a Complaint with Application for a TRO or PI is filed?
1. Once a case is filed, the case shall be delivered to the Executive Judge for purposes of
raffle. If your case does not involve an ex parte application for a TRO, the Executive
Judge will issue summons, together with the complaint, and a notice of raffle to be
served to the adverse party.
2. Once the case is raffled to a court, the presiding judge therein will conduct a summary
hearing to determine whether it could grant the 20-day TRO. This would require a
sampling of evidence, i.e. evidence sufficient to support the application for TRO.
3. If the 20-day TRO is granted, the court shall then conduct summary hearings within
the 20-day period to determine whether it could grant the application for preliminary
injunction. This would require also require a sampling of evidence, i.e. evidence
sufficient to support the application for preliminary injunction.
o How to dissolve the writ of injunction:11
1. By motion with supporting affidavits showing that there is no ground for the
preliminary injunction;
2. By motion on the ground that the damage that the person (against whom the
preliminary injunction was issued) will suffer will be far greater than the applicant and
by posting a counterbond in an amount to be determined by the court.
o Claim for damages: An application for damages on account of improper, irregular
injunction must be filed during the pendency of the case.
1. The only exception where you can apply for damages even after the termination of the
case is when the court grants the motion to dismiss and you had no opportunity to
present evidence.
2. You can also claim damages sustained during the pendency of the appeal by filing an
application in the appellate court before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and decided by
the trial court.
10
11
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o How to apply: Under this Rule, a person is appointed to act as a receiver to preserve the
property, prevent it from being wasted and dissipated and to see to it that it is in good
condition until it is executed on.
1. If the application is a part of an initiatory pleading, the application must be in a
verified petition with a supporting affidavit and a bond, to be filed at any time, even
after judgment has become final and executory,13 in all courts of law, including the
Court of Appeals and the Supreme Court.
2. If the principal action is pending, file a motion with a supporting affidavit and bond
for the appointment of a receiver.
3. There are two (2) bonds under this rule, i.e. bond of the receiver, and bond of the
applicant.
o What is the duty of a receiver? The duty of the receiver is to manage the properties and
its affairs, it is limited only to the power of administration. The receiver cannot perform acts
of ownership without the consent or approval of the court.
o How to dissolve the order appointing a receiver:
1. By the court motu proprio or on motion of either party on the ground that the necessity
for a receiver no longer exists;
2. By a counter-bond; and
3. By the receivers cessation from office.
o Claim for damages: An application for damages on account of improper, irregular
appointment of a receiver must be filed during the pendency of the case.
1. The only exception where you can apply for damages even after the termination of the
case is when the court grants the motion to dismiss and you had no opportunity to
present evidence.
2. You can also claim damages sustained during the pendency of the appeal by filing an
application in the appellate court before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and decided by
the trial court.
12
Rule 39, Sec. 41. Appointment of receiver. The court may appoint a receiver of the property of the judgment obligor;
and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt
from execution.
13
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jjsummer&rain#foursisons2015-0105
jjsummer&rain#foursisons2015-0106
Litis pendentia is Latin for a pending suit. It exists when another action is pending between the same parties for the same
cause of action. The subsequent action is unnecessary and vexatious and is instituted to harass the respondent (in the
subsequent action).
15
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16
Rule 63, Sec. 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or
whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder.
17
An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be brought under this Rule.
18
In an action for quieting of title, there is an apparent or ostensible title, but in truth and in fact, it is not.
jjsummer&rain#foursisons2015-0108
ordinance, or any other governmental regulation? The pending case will not be
dismissed, but instead converted into an ordinary action.
o A declaratory judgment may issue only if there has been no breach of the
documents in question. If the contract or statute subject matter of the action has already
been breached, the appropriate ordinary civil action must be filed. If adequate relief is
available through another form of action or proceeding, the other action must be preferred
over an action for declaratory relief.
1. A petition for declaratory relief is not the proper remedy once a notice of assessment
was already issued. The law on tax-exemption sought to be judicially interpreted in
this case had already been breached there being a notice of tax assessment. The RTC
of Pasay, therefore, had no jurisdiction over the PEZAs petition for declaratory relief
against the City. (City of Lapu-Lapu vs. PEZA, 2014).
o Can the court decide not to resolve an action for declaratory relief? Yes, the court
can leave the action undecided in cases where a decision will not terminate the controversy.
In an action for declaratory relief, the court is in no way compelled to resolve the case. It is
left to the sound judgment of the court.
