JUSTICE Z. G.

LAGUILLES NOTES
on Civil Procedure Rules 1-39

General Provisions

RULE 1. APPLICABILITY OF THE RULES OF COURT

These Rules shall apply in all the courts, except in election cases, land
registration, cadastral, naturalization and insolvency proceedings, and other
cases not herein provided for, except by analogy or in a suppletory character
and whenever practicable and convenient. (Sec. 1, Rule 1)

What is a Civil Action?

A civil action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.

▶ Every ordinary civil action must be based on a cause of action — an act

or omission that violates the rights of the plaintiff. (G.R. No. 191031,
Hacbang v. Alo, October 5, 2015)

What is a Special Civil action?

It is one which also governed by the rules for ordinary civil actions, but
subject to the specific rules prescribed for a special civil action.

What is a Criminal action?

A criminal action is one by which the State prosecutes a person for an act or
omission punishable by law.

What is a special proceeding?

A special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact.

▶ It is distinguished from an ordinary civil action where a party sues

another for the enforcement or protection of a right, or the prevention or
redress of a wrong. To initiate a special proceeding, a petition and not a
complaint should be filed. (Ramon Ching and Po Wing Corp. v. Hon. Jansen R.
Rodriguez, G.R. No. 192828, November 28, 2011)

A civil action is commenced by the filing of the original complaint in court.

If an additional defendant is impleaded in a later pleading, the action is
commenced with regard to him on the dated of the filing of such later
pleading, irrespective of whether the motion for its admission, if necessary,
is denied by the court. (Sec. 6, Rule 1)

These Rules shall be liberally construed in order to promote their objective

of securing a just, speedy and inexpensive disposition of every action and
proceeding. (Sec. 6, Rule 1)

▶ The liberal interpretation of the rules applies only to justifiable causes and
meritorious circumstances. (G.R. No. 207156, Turks Shawarma Co. v.
Pajaron, January 16, 2017)

▶ Where strong considerations of substantive justice are manifest in the

petition, the strict application of the rules of procedure may be relaxed, in
the exercise of its equity jurisdiction. Thus, a rigid application of the rules of
procedure will not be entertained if it will only obstruct rather than serve the
broader interests of justice in the light of the prevailing circumstances in the
case under consideration. (G.R. No. 181353, HGL Development Corp v.
Penuela, June 6, 2016)

▶ The rules of procedure are mere tools aimed at facilitating the attainment
of justice, rather than its frustration. A strict and rigid application of the rules
must always be eschewed when it would subvert the primary objective of the
rules, that is, to enhance fair trials and expedite justice. Technicalities should
never be used to defeat the substantive rights of the other party. Every party-
litigant must be afforded the amplest opportunity for the proper and just
determination of his cause, free from the constraints of technicalities.
Considering that there was substantial compliance, a liberal interpretation of
procedural rules in this labor case is more in keeping with the constitutional
mandate to secure social justice." (Ibid)

RULE 2. CAUSE OF ACTION

Meaning of Cause of Action

It is the act or omission by which a party violates the right of another (Rule
2, Sec. 2).

Elements of cause of action:

(1) a legal right in favor of the plaintiff;

(2) a correlative duty of the defendant to respect the plaintiff's
right; and
(3) an act or omission of the defendant in violation of the plaintiff's
right. (G.R. No. 191031, Hacbang v. Alo, October 5, 2015)

Right of Action distinguished from Cause of Action

Right of action is the right to commence and prosecute an action to obtain

the relief sought, while cause of action is the act or omission by which a
party violates the right of
another (Rule 2, Sec. 2).

Elements of Right of Action:

a) Existence of the cause of action;
b) Performance of all conditions precedent; and
c) The action must be instituted by the proper party.

▶ The cause of action in a Complaint is not determined by the designation

given to it by the parties. The allegations in the body of the Complaint define
or describe it. The designation or caption is not controlling more than the
allegations in the Complaint. It is not even an indispensable part of the
Complaint." (G.R. No. 208343, Spouses Laus v. Optimum Security Services,

Inc)
Failure to State Cause of Action

Where there is failure to state a cause of action in a pleading, the remedy of

the defendant is to move for its dismissal on the ground that the pleading
asserting the claim states no cause of action. Rule 16, Sec 1 (g)

▶ In determining the existence of a cause of action, only the allegations in

the complaint may properly be considered. For the court to do otherwise
would be a procedural error and a denial of the plaintiff's right to due
process. [Aquino v. Quiazon, G.R. No. 201248, March 11, 2015]

▶ It is not "lack or absence of cause of action" that is a ground for dismissal

of the complaint under Rule 16, but rather, that "the complaint states no
cause of action." [Ibid]

Test of Sufficiency of Action

▶ Whether or not admitting the facts alleged, the court could render a valid
judgment upon the same in accordance with the prayer in the complaint. [De
Guzman v. Tabnagoi Realty, Inc., G.R. No. 154262, February 11, 2015]

▶ The question of whether the complaint states a cause of action is

determined by its averments regarding the acts committed by the defendant.
Thus, it must contain a concise statement of the ultimate essential facts
constituting the plaintiff's cause of action. To be taken into account are only
the material allegations in the complaint; extraneous facts and circumstances
or other matters aliunde are not considered.” (Juana Complex I Homeowners
Association, Inc., et al. vs. Fil-Estate Land, Inc., G.R. No. 152272, March 5,
2012)

▶ The test of the sufficiency of the facts alleged in the complaint to

constitute a cause of action is whether or not, admitting the facts alleged, the
court could render a valid judgment upon the same in accordance with the
prayer of the complaint.(De Guzman v. Tabnagoi Realty, Inc., G.R. No.
154262, February 11, 2015)

▶ The inquiry is into the sufficiency, not the veracity, of the material
allegations, it follows that the analysis should be confined to the four corners
of the complaint, and no other. (Guillermo v. Philippine Information
Agency, G.R. No. 223751, March 15, 2017)

Splitting a Single Cause of Action and its Effects

Q: What is splitting a single cause of action?

A: The act of dividing a single cause of action, claim or demand into two or
more parts, and bringing the suit for one of such parts only, intending to
reserve the rest for another separate action is the prohibited act of splitting a
single cause of action (Regalado).

Q: Can a person institute more than one suit for a single cause of
action?
A: NO. A party may not institute more than one suit for a single cause of
action. (Sec. 3, Rule 2)

Q: What is the effect if two or more suits are instituted on the basis of
the same cause of action?
A: If two or more suits are instituted on the basis of the same cause of
action, the filing of one or a judgment upon the merits in any one is available
as a ground for the dismissal of the others. (Sec. 4, Rule 2)

When a single cause of action is split, the remedy of the defendant is to

move for its dismissal under Rule 16 on the ground that:

1) There is another action pending between the same parties for the same
cause, or litis pendentia (Sec. 1[e]); or
2) If the first action has already been finally terminated, on the ground of res
judicata (Sec. 1[f]).

▶ The well-entrenched rule is that 'a party cannot, by varying the form of
action, or adopting a different method of presenting his case, escape the
operation of the principle that one and the same cause of action shall not be
twice litigated.' (FCD Pawnshop and Merchandising Co.v. Union Bank of
the Philippines, G.R. No. 207914, January 18, 2017)

▶ The test to determine whether the causes of action are identical is to

ascertain whether the same evidence will sustain both actions, or whether
there is an identity in the facts essential to the maintenance of the two
actions. If the same facts or evidence would sustain both, the two actions are
considered the same, and a judgment in the first case is a bar to the
subsequent action. (Luzon Iron Development Corp. v. Bridestone Mining and
Development Corp., G.R. No. 220546, December 7, 2016)

▶ A cause of action may give rise to several reliefs, but only one action can
be filed. A single cause of action or entire claim or demand cannot be split
up or divided into two or more different actions. The rule on prohibiting the
splitting of a single cause of action is clear.” [Butiong Vs. Plazo, G.R. No.
187524, August 05, 2015]

▶ In Esperas v. CA, the Supreme Court held that the ultimate test in
determining the presence of identity of cause of action is to consider whether
the same evidence would support the cause of action in both the first and the
second cases. Under the same evidence test, when the same evidence
support and establish both the present and the former causes of action, there
is likely an identity of causes of action. [Riviera Golf Club, Inc., Vs. CCA
Holdings, B.V., G.R. No. 173783, June 17, 2015)

Q: What is a litis pendencia?

A: Litis pendentia is a Latin term, which literally means "a pending suit" and
is variously referred to in some decisions as lis pendens and auter action
pendant. As a ground for the dismissal of a civil action, it refers to the
situation where two actions are pending between the same parties for the
same cause of action, so that one of them becomes unnecessary and

vexatious. It is based on the policy against multiplicity of suits. (Grace Park

International Corp. v. Eastwest Banking Corp., G.R. No. 210606, July 27,
2016)

Joinder and Mis-joinder of Causes of Action.

Joinder of causes of action. — The assertion, in the alternative or

otherwise, of as many causes of action as a party may have against another
in one pleading alone is valid. (Rule 2, Section 5)

▶ The joinder of causes of action is indeed allowed under Section 5, Rule 2

of the 1997 Rules of Court; but if there are multiple parties, the joinder is
made subject to the rules on joinder of parties under Section 6, Rule 3.
(Central Bank Board of Liquidators v. Banco Filipino Savings and
Mortgage Bank, G.R. No. 173399, February 21, 2017)

▶ By a joinder of actions, or more properly, a joinder of causes of action is

meant the uniting of two or more demands or rights of action in one action,
the statement of more than one cause of action in a declaration. It is the
union of two or more civil causes of action, each of which could be made the
basis of a separate suit, in the same complaint, declaration or petition. A
plaintiff may under certain circumstances join several distinct demands,
controversies or rights of action in one declaration, complaint or petition.

▶ The objectives of the rule or provision are to avoid a multiplicity of suits

where the same parties and subject matter are to be dealt with by effecting in
one action a complete determination of all matters in controversy and
litigation between the parties involving one subject matter, and to expedite
the disposition of litigation at minimum cost. The provision should be
construed so as to avoid such multiplicity, where possible, without prejudice
to the rights of the litigants.”

▶ Nevertheless, while parties to an action may assert in one pleading, in the

alternative or otherwise, as many causes of action as they may have against
an opposing party, such joinder of causes of action is subject to the
condition, inter alia, that the joinder shall not include special civil actions
governed by special rules. (Lilia B. Ada vs. Florante Baylon, G.R. No.
182435, August 13, 2012)

Misjoinder of Causes of Action

Two or more causes of action are joined in one complaint when they should
not have been joined. (Rule 2, Section 6)

Misjoinder of causes of action is NOT a ground for dismissal of an action. A

misjoined cause of action may, on motion of a party or on the initiative of
the court, be severed and proceeded with separately (Rule 2, Section 6)

Misjoinder of causes of action. — Misjoinder of causes of action is not a

ground for dismissal of an action. A misjoined cause of action may, on

motion of a party or on the initiative of the court, be severed and proceeded

with separately.
▶ The action for partition filed by the petitioners could not be joined with
the action for the rescission of the said donation inter vivos in favor of
Florante. Lest it be overlooked, an action for partition is a special civil action
governed by Rule 69 of the Rules of Court while an action for rescission is
an ordinary civil action governed by the ordinary rules of civil procedure.
The variance in the procedure in the special civil action of partition and in
the ordinary civil action of rescission precludes their joinder in one
complaint or their being tried in a single proceeding to avoid confusion in
determining what rules shall govern the conduct of the proceedings as well
as in the determination of the presence of requisite elements of each
particular cause of action.”

▶ Nevertheless, misjoinder of causes of action is not a ground for dismissal.

Indeed, the courts have the power, acting upon the motion of a party to the
case or sua sponte, to order the severance of the misjoined cause of action to
be proceeded with separately. However, if there is no objection to the
improper joinder or the court did not motu proprio direct a severance, then
there exists no bar in the simultaneous adjudication of all the erroneously
joined causes of action. [G.R. No. 182435, August 13, 2012]

▶ Where there are several claims or causes of action between the same or
different parties embodied in the same complaint, the amount of the demand
shall be the totality of the claims in all causes of action, irrespective of
whether the causes of action arose out of the same or different transactions.”

▶ The causes of action in favor of two or more plaintiffs or against two or

more defendants should arise out of the same transaction or series of
transactions and there should be a common question of law or fact as
provided in Sec. 6, Rule 3. (The totality Rule) (Flores v. Mallare-Philips, L-
66620, September 24, 1986).

RULE 3. PARTIES TO CIVIL ACTIONS

Real Party in interest. — A real party in interest is the party who stands to
be benefited or injured by the judgment in the suit. (Sec. 2, Rule 3)

General Rule: Unless otherwise authorized by law or these Rules, every

action must be prosecuted and defended in the name of the real party in
interest.

Exception: An exception to the rule that every action must be prosecuted or

defended in the name of the real party in interest is in the case of
representatives as parties (Rule 3, Section 3).

▶ To be properly considered as such, the party must have a real, actual,

material, or substantial interest in the subject matter of the action, NOT
a mere expectancy or a future, contingent, subordinate, or consequential
interest. (Samahan Ng Magsasaka At Mangingisda Ng Sitio Naswe, Inc.
[SAMMANA], Represented By Rogelio A. Commendador, President, Vs.
Tomas Tan, G.R. No. 196028, April 18, 2016)

Q: What is the meaning of “interest”?

A: Interest within the meaning of the Rules of Court means material interest
or an interest in issue to be affected by the decree or judgment of the case, as
distinguished from mere curiosity about the question involved. One having
no material interest cannot invoke the jurisdiction of the court as the plaintiff
in an action. When the plaintiff is not the real party in interest, the case is
dismissible on the ground of lack of cause of action. (Andy Ang V. Pacunio,
et al, G.R. No. 208928, July 08, 2015]

Failure to Include Real Party in Interested

▶ [I]f a suit is not brought in the name of or against the real party in interest,
a motion to dismiss may be filed on the ground that the complaint states no
cause of action." However, [the dismissal on this ground entails] an
examination of whether the parties presently pleaded are interested in the
outcome of the litigation, and not whether all persons interested in such
outcome are actually pleaded. The latter query is relevant in discussions
concerning indispensable and necessary parties, but not in discussions
concerning real parties in interest. Both indispensable and necessary parties
are considered as real parties in interest, since both classes of parties stand to
be benefited or injured by the judgment of the suit. (Spouses Lausv.
Optimum Security Services, Inc., G.R. No. 208343, February 3, 2016)

Real party in interest applies both to the plaintiff and defendant. The suit
may be dismissed if neither of them is a Real party in interest

Indispensable parties
Those without whom no final determination can be had of an action; they
must be joined under all conditions (Sec. 7, Rule 3)

▶ An indispensable party is a party who has such an interest in the

controversy or subject matter that a final adjudication cannot be made, in his
absence, without injuring or affecting that interest, a party who has not only
an interest in the subject matter of the controversy, but also has an interest of
such nature that a final decree cannot be made without affecting his interest
or leaving the controversy in such a condition that its final determination
may be wholly inconsistent with equity and good conscience. It has also
been considered that an indispensable party is a person in whose absence
there cannot be a determination between the parties already before the court
which is effective, complete, or equitable. Further, an indispensable party is
one who must be included in an action before it may properly go forward.
(Caravan Travel and Tours International, Inc. v. Abejar)

Failure to implead indispensable party-litigant

▶ Absence of an indispensable party renders all subsequent actions of the

court null and void for want of authority to act, not only as to the absent
parties but even to those present. The failure to implead an indispensable
party is not a mere procedural matter. Rather, it brings to fore the right of a

disregarded party to its constitutional rights to due process. (David v.

Paragas, Jr., G.R. No. 176973, February 25, 2015)

▶ The nature of the solidary obligation under the surety does not make one
an indispensable party. An indispensable party is a party-in-interest without
whom no final determination can be had of an action, and who shall be
joined mandatorily either as plaintiffs or defendants. The presence of
indispensable parties is necessary to vest the court with jurisdiction, thus,
without their presence to a suit or proceeding, the judgment of a court cannot
attain real finality. The absence of an indispensable party renders all
subsequent actions of the court null and void for want of authority to act, not
only as to the absent parties but even as to those present. (Living @ Sense,
Inc. Vs. Malayan Insurance Company, Inc. G.R. No. 193753. September 26,
2012)

Purpose of the Rule

The purpose of the rules on joinder of indispensable parties is a complete

determination of all issues not only between the parties themselves, but also
as regards other persons who may be affected by the judgment. A decision
valid on its face cannot attain real finality where there is want of
indispensable parties. (Florete, Jr. v. Florete, G.R. NO. 174909 & 177275, January 20, 2016)

Burden of procuring indispensable parties lies with the plaintiff

▶ The burden of procuring the presence of all indispensable parties is on the

plaintiff. The evident purpose of the rule is to prevent the multiplicity of
suits by requiring the person arresting a right against the defendant to
include with him, either as co-plaintiffs or as co-defendants, all persons
standing in the same position, so that the whole matter in dispute may be
determined once and for all in one litigation. (G.R. No. 174909 & 177275,
January 20, 2016)

Effects of non-joinder of indispensable parties

The general rule with reference to the making of parties in a civil action
requires the joinder of all indispensable parties under any and all conditions,
their presence being a sine qua non of the exercise of judicial power. For this
reason, our Supreme Court has held that when it appears of record that there
are other persons interested in the subject matter of the litigation, who are
not made parties to the action, it is the duty of the court 1.) to suspend the
trial until such parties are made either plaintiffs or defendants. xxx 2.) Where
the petition failed to join as party defendant the person interested in
sustaining the proceeding in the court, the same should be dismissed. 3.)
When an indispensable party is not before the court, the action should be
dismissed.

▶ Settled is the rule that joinder of indispensable parties is compulsory

being a sine qua non for the exercise of judicial power, and, it is precisely
“when an indispensable party is not before the court the action should be
dismissed” for such absence renders all subsequent actions of the court null
and void for want of authority to act, not only as to the absent parties by

even as to those present. (Guy v. Guy, G.R. No. 189486, September 05,
2012)

Joinder of Parties

Elements

a) There must be a right to relief in respect to or arising from the same

transaction or series of transaction;
b) There is a question of fact or law common to all the plaintiffs or
defendants; and

Such joinder is not otherwise proscribed by the provisions of the Rules on

jurisdiction and venue (Sec. 6, Rule 3).

Requisites for joinder of parties:

(a) The party joining the causes of action shall comply with the rules
on joinder of parties;

(b) The joinder shall not include special civil actions or actions
governed by special rules;

(c) Where the causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be
allowed in the Regional Trial Court provided that:

1.) one of the causes of action falls within the jurisdiction of said
court and,
2.) the venue lies therein; and

(d) Where the claims in all the causes action are principally for
recovery of money, the aggregate amount claimed shall be the test of
jurisdiction.

Necessary Parties
Are person who are not indispensable but who ought to be joined as a party
if complete relief is to be accorded as to those already parties, or for a
complete determination or settlement of the claim subject of the action; may
or may not be joined (i.e. joint debtor is a necessary party in a suit against
his co-debtor) (Rule 3, Sec. 8).
▶ A necessary party's presence is not imperative, and his or her absence is
not debilitating. Nevertheless, it is preferred that they be included in order
that relief may be complete. (Caravan Travel and Tours International, Inc.
v. Abejar, G.R. No. 170631, February 10, 2016)

Indigent Parties
A party may be authorized to litigate his action, claim or defense as an
indigent if the court, upon an ex parte application and hearing, is satisfied
that the party is one who has no money or property sufficient and available
for food, shelter and basic necessities for himself and his family. (Sec. 21,
Rule 3)

Requisites:
1) Party must have a gross income and that of their immediate family do not
exceed an amount double the monthly minimum wage of an employee; and
2) Party do not own real property with a fair market value as stated in the
current tax declaration of more than P300,000.00.

