Académique Documents
Professionnel Documents
Culture Documents
Right-duty correlative
(corpo? Questions) *the right-duty correlative gives rise to a COA Can a fully foreign-owned corporation produce cars in RP? NO. Art12.2 e.g. if one has a right under a prestation provided by a contract, then it gets Can a corporation fully owned by foreigners BUT REGISTERED IN RP produce cars in RP? YES BREACHED (i.e. the duty was not performed), then the party whose right is breached What about MRT (owned by foreigner, leased to RP)? *Pede to under transpo ehI forgot na why has COA *a breach of duty can bring about several COA *What is a SECONDARY RIGHT? It is a right-duty correlative w/c exist whenever theres a breach of primary rights e.g. right to damages, reliefs -they are not all procedural (e.g. damages are not provided under ROC)
2 types of remedy
1. ACTION: WON there is a breach of a right-duty correlative a. Criminal actions b. Civil Actions i. Ordinary ii. Special civil actions: modify some procedures of ordinary civil action PROCEEDING: WON status/fact exist all rights and obligations appertaining to status would be legally binding e.g. acknowledgment of legitimacy of child naturalization adoption guardianship
*katarungang pambarangay applies only to NATURAL PERSONS, does not apply to government subdivisions and institutions so di applicable in this case ? isnt ADR law meant to make ADR MANDATORY? NO. it gives parties autonomy. ? what if Ford, before entering lease agreement, wants to have an arbitration agreement? Make an arbitration agreement CONTENTS: *Court w/c would have jurisdiction *# of arbitrators *(? )governing law: can one party insist that 1 law be followed? ?If can stipulate on what governing law should be, could a foreigner lawyer appear before RP arbiters and practice NY Law here>
1.
OVERVIEW of CIVPRO
? T or F:
it is now possible that all disputes may be subject to ADR? FALSE. There are disputes that cannot be subject to ADR: Under ADR law, the ff are not subject to ADR: L3 S2 MJC Labor disputes under Labor Code Civil Status of persons Validity of marriage Any ground for Legal Separation Jurisdiction of courts Future Legitime Criminal liability Accdg to Law, cannot be compromised
1|Cha
Mendoza_Civil
Procedure_Ordinary
Civil
Actions
Arbitration: voluntary dispute resolution process wherein, in accordance Sec108, LGC: subj matter of Amicable settlement w/ agreement of parties, the dispute is resolved by rendering an AWARD GR: all disputes 2. Mediation: voluntary process in which a mediator, selected by the parties ACTUALLY RESIDING in same CITY/MUNICIPALITY disputing parties, facilitates communicationand assist the parties in reaching a voluntary agreement re: dispute X: 3. Conciliation 1 party = govt/subd 4. Early neutral evaluation: parties and lawyers are brought together early 1 party = public officer/ee + dispute related to performance of official functions in pretrial phase to present summaries of their cases and receive a Offense punishale by nonbinding assessment by an experienced neutral person w/ expertise in IMPRISONMENT > 1YR the subject matter of dispute FINE > P5K *status of agreement to submit to ENE: contractual and consensual Offenses w/o private offended party (sino magpupunta brgy???) ?is it mandatory? NO Real property in different cities What if parties agree to a ENE b4 adjudication? Valid, forms part of contract X: parties agree Can it be different from initial contract? Yes Parties actually reside in brgys of DIFF CITIES/MUNICIPALITIES Who chooses the evaluator? Law is silent X: brgy units adjoin each other + parties agree *Sir wants to apply the rules on arbitration on the other forms of ADR 5. Mini trial: the merits of the case are argued before a panel comprising of Disputes determined by the President In interest of justice OR SENIOR DECISION MAKERS, parties seek negotiated settlement upon recommendation by SOJ 6. MED-ARB: involves both mediation and arbitration *Settlement vs. arbitration award -Settlement from negotiation, mediation; arbitration award from arbitration ?mediation: should it be neutral? The law does not provide for procedure only for arbitration ?What is the default? -lawyers may be present in Katarungang Pambarangay Proceedings but cannot speak for the parties If no arbitration clause: may still undergo ADR (pretrial stage conducts ADR) they may give advice to the parties it is not prohibited by LGC If theres arbitration clause: arbitrate What happens if you put Arbitration proceedings? Go to KB? No, contract governs! -this would include agreement as to the law applicable, court that would have Pangkat still conciliation proceedings jurisdiction, the arbitrators The assumption is that when the chair cant do it, 3 persons may be able to do it! What if no agreement as to who is going to be the ARBITRATOR? (Fallacy daw sabi ni sir!) Default: parties agree END: Amicable settlement If none: a special kind of contract arising from the settlement 1. The institution: if institutional arbitration -Enforcement: apply for a writ of execution (it has a nature of a final judgment) 2. If ADHOC: IBP president appoints w/n 6m: before lupon 3. If under UNCITRAL MODEL LAW: appointed court may choose after 6m: Municipal court ?What happens in ENE and Minitrial? What law would apply? IF NO AGREEMENT: lupon chair issues a CERTIFICATE TO FILE ACTION The parties may determine consequences when there is a dispute -certificate to file action attached to the complain provide proviso as there is no governing rule REMEDY for assailing AMICABLE SETTLEMENT: REPUDIATION OF THE SETTLEMENT w/n10d if no proviso, badly crafted, NULL & VOID? NO. courts would interpret it (*parties after the date of settlement intended to undergo ADR, Malabo lang pagkacraft) -grounds: FVI -In ENE & MT, lawyers have opportunity to craft the rules that would govern -how: sworn statement/affidavit filed w/ lupon chair -condition precedent: w/o it, action could be dismissed MEDIATION, Katarungang pambarangay GR: all civil cases must undergo katarungang pambarangay CAN MEDIATION BE COMPULSORY? X: parties agree in writing that jurisdiction of dispute is not under katarungang *Mediation is compulsory in KB parties should undergo KB or else action could be pambarangay? dismissed (condition precedent) when party requests for provisional remedies BUT GR: mediation is not compulsory (ADR Law: voluntary process nga eh) KATARUNGANG PAMBARANGAY: -When undergo: basically all civil cases 2|Cha Mendoza_Civil Procedure_Ordinary Civil Actions MEDIATION vs. ARBITRATION vs. CONTRACT Mediation: Mediated settlement (ADR Law)
1.
