INTRODUCTION TO REMEDIAL LAW REVIEW (1st meeting)
Jurisdiction is the sun around which the remedial system revolves. Master the issue in jurisdiction, you have already complied 50% of remedial law.
In answering the exams, you have to determine: 1. What rule applies?
2. If there be no applicable rule, determine the jurisprudence to which it is related; 3. If the two abovementioned are not applicable, solve the problem under the principle
of jurisdiction
Basis of Jurisdiction:
1. The Constitution, particularly section 5 of Article 6; 2. BP 129 as amended by RA 7691;
3. RA 8369
4. RA 7639- Sandiganbayan- constitutionally mandated court What is Jurisdiction?
It is the authority to hear and decide a case Distinguished from Exercise of Jurisdiction
It is the effect of that authority. These are decisions, judgments, orders and resolutions. Jurisdiction is conferred by law. It is the law that gives authority
Kinds of Jurisdiction: 1. Over the subject matter 2. Over the person or property 3. Over the res
4. Over the issue
In criminal cases, there is what you called territorial jurisdiction. Venue here is Jurisdictional. In civil cases, venue is different from jurisdiction
Not capable or pecuniary estimation, jurisdiction is with the RTC
Jurisdiction over the subject matter—7691 (actions involving title to or possession of real property). If the claim is more that P400,000.00 in Metro Manila; or more than P300,000.00 outside Metro Manila
Jurisdiction over person/ parties: 1. Plaintiff;
2. Defendant.
Exception: Special Proceedings, one may oppose but he does not become a defendant
How does the court acquire jurisdiction over the: 1. Plaintiff?
Upon filing of the complaint. But jurisprudence dictates the mere filing of the complaint is not sufficient, payment of the correct docket fees is required (Check Alday vs FGU Insurance).
2. Defendant?
a. Valid service of summons;
b. Voluntary appearance. When the defendant voluntary submitted himself to the jurisdiction of the court.
Rule 14 provides for the Summons to be served to the defendant. The defendant maybe a prisoner, incompetent, insane or a corporation. (Check the Millenium case)
In Criminal cases, jurisdiction over the accused is acquired through: 1. Lawful arrest; or
2. Voluntary Surrender
In cases of third/ fourth/ fifth party defendant, court acquires jurisdiction over them through:
1. Valid service of Summons; 2. Voluntary Appearance
In cases of an Intervenor, court acquires jurisdiction over them upon approval or granting of the motion to intervene.
Jurisdiction over the res is used only in certain occasions such as when the jurisdiction over the person of the defendant is not acquired.
Res means facts of the case or status of a person. Example:
1. Annulment of Marriage- case may proceed.
Extraterritorial service of summons under Section 14, 15 and 16 of Rule 14.
2. Actions involving property, may proceed provided court acquire jurisdiction over the real or personal property
a. An action for a sum of money. The defendant cannot be summoned nor voluntarily appeared. Apply Rule 57- attachment or property to acquire jurisdiction over the res. The plaintiff can only execute the res. Pag kulang, that’s it because he did not acquire jurisdiction over the person of the defendant.
b. If jurisdiction over the person of the defendant is already acquired, res no longer necessary
Jurisdiction over the issue
Acquired through the allegations in the pleading Example:
1. Unlawful detainer/ Forcible entry. The issue here is possession de facto and not ownership or when the issue of ownership is raised in the pleadings, ownership must be solved first to resolve possession.
2. Action for sum of money- no demand letter- defendant may dismiss the case Jurisdiction over the subject matter:
Exercise of Jurisdiction
1. Original- for the first time to take cognizance of the case
a. Exclusive- lies particularly with this court and no other court
b. Concurrent- authority is share by several courts. Eg. Certiorari, prohibition and mandamus 2. Appellate a. Exclusive; and b. Concurrent Principle of Jurisdiction: 1. Judicial Hierarchy;
2. The Supreme Court is not a trier of facts;
3. Supreme Court may take cognizance for the first time of transcendental importance. Example: Rule 45 appeal by certiorari- must be brought on pure question of law but in the case of Francisco vs House of Representative, that was not the case (Impeachment case of Davide)
Delegated Jurisdiction
Jurisdiction of an inferior court taking cognizance of cadastral and land registration cases where the value of the property is not more than P100,000.00 and there is no opposition thereto.
Possible BAR QUESTION: San ang appeal nito?
General rule is that decisions made by the inferior courts must be appealed to the RTC. Exception to this rule is the Delegated jurisdiction, appeal in these cases is in the CA. Special Jurisdiction
Exercise by inferior court in taking cognizance for petition for bail or habeas corpus in the absence of RTC judges, NOT in the absence of RTC courts.
Limited Jurisdiction
Eg. Settlement of estate. Through a probate court only. Probate is concern only with the extrinsic validity of a will.
Residual Jurisdiction
Jurisdiction of a court in spite losing its jurisdiction because of the perfection of an appeal still retains it for purposes of preserving the rights of the parties.
Section 9 Rule 41- Perfection of an appeal- When perfected? Notice of appeal
Record on appeal- upon approval
Upon perfection of appeal, the court loses jurisdiction over the subject matter, and may file a motion for execution. Saan file? Sa trial court, still exercises residual jurisdiction. Regular courts:
1. Supreme Court 2. Court of Appeals 3. Regional Trial courts 4. Inferior courts
Quasi Court:
1. Civil Service Commission 2. Commission on Election 3. Commission on Audit Quasi Judicial Agencies
All other agencies that exercises judicial or quasi judicial function. Rule 43 provides that the Court of Tax Appeals and other quasi judicial bodies, but that is already amended. CTA is already elevated to the level of the CA. Remove that already from Rule 43. Delete the CTA there.
Just remember this five (5): 1. Court of Appeals
2. Sandiganbayan
3. Commission on Election 4. Commission on Audit 5. Court of Tax Appeals
All other quasi judicial bodies, appeal to the CA, except this five
Securities and Regulation Code, paragraph 5.2. originally cognizable by the SRC transferred now to the RTC but pursuant to SC Circular, integrated to the Commercial Courts or RTC.
NB: No more special criminal courts, the only special courts are commercial and family courts.
Sharia Courts- Muslim
1. Sharia Appellate Court—CA 2. Sharia District Court---RTC
3. Sharia Country Courts---Inferior Courts Check RA 7691
November 9, 2006
Q: What is the distinguishing feature, doctrinal wise, in the cases of Duero vs CA as distinguish in the doctrine laid down in Roxas vs CA? Are they conflicting?
A: Both of them are about issues of jurisdiction but in one case, the Supreme Court upheld the decision of the lower court, in another one it denied. Remember that the leading case in this regard is the famous case of Tijam vs Subunghanoy. We are being taught here about the proper application of estoppel. The two cases are not contradicting, in the Duero case, the participation is that there is no jurisdiction but in the Roxas case the participation is to ask a favor and when he failed to obtain the same, he raised the fact of jurisdiction, here there is estoppel.
Q: What are the remedies of the defendant upon judgment? A: Appeal in Rule 40, 41, 42 and 45.