Effects of declaration of indigency:

Such authority shall include an exemption from payment of docket and other
lawful fees, and of transcripts of stenographic notes which the court may
order to be furnished him. The amount of the docket and other lawful fees
which the indigent was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the indigent, unless the court
otherwise provides. (Rule 3, Sec. 21)

Grant of the application mandatory if requisites are present:

If the applicant for exemption meets the salary and property requirements
under Section 19 of Rule 141, then the grant of the application is mandatory.

On the other hand, when the application does not satisfy one or both
requirements, then the application should not be denied outright; instead, the
court should apply the "indigency test" under Section 21 of Rule 3 and use
its sound discretion in determining the merits of the prayer for exemption
(Pangcatan v. Maghuyop, G.R. Nos. 194412 & 194566, November 16, 2016)

Alternative Defendants
Where the plaintiff is uncertain against who of several persons he is entitled
to relief, he may join any or all of them as defendants in the alternative,
although a right to relief against one may be inconsistent with a right to
relief against the other. (Rule 3, Section 13)

Class Suit

A suit brought by or defended by a representative member or members of a

large group of persons on behalf of all the members of the group. (Rule 3,
Section 12)

▶ A class suit is a specie of a representative suit insofar as the persons who

institute it represent the entire class of persons who have the same interest or
who suffered the same injury. However, unlike representative suits, the
persons instituting a class suit are themselves real parties in interest and are
not suing merely as representatives. (Segovia v. Climate Change
Commission, G. R. No. 211010, March 7, 2017) A class suit can prosper
only:

(1) "There is a clear legal basis for the representative suit;

(2) There are actual concerns based squarely upon an existing legal right;
(3) There is no possibility of any countervailing interests existing within
the population represented or those that are yet to be born; and
(4) There is an absolute necessity for such standing because there is a

threat or catastrophe so imminent that an immediate protective

measure is necessary.”
▶ A class suit is a representative suit insofar as the persons who institute it
represent the entire class of persons who have the same interest or who
suffered the same injury. However, unlike representative suits, the persons
instituting a class suit are not suing merely as representatives. They
themselves are real parties in interest directly injured by the acts or
omissions complained of. There is a common cause of action in a class. The
group collectively — not individually — enjoys the right sought to be
enforced.”

▶ The same concern in representative suits regarding res judicata applies in

class suits. The persons bringing the suit may not be truly representative of
all the interests of the class they purport to represent, but any decision issued
will bind all members of the class.(Paje v. Casiño, G.R. Nos. 207257, 207276, 207282,
207366, February 3, 2015)

In case of conflict, no class suit:

▶ Where the interests of the plaintiffs and the other members of the class
they seek to represent are diametrically opposed, the class suit will not
prosper. (Banda v. Ermita, G.R. No. 166620, April 20, 2010)

Legal capacity is a requirement in class suit:

▶ The party bringing the class suit must have legal capacity to do so. (Chinese
Flour Importers Assoc. v. Price Stabilization Board, 9 Phil. 461).

Representative as parties

A person acting in a fiduciary capacity (i.e. trustees of an express trust,

guardians, executors or administrators). In this case, the rule requires that the
name of the beneficiary shall be included in the title of the case and shall be
deemed as the real party in interest (Rule 3, Sec. 3).

▶ When an action is prosecuted or defended by a representative, that

representative is not and does not become the real party in interest. The
person represented is deemed the real party in interest. The representative
remains to be a third party to the action instituted on behalf of another.
(Resident Maritime Mammals of the Protected Seascape Tañon Strait v. Reyes, G. R. No. 180771 &
181527, April 21, 2015)

In Segovia v. Climate Change Commission, (G.R. No. 211010, March

7, 2017) the Supreme Court speaking through Justice Leonen in his
Concurring Opinion) abandoned the doctrine espoused in Oposa v. Factoran,
thus:

“Lastly, there is a citizen suit where a Filipino can invoke

environmental laws on behalf of other citizens including those yet to be
born. This is found under Rule 2 Section 5 of the Rules of Procedure for
Environmental Cases, which state:

SEC. 5. Citizen suit. — Any Filipino citizen in representation of

others, including minors or generations yet unborn may file an action
to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall
contain a brief description of the cause of action and the reliefs
prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof.
The plaintiff may publish the order once in a newspaper of a general
circulation in the Philippines or furnish all affected barangays copies
of said order.

This rule is derived from Oposa v. Factoran, 7 where the Court held
that minors have the personality to sue on behalf of generations yet unborn:

Petitioners minors assert that they represent their generation as well as

generations yet unborn. We find no difficulty in ruling that they can,
for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned.

It is my view that the Oposa Doctrine is flawed in that it allows a self-

proclaimed "representative," via a citizen suit, to speak on behalf of a whole
population and legally bind it on matters regardless of whether that group
was consulted. As I have discussed in my Concurring Opinion in Arigo v.
Swift, 9 there are three (3) dangers in continuing to allow the present
generation to enforce environmental rights of the future generations:

First, they run the risk of foreclosing arguments of others who are
unable to take part in the suit, putting into question its
representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of
which do not fall upon this court. Third, automatically allowing a
class or citizen's suit on behalf of minors and generations yet unborn
may result in the oversimplification of what may be a complex issue,
especially in light of the impossibility of determining future
generation's true interests on the matter.

This doctrine binds an unborn generation to causes of actions,

arguments, and reliefs, which they did not choose. 11 It creates a situation
where the Court will decide based on arguments of persons whose
legitimacy as a representative is dubious at best. Furthermore, due to the
nature of the citizen's suit as a representative suit, res judicata will attach and
any decision by the Court will bind the entire population. Those who did not
consent will be bound by what was arrogated on their behalf by the
petitioners.

I submit that the application of the Oposa Doctrine should be

abandoned or at least limited to situations when:

(1) "There is a clear legal basis for the representative suit;

(2) There are actual concerns based squarely upon an existing legal right;

(3) There is no possibility of any countervailing interests existing within

the population represented or those that are yet to be born; and
(4) There is an absolute necessity for such standing because there is a
threat or catastrophe so imminent that an immediate protective measure is
necessary."

I find objectionable the premise that the present generation is absolutely

qualified to dictate what is best for those who will exist at a different time,
and living under a different set of circumstances. As noble as the
"intergenerational responsibility" principle is, it should not be used to obtain
judgments that would preclude and constrain future generations from
crafting their own arguments and defending their own interests. It is enough
that this present generation may bring suit on the basis of their own right. It
is not entitled to rob future generations of both their agency and their
autonomy.

Suits against entities without juridical personality

Under Section 1 of Rule 3, only natural or juridical persons or entities

authorized by law may be parties in a civil action. However, an entity
without juridical personality be sued as a defendant when it has entered into
a transaction with the plaintiff.

Two or more persons not organized as an entity with juridical personality to

enter into a transaction may be sued under the name by which they are
generally or commonly known but they cannot sue under such name. “

In the answer of such defendant, the names and addresses of the persons
composing said entity must all be revealed. “(Rule 3, Sec. 15)

▶ In Ocampo v. Mendoza, the Supreme Court held that, for failing to show
that it is a juridical entity, endowed by law with the capacity to bring suits in
its own name, PISTON is devoid of any legal capacity to institute this
action. (G.R. No. 190431, January 31, 2017)

Effect of death of party-litigant

Whenever a party to a pending action dies AND the claim is not thereby
extinguished, it shall be the duty of his counsel:

1) To inform the court within 30 days after such death of the fact thereof;
and
2) To give the name and address of the deceased party's legal
representative/s. (Rule 16, Sec. 3)

Failure to comply is a ground for disciplinary action:

Failure to comply by counsel shall be a ground for disciplinary action.

Duty of the counsel to inform the court applies on appeal

The duty of counsel also applies to death of a party in cases pending appeal

(Riviera Filipina v. CA, G.R. No. 117355, April 5, 2002).

▶ When a party to a pending action dies and the claim is not extinguished,
the Rules of Court require a substitution of the deceased in accordance with
Section 16 of Rule 3.

▶ The rule on the substitution of parties was crafted to protect every party's
right to due process. The estate of the deceased party will continue to be
properly represented in the suit through the duly appointed legal
representative. Moreover, no adjudication can be made against the successor
of the deceased if the fundamental right to a day in court is denied.”

▶ Thus, in all proceedings, the legal representatives must appear to protect

the interests of the deceased. (Saguinsin v. Liban, G.R. No. 189312, July 11, 2016)

▶ The purpose behind the rule on substitution is the protection of the right
of every party to due process. It is to ensure that the deceased party would
continue to be properly represented in the suit through the duly appointed
legal representative of his estate. Non-compliance with the rule on
substitution would render the proceedings and the judgment of the trial court
infirm because the court acquires no jurisdiction over the persons of the legal
representatives or of the heirs on whom the trial and the judgment would be
binding. (Cardenas v. Heirs of Spouses Aguilar, G.R. No. 1910749, March 2, 2016)

RULE 4. VENUE

Venue distinguished from Jurisdiction

VENUE JURISDICTION
a. Venue is the place where the case a. Jurisdiction is the authority to
is to be heard; hear and determine a case;
b. Venue is a matter of procedural b. Jurisdiction is a matter of
law; substantive law;
c. Venue establishes a relation c. Jurisdiction establishes a relation
between plaintiff and defendant, or between the court and the subject
petitioner and respondent; and, matter;
d. Venue may be conferred by the act d. Jurisdiction is fixed by law and
or agreement of the parties. cannot be conferred by the parties;

Venue of real actions. — In the proper court which has jurisdiction over the
area wherein the real property involved, or a portion thereof, is situated.”

Forcible entry and detainer actions shall be commenced and tried in the
municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated.” (Sec. 1, Rule 4)

▶ As an exception, the parties, through a written instrument, may either

introduce another venue where actions arising from such instrument may be
filed, or restrict the filing of said actions in a certain exclusive venue. (Briones
v. Court of Appeals, G.R. No. 204444, January 14, 2015)

Venue of personal actions. — (Sec. 2, Rule 4)

1) Where the plaintiff or any of the principal plaintiffs resides;

2) Where the defendant or any of the principal defendants resides; or
3) In the case of non-resident defendants, where the non-resident defendant
may be found.

NOTE: All of the abovementioned venues shall be at the election of the

plaintiff.

▶ The foregoing provision is not restrictive, it is merely permissive as

manifested by the use of the term "may." Moreover, the clear language of
the ensuing provision of Section 4 expressly allows the venue of personal
actions to be subjected to the stipulation of the parties. Clearly, stipulation
on venue is permitted and must be recognized for as long as it does not
defeat the purpose of the Rules which primarily aims for the convenience of
the parties to the dispute. (Radiowealth Finance Co., Inc. v. Nolasco, G.R. No. 227146,
November 14, 2016)

Venue of actions against non-residents (Rule 4, Section 3)

If the non-resident defendant CAN be found in the Philippines:

1) Personal actions shall be commenced where the plaintiff resides; or

2) Real actions shall be commenced where the property is located.

If the nonresident defendant CANNOT be found in the Philippines:

An action may be commenced only if it involves:

1) Personal status of the plaintiff: venue is where the plaintiff resides;

2) Property of the defendant located in the Philippines: venue shall be where
the property or a portion thereof is situated.

▶ When there is more than one defendant/plaintiff in the case, the

residences of the principal parties should be the basis for determining the
proper venue (Regalado, 2010).

When the rules on venue do not apply (Rule 4, Section 4)

The rules on venue shall NOT apply:

1) In those cases where a specific rule or law provides otherwise;
2) Where the parties have validly agreed in writing before the filing of
the action on the exclusive venue thereof (Principle of Stipulations on
Venue) (Sec. 4).

Requisites for venue to be exclusive:

a) There is a valid written agreement;
b) Executed by the parties before the filing of the action; and
c) Venue is of exclusive or restrictive nature (qualifying words such as

only, solely, exclusively in this court, in no other place, to the

exclusion of must be used).

Requisites for venue agreement to be valid: (Rule 4, Section 4)

1) In writing; and
2) Executed by the parties before the filing of the action.

Effects of stipulations on venue

▶ In cases where the complaint assails only the terms, conditions, and/or
coverage of a written instrument and not its validity, the exclusive venue
stipulation contained therein shall still be binding on the parties, and thus,
the complaint may be properly dismissed on the ground of improper venue.
Conversely, therefore, a complaint directly assailing the validity of the
written instrument itself should not be bound by the exclusive venue
stipulation contained therein and should be filed in accordance with the
general rules on venue. To be sure, it would be inherently consistent for a
complaint of this nature to recognize the exclusive venue stipulation when it,
in fact, precisely assails the validity of the instrument in which such
stipulation is contained.” (Briones v. CA, GR. No. 204444, January 14,
2015)

Effect of absence of exclusive words

▶ In the absence of qualifying or restrictive words, such as "exclusively,"

"waiving for this purpose any other venue," "shall only" preceding the
designation of venue, "to the exclusion of the other courts," or words of
similar import, the stipulation should be deemed as merely an agreement on
an additional forum, not as limiting venue to the specified place. (Briones v. CA,
GR. No. 204444, January 14, 2015)

▶ In Radiowealth Finance Co, Inc. v. Nolasco, the Supreme Court held that
the RTC carelessly interfered with the parties' agreement on the venue of
their dispute and interrupted what could have been an expeditious flow of
the proceeding. To reiterate, the choice of venue is a matter addressed to the
sound judgment of the parties based on considerations personal to them, i.e.,
convenience. It is only the parties who may raise objection on the same.
Absent such protest, it is an error for the RTC to decide that the venue was
improperly laid as it is tantamount to needlessly interfering to a mutually
agreed term. (G.R. No. 227146, November 14, 2016)

RULE 5. UNIFORM PROCEDURE IN TRIAL COURTS

The procedure in the Municipal Trial Courts shall be the same as in the
Regional Trial Courts, except (a) where a particular provision expressly or
impliedly applies only to either of said courts, or (b) in civil cases governed
by the Rule on Summary Procedure.

RULE 6. PLEADINGS

Pleadings are the written statements of the respective claims and defenses of
the parties submitted to the court for appropriate judgment.

Kinds Of Pleadings

a. Complaint. — A pleading alleging the plaintiff's cause or causes of action.

The names and residences of the plaintiff and defendant must be stated in the
complaint. (Sec. 3, Rule 6)

b. Answer. — A pleading in which a defending party sets forth his defenses.

(Sec. 4, Rule 6) The defenses of a party are alleged in the answer to the
pleading asserting a claim against him.

▶ In case the defendant failed to file his answer, the court shall render
judgment, either motu proprio or upon plaintiff's motion, based solely on the
facts alleged in the complaint and limited to what is prayed for. The failure
of the defendant to timely file his answer and to controvert the claim against
him constitutes his acquiescence to every allegation stated in the complaint.
(Fairland Knitcraft Corp. v. Po, G.R. No. 217694, January 27, 2016)

Counterclaim. – Any claim which a defending party may have against an

opposing party. (Sec. 6)

Nature of a counterclaim
A counterclaim is in the nature of a cross complaint such that it must
be answered within 10 days from service. It is a cause of action
against plaintiff.

A counterclaim is compulsory if:

(a) it arises out of or is necessarily connected with the transaction

or occurrence which is the subject matter of the opposing
party's claim;
(b) it does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction; and
(c) the court has jurisdiction to entertain the claim both as to its
amount and nature, except that in an original action before the
RTC, the counterclaim may be considered compulsory
regardless of the amount. (Metropolitan Bank and Trust Co. v. CPR
Promotions and Marketing, Inc., G.R. No. 200567, June 22, 2015)

▶ To determine whether a counterclaim is compulsory or permissive, we

have devised the following tests: (a) Are the issues of fact and law raised
by the claim and by the counterclaim largely the same? (b) Would res
judicata bar a subsequent suit on defendants' claims, absent the
compulsory counterclaim rule? (c) Will substantially the same evidence
support or refute plaintiffs' claim as well as the defendants' counterclaim?
and (d) Is there any logical relation between the claim and the
counterclaim? A positive answer to all four questions would indicate that
the counterclaim is compulsory. (Alba, Jr. v. Malapajo, G.R. No. 198752,
January 13, 2016)

▶ It is elementary that a defending party's compulsory counterclaim should

be interposed at the time he files his Answer, and that failure to do so shall
effectively bar such claim. (G.R. No. 200567, June 22, 2015)

Exceptions:

a) If it is a counterclaim which either matured or was acquired by a party

after serving his answer. In this case, it may be pleaded by filing a
supplemental answer or pleading before judgment.

b) When a pleader fails to set-up a counterclaim through oversight,

inadvertence, excusable negligence, or when justice requires, he may, by
leave of court, set-up the counterclaim by amendment of the pleadings
before judgment (Sec. 10, Rule 11).

A Counterclaim is Permissive, if:

It is a counterclaim which does not arise out of or is necessarily

connected with the subject matter of the opposing party's claim. It is not
barred even if it is not set up in the original action.

A plaintiff who fails or chooses not to answer a compulsory

counterclaim may not be declared in default principally because the issues
raised in the counterclaim are deemed automatically joined by the
allegations of the complaint (Gojo v. Goyala, G.R. No. 26768, Oct. 30,
1970).

Cross-claim. — A cross-claim is any claim by one party against a co-party

arising out of the transaction or occurrence that is the subject matter either of
the original action or of a counterclaim therein. Such cross-claim may
include a claim that the party against whom it is asserted is or may be liable
to the cross-claimant for all or part of a claim asserted in the action against
the cross-claimant. (Sec. 8)

Counter-counterclaims and counter-crossclaims. — A counter-claim may

be asserted against an original counter-claimant.

A cross-claim may also be filed against an original cross-claimant.

Reply. — A reply is a pleading, the office or function of which is to deny, or

allege facts in denial or avoidance of new matters alleged by way of defense
in the answer and thereby join or make issue as to such new matters. If a
party does not file such reply, all the new matters alleged in the answer are
deemed controverted.

If the plaintiff wishes to interpose any claims arising out of the new matters
so alleged, such claims shall be set forth in an amended or supplemental
complaint.

Third, (fourth, etc.)—party complaint. — A third (fourth, etc.) — party

complaint is a claim that a defending party may, with leave of court, file
against a person not a party to the action, called the third (fourth, etc.) —
party defendant for contribution, indemnity, subrogation or any other relief,
in respect of his opponent's claim. (Sec. 11)

Answer to third (fourth, etc.)—party complaint. — A third (fourth, etc.) —

party defendant may allege in his answer his defenses, counterclaims or
cross-claims, including such defenses that the third (fourth, etc.) — party
plaintiff may have against the original plaintiff's claim. In proper cases, he
may also assert a counterclaim against the original plaintiff in respect of the
latter's claim against the third-party plaintiff. (Sec. 13)

RULE 7. PARTS OF A PLEADING

Caption. — The caption sets forth the name of the court, the title of the
action, and the docket number if assigned.
The title of the action indicates the names of the parties. They shall all be
named in the original complaint or petition; but in subsequent pleadings, it
shall be sufficient if the name of the first party on each side be stated with an
appropriate indication when there are other parties. Their respective
participation in the case shall be indicated. (Sec. 1)

Signature and addresses – Every pleading must be signed by the party or

counsel representing him, stating in either case his address which should not
be a post office box.

The signature of counsel constitutes a certificate by him that he has read the
pleading; that to the best of his knowledge, information, and belief there is
good ground to support it; and that it is not interposed for delay.

