civil procedure consolidated notes updated[1]

Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE

Notes by: Paul Lemuel E. Chavez

CIVIL PROCEDURE NOTES

PRELIMINARIES

Remedial Law

Branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasions

Remedial Law vs Substantive Law

Substantive Law Remedial Law

Part of the law which creates, defines, or regulates rights concerning life, liberty, or property or the powers of agencies or instrumentalities for the administration of public affairs

Refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained (adjective law)

Makes vested rights possible

Has no vested rights

Prospective in application

Governs rights and transactions which took place (retroactive)

Cannot be enacted by SC SC is expressly empowered to promulgate procedural rules

4 Main Divisions of Remedial Law:

1. Civil Procedure (Rules 1-71)

2. Special Proceedings (Rules 72-109)

3. Criminal Procedure (R110-R127)

4. Rules on Evidence (Rules 128-134)

What are the sources of Remedial Law?

1. 1987 Constitution

2. BP 129 (Judiciary Reorganization Act of 1980) as amended by RA7691 (Act expanding the jurisdiction of MTCs, MuTCs, MCTCs

3. Rules of Court

4. Supreme Court Administrative Matters and Circulars

5. Supreme Court decisions

6. New Civil Code

7. Family Code

8. Local Government Code (RA 7160), particularly the Katarungang Pambarangay Law

9. Special Laws and amendments

10. Rules of Procedure on Small Claims

11. Revised Manual of the Clerk of Court

Differentiate: Civil Actions, Special Proceedings, Criminal Actions

Special Proceedings

Criminal Procedure

Civil Action

A remedy by which a party seeks to

The State prosecutes a person for an

A party sues another for the

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establish a status, a right, or a particular fact (Rule 1 S3c)

act or omission punishable by law (Rule 1 S3b)

A proceeding wherein a person is prosecuted by the State for acts or omissions committed in violation of penal laws, and to impose the corresponding penalty provided for by penal laws

enforcement or protection of a right, or the prevention or redress of a wrong

A civil action may be ordinary or special. (R1 S3a)

Governed by special rules, and in the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as practicable, apply suppletory (R72 S2)

Governed by the Revised Rules of Criminal Procedure

Both are governed by the Rules for ordinary civil actions, subject to specific rules prescribed for a special civil action (R1 S3a)

May involve only one party

Involves the State against the accused

Involves 2 or more parties

Initiated by petition

Initiated by complaint

Initiated by complaint, or,

(but filed in court by Information)

in some special civil actions, by petition

Except Habeas Corpus, NOT based on a cause of action

Based on an act or omission punishable by law

Based on a cause of action

CONSTITUTIONAL PROVISIONS Relating to CIVIL PROCEDURE

A8 S1

Judicial Power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

What are those other Courts as may be established by Law?

Sandiganbayan

Family Courts (RA 8369)

Court of Tax Appeals

Sharia Court

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A3 S1

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

A3 S9(Basis of Rule 67)

Private property shall not be taken for public use without payment of just compensation

A6 S30

No law shall be passed increasing the appellate jurisdiction of the SC as provided in this Constitution without its advice and concurrence.

A8 S5 P1

The Supreme Court shall have the following powers:

- Exercise original jurisdiction over cases affecting:

o Ambassadors

o Other public ministers and consuls

- Over petitions for

o Certiorari

o Prohibition

o Mandamus

o Quo warranto

o Habeas corpus

A7 S4

The Supreme Court en banc shall be the sole judge of all contests relating to the election, returns, and qualification of the President or Vice President, and may promulgate its rules for the purpose.

A7 S18

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within 30 days from its filing.

A8 S5 P2(Basis of Rule 56)

- Review

- Revise

- Reverse

- Modify

- Affirm

o On appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

1. All cases in which constitutionality or validity of any

a. treaty,

b. international or executive agreement

c. law

d. presidential decree

e. proclamation

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f. order

g. instruction

h. ordinance

i. regulation

i. is in question

2. all cases involving the legality of any

a. tax

b. impost

c. assessment

d. toll

e. any penalty imposed in relation thereto

3. all cases in which the jurisdiction of any lower court is in issue

4. all criminal cases in which the penalty imposed is reclusion perpetua or higher

5. all cases in which only an error or question of law is involved

A8 S5 P5 (basis of Rules of Court)

The SC shall have the power to promulgate rules concerning:

1. Protection and enforcement of constitutional rights

2. Pleading, practice, procedure in all courts

3. Admission to practice of law

4. Integrated Bar

5. Legal assistance to the underprivileged

Such rules shall (Limits to SC-rule making power):

1. Provide simplified and inexpensive procedure for speedy disposition of cases

2. Shall be uniform for all courts of the same grade

3. Shall not diminish, increase, modify substantive rights.

Rules of procedure of special court and quasi judicial bodies shall remain effective unless disapproved by the SC

A8 S2

The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the SC of its jurisdiction over cases enumerated in S5 thereof.

No law shall be passed reorganizing the Judiciary when it undermines security of tenure of its members.

A3 S16

All persons shall have the right to speedy disposition of cases before before all judicial, quasi judicial, administrative bodies.

A8 S14(basis for Rule 36)

No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

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No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without starting the legal basis therefor.

A9A S7 (basis of Rule 64)

Each Commission shall decide by majority of all its Members in any case or matter brought before it within 60 days from date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the SC on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.

CIVIL PROCEDURE PROPER

Jurisdiction

Authority of the court to hear and decide a case and to implement its decision

Rule 30 Rule 36

Rule 39

Venue Jurisdiction

Place where action is instituted

Power of court to hear and decide a case

May be waived Jurisdiction over subject matter and over nature of action are conferred by law and cannot be

waived

Procedural Substantive

May be changed by written agreement of the parties

Cannot be subject of the agreement of the parties

Not a ground for motu proprio dismissal, except in Summary Procedure

A ground for motu proprio dismissal

General Jurisdiction

Power to adjudicate all controversies except those expressly withheld from the plenary powers of the court.

It extends to all controversies which may be brought before a court within the legal bounds of rights and remedies.

Special or Limited Jurisdiction

One which restricts the courts jurisdiction only to particular cases and subject to such limitations as may be provided by the governing law.