What are the grounds for new trial/ motion for reconsideration? Know the time post of the remedy!
1. When a complaint is filed, what is the first remedy of the defendants? a. Motion to dismiss under Rule 16
b. Dismissal of Action
i. Dismissal by notice (section 1) ii. Dismissal by motion (section 2) c. Summary Judgment
i. As to defendant- counterclaim
ii. As to plaintiff- ask for judgment on the pleadings
d. Upon resting of the prosecution, the plaintiff may ask for demurrer to evidence under Rule 30
2. From the Judgment a. New trial
b. Motion for reconsideration c. Ask for relief from judgment
d. Appeal under Rule 40, 41, 42 and 45.
3. If you lose in the appeal, your final remedy is annulment of judgment
Knowing the sign post of remedy, the first question you are going to answer is “In what stage of the proceeding is this problem?”
If the stage of the proceeding is after presentation of evidence, you already know what is your remedy. After presentation of evidence of the plaintiff, defendant can file demurrer to evidence. But even before answer is filed, your remedy is motion to dismiss for any ground enumerated in section 1 Rule 16
In reading the cases, you’ll get to know what stage you are now so you’ll not get lost in the analysis. Before you go to the decision of the Supreme Court, go first at the court at quo, what happened there.
NB: The basis for declaration of default is only one, that is failure to file an answer, if your book still states “as in default” that is no loner correct, wla na ung “as in default”. There is only now Default.
General Rule is that jurisdiction may be raised at any time, even first time on appeal. Jurisdiction over the subject matter is conferred by law. The law that conferred the Jurisdiction of the Supreme Court is the Constitution. I ask you to memorize section 5 of Article 8 of the 1987 Constitution.
Jurisdiction of the Supreme Court:
The law that confers jurisdiction upon the SC is the Constitution under Sec. 5, Art. VIII. “Sec. 5. The Supreme Court shall have the ff. powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll,
or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua (or higher). (Note: the “or higher” clause no longer applies because there is no more death penalty.)
(e) All cases in which only an error or question of law is involved….” Note: The jurisdiction of the SC can either be exclusive original or appellate. Q: Over what actions does the SC have original exclusive jurisdiction?
A: The SC has exclusive original jurisdiction over the ff:
Petitions for certiorari, prohibition, and mandamus against:
1. Commission on Audit (COA)
2. Commission on Elections (COMELEC) 3. Court of Appeals (CA)
4. Sandiganbayan
5. Court of Tax Appeals (CTA)
Concurrent jurisdiction?
Notes: A petition for certiorari, prohibition, and mandamus is not always under the original exclusive jurisdiction of the SC except when the respondent thereto is any of the above-mentioned 5 bodies because these bodies are next to the SC in rank. BUT when you speak of petitions for certiorari, prohibition, and mandamus against the RTC, it is not exclusive, rather it is concurrent with the CA.
A petition for habeas corpus and quo warranto is not exclusive in the SC but is concurrent with the RTC and CA.
Just remember these 5 bodies; All the rest are outside the original exclusive jurisdiction of the SC in petitions for certiorari, prohibition, and mandamus.
Nevermind petitions for quo warranto and habeas corpus because you never file a petition for quo warranto against these bodies because what is quo warranto? Usurpation of power…why would you file it against the CA?...and the same thing with habeas corpus…so, it cannot be exclusive, but always concurrent.
Just remember CA, CTA, COA, COMELEC and Sandiganbayan, all the rest is outside the original and exclusive jurisdiction of the Supreme Court if it is petition for certiorari, prohibition and mandamus. But not quo warranto and habeas corpus because you do not file this petition with these bodies.
Q: What is quo warranto?
A: It is usurpation of powers, why will you file it with the CA and petition for habeas corpus. This cannot be exclusive but always concurrent.
In the application of concurrent jurisdiction, always remember the three (3) principles:
1. Hierarchy of Courts;
2. Supreme Court is not a trier of facts; and 3. Transcendental Importance
Even if it is in its concurrent jurisdiction, it does not mean that the party has an absolute right to file it with the Supreme Court or Court of Appeals, he has to consider the three abovementioned principle.
Supreme Court Appellate Jurisdiction: (b) section 5 Article 8
NB: Reclusion Perpetua or Higher; wala na higher sa reclusion perpetua
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) cases in which the jurisdiction of any lower court is in issue.
(d) criminal cases in which the penalty imposed is reclusion perpetua or higher. (Note: the “or higher” clause no longer applies because there is no more death penalty.)
(e) cases in which only an error or question of law is involved….” The term Review, Reverse, Revise, Modify or Affirm must be define separately and distinctly:
1. Review- what does review consist of? It consist of Reverse, Revise, Modify or Affirm. The term review is a catch all provision. Review means is to take cognizance of the decision but does not cover resolution of the lower body. Review means to look into.
2. Reverse- overturn a favorable judgment to an unfavorable one or vice versa 3. Revise- revision, not a simple amendment
4. Modify- modification or amendment
5. Affirm- accept the decision of the lower body
The first paragraph of section a paragraph 5 is exclusive original jurisdiction of the Supreme Court. Paragraph b refers to its appellate jurisdiction. So this power to Review, Reverse, Revise, Modify and Affirm is within the appellate powers of the jurisdiction of the Supreme Court.
Q: What does the phrase “review, revise, reverse, modify, or affirm “on appeal or certiorari” under Sec. 5, Art. VIII, Constitution mean? To what kind of appeal is it referring to?
A: The word “appeal” is by ordinary appeal. The word “certiorari” is ‘appeal by certiorari’ as a mode of appeal under Rule 45 because when you speak of “review, revise, reverse, modify, or affirm” it is in the exercise of appellate jurisdiction of the SC; it must have come from a lower court and not an original action under Rule 65 which is a special civil action and not a mode of appeal. Do not be confused.
Q: What are the modes of appeal under Rule 41 section 2? 1. Ordinary Appeal;
2. Petition for review; and 3. Appeal by certiorari
But the kind of certiorari mentioned is a mode of appeal because precisely when you speak of to Review, Reverse, Revise, Modify and Affirm, it is the exercise of appellate jurisdiction.
Q: So how could it be an original action when it is certiorari?
A: Do not be confuse, certiorari there refers to Rule 65 because Rule 65 is a special civil action, it is not a mode of appeal.
Q: What is a mode of Appeal by certiorari?
A: Rule 45. So the statement there on appeal—ordinary appeal or certiorari---appeal by certiorari---it cannot be a special civil action because it is appellate jurisdiction of the Supreme Court.
You do not go to the Supreme Court by ordinary appeal, well we are talking of civil action. In criminal action there is notice by appeal to the Supreme Court. Since there is no more automatic appeal because of the removal of the death penalty, but it does not mean you can no longer appeal to the Supreme Court, how? By notice of appeal and when you speak of the Constitution, it applies to both civil and criminal cases.
Q: The Court of Appeals has only one original exclusive jurisdiction and what is that? A: Action for Annulment of Judgment of the RTC. That is the only original exclusive jurisdiction of the Court of Appeals.
