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Judge Marinas Civil Procedure Lecture Series 1 1
Judge Marinas Civil Procedure Lecture Series 1 1
>What is the effect if there is failure of referral to Lupon and there are no
MARINAS
1) FIRST EXCEPTION:
>Parties: Plaintiff (Brings the Action) and Defendant (One whom action is
brought against)
resident of Brgy. ABC, and so is the defendant. Should they refer their
>COA Elements:
and respondent is a resident of Aurora Hill, should they bring the case before
the Lupon? Yes. Even if belonging to different Brgys in the same City or
and D is from LTB, must they still refer the case to the Lupon? No more. This
is an exception.
>Eg 1.Plaintiff and defendant enter into a contract of loan. The defendant
executes a promissory note (which states that loan is due on May 1, 2013).
>Take note that no lawyer must appear as a counsel before the Lupon. What
Does the plaintiff have a right? Yes - the right to be paid.The plaintiff parted
with his money and thus has the right to be paid. (Proof is promissory note
which the defendant executed). The defendant has the obligation to respect
said right. Thus, defendant has the obligation to pay. (Considering that he
this case has not been referred to the Lupon because plaintiff and defendant
executed the PN). Upon due date, no payment was made by defendant.
Come weeks, still, no payments were made. Is there a violation of the right
of the plaintiff? YES, since the plaintiff has the right to be paid.Violation of
plaintiffs right caused damage (plaintiff loses money). Are all the elements
thereof. If you are suing the Govt, Municipality, or Brgy, then bring the action
to Court. State in the complaint that, This has not been referred to the
>Eg 2.Loan Due May 1, 2013. Secured January 1, 2013. March 1, 2013,
Lupon
the plaintiff already made a demand for the payment. Defendant asserts due
institution/subidivision/instrumentality
because
one
of
the
parties
is
Govt
date on PN so he does not pay plaintiff. Plaintiff files a case. Is there a COA?
None. Plaintiff has the right to be paid, and defendant has the obligation to
pay, but the latter has not yet violated the Plaintiffs right because said
violation will only come if on the due date there is no payment. Due date is
May 1, 2013, not March 1, 2013. Thus, if there is no violation, then how can
reason.
it cause damages? Thus, plaintiffs case can be dismissed for lack of cause
of action. Elements 3 and 4 of COA are not satisfied.
> The moment that a plaintiff has a COA, can he now proceed to court? NOT
YET. WHY? Remember the law on LGC (PD 1508) as to referral to the
Barangay Lupon. Barangay Lupon: Lupon Chairman (BrgyCapt). Mode by
which the Lupon gathers the plaintiff and defendant to forge a
settlement/agreement to prevent clogging of dockets of court. Even criminal
procedures penalty below 1 year and fine of P5000.00. In civil cases - ALL
CASES regardless of what nature will have to be referred to the Brgy. Lupon.
>If no settlement is reached in the Brgy, the Brgy issues a Certificate to file
action. This is to be attached in the complaint (pleading) that is to be filed
before the Court. That this case was referred to the Brgy but no settlement
has been reached, the Cert to file action is hereto attached as Annex XX
This shows compliance to referral to the Lupon.
VENUE
1.) BARANGAY:
>If parties reside in different Brgys (Same City/Municipality), then complaint
may be brought before either BrgyLupon (under the law, any of the 2
Lupons).
>For enforcement of settlement, it is much better that said complaint is
brought before a defendants Brgy.Eg. Plaintiff (Brgy.ABC) and Defendant
(Aurora Hill).May 1, 2013, demand letter was ignored. Plaintiff brings case
before Aurora Hill Lupon. Lupon calls for the defendant and a settlement is
reached. Plaintiff allows defendant to pay in installment (1st installment June
10, and every 10th of the month thereafter P20,000.00). Defendant binds
FIRST HOUR
>Original- Covers both Exclusive and Concurrent and Appellate Jurisdiction
>In cases of Concurrent Jurisdiction, we apply the Doctrine of Hierarchy of
Courts, which simply means that when Courts exercise concurrent
jurisdiction, then file it before the lower court (Respect for the higher courts,
lesser expenses (cheaper), and most important reason is that it affords more
remedies of appeal.
>There is only one case under the original and exclusive jurisdiction of the
CA (Annulment of RTC judgments)
JURISDICTION
>Another scenario. Eg. Defendant pays for 2 months but then fails to pay
later. The BrgyLupon has 6 months to enforce settlement. 6 months went by
RTC
and still no payment. Brgy. Is helpless and cant enforce. What is the
does it have exclusive jurisdiction? Yes. How about concurrent? Yes. RTCs
business place, workplace, or school, the case can be filed the the Lupon
1.) RTCs Exclusive Jurisdiction would cover actions that are incapable of
given by the law (BP 129 as amended by RA 7651). Jurisdiction can either
be Original or Appellate. Original- Court can hear it for the first time.
Exclusive Original Jurisdiction- A Court that can solely hear a case.
>Eg. Contract with an Engineer to build a house. Contract period expired but
Concurrent OJ- Several Courts can hear a case. Appellate- Case has been
house is still unfinished. Four posts were agreed upon but only 3 posts were
made. A year was given for the completion; however, the year has lapsed,
with money having been given and the house unfinished. What are the COA
LEVELS OF COURTS
incapable of PE? If the COA is for the Engineer to finish the house as agreed
>Municipal Trial Court (MTC) In capital towns. Municipal Circuit Trial Court
(MCTC)- Two or more adjoining Municipalities are circuitized and grouped
>1. Nature of the Action Test (NAT): Read the complaint (Eg. Specific
closest to civilization or the town that has the biggest population. (MCTC of
PE
Court (MeTC)- Only in Metro Manila (only one court with several branches).
Municipal Trial Court in Cities- One in each city with several branches
complainant.
>Eg. Plaintiff entrusted his certificate of stocks to the defendant because the
>Country is divided into Judicial Regions (Baguio belongs to the 1st Judicial
former had to leave for abroad. After years petitioner comes home and asks
Region). One RTC for each Judicial Region, with several branches.
defendant to turn over the Certs of Stocks. Defendant avoids petitioner, and
the latter goes to the company that issued the stocks and gets surprised that
3.) COURT OF APPEALS (CA)- Formerly IAC
he did not have any share in the company, that these have been cancelled
and are now in the name of the defendant. The defendant executed a DOS
purportedly from the plaintiff to the defendant forging the signature of the
Plaintiff making it possible the cancellation and transfer to the defendant.
>Using the Nature of the Action test, is it now capable or incapable of PE? It
is incapable because there is no monetary equivalent (Cancellation,
Declaration). Thus, file this with the RTC.
>Using the Ultimate Goal (End Goal). If the End Goal is money, then the
the entire property or just a portion. What you look at is the assessed value
case is capable of PE. What does the defendant want in the end? He wants
of the entire value of the property. The law was not created in order to
the certificate of stocks back to his name. What do the Certificates of Stocks
is then called for. The intent of the law is to take the entire assessed value of
the Ultimate Objective of the Plaintiff is to get back the monetary value of the
Certificate of Stocks. Thus if the Ultimate Objective Test is used, then the
>When asked in the quiz or exam about the problem above, answers
case is capable of PE
NEVER DISMISS. Eg. I will deny the motion because the RTC has
special action wherein the State takes private property for public use upon
incapable of PE. But if we use the UOT, then we will have to go to the
assessed value of the property, and the value would then set jurisdiction.
law (no need to give specifics) says that it is the assessed value of the
But the SC settled the issue in a case saying that it is the NAT that prevails
since Expropriation is incapable of PE, thus filed before the RTC regardless
RTC
has
jurisdiction.MAKE
YOUR
ANSWERS
COMPLETE,
SECOND HOUR
3.)
Law of the
>If the assessed value is above P20,000.00, file before the RTC. If the
assessed value is P20,000.00 and below, file before the MTC. This refers
only to places outside Metro Manila.>In Metro Manila, above P50,000.00
for RTC, and P50,000.00 and below for MeTC. Standards of Living in
Manila is much higher.
5.) Claims for damages (and Monetary claims- contracts involving money,
like a Promissory Note) or Actions involving personal property (movables).
Eg. Car borrowed but was never returned, then file Recovery of Personal
Property (No theft, because property was lent with consent). Basis would
be Jurisdiction Amounts (amount of damages or value of personal
property).
interests, the penalties, the surcharges. It is only the principal amount that
will determine jurisdiction. But if damages, add everything to determine
jurisdiction.
that the RTC has no jurisdiction. Defendant alleges that 50m2 of land does
not amount to P50,000.00, but only P5,000.00, thus to be filed before the
MTC. Therefore, defendant alleges that the case is to be dismissed for lack
of jurisdiction. (Can the court, on its own, without any motion, dismiss a case
when it has no jurisdiction? YES). You are now the Judge. Will you grant the
motion? No. Deny the motion to dismiss because the court has jurisdiction.
The Law says that, recovery of property or ownership or any interest therein
the assessed value prevails. So it doesnt matter whether you are after
>Eg.
Attorneys fees of
term used by the law is other cases where the demand exclusive of interest,
daw. He says that he is not a minor, and that private complainant are not
P407,000.00. File before the RTC. Include all because we are dealing with
minors as well. NO. Victim is a minor (Law uses the term victim, not private
jurisdiction.
(MTC has jurisdiction over all reckless imprudence cases regardless of the
resulting injury.
6.) All cases not falling within the jurisdiction of any other courts, tribunals,
>When does the RTC have jurisdiction over Reckless Imprudence? When
accused abandons the victim, or death occurs, and at the time of Reckless
>Civil Cases- In the Family Court, a civil case may be filed as to Annulment
against the corporation, etc. All under the jurisdiction of the RTC (previously
of Marriage, Legal Separation, etc. Anything involving the Family goes to the
Family Court.
respective territories.
>In criminal law, every person has the right to bail (unless for capital offenses
and evidence of guilt is strong).
>Does the MTC have Original and Exclusive Jurisdiction? Yes. How about
is not. But we can apply for bail and prove that the evidence of guilt is not
strong. Now accused is in jail and wants to post bail. But no judges are
available. The only one left is an MTC judge. However, the MTC has no
years). Still, accused wants to post bail. (Its easier to kill your wife than to
kill her). The MTC judge can step in Special Jurisdiction only in the
Upon renewal of contract, owner refuses and asks tenant to leave. Tenant
FAMILY COURTS:
only asked for the principal amount. He wonders about the interests, the
>Most cases under said courts are mostly criminal procedures or under
surcharges, the attorneys fees, etc. So, he files a second case against
special proceedings, and not under civil procedures. The Family Courts, as
envisioned by the law, have not yet come into existence ( no budget daw).
penalties, and attorneys fees emanating from the principal loan. What did
>There should be a Family Court in each City and Province (Capital Town) of
the Country. If the Capital Town is also a City, then that is where the FC is to
be found.
be one case related to one right violated. In the first case in the above
minor.
example, the right of the plaintiff to be paid was violated. How about in the
second case? The same The right to be paid. When we say the right to
be paid, it does not only include any principal amount, but all subsequent
would usually come when one case belongs to the MTC while the other to
the RTC.
to talk about. The only reason why the latter came into existence is because
Since plaintiff believes that the land case is more controlling, he files both
cases in the MTC (for sum of money and recovery of possession). Is there a
again and Rule 2 Lack of COA). However, since splitting does not belong
jurisdiction, and not misjoinder) and proceed against the 2nd case.
to any of those grounds mentioned, the 2nd case is dismissed due to RES
JUDICATA in relation to the first case disposed of. If the first case is still
pending at the time the second case is filed, the GROUND FOR DISMISSAL
not a ground for dismissal of the case, but the court will separate the
IS LITIS PENDENTIA.