An unsigned pleading produces no legal effect. However, the court may, in

its discretion, allow such deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for delay. Counsel who
deliberately files an unsigned pleading, or signs a pleading in violation of
this Rule, or alleges scandalous or indecent matter therein, or fails promptly
report to the court a change of his address, shall be subject to appropriate
disciplinary action. (Rule 7, Sec.3)

Verification – Except when otherwise specifically required by law or rule,

pleadings need not be under oath, verified or accompanied by affidavit .

A pleading is verified by an affidavit that the affiant has read the pleading
and that the allegations therein are true and correct of his knowledge and
belief.

A pleading required to be verified which contains a verification based on

"information and belief", or upon "knowledge, information and belief", or

lacks a proper verification, shall be treated as an unsigned pleading.

Certification against forum shopping. — The plaintiff or principal party

shall certify under oath in the complaint or other initiatory pleading asserting
a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced
any action or filed any claim involving the same issues in any court, tribunal
or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof; and (c) if he should
thereafter learn that the same or similar action or claim has been filed or is
pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.

In Chua v. People, (G.R. No. 216146, August 24, 2016, citing Fuji Television
v. Espiritu), the Supreme Court distinguished the effect of non-compliance
with the requirement of verification and non-forum shopping, to wit:

VERIFICATION NON-FORUM SHOPPING

Non-compliance therewith or a
Non[-]compliance therewith or a
defect therein, unlike in
defect therein does not necessarily
verification, is generally not
render the pleading fatally
curable by its subsequent
defective. The court may order its
submission or correction thereof,
submission or correction or act on
unless there is a need to relax the
the pleading if the attending
Rule on the ground of
circumstances are such that strict
"substantial compliance" or
compliance with the Rule may be
presence of "special
dispensed with in order that the
circumstances or compelling
ends of justice may be served
reasons."
thereby.
The certification against forum
shopping must be signed by all
the plaintiffs or petitioners in a
case; otherwise, those who did
Verification is deemed
not sign will be dropped as
substantially complied with when
parties to the case. Under
one who has ample knowledge to
reasonable or justifiable
swear to the truth of the
circumstances, however, as when
allegations in the complaint or
all the plaintiffs or petitioners
petition signs the verification, and
share a common interest and
when matters alleged in the
invoke a common cause of action
petition have been made in good
or defense, the signature of only
faith or are true and correct.
one of them in the certification
against forum shopping
substantially complies with the
Rule.

▶ In the case of natural persons, the rule requires the parties themselves to
sign the certification against forum shopping. The reason for such
requirement is that the petitioner himself knows better than anyone else
whether a separate case has been filed or pending which involves

substantially the same issues. (Buisan v. Commission on Audit, G.R. No.

January 31, 2017)

▶ The requirement that a petitioner or principal party should sign the

certificate of nonforum shopping applies even to corporations, considering
that the mandatory directives of the Rules of Court make no distinction
between natural and juridical persons.

▶ A corporation, however, exercises its powers through its board of

directors and/or its duly authorized officers and agents. Physical acts, like
the signing of documents, can be performed only by natural persons duly
authorized for the purpose by corporate by-laws or by a specific act of the
board of directors (Pascual and Santos, Inc. v. The Members of the Tramo
Wakas Neighborhood Association, Inc., G.R. No. 144880, November 17,
2004).

▶ Objections relating to non-compliance with the verification and

certification of non-forum shopping should be raised in the proceedings
below, and not for the first time on appeal. (GSIS Family Bank v. BPI
Family Bank, G.R. No. 175278, September 23, 2015)

▶ The application of the rules must be the general rule, and the suspension
or even mere relaxation of its application, is the exception. This Court may
go beyond the strict application of the rules only on exceptional cases when
there is truly substantial compliance with the rule. (Philippine Numismatic v.
Aquino, G.R. No. 206617, January 30, 2017)

Effect of signing by a person not authorized to sign

In Tamondong v. Court of Appeals, the Court categorically stated that “if a

complaint is filed for and in behalf of the plaintiff [by one] who is not
authorized to do so, the complaint is not deemed filed. An unauthorized
complaint does not produce legal effect. Hence, the court should dismiss the
complaint on the ground that it has no jurisdiction over the complaint and
the plaintiff. This ruling was reiterated in Cosco v. Kemper, where there
Court went on to say that “in order for the court top have authority to
dispose of the case on the merits, it must jurisdiction over the subject matter
and the parties. Courts acquire jurisdiction over the plaintiffs upon the filing
of the complaint, and to be bound by a decision, a party should first be
subjected to the court's jurisdiction. The courts could not have delved into
the very merits of the case, because legally, there was no complaint to speak
of. The court's jurisdiction cannot be deemed to have been invoked at all.
(Atty. Fe Q. Palmiano-Salvador Vs. Constantino Angeles, Substituted By Luz
G. Angeles, G.R. No. 171219, September 3 2012)

Substantial Compliance

The verification requirement is deemed substantially complied with when a

person who has sufficient knowledge to swear to the truth of the allegations
in the complaint or petition signs the verification; and matters alleged therein
have been made in good faith or are true and correct. Thus, there is
substantial compliance if at least one of the petitioners makes a proper

verification.”

On the other hand, as a rule, the certificate against forum shopping must be
signed by all plaintiffs or petitioners; otherwise, those who did not sign will
be dropped as parties to the case. Under reasonable or justifiable situations,
such as when the plaintiffs or petitioners share a common interest and invoke
a common cause of action or defense, the signature of one of them in the
certificate against forum shopping is considered substantial compliance with
the rules. (Bacolor v. VL Makabali Hospital, Inc, G.R. No. 204325, April
18, 2016)

RULE 8. MANNER OF MAKING ALLEGATIONS IN PLEADINGS

In general. — Every pleading shall contain in a methodical and logical form,

a plain, concise and direct statement of the ultimate facts on which the party
pleading relies for his claim or defense, as the case may be, omitting the
statement of mere evidentiary facts.

If a defense relied on is based on law, the pertinent provisions thereof and

their applicability to him shall be clearly and concisely stated. (Sec. 1, Rule
8)

Alternative causes of action or defenses. — A party may set forth two or

more statements of a claim or defense alternatively or hypothetically, either
in one cause of action or defense or in separate causes of action or defenses.
When two or more statements are made in the alternative and one of them if
made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements.
(Section 2, Rule 8. )

Conditions precedent. — In any pleading a general averment of the

performance or occurrence of all conditions precedent shall be sufficient.
(Section 3, Rule 8)

Facts showing the capacity of a party to sue or be sued or the authority of a

party to sue or be sued in a representative capacity or the legal existence of
an organized association of person that is made a party, must be averred. A
party desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity, shall do
so by specific denial, which shall include such supporting particulars as are
peculiarly within the pleader's knowledge. (Sec. 4, Rule 8)

Fraud, mistake, condition of the mind. — In all averments of fraud or

mistake the circumstances constituting fraud or mistake must be stated with
particularity. Malice, intent, knowledge, or other condition of the mind of a
person may be averred generally. (Sec. 5, Rule 8)

Judgment. — In pleading a judgment or decision of a domestic or foreign

court, judicial or quasi-judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without setting forth matter
showing jurisdiction to render it. (Sec. 6, Rule 8)

Action or defense based on document. — Whenever an action or defense

is based upon a written instrument or document, the substance of such
instrument or document shall be set forth in the pleading, and the original or
a copy thereof shall be attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said copy may with like effect be set
forth in the pleading. (Sec. 7, Rule 8)

Official document or act. — In pleading an official document or official

act, it is sufficient to aver that the document was issued or the act done in
compliance with law. (Sec. 9, Rule 8)

Specific denial. — A defendant must specify each material allegation of fact

the truth of which he does not admit and, whenever practicable, shall set
forth the substance of the matters upon which he relies to support his denial.
Where a defendant desires to deny only a part of an averment, he shall
specify so much of it as is true and material and shall deny only the
remainder. Where a defendant is without knowledge or information
sufficient to form a belief as to the truth of a material averment made to the
complaint, he shall so state, and this shall have the effect of a denial. (Sec.
10, Rule 8)

Effect of Failure to make specific denials

The genuineness and due execution of the instrument shall be deemed

admitted.

Exceptions:
Unless the adverse party, under oath specifically denies them, and sets forth
what he claims to be the facts, but the requirement of an oath does not apply
when the adverse party does not appear to be a party to the instrument or
when compliance with an order for an inspection of the original instrument
is refused. (Rule 8, Section 8)

RULE 9. EFFECT OF FAILURE TO PLEAD

General Rule:

Defenses and objections not pleaded either in a motion to dismiss or in the

answer are deemed waived. (Sec. 1, Rule 9)

Exceptions:

When it appears from the pleadings or evidence on record

1) That the court lack jurisdiction over the subject matter;
2) Litis pendentia between same parties for the same cause;
3) Res judicata;
4) Action barred by statute of limitations.

The court shall dismiss the claim. (Sec. 1, Rule 9)

▶ The exception to the basic rule mentioned operates on the principle of

estoppel by laches — whereby a party may be barred by laches from
invoking the lack of jurisdiction at a late hour for the purpose of annulling
everything done in the case with the active participation of said party
invoking the plea. (Cabrera v. Spouses Clarin, G.R. No. 215640, November
28, 2016, citing Tijam v. Sibonghanoy)

Kinds of Defenses — Defenses may either be negative or affirmative.

Negative Defenses - The specific denial (Sec. 10, Rule 9) of the material
fact/s alleged in the pleading of the claimant essential to his cause/s of
action. (Sec. 5);

Three Modes of Denial

1) Absolute denial – The defending party specifying each material

allegation of fact the truth of which he does not admit and, whenever
practicable, setting forth the substance of the matters upon which he
relies to support his denial.

2) Partial denial – The defending party denies only a part of an averment,

and the denial is done by the defending party specifying so much of
the material allegation of ultimate facts as is true and material and
denying only the remainder.

3) Disavowal of knowledge – The defending party shall state that he is

without knowledge or information sufficient to form a belief as to the
truth of a material averment made in the complaint by stating so in the
answer.

▶ Any material averment in the complaint not so specifically denied are

deemed admitted except an averment of the amount of unliquidated
damages.(Fernando Medical Enterprises, Inc. v. Wesleyan University Philippines, Inc.)

NEGATIVE PREGNANT

A negative pregnant is a form of negative expression which carries

with it an affirmation or at least an implication of some kind favorable
to the adverse party. It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is alleged with
qualifying or modifying language and the words of the allegation as
so qualified or modified are literally denied, it has been held that the
qualifying circumstances alone are denied while the fact itself is
admitted.

If an allegation is not specifically denied or the denial is a negative

pregnant, the allegation is deemed admitted."

Where a fact is alleged with some qualifying or modifying language,

and the denial is conjunctive, a 'negative pregnant' exists, and only the
qualification or modification is denied, while the fact itself is

admitted."

A denial in the form of a negative pregnant is an ambiguous pleading,

since it cannot be ascertained whether it is the fact or only the
qualification that is intended to be denied." (Serrano Mahilum v. Spouses
Ilano, G.R. No. 197923, June 22, 2015)

Affirmative defense – is an allegation of a new matter which, while

hypothetically admitting the material allegations in the pleading of the
claimant, would nevertheless prevent or bar recovery by him.

Kinds of affirmative defenses:

Affirmative defenses include fraud, statute of limitations, release, payment,

illegality, statute of frauds, estoppel, former recovery, discharge in
bankruptcy and any other matter by way of confession and avoidance. (Sec.
5[b])

Failure to plead compulsory counterclaim or cross-claim

A compulsory counterclaim, or a cross-claim, not set up shall be barred.
(Sec. 2, Rule 9)

Exception: If the counterclaim or cross-claim matured or was acquired by a

party after serving his answer, he may, with the permission of the court, be
allowed to present his counterclaim or cross-claim by filing a supplemental
answer or pleading before judgment (Rule 11, Sec. 9).

When a pleader fails to set up a counterclaim or a cross-claim through

oversight, inadvertence, or excusable neglect, or when justice requires, he
may, by leave of court, set up the counterclaim or cross-claim by amendment
before judgment. (Sec. 10, Rule 11).

DEFAULT

If the defending party fails to answer within the time allowed therefor, the
court shall, upon motion of the claiming party with notice to the defending
party, and proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting the claimant
such relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such reception of evidence may be
delegated to the clerk of court. (Rule 9, Sec. 3)

Effect of order of default. — A party in default shall be entitled to notice of

subsequent proceedings but not to take part in the trial. (Rule 9, Sec. 3(a))

Relief from order of default. — A party declared in default may at any time
after notice thereof and before judgment file a motion under oath to set aside
the order of default upon proper showing that his failure to answer was due
to fraud, accident, mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of default may be set aside on

such terms and conditions as the judge may impose in the interest of justice.
(Rule 9, Sec. 3(b))

▶ The remedies of the motion to set aside order of default, motion for new
trial, and petition for relief from judgment are mutually exclusive, not
alternative or cumulative. This is to compel defendants to remedy their
default at the earliest possible opportunity. Depending on when the default
was discovered and whether a default judgment was already rendered, a
defendant declared in default may avail of only one of the three remedies.”

▶ Thus, if a defendant discovers his or her default before the trial court
renders judgment, he or she shall file a motion to set aside order of default.
If this motion to set aside order of default is denied, the defendant declared
in default cannot await the rendition of judgment, and he or she cannot file a
motion for new trial before the judgment becomes final and executory, or a
petition for relief from judgment after the judgment becomes final and
executory” (Lui Enterprises, In. v. Zuellig Pharma Corp., G.R. No. 193494,
March 12, 2014)

Effect of partial default. — When a pleading asserting a claim states a

common cause of action against several defending parties, some of whom
answer and the others fail to do so, the court shall try the case against all
upon the answers thus filed and render judgment upon the evidence
presented. (Rule 9, Sec. 3(c))

Extent of relief to be awarded. — A judgment rendered against a party in

default shall not exceed the amount or be different in kind from that prayed
for nor award unliquidated damages. (Rule 9, Sec. 3(d))

▶ The raison d'être in limiting the extent of relief that may be granted is
that it cannot be presumed that the defendant would not file an Answer and
allow himself to be declared in default had he known that the plaintiff will
be accorded a relief greater than or different in kind from that sought in the
Complaint. 38 No doubt, the reason behind Section 3 (d), Rule 9 of the
Rules of Court is to safeguard defendant's right to due process against
unforeseen and arbitrarily issued judgment. This, to the mind of this Court,
is akin to the very essence of due process. It embodies "the sporting idea of
fair play" 39 and forbids the grant of relief on matters where the defendant
was not given the opportunity to be heard thereon. (Leticia Diona, rep. By
her attorney-in-fact, Marcelina Diona Vs. Romeo A. Balangue, Sonny A.
Balangue, Reynaldo A. Balangue, and Esteban A. Balangue, Jr. G.R. No.
173559. January 7, 2013)

Where no defaults allowed. — If the defending party in an action for

annulment or declaration of nullity of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether
or not a collusion between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence submitted is not
fabricated. (Rule 9, Sec. 3(e))

RULE 10. AMENDMENTS

Pleadings may be amended by adding or striking out an allegation or

the name of any party, or by correcting a mistake in the name of a party or a
mistaken or inadequate allegation or description in any other respect, so that
the actual merits of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and inexpensive manner.
(Rule 10, Section 1)

Amendments as a matter of right. — A party may amend his pleading once

as a matter of right at any time before a responsive pleading is served or, in
the case of a reply, at any time within ten (10) days after it is served.

▶ The right of a plaintiff to amend his pleading once as a matter of right

before a responsive pleading is served, has been held to be one which the
court should always grant, otherwise mandamus will lie against it since it is
a ministerial duty of the court to accept amendment as a matter of right.
(Ong Peng v. Custodio, L-14911, March 25, 1961).

▶ If the purpose of the amendment is to confer jurisdiction upon the court

then the court cannot admit the amended complaint. Not having acquired
jurisdiction over the case by the filing of the original complaint, the lower
court has neither the power nor the jurisdiction to act on the motion for the
admission of the amended complaint, much less to allow such amendment,
since it is elementary that the court must first acquire jurisdiction over the
case in order to act validly therein. (Rosario v. Carangdang, G.R. No. L-
7076, April 28, 1955)

▶ The cause of action must exist at the time the action was begun, and the
plaintiff will not be allowed by an amendment to introduce a cause of action
which had no existence when the action was commenced. (Surigao Mine
Exploration Co. v. Harris, G.R. No. L-45543, May 17,1939)

Amendments by leave of court. — Except as provided in the next preceding

section, substantial amendments may be made only upon leave of court. But
such leave may be refused if it appears to the court that the motion was made
with intent to delay. Orders of the court upon the matters provided in this
section shall be made upon motion filed in court, and after notice to the
adverse party, and an opportunity to be heard. (Sec. 3, Rule 10)

When amendments by leave of court NOT allowed

1. Cause of action, defense or theory of the case is changed;
2. Amendment is intended to confer jurisdiction to the court;
3. Amendment seeks to cure the defect in the cause of action;
4. Amendment is made with intent to delay.

▶ In Guntalilib v. Dela Cruz, the respondents' Complaint was amended even

before petitioner could file any responsive pleading thereto; under the 1997
Rules, a party may amend his pleading once as a matter of right at any time
before a responsive pleading is served. No motion to admit the same was
required; as the amendment is allowed as a matter of right, prior leave of

court was unnecessary. Indeed, even if such a motion was filed, no hearing
was required therefor, because it is not a contentious motion. (G.R. No.
200042, July 7, 2016)

▶ A substantial alteration in the cause of action or defense is not a bar to

amend the original complaint so long as the amendment is not meant for
delay. (Citystate Savings Bank, Inc. v. Aguinaldo, G.R. No. 200018. April
16, 2015)

▶ It is well-settled that amendment of pleadings is favored and should be

liberally allowed in the furtherance of justice in order to determine every
case as far as possible on its merits without regard to technicalities. This
principle is generally recognized in order that the real controversies between
the parties are presented, their rights determined and the case decided on the
merits without unnecessary delay to prevent circuity of action and needless
expense. (ibid)

Formal amendments. — A defect in the designation of the parties and other

clearly clerical or typographical errors may be summarily corrected by the
court at any stage of the action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse party. (Rule 10, Section 4)

Amendment to conform to or authorize presentation of evidence. — When

issues not raised by the pleadings are tried with the express or implied
consent of the parties they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment; but
failure to amend does not effect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings to be
amended and shall do so with liberality if the presentation of the merits of
the action and the ends of substantial justice will be subserved thereby. The
court may grant a continuance to enable the amendment to be made. (Rule
10, Section 5)

Supplemental pleadings. — Upon motion of a party the court may, upon

reasonable notice and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions, occurrences or events
which have happened since the date of the pleading sought to be
supplemented. The adverse party may plead thereto within ten (10) days
from notice of the order admitting the supplemental pleading. (Rule 10,
Section 5)

Rule 10 of the 1997 Revised Rules of Court allows the parties to supplement
their pleadings by setting forth transactions, occurrences, or events that
happened since the date of the pleading sought to be supplemented.

▶ However, the option of a party-litigant to supplement a pleading is not

without limitation. A supplemental pleading only serves to bolster or add
something to the primary pleading. Its usual function is to set up new facts
that justify, enlarge, or change the kind of relief sought with respect to the
same subject matter as that of the original complaint. (G.R. No. 173399,

February 21, 2017, Central Bank Board of Liquidators v. Banco Filipino

Savings and Mortgage Bank)
Filing of amended pleadings. — When any pleading is amended, a new
copy of the entire pleading, incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed. (Sec. 7, Rule 10)

Effect of amended pleadings. — An amended pleading supersedes the

pleading that it amends. However, admissions in superseded pleadings may
be received in evidence against the pleader, and claims or defenses alleged
therein not incorporated in the amended pleading shall be deemed waived.
(Sec. 8, Rule 10)

Supplemental Pleadings distinguished from Amended Pleadings

Amended Pleadings Supplemental Pleadings

Refers to transactions, occurrences

Refers to transaction, occurrences or
or events which have happened
events already existing at the time of
since the date of the pleading sought
the filing of the original action.
to be supplemented.