Q: If you file an Action for Annulment of Judgment of the MTC, where will you go? A: To the RTC.
General Rule: There is no way a decision, resolution or judgment of an inferior court can go up to the CA or SC, all must go to the RTC.
Exception: When the inferior court exercises delegated jurisdiction. It is the only instance that the judgment of the MTC can be appealed to the CA or Sandiganbayan. Inferior courts are not included in section 1 of Rule 45.
Q: Under what Rule is the exclusive original jurisdiction of the CA (annulment of judgment of RTC)?
A: Rule 47-On what grounds?
1. Intrinsic Fraud- prescribed after 4 years from discovery of fraud
2. Extrinsic Fraud- does not prescribed, limited only by application of the principle of laches.
Appellate Jurisdiction of the Court of Appeals
All decisions, final orders, judgment of the RTC and quasi judicial agencies. The exceptions to this are the five (5), all the rest are found under Rule 43. Just remove the CTA, because it is no longer appealable to the CA but to the Supreme Court.
NB: Decisions made by the Civil Service Commission is appealable to the CA. NB: HLURB is not in Rule 43 because appeal therefrom is to the Office of the President. From there, you go up to the CA.
Before, decisions of the NLRC are appealable to the Supreme Court. In labor cases. Walang appeal don. What is appealed to the SC is under Rule 65. But because of the St. Martin Funeral Homes case, appeal is now filed to the CA. The decision of St. Martin Funeral Homes, as reiterated in Rubber World case, is not actually removing the jurisdiction of the Supreme Court over decisions of the NLRC. But in St. Martin Funeral Homes case, considering in a petition for certiorari from the NLRC, question of facts are waived and the Supreme Court is not a trier of facts. It is more convenient to file the petition with the CA. Two years thereafter, the Supreme Court laid down a circular stating therein that “petition should now be filed in the CA, otherwise it will be dismiss. Not appeal proper, but under Rule 65. Rule 65 is not a mode of appeal but a special civil action.
Regional Trial Court has eight subject matter:
1. Incapable of pecuniary estimation (Russel vs Vestil; Barangay San Roque case). a. What is the determining factor whether the action is capable or incapable of
pecuniary estimation? What should be the nature?
When the money claim is incidental to the action, then it is not capable of pecuniary estimation BUT if the claim is determinable in terms of money then it is capable of pecuniary estimation.
b. Example: A filed a case against B for completion of the house. B agreed to build for A in the amount of P250,000.00. Which court has jurisdiction over the case? The Regional Trial Court has jurisdiction over the case because it is an action for specific performance. The amount of P250,000.00 is merely incidental to the case.
c. Suppose in A’s prayer he said: 1. Ordering B to complete the construction of plaintiff’s house; OR 2. Pay B the amount of P250,000.00. Which court has jurisdiction? No longer the RTC, it is already the MTC because of the word “or”. It is now determinable in terms of money. In other words, the cause of the transaction has been determined in the very pleading which is P250,000.00. If the prayer is for B to complete the construction of the house “and” pay P250,000.00, it is not capable of pecuniary estimation.
d. Rule: if the case is determinable in terms of money, then it depends as to what is the claim. If the claim is P300,000.00 and below-MTC; if the claim is more than P300,000.00- RTC.
e. In the case of Russel vs Vestil, that is precisely the issue here whether or not the action to declare null and void a deed of heirship and partition is capable of pecuniary estimation. The Supreme Court said NO! this is similar to specific performance and in specific performance money is only incidental so that whether or not there is a valid ground to annul a deed of heirship and partition, is not capable of pecuniary estimation.
f. The same doctrine was enunciated in the case of Barangay San Roque vs the heirs of Francisco. Expropriation proceeding is not capable of pecuniary estimation while it is true that in an expropriation proceeding there is determination of just compensation but that will come after the court has resolved the issue of whether or not the government or any of its instrumentalities is entitled to expropriate the subject property or the entity has complied with all the requirements of expropriation. So this is again not capable of pecuniary estimation.
g. In cases like annulment of judgment, whether the judgment is for a certain amount of money, but when you file an action for annulment of judgment it is not capable of pecuniary estimation because the principal issue here is whether the judgment is annullable or not, money becomes incidental.
2. Actions involving title to or possession of real property or any interest therein, where the assessed value of the said property exceeds P20,000.00; Metro Manila exceeds P50,000.00. What is action involving title to or possession of real property? Is annulment of title an action involving title to property? It seems so, but not anymore because of the case of Russel vs Vestil and Barangay San Roque. Before these cases came out, this was really complicated.
NB: You must analyze the nature of the action, and how do you do that? According to the “prayer”. If the prayer for money is only incidental, it is not capable of pecuniary estimation. If the conjunction is “and”, again it is not capable but if it is “or” it is already determinable by the very allegations of the pleadings and the value determines whether it is within the jurisdiction of the RTC or MTC.
NB: So by process of elimination, ano nalang ang action involving title to or possession of real property? It seems to me that the only action is “Recovery”, accion publician and accion reinvendicatoria because all the rest now are capable of pecuniary estimation.
3. All cases which used to be within the jurisdiction of the Juvenile and Domestic Relations court are now within the jurisdiction of the Regional Trial Court.
NB: BP 129 as amended by RA 7691 that the Securities and Regulation Commission, particularly section 5 paragraph 2, previously handled by the SEC are now transferred to the Regional Trial Court but not to the regular courts, rather to the special Regional Trial Court—Commercial Courts. There are no more Intellectual Property courts because they are already merged with commercial courts.
4. Admiralty and Maritime cases. Should an admiral always be a party to the case? What is admiralty cases? What are maritime cases? Carriage of Goods Sea Act. Admiralty should not be confuse to someone from the military, they are maritime cases. But the jurisdictional amount now is P300,000.00 and P400,000.00—RA 7691. Five years after and then five years after. The last five years happened in 2004.
5. Estate proceedings. This is something new, this was not included in the old rule. RA 7691—inferior courts now has jurisdiction already over Estate Proceedings and that is whether it is testate or intestate. Do not limit probate of a will to the RTC.
6. Marriage and marital relation is with the RTC, although it is a certain kind of RTC because it is the family court under RA 8369. So you correlate it with the jurisdiction of the RTC under RA 8369.
NB: Let me just remind you of one provision there that guardianship proceedings and custody of minor proceedings and petition for habeas corpus in relation thereto, it does not necessarily follow that the Family Court has exclusive jurisdiction over petition for Habeas Corpus. If it is a petition for habeas corpus in relation to custody or guardianship proceedings then file it with the family courts. But if it is an ordinary habeas corpus, not in any way related to custodial proceedings or guardianship proceedings, then it is the regular RTC.
Q: What are the Inferior Courts?
Q: Distinguish a municipal trial court from municipal circuit trial court?
A: A municipal trial court is one which is located in a municipality with a fixed presiding judge. If there is no judge permanently assigned there, it is a circuit. There roving judges.
