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Rule 17-39 on Civil Procedure (Lakas Atenista)

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Rule 17

DISMISSAL OF ACTIONS

Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)

Q: Can a plaintiff file a complaint and later change his mind and withdraw? Meaning, can he dismiss his own complaint?

A: YES. And it is a matter of right. Q: How?

A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for Summary Judgment. Meaning, for as long as the defendant has not yet filed his answer, the plaintiff has the right to dismiss his own complaint by simply sending the court what is known as a notice of dismissal.

This is similar to Rule 10 on amendments. When is amendment a matter of right? For as long as there is no answer yet.

Take note that upon filing of the notice of dismissal, the court shall issue an order confirming the dismissal. The reason is that, the withdrawal is not automatic. Withdrawal does not take effect until confirmed by the court. This is keeping with the respect due to the court.

Under the rules on civil procedure, there are two types of dismissal: 1. Dismissal with prejudice – the case can no longer be re-filed; 2. Dismissal without prejudice –the case can be re-filed.

Q: Is the dismissal under Section 1 with or without prejudice?

A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case can be re-filed. EXCEPTIONS:

1.) When in the notice of dismissal itself, the plaintiff himself stated that he is dismissing his own complaint with prejudice; OR

2.) When a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim.. This is the TWO-DISMISSAL RULE.

ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr. Castaños and I did not pay him. So he filed a case against me to collect the unpaid loan. Upon receipt of the summons, I approach Mr. Castaños, “Huwag mo nalang ituloy ang kaso mo, babayaran kita. I will not file an Answer, hindi nalang ako kukuha ng lawyer. I-dismiss mo na lang iyan, babayaran kita next month, wala lang akong kuwarta ngayon. I will refund you for the filing fee”. Ngayon, payag siya. He will send a notice to the court dismissing his complaint. The case is dismissed, without prejudice.

After one month, I did not pay again. So nagalit si Mr. Castaños, he re-filed the same complaint, pangalawa na. I now receive another summons. So, lapit ako sa kanya, “Bakit mo fi-nile kaagad?” “Eh, sabi mo, after one month magbabayad ka.” “Wala lang akong kuwarta, next month pa dadating ang kuwarta ko. I-dismiss mo na ULI yan. Basta, promise, next month, bayad na talaga ako. Isauli ko ang ginasta mo sa filing fee.” Tapos, naatik na naman siya. So he files a notice of dismissal again, doble. The same case was dismissed twice. He availed of the dismissal in Section 1 twice.

After next month, hindi na naman ako nagbayad. So nagalit na naman siya. So he filed the same case for the third time. I receive the summons. You know what I will do? I will file a motion to dismiss the case because the second dismissal is automatically with prejudice.

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This is known as the 2-dismissal rule. You cannot file it for the third time.

Briefly, the two-dismissal rule simply means that when the same complaint had twice been dismissed by the plaintiff under Section 1 by simply filing a notice of dismissal, the second dismissal shall be with prejudice. Yaann!

Q: Suppose you file a complaint against Mr. Cruz and you immediately changed your mind and had it dismissed under Section 1. And then after having dismissed, you changed again your mind and you want to re-file the action. Now, How do you re-file it the action? Do you file another complaint again?

A: That was answered in the case of

ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO

234 SCRA 455 [1994]

HELD: It DEPENDS on whether the order of dismissal has already become final.

a.) If within 15 days from the time it is ordered dismissed, all that you have to do is to ask the court to set aside the order of dismissal and re-vive the case because the order of dismissal have not yet become final.

b.) However, if the order of the court dismissing the complaint based on your own notice has become final after 15 days, then the only way you can revive it is to file an entirely new action.

Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a)

Q: If the defendant has already filed an answer or a motion for summary judgment, may the complaint still be dismissed by the plaintiff?

A: YES, but it is already upon the approval of the court and upon such terms and conditions as the court deems proper. Meaning, the dismissal under Section 2 by the plaintiff is no longer a matter of right because the defendant has already filed an answer or a motion for summary judgment.

Q: Suppose I file a case against you and you file an answer with counterclaim, and I filed a notice dismissing my own complaint. Can it be done? What happens to the counterclaim?

A: The dismissal of the complaint DOES NOT necessarily mean the dismissal of the counterclaim. So a compulsory counterclaim remains despite the dismissal of the complaint. The dismissal shall be limited to the complaint.

Of course, generally, if we follow the language of the law, when you dismiss the complaint, the counterclaim is also dismissed unless within 15 days, the defendant manifest his preference to have his counterclaim resolve in the same action.

GENERAL PULE: If you dismiss the complaint, the compulsory counterclaim is also dismissed. EXCEPTION: The defendant can revive the compulsory counterclaim within 15 days. That is the

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Q: Now, suppose the complaint is dismissed under Section 2 upon initiative of the plaintiff, can he re-file the case?

A: The rule is the same as Section 1 – the dismissal of the complaint under Section 2 shall be without prejudice unless otherwise specified in the order of dismissal. So, the dismissal under Sections 1 and 2 is generally without prejudice.

The last sentence, “A class suit shall not be dismissed or compromised without the approval of the court.” When you file a class suit, you are not only fighting for yourself – you are fighting for the others. So, you cannot just withdraw it on your own or else, you will cause prejudice to everybody. So, in order to prevent the person who filed it from prejudicing the right of the members of the class suit, it cannot be dismissed or compromised without the approval of the court.

Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)

Q: What are the grounds for the dismissal of the case under Section 3? A: The following are the grounds for the dismissal of a case under Section 3:

1.) The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint;

2.) The plaintiff fails to prosecute his action for an unreasonable length of time;

3.) The plaintiff fails to comply with the Rules of Court or any order of the court for no justifiable reason or cause.

First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF THE PRESENTATION OF HIS EVIDENCE-IN-CHIEF ON THE COMPLAINT

Evidence-in-chief is the main evidence of the plaintiff to prove his cause of action.

So if the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint, the case can be dismissed. This has been taken from the ruling of the SC in the case of:

JALOVER vs. YTORIAGA

80 SCRA 100 [1977]

FACTS: Plaintiff appeared during the trial and presented his evidence and then he rested. And then during the hearing of the presentation of the defendant’s evidence, plaintiff failed to appear. And since he failed to appear during trial, the court dismissed the case.