1. Sec. 5 of Rule 63 states that: the court, motu proprio or upon motion, may refuse to
exercise the power to declare rights and to construe instruments in any case where a
decision would not terminate the uncertainty or controversy which gave rise to the
action, or in any case where the declaration or construction is not necessary and
proper under the circumstances.
o Can the court decide not to resolve an action involving other similar
remedies? No, the court cannot leave the action involving any of the three actions under
the second paragraph of Sec. 1 of Rule 63 unresolved. This is expressly stated in Sec. 5 of the
same rule. The court has no choice but to resolve the case.
jjsummer&rain#foursisons2015-0109
jjsummer&rain#foursisons2015-0110
o Can you file a motion for extension of time to file a petition under Rule 64? No,
you cannot. There is no provision under Rule 64 governing an extension of time to file the
petition.
o Can you file a motion for extension of time to file a petition under Rule 65? No,
as a general rule, you cannot. A petition for certiorari under Rule 65 must be filed within a
non-extendible period of sixty (60) days. Under exceptional cases, however, the 60-day
period may be extended subject to the courts sound discretion.
1. The general rule is that a petition for certiorari must be filed strictly within 60 days
from notice of judgment or from the order denying a motion for reconsideration. This
is in accordance with the amendment introduced by A.M. No. 07-7-12-SC24 where no
provision for the filing of a motion for extension to file a petition for certiorari exists,
unlike in the original Section 4 of Rule 65 which allowed the filing of such a motion
but only for compelling reason and in no case exceeding 15 days. (Thenamaris vs. CA,
2014).
2. Under exceptional cases, however, the 60-day period may be extended subject to the
courts sound discretion. The deletion of the provisions in Rule 65 pertaining to
extension of time did not make the filing of such pleading absolutely prohibited. "If
such were the intention, the deleted portion could just have simply been reworded to
state that no extension of time to file the petition shall be granted. Absent such a
prohibition, motions for extension are allowed, subject to the courts sound
discretion." (Id.)
jjsummer&rain#foursisons2015-0111
o Courts of justice determine the limits of power of the agencies and offices of the government
as well as those of its officers. In other words, the judiciary is the final arbiter on the question
whether or not a branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature The courts cannot hereafter evade the duty to settle
matters of this nature, by claiming that such matters constitute a political question. (Araullo
vs. Aquino, 2014).
o What are the remedies by which the grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government may be determined under the Constitution? Certiorari and
prohibition20 will lie for want or excess of jurisdiction. The following actions are used for
determining and correcting grave abuse of discretion amounting to lack or excess of
jurisdiction:
1. Petition for certiorari under Rule 64 (COMELEC and the COA);
2. Petition for certiorari under Rule 65; and
3. Petition for prohibition under Rule 65.
o Do you need to implead the court, agency, or the branch of government that
rendered the assailed decision under Rule 45? Under Rule 65? Under Rule 45, you
need not implead an agency of the government, you only implead a party to the case; while
under Rule 65, you implead as nominal party the court, agency, or tribunal that rendered the
assailed decision.
Rule 65, Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the
paragraph of Section 3, Rule 46.
19
Certiorari is a corrective remedy used for the re-examination of some action of an inferior tribunal, and is directed to the cause
or proceeding in the lower court and not to the court itself; while Prohibition is a preventive remedy issuing to restrain future
action, and is directed to the court itself.
20
jjsummer&rain#foursisons2015-0112
o What is the effect of a filing of a petition for review on certiorari under Rule
45? Filing of a petition for certiorari under Rule 65? Under Rule 45, an appeal
stays the judgment appealed from execution cannot be had, unless the judgment can be
executed for a good cause in the exercise of the sound discretion of the court (discretionary
execution); while under Rule 65, the assailed judgment will not be stayed, unless a TRO or PI
is obtained.
o What is the remedy for a discretionary act? For a ministerial act? A petition for
certiorari is the proper remedy to assail a discretionary act if such act was done with grave
abuse of discretion amounting to lack or excess of jurisdiction; while for a ministerial act,
mandamus is the proper remedy. Mandamus requires you to perform a writ that compels
you to do an act when there is a law that requires you to do an act specifically enjoined by law.
Writ of Prohibition21
o The purpose of a writ of prohibition is to keep a lower court within the limits of its
jurisdiction in order to maintain the administration of justice in orderly channels. Prohibition
is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior
court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance
the inferior court transgresses the bounds prescribed to it by the law, or where there is no
adequate remedy available in the ordinary course of law by which such relief can be obtained.
(Araullo vs. Aquino, 2014).
o A petition for prohibition is not the proper remedy to assail an IRR issued in the exercise of
a quasi-legislative function Prohibition lies against judicial or ministerial functions, but not
against legislative or quasi-legislative functions. (Id.)
o The remedies of certiorari and prohibition are necessarily broader in scope and reach and
may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right,
undo and restrain any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions. This application is expressly
authorized by the text of the second paragraph of Section 1, Art. VIII of the Constitution.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit or nullify the acts of legislative and executive officials.