Note: In inferior courts, there are two proceedings that which are applicable: (1) Regular procedure; and (2) Summary procedure. That is why jurisdiction there gets complicated because of these two procedures.
Q: What are the subject matter cognizable by the inferior courts? A: Actions involving personal property
Q: What are the actions cognizable by these courts and governed by the Rules on Summary Procedure?
A: Forcible entry and unlawful detainer;
Money claims limited to the amount of either P300T or P400T, regular procedure but 100T and below and 200T and below, Metro Manila, summary procedure.
The Rules on Summary Procedure apply only in inferior courts. As a general rule, there is no summary procedure in the RTCs. So, even if you hear that it is only “summary” in the RTC, it is not the same as Summary Procedure. It only means that there is no controversy in the action, there is no opposition. It is handled by RTC but it is summary. Do not apply the word “summary” there as to mean Summary procedure.
Q: In criminal cases, what is the determining factor to decide whether it is under the RTC or the MTC?
A: The duration of imprisonment. If more than 6 years, RTC..less than 6 years, MTC. If the penalty is only a fine, the determining amount is P4,000…above P4,000, RTC… below P4,000, MTC. BUT, if the penalty is BOTH imprisonment and fine, the amount of the fine becomes immaterial.
Note: Violations of BP 22 (Bouncing Checks Law) are now governed by the Rules on Summary Procedure irrespective of the amount of the check and exclusively under the jurisdiction of the MTC. The same thing with Negligence under criminal law (Criminal Negligence), any crime committed through negligence resulting in damage to property is exclusively by the inferior court irrespective of the amount of damage to property. Violation of Traffic Rules and Regulations, violation of the Rental Laws… these are all w/in the jurisdiction of the inferior courts.
In cases of penalty of imprisonment not exceeding 6 years, MTC, but when it is 1 year and below, it is summary. In claims, if P300T and below, it is MTC, but when it is P200T and below, and P100T, if it is outside Metro Manila, it is Summary.
Sandiganbayan: A Constitutionally mandated court.
The determining factor here is not the imposable penalty, but the salary grade of the accused. If the salary grade of the accused is 27 and above, it is w/in the jurisdiction of the Sandiganbayan. Aside from that determining factor of salary grade, it must be any of the following violations: (1) Anti-Graft and Corrupt Practices Act; (2) Executive Order 14 and 14-A (the PCGG cases); (3) Criminal Law on Bribery and Sequestration cases. The salary grade is found in the Classification and Composition Act of 1987. Moreover, all of the aforementioned violations must be committed in relation to one’s office.
RULE 1 Sec. 4.
In what cases not applicable: In Cadastral cases, Land Registration cases, and Election Cases, the Rules of Court are only suppletorily applicable because they have their own rules.
Sec. 6.
Proper Construction of the rules: Must not favor either party but must favor the administration of justice.
Sec. 5.
Commencement of the action: An action is commenced upon filing of the complaint as far as the plaintiff is concerned, but jurisprudence tells us that something else is required…payment of the correct or prescribed docket fees. This applies to all kinds of pleadings, whether the pleading is initiatory or an answer to a complaint w/c carries w/ it a counterclaim.
Alday v. FGU Insurance: It is only upon payment of the correct docket fees that the court acquires jurisdiction over the counterclaim.
Note: Remember that the Rules do not even distinguish as to what kind of counterclaim it is, whether compulsory or permissive. But in the Alday case, the payment of the correct docket fees is required only in permissive counterclaims. This seems to be the doctrine now, notwithstanding a clear provision in the Rules which makes payment of docket fees necessary in compulsory or permissive counterclaims. It is the defendant who shall file a counterclaim and as far as the counterclaim is concerned, the defendant is the plaintiff and the plaintiff is the defendant, whether it is compulsory or permissive.
The Rules were amended after the Alday case was decided, but as it stands,the Rules provide no distinction, the case provides a distinction, and in practice, clerks of court do not charge any docket fees as far as compulsory counterclaims are concerned.
Barangay 24, Legaspi City v. Imperial: The payment of the correct docket fees is even required in cases of appeal. In this case, there was already payment of the appellate docket fees but it was insufficient and so it was dismissed on the ground that the court did not acquire jurisdiction over the appeal.
Note: Even if you paid, but what you paid was not enough, still, the court does not acquire jurisdiction over the subject matter of the case.
Q: As to the third-party defendant, when does the action commence? If the parties to a case are A, B, C, and D, how would you possibly situate a third-party defendant, who among them and how?
A: A files a complaint against B. B would like to claim against C so he would include C as third-party defendant.
Q: If the original action was filed by A against B and C, would C be a third-party defendant?
A: No. The third-party defendant in this case would be one against whom the defendant files a case in the same proceeding. So, If A files a case against B and B files a case against C in the same proceeding, C would be a third-party defendant and if C would further file a case against D, D would be a third-party defendant and C would be a third-party plaintiff.
As far as A is concerned, the action is commenced from the filing of the complaint and the payment of the correct docket fees. As for B, the defendant, the action is commenced from the moment the court acquires jurisdiction over him (upon valid service of summons or voluntary appearance, as the case may be). As to C, the third-party defendant, also upon valid service of summons because he is also a defendant… and as long as you are a defendant, summons is always necessary, otherwise, the court will not acquire jurisdiction over the person of the defendant. BUT when you speak of ‘commencement of the action’, payment of the correct docket fees is jurisdiction over the subject matter of the action and not over the person of the defendant.
Q: If the action is filed by A against B and C, they are co- defendants and in that action, if B files a case against C, who would be B as to C?
A: Crossclaimant. In that situation, who would be the counter-counter defendant? B. Why? Because the complaint was filed by A against B and C. The complaint by B against A is a counterclaim. The answer to the counterclaim, w/c is required in cases of permissive counterclaims, is also against B, so B would be the counter-counterclaimant. Do not confuse this with a reply…reply is different in that a reply is not necessary.
Again, Commencement of the action is not only from the filing of the proper pleading but also after payment of the prescribed docket fees.
RULE 2 Sec. 2.
Cause of Action: The act or omission by which a party violates a right of another. Cause of Action v. Right of action:
A Right of Action springs from a Cause of Action; it is a remedial right and it is the right to commence and maintain an action.
Q: Between A and B who are plaintiff and defendant, respectively, who has the cause of action?
A: B because it was his act or omission w/c violated the right of A.
Q: How would you explain that there must be joinder of causes of action (Sec. 5) and in fact, in the joinder of causes of action, it is exceptional to the theory of ‘one suit for a single cause of action’ (Sec. 3)?
A: If the Rule defines cause of action as an act or omission by which a party violates a right of another, it must be in the defendant for he is the one who violates the right of the plaintiff. But if it is in the defendant, why is it that there must only be ‘one suit for a single cause of action’ when the cause of action resides in the defendant? If we do not clarify these things, we cannot proceed because this is the difficulty as it is not even discussed that is why you keep on inter-changing one for the other Cause of Action and Right of Action). Even in the Rules, the Cause of Action is inter-changed with the Right of Action. They are used interchangeably while they are not supposed to be because the Rule is very clear as to the definition of a ‘Cause of Action’. The Right of Action belongs to the plaintiff as against the defendant. The Cause of Action brings about the birth of a Right of Action .
