WHAT IS JUDICIAL POWER?
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or instrumentality of the government. WHAT ARE THE CLASSES OF COURTS?
1. General jurisdiction – competent to decide their own jurisdiction and take cognizance of all causes, civil or criminal, of a particular nature;
Special jurisdiction – incapable of deciding their own jurisdiction and taking cognizance of only a few matters.
2. Original jurisdiction – where a cause arises; Appellate jurisdiction – where a cause is reviewed. 3. Courts of law – administer justice according to the law;
Courts of equity - administer justice according to the principles of equity.
4. Courts or record; courts not of record.
5. Civil courts – determine controversies between private persons; criminal courts – adjudicate offenses committed against the state. 6. Superior courts – exercise original and supervisory jurisdiction;
Inferior courts – have very limited jurisdiction and are subject to review.
7. Constitutional courts – owe their existence to the constitution;
Statutory courts – owe their existence to statute, although they may have been mandated by the Constitution.
DISTINGUISH BETWEEN COURTS AND JUDGES.
Courts may exist without a judge. There may be a judge without a court. Disqualification of a judge does not destroy the court. Courts are first
created and then judges are appointed to preside.
WHAT IS JURISDICTION?
It is the authority to hear and determine a cause or the right to act in a case. It does not depend on the regularity of the exercise of the power or the correctness of the decisions made.
An error committed in the exercise of jurisdiction does not deprive a court of jurisdiction.
Differentiate between errors of judgment and errors of jurisdiction.
An error of judgment is one which the court may commit in the exercise of its jurisdiction – they are reviewable on appeal.
An error of jurisdiction renders an order or judgment void or voidable – they are reviewable on certiorari.
WHAT ARE THE CLASSES OF JURISDICTION? (1) General – extends to all controversies which may be brought before a court
Special – confined to particular causes
(2) Original – inherent in a court of first instance Appellate – power of a superior court to rehear and determine causes which have been tried in inferior courts
(3) Exclusive – possessed by a court to the exclusion of all others
Concurrent – exercised by different courts at the same time over the same subject matter
(4) Criminal – exists for the punishment of crimes Civil – exists when the matter is not criminal in nature
(5) Territorial – power of the court with reference to the territory within which it is to be exercised (6) Jurisdiction over the subject matter – power to hear cases of the general class to which the proceedings in question belong
(7) Jurisdiction over the person – power to render a personal judgment against a person
(8) Jurisdiction over the res or property – obtained by a constructive service of process or seizure of the property under legal process HOW IS JURISDICTION OVER THE SUBJECT MATTER ACQUIRED?
It is conferred by law and in the manner prescribed by law.
HOW IS JURISDICTION OVER THE PERSON ACQUIRED?
Plaintiff: by filing the complaint Defendant:
a. by service of summons, either personal or substituted
• appearance does not necessitate physical presence in the court; it includes the filing of pleadings What are the elements of jurisdiction in civil cases?
The court must have jurisdiction over the: a. subject matter
b. parties
c. res, if jurisdiction over the person cannot be acquired and:
1. the defendant does not reside and cannot be found in the Philippines, and:
i. the action affects the personal status of the plaintiff, OR
ii. the action relates to property in the Philippines in which the defendant has an interest, OR iii. the relief demanded in the
action consists in excluding the defendant from any interest in property located in the Philippines, OR
iv. the defendant’s property has been attached within the Philippines.
CAN THE PARTIES DEPRIVE A COURT OF ITS JURISDICTION BY AGREEING THAT ANY CONTROVERSIES ARISING FROM A CONTRACT WILL BE REFERRED TO ARBITRATION ALONE?
No. Arbitration can be made a condition precedent to an action in court and it may be stipulated that the arbitrator’s award is final and valid but the award will always be subject to judicial review under the grounds provided for in the Civil Code and in the Arbitration Law.
WHAT IS THE CONSTITUTIONAL LIMITATION ON THE POWER OF CONGRESS TO
DETERMINE THE JURISDICTION OF COURTS? Congress can define, prescribe, and apportion the jurisdiction of various courts but:
a. it cannot deprive the sc of its minimum appellate jurisdiction;
b. it can increase the appellate jurisdiction only with the ADVICE AND CONCURRENCE of the SC and;
c. it can reorganize the judicial system provided it does NOT UNDERMINE THE SECURITY OF TENURE OF ITS MEMBERS
WHAT IS THE ORIGINAL JURISDICTION OF THE SC?
Original – cases involving ambassadors, public ministers, consuls;
Petitions for certiorari, mandamus, prohibition, quo warranto, habeas corpus
Original and Exclusive – petitions for certiorari, mandamus, and prohibition against the CA, COMELEC, COA, Sandiganbayan
Original and Concurrent with the CA – CPM against the NLRC, CSC, CBAA, CTA, QJ, RTC, lower courts
Original and Concurrent with the CA and RTC – CPM against lower courts and bodies;
Petitions for habeas corpus and quo warranto Original and Concurrent with the RTC – cases involving ambassadors, public ministers, consuls; WHAT IS THE APPELLATE JURISDICTION OF THE SC?
A. Appeal by notice of appeal: Criminal cases from the RTC or the
Sandiganbayan where the penalty imposed is reclusion perpetua or higher and other offenses, though not so punished, arose out of the same occurrence or were committed on the same occasion. Facts and law are reviewed. B. Automatic review:
Criminal cases where the death penalty is imposed.
C. Appeal by petition for review on certiorari: 1. Appeals from the CA
2. Appeals from the Sandiganbayan on questions of law, unless the penalty imposed is RP or higher 3. Appeals from the RTC exercising original jurisdiction in the following cases:
a. If no question of fact is involved (if question of fact, appeal to CA):
Constitutionality or validity of any treaty, PD, etc Legality of any tax, impost, toll, assessment, penalty imposed
b. all cases where only questions of law are involved
WHAT IS THE ORIGINAL JURISDICTION OF THE CA?
Original and Exclusive – actions for annulment of the RTC on the grounds of extrinsic fraud and lack of jurisdiction
Original and Concurrent with the SC - CPM against the NLRC, CSC, CBAA, CTA, QJ, RTC, lower courts
Original and Concurrent with the SC and the RTC - CPM against lower courts and bodies; Petitions for habeas corpus and quo warranto
WHAT IS A CIVIL ACTION?
One by which a party sues another for the enforcement of protection of a right or the
prevention or redress of a wrong. It may either be ordinary or special.
WHAT IS A CRIMINAL ACTION?
One by which the state prosecutes a person for an act or omission punishable by law.
WHAT IS A SPECIAL PROCEEDING?
It is a proceeding to establish the status or right of a party, or a particular fact.
DISTINGUISH A REAL ACTION FROM A PERSONAL ACTION.
Real actions are actions affecting title to, or possession of real property, or interest therein, or forcible entry and detainer actions.
Personal actions are founded on privity of contract or for the enforcement or resolution of a contract, or for recovery of personal property.
DISTINGUISH BETWEEN ACTIONS IN PERSONAM, IN REM, AND QUASI IN REM. An action in personam is one whose technical object is to establish a claim against a person, with a judgment which generally binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defense. Examples are actions to enforce specific performance or seek resolution. An action in rem is one whose object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established, and where anyone in the world has a right to be heard on the matter. An example is a land registration proceeding.