It is confined to particular causes, or which can be exercised only under the limitations and circumstances prescribed by the statute

Appellate Jurisdiction

Power and authority conferred upon a superior court to rehear and determine causes which have been tried in lower courts, the cognizance which a superior court takes of a case removed to it, by appeal or writ of error, from the decision of

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a lower court or the review by a superior court of the final judgment or order of some lower courts

Concurrent / Confluent / Coordinate Jurisdiction

Power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories

E.g. CA, SC, Sandiganbayan, RTC- in HC cases, Writ of Amparo, Writ of Habeas Data

Original Jurisdiction

Power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law and appellate jurisdiction, or the authority of a court higher in rank to re-examine the final order or judgment of a lower court which tried the case or elevated for judicial review. It is jurisdiction conferred upon or inherent in the first instance

Jurisdiction conferred by law and filed at the first instance (NOTE: all civil actions)

Exclusive Jurisdiction

Power to adjudicate a case or proceeding to the exclusion of all other courts at that stage

Jurisdiction of the court to the exclusion of all other courts

Exclusive Original Jurisdiction

Power of the court to take judicial cognizance of a case instituted for judicial action for the first time to the exclusion of all other courts

Territorial Jurisdiction

Refers to geographical area within which the courts powers can be exercised

In civil cases, assumes importance in case of venue of real or mixed action

In criminal cases, consideration of territory and locus of crime determine venue and jurisdiction

Territorial jurisdictions:

SC and CA

National

RTC

Regional jurisdiction

Inferior courts

Territorial jurisdiction as defined by SC in BP129

*Power of tribunal considered with reference to the territory within which it is to be exercised.

Delegated Jurisdiction

The grant of authority to inferior courts to hear and determine cadastral and land registration cases under certain conditions

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Doctrine of Primary Jurisdiction

courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring special knowledge and experience of said tribunal in determining technical and intricate matters of fact

courts shall not take cognizance of a case unless it has been decided at the administrative level

Coordinate Jurisdiction

(same as Concurrent Jurisdiction)

Power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories

Ancillary Jurisdiction

Power of the courts to settle issues which are incidental to main issue

Appeal by Certiorari Petition for Certiorari

Rule 45 Rule 65

Petition is based on questions of law

Petition is based on questions of jurisdiction, whether the lower court acted without

jurisdiction or in excess of jurisdiction or with grave abuse of discretion

Mode of appeal Mode of review / SPECIAL CIVIL ACTION

Involves review of the judgment award or final order on the merits

Directed against interlocutory order of the court or where there is no appeal or any plain, speedy, or adequate remedy

Filed within 15 days from notice of judgment, final order, or resolution appealed from

Filed not later than 60 days from notice of judgment, order, or resolution sought to be reviewed

Stays judgment or final order appealed from

Unless a writ of preliminary injunction or temporary restraining order is issued, the petition does not stay the challenged proceeding

Appellant and appellee are original parties to the action, and the lower court or quasi judicial agency is not impleaded

Judge, court, quasi judicial agency, tribunal, corporation, board or officer or person are public respondents who are impleaded in the action

Motion for reconsideration is not required

Motion for reconsideration or for new trial is required; if a motion for reconsideration or new trial is filed, the period shall not only be interrupted but another 60 days shall be given to petitioner (SC Admin

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Matter 02-03)

Court is in exercise of its appellate jurisdiction and power of review

Court exercises original jurisdiction

Petition shall be filed with the Supreme Court

Petition shall be filed with the RTC, CA, Sandiganbayan, Comelec

JURISDICTION

SUPREME COURT

Original Jurisdiction of the Supreme Court:

A8 S5 P1- (Rule 56)

The SC shall have exclusive original jurisdiction over cases involving:

1. Ambassadors

2. Other public ministers and consuls

3. Over petitions for:

a. Certiorari

b. Prohibition

c. Mandamus

d. Quo warranto

e. Habeas corpus

Appellate Jurisdiction of the Supreme Court:

A8 S5 P2

The SC may review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

1. All cases in which the constitutionality or validity of any treaty, internation or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question

2. All cases involving the legality of any tax, impost, assessment or toll, or any penalty imposed in relation thereto

3. All cases in which the jurisdiction of any lower court is in issue

4. All criminal cases in which the penalty imposed is reclusion perpetua or higher (WITHIN THE SCOPE OF CRIMINAL PROCEDURE- RULE 45)

5. All cases in which only an error or question of law is imposed

1 and 2- PURE QUESTIONS OF LAW

Administrative Supervision of the Supreme Court:

1. Over court personnel

2. Over Justices

3. Over Judges

4. Practice of Law

5. Members of the Integrated Bar

CA decisions

- Appealable to SC under Rule 45

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R45 S1- a party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals may file with the SC a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

Note that questions of law can be raised before the CA (BP129)

COURT OF APPEALS

Original jurisdiction / Original Concurrent Jurisdiction

Original jurisdiction to issue writs of:

- Mandamus

- Prohibition

- Certiorari

- Habeas corpus

- Quo warranto

- Auxiliary writs and processes,

o Whether or not in aid of its appellate jurisdiction

Exclusive Original Jurisdiction:

Exclusive original jurisdiction over the actions for annulment of judgments of RTCs

Appellate Jurisdiction:

1. Rule 41- over RTC decisions in the exercise of its ORIGINAL JURISDICTION (via Notice or Record of Appeal)

- RTC jurisdiction, first instance, including Special Civil Actions

2. Rule 42- over RTC decisions in the exercise of its APPELLATE JURISDICTION (via Petition for Review)

3. Rule 43- Exclusive appellate jurisdiction over all final judgments, resolution, orders, or awards of quasi judicial agencies, instrumentalities, boards, or commissions (via Petition for Review)

RTC

Exclusive Original Jurisdiction:

1. In all actions in which the subject of litigation is incapable of pecuniary estimation

2. Actions which cannot be quantified into monetary estimation

Subject matter (BP129)

3. In all civil actions which involve title to or possession of real property or any interest therein, where assessed value of property involved exceeds 20k OMM or in MM, value of property involved exceeds 50k

Except actions of FE and UD of lands and buildings, original jurisdiction of which is conferred with MTC, MuTC, MCTC

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4. In all actions in admiralty and maritime actions where demand or claim exceeds 300k OMM or exceeds 400k MM

5. In all matters of probate, testate or intestate, where gross value of estate exceeds 300k OMM or exceeds 400k MM

Gross value- assessed value of property of deceased before deduction (NOT market value)

6. In all actions involving the contract of marriage and marital relations

7. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi judicial functions

(refer to 902-A below)

8. In all civil actions and special proceedings falling within Exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law

9. In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses, and costs or the value of property in controversy exceeds 300k OMM or exceeds 400k MM

1996 Bar- Gross value is 200k, property located in Pampanga. What is the jurisdiction and venue?

MTC of the place of decedents actual residence at the time of his death, if a resident of the Philippines. If a non resident, then the MTC of the place where his estate is located.