HELD: The dismissal is WRONG. Why dismiss the case when he has already presented his evidence? It is tantamount to deciding the case against the plaintiff without considering the evidence that he has presented. What is the remedy then?

What the court should do is to proceed with the presentation of the defendant’s evidence without the plaintiff. Do not dismiss the case the plaintiff has already presented his evidence.

That is why the language in the old rule is ‘failure to prosecute’ or another term is ‘non-suited’. But the rules of court now wants to avoid the word ‘non-suited’ because it carries a different meaning.

If plaintiff fails to appear on the date of the presentation of his evidence-in-chief, but he arrived a little bit late, or he failed to appear because he failed to receive the notice setting it, that is different

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because the law says, “for no justifiable cause.” If I am late but a few minutes only, that is not a good basis to dismiss the case forever. There is no intentional failure not to appear. In which case, if there is an order of dismissal, it should be set aside because the condition is “for no justifiable cause.”

If it was the defendant who failed to appear without justifiable cause, the plaintiff should move that the trial shall proceed ex-parte. But definitely, the defendant cannot be declared in default because he already filed an answer.

Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION FOR UNREASONABLE LENGTH OF TIME.

EXAMPLE: Maybe every time his case is called to trial, he appears but he is not ready and so he postpones. The next hearing, he postpones again. That’s one interpretation.

Another interpretation of “failure to prosecute” the complaint is filed, answer if filed, the case has not been set for pre-trial, the plaintiff did not take the initiative to have the case set for pre-trial. For more than one year, the case has not been set for pre-trial and the plaintiff is not moving. Ikaw ang plaintiff, ikaw ang kumilos!

Or, the case cannot be tried because the defendant cannot be summoned. The court keeps asking the plaintiff for the correct address of the defendant. And for more than one year, the plaintiff cannot supply the court of the correct address of the defendant. The judge cannot have the case docketed in court forever.

Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT OR ANY ORDER OF THE COURT.

EXAMPLE: The court says, “Plaintiff, you are hereby directed to amend the complaint.” Plaintiff refuse to amend. The court will dismiss the case.

Remember that case I cited where the complaint was filed in the name of for example, “PANINGKAMOT STORE vs. SO and SO.” The SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not a person. It is only the name of the business establishment. Only natural person or juridical persons may be subject of the suit.

Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to amend in order to reflect the owner of the store. So the court directs the plaintiff to amend. Ayaw mo i-amend ha? This time i-dismiss ko for failure to comply with the court’s order.

Other Examples: Amend the pleading, submit a bill of particulars or certification of non-forum shopping.

Now, Section 3 says, “…may be dismissed upon motion of the defendant or upon the court’s own motion (motu propio).”

Q: As a general rule, can a court dismiss a complaint without any motion made by the defendant? A: GENERAL RULE: The court should not dismiss the case upon its own initiative, because the grounds for dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the defect.

Q: Give the EXCEPTIONS (When may the court dismiss the complaint motu propio?). A: The following

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3. When there is litis pendentia; or res adjudicata; or when the action has prescribed;

4. Under the Summary Rules, the court is empowered to dismiss immediately without any motion.

Take note of what the law says, if the complaint is dismissed under Section 3, it is without prejudice to the right of the defendant to prosecute his counterclaim in the same or separate action. Again, the dismissal of the main action or compliant does not mean the dismissal of the counterclaim. This is the same with Section 2.

Q: If the complaint is dismissed under Section 3, can it still be re-filed?

A: NO, the dismissal this time shall have the effect of adjudication upon the merits. Meaning, res adjudicata applies, as if the case has already been decided. Therefore the elements of res adjudicata should also be present. The dismissal is with prejudice unless otherwise declared by the court.

GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice. EXCEPTION: Unless the court provides otherwise.

EXAMPLE: When the case was called for trial, plaintiff did not appear. Defendant moved to dismiss under Section 3. The court dismissed the case. Can the case be re-filed? NO, the dismissal is with prejudice. (General Rule)

Suppose the court will say, “For non-appearance of the plaintiff, the complaint is dismissed without prejudice.” Can the case be re-filed? YES. (Exception)

On the other hand, one of the interesting cases on this (the effect of res adjudicata – because when we say res adjudicata, it had to be correlated with the elements of res adjudicata in Rule 39) is the case of

REPUBLIC PLANTERS BANK (RBP) vs. MOLINA

166 SCRA 39 [1988]

FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be summoned because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed. After a while the court dismissed the complaint for RBP’s failure to prosecute. And the order of dismissal was silent. So, following Section 3, the dismissal is with prejudice.

Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed the compliant. Defendant moved to dismiss because when the first complaint was dismissed and the order of dismissal was silent then the dismissal has the effect of an adjudication on the merits.

HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res adjudicata under Rule 39.

One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction over the case both as to the person and the subject matter;

In the case of RPB, the court never acquired jurisdiction over the person of the defendant because he was never served with summons. Therefore, such dismissal did not have the effect of res adjudicata.

Meaning, Section 3 presupposes that the court acquired jurisdiction over the subject matter of the case, and the parties in the previous case in order that the dismissal be with prejudice.

Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4a)

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It means that the rules apply to dismissal of cross-claim, counterclaim, or third-party complaint – at any time before an answer is filed against a counterclaim, cross-claim or third-party complaint, plaintiff may dismiss his claim under Section 1, Rule 17.

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Rule 18

PRE-TRIAL

Pre-trial in criminal cases is Rule 118. In civil cases, is Rule 18. It used to be Rule 20. Now, take note that no case can reach the trial stage without undergoing Pre-Trial after the issues have been joined.

Section 1. When conducted. After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20)

In civil actions, after the last pleading has been filed (Reply or Answer) the plaintiff is duty bound to move ex parte that the case be set for pre-trial. No civil action can reach the trial stage without passing the pre-trial period.

Pre-trial in criminal cases is only optional—the accused and his lawyer have to agree. In civil cases, the pre-trial is MANDATORY – no case can reach the trial stage without undergoing Pre-Trial. And it is the duty of the plaintiff and not of the clerk of court to move to set the trial. A motion for pre-trial can be filed ex parte, an exception to the rule that no motion can be filed ex parte.