An action quasi in rem is one where an individual is named as a defendant and the purpose of the proveeding is to subject his interest in the property to the obligation or lien burdening it. Examples are actions for attachment, foreclosure, etc.
WHEN IS AN ACTION COMMENCED? A civil action is commenced by the filing of the original complaint in court.
WHAT MUST ACCOMPANY THE COMPLAINT? There must be concurrent payment of docket fees. Without payment of docket fees, the court does not acquire jurisdiction over the subject matter and no pleading is considered as filed. Hence, the prescriptive period continues to run.
WHAT IS A CAUSE OF ACTION AND WHAT ARE ITS ELEMENTS?
A cause of action is the act or omission by which a party violates the right of another. Its essential elements are:
(1) The legal right of the plaintiff;
(2) Correlative obligation of the defendant, and;
(3) Act or omission of the defendant in violation of the plaintiff’s legal right. DIFFERENTIATE BETWEEN A CAUSE OF ACTION AND A RIGHT OF ACTION.
A right of action is a remedial right belonging to a person which depends on substantive law.
A cause of action is a formal statement of the operative facts that give rise to such remedial rights – it is governed by the laws on procedure. WHAT ARE THE RULES ON JOINDER OF CAUSES OF ACTION?
(1) The rules on joinder of parties must be observed;
(2) Special civil actions or actions governed by special rules are not covered; (3) In case of different venues or
jurisdictions, the joinder may be made in the RTC provided it has jurisdiction over one of the causes of action and the venue lies therein;
(4) When all the causes of action are for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. WHAT IS THE EFFECT OF A MISJOINDER OF CAUSES OF ACTION?
It is not a ground for dismissal but the causes of action may be severed and proceeded with separately, either upon motion or motu proprio. If there is no objection to the misjoinder, they may be adjudicated together.
WHO MAY BE PARTIES TO A CIVIL ACTION? Natural or juridical persons, or entities authorized by law (corporations by estoppel but only to be sued).
WHEN MAY ASSOCIATIONS WITHOUT
JURIDICAL PERSONALITY BE SUED WITHOUT MAKING ALL THE MEMBERS PARTIES TO THE SUIT?
(1) When they are so numerous that it is impracticable to name them all;
(2) When the suit is against a corporation by estoppel.
WHEN MAY THE STATE BE SUED?
(1) When it enters into a private contract; (2) When it enters into a business operation
unless it does so as a necessary incident of its governmental function;
(3) When the state sues a private party, unless to resist a claim;
(4) When the state fails to abide by what the law or contract requires.
WHEN IS A SUIT AGAINST THE STATE? (1) When the suit is against the Republic in
name;
(2) When the suit is against a government office or agency without juridical personality.
WHO IS A REAL PARTY IN INTEREST? He is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. As a general rule, every action must be prosecuted or defended in the name of the real party in interest.
Ex. when an agent sues in behalf of the principal or is sued as a representative of the principal, the principal must be made a party to the suit. WHAT IS A PERMISSIVE JOINDER OF PARTIES AND WHEN MAY IT BE MADE? It is where a right to relief arising from the same transaction exists in the plaintiffs or against the defendants to be joined.
The requisites are:
(1) Right to relief in respect to or arising out of the same transaction or series of transactions, and;
(2) Common question of law or fact in the action.
DISTINGUISH BETWEEN INDISPENSABLE AND NECESSARY PARTIES.
Indispensable parties are parties in interest without whom no final determination of an action can be had. His interest in the subject matter and the relief sought are so inextricably intertwined with the other parties’ that his legal presence as a party to the proceeding is an absolute necessity. Failure to join an indispensable party will prevent the court from exercising judicial power.
A necessary party is one whose interest in the controversy or subject matter is distinct and divisible from the interest to the other parties and will not necessarily be prejudiced by a judgment. He should be joined whenever possible because his presence would permit complete relief or a complete determination of the controversy. WHAT HAPPENS WHEN THE PLEADER FAILS TO JOIN A NECESSARY PARTY?
(1) The pleader must set forth the party’s name and the reason for the omission; (2) The court may order the inclusion of the
omitted party if it finds the reason to be unmeritorious provided jurisdiction over his person may be obtained;
(3) Failure to comply with the order of inclusion, without justifiable cause, shall be a waiver of the claim against such party;
(4) The non-inclusion of the necessary party does not prevent the court from
proceeding with the action, and the judgment rendered shall be without prejudice to the rights of the necessary party.
WHAT IS THE REMEDY AGAINST AN UNWILLING CO-PLAINTIFF?
He may be made a defendant and the reason therefor shall be stated in the complaint. WHAT IS THE EFFECT OF MISJOINDER OR NON-JOINDER OF PARTIES?
Neither is a ground for a dismissal of an action. The parties may be dropped or added by order of the court upon motion or motu proprio at any stage of the action and on terms that are just. A
claim against a misjoined party may be severed and proceeded with separately.
WHAT ARE THE REQUISITES OF A CLASS SUIT?
(1) The subject matter of the controversy is one of common or general interest to many persons, and;
(2) The interested person are so numerous that it is impracticable to bring them all before the court.
WHAT ARE ALTERNATIVE DEFENDANTS? When the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.
Ex: An action against a principal and an agent in the alternative – if the agency is proved then the principal will be bound; if not, the agent will be bound.
WHAT IS THE RULE WHEN THE NAME OR IDENTITY OF A DEFENDANT IS UNKNOWN? He may be sued as the unknown owner, heir, devisee, etc. and when his identity is discovered, the pleading must be amended.
WHAT IS THE RULE WHEN AN ENTITY WITHOUT JURIDICAL PERSONALITY IS SUED?
When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are commonly known.
In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed.
The service of summons may be effected upon all by serving upon any one or on the person in charge of the office maintained under such name. WHAT ARE THE RULES AND WHAT IS THE DUTY OF COUNSEL WHEN A PARTY DIES AND THE CLAIM IS NOT EXTINGUISHED?
(1) Counsel must inform the court within 30 days after the death and give the name and addresses of his legal representative. Failure to do so is a ground for disciplinary action;
(2) The heirs may be allowed to substitute for the deceased;
(3) The court shall order the legal representatives to appear and be substituted within 30 days from notice; (4) If no legal representative appears, the
adverse party may be ordered to procure the appointment of one and the court charges may be recovered as costs. WHEN DOES AN ACTION SURVIVE; WHEN IS IT EXTINGUISHED?
If the wrong complained of affects primarily property and property rights and the injuries to the person are merely incidental, the action survives. If the injury complained of is the primary cause of action, then the action does not survive.
OTHER RULES AS TO DEATH OF THE PARTY: • If the court is informed of the death but
no substitution is made and the proceeding continue, the resulting
judgment is void because the court never acquired jurisdiction over the substitute. • If there is no notice of death and the court
has no knowledge thereof, any subsequent judgment will be valid. OTHERS:
• Public officer - When a public officer who was a party to an action in his official capacity ceases to hold office pending the action, the same may be continued against his successor if within 30 days after assumption of office, the court is satisfied that (1) there is substantial need for continuing the action and (2) that the successor adopts the action of his predecessor.
• Incompetent – If a party becomes incompetent, the action may be continued by or against him assisted by his legal guardian.
• Transfer of interest – In case of transfer of interest, the action may be continued by or against the original party unless the court, upon motion, directs the person to whom the interest has been transferred to be substituted.