(Id.)
o Prohibition and Preliminary Injunction, distinctions:
1. Prohibition is directed to any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions; while a preliminary
injunction is directed against a party in an action.
2. Prohibition involves a question of jurisdiction, i.e. without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
21
Rule 65, Sec. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action
or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise
be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3,
Rule 46.
Can you file a petition for prohibition to enjoin an act that has already been performed? No, if an act has already been
performed, there is nothing more to prohibit. It is already fait accompli.
jjsummer&rain#foursisons2015-0113
23
Mandamus can be issued only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief.
Although classified as a legal remedy, mandamus is equitable in its nature and its issuance is generally controlled by equitable
principles. Indeed, the grant of the writ of mandamus lies in the sound discretion of the court. (Star Special Watchman vs. Puerto
Princesa, 2014).
jjsummer&rain#foursisons2015-0114
appropriate to enforce a private right against an individual. The writ of mandamus lies to
enforce the execution of an act, when, otherwise, justice would be obstructed; and, regularly,
issues only in cases relating to the public and to the government; hence, it is called a
prerogative writ. To preserve its prerogative character, mandamus is not used for the
redress of private wrongs, but only in matters relating to the public. (Id.) (Emphasis
supplied)
o Can you file a petition for mandamus to compel an LGU to pay upon a writ of
execution? No, you cannot compel an LGU to pay upon a writ of execution, but you can
compel the enactment of the necessary ordinance and approval of the corresponding
disbursement by a writ of mandamus, in order to satisfy the judgment award.
1. Where a municipality fails or refuses, without justifiable reason, to effect payment of
a final money judgment rendered against it, the claimant may avail of the remedy of
mandamus in order to compel the enactment and approval of the necessary
appropriation ordinance, and the corresponding disbursement of municipal funds
therefor. (Star Special Watchman vs. Puerto Princesa, 2014).
o As regards final money judgment against the government or any of its agencies or
instrumentalities, the proper legal remedy is to seek relief with the Commission on Audit.
1. Upon determination of State liability, the prosecution, enforcement or satisfaction
thereof must still be pursued in accordance with the rules and procedures laid down
in P.D. No. 1445, otherwise known as the Government Auditing Code of the
Philippines. All money claims against the Government must first be filed with the
Commission on Audit which must act upon it within sixty (60) days. Rejection of the
claim will authorize the claimant to elevate the matter to the Supreme Court on
certiorari and, in effect, sue the State thereby (P.D. 1445, Sections 49-50). (Id.)
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24
25
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Eminent Domain is the power of the State, while expropriation is the procedure to exercise the right of eminent domain.
The determination of just compensation is essentially a judicial function that the judiciary exercises within the parameters of the
law. Any valuation for just compensation laid down in the statutes may serve only as a guiding principle or one of the factors in
determining just compensation, but it may not substitute the courts own judgment as to what amount should be awarded and how
to arrive at such amount.
27
jjsummer&rain#foursisons2015-0117
determined by the provincial or city appraisal committee. However, these values may
serve as factors to be considered in the judicial valuation of the property. (Republic
vs. Libunao, 2009).28
2. The general rule is that the just compensation to which the owner of the condemned
property is entitled to is the market value. Market value is that sum of money which
a person desirous but not compelled to buy, and an owner willing but not compelled
to sell, would agree on as a price to be paid by the buyer and received by the seller.
(Republic vs. BPI, 2013).
3. The general rule, however, is modified where only a part of a certain property is
expropriated. In such a case, the owner is not restricted to compensation for the
portion actually taken, he is also entitled to recover the consequential damage, if any,
to the remaining part of the property. (Id.)
4. To determine just compensation, the trial court should first ascertain the market
value of the property, to which should be added the consequential damages after
deducting therefrom the consequential benefits which may arise from the
expropriation. If the consequential benefits exceed the consequential damages, these
items should be disregarded altogether as the basic value of the property should be
paid in every case. (B.H. Berkenkotter & Co. v. Court of Appeals, 1992). Otherwise,
the government can simply walk away without paying just compensation.
5. No actual taking of the building is necessary to grant consequential damages.
Consequential damages are awarded if as a result of the expropriation, the remaining
property of the owner suffers from an impairment or decrease in value. Considering
that the subject property is being expropriated in its entirety, there is no remaining
portion which may suffer an impairment or decrease in value as a result of the
expropriation. Hence, the award of consequential damages is improper. (Republic vs.
Soriano, 2015).
o Is the trial court bound to adopt the commissioners report on the
determination of just compensation? No, the trial court is not bound by the
commissioners recommended valuation on the property sought to be expropriated. The
court has the discretion on whether to adopt the commissioners valuation or to substitute its
own estimate of the value as gathered from the records.
o How do you determine just compensation when the government takes
possession of your property without instituting an action for expropriation? The
property owner is still entitled to compensation despite the non-filing of an action for
expropriation. You can file an action to recover just compensation and damages.
