VII.

MOTION FOR SUMMARY JUDGMENT

A. Legal Basis - Rule 35 of the Rules of Court
Summary Judgment
1. Proper if no genuine issue as to any material fact (except as to damages
recoverable) and if moving party is entitled to a judgment as a matter of
law
2. Based not only on pleadings but also on affidavits, deposition, and
admissions of the parties showing that, except as to the amount of
damages, there is no genuine issue.
3. Motion shall be served at least 10 days before the time specified for the
hearing.
4. May be asked for by a party seeking to recover upon a claim,
counterclaim, cross-claim or to obtain a declaratory relief.
5. Although Rule does not specifically provide, also unavailable in actions
for annulment of and declaration of nullity of marriage, and for legal
separation since Sec. 1 refers to actions “to recover upon a claim”, or to
recover a debt or a liquidated demand for money, or “to obtain
declaratory relief.”
6. Judgment on the pleadings and summary judgment distinguished:
Judgment on the Pleadings Summary judgment
Proper when there is no genuine
issue between the parties
Proper even if there is an issue as to
the damages recoverable
Based exclusively on the pleadings
without introduction of evidence
Based not only on pleadings but also
on affidavits, depositions and
admissions of the parties
Available in any action, except the 3
exceptions
Proper only in actions to recover a
debt, or for a liquidated sum of money,
or for declaratory relief
Motions for summary judgment may be filed by the claimant or by the
defending party. The defending party may file such motion, pursuant to Rule
35, Section 2“at any time”, as distinguished from Section 1 where the
claimant may file the motion at any time after the answer is filed.
B. Sample Form
REPUBLIC OF THE PHILIPPINES
NATIONAL CAPITAL JUDICIAL REGION
METROPOLITAN TRIAL COURT
BRANCH 80
MUNTINLUPA CITY
ERMELINDA V. DULLAVIN,
Plaintiff,
-versus- Civil Case No. 7090
FOR: ENFORCEMENT OF
BARANGAY SETTLEMENT
FLORENCIO HIDALGO,
Defendant.
x- - - - - - - - - - - - - - - - - - - x
MOTION FOR SUMMARY JUDGMENT
PLAINTIFF Ermelinda v. Dullavin, by undersigned counsels and to this Honorable
Court, respectfully states the following:
1. Plaintiff repleads and incorporates herein all the material averments raised in her verified
complaint
2. That both Defendant Hidalgo and his counsel failed to appear at the preliminary
conference scheduled on April 28, 2017. In Tubiano vs Razo1, it was held that the MTC
and RTC were correct in declaring the decision submitted for decision based solely on
the complaint, upon failure of the respondent to appear at the preliminary conference.
3. The record reveals that both the defendant and his counsel offered no explanation with
respect to their non-appearance. As enunciated in Five Star Marketing Co. Inc. vs Booc 2,
the Court excuses the non-appearance only in cases where there is a justifiable cause
offered for the failure to attend. Absent any clear justification for the party and counsels
non-appearance, the defiance of the lawful order of the court as well as the wellentrenched
rule laid down by the rules of procedure on the effect of non-appearance,
cannot be allowed.
4. In short, rules of procedure are essential to the proper, efficient and orderly dispensation
of justice. Such rules are to be applied in a manner that will help secure and not defeat
justice. And as a rightful consequence of respondent’s non-appearance, he is deemed
to have waived his right to present his own evidence.
WHEREFORE, plaintiff respectfully prays that this Honorable Court GRANT the
instant motion in favor of Plaintiff Ermelinda V. Dullavin and that a Writ of Execution be
issued in favour of Plaintiff Emelinda V. Dullavin, directing Defendant Florencio Hidalgo to
immediately vacate 285 Montillano Street, Alabang. Muntinlupa City.
City of Paranaque, November 13, 2017
SAN BEDA COLLEGE ALABANG – LEGAL AID CENTER
Counsel for Plaintiff
Room 12E8, St. Benedict Building
San Beda College Alabang
Don Manolo Boulevard, Alabang Hills Village
Muntinlupa City
Tel. No. (02) 236 7222
sbcalegalaid@gmail.com
By:
ATTY. MARITONI RENEE RESURRECCION
Supervising Lawyer
IBP Lifetime No. 04870
PTR No. 2306788C/01-18-16/Quezon City
MCLE Compliance No. V-0020952/05-03-16
Aileen Joy B. Padilla
Intern
Jasmin D. Miroy
Intern
Joseph James Jimenez
Intern
Leandro Manabat
Intern
Randolph Jon Guerzon
Intern
COPY FURNISHED:
(INSERT DETAILS OF PAO, SEE FORMAT BELOW)
LAW OFFICE OF HOMER A. MABALE
Counsel for Respondent
Unit 9, 2/F Fair Land Properties Inc.,
Nunez Extension, Zamboanga City