• Contractual money claims – When the action is for recovery of money arising from a contract and the defendant dies before final judgment the action shall not be dismissed but shall continue until entry of judgment. A favorable judgment shall be enforced against the estate of the deceased.
If the defendant dies before the action was filed, the claim must be filed with a probate court.
If the money claim arises not out of contract (quasi-delict), the claim may be filed against the executor.
• Indigent party – A party may be exempted from payment of docket fees, other fees, and stenographic notes, if the court is satisfied, upon his ex parte application, that he has no money or property sufficient for food, shelter, and basic necessities. The fees shall constitute a lien on any favorable judgment.
The adverse party may contest the order granting the exemption and if it found that the person has sufficient property, the proper fees shall be imposed and he may even be sanctioned with dismissal of the complaint.
• Notice to the SolGen – The court may require the appearance of the SolGen in any case involving the validity of any law, treaty, etc.
VENUE IN CIVIL CASES IS SUBJECT TO STIPULATION – the parties can validly agree in writing before the filing of the action on the exclusive venue thereof and it is only when there is no stipulation that the following rules will apply. Remember that stipulations as to venue must be clear and categorical as to the court with
jurisdiction and not merely permissive. WHAT IS THE VENUE OF REAL ACTIONS? Actions affecting title to or possession of real property, or interest therein, shall be tried in the court which has jurisdiction over the area where the real property of a portion thereof is situated. In case of forcible entry or unlawful detainer actions, the action shall be tried in the municipal trial court.
WHAT IS THE VENUE OF PERSONAL ACTIONS?
Personal actions may be tried where the plaintiff or any of the principal plaintiff or the defendant or any of the principal defendants resides or in case of a non-resident defendant, where he may be found. The plaintiff has the right to choose from the above venues.
IMPT: An action for the cancellation of a REM is a personal action. It is primarily to compel the
mortgagee to accept payment of the debt. There is no issue as to the lots.
WHAT IS THE VENUE OF ACTIONS AGAINST NON-RESIDENTS?
If the defendant does not reside AND is not found in the Philippines, and the action affects the personal status of the plaintiff or any property of said defendant located in the Philippines, the action may be tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. This is not applicable to actions in personam, where jurisdiction over the person must be acquired. What are covered here are judgments against the res or the property or status of the non-resident who cannot be found.
WHAT ARE PLEADINGS AND WHAT ARE THE PLEADINGS ALLOWED?
Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. The pleadings containing claims are complaints, counterclaims, cross-claims, third (fourth, etc.) party complaints, or complaints in intervention. The defenses are alleged in the answer, which in turn may be responded to by a reply.
DEFINITIONS:
COMPLAINT – pleading alleging the plaintiff’s cause or causes of action. The names and
residences of the defendant must be stated in the complaint.
• The complaint must contain only ultimate facts and not evidentiary matters or conclusions of law.
• Exhibits cannot take the place of the allegations.
• The occurrence of a condition precedent must be alleged and proved.
• The cause of action is determined not by the relief sought but by the relief available under the law.
ANSWER – pleading in which a defending party sets forth his defenses.
WHAT ARE THE KINDS OF DEFENSES? Negative – specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.
Affirmative – allegation of a new matter, which hypothetically admits the allegations of the claimant but constitutes a bar to the claim. Examples are fraud, prescription, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, etc. HOW MUST A DENIAL OF THE ALLEGATIONS IN THE COMPLAINT BE MADE?
Specifically - allegations not specifically denied, other than as to the amount of unliquidated damages are deemed admitted.
Specific denials are made in the following manners:
(1) The defendant must specify each material allegation he does not admit and set forth the matters to support his denial.
(2) Where only part of an averment is to be denied, the defendant shall specify what is true and deny the remainder.
(3) Where a defendant is without sufficient knowledge to form a belief as to the truth of an averment, he may state so and this shall be a specific denial.
COUNTERCLAIM – any claim which a defending party may have against an opposing party. ***A counterclaim is not an answer, nor is it part of the answer. It is a distinct cause of action which must be answered by the adverse party within 10 days from service.
COMPULSORY COUNTERCLAIM – one that is: (1) cognizable by the regular courts or justice
(a labor claim cognizable by the NLRC cannot be the subject of a counterclaim) ; (2) arises out of or is connected with the
transaction or occurrence constituting the subject matter of the opposing party’s claim (if it does not, it is merely a permissive counterclaim);
(3) does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. WHEN IS A COUNTERCLAIM COMPULSORY? When:
(1) It is logically related to the claim being asserted by the opposing party and; (2) Separate trials of the claim and the
counterclaim would involve a duplication
of time and effort by the parties and the courts.
CROSS CLAIM – any claim by one party against a co-party which MUST arise out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.
REPLY – it is filed in response to an answer to deny new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If no reply is filed, all the matters in the answer are deemed controverted. Remember, a reply is in response to an answer and not to a counterclaim or cross-claim.
THIRD (FOURTH, ETC.)-PARTY COMPLAINT – a claim that a defending party may, with leave of court, file against a person not a party to the action for relief in respect of his opponent’s claim.
BRINGING NEW PARTIES, WHAT AND HOW. When the presence of parties is required for granting of complete relief (necessary parties) in the determination of a counter-claim or cross claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.
This is different from a third-party complaint because in this case, one of the parties is already impleaded and another party is necessary, not for a new cause of action, but for a more thorough adjudication of the case.
WHAT ARE ALTERNATIVE CAUSES OF ACTION / DEFENSES?
These are when a party has separate causes of action or defenses and such are set forth in the pleading alternatively.
Ex: Alternative causes of action could asserted when the plaintiff does not know the complete facts and instead sets forth several scenarios, in the alternative, each giving him a different cause of action – Say Fact 1 is established; the plaintiff can couple it with Hypothesis 1 or 2 or 3, and in each case come up with a different cause of action.
Alternative defenses would be that the defendant was induced to enter into the contract by fraud
but even if the contract were perfectly valid, the action to enforce it had already prescribed. WHAT IS THE FIRST THING THAT A CORPORATION (OR ANY OTHER PARTY) MUST SET FORTH IN A PLEADING? That it has the capacity to sue or be sued. WHAT MAY A DEFENDANT DO IN CASE HE WISHES TO CONTEST THE PLAINTIFF’S CAPACITY TO SUE?
File a motion to dismiss or set it up as an affirmative defense.
HOW MUST FRAUD, MISTAKE, AND CONDITIONS OF THE MIND BE ALLEGED? Fraud and mistake must be alleged with
particularity – the acts constituting such must be set forth. Malice, intent, and other conditions of the mind may be averred generally.
HOW ARE ACTIONABLE DOCUMENTS PLEADED?
(1) The substance of the document must be set forth in the pleading;
(2) The original or a copy of the document shall be:
a. Attached to the pleading as an exhibit OR
b. Said copy shall be set forth in the pleading
Actionable documents are those on which a cause of action (a PN) or a defense (a receipt
acknowledging payment) may be based. HOW ARE ACTIONABLE DOCUMENTS CONTESTED?
