CIVIL PROCEDURE NOTES

Judge Gener Gito

** BAR TIPS – CONCENTRATE ON THE AMENDMENTS (60% to 70% of the questions might be
asked.
Read and reread the provisions.

2019 Amendments to the 1997 Rules of Court

May 1, 2020

1. SUBSTANTIVE LAW VS. REMEDIAL LAW

- Substantive Law creates, defines, and regulate life, liberty, and property (Primicias v.
Ocampo).
- Remedial Law lays down the methods by which those rights or obligations arising from
substantive law are protected, enforce and given effect (Bustos v. Lucero).
- Sources of Remedial Law
o Constitution – Rule of exclusion under Sec. 3 Art. III (Evidence)
o Law passed by Congress – BP 129 as amended providing for the jurisdiction of courts
o ROC and all rules promulgated by the SC pursuant to its rule-making powers.

2. RULE MAKING POWER OF THE SUPREME COURT

- Sec. 5 (5), Art. VIII (4P ALI)
- Subjects of the Rule-making power of SC
o Promulgate Rules concerning the:
§ Protection and enforcement of constitutional rights
§ Pleading
§ Practice
§ Procedure in all courts
§ Admission to the practice of law
§ The Integrated Bar
§ Legal Assistance to the underprivileged.

- This power is exclusive. It is not shared with Congress, more so with the executive.
(Echegaray v. SOJ)
- SC has the power to amend and suspend rules (Neypes v. CA)
- Estipona v. Lobrigo, GR 226679, August 15, 2017 – constitutionatilty of Sec. 23, RA 9165 on
plea bargaining. (Plea bargaining is procedural, Congress cannot encroach on the rule
making power of the Supreme Court.)

- Limitations of the Rule-making power of the Supreme Court

o The rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases
o The rules shall be uniform for all courts of the same grade
o The rules shall not diminish, increase, or modify substantive rights – only Congress
(Sec. 5(5), Art. VIII, Constitution)

3. DOCTRINE OF HIERARCHY OF COURTS

- Where courts have concurrent jurisdiction over the subject matter, such concurrence of
jurisdiction does not grant the party seeking relief the absolute freedom to file the case in
court of his choice.
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 - The case must be filed first to the lowest court possible, having appropriate jurisdiction.

- EXCEPTIONS (SPJ-NAG)
o There are special and important reasons clearly stated in the petition
o Dictated by public welfare and advancement of public policy
o Demanded by the broader interest of justice
o The challenged orders were patent nullities
o Analogous exceptional and compelling circumstances called for and justified the
immediate and direct handling by the Court
o There are genuine issues of constitutionality that must be addressed at the most
immediate time

4. DOCTRINE OF NON-INTERFERENCE
- Holds that the court of equal and coordinate jurisdiction cannot interfere with each other’s
order. (Lapu-Lapu Development v. Group Management Corp)
- Thus, RTC has no power or authority to nullify or enjoin the enforcement of a writ of
possession issued by another RTC (Suico Industrial Corp. v. CA)

- Question: Does the doctrine apply to administrative cases/bodies?

o Yes. When the law provides for an appeal from the decision of an administrative body
to the SC or CA, it means that such body is co-equal with the RTC in terms of rand
and stature, and logically beyond the control of the latter (Philippine Sinter Corp. v.
Cagayan Electric Power and Light).
o Sec. 1 Rule 43 PETITION FOR REVIEW – Decision of administrative bodies are
appealable to the CA.
o Applicable only when the administrative body is performing a quasi-judicial function.

5. DOCTRINE OF ADHERENCE TO JURISDICTION

- Once jurisdiction has attached, it cannot be ousted by subsequent happenings or events,
although of a character which would have prevented jurisdiction from attaching in the first
instance.
- The court, once jurisdiction has been acquired, retains that jurisdiction until it finally disposes
of the case (Bantua v. Mercader, Padlan v. Dinglasan).
- Example: pending a case, law is amended

6. SCHEMA OF A CIVIL CASE

Complaint à Summons à Answer à Pre-trial à Trial à Judgment à Post Judgment
Remedies à Execution

7. JURISDICTION AND VENUE

- Jurisdiction is the power and authority of the court to hear, try, and decide the case.
- Jurisdiction of the court includes the authority to execute its decision. It includes the power
of the court to control the execution of its decision (Echegaray v. SOJ)

o Original Jurisdiction is the jurisdiction to take cognizance of a cause at its inception,

try it and pass judgment upon the law and facts.
o Appellate jurisdiction is the authority of court higher in rank to reexamine the final
order or judgment of a lower court which tried the case now elevate for judicial review.

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 o General jurisdiction is the power of the court or tribunal to hear, try and decide all
kinds of cases except those prohibited by law.
§ RTC
o Special jurisdiction means the power of the court to hear, try and decide certain type
of cases.

o Exclusive jurisdiction means no other courts or tribunal has the same jurisdiction
over a particular case.
o Concurrent jurisdiction means equal jurisdiction to deal with the same subject
matter.

8. ASPECTS OF JURISDICTION
a. Jurisdiction over the Subject Matter
o It is the power of a particular court to hear the type of case that is then before it.
o Effect of lack thereof:
§ The Court may dismiss the case
§ The Judgement is void
§ When it is apparent on its face, the case may be subject to collateral attack
§ There is no judgment at all

o How is this conferred?

§ By the constitution or the statute
§ ART. III Constitution
• Judicial Power belongs to the SC or any other courts as may be
established by law.
• Power of the Congress to allocate and confer jurisdiction to all lower
courts

o If conferred by law, what are the consequences?

§ It cannot subject to agreement of the parties
§ It cannot be acquired, waived, enlarged, or diminished by any act or omission
of the parties.
§ It cannot be conferred by acquiescence by the court
§ READ: (1) Republic v. Estipular, (2) De Jesus v. Garcia), (3) Arranza v. BF
Homes)

o How is jurisdiction determined?

§ By the allegation in the complaint; and
§ By the character of the relief sought.
§ Regardless if the plaintiff is entitled thereto.
§ ~~Related to the Doctrine of Adherence to jurisdiction

o What if a D in the ejectment case raised the issue of tenancy in his answer. Should
the case be dismissed?
§ While the MTC does not lose its jurisdiction yet, if after the hearing, tenancy
had in fact been shown, the court should dismiss the case for lack of jurisdiction
(De la Cruz v. CA, 510 SCRA 103, 116)
§ Read also: Velasquez v. Cruz, GR 191479, September 21, 2015.

o When may jurisdiction be challenged

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 § In the MOTION TO DISMISS
§ It may be raised at any stage of the proceeding, even for the first time on appeal
(Calimlim v. Ramirez)

o EXCEPTION TO THE RULE THAT JUR OVER SM CANNOT BE WAIVED OR

QUESTIONED FOR THE FIRST TIME ON APPEAL
§ Tijam v. Sibonghaloy (Jurisdiction by estoppel)
§ Application of the doctrine of estoppel on objection to jurisdiction
§ Read full text because this can only be applied when it involves the same facts
• Here the SC barred a belated objection to jurisdiction because the party
questioned the jurisdiction only when an adverse decision is rendered
and because the party raised only the issue after 15 years.
§ Sps. Erorita v. Sps. Dumlao GR 195477 – Estoppel by laches may only be
invoked to bar the defense of lack of jurisdiction if the factual milieu is
analogous to Tijam v. Sibonghaloy.
§ Mangaliag v. Catubig-Pastoral – The contention that the defense of lack of
jurisdiction may be waived by estoppel through the active participation in the
trial is not the general rule, but an exception, best characterized by the
circumstances in Tijam v. Sibonghaloy.
§ Not all active participation constitute Estoppel

b. Jurisdiction over the Parties

o This is the power of the court to make decisions binding on persons.
o It is the legal Power of the court to render a personal judgment against the party to an
action or proceeding.

o Guy v. Gacott, GR 206147

§ Plaintiff filed an action against a supposed corporation. Judgment was
rendered n favor of the plaintiff and the judgment became final and executory.
When the writ of execution was about to be implemented, plaintiff found out
that the defendant corporation is not really a corporation but a partnership. The
sheriff found properties owned by the partners and attached the same.
§ Is it proper for the sheriff to attach the properties of the partner?
• No. The court did not acquire the jurisdiction over the person of the
partnership.
• A partnersihip is a juridical entity that has a distinct and separate
personality from the persons composing it.
• It is elementary that a judgment of the court if conclusive and binding
only upon the parties and their successor in interest.

o How is this jurisdiction acquired?

§ Plaintiff: Filing of the complaint or petition
§ Defendant:
• Valid service of summons
• Voluntary appearance – when you ask an affirmative relief from the court
except when the relief that you are seeking is to dismiss the case on the
ground of lack of jurisdiction over the person of the defendant, then that
is not tantamount to voluntary appearance.
• S23 R14 – Voluntary Appearance

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 o When is the jurisdiction over the person of the defendant required?
§ ONLY in Action in personam
§ NOT in an action in rem or quasi in rem

§ ACTION IN PERSONAM
• An action against a person, on the basis of his personal liability.
• Enforceable only to a party
• Service of summons is to acquire jurisdiction

§ ACTION IN REM
• Action against a thing itself
• Judgment is enforceable against the whole world
• Special Proceedings cases – S1 R72
• Right, status, remedy
• Service of summons is to satisfy the requirement of due process

§ ACTION QUASI IN REM

• There is a specific defendant, but the purpose of the case is to subject
the property of the defendant to a lien or obligation
• Example: Foreclosure of real estate mortgage
• Service of summons is to satisfy the requirement of due process

c. Jurisdiction over the Issues

o It is the power of the court to try and decide the issues raised in the pleadings of the
parties
o An issue is a disputed point or question to which parties to an action have narrowed
down their several allegations and upon which they are desirous of obtaining a
decision.
o Where there is no disputed point, there is no issue of fact.
o ISSUE OF FACT – established by evidence
o ISSUE OF LAW – is a matter of law

o What defines issues in a case?

§ Defined by the allegations in the pleading
§ If not defined in a pleading, the court has no jurisdiction to try such issue
§ Example: In a civil case, there is issue of fact when the defendant specifically
denies the allegation

o How is it conferred?
§ BY the allegation in the pleadings.

d. Jurisdiction over the Res or thing involved in the litigation

o Necessary when the action is one in rem or quasi in rem

o How is it acquired?
§ By placing a property or thing under the custody of the court.
§ Through statutory authority conferring upon it the power to deal with the
property or thing
§ Read: Banco Espanol-Filipino v. Palanca

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 o What is a thing?
§ Subject matter of the petition

o What is the extent of relief that may be awarded in action in rem and quasi in rem?
§ Any relief granted in rem or quasi in rem actions must be confined to the res,
and the court cannot lawfully render judgment against the defendant [especially
so when the court did not acquire jurisdiction over the defendant](Banco de
Brasil v. CA)

9. SOME NOTES ON JURISDICTIONS OF COURTS

- An action that seeks from the defendant the execution of the deed of absolute sale based on
the contract is an action for specific performance. This is the case although the end result of
the plaintiff’s claim was the transfer of the subject property to his name. (Sps. Saraza v.
Franciso)

- JURISPRUDENCE RULES THAT THESE ACITIONS ARE INCAPABLE PECUNIARY

ESTIMATION
o Action for specific performance
o Action for support
o Right to support
o Annulment of decision of lower courts
o Rescission or reformation of contracts
o Interpretation of contractual obligation (Heirs of Bautista v. Lindo, GR 208232)

- BUT:
o An action for specific performance and damages was filed by the buyers for the seller
to execute a deed of absolute sale in favor of the plaintiff, but it was later on found out
that the subject real property was already transferred to a third person, the
amendment of the complaint to specific performance and/or reconveyance, and
damages is not anymore an action for specific performance but a real action. (Sps.
Tayvilla v. Sejas, GR No. 204970)
o Action for partition of real property is a real action (Barrido v. Nonato, GR No 176492)

- Technique
o If the action is a specific performance and the subject matter is a real property, apply
Saraza vs. Francisco (If you want to classify it as a specific performance); or
o ULTIMATE OBJECTIVE TEST (Go chan v. Go Chan)
§ If the ultimate objective is recovery of the property, then it is a real action.
§ If you want to classify it as a real action.

- Does the MTC has jurisdiction over the probate of the will?
o Yes. It depends on the value of the estate of the decedent.

- Interest
o Since the interest on the loan is a primary and inseparable component of the cause of
action, not merely incidental thereto, and already determinable at the time of filing of
the Complaint, it must be included in the determination of which court has the
jurisdiction over petitioner’s case (Gomez v. Montalban)
o THUS: If interest is only incidental, then it should not be included in the determination
of the jurisdictional amount.
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 o If the interest is already liquidated or can be computed already, then include it in the
jurisdictional amount.

- TOTALITY RULE
o Sec. 33 of B.P.129, as further explained by R.A. 7691 and Administrative Circular No.
09-94, where there are several claims or causes of actions between the same or
different parties, embodied in the same complaint, the amount of the demand shall be
the totality of the claims in all the claims of action, irrespective of whether the causes
of action arose out of the same or different transactions.

- Delegated Jurisdiction of MTC

o Jurisdiction of MTC in such cases is appealable to the CA because in that instance,
the judgment is pursuant to the delegated jurisdiction of the MTC. So it is actually an
RTC decision.
o Habeas Corpus and bail if there are no trial judges in the city

- REAL ACTION
o Actions involving (TIP) title to, interest and possession of real property
o Preliminary Note:
§ In determining the nature of the action, the allegations in the complaint and the
relief prayed for must be considered (Brgy. Piapi v. Talip)
§ The determination of whether an action is real or personal action is
material to determine:
• Jurisdiction
• Venue
• Amount of Filing Fee
§ Examples
• Quiet Title
• Reconveyance of RP
• Reconveyance of Possession of RP

o Basis of jurisdiction in real action

§ Assessed value: value indicated in the Tax Declaration
§ The assessed value must be alleged, otherwise the Court will dismiss the case.
§ But even if the assessed value of the land is not alleged in the complaint, but
the tax declaration is attached thereto, the court can still assess the amount
(BSP v. _____)
§ In cases of land not declared for taxation purposes, the value of the property
shall be determind by the assessed value of the adjacent land.

- ULTIMATE OBJECTIVE TEST

o Where the ultimate objective of the plaintiff is to obtain title to real property, it should
be filed with the proper court having jurisdiction over the assessed value of the
property subject thereof (Brgy. Piapi v. Talip)
o READ:
§ De Vera v. Sps. Santiago GR No. 179457
§ De Leon vs. CA 278 SCRA 94
§ Maslag v. Monzon, GR No. 174908
§ Heirs of Sebe v. Heirs of Sevilla, 603 SCRA 395

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 - VENUE
o It is the place or the geographical area in which a court with jurisdiction may hear and
determine a case or the place where a case is to be tried.
o Venue in CIVIL CASES is procedural and not substantive. Thus, it may be waived or
subject to the agreement of the parties.

JURISDICTION VENUE
Refers to the authority of the court of the
Refers to the place where the case is to
court to hear and decide the case be heard or tried
Substantive law Procedural law
Cannot be waived by the parties May be waived if not invoked either in a
motion to dismiss or in the answer
Fixed by law May be fixed by agreement of the parties
Court may dismiss the action motu Cannot
propio in case of lack of jurisdiction

o What is the basic consideration in determining venue of the action?

§ The determination of whether an action is real or personal
§ Rule 4

o Residence in Personal Action

§ It means the place of abode, whether permanent or temporary, of the plaintiff
or the defendant, as distinguished from “domicile” which denotes a fixed
permanet residence to which, when absent, one has the intention of returning
(Dangwa v. Sarmiento)
§ Residence of a domestic corporation – place where the principal office is
located

o Venue in Personal Action

§ Sps. Saraza v. Francisco (GR 198718)
• Venue of action as to specific performance: As to the issue of venue, the
petitioners’ argument that the action should have been instituted with the
RTC of Makati City, and not the RTC of Imus, Cavite, is misplaced.
Although the end result of the respondent’s claim was the transfer of the
subject property to his name, the suit was still essentially for specific
performance, a personal action, because it sought Fernando’s execution
of a deed of absolute sale based on a contract which he had previously
made.
• The Court compared these two cases with the case of National Steel
Corporation v. Court of Appeals where the Court held that an action that
seeks the execution of a deed of sale over a parcel of land is for recovery
of real property, and not for specific performance, because the primary
objective is to regain ownership and possession of the property. It was
explained that the prayer in National Steel was not in any way connected
to a contract that was previously executed by the party against whom
the complaint was filed, unlike in Cabutihan where the parties had earlier
executed an Undertaking for the property’s transfer, correctly giving rise
to a cause of action either for specific performance or for rescission, as
in this case.

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 § BPI Family v. Yujuico
• An action to recover the deficiency after the extrajudicial foreclosure of
the real property mortgage is a personal action, for it does NOT affect
title to, or possession of real property, or any interest therein.

o Venue in Real action

§ Gochan v. Gochan (Counterpart of Saraza v. Francisco)
• Where the complaint is denominated as one for specific performance,
but nonetheless prays for issuance of a deed of sale of a land to enable
the plaintiff to acquire ownership thereof, its primary objective and nature
is one to recover the parcel of land itself, and thus, is deemed a real
action.
• Applying ultimate objective test
§ If you want to classify it as incapable of pecuniary est – Saraza
§ If you want to use ultimate objective test – Gochan v. Gochan

§ READ
• Samson v. Sps. Gabor GR No. 182970
o The action is for the return of the property or its value on the basis
of co-ownership. The Court held that while the complaint of the
petitioner is for the recovery of the property or its value, the said
complaint is actually anchored on plaintiff’s claim of ownership
over a portion of the real property of the subject property. Hence,
a real action.

o When will the rule on venue not apply?

§ Sec. 4 Rule 4
• In those cases where a specific rule or law provides otherwise; or
• Where the parties have validly agreed in writing before the filing of the
action

o Stipulations on venue
§ The parties may agree on a specific venue (URC v. Lim)
§ Applicable in real and personal actions
§ Requisites:
• In writing
• Made before the filing of an action
• Agreement must be exclusive
§ Agreement may be
• Restrictive – may only be filed in the place agreed upon;
keywords/words of exclusivity:
o Only
o Solely
o exclusive in this court
o In no other courts, save…
o Particularly
o Nowhere else but/except
o CAVEAT: A restrictive stipulation on venue is NOT binding when
the validity of the contract is assailed (Briones v. CA, January 14,
2015)
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 • Permissive – may be filed in a place in addition to that indicated by the
Rules

§ Can the court dismiss the case on the ground of improper venue?
• There is NO motu propio dismissal based on improper venue (Republic
v. Glasgow Credit)
• Allege in answer as affirmative defense
• EXCEPT cases under the rules on Summary Procedure

10. CIVIL ACTION

- Real and Personal Action
o Illustration
§ An action for the nullity of marriage is a personal action (Tamano v. Ortiz)
§ An action for specific performance with damages is a personal action as long
as it does not involve a claim or recovery of ownership, title, to real property
(Siasoco v. CA)
§ Where complaint is for specific performance but prays for the issuance of deed
of sale over a parcel of land to enable the plaintiff to acquire ownership thereof,
it is a real action (Gochan v. Gochan)
§ Annulment of sale of real property is a real action
§ An action to foreclose REM is a real action
§ An action to annul contract of loan and its accessory REM is a personal action

o Not all actions involving real property are real actions

§ Although the end result of the respondent’s claim was the transfer of the subject
property to his name, the suit was still essentially for specific performance, a
personal action, because it sought Fernando’s execution of a deed of absolute
sale based on a contract which he had previously made (Saraza v. Francisco)

o Specified Contractors & Development v. Pobocan (GR 212472)

§ It is a personal action, incapable of pecuniary estimation.
§ Similarly, that the end result would be the transfer of the subject units to
respondent's name in the event that his suit is decided in his favor is "an
anticipated consequence and beyond the cause for which the action [for
specific performance with damages] was instituted."
§ Had respondent's action proceeded to trial, the crux of the controversy would
have been the existence or non-existence of the alleged oral contract from
which would flow respondent's alleged right to compel petitioners to execute
deeds of conveyance. The transfer of property sought by respondent is but
incidental to or an offshoot of the determination of whether or not there is
indeed, to begin with, an agreement to convey the properties in exchange for
services rendered.
§ Issue is the existence of agreement which makes the action a personal action.

o Pacific Rehouse Corp. v. Ngo (GR No. 214934)

§ Does the action survive or not?
§ In the instant case, although the CA correctly pointed out that Civil Case No.
2031-08 involves a complaint for specific performance and damages, a closer
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 perusal of petitioner's complaint reveals that it actually prays for, inter alia, the
delivery of ownership of the subject land through Bautista's execution of a deed
of sale and the turnover of TCT No. T-800 in its favor. This shows that the
primary objective and nature of Civil Case No. 2031-08 is to recover the
subject property itself and thus, is deemed to be a real action.

o Gochan
§ In this jurisdiction, the dictum adhered to is that the nature of an action is
determined by the allegations in the body of the pleading or complaint itself,
rather than by its title or heading. The caption of the complaint below was
denominated as one for "specific performance and damages." The relief
sought, however, is the conveyance or transfer of real property, or
ultimately, the execution of deeds of conveyance in their favor of the real
properties enumerated in the provisional memorandum of agreement.
Under these circumstances, the case below was actually a real action,
affecting as it does title to or possession of real property.