1. When there is no action for expropriation and the case involves only a complaint for
damages or just compensation, the provisions of the Rules of Court on ascertainment
of just compensation (i.e., provisions of Rule 67) are no longer applicable, and a trial
before commissioners is dispensable. (Republic vs. Court of Appeals, 2009)
2. Rule 67 presupposes a prior filing of complaint for eminent domain with the
appropriate court by the expropriator. If no such complaint is filed, the expropriator
is considered to have violated procedural requirements, and hence, waived the usual
procedure prescribed in Rule 67, including the appointment of commissioners to
ascertain just compensation. (Id.)
Among the factors to be considered in arriving at the fair market value of the property are the cost of acquisition, the current
value of like properties, its actual or potential uses, and in the particular case of lands, their size, shape, location, and the tax
declarations thereon. The measure is not the taker's gain but the owner's loss. To be just, the compensation must be fair not only
to the owner but also to the taker. (Republic vs. Asia Pacific Integrated Steel Corporation, 2014)
28
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o What is public use? Public use, in common acceptation, means use by the public.
However, the concept has expanded to include utility, advantage or productivity for the
benefit of the public. The meaning of the term public use has evolved over time in response
to changing public needs and exigencies. Public use which was traditionally understood as
strictly limited to actual use by the public has already been abandoned. Public use has
now been held to be synonymous with public interest, public benefit, and public
convenience.
o Can an action for expropriation be withdrawn? Yes, an action for expropriation can
be withdrawn at any time for as long as there is no order of expropriation.
1. Once there is an order of expropriation, the government can no longer withdraw,
provided that there remains to be a public purpose without which, the proceedings
should be dismissed.
o What happens if the judgment in an expropriation case had long been final and
executory? If the expropriation case had long been final and executory, both the Order of
Expropriation, and the Order fixing Just Compensation by the RTC can no longer be
modified. In short, the government cannot withdraw from the expropriation proceedings.
o What is the effect of the abandonment of public purpose during the
proceedings for expropriation? The action for expropriation should be dismissed there
being no public use anymore. It is essential that the element of public use of the property
be maintained throughout the proceedings for expropriation. The moment it appears in
whatever stage of the proceedings that the expropriation is not for a public use, the complaint
should be dismissed and all the parties thereto should be relieved from further annoyance or
litigation.
1. In the case of Metropolitan Water vs. Delos Angeles (1931), the court held that: The
very moment that it appears at any stage of the proceedings that the expropriation is
not for a public use, the action must necessarily fail and should be dismissed, for the
reason that the action cannot be maintained at all except when the expropriation is for
some public use. That must be true even during the pendency of the appeal or at any
other stage of the proceedings.
2. With respect to the element of public use, the expropriator should commit to use the
property pursuant to the purpose stated in the petition for expropriation filed, failing
which, it should file another petition for the new purpose. If not, it is then incumbent
upon the expropriator to return the said property to its private owner, if the latter
desires to reacquire the same. Otherwise, the judgment of expropriation suffers an
intrinsic flaw, as it would lack one indispensable element for the proper exercise of the
power of eminent domain, namely, the particular public purpose for which the
property will be devoted. (Mactan-Cebu International Airport Authority v. Lozada,
Sr., 2010)
3. In view of the discontinuance of the proceedings and the eventual return of the
property to the respondents, there is no need to pay just compensation to them
because their property would not be taken by NAPOCOR. Instead of full market value
of the property, therefore, NAPOCOR should compensate the respondents for the
disturbance of their property rights from the time of entry in March 1993 until the time
of restoration of the possession by paying to them actual or other compensatory
damages. (Republic vs. Borbon, 2015).
jjsummer&rain#foursisons2015-0119
o Who can be parties to an action for expropriation? The parties to an action for
expropriation is the government, or its instrumentality which institutes the action;29 and all
persons owning or claiming to own, or occupying, any part thereof or interest in the property.
o Can an easement of right-of-way amount to expropriation? Yes, an easement of
right-of-way can amount to expropriation. Expropriation is not limited to the acquisition of
real property with a corresponding transfer of title or possession. The right-of-way easement
resulting in a restriction or limitation on property rights over the land traversed by
transmission lines also falls within the ambit of the term expropriation. (NAPOCOR vs.
Santa Loro, 2008).
1. After petitioners transmission lines were fully constructed on portions of
respondents lots, petitioner imposed restrictions thereon such as the prohibition
against planting or building anything higher than three meters below the area
traversed by said lines. Petitioners acquisition of an easement of right-of-way on the
lands of the respondents amounted to an expropriation of the portions of the latters
properties and perpetually deprived the respondents of their proprietary rights
thereon and for which they are entitled to a reasonable and just compensation. (Id.)
o Can you recover interest in case payment of the just compensation is delayed?