The genuineness (not fake) and due execution (executed with authority) of an actionable document properly pleaded is deemed admitted unless the adverse party:
(1) Specifically denies them; and
(2) Sets forth what he claims to be the facts; (3) Under oath.
a. The requirement of the oath does not apply when:
i. The adverse party (against whom the instrument is being asserted) is not a party to the instrument OR
ii. Compliance with an order for inspection of the original instrument is refused.
WHAT IS THE EFFECT OF A FAILURE TO PLEAD DEFENSES AND OBJECTIONS? Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived except the following:
(1) Lack of jurisdiction over the SM; (2) Prescription;
(3) Lis pendens; (4) Res judicata.
This waiver is revocable and may be corrected through an amendment of the answer with leave of court.
WHAT IS THE EFFECT OF A FAILURE TO SET UP A COMPULSORY COUNTERCLAIM? It shall be barred. The rationale is that the counterclaim could have best been adjudicated during the proceedings and the courts will not permit subsequent filing of suit due to the party’s failure to set it up.
WHAT IS THE EFFECT OF A FAILURE TO SET UP A CROSS-CLAIM?
It shall be barred. Same rationale as the counterclaim.
IMPT: A COUNTERCLAIM OR A CROSS-CLAIM THAT EXISTS AT THE TIME THE ANSWER IS FILED MUST BE CONTAINED THEREIN. OTHERWISE, IT SHALL BE BARRED. THIS IS A COMPULSORY COUNTERCLAIM. Unless, of course, the court allows the answer to be amended on the grounds of oversight,
inadvertence, or excusable neglect (see page 9). WHAT IF THE COUNTERCLAIM OR CROSS-CLAIM MATURES AFTER THE PLEADING OR OTHER ANSWER IS FILED?
The pleader may file a supplemental pleading containing the counterclaim or cross-claim, with leave of court. This is not a compulsory pleading. WHEN IS AN AMENDED ANSWER PROPER; A SUPPLEMENTAL ANSWER?
An amended answer is proper if at the time the original answer was filed, the counterclaim or cross-claim ALREADY EXISTED but was not set up due to oversight, inadvertence, or excusable negligence.
A supplemental answer is proper if the
counterclaim or cross-claim MATURES AFTER the answer is filed. This after acquired counterclaim is not compulsory.
In both cases, leave of court is necessary. LET’S TALK ABOUT DEFAULT. HOW IS AN ORDER OF DEFAULT MADE?
(1) The defending party fails to answer within the time allowed;
(2) The plaintiff files a motion to have the defendant declared in default;
(3) The court renders judgment according to the complaint or requires the submission of evidence (may be to the clerk of court). WHAT IS THE EFFECT OF AN ORDER OF
DEFAULT?
The party in default is ENTITLED TO NOTICE but may not participate in the trial.
HOW CAN RELIEF FROM AN ORDER OF DEFAULT BE OBTAINED?
The party declared in default may: (1) after notice;
(2) before judgment;
(3) file a motion under oath to set aside the order upon showing that:
a. his failure to answer was due to FAME (fraud, accident, mistake, excusable negligence) AND b. he has a meritorious defense. WHAT IS THE EFFECT OF A PARTIAL DEFAULT?
When there is a common cause of action against several defendants and only a number of them answer, such answers shall serve as such for those who failued to answer.
What is the extent of relief to be awarded in a judgment by default?
(1) It shall not exceed the amount or be different in kind from that prayed for. (2) It shall not award unliquidated damages
(damages must be proved by evidence). WHEN CAN THERE BE NO JUDGMENT BY DEFAULT?
In actions for annulment and legal separation, to prevent collusion.
HOW ARE PLEADINGS AMENDED? By adding or striking out:
(1) an allegation, or;
(2) the name of any party, or;
(3) by correcting a mistake in the name of a party, or;
(4) a mistaken or inadequate allegation or description
(5) so that the actual merits of the case may be determined without regard to
technicalities and in a speedy and cheap manner.
WHEN IS AN AMENDMENT A MATTER OF RIGHT?
An amendment is a matter of right: (1) only once;
(2) at any time before a responsive pleading (i.e. an answer to a complaint; reply to an answer) is served
a. in case it is a reply that will be amended, within ten days after its service
IMPT: A motion to dismiss is not a responsive pleading. If the only reply to a complaint is a motion to dismiss, the plaintiff may still amend his complaint once as a matter of right (provided the complaint was not dismissed and the dismissal final).
PROBLEM: A COMPLAINT IS PROPERLY AMENDED, ALLEGING NEW CAUSES OF ACTION. MUST SUMMONS BE SERVED AGAIN ON THE DEFENDANT?
It depends.
If the defendant has already appeared in court, it is sufficient that a copy of the amended complaint be served upon him.
If the defendant has not yet appeared in court, another summons must be served with the amended complaint; otherwise, the court has no jurisdiction to render judgment on the new causes of action.
WHAT IS THE RULE WITH REGARD TO SUBSTANTIAL AMENDMENTS?
If the amendment is only the first one and is made before the responsive pleading is filed, it is a matter or right.
Otherwise, leave of court is necessary, as well as notice to the other party and opportunity to be heard.
HOW ABOUT FORMAL AMENDMENTS? Clerical and typographical errors may be: (1) Summarily corrected by the court;
(2) At any stage of the proceedings; (3) Provided no damage is caused to the
adverse party.
PROBLEM: SEVERAL ISSUES WERE NOT RAISED BY THE PLEADINGS BUT WERE TRIED WITH THE CONSENT OF THE PARTIES. WHAT SHALL BE DONE?
Upon motion of any party, even after judgment, the pleadings may be amended to conform to the evidence by raising the issued. Failure to amend will not affect the result of the trial. So bakit pa? PROBLEM: EVIDENCE IS PRESENTED AT THE TRIAL AND OBJECTED TO BECAUSE THE ISSUE IT SEEKS TO RESOLVE IS NOT WITHIN THOSE RAISED IN THE PLEADINGS. WHAT SHALL BE DONE?
The court may allow amendment of the pleadings if the presentation of the evidence will serve the ends of substantial justice.
WHEN ARE SUPPLEMENTAL PLEADINGS PROPER?
(1) Upon motion; (2) With notice; (3) Upon just terms;
(4) A party seeks to set forth occurrences which happened after the pleading sought to be supplemented.
DISTINGUISH BETWEEN AMENDED AND SUPPLEMENTAL PLEADINGS.
Amended pleadings – ALLEGE FACTS WHICH OCCURRED PRIOR to the filing of the original pleading but which were not alleged because of oversight, inadvertence, or subsequent discovery. Supplemental pleadings – ALLEGE FACTS WHICH OCCURRED AFTER the filing of the original pleading.
WHAT DOES AN AMENDED PLEADING LOOK LIKE?
The amended pleading must indicate the amendments by appropriate marks. This is to enable the court and the other party to know which are the amendments without having to search for them.
WHAT IS THE EFFECT OF AN AMENDED PLEADING?
It supersedes the pleading amended but:
(1) admissions in superseded may be received in evidence against the pleader and;
(2) claims or defenses in the superseded pleading not incorporated in the amended pleading are deemed waived.
So always make sure not to omit such claims or defenses.