- Local Action and Transitory Action

o Local – real action
o Transitory – personal action

- As to object
o May an action in personam be a real action at the same time?
• YES. If the action will impose personal liability on a person with respect
to a particular real property.
• Ex: Action to deliver title to a particular piece of land

o De Pedro v. Romasan, J. LEONEN:

Jurisdiction over the parties is required regardless of the type of action — whether the action is
in personam, in rem, or quasi in rem. In actions in personam, the judgment is for or against a
person directly. Jurisdiction over the parties is required in actions in personam because they
seek to impose personal responsibility or liability upon a person.

Courts need not acquire jurisdiction over parties on this basis in in rem and quasi in rem actions.
Actions in rem or quasi in rem are not directed against the person based on his or her personal
liability. Actions in rem are actions against the thing itself. They are binding upon the whole
world. Quasi in rem actions are actions involving the status of a property over which a party
has interest. Quasi in rem actions are not binding upon the whole world. They affect only the
interests of the particular parties. However, to satisfy the requirements of due process,
jurisdiction over the parties in in rem and quasi in rem actions is required.

The phrase, "against the thing," to describe in rem actions is a metaphor. It is not the "thing"
that is the party to an in rem action; only legal or natural persons may be parties even in in rem
actions. "Against the thing" means that resolution of the case affects interests of others
whether direct or indirect. It also assumes that the interests — in the form of rights or duties —
attach to the thing which is the subject matter of litigation. In actions in rem, our procedure
assumes an active vinculum over those with interests to the thing subject of litigation.

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 Due process requires that those with interest to the thing in litigation be notified and given an
opportunity to defend those interests. Courts, as guardians of constitutional rights, cannot be
expected to deny persons their due process rights while at the same time be considered as
acting within their jurisdiction. Violation of due process rights is a jurisdictional defect. This court
recognized this principle in Aducayen v. Flores. In the same case, this court further ruled that
this jurisdictional defect is remedied by a petition for certiorari.

o Significance of knowing the distinction

§ To determine whether or not jurisdiction over the person of the defendant is
required and consequently the type of summons to be employed.

o Gomez v. CA, 425 SCRA 98, 103

§ To resolve whether there was valid service of summons on respondents, the
nature of the action filed against them must first be determined. As the Court
explained in Asiavest Limited vs. Court of Appeals, it will be helpful to
determine first whether the action is in personam, in rem, or quasi in rem
because the rules on service of summons under Rule 14 of the Rules of Court
of the Philippines apply according to the nature of the action.

o Is notice or summons required in in rem and quasi in rem actions?

§ YES. regardless of the nature of the action, proper service of summons is
imperative. A decision rendered without proper service of summons suffers a
defect in jurisdiction. Respondent’s institution of a proceeding for annulment of
petitioner’s certificate of title is sufficient to vest the court with jurisdiction over
the res, but it is not sufficient for the court to proceed with the case with authority
and competence.

o May an in rem or quasi in rem be converted to in personam?

§ YES. If the defendant appears, the cause becomes mainly a suit in personam,
with the added incident, that the property attached remains liable, under the
control of the court, to answer to any demand which may be established against
the defendant by the final judgment of the court.
§ But, if there is no appearance of the defendant, and no service of process on
him, the case becomes, in its essential nature, a proceeding in rem, the only
effect of which is to subject the property attached to the payment of the demand
which the court may find to be due to the plaintiff. (Banco-Espanol v. Palanca,
citing Cooper v. Reynolds)

o GENERAL RULE: Summons by publication will not enable the court to acquire
jurisdiction over the person of the defendant in an action in personam.
§ EXCEPTION:
• Sec. 16 Rule 14: In any action where the defendant is designated as
unknown owner, or the like, or whenever his whereabouts are unknown
and cannot be ascertained by diligent inquiry.
• Sec. 18: Residents temporarily out of the Philippines. (May also be
effected by substituted service)

11. CAUSE OF ACTION

- Ordinary civil action must be based on a cause of action
- Cause of action – an act or omission by which a party violates the right of another
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 - FOUR ELEMENTS (ROVid)
o Right pertaining to the plaintiff
o Correlative obligation of the defendant
o Violation of Plaintiff’s right
o Damage Suffered by plaintiff
- Basis: Substantive Law
- 5 Sources of Obligation (Art. 1157 of the Civil Code)
o Law
o Contract
o Quasi-Contract
o Delict
o Quasi-Delict

Cause of Action Right of Action

A delict or wrong committed by the Right of the plaintiff to institute the action
defendant
Created by substantive law Regulated by procedural law
May not be affected by estoppel or statute May be taken away by estoppel or by the
of limitation statute of limitation

- When can we say that a complaint states a cause of action?

o A complaint states a cause of action if it sufficiently avers the existence of the four (4)
essential elements of a cause of action.
o If the allegations do NOT state the concurrence of these elements, the complaint
become more vulnerable to a motion a motion to dismiss on the ground of failure to
state cause of action. (Westmont Bank v. Funai Philippines)

- Failure to state cause of action v. Lack of Cause of Action

Failure to state cause of action Lack of cause of action

Pertains to the insufficiency in the Pertains to the insufficiency of evidence
allegations in the action
Can only be alleged as affirmative defense Ground for demurrer to evidence
Dismissal does not constitute res judicata Dismissal is a decision on the merits, thus,
res judicata
Remedy: Sec. 1 R. 41 – Petition for Certiorari
under R. 65 Remedy: Appeal
Should be alleged in the affirmative defense Motion to dismiss based on lack of cause
of action is to be filed after the plaintiff has
rested its case.

- Test to determine whether the complaint state a cause of action

o If the court can render a valid judgment based on the allegation in the complaint, the
complaint states a cause of action.
o As a general rule, evidence aliunde should NOT be considered. But annexed
documents to the complaint may be considered because they are part of the
complaint. (Sea Land Service, Inc. v. CA)
§ S6 R7: It is required that the witnesses and the summary of their respective
testimony must be stated in the Complaint. Their Jas must be attached.
Documentary and object evidence in support of the allegation must be stated.
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 § S8 R8: Every pleading must contain a statement of ultimate facts including the
evidence.

12. SPLITTING OF CAUSE OF ACTION

- When there are two or more remedies, the availment of these remedies is tantamount to
splitting of cause of action.
- Examples:
o Recto Law (remedies are alternative)
§ Rescind the contract
§ Exact fulfillment of obligation
§ Foreclose the mortgage
o Loan with mortgage
§ Foreclose the mortgage
§ Action for collection

- Rule 1: A contract embraces only cause of action even if it contains several stipulations
because it may be violated only once.
- Rule 2: A contract which provides for several stipulations to be performed at different times
give rise to as many causes of action as there are violations.
- Rule 3: All obligations which have matures at the time of the suit must be integrated as one
cause of action in one complaint, and those not so include would be barred.

- Claim for damages should be included in the complaint for forcible entry
o Except: CGR v. Treyes – Where the claim for damages arose out of separate acts
committed by the defendant. Where the claim for damages has no direct relation to
the loss of possession of the premises but resulted from acts separate from forcible
entry, a separate action for damages may be filed.

- TESTS TO ASCERTAIN WHETHER TWO SUITS RELATE TO A SINGLE OR COMMON

CAUSE OF ACTION
o Whether the same evidence would support the first and second causes of action
o Whether the defenses in one case may be used to substantiate the complaint in the
other
o Whether the cause of action in the second case existed at the time of the filing of the
first complaint (Umale v. Canoga Park)

- Effect of Splitting
o The filing of one or the judgment on the merits in any one is available as a ground for
the dismissal of another
o Litis pendentia / Res judicata

13. JOINDER OF CAUSES OF ACTION

- It is an assertion in one pleading, in alternative or otherwise, as many causes of action as he
may have against an opposing party. (Sec. 5, Rule 2)

- CONDITIONS FOR THE PROPER JOINDER OF ACTION (Memorize!!!)

o The party joining the causes of action shall comply with the rules on joinder of parties
o Joinder shall not include special civil actions or actions governed by special rules
o In multi-venue causes of action involving the same parties, the RTC has subject matter
jurisdiction and venue is properly laid with the same court
Page 14 of 90 /jcl
 o If all the causes of action are principally for the recovery of money, the aggregate
amount claimed shall the test of jurisdiction (Totality Rule)

- Can a party assert in one pleading several causes of action pertaining to different persons?
o Yes, provided that the party joining the causes of action shall comply with the rules on
joinder.

- JOINDER OF PARTIES IS ALLOWED WHEN

o The causes of action arise out of the same or a series of transaction.
o There is a common question of facts and law in the parties enjoined.

- MISJOINDER OF COA
o Not a ground for dismissal of the action
o File a motion for severance

14. PARTIES TO CIVIL ACTION

- Plaintiff
- Defendant
o Natural Persons
o Juridical Persons
o Entities Authorized by law
§ Corporation by estoppel
§ Estate of a deceased person
§ Legitimate labor organization
§ Roman Catholic Church
§ Dissolved corporations (within 3 years from dissolution)
o Sec. 15 R. 3 – entity without juridical personality as defendant

- If plaintiff is not either of the three– dismissal on the ground of lack of capacity to sue
- If defendant is not either of the three – dismissal on the ground of failure to state cause of
action because a complaint cannot possibly state a cause of action against one who cannot
be a party to a civil action

- CLASSIFICATION
o REAL PARTIES-IN-INTEREST
§ He is a party who stand to be benefitted or injured by the judgment, or the party
entitled to the avails of the suit.
§ Every action must be prosecuted in his name as party-plaintiff or party-
defendant unless otherwise authorized by law.
§ How to determine?
• Examination of the elements of a cause of action
• Existence of a right and a violation of such right
§ The grant of special powers cannot be presumed from the grant of general
power.
§ Effect if not a real party-in-interest
• If a suit is brought NOT in the name of or against the RPI
o Affirmative defense that the complaint states no cause of action
or lack of cause of action

Page 15 of 90 /jcl
 o REPRESENTATIVE PARTIES
§ Trustee of an express trust
§ Guardian
§ Executor or administrator
§ Party authorized by law or the Rules
§ REQUIREMENT: Beneficiary should be included in the title of the case and
shall be deemed to be the real party-in-interest (S3 R3)
• Except: An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
o Exception to the exception: When the contract involves things
belonging to the principal

o INDISPENSABLE PARTY
§ Party-in-interest without whom no final determination can be had of an action
§ Shall be joined as plaintiffs or defendants
§ Failure to join
• NOT result to an outright dismissal
o Parties may be dropped or added by the court motu propio or on
motion (motion to implead) at any stage of the action and on such
terms as are just (S11 R3)
• It is when the order of the court to implead an indispensable party goes
unheeded may the case be dismissed to failure to comply with the order
of the court (S3 R17, Plasabas v. CA)
§ Effect of Failure to Implead if the case proceeded
• Judgment of the court is null and void for want of jurisdiction (Florete, Jr.
v. Florete) not only as to the absent parties but even to those present
(People v. Go, GR 201644).
§ A transferee of a property pendente lite is NOT an indispensable party, as it
would, in any even, be bound by the judgment against his predecessor
(Santiago Land v. CA)
§ St. Luke’s College of Medicine v. Spouses Perez (GR 222740)
• One of the issues is whether the Muncipality of Cabiao an indispensable
party.
• Can there be a valid judgment without impleading the municipality? YES
because the basis of claim against the school is based on contractual
obligation. If ever, the municipality is only a necessary party.

o NECESSARY PARTY
§ One who is NOT an indispensable party but who ought to be joined as a party
if complete relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action (S8 R3)
§ Case may proceed with or without it.
§ Examples
• Collection of debt against the surety, the principal debtor is merely a
necessary party
• In an action for foreclosure of REM instituted by the first mortgagee, the
second mortgagee is merely a necessary party
• Solidarity does not make solidary obligor an indispensable party in a suit
filed by the creditor against another solidary debtor (Republic v. SB, 173
SCRA 72)
Page 16 of 90 /jcl
 § Duty of pleader if a necessary party is not joined
• If explanation in not impleading is unacceptable to the court – court may
order to implead
• If despite the order of the court, the party did not heed
o Effect: Deemed waiver of claim against the necessary party (S9
R3)
• Effect of justified non-inclusion of a necessary party
o Does not prevent the court from proceeding in the action
o The judgement therein shall not be without prejudice to the rights
of such necessary party (S9 R3)
• MISJOINDER/NONJOINDER
o Not a ground for dismissal of an action

o ALTERNATIVE DEFENDANT
• S13 R3
• There still must be a proper joinder of parties

15. CLASS SUIT

- CONDITIONS
o The subject matter of controversy is one of common or general interest to many
persons.
§ A class suit does NOT require a commonality of interest in the questions
involved in the suit.
§ What is required by the Rules is a common or general interest in the subject
matter of the litigation.
§ The “subject matter” of the litigation meant the physical, the things real or
personal, the money, lands, chattels, and the like, in relation to the suit which
is prosecuted and NOT the delict or wrong committed by the defendant.
(Mathay v. Consolidated Bank, 58 SCRA 559, 571)
§ This is because, a delict may produce several causes of action.
§ Example:
• Thousands of passengers are board on a vessel died. 50 heirs filed a
class on behalf of the 50,000 passengers. Class suit is not proper. The
delict produced several causes of action. The subject matter of death is
different from each.
• Juana Complex v. Fil-Estate (GR 152272)
o The developer closed a road which were used by the residents of
inland subdivisions for entry and exit to SLEX. Some of the
resident filed a class suit.
o The Class suit is proper because the suit is clearly one that
benefits all commuters and motorists who use La Paz Road. They
have common interest on the subject matter of the controversy
which is the closure of the road.
• Oposa v. Factoran
o Doctrine of Intergenerational Responsibility

o The parties are so numerous that it is impracticable to bring them all before the court.
o The object of the suit is to obtain relief for or against numerous persons.

Page 17 of 90 /jcl
 16. DEATH OF A PARTY
- S15, 16 R3
- Duty of the lawyer to inform the court within 30 days from knowledge of the death.
- Heirs may be allowed to be substituted without need for the appointment of executor or
administrator

- Examples of Actions which survive

o Action to recover real or personal property
o Actions to enforce lien thereon
o Actions to recover damages for an injury to persons
o Actions arising from delicts

- Examples of Actions which do NOT survive – dismissal of the case

o Actions which are personal in nature
o Nullity of Marriage
o Action for support
o Legal separation
o Actions for recognition

- Action on Contractual Money Claims

o Action is for recovery of money arising from contract, express or implied
o Defendant dies BEFORE entry of final judgment in the court in which the action was
pending at the time of such death
o EFFECT: It shall not be dismissed but it shall be allowed to continue until final
judgment. Favorable judgment shall be claimed in the estate proceedings of the
deceased defendant. (S20 R3) Relate to S5 R86.

17. PLEADINGS
- Written statements of the respective claims and defenses of the parties submitted to the court
for appropriate judgment (S1 R6)
- Motions: do NOT allege claims and defenses
- Reply
o All new matters alleged in the answer are deemed controverted.
o If the plaintiff wishes to interpose any claims arising out of the new matters so alleged,
such claims shall be set forth in an amended or supplementary complaint
o Verified Reply ONLY if the defense is based on an actionable document

- Significance of the filing complaint (CJI)

o Signifies commencement of the civil action
o The court acquires jurisdiction over the person of the plaintiff
§ Filing and payment of the prescribed docket fee to vest the court the jurisdiction
over the subject matter or nature of the action
§ Sun Insurance v. Asuncion
• If filing is NOT accompanied by payment: court may allow payment of
fee within a reasonable time NOT beyond the reglementary period or
prescriptive period.
• If a judgment awards a claim not specified in the pleading (damages
arising after the filing of the complaint/similar pleading
o Effect of interrupting the prescription of actions pursuant to Art. 1155 of the Civil Code

Page 18 of 90 /jcl
 - ANSWER
o One in which a party sets forth his defense
§ Negative Defense – specific denial of material fact/s alleged
§ Affirmative Defense – the grounds under S1 R16 of the OLD RULE should now
be alleged as AD.

- COUNTERCLAIM
o Any claim which the defending party may have against the opposing party.
o TYPES
§ COMPULSORY COUNTERCLAIM (MEMORIZE THE DEFINITION)
• Elements (CAT-JE)
o One which being cognizable by the regular courts of justice,
o Arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party’s claim and
o Does not require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction
o Within the jurisdiction of the court both as to the amount and the
nature thereof
§ Except that in an original action before the RTC, the
counterclaim is compulsory REGARDLESS of the amount
o S8 R11 – Existing at the time the defendant files his answer
• If not raised in the same action, it will be barred unless otherwise allowed
by the Rules (Remedy S10 R11)

• NAMARCO DOCTRINE (Test to determine Compulsory

Counterclaim) (IREG-L)
o Are the issues of fact and law raised by the claim and by the
counterclaim largely the same?
o Would res judicata bar a subsequent suit on defendant’s claim,
absent the compulsory counterclaim rule?
o Will substantially the same evidence support or refute Plaintiff’s
claim as well as the defendant’s counterclaim?
o Would the grant of the complaint necessarily defeat the
counterclaim?
o Is their logical relationship to the complaint and the counterclaim?
(Arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party’s claim)
§ IF YES TO ALL – Compulsory

• Examples:
o A counterclaim for damages and attorney’s fees as a result of an
action filed against petitioner
o In an action for recovery of possession of real estate – the
expense for clearing and cultivation
o In an action by the debtor against the creditor to prevent
extrajudicial foreclosure of chattel mortgage, the creditor should
file a counterclaim for mortgage debt and damages, provided the
debt is already due
• If compulsory counterclaim
o Not required to file docket fee
Page 19 of 90 /jcl
 o Not required for answer to be verified

• POSSIBLE BAR PROBLEMS

o A filed an ejectment suit against B before the MTC. B filed an
answer with counterclaim. B claimed that he should be
reimbursed for the improvement he introduced to the property of
A. The amount of counterclaim is 1M. Can the MTC entertain the
counterclaim?
§ The MTC CANNOT entertain the ENTIRE counterclaim of
B. The entire counterclaim of B is beyond the jurisdiction
of the MTC. It is provided in S7 R6 that the counterclaim
must be within the jurisdiction of the court both as to the
amount and nature thereof. The counterclaim that can be
set up will only be limited to the jurisdictional amount of the
MTC.
o A filed a recovery of possession against B before the RTC. B filed
an answer with counterclaim. B claimed that he should be
reimbursed for the improvement he introduced to the real
property of A. The amount of counterclaim that B demands is
200k. Can the RTC entertain the counterclaim of B?
§ YES. The RTC can entertain the counterclaim of B. While
the counterclaim of B is not within the jurisdictional amount
of RTC, it can still entertain the counterclaim of B. It is
provided in Section 7, Rule 6 that if the original action is
before the RTC, the counterclaim may be considered
compulsory regardless of the amount.
• If the amount of the counterclaim exceeds the jurisdiction of the
court, what is the effect?
o The counterclaim cannot be treated as compulsory, but
permissive since the amount exceeds the jurisdiction of the
Court.
• Can a party file a Motion to Dismiss with counterclaim?
o No. If the dismissal of the main action results in the dismissal of
the counterclaim already filed, it stands to reason that the filing of
a motion to dismiss the complaint is an implied waiver of the
compulsory counterclaim because the grant of the motion
ultimately results in the dismissal of the complaint. (Financial Bldg
Corp v. Forbes Park Assoc, 338 SCRA 346, 354)

§ PERMISSIVE COUNTERCLAIM
• Does not arise out of or is not necessarily connected with the subject
matter of the opposing party’s claim. It is essentially an independent
claim that may be filed separately in another case (Alba v. Malapajo, GR
198752)
• A counterclaim for damages based on quasi-delict cannot be pleaded
as compulsory counterclaim in an action for unlawful detainer (Arenas
v. CA)

Page 20 of 90 /jcl
 • Alba v. Malapajo (Might be asked in the Bar)
o Alba filed a complaint for recovery of ownership and/or
declaration of nullity or cancellation of title and damages alleging
that the deed of sale which was used to cancel his title was a
forged document and respondent was the author thereof.
o Malapajo filed an answer with counterclaim alleging that Alba
obtained a loan from him secured by REM over the subject
property. He claimed for damages and for reimbursement of
petitioner’s loan from them plus the agreed monthly interest in the
event that the deed of sale is declared null and void on the ground
of forgery.
o What is the nature of counterclaim?
§ Compulsory counterclaim. There is a logical relationship
between the claim and the counterclaim, as the
counterclaim is connected with the transaction or
occurrence constituting the subject matter of the opposing
party’s claim.
§ The same evidence to sustain the respondent’s
counterclaim would disprove petitioner’s case.
§ In the event that respondents could convincingly establish
that petitioner actually executed the promissory note and
the real estate mortgage over the subject property in their
favor, then petitioner’s complaint might fail.
§ Petitioner’s claim is so related logically to respondent’s
counterclaim, such that conducting separate trials for the
claim and the counterclaim would result in the substantial
duplication of the time and effort of the court and the
parties.

- CROSS-CLAIM
o Elements
§ Claim by one party against a co-party
§ Arising out of the transaction or occurrence that is the subject matter of either
the original action or the counterclaim therein.
o May cover all or part of the original claim
o Effect if not set-up
§ It shall be barred (S2 R9)
§ The cross-claim that is considered barred is the cross-claim already existing at
the time the answer is filed.
§ Cross-claim that may mature of may be acquired after the service of the
answer
• S11 R9 declares that it may, by leave of court, be presented by
supplemental pleading before judgment.
§ Remedy if Cross-claim was not set-up because of oversight, inadvertence
or excusable neglect, or when justice requires
• By leave of court, set up the cross-claim by amendment before judgment

- REPLY
o GEN: Reply is not required because all new matters alleged in the answer are deemed
controverted. (S10 R6)
Page 21 of 90 /jcl
 o EXC: Reply is necessary when the defendant attaches an actionable document which
is the basis of his answer, to deny the due execution and genuineness of the
actionable document.