>One COA is equivalent to only one Civil Action. For every right violated, we
can only file one case to enforce that right that has been violated.
before the RTC bec assessed value of the property is P30,000.00 which is in
>However, there is also a rule that says 2 or more COA is equal to 1 CVA.
the jurisdiction of the RTC. However, the sum of money is within the juris of
the MTC. Can this be? Yes. Because the RTC is a court of General
>Joinder of COA: The regular Joinder one plaintiff and one defendant, but
there a limit of the amount that the RTC can award? None. The MTC has a
limit though.
several rights violated, he can file one case for every right violated. This is to
7651), but determined by the allegations in the complaint. It is not for the
>Eg. The plaintiff wants to sue defendant for: Unpaid loan (right to be paid),
reading the complaint and applying the Nature of the Action Test, we see that
can file 1 case For collection of sum of money and recovery of personal
property.
the law. Look at the allegation for determination of jurisdiction. RTC cannot
>Eg. A, B, and C are all passengers of a bus. Along the way, the bus met an
suddenly lower the allegation and pass it to the MTC. The RTC must accept
accident (bumped the mountain) so passengers were not able to reach their
has not totally proven his/her COA. RTC judge found that plaintiff is only
100k, B-100k, and C-100k). Is it possible for each to separately file cases
against bus company? Yes. (All MTC due to amount). However, can the 3
>Eg. Complainant P100,000.00 filed before the MTC. It was then found
MTC. However, if they jointly file it and its all for damages, apply the Totality
Rule: In cases of monetary claims and damages, the total amount of the
amount. Res judicata would set in, and plaintiff cant file another case to
claim shall determine the jurisdiction of the court (100k + 100k + 150k =
>If a case is dismissed for lack of jurisdiction, said case can be filed in the
court that has jurisdiction.
parties. Is there a common question of fact and law? If yes, then there is
FIRST HOUR
> Recall Splitting and Joinder, both concerning the avoidance of multiplicity
of suits.
his books that there are several unpaid accounts. A has an unpaid account
(totality rule).
payments agent).
applies only in the MTC, but can be done in the RTC, so long as one COA
defendants separately? Yes. But can he file one case pursuant to the joinder
claims that defendant has not paid him his salaries for the duration of his
wrong, then there is improper venue. He is bound by the res. But, he can
both in the RTC. Is this possible? No. Because salaries, ER-EE relationship
also file cases separately. Limitation arises when we join a real and a
fall under the jurisdiction of the NLRC. You cannot use general jurisdiction of
personal action. The rules are clear as to where real actions are to be filed.
the RTC because it has no jurisdiction over claims arising from employer-
joined with the case for damages in Baguio? No. RTC yung nasa Baguo.
joinder. RTC will take cognizance over action for recovery of personal
But supposing damages in Baguio amounts to 200K (MTC), then both can
property but dismiss the claims for unpaid salaries for lack of jurisdiction.
be joined in LU where the res is located. When we join a real action and a
Jurisdiction.
>Jurisdiction What court? MTC?RTC? That is jurisdiction.
Special because they have their own rules and peculiarities that are not
present in ordinary civil cases, making them impossible to join with ordinary
However, lessor discovers that tenant accumulated unpaid water bills, phone
>Rule for Real Action Where the real property is located. If the
bills, etc totaling to 200k. Is there a proper joinder? No. Unlawful detainer is
real property is in Baguio, then the venue must be in Baguio. Eg.Action for
a SCVA, while damages as to bills are OCVA. The only allowable damages
under SCVA are unpaid rent and reasonable attorneys fees, as under the
rules. SCVA are usually dealt with summary procedures (no more trial).
SECOND HOUR
>PARTIES
contract.
>Plaintiff / Petitioner person who files the case. Plaintiff OCVA (initiated
plaintiff must choose the majority address where most of the defendants
reside.
right has been violated but because you want to establish a right.). Criminal
>Residence Where person is actually found. As opposed to
upon death. The moment the court takes cognizance, excludes all other
courts. What if he died abroad but his properties are in the Philippines? How
can his heirs settle his estate? Where can they file? Where any of his
properties are located, and when such court takes cognizance, it is to the
(joint obligation with Y). Is the relief complete? No. Must include Y to
court can acquire jurisdiction over the res the thing or subject matter -
because a judge allegedly gravely abused his discretion. Who are the
only.
jurisdiction over said person? If real action, same rule. If personal action,
who benefited from the judgment of the judge (public respondent nominal
file an answer, not the public respondent. Judge may make an answer when
there are direct attacks. Otherwise, pro forma lang.
against defendant in the amount of 500k (RTC). However, aside from the
assessed value is 35k (RTC). All belong to the RTC. Can plaintiff join
versus defendant). If the married woman is the defendant, she must also be
damages and recovery of property? YES. But if he joins them, then where
shall he file? RTC of LU, because the res is located there. If venue is
(Civil Code- husband is the administrator, head of the household, etc) In this
case, the husband is the nominal or pro forma party. A married woman can
defendant entered the property, which at that time was in the possession of
profession, quasi-delicts, or if they have been living away from each other for
>Quasi-parties Not actually a part of the suit, but suit is for their
properties. Dated July 11, 2013.Are there material dates mentioned? Yes
benefit. Eg. Class suit- two requisites. First, there must be a common or
1940s. Clearly, prescription has set in (30 years for bad faith on real
general interest among everybody. Second, they are too numerous that it
can ripen to ownership). Spells out that COA of plaintiff has expired.
>Eg. Motion for reconsideration for denial of Petition for mandamus , should
individuals. Can they all file a complaint (abatement of nuisance)? Yes, via
class suit (Common interest is to stop the factory, and numerous parties).
possession of the disputed land the court cannot immediately dismiss the
case. The court now takes cognizance of the case. However, court cannot
>In a criminal case, the court acquires jurisdiction over defendant via warrant
of arrest.
>In civil cases, there is Summons. Summons is a writ issued by the court
they be sued in a class suit? No. (They may be too numerous, but
directed to the defendant for the latter to answer the complaint. Once
properly served, writ entitles the court to have jurisdiction over the person of
in the land that they are occupying. Remedy is to file cases against
them individually. Action may also be joined.
>Can domestic corporations be parties? Yes. How about
>How many copies of the complaint to be filed? One for the Court, and one
confuse this with personal service of pleadings. In this case, the sheriff goes
Supposing it is a foreign
to the defendant and hands to the latter the summons. Then, the defendant
signs on the summons indicating the date of signing (reckoning point of 15
days for defendant to answer Just add 15 to that date to arrive at the
deadline). Sheriff must give this directly to the defendant. The rule says
By giving it personally to the defendant or by tendering him
>Tender Sufficient, even if defendant refuses to accept. The sheriff has to
>In criminal procedure, the judge has the power of outright dismissal of
is to make a return stating that the summons with the attached copy of the
cases. The moment the judge sees no probable cause, he can dismiss it
complaint has been served to the defendant personally on July 13, 2013 as
outright. But if there is, then he may order the issuance of a warrant of
can be seen on the signature of the defendant appearing on the face of the
arrest.
summons.
>In civil procedure, can the court dismiss the case motupropio? Yes, but only
counsel this is to guide the plaintiffs counsel that such has been served as
well as with the 15-day period. The moment there is a lawyer, service should
and determined by allegations in the complaint. Eg. Filed in the RTC, but is
a complaint for unlawful detainer. The RTC can dismiss the case outright as
the case ought to have been filed in the MTC. Or claims for damages in the
MTC for the amount of 500k can be dismissed outright due to lack of
>Priority Mode- Sheriff must exert all efforts and exhaust all remedies
>Prescription. Period within which to file the case, otherwise forever barred.
The court may dismiss on the grounds of prescription if the material dates
>If all possible remedies have been exhausted, then use the next mode.
Case of recovery
Eg.
is in charge.
>Prisoner Serve it to the warden. The warden will give it to the prisoner.
been in circulation for the past year, and judge determines whether to be
accredited or not submit all that have been put into circulation plus
>What if summons did not really reach defendant (was given to a qualified
the summons
FIRST HOUR
>Warrant of arrest is to Criminal Procedure, whereas Summons is to Civil
Procedure.
>Summons is to acquire jurisdiction over a defendant.
>A case cannot proceed when court does not have jurisdiction over
defendant so a summons must be served.
>A copy of complaint is attached to summons served by sheriff.
>Modes:
1) Personal Service Priority Mode. If all efforts have been
exerted failed then:
2) Substituted Service of Summons consist of bringing
summons to home, office, or place of work of defendant. To constitute it as
valid, home-person of sufficient age and discretion residing in the place
therein, office/place of work competent person in charge. Those are the
only valid means for substituted service of summons. It doesnt matter
whether defendant himself receives summons.
Is jurisdiction
acquired? No, jurisdiction is not acquired. But why bother with publication?
TO COMPLY WITH REQUIREMENT OF DUE NOTICE.
>4) Extraterritorial Service of Summons Outside of our territory. This
mode of service only applies to nonresident defendants. As compared to
constructive summons which applies to resident defendants, extraterritorial
service has limitations. Applies only to actions affecting the STATUS of
CLAIM.
>Eg. Plaintiff files a case for Sum of money (Personal Action). 1 million.
Defendant is out of the country (nonresident). Files a Motion for Leave of
Court to issue summons by Publication. Does the action affect the personal
status? No because it is a Personal Action. It does not affect the status of
the plaintiff, neither does it relate to the property of the defendant in the
Philippines.
>Eg. A Filipina meets a foreigner. Latter meets the former in the Philippines.
Foreigner leaves with promises of bullshit and stuff, but he was never heard
of again. The marriage was valid, so Filipinas status remain as married.
She no longer cant marry another. She then files for Annulment. But
defendant is not a resident. Can an extraterritorial summons then be served
and resorted to? Yes, because her status is affected. She wants to go back
to having a single status.
>ESS is also applicable to those that relate to PROPERTY OF DEFENDANT
IN THE PHILIPPINES.
>Eg. Recovery of possession of property against defendant (nonresident).
ESS can be resorted to, so long as Res is within the Philippines.
>How can ESS be resorted to then in a Personal Action (Claim for sum of
money)? Apply for a Writ of Preliminary Attachment look for properties of
defendant in the Philippines and ask Court to bring properties of defendant in
the Philippines under Custodia Legis. Then, Personam action becomes
Quasi-Rem (because properties are now involved).
Once attached,
the defendant for the court to furnish Alias Summons (Contains new
address). If defendant still cant be found in the new address, then Second
with the attached complaint must be sent to the last address of the defendant
summons via publication. Motion for Leave of Court must still be acquired.
country, but police officers of Baguio cant go to Ifugao with such warrant
defendant has 60 days from the last date of publication to file a reply.
coordinate with Ifugao police officers. The Court can issue a warrant of
Doesnt matter WON defendant reads it, so long as due process requirement
address of the accused which is outside the territorial jurisdiction of the first
over defendant.
defendant.