Yes, if only there is delay in payment due to the fault of the government. The mere fact of
delay will not entitle you to recover interest.
1. The concept of just compensation embraces not only the correct determination of the
amount to be paid to the owners of the land, but also the payment of the land within a
reasonable time from its taking. Without prompt payment, compensation cannot be
considered just inasmuch as the property owner is being made to suffer the
consequences of being immediately deprived of his land while being made to wait for
a decade or more before actually receiving the amount necessary to cope with his loss.
(Apo Fruits vs. Court of Appeals, 2007).
o How much should be the initial payment of the government be in order to take
possession of the property to be expropriated?
1. Under the Rules of Court, the government should deposit the assessed value of the
real property in a government depositary bank. If it should be a personal property, the
amount to be deposited shall be determined by the court;
2. Under the Local Government Code, the LGU should, upon the institution of the
expropriation proceedings, deposit with the proper court at least fifteen percent (15%)
of the fair market value of the property to be expropriated;
3. Under RA No. 8974 (re: government infrastructure projects), the government
should immediately pay the owner of the property its proffered value or the full
amount of the zonal value.
a. RA No. 8974 states that in case the completion of a government infrastructure
project is of utmost urgency and importance, and there is no existing valuation
of the area concerned, the implementing agency shall immediately pay the
owner of the property its proffered value, taking into consideration the
standards prescribed in Section 5 of RA No. 8974. (Republic vs. Gingoyon,
2005)
Please note that the National Governments power to expropriate is supreme; while an LGUs power to expropriate is inferior to
the national government. An LGU can only expropriate pursuant to an ordinance enacted for the purpose.
29
jjsummer&rain#foursisons2015-0120
o Can there be a counterclaim in an action for expropriation? No, you cannot make a
counterclaim in expropriation cases. Under Sec. 3 of Rule 67, no counterclaim, cross-claim
or third-party complaint shall be alleged or allowed in the answer or any subsequent
pleading.
o What is your remedy from an order of expropriation? A certiorari is not the remedy
for an order of expropriation it being a final judgment, and not interlocutory. The remedy
is an appeal. Under Sec. 4 of Rule 67, a final order sustaining the right to expropriate the
property may be appealed by any party aggrieved thereby. Such appeal, however, shall not
prevent the court from determining the just compensation to be paid.
jjsummer&rain#foursisons2015-0121
Rule 39, Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the time
allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by
injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in
possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption,
to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to
make the necessary repairs to buildings thereon while he occupies the property.
30
jjsummer&rain#foursisons2015-0122
o What is the redemption period and who is entitled to possession of the property
during the redemption period if the mortgagee is a bank?
1. If the mortgagor is a natural person, and his property is mortgaged in favor of a
bank, the redemption period, whether under judicial or extrajudicial foreclosure, is a
period of one (1) year. The purchaser or the bank, if the bank is the bidder, is entitled
to possession during the redemption period.
2. If the mortgagor is a juridical person whose property is mortgaged in favor of
banks, the redemption period (right of redemption) is only: (1) until, but not after, the
registration of the certificate of foreclosure sale; or (2) ninety (90) days after
foreclosure, whichever comes first.31
o Can you stop a foreclosure sale? Can you annul a foreclosure sale? Yes, you can
stop a foreclosure sale by filing an action for injunction. You can also annul a foreclosure sale
as provided under Sec. 8 of Act No. 3135.32
o How is venue dictated in an action for judicial foreclosure? In an action for judicial
foreclosure, the venue shall be in the place where the property is located.
o How is venue dictated in an action for extrajudicial foreclosure? In an extrajudicial
foreclosure, where the properties are in different localities, payment of fees can be done in
one locality but the actual sale shall be in the place where each of the mortgaged property is
located.
1. Where the application concerns the extrajudicial foreclosure of mortgages of real
estates and/or chattels in different locations covering one indebtedness, only one filing
fee corresponding to such indebtedness shall be collected. (Sps. Yu vs. PCIB, 2006).
2. The collecting Clerk of Court shall, apart from the official receipt of the fees, issue a
certificate of payment indicating the amount of indebtedness, the filing fees collected,
the mortgages sought to be foreclosed, the real estates and/or chattels mortgaged and
their respective locations, which certificate shall serve the purpose of having the
application docketed with the Clerks of Court of the places where the other properties
are located and of allowing the extrajudicial foreclosures to proceed thereat. (Id.)
o Disposition of Proceeds of Sale: The amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of the sale, be paid to the person
foreclosing the mortgage, and when there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior encumbrancers in the order of their
priority, to be ascertained by the court, or if there be no such encumbrancers or there be a
balance or residue after payment to them, then to the mortgagor or his duly authorized agent,
or to person entitled to it. (Rule 68, Sec. 4)
31
RA No. 8791 (General Banking Law of 2000), Sec. 47: xxx Notwithstanding Act 3135, juridical persons whose property is
being sold pursuant to an extrajudicial foreclosure, shall have the right to redeem the property in accordance with this provision
until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall
be more than three (3) months after foreclosure, whichever is earlier. Owners of property that has been sold in a foreclosure sale
prior to the effectivity of this Act shall retain their redemption rights until their expiration.