DIFFERENCE IN ENFORCEMENT
?what if the amount involved is P1.3M? where would the settlement be enforced? Still depends on where the settlement was made LGC or ADR law ?did the ADR Law (later law) repeal LGC provs? NO! (note here the conflict: in ADR law, conciliation is voluntary while in KP, conciliation is a condition precedent to filing an action) response to conflict: not all disputes are subject to KP (see above!)
Appealabl e?
No? but it has a force and effect of a final judgment of a court, so isnt it appealable?
VS .
Law silent
maybe
ROYALES
IAC
-failure to undergo KPL is a ground for dismissal of the action, it being a condition precedent
GALUBA
VS .
LAURETA
-an Amicable settlement under the Katarungang Pambarangay law may only be annulled by repudiation w/n 10d after the date of settlement and not by filing a petition to nullify the settlement
Grounds for MTD: Lack of Jurisdiction vs. No COA vs. Failure to state a COA vs. Condition precedent
Lack of Jurisdiction Civil Actions No COA Failure to state a Condition
3|Cha
Mendoza_Civil
Procedure_Ordinary
ADR ulit
Mediation Domestic Institutional Rules governing Scope Rules of the institution Mediation subject to international rules Ad hoc Agreement of parties Mediation subject to the agreement of the parties regular Domestic Arb law RA 876 (parties can agree as to the procedure, but not to the law) Domestic Arbitration X: 1. Labor disputes under Labor Code 2. Civil Status of persons
arbitration International UNCITRAL model law (parties may agree as to procedure that would be followed) Parties are international: -place of business outside RP -does not include domestic subsidiary of international party or a coventurer in a joint venture Commercial in nature Same exceptions Construction CIAC law EO 1008 Construction Disputes, even if commercial and international in nature Same exceptions
3. 4. 5. 6. 7. 8.
Validity of marriage Any ground for Legal Separation Jurisdiction of courts Future Legitime Criminal liability
Venue
Accdg to Law, cannot be compromised (NCC: future support) 1. agreement of the parties 2. place convenient and appropriate in the Philippines 1. Parties then the arbitrators (if 3 arbitrators) 2. Courts when: a. parties unable to agree b. appointed arbitrator unwilling/unable to serve, no successor named c. party fails/refuses to name
1. agreement of the parties 2. place convenient and appropriate in the Philippines CIAC and parties
1. agreement of the parties 2. MM or place convenient 1. agreement (person, institution) 2. National President of IBP 3. the court, if 2 appointed arbitrators unable to appoint 3rd arbitrator
4|Cha
Mendoza_Civil
Procedure_Ordinary
Civil
Actions
Justifiable doubts on impartiality or independence 2. No qualifications as agreed upon by parties File Motion to confirm Arbitral Award then Enforced as a Final and executor judgment: so needs motion for WOE before RTC
1.
Impartiality?
Vacation
Law silent
*Award procured through corruption, fraud *evident partiality on the part of the arbs *corruption of arbitrator *arbs guilty of misconduct *disqualification of arb not made known *Arbs exceeded powers Civil Actions
Insufficient info
Recognition and Enforcement filed w/RTC -covered by NY convention Motion for recognition and enforcement -not covered by NY convention Follow ROC so motion for writ of execution? -if foreign arbitral award: confirmed by foreign court: Recognized NOT AS A FOREIGN JUDGMENT (THEREFORE NOT APPEALABLE) but a FOREIGN ARBITRAL AWARD -if foreign arbitral award: confirmed by RP courts Enforced as final and executor award in RP (appealable) (note: sabi ADR law grounds for modifying or correcting award under Domestic Arb law) *evident miscalculation of figures *award not among reliefs prayed for *award imperfect in form
5|Cha
Mendoza_Civil
Procedure_Ordinary
2.