Sec. 2. Nature and purpose. The 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 amendments to 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. (1a, R20)

(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A SUBMISSION TO ALTERNATIVE MODES OF DISPUTE RESOLUTION

Remember that the policy of the law in civil cases is settlement to save time and expense. Here, you get something from me and I get something from you. Then we will submit out agreement to the court. In an amicable settlement, walang panalo and wala ring talo. So everybody goes home happy.

There was an article where it says that one of the best gauge of a good lawyer is not that he has many cases, but that he knows how to settle a case because he saves his client from a lot of trouble. While a bad lawyer is one whose cases always end up in trial – he has many cases and he does not have the time anymore to study each cases. So, he ends up inefficient.

As a matter of fact, even Abraham Lincoln who was a lawyer and became one of the best presidents of the United State, gave an advice to lawyers: “Discourage litigation. Persuade your neighbors to

compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man there will still be business enough.” Meaning, if you are a lawyer, you have a strong influence to convince your client to

settle the problem with his opponent. You do not have to worry about losing fees for there are still cases to come. Even if you will come out the winner in the case, you are still the loser in terms of waste of time, money and effort.

“…of a submission to alternative modes of dispute resolution.” – how to dispose of the case without

passing to court, ba. This is similar to voluntary arbitration in the Labor Code – mas mabilis!. Kung sa court yan, matatagalan pa yan. Example is a controversy in the construction industry. Pagawa ka ng

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building. You quarrel with your contractor whether the building is properly constructed or not. That kind of dispute has to pass through arbitration like contractors. They will be the one to judge because they are experts in construction. So it is faster. Anong malay ng judges sa engineering? So, yan ang tinatawag na alternative modes of dispute resolution.

Now, assuming that the parties cannot settle at the trial stage, does it mean to say that the pre-trial was a failure? NO, go to [b] to [i] on other ways to hasten the pre-trial.

(b) THE SIMPLIFICATION OF THE ISSUES

Based on the answers filed, issue will be simplified or lessened/reduced to the most important and relevant ones.

(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE PLEADINGS;

Take note that there is already a complaint and answer and yet during the pre-trial, the parties can still amend their complaint or answer. That means that amendments of pleadings are favored even at this stage. Amendment is necessary which is favored by the liberality principle, to adjudicate the case upon proper merits.

INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC

21 SCRA 887

BAR PROBLEM: Suppose A sued B. After pre-trial, it was determined that there was a necessity for amending the complaint. It was amended. Is there a need for a new pre-trial for the amended complaint?

ANS: Where a pre-trial has already been had, the fact that an amended complaint is filed, does not mean the need for a new pre-trial. Pre-trial is not mandatory. Exception to this is when the parties agree to conduct another pre-trial.

(d) STIPULATION OF FACTS

Stipulation of facts means we can agree on some facts and there is no need of proving them in court because we already agreed. Such will hasten the trial because matters validly agreed upon can be dispensed with (e.g., size of the land, improvements thereon, stipulations, due execution of documents, etc.)

Now, while the law encourages stipulation of facts, courts cannot compel the parties to do stipulate facts under the threat of dismissal. In the 1988 case of:

FILOIL MARKETING CORP. vs. DY PAC & CO.

160 SCRA 333

HELD: There is no law which compulsorily requires litigants to stipulate at pre-trial on the facts and issues that may possibly crop up in a particular case, upon pain of dismissal of such case. The process of securing admissions whether of facts or evidence is essentially voluntary, since stipulations of facts, like contracts, bind the parties thereto who are not allowed to controvert statements made therein.

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start asking, “Why so many? Will it be possible to limit the number of witnesses from 100 to 15 or 10? Anyway, what one witness will say will just be the same as what the other witness will say.”

That is allowed and that is part of the pre-trial because it will be shortened if the number of witnesses will be reduced in number.

(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO A COMMISSIONER;

This refer to Rule 32 the title of which is “Trial by Commissioners.” A commissioner is a person who may be appointed by a judge to assist the court in determining certain issues.

EXAMPLE: Two people dealing with each other ended up suing each other because according to plaintiff, “You secured these amounts from me and ito lang ang binayad mo. So, may utang ka pa.” But defendant said, “No, no, no! Based on my record, overpaid pa ako.” That can happen where there has be confusion already on the invoices and receipts. Now, if we will try this case in court it will take time because you have to present to the judge every receipt, every invoice. And these invoices may number by hundreds. And what is worse is that the judge is not an accountant so he will have a hard time reconciling these receipts and invoices.

Suppose the judge will say, “Alright, since this is a matter of accounting, I will appoint a CPA to assist me. You can choose whoever this accountant or he may be appointed by this court. Then you go to him and present all your documents. And then he will now analyze and then submit to me his findings. Based on his findings we will find out whether the defendant still owes the plaintiff or there is no more utang.”

That is what you call, reference of issues to a commissioner. That will shorten the proceedings because if the judge will go over the documents one by one it will take time.

EXAMPLE: A boundary dispute between two neighboring landowners. Plaintiff says, “Your fence has already encroached on my property.” Defendant answers, “No, no, no. This is the boundary.” So bakbakan na naman kayo. The court will ask,” Is it true you encroached on his property?” How will the court know that? I think that is very technical. It is a geodetic engineer surveyor to resolve the issue. He will plot the measurement and then he will submit a sketch. Then we will find out if there is an encroachment or not.

As far as the judge is concerned, he does not know anything about description of the land, he is not a surveyor, not a geodetic engineer. So it will be faster if a geodetic engineer surveyor will be appointed. What do you call this surveyor? He is a commissioner.

(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS, OR SUMMARY JUDGMENT, OR OF DISMISSING THE ACTION SHOULD A VALID GROUND THEREFORE BE

FOUND TO EXIST;

Q: What do you mean by judgment on the pleadings? What do you mean by summary judgment? A: That was already mentioned under Rule 17, Section 1. But we will not take them up because they will be taken up when we reach Rule 34 and 35. Judgment on the pleadings or summary judgment are remedies or procedure devised under the Rules of court for the speedy determination of a civil case. It is one way of speedily terminating a civil case. Once it is rendered, tapos na ang kaso.