>In a criminal court, how can the Court acquire jurisdiction over an accused
>Finally able to serve to defendant, but no answer beyond July 16. What will
plaintiff do? Can now file a Motion to Declare defendant in default (MDDD).
Court).Commitment Mitimus.
VOLUNTARY APPEARANCE.
application for relief other than a pleading. What does it mean? A pleading is
also asking for a relief. A motion is more specific, however. Eg.Motion for
himself to the jurisdiction of the court, without the court having acquired
etc.Specific.
>Eg. Defendant hears of a case filed against him. He has not received any
>MOTIONS
Non Litigated
-Does not affect the rights of the adverse party.
-The court can act on this ex parte. NO NEED FOR A HEARING. Court can
-Affect
-A hea
heard.
as a voluntary appearance.
>Or, summons was issued (but defective), and defendant files an answer. Is
the defect cured? YES. Tantamount to voluntary appearance.
They have to
filed.
-Eg. Motion for Extension of Time to File an Answer, Motion for Postponement
(sometimes)
>After stating the Motion (Non-Litigated) Notice to the branch clerk of court:
Please submit the foregoing motion immediately for the consideration of the
court. (then signed by the lawyer).
>The Rules require that every pleading, motion, manifestation furnish the
Adverse Party (number 1 req)
>Adverse Party refers to the counsel. Service to the lawyer is service to
the client, but service to the client is not a service to the lawyer.
>Eg. Motion to Declare a Defendant in Default.
>Service of Pleadings vs. Filing of Pleadings.
>Service of Pleadings is the act of furnishing the adverse party all copies of
pleadings, motions, etc.
>Only pleading not served to adverse party Complaint. The court via the
sheriff serves the complaint (attached to summons) to the defendant.
Courts job, aside from gaining jurisdiction over defendant.
>Filing of Pleadings is the act of pleadings to Court.
>What comes first, service or filing? Service comes first, because what is
filed in court should bear the proof of service. If Proof of Service of
pleading is not present, the court is not bound to accept pleading. It is the
first thing that the court looks for.
>How do we serve pleadings to the adverse party? Similar to summons.
>(1) Personal Service of Pleadings (Priority Mode)- Delivering pleading to
the adverse party (lawyer), which is different from personal service of
summons (wherein summons is served to defendant himself).
>Eg. Copy Furnished Let adverse party sign the motions. The one that
bears lawyers signature is the one that is filed (proof of service).
-Eg. M
>Aside from the lawyer, is there anybody else who can receive? Yes. If in
the lawyers office, anybody in charge or working in the office can receive
such (still considered Personal service of pleading, unlike in summons
substituted). Received, date, and signature of secretary (one who receives
in the office) Still personal proof of service. How about in the lawyers
home? Yes. Must it be to a person of sufficient age and discretion? The
rules require that when such is served to the house, hours are observed
(8am-6pm) and privacy is respected, unlike service of summons.
>(2) Registered Mail Post office. Registry Receipt (attached near where
lawyer signs). The one that bears the Registry Receipt is the one filed in
court because it bears the proof of service. Is that sufficient? No. The rules
say that when it comes to service of pleadings, priority mode is always
personal service. If other modes are resorted to, there is a required WRITEN
EXPLANATION (TO OBVIATE DELAY) as to why it was not served
personally. Put explanation below registry receipt (eg. Service was done
through registered mail due to the distance between the plaintiff counsels
office, or due to lack of personnel in the defendant counsels office to make
service). Without explanation, pleading is treated as a mere scrap of paper.
As if nothing was ever filed. Failed to comply with the rule (if no personal
service, then via registered mail, with written explanation). Such rule was
incorporated was to OBVIATE DELAY. Date of mailing is the date of filing.
15 days to file an answer. Eg.July 16 deadline to file an answer. Served to
plaintiffs counsel, and a copy is filed in court. Court receives it July 27. Is it
late? No because via registered mail. Because the date of mailing will be the
date of filing, provided via REGISTERED MAIL.
>Notice of Hearing (Litigated) must comply with the 3-DAY NOTICE RULE
and THE 10-DAY HEARING RULE.
>3-day notice rule refers to the service of motion to the adverse party. The
adverse party must receive the motion at least 3 days before the intended
hearing. In other words, the proof of service must show that the counsel of
the adverse party received it before 3 days the scheduled hearing. This is to
give them time to prepare for hearing. (Eg. Hearing is set July 26, 2013.
Adverse Party must receive notice not later than July 23).
>10-day hearing rule Created to obviate delay. Hearing should be set
within 10 days from the date of filing. (Eg. Hearing is on July 26. Filing
should have been from July 16 and up). Take note, filing comes AFTER
service. So if it has been filed on the 16th, a proof of service should be
existent. Can the date of service be the same with the date of filing? Yes.
Naturally, if 10-day hearing rule is complied with, automatically the 3-day
notice rule would have been complied with because service comes first prior
to filing.
>Motion Day why Friday? Because fly-day. Potanginah.TuesdaysThursdays daw ay hearing day.Right to a neutral and impartial judge.
Judges fly back to their homes. However, the rule as to appointment in
home stations has been relaxed. According with the Rules Committee,
motions should not be heard together with the trial of the case. Motions are
disposed off quickly, except when there is a witness.
>Eg. Accused was convicted and sentenced to suffer imprisonment for 1
year (double registration during the election). His counsel (defense) filed an
MR and asked that it be set for a hearing; however, he never addressed it to
the adverse party (prosecutor), but to the clerk of court. The defense lawyer
only copy furnished the prosecutor, but never addressed it to him. The
court regarded it as a mere scrap of paper. Within 15 days after
promulgation, decision may be appealed. But if acquittal, final. When
decision becomes final, it becomes executor. In the case at bar, the 15 days
lapsed and decision became final, thus a warrant of arrest was issued.
Notice of hearing should always be addressed to the adverse party
(Prosecutor).
>MDDD- Technically, it is a nonlitigated motion because defendant had 15
days and he did not make use of it and therefore he no longer has any right,
letting the 15-day period lapse. Can the court act on it immediately? Yes.
However, rules say that they should be given a liberal interpretation kanu ta
decide on the merits. If MDDD is granted, the court issues an order
declaring defendant in default.
>What is the effect when a defendant is declared in default? Defendant
LOSES HIS STANDING IN COURT. A defendant declared in default is
entitled to notices but he cannot do anything he can also be present in
hearings but he cannot object, because he loses his standing. He cannot do
anything anymore already. Two things can happen when he is declared in
default and loses standing: (1) Court can render judgment by default. Since
10
1ST HOUR
>2nd QUIZ From summons up to what is to be finished by July 27, 2013
(Summons, service of summons, declaration of default, service and filing of
pleadings, motions, etc.)
>Tim Burtons (Canadian Coffee shop namalayongsosyalkumparasa
Starbucks daw)
>MDDD- This is filed by plaintiff if defendant does not file an answer within
the reglementary period of 15 days. Technically, nonlitigated motion.
Defendant already lost all his rights so there is no adverse party to be
affected. Rules of court are to be construed liberally to fully thresh out all
cases filed in court.
>2 things can happen when defendant is declared in default. (1) Judgment in
default based on plaintiffs complaint if the court believes that allegations in
the complaint are sufficient to warrant judgment. (2) If allegations in the
complaint are not sufficient to warrant judgment, or when there is a claim for
damages, then Court asks plaintiff to present evidence ex parte to prove
allegations. As to damages, they have to be proven with certainty. Clerks of
Courts (lawyers) are authorized by court to receive evidence ex parte, but it
is the judge who makes decision. Thereafter, there can be a judgment in
default (with evidence. The first judgment of default is without evidence).
>The only thing a defendant can do is to file a motion to lift order of default.
This motion is a litigated motion as it would affect plaintiffs rights. Thus, has
to comply with 3-day notice rule, 10-day hearing rule, and addressing
pleading to adverse party.
>Ground for motion to lift order of default- FAME (Fraud, Accident, Mistake,
and Excusable Negligence). Should always be accompanied with Affidavit of
Merits. It is the lawyer who prepares the pleading, but it is defendant who
personally knows about the grounds mentioned. So a sworn statement
(affidavit) is needed. Eg. Defendant met plaintiff. Defendant willing to pay
and wonders why friend plaintiff files a case. Plaintiff then promises to
withdraw case, but defendant is surprised by a motion to declare defendant
in default. This can be an extrinsic fraud. The defendant has to execute an
affidavit of merits about this. He has to state that he has a meritorious
defense. Not all 4 grounds can be raised altogether. Circumstances must
be stated. Excusable negligence may be because of lawyer or client.
Mistake, accident, whatever you call it, an affidavit of merits must be made
and attached to the motion to lift order declaring defendant in default.
>Can the court motupropio declare defendant in default? NO. Every litigant
has the right a cold neutrality of an impartial judge. If judge declares default
motupropio, judge is siding with plaintiff. (15-day period has lapseddetermined from sheriffs return of summons wherein date of receipt by
defendant is shown). Plaintiffs counsel is also guided of said date for him to
know to file a motion to declare defendant in default.
>If court finds merit in affidavit, then court will grant the motion and lifts the
order of default, wherein defendant regains his standing in court and directed
to file his answer.
>If there is already a judgment rendered by the court which doesnt become
final and executory, can defendant file for a motion to lift order of default?
YES. What happens to the judgment? It will be vacated because it has
become a one-sided judgment.
>If the first thing a defendant can do is not to do anything, THE SECOND
thing a defendant can do is to FILE A MOTION FOR A BILL OF
PARTICULARS (MBOP)
>Particulars- details. MBOP because there are complaints that are vague,
ambiguous, or unclear.Defendant cannot understand what plaintiff wants.
An MBOP can both be a litigated and nonlitigated motion, depending on how
judge would see it. RULES FOR LITIGATED MOTIONS NEED TO BE
COMPLIED WITH. Setting of hearing would then be discretionary upon the
judge.
>If the judge looks at the MBOP and looks at the complaint and agrees with
the defendant that complaint cannot be understood, the judge would grant
MBOP immediately and asks plaintiff to comply with the BOP (nonlitigated).
>However, if judge finds the complaint clear, the judge would then set the
motion for hearing (litigated).
2ND HOUR
01:04:40
>MBOP- on the hearing because court believes that complaint is clear
enough but giving benefit of the doubt to defendant, court now tries to clarify
with defendant allegedly vague complaints (eg. defendant acted in bad faith
thus plaintiff is entitled to damages and defendant wishes this clarified).
>How does plaintiff comply with MBOP? First, he can file an amended
complaint. If it is an amended complaint, how can it be shown that there is
an amended. Underline the amendments (or capitalize, bold, italicized,
open-close quotation, etc). Eg. Plaintiff wants to explain bad faith so goes
that the bad faith consists of chorvachorva (notice underline- to show
amendment).
>Must an amended complaint be served again with summons to defendant?
No need. A summons is served just for the court to acquire jurisdiction over
defendant. Since jurisdiction has already been acquired, plaintiff would just
furnish a copy of the amended complaint to the defendant follow the priority
mode.
>Second way is for plaintiff to submit a compliance or a manifestation. He
says, in compliance with the order of the court granting the MBOP, the
plaintiff submits compliance.