32
Act No. 3135, Sec. 8. The debtor may, in the proceedings in which possession was requested, but not later than thirty days
after the purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled, specifying the
damages suffered by him, because the mortgage was not violated or the sale was not made in accordance with the provisions
hereof, and the court shall take cognizance of this petition in accordance with the summary procedure provided for in section one
hundred and twelve of Act Numbered Four hundred and ninety-six; and if it finds the complaint of the debtor justified, it shall
dispose in his favor of all or part of the bond furnished by the person who obtained possession. Either of the parties may appeal
from the order of the judge in accordance with section fourteen of Act Numbered Four hundred and ninety-six; but the order of
possession shall continue in effect during the pendency of the appeal.
jjsummer&rain#foursisons2015-0123
o Deficiency Judgment: If upon the sale of any real property, there be a balance due to the
plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment
against the defendant for any such balance for which, by the record of the case, he may be
personally liable to the plaintiff, upon which execution may issue immediately if the balance
is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled
to execution at such time as the balance remaining becomes due under the terms of the
original contract, which time shall be stated in the judgment. (Rule 68, Sec. 6).
jjsummer&rain#foursisons2015-0124
This rule applies to real and personal properties, or a combination of both real and personal properties.
34
Rule 69, Sec. 12. Neither paramount rights nor amicable partition affected by this Rule. Nothing in this Rule
contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved
by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made;
nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by
agreement and suitable instruments of conveyance without recourse to an action.
jjsummer&rain#foursisons2015-0125
not more than three (3) competent and disinterested persons as commissioners to make the
partition.
o What if the property to be partitioned is indivisible, such that if you divide it, it
will be destroyed or will be rendered unusable? The property may be sold and the
proceeds divided among the co-owners; or the property can be purchased by one of the coowners, and the proceeds divided among the rest of the non-buying co-owners.
o What is the venue of an action for partition if the property consists of both real
and personal properties? You follow the rule on joinder of actions, in which case the
property with the highest value dictates the court which has jurisdiction over the action,
respecting the rule on venue.
jjsummer&rain#foursisons2015-0126
The Rules on Summary Procedure, except for some little differences, were lifted into Rule 70. The only court having jurisdiction
over ejectment cases is the MTC, regardless of the amount of damages or unpaid rentals sought to be recovered.
35
Rule 70, Sec. 16. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings
and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession.
36
Rule 70, Sec. 2. Lessor to proceed against lessee only after demand. Unless otherwise stipulated, such action by the
lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the
lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the
premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five
(5) days in the case of buildings.
37
jjsummer&rain#foursisons2015-0127
A complaint for ejectment must be filed within one (1) year from the time of dispossession, but jurisprudence holds that the
counting of the one-year period is from the date of the last demand.
38
Affirmative and negative defenses not pleaded in the answer shall be deemed waived, except lack of jurisdiction over the subject
matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to
counterclaims or cross-claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded.
39
Rule 70, Sec. 4. Pleadings allowed. The only pleadings allowed to be filed are the complaint, compulsory counterclaim
and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified.
40
41
Rule 70, Sec. 13. Prohibited pleadings and motions. The following petitions, motions, or pleadings shall not be allowed:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply
with Section 12 (Referral for Conciliation);
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.
jjsummer&rain#foursisons2015-0128
Rule 70, Sec. 9. Record of preliminary conference. Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be
rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days
from issuance of the order;
4. A clear specification of material facts which remain controverted; and
5. Such other matters intended to expedite the disposition of the case.
43
But in summary procedure for criminal cases, trial is required because the Constitution requires that the accused should not only
be informed of the accusations against him, but also be confronted with the witnesses and the evidence against him.
44
However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order
specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten
(10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last affidavit or
the expiration of the period for filing the same. The court shall not resort to the foregoing procedure just to gain time for the
rendition of the judgment.
45
jjsummer&rain#foursisons2015-0129
c. Post a sufficient supersedeas bond covering the rentals in arrears from the
time you failed to pay until judgment; and
d. Pay on a monthly basis before the appellate court the monthly rental or the
payment for the use or occupation of the property.
o Is the decision of the RTC on appeal executory?46 Yes. As a rule, the decision of the
RTC on the appealed ejectment case is executory, and cannot be stayed,47 unless you are able
to obtain a TRO or a preliminary injunction from the appellate court.