The court, during a pre-trial, is authorized to render a judgment on the pleadings or a summary judgment if there is a ground. In the same manner, the court may order the dismissal of the action should a valid ground therefor be found to exist because it is possible that based on the complaint, there is no ground to dismiss but in the course of pre-trial, the plaintiff may admit something which turns out to be a ground for dismissal.

EXAMPLE: According to the plaintiff, the defendant borrowed money from him three years ago and did not pay. But during the pre-trial, defendant said, “Actually, judge, hindi man yan three years ago. That was thirty years ago!” Plaintiff answered, “Actually, judge, totoo yan.” So judge said, “My golly, the action has prescribed so I will order the dismissal.” These things can come out in the pre-trial.

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(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE PROCEEDINGS;

This means that the case will be suspended, nothing will happen in the meantime. Hindi naman dismissed. The case will just be held in abeyance.

EXAMPLE: Suppose the parties will say, “Judge, so far we cannot settle. But maybe if you will give us one or two months we will be able to come up with a solution. We will meet once every three days para mag-istorya.” I think that is a good ground. In other words, pwede pa silang mag-areglo, o sige! Because the law encourages amicable settlement.

Q: Is there a provision in the Rules on the suspension of proceedings in relation to what we are talking about now? What are the possible grounds for suspending the proceedings in a civil case?

A: Rule 20, Section 8 on suspension of actions.

Sec. 8. Suspension of actions. - The suspension of actions shall be governed by the provisions of the Civil Code. (n)

Actually, Section 8 points to Article 2030 of the New Civil Code:

Art. 2030. Every civil action or proceeding shall be suspended:

1. If willingness to discuss a possible compromise is expressed by one or both parties; or

2. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer.

The duration and terms of the suspension of the civil action or proceeding and similar matters shall be governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said rules of court shall likewise provide for the appointment and duties of amicable compounders.

So a civil action may be suspended if at any time one of the parties offered to discuss a possible compromise because the policy of the law is to have civil cases settled between the parties amicably. Let the parties talk among themselves to come up with the possibility of amicable settlement even if one of the parties refuse to accept such an offer.

(i) SUCH OTHER MATTERS AS ANY AID IN THE PROMPT DISPOSITION OF THE ACTION.

That is very broad – any other matter which will hasten the case. Anything under the sun can fall under this.

PURPOSE OF A PRE-TRIAL

A review of Section 2 will show that the primary purpose of a pre-trial is how to end the case immediately because of amicable settlement. If the parties can settle, then there is no need to proceed to trial. But if for valid or serious reason they cannot settle, because the court can only encourage and not force a settlement, then they shall proceed with the pre-trial to find out if we can have the case tried speedily and decided immediately by talking about other things like amending the pleadings, stipulation of facts, admission of documents to avoid unnecessary proofs, limitation in the number of witnesses. So if we cannot settle, we can talk of other things to speedily terminate the case. Instead of trying the case for two years, we can probably finish in six months.

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HELD: “Everyone knows that a pre-trial in civil actions is mandatory, and has been so since January 1, 1964 (effectivity of the Revised Rules of Court). Yet to this day its place in the scheme of things is not fully appreciated, and it receives but perfunctory treatment in many courts [Meaning, it is only complied with for the sake of compliance.] Some courts consider it a mere technicality, serving no useful purpose save perhaps, occasionally to furnish ground for non-suiting the plaintiff, or declaring a defendant in default, or, wistfully, to bring about a compromise. The pre-trial device is not thus put to full use. Hence it has failed in the main to accomplish the chief objective for it: the simplification, abbreviation and expedition of the trial, if not indeed its dispensation. This is a great pity, because the objective is attainable, and with not much difficulty, if the device were more intelligently and extensively handled.”

The Supreme Court noted the inability of trial judges to properly apply and appreciate the value of Rule 18.

Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. (n)

This is in compliance with Rule 13. Notice should be given to counsel or to the parties in order to comply with due process. Under Section 1, it is the duty of the plaintiff to promptly move ex-parte that the case be set for trial and you will be given a notice of pre-trial from the clerk of court. The notice of pre-trial shall be served on counsel or on the party who has no counsel.

Under the PRIOR RULE, the procedure was, there must be notice to lawyer and notice to the party – dalawang notice – notice to the lawyer is not notice to the party, as an exception to the Rule 13. But NOW, to simplify the job of the court processor, the rule is, notice to the counsel is now notice to the party.

ARCILLA vs. ARCILLA

138 SCRA 560

FACTS: There was a pre-trial conference on July 29, where all the parties are notified through their lawyers pursuant to Section 3. They appeared but somehow the pre-trial was terminated on July 29. The court decided to reset the pre-trial on Oct. 2. The parties agreed. Normally, the procedure is, when that happens, there will be another written notice. There should be another written notice sent to the lawyers and parties.

In this case, no such written notice was issued. On Oct. 2, the defendant did not appear. With that, he was declared to have lost his rights to present his side. He was considered in default. He questioned the order on the ground that he did not receive any notice on the Oct. 2 pre-trial conference. Therefore, all subsequent proceedings, including the judgment rendered against the defendant were void. Is he correct?

HELD: “At first blush, petitioner’s aforesaid contention appears very tenable, for indeed it is settled that a declaration of default, in the absence of a notice of pre-trial constitutes denial of due process. But a deeper examination of the pleadings and the record of the case would show that petitioner was present during the pre trial conference on July 29, 1975 when the lower court re-set the pre-trial to October 2, 1975. On the said date, however, although notified, both petitioner and his counsel did not appear, hence, the declaration of default.”

So when the lower court reset the pre-trial on Oct. 2, the defendant although ratified VERBALLY earlier, he failed to appear that is why he was penalized under Section 5. When the court reset the pre-trial, he agreed. He already knew. Notification need not be too technical. Despite the lack of a written notice, the defendant was penalized in the ARCILLA case.

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Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (n)

There must be notice of pre-trial which will be issued after you comply with Section 1. Then there will be a schedule. The notice will be served upon the counsel or upon a party, assuming that he is not represented by a lawyer. The counsel served with such notice is charged with the duty of notifying the party represented by him.

And under Section 4, it shall be the duty of the parties and their counsel to appear at the trial. Meaning, the lawyer alone who is there will not suffice. Kailangan dalawa kayo.