As the details to the bad faith,
chorvachorvachorva. Fully explain ambiguous provisions. Such is then
furnished to the adverse counsel via personal or registered mail.
>What if the court has granted MBOP but plaintiff did not comply? First, the
court can order that all those vague allegations in the complaint will be
stricken off of the complaint. Worse, the court can direct the plaintiff to show
cause why his case should not be dismissed because he failed to comply
with the order.
11
>If COA is stricken off, then defendant may file an MD on the grounds of
Lack of COA. So plaintiff should comply with MBOP.
>Eg. Defendant cant be located despite all efforts. And sooooooOOO, the
sheriff resorted to substituted service of summons. The defendant was
made aware that there was a summons issued against him so he goes to a
lawyer. Upon receipt, lawyer files his favorite motion MFEFA. Needs time
to prepare an intelligent answer daw, so asks for 15 more days from
tomorrow. Court grants motion. Then lawyer finds out that summons was
served to anusineighbor via substituted, so within the 15 days of extension,
lawyer files an MD on the ground of Lack of Jurisdiction over the person of
the defendant. Grant or Deny? Deny the MD. He is deemed to have waived
the second ground because he already asked for a relief, and thus cannot go
back and question jurisdiction of court. By asking for relief (MFEFA), lawyer
has waived 2nd ground. Instead of MFEFA, lawyer should have immediately
filed MD grounded on MFEFA.
>In Crim Pro Voluntary Surrender. Just like in Civ Pro voluntary
appearance - asking for relief. Jurisdiction upon this time could no longer be
questioned. Another voluntary appearance is filing of an answer even
without receiving a summons.
>Is filing of MD for lack of jurisdiction over subject matter asking for relief
from court? Yes. All motions ask for relief. So, Aside from Lack of
Jurisdiction over person of defendant (eg.MD for lack of jurisdiction over subj
matter, lack of juris over person of defendant, and LOJ bec of improper
venue, all in one motion). The MD based on the first ground was denied.
Are the other grounds deemed to have been waived by seeking these 3
together? NO. OMNIBUS MOTION RULE.
>Omnibus Motion Rule states that any and all grounds for a motion to
dismiss should be indicated in only one motion, otherwise you are deemed to
have deemed those grounds except for those that are nonwaivable.
>Eg. Opposite. The law says 300k and below, MTC. After trial, the plaintiff is
able to prove that he incurred more than 300k 400k in fact. Can the MTC
award 400k? No. Such is beyond its jurisdiction. Its limitation is only up to
300k. It can never go beyondits limit, unlike the RTC that can go below coz
it is a court of general jurisdiction. Plaintiff kase is so bobo he should have
filed it before the RTC. Moral Lesson of the story, bloat your damages to be
able to bring it to the RTC.
>You can question the courts jurisdiction over the subject matter at any
stage of the proceedings even on the first time on appeal, unless jurisdiction
by estoppel has set in.
the bus corp in Pasay City). Passenger was unable to reach destination.
>The court should only not have jurisdiction over the subject matter but also
over the person of the defendant.
>(2) Lack of jurisdiction over the person of the defendant. In order for
court to acquire jurisdiction over defendant, it has to issue summons which
has to be validly served to defendant via person, substituted, constructive, or
12
while the thousand others will be the quasi-parties. They will not go to court,
require that all civil actions should be executed in the name of the real party
in interest.
prejudiced.
>Eg. Landowner wants to evict all squatters from his property. Landowner
prejudiced by whatever decision that the court makes. In other words, all
vs X, Y, Z, and all other persons occupying land. Will this prosper as a class
iskwater.
property to Y, the latter selling it to Z. Now O wants to get back his title;
however, the title is now in the name of Z. Who is the indispensible plaintiff
(real party in interest)? It is O, because he is the owner of the property, and
2ND HOUR
other. General Rule All actions must be prosecuted in the name of the real
in his name. A case filed against X or Y will not return title to O. If against Z,
party in interest. Eg. Principal (owner of car) commissions agent to sell his
car. Agent finds a buyer and sells it to the latter. However, buyer doesnt
pay full price so agent files a case against the former. Buyer files an MD.
Who is the real party in interest (RPII)? In other words, who gets to be
the action in the name of the real party in interest? No. Buyer can now file
st
interest). However, agent may amend the complaint and state, Principal, as
represented by the agent to cure defect. Now, action is in the name of the
real party in interest. The agent now becomes the representative party
however there is still the issue with Y who also has a justified claim, being
the 2nd mortgagee. So in order to have complete relief to settle issue once
palangwaleyna.
nd
First element
even without Y, there can still be a case. However, the issue of 2 mortgage
Capacity.
>Pro Forma (Nominal) Party- For form, needed because the law requires so.
Eg. A married woman sues. The rules require that she should be assisted
husband is the Pro Forma Party. Such is the case except as provided by law
Insanity.
liability arising from crime, separation de facto for 1 year, etc). Another eg. In
>As to juridical persons: Domestic Corporation must state in its complaint for
a petition for certiorari, prohibition, and mandamus, the Judge is a pro forma
party and is not required to file an answer, else ignorance of the law. Private
the Republic of the Philippines, and duly registered under the Securities and
respondent is the person who will file an answer because said party stands
>Quasi-Party- Those who really do not appear in court but are affected by
business in the Philippines. No, it cannot sue but it can be sued if it is doing
requisites.
>So what should corporation state to give it legal capacity to sue? It should
state that it is legally engaged in business in the Philippines, and its authority
suit.
For a foreign corp illegally doing business, since it cannot sue, in a complaint
>Eg. New company brings out a new car. Unknown to the customers, there
13
>Where are corporate cases filed? Used to belong to the SEC, but now
pay full price so agent files a case against the former. Buyer files an MD.
Who is the real party in interest (RPII)? In other words, who gets to be
Corporate/Commercial Courts.
the action in the name of the real party in interest? No. Buyer can now file
>Legal capacity is stated and alleged in the complaint, also citing its
interest). However, agent may amend the complaint and state, Principal, as
represented by the agent to cure defect. Now, action is in the name of the
on lack of capacity to sue because their documents are spurious. Same may
real party in interest. The agent now becomes the representative party
apply for other grounds used for lack of capacity to sue. Defendant must
palangwaleyna.
Capacity.
COA (rule 2). Failure to State a COA is more of how complaint was stated.
Insanity.
This is also a
First element
(sic) he states that I erected a swimming pool and planted palm trees and
cattages (sic) and benches over the land. I own all these improvements,
and thus files a quieting of title against a defendant also claiming ownership
>In order to know that there is LitisPendentia, (1) There must be an identity
of the parties, (2) There must be identity of the subject matter, and (3)
identity of the relief sought: These are in relation to previous cases.
over property. His title is noisy jeje. Plaintiff alleges that since he put up all
the improvements on the land, therefore he owns the land. What is wrong?
There is a failure to state a cause of action.
14
>Supposing the first case is on Appeal, then a second case is filed. Can
defendants son raise LitisPendentia? Yes. For as long as a decision as to
the first case has not yet become final, there is still LitisPendentia. If
decision becomes final and executor, ground now becomes Res Judicata.
>WAIVABLE
>Sale of MV must always be in writing in order to effect a transfer.
>How about on the internet? Person orders red Ferrari but gets a yellow
pickup truck and pays with credit card. Is there a breach? Yes. How does
>RES JUDICATA Law of the case. Decision is final and executor. For Res
Judicata to set in, the above 3 requirements must be present in addition to
(4) a judgment that has become final and executory, (5) rendered by a court
of competent jurisdiction, (6) and court rendered judgment under trial on the
merits.
person prove that he did order a red Ferrari considering the Statutes of
>Trial on the merits- parties were given equal opportunity to present their
respective evidence (unlike judgment by default where evidence are
presented ex parte).
with provided there are documents that can be produced that can be
within the remaining period he has left after he filed the motion to dismiss.
Then, count 12 days from July 26 (again, exclude July 26 from counting
since it is a 1 st day). We arrive at August 7 after counting 12 days, including
the 12th day (last day as according to the NCC). Thus, he has 12 days left to
file an answer, and he has up to August 7 to file an answer.
15
>Why start counting from July 26? Because it was the date when defendant
>Who brings out the issues in every case? It is the DEFENDANT. Why?
complaint, we just have a story about how his right is violated. We still dont
General rule- do not include the day you received the summons or the day
have an issue because we do not know whether such allegations are true or
that interrupted the period. Start counting again from the time of the receipt
false. Upon the answer of the defendant, admissions and denials are made.
defendant admits being in the house of the plaintiff but denies signing the
promissory note because the defendant does not know how to write.
>LITERAL DENIAL Denial is made because there is no sufficient
knowledge to form a belief as to the truth or falsity of plaintiffs statement.
>Eg. In an allegation, it says- Because of the act of defendant, Plaintiff
suffered depression and couldnt eat or sleep, thus defendant must be made
to pay damages. Defendant has no knowledge of such so he makes a
Second Hour
>The answer of the defendant usually need not contain verification. But
when should an answer contain a verification?
Verification becomes
LITERAL DENIAL, having no basis to say whether such are true or not.
>Look at the answers filed by defendants and try to identify what kind of
denials are made.
>Avoid blanket denial. The defendant denies everything!!!. A blanket
denial is deemed an admission.
>The given denial was not supported with a verification, so the P files for a
Motion for Judgment on the Pleadings. Grant or Deny? Deny. Why?
Because denial was merely partial. Verification is needed for denials where
due execution and genuineness (DEG) is involved. D never raised fraud or
16
(DEG). Consideration refers to the intrinsic part, unlike DEG which refers to
>Judge M: uuuUUoooOOhhh you just let me finish dis! Thats the problem.
the extrinsic part. The actionable document rule only presupposes due
execution and genuineness of the document itself and does not talk of any
>I have to defend myself, which is why I hired a lawyer to whom I promise to
>And that is a CC. Is it compulsory? Yes, because it would not have arisen if
>Ill see you on Tuesday for the quiz, and Ariel, thank you so much for the
VN-20130731-00002
requirement of a specific denial under oath has been complied with. What
we are saying is that if it is an actionable document, you have to specifically
deny that document, that it is untrue, and saying that needs to be under oath,
presupposing telling the truth.
>The defendant must execute a statement under oath in the verification to
the effect that everything his lawyer wrote was the truth. Again, if not under
oath, the D is deemed to have admitted the DEG of a document. Thus, P
can now file a Motion for Judgment on the pleadings.
>Must the D furnish a copy of his answer to the P? YES. How? Same with
service of pleadings Personal, Registered Mail, etc.
>Supposing D furnished a copy to Ps counsel via registered mail, and
acquired a proof of service. D then files the same in Court, however absent
the explanation. P now files a Motion to declare D in default. Must the
Court grant the motion? YES. Why? Because D failed to include a written
explanation as to why personal service was not done and registered mail
was resorted to. The answer is deemed a mere scrap of paper, as if no
answer was filed.
>Aside from the answer, the D may also couple another pleading with his
answer COUNTERCLAIM (CC). Is there a CC that goes on its own? None.
It must be coupled with an answer.
defenses, but the CC contains the COA of the D. For plaintiff, COA against
defendant is embodied in a complaint, while for defendant, COA against
plaintiff is embodied in a CC (not another complaint).