- THIRD-PARTY COMPLAINT, ETC.

o Claim that a defending party may, with leave of court, file against a person NOT a party
to the action
o For the following purpose (CISO)
§ Contribution
§ Indemnity
§ Subrogation
§ Other relief in respect of his opponent’s claim
o When third-party complaint be denied and court will require defendant to
institute a separate action: (LEE)
§ Third-party defendant cannot be located within thirty (30) calendar days from
the grant of such leave
§ Matters extraneous to the issue in the principal case are raised
§ The effect would be to introduce a new and separate controversy in the action
o Trial courts are not especially enjoined by law to admit a third-party complaint. They
are vested with discretion to allow or disallow a party to an action to implead additional
party. Thus, a defendant has no vested right to file a third-party complaint (China
Banking Corp. v. Padilla)

- INTERVENTION
o It is a proceeding in a suit or action by which a third person is permitted by the court to
make himself a party.
o Who may intervene? (LAS)
§ A person who has a legal interest
• in the matter in litigation;
• or in the success of either of the parties;
§ or an interest against both,
§ or so situated as to be adversely affected by a distribution or other disposition
of property in the custody of the court. (S1 R19)
o Legal Interest
§ Must be actual, material, direct and of an immediate character, not merely
contingent or expectant, so that the intervenor will either gain or lose by the
direct legal operation of judgment.
o Requisites: (MS-LAS)
§ Motion for leave filed
§ Movant must show in his motion:
• That he has a legal interest in the matter in litigation or in the success of
either of the parties; or
• Legal Interest against both parties; or
• The movant is situated to be adversely affected by a distribution or other
disposition of the property in the custody of the court.

- PART OF A PLEADING (CBSV)

o Caption – name of the court, title of the action, docket
o Body – claims and defenses, relief prayed for, date
o Signature and address
Page 22 of 90 /jcl
 § SIGNIFICANCE OF SIGNATURE OF COUNSEL (IF-CD)
• It is not being presented for an improper purpose
• The claims, defenses, and other legal contentions
o warranted by existing law or jurisprudence, or
o by a non-frivolous argument for extending, modifying, or
reversing existing jurisprudence.
• The factual contentions have evidentiary support, or if specifically so
identified, will likely have evidentiary support after availment of the
modes of discovery under these rule
• The denials of factual contentions are warranted by evidence or, if
specifically so identified, are reasonably based on belief or lack of
information

o Verification and Certification against Forum shopping

§ VERIFICATION
• Executed by the Party or a Person authorized by party with proof of
authority attached to the pleading
• What should be attested in the verification? (FAN)
o The allegations in the pleading are true and correct based on his
personal knowledge, or based on authentic documents.
o The pleading is NOT filed to harass, cause unnecessary delay,
or needlessly increase the cost of litigation; and
o The factual allegations therein have evidentiary support after
reasonable opportunity for discovery.

§ CERTIFICATION AGAINST FORUM SHOPPING

• Executed by the Party or a Person authorized by party with proof of
authority attached to the pleading
• Contents
o That he has not 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;
o If there is such other pending action or claim, a complete
statement of the present status thereof; and
o 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 (S5, R7)
• Who signs if the plaintiff is a juridical entity?
o Certification must be executed by properly authorized persons
o Corporation – the board of directors or by one who is duly
authorized by resolution of the board of directors; otherwise, the
complaint will have to be dismissed
• Several plaintiffs or petitioners
o Must be signed by all the plaintiffs or petitioners in a case.
o Otherwise, those who did not sign will be dropped as parties to
the case.
§ Exception: When the plaintiffs share a common interest
and invoke a common cause of action or defense, the
Page 23 of 90 /jcl
 signature of only one of them substantially comply with the
rules (Basan v. Coca-Cola)

• Non-compliance with the Rule on Certification Against Forum

Shopping
o Ground for dismissal
o The dismissal is without prejudice, unless otherwise provided by
the Court
o If forum shopping is willful or deliberate – ground for summary
dismissal with prejudice and would constitute direct contempt (S5
R7)
o False certification and non-compliance with undertaking
constitute direct contempt
o NOT curable by amendment

§ HOW SHOULD THE COURT TREAT NON-COMPLIANCE WITH

REQUIREMENTS OF DEFECTIVE VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING?
• Noncompliance with or defect in the verification
o Will NOT render the pleading fatally defective
o Defect may be dispensed with.
o It is deemed complied with when one who signed it has ample
knowledge and can swear to the truth of the allegation.

• Noncompliance with or defect in certification against forum

shopping
o Generally, NOT curable by amendment or subsequent
submission of the correct one.
o It can only be relaxed under special and compelling reasons.
o It must be signed by all parties and those who did not sign shall
be considered dropped as parties (Vda. De Formoso v. PNB)

o “CONTENT REQUIREMENT OF THE RULE” (Judge Gito) S6 R7

§ Every pleading stating a party’s claims or defenses shall state the following
addition to S2 R7 Body (Paragraphs, headings, relief, date) (WS-JDO)
• Names of witnesses who will be presented to prove a party’s claim or
defense
• Summary of the witnesses’ intended testimonies with the following
attachments (Testimonial Evidence)
o Judicial Affidavits (Only witnesses who Jas are attached to the
pleading shall be presented by the parties during trial
§ Except if a party presents meritorious reasons as basis for
the admission of additional witnesses, no other witness or
affidavit shall be heard or admitted by the court.
• Documentary and object evidence in support of the allegations
contained in the pleading
§ Effect of noncompliance with S6 R7
• Judge Gito: Yes, the case will be dismissed pursuant to S3 R17 which
provides for the dismissal due to fault of plaintiff on the ground of
noncompliance with the Rules.
Page 24 of 90 /jcl
 - MANNER OF MAKING ALLEGATIONS IN PLEADINGS
o GENERAL RULE
§ Every pleading shall contain in a methodical and logical form, a plan, concise
and direct statement of the ultimate facts, including the evidence on which the
party pleading relies for his or her claim or defense, as the case may be.
§ If a cause of action or defense relied on is based on law, the pertinent
provisions thereof and their applicability to him orher shall be clearly and
concisely stated. (S1 R8)

o General Averment (CCJ-MO)

§ Condition precedent (S3 R8)
§ Capacity to sue or be sued (S4 R8)
• If one contest the party’s capacity to sue, it must be denied specifically
with supporting particulars.
§ Judgment (S6 R8)
• In pleading judgment, certified true copy thereof must be attached
§ Malice, intent, knowledge or other condition of the mind (S5 R8)
§ Official document or act (S9 R8)

o Specific Averment
§ Fraud or mistake
• Circumstancing constituting it must be stated with particularity
• State with particularity the fraudulent acts of the adverse party

o Alternative causes of action or defense (S2 R8)

§ A party may set forth two or more statements of a claim or defense alternatively
or hypothetically, either in one cause of action or defense, or in separate
causes of action or defenses.

o ACTIONABLE DOCUMENT
§ It is a document upon which a claim of the plaintiff or a defense of a defendant
is based. It is the basis of the claim or defense.

§ HOW TO ALLEGE ACTION OR DEFENSE BASED ON ACTIONABLE

DOCUMENT (S7 R8)
• The substance of such instrument or document shall be set forth in the
pleading; and
• The original or a copy thereof shall be attached to the pleading as an
exhibit, which shall be deemed to be a part of the pleading, or said copy
may with like effect be set forth in the pleading.
o In this case, the genuineness and due execution of the instrument
shall be deemed admitted.

§ HOW TO CONTEST SUCH DOCUMENT

• The adverse party, under oath, specifically denies the genuineness and
due execution of the instrument, and sets forth what he claims to be the
facts.
o The requirement of an oath does NOT apply when:
§ The adverse party does NOT appear to be a party to the
instrument; or
Page 25 of 90 /jcl
 § When compliance with an order for an inspection of the
original instrument is refused (S8 R8)

• Failure to deny under oath the due execution and genuineness

o The instrument shall be deemed admitted.
o Admission is considered a judicial admission – a party making
such judicial admission is NOT permitted to present evidence
contrary to what was admitted.

• What defenses are cut off by the implied admission? (FLODW)

o Forgery of the document
o Lack of authority to execute the document
o The party charged signed the document in some other capacity
than that alleged in the pleading
o The document was never delivered
o Document was NOT in the words and figures as set out in the
pleading
o (See: Hibberd v. Rhode and Mcmillian; Imperial Textile Mills
v. CA)

o HOW TO DENY THE ALLEGATION IN THE COMPLAINT

§ MANNER OF DENYING AN ALLEGATION (S10 R8)
• 3 Kinds of Denial
o By specifically denying the allegation and setting forth the
substance upon which one relies his denial. (SD/S)
o By specifically denying some part of the allegation and admitting
the rest. (SDS/A)
o By specifically denying the allegation for lack of knowledge
sufficient to form a belief as to the truth or falsity of the allegation.
(SD/LOK)
§ When the defendant alleges having no knowledge
sufficient to form a belief as to the truth or falsity of the
allegations of the other party BUT such matters are plainly
or necessarily within defendant’s knowledge, a claim of
“ignorance or lack of information” will NOT be considered
a specific denial, hence, an implied admission.
(Acquintey v. Tibong)

§ Effect of failure to deny specifically

• Material averment in the complaint, other than those as to the amount
of unliquidated damages, shall be deemed admitted when not
specifically denied.
• The party is not permitted to present evidence that is contrary to his
deemed admission.

§ NEGATIVE PREGNANT
• It is a negative implying also an affirmative and which, although stated
in a negative form, really admits the allegations to which it relates.
• It is NOT a specific denial.
• It is an admission.
Page 26 of 90 /jcl
 o AFFIRMATIVE DEFENSES
§ The court shall motu propio rule on the following affirmative defenses within a
period of thirty (30) calendar days from the filing of the answer: (LIL-SC)
• The court has no jurisdiction over the person of the defending party;
• The venue is improperly laid;
• The plaintiff has no legal capacity to sue;
• The pleading asserting the claim states no cause of action; and
• A condition precedent for filing the claim has not been complied with.

§ The court shall conduct summary hearing within fifteen (15) calendar days from
filing of the answer and such affirmative defenses shall be resolved by the court
within thirty (30) calendar days from the termination of the summary hearing:
• Fraud
• Statute of Limitations
• Release
• Payment
• Illegality
• Statute of frauds
• Estoppel
• Former recovery
• Discharge in bankruptcy
• Any other matter by way of confession and avoidance

§ Court denies Affirmative Defense

• NOT subject to MR, Petition for CPM
§ Court grants Affirmative Defense
• Remedy: File MR, appeal, or subject the same for petition for CPM
because it is a final order

- AMENDED PLEADING
o Amendment is a matter of right (S2 R10)
§ At any time before a responsive pleading is served, or in case of a reply, at any
time within 10calendar days after it is served.
§ Amendment is still a matter of right even after a motion to dismiss is served
because said motion is NOT a responsive pleading.
§ Amendment is still a matter of right after the motion to dismiss is granted,
provided that the order of dismissal is NOT yet final and executory (Bautista
v. Maya-Maya Cottages)
§ May amendment be made to correct the jurisdictional defect BEFORE a
responsive pleading is filed?
• YES. Because it is a matter of right. (Gumabay v. Baralin)

o AMENDMENT WITH LEAVE OF COURT (S3 R10)

§ If a responsive pleading has already been filed, substantial amendment may
be made only by leave of court.
§ Leave shall be refused – (BCD)
• If it appears to the court that the motion was made with intent to delay;
or
Page 27 of 90 /jcl
 • To confer jurisdiction on the court; or
o Compare with Gumabay v. Baralin
• The pleading stated no cause of action from the beginning which could
be amended.

§ Requisites:
• Motion filed in court
• After notice to the adverse party
• Opportunity to be heard

o AMENDMENT TO CONFORM TO EVIDENCE

§ GEN: You cannot present on something NOT alleged
§ Exception: When issues NOT raised by the pleadings are tried with express
or implied consent of the parties
• They shall be treated in all respects as if they had been raised in the
pleadings.
• NO amendment of such pleadings deemed amended is necessary to
cause them to conform to evidence (S5 R10).
§ Applicable ONLY in civil cases

§ Swagman Hotels and Travels v. CA

• S5 R10 applies to situations wherein evidence not within the issues
raised in the pleadings is presented by the parties during the trial, and
to conform to such evidence the pleadings are subsequently amended
on motion of a party.
• Thus, a complaint which fails to state a cause of action may be cured by
evidence presented during the trial.
• The curing effect of amendment to conform to evidence is applicable
ONLY IF a cause of action in fact exists at the time the complaint is filed,
but the complaint is defective for failure to allege the essential facts.

o EFFECT OF AMENDMENT
§ Supersedes the pleading that it amends (S8 R10)
§ The admission made in the superseded pleading may be received in evidence
against the pleader as an extrajudicial admission.
§ If summons have already been served
• No need to serve summons

- SUPPLEMENTAL PLEADING
o It sets forth transaction, occurrences, or events (TOE) which have happened since the
date of the pleading sought to be supplemented (S6 R10).
o The cause of action must NOT be different from the cause of action of the original
complaint.
§ Otherwise, the court shall NOT admit the supplemental pleading.
§ The office of this pleading is to set up new facts which justify, enlarge, or
change (JEC) the kind of relief with respect to the same subject matter as the
controversy referred to in the original complaint. (Chan v. Chan, 569 SCRA
106)

Page 28 of 90 /jcl
 - FAILURE TO PLEAD
o What is the effect if defenses and objections are not pleaded in the answer as
affirmative defenses or motion to dismiss?
§ GEN RULE: They are deemed waived.
§ EXCEPTIONS: (S1 R9) (LRLP)
• Lack of jurisdiction over the subject matter
• Res judicata
• Litis Pendentia
• Prescription
o They are the ONLY grounds that may be sued in a motion to
dismiss.

o What is the effect if cross-claim and compulsory counterclaim are not set-up?
§ They are barred (S2 R9)
§ Motion to dismiss on the ground of res judicata

- DEFAULT
o When the defending party fails to answer within the time allowed therefor

o Requisites: (JMNP – H)
§ Jurisdiction over the person
§ Upon motion of the claiming party;
§ With notice to the defending party; and
§ Proof that defendant failed to answer within the period
§ Hearing – optional on the part of the Court

o Filing of Answer within 30 calendar days after service of summons unless a different
period is fixed by the court

o Effect of default
§ Party in default is entitled to notice of subsequent proceedings
§ Party in default cannot take part in the trial
§ Plaintiff will be allowed present evidence ex-parte
§ Court shall render judgment granting the claimant such relief as his pleading
may warrant, unless the court in its discretion requires the claimant to submit
evidence.
§ Judgment rendered against a party in default (EDU)
• It shall NOT exceed the amount prayed for
• It shall NOT be different in kind from that prayed for
• It shall NOT award unliquidated damages

o Some of the defendant files an answer and others do not, and the complaint
asserts common cause of action against all defendants
§ The court shall try the case against all upon the answers thus filed and render
judgment upon the evidence presented (S3(c) R9)

o If answered was filed beyond the reglementary period but before the declaration
of default

Page 29 of 90 /jcl
 § The court can still admit the answer even if it was filed out of time because at
the time of filing, the defendant were not yet declared in default nor was a
motion to declared them in default was filed (Sablas v. Sablas)

o Remedies of the Defaulted Defendant

Remedy after notice of order of default File a motion under oath to set aside the
but before judgment order of default upon proper showing
that his failure to answer was due to
fraud, accident, mistake or excusable
negligence (FAME) and that he has a
meritorious defense.

Remedy after judgment and before File a motion for new trial (newly-
judgment becomes final and discovered evidence and FAME) under
executory Rule 37 or Appeal the judgment if the
judgment is contrary to evidence or law.

Remedy after judgment becomes final File a petition for relief from judgment
and executory under Rule 38

o May a party be declared in default for other reason?

§ YES
• If a disobedient party refuses to obey an order requiring him to comply
with various mode of discovery (S3(c) R29)
• If a party or officer or managing agent of party fails to appear before the
officer who is to take his deposition, or a party fails to serve answer to
interrogatories (S5 R29)
o When to file responsive pleading?
§ Answer to complaint – 30 days after service of summons (S1 R11)
• GEN: Motion for extension to file pleading is prohibited and considered
a scrap of paper
• EXC: Complaint
o For meritorious reasons, court may grant an additional period of
not more than 30 calendar days to file an answer.
o Only 1 motion for extension of time to file an answer
§ Answer of a defendant foreign private juridical entity (FPJE) when summons is
made on government official designated by law to receive the same – 60
calendar days from receipt of summons (S2 R11)
§ Answer to amended complaint (counterclaim, cross-claim, third-party complaint
or complaint-in-intervention)
• 30 days if amendment is a matter of right
• 15 days if amendment is not a matter of right
§ Answer to counterclaim or crossclaim – 20 days from service (S4 R11)
§ Answer to third-party complaint – 30 days (S5 R11)
§ Reply under S10 R6 – 15 days from service (S6 R11)
§ Answer to supplemental complaint – 20 days from notice of the order admitting
the same (S7 R11)

Page 30 of 90 /jcl
 18. FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER COURT
SUBMISSIONS (RULE 13)
- Filing: act of submitting the pleading or other paper to the court
- Service: act of providing a party with a copy of the pleading or any other court submission
o If a party appeared by counsel – service to be made upon his counsel (unless service
to both is ordered by court)
o If one counsel appears for several parties – service to counsel of only one copy
o If there are several counsels for one party – one copy serve to lead counsel if any or
to any one of them if there is no lead counsel

- MODES OF FILING (PRAE)

o Personal Filing by submitting the original document personally to court
§ Date and time of filing: Date and time of receipt by the receiving clerk in court
o Sending them by registered mail
§ Date of filing: Date of mailing and payments or deposits as shown by the post
office stamp on the envelope or the registry
o Sending them by accredited courier (ex. JRS, LBC)
§ Date of filing: Date of mailing and payments or deposits as shown by the post
office stamp on the envelope or the registry
o Transmitting them by electronic or other means as may be authorized by the court in
places where the court is electronically equipped
§ Date of filing: Date when it was electronically transmitted to the court

- MODES OF SERVICE (PRAEC) – Read Codal on how they are effected

o Personal Service
§ Personal delivery of a copy to a party or their counsel or authorized
representative named in the appropriate pleading or motion (S6 R13)
o By registered mail (S7 R13)
o By accredited courier
o Electronic mail, facsimile transmission, other electronic means as may be authorized
by the court (S9 R13)
§ Sending via electronic mail
• Only if the party consents
• But SC issuances due to the pandemic effectively amended this with
consent no longer required
o Service as provided for in international conventions to which the Philippines is a party
(Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial
documents in civil and commercial matters)

o Substituted service (S8 R13)

§ If service cannot be made through personal service or registered mail
§ The office and place of residence of the party or his counsel is unknown
§ By delivering the copy to the clerk of court with proof of failure of both personal
service and service by mail

o Presumptive Service (S10 R13)

§ Applicable in a situation if it is the court that is sending a court setting. (e.g.
notice of hearing)
§ Presumption is rebuttable.
§ If notice appears on the records to have been mailed:
Page 31 of 90 /jcl
 • At least 20 calendar days prior to the scheduled date of hearing and if
the addressee is from within the same judicial region of the court where
the case is pending
• At least 30 calendar days if the addressee is from outside the judicial
region

o Service of Judgment, Final Orders or Resolutions (S13 R13) (JFOR)

§ MODES
• Personally
• By registered mail
• By accredited courier only upon ex parte motion of any party to a case
at the expense of such party
§ This is also affected by the latest issuance of SC in response to the pandemic.

o Conventional SERVICE OR FILING (S14 R13)

§ This is also affected by the latest issuance of SC in response to the pandemic.
§ The following must be served or filed (1) personally, or (2) by registered mail
when allowed, and shall NOT be served or filed electronically unless express
permission is granted by the court: (ISPOW-AE-SC)
• Initiatory pleadings and Initiatory responsive pleadings, such as an
answer;
• Subpoena, protection orders, and writs;
• Appendices and exhibits to motions, or other documents that are not
readily amenable to electronic scanning may, at the option of the party
filing such, be filed and served conventionally; and
• Sealed and confidential documents or records.