Can be a matter of right such as

when made before a responsive Always with leave of court.
pleading is served.

A new copy of the entire pleading

No need to file but must serve a
must be filed incorporating the
copy to the court and the adverse
amendments and indicated by
party.
appropriate marks.

An amended pleading supersedes the

Original pleadings stands.
original one.

▶ It must be underscored that the service of the initiatory pleading has

nothing to do with how courts acquire jurisdiction over the person of the
defendant in an ordinary civil action. Rather, it is the propriety of the trial
court's service of summons — same as the CA's service of its resolution
indicating its initial action on the certiorari petition — which remains
material to the matter of the court's acquisition jurisdiction over the
defendant's/respondents' person. (G.R. No. 204796, Reicon v. Diamond
Dragon Realty, Feb. 4, 2015)

▶ The procedural rule, which requires that amendments to a pleading be

indicated with appropriate marks, has for its purpose the convenience of the
Court and the parties. It allows the reader to be able to immediately see the
modifications. However, failure to use the appropriate markings for the
deletions and intercalations will not affect any substantive right. Certainly,
its absence cannot cause the denial of any substantive right. (Republic v.
Sandiganbayan, G.R. No. 195295, October 5, 2016)

RULE 12. BILL OF PARTICULARS

▶ In general, a bill of particulars is the further specification of the charges

or claims in an action, which an accused may avail of by motion before
arraignment, to enable him to properly plead and prepare for trial. In civil
proceedings, a bill of particulars has been defined as a complementary
procedural document consisting of an amplification or more particularized
outline of a pleading, and is in the nature of a more specific allegation of the
facts recited in the pleading. 47 The purpose of a motion for bill of
particulars in civil cases is to enable a party to prepare his responsive
pleading properly.”

▶ In criminal cases, a bill of particulars details items or specific conduct not

recited in the Information but nonetheless pertain to or are included in the
crime charged. Its purpose is to enable an accused: to know the theory of the
government's case; to prepare his defense and to avoid surprise at the trial; to
plead his acquittal or conviction in bar of another prosecution for the same
offense; and to compel the prosecution to observe certain limitations in
offering evidence.” (Enrile v. People, G.R. No. 213455, August 2015)

Vagueness in the allegations in the complaint not a ground for dismissal

▶ An action cannot be dismissed on the ground that the complaint is vague

or indefinite. The remedy of the defendant is to move for a bill of particulars
or avail of the proper mode of discovery (Galeon v. Galeon, G.R. No. L-
30380, Feb. 28, 1973).

Remedy if the allegations fails to state a cause of action

▶ If the pleading is not only indefinite or ambiguous but fails to state a

cause of action, the remedy of the party is to file a motion to dismiss on the
ground that the pleading states no cause of action. (Primer-Reviewer on
Remedial Law, Vol.I, Civil Procedure, Riguera, 2nd ed., 2013)

When to file?
The motion for bill of particulars shall be filed before responding to a
pleading. Hence, it must be filed within the period granted by the Rules
(Rule 11) for the filing of a responsive pleading.

Actions of the court

Upon the filing of the motion, the clerk of court must immediately bring it to
the attention of the court which may either deny or grant it outright, or allow
the parties the opportunity to be heard. (Rule 12, Section 2)

Compliance with the order and effect of noncompliance

Compliance with Order

If the motion is granted, either in whole or in part, the compliance therewith
must be effected within ten (10) days from notice of the order, unless a
different period is fixed by the court. The bill of particulars or a more
definite statement ordered by the court may be filed either in a separate or in
an amended pleading, serving a copy thereof on the adverse party. (Rule 12,
Section 3)

Effect of Noncompliance

If the order is not obeyed, or in case of insufficient compliance therewith,

the court may order the striking out of the pleading or the portions thereof to
which the order was directed or make such other order as it deems just. (Rule
12, Section 4)

If the plaintiff fails to obey, his complaint may be dismissed with prejudice
UNLESS otherwise ordered by the court (Rule 12, Sec. 4; Rule 17, Section
3);

If defendant fails to obey, his answer will be stricken off and his
counterclaim dismissed, and he will be declared in default upon motion of
the plaintiff (Rule 12, Section 4; Rule 17, Section 4; Rule 9, Sec. 3).

Effect on the period to file a responsive pleading

After service of the bill of particulars or of a more definite pleading, or after

notice of denial of his motion, the moving party may file his responsive
pleading within the period to which he was entitled at the time of filing his
motion, which shall not be less than five (5) days in any event. (Rule 12,
Section 5)

RULE 13. Filing and Service of Pleadings, Judgments and Other Papers

Filing is the act of presenting the pleading or other paper to the clerk of
court.

Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be
made upon his counsel or one of them, unless service upon the party himself
is ordered by the court. Where one counsel appears for several parties, he
shall only be entitled to one copy of any paper served upon him by the
opposite side. (Sec. 2, Rule 13)

▶ Personal service is required precisely because it often happens that

hearings do not push through because, while a copy of the motion may have
been served by registered mail before the date of the hearing, such is
received by the adverse party already after the hearing. Thus, the rules prefer
personal service. But it does not altogether prohibit service by registered

mail when such service, when adopted, ensures as in this case receipt by the
adverse party. (G.R. No. 178789, November 14, 2012, Lim v. NAPOCOR)

While personal service is the preferred method of serving summons, the

Rules of Court are also mindful that this is sometimes impracticable or even
impossible. Thus, Rule 14 also allows the sheriff (or other proper court
officer) to resort to substituted service instead.

Substituted service. — If service of pleadings, motions, notices, resolutions,

orders and other papers cannot be made under the two preceding sections,
the office and place of residence of the party or his counsel being unknown,
service may be made by delivering the copy to the clerk of court, with proof
of failure of both personal service and service by mail. The service is
complete at the time of such delivery. (Sec. 8, Rule 13)

Completeness of service. — Personal service is complete upon actual

delivery. Service by ordinary mail is complete upon the expiration of ten
(10) days after mailing, unless the court otherwise provides. Service by
registered mail is complete upon actual receipt by the addressee, or after five
(5) days from the date he received the first notice of the postmaster,
whichever date is earlier. (Sec. 10)

▶ Clearly, service made through registered mail is proved by the registry

receipt issued by the mailing office and an affidavit of the person mailing of
facts showing compliance with the rule. (G.R. No. 198572, January 13,
2016, Alba, Jr., v. Malapajo)

▶ Though filing of pleadings thru a private courier is not prohibited by the

Rules, it is established in jurisprudence that the date of actual receipt of
pleadings by the court is deemed the date of filing of such pleadings, and not
the date of delivery thereof to a private letter-forwarding agency. (Bautista v.
Bautista, G.R. No. 202088, March 8, 2017)

▶ In National Power Corp v. Southern Philippines Power Corp., (G.R. No.

219627, July 4, 2016), The Supreme Court found clear and persuasive
reason for the Court to relax the rules. Here, the Energy Regulatory
Commission previously allowed petitioner to file its other pleadings through
a private courier (such as LBC) despite its prescribed mode on the filing of
pleadings being either personally or by registered mail. This liberality
extended by the Commission on petitioner's earlier filings gave it a
reasonable ground to believe that its filing of a motion for reconsideration
through the same private courier would be considered sufficient compliance
with the Energy Regulatory Commission Rules of Practice and Procedure.
Unfortunately, the Motion for Reconsideration reached the Commission four
(4) days beyond the due date.”

Petitioner's delay in filing the motion for reconsideration was far from
being intentional and dilatory. Petitioner simply followed its usual mode of
filing its pleadings, which had been previously acceptable to the
Commission. The Energy Regulatory Commission itself adopts a liberal
policy in the construction of its Rules of Practice and Procedure "to secure
the most expeditious and least expensive determination of every proceeding .
. . on its merits." 68 Hence, the Commission should have given due course to

petitioner's Motion for Reconsideration, given petitioner's satisfactory

explanation for missing the deadline.” (ibid)
RULE 14. SUMMONS

What is summons?

▶ Summons is a writ by which the defendant is notified of the action

brought against him or her. Its purpose is two-fold: to acquire jurisdiction
over the person of the defendant and to notify the defendant that an action
has been commenced so that he may be given an opportunity to be heard on
the claim against him. (National Petroleum Gas, In. v. Rizal Commercial
Banking Corp., G.R. No. 183370, August 17, 2015)

How can the court acquire jurisdiction over the defendant?

▶ In civil cases, jurisdiction over a party is acquired either through his

voluntary appearance in court or upon a valid service of summons. When a
party was not validly served summons and did not voluntarily submit to the
court's jurisdiction, the court cannot validly grant any relief against him.
(Ang v. Chinatrust, G>R. No. 200693, April 18, 2016)

▶ [W]hile proper service of summons is necessary to vest the court

jurisdiction over the defendant, the same is merely procedural in nature and
the lack of or defect in the service of summons may be cured by the
defendant's subsequent voluntary submission to the court's jurisdiction
through his filing a responsive pleading such as an answer. Guy v. Gacott,
G.R. No. 206147, January 13, 2016)

Jurisdiction over the res

Under Section 15, service of summons only confers jurisdiction over the res
and not over the person of the defendant.

Nature and purpose of summons in relation to actions in personam, in

rem and quasi in rem
a) Action in Personam – To acquire jurisdiction over the person of the
defendant.
b) Action in Rem or Quasi in Rem –

1.To give notice to the defendant that an action has been

commenced against him; and
2. To afford the defendant an opportunity to be heard on the claim
against him.
Rule on unknown defendant or when the whereabouts is unknown

▶ Under the old rule, the distinction between the nature of actions was
important for it determines the mode of service of summons to be made.
However, in Santos v. PNOC (G.R. No. 170943, September 23, 2008), the
Supreme Court held that the in rem/in personam distinction was significant
under the old rule because it was silent as to the kind of action to which the
rule was applicable. Because of this silence, the court limited the application
of the old rule to in rem actions only. This has been changed. The present
rule expressly states that it applied to any action where the defendant is
designated as unknown owner, or the like, or whenever his whereabouts

are unknown and cannot be ascertained by diligent inquiry. Thus, it now

applies to any action, whether in personam, in rem or quasi in rem.

Voluntary appearance

Instances of submission to court's jurisdiction

1. filing of motions to admit answer;
2. for additional time to file answer, for reconsideration of a default
judgment;
3. and to lift order of default with motion for reconsideration. (G.R. Nos.
158836, 158967, 160726 & 160778, September 30, 2015)

Other forms of voluntary appearance:

a) Appearance of counsel in behalf of defendant
b) Filing of pleadings or papers in court
c) A telegraphic motion for postponement
d) The filing of a motion for dissolution of attachment.

Special Appearance to file a motion to dismiss on grounds aside from lack of

jurisdiction over the person of the defendant shall NOT be deemed a
voluntary appearance.

▶ While Rule 14, Section 20 of the Rules of Court provides that voluntary
appearance is equivalent to service of summons, the same rule also provides
that "[t]he inclusion in a motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall not be deemed a
voluntary appearance. Sunrise Garden Corp. v. Court of Appeals, (G.R. Nos.
158836, 158967, 160726 & 160778, September 30, 2015)

▶ In Philippine Commercial International Bank v. Spouses Dy Hong Pi, et

al., 214 this court discussed that voluntary appearance in court may not
always result in submission to the jurisdiction of a court.

Preliminarily, jurisdiction over the defendant in a civil case is acquired either by

the coercive power of legal processes exerted over his person, or his voluntary
appearance in court. As a general proposition, one who seeks an affirmative relief
is deemed to have submitted to the jurisdiction of the court. It is by reason of this
rule that we have had occasion to declare that the filing of motions to admit
answer, for additional time to file answer, for reconsideration of a default
judgment, and to lift order of default with motion for reconsideration, is
considered voluntary submission to the court's jurisdiction. This, however, is
tempered by the concept of conditional appearance, such that a party who makes a
special appearance to challenge, among others, the court's jurisdiction over his
person cannot be considered to have submitted to its authority.

Prescinding from the foregoing, it is thus clear that:

(1) Special appearance operates as an exception to the general rule on voluntary

appearance;
(2) Accordingly, objections to the jurisdiction of the court over the person of the
defendant must be explicitly made, i.e., set forth in an unequivocal manner; and
3) Failure to do so constitutes voluntary submission to the jurisdiction of the
court, especially in instances where a pleading or motion seeking affirmative
relief is filed and submitted to the court for resolution.

The appearance of respondent First Alliance Real Estate Development, Inc. and K-

9 Security Agency should not be deemed as a voluntary appearance because it was

for the purpose of questioning the jurisdiction of the trial court. The records of this
case show that the defense of lack of jurisdiction was raised at the first instance
and repeatedly argued by K-9 Security Agency and respondent First Alliance Real
Estate Development, Inc. in their pleadings. (G.R. Nos. 158836, 158967, 160726
& 160778, September 30, 2015)

MODES OF SERVICE OF SUMMONS

Personal service
Whenever practicable, the summons shall be served by handling a copy
thereof to the defendant in person, or, if he refuses to receive and sign for it,
by tendering it to him. (Rule 14, Section 6)

Substituted service

If, for justifiable causes, the defendant cannot be served within a reasonable
time as provided in the preceding section, service may be effected (a) by
leaving copies of the summons at the defendant's residence with some
person of suitable age and discretion then residing therein, or (b) by leaving
the copies at defendant's office or regular place of business with some
competent person in charge thereof. (Rule 14, Section 7)

▶ In an action strictly in personam, summons shall be served personally on

the defendant whenever practicable. Personal service is made by personally
handing a copy of the summons to the defendant or by tendering it to him if
he refuses to receive and sign for it. (G.R. No. 200693, April 18, 2016, Ang
vs. China Trust)

Elements of valid substituted service:

First, the party relying on substituted service or the sheriff must establish the
impossibility of prompt personal service. Before substituted service of
summons can be resorted to, the sheriff must have made several attempts to
personally serve the summons within a reasonable period of one month. And
by "several attempts," the sheriff is expected to have tried at least thrice on
at least two different dates.

Second, there must be specific details in the return describing the

circumstances surrounding the attempted personal service. The sheriff must
describe the efforts he took and the circumstances behind the failure of his
attempts. The details in the return serve as evidence to prove the
impossibility of prompt personal service.

Third, if substituted service is made at the defendant's house or residence,

the sheriff must leave a copy of the summons with a person of "suitable age
and discretion residing therein" This refers to a person who has reached the
age of full legal capacity and has sufficient discernment to comprehend the
importance of a summons and his duty to deliver it immediately to the
defendant.

Finally, if substituted service is made at the defendant's office or regular

place of business, the sheriff must instead leave a copy of the summons with
a "competent person in charge thereof." This refers to the person managing
the office or the business of the defendant, such as the president or the
manager.

▶ A serving officer's failure to comply with any of these elements results in

the court's failure to acquire jurisdiction over the person of the defendant.
However, proof that the defendant actually received the summons in a timely
manner or his failure to deny the same (which amounts to voluntary
appearance) would satisfy the requirements of due process. The
constitutional requirement of due process requires that the service be such as
may be reasonably expected to give the notice desired. Once the service
reasonably accomplishes that end, the requirement of justice is answered,
traditional notions of fair play are satisfied, and due process is served. (G.R.
No. 200693, April 18, 2016.

Constructive service (by publication)

a) Service upon a defendant where his identity is unknown or his

whereabouts are unknown

In any action where the defendant is designated as an unknown owner, or the

like, or whenever his whereabouts are unknown and cannot be ascertained
by diligent inquiry, service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such places and for
such time as the court may order. (Rule 14, Section 14)

b) Service upon residents temporarily outside the Philippines

When any action is commenced against a defendant who ordinarily resides

within the Philippines, but who is temporarily out of it, service may, by
leave of court, be also effected out of the Philippines, as under the preceding
section. (Rule 14, Section 16) (Note: See Extraterritorial Service for this
section refers to it)

Extra-territorial service, when allowed

When the defendant does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from any
interest therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the Philippines
by personal service as under section 6; or by publication in a newspaper of
general circulation in such places and for such time as the court may order,
in which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant, or in any other
manner the court may deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer. (Rule 14, Section 15)

Service of Summons through other modes

Extra-territorial service may be validly served by telefax or email as the rule

provides “any other other manner the court may deem sufficient.”

The Court had acquired jurisdiction over said defendant, through service of
the summons addressed to him upon Mrs. Schenker, it appearing from said
answer that she is the representative and attorney-in-fact of her husband. She
had authority to sue, and had actually sued on behalf of her husband.
(Gemerple v. Schenker, G.R. No. L-18164 January 23, 1967)

However, in the case Valmonte v. CA, Mrs. Valmonte did not appoint Mr.
Valmonte as her attorney-in-fact to represent her in litigations and in court.
Mr. Valmonte was merely acting as his wife's counsel in negotiations with
but this cannot be construed as an authorization. (Valmonte v. CA, G.R. No.
108538. January 22, 1996)

Service upon prisoners and minors

When the defendant is a prisoner confined in a jail or institution, service
shall be effected upon him by the officer having the management of such jail
or institution who is deemed deputized as a special sheriff for said purpose.
(Rule 14, Section 9)

When the defendant is a minor, insane or otherwise an incompetent, service

shall be made upon him personally and on his legal guardian if he has one,
or if none his guardian ad litem whose appointment shall be applied for by
the plaintiff. In the case of a minor, service may also be made on his father
or mother. (Rule 14, Section 10)

Proof of service

Rule 14, Section 18. Proof of service. — The proof of service of a summons
shall be made in writing by the server and shall set forth the manner, place,
and date of service; shall specify any papers which have been served with
the process and the name of the person who received the same; and shall be
sworn to when made by a person other than a sheriff or his deputy.

Rule 14, Section 19. Proof of service by publication. — If the service has
been made by publication, service may be proved by the affidavit of the
printer, his foreman or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of the publication shall be
attached and by an affidavit showing the deposit of a copy of the summons
and order for publication in the post office, postage prepaid, directed to the
defendant by registered mail to his last known address.

Rule 15. MOTIONS

Definition. A motion is an application for relief other than by a pleading.

(Rule 15, Section 1)

Under the rules on Small Claims Cases a motion is an oral or written request
asking for an affirmative action from the court, that includes a letter.

Motions versus pleadings

A motion is an application for relief other than by a pleading. (Rule 15,
Section 1). A motion prays for another relief other than the main cause of
action or the main defense, while a pleading prays for a relief which is
directly related to the cause of action or defense.

Contents and forms of motions

Contents
A motion shall state the relief sought to be obtained and the grounds upon
which it is based, and if required by these Rules or necessary to prove facts
alleged therein, shall be accompanied by supporting affidavits and other
papers. (Rule 15, Section 3)

Form
All motions shall be in writing except those made in open court or in the
course of a hearing or trial. (Rule 15, Section 2)

Notice of hearing and hearing of motions

Except for motions which the court may act upon without prejudicing the
rights of the adverse party, every written motion shall be set for hearing by
the applicant.

Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the other
party at least three (3) days before the date of hearing, unless the court for
good cause sets the hearing on shorter notice. (Rule 15, Section 4)

▶ A motion that does not contain a notice of hearing is a mere scrap of

paper and presents no question which merits the attention and consideration
of the court. It is not even a motion for it does not comply with the rules,
and, hence, even the clerk has no right to receive it.(Mendez v. Shari'a
District Court, G.R. No. 201614, January 12, 2016)

▶ The logic for such requirement is simple: a motion invariably contains a

prayer which the movant makes to the court which is usually in the interest
of the adverse party to oppose. The notice of hearing to the adverse party is
therefore a form of due process; it gives the other party the opportunity to
properly vent his opposition to the prayer of the movant. In keeping with the
principles of due process, therefore, a motion which does not afford the
adverse party a chance to oppose should simply be disregarded. Principles of
natural justice demand that a right of a party should not be affected without

giving it an opportunity to be heard.”

▶ In keeping with the principles of due process, therefore, a motion which

does not afford the adverse party the chance to oppose it should simply be
disregarded. 28 Failure to comply with the required notice and hearing is a
fatal defect that is deleterious to respondents cause.(Acampado v. Spouses
Cosmilla, G.R. No. 198531, September 28, 2015)

Omnibus motion rule

Subject to the provisions of section 1 of Rule 9, a motion attacking a

pleading, order, judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed waived. (Rule
15, Section 8)

Exception
Motions arguing that the court has no jurisdiction over the subject matter,
that there is another action pending between the same parties for the same
cause, or that the action is barred by a prior judgment or by statute of
limitations (Rule 9, Section 1)

Litigated Motions

They are motions which the court may not act upon without prejudicing the
rights of the adverse party. Made with notice to the adverse party to give an
opportunity to oppose e.g., motion for reconsideration, motion to dismiss
motion to declare defendant in default.

Examples of Litigious Motions:

1. Motion for reconsideration
2. Motion to dismiss
3. Motion to declare defendant in default
4. Motion for execution

Ex Parte Motions

They are motions which the court may act upon without prejudicing the
rights of the adverse party. Made without the presence or a notification to the
other party because the question generally presented is not debatable e.g.,
motion for extension of time to file answer, motion for postponement,
motion for extension of time to file record on appeal.

Examples of Ex Parte Motions:

1. Motion for postponement
2. Motion to set case for pre-trial
Pro-forma motions
They are motions which do not satisfy the requirements of the rules and one
which will be treated as a motion intended to delay the proceedings (Riano,
2007 citing Marikina Valley Dev't. Corp. v. Hon. Flojo, G.R. No. 110801,
December 8, 1995).

RULE 16. MOTION TO DISMISS

Grounds.(Rule 16, Sec. 1)

a. Lack of jurisdiction over the person of the defendant;
b. Lack of jurisdiction over the subject matter of the claim;
c. Venue is improperly laid;
d. Plaintiff has no legal capacity to sue;
e. There is another action pending between the same parties for the same
cause (Litis Pendentia);
f. Cause of action is barred by a prior judgment or by statute of
limitations (Res judicata/ Prescription);
g. Lack of Cause of action;
h. Claim or demand in the plaintiff's pleading has been paid, waived,
abandoned, extinguished;
i. Claim on which action is founded is unenforceable under the statute of
frauds;
j. Condition precedent for filing has not been complied with (this includes
prior recourse to barangay conciliation, or failure to make attempts
to reach a compromise in cases between members of the same family)
k. Strategic Lawsuit Against Public Participation (Under the Rules on
Environmental cases)

Instances of motu proprio dismissal

Section 1, Rule 9 provides for only four instances when the court may motu
proprio dismiss the claim, namely: (a) lack of jurisdiction over the subject
matter; (b) litis pendentia; (c) res judicata; and (d) prescription of action.

▶ The ground for dismissal must be evident from the pleadings or from the
evidence on record before a Court can dismiss a case motu proprio. (De
Leon v. Chu, G.R. No. 186522, September 2, 2015)
Resolution of motion

After the hearing, the court may dismiss the action or claim, deny the
motion, or order the amendment of the pleading. The court shall not defer
the resolution of the motion for the reason that the ground relied upon is not
indubitable. (Rule 16, Sec. 3)

Remedies of plaintiff when the complaint is dismissed

The plaintiff may:

a. File a motion for reconsideration, to appeal from the order of dismissal

b. Appeal from the order of dismissal
c. Re-file the complaint

Remedies of the defendant when the motion is denied

The defendant may:

a. File a motion for reconsideration; or

b. File a petition for certiorari; or

c. Prohibition

Remedy for denial of motion to dismiss

▶ An order denying a motion to dismiss is an interlocutory order which

neither terminates nor finally disposes of a case as it leaves something to be
done by the court before the case is finally decided on the merits. Thus, as a
general rule, the denial of a motion to dismiss cannot be questioned in a
special civil action for certiorari which is a remedy designed to correct errors
of jurisdiction and not errors of judgment. 18 As exceptions, however, the
defendant may avail of a petition for certiorari if the ground raised in the
motion to dismiss is lack of jurisdiction over the person of the defendant or
over the subject matter, 19 or when the denial of the motion to dismiss is
tainted with grave abuse of discretion. (Municipality of Tangkal, Lanao Del
Norte v. Balindong, G.R. No. 193340, January 11, 2017)

Effect of dismissal of complaint on certain grounds

General rule: The action may be re-filed.

Exceptions: The action can no longer be re-filed if it was dismissed on the

grounds of:

a. Res judicata;
b. Extinguishment of the claim or demand;
c. Prescription; or
d. Unenforceability of the claim

When grounds pleaded as affirmative defenses

If no motion to dismiss has been filed, any of the grounds for dismissal
provided for in this Rule may be pleaded as an affirmative defense in the
answer and, in the discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed. (Rule 16, Sec. 6)

Bar by dismissal

The action can no longer be re-filed if it was dismissed on the grounds of:
a. Res judicata;
b. Extinguishment of the claim or demand;
c. Prescription; or
d. Unenforceability of the claim

RULE 17. DISMISSAL OF ACTIONS

Dismissal upon notice by plaintiff;

A complaint may be dismissed by the plaintiff by filing a notice of dismissal

at any time before service of the answer or of a motion for summary
judgment. Upon such notice being filed, the court shall issue an order

confirming the dismissal. (Rule 17, Sec. 1)

Two-Dismissal Rule

Unless otherwise stated in the notice, the dismissal is without prejudice,

except that a notice operates as an adjudication upon the merits when filed
by a plaintiff who has once dismissed in a competent court an action based
on or including the same claim. (Rule 17, Sec. 1) Thus, when the same
complaint had twice been dismissed by the plaintiff under Sec.1 by simply
filing a notice of dismissal, the second dismissal shall be with prejudice.

As a general rule, dismissals under Section 1 of Rule 17 are without

prejudice except when it is the second time that the plaintiff caused its
dismissal. Accordingly, for a dismissal to operate as an adjudication upon
the merits, i.e. with prejudice to the re-filing of the same claim, the
following requisites must be present:

(1) There was a previous case that was dismissed by a competent court;
(2) Both cases were based on or include the same claim;
(3) Both notices for dismissal were filed by the plaintiff; and
(4) When the motion to dismiss filed by the plaintiff was consented to by
the defendant on the ground that the latter paid and satisfied all the
claims of the former.

▶ The purpose of the "two-dismissal rule" is "to avoid vexatious litigation."

73 When a complaint is dismissed a second time, the plaintiff is now barred
from seeking relief on the same claim. (Ching v. Cheng, G.R. No. 175507,
October 8, 2014)

Dismissal upon motion by plaintiff; effect on existing counterclaim

Except as provided in the preceding section, a complaint shall not be

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

Dismissal due to the fault of plaintiff

If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute his
action for an unreasonable length of time, or to comply with these Rules or
any order of the court, the complaint may be dismissed upon motion of the

defendant or upon the court's own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the same or in a separate
action. This dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court. (Rule 17, Sec. 3)

Test of Non-prosequitur

This Court has said that "[t]he fundamental test for non prosequitur is
whether, under the circumstances, the plaintiff is chargeable with want of
due diligence in failing to proceed with reasonable promptitude. There must
be unwillingness on the part of the plaintiff to prosecute."

To constitute failure to prosecute, his non-appearance must be equated with

unwillingness to proceed with the trial as when both plaintiff and counsel
made no appearance at all, or with the assumption that plaintiff has already
lost interest in prosecuting his action, in the same way that should the
ground for dismissal be delay, this delay or failure to proceed must be for
an unreasonable length of time beyond the reasonable allowance which by
judicial leniency a litigant is normally entitled.

Likewise —

While a court can dismiss a case on the ground of non prosequitur, the real
test of such power is whether, under the circumstances, plaintiff is
chargeable with want of due diligence in failing to proceed with reasonable
promptitude. In the absence of a pattern or a scheme to delay the
disposition of the case or a wanton failure to observe the mandatory
requirement of the rules on the part of the plaintiff, . . . courts should decide
to dispense rather than wield their authority to dismiss. (Laurel v.
Vardeleon, G.R. No. 202967, August 15, 2015)

Dismissal of counterclaim, cross-claim or third-party complaint

The provisions of this Rule shall apply to the dismissal of any counterclaim,
cross-claim, or third-party complaint. A voluntary dismissal by the claimant
by notice as in section 1 of this Rule, shall be made before a responsive
pleading or a motion for summary judgment is served or, if there is none,
before the introduction of evidence at the trial or hearing. (Rule 17, Sec. 4)

RULE 18. PRE-TRIAL

Concept of Pre-Trial

Pre -trial is a mandatory procedural device by which the court is called upon,
after the filing of the last pleading, to compel the parties and their lawyers to
appear before it for the purposes enumerated under Section 2, Rule 18.

When conducted? (Sec. 1, Rule 18)

After the last pleading has been served and filed, if shall be the duty of the

plaintiff to promptly move ex parte that the case be set for pre-trial.

The motion is to be filed within 5 days after the last pleading joining the
issue has been served and filed (Admin. Circular No. 3-99, Jan. 15, 1999).

If the plaintiff fails to file said motion within the given period, the Clerk of
Court shall issue a notice of pre-trial. (A.M. No. 03-1-09-SC, Re: Pre-trial
guidelines, Effective August 16, 2004)

The plaintiff need not wait until the last pleading has been actually served
and filed as the expiration of the period for filing the last pleading will
suffice. (Sarmiento v. Juan, No. 56605 January 28, 1983).

Nature and purpose (Sec. 2, Rule 18)

The pre-trial is mandatory. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to

alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a
commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor
be found to exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action.

Notice of pre-trial

The notice of pre-trial shall be served on counsel, or on the party who has no
counsel. The counsel served with such notice is charged with the duty of
notifying the party represented by him. (Sec. 3, Rule 18)

Appearance of parties

It shall be the duty of the parties and their counsel to appear at the pre-trial.
The non-appearance of a party may be excused only if a valid cause is
shown therefor or if a representative shall appear in his behalf fully
authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and of documents. (Sec. 4, Rule 18)

Effect of failure to appear

The failure of the plaintiff to appear when so required pursuant to the next

preceding section shall be cause for dismissal of the action. The dismissal
shall be with prejudice, unless other-wise ordered by the court. A similar
failure on the part of the defendant shall be cause to allow the plaintiff to
present his evidence ex parte and the court to render judgment on the basis
thereof. (Sec. 5, Rule 18)

Pre-trial brief (Sec. 6, Rule 18)

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

(a) A statement of their willingness to enter into amicable settlement or

alternative modes of dispute resolution, indicating the desired terms
thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners;
and
(f) The number and names of the witnesses, and the substance of their
respective testimonies.

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

▶ Clearly, the said Rules command, in no uncertain terms, the filing of the
preliminary conference brief and compliance with the required contents of
the said brief. By the Rules' express language, the failure to comply
therewith shall have the same effect as failure to appear at the preliminary
conference which, in turn, shall be a sufficient cause for the dismissal of the
protest. (Cabrera v. COMELEC, G.R. No. 182084, October 8, 2008)

Distinction between pre-trial in civil case and pre-trial in criminal case

CIVIL CASE CRIMINAL CASE

The presence of the defendant is
required unless he is duly
represented by his counsel with
authority to enter into a compromise
agreement, failure of which the case
would proceed as if the defendant
has been declared in default.
The presence of the plaintiff is
required at the pre-trial unless
excused or represented by person
fully authorized in writing to perform
the acts specified in Sec 4, Rule 18.
Failure of which the case may be
The presence of the accused is not
indispensable unless required by the
court, he is just required to sign the
written agreement arrived at the
pretrial if he is in conformity
therewith.
The offended party is not required
to be present at the pre-trial but
must appear at the
arraignment for the purpose of plea
bargaining, determination of civil
liability and other matters requiring

dismissed with or without his presence. (If the offended party

prejudice. fails to appear, and the accused
offer to plea to a lesser offense, the
same may be allowed with the
conformity of the prosecutor alone.
Does not require filing of pre-trial
brief but attendance only in a pre-
A pre-trial brief is required trial conference to consider the
matters stated in sec 2, rule18
(Regalado)

Effect of failure to set the case for pre-trial

Under Section 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended,

it is the duty of the plaintiff, after the last pleading has been served and filed,
to promptly move ex parte that the case be set for pre-trial. On August 16,
2004, A.M. No. 03-1-09-SC (Re: Proposed Rule on Guidelines to be
Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-
Trial and Use of Deposition-Discovery Measures) took effect, which
provides that:

Within five (5) days from date of filing of the reply, the plaintiff must
promptly move ex parte that the case be set for pre-trial conference. If the
plaintiff fails to file said motion within the given period, the Branch COC
shall issue a notice of pre-trial.

In BPI v. Spouses Genuino, the Supreme Court held:

Nevertheless, nowhere in the text of A.M. No. 03-1-09-SC does it

remove the plaintiff's duty under Rule 18, Section 1 of the Rules of Court to set
the case for pre-trial after the last pleading has been served and filed. Nowhere
does it repeal Rule 17, Section 3 of the Rules of Court that allows dismissals
due to plaintiff's fault, including plaintiff's failure to comply with the Rules for
no justifiable cause. Nowhere does it impose a sole burden on the trial court to
set the case for pre-trial.

Reading A.M. No. 03-1-09-SC together with Rule 17, Section 3 and Rule 18,
Section 1 of the Rules of Court accommodates the outright dismissal of a
complaint upon plaintiff's failure to show justifiable reason for not setting the
case for pre-trial within the period provided by the Rules. Thus, trial courts
must consider the facts of each case.

This court has allowed cases to proceed despite failure by the plaintiff to
promptly move for pre-trial when it finds that "the extreme sanction of
dismissal of the complaint might not be warranted":

It must be stressed that even if the plaintiff fails to promptly move for
pre-trial without any justifiable cause for such delay, the extreme
sanction of dismissal of the complaint might not be warranted if no
substantial prejudice would be caused to the defendant, and there are
special and compelling reasons which would make the strict
application of the rule clearly unjustified.
xxx xxx xxx

While "heavy pressures of work" was not considered a persuasive

reason to justify the failure to set the case for pre-trial in Olave v.
Mistas, however, unlike the respondents in the said case, herein
respondent never failed to comply with the Rules of Court or any
order of the trial court at any other time. Failing to file a motion to set
the case for pre-trial was her first and only technical lapse during the
entire proceedings. Neither has she manifested an evident pattern or a
scheme to delay the disposition of the case nor a wanton failure to
observe the mandatory requirement of the rules. Accordingly, the
ends of justice and fairness would best be served if the parties are
given the full opportunity to litigate their claims and the real issues
involved in the case are threshed out in a full-blown trial. Besides,
petitioners would not be prejudiced should the case proceed as they
are not stripped of any affirmative defenses nor deprived of due
process of law.

This is not to say that adherence to the Rules could be dispensed with.
However, exigencies and situations might occasionally demand
flexibility in their application. Indeed, on several occasions, the Court
relaxed the rigid application of the rules of procedure to afford the
parties opportunity to fully ventilate the merits of their cases. This is
in line with the time-honored principle that cases should be decided
only after giving all parties the chance to argue their causes and
defenses. Technicality and procedural imperfection should thus not
serve as basis of decisions.

Finally, A.M. No. 03-1-09-SC or the new Guidelines to be Observed

by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial
and Use of Deposition-Discovery Measures, which took effect on
August 16, 2004, aims to abbreviate court proceedings, ensure prompt
disposition of cases and decongest court dockets, and to further
implement the pre-trial guidelines laid down in Administrative
Circular No. 3-99 dated January 15, 1999. A.M. No. 03-1-09-SC
states that: "Within five (5) days from date of filing of the reply, the
plaintiff must promptly move ex-parte that the case be set for pre-trial
conference. If the plaintiff fails to file said motion within the given
period, the Branch COC shall issue a notice of pre-trial." As such, the
clerk of court of Branch 17 of the Regional Trial Court of Malolos
should issue a notice of pre-trial to the parties and set the case for pre-
trial. 37 (Emphasis supplied, citations omitted)

Rule 19. INTERVENTION

Definition – a proceeding in a suit or action by which a third person is

permitted by the court to
become a party by intervening in the pending case after meeting the
conditions and compliance
with the requirement set by the Rules.

Nature:
Intervention is ancillary and supplemental to an existing action. Hence, it
cannot exist independent of the principal action and the dismissal of the
latter shall also cause the dismissal of the complaint-in-intervention.

General rule: Intervention is discretionary.

Exceptions: It is a matter of right when:

1) Intervenor turns out to be an indispensable party
2) Class suit

Note:
Intervention is a prohibited pleading in forcible entry and unlawful detainer
cases under Sec. 13, Rule 70.

Requisites for intervention

A person who has a legal interest in the matter in litigation, or in the success
of either of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not
the intervention will unduly delay or prejudice the adjudication of the rights
of the original parties, and whether or not the intervenor's rights may be fully
protected in a separate proceeding. (Rule 18, Sec. 1)

A leave of court is necessary in order that the third party may be allowed to
intervene in the action.

An intervention cannot legally alter the nature of the action and the issue
joined by the original parties. (Clardidades v. Mercader, G.R. No. L-20341,
May 14, 1966)

Time to intervene

The motion to intervene may be filed at any time before rendition of

judgment by the trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties. (Rule 18, Sec. 2)

Remedy for the denial of motion to intervene

Answer to Complaint in Intervention (Rule 18, Sec.4)

Must be filed within 15 days from notice of the order admitting the same,
unless otherwise fixed by the court.

Remedies if motion for intervention is denied

1) Appeal;
2) File a petition for mandamus if there is grave abuse of discretion.
3) If the grant of intervention is improper, the remedy available to the
parties is Certiorari.
4) File a separate action

In Risos-Vidal v. Commission on Elections, (G.R. No. 206666, January 21,

2015) citing Ongco v. Dalisay, (677 SCRA 232, 241, July 18, 2012) the
Supreme Court pronounced:

“Since Lim intervened only in the present petition for certiorari

before this Court, the Rules of Court on intervention directly applies.
Section 2, Rule 19 of the Rules of Court provides that the time to intervene
is at any time before the rendition of judgment by the trial court.

The Court explained in Ongco v. Dalisay that "the period within which a
person may intervene is restricted and after the lapse of the period set in
Section 2, Rule 19, intervention will no longer be warranted. This is
because, basically, intervention is not an independent action but is
ancillary and supplemental to an existing litigation."

In Ongco, the Court further traced the developments of the present rule on
the period to file a motion for intervention. The former rule was that
intervention may be allowed "before or during a trial." Thus, there were
Court rulings that a motion for leave to intervene may be filed "before or
during a trial," even on the day when the case is submitted for decision as
long as it will not unduly delay the disposition of the case. There were also
rulings where the Court interpreted "trial" in the restricted sense such that
the Court upheld the denial of the motion for intervention when it was
filed after the case had been submitted for decision. In Lichauco v. CA,
intervention was allowed at any time after the rendition of the final
judgment. In one exceptional case, the Court allowed the intervention in a
case pending before it on appeal in order to avoid injustice.