So, when you say ‘one suit for a single cause of action’ (Sec.3), the word ‘suit’ belongs to the plaintiff. The cause of action belongs to the defendant.
Examples of Cause of Action: Breach of contract: The defendant breaches the contract and because of that breach, he violated the right of plaintiff. Suppose the breach is constituted by non payment of obligation, so the act or omission is non payment of the obligation. By non payment of the defendant, the right of plaintiff is violated. The plaintiff now has a right of action against defendant. That is why we say ‘one suit for a single cause of action.’ The Cause of Action is non payment. The right of Action is a suit for payment of sum of money.
Sec. 4.
Splitting a Cause of Action:
Q: Using the same example, how do you split a single cause of action?
A: One suit for collection of money and another suit for damages. Here, the cause of action is split because the damages arose from the non-payment, a single cause of action. You cannot bring two actions.
In a contract of lease, the lessee did not return the property at the expiration of the contract. That failure to return the property brought about a right of action to the lessor. The lessor now files an action for recovery of property, accion publiciana, but aside from the property, he would also like to recover the fruits thereof, unpaid rentals. He cannot file another case of unpaid rentals because it arose from the same cause of action. From one cause of action, should arise also one suit only. But it can happen that between the same parties, A and B, there are several acts or omissions on the part of B. So instead of filing several suits because the Rule provides one is to one only, one suit for a single cause of action, the Rules allow joinder of causes of action. (Sec. 5)
Example of joinder of causes of action:
There are several violations done by B against A.
Q: B borrowed money from A in the amount of P10T January 2006. Again, B borrowed money from A in the amount of P30T on March of the same year. Again in September, P400T. How many causes of action are there if B does not pay all obligations?
A: There are three causes of action. How many rights of Action? There are also three. How many suits should A file against B? He may file three, but may opt to file only one complaint. If A opts to file only one complaint against B, collection of sum of money in the amount of P440T, it will be allowed under the principle of ‘joinder of causes of action’.
Q: What are the requirements for joinder of causes of action? A: The requirements for a valid joinder of causes of action are:
1. The party joining the causes of action shall comply with the rules on joinder of parties;
2. The joinder shall not include special civil actions or actions governed by special rules;
3. Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC, provided one of the causes of action falls within the jurisdiction of the said court ant the venue lies therein, and
4. Where the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction.
Q: In the said example, is there joinder of parties?
A: No. There is no joinder of parties here because there is only one-party plaintiff and one-party defendant. There will be joinder of parties if A files a case against X,Y, and Z so there will be joinder of parties-defendants or A, B, C files a case against X, there will be joinder of parties-plaintiffs, or A,B,C, plaintiffs against X,Y,Z, defendants…there will be joinder of parties. ‘joinder of parties’ means there must be plurality of party-plaintiffs or party- defendants.
Q: If there is no joinder of parties here, then why does the Rule require that in joinder of causes of action, there must be compliance with the Rules on joinder of parties? What is the rule under Sec. 6, Rule 3 on Permissive joinder of parties? What is the requirement for joinder of parties?
A: There must be common question of fact or law. Q: Is that required in joinder of causes of action?
A: Yes. When you join causes of action, there must be commonality of fact or law. In the example given, there is commonality of law.
The causes of action joined must be governed by the same rules, so that a special civil action cannot be joined with an ordinary civil action because these two different actions are governed by different rules.
If A intends to file collection for sum of money against B and he also wants B to vacate the premises w/c he leased unto him, he cannot join an action for collection of sum of money and unlawful detainer because the former is governed by regular or ordinary rules and the latter is governed by special rules, being a special civil action. So in joinder of causes of actions, all of the actions must be governed by the same rules. Q: Let us change the value in the example, P10T; P30Tand P401T. If you were to file three separate actions, where would you file them?
A: As to the P401T, in the RTC; As to the P10T, in the MTC; and As to the P30T, also in the MTC.
Q: If you join them, where will you file the action?
A: In the RTC because of condition number 3 under the rules on joinder of causes of action.
Q: Suppose the amounts are P10T; P30T; and P360T. Where will you file it?
A: Applying the fourth condition in joinder of causes of action, the action shall be filed with the MTC as the aggregate mount is only P400T.
Q: Mr. A resident of QC filed a case against Mr. B, resident of Baguio City for collection of a sum of money in the amount P450T and an action for recovery of property located in Batangas. Can A join his causes if action?
A: Yes. Both are governed by the same rules, although the first cause of action is a personal action and the second is a real action. There is no prohibition against joining personal with real actions or an action in personam with an action in rem.
Q: Which court has jurisdiction over the case if you join them? A: RTC because both actions are within the court’s jurisdiction.
Q: Suppose the claim for a sum of money is for P100T, can you still join them? What court has jurisdiction?
Q: Where is the venue?
A: The venue of the action may be in QC, residence of the plaintiff; or in Baguio, residence of defendant; or Batangas, the location of the property, at the option of the plaintiff. There is no preference of real over personal or vice versa. The option belongs to the plaintiff.
In the joinder of causes of action, you resolve the issue of both jurisdiction and venue then you refer to Rule 4: Venue of Actions.
Q: When is the rule on venue not applicable (Rule 4, Sec. 4)? A:
(1) In those cases where a specific rule or law provides otherwise; or
(2) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.
Note: Even in the agreement as to venue, it can be interpreted either in the mandatory or directory character, if it is not exclusive…there must be the character of exclusivity. (ex: “exclusive of any other venue”; etc.)
Note: Take note of the doctrines in Katon v. Palanca and Manila Bankers Corporation case.
RULE 3
Q: Who may be parties?
A: Natural persons, Juridical persons, and those entities authorized by law (ex: estate of the deceased).
Q: Who is a party in interest?
A: A party who may be benefited or injured in a suit. The term “real party-in-interest” applies to both plaintiff and defendant.
Party in interest v. lagal standing
Party in interest is a matter of procedural law. Legal standing is a matter of substantive law
A party in interest is a party who may be benefited or injured in a suit directly. In Legal standing, there is interest in the subject matter although one may not be directly benefited or injured by the suit.
November 23, 2006
The case of FGU V. Alday is about counterclaim and docket fees. Q: Is non-payment of docket fees a ground for dismissal?
A: Rules provide for payment of docket fees for counterclaim irrespective whether the counter is permissive or compulsory. The Rule provides no distinction as provided in Rule 141 Sec. 7. However in this case the Supreme Court provided for a distinction. Q: So if presented with this problem which would you follow, the rules or jurisprudence? A little background would help.
A: When the Supreme Court amended the rules regarding docket fees it did not have any distinction. The implementing circular however became a subject of several protests which required payment of docket fees of counterclaim whether compulsory or permissive. Because of the protests, the SC recalled the circular. However in 2005, the IBP lifted their protest giving way to strict implementation of Rule 141 Sec. 7. But up to now the clerks of court in particular when there is compulsory counterclaim no fees are collected. This is what they do in practice. Hence it so appears now that the present policy is in accordance with the FGU decision.