COMPLETENESS OF PROOF OF FILING PROOF OF SERVICE

SERVICE (S15 R13) (S16 R13) (S17 R13)

Gen: Existence on the

record of the case
PERSONAL Actual receipt 1. Existence on the record 1. Written admission of
of the case; OR if not in the party served
record then 2. Official return of the
2. Written/stamped server
acknowledgment of the 3. Affidavit of the party
COC on the copy serving (date, time
and manner)
REGISTERED 1. Actual receipt; OR 1. Registry receipt; AND 1. Registry receipt;
MAIL 2. After 5 days from 2. Affidavit of person AND
receipt of notice of filing/mailing 2. Affidavit
postmaster,
whichever is earlier ~ Registry return card and
unclaimed letter with
certification/sworn copy of
notice from Postmaster

Page 32 of 90 /jcl
 ORDINARY 1. Expiration of 10 - Affidavit of the person
MAIL Calendar days mailing
from mailing; OR
2. Expiration of the
time provided by
the Court
ACCREDITED 1. Actual receipt; 1. Affidavit of the person 1. Affidavit of the person
COURIER OR who brought the who brought the
2. After 2 failed document to the service document to the service
attempts; OR provider; AND provider; AND
3. Expiration of 5 2. Courier’s Official Receipt; 2. Courier’s Official
days from the AND Receipt; AND
1st attempt, 3. Document Tracking 3. Document Tracking
whichever is Number Number
earlier
ELECTRONIC 1. At the time of the
1. Affidavit of the filing party; 1. Affidavit; AND
MAIL/SERVICE electronic AND 2. Printed copy of
transmission; OR
2. Paper copy – the transmittal
2. The time it was written/stamped
sent acknowledgment of the
filing of the COC (if the
paper copy is sent by
Registered mail, then the
requirements thereof
shall apply
FACSIMILE Receipt by the other 1. Affidavit; AND 1. Affidavit; AND
TRANSMISSION party (Facsimile 2. Copy of the e- 2. Printed copy of
transmission printout complaint the transmittal
FTP)
SUMMONS BY 1. Newspaper of - 1. Affidavit of the
PUBLICATION General publisher, editor,
Circulation; business or
AND advertising
2. Copy of manager (PEM);
summons and AND
order of the
court shall be 2. copy of the
sent by publication; AND
Registered mail
3. Affidavit showing
the deposit of the
copy of summons
and order of
publication in the
post office, postage
prepaid, directed to
the defendant by
RM to his last
known address.
No need to labor on this because of the latest issuances of SC addressing the pandemic.
Page 33 of 90 /jcl
 19. SUMMONS
- It is a writ by which the defendant is notified of the action against him.
- Two-fold purpose:
o To acquire jurisdiction over the person of the defendant; and
o To notify the defendant that an action has been commenced against him.
- In an action in personam: to acquire jurisdiction over the person of the defendant
- In actions in rem and quasi in rem: to satisfy the requirement of due process

- When is a defendant deemed to have voluntary appearance?

o By filing an answer
o By filing an affirmative relief from the court
§ When is this NOT deemed a voluntary appearance?
• The act of making a conditional appearance or special appearance to
object to the jurisdiction of the court over the person.

- Who issues summons?

o Clerk of Court within 5 days from receipt of the initiatory pleading and proof of payment
of docket fees
§ UNLESS the complaint is on its face dismissible under S1 R9 (dismiss motu
proprio)
- May plaintiff be allowed to serve summons? (S2 R14)
o YES.

- Who are authorized to serve summons to defendant?

o Sheriff
o Other proper court officer
o Plaintiff together with the sheriff
§ If the plaintiff is allowed to serve summons to the defendant, it shall be indicated
in the summons.
§ Requisites:
• Ex Parte Motion
• Authority by the Court authorizing the plaintiff

o Plaintiff unaccompanied by Sheriff

§ In case the defendant is outside the judicial region

o Representative of the Plaintiff Juridical Entity as specified by a board resolution or

secretary’s certificate
§ Notify the court in writing
§ Name is authorized representative
§ Attach a board resolution or secretary’s certificate
§ Statement that the representative is duly authorized to serve summons on
behalf of the plaintiff

- Misrepresentation of the plaintiff that defendant received summons

o Case dismissed with prejudice
o Proceedings shall be nullified
o Plaintiff will be metted with appropriate sanctions

Page 34 of 90 /jcl
 - If summons cannot be served upon all or any of the defendant
o Court shall order the plaintiff to serve summons by other means available
o Failure to comply with the order shall cause dismissal of the initiatory pleading without
prejudice

- When is there Failure of service of summons?

o After unsuccessful attempts to personally serve the summons on the defendant on his
address indicated in the complaint
o Substituted service shall be made
- To whom service must be made
o GEN: Upon the person of the defendant, informing the defendant that he or she is
being served, or if he/she refused to receive it, leave the summons within the view
and in the presence of the defendant
§ Service of summons in the person of the defendant is generally preferred over
substituted service (National Petroleum Gas v. RCBC (2015)).
§ It is only when the summons cannot be served personally within a reasonable
period of time that substituted service may be resorted to (Chu v. Mach Asia
Trading)

o SUBSTITUTED SERVICE OF SUMMONS

§ Conditions:
• If the defendant cannot be served personally after at least three (3)
attempts on two (2) separate dates; and
• Non-service is due to justifiable causes (e.g. if the defendant is abroad,
prevented by the defendant)

§ “Reasonable time”
• One month from the issuance of summons can be considered
reasonable time with regard to personal service on the defendant.

§ How is this effected?

• By leaving copies of the summons at the defendant’s residence to a
person at least 18 years of age and of sufficient discretion residing
therein.
• By leaving copies of the summons at defendant’s office or regular place
of business with some competent person in charge thereof
o Competent person includes but not limited to persons who
customarily receives correspondences to the defendant
• By leaving copies of the summons if refused entry upon making his or
her authority and purposes known with
o Any of the officers of the homeowner’s association or
condominium corporation; or
o Its chief security officer in charge of the community or the building
where the defendant may be found
• By sending an electronic mail to the defendant’s electronic mail address,
if allowed by the court
§ There must be showing of impossibility of service in the return.

- Where service may be made

o Wherever he may be found
Page 35 of 90 /jcl
 - If the defendant consciously prevented the service of summons upon his person, then the
summons shall be considered served upon his person (Robinson v. Miralles, now codified)

- To whom summons may be served: Memorize!

o Defendant
o Persons enumerated in S6 R14

- Can substituted service be effected if the defendant is a corporation?

o Carson Realty & Management Corp. v. Red Robin Security Agency (GR 225035)
§ The SC ruled that the substituted service effected by the sheriff is valid. It
should be noted that there were several attempts to serve the summons upon
the president of the company but to no avail.

- How may improper service of summons be proved?

o By proof of actual receipt
§ Irregularities of this kind, may, however, be cured by proof that the copies have
actually been delivered to the defendant which is equivalent to personal service
(Mapa v. CA)

- Special Appearance of the Counsel (S13 R14)

o The counsel shall be deputized by the court to serve summons upon his client.

- How may improper service of summons be cured?

o By asking affirmative relief from the court (Carson Realty v. Red Robin)

- Service of Summons by Publication (FUTE)

o Foreign private juridical entity (S14)
o Defendant whose identity or whereabouts are unknown (S16)
§ Whereabouts cannot be ascertained by diligent inquiry within 90 days from the
commencement of the suit
§ Santos v. PNOC: S16 R14 authorizes service of summons by publication in
ANY ACTION and the rule obviously does NOT distinguish whether the action
is in personam, in rem, or in quasi in rem as long as the identity of the defendant
is unknown or his whereabouts are unknown.
o Resident temporary out of the PH (S18)
o Extraterritorial service upon a non-resident defendant (S17)

- Extraterritorial Service of Summons (S17 R14)

o Requirements:
§ When the defendant is a non-resident and is not found in the PH
• Action affects the personal status of the plaintiff
• Action relates to, or the subject of the action is a property within the PH
o In which the defendant has or claims lien or interest, actual or
contingent; OR
o In which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein
• The property of the defendant has been attached within the PH

o Applicable ONLY in rem and quasi in rem actions

Page 36 of 90 /jcl
 o NOT available in an action in personam

o Modes
§ Personal Service (S6 R14)
§ Publication in newspaper in such place
§ International convention to which the PH is a party
§ Other manner the court may deem sufficient

- Summons against a resident temporarily out of the PH

o Extraterritorial service
o Substituted Service
§ Palma v. Galvez (March 10, 2010)
• Extraterritorial service is NOT mandatory since S16 R14 uses the word
“may” and thus substituted service of summons may be resorted to.

- Voluntary Appearance (S23 R14)

o The inclusion in the motion to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall be deemed a voluntary appearance.
o J. Gito’s comments
§ There are only 4 grounds with which to file a motion to dismiss- LRLP.
§ As such, the ground of lack of jurisdiction over the person of the defendant can
only be alleged as an affirmative defense in the answer.
§ A person cannot file an answer unless and until he receives summons with the
attached copy of the of the complaint, and the filing of the answer is tantamount
to submission to the jurisdiction of the court.
§ In what instance can we now apply this provision?

20. MOTION (Impt: S4, 5, 12 of R15)

- It is an application for relief other than by a pleading (S1 R15)
- All motions must be in writing except those made in the course of the hearing or trial and in
such case, the court must immediately resolve by the court after the adverse party is given
the
- TYPES:
o NON-LITIGIOUS MOTIONS (S4 R15)
§ Motions which the court may act upon within prejudicing the rights of adverse
parties. Some examples are enumerated. They are NOT exclusive.
§ APE-WAW-SO
o LITIGIOUS MOTIONS (S5 R15)
§ Those which the court may only act upon by giving the adverse party the
opportunity to file an opposition thereto. Adverse party is required to comment.
§ Enumeration is also NOT exclusive.
§ These are NOT automatically set for hearing pursuant to S6 R15 which
provides that heading is only required if NECESSARY for resolution upon
discretion of the court.
§ BD3O2-CARE-JINS
§ Service by personal service, accredited private courier or registered mail, or
electronic means.
- Proof of service necessary, otherwise, the court will NOT act upon it.

Page 37 of 90 /jcl
 - OMNIBUS MOTION (S9 R15)
o If you file a motion to dismiss or in a motion for reconsideration, you have to include all
objections then available, and all objections not included shall be deemed waived.
o Exceptions (S1 R9) (LRLP)
§ Lack of jurisdiction over the subject matter
§ Litis pendentia
§ Res judicata
§ Prescription
• These grounds can never be waived.

- PROHIBITED MOTIONS (S12 R15) (DAR SEP)

o Motion to dismiss except on LRLP grounds.
o Motion to hear affirmative defense because the court will resolve it within 30 days
(grounds under S12a R9) or summary hearing for 15 days and resolve within 30 days
from termination of the summary hearing (grounds under S5b R6).
o Motion for reconsideration of the court’s action on the affirmative defense
§ S12 R8 – Denial of affirmative defenses is NOT subject to MR, CPM
§ If court grants AD, a motion for reconsideration is NOT prohibited because
the order of the court in granting thereof is a final order/final disposition of a
case and therefore subject of appeal.
o Motion to suspend proceedings without TRO or injunction issued by a higher
court
o Motion for extension to file pleadings
§ EXCEPT answer (S11 R11) – only 1 motion for extension
o Motion for Postponement intended for delay
§ EXCEPT acts of God, force majeure and physical inability of witness to testify
§ If granted based on these grounds, the moving party shall be warned that the
presentation of its evidence must still be terminated on the dates previously
agreed upon (as set for in the pre-trial)

21. DISMISSAL OF ACTIONS

- DISMISSAL WITH PREJUDICE
o Grounds: PURED (S13 R15)
§ Statute of limitations (prescription)
§ Claim on which the action is founded is unenforceable under the provisions of
the status of frauds
§ Barred by prior judgment (res judicata)
§ Claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished
§ Demurrer to evidence is granted (S1 R33)
o Remedy: Appeal

- DISMISSAL WITHOUT PREJUDICE

o The case will be dismissed but there is a possibility that you can refile the same kind
of action.
o Grounds:
§ All other grounds
o Remedy
§ Rule 65 if there is GAD (S1(g) R41)

Page 38 of 90 /jcl
 22. PROCEEDINGS AFTER SERVICE OF SUMMONS AND DISMISSAL OF ACTIONS
- MOTION FOR BILL OF PARTICULARS (R12)
o If the allegations in the pleading is not definite or is vague to enable the adverse party
to prepare his responsive pleading, then a MBOP may be filed.
o If the motion is granted, the compliance therewith, must be effected within 10 days from
notice of the order, unless a different period is fixed by the court.
§ It may be filed either in a separate or in an amended pleading, serving a copy
thereof on the adverse party.
o If the order is not obeyed, or in case of insufficient compliance therewith, the court may
order the striking out of the pleading or the portions thereof to which the order was
directed and make other order as it may deem just.
o It is filed within the period for responsive pleading.

- MOTION TO DISMISS
o Instead of immediately filing an answer
o Grounds: LRLP (may be found even after is filed)
§ Litis Pendentia
• Requisites: Identity of (PRRC)
o Identity of Parties or at least such as representing the same
interest in both action;
o Identity of rights asserted and relief prayed for, the relief being
founded on the same facts;
o Identity of causes of action such that the judgment in one case
will amount to res judicate
o All other grounds should be alleged as affirmative defenses.

- COMPLAINT STATES NO CAUSE OF ACTION

o Test:
§ When all the elements of the cause of action are not present in the complaint.
o Remember:
§ You have to hypothetically admit the allegations in the complaint.
§ If after hypothetically admitting, the Court cannot render a valid judgment,
then, the allegations in the complaint states no cause of action.

- CONDITION PRECEDENT FOR FILING THE CLAIM HAS NOT BEEN COMPLIED WITH
o Raised as an affirmative defense
o Examples
§ Referral to barangay
§ Earnest effort to compromise (in case members of the same case)
§ Tender of Payment in consignation

- REMEDIES WHEN THE PLEA FOR THE DISMISSAL OF ACTION IS GRANTED

o Refile the complaint depending on the ground for dismissal
o Appeal the order of dismissal on the basis of PURED (S13 R15)
o Petition for certiorari if dismissal is without prejudice pursuant to S1(g) R41

- WHEN COMPLAINT CANNOT BE REFILED AFTER DISMISSAL

o PURED (S13 R15)

Page 39 of 90 /jcl
 - EFFECT OF DISMISSAL OF MAIN ACTION TO THE COUNTERCLAIM
o Old S6 R16: The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action of a counterclaim pleaded
in the answer.
o Effect of deletion of said provision
§ J. Gito: S2 R17 may be applicable
• The dismissal shall be without prejudice to the right of the defendant of
prosecute his counterclaim in a separate action unless within 15 days
from the notice of the motion he manifests his preference to have his
counterclaim resolved in the same action.

- DISMISSAL BY PLAINTIFF
o Dismissal upon notice by the plaintiff (S1 R17)
§ By filing of a notice of dismissal at anytime before service of answer or of a
motion for summary judgement
§ Dismissal as a matter of right
§ Court will confirm such notice of dismissal
§ NATURE OF DISMISSAL
• GENERAL RULE: Dismissal is without prejudice
• EXCEPTION:
o If the notice of dismissal provides that the dismissal is without
prejudice
o If the plaintiff has previously dismissed the same case in a court
of competent jurisdiction based on or including the same claim
(Two-Dismissal Rule)

o Dismissal Upon Motion of the Plaintiff (S2 R17)

§ If the answer or motion has already been served upon the plaintiff
§ No longer a matter of right
§ By filing a motion to dismiss by the plaintiff
§ NATURE OF DISMISSAL
• Dismissal without prejudice unless otherwise provided in the order
• If the order is silent on the nature, then it is without prejudice

o Dismissal Due to Fault of the Plaintiff (S3 R17)

§ Grounds:
• Failure of the plaintiff to present evidence in chief
• Failure of the plaintiff to prosecute his action for an unreasonable period
of time
• Failure of the plaintiff to comply with the ROC
• Failure of the plaintiff to comply with the order of the court
§ Court may dismiss motu propio or upon motion of the adverse party
§ NATURE OF DISMISSAL
• Dismissal with prejudice

o Effect of Dismissal upon counterclaim (S2 R17)

§ The dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action
§ Unless within 15 days from notice of the motion he manifests his preference to
have his counterclaim resolved in the same action
Page 40 of 90 /jcl
 23. PRE-TRIAL (R18)
- When the last pleading has been served and filed, it is the responsibility of the court to set
the case for pre-trial.
- Not later than 60 CD from the filing of the last responsive filing.
- Mandatory and should be terminated promptly.

- Failure without just cause to appear during the pre-trial

o Party and counsel
o Result in the waiver of any objections to the faithfulness of the reproductions marked
OR the genuineness and due execution.

- Reservation of Evidence
o For testimonial evidence – by giving the name or position and the nature of the
testimony of the proposed witness.
o For Documentary evidence and other object evidence – by giving a particular
description of the evidence.
o NO reservation shall be allowed it NOT made in the manner described above.

- NOTICE OF PRE-TRIAL
o Shall include the dates respectively set for:
§ Pre-trial
§ CAM; and
§ JDR – only if necessary
o Duty of Parties and counsels to appear
§ Non-appearance despite due notice
• Plaintiff or his counsel – Dismissal of the case
• Defendant or his counsel – Plaintiff shall be allowed to present evidence
ex parte and the court shall render judgment on the basis of the evidence
gathered. (S5 R18)
§ Valid excuse (AFP)
• Acts of God
• Force majeure
• Duly substantiated physical inability
§ Appearance of Representative
• Special Power of Attorney
o To enter into amicable settlement
o To submit to alternative modes of dispute resolution
o To enter into stipulations or admissions of facts and documents
§ Pre-trial brief
• Failure to file – tantamount to non-appearance
§ Pre-trial order
• Governs the subsequent proceedings in court
• MUST be followed by the parties
• Reflects what transpired in the pre-trial conference
• Court may declare that the case shall be submitted for judgment based
on the pleadings or summary judgment, as the case may be.
• Directive
o The parties’ presentation of evidence shall be in the JA, after
identification, then cross-examination.

Page 41 of 90 /jcl
 o Postponement of presentation of parties’ witnesses at the
scheduled date
§ Prohibited except on AFP but shall be warned that the
presentation of its evidence must still be terminated within
the remaining dates previously agreed upon.
§ Opposing party fails to appear without valid cause
• Presentation of witness will proceed
• The absent party shall be deemed to have waived
the right to interpose objection and conduct cross-
examination.
• Contents shall control subsequent proceedings unless modified to
prevent injustices.

- COURT-ANNEXED MEDIATION
o After pre-trial and after issues are joined
o Mandatory
o Period of thirty (30) days; cannot be extended

- JUDICIAL DISPUTE RESOLUTION

o Court discretion – ONLY if the judge of the court to which the case was originally raffled
is convinced that settlement is still possible
o Conducted by another judge. If no settlement, back to the court where the case is
originally raffled.

- JUDGMENT AFTER PRE-TRIAL

o Court can declare that it will render judgment based on the pleadings (R34) or render
summary judgment (R35), as the case may be (S10 R18) without need for position
papers or memoranda (CGAF)
§ Should there be no more controverted facts
§ No more genuine issues as to any material fact
§ Absence of any issue
§ Should the answer fail to tender an issue
o Court order/declaration to render judgment based on the pleadings or to render
summary judgment – NOT subject to MR, appeal or certiorari.
o BUT the judgment itself is subject to appeal or certiorari

24. MODES OF DISCOVERY (R23 to 29) “legally sanctioned fishing expedition”

- Modes (PRIDE)
o Production or inspection of documents
o Request for admission by adverse party
o Interrogatories to [adverse] party
o Deposition
§ Pending action (R23)
• Deposition de benne esse
§ Before action (R24)
• Depositon in pertpetuam rei memoriam
§ Pending appeal (R24)
• Depositon in pertpetuam rei memoriam
• Similar to R124 of the ROC – perpetuation of a testimony
o Examination (Physical or Mental) of Persons
Page 42 of 90 /jcl
 - DEPOSITION
o It is taking the testimony of a person, whether he be a party or not, but at the instance
of a party to the action.
o Testimony is taken out of court.

- DEPOSITION PENDING ACTION (R23)

o Upon ex parte motion of a party

o How is depositon taken?

§ Deposition Upon Oral Examination
§ Deposition Upon written interrogatories

o Before whom may deposition be taken?

§ If deposition will be taken within the Philippines
• Judge of the place where the deposition shall be taken
• Notary public
• Person authorized to administer oath
§ If in foreign country
• Secretary of embassy or legation
• Consul general
• Consul
• Vice consul
• Consular agent
• Person as may be appointed by commission or letters rogatory
o Commission – authorization given to somebody, other than
consular officers, to take the deposition of the deponent. It is
usually issued when the PH has no consular office in a particular
country.
o Letter Rogatory – a letter from a local court requesting the court
in other countries to take the deposition of a resident of that
country which is under the jurisdiction of that foreign court for the
furtherance of justice, with an offer to do the same request in
similar case.
• Person authorized to administer oath

o Whose deposition may be taken?

§ Any person whether a party or not

o How is deposition taken?

§ Upon oral examination
• Give reasonable notice in writing to every other party to the action
• Notice shall state
o The time, place and before whom deposition shall be taken
o Name and address of each person to be examined, known or
general description sufficient to identify him, if unknown
• To be allowed with liberality because it is a mode of discovery
o Ex parte motion
• Remedy of another party
o Only to enlarge or shorten the time
Page 43 of 90 /jcl
 § Upon written interrogatories
• Notify
o Name of the deponent
o Before whom the deposition is to be taken
• Provide the opposite party of the direct interrogatories
• The opposite party may prepare cross-interrogatories which will be
transmitted back to the requesting party
• Requesting party may prepare re-direct interrogatories
• Opposite party may prepare re-cross interrogatories
• These sets of question will be sent to the person before whom deposition
shall be taken who will ask these questions to the supposed deponent
and everything will be recorded.

o Refusal to appear of the party sought to be examined

§ Remedy of the requesting party is to ask for the issuance of subpoena (R21)
to compel deponent to appear and give his deposition
§ Apply request for subpoena before the court of the place where the deposition
shall be taken.

o Limitations on deposition taking:

§ Matter inquired is not privilege.
§ Matter inquired into is relevant pending action.
§ Court may issue order to protect the parties (S16 & 18)

o When is objection made on the admissibility of the deposition?