3. 4.
a.
b.
1. 2. 3. 4.
appoint 3rd arbiter decide on challenges on arbitrator c. decide on termination of mandate of arbitrator for impossibility to act d. decide on jurisdiction of arbitral tribunal e. vacate/set aside arbitral award # of arbitrators Procedure for appointing arbitrators Qualification of arbitrator Procedure for challenging an arbitrator How arbitration proceedings conducted (how initiate, rules of procedure, how to decide) Law to be applied by the arbitral tribunal Period w/n which arbitral tribunal would decide Assessment of expenses
5.
6. 7. 8. ***ooops! Recognition of arbitral awards are under Special proceedings! So NOT AN ACTIONnot sure if its a motion though
TIJAM
VS .
SIBONGHANOY
Jurisdiction
JAVIER
VS.
CA
The court would not take cognizance of a case under the exclusive original jurisdiction of an administrative agency vested by law (primary administrative jurisdiction)
Sir said that this is NOT an EXCEPTION TO THE GENERAL RULE THAT the jurisdiction of the court may be assailed any time since the issue here is WON PARTY CAN RAISE THE ISSUE OF LACK OF JURISDICTION (not WON the court has jurisdiction) even after 15 yrs! Reqs for Jurisdiction by Estoppel/laches: 1. unreasonable length of time 2. unable to raise lack of jurisdiction 3. other party was lead to believe that the other party would not raise it as a ground for dismissal different from Estoppel by deed: even if the court had no jurisdiction over the subject matter of the dispute, if the contesting party sought AFFIRMATIVE reliefs from the court then he is estopped from assailing courts jurisdiction
BP 129
Original Jurisdict SC CPMHQ 1. Certiorari CA CPMHQA 1. Certiorari RTC CPMQHI 1. Certiorari MTC Sorrycant issue writs!
6|Cha
Mendoza_Civil
Procedure_Ordinary
Civil
Actions
--
--
(by appeal or certiorari) 1. constitutional ity or validity of a law 2. legality of a tax, impost.. 3. questions re: jurisdiction of lower courts 4. criminal cases where penalty RP + 5. error or questions of law ONLY
(petition for review) JDROA of -RTC -QJA *questions of fact and law
Family Courts 1. custody and guardianship of children 2. adoption 3. annulment of marriage 4. support 5. declaration of status of children as abandoned dependent neglected 6. constitution of family home Intracorporate disputes (petition for review) JDROA of MTC MTC MCTC In their respective territorial jurisdictions
--
7|Cha
Mendoza_Civil
Procedure_Ordinary
HEIRS
OF
PASTOR
-An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within the jurisdiction of the regional trial courts, regardless of the value of the subject property.
DUI
VS .
IBAJAN
FLORES
VS.
MALLARE-P HILIPS
In ejectment cases, the sole issue is the physical possession of the property, and neither the claim of Juridical Possession nor an averment of ownership by the defendant can out rightly deprive MTC from taking cognizance of the case
Theres misjoinder of parties here so totality rule does not apply. TOTALITY RULE only applies when theres a proper joinder of COA and of parties as provided under the rules of court ?If proper joinder of COA, 1 plaintiff vs. 1 defendant: plaintiff may join different COA together following R2.5 But if several plaintiffs vs. 1 defendant, 2 or more COA Or 1 plaintiff vs. several defendants, 2 or more COA should follow R2.5 (joinder of COA) and R3.6 (joinder of parties) e.g. when a ship sinks, the victims would join together to file action vs. common carrier *TIP ON CAPTION: mali daw ung Action for Damages: dapat daw alam ung COA mo and not the relief! So pano title? Action based on Breach of Contract???
DAR
DAR has jurisdiction over matters involving the implementation of agrarian reform, agrarian conflicts and land tenure related problems. BUT RTC now conferred with jurisdiction of Agrarian Reform Courts so RTC may have jurisdiction, particularly in petition for determination of just compensation to land owners
VS.
C UENCA
MANCHESTER DEVT
VS .
CA
The payment of docket fees is a mandatory requirement for the court to acquire jurisdiction over the action
SOUTHERN CROSS
VS .
CEMENT MANUFACTURERS
SUN INSURANCE
VS .