>SOOOoooOOooww, its like dot! You think you are di only one? Me I also
have!
>Recoupment another term for CC.
>How will the plaintiff file the CC? By coupling it with the answer. Answer
with Counterclaim.
>In one document, the D has 2 pleadings: 1st pleading is the answer
containing all his defenses, while the 2nd pleading is the CC containing the
COA.
>What if D forgot to include the CC in the answer? Can he bring it in the
same case? Depends on the court, but must be brought before judgment is
rendered. Also, there are 2 kinds of CCs, either compulsory or permissive.
>Compulsory Counterclaim (CCC)- One that arises from the same
transaction subject matter of the complaint. Meaning, it is compulsory
because it is related to the complaint filed by plaintiff. If there is no complaint
from the plaintiff, then there is no ground for the CCC of the defendant.
>Because this case was filed against me, my reputation in the community
got besmirched
>Because of a ruined reputation, I should be entitled to moral damages in
the amount of P20.00
FIRST HOUR
>RECAP:
>Negative defenses- Specific Denials
>Affirmative denials Grounds for MD
>Must they be verified? General Rule, NO. But if answer is based on an
actionable document, then specific denial must be under oath. Via sworn
statement of defendant in the verification.Based on an answerable document
verified.
>The answer can be coupled with a counterclaim. A CC is the claim of the
defendant against the plaintiff.
>Eg. Defendant files a claim against Plaintiff if D himself has a claim against
the P. That is called a CC.
>In other words, a CC is the claim of the D against the P.
>How about the Answer, is that also a CC? No, the A contains the defenses.
From the word itself, it is an answer against the complaint. But for a CC, it
also contains a complaint against P.
>It is called Recoupment in other books (to get back).
>A CC can either be Compulsory or Permissive.
>If Compulsory, it arises from the same transaction subject matter of the
complaint.
>Regular CC, Because of this case filed against me by the P, I was
constrained to hire the services of a lawyer for which the P should be made
to pay. I suffered sleepless nights thinking about what this case is going to
do to me, for which the P should be made to pay moral damages. My
reputation in the community is now destroyed because everyone is talking
about me. Etc
>Those are all compulsory complaints because they arise from the same
subject matter of the complaint. Because it is compulsory, what is the
requirement? To be compulsory, it must be within the jurisdiction of the
court.
>Eg. P vs D for sum of money. Because this was only for 300k, it was filed
in the MTC. However, the D had a CC. In his CC, he says that, I am an
outstanding citizen in my community, and I already paid that measly 300K.
Now, because of what you did, you should pay me. But since I am not only
worth 300k and more than that, my counterclaim is now 1M.
>Is that a compulsory CC? NO. Why not? It may arise from the same
subject matter of the complaint but definitely it is outside the jurisdiction of
the MTC. So can the MTC take cognizance of the CC? It cannot because it
17
MTC can dismiss it outright. So even if it arises from the same transaction,
>When you file a motion for leave of court, you have to attach what you want
>Are we saying then that the D can file another separate case in the RTC,
this time the D as P, and the P as D as a CC? YES, provided that he has
>This is because the Court must first read the CC to determine whether they
Prosecution.
>Supposing the first case was dismissed in the MTC because the D was
attached to the Motion may now be admitted and made part of the records of
able to prove that he paid. How about the case filed in the RTC? Will it
the case.
can decide accordingly (either dismiss it because the case from where it
arose was dismissed, or can continue to hear it if there are indeed grounds
>But the point is, if it is really a CCC, it must be within the jurisdiction of the
court.
>Eg. P vs D for sum of money (300k). D has a CC claiming that for the past
2 years, he worked as a caretaker for P and has never been paid for 2 years
amounting to 200k. Further, D asks for offsetting which would amount now
to 100k. Is this now a CCC and within the jurisdiction of the MTC? The
amount is within the jurisdiction of the MTC, BUT THE NATURE IS NOT.
Why? Employer-employee relationship is involved, unpaid salaries, wages,
belong to the NLRC and not the regular courts. So is it a CCC? No, because
the regular courts have no jurisdiction.
>What is a CCC? If it is a CCC, it has to be included in the main case,
otherwise it may never be filed anymore.
>What if the CCC was not included in the answer, will you be allowed to
raise it anytime? Yes, the court will allow anytime before judgment. On what
grounds?FAME.
>EG. P vs D for recovery of personal property (car). D just files an answer
without a CCC. Decision D, return the car to the P, the latter is the rightful
owner of the car. Decision becomes final and executory. After returning the
car, D realizes that he forgot about all the improvements he made on the car.
So D now files for damages against P to recover the expenses he incurred
when he made improvements on the car. As the P, have the case dismissed
and grounded on RES JUDICATA. There is now a law of the case from the
st
1 case. The D should have raised the damages in the CC, because it would
have been a CCC as it arises from the same transaction subject matter of
the complaint.
>GUIDE QUESTION: Will the evidence needed in the first case (in the
complaint filed) be the same evidence that will have to be produced in the 2 nd
case? In fthe first case, P had to prove that he owned the car, and therefore
was entitled to it. What about D? D also had to prove that he had a reason
to own and thus keep the car in order for the case to be dismissed. So,
those are the sets of evidence needed proof that P owned the car and that
D also had a right to the car. You go to the next case for damages. What
evidence now does the D have to prove? He will have to prove that he was
the owner of the car which is why he installed all the improvements. And
what does the P have to prove so that he wont be liable for damages? He
would have to prove that he was the owner of the car so the D would have
no right to introduce improvements.
>Are those sets of evidence the same with the 1 st case? YES. Thus, a CCC
and should be raised in the main complaint with the answer or anytime
before judgment. If filed with the answer, then OK. But if filed before
Prayer
1) That the complaint is to be dismissed
2) That on his CC, the Court order the P to pay the Defendant
>D is asking for the dismissal of the case and is also asking for P to pay.
>Does a prayer need to be verified? Yes, because it has a complaint. And
complaints always need to be verified.
>Must there be a certificate of nonforum shopping? Depends.
>CCC doesnt need a CNFS. But for PCC, CNFS is needed, plus docket
fees.
>A PCC is separate and independent, and does not arise from the same
transaction subject matter of the case.
>Eg. P vs D for recovery of real property. However, D alleges that when
they were good friends, P borrowed money from him for which P signed a
PN the amount of which is 500k. Therefore, D now wants P to pay him the
500k loan. Is there a connection between the recovery of real property with
the PN? None. So meaning, can the D file an entirely separate case? YES.
But in order to avoid multiplicity of suits, D can include it as a Counterclaim
via PCC + Verification + CNFS + Docket Fees (A separate complaint
altogether).
>For CCC, initially there is no docket fees, but upon judgment on the CCC in
favor of D, the docket fees will constitute the first lien on the judgment in
favor of the D. At first, the D need not pay because its a CCC, but if he wins,
docket fees are deducted from what is to be awarded to him.
>PCC, may be included in the first case, or may also be filed entirely
separate from the main case.
>Eg. Interesting case daw. A truck and a van had a collision along a bend in
the road. Van landed in the ravine and was totally wrecked, while the truck
only suffered some damages on the front part. The first one who filed the
case was the truck owner against the van owner, claiming that the damages
amounted to 120k, thus filing it in the MTC. The van owner, upon filing of the
case against him, also filed a case against truck owner. Because the van
was totally wrecked, the van owner filed a claim of 450k against truck owner
before the RTC. The truck owner filed an MD based on litispendentia. Same
parties, subject matter, and reliefs sought in both cases. Truck owner said
that D should have instead filed a CCC, because his claim arises from the
same transaction subject matter of the complaint. But van owner questioned
the possibility of this since his claims was outside the jurisdiction of the MTC.
Truly, Ds case is a CCC, but because of the amount, it is taken out of the
jurisdiction of the RTC. If 2 cases are allowed to continue, there may be
conflicting decisions.
18
>If it is a CCC and is included with the answer, and the main complaint is
CC.
Upon
hearing and court finds merit in the affirmative defenses in the answer and
dismisses the case, the dismissal is only limited to the complaint.
>The decision further continues, The D is given 15 days from the receipt of
this order/resolution stating whether he will pursue his CC in the same case,
goes to E and asks him about the finances. D asks, what have you been
doing with the money, bitch? D files his answer and also files an XC against
E for the latter to take responsibility.
>Answer + XC. Check sample pleadings. D says, if the court finds me liable
for my share, then by way of XC, I want E to shoulder everything (that E be
made to pay all the loan including what I may be liable for).
>XC, by its very nature, is compulsory. So, if the main case is dismissed, will
SECOND HOUR
>Students: Maam rest, REEEST!!!
>Judge M: No. Ill finish this.
>Another Eg. 1st case was filed by P against H&W for cancellation of a deed
of sale (DOS) claiming that the DOS was not signed by the W, the property
being conjugal, and that any disposition thereof needed wifes consent. In
the DOS, it is alleged that the Ws signature was a forgery. Another ground
that was mentioned was that the DOS was null and void because the H&W
it carry with the dismissal of the XC? YES, because it has no more legs to
stand on. The complaint gives rise to the XC. Were it not for the complaint,
there would not be an XC. So when you dismiss the main complaint, then
there would no longer be an XC to speak of. The XC is dependent on the
main case.
>Must an XC be verified? An XC is a COMPLAINT by one D against a Co-D.
are members of the indigenous people. Under the NCIP, for the disposition
of a land by someone from the IP, it should bear the approval of the NCIP.
ancestral land. Anyway, as alleged, the DOS had no approval from the
NCIP. However, the case was dismissed because it turned out that there
was no forgery and that the NCIP approved it. The H&W was able to
produce a DOS with the approval of the NCIP. What was attached to the
complaint was a DOS without the NCIP approval.
nd
filed a case (2 case) against the H (W passed away) for damages because
H rented out the property to somebody else, and that P was claiming the
rentals alleging that he was the owner. But because of Res Judicata, the
case was dismissed. The H then also died, and the P filed a 3 rd case against
H&Ws children, reiterating the above-2 claims (which landed in Judge Ms
court). The children filed an Answer with CC. Their answer contained
affirmative defenses Res Judicata, while the CC (enough is enough)- we
incurred several expenses because of these expenses from the time of our
courts.
>Thus, being included among those considered as an initiatory pleading, an
XC require a CNFS.
>Also, because it concerns matters separate from the P but only between 2
Ds, then it would also need CNFS.
>Despite that, an XC derives its life from the main complaint. No main
complaint, no XC.
>Otherwise, dismissing the main complaint and letting E pay D would be
UNJUST ENRITSMENT.
>Since by its very nature a XC is compulsory, it then has be raised in the
main case.
>Can it be raised at any time before judgment (like a CC)? YES, but with
Leave of Court. The court will allow filing of XC on grounds of FAME, before
the judgment is rendered. If XC not raised in the same case, then it is
another case. The children decided on the former, thus the court set the CC
the person who filed the case. E can file 2 answers- Answer to a complaint,
However, during the presentation of the evidence of the CC, the P did not
appear. The children testified about the cases filed by the old disgruntled
fellow. Now the children were claiming for attorneys fees and damages.
The court rendered favorable judgment on their CC.