PERIODS WITHIN WHICH TO FILE RESPONSIVE PLEADINGS:
Answer to complaint 15 days from receipt of summons or 30 days from receipt of summons if foreign corp. and summons served on gov’t officer
Answer to amended
complaint 10 days from service of copy if matter of right
15 days from notice admitting if not matter of right Answer to
counterclaim or cross-claim
10 days from service of copy
Answer to third
party complaint Just like complaint (15/30) Answer to
supplementary complaint
10 days from notice of order admitting the same
Reply to answer 10 days from
pleading responded to
WHEN MUST THE ANSWER TO THE COMPLAINT BE FILED?
Generally, 15 days after service of summons unless otherwise provided by the court.
In case the defendant is a foreign private juridical entity and the summons is served on:
a. the resident agent – 15 days
b. the government official designated to receive the same – 30 days from receipt of home office
(1) foreign corporations – SEC; foreign banks – BSP; foreign insurance companies – Insurance Commissioner
WHEN MUST AN AMENDED COMPLAINT (COUNTERCLAIM, CROSS-CLAIM, ETC.) BE ANSWERED?
(1) If it is filed as a matter of right (see page 9) – 15 days from service of copy;
(2) If its filing is not a matter of right (see page 9) – 10 days from notice of order admitting the same (in this case, the amendment requires notice and hearing)
WHEN MUST A COUNTERCLAIM OR CROSS-CLAIM BE ANSWERED?
10 days from service.
WHEN MUST A THIRD (FOURTH, ETC.)-PARTY COMPLAINT BE ANSWERED?
Same as an answer to a regular complaint – 15 days from service of summons unless otherwise provided by the court (30 if foreign juridical person and summons served on gov’t officer). WHEN MUST A REPLY BE FILED?
10 days from service of the pleading responded to.
WHEN MUST AN ANSWER TO A
SUPPLEMENTAL COMPLAINT BE FILED? 10 days from notice of the order admitting the same, unless a different period is ordered by the court. If the original complaint has been answered and no answer to the supplemental complaint is filed, the original answer shall serve as the answer to the supplementary complaint.
CAN THERE BE EXTENSIONS GIVEN TO THE PERIODS WITHIN WHICH TO FILE
PLEADINGS?
Yes. Upon motion and on such terms as may be just, the court may extend the time to plead or even allow a pleading to be filed after expiration. IMPT: ONE OF JUSTICE SABIO’S FAVORITES: The motion for extension must be filed before the expiration of the period. If it is filed after, there is nothing more to extend.
Also, Justice Sabio stresses that counsel should always be prepared for a denial of the motion for extension, or any motion for that matter, and have the appropriate pleading on hand.
WHAT IS A MOTION FOR A BILL OF PARTICULARS?
It is a motion requesting for a definite statement of any matter which is not averred with sufficient
particularity to enable him to properly prepare his responsive pleading.
REMEMBER, A BILL OF PARTICULARS IS THE DOCUMENT CLARIFYING THE PLEADING WHICH WAS THE SUBJECT OF THE MOTION FOR A BILL OF PARTICULARS.
Ex: A complaint was found to be vague. The defendant files a motion for a bill of particulars. If the court grants the motion, the claimant then submits the bill of particulars clarifying the indefinite points.
AT WHAT POINT IN TIME SHOULD A MOTION FOR A BILL OF PARTICULARS BE FILED? It should be filed within the period allowed for the filing of the responsive pleading.
WHAT HAPPENS AFTER THE COURT GRANTS THE MOTION FOR A BILL OF PARTICULARS? There must be compliance (submission of the bill) within 10 days from notice of the court’s order. WHAT IF THERE IS INSUFFICIENT OR NO COMPLIANCE TO THE ORDER FOR THE
SUBMISSION OF THE BILL OF PARTICULARS? The court may order the striking out of the
pleading or the specific vague portions or even dismiss the complaint.
WHAT HAPPENS WHEN THE BILL OF
PARTICULARS IS SERVED OR THE MOTION IS DENIED?
After it is filed, and the bill is served or the motion is denied, the moving party may file his
responsive pleading within the period to which he was entitled at the time the motion was filed. This period shall not be less than five days.
DISTINGUISH BETWEEN FILING AND SERVICE.
Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper concerned.
Service may be made upon counsel or the party unless service upon the party is ordered by the court. One counsel representing several parties is entitled only to one copy served by the opposite side.
WHEN CAN SERVICE UPON A PARTY HIMSELF BE ORDERED?
(2) When the party is ordered to show cause why he should not be punished for contempt. WHAT IS THE MANNER OF FILING?
(1) personally, by presenting original copies to the clerk of court
• the clerk shall indicate on the pleading the date and hour of filing
(2) by registered mail
1) the post office stamp shall be considered as the date of the filing – the envelope must be attached to the rollo.
CAN THE FILER USE PRIVATE LETTER FORWARDERS SUCH AS DHL, FEDEX, ETC? Yes. However, the downside is that the pleadings are considered filed only when actually received by the clerk of court.
SO WHAT DO YOU DO FIRST, FILE OR SERVE? It depends.
Judgments, resolutions and orders of the courts must first be filed with the clerk of court before they are served upon the parties. Filing them with the clerk is promulgation unlike in criminal cases where the reading of the judgment serves as promulgation. (I suppose it’s the judge that files them.)
Pleadings subsequent to the complaint (because you don’t serve the complaint on the defendant; rather, it is attached to the summons) and written motions must first be served upon the parties before they are filed in court.
HOW ARE PLEADINGS AND PAPERS SERVED? Service may either be:
(1) personal
a. delivering the papers to the party or his counsel
b. leaving it in his office with his clerk or with a person having charge thereof c. as a last resort, by leaving it at the
party’s or counsel’s residence i. between 8am and 6pm ii. with a person of sufficient age
and discretion RESIDING THEREIN
(2) by registered mail
a. depositing a copy in the post office b. in a sealed envelope
c. plainly addressed to the party or his counsel at his office or residence d. with instructions to the postmaster to
return to sender after 10 days if undelivered
(3) by ordinary mail if no registry service is available in the locality of the sender or addressee.
WHAT IF PERSONAL OR SERVICE BY MAIL OF PLEADINGS AND PAPERS CANNOT BE MADE? If personal service or service by mail cannot be made, service may be made by:
(1) delivering the copy to the clerk of court (2) with proof of failure of both personal service
and service by mail
The service shall be complete at the time of such delivery.
HOW ARE JUDGMENTS, FINAL ORDERS, AND RESOLUTIONS SERVED?
Either personally or be registered mail. But if a party summoned by publication fails to appear in the action, service may also be by publication. Only final orders are covered here. Interlocutory orders are served in the same manner as pleadings and papers.
WHY IS ORDINARY MAIL NOT AVAILABLE AS A MODE OF SERVICE OF FINAL ORDERS OR JUDGMENTS?
These are appealable and it is necessary that the appeal period may be computed. Actual receipt must be known.
WHEN IS SERVICE COMPLETE? (1) Personal – upon actual delivery (2) Registered mail –
a) upon actual receipt by the addressee as shown by the registry return card (a certification by the postmaster and the delivery book can be substituted) or b) after 5 days from the date he received the
first notice of the postmaster, whichever is earlier.
(3) Ordinary mail – upon the expiration of 10 days after mailing, unless otherwise provided by the court.
BETWEEN THE DENIAL OF RECEIPT BY A LAWYER AND A CERTIFICATION BY THE POSTMASTER OF THE SENDING OF THE
NOTICE, WHAT SHOULD BE GIVEN CREDENCE?