ASUNCION
Court could allow payment of docket fees w/n reasonable time. Docket fees are based not only on the prayer, but also on the body of the complaint (why complaint? A complaint asks for awards) Rules on payment of docket fees: 1. prescribed docket fee for filing of initiatory pleading: may pay kulang w/n reasonable time but not beyond applicable prescriptive reglementary period 2. Permissive counterclaims, TPC, similar pleadings (complaints after initiatory pleading): pay kulang w/n reasonable time but in no case beyond applicable prescriptive period 3. Judgment awards a claim not specified in the pleading (therefore, docket fees for that award not yet paid): additional filing fees constitute lien on the judgment
COA
(Rule 2)
R2.1 every ordinary civil action should be based on a COA R2.2 COA defined: an act or omission by which a party violates the right of another R2.3. 1 suit for 1 COA di pede file marami suit for only 1 COA R2.4. Splitting of COA: if 1 COA, 2+ suits: Ground for dismissal if a. File of 1 action b. Judgment upon the merits in 1 action R2.5 Joinder of COA: 1 pleading, as many COA in the alternative or otherwise a. Comply w/ 3.6 b. Cant join ordinary civil action with special civil action or actions governed by special rules c. Same parties, different jurisdiction and venue for COA, one of the COA falls under RTC: join in the RTC d. If all COA joined are for the recovery of a sum of money: aggregate amount determines jurisdiction R2.6. MISJOINDER OF COA not a ground for dismissal: only for severance
SMB
If 1 act or omission gives rise to 1 COA with several reliefs, cannot institute separate actions for the said reliefs or else it is deemed as splitting of COA *so a single COA may give rise to several reliefs. But if a transaction gives rise to different COA (different rights breached), could file separate actions and it would not be deemed splitting of COA *rule on JOINDER OF COA applicable also in a crossclaim, counterclaim, TPC Caveat: if several parties are involved, should ALWAYS FOLLOW R3.6! R2.4 (splitting of COA) vs. R2.6 (misjoinder of COA) Splitting of COA: grounds for dismissal (res judicata or litis pendentia) Misjoinder of COA: NOT a ground for dismissal but merely for severance ? WHY? If joined improperly, no repeating of COA but just wrongly joined. IF split, repeat COA (so PUNISH REPEATING OF COA!)
Every action must be prosecuted by the RPI and if the principal is DISCLOSED, action must be brought in the name of the principal and not in the name of the atty-infact/agent ? What should be the ground when a suit is brought by a party who is not the real party in interest? Failure to state a COA, not lack of capacity to sue sabi ni sir. Capacity is under R3.1, but if you dont have any COA, you dont stand to be benefitted or injured by the judgment or is entitled to the avails of the suit. R3.4. Spouses as Parties GR: husband and wife sued jointly X: as provided by law R3.5 Minor/incompetent persons -may still sue/be sued, w/ assistance R3.6. PERMISSIVE JOINDER OF PARTIES -All persons in whom or against whom ay right to relief in respect of or arising from the same transaction or series of transaction is alleged to exist Whether Jointly, severally, or in the alternative May join as plaintiffs or be joined as defendants in 1 complaint common question of fact or law R3.7. COMPULSORY JOINDER OF INDISPENSABLE PARTIES INDISPENSABLE PARTIES: w/o whom no final determination can be had of the action -should be joined Final determination: tapos na issue, res judicata na dapat forever! Wala na pedeng magfile ulit ng case! R3.8 NECESSARY PARTIES (also called PROPER PARTIES) -one who is 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 e.g. Insurance companies in case of TP liability: they are necessary parties since the defendant would have to claim from them to pay the liability if ever, but they are not indispensable in the sense that the action would not push through w/o them R3.9 NONJOINDER OF NECESSARY PARTIES TO BE PLEADED If necessary party not joined, should set forth name of necessary party not joined then state reason why not impleaded. If court finds that the reason is UNMERITORIOUS, court couldorder that the necessary party be INCLUDED so order amendment of the complaint to include the necessary party failure to comply with the order for his inclusion is deemed a waiver of the claim vs. party *SIR: if failed to comply with order of the court, this may be a ground for MTD under R17.3 (noncompliance w/order of court) R3.10 Unwilling co-plaintiff: didnt consent to be joined as plaintiff so include as defendant and state reasons why made a defendant *SIR: this serves as a notice to the defendant to give him opportunity to participate
Parties (Rule 3)
R3.1 Who may be parties? 1. Natural Persons 2. Juridical Persons 3. Entities Authorized by Law (labor unions, UP, LGUs, Government agencies) Types of Parties 1. Real Parties in Interest 2. Representative parties a. Class suits (hybrid of joinder of COA and parties) b. Guardians c. Trustees d. Administrators e. Executors f. Parties authorized by law
OPOSA
VS .
FACTORAN
Generations yet unborn are not natural persons nor juridical persons nor entities authorized by law but the court still allowed the suit based on the Intergenerational responsibility of the petitioners R3.2 Real Parties in Interest: party who -stands to be benefited or injured by the judgment in the suit Or party entitled to the avails of the suit -every action must be prosecuted or defended by real party in interest (or else ground for MTD based on lack of capacity to sue) R3.3 Representative parties -beneficiary included in the title of the case -if AGENT w/ UNDISCLOSED PRINCIPAL: GR: may sue or be sued w/o joining the principal (not included in the title) X: contract involves property of the principal
FILIPINAS INDUSTRIAL
VS.
SAN DIEGO
9|Cha
Mendoza_Civil
Procedure_Ordinary
Civil
Actions
MATHAY
VS.