>Was that a CCC? Yes. So far, that is the only CCC I granted in favor of the
D. All the other CCCs had no basis.
>Weak Heart Doctrine Dismiss CCC hahaha. It takes more than saying
you could not eat or sleep to prove moral damages.
Anxiety and
19
FINALS
AUGUST 29, 2013
AMENDMENT
-Any correction, substitution, alteration of the original pleading.
-Underline the amended in the heading Amended Complaint
-Went to the house is changed to Went to the store
-This is done for the Court to see what exactly are the changes
made. It can also be put in bold letters (consider etiquette), but
underlining is sufficient.
-Whats important is that the Court immediately notices the changes
made.
-Can the Plaintiff amend his complaint? Yes. Can the Defendant
amend his answer? Yes. When? It depends on the kinds of
amendments made.
-1) Amendment as a Matter of Right- A matter of right. You can put
any amendment. It is only a matter of right if done once before a
responsive pleading is served (not filed). There is a difference
between served and filed.
-For the plaintiff, he can amend his complaint as a matter of right
before he receives the answer, and not when it is filed.
-Eg. Today, you receive the answer. [Since service comes before
filing (what is filed in court is one that shows proof of service)]
However, the defendant wont be able to bring the answer to Court
tomorrow. He is only able to bring it to Court on Monday. From
today and tomorrow, can you still amend your complaint as a matter
of right? No more. Because you received the answer today
(served to you).
-If as a matter of right, you can amend anything. Eg.P vs. D for
Forcible Entry. The assessed value of the property is 50K and P files
the case before the RTC. Right away, the Court can dismiss it
outright. On what ground?Lack of Jurisdiction.Even if the amount is
50K. Why? Because Forcible Entry is under the exclusive jurisdiction
of the MTC. But, the RTC was not able to see that. It took
cognizance of the case. When summons was served on defendant,
he saw that it was for Forcible Entry and was filed before the RTC.
Thus, D filed an MD grounded upon LOJ. Plaintiff receives MD. This
time, P files an amended complaint. The MD is set for hearing on
Friday next week, Sept 6. He thus files an amended complaint, and
underlines amended and changes complaint Recovery of
Possession and underlines it. Is this amendment allowed? (an
amendment conferring jurisdiction to a court that had previously no
jurisdiction super super substantial). Yes, the amendment is
allowed. Because it is an amendment as a matter of right. ONLY
ONCE BEFORE A RESPONSIVE PLEADING IS SERVED. But wait!
There was a Motion to Dismiss! No, an MD is not a responsive
pleading. What is a responsive pleading to the complaint?
ANSWER. Was there an answer filed? None. What was filed by D
was an MD.
20
matter of right, he has 10 day from the time he served his answer to
the P. But if the period expires, no longer a matter of right because P
will no longer file a reply.
-Summary- If its for the P, no problem because there will always be
an answer thus, 15 days. But, for the D who wants to amend his
answer but is unsure whether P is going to file a reply, then it is to be
based on the 10-day period from service of answer to P. After the
10-day period, even if there is no reply filed, it is no longer a matter of
right. It will already have to be with leave of court.
-2) Amendment with Leave of Court- Needs a Motion for a Leave
of Court. Motion to File an Amended Pleading. When does this
come in? After a responsive pleading is served. Or, second
amendment before a responsive pleading is served. Or,
substantial amendments.Discretion of Court.
-What are considered substantial amendments? Eg.Increasing the
liability of a D from 500k to 1M.Or including another defendant.Or,
changing of COA.
-Motion for Leave to File an Amended Complaint / Answer is a
litigated motion. At all times when you ask permission from the
court, it is always a litigated motion because the court before
exercising its discretion has to listen to what the adverse party has to
say to the motion. Then, depending on the ruling of the court, it will
accept amended complaint/answer.
-EFFECTS of Amendments:
1) It supersedes the pleading it intends to amend. Supersedes
prevails. Prevailing complaint / answer, superseding the old
ones.Now controlling. Original complaint / answer remains on
record. Its just that it will no longer be considered because it has
been superseded.
21
SEPTEMBER 3, 2013
FIRST HOUR
-Because we have CAM, on the day of the pretrial, we refer the
matter to mediation. If it is settled, then they have a compromise
agreement, the court issues a judgment based on the comp-ag which
becomes final and executory on the day it is executed. However, if
mediation fails, we go to judicial dispute resolution where the judge
acts as a mediator. We get the parties to come to a resolution of
their problems.
-In JDR, you do not look at the rights of the parties, but rather at their
interests. There may be rights that may be disregarded. If they
agree, the judge drafts out the comp-ag and lets the parties sign it.
The moment the comp-ag is approved, it becomes final and
executory on that same day.
-In JDR, there is an Early Neutral Evaluation. Both parties are hardheaded and would not like to look at proposals. Judge gives a
neutral evaluation of the outcome of the case based on their
evidence. Eg. You know, basing on your evidence, I think I will
judge in favor of the plaintiff.
-If JDR fails and then goes to court, a different judge will handle the
case. The parties have the right to the cold neutrality of a judge.
With an ENE, impartiality is destroyed.
-If JDR fails, all discussed matter remain confidential and may not be
used against each other in trial. Then, Judge will have the case reraffled in other courts. Sometimes, this is the Pre-Trial proper but will
be conducted by another court.
-Supposing there is only 1 MTC judge and 1 RTC judge? That is why
JDR is not jurisdictional. In single sala courts, if it is JDR, the RTC
judge does the JDR of MTC cases vice versa.
-2 judges Judge to whom the case was filed for JDR and the Judge
who conducts PT up to issuance of decision.
22
PRETRIAL PROPER
-PT judge handles everything from PT to issuance of judgment.
-During the PT, the presence of all the parties is mandatory. It is not
enough that only the lawyers are present. However, if the parties
cannot be physically present, they execute a special power of
attorney in favor of a lawyer or whoever is going to represent them in
the pretrial.
-SPA, for purposes of pretrial, the authority of the attorney-in-fact
must be stated as contained in the rules (RULE 18, Sec 2). This rule
shows things to be considered during pre-trial.
-Right now, mediation and JDR are not covered by the rules. But
where do we derive authority? Look at Rule 18 alternative rules of
dispute resolution. One of the things to be considered during pretrial.
-Alternative ways of dispute resolution other steps to be taken
aside from relying on the court .
-If you cannot be personally present, the SPA should contain the
authority to enter into any of those listed from letters A to I. I hereby
give my attorney-in-fact the power to abc copy all
-If it is not all included, it merely becomes a regular SPA, and does
not contain the proper authority necessary.
-Can an SPA also be used in mediation and JDR? Yes. However, it
must also contain not only all those mentioned in Rule 18, but also
the authority to enter into settlement in mediation or JDR.
-The presence of the parties is more important than the presence of
the lawyer in the pretrial. If plaintiff is absent or has an AIF whose
authority is not complete, what is the effect? If plaintiff is the one who
is absent, the complaint is dismissed. What if the lawyer is
present? Still, the complaint is dismissed (unless the lawyer has a
complete SPA). However, the dismissal is only limited to the
complaint. What happens if there is a counterclaim? The defendant
is allowed to present evidence on the counterclaim.
-Why? Presence of the parties is mandatory.
-If it is the defendant who is absent, or the lawyer is not armed with
an authority, or there is an authority but does not comply with the
rules, the plaintiff will be allowed to present evidence ex parte (before
the branch clerk of court who is a lawyer just like in default). What
happens to the CC of the D? It will be dismissed as well.
-If their lawyers are present, but the parties are absent, the case will
be dismissed.
-But if vice versa, the court will reset the pretrial and cite the lawyers
in contempt, or fine them for failure to appear.
-If it is a corporation or juridical person, usually the president or the
CEO represents. But, such authority must be contained in a board
resolution authorizing the former (or even their lawyer) to represent
them during the pretrial.
-If the defendant with the XC is the one present, he will be allowed to
present evidence ex parte against the absent defendant. But if the
defendant against whom the XC is filed is present and the defendant
who filed the XC is absent, then the XC will be dismissed.
-During the PT, the court will now issue a PT Order (PTO). Usually,
the first paragraph of the PTO will contain the authority given to
representatives (which shall be attached and made part of the record
of the case). Then, there is a brief summary of the case. Then, there
is the stipulation of facts. Under this, there are those that are
admitted and those that are disputed (Take note of stipulations of
proposals).
-You have to be smart enough to know what and what not to admit.
When it comes to admissions, be very careful. Under the admitted
facts, presentation of evidence is no longer necessary, because they
have already been admitted. If not admitted, put it under disputed.
During trial, these are now called Judicial Admissions because they
were admitted during the proceedings conducted in court. No need
to present proof as they are the evidence in themselves. However,
those that are disputed shall be subjected to the trial. Eg. Disputing
against the signing of the promissory note has to be disproved.
Thats why in the stipulation of facts, be careful with what you admit
or deny.
-After stipulation of facts, we go to the issues. The issue is
sometimes factual (detailed eg. WON the defendant signed the
PN), but more often than not, shortened (eg. WON the plaintiff is
entitled to his cause of action).
-Because of the JAR, the parties identify and mark the exhibits. Prior
to the JAR, the exhibits are listed in a documentary manner. But
now, documentary exhibits are no longer included. Testimonial
nalang.
-Trial Dates- In civil cases, the plaintiff always presents the evidence
first. In criminal cases, the prosecution is to present evidence first
because of the accused persons constitutional right to presumption
of innocence. However, accused may present evidence first when he
pleads a justifying circumstance.
-Is there an instance where defendant presents evidence first in civil
cases? NONE. In civil cases, it is the plaintiff that claims his right is
violated. He has to be the one to present evidence.
-Usually, in JAR, 1 day = 1 witness.
-The PTO shall guide the trial. No other witnesses can be included.
Should have been included in the PTO. All witnesses should have
been named in the beginning. No surprise attacks. Should appraise
each other of evidence.
-These can now give rise to the Motion for Summary Judgment.
This motion is filed only after pretrial. You want the court to resolve
the case already, based on the pleadings, the complaint, the
admissions, etc.
-If a legal issue is what remains, no need to present evidence.
Judges job is to look for applicable law.
-Factual issue vs Legal Issue: Factual won a certain incident
happened, won D signed a PN, etc. factual needing evidence
because the judge is not a god that knows everything that happened.
As to Legal Issue- What law is applicable? Or the law is there but
both parties have different views on how the law is to be applied. No
need for evidence.
23
-MSJ- all the facts have been admitted and now only legal issues
remain.
-In civil cases, the court can have the witness show cause as to why
he should not be cited in contempt for refusal to honor the subpoena.
But as an exception, a witness may be allowed to ignore the
subpoena upon invocation of Viatory Right.
SECOND HOUR
24
SEPT 4
FIRST HOUR
-Presentation of Evidence- After Plaintiff presents evidence, the D
may file a demurer to evidence (DTE)
-What is a Motion to Acquit? Criminal case = Motion for DTE
-MD based on insufficiency of evidence = Motion for DTE
-There is no demurer if prosecution or Plaintiff has not yet presented
evidence.
-Criminal Case DTE- must ask for LOC
-There is presentation of exhibits.
-Parties are given 10 days to make comments.
-Court would either admit evidence or not.
-Court wont admit on the following grounds:
-Not material to the case
-Not competent
-Not relevant,
-Now, with the JDR, all exhibits shall be contained.