The postmaster, of course. There is a presumption that an official duty was regularly performed. WHAT IS THE PREFERRED MODE OF SERVICE?
Personal service , whenever practicable shall be the mode.
Except with respect to papers emanating from the court (judgments, orders, resolutions) a resort to other modes must be accompanied by a written explanation why service was not done personally. If there is no such explanation, the court may consider the paper or pleading as not filed. Distance from the court or from the adverse party is a good reason.
HOW IS FILING PROVED?
The filing of a pleading or a paper shall be proved by:
(1) its existence in the rollo; (2) If filed personally
a. by the written or stamped
acknowledgement of its filing by the clerk on a copy;
(3) if by registered mail
a. by the registry receipt AND
b. an affidavit of the mailer containing i. a full statement of the date
and place of the deposit in the post office in a sealed
envelope, addressed to the court, with postage prepaid, and with instructions to return to sender
HOW IS SERVICE PROVED?
(1) By a written admission of the party served; (2) If personal service:
a. By the official return of the server; b. By the affidavit of the server,
containing a full statement of the date, place and manner of serving; (3) If by registered mail:
a. by the registry receipt AND
b. an affidavit of the mailer containing 1. a full statement of the date and place of the deposit in the post office in a sealed envelope,
addressed to the court, with postage prepaid, and with instructions to return to sender (4) If by ordinary mail
a. An affidavit of the mailer that there is no registry service available in either or both localities
DISCUSS THE RULE REGARDING A NOTICE OF LIS PENDENS.
Where the action affects the title or the right of possession of real property, the plaintiff or the defendant may record in the register of deeds a notice of the pendency of the action.
The notice shall contain: a. the names of the parties;
b. the object of the action or defense; c. a description of the property affected.
The notice binds third parties only upon its filing. It may be cancelled upon order of the court if: a. it was only for the purpose of molesting the
adverse party or
b. it is not necessary to protect the rights of the parties.
WHO ISSUES SUMMONS? WHEN? WHAT ARE ITS CONTENTS?
The clerk of court issues summons upon: a. the filing of the complaint, and; b. the payment of the requisite legal fees The summons shall be:
a. directed to the defendant, b. signed by the clerk under seal, c. and contain:
i. the name of the court
ii. the names of the parties to the action; iii. a direction that the defendant answer
within the proper period;
iv. a notice if there is no answer, plaintiff will obtain judgment by default and may be granted the relief applied for d. attached to the summons shall be:
ii. an order for appointment of a guardian ad litem, if any.
WHAT IS THE IMPORTANCE OF SERVICE OF SUMMONS?
It is the manner by which jurisdiction over the person of the defendant is acquired. A judgment rendered without service of summons is void unless jurisdiction has been acquired by voluntary appearance of the defendant.
HOW IS JURISDICTION ACQUIRED OVER ADDITIONAL DEFENDANTS?
Summons must be served upon the new party as if he were an original party defendant (see page 7 - Bringing New Parties).
PROBLEM: A COMPLAINT IS PROPERLY AMENDED, ALLEGING NEW CAUSES OF ACTION. MUST SUMMONS BE SERVED AGAIN ON THE DEFENDANT?
It depends.
If the defendant has already appeared in court, even if just to file a motion to dismiss, it is sufficient that a copy of the amended complaint be served upon him.
If the defendant has not yet appeared in court, another summons must be served with the amended complaint; otherwise, the court has no jurisdiction to render judgment on the new causes of action.
WHO MUST SERVE THE SUMMONS? a. The sheriff;
b. His deputy;
c. Any suitable person authorized by the court, for justifiable reasons.
Service by any other person is INVALID.
WHAT IS A RETURN OF SUMMONS? WHAT IS ITS PURPOSE?
When service has been completed, the server shall, within 5 days:
a. serve a copy of the return personally or by registered mail to the plaintiff’s counsel and b. return the summons to the clerk who issued
it, accompanied with proof of service.
The return is important so the plaintiff may know when to file an motion to have the defendant declared in default.
WHAT IS AN ALIAS SUMMONS? An alias summons is issued when:
a) the summons has been lost, or;
b) a summons is returned without being served 1. in this case, the server shall, within 5
days, serve a copy on plaintiff’s counsel, stating the reasons for failure
HOW IS SUMMONS SERVED?
1) As much as possible, by PERSONAL SERVICE, which means:
a. Actual delivery, or;
b. Tender, in case the defendant refuses to receive the summons
2) SUBSTITUTED SERVICE, if for justifiable causes, the defendant cannot be served personally. How?:
a. Leaving copies of the summons at the defendant’s residence with:
i. some person of suitable age ii. and discretion
iii. residing therein
b. leaving copies at the defendant’s office or regular place of business with:
i. some competent person ii. in charge of the office WHAT ARE THE REQUISITES OF SUBSTITUTED SERVICE?
(1) The defendant cannot be served personally within a reasonable time; (2) The impossibility should be shown by
stating the efforts made to serve the summons personally and that the efforts failed. This is shown in a proof of service. HOW IS SUMMONS IN AN ACTION IN
PERSONAM SERVED ON A RESIDENT TEMPORARILY OUTSIDE OF THE PHILIPPINES?
1. By substituted service, or; 2. By extraterritorial service.
Substituted service is the normal means; extraterritorial service is extraordinary. HOW IS SERVICE OF SUMMONS MADE ON ENTITIES WITHOUT JURIDICAL
PERSONALITY (CORPORATIONS BY ESTOPPEL)?
All the persons can be served by:
b. Serving upon the person in charge of the office maintained in such name.
HOW IS SERVICE OF SUMMONS MADE ON PRISONERS?
Summons shall be served by the officer managing the penal institution; he is deemed deputized as a special sheriff for the purpose.
HOW IS SERVICE OF SUMMONS MADE ON MINORS AND INCOMPETENTS?
1. By service on him personally, and; 2. By service on his guardian or his guardian
ad litem.
3. In case of a minor, service may also be on one of his parents.
HOW IS SERVICE OF SUMMONS MADE DOMESTIC PRIVATE JURIDICAL ENTITIES? Service must be made on its:
a. President; b. Managing partner; c. General Manager; d. Corporate Secretary; e. Treasurer; f. In-house Counsel
Service on any other officer is invalid.
HOW IS SERVICE OF SUMMONS MADE ON FOREIGN PRIVATE JURIDICAL ENTITIES WHICH HAVE TRANSACTED BUSINESS IN THE PHILIPPINES?
Service must be made on: 1. its resident agent, or;
2. on any of its officers or agents within the Philippines, or;
3. with the government officer designated by law.
WHAT DOES IT MEAN TO BE “DOING BUSINESS”?
There must be a continuity of conduct and intention to establish a continuous business. PROBLEM: X CORPORATION, A FOREIGN JURIDICAL ENTITY, HAS NO LICENSE TO DO BUSINESS IN THE PHILIPPINES BUT ENTERS INTO ONE TRANSACTION IN THE
PHILIPPINES. CAN X CORPORATION BE SUED?
No. In order to be sued, the foreign corporation must either have a license to do business in the
Philippines or must be engaged in business in the Philippines.
SO THE RULES WITH REGARD TO FOREIGN CORPORATIONS ARE:
Doing business with license – may sue, may be sued
Doing business without license – may not sue, may be sued
Not doing business, with license – may sue, may be sued (I think)
Not doing business, without license – may not sue, may not be sued
HOW IS SERVICE OF SUMMONS MADE ON PUBLIC CORPORATIONS?