(RA8799 S5.2 as amended by PD902-A)- exclusive and original jurisdiction of the RTC to hear and decide following cases:

1. Cases involving devices or schemes employed by or any acts of the board of directors, business associates, its offices or partnership, amounting to fraud or misrepresentation which may be interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the Commission

2. Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates, between any and all of them and the corporation, partnership, or association of which they are stockholders, members or associates respectively, and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity

3. Controversies in election or appointment of directors, trustees, officers or managers of such corporations, partnerships, or associations

4. Petitions of corporations, partnerships or associations to be declared in the state of

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suspension of payments, in cases where the corporation, partnership or association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when the respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under management of a rehabilitation receiver or management committee

Concurrent Original Jurisdiction:

With SC, CA, -- over petitions for certiorari, mandamus, prohibition, quo warranto, habeas corpus

Appellate Jurisdiction:

Over all cases decided by MTCs, MuTCs, MCTCs in their respective territorial jurisdictions

MTC

(note: baligtarin ang RTC jurisdiction, below 20-50, 300-400)

Ordinary Civil Actions:

1. exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including grant of provisional remedies in proper cases, where the value of the personal property, estate or amount of the demand does not exceed 300k OMM or 400k MM exclusive of interest, damages, of whatever kind, AF, litigation expenses and costs, the amount of which must be specifically alleged. Provided, that interest, damages of whatever kind, AF, litigation expenses, and costs shall be included in the determination of the filing fees. Provided further that where there are several claims

or causes of actions between the same or different parties, embodied in the same complaint, the amount of demand shall be the totality of the claims in all the causes of action, irrespective of whether the cause of action arose out of same or different transactions

2. exclusive original jurisdiction over cases of forcible entry or unlawful detainer, provided that when, in such cases, defendant raises questions of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession (see: Summary Procedure)

3. exclusive original jurisdiction in all civil actions involving title to or possession of property or any interest therein where assessed value of property or interest therein does not exceed 20k OMM or does not exceed 50k MM exclusive of interest, damages of whatever kind, AF, litigation expenses, costs. Provided that in cases of land not declared for taxation purposes, the value of such property shall be determined by assessed value of adjacent lots

4. civil cases where the demand does not exceed 300k or not more than 400k MM

5. over actions involving personal property valued at not more than 300k OMM or not more than 400k MM

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6. admiralty and maritime cases where the demand or claim does not exceed 300k OMM or does not exceed 400k MM

Summary Procedure:

1. All cases of FE and UD, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where AF are awarded, the same shall not exceed 20k

2. All other civil cases, except probate proceedings, where the total amount of the plaintiffs claim does not exceed 100k OMM or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC)

3. Civil cases not higher than 100k- Subject to the Rule on Small Claims

What if, gumitna? 150k?

Higher than 100k OMM, then subject to Regular Proceedings in MTC

BUT, below 200k MM, hence, in such case, subject to Summary Procedure pa rin

Why the need to discuss jurisdiction?

To know whether subject to Motion to Dismiss (Rule S1b), that the court has no jurisdiction over the subject matter of the case

In Civil Procedure, SC-CA-RTC-MTC

In Criminal Procedure, SC-CA-SANDIGANBAYAN-RTC-MTC

Commencement of a Civil Action:

R1 S5

Civil action is commenced by the filing of the original complaint in court and payment of the requisite docket fees. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.

DOCKET FEES- needed to acquire jurisdiction over the case

Jurisdiction over plaintiff

By filing of original complaint in court plus payment of requisite docket fees

Jurisdiction over defendant

By voluntary appearance or service of summons

Jurisdiction over subject matter

Conferred by law

Jurisdiction over the issue

Determined by allegations in the complaint

Jurisdiction over the res

By actual or constructive seizure of property by way of attachment or execution

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Action, Cause of Action, Right of Action (Simplified Version)

Action Cause of Action Right of Action

Suit to enforce ones right or for the prevention or redress of a wrong

Act or omission by which a party violates a right of another

Remedial right to file a suit based on cause of action

Original Distinctions:

Action Cause of Action Right of Action

Suit filed in court for enforcememt or protection of a right, or the prevention or redress of a wrong (R1 S3)

Act or omission by which a party violate a right of another (R2 S2)

Remdial right or right to relief granted by law to a party to institute an action against a person who has committed delict or wrong against him

Reason for the action

Remedy or means afforded or the consequent relief

Formal statement of operative facts that give rise to a remedial right

Remedial right given to a person because of occurrence of the alleged facts

Matter of procedure and depends on the pleadings filed by the parties

A matter of right and depends on substantive law

Not affected by affirmative defenses (fraud, prescription, estoppel, etc)

Affected by affirmative defenses

Kinds of actions:

1ST GROUP: for purposes of venue under Rule 4

Real Action

- Actions affecting title to or possession of real property (A415 NCC in consideration)

- Venue: R4 S1

Personal Action

- Involves privity of contract/personal property (A416-417 of NCC in consideration)

- Venue: R4 S2

Mixed Action

- Action affecting title to or possession of real property + Privity of Contract

- Venue: R4 S1

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2ND GROUP: for purposes of determining jurisdiction/service of summons