1. In the case of Benedicto vs. Court of Appeals (2005), the court held that: Despite the
executory character of the RTC judgment against the defendant in ejectment cases,
injunctive relief may still be granted.
2. The court further held that: First, a preliminary injunction may be granted even if not
prayed for as long as the requisites therefor are present. More so if it is prayed for.
Second, contrary to petitioners contention, the questioned writ of preliminary
injunction did not dispose of the main case without trial. The writ merely suspended
the execution of the RTC judgment pending appeal. It bears stressing that the main
case, subject of the petition for review, is still yet to be resolved by the Court of Appeals.
Lastly, it is evident from Judge Pagapong-Agraviadors letter that the impugned
judgment is not yet fully executed. Thus, the acts sought to be enjoined by the assailed
writ of preliminary injunction are not yet fait accompli. (Id.)
o Can you apply for a preliminary mandatory injunction48 in ejectment cases? Yes,
you can apply for a preliminary mandatory injunction in an ejectment case.
1. If you apply in the MTC, you have to apply for it within five (5) days from the filing of
the complaint.
2. If you apply for it in the RTC, application must be done within ten (10) days from the
perfection of the appeal.
A decision of the RTC, whether in the exercise of its original jurisdiction or appellate jurisdiction, on a pure question of law can
be directly elevated to the Supreme Court on a petition for review on certiorari. What cannot happen is a decision of the MTC being
reviewed directly by the Supreme Court, even if it is a pure question of law.
46
Rule 70, Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court. The judgment of the
Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken
therefrom.
48
Rule 70, Sec. 20. Preliminary mandatory injunction in case of appeal. Upon motion of the plaintiff, within ten (10)
days from the perfection of the appeal to the Regional Trial Court, the latter may issue a writ of preliminary mandatory injunction
to restore the plaintiff in possession if the court is satisfied that the defendant's appeal is frivolous or dilatory, or that the appeal
of the plaintiff is prima facie meritorious.
47
jjsummer&rain#foursisons2015-0130
Strictly speaking, however, they are not criminal proceedings or prosecutions, even though the contemptuous act involved is
also a crime. The proceeding has been characterized as sui generis, partaking of some of the elements of both a civil and criminal
proceeding, but really constituting neither. In general, criminal contempt proceedings should be conducted in accordance with the
principles and rules applicable to criminal cases, in so far as such procedure is consistent with the summary nature of contempt
proceedings. So it has been held that the strict rules that govern criminal prosecutions apply to a prosecution for criminal contempt,
that the accused is to be afforded many of the protections provided in regular criminal cases, and that proceedings under statutes
governing them are to be strictly construed. However, criminal proceedings are not required to take any particular form so long
as the substantial rights of the accused are preserved. (Id.)
50
jjsummer&rain#foursisons2015-0131
o On the basis of the foregoing legal principles which are now well settled, it can be safely
concluded that under paragraph (d) of Section 3, Rule 71 of the Rules of Court on indirect
contempt, any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice, constitutes criminal contempt.
o Direct51 and Indirect Contempt,52 distinctions:
1. Do you need to file a complaint for direct contempt? For indirect
contempt? You do not need to file a complaint for direct contempt. Direct contempt
is any act of disrespect or disobedience in the presence of the court or the judge. It is
the court itself who summarily adjudges a person guilty of direct contempt; while in
indirect contempt, a complaint for indirect contempt is necessary. Indirect contempt
is a violation of a writ, order, or process of the court. It is not a summary proceeding it requires notice and hearing.
2. What is your remedy if the court holds you liable for direct contempt? Sec.
2 of Rule 71 provides that: The person adjudged in direct contempt by any court may
not appeal therefrom, but may avail himself of the remedies of certiorari or
prohibition. An order of direct contempt is executory. In order to stay the same, you
do not only file certiorari or prohibition, but you will also have to post a bond.
3. What is your remedy if the court holds you liable for indirect contempt?
Your remedy from a judgement finding you guilty of an indirect contempt is an appeal.
The judgment is executory and in order to stay the same, you do not only file an appeal,
but you will also have to post a bond.
o How do you initiate an action for indirect contempt? There are two (2) ways to
initiate an action for indirect contempt, viz:
1. The court upon a formal charge motu proprio, i.e. the judge must make a formal
charge motu proprio. The court can require the respondent to show cause why he
should not be punished for indirect contempt; or
2. Through a verified petition, because you cannot file a motion for indirect contempt in
the same court. The verified petition must be accompanied with a certificate of nonforum shopping, supporting particulars and certified true copies of documents or
Rule 71, Sec. 1. Direct contempt punished summarily. A person guilty of misbehavior in the presence of or so near a
court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required
to do so, may be summarily adjudged in contempt by such court and punished by a fine not exceeding two thousand pesos or
imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a
fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.