If the defendant is the Republic, upon the Solicitor General.
If the defendant is a political subdivision, on its executive head or such other officers as the court may direct.
HOW IS SERVICE OF SUMMONS MADE ON DEFENDANTS WHOSE IDENTITY OR
WHEREABOUTS ARE UNKNOWN AND CANNOT BE ASCERTAINED WITH DILIGENT INQUIRY? In this case, service may, by leave of court, be effected by publication in a newspaper of general circulation.
HOW IS SERVICE OF SUMMONS MADE ON DEFENDANTS WHO DO NOT RESIDE AND CANNOT BE FOUND IN THE PHILIPPINES or
WHEN IS EXTRATERRITORIAL SERVICE PROPER?
1. Service may be effected extraterritorially: a. By personal service, or;
b. By publication in a newspaper of general circulation
• In this case, a copy of the summons and the order for publication shall be sent to the last known address of the defendant
c. In any other manner which the court may deem sufficient.
2. When the defendant does not reside AND is not found in the Philippines, and;
3. The action is in rem or quasi in rem or in other words:
a. Affects the personal status of the plaintiff, or;
b. Relates to property:
i. within the Philippines in which the defendant has an interest, OR;
ii. in which the relief demanded consists in excluding the defendant from any interest therein, OR
iii. belonging to the defendant within the Philippines, which has been attached
The defendant shall have at least 60 days after notice to answer.
WHAT IS THE PRIMARY PURPOSE OF
EXTRATERRITORIAL SERVICE OF SUMMONS? It is only for complying with the requirement of fair play. Jurisdiction over the person is not essential in actions in rem or quasi in rem. What constitutes proof of service of summons? Proof of service shall:
(1) be in writing by the server;
(2) set forth the manner, place, and date of service;
(3) specify the name of the person who received the summons;
(4) specify any papers which have been served with the process;
(5) be sworn to when made by a person other than a sheriff or his deputy (because such duties are covered by their oath of office). But if the service was made by publication, proof shall constitute:
1. the affidavit of the printer, editor, etc.; 2. a copy of the publication;
3. an affidavit showing the deposit in the post office of:
• a copy of the summons and; • order for publication
NOTE: As discussed under jurisdiction, voluntary appearance of the defendant can take the place of service of summons to vest the court with
jurisdiction over his person.
Appearance can be the filing of an answer, the filing of a motion for extension, but not the filing of a motion to dismiss. A defendant who files a
motion to dismiss for any grounds is not considered as having voluntarily submitted himself to the court’s jurisdiction.
WHAT IS A MOTION? WHAT IS ITS FORM? WHAT ARE ITS CONTENTS?
A motion is an application for relief other than by a pleading.
It must be in writing unless it is made in open court or in the course of a hearing or trial as such are made in the presence of the adverse party who has opportunity to object.
It shall:
(1) State the relief sought, and;
(2) the grounds on which it is based, and; (3) if necessary, be accompanied by supporting
affidavits and papers.
WHEN ARE SUPPORTING AFFIDAVITS NECESSARY?
(1) When so required by the rules;
(2) If the facts alleged in the motion are not of judicial notice;
(3) A motion to set aside a judgment of default must be accompanied by an affidavit of merit. WHEN ARE SUPPORTING AFFIDAVITS NOT NECESSARY?
(1) If the ground on which the motion is based appears in the rollo;
(2) A motion to set aside an order of default need not be accompanied by an affidavit of merit if the ground is interruption of the reglementary period by the filing of a motion to dismiss. WHEN SHOULD MOTIONS BE HEARD? Motion day is Friday, in the afternoon; and when Friday is a non-working day, in the afternoon of the next working day.
Except for ex parte motions (which may be acted upon without hearing) all written motions shall be set for hearing.
The hearing date shall be set by the movant and he shall give notice to the affected party in such a manner as to ensure receipt by the latter at least 3 days before the hearing date.
DESCRIBE THE NOTICE.
(2) Specify the time and date of the hearing, which must not be more than 10 days after the filing of the motion (to avoid delay). WHEN MUST NOTICE BE SERVED?
At least three days before the hearing or Tuesday, at the latest:
1. if given by registered mail:
a. actually received by Tuesday or b. the first notice of the
postmaster should be 5 days before Tuesday
2. if given by ordinary mail, mailed 10 days before Tuesday
WHEN CAN THE 3 DAY PERIOD NOT BE FOLLOWED?
a. Urgent motions, such as a motion for postponement due to sudden illness of counsel can have shorter notice;
b. A motion for summary judgment must be served 10 days before the hearing
WHAT ARE SOME EX PARTE MOTIONS? Motions for extension to file pleadings,
applications for writs of preliminary attachment, restraining orders, etc.
WHAT IS THE EFFECT OF THE ABSENCE OF NOTICE OF HEARING TO THE ADVERSE PARTY AND PROOF OF SERVICE? The motion is a mere scrap of paper.
SO THE STEPS IN SETTING A MOTION FOR HEARING ARE (AS FAR AS I CAN FIGURE OUT):
(1) Serve on the affected parties a copy of the motion and notice of hearing (at least 3 days before the hearing date);
(2) File the motion in court and set the hearing date – attaching to the motion proof of service of the motion and notice.
IMPT: A motion attacking a pleading, order, or proceeding must include all motions available and objections not included shall be waived. The Rules discourage the filing of multiple motions.
Objections excluded from this rule are: (1) Lack of jurisdiction over the SM; (2) Prescription;
(3) Lis pendens;
(4) Res judicata.
Ex: A motion to dismiss should include all grounds available at that time.
OTHERS:
• A motion for leave to file a pleading or motion should be accompanied by the motion or pleading sought to be admitted.
WHEN MUST A MOTION TO DISMISS BE FILED AND WHAT ARE THE GROUNDS?
An motion to dismiss must be filed within the time but before filing the answer to the complaint (counterclaim, etc.).
The grounds are [JJVLPSNEUC]:
(a) that the court has no jurisdiction over the person of the defendant;
(b) that the court has no jurisdiction over the subject matter of the claim;
(c) that venue is improperly laid;
(d) that the plaintiff has no legal capacity to sue; (e) that there is another action pending between
the same parties for the same cause; (f) that the cause of action is barred by a prior
judgment or by the statute of limitations; (g) that the pleading asserting the claim states no
cause of action;
(h) that there has been payment, waiver,
abandonment, or other extinguishment of the obligation;
(i) that the claim is unenforceable under the statute of frauds;
(j) that a condition precedent for filing has not been complied with.
WHAT ARE THE REQUISITES OF LIS PENDENS?
(1) the same parties, or at least such as represent the same interest;
(2) the same rights asserted, and the same relief prayed for;
(3) this relief must be founded on the same facts, and the title or essential basis for the relief sought must be the same;
(4) the identity in these particulars should be such that a judgment in one would constitute res judicata.
How do you determine which of the two actions should be dismissed?
The following are things to consider: (1) the date of filing, with the first action
preferred;
(2) whether the action sought to be dismissed was merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal; and
(3) whether the action is the appropriate vehicle for litigating the issues between the parties. WHAT ARE THE REQUISITES OF RES
JUDICATA?