Action In Rem

- Action which binds the whole world

Note: all Special Proceedings are in rem actions

- Summons/notification by PUBLICATION

Action in Personam

- Action which binds the parties

Action Quasi In Rem

- Action which binds interests

o Foreclosure of mortgage

o Partition

o Attachment

o Any interest or lien on real property

Action in rem Action in personam

Action Quasi in Rem

Directed against the thing itself

Directed against particular persons

Directed against particular persons

Jurisdiction over person of defendant is not required

Jurisdiction over person of defendant is required

Jurisdiction over the person of the defendant is not required as long as

jurisdiction over the res is acquired

A proceeding to determine the state or condition of a thing

An action to impose a responsibility or liability upon a person directly

A proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it

Judgment is binding on the whole world

Judgment is bonding only upon the parties impleaded or their successors in interest

Judgment is binding upon particular persons

Examples:

Probate proceeding,

cadastral proceeding,

special proceedings

Examples:

Action for specific performance

Action for breach of contract

Examples:

Action for partition

Action to foreclose real estate mortgage

Real Action Personal Action

Mixed Action

Ownership or possession of real property is involved

Personal property is sought to be recovered or

Both real and personal properties are involved

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where damages for breach of contract are sought

Founded on privy of real estate

Founded on privity of contract

Founded on both

Filed in the court where the property or any part thereof is situated (R4 S1)

Filed in the court where the plaintiff or any of the plaintiffs resides, where defendant or any of the defendants resides, or in case of non resident defendant, where he may be found, at election of plaintiff (R4 S2)

Filed in the court where the property or any part thereof is situated (R4 S1)

Example:

Accion reivindicatoria

Example:

Action for a sum of money

Example:

Accion publiciana with a claim for damages

Personal Action Action in personam

Personal property is sought to be recovered or where damages for breach of contract are sought

An action directed against particular persons, may be real action, personal action, mixed action

Founded on privity of contract

Not necessarily; because the action may also be

real or mixed

Filed in court where plaintiff or any of defendants reside, at option of plaintiff (R4 S2)

R4 S1 or R4 S2 may govern, depending on whether the action is real action or personal action

Mixed Action Quasi In Rem Action

Both real and personal properties are involved

Both real and personal properties may also be involved

Founded on both privity of real estate and privity of contract

Action directed against particular persons, but jurisdiction over defendant is not required as long as jurisdiction over the res is acquired

Rules on venue of real actions shall govern (R4 S1)

Rules on personal actions govern (?)

Real Action In rem action

Ownership or possession of real property is involved

Action directed against the thing itself

Filed in court where property or portion thereof is situated

Not necessarily; depends on whether the action is real, personal, mixed

A proceeding founded on privity of real estate

A proceeding to determine state or condition of a thing

Judgment may bind whole world, or particular persons, depending on whether in rem, in personam, quasi

Judgment is binding upon the whole world

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in rem

PLEADING (R6 S1)

Sworn written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment

Complaint (R6 S3)

The complaint is the pleading alleging the plaintiffs cause or causes of action.

Answer (R6 S4)

Pleading in which a defending party sets forth his defenses

INITIATORY PLEADING

A pleading that initiates an action

RESPONSIVE PLEADING

A pleading that responds to allegations in the adverse partys pleading

Initiatory Pleadings

Original complaint

Permissive counterclaim

Cross claim

Third party complaint

4th party complaint

Complaint in intervention

Petition

In special civil actions

In special proceedings

Counter counter claim

Counter cross claim

Counter Counter Claim Counter Cross Claim

Any claim which defending party in a counterclaim may have against the original counterclaimant

Any claim which a defending party in a cross claim may have against the original cross claimant

COMPULSORY- Arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim

PERMISSIVE- does not arise of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim

Can be an initiatory pleading, if permissive

Responsive Pleadings

Answer to original complaint

Answer to permissive counterclaim

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Answer to third party complaint

Answer to fourth party complaint

Answer to complaint in intervention

Comment or objection to petition

Compulsory counterclaim

Reply

Answer to counter counter claim

Answer to counter cross claim

A motion IS NOT A PLEADING

A position paper IS NOT A PLEADING

A memorandum IS NOT A PLEADING

Why?

Motion is an application for relief other than by a pleading (R15 S1)

Position Paper and Memorandum only narrate facts of the case, issues, no cause of action, no defenses, but only contain discussions

Initiatory Pleading Responsive Pleading

A pleading that initiates an action

A pleading that responds to allegations in the adverse partys pleading

Original complaint


Answer to original complaint


Cross claim

Third party complaint

4th party complaint


Petition

In special civil actions

In special proceedings

Counter counter claim

Counter cross claim

Answer to third party complaint

Answer to fourth party complaint

Answer to complaint in intervention

Comment or objection to petition

Compulsory counterclaim

Reply

Answer to counter counter claim

Answer to counter cross claim

Need to be verified, with certification against forum shopping, plus payment of docket fees

Except when otherwise provided by law or these Rules, need not be verified

No need for certification against forum shopping,

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and not need for payment of docket fees (Note: compulsory counterclaim, docket fees are suspended)

Instances when verification is needed:

Actionable document

Allegations of usury


Succeeding pleadings in special proceedings

Complaint- a pleading alleging plaintiffs cause and causes of action

FLOW OF CIVIL PROCEDURE

I. BARANGAY CONCILIATION PROCEEDINGS

General Rule with respect to Barangay Conciliation Proceedings:

S412, LGC

No complaint, petition, action or proceedings involving any matter within authority of the Lupon shall be filed or instituted directly or indirectly in court or in any other government office or adjudication unless there has been a confrontation between the parties before the Lupon Chairman or the pangkat, and that no conciliation or settlement has been reacehed as certified by lupon or pangkat chairman.

Exceptions to above rule:

S408, LGC

1. where one party is the government or any subdivision or instrumentality thereof

2. where one party is a public officer or employee, and the dispute relates to performance of his official functions

offenses punishable by imprisonment exceeding 1 year or a fine exceeding 5k pesos

3. offenses where there is no private offended party

4. where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon

5. disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to

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amicable settlement by an appropriate lupon

6. such other classes of disputes which the President may determine in the interest of justice

7. where one of the parties is a juridical entity

8. where accused is under police custody or detention

9. where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding

10. where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendent lite

where the action may otherwise be barred by the statute of limitations

11. in case of labor disputes

12. action to annul a judgment upon a compromise

13. CARL disputes

14. Disputes involving traditions of an indigenous cultural community

Does the Exclusive Original Jurisdiction of the RTC on actions involving those incapable of pecuniary estimation include provisional remedies as falling within the category?