C ONSOLIDATED BANK
An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or is not a class quit depends upon the attending facts, and the complaint, or other pleading initiating the class action. *Common interest: 1 subject matter, same reliefs that may be claimed, same COA *In class suits, there is joinder of COA (each party has a COA, but it is common) and joinder of parties (parties so numerous, their COA arise out of the same transaction + common question of fact or law) ?What is the proper remedy if there is an improper class suit? MTD based on Failure to state a COA. Elements of a COA lacking if improper class suit R3.13 ALTERNATIVE DEFENDANTS -certain as to who are liable, not certain against whom relief may be sought R3.14 UNKNOW DEFENDANT -doesnt know name or identity of defendant -if true name or identity later IF PARTY DIES 1. Determine WON claim is extinguished 2. If NOT EXTINGUISHED: Counsel should inform the court of death and submit names and addresses of the legal representative of the party -heirs could be substituted w/o requiring appointment of executor -if none: court may order opposing party to procure the appointment of an executor or administrator, costs may be recovered as costs in the judgment ...if defendant dies: and action on contractual money claims: >death before entry of final judgment in court: allowed to continue until entry of final judgment >if favorable judgment: enforced against defendants estate if public officer dies: action may be continued by successor if it is satisfactorily shown that the successor would adopt same position as decedent
Action in Personam: Actions, the judgment of which affects only the parties to the action *not all actions in personam are personal actions, the same way that actions in rem are real actions
Venue
(Rule 4) R4.1 Real Actions actions affecting title to or possession of real property, or interest therein
Pleadings
(Rule 6)
Pleadings -written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment
10 | C h a
Mendoza_Civil
Procedure_Ordinary
Civil
Actions
Complaint
-pleading alleging the plaintiffs COA/s -states name and address of the parties a.
Prayer WHEREFORE, premises considered, it is most respectfully prayed that judgment be rendered in favor of the plaintiff (name of plaintiff) as follows: 1. PrayerReliefs sought to be obtained 2. Such other reliefs as that the Court deems just and equitable. (general prayer) (Place where pleading was made). Date. Name of counsel plus signature Roll of Atty # (shows that lawyer) PTR # + date and place (shows payment of tax) IBP # + date and place (shows good standing) MCLE compliance # (pero sa June pa) email ad and cellphone # (if before SC) Name of lawfirm/counsel Address of lawfirm /counsel Certificate Against Forum Shopping Republic of the Philippines) City of ________________) s.s. I, (name of plaintiff), after having been duly sworn in accordance with law, deposes and states that: 1. He/She is the plaintiff in the case entitled (title of the case); 2. He/She certifies that he has not commenced any action or filed any claim involving the same issues before any court, tribunal or quasi-judicial agency; 3. To the best of his/her knowledge, there is not such pending claim; 4. If he/she should learn that a similar action or claim has been filed or is pending, he shall report such fact within five (5) days from the discovery to this Honorable Court. (sgd) Name of plaintiff (jurat) Subscribed and sworn to before me this (date), affiant exhibiting to me his Community Tax Certificate No. (enter number) issue at (place where CTC issued) on (date when CTC issued).
(Caption) Plaintiff, (name of plaintiff), through counsel, (and to this Honorable Court), respectfully avers (= specifically allege): (paragraphs numbered: should contain 1 strain of thought, 1 sentence only ) 1. Plaintiff is (then aver UF relevant for the capacity of the party to sue) and a resident of (specify address) 2. Defendant (aver UF relevant to make defendant a real party in interest, aver capacity to sue) and may be served summons and other judicial processes at (specify address) (important: name of parties and their address where notices and summons may be served) 3. Allege UF step by step. Dont forget anything. Check if it is subject to MTD, MBPno need to allege law violated If several COA, have subheadings! RULES in making allegations in pleadings: Rule 8 a. UF: methodical and logical form, PCD facts on which party pleading relies for his claim or defense -omit EF: if no issues tendered, no need to present EF + plaintiff may not have any EF at the time of filing of complaint b. COA: may allege as many COA as there are present, alternatively or hypothetically c. Conditions precedent: averred generally d. Capacity to sue or be sued: important in first paragraphs 11 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions
*note: the complaint should be served with the summons! So see summons
Republic of the Philippines (Court) (Judicial Region) Branch #, Location Plaintiffs name, Plaintiff Vs. Defendants name, Defendant x--------------------------------x Civil Case No. now with number FOR: (characterization of the action)
Answer
contains the defenses of the defendant Kinds of defenses: 1. Negative Defense: specific denial of the material facts/s alleged in the pleading of the claimant essential to his COA (so specific denial of UF) 2. Affirmative Defense: allegation of new matters which, while hypothetically admitting the material allegations in the complaint, would nevertheless prevent or bar recovery by the claimant. Includes a. Fraud b. Illegality c. Release d. Payment e. Former recovery f. Discharge in bankruptcy g. Estoppels h. Statute of limitations i. Statute of frauds j. Any other matter by means of confession or avoidance So draft an answer! Republic of the Philippines (court) (judicial region) Branch (#), (Location)
Summons TO: (Name of Defendant) of (address) You are hereby required to enter your appearances in the above-entitled case within fifteen (15) days after the service of this summons upon you, exclusive of such service, and to answer the complaint of the plaintiff which is hereto attached and herewith served upon you, within the time fixed by the rules of Court. If you fail to appear within the time aforesaid, the plaintiff will take judgment against you by default and demand from this Court the relief applied for in said complaint. Witness the Honorable (name of judge), Judge of this Court, this (date of issue). (sgd) Name of COC Clerk of Court *signature of counsel needed, or else pleading would have no effect (Remedy: file MTD based on lack of jurisdiction over the subject matter) *CNFS required: or else treated as a mere scrap of paper (REMEDY: MTD: lack of jurisdiction over the subject matter) checklist as is! 12 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions
Answer Defendant, by counsel, respectfully state that: Admissions/Denials (notes) *defendant should SPECIFICALLY DENY each material allegation of facts -whenever practical, set forth substance of the matters upon which he relies -includes denial of the capacity of the party to sue or be sued *partial denial: specify which part is admitted and which part is denied specifically *if defendant WITHOUT KNOWLEDGE/INFORMATION SUFFICIENT TO FORM A BELIEF AS TO THE TRUTH OF THE MATERIAL AVERMENT, specifically state such *DENIAL OF ACTIONABLE DOCUMENTS: -under oath (not needed if not a party to the actionable document) -specifically denied -set forth what actually happened (defendants version) -genuineness: authenticity (WON it was forged):: due execution: formalities as to its execution (capacity of parties to contract) *Usury allegation also required to be under oath (but no usury anymore)
1.