(1) The former judgment or order must be final; (2) It must have been rendered by a court having
jurisdiction over the subject matter and the parties;
(3) It must have been based on the merits; (4) There must be identity of:
a. parties;
b. subject matter, and; c. cause of action
WHAT IS THE TEST OF WHETHER THE COMPLAINT STATES A CAUSE OF ACTION? The test is whether, admitting the facts alleged, the court could render a valid judgment in accordance with the relief sought.
WHAT ARE EXAMPLES OF CONDITIONS PRECEDENT TO THE FILING OF SUITS?
a. failure to avail of barangay conciliation where the same is required
b. lack of earnest efforts to reach a compromise in suits between family members
WHAT ACTIONS IS THE COURT LIMITED TO AFTER HEARING A MOTION TO DISMISS? The court may:
(1) dismiss the action; (2) deny the motion;
(3) order amendment of the pleading. WHAT SHOULD THE MOVANT DO IF THE MOTION TO DISMISS IS DENIED? IF AND AMENDMENT OF THE PLEADING IS
ORDERED?
If the motion is denied – he shall be entitled to the time remaining when he served his motion but not less than 5 days.
If the pleading is ordered amended, the periods in Rule 11 shall apply (15 days if amendment is a matter of right; 10 if not)
WHAT IS THE EFFECT OF AN ORDER OF DISMISSAL?
Res judicata if the grounds for dismissal are: (1) res judicata or prescription;
(2) extinguishment of the obligation; (3) unenforceability;
(4) lis pendens OTHERS:
The grounds for a motion to dismiss may also be pleaded as affirmative defenses.
The dismissal of a complaint upon a motion to dismiss does not prevent the adverse party from prosecuting a counterclaim.
How is an action dismissed by the plaintiff? (1) by filing a NOTICE of dismissal at any time
before service of: a. the answer, OR;
b. a motion for summary judgment. • Upon filing of the notice, the court shall
confirm the dismissal.
• The dismissal is without prejudice except: i. It is stated in the notice that
dismissal is with prejudice; ii. when the notice is filed by a
plaintiff who has once dismissed an action based on the same claim.
(2) By filing a MOTION to dismiss after the service of the answer
• Upon approval of the court and upon terms and conditions deemed proper. • Only the original complaint is dismissed –
any counterclaims survive and may be resolved in the same action or in a separate action.
When may an action dismissed due to the plaintiff’s fault?
(1) The plaintiff fails to appear without justifiable cause on the date of presentation of his evidence;
(2) The plaintiff fails to prosecute his case for an unreasonable length of time;
(3) The plaintiff fails to comply with a court order or the Rules.
• Dismissal is either upon motion of the defendant or motu proprio.
• Dismissal constitutes res judicata unless the court orders otherwise.
WHEN IS PRE-TRIAL CONDUCTED?
After the last pleading is served and filed, it is the duty of the plaintiff to move ex parte that the case be set for pre-trial.
What is the nature and purpose of a pre-trial? Pre-trial is mandatory. The court shall consider: (a) the possibility of an amicable settlement or of
a submission to alternative modes of dispute resolution;
(b) the simplification of the issues;
(c) the necessity or desirability of amending the pleadings;
(d) the possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
(e) the limitation of the number of witnesses; (f) the advisability of a preliminary reference of
issues to a commissioner;
(g) the propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;
(h) the advisability or necessity of suspending the proceedings; and
(i) such other matters as may aid in the prompt disposition of the action.
• It is the duty of the parties and counsel to appear at the pre-trial. Non appearance of a party can be excused only if:
o A valid cause is shown; or
o A representative appears on his behalf fully authorized in writing (special authority) to enter into an amicable settlement, enter into stipulations, etc.
WHAT IS THE EFFECT OF FAILURE TO APPEAR AT PRE-TRIAL?
Failure of plaintiff – dismissal with prejudice, unless otherwise ordered.
Failure of defendant – plaintiff may present evidence ex parte.
WHEN SHOULD A PRE-TRIAL BRIEF BE FILED AND WHAT SHOULD IT CONTAIN?
It should be filed in court and served on the adverse party at least three days before the pre-trial.
It shall contain:
(a) a statement of willingness to enter into amicable settlement;
(b) a summary of admitted facts; (c) the issues to be tried;
(d) the documents to be presented; (e) a manifestation of intention to avail of
discovery procedures or referral to commissioners;
(f) the number and names of witnesses and the substance of their testimonies;
(g) applicable laws and jurisprudence; (h) the available trial dates of counsel.
WHAT ARE THE REQUISITES FOR INTERVENTION?
The intervenor must:
(1) Have legal interest in the matter in controversy; or
(2) Have legal interest in the success of either of the parties;
(3) Have legal interest against both; or
(4) Be so situated as to be adversely affected by a disposition of property in the custody of the court;
(5) Intervention will not unduly delay or prejudice the adjudication of rights of original parties; and
(6) Intervenor’s rights may not be fully protected in a separate proceeding.
WHAT KIND OF INTEREST MUST AN INTERVENOR HAVE?
His interest must be actual, material, direct, and immediated, and not simply contingent and expectant.
WHEN SHOULD THE MOTION TO INTERVENE BE FILED?
At any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention should be attached.
WHAT ARE THE PREFERRED CASES?
Habeas corpus cases, election cases, special civil actions, and others required by law.
HOW ARE CASES ASSIGNED?
By raffle, in open session, with sufficient notice so those interested may be present.
WHAT IS A SUBPOENA?
It is a process directed to a person requiring him to attend and to testify at:
(1) a hearing, trial, or (2) investigation,
(3) or for the taking of his deposition. • If he is required to produce books,
documents, etc. it is a subpoena duces tecum • If both testimony and production of
documents, etc., it is a subpoena duces tecum ad testificandum.
WHO ISSUES A SUBPOENA?
(1) the court before whom the witness is required to attend;
(2) the court of the place where the deposition is to be taken;
(3) the officer or body authorized to do so in connection with an investigation;
(4) and Justice of the SC or CA in any case or investigation pending within the Philippines HOW IS A SUBPOENA QUASHED?
Duces tecum – upon motion if:
(1) it is unreasonable and oppressive; or
(2) the relevancy of the books, documents, does not appear; or
(3) if the person in whose behalf the subpoena is issued pails to advance the reasonable cost of the production thereof
(4) Witness and kilometrage fees not tendered upon service
Ad testificandum –
(1) if the witness is n to bound thereby
(2) Witness and kilometrage fees not tendered upon service
WHAT IS THE RULE IN THE ISSUANCE OF SUBPOENAS FOR DEPOSITIONS?
Though it is not necessary to serve a subpoena on a party for the purpose of taking his deposition – notice of the taking being enough – the court may issue a subpoena upon proof of service of notice to take the deposition.
The issuance of a subpoena merely preps the court to exercise its power of contempt.
Issuance of a subpoena duces tecum, however, necessitates a prior court order.
HOW IS A SUBPOENA SERVED?
In the same manner as a personal or substituted service of summons.
There must also be tender of fees for one day’s attendance (P20 in MTC, P50 in higher courts) and kilometrage.
When the subpoena is issued on behalf of the Republic, tender of fees need not be made. If the subpoena is duces tecum, the cost of producting the things must also be tendered. HOW IS ATTENDANCE COMPELLED?