To cure these inconsistent rulings, the Court clarified in Ongco that "[t]he
uncertainty in these rulings has been eliminated by the present Section 2,
Rule 19, which permits the filing of the motion to intervene at any time
before the rendition of the judgment, in line with the ruling in Lichauco.

The justification for this amendment is that before judgment is rendered,

the court, for good cause shown, may still allow the introduction of
additional evidence as this is still within a liberal interpretation of the
period for trial. Also, since no judgment has yet been rendered, the matter
subject of the intervention may still be readily resolved and integrated in
the judgment disposing of all claims in the case, without requiring an
overall reassessment of these claims as would be the case if the judgment
had already been rendered.

The Court held in Ongco that under the present rules, [t]he period within
which a person may intervene is also restricted. . . after the lapse of this
period, it will not be warranted anymore. This is because, basically,
intervention is not an independent action but is ancillary and supplemental
to an existing litigation.
The Court further held in Ongco that "there is wisdom in strictly enforcing
the period set by Rule 19 of the Rules of Court for the filing of a motion
for intervention. Otherwise, undue delay would result from many belated
filings of motions for intervention after judgment has already been
rendered, because a reassessment of claims would have to be done. Thus,
those who slept on their lawfully granted privilege to intervene will be
rewarded, while the original parties will be unduly prejudiced."

Rule 20. SUBPOENA

Subpoena

Subpoena is a process directed to a person requiring him to either:

1) Attend and to testify at the hearing or the trial of an action or at any
investigation conducted by a competent authority;
2) Give his deposition;
3) Bring with him any books, documents or other things under his control.

Subpoena may be issued by: (Rule 21, Sec.2)

1) The court before whom the witness is required to attend;

2) The court of the place where the deposition is to be taken;
3) The officer or body authorized by law to do so in connection with the
investigations conducted by said officer or body; or
4) Any Justice of the Supreme Court or of the Court of Appeals in any
case or investigation pending within the Philippines.

Subpoena duces tecum

A process by which the court to compel the production of books, records,

things or documents therein specified. (Roco v. Contreras, et.al., G.R. No.
158275, June 18, 2005, 500 Phil 275)

Subpoena ad testificandum
Ordinary subpoena. Requires a person to whom the order is directed to
attend and to testify at the hearing or the trial of an action or at any
investigation conducted by a competent authority or for the taking of his
deposition. It is used to compel a person to testify. (Roco v. Contreras, et.al.,
supra)

Service of subpoena
Service of a subpoena shall be made in the same manner as personal or
substituted service of summons. The original shall be exhibited and a copy
thereof delivered to the person on whom it is served, tendering to him the
fees for one day's attendance and the kilometrage allowed by these Rules,
except that, when a subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof, the tender need not be made. The
service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the subpoena is duces
tecum, the reasonable cost of producing the books, documents or things
demanded shall also be tendered. (Rule 21, Sec.6)

Compelling attendance of witnesses; contempt

In case of failure of a witness to attend, the court or judge issuing the
subpoena, upon proof of the service thereof and of the failure of the witness,
may issue a warrant to the sheriff of the province, or his deputy, to arrest the
witness and bring him before the court or officer where his attendance is

required, and the cost of such warrant and seizure of such witness shall be
paid by the witness if the court issuing it shall determine that his failure to
answer the subpoena was willful and without just excuse. (Rule 21, Sec.8)

Failure by any person without adequate cause to obey a subpoena served

upon him shall be deemed a contempt of the court from which the subpoena
is issued. If the subpoena was not issued by a court, the disobedience thereto
shall be punished in accordance with the applicable law or Rule. (Rule 21,
Sec.9)

The provisions of sections 8 and 9 of this Rule shall not apply to a witness
who resides more than one hundred (100) kilometers from his residence to
the place where he is to testify by the ordinary course of travel, or to a
detention prisoner if no permission of the court in which his case is pending
was obtained. (Rule 21, Sec.10)

Quashing of subpoena

Grounds for quashing subpoena duces tecum

Court may quash a subpoena duces tecum upon motion promptly made, and
in any event, at or before the time specified if:

1) It is unreasonable or oppressive;
2) The relevancy of the books, documents or things does not appear;
3) The person in whose behalf the subpoena is issued fails to advance the
reasonable cost of the production thereof; or
4) The witness fees and the kilometrage allowed by these Rules were not
tendered when the subpoena was served.

Grounds for quashing subpoena ad testificandum

1) The witness is not bound thereby; where the residence is more than
100km from place of trial.
2) The witness fees and the kilometrage allowed by these Rules were not
tendered when the subpoena was served.

“Viatory Right” of the witnesses– If witness resides more than 100 km

from the place where he is to travel by the ordinary course of travel, or if he
is a detention prisoner and no permission is obtained from the court in which
his case is pending, then he cannot be compelled to attend the trial. The right
is available only in CIVIL cases.

There is no viatory right in criminal cases. (People v. Montejo, G.R. No. L-

24154, Oct. 31, 1967)

Modes of discovery

Discovery: (A) device employed by a party to obtain information about

relevant matters on the
case from the adverse party in preparation for the trial. (Riano 2011)

The modern pre-trial procedure by which one party gains vital information
concerning the case in order to aid him in his litigation. (Riguera 2013,
citing Steven Gifis, Law Dictionary 61 [1975]).

Purpose: to narrow and clarify the basic issues between the parties, to
ascertain the facts relative to the issues and enable the parties to obtain the
fullest possible knowledge of issues and facts before civil trials.

The primary purpose of discovery is to enable the parties to obtain the fullest
possible knowledge of the issues and facts before trial and thus prevent the
situation where trials are carried on in the dark. It makes the parties lay
down their cards on the table so that justice can be rendered on the merits of
the case. (Riguera 2013, citing Koh v. IAC, 144 SCRA 259).

Modes or Methods of Discovery provided by the Rules of Court:

1) Depositions pending action (Rule 23); or Depositions before action or

pending appeal (Rule 24);
2) Interrogatories to parties (Rule 25);
3) Request for admission by adverse parties (Rule 26);
4) Motion for Production or inspection of documents or things (Rule 27);
and
5) Motion for physical and mental Examination of persons (Rule 28).

Availing modes of discovery is not mandatory but the failure to avail may be
sanctioned under Rules 25 and 26.

Bill of Particular is distinguished from Modes of Discovery

The purpose of the Bill of Particular is to compel to clarify vague statements

of ultimate facts. While Modes of Discovery is to compel other party to
reveal his evidence and evidentiary facts.

Prior Leave of Court, When Required

Rules 27 and 28 always require prior leave of court, unlike other modes of
discovery which could be availed of without leave of court as long as the
defendant has filed or served a responsive pleading.

Rule 23. Depositions Pending Action.

Definition – Deposition is a written testimony of a witness given in the

course of a judicial proceeding in advance of the trial or hearing upon oral
examination or in response to written interrogatories and where an
opportunity is given for cross-examination (Republic vs. Sandiganbayan,
G.R. No. 112710, May 30, 2001).

Deposition is a method of pre-trial discovery which consists in taking the

testimony of a person under oath upon oral examination (oral deposition) or

upon written interrogatories. The term deposition also refers to the testimony
or statement so taken. (Riguera 2013)

Uses; scope of examination

Applies also for depositions under Rule 24

The purpose for which a deposition may be used depends on who the
deponent is and on who will be using the deposition. Rule 23, Section 4(c)
lays down the relevant rules:

a) Any deposition may be used by any party for the purpose of

contradicting or impeaching the testimony of the deponent as a
witness. This is a common use of a deposition, to impeach a witness
who is under cross-examination.

b) The deposition of a party or of anyone who at the time of the taking the
deposition was an officer, director, or managing agent of a public or
private corporation, partnership, or association which is a party may
be used by an adverse party for any purpose.
c) The deposition of a witness, whether or not a party, may be used by any
party for any purpose if the court finds:

(1) that the witness is dead; or

(2) that the witness resides at a distance more than 100 kilometers
from the place of trial or hearing or is out of the Philippines,
unless it appears that his absence was procured by the party
offering the deposition;

(3) that the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment;
(4) that the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
(5) upon application and notice, that such exceptional circumstance exist
as to make it desirable, in the interest of justice and with due regard
to the importance of presenting the testimony of the witness orally in
open court, to allow the deposition to be used. (Rule 23, Section 4)

When is deposition pending action taken? (Rule 24, Sec.1)

1. With leave of court

a) after jurisdiction has been obtained over any defendant or over property
subject of the action;
b) deposition of a person confined in prison

2. Without leave of court

After an answer has been served.

General rule:
Plaintiff may not be permitted to take depositions before answer is served.

Reason: He must wait for the joinder of issues because only this time that it

can be determined what is relevant.

Exception: Under special circumstances where there is necessity and good

reason for presenting a strong case. Thus, there must be necessity and good
reason for the taking of the testimony immediately.

Example: Where the witness is aged or infirm.

▶ An answer ex abudanti cautela (out of abundant caution or to be on the

safe side) does not make their answer less of an answer and when such
answer is filed, deposition may be made without leave of court (Rosete v.
Lim G.R No.136051, June 8, 2006).

Scope of Examination
Applies also for depositions under Rule 24

Deponent may be examined regarding any matter which is:

1) Not privileged;
2) Relevant to the subject of the pending action;
3) Not restricted by court order for the protection of parties and
deponents;
4) Not meant to annoy, embarrass or oppress the deponent or party.

When may objections to admissibility be made?

Subject to the provisions of section 29 of this Rule, objection may be made

at the trial or hearing, to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the evidence if the
witness were then present and testifying. (Rule 23, Sec. 6)

Effect of errors and irregularities in depositions. —

(a) As to notice. — All errors and irregularities in the notice for taking a
deposition are waived unless written objection is promptly served
upon the party giving the notice.

(b) As to disqualification of officer. — Objection to taking a deposition

because of disqualification of the officer before whom it is to be
taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known
or could be discovered with reasonable diligence.

(c) As to competency or relevancy of evidence. — Objections to the

competency of witness or the competency, relevancy, or materiality of
testimony are not waived by failure to make them before or during the
taking of the deposition, unless the ground, of the objection is one
which might have been obviated or removed if presented at that time.

(d) As to oral examination and other particulars. — Errors and

irregularities occurring at the oral examination in the manner of

taking the deposition in the form of the questions or answers, in the

oath or affirmation, or in the conduct of the parties and errors of any
kind which might be obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable objection thereto is made at
the taking of the deposition.

(e) As to form of written interrogatories. — Objections to the form of

written interrogatories submitted under sections 25 and 26 of this
Rule are waived unless served in writing upon the party propounding
them within the time allowed for serving succeeding cross or other
interrogatories and within three (3) days after service of the last
interrogatories authorized.

(f) As to manner of preparation. — Errors and irregularities in the manner

in which the testimony is transcribed or the deposition is prepared,
signed, certified, sealed, indorsed, transmitted, filed, or otherwise
dealt with by the officer under sections 17, 19, 20 and 26 of this Rule
are waived unless a motion to suppress the deposition or some part
thereof is made with reasonable promptness after such defect is, or
with due diligence might have been, ascertained.

When may taking of deposition be terminated or its scope limited?

At any time during the taking of the deposition, on motion or petition of any
party or of the deponent, and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court in which the action is
pending or the Regional Trial Court of the place where the deposition is
being taken may order the officer conducting the examination to cease
forthwith from taking the deposition, or may limit the scope and manner of
the taking of the deposition, as provided in section 16 of this Rule. If the
order made terminates the examination, it shall be resumed thereafter only
upon the order of the court in which the action is pending. Upon demand of
the objecting party or deponent, the taking of the deposition shall be
suspended for the time necessary to make a notice for an order. In granting
or refusing such order, the court may impose upon either party or upon the
witness the requirement to pay such costs or expenses as the court may deem
reasonable. (Rule 23, Sec. 18)

RULE 25. Written interrogatories to adverse parties

Under the same conditions specified in section 1 of Rule 23, any party
desiring to elicit material and relevant facts from any adverse parties shall
file and serve upon the latter written interrogatories to be answered by the
party served or, if the party served is a public or private corporation or a
partnership or association, by any officer thereof competent to testify in its
behalf. (Rule 25, Sec. 1)

Consequences of refusal to answer

The examination may completed on other matters or adjourned as the

proponent of the question may prefer. The proponent may thereafter apply to
the proper court of the place where the deposition is being taken, for an
order to compel an answer. The same procedure may be availed of when a
party or a witness refuses to answer any interrogatory submitted under Rules
23 or 25.

If the application is granted, the court shall require the refusing party or
deponent to answer the question or interrogatory and if it also finds that the
refusal to answer was without substantial justification, it may require the
refusing party or deponent or the counsel advising the refusal, or both of
them, to pay the proponent the amount of the reasonable expenses incurred
in obtaining the order, including attorney's fees.

If the application is denied and the court finds that it was filed without
substantial justification, the court may require the proponent or the counsel
advising the filing of the application, or both of them, to pay to the refusing
party or deponent the amount of the reasonable expenses incurred in
opposing the application, including attorney's fees. Rule 29, Sec. 1)

If a party or an officer or managing agent of a party wilfully fails to appear

before the officer who is to take his deposition, after being served with a
proper notice, or fails to serve answers to interrogatories submitted under
Rule 25 after proper service of such interrogatories, the court on motion and
notice, may strike out all or any part of any pleading of that party, or dismiss
the action or proceeding or any part thereof, or enter a judgment by default
against that party, and in its discretion, order him to pay reasonable expenses
incurred by the other, including attorney's fees. (Rule 29, Sec. 5)

Effect of failure to serve written interrogatories

Unless thereafter allowed by the court for good cause shown and to prevent
a failure of justice, a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal. (Rule 25, Sec. 6)

RULE 26. ADMISSION

Request for admission

At any time after issues have been joined, a party may file and serve upon
any other party may file and serve upon any other party a written request for
the admission by the latter of the genuineness of any material and relevant
document described in and exhibited with the request or of the truth of any
material and relevant matter of fact set forth in the request. Copies of the
documents shall be delivered with the request unless copy have already been
furnished. (Rule 26, Sec. 1)

▶ A request for admission must be served directly upon the party requested.
Otherwise, that party cannot be deemed to have admitted the genuineness of
any relevant matters of fact set forth therein on account of failure to answer
the request for admission. (Riguera 2013, citing Lañada vs. CA, 1 February

2002).

Implied admission by adverse party

Each of the matters of which an admission is requested shall be deemed

admitted unless, within a period designated in the request, which shall not be
less than fifteen (15) days after service thereof, or within such further time as
the court may allow on motion, the party to whom the request is directed
files and serves upon the party requesting the admission a sworn statement
either denying specifically the matters of which an admission is requested or
setting forth in detail the reasons why he cannot truthfully either admit or
deny those matters. (Rule 26, Sec. 2(1))

Objections to any request for admission shall be submitted to the court by

the party requested within the period for and prior to the filing of his sworn
statement as contemplated in the preceding paragraph and his compliance
therewith shall be deferred until such objections are resolved, which
resolution shall be made as early as practicable. (Rule 26, Sec. 2(2))

Exceptions:

1. The requested party files and serves upon the party requesting the
admission a sworn statement either specifically denying or setting
forth in detail the reasons why he cannot truthfully either admit or
deny those matters., within a period designated in the request, which
shall not be less than 15 days after service thereof or within such
further time as the court may allow on motion.

2. When the request for admission is not directly served upon the party
requested, the party requested cannot be deemed to have admitted the
genuineness of any relevant matters of fact set forth therein on
account of failure to answer the request for admission. (Riguera
2013, citing Lañada vs. CA, 1 February 2002).

Consequences of failure to answer request for admission

If a party after being served with a request under Rule 26 to admit the
genuineness of any document or the truth of any matter of fact serves a
sworn denial thereof and if the party requesting the admissions thereafter
proves the genuineness of such document or the truth of any such matter of
fact, he may apply to the court for an order requiring the other party to pay
him the reasonable expenses incurred in making such proof, including
attorney's fees. Unless the court finds that there were good reasons for the
denial or that admissions sought were of no substantial importance, such
order shall be issued. (Rule 29, Sec. 4)

Effect of admission

Any admission made by a party pursuant to such request is for the purpose

of the pending action only and shall not constitute an admission by him for
any other purpose nor may the same be used against him in any other
proceeding. (Rule 26, Sec. 3)

Effect of failure to file and serve request for admission

Unless otherwise allowed by the court for good cause shown and to prevent
a failure of justice a party who fails to file and serve a request for admission
on the adverse party of material and relevant facts at issue which are, or
ought to be, within the personal knowledge of the latter, shall not be
permitted to present evidence on such facts. (Rule 26, Sec. 5)

RULE 27. Production or inspection of documents or things

Upon motion of any party showing good cause therefor, the court in which
an action is pending may (a) order any party to produce and permit the
inspection and copying or photographing, by or on behalf of the moving
party, of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which constitute or
contain evidence material to any matter involved in the action and which are
in his possession, custody or control, or (b) order any party to permit entry
upon designated land or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or photographing the property
or any designated relevant object or operation thereon. The order shall
specify the time, place and manner of making the inspection and taking
copies and photographs, and may prescribe such terms and conditions as are
just. (Rule 27, Sec. 1)

RULE 28. Physical and mental examination of persons

This mode of discovery is available in an action in which the mental or

physical condition
of a party is in controversy.
Examples:
1. Annulment of contract on the ground of insanity
2. Petition for guardianship of a person alleged to be insane
3. Action for damages where the issue is the extent of injuries of plaintiff
(Riano)

Requisites:

1. Physical or mental condition must be the subject of controversy.

2. Motion showing good cause must be filed.
3. Notice of motion must be given to the party to be examined and to all
other parties.

When examination may be ordered? (Rule 28, Sec.1)

In an action in which the mental or physical condition of a party is in

controversy, the court in which the action is pending may in its discretion,
order him to submit to a physical or mental examination by a physician.

Since the results of the examination are intended to be made public, the same
are not covered by the physician-patient privilege. Furthermore such
examination is not necessary to treat or cure the patient but to assess the
extent of injury or to evaluate his physical or mental condition (Rule 130,
Sec. 24[c]).

Requisites:

1. Physical or mental condition must be the subject of controversy.

2. Motion showing good cause must be filed.
3. Notice of motion must be given to the party to be examined and to all
other parties.

Report of Findings (Rule 28, Sec.3)

A copy of the detailed written report of the examining physician may be

delivered to the party examined, if the latter should request.

Order for Examination (Rule 28, Sec.2)

Requisites:
1. Physical or mental condition must be the subject of controversy.
2. Motion showing good cause must be filed.
3. Notice of motion must be given to the party to be examined and to all
other parties.

Report of Findings (Rule 28, Sec.3)

A copy of the detailed written report of the examining physician may be

delivered to the party examined, if the latter should request.

Waiver of Privilege (Rule 28, Sec.4)

A party examined waives any privilege he may have in that action or any
other involving the same controversy:
1) By requesting and obtaining a report of the examination so ordered; or
2) By taking the deposition of the examiner.

Consequences of Requesting and Obtaining a Report of Examination

Where the party examined requests and obtains a report on the results of the
examination, the consequences are that:

1) He has to furnish the other party a copy of the report of any previous
or subsequent examination of the same physical and mental
examination; and

2) He waives any privilege he may have in that action or any other

involving the same controversy regarding the testimony of any other
person who has so examined him or may thereafter examine him
(Regalado).