2. 3.
4.
He admits the contents of paragraph #. (specific denial proper) He admits the contents of paragraph # in so far as.but specifically deny that (state substance of denial). (partial denial) He specifically denies the contents of paragraph #, as he lacks knowledge or information sufficient to form a belief as to its truthfulness. (denial based on lack of knowledge) He specifically denies the genuineness and due execution of the document mentioned in paragraph #, it being that. (denial of actionable document) Affirmative Defenses Defendant repleads, reiterates, and incorporates by reference all the foregoing insofar as they are material and additionally submit that the complaint should be dismissed because: 5. 1. Plaintiff has.(may plead any of the enumeration under affirmative defense or any of the grounds for MTD EXCEPT LACK OF JURISDICTION OVER THE PERSON OF THE DEFENDANT and IMPROPER VENUE)
I, (name of the person who caused the service), (job description) for (name of defendant), with address at (address of person), after being duly sworn, deposes and states: That on (date when served), I served a copy of the following pleadings/papers by registered mail in accordance with Section 10, Rule 13 of the Rules of Court: Answer For defendant (name of defendant) In Case No. (specify) entitled (title of the case), by depositing a copy in the post office in a sealed envelope, plainly addressed to (counsel of plaintiff) at (address of defendant), with postage fully prepaid, as evidenced by Registry Receipt No. (specify), attached and with instructions to the post master to return the mail to sender after ten (10) days if undelivered. Checklist: 1. Deposited in post office 2. In a sealed envelope 3. Plaintly addressed to the party or counsel at office or place of residence if known 4. With postage fully prepaid 5. Evidenced by registry receipt # 6. With instructions to post master to return to sender after 10d if undelivered. To the truth of the foregoing, I have signed this affidavit on (date when signed), in the city of (location), Philippines. (sgd) person who caused the service
5.
WHEREFORE, Defendant respectfully prays that judgment be rendered in his favor by dismissing the complaint. Other just and equitable reliefs are prayed for. Location. Date. 13 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions
Verification
(name of defendant), after having been duly sworn in accordance with law, deposes and states that: 1. He is the defendant in the pleading/document entitled (title of pleading/document); 2. He has caused its preparation; 3. He has read it and the allegations therein are true and correct to his personal knowledge or based on authentic records. (sgd) affiant-defendant (then add jurat) Subscribed and sworn to before me this (date), affiant exhibiting to me his Community Tax Certificate No. (fill up), issued at (place where issued) on (date where issued). (sgd) Notary Publics name Notary Public Until (date of validity) PTR # ________ Issued at (place) On (date when issued) Doc No. Page No. Book No. Series of 2009.