Q: Suppose the lawyer will say, “Well, your honor, I am here. Anyway, appearance by counsel is appearance by party.” Puwede ba yan?

A: Ah hindi yan puwede because in a pre-trial, the law requires the presence of the party and his counsel because the purpose of a pre-trial is to consider the possibility of an amicable settlement.

Q: Can the lawyer enter into an amicable settlement with the adverse party?

A: No, you cannot. The lawyer has no power or authority because amicable settlement is a matter of bargaining.

EXAMPLE: Defendant says, “Yung interest na na-due, hatiin na lang natin. You condone half of it, and bayaran ko is fifty percent na lang. And give me 24 months to pay.” The lawyer says okay. Then pag sabi mo sa client, baka magalit yon, he might fire you! Pera gud niya yon. That is why the parties and their should both be present. And that is also the reason why a notice of pre-trial should be given to the party.

Section 3 says “a counsel served with such notice is charged with the duty of notifying the party represented by him.” That is new provision. The OLD LAW is, based on decided cases, aside from notice to the lawyer, there must be another notice to the party. So if you notify the lawyer but you did not send a separate notice to the party and therefore the party did not appear, you cannot take it against him. Under Rule 13, notice to lawyer is notice to party, except in pre-trial, sabi ng SC. That is the old jurisprudence – OBSOLETE!

But the PRESENT RULE is: Notice to lawyer is notice to party.

Q: Is it possible for a party who will not appear a pre-trial but his appearance is not necessary? A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a representative shall appear in his behalf duly authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, etc.

EXAMPLE: You tell your client, “We will have a pre-trial next week and your presence is necessary.” Client: “But I am leaving for America tomorrow. I cannot be there.” Lawyer: “Is there anybody whom you can authorize, take your place?” Client: “Yes, my brother or my manager.” Lawyer: “Okay, you write a written authority that you are authorizing your brother to appear in your behalf with full power to settle.” Yan and tinatawag na “Power of Attorney.” Intiendes?

Meaning, you can delegate somebody who has a written authority. Sometimes it is the lawyer who is given the Power of Attorney authorizing him to enter into an amicable settlement. Walang Problema yan. Otherwise, you will see in the next section what is the effect if you fail to appear in a pre-trial – automatic, talo ka sa kaso.

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amicable settlement? Are the managers or vice-president, authorized to appear in a pre-trial in behalf of the bank which is a party to the case?

A: NO! Even the president or the chairman of the board has no power. Q: Who can bind a Corporation?

A: Only the Board of Directors has the authority to bind a corporation.

Q: If there will be a pre-trial of a case involving one of the banks in Manila but the case is in Davao, am I saying that everytime there is a pre-trial all the members of the Board will fly to Davao to attend the pre-trial and pass a resolution inside the courtroom?

A: No. The Board can pass a resolution naming the person who will represent the corporation. So, the manager for example, can appear in the pre-trial provided he is authorized through a board resolution.

Again, the RULE is: Both the lawyer and the party should appear in the pre-trial because the first purpose of pre-trial is the possibility of an amicable settlement and the lawyer alone has no authority to enter into an amicable settlement.

Non-appearance may be EXCUSED only if:

1. A representative shall appear in his behalf fully authorized in writing (e.g. SPA) 2. For a valid cause – example, if you are sick.

Q: If it is a corporation, what is that authority?

A: It is a board resolution because only the board of directors has the authority to bind the corporation.

EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL

Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (2a, R20)

Q: What happens if it is the plaintiff who failed to appear in the pre-trial?

If the PLAINTIFF fails to appear, his case will be dismissed for not appearing. And as a rule, the dismissal is with prejudice. Pag dismiss, that is the end of the case. It has the same effect as Rule 17, Section 3: Failure to appear during the trial for the presentation of his evidence-in-chief. So, if the plaintiff fails to appear during the trial when it is his turn to present his evidence, under Rule 17, his case shall be dismissed and generally the dismissal is with prejudice, an adjudication upon the merits. (Res Adjudicata applies).

The old rule was that the plaintiff will be declared non-suited. NOW, it shall be a cause for dismissal of the action.

Q: Is there any difference between non-suited and dismissal of action? A: There is suppose to be a difference based on the case of

BA FINANCE CORP. vs. COURT OF APPEALS

224 SCRA 163 [OBSOLETE!]

HELD: When the defendant moves to dismiss the case, then you are also killing your counterclaim. If you are, the defendant you should not move for the dismissal. You only move to declare the as non-suited because when the plaintiff is non-suited, he is bared from proving his cause of action but the case is not dismissed. Since the case is not dismissed, it is like the plaintiff who is in default.

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Ngayon wala na yan because now, you can have the case dismissed but your counterclaim is still alive. So, the ruling in BA FINANCE CORP. is now OBSOLETE.

Q: What happens if it is the plaintiff who failed to appear in the pre-trial?

A: If it is the DEFENDANT who failed to appear, the law says, it shall be a cause to allow the plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof.

You will notice that if it is the defendant who failed to appear under the old law, he will be considered as in default. NOW, the word ‘default’ is avoided – “it shall be a cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.” That is the same effect as the old rule.

Q: Why is the new rules avoiding the word ‘default’?

A: Because, strictly you cannot really have the defendant declared in default when he has filed an answer. Kaya nga the Rules of Court was very clear in the ‘64 Rules by saying “considered as in default” to distinguish it . But the confusion is still there eh. In other words, to avoid confusion, the plaintiff will be allowed to present evidence ex parte. Para na ring ‘in default’ without using the word ‘default.’

Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed to present his evidence ex party. So parang in default ang defendant. Now, what is the REMEDY of the defendant? Because if you look at Rule 9 on default, the proper motion for the defendant in default is to file a motion to lift the order of default on the ground of F.A.M.E. and that he has a meritorious defense. Is that also the remendy for the defendant who failed to appear in the pre-trial?

A: NO, that is the case of

JUNGCO vs. COURT OF APPEALS

179 SCRA 213 [1989]

HELD: Under Rule 9 on default, if you are declared in default, you only file a motion to lift the order of default and you have to allege that you have a meritorious defense. But in Rule 18, when you file a motion, it is a simply a motion for reconsideration where you will state the reason why you failed to appear and ask that the order be reconsidered and that the judgment be set aside.