No, because provisional remedies are merely ancillary to the main action. The category of actions incapable of pecuniary estimation refers only to main actions.

Purpose of Barangay Proceedings:

Reduce the number of litigations and prevent the deterioration of the quality of justice which has been brought about by indiscriminate filing of cases in the courts. (Zamora vs Heirs of Izquierdo)

Venue of Barangay Conciliation Proceedings:

S409, LGC

Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay

Those involving actual residents of different barangays within the same city or munipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant

All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated

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Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located

Rules on appearance before Barangay Proceedings:

S415, LGC

In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next of kin who are not lawyers.

Effect of Amicable Settlement and Arbitration Award:

S416, LGC

The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court.

However, this provision shall not apply to court cases settled by the lupon under last paragraph of S408 of this Code, in which case the compromise settlement agreed upon by the parties before the lupon shall be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court.

Rules on execution of judgment in Barangay Proceedings:

S417, LGC

The amicable settlement or arbitration award may be enforced by execution by the lupon within 6 months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.

Remedies of the parties in case of failure of amicable settlement before the lupon:

1. File the case before the proper court

2. Repudiate the agreement (S418, LGC)

3. File a petition before the MTC to nullify the agreement (basis?)

Remedy in case of failure to comply with Barangay Conciliation:

As defendant, file a motion to dismiss under R16 S1j on the ground that a condition precedent has not been complied with.

Motion to dismiss was granted, remedy of plaintiff?

Re file the case with the certification of having undergone Barangay conciliation proceedings, as the dismissal is without prejudice.

Motion to dismiss was denied, remedy of defendant?

R16 S4 states that if the motion is denied, movant shall file his answer within the balance of the period granted by Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event, computed from his receipt of the notice of the denial. Proceed with the trial, and when the decision is adverse, file an appeal raising as error the ground for denial of the motion to dismiss. When the denial is tainted with grave abuse

20



of discretion amounting to lack or excess of jurisdiction, file petition for certiorari under Rule 65.

** In between Barangay conciliation and filing of complaint, if real property is involved, plaintiff can file adverse claim over the property, or can file notice of lis pendens

Notice of Lis Pendens

- buyer beware

- Notice to buyer of existence of an adverse claim

o It is not a pleading

o There is need to register it with the register of deeds

II. COMPLAINT

Complaint (R6 S3)


Undergone Barangay Conciliation Proceedings

NOTE: If the case undergone Barangay conciliation proceedings first, there must be a specific allegation in the complaint that there is compliance with Barangay Conciliation proceedings

Pag wala, patay (?)- M2D S1j OR amend the complaint (?)

Jurisdiction

IF, court has no jurisdiction, M2D R16 S1b

(importance of knowing BP129 as amended by RA7691 Rules on Jurisdiction)

Granted- Refile

Denied- State R16 S4 (yung BUONG SAGOT na Gusto ni Boss Atty Tan)

Summary Procedure:

Cases covered:

1. All cases of FE and UD, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where AF are awarded, the same shall not exceed 20k

2. All other civil cases, except probate proceedings, where the total amount of the plaintiffs claim does not exceed 100k OMM or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC)

3. Civil cases not higher than 100k- Subject to the Rule on Small Claims

GENERAL RULE on Summary Procedure: No Motion to Dismiss is allowed (Prohibited Pleading)

EXCEPT:

1. Lack of jurisdiction over the subject matter of the claim

2. Lack of jurisdiction over the person of the defendant

3. Failure to comply with Barangay Conciliation Proceedings

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HOWEVER, with respect to SMALL CLAIMS CASES,

ABSOLUTE RULE: motion to dismiss is not allowed

Reason: defeats the purpose of Small Claims Proceedings

Venue

- Can be subject to stipulation of the parties

State: Rules on venue

R4 S1

Actions affecting title to or possession of real property or interest therein shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved or a portion thereof is situated.

Forcible entry and unlawful detainer actions shall be commenced and tried in the MTC of the municipality or city wherein the real property involved or a portion thereof is situated.

R4 S2

All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, where the defendant or any of the defendants resides, or in case of a non resident defendant he may be found at the election of the plaintiff.

R4 S3

If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found

EXCLUSIVITY OF VENUE- NOTE: Rule 4 SHALL NOT APPLY... if

R4 S4

1. The parties have validly agreed in writing

2. The agreement in writing was made before the filing of the action

3. Exclusive venue is stipulated

Atty Tans comment:

Rule 4 of the Rules of Court did not provide for MAY, but SHALL

Suppose, Real property is subject of dispute (real action). A lives in Pasay, B lives in Manila, the real property is located in Davao. Following Rule 4 S1, the suit should be filed in Davao, being the place where the property or portion thereof is situated. However, the parties can exclusively agree that the venue can be filed in Baguio, provided that the requisites of R4 S4 as to exclusivity of venue are complied with

So, it means that Rule 4 S1 can be the subject of agreement, and that the suit can be filed somewhere else other than what S1 provides? (Parang ok lang sana kung concern e personal action under R4 S2- can be subject of agreement, pero venue of REAL ACTION CAN BE SUBJECT OF AGREEMENT?! Labo ata...)

Seems there is a loophole in Rule 4

If the venue is permissive,

Then the venue is in addition to the rules on venue

Action was filed in the wrong venue:

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I will file motion to dismiss under R16 S1c on the ground that the venue is improperly laid

The motion was granted (court issues not a judgment but an ORDER). Counsel for plaintiff. Remedy?

I will refile the case in the court of the proper venue, because the order of dismissal is without prejudice (R16).

EXCEPT: if there exists grave abuse of discretion amounting to lack or excess of jurisdiction, Certiorari Rule 65 is the proper remedy

Motion to dismiss was denied. Remedy for defendant?

Rule 16 S4

File an answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion but not less than 5 days in any event, computed from his receiving of notice of denial. Then, go to trial. When the decision is adverse, file an appeal raising as error the denial of the motion to dismiss. If the denial of the motion is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, file petition for certiorari under Rule 65.

Motion to dismiss on the ground of improper venue IS A PROHIBITED PLEADING under the Rules on Summary Procedure, and more so in Small Claims

Remedy: raise the ground as an affirmative defense

Parties

(R3 S1)

Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term plaintiff may refer to the claiming party, the counterclaimant, cross claimant, or the 3rd 4th etc party plaintiff. The term defendant may refer to the original defending party, the defendant in the counterclaim, the cross defendant, or the 3rd 4th etc party defendant.