Counterclaim
-any claim which a defending party may have against an opposing party COMPULSORY COUNTERCLAIM 1. Cognizable by regular courts of justice Both as to subject matter and amount involved If within RTC, complaint considered compulsory regardless of amount 2. Arises out of/ Connected w/ the transaction/occurrence constituting the subject matter of the opposing partys claim 3. Does not require for its adjudication the presence of 3rd parties over which the court cannot acquire jurisdiction
14 | C h a
Mendoza_Civil
Procedure_Ordinary
Civil
Actions
(M ELITON VS . CA ) *if the amount involved in the counterclaim is not w/n the jurisdiction of the court taking cognizance of the original complaint, it is not compulsory (REYES VS . CA ) *If the claim is compulsory, it should be set up in the main action or else barred. The remedies for the plaintiff is MTD based on Litis pendentia (if main action still pending) or res judicata (if main action already ended). *If main action dismissed, compulsory counterclaim may either be a. claimed by the defendant in a separate action OR b. defendant may ask the court where main action was pending to resolve the counterclaim Compulsory counterclaim vs. permissive counterclaim *can file as many COA in the counterclaim as there are, but subject to the rules on joinder of COA and joinder of parties REMEDIES for failure to raise counterclaim *If ground for Counterclaim or crossclaim arose after the SERVICE OF THE ANSWER: file motion for leave to file a supplemental pleading *if failed to setup counterclaim due to OIEN (oversight, inadvertence, excusable negligence): file motion for leave to file an amended complaint
Time to plead
-when counting periods: exclude time from which period starts to run then include the date of performance of the act. -if last day falls on a Saturday, Sunday, or legal holiday at the place where court sits, time will not run until next working day (so in computing the period, use calendar day. Working day only relevant in determining last day) -interruptions: start to run period again from day after notice of cessation of interruption Examples of interruptions: *filing with KB *granted MBP 8filing of MTD *filing of MNT, MFR (even given new period!) Answer to complaint Answer of a FPJE, summons served on govt official Answer to amended complaint -as a matter of right -not as a matter of right Answer to counterclaim/crossclaim Answer to TPC w/n 15d w/n30d after SERVICE OF SUMMONS after receipt
Reply
-a pleading, the office of which is to deny or allege facts in denial or avoidance of the new matters raised as affirmative defense in the answer -IF NO REPLY: deemed controverted X: if answer assails an actionable document: should file a reply or else deemed admitted -if plaintiff has a new claim arising from the new matters alleged in the answer: file motion to amend or supplement complaint.
AFTER SERVICE from NOTICE admitting amendment from SERVICE of counterclaim after Service of summons After receipt if made on govt official, defendant is a FPJE From SERVICE of pleading responded to From NOTICE admitting supplement
TPC
-claim that a defending party may have against a person NOT A PARTY to the action for CRISA (contribution, reimbursement, indemnity, subrogation, and any other relief) in respect to plaintiffs claim (derivative claim requirement) the derivative claim should be in respect to plaintiffs claim: should arise out of the same transaction on which the plaintiffs claim is based (B ALBASTRO VS.
Reply w/n10d Answer to supplemental w/n10d complaint Answer to complaint in w/n15d From NOTICE of order admitting the intervention same *Service: completeness of service, not day when service was made
CA)
*if not CRISA, not TPC ? What if you want to implead a person NOT YET A PARTY to the action BUT NOT FOR CRISA? What to do? Bring them in, under Rule 6.12 *if TPC improperly filed (not for CRISA), but was not assailed, parties have waived that defense. (P ASCUAL VS. B AUTISTA) 15 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions
Service Of pleadings, judgments and other papers (not summons) Rule 13 FILING
-act of presenting the pleading, and other paper to COC -PROMULGATION: act of the judge of filing w/COC the signed decision
REGISTERED mail
SERVICE
-act of providing a party w/ a copy of the pleading/paper concerned -made to counsel of the other party PRIMARY Modes of Service Of pleadings (documents from parties and interlocutory orders) 1. Personal 2. Mail Of JFOR (from the court, final) RENDITION! 1. Personal 2. Registered mail 3. Summoned by publication (unknown defendant, defendant does not reside and cannot be found in RP, defendant temporarily out of RP): serve also by publication SECONDARY MODE: Substituted service: send to COC Kind of service Completeness Personal service Actual delivery a. delivering personally a copy to the party or counsel b. leaving a copy in office (preferred) w/person having charge of office or in residence w/ person of sufficient age and discretion 16 | C h a Mendoza_Civil Proof 1. Written admission of party served (signature on copy) 2. Official Return of Server 3. Affidavit of party serving should contain: *date *place *manner of service
R13.11 Priorities in modes of service and filing(kaya may explanation part) 1st PERSONAL service/filing If other modes: should be w/ explanation why service not done personally if NO EXPLANATION: considered not filed
Procedure_Ordinary
Civil
Actions
Summons
Definition: a coercive order issued by the court to obtain jurisdiction over the defendant WHO issues: COC Who serves: a. sheriff b. his deputy c. person authorized by the court HOW SERVED Action in personam Action in rem Natural 1. personal service 1. personal service (see persons -deliver summons + copy of complaint left) -defendant to defendant 2. substituted service who may be: -tender summons + copy of complaint 3. extraterritorial service 1. defendant 2. substituted service -only for the following 2. prisoner -only resorted to when: situations: actions involve 3. entity w/o a. justifiable causes a. personal status of juridical b. cannot serve defendant w/n plaintiff personality reasonable time b. relates to, or the 4. minors c. all reasonable diligent efforts have subject of w/c, is property and been exerted w/n RP in w/c defendant incompetent -HOW: leave copies at has claim or lien, actual s *defendants residence: person then or contingent 5. resident residing therein w/sufficient age and c. relief demanded temporarily discretion consists of excluding the out of RP *OR office/regular place of business: defendant from any 6. defendant person in charge thereof interest in the property in cannot be RP found + FOR 7 (unknown defendant) d. property of defendant does not -w/leave of court, service by publication in RP attached w/n RP reside in RP in a newspaper of general circulation 7. defendant FOR 5 and 6 extraterritorial service unknown -w/leave of court 1. personal service outside RP 2. by publication + send through registered mail to the last known address the copy of the summons 3. any manner the court deems sufficient Juridical persons 1. DOMESTIC 1. personal service on (6 persons only Service by publication? CORP list exclusive): Extraterritorial? But (corporation a. President domestic nga eh so din a s, b. GM sha nonresident+not
Supplemented complaint
New matters arised after service of pleading sought to be supplemented Merely adds to the pleading
Kinds
Intervention
WHO MAY FILE: a person 1. Who has a legal interest in the subject matter 2. Who has a legal interest in the success of the parties 3. Who has a legal interest against both 4. So situated as to be adversely affected by the distribution or disposition of the properties in the custody of the court PROVIDED *no undue delay in the adjudication of the rights of the original parties + intervenors right cannot be sufficiently protected in another proceeding *interest should be DIRECT, MATERIAL AND NOT INCHOATE BUT SHOULD BE PRESENT HOW: w/leave of court -file motion to intervene + either Complaint in intervention or answer in intervention WHEN: any time before the rendition of the judgment by TC (rendition: service of the copies of the final order)
METROBANK
17 | C h a
VS.