§ Objection may be made at the trial or hearing to receiving in evidence

o Use of deposition
§ In what proceedings may it be used
• Trial
• Hearing of a motion
• Hearing of interlocutory proceeding

§ Against whom it may be used

• Against any party who was present in the taking
• Against a party who was not present but was duly notified

§ For what purpose it may be used

• By any party for the impeachment of a deponent as a witness
• By the adverse party for ANY purpose if the deponent is a party, or a
Director, Officer or Managing agent (DOM) of a juridical entity which is
a party.
• For ANY purpose if: (DROUUE)
o The witness is dead; or
o The witness resides at a distance more than one hundred (100)
kilometers from the place of trial or hearing, or is out of the PH
§ Unless it appears that his absence was procured by the
party offering the deposition; or

Page 44 of 90 /jcl
 o That the witness is unable to attend or testify because of age,
sickness, infirmity or imprisonment (ASII); or
o The party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
o Upon application and notice, that such exception circumstances
exist, as to make it desirable, in the interest of justice and with
due regard to the importance of presenting the testimony of
witness orally in open court, to allow the deposition to be used.

DEPOSITION OF MAY BE USED BY FOR THE PURPOSE

Any deponent Any party Impeaching the testimony of
the deponent as a witness
A party or the DOM of PP, CPA party Adverse party Any purpose
A witness, whether or not a party, if the Any party Any purpose
court finds that DROUUE

§ You are not bound on the testimony of the deponent during the taking but you
will be if you use it.
§ If you use the deponent of a person other than impeaching the testimony makes
the deponent the witness of the party introducing the deposition.

- DEPOSITION BEFORE ACTION

o Requisites
§ 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
o How?
§ By filing a verified petition in the court of the place of the residence of any
expected adverse party.
o The same as Rule 134 – Perpetuation of Testimony

o Contents of the petition (ESI-FR-AEO)

§ Petition expects to be a party to an action
§ The subject of the expected action and his interest therein
§ The facts which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it
§ The names or a description of the persons he expects will be adverse parties
and their address; and
§ Names and address of the person to be examined and the substance of their
testimony which he expects to elicit from each
§ Asking for an order authorizing the petitioner to take the depositions of the
persons to be examined for the purpose of perpetuating their testimony (S2
R24)

o PROCEDURE (PNOD)
§ File verified petition à Petitioner shall serve notice to all person named in the
petition (S3) à If the court is satisfied, it shall issue order granting the petition
(S4) à Deposition taking will follow R23 (S4)

Page 45 of 90 /jcl
 - DEPOSITION PENDING APPEAL
o To perpetuate the testimony of witness for use in the event of further proceedings in
the court in which the judgment was rendered (example, if after appeal, the appellate
court remanded the case to the court for further proceedings)

o How?
§ By filing a motion with leave in the court in which the judgment was rendered
§ With notice and service as if the action was pending therein

o Contents of the motion (ESR)

§ Names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from them; and
§ The reason for perpetuating their testimony

- [WRITTEN] INTERROGATORIES TO [ADVERSE] PARTIES (R25)

o Same condition under S1 R23
o To elicit material and relevant facts from adverse parties
o How?
§ File and serve to adverse parties written interrogatories to be answered by the
party served
o Written interrogatories are directed to adverse party, NOT stranger
o Vs. R23 Deposition upon written interrogatories

Rule 23 Rule 25
There is a deposition officer No deposition officer
Questions are prepared beforehand Directed to parties
Party or not may be taken NOT applicable to strangers

o Scope and Use of interrogatories

§ Any matters that can be inquired into under S2 R23
§ For purposes under S4 R23
o Effect of Failure to Serve Written Interrogatories
§ A party not served with WI may NOT be compelled by adverse party to give
testimony in open court, or to give a deposition pending appeal (in instances
when you make use of adverse witness)
• Unless thereafter allowed by the court for a good cause shown and to
prevent a failure of justice

- ADMISSION BY ADVERSE PARTY (R26)

o At any time after issues have been joined
o How?
§ File and serve written request for the admission of the adverse party of
• The genuineness of any material and relevant document described in
and exhibited
• With request or of the truth of any material and relevant matter of fact
set forth in the request
o Implied admission
§ Each of the matters of which an admission is requested shall be deemed
admitted

Page 46 of 90 /jcl
 § Unless within a period designated, the party serves a sworn statement denying
specifically the matters of which an admission is requested or setting forth in
detail the reasons why he cannot truthfully either admit or deny those matters.

o Objection to request for admission

§ Within the period or prior to the filing of his sworn statement
§ By objecting, he is not bound to answer pending the resolution of the court of
the objection

o Effect of admission
§ Any admission pursuant to such request is for the purpose of the pending action
only
§ Such admission may not be used in any other case despite involving the same
parties

o Effect of failure to file and serve request for admission

§ A party who fails to fail and serve a request for admission on the adverse party
of material and relevant facts at issue which are, or ought to be, within the
personal knowledge of the latter, shall NOT be permitted to present evidence
on such facts.
§ If a fact is within the knowledge of the adverse party and you failed to file and
serve a request for admission, you are not permitted to present evidence on
such fact.
§ Po v. CA – A party should not be compelled to admit matters of fact already
admitted by his pleading and concerning which there is no issue, nor should he
be required to make a second denial of those already denied in his answer to
the complaint.
§ Landa v. CA – The request for admission must be directly upon the party
requested.

- PRODUCTION AND INSPECTION OF DOCUMENTS (R27)

o To produce and permit the inspection of copying or photographing of books, papers,
accounts, and other things NOT privileged which contain evidence material to any
matter in the action, and in which is in his possession, custody or control.

o How? Filing a motion

o Distinguish R27 from Subpoena Duces Tecum

R27 Subpoena Duces Tecum
Need to show good cause for Good cause is not required
production or inspection
Order can only be directed to a May be directed to a non-party
party
Order is a pre-trial device to obtain Process used during the trial
facts to prepare for trial proper

o Chan v. Chan, July 24, 2013 – If sought to be examined is a recording regarding the
drug rehabilitiation of a party, then such matter cannot be the subject of an order for
examination of a document because it is a matter of privilege.

Page 47 of 90 /jcl
 o Insigne v. Abra Valley Colleges, July 29, 2015 – In a complaint for inspection of
corporate books, the plaintiff can file for motion under R27 to compel the defendant to
produce the stock-and-transfer book, even if the latter interpose the defense that
plaintiff is NOT a stockholder.

- PHYSICAL OR MENTAL EXAMINATION (R28)

o May be availed of in an action in which the mental or physical condition of a party is in
controversy
o How? By filing a motion
o Examples:
§ Action for annulment of contract on the ground of insanity
§ Petition for guardianship of a person alleged to be insane
§ Action to recover damages for personal injury where the issue is the extent of
the injuries of the plaintiff

o What is the effect if the party refused to be examined?

§ The party sought to be examined cannot be arrested even if he refused to follow
the order of the court.
§ The court through motion may issue an order that the designated fact subject
of the request shall be established.

o What is the effect if the party examined requests and obtains a report of the
examination so ordered or take 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 condition

o What if the party examined refused to deliver the report or the physical fails to
make such report, what is the remedy of the requesting party?
§ If party examined refused to deliver
• The court, on motion and notice, may make an order requiring the
delivery on such terms as are just
§ If the physician fails or refuses to make such report
• The court may exclude his testimony if offered at the trial

- REFUSAL TO COMPLY WITH MODES OF DISCOVERY (R29)

o Refusal to answer
§ Subpoena power
• Proponent may apply to the proper court of the place where the
deposition is being taken for an ORDER to compel an answer.
• Same procedure if a party or witness refuses to answer any interrogatory
submitted under R23 or 25.
o Other consequences of refusal to answer question during deposition, or order
production or inspection of documents or things under R27, or refused to
submit himself to examination under R28 (ERO-PSS-DJ-A)
§ Requesting party may ask the court to issue an order that the matters regarding
which the questions were asked, or the character or description of the thing or
land, or the contents of the paper, or the physical or mental condition of the
party, or any other designated facts
Page 48 of 90 /jcl
 • Shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order (S3(a) R29).
o Example:
§ The COA of a plaintiff is based on an actionable document
attached to the complaint. As defendant, I want to examine
the document which appears to be blurred. I filed a motion
for the examination of that document to verify my signature
which was granted and ordered the plaintiff to allow me to
inspect. But despite the order, the plaintiff refused to allow
me. In that case, my remedy is to file a motion in court for
the court to issue an order that my claim that my signature
in this document is forged.
§ The case is for petition for issuance of letter of
guardianship on account that the person is insane. If I
believe that he is not insane, I file a motion for an order of
examination of the word. Despite order of the court, the
ward was not examined. My remedy is to file a motion in
court for the court to issue an order that my claim that the
supposed ward is not insane should be taken as
established.

§ Ask the court via motion to issue an order:

• Refusing to allow the disobedient party to support; or
• To oppose designated claims or defenses; or
• Prohibit him from
o Introducing an evidence designated documents or things or items
of testimony, or
o Introducing evidence of physical or mental examination (S3(b)
R29)
o **In the event that the refusing party is going to use those papers
or the examination, he shall not be allowed
• To strike out pleadings or parts thereof; or
• To stay further proceedings until the order is obeyed; or
• To dismiss the action or proceeding or any part thereof; or
• To render a judgment by default against the disobedient party (S3(c))

§ In lieu of the forgoing orders, or in addition thereto:

• Request for an order directing the arrest of a party or agent of a party
for disobeying any of such orders
o Except an order to submit to physical or mental examination.

25. TRIAL
- The trial should be continuous and within the periods set forth under R30.
- Trial: not later than 30 days from termination of pre-trial conference.
- Presentation and termination of Plaintiff’s evidence: within a period of 3 months or 90
calendar days.
- Presentation and termination of Defendant’s evidence: within a period of 3 months or 90
calendar days.
- Presentation and termination of thirty-party claim, counterclaim, cross-claim: in no case
exceed 90 days
Page 49 of 90 /jcl
 - Rebuttal evidence: 30 days
o Trial dates and presentation of evidence total: 300 calendar days
o If no third party claim, counterclaim, cross-claim: 180 days (90 each for P & D)
- Court to decide case and send copies: within 90 calendar case from submission of the case
for resolution, with or without memoranda

- Continuous trial system in civil cases

o Enjoined to follow strictly the schedule agreed upon in the pre-trial

- Adjournments
o As a matter of rule is not allowed
o Warning for postponement

- Order of Trial
o Plaintiff
o Defendant
o Third-party defendant, etc.
o Parties against whom counterclaim or cross-claim is pleaded
o Parties for rebuttal evidence
o Submitted for Decision

- Offer of Evidence and Comment thereto

o Made orally

- Agreed statement of facts

o Trial shall be held only on disputed facts

26. DEMURRER TO EVIDENCE

- WHEN: After plaintiff has completed presentation of evidence.
- GROUND
o Upon the facts and the law, the plaintiff has shown no right to relief.
o Equivalent to insufficiency of evidence.
o Res judicata is a proper ground for demurrer (Republic v. Tuvera, 516 SCRA 113)

- If motion is denied
o Defendant has the right to present evidence
o Denial is NOT a final order; it is an interlocutory order (Katigbak v.SB 404 SCRA 558)

- If motion is granted
o The case is dismissed
o On appeal the order of dismissal is reversed
§ Defendant is deemed to have waived the right to present evidence
§ It is NOT correct for the appellate court to remand the case for further
proceedings. The correct procedure is for the appellate court to render
judgment based on the pieces of evidence presented by the plaintiff
(Radiowealth Finance Corp. v. Del Rosario)

Page 50 of 90 /jcl
 - vs. MOTION TO DISMISS

Motion to Dismiss Demurrer to Evidence

MTD in R16 is made before answer. MTD on the Made after the plaintiff rests its case.
grounds of LRLP, may be filed at any stage of
the action.
There are several grounds. LRLP Only one ground: insufficiency of
evidence/plaintiff has shown no right to
relief
If denied, the defendant may file answer. If denied, defendant will present evidence.

When granted, the complaint may be refiled When granted, it may not be refiled. The
except if the ground of dismissal are remedy is appeal.
prescription, res judicata, or claim is
extinguished (PURED)

Civil Demurrer Criminal Demurrer

Leave of court is NOT required. It may be with or without leave of court.
If granted, the order is appealable. If granted, the order is NOT appealable.
If denied, the defendant may present evidence. If denied, defendant may present evidence
if he filed it with leave of court.
It cannot be granted motu propio. The court may dismiss the case motu
propio (S23 R119)

27. JUDGMENT AND FINAL ORDER

- REQUISITES OF A VALID JUDGMENT (Jcps-OEW)
o Court must have jurisdiction over the case
o Court must have jurisdiction over the parties and the subject matter
o Parties must be given an opportunity to adduce evidence in their behalf
o Evidence must have been considered
o In writing personally and directly prepared by the judge stating clearly and distinctly the
facts and the law on which it is based, signed by him.

- How to resolve the conflict between the body and dispositive portion
o GEN: The dispositive portion of the decision shall prevail.
o EXC: If the inevitable conclusion from the body of the decision is so clear that there
was a mere mistake in the dispositive portion, the body of the decision shall prevail
(So v. Food Fest Land, People v. Cilot)

- Judgment upon compromise

o Judgment rendered by the court on the basis of the compromise agreement entered
between the parties to the action.
o Once approved by the court, a judicial compromise is NOT appealable and it thereby
becomes immediately executory.
o FINAL AND EXECUTORY

- Doctrine of the Law of the Case (MEMORIZE)

o Whatever is once irrevocably established as the controlling legal rule of decision
between the same parties in the same case continues to be the law of the case,
Page 51 of 90 /jcl
 whether correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the Court. (Sim v.
Ofiana, G.R. No. 54362, [February 28, 1985], 219 PHIL 636-641)
o When an appellate court has once declared the law in a case, its declaration continues
to be the law of that case even on a subsequent appeal, notwithstanding that the rule
thus laid down may have been reversed in other cases.
o But the law of the case, as the name implies, concerns only legal questions or issues
thereby adjudicated in the former appeal.
o Example:
§ Defendant filed MTD on the ground that the action has prescribed. The court
ruled that the action did not prescribed. Defendant filed a petition for certiorari
ascribing GAD on the part of the Court in not granting the dismissal. The
appellate court ruled that the lower court is correct. There is already a decision
on the court a quo against the defendant. The defendant filed an appeal raising
the issue of prescription. In such case, the Defendant can no longer the same
issue. Because as to whether the action has prescribed already, an appellate
court has already resolved it.

- Doctrine of Immutability of Judgment

o A judgment that has attained finality can no longer be disturbed.
o What remains to be done is the purely ministerial enforcement or execution of the
judgment.

o EXCEPTIONS (CNV)
§ Clerical errors may be corrected.
§ Judgment Nunc Pro Tunc which cause no prejudice to any party
• The office is to record some act of the court done at a former time which
was not carried into the record, and the power of the court to make such
entries is restricted to placing upon the record evidence of judicial action
which has actually been taken.
• It may be used to make the record speak the truth but not to make it
speak what it did not speak but ought to have spoken.
§ Void judgment

- Final Order
o There is nothing to be done in the order of the court with respect to the merits of the
case.
o A petition for review under R45 is the proper mode of redress to question only final
judgments.

- Interlocutory Order
o There is still something to be done.
o Remedy: Petition for Certiorari under R65 if there is GAD.
§ Except (Not all IO can be subject to certiorari)
• Denial of the action of the court denying affirmative defenses
• Action of the court on the motion for judgment on the pleading or motion
for summary judgment
o Not subject to appeal and certiorari

Page 52 of 90 /jcl
 - Judgment on the Pleadings (R34)
o Conditions:
§ When an answer (FA)
• fails to tender an issue; or otherwise
o If the answer does NOT comply with the requirements of specific
denial under S8 (failure to deny under oath the due execution and
genuineness of an actionable document) and S10 (3 methods on
specific denial) of R8.
§ Deem admission of the allegations in the complaint
• Admits the material allegations of the adverse party’s pleading.
o How? On motion of the party
o Exceptions
§ Actions for declaration of nullity or annulment of marriage
§ Legal separation
• In these cases, the material facts alleged in the complaint shall always
be proved.
o The interlocutory order of the court on motion for judgment on pleading shall NOT be
subject to appeal or certiorari.
o The judgment on the pleading is subject to appeal of certiorari.

- Summary Judgment (R35)

o Condition:
§ When a responsive pleading has been filed but the allegations therein do
NOT establish a real and genuine factual issue, because, for one, the issue
tendered is sham, fictitious, and patently unsubstantial. (SPF)
§ The facts as pleaded appear uncontested or undisputed.
o Issues are joined because the respondent pleading is filed.

o Genuine issue
§ Issue of fact which requires the presentation of evidence as distinguished from
a sham, fictitious, contrived or false claim.
o A party who moves for summary judgment has the burden of demonstrating clearly the
absence of genuine issue of fact.

o Who may file?

§ A party seeking to recover upon a claim, counterclaim, cross-claim or to obtain
declaratory relief.
• At any time after the answer thereto is served
§ A party against whom a claim, counterclaim or cross-claim is asserted or a
declaratory relief is sought.
• At any time
o Order of the court granting or denying the motion for summary judgment shall not be
subject of an appeal or certiorari.

Judgment on the Pleadings Summary Judgment

There is absence of factual issue Answer tenders an issue but the
because the answer tenders no issue. issue is NOT genuine.
Only the claiming party can file the The motion may be filed by the
motion claiming party or the defending party

Page 53 of 90 /jcl
 Based on the pleadings alone Based on pleadings, affidavits,
depositions, and admissions.
Only three (3) day notice is required Ten (10) day notice is required

28. POST JUDGMENT REMEDIES

Before the judgment becomes final Motion for New Trial

(RAN) Motion for reconsideration
Appeal
After the judgment became final Petition for relief from judgment
(RACC) Annulment of Judgment
Certiorari
Collateral Attack

- REMEDIES BEFORE JUDGMENT BECOMES FINAL AND EXECUTORY

o MOTION FOR NEW TRIAL
§ Grounds (FAME-N)
• Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; OR
o Extrinsic Fraud ONLY
§ Deception or trickery which the aggrieved party was
prevented from having his day in court or presenting his
case in court.
§ Examples
• When a party connived with the court personnel so
that notices of trial dates were sent to the old
address although a notice of change of address
was filed already.
• The aggrieved party’s lawyer betrays him and sells
out his case to the other side.
• The judge is bribed by the adverse party to render
a decision in his favor.
o NOT Intrinsic Fraud
§ Involves the presentation of false or perjured testimony but
did not otherwise prevent the aggrieved party from
presenting his case.
o Accident
§ Similar to the concept of fortuitous event in civil law.
o Mistake
§ Mistake of FACT
§ Example: If a party, because of a pending compromise
agreement believed in good faith that it was necessary for
him to answer, appear at the trial and put up a defense.
§ Gen: Mistake committed by a lawyer is NOT a ground for
new trial because the client is bound by the mistake.
• Except: Where the negligence of the counsel is so
gross that the client is deprived of his day in court
Page 54 of 90 /jcl
 and as a result of which he was deprived of property
without due process of law.
o Formalities
§ Motion citing the grounds shall be supported by affidavit of
merits which may be rebutted by affidavits

• Newly discovered evidence, which he could not, with reasonable

diligence, have discovered, and produced at the trial, and which if
presented would probably alter the result.
o Requisites: (DNMC)
§ Discovered after the trial
§ Evidence could not have been produced at the trial even
with exercise of reasonable diligence
§ Evidence is material, not merely cumulative, corroborative
or impeaching
§ Evidence would have changed the result of the case had
it been presented during trial
o Formalities
§ Motion shall be supported by affidavits of the witnesses by
whom such evidence is to be given, OR by duly
authenticated documents which are proposed to be
introduced.
o Effect of Failure to conform to formalities
§ A pro forma motion for new trial shall NOT toll the
reglementary period for appeal.

§ Filed within a period for taking an appeal (15 days from notice of judgment or
30 days from notice if record on appeal)
• Filing would interrupt the period to appeal

§ Effect if the motion is denied: Appeal from the judgment or final order

§ Fresh Period or Neypes Rule

• If the motion for the NT or MR is denied, the movant has a fresh period
of 15 days from receipt of the order denying or dismissing the MR within
which to file that notice of appeal.
• Applies
o Rule 40 (MTC-RTC)
o Rule 41 (RTC-CA)
o Rule 42 (Petrev, RTC-CA)
o Rule 43 (Petrev, QJA-CA)
o Rule 45 (RTC, CA-SC)

§ May motion for New Trial be filed in CA?