51
Rule 71, Sec. 3. Indirect contempt to be punished after charge and hearing. After charge in writing has been filed,
and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard
by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:
52
1.
2.
3.
4.
5.
6.
7.
Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;
Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who,
after being dispossessed or ejected from any real property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing
acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled
thereto;
Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt
under section 1 of this Rule;
Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;
Assuming to be an attorney or an officer of a court, and acting as such without authority;
Failure to obey a subpoena duly served;
The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of
a court held by him.
But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court,
or from holding him in custody pending such proceedings.
jjsummer&rain#foursisons2015-0132
papers involved therein, docketed, heard and decided separately, with an option to
consolidate if the contempt charges arose out of or are related to a principal action
pending in the court.
o What are the penalties for contempt?
1. For direct contempt:
a. If committed against an RTC or a superior court, the punishment is
imprisonment of ten (10) days and/or fine not exceeding PhP 2,000.
b. If committed against the MTC, the punishment is imprisonment of one (1) day
and/or fine not exceeding PhP 200.
2. For indirect contempt:
a. If committed against an RTC or a superior court, the punishment is
imprisonment of six (6) months and/or fine not exceeding PhP 30,000.
b. If committed against the MTC, the punishment is imprisonment not exceeding
one (1) month, and/or a fine not exceeding PhP 5,000.
o Separate Penalty for Each Contumacious Act: In the case of Sps. Curata vs. Philippine
Ports Authority (2009), the court held that: A person guilty of indirect contempt may be
punished by a fine not exceeding PhP 30,000 or imprisonment not exceeding six (6) months
or both. Judge Tac-an violated four (4) resolutions/processes of the CA, namely: the January
10, 2000 TRO, the March 15, 2005 Writ of Preliminary Injunction, the April 19, 2005 TRO
and the June 3, 2005 Resolution, for which he is hereby fined PhP 30,000 for each violation.
Let this serve as a warning to all trial courts to strictly comply with the resolutions and orders
of the appellate courts and this Court. (Emphasis supplied).
o What if the judge charged of indirect contempt has retired during the pendency
of the action, can he still be held liable for indirect contempt? Yes, the retired judge
can still be held liable for indirect contempt. The rule covers government officials or
employees who retired during the pendency of the petition for contempt.
1. Contempt of court applies to all persons, whether in or out of government. Thus, it
covers government officials or employees who retired during the pendency of the
petition for contempt. Otherwise, a civil servant may strategize to avail himself of an
early retirement to escape the sanctions from a contempt citation, if he perceives that
he would be made responsible for a contumacious act. The higher interest of effective
and efficient administration of justice dictates that a petition for contempt must
proceed to its final conclusion despite the retirement of the government official or
employee, more so if it involves a former member of the bench. While there is still no
definitive ruling on this issue when the respondent charged with contempt has retired,
we apply by analogy the settled principle in administrative disciplinary cases that
separation from service does not render the case moot and academic. (Sps. Curata vs.
Philippine Ports Authority, 2009)
o Does Rule 71 apply to proceedings before quasi-judicial agencies?53 Rule 71 does
not apply to proceedings before a quasi-judicial agency if it has its own rules for contempt.
The rules on contempt of such quasi-judicial agency will apply. Rule 71 will have no
application at all.
1. But in cases where the quasi-judicial agency has no contempt rules, then Rule 71 will
apply. The action will then be instituted in the RTC of the place where the
Rule 71, Sec. 12. Contempt against quasi-judicial entities. Unless otherwise provided by law, this Rule shall apply to
contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect
to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial
Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor.
53
jjsummer&rain#foursisons2015-0133
contumacious act was committed. Only when there is no law granting the quasijudicial agency contempt powers that the action shall be filed with the RTC.
2. In the case of Robosa vs. NLRC (2012), the court held that: Under Article 218 of the
Labor Code, the NLRC (and the labor arbiters) may hold any offending party in
contempt, directly or indirectly, and impose appropriate penalties in accordance with
law. The penalty for direct contempt consists of either imprisonment or fine, the
degree or amount depends on whether the contempt is against the Commission or the
labor arbiter. The Labor Code, however, requires the labor arbiter or the Commission
to deal with indirect contempt in the manner prescribed under Rule 71 of the Rules of
Court. Rule 71 of the Rules of Court does not require the labor arbiter or the NLRC to
initiate indirect contempt proceedings before the trial court. This mode is to be
observed only when there is no law granting them contempt powers. As is clear
under Article 218(d) of the Labor Code, the labor arbiter or the
Commission is empowered or has jurisdiction to hold the offending party
or parties in direct or indirect contempt. The petitioners, therefore, have not
improperly brought the indirect contempt charges against the respondents before the
NLRC. (Emphasis supplied).
jjsummer&rain#foursisons2015-0134