PRESIDING JUDGE
Procedure_Ordinary Civil Actions
Mendoza_Civil
Extraterritorial service
RETURN OF SUMMONS This is to certify that on (date when summons served), the undersigned caused the service of summons together with a copy of the complaint and its annexes upon the defendant (name of defendant) at (address where defendant was served). The copy of the summons together with a copy of the complaint and its annexes were (manner of service: personally/substituted) received by defendant at (time) on (date) at (location. The original copy of the Summons is therefore, respectfully returned, DULY SERVED. Date when return made. (sgd) name Sheriff Cc: Plaintiffs counsel Address
3. Public Corp
***Jurisprudence seem to suggest that even if domestic corp (so therefore even if RESIDENT and can be found in RP), once action in rem extraterritorial service and service by publication could be resorted to. Refer to Consolidated Plywood vs. Breva
VENTURANZA
VS.
CA
Substituted service may only be resordted to after earnest efforts to serve personally have been exhausted. The presumption of regularity of the official acts of the sheriff would attach only when earnest efforts (the specific acts) have been exerted, as stated in the return, within reasonable time.
LAUS
VS .
CA
Reasonable time: depends on 1. facts constituting service 2. reasonable diligence 3. reasonable time elapsed A party may still file a MTD before filing an answer when the defendant was not properly served with summons, thus, still not under the jurisdiction of the court. Should file MTD by special appearance.
Motions
-an application for relief other than by pleading GR: should be in writing X: those made in open court Or in the course of the hearing/trial CONTENTS: 1. relief sought to be obtained 2. grounds upon w/c relief is based 3. accompanied by supporting affidavits if necessary Re: Hearing GR: need to notify other parties and conduct Hearing -3d notice rule! (except: MTD no notice required, just hearing) X: when hearing NOT REQUIRED 1. ex parte motion non litigated motions 2. motions which only needs arguments OMNIBUS MOTION RULE -when attacking a POJP (pleading, Order, Judgment, Proceedign) -should include ALL OBJECTIONS then available or else waived
DIAL CORP
VS .
SORIANO
For purposes of extraterritorial service of summons, the property that should be attached should be tangible property *What happens after service of summons -w/n 5 days after service of summons, sheriff would file with court a RETURN If returned summons w/o being served, plaintiff may demand that alias summons may be served *substitute of summons: VOLUNTARY APPEARANCE -raising other grounds aside from lack of jurisdiction over the person of the defendant NOT considered voluntary appearance but merely in accordance w/ OMNIBUS MOTION RULE Example of RETURN Republic of the Philippines (court) 18 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions
if MTD grounds raised as an affirmative defense in the answer 9.1 a. Litis pendentia b. Res judicata c. Statute of limitation d. No jurisdiction over the subject matter 1. 17.2 MTD on the plaintiffs instance (17.1 kasi notice of dismissal lang) 2. Revised Rules on Summary Procedure 3. SCA of FEUD If MTD DENIED: file answer w/n time remaining, but have at least 5d to do so, computed from RECEIPT OF NOTICE OF DENIAL -Order is interlocutory, so cannot be appealed If MTD GRANTED: Dismissal w/o prejudice X: dismissal w/ prejudice -res judicata or statute of limitations -PWAE -unenforceable because of statute of frauds
19 | C h a
Mendoza_Civil
Procedure_Ordinary
Civil
Actions
LIM TANHU
VS.
REMOLETE
If the defendants are indispensable parties sued under 1 COA and interposed 1 common defense, the non-appearance of 1 during pre-trial does not make the others in default
20 | C h a
Mendoza_Civil
Procedure_Ordinary
Civil
Actions