Plaintiff includes:

- Counter counterclaimant

- Counter cross claimant

Defendant includes:

- Defendant in counter counterclaim

- Defendant in counter cross claim

- An unwilling co plaintiff or one who should be joined as plaintiff but refuses to give consent thereto (R3 S10)

- A person necessary to a complete determination or settlement of the questions involved therein

Plaintiff

A person having an interest in the matter of the action or in obtaining the relief demanded

Defendant

A person claiming an interest in the controversy or the subject thereof adverse to the plaintiff

3 rd party plaintiff

A defending party who may with leave of court file against a third person not party to the action called the 3rd 4th etc party defendant a claim for contribution,

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indemnity, subrogation, or any other relief in respect of his opponents claim (R6 S11)

Cross Claimant

A party to an original action who has a claim 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 (R6 S8)

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, or the party entitled to the avails of the suit. Unless otherwise provided by law or these rules, every action must be prosecuted or defended in the name of the real party in interest(R3 S2)

Indispensable Party

An indispensable party is a party in interest without whom no final determination can be had of an action who shall be joined either as plaintiff or defendant (R3 S7)

Necessary Party

A necessary party is a party 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 (R3 S8)

Who is a proper party?

A proper Party is the same as a necessary party, a party who is not indispensable but who is 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 (R3 S8)

Party those presence is necessary to adjudicate the whole controversy, but those whose interests are so far separable that final decree can be made in their absence without affecting them (Quisumbing vs CA GR 93335 9/13/1990)

Representative party

R3 S3

Party acting in a fiduciary capacity. The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. It may be:

- Trustee of an express trust

- Guardian

- Executor

- Administrator

- A party authorized by law or these rules

o (agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal)

Pro Forma Party

Parties who are required to be joined as co parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule

EXAMPLE: Spouses- husband and wife shall sue or be sued jointly, except as provided by law (R3 S4)

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Quasi Party

Parties in whose behalf a class or representative suit is brought

Not a real party in interest: Remedy?

MOTION TO DISMISS on the ground of failure to state cause of action

Granted- refile

Denied:

I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then, proceed with the trial. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss.

However, if the denial is tainted with GAD amounting to lack or excess of jurisdiction, then I will file petition for certiorari under Rule 65.

JOINDER OF PARTIES

Requisites:

1. Right to relief arises out of the same transaction or series of transactions

2. Jurisdiction over plaintiffs and defendants can be obtained

3. There is question of law or fact common to all plaintiffs or defendants

4. Such joinder is not otherwise proscribed by the provisions of the rules on jurisdiction and venue

R3 S6

All persons in whom or against whom any right to relief in respect to or arising out of the same or series of transactions is alleged to exist, either jointly, severally, or in the alternative, may, except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.

Non joinder/Misjoinder of parties- not a ground for motion to dismiss

IF so, remedy:

Amendment of the pleading (Rule 3 in relation to Rule 10

Cause of Action

Act or omission by which a party violates a right of another (R2 S2)

What are the elements of a cause of action?

1. Plaintiff exercises a legal right

2. Correlative obligation the part of defendant to respect plaintiffs legal right

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3. Defendant violates plaintiffs legal right in a manner contrary to law, morals, good customs, public order, public policy

*STATE ALL CAUSES OF ACTION in the PLEADING!

IF NOT, remedy:

M2D R16 S1g- failure to state cause of action

GRANTED: refile; amend pleading

Denied:



Joinder of Causes of Action (R2 S5)

A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

A. That 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 and actions governed by Special Rules

Special Civil Actions:

1. Interpleader (R62)

2. Declaratory Relief (R63)

3. Review of Judgments and Final orders or resolutions of COMELEC, CoA (R64)

4. Certiorari, Prohibition, Mandamus (R65)

5. Quo Warranto (R66)

6. Expropriation (R67)

7. Foreclosure of Real Estate Mortgage (R68)

8. Partition (R69)

9. Forcible Entry and Unlawful Detainer (R70)

10. Contempt (R71)

INCLUDES: SPECIAL PROCEEDINGS (SEGTARHHCVJCDC +)

Sum of money + Foreclosure of Mortgage = CANNOT BE JOINED! (latter is a special civil action)

Hence, sue in alternative / either or

C. Where the claims pertain to different venues or jurisdictions, the joinder shall be allowed in the RTC provided that it falls within the jurisdiction of said court and the venue lies therein

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

If you are counsel for plaintiff, and the causes of action are not joined, remedy?

File a motion to amend the complaint (as a matter or right before a responsive pleading is filed, or with leave of court after a responsive pleading is filed if the amendment is substantialHere, di ko alam kung substantial to...) R10 S2 and 3

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Splitting a Single Cause of Action:

It is the act of dividing or indivisible cause of action into several causes of actions and bringing several actions thereon

R2 S3

A party may not institute more than one suit for a single cause of action

R2 S4

If 2 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 dismissal of the others.

Supposing, the plaintiff split a single cause of action, remedy?

As defendant, I will file a motion to dismiss on the ground of litis pendencia or res judicata (R16 S1 e or f)

GRANTED, remedy: APPEAL (dismissal is with prejudice)

DENIED:



PLEADING / PARTS OF A PLEADING

Rule 7 S1

The caption sets forth:

a. Name of the court

b. Title of the action

c. Docket number if assigned

The title of the action indicates the names of the parties. They shall 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.

R7 S2

The body of the pleading shall set forth its:

1. Designation

2. Allegation of the claims or defenses

3. Relief prayed for

4. Date of the pleading

Paragraph

The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified each of which shall contain a statement of a single act of circumstances so far as can be done with convenience.

A paragraph may be referred to by its number in all succeeding pleadings.

Headings

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When 2 or more causes of action are joined, the statement of the first shall be prefaced by the words first cause of action, of the second by second cause of action and so on for the others.

When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words answer to the second cause of action or answer to the second cause of action and so on; and when one or more paragraphs are addressed to several causes of action, they shall be prefaced by words to that effect.

Relief

The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just and equitable.