• YES. (S1 R53) At any time after the appeal from the lower court has
been perfected AND before the Court of the Appeals loses its jurisdiction
• Only on the ground of newly discovered evidence
• Motion shall be accompanied by affidavits showing the facts constituting
the grounds therefor and the newly discovered evidence

Page 55 of 90 /jcl
 o MOTION FOR RECONSIDERATION (R37)
§ Grounds: (ICE)
• Damages awarded are excessive
• Evidence is insufficient to justify the decision or final order
• Decision or final order is contrary to law
§ Within the period for taking an appeal (15/30)
§ Filing will interrupt the running of prescriptive period
§ Subject to Neypes Rules

§ Remedy for denial of MNT/MR

• Appeal from the judgment or final order

§ When MNT/MR is NOT allowed

• Cases covered by Rules on Summary Procedure
• Cases covered by Rules on Small Claims
• In environmental cases, except in highly meritorious cases or to prevent
miscarriage of justice

o APPEAL (R40, 42, 43, 45)

§ What may be appealed
• Judgment or Final Order
§ Kinds of Order
• Final
• Interlocutory
§ Judgments or Final Orders NOT appealable (RIDD-SEW) (S1 R41)
• An order denying a petition for relief or any similar motion seeking relief
from judgment
• An interlocutory order
• An order disallowing or dismissing an appeal
• An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress, or
any other ground vitiating consent
• An order of execution
• A judgment or final order for or against one or more of several parties or
in a separate claims, counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless the court allows an
appeal therefrom (Separate or Several Judgment while the main case is
pending)
• An order dismissing an action without prejudice
• REMEDY: Petition for Certiorari (R65)

Rule 40 Rules 41 and 42 Rule 43 Rule 45

MTC, MCTC, MTCC, RTC to CA QJA to CA RTC to SC
METC to RTC CA (SB, CTA En
Banc) to SC
Ordinary Appeal Ordinary Appeal (J/FO Petition for review Pure Questions of Law
of RTC in the exercise
1. Notice of Appeal of its original - Petition for review
jurisdiction)
Page 56 of 90 /jcl
 2. Record on
Appeal 1. Notice of Appeal
2. Record on Appeal

In the exercise of
appellate jurisdiction of
RTC

- Appeal by way of R42

Petition for review

o RULE 40 (Appeal from MTC to RTC)

§ Scope: Judgments or Final orders of MTC
§ Period: Within 15/30 days as the case may be
§ Where to appeal: RTC exercising jurisdiction over the area where the MTC
pertains
§ How to appeal:
• Filing a notice of appeal with the court that rendered the judgment of
final order appealed from
• Filing a notice of appeal AND record on appeal
o Only in special Proceedings; and
o In cases of multiple or separate appeals
§ Effect on the judgment: Will stay the execution
§ Notify the parties upon receipt of the complete records from the MTC à Within
15 days from receipt, appellant shall file appellant’s memorandum. Appellee
from receipt shall file within 15 days Appellee’s memorandum à Submitted for
decision.

DEEMED WHEN COURT LOSES JUR RESIDUAL POWER/JUR

PERFECTED AS TO
HIM
NOTICE Upon the proper filing Over the entire case Prior to transmittal of the
OF of notice of appeal in original record or record on
APPEAL due time (PE) appeal (APEW)
1. Perfection of appeals filed
+ payment of required in due time; and The Court may issue orders
docket fee 2. Expiration of the time to for the protection and
appeal of the other parties preservation of the rights of
the parties which do not
involve any matter litigated by
the appeal:
- Approve compromises
- Permit appeals of indigent
litigants
- Order execution pending
appeal
- Allow withdrawal of the
appeal

Page 57 of 90 /jcl
 RECORD Upon approval of the (Loss of jurisdiction over the Prior to transmittal of the
ON ROA filed in due time SM subject of the appeal only) original record or record on
APPEAL appeal (APEW)
+ payment of required (AE)
docket fee 1. Approval of ROA; and - Same as above
2. Expiration of time to
(Deemed perfected as appeal of other parties
to him with respect to
the subject matter) - Retain jurisdiction over the
matters not subject of the
appeal

§ Appeal from Orders of MTC Dismissing Case

• Dismissal without trial on the merits –
o Appeal may be interposed to RTC who may affirm or reverse it
as the case may be
• Dismissal on the ground of lack of jurisdiction
o In case of Affirmance
§ RTC shall try the case on the merits as if the case was
originally filed with it
o In case of Reversal
§ Case shall be remanded for further proceedings
• Case was tried by the lower court without jurisdiction over the
subject matter
o RTC on appeal shall NOT dismiss the case if it has original
jurisdiction thereof
o RTC shall decide the case as if it was originally filed with it without
prejudice to the admission of amended pleadings and additional
evidence in the interest of justice.

o RULE 41 (Appeal from RTC)

§ Modes of Appeal
• Ordinary Appeal (R41)
o RTC decides in the exercise of its original jurisdiction
o Appeal to CA (Notice of appeal or record on appeal)
• Petition for Review (R42)
o RTC decides in the exercise of its appellate jurisdiction
o Petition for review to CA
• Appeal by Certiorari (R45)
o RTC decision appeal to SC on pure questions of law

o RULE 42 (RTC-CA)
§ Scope: Judgment or final orders of the RTC in the exercise of its appellate
jurisdiction
§ Period: File and serve the petition within 15 days from notice of the decision
§ Where to appeal: CA
§ How to Appeal: By filing a verified petition for review with the CA + payment
of corresponding fee, copy furnished the RTC and the adverse party
§ Effect on the judgment: Will stay the judgment or order appealed from

Page 58 of 90 /jcl
 • EXC: case decided on the rules of summary procedure unless the CA
issues an injunction or TRO

§ When is appealed perfected? Upon timely filing of a petition for review +

corresponding fee
§ When does the RTC lose jurisdiction? Upon the perfection of the appeal filed
in due time AND expiration of the time to appeal of the other parties
§ Residual Jurisdiction applies

o RULE 45 (Appeal by Certiorari to SC)

§ Scope: Questions of law which must be distinctly set forth
§ Period: Within 15 days from notice subject to extension of 30 days upon
payment of corresponding docket fee
§ Where to appeal: Supreme Court
§ How to appeal
• Petition for review on certiorari shall be filed

Questions of law Questions of Fact

When there is doubt as to what law is on When doubt arise as to the truth or
certain state of facts falsity of the alleged facts

§ FACTUAL-ISSUE-BAR RULE (FIB RULE)

• Petition for review under R45 is discretionary. It may only be availed if
the appeal is on pure questions of law. Thus, questions of fact is NOT
allowed to be raised the SC is NOT a trier of facts. Consequently,
calibration of evidence, as a rule may NOT be entertained by the SC.
• Exceptions (GIG-MCBC-WP)
o The conclusions of CA are grounded entirely on speculations,
surmises and conjectures
o Inference is manifestly mistaken
o There is grave abuse of discretion
o Judgment is based on misapprehension of facts
o Findings of facts are conflicting
o The CA went beyond the issues of the case or its judgment is
contrary to the admission of the parties
o Findings of CA is contrary to the lower court
o Findings of fact are conclusion without basis in evidence
o Findings of fact of CA are premised on the supposed absence of
evidence and contradicted by evidence on record.

o RULE 43 (QJA-CA)
§ Scope: QJA’s decision in the exercise of its quasi-judicial function
§ Period: 15 days from notice of the decision or order appealed from
§ Where to appeal: CA
§ How appeal taken: By filing a verified petition for review
§ Effect of filing: Will NOT stay the execution of decision UNLESS restrained.

- REMEDIES AFTER JUDGMENT BECAME FINAL AND EXECUTORY

o REMEDY OF LAZARUS (RAC)
§ Petition for relief from judgment (R38)
Page 59 of 90 /jcl
 § Annulment of Judgment (R47)
§ Certiorari (R65)
o PETITION FOR RELIEF FROM JUDGMENT (R38)
§ Subject matter
• Judgment
• Final order
• Other proceedings (Sec. 1)
• Order denying the appeal (Sec. 2)
§ What to file: Petition for review
§ Grounds: FAME both for S1 &2
§ Where to file: Court which rendered the judgment, final order, order denying
or the court which conducted the proceedings
§ Period to file (60/6)
• Within 60 days after the petitioner learns the judgment, etc. AND
• Within 6 months after entry
• Example
o Marina learns the judgment by default on Sept. 1. The judgment
was entered on Jan. 2. The Petition was filed on Oct. 1.
o Is the petition filed within the Period?
§ Remedy is NOT available in CA and CA (Purcon v. MRM Phils.; Redenia v.
Redenia)

o ANNULMENT OF JUDGMENTS (R47)

§ Subject matter
• Judgments or Final orders and Resolutions in civil actions of RTC for
which the remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the
petitioner.
§ What to file: Petition
§ Grounds
• Extrinsic Fraud – committed outside the court resulting the offended
party being deprived his day in court
• Lack of Jurisdiction – over the SM or the person of the defendant
§ Where to file: Court of Appeals
§ Period to File
• Extrinsic Fraud - Within 4 years from discovery of judgement
• Lack of jurisdiction – before it is barred by laches or estoppel
§ Does RTC have jurisdiction to entertain annulment of judgment of MTC?
• YES. S10 R47 but it shall be treated as an ordinary civil action pursuant
to Sec. 17 BP 129 conferring the RTC as the court of general jurisdiction.

o COLLATERAL ATTACK ON THE JUDGMENT

§ It is made when, in another action to obtain a different relief, an attack on the
judgment is made as an incident in said action.
§ This is proper only when the judgment, on its face, is null and void, as where it
is patent that the court, which rendered said jurisdiction, has no jurisdiction.

o OTHER APPEALS/REVIEWS
§ Review of decision of NLRC – Rule 65 to CA applying the rules on hierarchy of
courts (St. Martin Funeral Homes v. NLRC)
Page 60 of 90 /jcl
 § Review of decisions of VA in labor cases – R43 (quasi-judicial function of VA)
§ Review of rulings of Ombudsman
• Administrative – R43 to CA (Pia v. Gervacio June 5, 2013)
• Criminal Cases – R65 (Cabrera v. Lapid, 510 SCRA 55)
§ Appeals from CTA en banc – R45 (S11, RA 9282)
§ Review of the decision of Comelec – R64, 65 to SC
§ Review of the decision of COA – R64, 65 to SC
§ Appeals from decision of CSC – R43 to CA
§ Carpio-Morales v. CA (Nov. 15, 2015)
• The progenitor of the case is the administrative case against JunJun
Binay where CA issued TRO/injunction. Carpio-Morales question the
order of the court contending that by virtue of S. 14 of the Ombudsman
law.
• The SC ruled that the 2nd par. Of Sec.14 of RA 6770 is unconstitutional
violating S30 Art. VI: no law shall be passed increasing the appellate
jurisdiction of the court without its advise or concurrence.
• The 1st par. Is ineffective: unless the SC adopts the no injunction rule as
a policy. It is true that congress confers jurisdiction but as to how the
court exercise the jurisdiction conferred upon on it is within the court’s
rule making power.

29. PROVISIONAL REMEDIES (AIR2S) (R57-61)

- Modes
o Preliminary Attachment (R57) **
o Preliminary Injunction (R58) **
o Receivership (R59)
o Replevin (Delivery of Personal Property) (R60)
o Support Pendente Lite (R61)

- PRELIMINARY ATTACHMENT (R57)

o It is a provisional remedy issued by the court where the action is pending levying the
property or properties of the defendant to serve as security for whatever judgment the
said court might render in favor of the plaintiff.
§ Provisional: Temporary measure availed of during the pendency of action
§ Ancillary: It is dependent upon the main action

o Will the writ of attachment be dissolved if the parties already entered into compromise
agreement?
§ NO. The parties to the compromise agreement should NOT be deprived of the
protection provided by an attachment lien. If the rule were otherwise, it is easier
for the debtor whose property was attached to have the lien released by
entering into a compromise agreement without the intention of actually
honoring it. (Lim, Jr. v. Sps. Lazaro, GR No. 185734)

o Nature of attachment
§ Action quasi in rem (Banco-Espanol v. Palanca, 37 Phil. 921, 928)

o Who may apply?

§ Claiming party
• Plaintiff
Page 61 of 90 /jcl
 • Defendant with respect to his counterclaim
• Co-party with respect to his cross-claim
• Third-party with respect to his third-party complaint

o At what stage may it be applied?

§ At the commencement of the action
• It may be done ex parte
§ At any time before entry of judgment
• There will always be motion

o Cases where PA is proper (S1 R57) (G-NERRDS)

§ Recovery of a specified amount of money or damages (S1(a))
• In an action for the recovery of a specified amount of money or
damages, other than moral and exemplary
• On a cause of action arising from law, contract, quasi-contract, delict or
quasi-delict
• Against a party who is about to depart from the PH with intent to defraud
his creditors

§ Action for Money or property embezzled (S1(b))

• In an action for money or property embezzled or fraudulently misapplied
or converted to his own use
• By a public officer, or an officer of a corporation, or any attorney, factory,
broker, agent, or clerk In the course of his employment as such
• Or by any other person in a fiduciary capacity
o Or for a willful violation of duty

§ Action for recovery of property unjustly or fraudulently taken (S1(c))

• In an action to recover the possession of a property unjustly or
fraudulently taken, detained, or converted
• When the property, or any part thereof, has been concealed, removed,
or disposed of to prevent its being found, or taken by the applicant or an
authorized person

§ Removal or Disposal of Property with intend to defraud (S1(e))

• In an action against a party who has removed or disposed of his
property, or is about to do so, with intent to defraud his creditors.

§ Action against non-residents or on whom summons may be served by

publication (S1(f))
• In an action against a party who does NOT reside AND is NOT found in
the PH, OR
• On whom summons may be served by publication (Read this in
relation to Secs. 16, 17 and 18, Rule 14 ROC)
o Defendant whose identity or whereabouts are unknown
o Extraterritorial service of summons to defendant that does not
reside and is not found in PH
§ In actions affecting the personal status of the plaintiff; or

Page 62 of 90 /jcl
 §Relates to, or the subject of which is property within PH 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 PH
o Residents temporarily out of PH

o Requisites for Issuance of PA (BA)

§ Applicant’s bond must be filed
§ Affidavit of merit (SMNAV)
• Sufficient cause of action exists
• The case is one of those mentioned in S1 R57
• There is no other sufficient security for the claim sought to be enforced
by the action; and
• The amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for
which the order is granted above all legal counterclaims

o How it may be issued

§ Ex parte if availed of at the commencement of the suit
§ Upon motion with notice and hearing
§ On appeal before the CA or the SC

o Stages in the grant

§ Court issues the order granting the application à Writ of attachment is issued
pursuant to the order à The writ is implemented

o Is it necessary for the court to have acquired jurisdiction over the person of the
defendant when the writ is implemented?
§ YES. Prior or contemporaneous service of summons (SCA-ABOW)
• Summons + copy of the complaint + application for attachment +
applicant’s affidavit and bond + order of attachment + writ of attachment
§ GEN: When you implement the writ of attachment, there must be a Prior or
contemporaneous service of summons
§ EXCEPT: When the summons could NOT be served – (PS-TNQ)
• Personally or by substituted service despite diligent efforts; or
• Defendant is a resident of the PH temporarily absent therefrom; or
• Defendant is a non-resident of the PH; or
• The action is one in rem or quasi in rem (S5 R57)

o How is real property attached?

§ By the sheriff by filing with the RD (ODN)
• Copy of the order;
• Decription of the property attached; and
• Notice that it is attached
§ And leaving a copy of the ODN with the occupant of the property, if any.
o How is personal property attached?
§ PP capable of manual delivery
Page 63 of 90 /jcl
 • By taking and safely keeping it in his custory after issuing the
corresponding receipt thereof
o Bank deposits and other credits
§ Garnishment – leaving a copy of the writ and notice of such attachment to the
person owing debts, or having in his possession or under his control, such
credits or other personal property of the party against whom attachment is
issued
o Interest belonging to estate of the decedent
§ Copy of the writ and notice of the attachment of interest
• Serving to the E/A or other personal representative of the decedent; and
• Filing in the office of the clerk of the court in which said estate is being
settled
• Serving upon the heir, legatee, or devisee concerned
o Property under custodia legis
§ 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

o Remedies of a third person whose property is attached (TSS)

§ Terceria (S14 R57)
§ Invoke the court’s authority in the same case and move for summary hearing
on his claim. If his claim is meritorious, the court shall lift the attachment (Ching
v. CA 423 SCRA 356)
§ File a separate civil action to nullify the levy (Ching, id.)
o Discharge of writ of attachment
§ Modes
• By filing a motion to discharge the attachment and making a deposit or
counter-bond in an amount equal to that fixed by the court or value of
the property attached; ORx
• By filing a motion to set aside or discharge the attachment on other
ground without need of filing a counterbond

§ Grounds (IBEE)
• Attachment was improperly or irregularly issued
• Bond is insufficient
• Attachment if excessive with respect to the excess
• Property is exempt from execution

§ May a party whose property was attached recover damaged from the
attaching party though the former lost the case?
• YES. This is implied from S20 R57
o An application for damages on account of improper, irregular or
excessive attachment (IIE attachment)
o Must be filed before the trial or before the appeal is perfected or
before the judgment becomes executory
o With due notice to the attaching party and his surety or sureties.
• The bond is guaranty for payment in case the implementation of the writ
is not in accordance with law

Page 64 of 90 /jcl
 - PRELIMINARY INJUNCTION (R58)
o It is an order granted at any stage of an action, prior to the judgment or final order,
requiring a party, court, agency or person to perform or refrain from perforning an act
or acts.
o Applied and issued by the court where the case is pending
o Writ cannot be issued ex parte

o Preliminary mandatory injunction – to require the doing of an act

o Preliminary prohibitory injunction – to refrain from doing an act

o Purpose
§ To prevent threatened or continuous irreparable injury to parties before their
claims can be thoroughly studied and adjudicated and during the pendency of
the action.
§ To protect the rights of the parties before the main action is resolved, there is
need to preserve the status quo.

o Status quo (APU)

§ Last actual, peaceful, and uncontested status that precedes the actual
controversy, that which is existing at the time of the filing of the case.

o Substantial Requisites: (RTIU)

§ There exists a clear and unmistakable legal right to be protected
§ This right is directly threatened by an act sought to be enjoined
§ The invasion of the right is material and substantial
§ There is urgent and paramount necessity for the writ to prevent serious and
irreparable damage (Sps. Dulnuan v. MBTC, July 8, 2015)

o Formal Requisites (ABNH)

§ Verified application
§ Applicant must post a bond
§ Notice
§ Hearing

o Prior and Contemporaneous Service of Summons

§ If the application for WPI/TRO is included in a complaint or any initiatory
pleading AND the case is filed in a multiple-sala court
• Case shall be raffled only after notice to and in the presence of the
adverse party or the person to be enjoined
• NOTICE shall be preceded or contemporaneously accompanied, by
SERVICE of summons + copy of the complaint or initiatory pleading +
applicant’s affidavit + applicant’s bond (N-SC-AB)
§ EXCEPT: When the summons could NOT be served – (PS-TNQ)
• Personally or by substituted service despite diligent efforts; or
• Defendant is a resident of the PH temporarily absent therefrom; or
• Defendant is a non-resident of the PH; or
• The action is one in rem or quasi in rem

Page 65 of 90 /jcl
 o TEMPORARY RESTRAINING ORDER
§ Remedy within a provisional remedy because you can apply for the issuance
of TRO prior to the hearing of a preliminary injunction
§ It is an order issued to preserve the status quo until the hearing of the
application of the writ of preliminary injunction because the latter cannot be
issued ex parte

§ May TRO be issued ex parte?

• YES
• From the facts shown by affidavits or by the verified petition
• Great or irreparable injury would result to the applicant before
preliminary injunction can be heard
• TRO is effective only for a period of 20 days from service on the party or
person sought to be enjoined.

§ May TRO be issued by the EJ?

• YES
• If the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury
• EJ of a multiple-sala court or the presiding judge of single-sala court may
issue ex parte a TRO
• It shall be effective for only seventy-two (72) hours from issuance
• Immediate compliance with the provisions on the service of summons
and documents to be served with
• Issued prior to raffle and only issued by the EJ

§ What should the judge where the case is raffled do after the EJ issued the
72-hour TRO?
• Filing of the complaint in the OCC
• Supposing there is an application for the issuance of a72-hour TRO, it
may be acted upon by the EJ
• Issuance of 72-hour TRO
• Notification of the defendant of the raffle
• Case will be raffled
• WItihin 72-hours, the judge before whom the case is raffled shall conduct
a summary hearing to determine whether there is need to extend TRO
• Should there is a finding, extension shall only be for 17 days because it
should not exceed 20 days, including the 72-hours

§ 20-day TRO
• Non-extendible
• The total period of effectivity of the TRO shall not exceed 20 days,
including the original 72-hours

§ Instances where the WPI may NOT be issued by the Court

• No court, except the SC, can issue injunctive relief against lawful action
of the government agencies that enforce environmental laws (S. 10 R2,
Part II, A.M. No. 09-6-8-SC)

Page 66 of 90 /jcl
 • PD 605 bans the issuance of injunctive relief in cases involving
concessions, licenses issued by the government for exploitation of
natural resources.
• PD 1818 prohibits issuance of TRO, PI against the execution of
government infrastructure projects
• Presidential Agrarian Reform Council (PARC) cannot be enjoined by
court in the implementation or enforcement of CARP under the CARP
law
§ NOTE: Even if there is a law which prohibits the court from issuing injunction in
relation to a particular action concerned, if that is not adopted as a policy by the
SC, it is deemed ineffective as of yet.

§ May criminal action be restrained?