-If Plaintiff is convinced that the evidence presented is not sufficient
to reach a degree required to have preponderance of evidence, he
may file a Motion for DTE. No need for LOC in civil cases.
-In criminal cases, if the Court grants demurer, this is tantamount to
acquittal.
-If the court denies the DTE, the accused is made to present
evidence.
-If Motion for DTE is filed without LOC, or Motion for LOC was denied
and still a DTE was filed, this can still be either granted or denied.
-If denied, the case is deemed submitted for decision. No chance to
present evidence because it is not with LOC. If it is a criminal case,
always ask for an LOC before filing an LTE.
>CIVIL CASES, for DTE, no need for LOC.
-Once court makes its ruling on the formal offer of evidence, then file
the DTE right away. This can either be granted or denied.
-If granted, this leads to the dismissal of the case.
-If denied, the Defendant is made to present evidence. No har no
foul.
-If the case is dismissed, does the P have a remedy? Yes. Via
Appeal.Unlike in an acquittal (Final and Executory) where double
jeopardy would arise.
-On appeal, if the appellate court agrees with the trial court, the
former will affirm resolution of the trial court and thus dismiss the
case.
-if The appellate court disagrees with the trial court, it will reverse the
ruling of the latter, which is tantamount to denial.
-Will the defendant be allowed to present evidence? No more. That
is the danger. No longer allowed to present evidence.
-Case will be decided based on Ps evidence alone.
-Will the appellate court decide on the case or remand? The AC will
decide on the case on its own. This is because the D is already
depreived of his chance to present evidence. Plaintiff wins.
JUDGMENT DAY
-Some use the word decision. Once it becomes FE judgment.
-Rules require judgment must be personally prepared by the judge,
must be in writing, and must clearly state the facts and the law upon
which it is based.
-Decision: Facts, law, body, and dispositive (decretal) portion
wherefore.
-Decretal / Dispositive portion is the judgment because it is the one
that will be executed.
-What if the body is in conflict with the dispositive portion? Which will
prevail? Dispositive portion will prevail, unless there is a glaring error
that dispositive portion is wrong.
25
FINALS COVERAGE
Note: FAME is the same ground for Motion to Lift Order of Default. If
such grounds were already used in MTLO, such ground can no
longer be used in MNT. Use a different one (from FAME)
Answer: Yes. D must file not an MR, but an MNT. He is asking the
court that he be allowed to present evidence because he was not
able to do so. His motion shall be based on the ground of extrinsic
fraud, a scheme or a machination on the part of P, so that D would
not be able to present evidence.
The moment MR is filed, the court may set it on the date filed for
hearing or the court sets it on its own. If the court sets the hearing,
notice of hearing is sent to person who filed the motion.
Excusable negligence
Problem: The lawyer fails to appear every time. As a result, the
Judge gets angry, so judgment is rendered against the party. Party
changes lawyer and files for a MNT. Will the motion prosper?
In denial of MD, the person has the remaining days to file an answer,
but if it is less than 5 days, automatically 5 days, if MD is denied.
b)
Note that in FPR, the decision is not changed, but the rules give a
15-day fresh period and only applies if an MR is denied.
If an MR is denied, can a second MR be filed? NO. Theres no such
thing as a second MR. Parties are only entitled to 1 MR. Both parties
may file separate, but both are only entitled to 1 MR.
Exception: Supreme Court may allow more than 1 MR, since it is
discretionary upon them.
What if a second MR is based on a different ground? Still no, all
grounds must be placed together in 1 motion.
NOTE: 15-DAY PERIOD IS NON-EXTENDABLE.
2. MOTION FOR NEW TRIAL (MNT)
It is a motion asking thecourt to go back to trial because party is
unable to present evidence.
26
27
1. Ordinary Appeal
How done: by filing a Notice of Appeal.
If the case emanates from MTC and it is to be appealed to the RTC,
the mode is via ordinary appeal. (notice of appeal)
If it emanates from the RTC and is to be appealed to the CA the
mode is also via ordinary appeal. (notice of appeal)
How is this done? Upon receipt of the decision and a party chooses
not to file an MR or a MNT, just prepare notice of appeal.
Appealing the decision of the court dated (date of
decision), which the undersigned counsel received on
(date received) to the (appellate court).
The date of receipt of decision must be indicated because the court
has to determine whether it was filed within the 15-day period.
Notice of appeal is only a notice, not a motion. Appeal fees mustbe
paid to the court of origin.
The court will just look at the notice of appeal, find out about the date
of receipt, and start counting 15 days from there. If it is filed within
the 15-day period, the court gives it due course.If it is out of the
reglementary period, then the court denies it.
4. APPEAL
If given due course, it is then forwarded to the appellate court.
An appeal is a statutory right. It is not a matter of right.What the rules
and procedures prescribe for it must be followed strictly and
construed against appellant.
It must be made within 15 days from receipt of the decision, or denial
of an MR, or the denial of a MNT.
Can a Motion for Extension be allowed for period of filing of an
appeal? No. Such is tantamount to extending the period of appeal.
The rule is that the 15 day period is non-extendable.
Who can appeal? Only parties to the case may appeal the decision.
A non-party has no ground to appeal.
Example:D did not file a third party complaint. Judgment is
rendered and 100K is within the indemnity agreement
between D and the insurance company. D does not appeal
within the period. Can insurance company appeal? No,
because it is not a party to the case. The judgment was
now to be executed.
D says that they cannot collect from him but instead, from
the insurance company because of the indemnity. So the
lawyer of D files a motion that the writ of execution should
be executed against the insurance company. The court
grants the motion, with an order directing the issuance of a
writ of execution against the insurance comp to pay liability
of D to the P. This time, can the insurance company
appeal? Yes. But what will it appeal? The decision? No.
Again, it is not a party to the case. Rather, appeal the
order, because that is where it got involved.
When the court gives an appeal due course, the court has 5 days to
transmit the entire records of the case to the respective court.
What if within the 5-day period, the winning party files a motion for
execution pending appeal? Can the court still act on it? Winning
party fears that loser might be disposing of properties while appeal is
being made. From the time the court gives due course to the appeal,
28
appeal as if the case has been originally filed before it. RTC will
require the P to pay additional docket fees.
-When the case is already before the RTC, it will no longer look at the
LOJ. It will now direct the D to file answer. However, if the LOJ is an
affirmative defense in the answer previously submitted to the MTC,
then the RTC will set the case for pre-trial. But if there was no answer
in the MTC, only an MD based on LOJ, then in the RTC the court will
ask the D to file an answer.
-In the same case, the D files an answer; however, after pre-trial,
trial, and finally in the decision of the MTC, it discovers that it has no
jurisdiction (or D includes LOJ as an affirmative defense but MTC
denies it), and D keeps insisting that MTC has no jurisdiction. What
will the MTC do? Will it decide the case on the merits? NO.
Because a court that has no jurisdiction cannot render a decision on
a subject case. Any decision it renders is null and void. Thus, the
MTC shall dismiss the case.
-In the above-case, if P files an appeal before the RTC and the latter
agrees that the MTC indeed did not have jurisdiction, the RTC shall
accept the case as if it has been originally filed before it. The MTC
trial shall be adopted.
-How about presentation of witnesses? The RTC did not get
opportunity to observe the demeanor of the witnesses? The RTC will
have to base it on the written transcripts, but may require the parties
to submit respective position papers to aid the court in the decision.
Then, the case will be decided on the merits.
-Take note: This is applicable only if the ground is LOJ and it is from
the MTC to the RTC in an ordinary appeal.
-Single salaMTC, bring the JDR on appeal to the nearest RTC.
SEPTEMBER 11
-Ordinary Appeal
-If appeal is made before the RTC, appellant will be direct to submit
his memorandum on appeal (written statement about errors
committed by lower court and what appellant is asking for).
-Memorandum on appeal Discuss the errors, why they are errors,
and how the court should resolve the errors.
-Copy of Memo should be furnished to Appellee. The appellee has
15 days to file own Memo on Appeal from date of receipt of
Appellants Memo.
-Appellant is directed to submit Memo on Appeal first, lest it result to
dismissal of appeal. Likewise, failure to submit within 15 days
dismissal.
-Filing of the Memo on Appeal is mandatory.
-What if Appellee disregards submission of Memo on Appeal? Will
the case be automatically decided against appellees favor? NO.
Wont affect decision. It is up to the appellee WON he submits
Memo. Some appellees may even make a manifestation adopting
the decision of the lower court as his memorandum on appeal
(because appellee won in the lower court)
-As a rule, appeal is submitted for decision. No trial. But now, the
court sets case to JDR on appeal. Usually doesnt work. Reraffled to
court that will resolve the appeal.
-In a crim case, accused appeals but does not submit a memo on
appeal. Will appeal be dismissed? NO. Here is where it varies. If it
is a crim case that is being appealed to the RTC from the MTC, the
accused and the prosec are given 15 days to SIMULTANEOUSLY
submit their respective memoranda. After 15 days, WON a memo is
submitted by either party, the RTC will decide the case based on the
records from the MTC. The appellate court will still have to go over
the entire records, unlike in a civil case.
-Is there a JDR on appeal in a crim case? Yes, as to the Civil aspect
only in cases of violations against BP 22, estafa, and theft.
-Eg. P vs D in the MTC. D files an MD grounded on LOJ. MTC
grants the MD. D wins. What is the remedy of P? Appeal or Rule
65?Appeal. MD is a final order, and not an interlocutory order.
Where will P file his appeal? Before the RTC.
-If the MTC dismisses it for LOJ, who then has a jurisdiction over the
case? Naturally, the RTC. Thus, if the case was dismissed by the
MTC for LOJ, and is appealed before the RTC, then the latter will
take cognizance of the case as if it was filed with it originally. No
need for RTC to ask the P to file the case before it again. It treats the
29
-Note changes of title. When it is a petition for review- eg.DefendantPetitioner vs. Hon Judge and Plaintiff-Respondents. Include judge as
nominal party (public respondent) because it is his decision that is
under review. The winning party is the private respondent.
-Will the petition require a CNFS? YES, because the rules require
that the petition filed before the CA should have a verification and a
CNFS.
-Before anything else, the CA will determine whether petitions are
sufficient in form and substance. If not with proper form and
substance (kunwari dilatory langdaw), can the CA dismiss it outright?
YES. But if it finds the form and substance to be appropriate, CA will
direct private respondent to file a comment to the petition for review.
Then, Petition may be required to submit a reply. Then, submitted for
decision.
C) The third mode is an Appeal by Certiorari (Rule 45) aka
Petition for Review on Certiorari.
-MTC to RTC- Ordinary Appeal
-RTC (origin) to CA- Ordinary Appeal
-RTC (appellate) to CA- Petition for Review
-CA to SC Appeal by Certiorari
-The only way to reach the SC is by the third mode of appeal.
-Appeal fees are to be paid before the SC.
-How many days to file? 15 days from receipt of the CA decision.
-Before going to the SC, can an MR be filed before the CA? Yes. If it
is denied, does the FPR apply? Yes. 15 days again.
-Can a motion for extension to file a petition for review on certiorari
be made before the SC? Yes. Subject to payment of appeal fees, for
SC to cognizance.
-Title: Defendant-Petitioner vs. Hon. CA and Plaintiff-Respondent
-Must the petition contain a verification and CNFS? YES.