Date

Every pleading shall be dated

R7 S3

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 certification by him that

1. he has read the pleading,

2. that to the best of his knowledge, information or belief there is good ground to support it, and

3. 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 appear that the same was due to mere inadvertence and not intended for delay.

1. Counsel who deliberately files unsigned pleading

2. Signs a pleading in violation of these rule,

3. or alleges scandalous or indecent matter therein,

4. Or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action

R7 S4

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

1. the affiant has read the pleading

2. that the allegations therein are true and correct of his personal knowledge or based on authentic records

A pleading required to be verified which contains a verification based

1. on information and belief or

2. upon knowledge, information and belief

3. or lacks a proper verification

shall be treated as an unsigned pleading

Is a jurat a part of a pleading?

The general rule is that pleadings need not be verified. However, if the law or the Rules require that a pleading be verified, verification is done by way of affidavit. In an affidavit, there is a need for jurat to be present. Hence, in a verified pleading, a jurat becomes part of a pleading.

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What are the pleadings that need to be verified?

Petition for relief from judgment or order (R38 S3)

Petition for review from RTC to CA (R42 S1)

Petition for review from CTA and q-j agencies to the CA (R43 S5)

Appeal by certiorari from the CA to SC (R45 S4)

Petition for annulment of judgment or final orders and resolutions (R47 S4)

Complaint for injunction (R58 S4)

Application for appointment of receiver (R59 S1)

Application for support pendent lite (Rule 61 S1)

(all initiatory pleadings)

Original Complaint

Permissive Counterclaim

Cross Claim

3rd 4th etc party complaint


Petition

(all Special Civil Actions)

Interpleader (R62)

Declaratory Relief and Similar Remedies (R63)

Review of Judgments and Final Orders or

Resolutions of COMELEC, CoA (R64)

Petitions for certiorari, prohibition, mandamus (R65)

Quo Warranto (R66)

Expropriation (R67)

Foreclosure of Real Estate Mortgage (Rule 68)

Partition (R69)

Forcible Entry and Unlawful Detainer (R70)

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Contempt (R71)

(all Special Proceedings)

Settlement of Estate of Deceased (R73-90)

Escheat (R91)

Petition for guardianship of minors (AM __-__-__-SC)

Petition for guardianship of incompetents (R92-97)

Petition for custody of minors in relation to habeas corpus, AM __-__-__-SC)

Trusteeship (R98)

Petition for Domestic Adoption (Domestic Adoption Act, )

Petition for inter country adoption (Inter Country Adoption Act, )

Habeas Corpus (R102)

Writ of Amparo ( )

Writ of Habeas Data ( )

Change of Name (R103)

Clerical Error Act ( )

Cancellation or Correction of Entries in the Civil Registry (R108)

Voluntary Dissolution of Corporations (Corporation Code )

Judicial Approval of Voluntary Recognition of Minor Natural Children (Family Code,

)

Constitution of the Family Home (Family Code, )

Declaration of Absence and Presumptive

Death (R107 in relation to Civil and Family Code )

Petition for declaration of Nullity and Annulment of Marriage ( )

Petition for legal separation ( )

Pleadings not required be verified in the manner and form prescribed by S4 of this Rule but the same must be under oath:

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Denial of genuineness and due execution of actionable document (R8 S8)

Denial of allegations of usury (R8 S11)

Motion to set aside default order (R9 S3b)

Answer to written interrogatories (R25 S2)

Answer to request for admission (R26 S2)

The following pleadings or motion with affidavit or affidavits of merit:

Motion to postpone for absence of evidence (R30 S3)

Motion to postpone for illness of a party or counsel (R30 S4)

Motion for summary judgment or opposition thereto (R35 S1,2,3,5)

Motion for new trial on the ground of fraud, accident, mistake, or excusable negligence or opposition thereto (r37 S2)

Petition for relief from judgment or order (R38 S3)

Third party claim (R39 S16)

Proof required of a redemptioner (R39 S30)

Motion for preliminary attachment (R57 S3)

Motion for dissolution of preliminary injunction (R58 S6)

Application for writ of replevin (R60 S2)

Claim against estate of a decedent (R86 9)

Motion for new trial on the ground of newly discovered evidence in criminal cases (R121 S4)

Does the answer need to be verified?

As a general rule, answers need not be verified, save for following instances:

Answer to allegations of usury in a complaint to recover usurious interests (R8 S11)

When the answer is based on an actionable document (R8 S8)

Answer under the Revised Rules on Summary Procedure

Answer in Small Claims Cases

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If the pleading is not verified, as counsel for plaintiff, remedy?

File for judgment on the pleadings under Rule 34 S1, on the ground of admission of material allegations of the adverse partys pleadings. Ground is based on the fact that an answer is filed, but there is no genuine issue because the allegations are deemed admitted.

R34 S1

Grounds for judgment on the pleadings:

Answer fails to tender an issue

Answer admits the material allegations of the adverse partys pleading

Who can verify a pleading?

A party need not sign the verification.

The following may sign verification:

Party

Partys representative

Partys Lawyer

Any person who personally knows the truth of the facts alleged in the pleading

How about an authorized representative? Can he verify?

Yes, if armed with proper authority from the party (Through SPA?)

R7 S5- certification against forum shopping

Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading assisting a

claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith,

1. 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 claim or action is pending therein

2. if there is no such other pending action or claim, a complete statement of the present status thereof

3. if he should thereafter learn that the same or similar action or claim is filed or is pending, he shall report that fact within 5 days therefrom to the court where his aforesaid complaint or initiatory pleading has been filed

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

Submission of a false certification or non compliance with any of the undertakings therein shall constitute indirect contempt of court without prejudice to corresponding administrative and criminal actions.

If acts of party or counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice, direct contempt, and cause for administrative sanctions.