Prior Leave of Court, when required

Rules 27 and 28 always require prior leave of court, unlike other modes of
discovery which could be availed of without leave of court as long as the
defendant has filed or served a responsive pleading.

RULE 29. Consequences of refusal to comply with modes of discovery

Sanctions:

Refusal to answer any question (Rule 29, Sec. 1)

1. Examination may be completed on other matters, or adjourned, as the

proponent of the question may prefer;
2. Upon application by the proponent, the court may compel the deponent
to answer the questions;
3. If the refusal was without substantial justification, court may require the
refusing party or deponent or the counsel advising the refusal or both
of them, to pay the proponent the amount of the reasonable expenses
incurred in obtaining the order, including attorney's fees.

The remedies above are available under Rule 23 and Rule 25.

Refusal to answer designated or particular questions or refusal to

produce documents or things or to submit to physical examination (Rule
29, Sec.3)

1. Order that the matters regarding which questions were asked shall be
taken to be established for purposes of the action in accordance with
the claim of the party obtaining the order;
2. Refuse to allow the disobedient party to support or oppose designated
claims or defenses;
3. Strike out all or any part of the pleading of the disobedient party;
4. In lieu of the foregoing orders or in addition thereto, an order directing
the arrest of any party or agent of any party for disobeying any such
orders, except an order to submit to a physical or mental examination.

Refusal to be sworn (Rule 29, Sec. 2)

If a party or other witness refuses to be sworn or refuses to answer question

after being directed to do so by the court of the place in which deposition is
being taken, such refusal may considered a contempt of that court.

Refusal to admit (Rule 29, (Sec. 4)

The court upon proper application may order the former to pay the
reasonable expenses in making such proof, including attorney's fees.

If:
1. A party requests for the admission of either:
a. the genuineness of any document, or
b. the truth of any matter of fact
2. The party requested refuses to admit the same and thereafter serves a
sworn denial thereof, and;
3. Later, the party requesting for admission proves the genuineness or
truthfulness, as the case may be; then, the party requesting for the
admission may apply to the court for an order requiring the adverse
party to pay reasonable expenses incurred in making such proof,
including attorney's fees.

Failure to attend depositions or to serve answers to interrogatories (Rule

29, Sec. 5)

1.Strike out all or any part of the pleading of the disobedient party;
2. Render a judgment by default against the disobedient party;
3. Order him to pay reasonable expenses incurred, including attorney's fees.

Other sanctions:
1. Stay further proceedings until order is obeyed;
2. Dismiss the action or proceeding;
3. Arrest the disobedient party or his agent.

Note:
The Republic of the Philippines cannot be required to pay expenses and
attorney's fees under this Rule. The matter of how and when the above
sanctions should be applied is one that primarily rests on the sound
discretion of the court where the case is pending.

RULE 30. TRIAL

It is an examination before a competent court or tribunal of the facts or law

put in issue in a case for the purpose of determining such issue.

In a limited sense, trial refers to the stage of a case when the parties present
their evidence before the court up to the point when the case is deemed
submitted for decision. (Riguera 2013)

General rule: Decision should not be made without trial.

Exceptions: When is there judgment without trial

1. Judgment on the pleading (Rule 34);
2. Summary judgment (Rule 35);
3. Judgment on compromise;
4. Judgment by confession;
5. Dismissal with prejudice (Rule 17);
6. Judgment under Rule on Summary Procedure;
7. Stipulation of facts. (Sec. 6 Rule 30)

Notice of Trial (Rule 30, Sec.1)

The clerk shall notify the parties of the date of trial, upon entry of the case in
the trial calendar in such manner as shall ensure their receipt of that notice at
least 5 days before such date.

Adjournments and postponements (Rule 30, Section 2)

General rule: A court may adjourn a trial from day to day, and to any stated
time

Limitations: The court shall have no power to:

1. Adjourn a trial for more than 1 month for each adjournment; or
2. More than 3 months in all; except when authorized in writing by the
court administrator, the Supreme Court.

Exception: The court can go beyond the period provided by law when
authorized in writing by the Court Administrator of the Supreme Court.

Requisites of motion to postpone trial

a) For absence of evidence

A motion to postpone a trial on the ground of absence of evidence can be
granted only upon affidavit showing the materiality or relevancy of such
evidence, and that due diligence has been used to procure it. But if the
adverse party admits the facts to be given in evidence, even if he objects or
reserves the right to object to their admissibility, the trial shall not be
postponed. (Rule 30, Sec.3)

For illness of party or counsel

A motion to postpone a trial on the ground of illness of a party or counsel
may be granted if it appears upon affidavit or sworn certification that the
presence of such party or counsel at the trial is indispensable and that the
character of his illness is such as to render his non-attendance excusable.
(Rule 30, Sec.4)

Agreed statement of facts

The parties to any action may agree, in writing, upon the facts involved in
the litigation, and submit the case for judgment on the facts agreed upon,
without the introduction of evidence.

If the parties agree only on some of the facts in issue, the trial shall be held
as to the disputed facts in such order as the court shall prescribe. (Rule 30,
Sec.6)

Exceptions: Judgment based on stipulation of facts is not allowed in actions

for declaration of nullity of marriage, annulment of marriage and legal
separation. (Riguera 2013, citing Arts. 48 & 60, Family Code)

Order of trial; reversal of order

Subject to the provisions of section 2 of Rule 31, and unless the court for
special reasons otherwise directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:

(a) The plaintiff shall adduce evidence in support of his complaint;

(b) The defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaints;
(c) The third-party defendant if any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the
material facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has been
pleaded, shall adduce evidence in support of their defense, in the order
to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only,
unless the court, for good reasons and in the furtherance of justice,
permits them to adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their
respective memoranda or any further pleadings.

If several defendants or third-party defendants, and so forth, having separate

defenses appear by different counsel, the court shall determine the relative
order of presentation of their evidence. (Rule 30, Sec.5)

Trial in reverse – defendant presents evidence ahead of the plaintiff.

When proper
If the defendant instead of filing a motion to dismiss files an answer,
invoking the ground as an affirmative defense.

RULE 31. Consolidation or severance of hearing or trial

Consolidation.

When actions involving a common question of law or fact are pending

before the court, it may order a joint hearing or trial of any or all the matters
in issue in the actions; it may order all the actions consolidated, and it may
make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay. (Rule 31, Section 1)

Separate trials.

The court, in furtherance of convenience or to avoid prejudice, may order a

separate trial of any claim, cross-claim, counterclaim, or third-party
complaint, or of any separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues. (Rule 31, Section 2)

Delegation of reception of evidence

The judge of the court where the case is pending shall personally receive the
evidence to be adduced by the parties. However, in default or ex parte
hearings, and in any case where the parties agree in writing, the court may
delegate the reception of evidence to its clerk of court who is a member of
the bar. The clerk of court shall have no power to rule on objections to any
question or to the admission of exhibits, which objections shall be resolved
by the court upon submission of his report and the transcripts within ten (10)
days from termination of the hearing. (Rule 30, Section 9)

RULE 32. Trial by commissioners

Who is a commissioner?

Commissioner is the person to whom a cause pending in court is referred,

for him to take testimony, hear the parties and report thereon to the court,
and upon whose report, if confirmed, judgment is rendered.

Who are included under the term commissioner”

The word "commissioner" includes a referee, an auditor and an examiner.

(Rule 32, Section 1)

a) Reference by consent or ordered on motion

By written consent of both parties, the court may order any or all of the
issues in a case to be referred to a commissioner to be agreed upon by the
parties or to be appointed by the court. As used in these Rules, the word
"commissioner" includes a referee, an auditor and an examiner. (Rule 32,
Section 1)
b) Powers of the commissioner

Subject to other specifications and limitations stated in the order, the

commissioner has and shall exercise the power to regulate the proceedings in
every hearing before him and to do all acts and take all measures necessary
or proper for the efficient performance of his duties under the order. He may
issue subpoenas and subpoenas duces tecum, swear witnesses, and unless
otherwise provided in the order of reference, he may rule upon the
admissibility of evidence. The trial or hearing before him shall proceed in all
respects as it would if held before the court. (Rule 32, Section 3)

c) Commissioner's report; notice to parties and hearing on the report

Report of commissioner

Upon the completion of the trial or hearing or proceeding before the

commissioner, he shall file with the court his report in writing upon the
matters submitted to him by the order of reference. When his powers are not
specified or limited, he shall set forth his findings of fact and conclusions of
law in his report. He shall attach thereto all exhibits, affidavits, depositions,
papers and the transcript, if any, of the testimonial evidence presented before
him. (Rule 32,Section 9)

Notice to parties of the filing of report.

Upon the filing of the report, the parties shall be notified by the clerk, and
they shall be allowed ten (10) days within which to signify grounds of
objections to the findings of the report, if they so desire. Objections to the
report based upon grounds which were available to the parties during the
proceedings before the commissioner, other than objections to the findings
and conclusions therein, set forth, shall not be considered by the court unless
they were made before the commissioner. (Rule 32, Section 10)

Hearing upon report.

Upon the expiration of the period of ten (10) days referred to in the
preceding section, the report shall be set for hearing, after which the court
shall issue an order adopting, modifying, or rejecting the report in whole or
in part, or recommitting it with instructions, or requiring the parties to
present further evidence before the commissioner or the court. (Rule 32,
Section 11)

RULE 33. Demurrer to evidence

Definition – Demurrer to Evidence is an objection by one of the parties in an

action, to the effect that the evidence which his adversary produced is
insufficient in point of law, whether true or not, to make out a case or sustain
the issue. (Republic v. Spouses Gimenez, G.R. No. 174673, January 11,
2016)

▶ The court, in passing upon the sufficiency of the evidence raised in a

demurrer, is merely required to ascertain whether there is competent or
sufficient evidence to sustain the indictment or to support a verdict of guilt.
Sufficient evidence for purposes of frustrating a demurrer thereto is such
evidence in character, weight or amount as will legally justify the judicial or
official action demanded according to the circumstances. To be considered
sufficient therefore, the evidence must prove: (a) the commission of the
crime, and (b) the precise degree of participation therein by the accused.
Thus, when the accused files a demurrer, the court must evaluate whether the
prosecution evidence is sufficient enough to warrant the conviction of the
accused beyond reasonable doubt." (Macapagal-Arroyo v. People, G.R. Nos.
220598 & 220953, July 19, 2016)

▶ A demurrer to evidence may be issued when, upon the facts and the law,
the plaintiff has shown no right to relief. Where the plaintiff's evidence
together with such inferences and conclusions as may reasonably be drawn
therefrom does not warrant recovery against the defendant, a demurrer to
evidence should be sustained. A demurrer to evidence is likewise sustainable
when, admitting every proven fact favorable to the plaintiff and indulging in
his favor all conclusions fairly and reasonably inferable therefrom, the
plaintiff has failed to make out one or more of the material elements of his
case, or when there is no evidence to support an allegation necessary to his
claim. It should be sustained where the plaintiff's evidence is prima facie

insufficient for a recovery. (Republic v. Spouses Gimenez, G.R. No. 174673,

January 11, 2016)
Effect of denial

1. Defendant shall have the right to present evidence. (Rule 33, Section 1)
2. The date for reception of defendant's evidence should be set.
3.The order is interlocutory and therefore not appealable but can be subject
of petition for certiorari in case of grave abuse of discretion or
oppressive exercise of judicial authority.

Effect of grant

1) The case shall be dismissed. (Rule 33, Section 1)

2) The appellate court should render judgment on the basis of the evidence
submitted by the plaintiff.
3) If, on appeal, the order of dismissal is reversed, the movant shall be
deemed to have waived his right to present evidence. In practical
terms, this means that the plaintiff already wins the case since the
appellate court should forthwith render judgment for the plaintiff on
the basis of his evidence alone. (Riguera 2013)

If the motion is granted but on appeal the order of dismissal is reversed he

shall be deemed to have waived the right to present evidence. (Rule 33,
Section 1)

DEMURRER TO EVIDENCE IN CIVIL CASES AS

DISTINGUISHED FROM THAT OF CRIMINAL CASES

CIVIL CASE CRIMINAL CASES

Leave of court is not required before It may be filed with or without leave
filing a demurrer. of court (Sec. 23, Rule 119).
If the demurrer is granted, the order
of dismissal is appealable (Sec. 1,
Rule 33)
The order of dismissal is not
But if on appeal, the appellate court appealable because of the
reverses the order of dismissal, the constitutional policy against double
defendant loses his right to present jeopardy.
evidence (Radiowealth vs. Spouses
Del Rosario, G.R. No. 138739, July
6, 2000).
Court denies the demurrer:
a. if demurrer was with leave,
accused may adduce evidence in his
defense.
If the demurrer is denied, the
defendant may proceed to present his b. if the demurrer was without
evidence. leave, the accused waives the right
to present evidence and submits the
case for judgment on the basis of
the evidence for the prosecution.
(Macapagal-Arroyo v. People, G.R.

Nos. 220598 & 220953, July 19,

2016)
RULE 36. Judgments and final orders

What is a judgment?

It is the final consideration and determination by a court of the rights of the

parties, upon matters submitted to it in an action or proceeding.

Requisites of a Valid Judgment:

a) The court or tribunal must be clothed with authority to hear and

determine the matter before it (Riano 2011 citing Acosta vs.
COMELEC, 293 SRA 578, 580) The term "clothed with authority"
includes jurisdiction over the subject matter of the case and over the
person of the defendant, or over the res, in an action in personam or
quasi in rem. (Riguera 2013)

b) Parties must have been given an opportunity to adduce evidence in

their behalf (Riano 2011 citing Acosta vs. COMELEC, 293 SRA 578,
580). Indispensible parties should have been impleaded. (Riguera
2013)

c) It should be in writing. A verbal judgment is, in contemplation of

law, not in esse, therefore, ineffective (Riano 2011, citing Corpus vs.
Sandiganbayan, 442 SCRA 294, 309);

d) It should contain a dispositive part (Riano 2011, citing Cu-Unjieng

vs. Mabalacat Sugar Co., 70 Phil. 384) and should be signed by the
judge and filed with the clerk of court.

What is Findings of fact?

These are statement of facts and not conclusions of law. Statement of facts in
judgment must contain not only the ultimate facts. The supporting
evidentiary facts must as well be established. This rule, however, does not
require that the court shall state in its decision all the facts found in the
records. (Riano 2011, citing People vs. Derpo, 168 SCRA 447, 455).

Contents of a judgment

I) The opinion of the court – Contains the findings of facts and conclusions
of law;
II) The disposition of the case – The final and actual disposition of the
rights litigated (the dispositive part); and
III) Signature of the judge (Herrera, p. 145)
Judgment without trial

Default judgment –

A binding judgment in favor of either party based on some failure to take

action by the other party. Most often, it is a judgment in favor of a plaintiff

when the defendant has not responded to a summons or has failed to appear
before a court of law.

It is a judgment granting the claimant such relief as his pleading may

warrant after the defending party fails to answer within the time allowed
therefore, upon motion of the claiming party, with notice to the defending
party, and proof of such failure to answer. (Sec. 3 Rule 9)

▶ Judgments which are merely voidable cannot be collaterally attacked, and

until set aside in a proper proceeding for the purpose, possess all the
attributes of valid judgments. The reason for the rule prohibiting the making
of a collateral attack on a judgment of a court having jurisdiction is that
public policy forbids an indirect collateral contradiction or impeachment of
such a judgment. It is not a mere technicality. Instead, it is a rule of
fundamental and substantial justice which should be followed by all courts.
(Ching v. San Pedro College of Business Administration, G.R. No. 213197,
October 21, 2015)

ENTRY OF JUDGMENT AND FINAL ORDER

When made?
If no appeal or motion for new trial or reconsideration is filed within the
time provided in these Rules, the judgment or final order shall forthwith be
entered by the clerk in the book of entries of judgments. The date of finality
of the judgment or final order shall be deemed to be the date of its entry. The
record shall contain the dispositive part of the judgment or final order and
shall be signed by the clerk, within a certificate that such judgment or final
order has become final and executory. (Rule 36, Section 2)

Importance of Date of Entry

It is the starting point of the 6-month period for filing a petition for relief
(Sec. 3 Rule 38), the 5-year period for filing a motion for execution (Sec. 6
Rule 39), and the 10-year period for filing an action for revival of judgment
(Art. 1144 Civil Code). (Riguera 2013)

KINDS OF JUDGMENT:

Sin Perjuico Judgment

It is a judgment without statement of the facts in support of its conclusions.

Such a judgment is void for it violates Sec. 15, Article VIII of the
Constitution. Thus, the party adversely affected would be unable to file a
motion for reconsideration or appeal the judgment for he has to speculate on
the grounds upon which the judge based his decision. (Riguera 2013)

Nunc Pro Tunc Judgment or Order

One rendered to record some judicial act done at a former time but which

was not carried into the record. Since the only function of a nunc pro tunc
judgment or order is to place into the record a judicial action actually taken,
it cannot correct judicial errors, however flagrant and glaring these may be.
(Riguera 2013, citing Henderson vs. Tan, 87 Phil. 466), nor can it construe
what a judgment means. (Ibid., citing Lichauco vs. Tan Po, 51 Phil. 862).

Several Judgments (Rule 36, Sec.4)

A judgment rendered by a court against one or more defendants, but not

against all, leaving the action to proceed against the others (Riano 2011,
citing Sec.4 Rule 36)

Separate Judgments (Rule 36, Sec.5)

This kind of judgment presupposes that there are several claims for relief
presented in a single action. The court may render separate judgment on one
of the several claims. The judgment will terminate the action with respect to
that claim and the action shall proceed as to the remaining claims. The court
may stay the execution of the separate judgment until the rendition of a
judgment on all the other claims. (Riano 2011, citing Sec. 5 Rule 36)

Memorandum decision

It is a decision of appellate court which adopts the true findings of fact and
conclusion of fact and conclusion of the trial court if it is affirming the
latter's decision.

Appeal on Separate or Several Judgments

Appeal on either is not allowed unless the court allows the appeal. (Sec. 1(g)
Rule 41).

Where an appeal is allowed, the same shall be taken by filing a notice of

appeal and a record on appeal within 30 days from notice of the order
allowing the appeal. (Sec. 3 Rule 41).

Judgment against Entity without Juridical Personality (Rule 36, Sec. 6)

The judgment shall set out their individual or proper names if known.

Doctrine of Immutability of Judgments

The doctrine of immutability of judgment maintains that once a judgment

has attained finality, the same can no longer be changed or modified in any
respect, either by the court that rendered it or by any other court. (Gomeo
Metal Corp. v. Court of Appeals, G.R. No. 202531, August 17, 2016)

▶ Under the doctrine of finality of judgment or immutability of judgment, a

decision that has acquired finality becomes immutable and unalterable, and
may no longer be modified in any respect, even if the modification is meant
to correct erroneous conclusions of fact and law, and whether it be made by
the court that rendered it or by the Highest Court of the land. Any act which
violates this principle must immediately be struck down.”

▶ But like any other rule, it has exceptions, namely: (1) the correction of
clerical errors; (2) the so-called nunc pro tunc entries which cause no
prejudice to any party; (3) void judgments; and (4) whenever circumstances
transpire after the finality of the decision rendering its execution unjust and
inequitable. (Gomeo Metal Corp. v. Court of Appeals, G.R. No. 202531,
August 17, 2016 citing FGU Insurance v. Regional Trial Court, 659 Phil.
117, 123 (2011))

Effects of finality of judgment:

1. The prevailing party is entitled to have the judgment executed as a
matter of right and the issuance of the corresponding writ of execution
becomes a ministerial duty of the court.
2. The court rendering the judgment loses jurisdiction over the case so that
it can no longer correct the judgment in substance, except clerical
errors and omissions due to inadvertence or negligence.
3. Res judicata supervenes.