-Subject of Petition: QUESTIONS OF LAW.
-If SC finds petition to be insufficient as to form and substance, it can
be dismissed outright. Eg. Notice of appeal was filed before the SC
DISMISS! Wrong form! Dilatory eklavu- DISMISS! No substance!
-When SC gives due course, the SC directs Petitioner to file
comment. If SC decides one unfavorable, can an MR be filed? Yes.
How about a 2nd one? Depends on the SC. It may foreclose any
further MR.
-For Mode 2, must the RTC forward the entire records to the CA?
Only if the CA requires. Sometimes the petition is complete in itself
so the CA wont have to rely on the records.
-How about for Mode 3, from CA to SC, must the entire records of the
case be submitted to the latter? YES.
-Are there decisions of the RTC directly appealable to the SC via
Mode 3? Yes. Decisions involving constitutionality of law, executive
agreements, Pres decree, etc. Or, WON a tax should be imposed.
Jurisdiction of the court. Pure questions of law. CA may be
bypassed.
-Once the SCs decision becomes final and executory, is there a
mode of appeal left? None. You pray.
-After judgment becomes final, supposedly for execution. However,
there are remedies after Finality of Judgment (Acts of Grace,
Consuelo de bobo) Construed strictly against party availing of this
remedy. If court finds out there could have been remedies before
finality, court dismisses this outright.
REMEDIES AFTER FINALITY
1) Petition for Relief from Judgment
-Asking to be relieved from judgment.
-To be filed before the same court that rendered the decision.
-Grounds: FAME (+AFFIDAVIT OF MERITS). However, if this has
been used in a Motion to Lift Order of Default, or has been used in a
Motion for a New Trial, this can no longer be used here.
-Act of grace. Complied with strictly.
-Must be filed within 60 days from notice of judgment AND within 6
months from entry of judgment.
-Eg. Ds counsel receives decision on Feb 5, 2013. He had 15 days.
He did not do anything about it, nor informed D about it. Because
there was no appeal, the decision became F&E on March 1, 2013.
Thus, P filed a motion for issuance of a writ of execution. Court
grants it. On April 1, the sheriff, with the writ, goes to the D. Sheriff
tells D the latter has to pay P 1M, according to the decision. D only
finds out about it, so he has notice of the judgment. His lawyer never
bothered informing him about it. D goes to another counsel on May
1. On May 15, D files a petition for relief from judgment. Was it filed
in time? YES. May 15 is still within 60 days from April 1. It is
likewise within 6 months from entry of judgment (March 1). Date of
entry is date of finality.
-What if D only goes to a lawyer on May 1, and it is only on July 1
that the PRFJ was filed. Is it still within the reglementary period? No
more. Even if it is within 6 months from entry of judgment, it is
beyond the 60-day period from date of notice of judgment. Thus,
filed out of time.
-What if he only found out about it on September 1, and files a PRFJ
on October 1. Was it filed on time? No. Within 60 days from notice,
but the 6-month period ended in August.
-Take note, the 60 days from notice and the 6 months from entry
should coincide.
-In an SC decision, PRFJ filed within the 6-month period and on the
61st day after notice of decision. The SC allowed this, saying that the
1-day lapse is negligible.
-In another case, PRFJ was filed within the 62 nd day and within the 6month period. The SC ruled against this, saying that the trial court is
correct in dismissing the petition because the rules are clear.
-Do not be misled by the decisions as they apply in those cases only.
Always be guided by the rules.
SEPTEMBER 12
-If PRFJ is denied, can this be appealed? No. Denial of a PRFJ is
not a final order, but rather, interlocutory. Thus, the remedy is
Petition for Certiorari under Rule 65. It is not a final order because
what comes next? An execution of the order. The decision has
already become final.
-When a PRFJ is filed, a restraining order or prelim inj may be prayed
for- for the court not to issue a writ of execution, to avoid the defeat
of the PRFJ.
-If PRFJ is granted, it is the same as if a MNT has been granted.
This means that the judgment is vacated (even if it has attained
finality). Thus, back to court to present the evidence which were not
presented due to FAME.
-Take note. Rule 38, sec 6. Theres something wrong. MR.
-Afterwards, a new decision may be issued, allowing for the remedies
before finality of a judgment.
-That is why a provisional remedy to stop execution may be asked
for.
2)Annulment of Judgment (Rule 47)
-Only case which is under the original and exclusive jurisdiction of
the CA.
-If it is an MTC decision, AJ may be filed before the next higher court
(RTC).
-If it is an RTC decision, an AI may be filed before the CA.
-Why go to the next higher court when this action is not an appeal?
-Annulment of Judgment is an original action. All MTCs are all of
equal jurisdiction. Likewise with the RTC. Therefore, to annul the
judgment of a court, the next court in the higher level needs to be
approached.
-Supposing the CA renders an adverse decision, an appeal can be
made before the SC. Mode 3 (Petition for review on certiorari), even
if decision has been rendered by CA by virtue of its original and
exclusive jurisdiction.
-GROUNDS FOR AJ:
1) Extrinsic Fraud- Happens outside the court litigation (fraudulent
schemes that P had the case dismissed yunpalahindi). Intrinsic fraud
perjury, use of forged document as evidence, etc.has something to
do with the trial.
-Prescriptive period 4 years from discovery of the fraud. (Fraud
Four.In any case where fraud is involved).
2) LOJ- Can be raised at any time.
-IMPRESCRIPTIBLE, but it can be defeated by jurisdiction by
estoppel and laches.
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OCTOBER 1, 2013
4) Special Judgment
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PROVISIONAL REMEDIES
Provisional means temporary.
These remedies cannot be filed on their own. They have to be
coupled with the main action.
Again, remember why a person files a civil case, because there is a
cause of action.
How will you get temporary relief or resolution to keep defendant
from violating your right?Through provisional remedies.
Kinds of Provisional Remedies (Rules 56-60):
1. Attachment
2. Preliminary Injunction
3. Receivership
4. Replevin
5. Support Pendente Lite
Note: At any stage after an answer has been filed, an application for
a writ of preliminary attachment is always LITIGATED. There must be
proper hearing, as the rights of the adverse party can be affected.
Kinds:
1.
2.
Once the prayer is granted, the court may issue a writ of preliminary
attachment, with or without respect to an attachment bond
(Discretionary upon the court).
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the car, along with the market value of the car, the latter becoming
the basis of the bond. However, the bond will be twice the amount of
the fair market value. When the company files the complaint along
with the affidavit, this must contain the bond, because replevin is
issued ex parte. All that is issued ex parte cannot be executed
without acquiring jurisdiction over defendant. The court needs
-If in attachment there is a counter-bond, here there is a redelivery
bond.
-The defendant is given 5 days to file redelivery bond which is the
same amount as the bond.
-Where to file for recovery of personal property- depends on the
value of the personal property (jurisdictional amount)
OCTOBER 5, 2013
6) Expropriation
-Eminent Domain is the right (substantive). This is how it used to be
called.
-How is it enforced? Through expropriation proceedings.
-Filed before the RTC- incapable of pecuniary estimation.
-2 stages of trial:
a) propriety of expropriation
-plaintiff- RP or govt institution vs private individual
-What does plaintiff have to prove? That the property is for public
use. Prove in the first stage.
-If private individual has no objection to the taking, then there is no
need to file an answer. Just file a manifestation and state that there
is no objection to the taking.
-If no objection, must the government still prove that it is for public
use? Yes, it has to. Because there is disbursement of public funds.
-What if defendant objects? Then he must file an answer.
-Motion to Dismiss is not allowed in expropriation proceedings.
-If he has valid grounds to file a motion to dismiss, then defendant
has to put this in his affirmative defense.
-After first stage, can the court render a decision? Yes.
-Whether or not for public use.
b) Second Stage- Just compensation
-Will come in only when court determines that it is for public use. If
the taking is only for the building of a gold course for napoles and
friends, then the court will deny, and there will no longer be a 2 nd
stage.
-Can defendant appeal decision even if there is a second stage? Yes.
There is where record on appeal comes in.
-Record on Appeal- reproduction of the record of the original trial.
Note that second stage commences so records must remain with the
court dealing with the expropriation proceedings.
-The Record on Appeal is the one forwarded to the appellate court for
purposes of appeal.
-Thus, there are 2 records: The first one stays in the original court for
purposes of proceeding with the second stage, while the second one
is sent to the appellate court for purposes of appeal.
-Who is responsible for the production of record on appeal?
Appellant. He will be given 30 days to produce record on appeal.
-Contains all the pleadings and all the records. If the original court is
satisfied, it will approve the record on appeal and forward it to the
appellate court.
-While the CA goes about with the appeal, the RTC determines the
just compensation in the 2nd stage.
-Trial by Commissioners. Court cannot be saddled with the nitty
gritty of determining value of each mango tree and whatnot, then it
will appoint commissioners, usually 3: One appointed by the
government, another by the defendant, and the third (chairman) is
chosen by the court. Commissioners are answerable only to the
court.
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9) Unlawful Detainer
-Common in Baguio City.
-Every right to remain in the property, but upon losing right, you are
asked to leave.
-Must a demand be made for the person to vacate?
-If ground is expiration of an express contract, NO DEMAND is
necessary (Eg. Contract of lease with specific date, nonrenewable)
-Upon end of contract, there is now illegal detention of the property,
the person being aware of the conditions of the contract, thus not
necessitating notice or demand.
-Supposing there is no written contract? Period will depend on
payment of rent (eg. Monthly, edi monthly.Weekly, edi weekly.Daily,
etc. Hourly, ibanayan. Short time)
-Implied contract- There is NEED OF DEMAND, so that lessee will be
aware that he is no longer authorized to occupy.
-What if the ground of the unlawful detainer is nonpayment of rent? 2
demands must be made: A demand to pay and a demand to vacate.
-What if the grounds are based on other violations of the contract?
(eg. Subleasing, overcapacity, turned into a sari sari store, etc) if the
grounds are violations of other provisions of the lease contract, then
demand is necessary.
-What kind of damages can be collected in unlawful detainer?
Rentals and reasonable attorneys fees.None other.
-What if lessee has not been paying city services. Will a case for
unlawful detainer and damages (covering elec bill, water, phone bills,
etc) prosper? No. A special civil action and an ordinary civil action
cannot be joined (remember limitations?)
-This is not a ground to dismiss. Since it is a misjoinder, the court will
just sever and proceed against cases separately (consider
jurisdictional amount of ordinary civil action as well).
-Besides, Forcible Entry and Unlawful Detainer are under rules on
summary procedure.
-The MTC issues an order that says this is a case covered by rules
on summary procedure (for FE or UD)
-What are the rules?
-Referral to Lupon. If not referred, an MD can be filed on the ground
of NONREFERAL TO LUPON (not on failure to comply with rules
precedent under Rule 16. Rules on Summary Procedure is different).
-The only allowable grounds for dismissal of case in Summary
Procedure Nonreferral to Lupon and Lack of Jurisdiction. Those 2
only.
-How about other grounds? File an answer and include them in the
affirmative defenses.
-When court makes a finding that the case is under summary
procedure, it will direct the issuance of summons and the D is given
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permit. Ok? So, can we have lunch now? Okay, so lets have
lunch.
END OF CIVIL
PROCEDURE
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