• Gen: NO.
• Exceptions: MEMORIZE (PD-OA-CP)
o To afford adequate protection to the constitutional rights of the
accused
o When double jeopardy is apparent
o When necessary for the orderly administration of justice or to
avoid oppression
o Where the charges are manifestly false and motivated by lust for
vengeance
o When there is strictly no prima facie case against the accused
and the motion to quash on that ground has been denied

30. SPECIAL CIVIL ACTIONS

- Actions (ID-ECQ-RFPF-C)
o Interpleader (R62)
o Declaratory Relief and other actions (R63)
o Review of Judgment and Final Order of COMELEC and COA (R64)
o Certiorari, Prohibition, Mandamus (R65)
o Quo Warranto (R66)
o Expropriation (R67)
o Foreclosure of Real Estate Mortgage (R68)
o Partition (R69)
o Forcible Entry and Unlawful Detainer (R70)
o Contempt (R71)
- There are specific rules that apply to them.
- Only ordinary civil actions are based on a cause of action.
o Except: SCA – FEUD

- INTERPLEADER (R62)
o It is a special civil action filed by a person against whom two conflicting claims are
made upon the same subject matter and over which he claims no interest, or if he
claims interest, the same is not disputed by the parties.
o This action is brought against the conflicting claimants to compel them to interplead
and litigate their claims among themselves.
o Requisites: (TSPP)
§ There must be two or more claimants with adverse and conflicting interest upon
a subject matter
Page 67 of 90 /jcl
 § The conflicting claims involve the same subject matter
§ The conflicting claims are made upon the same person
§ The plaintiff has no claim or his interest, in whole or in part, in the subject is not
disputed by the claimants

o What is the jurisdiction of interpleader?

§ It depends on the subject matter of the conflicting claims:
• If the subject matter of the action is personal property – determine the
value of the property
• If the conflicting claims involve right to receive particular sum –
determine the amount of the sum claimed
• If the subject matter is real property – determine the assessed value
• If the subject matter is incapable of pecuniary estimation – RTC

- DECLARATORY RELIEF (R63)

o It is an action by any person interested in a deed, will, contract or other written
instrument, executive order or resolution

o Only issue that may be raised

§ Question of construction or validity of provisions in an instrument or statute
o Purpose of declaratory relief filed
§ To determine any question of construction or validity arising from the subject of
the action
§ To see a declaration of petitioner’s rights thereunder

o ACTIONS THAT MAY BE BROUGHT UNDER R. 63 (DR-QC)

§ DECLARATORY RELIEF
• Requisites: (STV-BARA)
o Subject Matter: deed, will, contract or other written instrument,
or whose rights are affected by a statute, executive order or
regulation, ordinance or any other government regulation
(DWCO-R-SEROO Note: These are exclusive)
o The terms of said statute or document and validity thereof are
doubtful and require judicial construction
o There must have been NO breach of the statute or document
o There must be actual justiciable controversy
o The issue is ripe for judicial determination
o Adequate relief is NOT available
• Who may file the petition?
o Any interested party
§ If the subject is DWCO
o Persons whose rights are affected
§ If the subject is SEROO
• Which court has jurisdiction?
o RTC – incapable of pecuniary estimation
o SC has no original jurisdiction over declaratory relief

§ Reformation of an instrument
• Action for reformation of contract – action incapable of pecuniary
estimation
Page 68 of 90 /jcl
 § Action to Quiet title to real property or Remove Clouds therefrom
• If the action is for quieting of title to real property, the jurisdiction
depends upon the assessed value of the real property

§ Consolidation of Ownership
• Action for consolidation of ownership – action incapable of pecuniary
estimation

o REVIEW OF THE JUDGMENT OR FINAL ORDER OF COMELEC AND COA (R64 ~

R65)
§ Mode of review: Petition for Certiorari under R65
§ Ground: the COMELEC or COA acted without jurisdiction or committed grave
abuse of discretion amounting to lack or excess of jurisdiction
§ When should petition be filed: 30 days from notice of JFOR sought to be
reviewed
§ Does NEYPES or Fresh Period Rule apply to JFO of COMELEC or COA?
• NO. If the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than 5 days in
any event, reckoned from notice of denial.
§ Period to file petition
• Within 30 days from notice of the judgment or final order or resolution
sought to be reviewed.
§ Effect of the filing on the JFOR
• It shall NOT stay the execution of the judgment unless the SC issues an
injunction

o CERTIORARI, PROHIBITION, MANDAMUS (R65)

§ CERTIORARI
• To annul judgment
• “Prerogative writ” because it is NOT demandable as a matter of right
• Its purpose is the correction of errors of jurisdiction which includes
commission of GAD amount to lack or excess of jurisdiction
• It is an original and independent action and NOT a mode of appeal
• GEN: CANNOT substitute for appeal or lost appeal
o EXCEPT (PB-WO)
§ When public welfare and the advancement of public policy
dictates
§ Broader interest of justice so require
§ When writs issued are null and void
§ When the questioned order amounts to an oppressive
exercise of judicial authority
Certiorari under Rule 45 Certiorari under Rule 65
Mode of appeal SCA
Continuation of the appellate process of Original action
the original case
Seeks to review the judgment Seeks to annul the proceeding or
judgment
Page 69 of 90 /jcl
 Raises questions of law Question of jurisdiction
To be filed within 15 days from receipt of May be filed either 30 or 60
judgment
Does NOT require MR As a general rule requires MR
Same parties to the original action Parties are the tribunal, board or officer
exercising jud/quasi-judicial function
May only be filed before SC May be filed with RTC

• Essential Requisites
o The petition is directed against a tribunal, board or officer (TBO)
exercising judicial or quasi-judicial functions
§ Judicial function – power to determine what the law is
and what the legal rights of the parties are, and then
undertakes to determine these questions and adjudicate
the rights of the parties
§ Quasi-judicial function – power of an administrative
agency to investigate facts or ascertain existence of facts,
hold hearings, and draw conclusions from them as a basis
for its official action and to exercise discretion of a judicial
nature
§ Extended scope
• Petition 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 (basis 2nd par.
Sec. I, Art. VIII of the Constitution)

o Such TRBO has acted without or in excess of its jurisdiction or

with GAD amounting to lack or excess jurisdiction
o There is neither appeal nor plain, speedy or adequate remedy in
the ordinary course of law for the purpose of annulling or
modifying the proceeding

• RULE: Necessity of MR, Exceptions

o Order is patent nullity
o Issue has been duly raised and passed by the lower court
o There is an urgent necessity for the resolution of the question
o The subject matter of the action is perishable
o Petitioner is deprived of due process
o MR would be useless under the circumstances
o Relief from arrest is urgent
o Proceedings is a total nullity
o Issue is one purely of law

• Formal Requirements for filing (VCCN)

o Verified petition
o Accompanied by CTC of the JFOR subject thereof

Page 70 of 90 /jcl
 o Copies of all pleadings and documents relevant and pertinent
thereto
o Sworn certification of non-forum shopping as provided in S3 R46
• Non-compliance of formal requirements - sufficient cause for dismissal
• Period to File the Petition
o 60 days subject to meritorious exceptions
• Filing does NOT stay the proceedings unless the court issues
preliminary injunction

§ PROHIBITION
• To desist from further proceedings
• Essential Requisites
o The petition is directed against a tribunal, corporation, board or
officer (TCBO) exercising judicial, quasi-judicial or ministerial
functions
o The TCBO has acted without or in excess of its jurisdiction or with
GAD amounting to lack or excess jurisdiction
o There is neither appeal nor plain, speedy or adequate remedy in
the ordinary course of law

§ MANDAMUS
• Subject
o Neglect to perform an act which the law specifically enjoins as a
duty resulting from an office, trust or station
o Unlawful exclusion of another from the use and enjoyment of a
right or office to which such other is entitled

• Essential Requisites
o The petition is directed against a tribunal, corporation, board or
officer (TCBO) exercising ministerial functions
§ Ministerial function – without regard to the exercise of
judgment upon the propriety of the act done
o The TCBO neglects to perform an act or unlawfully excludes
another from the use or enjoyment of a right or office to which he
is entitled
o There is neither appeal nor plain, speedy or adequate remedy in
the ordinary course of law

• Examples
o Mandamus will NOT lie to compel the discretion of the judge to
decide a motion pending before him in a particular way (Morada
v. Caluag)
§ Mandamus will lie to compel a judge to decide a case
which is not being decided within a period
o Mandamus will NOT lie against a government school or official
with the duty that involves exercise of discretion lie admission of
the students (UP v. Ayson)
o Mandamus will NOT lie to compel UP to allow the graduation of
a student who failed to meet the requirements (Magtibay v.
Garcia, 120 SCRA 370, 374)
Page 71 of 90 /jcl
 o Mandamus will not lie to compel the prosecutor to file an
Information (Hegerty v. CA)
o Mandamus will not lie to compel the PMA to restore cadet’s rights
and entitlement as full-fledge graduating student (Cudia v.
Superintendent of PMA)

o QUO WARRANTO (R66)

§ May be brought by the government against: (PPA)
• A person who usurps, intrudes into, or unlawfully holds or exercises
(UIU-HE) a public office, position or franchise;
• A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
• An association which acts as a corporation within the PH without being
legally incorporated or without lawful authority so to act

§ May it be filed by an individual?

• YES. A person claiming to be entitled to a public office or position
usurped or unlawfully held or exercised by another may bring an action
thereof in his own name

§ Who may commence the petition?

• Solicitor General or Public Prosecutor
o When directed by the President of the PH
o When upon complaint
o When he has good reason to believe that the case should be filed
• Private Person
o Republic v. Sereno
§ What is the jurisdiction and venue of petition?
• Only in the SC, CA or RTC exercising jurisdiction over the territorial area
where the respondent or any of the respondents reside
o If the Solicitor General commences the action, it may be brought
in a regional trial court in the City of Manila, CA or in SC

§ Period for the filing

• Within 1 year after the cause of such ouster, or the right of the petitioner
to hold such office or petition
• Republic v. Sereno
o Prescription does not lie against the government
o It was filed within 1 year because it was only during impeachment
proceeding that OSG discovered the non-qualification due to
failure to file SALN

o EXPROPRIATION (R67)
§ Power of eminent domain is one of the fundamental powers of the state
§ Sec. 9 Art. III is NOT a conferment of the power BUT rather a limitation
§ Two requisites for the validity of exercise of PED
• It must be exercised for public purpose; and
o Include “usefulness, utility or advantage or what is productive of
general benefit
• Payment of just compensation
Page 72 of 90 /jcl
 o Measure is the owner’s loss
o Full and fair equivalent of property taken from its owner by the
expropriator
§ Power or eminent domain can be used as an implement of police power
§ Expropriation is not limited to acquisition of title. Burden to a property is
tantamount to “taking”

§ Can the government divert the use of property taken different from the
purpose for which the petition was filed?
• NO. Condemnor should commit the use of the property pursuant to the
purpose stated in the petition for expropriation, failing which it should file
another petition for new purpose.
• If not, then it behooves the condemnor to return the said property to its
owner, if the latter so desires. (Vda. De Ouano v. Republic)

§ Requisites of Exercise of Eminent Doman of LGU

• There must be an ordinance enacted for the purpose
• The power of eminent domain is exercised for public use, purpose,
welfare or for the benefit of the poor and the landless
• It must be exercised through its chief executive
• Payment of just compensation
• There must be previous offer to buy but it was refused

§ What are the stages in expropriation process?

• First stage – the determination of the authority of the plaintiff to
expropriate. This determination includes an inquiry into the propriety of
the expropriation – its necessity and the public purpose.
• Second stage – Determination of just compensation

§ Appeal by record on appeal

§ Notice of Appearance and Manifestation to that effect

• Filed if a defendant has no objection or defense to the action or to the
taking of his property
§ Omnibus Motion Rules
• Applicable. A defendant waives all defense and objections not so
alleged but the court, in the interest of justice, may permit amendments
to the answer to be made not later than 10 days from the filing thereof.
§ May a defendant be declared in default in not presenting evidence on just
compensation?
• NO. It means that he is not questioning the authority to expropriate. At
the trial of the issue of JC, whether or not a defendant has previously
appeared or answered, he may present evidence as to the amount of
compensation to be paid for his property, and he may share in the
distribution of the award.
§ Jurisdiction: RTC – incapable of pecuniary estimation

§ When is possession on the property allowed?

• Under the Rules of Court

Page 73 of 90 /jcl
 o Upon deposits by expropriator of an amount equivalent to the
assessed value of the property for purposes of taxation with the
authorized government depositary.
o After such deposit is made the court shall order the sheriff or other
proper officer to place the plaintiff in possession of the property
involved and promptly submit a report thereof to the court with
service of copies to the parties.

• Under the LGC

o LGU may take possession of the property upon filing of petition
and after making deposit of 15% of the market value of property
based on the current tax declaration

• Under RA 8974 (Govt Infra Project)

o With respect to government infrastructure project, upon filing of
complaint and payment to the owner of sum of 100% of the value
of the property based on current relevant valuation.

• If LGC is not applicable or that the project taken is NOT for government
infrastructure project, ROC governs.

§ What is the effect if objections of the defendant are overruled or the

defendant did not object on the authority and purpose of the
expropriation or no part appears to object?
• Court may issue an order of expropriation declaring
o Plaintiff has a lawful right to take the property sought to be
expropriated
o For the public use or purpose described in the complaint
o Upon the payment of just compensation to be determined as of
the date of the taking of property or the filing of the complaint
whichever came first
• Order of expropriation
o Final order susceptible to appeal but such appeal shall NOT
prevent the court from determining the just compensation to be
paid and the right of the plaintiff to enter upon the property and
appropriate it for the public use or purpose.
• Reversal of the RTC order on Appeal
o If the appellate court determines that plaintiff has NO right to
expropriation
§ Judgment rendered ordering RTC to enforce the
restoration to the defendant of the possession of the
property and determine the damages sustained and may
recover

• Rules on ascertainment of JC
o Appointment of 3 commissioners is mandatory
o Hearing before 3 commissioners is indispensable
o Trial with aid of commissioners is substantial right
o The findings of commissioner may be disregarded by the judge
only for valid reason
Page 74 of 90 /jcl
 o Just compensation shall be determined as of the date of the
taking of the property or the filing of the complaint whichever
came first

• Effect of non-payment of JC
o GEN: Non-payment of JC does NOT automatically entitle the
private landowner to recover possession
o EXC: If after 5 years from the finality of judgment, the JC is not
paid, it will entitle the owner of the property to recover possession
of their property
o Action to recover possession

o JUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE (R68)

§ Notes
• In an indebtedness subject to mortgage, the creditor has the following
alternative remedies (availment of one excludes the other)
o To file an action for collection of sum of money
o To foreclose the mortgage
• The remedies are mutually exclusive.

§ Jurisdiction of Judicial Foreclosure

• Real Action – assessed value of the real property (20/50)

§ Two modes of foreclosure

§ Judicial Foreclosure (R68)
• File petition for judicial foreclosure
• What should be alleged in the complaint
o Due execution of the mortgage
o Description of the mortgaged property
o Statement of the date of the note
o Other documentary evidence of the obligaton secured by the
mortgage
o Amount claimed to be unpaid
o Names and residences of persons claiming interest to the
property subordinate in the right to that holder of the mortgage
• Content of Judgment of the Court
o The court in its judgment will ascertain the amount due
o Order for the defendant to pay the amount due not less than 90
days but not more than 120 days
§ If within this period or as long as there is no confirmation
of sale after foreclosure sale it was paid
• Mortgage is release
o Admonission that failure to pay the amount due within the time
fixed by the court, the property shall be sold in a public auction
§ Motion ex parte to sell the property to public auction
o This judgment is appealable.

Page 75 of 90 /jcl
 • Equity of Redemption
o The right to extinguish the mortgage and under the provisions of
R39 and other regulations governing ales of real estates under
execution
o Motion ex parte

• What should the mortagee do, after the sale of the property is
made?
o File a motion for confirmation of sale which requires hearing and
notice
o Confirmation of sale operate to divest the rights in the property of
all the parties to action and vest the rights in the purchaser,
subject to the rights of redemption under the law
o Order of confirmation is appealable.

• Finality of Order of confirmation OR Expiration of the period of

redemption when allowed by law
o The purchaser at the auction sale or last redemptioner, if any,
shall be entitled to the possession of the property
o UNLESS a third party is actually holding the same adversely to
the judgment obligor
o The purchaser at the auction sale or last redemptioner may
secure a writ of possession, upon motion, from the court which
ordered the foreclosure
o Motion for issuance of WOP is ex parte

• Disposition of the Proceeds of Sale

o After deducting the costs of the sale, it shall be paid to the person
foreclosing the mortgage.
o Then payment of the mortgage debt due.
o Any balance or residue shall be paid to junior encumbrancers in
the order of their priority.
o If there are no encumbrancers or there is balance or residue after
payment to them, such balance or residue shall be paid to the
mortgagor or his duly authorized agent, or to the person entitled
to it.
• Is the mortgagee entitled to deficiency?
o YES. If upon the sale of any real property, there be a balance due
to the plaintiff after applying the proceeds of the sale
o Upon motion, the court shall render judgment against the
defendant for any such balance for which he may be personally
liable to the plaintiff
o Execution may issue immediately if the balance if all due at the
time of the rendition of the judgment
o 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 shall be stated in the judgment.
• Is there still a need to file a separate case to recover the deficiency?
o NO NEED. A motion for the recovery of deficiency can be filed in
the same court where the judicial foreclosure was filed.
Page 76 of 90 /jcl
 § Extrajudicial Foreclosure under Act 3135, as amended by 4118
• Requirements
o There must be a special power of attorney inserted in or attached
to the real estate mortgage authorizing the sale pursuant to the
provisions of Act, 3135, as amended
o The sale must be made within the province where the property or
any part thereof is located, unless otherwise stipulated
o There must be a notice of sale to be posted in three public places
of the municipality or city where the property is situated. If the
property is worth more than P400.00, the notice shall also be
published once a week for three consecutive weeks in a
newspaper of general circulation in the city or municipality
o The sale shall be made at public auction between the hours of
nine in the morning and four in the afternoon, and shall be under
the direction of the sheriff of the province, the justice or auxiliary
justice of the peace (now municipal judge) of the municipality in
which such sale shall be made, or a notary public of said
municipality

o PARTITION (R69)
§ It is the separation, division and assignment of a thing held in common among
those to whom it may belong (Art. 1079 CC)
§ Presupposes the existence of a co-ownership over a property between two or
more persons. Thus a division of property cannot be ordered by the court
UNLESS the existence of co-ownership is first established.

§ Instances where co-owner may NOT demand partition (AD-PC)

• There is agreement NOT to divide for a period of time, not exceeding
ten (10) years (Art. 494 CC)
• The partition is prohibited by the donor for a period not exceeding 20
years (Art. 494, 1083 CC)
• When property is NOT subject to a physical division (Art. 495 CC)
• When condition is imposed but not yet fulfilled (1084 CC)

§ Prescription
• It does NOT prescribe. Co-owner may file the action for partition anytime
(Art. 494 CC)
• Except when the co-owner repudiated the co-ownership, and the co-
owner is advice of the repudiation, such repudiating co-owner may
acquire ownership thereof thru prescription (Heris of Restar v. Heirs of
Cichon)

§ Jurisdiction
• Partition is a real action. Thus, jurisdiction depends on the assessed
value of the property. (20/50)

§ Stages of Partition
• First: Determination whether co-ownership exists. This phase may end
up with the declaration that plaintiff is not entitled to partition.
Page 77 of 90 /jcl
 • Second: Partition shall be done by the court in case the parties could
not agree among themselves.
o Court will direct the parties to partition the property among
themselves
o If they don’t agree, the parties shall appoint three (3) independent
commissioners to make the partition
o Commissioners will submit their full and accurate report, copy
furnished to parties, subject to the approval of the court.
o Parties are allowed to comment or register their objection to the
report within 10 days from receipt thereof.
o Court upon hearing may:
§ Accept the report and render judgment in accordance
therewith
§ For cause shown, recommit the same to commissioners
§ Set aside the report and appoint new commissioners
§ Accept the report in part and reject it in part, and make
such report and render judgment between the several
owners thereof
• Both phases are subject to appeal.

§ Who may file?

• Person having the right to compel the partition

§ What must be alleged in the complaint

• Nature and extent of his title
• Adequate description of the real estate of which partition is demand
• Joining as defendants all other persons interested in the property

o FORCIBLE ENTRY AND UNLAWFUL DETAINER (R70)

§ 3 KINDS of POSSESSORY ACTIONS
• Accion Interdictal
o MTC, regardless of the value of real property and amount of
damages or unpaid rentals
o Forcible Entry and Unlawful detainer
• Accion Publiciana - recovery of possession without addressing the
issue of ownership; MTC or RTC, depending on the assessed value of
the real property
• Accion Reinvindicatoria – seeks to recover possession and
ownership; MTC or RTC, depending on the assessed value of the real
property

§ FORCIBLE ENTRY
• Action to recover possession of the property from the defendant whose
occupation thereof is illegal from the beginning since he acquired
possession by FITSS force, intimidation, threat, strategy or stealth.
• Jurisdictional facts to be alleged (PMO)
o Plaintiff had prior physical possession
§ Primary consideration in a FE case
§ A party who can prove prior physical possession can
recover such possession even against the owner himself
Page 78 of 90 /jcl
 § Possession can be acquired not only by material
possession but also by the fact that a thing is subject to
the action of one’s will or by the proper acts and legal
formalities established for acquiring such right.
o That defendant deprived plaintiff of his possession by means of
FITSS
o Instituted within one (1) year from actual entry
§ When entry is by stealth, the one year-period to file action
should be reckoned from the discovery of entry

§ UNLAWFUL DETAINER
• An action for recovery of possession from the defendant whose
possession of the property was lawful from the beginning but became
illegal when he continued his possession despite the termination of his
right thereunder.
• Jurisdictional facts to be alleged (PNRO)
o Possession of the property by the defendant was by contract with
or by tolerance of the plaintiff
o Such possession became illegal upon notice by the plaintiff to the
defendant of the termination of the latter’s possession
o Defendant remained in possession of the property and deprived
the plaintiff enjoyment thereof
o Within 1 year from the last demand on the defendant to vacate
the property, the plaintiff instituted the complaint for ejectment
§ When possession is by tolerance, it becomes illegal upon
demand to vacate by the owner and the possessor by
tolerance refuses to comply with such demand
§ The rule on tolerance does NOT apply in cases where
there was forcible entry at the start.