Q: Tests to determine the nature of counterclaim: A:
1. When the issues arise from the same transaction
2. Whether res judicata will bar subsequent filing of claim by defendant 3. Evidence test rule – whether the same evidence is required
4. Whether there is logical relation between the claim and counterclaim Q: Kinds of Pleadings: 1. Complaint 2. Answer 3. 3rd party complaint 4. Counter claim 5. Reply 6. Intervention
Q: Who may file a counter counter-claim? A: The plaintiff
Q: Suppose A filed a case against B, against whom may B file a cross-claim? A: No one because there is only a single defendant.
Q: May B file a 3rd party complaint?
A: Yes against a party not an original party to the action to which he sought for indemnification, subrogation or other relief.
Q: Rules on counter-claim: A:
1. The counterclaim must be within the jurisdiction of the court both as to the nature and as to amount.
2. You cannot anymore subdivide a counter-claim. A counter-claim which exceeds the jurisdiction of the court must be dismissed.
RULE 7 Q: Parts of a Pleading A: 1. Caption 2. Body 3. Relief
4. Signature and Address 5. Verification
6. Certification against non-forum shopping Body
1. The part which states the right of action 2. Jurisdictional requirements:
a. That the plaintiff has a legal capacity to sue and in the case of defendant the capacity to be sued. If you do not allege legal capacity the complaint is immediately dismissible.
b. In case of defendant, his address or at least his whereabouts for service of processes
c. The rule provides that allegations of certain matters to be made with particularity such as fraud and mistake or with generality such as malice, intent or judgment.
d. Allegations must alleged only Ultimate facts which are the bases on one’s claim or defenses.
Actionable document
Q: Two (2) ways of pleading an actionable document A:
1. By setting forth the substance of such document in the pleading and attaching the document thereto as an annex; or
2. By setting forth said document verbatim in the pleading if such document is not lengthy.
Q: How to contest an actionable document
A: By denying specifically under oath. Failure to deny results in the admission of the genuineness and due execution of the document.
Q: Exceptions? A:
1. When the adverse party is not a party to the instrument
2. When an order for the inspection of the document was not complied with. Q: Meaning of Genuineness
A: Means that the document is not spurious, counterfeit or of different import on its face from the one executed by the party.
Q: Meaning of Due execution
A: Means that the document was signed voluntarily and knowingly by the party whose signature appears thereon, that if signed by somebody else such as representative that he had the authority to do so, that it was duly delivered and formalities complied with
Q: Four (4) criteria of authenticity and due execution: A:
1. Signature is not forged or falsified
2. The contents of the instrument is the same at the time it was signed 3. That all formal requirements are considered complied with
4. The same document has been signed and delivered Case of Benguet (doctrine)
If the authenticity and due execution of a document is duly proved, it extends only to the extrinsic validity of the document and not the truth of the contents of the document, which is the intrinsic validity. The records of the case clearly shows that the documents were contested.
SIGNATURE AND ADDRESS Q: Purpose
A: To assert that the parties had read the pleading and to know where the processes of the court may be properly served. The signature must be of the parties themselves VERIFICATION
Q: Purpose
A: Same purpose as signature
Q: Is it not a surplusage since it has the same purpose as signature? A: No, because not all pleadings require verification
Q: Which is more important, signature or verification?
A: Signature is more important because when the pleading is not signed the effect is that the pleading is not deemed filed. The remedy is to re-file. Lack of verification on the other hand is not fatal. The remedy is to file an amendment. If both are present, verification is confirmation of the signature.
CERTIFICATION AGAINST FORUM SHOPPING
The certifier attest that he has not commenced any other action against the same parties with the same issues, or if there is a case pending a statement of the present status thereof or if he should learn of a similar action or claim filed he should inform the court within 5 days therefrom.
Q: What is the effect of lack of certification?
A: Dismissal under Rule 17, lack of certification of non-forum shopping is not correctible by amendment.
In practice some lawyers separate verification from certification but some does not. Both the verification and certification must be signed by the parties themselves except if the party is a corporation and the lawyer is the in-house counsel.
In case of three or more plaintiffs, all of them must sign the verification and certification. NOTE: Certification of non-forum shopping is very important because of it can be proved that absence of such is malicious you can even be cited in contempt.
Q: What is Forum-shopping?
A: Party seeks a favorable opinion in another forum through means other that appeal or certiorari by raising identical causes of action, subject-matter and issues.
Q: Remedy?
A: Motion to dismiss based on litis pendentia or res judicata
NOTE: Do not confuse forum shopping with pre-judicial question. In forum shopping it involves even the same case file in other tribunal. In pre-judicial question it is necessary that one case is civil and the other one criminal which is not the issue in forum shopping.
RULE 9
Q: The following defenses are not waived even if not raised in a motion to dismiss or answer (cross refer to Sec. 8 Rule 15):
1) Lack of jurisdiction over the subject matter 2) Litis pendentia
3) Res judicata; and 4) Prescription of action
NOTE: A compulsory counter-claim not interposed is barred except Sec. 10 Rule 11. DEFAULT
Q: When may a party be declared in default?
A: After the lapse of period within which to file an answer and defendant did not file an answer seasonably.
Q: May a plaintiff be declared in default?
A: Yes plaintiff can be declared in default relative to a counterclaim especially of the counterclaim is permissive.
Q: A files a case against B for unlawful detainer. B received summons Jan. 5 and on Jan. 25 B has not filed any answer yet. May B be declared in default?
A: No B cannot be declared in default because the case is unlawful detainer which falls under summary proceedings. In summary proceedings a motion to declare a party in default is one of the prohibited pleadings.
Q: Suppose the case is one for collection of sum of money, may he now be declared in default? If yes, how?
A: Yes B can be declared in default by A’s filing of a motion to declare B in default. Q: Two kinds of motion:
A:
1. Litigated 2. Non-litigated
NOTE: If it is established that defendant did not receive a copy, it would be irregular for the court to declare Defendant in default.
The phrase “as in default” no longer applies. The only ground for declaration of default is failure to file an answer seasonably.
Q: Remedy of defendant declared in default A: File a motion to lift order of default
If denied: Motion for reconsideration
Q: Suppose there is no ground?
A: Wait for rendition of judgment by default, you now have ordinary remedies such as appeal or new trial or relief from judgment
NOTE: If the defendant is declared in default, he loses his personality before the court but by filing a motion his personality is restored.
Order of default is different from judgment by default.
A judgment by default is always preceded by order of default. There is only one exception to this and that is Rule 29, Sec. 3, Par. C which is refusal to comply with modes of discovery.
NOTE: Supreme Court always looks down on default order so if confronted with this problem your inclination should always be against default orders.
There are no injunctive relief in default orders. RULE 10
Q: Two (2) Classifications of Amendment: A:
1. Amendment a matter of right or by leave or court 2. Substantial or formal amendment
Q: Effect of amendment?