Under Rule 18, there is no use to say that you have a meritorious because you have already filed an answer. The defense is already there. Unlike in defaulted defendant, the court has no idea what is your answer kaya nga you must convince the court that you have a meritorious defense.

So a simple MOTION FOR RECONSIDERATION is sufficient.

Q: Assuming that the plaintiff is already presenting evidence, and the defendant filed a motion for reconsideration. The court reconsidered and recalled the plaintiff’s ex-party presentation of evidence. Do we they have to go back to pre-trial.

A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409) EXCEPTION: YOUNG vs. CA, 204 SCRA 584

General Rule: DEVELOPMENT BANK vs. COURT OF APPEALS

169 SCRA 409 [1989]

HELD: When a pre-trial is terminated, you do not go back to it. The court shall let the plaintiff continue and just let the defendant cross-examine the plaintiff’s witnesses. As a general rule a second pre-trial cannot be granted, the remedy instead is to go to trial.

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HELD: “The pre-trial stage is completed after a party had been ordered non-suited and the complaint is dismissed or after the court allows the plaintiff to present his evidence ex-party. The order lifting it does not revert the action to its pre-trial stage, or authorize, much less, a second pre-trial UNLESS the parties themselves had voluntarily agreed that the case be set anew for pre-trial. Neither the Rules nor the doctrine bars the parties from agreeing, after such lifting, to hold a pre-trial and to effectively accomplish its objectives.”

PRE-TRIAL BRIEF

Sec. 6. Pre-trial brief. The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the trial, their respective pre-trial briefs which shall contain, among others:

(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;

(b) A summary of admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved;

(d) The documents or exhibits to be presented, stating the purpose thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and

(f) The number and names of the witnesses, and the substance of their respective testimonies.

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n)

This is a new provision not found in the 1964 Rules. However, the requirement of a pre-trial brief is not new because this was a requirement in SC Circular No. 1-89 which was issued on January 19, 1989. The submission of pre-trial briefs by lawyers has been required by that Circular. This circular is now incorporated.

Take note that at least three(3) days before the date of trial the parties’ lawyers should file pre-trial briefs to be furnished with each other. In that brief, you summarize everything covered by your pleadings. It contains cause of action, defenses, etc. The court, instead of reading the pleadings and answer, only the document where you condensed everything will be read. It contains: Cause of action; defenses; issued to be tried; admitted facts; facts you believe should be stipulated; the documents or exhibits you would like the present; or who are the witnesses and what are they going to testify, etc. That’s a summary of everything that is going to happen from the beginning of the trial up to the end.

Q: What happens if a party fails to file a pre-trial brief?

A: Last paragraph, “Failure to file the pre-trial brief shall have the same effect as failure to appear a the pre-trial conference.” So, if it is the PLAINTIFF who failed to file a pre-trial brief, his complaint may be ordered dismissed. If it is the DEFENDANT who failed to file a pre-trial brief, that would be a cause for the court to allow the plaintiff to present his evidence ex-parte.

Q: Up to this point, let us try to summarize. What are the instances where the PLAINTIFF may be penalized by the court with a dismissal of his complaint?

A: In the following instances:

1.) Where plaintiff fails to appear during the presentation of his evidence-in-chief to prove his cause of action (Rule 17, Section 3);

2.) Failure to appear in the pre-trial conference (Rule 18, Section 5); 3.) Failure to file a pre-trial brief (Rule 18, Section 6)

Q: On the other hand, when would the DEFENDANT be penalized by the penalty that plaintiff be allowed to present his evidence ex parte and judgment be rendered based purely on such evidence?

A: In the following instances:

1.) Failure to file an answer under Rule 9 on Default;

2.) Failure to appear in a pre-trial conference (Rule 18, Section 5); 3.) Failure to file a pre-trial brief (Rule 18, Section 6)

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Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. (5a, R20)

A pre-trial conference although it is less formal than a trial, that’s why in most cases, pre-trial is not done in open court but inside the chamber of the judge where the atmosphere is more relaxed because you are going to talk about settlement, eh. However, do not believe that that is just a decoration. That is an official proceeding. Everything there is recorded. According to section 7, after a pre-trial conference is terminated, the court will issue what is known as pre-trial order. That is now expressly required by the rules.

A pre-trial order should state or should summarize everything what was taken up in a pre-trial conference, the issues to be resolved, the facts to be admitted, etc. what is important there is the third sentence: “Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The

contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice.” It may be an ordinary sentence but the effect of that is terrible.

Suppose here is the complaint and it is answered. Based on the complaint and the answer, you can determine the issues based on the admissions and denials in the answer. For instance, there are five issues, they are to be stated in a pre-trial brief. During the pre-trial conference, the court may reject other issues which are not important with the agreement of the parties. Thus, there may be only one real issue like whether or not the loan has been paid. The court may then issue a pre-trial order containing such issue. The defendant may have also several defenses in his answer. After the pre-trial order is issued, such order should be followed. Forget the complaint and the answer.

In effect, the complaint and the answer has already been superseded by the pre-trial order. This section in effect says that the pre-trial order supersedes the pleadings.

That is why the case of DBP vs. CA, supra, where the Court through Justice Narvasa, emphasized the importance of a pre-trial. The Court noted that if there is a pre-trial order because the judge followed Rule 18 religiously, during the trial the judge will not have a hard time in determining what is the issue to be resolved. And babasahin lang niya ay ang pre-trial order. Everything is to be based there. Without the pre-trial order, you will still have to look at the pleadings of both parties. The pre-trial order is a very important piece of document.

There was a case years ago, Plaintiff vs. Defendant. Banggaan ba. In a vehicular collision, the plaintiff is claiming damages from the defendant. His allegations naturally would point out that all fault and negligence is caused by the defendant. As usual, when the defendant files his answer, he is denying that. As a matter of fact, he will claim that the one negligent is the plaintiff. Chances are, since his vehicle was also damaged, the defendant will file a counterclaim. So, pasahan yan!