• UNLAWFUL DETAINER IN LEASE CONTRACT CASES

o 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 demand to vacate
§ 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 is
found thereon
o Lessee fails to comply therewith after 15 days in the case of
land or 5 days in the case of buildings
o Tacita Reconduccion
§ If at the end of the lease contract, the lessee should
continue enjoying the property leased for 15 days with the
consent of the lessor, and NO notice to the contrary has
been given, it is understood that there is an implied new
lease contract (1670 CC)

§ Effect of failure to allege jurisdictional facts in FEUD?

• The jurisdictional facts must appear on the face of the complaint.
Page 79 of 90 /jcl
 • When the complaint fails to aver facts constitutive of forcible entry or
unlawful detainer, as where it does NOT state how entry was effected
or how and when dispossession started, the remedy should either be an
accion publiciana or accion reinvindicatoria.

§ Nature – real and personam

§ Procedure governing ejectment cases
• Rules on Summary Procedure
o Except in cases covered by the agricultural tenancy laws OR
when the law otherwise expressly provides
§ Pleadings allowed
• Complaint
• Compulsory counterclaim pleaded in the answer
• Cross-claim pleaded in the answer
• ALL PLEADINGS SHALL BE VERIFIED

§ Can the court motu propio dismiss the case?

• YES. Pursuant to S5 R5, the court may, from an examination of the
allegations in the complaint, and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds for the dismissal
of a civil action which are apparent therein. If no ground for dismissal is
found, it shall forthwith issue summons.
§ Answer to complaint – 10 days from service of summons.
§ MTD – only on the ground of lack of jurisdiction over the subject matter.
§ Affirmative and negative defenses not pleaded in the answer shall be
deemed waived.
§ Cross-claims and compulsory counterclaims not asserted to in the answer
shall be considered barred. Answers thereto shall be served and filed within 10
days from service of the answers in which they are pleaded.

§ Default judgment in ejectment cases?

• NO. Should the defendant fail to answer the complaint within the period
provided, the court, motu propio OR on motion of the plaintiff, shall
render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein.
§ What should the court do in case the defense of tenancy relationship is
alleged in the answer?
• The court must conduct a HEARING on the matter to determine the
veracity of the allegations of tenancy

§ PROCEDURE IN THE MTC

• Filing of the complaint
• Court issue summons if the complaint if not on its face dismissible
• Filing of answers within 10 days from summons
• Preliminary Conference
• After receipt of preliminary conference order, parties shall file their
position papers within 10 days
• The court shall render a judgment within 30 days after the case shall
have been submitted for decision

Page 80 of 90 /jcl
 § IF THE MTC JUDGMENT IS RENDERED AGAINST THE DEFENDANT,
EXECUTION SHALL ISSUE IMMEDIATELY UPON MOTION.
§ HOW TO STAY EXECUTION OF JUDGMENT
• Perfect an appeal and file a sufficient supersedeas bond, approved by
the MTC and executed in favor of the plaintiff to pay the rents, damages,
and costs (RDC)
• During the period of appeal, the appellant must deposit with the
appellate court (RTC) the amount due from time to time under the
contract, if any, as determined by the judgment of the MTC
• In the absence of a contract, he shall deposit with the RTC the
reasonable value of the use and occupation of the premises for the
preceding month or period at the rate determined by the judgment of the
lower court on or before the 10th day of each succeeding month or
period.
• If the above is NOT complied with, execution shall issue as a matter of
course.

§ THE RTC JUDGMENT IS IMMEDIATELY EXECUTORY

• Without prejudice to a further appeal that may be taken therefrom

o CONTEMPT R71
§ DIRECT CONTEMPT
• Requisites:
o Person guilty of misbehavior
o In the presence of or so near a court as to obstruct or interrupt
the proceedings before the same
o Including
§ Disrespect toward the court
§ Offensive personalities toward others
§ Refusal to be sworn or to answer as a witness
§ Refusal to subscribe an affidavit or deposition when
lawfully required to do so
• SUMMARY JUDGMENT
• Penalty for DC
o Fine not exceeding Php2,000 OR imprisonment not exceeding 10
days, OR both – If RTC or a court of equivalent or higher rank
o Fine not exceeding Php200 OR imprisonment not excedding 1
day, OR both – lower court
• Remedy of a person adjudged with DC
o Certiorari or prohibition
o Execution of the judgment shall be suspended pending resolution
of such petition, provided such person files a bond fixed by the
court which rendered the judgment and conditioned that he will
abide by and perform the judgment should the petition be decided
against him

§ INDIRECT CONTEMPT
• ACTS CONSTITUTING IC
o Misbehavior of an officer of a court in the performance of his
official duties or in his official transactions
Page 81 of 90 /jcl
 o Disobedience of or resistance to a lawful writ, process, order, or
judgment of a court
o Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under the
rule
o Any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice
o Assuming to be an attorney or an officer of a court and acting as
such without an authority
o Failure to obey a subpoena duly served
o 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

• How is IC commenced?
o By order of the court, or a formal charge by the offended court.
This is in the nature of a show cause order.
o By verified petition with full requirements of initiatory pleading for
civil action. It is treated as a separate case to be docketed
separately.
• Where should the charge be filed?
o Committed against the RTC or a court of equivalent or higher
rank, or against an officer appointed by it – charge may be filed
with such court
o Committed against a lower court
§ Charge may be filed with the RTC of the place in which the
lower court is sitting
§ Proceedings may also be instituted in such lower court
subject to appeal to the RTC of such place in the same
manner as provided in S2 R71

31. EXECUTION (R39)

- It is a remedy afforded for the satisfaction of a judgment.
- Its object being to obtain satisfaction of the judgment on which the writ is issued.
- It is the fruit and end of the suit, and is the life of the law.

- Which part of the decision is executed?

o The fallo or the dispositive portion of the decision
o It is that part which vests rights upon the parties, sets condition for the exercise of those
rights, and imposes the corresponding duties and obligations.
o Hence, if there is conflict between the dispositive portion of the decision and the body
thereof, the dispositive portion controls irrespective of what appears in the body.
§ If the dispositive portion has no basis at all or is disconnect, then refer to the
body of the decision.
- Writ of execution
o Should conform to the dispositive portion, otherwise, it is null and void.

- Execution as a matter of right

o Upon expiration of the period to appeal if no appeal is duly perfected

Page 82 of 90 /jcl
 o It is ministerial duty of the court to issue writ of execution when the judgment is larady
final. Thus, the act may be compelled by mandamus. This is the base on the principle
of immutability of judgment.

- Execution as a matter of discretion

o Execution pending appeal (S2 R39)
§ Requirements: (MN-H-CG)
• Motion filed by the prevailing party with notice to the adverse party
• There must be hearing of the motion for discretionary execution
• Motion must be filed in the trial court while it has jurisdiction over the
case AND is in possession of either the original record or the record on
appeal, at the time of the filing of such motion
o After the trial court has lost its jurisdiction, the motion for
execution pending appeal may be filed in the appellate court
• There must be good reason to justify the discretion
• Good reason must be stated in the special order

§ You can only entertain motion for execution pending appeal when the court
while it has jurisdiction over the case AND is in possession of either the original
record or the record on appeal
§ When does the court lose jurisdiction? When appeal is duly perfected and
expiration of the period to appeal by the other party.
§ Is posting of bond enough reason to grant execution pending appeal?
• NO. The mere filing of a bond by the successful party is not in itself a
good reason for ordering execution pending appeal, because it is the
combination of circumstances which is the dominating reason that would
justify immediate execution, the bond only an additional factor (Intl
School Inc (Manila) v. CA)
• Otherwise, what the prevailing party would do is just to post a bond, and
execution pending appeal will be issued as a matter of course.

§ Examples of good reason

• Where there is danger of the judgment becoming ineffectual, as where
the losing party is disposing of its assets
• Where the articles subject of the case would deteriorate
• Where the judgment debtor is insolvent or in imminent danger of being
insolvent

§ Should motion for execution pending appeal be granted, how can

execution be stayed?
• By filing a supersedeas bond which will guaranty the performance of the
judgment or order allowed to be executed in case it shall be finally
sustained in whole or in part

§ Is motion necessary for the issuance of writ of execution?

• YES. The judge, therefore, may not order the execution motu propio.

Page 83 of 90 /jcl
 § Is it required that the losing party be notified of the motion for execution?
• NO. It is filed ex parte. Once a judgment becomes final, the prevailing
party is entitled as a matter of right to a writ of execution and its issuance
is the trial court’s ministerial duty.
• The absence of the notice to the judgment debtor does NOT constitute
an infringement of due process.

§ Where to file?
• Applied for in the Court of origin
• If the appeal has been duly perfected and finally resolved, the execution
may forthwith be applied in the court of origin, on motion of the judgment
oblige, submitting therewith CTCs of the judgment or final order sought
to be enforced AND of the entry thereof, with notice to the adverse party.
• In an appealed decision, there is no need to wait for the records of the
case.

§ May one file the motion for execution with the appellate court?
• YES. On motion in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ of execution.

§ Lifetime of the WOE

• The writ may be enforced within the 5-year period from entry of judgment
because within that period, the writ may be enforced by motion.
§ How may a final and executory judgment be executed?
• By motion – within 5 years from the date of its entry
• By action – after the lapse of such time AND before it is barred by the
statute of limitations

§ Revival of judgment
• An action intended to secure the execution of a previous judgment which
has become dormant after the passage of 5 years without it being
executed upon motion of the prevailing party
• It is a new and an independent action separate and distinct from the
previous action sought to be revived. The cause of action is the
judgment itself.

§ Defenses that may be invoked in an action to revive

• Jurisdictional defenses
• Prescription
• Payment
• Other defenses arising after the finality of judgment
• NOTE: It may even be subject to counterclaims arising out of the
transactions not connected with the former controversy (Basilonia v.
VIllacruz)

§ Venue of action of revival

• Infante v. Aran Builders, 531 SCRA 123 – the proper venue depends
on the determination of whether the present action for revival judgment
is real or personal action
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 § If the Writ of execution was issued and levy is made within 5 years from
entry of the judgment
• The auction sale may be made even after the 5-year period
o The sale of the property and the proceeds are merely means to
carry the writ of execution and a levy already validly made.

§ May the running of the 5-year period be interrupted?

• The Court in certain instances, allowed execution of the judgment by
mere motion despite the lapse of the 5-year time.
• In many instances, the delays in the execution of judgment were through
cases clearly attributable to the judgment debtor as when he employees
legal maneuvers to block the enforcement of the judgment.
• Delays attributable to the defendant have the effect of suspending the
running of the prescriptive period for the enforcement of the judgment.
(Camacho v. CA, 287 SCRA 611, Republic v. CA 260 SCRA 344)

§ What are judgments that are not stayed by appeal? (SIRA-O)

• Injunction
• Receivership
• Accounting
• Support
• Other judgments as are now or may hereafter be declared to be
immediately executory
o UNLESS otherwise ordered by the trial court
o 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

§ How is execution effected if the obligee or the judgment obligor dies?

• Death of Judgment obligee – upon application of his executor or
administrator or success in interest
• Death of Judgment obligor
o If the judgment is for the recovery of real or personal
property OR the enforcement of a lien thereon
§ Against his executor or administrator or successor in
interest (EAS)
o After execution is actually levied upon any of his property
§ The same may be sold for the satisfaction of the judgment
obligation
§ The officer making the sale shall account to the
corresponding executor or administrator for any surplus in
his hands
o If the judgment is NOT for the recovery of real or personal
property OR enforcement of a lien
§ It will be treated as an ordinary claim in the settlement of
estate

§ Execution of Money Judgment, simplified (S9 R39)

• Sheriff will demand for payment in cash.

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 • If judgment obligor cannot pay in cash, he shall choose property to be
levied and sold.
• If judgment obligor does NOT choose, sheriff shall levy personal propery
first, then real property.
o NOTE: It is NOT proper for the sheriff to immediately levy the
property of the judgment debtor. He must first make a demand to
pay. Only when the judgment debtor does NOT pay, after
demand that the sheriff is authorized to levy the properties of the
judgment debtor. (Leachon v. Pascua, AM No. P-11-2972, 28
Sept 2011)
• Sheriff may also garnish credit and debts.

o Execution of Specific Act (S10(a) R39)

§ Judgment directs a party to execute a conveyance of land or personal
property, OR to deliver deeds or other documents, OR to perform any
other specific act in connection therewith + party fails to comply within
the time specified
• The court may direct the act to be done at the cost of the disobedient
party by some other person appointed by the court
o EFFECT: The act when so done shall have the like effect as if
done by the party.
§ If real or personal property is situated within the PH
• The court in lieu of directing a conveyance thereof may by an order
divesting the title of any party and vest it in other
o EFFECT: force and effect of a conveyance executed in due form
of law

o How is sale of personal or real property executed?

§ To sell such property, describing it, and apply the proceeds in conformity with
the judgment

o How is delivery or restitution of real property executed?

§ Officer shall demand the person against whom the judgment for the delivery or
restitution is rendered and all persons claiming rights under him
§ To peaceably vacate the property within 3 working days and to restore
possession thereof to the judgment oblige.
§ Otherwise, the officer shall oust all such persons therefrom with the assistance
of peace officer and employing such means as may be reasonably necessary
to retake possession and place the judgment obligee in possession of such
property.

o How is removal of improvements on property subject of execution enforced?

§ Officer shall NOT destroy, demolish or remove said improvements
• Except upon special order of the court, issued upon motion (Motion
for demolition) of the judgment obligee after due hearing and after the
former has failed to remove the same within a reasonable time fixed by
the court.

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 o How is delivery of personal property executed?
§ Officer shall take possession of the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for money as therein provided.

o Is contempt a proper remedy in case the judgment obligor refuse to vacate the
property?
§ NO. What the sheriff should do is to dispossess him of the property, and if after
dispossesson, the judgment debtor should execute acts of ownership or
possession or in any disturb the possesson of the judgment creditor, then and
only then may he be punished for contempt. (Pascua v. Heirs of Segundo
Simeon)

o What is the effect of levy on execution to third person?

§ The levy on execution shall create a lien in favor of the judgment obligee over
the right, title, and interest of the judgment obligor in such property at the time
of the levy, subject to liens and encumbrances then existing.
o Properties not subject of exection (S17 R39)
o What is the procedure if the property levied is the property of a third person?
§ Basic principle: The execution may issue only upon a person who is a party
to an action or proceeding, and NOT against one who did not have his day in
court.

o What is the procedure if the property of a third person is levied?

§ TERCERIA
• A person not a party to the action, claiming a property levied upon
• May execute an affidavit of his title or affidavit of right of possession over
the property
• The affidavit shall be served upon the officer making a levy
• Copy of the affidavit must also be served upon the judgment obligee
(S16 R39)

o After receipt of the affidavit of claim, what should the sheriff do?
§ Sheriff shall NOT be bound to keep the property
• UNLESS the judgment obligee, on demand of the officer, files a bond
approved by the court
• To indemnify the third-party claimant in a sum not less than the value of
the property levied on
§ Sheriff shall NOT be liable for damages for the taking or keeping of the property,
to any third-party claimant if such bond is filed (S16 R39)

o Suppose damage was incurred by the third party on account of officer’s taking
and keeping of his property, when should the action against the bond be filed?
§ The action should be filed within 120 days from the date of the filing of the bond.
(S16 R39)

o What are the remedies of the third party in case his property if levied? (QTS)
§ The third party can ask the court to quash writ of execution
§ The third party can avail the remedy of terceria
§ The third party can file a separate action to nullify the levy

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 o What is the remedy of the judgment oblige in case the claim of the third party is
frivolous or plainly spurious clam?
§ Claim damages in the same or separate action against the third-party claimant

o Examination of Judgment Obligor when Judgment Unsatisfied

§ When the return of a writ of execution issued against property of a judgment
obligor or any one of several obligors in the same judgment shows that the
judgment remains unsatisfied, in whole or in part
§ At any time after such return is made, judgment obligee shall be entitled to an
order from the court which rendered the said judgment, requiring such
judgment obligor to appear and be examined concerning his property and
income
§ Proceedings may be had for the application of the property and income of the
judgment obligor to satisfy the judgment

32. REVISED RULES ON SUMMARY PROCEDURE (RRSP)

- Rationale: to achieve an expeditious and inexpensive determination of cases
- Applicability: Summary procedure of the first-level courts in the following cases falling within
their jurisdiction:
o CIVIL CASES
§ All cases of FEUD irrespective of the amount of damages or unpaid rentals
sought to be recovered. Where attorney’s fees are awarded, the same shall
NOT exceed Php20,000.
§ All other civil cases, except probate proceedings, where the total amount of the
plaintiff’s claim does NOT exceed Php200,000.00, exclusive of interest and
costs, not arising from the scope of small claims.
o CRIMINAL CASES
§ Violations of traffic laws, rules and regulations
§ Violations of the rental law
§ Violations of municipal or city ordinances
§ All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment NOT exceeding six months, or a fine NOT exceeding
(P1,000.00), or both, irrespective of other imposable penalties, accessory or
otherwise, or of the civil liability arising therefrom: Provided, however, that in
offenses involving damage to property through criminal negligence, this Rule
shall govern where the imposable fine does not exceed ten thousand pesos
(P10,000.00)

- Where RRSP does NOT apply

o Civil case when the plaintiff’s cause of action is pleaded in the same complaint with
another cause of action subject to the ordinary procedure
o Criminal case where the offense charged is necessarily related to another criminal case
subject to the ordinary procedure

- Upon the filing of a civil or criminal complaint, the court shall issue an order declaring whether
or not the case shall be governed by this Rule.
- A patently erroneous determination to avoid the application of the RRSP is a ground for
disciplinary action.

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 - Pleadings allowed
o CIVIL CASES
§ Complaints
§ Compulsory Counterclaims
§ Cross-claims pleaded in the answer, and the answers thereto

- Duty of the Court after determining that a case falls under summary procedure?
o It may, from an examination of the allegations therein and such evidence as may be
attached thereto, dismiss the case outright on any of the grounds apparent thereform
for the dismissal of a civil action.
o If no ground for dismissal is found, the court shall issue summons which shall state that
the summary procedure under this Rule shall apply.

- Period to file an answer

o 10 days from service of summons, serving copy thereof on the plaintiff

- Is the answer of the defendant subject to omnibus motion rule?

o YES. Affirmative and negative defenses not pleaded therein shall be deemed waived
§ Except for lack of jurisdiction over the subject matter

- Cross-claims and compulsory counterclaims NOT asserted in the answer

o Considered barred

- Answers to CC/CC
o Filed and served within 10 days from service of the answer in which they are pleaded

- Effect if the defendant did NOT file an Answer

o The court, motu propio or on motion of the plaintiff, shall render judgment as ay be
warranted by the facts alleged in the complaint and limited to what is prayer for therein
o The court, in its discretion, may reduce the amount of damages and attorney’s fees
claimed for being excessive or otherwise unconscionable
o NO judgment on default

- Preliminary Conference
o Not later than 30 days after the last answer is filed, a preliminary conference shall be
held.
o Apply rules on ordinary procedure unless inconsistent with the RRSP

- What is the effect of failure of the parties to appear in Preliminary Conference

o Plaintiff
§ Dismissal of complaint
o Defendant appears, plaintiff did not
§ Entitled to judgment on his counterclaim
§ All cross-claims that be dismissed
o Defendant did NOT appear
§ Plaintiff shall be entitled to judgment in accordance with Sec. 6.
§ Shall not where one of two or more defendants sued under a common cause
of action who had pleaded a commons cause of action

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 - What should the court do after termination of preliminary conference?
o Within 5 days after the termination of PC, the court shall issue an order stating the
matters taken up therein

- When should position paper of the parties be submitted?

o Within 10 days from receipt of the order stating the matters taken up in the PC, the
parties shall submit the affidavits of their witnesses and other evidence on the factual
issues defined in the order, together with their position papers setting forth the law
and the facts relied upon by them

- When should judgment be rendered?

o Within 30 days after the last affidavit and position papers, or the expiration of the period
for filing the same, the court shall render judgment
o NOTE: Court may issue an order during this period in specifying the matters to be
clarified and require parties to submit affidavits or other evidence within 10 days from
receipt of the order.
o Judgment shall be rendered with 15 days after the receipt of the last clarificatory
affidavits, or the expiration of the period for filing the same.
o The court shall NOT resort to clarificatory procedure to gain time for the rendition of the
judgment (S10 RRSP)

33. RULES OF PROCEDURE FOR SMALL CLAIMS

- Scope: Govern procedure in actions before the first-level courts for payment of money where
the value of the claim does NOT exceed Php400,000, exclusive of interest and costs.

- Applicability: All action which are purely civil in nature where the claim or relief prayed for
by the plaintiff is solely for payment or reimbursement of sum of money
o Claim and demand from: (MLB)
§ Money owed under the following:
• Contract of lease
• Contract of loan
• Contract of services
• Contract of sale
• Contract of mortgage
§ For liquidated damages arising from contract
§ Enforcement of Barangay amicable settlement or arbitration award under the
Local Government Code (Sec. 5 2016 Revised Rules of Procedure for Small
Claims)
• If not based on the above, and the value does NOT exceed Php200,000
à Summary Procedure
• If not based on the above, and the value exceed Php200,000
à Ordinary Rules

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