A: Amended pleading supercedes the original. Q: Totally?
A: No, admissions in the original pleading may be used as evidence.
Q: A files a case against B for collection of sum of money. Summons was served Jan. 10 and B filed an answer Jan. 20. May A still amend his complaint?
A: Yes because the period to amend a complaint as a matter of right is anytime before a responsive pleading has been served. Filing and service are two different things. Filing is with the court while service is to the parties.
NOTE: Amendment as a matter of right is absolute when the plaintiff has not yet received a copy of responsive pleading. If a motion to dismiss is filed, such is not a bar for a plaintiff to amend his complaint.
RULE 10
Q: If A filed a case against B for a sum of money and then there was no allegation as to a demand, hence the issue of demand is not within the jurisdiction of the court. During the presentation of plaintiff’s evidence, the witness of the plaintiff would like to present as evidence the demand letter, B objected the same on the ground that it was not raised in the pleading and therefore the court has no jurisdiction over the issue. If you were the judge, how will you rule on the objection?
A: You will grant the objection because the court has no actually jurisdiction over the issue. In granting the objection for denying the presentation of such kind of evidence because it is without jurisdiction of the court.
Q: As plaintiff, what will you do?
A: Under Rule 10 section 5, Amendments to conform or authorize presentation of evidence, the plaintiff may move for amendment and such must be granted to by the court with liberality. So even in this instance, at this point in time of the proceeding (during trial), amendment is still available. It is an amendment with leave of court. If the court does not grant it, it can be construed as grave abuse of discretion on the part of the court which is adept to certiorari or mandamus as the case may be.
As a general rule, the evidence must conform to the pleading. This time, considering that the evidence is not within the jurisdiction of the court, it should be the pleading that must conform to the evidence to authorize the presentation of evidence. That is the meaning of section 5 Rule 10.
Q: Suppose the amendment sought by the plaintiff here is a change of cause of action, will you grant it?
A: Even if it is a change of cause of action, it must be granted with liberality. But as a general rule, never with jurisdiction. Cause of action yes but jurisdiction no.
Q: Why?
A: Because if for example you filed a case with the RTC for sum of money in the amount of P350,000.00. That is definitely outside the jurisdiction of the RTC and you ask for amendment with leave of court so that the RTC will have jurisdiction, and changed the amount claimed to P500,000.00, you cannot do that because this is an issue of jurisdiction. You cannot do that. Why? because remember, under the latest jurisprudence on that matter, jurisdiction over the subject matter is not only conferred upon filing of the necessary pleading but payment of the correct docket fees. So the docket fees you paid for is only for the amount of P350,000.00, and you want to change it to P1 million, you wont be allowed. It is an indirect way of escaping the payment of the correct docket fees. This is taken from the old Mar Copper doctrine.
Q: How would you distinguish an amended pleading from a supplemental pleading? A: As to the purpose, an amended pleading aims to change certain facts while in a supplemental pleading you don’t change anything, you just ask for supplement. As held in the Remington case, there is no need for the issuance of a new summons because it did not change the cause of action. If the pleading changes the cause of action, then another summons is necessary because as a general rule, an amended pleading supersedes the original pleading.
Q: Even if it superseded the original pleading, is there anything admissible from the original pleading?
A: Admissions remain even when the original pleading has been superseded pleading. What kind of admissions are they? They used to be extrajudicial admissions but jurisprudence now, under the new rule, these are already considered as judicial
admissions. You have to distinguish that because the effect of a judicial admission is different from an extra judicial admissions whereby the latter requires or calls for proof, requires for offer. But because these are judicial admissions, you need not to offer them. It can be used by the court as basis of its decisions, judgment or resolution.
RULE 11
Next rule is only about periods. The only thing to remember here in Rule 11 are the following days- 10 days, then 15 days, then 30 days and finally 60 days. Tandaan nyo lang yon and we are through with Rule 11. So this is about when to file responsive pleading, take note they are responsive pleading so if there is nothing to respond to, a responsive pleading is not necessary but if it is required, when are you suppose to file them?
Q: So 10 days, what pleading must be filed within the period of 10 days? A:
1. Answer to the complaint when it is covered by the Rules on Summary Procedure; 2. Answer to an amended pleading if the amendment is not a matter of right;
3. Reply;
4. Answer to the counterclaim, cross claim and answer to a complain in intervention; 5. Answer to a pleading after a bill of particulars has been granted.
Q: Let’s go to 15 days: A:
1. Answer to a complaint under regular procedure;
2. Answer to an amended complaint when the amendment is a matter of right; 3. Answer filed by a third, fourth or fifth party defendant as the case may be. Q: Why is the answer in a complaint in intervention is only 10 days?
A: Remember that the one who answers it is already within the jurisdiction of the court. Kaya 10 days nalang but the one who is suppose to answer within 15 days is not yet within the jurisdiction of the court like a fourth party defendant is not within the jurisdiction of the court. So he must be first before he is brought within the jurisdiction of the court that is why you have the 15 days period.
Q: How about the 30 day period?
A: There is only one instance- when the defendant is a foreign corporation or foreign private entity and summons was served to the corporation through the government official in the Philippines. The 30 day period must be counted not from the receipt of the government official but from the receipt of the defendant itself, the corporation. Under section 13 of Rule 14, you will find out that a foreign private entity can be served with summons in three (3) ways. Kaya tatandaan nyo. If it is served to the government official in the country, 30 days, otherwise 15 days. This is the only 30 day period, wala ng iba sa rules.
Now finally, we go the 60 day period- When summons is served under section 15 of Rule 14 or what we call extra territorial service. But take note, there is a cross reference in section 15, that is 14 and 16. Before and after. That summarizes Rule 11.
RULE 12
Rule 12 is only the Bill of Particulars. Bill of Particulars maybe filed by any party that is suppose to file a responsive pleading. Before one files a responsive pleading and he wants to be clarified on certain matters, then instead of filing of the answer, he must file a motion for a Bill of Particulars.
Q: Who may file a motion for a bill of particulars? A:
1. So this can be filed by the plaintiff with regard to a permissive counterclaim. 2. This can be filed by the defendant with respect to the complaint.
3. This may again be filed by the plaintiff if he intends to file a reply.
Q: Anyone who is bound or required to file a responsive pleading may ask for a bill of particulars. What does this mean?
A: It simply means that you are not clear on a matter in his allegation, so clarify it. Q: Suppose in the complaint of the plaintiff, the plaintiff joined three (3) causes of action. Assuming the defendant owns him P50,000.00, on another occasion he owes him P130,000.00 and another occasion he owes him P300,000.00. There was no allegation of when and how it was loaned.
A: That is a very clear case that calls for a bill of particulars.