When a judgment or final order becomes final and executory?

A judgment becomes final and executory upon the expiration of the period to
appeal therefrom and no appeal has been perfected (Sec. 1 Rule 39)

The judgment attains finality by the lapse of the period for taking an appeal
without such appeal or motion for reconsideration being filed.

Doctrine of the law of the case

Law of the case has been defined as the opinion delivered on a former
appeal, and means, more specifically, that whatever is once irrevocably
established as the controlling legal rule of decision between the same parties
in the same case continues to be the law of the case, whether correct on
general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court.

▶ The doctrine of law of the case simply means, therefore, that when an
appellate court has once declared the law in a case, its declaration continues
to be the law of that case even on a subsequent appeal, notwithstanding that
the rule thus laid down may have been reversed in other cases. For practical
considerations, indeed, once the appellate court has issued a pronouncement
on a point that was presented to it with full opportunity to be heard having
been accorded to the parties, the pronouncement should be regarded as the
law of the case and should not be reopened on remand of the case to
determine other issues of the case, like damages. But the law of the case, as
the name implies, concerns only legal questions or issues thereby
adjudicated in the former appeal. (Development Bank of the Philippines

(DBP) v. Guariña Agricultural and Realty Development Corporation, G.R.

No. 160758. January 15, 2014.)
FINAL JUDGMENT

A final judgment or order is one that finally disposes of a case, leaving

nothing more to be done by the Court in respect thereto, e.g., an adjudication
on the merits which, on the basis of the evidence presented at the trial,
declares categorically what the rights and obligations of the parties are and
which party is in the right; or a judgment or order that dismisses an action on
the ground, for instance, of res judicata or prescription. Once rendered, the
task of the Court is ended, as far as deciding the controversy or determining
the rights and liabilities of the litigants is concerned. Nothing more remains
to be done by the Court except to await the parties' next move . . . and
ultimately, of course, to cause the execution of the judgment once it becomes
"final" or, to use the established and more distinctive term, "final and
executory."

INTERLOCUTORY

Conversely, an order that does not finally dispose of the case, and does not
end the Court's task of adjudicating the parties' contentions and determining
their rights and liabilities as regards each other, but obviously indicates that
other things remain to be done by the Court, is "interlocutory," e.g., an order
denying a motion to dismiss under Rule 16 of the Rules . . . Unlike a "final"
judgment or order, which is appealable, as above pointed out, an
"interlocutory" order may not be questioned on appeal except only as part of
an appeal that may eventually be taken from the final judgment rendered in
the case. (Heirs of Dimaampao v. Alug, G.R. No. 198223, February 18,
2015)

Post-judgment remedies
Remedies against judgment or final orders:

Before finality
1) Motion for new trial or reconsideration (Rule 37)
2) Appeal
3) Reopening of the case

After finality
1) Relief from judgment (Rule 38)
2) Annulment of judgment (Rule 47)
3) Special Civil Action for Certiorari (Rule 65)
4) Collateral attack

RULE 35. Summary judgment

A determination made by a court without a full trial. Such judgment may be

issued as to the merits of an entire case, or of specific issues in that case.

A judgment rendered by a court without a full-blown trial, if the court finds

that, except as to the amount of damages, there is no genuine issue as to any

material fact and the plaintiff or defendant is entitled to a judgment as a

matter of law. (Riguera 2013)
When available?

▶ For a full-blown trial to be dispensed with, the party who moves for
summary judgment has the burden of demonstrating clearly the absence of
genuine issues of fact, or that the issue posed is patently insubstantial as to
constitute a genuine issue.

▶ Genuine issue means an issue of fact which calls for the presentation of
evidence as distinguished from an issue which is fictitious or contrived.
(Republic v. Pilipinas Shell Petroleum Corp., G.R. No. 209324, December 9,
2015)

Burden of proof

▶ The party who moves for summary judgment has the burden of
demonstrating clearly the absence of any genuine issue of fact, or that the
issue posed in the complaint is patently unsubstantial so as not to constitute a
genuine issue for trial. Trial courts have limited authority to render summary
judgments and may do so only when there is clearly no genuine issue as to
any material fact. When the facts as pleaded by the parties are disputed or
contested, proceedings for summary judgment cannot take the place of trial.
(Yap v. Siao, G.R. Nos. 212493 & 212504, June 1, 2016)

Requisites of a valid summary judgment:

1. Upon filing of a motion

2. After issues have been joined
3. The court finds that there is no genuine issue as to any material fact
based on the pleadings, supporting affidavits, depositions and
admissions on file EXCEPT as to the amount of damages.
4. The moving party is entitled to a judgment as a matter of law.

When NOT Proper?

In actions for:
a. Declaration of nullity of marriage
b. Annulment of marriage
c. Legal separation
Exhibits to Support the Motion for Summary Judgment

a) For the claimant

A party seeking to recover upon a claim, counterclaim, or cross-claim or to

obtain a declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon all or any part thereof.
(Rule 35, Section 1)

b) For the defendant

A party against whom a claim, counterclaim, or cross-claim is asserted or a

declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor as
to all or any part thereof. (Rule 35, Section 2)

i) When the case not fully adjudicated

If on motion under this Rule, judgment is not rendered upon the whole case
or for all the reliefs sought and a trial is necessary, the court at the hearing of
the motion, by examining the pleadings and the evidence before it and by
interrogating counsel shall ascertain what material facts exist without
substantial controversy and what are actually and in good faith controverted.
It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further
proceedings in the action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the controverted facts
accordingly. (Rule 35, Section 4)

Partial Summary Judgment

A judgment not on the entire case but only on the specified factual issues,
with the court proceeding to try the other factual issues Note: Propriety of
Summary Judgment may be corrected only on appeal or other direct review,
not by certiorari.

May a partial summary judgment be appealed separately from the

judgment in the entire case?

▶ No. A partial summary judgment as a rule is not appealable separately

from the judgment in the entire case, unless allowed by the court under
Sec.1(f) Rule 41. Hence, the failure to appeal separately from a partial
summary judgment or to challenge it by a special civil action for certiorari
does not make the same final and executory. (Riguera 2013, citing
Philippine Business Bank vs. Chua, 15 November 2010).

Partial summary judgment not to be considered a final judgment

Rule 35 on summary judgments, admits of a situation in which a case is not

fully adjudicated on motion, and judgment is not rendered upon all of the
reliefs sought. In Philippine Business Bank v. Chua, we had occasion to rule
that a careful reading of its Section 4 reveals that a partial summary
judgment was never intended to be considered a "final judgment," as it does
not "[put] an end to an action at law by declaring that the plaintiff either has
or has not entitled himself to recover the remedy he sues for." (Riguera
2013, citing Philippine Business Bank vs. Chua, 15 November 2010).

Separate judgment allowed on entirely different subject matter after

rendition of partial summary judgment

Section 4 of Rule 35 pertains to a situation in which separate judgments

were necessary because some facts existed without controversy, while others
were controverted. However, there is nothing in this provision or in the
Rules that prohibits a subsequent separate judgment after a partial summary
judgment on an entirely different subject matter had earlier been rendered.
There is no legal basis for petitioner's contention that a judgment over the
Swiss accounts bars a motion for summary judgment over the Arelma
account. (Imelda Romualdez- Marcos, Vs. Republic Of The Philippines, G.R.
No. 189505)

d) Affidavits and attachments

Supporting and opposing affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein. Certified true copies of all papers or parts thereof referred to in the
affidavit shall be attached thereto or served therewith. (Rule 35, Section 5)

Should it appear to its satisfaction at any time that any of the affidavits
presented pursuant to this Rule are presented in bad faith, or solely for the
purpose of delay, the court shall forthwith order the offending party or
counsel to pay to the other party the amount of the reasonable expenses
which the filing of the affidavits caused him to incur including attorney's
fees, it may, after hearing further adjudge the offending party or counsel
guilty of contempt. (Rule 35, Section 6)

RULE 34. Judgment on the pleadings

A judgment on the pleadings is a judgment on the facts as pleaded, and is

based exclusively upon the allegations appearing in the pleadings of the
parties and the accompanying annexes.

It is settled that the trial court has the discretion to grant a motion for
judgment on the pleadings filed by a party if there is no controverted matter
in the case after the answer is filed.

▶ A genuine issue of fact is that which requires the presentation of

evidence, as distinguished from a sham, fictitious, contrived or false issue.
(Comglasco Corp. v. Santos Car Check Center Corp., G. R. No. 202989,
March 25, 2015)

Grounds:

1) When answer fails to tender an issue because of:

2) a) general denial of material allegations of the compliant;
3) b) insufficient denial of the material allegations of the complaint; or
4) When answer admits the material allegation of the adverse party's
pleading, the court, may, on motion of that party, direct judgment on
such pleading (Sec. 1, Rule 34)
5) Under the Rules on Summary Procedure, should the defendant fails to
answer the complaint within 10 days from service of summons (Sec. 6

RSP);
6) Where the defendant is declared in default, the court shall proceed to
render judgment granting the claimant such relief as his pleading may
warrant, unless the court in its discretion requires the claimant to
submit evidence (Sec. 3 Rule 9)
7) During pre-trial, the court may render a judgment on the pleadings if it
finds a valid ground therefor. (sec. 2(g) Rule 18).
8) As a penalty for non-compliance or refusal to answer in discovery
proceedings, the court may render judgment by default against the
recalcitrant or disobedient party. (Secs. 3 & 5, Rule 29)(Riguera 2013)

When NOT Proper

1. When the answer raises an issue.

2. In actions for annulment of marriage or for legal separation, or
declaration of nullity of marriage.
3. Issue is the amount of unliquidated damages (Sec. 11 Rule 8).
4. Only questions of law are being alleged.

Judgment on the Pleadings may be Rendered Only Upon Motion

A court may direct judgment on the pleadings only if there is a motion to

that effect. (Sec.1 Rule 34) However, trial court may render a judgment on
the pleadings if, after the pre-trial, the facts warrant such a judgment
(Regalado, Tenth Edition, citing Taleon vs. Sec. of Public Works &
Communication, L-24281, May 19, 1967)

Judgment on the pleadings distinguished from summary judgments

JUDGMENT OF THE
SUMMARY JUDGMENT
PLEADINGS
Based not only on the pleadings but
Based solely on the pleadings,
also on depositions, admissions and
without introduction of evidence
affidavits
Generally available only to the
plaintiff, unless the defendant
Available to both parties.
presents a
counterclaim.
The answer fails to tender an issue
There may be issues involved in the
or there is an admission of material
case but these issues are irrelevant
allegations
No genuine issue of fact to be tried
No issue of fact at all.
except as to the amount of damages.
10-day notice of hearing required 3-day notice of hearing required

RULE 37. Motion for new trial or reconsideration

Grounds for New Trial:

Within the period for taking an appeal, the aggrieved party may move the
trial court to set aside the judgment or final order and grant a new trial for
one or more of the following causes materially affecting the substantial
rights of said party:

(a) Fraud, accident, mistake or excusable negligence which ordinary

prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or

(b) Newly discovered evidence, which he could not, with reasonable

diligence, have discovered and produced at the trial, and which if presented
would probably alter the result.

Grounds for Motion for Reconsideration:

Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded are excessive,
that the evidence is insufficient to justify the decision or final order, or that
the decision or final order is contrary to law. (Rule 37, Section 1)

What is the kind of fraud referred under Rule 37?

Fraud in Sec. 1(a) Rule 37 refers to extrinsic fraud, that is, deception or
trickery by which the aggrieved party was prevented from having trial or
presenting his case before the court. (Riguera 2013)

What is intrinsic fraud?

Intrinsic Fraud refers to acts of a party during the trial which does not
affect the presentation of the case (ex. presentation of a forged promissory
note). It is not a ground for new trial.

Denial of the motion; effect

A motion for new trial shall include all grounds then available and those not
so included shall be deemed waived. A second motion for new trial, based
on a ground not existing nor available when the first motion was made, may
be filed within the time herein provided excluding the time during which the
first motion had been pending.

What is extrinsic fraud?

Extrinsic Fraud connotes any fraudulent scheme executed by the prevailing

party outside of the trial against the losing party who because of such fraud

is prevented from presenting his side of the case (ex. prevent witness from
testifying). Fraud, as a ground for new trial, must be extrinsic or collateral,
that is, it is the kind of fraud which prevented the aggrieved party from
having a trial or presenting his case to the court, or was used to procure the
judgment without fair submission of the controversy (Regalado).

When to file?

Motion for new trial or reconsideration must be filed within 15 days from
notice of judgment and resolved by the court within 30 days from
submission for resolution.

Second motion for reconsideration not allowed

No party shall be allowed a second motion for reconsideration of a judgment

or final order. (Rule 37, Section 5)

Grant of the motion; effect

If a new trial is granted in accordance with the provisions of this Rules the
original judgment or final order shall be vacated, and the action shall stand
for trial de novo; but the recorded evidence taken upon the former trial,
insofar as the same is material and competent to establish the issues, shall be
used at the new trial without retaking the same. (Rule 37, Section 6)

Remedy when motion is denied, fresh 15-day period rule

An order denying a motion for new trial or reconsideration is not appealed,

the remedy being an appeal from the judgment or final order. (Rule 37,
Section 9)

▶ “To standardize the appeal periods provided in the Rules and to afford
litigants fair opportunity to appeal their cases, the Court deems it practical to
allow a fresh period of 15 days within which to file the notice of appeal in
the Regional Trial Court, counted from receipt of the order dismissing a
motion for a new trial or motion for reconsideration.

▶ Henceforth, this "fresh period rule" shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule
42 on petitions for review from the Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of
Appeals; and Rule 45 governing appeals by certiorari to the Supreme Court.
The new rule aims to regiment or make the appeal period uniform, to be
counted from receipt of the order denying the motion for new trial, motion
for reconsideration (whether full or partial) or any final order or resolution.
(NATIONAL Power Corporation V. The Provincial Treasurer Of Benguet,
G.R. No. 209303. November 14, 2016 citing Neypes v. CA, (GR 141524,
September 14, 2005 )

RULE 38. Relief from judgments, orders and other proceedings

Relief from Judgments

A petition for relief is an equitable remedy and is allowed only in

exceptional cases from final judgments or orders where no other remedy is
available (Regalado, 10th Ed., citing Palmores vs. Jimenez, 90 Phil. 773). It will not be
entertained if the proper remedy is appeal or certiorari (Ibid., citing Fajardo vs.
Bayona, 98 Phil. 659).

Kinds of Relief from Judgments, Orders and other Proceedings

1. Relief from judgment, order or other proceedings (Rule 38, Sec.1)

1. Relief from denial of appeal (Rule 38, Sec.2)
2.

Grounds for availing of the remedy

Judgment or final order entered against a party through: (FAME)

1. Fraud (extrinsic fraud),

2. Accident,
3. Mistake, or
4. Excusable negligence

and no other remedy is available.

Similar to a Motion for New Trial

Petition for Relief under Sec. 1 is similar to a motion for new trial on the
ground of FAME, the difference being that the motion for new trial under
Rule 37 is filed before the judgment becomes final, while a petition for relief
in this section presupposes a final judgment or order (Riguera)

Time to file petition

A petition provided for in either of the preceding sections of this Rule must
be verified, filed within sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be set aside, and not more than
six (6) months after such judgment or final order was entered, or such
proceeding was taken (Rule 38, Sec.3)

RULE 39. EXECUTION, SATISFACTION AND EFFECT OF

JUDGMENTS

▶ Execution contemplates the usual situation where a judgment is

susceptible of enforcement the moment it acquires the character of finality

and a judgment becomes final and executory by operation of law, not by

judicial declaration.

▶ Execution is fittingly called the fruit and end of law, and aptly called the
life of law.

▶ Execution is the process of the court for carrying its decree into effect. In
an action to recover possession of lands, as in this case, if the judgment is for
the Plaintiff, the writ of execution will be an order to deliver the possession
to the Plaintiff. (Heirs of Guiambangan v. Municipality of Kalamansig,
Sultan Kudarat, G.R. 204899, July 27, 2016)

The appellate court may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution.

When can a judgment be executed?

Once a judgment is issued by the court in a case, and that judgment becomes
final and executory, the principle of immutability of judgments
automatically operates to bar any modification of the judgment. The
modification of a judgment requires the exercise of the court's discretion. At
that stage — when the judgment has become final and executory — the
court is barred from exercising discretion on the case; the bar exists even if
the modification is only meant to correct an erroneous conclusion of fact or
law as these are discretionary acts that rest outside of the court's purely
ministerial jurisdiction. (Spouses Tabalno v. Dingal, Sr., G.R. No. 191526,
October 5, 2015)

Under Supreme Court Circular No. 24-94, a Motion for the Issuance of a
Writ of Execution must contain a notice to the adverse party –

Execution shall issue as a matter of right, on motion, upon a judgment or

order that disposes of the action or proceeding upon the expiration of the
period to appeal therefrom if no appeal has been duly perfected.

If the appeal has been duly perfected and finally resolved, such execution
may forthwith be applied for in the lower court from which the action
originated, on motion of the judgment obligee, submitting therewith certified
true copies of the judgment or judgments or the final order or orders sought
to be enforced and of the entry thereof, with notice to the adverse party.

The appellate court may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution.
(Pallada vs Rtc Of Kalibo, G.R. No. 129442. March 10, 1999)

General Rule

Where the judgment or order has become executory, the court cannot refuse
to issue a writ of execution.

Exceptions

a) When the subsequent facts and circumstances transpire which render

such execution unjust or impossible;

b) On equitable grounds, as when there has been a change in the situation

of the parties which makes the execution inequitable (Albar v. Carandang, L-
18003, 29 Sept. 1962);

c) Where the judgment has been novated by the parties (Dormitorio v. Fernandez,
et al., L-25889, 21 Aug. 1976);

d) When a petition for relief or an action to enjoin the judgment is filed and
a preliminary injunction is prayed for and granted (see Sec. 5, Rule
38);

e) When the judgment has become dormant, the 5-year period under Sec. 6
of this Rule having expired without the judgment having been revived
(Cunanan v. CA, et al., L- 25511, 28 Sept. 1968); or

f) Where the judgment turns out to be incomplete (Del Rosario v. Villegas,

49 Phil. 634) or is conditional since, as a matter of law, such judgment
cannot become final. (Cu Unjieng, etc. v. Mabalacat Sugar Co., 70 Phil. 380) (Regalado).

EXECUTION PENDING APPEAL

▶ It bears emphasis that an execution pending appeal is deemed an

exception to the general rule, which allows an execution as a matter of right
only in any of the following instances: (a) when the judgment has become
final and executory; (b) when the judgment debtor has renounced or waived
his right of appeal; (c) when the period for appeal has lapsed without an
appeal having been filed; or (d) when, having been filed, the appeal has been
resolved and the records of the case have been returned to the court of
origin. (Abenion v. Pilipinas Shell Petroleum Corp., G.R. Nos. 200749 &
208725, February 6, 2017)

▶ It is fundamental that every litigation must come to an end. While a

litigant's right to initiate an action in court is fully respected, once his case
has been adjudicated by a competent court in a valid final judgment, he
should not be permitted to initiate similar suits hoping to secure a favorable
ruling, for this will result to endless litigations detrimental to the
administration of justice. After all, the winning party also has the correlative
right to enjoy the finality of the resolution of his case by the execution and
satisfaction of the judgment, which is the "life of the law," as Acil in this
case. (Vicente v. Acil Corp., G.R. No. 196461, July 15, 2015)