What happened in the pre-trial conference is that, the lawyers were asked to define the issues. The plaintiff’s lawyer asked the defendant’s lawyer to define the issues: “ (1.) Is the plaintiff liable for actual damages on defendant’s counterclaim? (2.) Is the plaintiff liable to the defendant on his counterclaim for exemplary damages? (3.) Is plaintiff liable to the defendant on his counterclaim for attorney’s fees and expenses for the litigation?”

So, those were the issues. The plaintiff’s lawyer, siguro hindi nakikinig ba. Judge asked, “O, do you agree panyeros?” Yes, Okay. When the pre-trial order was issued, those issues were contained.

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on the liability of the defendant. The only issue is whether plaintiff is liable to the defendant. Naisahan ang plaintiff… akala kasi niya ang pre-trial order is not important.

(Dean did not know how the case ended, but commented: “The plaintiff asked for the amendment of the pre-trial order because this is a manifest injustice. Plaintiff is the one suing and how he is to be held liable. Now, if I were the judge, I will really modify because it’s unfair no! You are the one suing and now you end up as a defendant. But I will stress to the plaintiff na huwag kang tatanga-tanga sa pre-trial! [gago!])

Now, an example of the last sentence of Section 7 – “UNLESS modified before trial to prevent manifest

injustice – is the case of SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order does not

recite the issue, it can still be proven. Under Section 5 of Rule 10, even if an issue was not raised I n a pre-trial order and no one objected to the issue raised, it can be tried and later the pre-trial order can be amended to conform with issue/s raised.

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Rule 19

INTERVENTION

This used to be under Rule 12. Now, they are divorced. What is left behind in Rule 12 is Bill of particulars. And Intervention has been moved to Rule 19. What happened to the original Rule 19? The original Rule 19 on Judgment on the Pleadings was moved closer to Summary Judgment, to Rule 34.

Q: Define intervention.

A: An INTERVENTION is proceeding in a suit or action in which a third person, not a party to the case, is permitted by the court to make himself a party to the case. (33 C.J.S. 447)

EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel and Rayda signed a promissory note in favor of Leo.

Q: Leo sues Rucel and Rayda. What pleading should Rucel file to protect herself? A: Rucel should file a CROSS-CLAIM against her co-party Rayda.

Q: Leo sues only Rucel. What is the remedy of Rucel to protect herself? A: Rucel should file a THIRD-PARTY COMPLAINT against Rayda.

Q: What if Rucel does not file a third party complaint against Rayda? What can Rayda do to be able to join the case?

A: Rayda can, with leave of court, INTERVENE under Rule 19. The initiative should come from her.

So an intervention is related to a third-party complaint. It is a process by which a stranger or a third party is included in a case, but with the difference that in a third-party complaint, it is the party who brought you in. While in intervention, the initiative comes from the third person and he is known as the intervenor. And the process of entering is called intervention. And take note that a person cannot simply intervene for the sake of intervening. There must be a legal ground for intervention which can be found in Section 1:

Section 1. Who may intervene. 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 is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. (2[a], [b]a, R12)

Q: What are the grounds for intervention?

A: The following are the GROUNDS for intervention:

1.) The intervenor has a legal interest on the matter under litigation; 2.) The intervenor has a legal interest in the success of either of the parties; 3.) The intervenor has a legal interest against both; or

4.) The Intervenor is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof.

First Ground: THE INTERVENOR HAS A LEGAL INTEREST ON THE MATTER UNDER LITIGATION;

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A: YES, because they have a legal interest in the matter in litigation. If the case will succeed they will be richer. The property will go to them. (Dais vs. CFI of Capiz, 51 Phil. 396)

EXAMPLE #2: Suppose Victor filed a case against Ping to recover a piece of land. Victor’s children (Mary, Rose and Ador) would like to intervene contending that when their father (Victor) would die in the future, their inheritance is affected.

Q: Can the children of Victor intervene?

A: NO. They cannot intervene the legal interest they are claiming is contingent, expectant – there is no assurance that your father will die ahead of you. The interest referred to by the law is an interest that is direct immediate, actual existing interest as distinguished from expectant, inchoate or contingent interest. (Garcia vs. David, 67 Phil. 279)

How do you distinguish the second example from the first case? In the first case, the father is dead and you inherit the property. Technically, the property belongs to you. So the right of the heirs over the property litigated by the administrator is not expectant or inchoate.

Second Ground: THE INTERVENOR HAS A LEGAL INTEREST IN THE SUCCESS OF EITHER OF THE PARTIES;

So you are interested in the plaintiff winning or the defendant winning.

EXAMPLE : In an action filed by the creditor against the surety only to recover the debt of the principal debtor without impleading the principal debtor. The principal debtor may intervene if he would like to join forces with the surety.

Third Ground: THE INTERVENOR HAS AN INTEREST AGAINST BOTH PARTIES;

I am not interested in the victory of either the plaintiff or the defendant. I am interested with my victory against both. So it becomes a three-cornered fight.

EXAMPLE: Steven Spielberg filed a case against Ridley Scott who has the right to possess the property and then here I come – I will intervene. I am the one, not both of you, who has the right over the property. Wala kayong lahat!!! Mga ungas!! So bakbakan na iyon. I have a better right against both of you.

Fourth Ground: THE INTERVENOR IS SO SITUATED AS TO BE ADVERSELY AFFECTED BY A DISTRIBUTION OR OTHER DISPOSITION OF PROPERTY IN THE CUSTODY OF THE COURT OR

OF AN OFFICER THEREOF.

EXAMPLE: Sonny secures a writ of preliminary attachment against Gemma but the property attached preliminarily happens to be my property. So I can move to intervene because I am adversely affected by the distribution.

Can you not file a third-party claim if your property is wrongfully attached? YES you can, but that is not the only remedy. The law allows the third person to file an intervention in the main action.

INTERVENTION, NOT A RIGHT

Q: Is the intervention a right or a privilege?

A: NO. It is discretionary. A motion for intervention must be filed by the intervenor. And under Section 1, the court may or may not grant the motion - the court shall consider whether or not the

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intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not, the intervenor’s rights maybe fully protected in a separate proceeding.

For example, the case between the original parties is about to end, the trial of the case is about to end and at that point, you will have to intervene. If you intervene, we will start all over again. So, it will be dilatory. But even if you will not be allowed to intervene, the court may say that you can file your case in the future. You can file a separate action later against the parties.