Although a bill of particulars is there in the rules, but you will note that this is very academic. I’m telling you now because in actual practice you don’t ask for a bill of particulars. Good lawyers won’t ask for that. What will I do? I’ll file a motion to dismiss for lack of cause of action. If I’m not clear on the matter, motion to dismiss so he’ll amend the pleading. Thus, you bought time. Like default, if I were the plaintiff and he did not file an answer, I will not move for declaration of default. Why? I will ask for presentation of evidence, after all if the party is in default, you are delaying your own case. Why? because there are many remedies to default and the court will grant this remedies. Motion to set aside the order of default, motion for reconsideration then judgment and you go all over again and when you move up to the Supreme Court the latter will say, no default, the party must be given due process. Don’t fight it out of technicalities, so remand the case for further proceedings after fifteen (15) years. Although these are very good problems in the bar but later on, if you were in practice, how can you avail of what you don’t even know. Like in the bill of particulars, it may not be that important but it might be given in the bar.
Q: So when do you count the period?
A: When you file a bill of particulars, the period to file a responsive pleading is stop and you’ll only have the balance of the period within which to file an answer if it is denied but if its granted, you have to file a bill of particulars within the period of 10 days but the 10 day period must be counted from the receipt of the resolution granting your motion for a bill of particulars.
Q: Suppose A filed an action against B and the latter received the summons in January 1. So he has ordinarily up to January 16 in which to file an answer but on January 5, instead of filing the answer he filed a motion for a bill of particulars. The court granted the bill of particulars on January 20, then the question is when should B file the answer? A: No answer yet because it is A who should clarify because the bill of particulars is granted, the order is directed to A to amend, to change what is suppose to be change, and if he does not, this may be ground for dismissal.
Now, after he has change, the 15 day period will no longer apply. The 15 day period ordinarily within which to file an answer no longer apply because of that bill of particulars. So what applies? You have only the balance of the period but not less than 5 days. Pareho lang yan ng motion to dismiss under Rule 16. Under Rule 16, when the defendant files a motion to dismiss and it is denied by the court, you do not appeal. Why? It is an Interlocutory order. So the defendant has only the remaining balance of the period but not less than 5 days.
Do not apply the Domingo Mated doctrine, the fresh day rule. This is a September 2005 case, Domingo mated et al vs Court of Appeals penned by Justice Corona. Bago yan ha, September 14, 2005, this is the fresh day rule or the fresh day doctrine. Baka lumabas sa bar, atleast you know. It simply says that when a motion to dismiss is filed and then the court denies it or grants it as the case may be, of course denied. You have the entire period all over again, 15 days, not just the balance. But do not apply it here in a bill of particulars and motion to dismiss because the time to file the answer is the remaining balance which must not be less than 5 days.
So the old rule applies only to Rule 42, 43 and 45. Yun lang ang may fresh day doctrine. It applies to Rule 41 as well. You have the entire period all over again. In fact my opinion on the matter is that it applies as well to Rule 64 and 65 because in Rule 65, a motion for reconsideration is mandatory.
RULE 13
Rule 13 is about Filing and Service. In Service, what do you use? Powder or lotion? Q: What is Filing and what is Service? Which comes first, Filing or Service? Distinguish. A: As to initiatory pleading, filing comes first, service later. Thereafter, service comes first and filing later. So when you file a complaint, initiatory pleading yan, you don’t serve first because it is the court that serves the same together with the copy of the summons to the defendant so filing comes first. But answer, before the court receives the same for filing, you must first establish that you have served a copy thereof. Aside from initiatory pleading, ordinarily processes that emanated from the court, filing comes first then service later. For example, judgment. A judgment that emanates from the court, this is first filed and then served a copy to the party. Resolutions and orders, they are first filed and then served.
We are going to discuss three (3) topics under Rule 13, so first is Manner or Mode of Filing and Manner or Mode of Service. The second topic is completeness of Filing and completeness of service. And the third topic is proof of Filing and Proof of Service. If you can answer that, tapos nanaman ang Rule 13.
Q: What is the mode or manner of Filing? A: There are two (2):
1. Personal Filing; and 2. Filing by Registered mail.
You have to distinguish now because in service it is different. How do you personally file?
Q: How about service, what are the modes? A: There are three (3):
1. Personal Service;
2. Substituted Service; and
3. By mail. Under mail, it is divided in two kinds, either registered or ordinary mail. Importante eto because you might ask regarding completeness and proof. So mag-didiffer yon, as to completeness and proof.
What is Personal Service? And by mail? Have you ever mail by registered mail? By Substituted Service. Do not confuse this with substituted service of summons.
Q: To whom do you leave a copy? Which Clerk of Court?
A: In every court, when you say RTC, isa lang yon. Kasi ang concept nyo pag sinabing RTC, ang dami nyon. Isa lang yon, but several branches. Every Regional Trial Court in a judicial region has only one clerk of court. But each branch has what you called a branch clerk of court. This city here in Metro Manila, for example here in Makati, there are more than 50 branches, but in Manila or Quezon City there are maybe a hundred I supposed or even more. Each branch has a branch clerk of court. This Substituted Service is not with the branch clerk of court but the Chief Clerk of Court. If your book says in the branch clerk of court, that’s wrong. It should be the Chief Clerk of Court and the latter is the one in charge with all the branches. In fact the sheriff is under the clerk of court. That is substituted service.
Q: What do you have to establish to avail of substituted service?
A: That is section 8, do not confuse that with section 9. You cannot avail of section 8 if the subject matter to be serve are final resolution or judgment, that is under section 9. Service of judgment, service of final order under section 9 is different from service of pleadings under section 8. In section 8, there is substituted service of pleadings but when you go to section 9, you do not avail of substituted.
Q: What is the provision of section 9? It is through publication. So that the period for finality of the resolution or judgment starts to run only after availment of section 9. In the case of substituted service, that begins to run upon receipt of the clerk of court of whatever pleading is served.
Do not confuse that with Rule 14, personal service is no longer used in summons. Personal service is used now in Rule 13. If you go to Rule 14, they do not use anymore personal service and you must follow that. It is already called Service on the person of the defendant under Rule 14. That is as to summons because substituted service of summons is very different. While here in service of pleadings, that is still personal service. If you cannot find the person to whom it must serve, you have to leave at the residence where a person of sufficient age and discretion is found, or in the office to a person in charge thereof. These three (3) ways are is still personal service of pleadings. Distinguish from the service on the person of the defendant under Rule 14.
Q: When is filing complete? A:
1. In Personal filing, after actual delivery.
2. If it is by registered mail, the posting is the date of filing. When you mail by registered mail, the post office stamp is the date of filing so that within the 15 day period for example, the stamping is in the 15th day, that is within the 15 day period.
Q: When is service complete?
A: You have to distinguish whether it is by ordinary mail or registered mail.
If it is by registered mail, from the actual receipt of the mail or 5 days thereafter from the first notice of the postmaster. The post office sends three notices, it is the first and not the last. Hindi eto unlawful detainer. In Unlawful detainer, you count the one day period from the last demand, dito first notice. In substituted service, upon actual receipt of the clerk of court.
Q: Proof of filing A:
1. If it is personal filing, the stamp made by the clerk of court. 2. If it is by registered mail, proof is the registry receipt.