BAR QUESTION: Now, there are some instances by way of exception when intervention maybe a matter of right. What are these exceptions?

A: The following:

1.) When the intervenor turns out to be an indispensable party; and 2.) Class suit (Section 12, Rule 3)

Rule 3, Sec. 12. Class suit. - When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. (12a)

Did you notice that last sentence? “Any party in interest shall have the right to intervene.” So, in other words, in a class suit and you are already included, law says, you have the right to intervene in so far as your individual interest is concerned. So, that would be another instance where intervention seems to be a matter of right rather than a matter of discretion.

WHEN AND HOW TO FILE

Sec. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.

Sec. 3. Pleadings-in-intervention. The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (2[c]a, R12)

Q: When do you move to intervene?

A: Under Section 2, at any time before rendition of judgment by the trial court. So, you cannot intervene when there is already a decision. Tapos na ang kaso. The trial is already terminated. So the earlier, the better.

And when you file a motion to intervene, the pleading-in-intervention that you want to file should already be included. Now, under the old procedure, first, you file a motion to intervene. After filing your motion and your motion is granted, then you file your pleading in intervention. So, motion first before pleading. That was the old rule.

NOW, sabay na. The copy of the pleading and intervention shall be attached to the motion and served on the original parties. That is also in consonance with Rule 15 Section 9 on motions in general.

Rule 15, Sec. 9. Motion for leave. - A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. (n)

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Now, what are these PLEADINGS-IN-INTERVENTION? It’s there in Section 3. It’s either a complaint-in-intervention or an answer-in-intervention. So it DEPENDS:

If you are joining forces with the plaintiff, or you are asserting a claim against both, then you file a COMPLAINT-IN-INTERVENTION. If you are uniting with the defendant to resist the plaintiff, you file an ANSWER-IN-INTERVENTION.

So, these are among the pleadings recognized by the rules. Let’s try to go back to the basic. What are the types of pleadings allowed by the rules of court? Rule 6, Section 2:

Sec. 2. Pleadings allowed. The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-intervention.

x x x x x

Did you notice that “intervention”? So, we are wondering, ano ba itong complaint-in-intervention? Actually, that is the pleading referred to now in Rule 19.

Sec. 4. Answer to complaint-in-intervention. The answer to the complaint-in -intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (2[d]a, R12)

In other words, just like any other complaint, it should be answered within 15 days. A complaint-in-intervention must be answered within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. So you have 15 days.

Q: Now, suppose there is an amendment of a complaint-in-intervention. What is the period to answer?

A: Let us go back to Rule 11, Section 3:

Sec. 3. Answer to amended complaint. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (l5) days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.

This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.) party complaint, and amended complaint-in-intervention. (3a)

Q: What is the period to answer an amended complaint-in-intervention?

A: It is either 10 or 15 days just like answering an ordinary amended complaint. DISMISSAL OF THE MAIN ACTION; EFFECT ON INTERVENTION

There is a case between Pches and John. Tommy intervened while the case is going on. Suppose the case was dismissed either by the court or the plaintiff withdrew it. Can the intervention proceed independently? Can it proceed when there is no more main action? In the case of

BIG COUNTRY RANCH CORP. vs. COURT OF APPEALS

227 SCRA 161 [1993]

HELD: An intervention is merely collateral or accessory or ancillary to the principal action and not an independent proceeding. It is an interlocutory proceeding dependent on or subsidiary to the case between the original parties. Where the main action ceases to exist,

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there is no pending proceeding wherein the intervention maybe based. If the main action dies, the intervention dies also.

BUT there is another answer given by the SC in the case of:

METROPOLITAN BANK AND TRUST CO. vs. PRESIDING JUDGE, RTC OF MANILA

189 SCRA 820 [1990]

HELD: When the intervention is granted and the main action is withdrawn or dismissed, it would be unfair to dismiss the intervention. So the intervention proceeds notwithstanding the withdrawal of the main action.

“The simple fact that the trial court properly dismissed plaintiffs action does not require dismissal of the action of the intervenor. An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. The right cannot be defeated by dismissal of the suit by the plaintiff. Where a complaint in intervention was filed before plaintiff’s action had been expressly dismissed, the intervenor’s complaint was not subject to dismissal on the ground that no action was pending.”

So iba na naman ang sinabi. Even if the main action is dismissed, the intervenor can still claim the benefit of the intervention. So how do you reconcile these conflicting decisions now? Well, I think it DEPENDS on the ground for intervention. To illustrate:

EXAMPLE #1: The creditor files a case against the surety. The debtor intervened. So, he is joining the surety. Then creditor withdrew the complaint. What will happen to the intervention? The intervention cannot go on because the intervention is actually to assist the surety. So, if the complaint against the surety is dismissed, wala ng utang. There is no more basis to assist the surety. (BIG

COUNTRY ruling)

EXAMPLE #2: But suppose Pches filed a case against John claiming that she has a superior right to posses a piece of land. And then Tommy will intervene also claiming that he has the superior right to possess. So the three of them will fight. And then later, Pches will withdraw the case. What will happen to Tommy’s intervention? The dismissal of the main action does not mean that Tommy cannot prove his right against John. The intervention should continue. Bahala ka kung nag-withdraw ka, basta ako I will continue. I will claim that the land is mine. (METROBANK ruling)

Iyaaaan! It depends on what kind of intervention you are talking about.

Now, there an instance when intervention may be confused with another procedure under Rule 3, Section 19 on Transfer of Interest. For example: When a property under litigation is sold and there is a notice of lis pendens, the person who buys is called the TRANSFEREE PENDENTE LITE. In the case of

SANTIAGO LAND CORP. vs. COURT OF APPEALS

January 28, 1997

FACTS: Rose brought an action against a bank to enforce an alleged right to redeem certain real properties foreclosed by the bank. With notice of the pending civil action, Leo purchased from the bank one of the properties subject of the litigation. So Leo is now called the TRANSFEREE PENDENTE LITE. And later, Leo filed a motion to intervene. Rose opposed Leo’s motion for intervention.

ISSUE: Is a transferee pendente lite of the property in litigation has a right to intervene? HELD: The SC here made a distinction between the rights of a transferee pendente lite (Rule 3, Section 19) and an intervenor (Rule 19).

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