Forum Shopping:

Forum shopping is an act of malpractice of filing multiple suits in different courts either simultaneously or successively, involving the same parties, and asking the courts to rule on the same or

32



related causes and/or to grant the same or substantially the same relief

3 ways of committing forum shopping:

Filing multiple cases based on the same cause of action and with the same prayer the previous not having been resolved (litis pendencia)

Filing multiple cases based on the same cause of action and with the same prayer, the previous having been resolved with finality (res judicata)

Filing multiple cases based on same causes of action but with different prayers (splitting cause of action on the ground of litis pendencia or res judicata)

Pleadings requiring certification against forum shopping:


Original complaint


Cross claim

3rd 4th etc party complaint


Petition

What is stated in certification against forum shopping:

R7 S5

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:

1. 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

2. If there is such other pending claim or action, a complete statement of the present status thereof

3. 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 5 days therefrom to the court wherein his aforeseaid complaint or initiatory pleading has been filed

States the effects of: (R7 S5)

Failure to attach certification against forum shopping

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

Remedy is file motion to dismiss R16 S1j, and if granted, plaintiffs remedy is to refile the case with the required certification, unless if declared by the court as dismissal with prejudice, hence, remedy is appeal

Submission of a falser certification or non compliance of any of the undertakings therein

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Submission of a false certification or non compliance of any of the undertakings therein shall constitute indirect contempt of court without prejudice to corresponding administrative and criminal actions

Willful and deliberate forum shopping

If the acts of party or counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice, direct contempt, and cause for administrative sanctions.

Serves as FINAL ORDER, hence, appeal is the proper remedy if motion to dismiss under R16 S1j is granted

Remedies in case of failure to attach certification against forum shopping:

As counsel for defendant, file motion to dismiss under Rule 16 S1j on the ground that a condition precedent has not been complied with.

Motion to dismiss was granted, remedy?

As plaintiff, refile the case, on the ground that the dismissal is without prejudice.

If the plaintiff committed wilful and deliberate forum shopping, and the complaint was dismissed, remedy?

As plaintiff, i will file notice of appeal under Rule 41, because the dismissal is without prejudice, hence, in the nature of a final order.

Define, enumerate, each pleadings:

Complaint (R6 S3)


Counterclaim (R6 S6)

Any claim which a defending party may have against an opposing party

Compulsory Counterclaim (R6 S7)

A counterclaim which being cognizable by the regular courts of justice arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing partys claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction

Permissive Counterclaim (R6 S7)

A counterclaim which being cognizable by the regular courts of justice does not arise out of or is connected with the transaction or occurrence constituting the subject matter of the opposing partys claim and may require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction

Cross claim (R6 S8)

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

3rd 4 th etc party complaint (R6 S11)

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A claim that a defending party may, with leave of court, file against a person not a party to the action, called a 3rd 4th etc party defendant for contribution, indemnity, subrogation, or any other relief in respect of his opponents claim

Complaint in intervention (R19 S1)

Pleading filed by an intervenor if he answers a claim against either or all of the original parties

Answer in intervention (R19 S3)

Filed by intervenor if he unites with the defending party in resisting a claim against the latter

Answer (R6 S4)

Pleading in which a defending party sets forth his defenses

Counter counterclaim (R6 S9)

A counterclaim that may be asserted against an original counterclaimant

Counter crossclaim

A cross claim which may be filed against an original cross claimant

Counterclaim

Original complaint

A vs B

Counterclaim

Counter Counter Claim

Cross Claim

A vs B and C

(Original Complaint)

Cross Claim

Counter Cross Claim

Third Party Complaint

A vs B vs C (for CISA)

C is impleaded for CISA

Complaint In intervention

A vs B

C (or)

C wants to be impleaded in the action

THIRD PARTY COMPLAINT

COMPLAINT IN INTERVENTION

Rule 6 Rule 19

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A claim that a defending party may, with leave of court, file against a person not a party to the action, called a 3rd 4th etc party defendant for contribution, indemnity, subrogation, or any other relief in respect of his opponents claim

Pleading filed by an intervenor if he answers a claim against either or all of the original parties

Intervenor is any person who has a legal interest in the matter in ligitation, or in the success of either of the parties, or who has an interest against both parties, or who is so situated as to be adversely affected by the distribution or other disposition of property in the custody of the court or of an officer thereof

Third party is impleaded in the suit for CISA

Third party has legal interest and wants to be impleaded in the suit


Requires payment of docket fees

Permissive Counterclaim vs Compulsory Counterclaim (Simplified version)

Permissive CC Compulsory CC

Does not arise out of or is connected with the transaction or occurrence that is the subject matter of the opposing partys claim

Arises out of or is connected with the transaction or occurrence that is the subject matter of the opposing partys claim

Needs verification and certification against forum shopping

Not

Docket fee is required to be paid

Docket fees are suspended

Failure to file answer results in declaration of default

not

may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction

Does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction

Not barred even if not set up in the action

Barred if not set up in the action

Initiatory pleading Not an initiatory pleading

3PC vs Third party claim

Third Party Complaint Third Party Claim

Initiated by way of complaint

By way of affidavit

Filed before the court Filed before the sheriff

For CISA Terceria

Pleading Affidavit

Docket fees are required to be paid

Not

Lis Pendens vs Litis Pendencia

Lis Pendens Litis Pendencia

buyer beware Filing multiple suits in different courts involving same parties, same causes of action, same

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Notice to buyer of existence of an adverse claim

facts, same relief, the identity of the 2 cases such that any judgment that may be rendered in one case, regardless of which party is successful, would amount to res judicata in the other case

Notice A ground for motion to dismiss under Rule 16

Simultaneous or after filing of the original complaint/pleading asserting a claim,

PROVISIONAL REMEDIES may be availed of, ancillary to the main action for protection and preservation of rights while the main action is pending

PROVISIONAL REMEDIES

- Temporary, auxiliary, ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending

The following are the provisional remedies:

1. Preliminary Attachment (Rule 57)

2. Preliminary Injunction (Rule 58)

3. Receivership (Rule 59)

4. Replevin (Rule 60)

5. Support Pendente Lite (Rule 61)

NOTE: Not Exclusive!

Protection orders

Provisional orders

Production orders

Witness protection orders

See: RA 9262, Rules on Nullity/Annulment of Marriage/Legal Separation, Petition for Custody of Minors, Writ of Amparo, Writ of Habeas Data

NOTE ALSO:

Injunction and replevin can be main actions in themselves

PROVISIONAL REMEDIES

A. Preliminary Attachment (Rule 57)

When filed? (R57 S1)

At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of judgment that may be recovered in the following cases (See grounds)

Grounds for preliminary attachment (NOTE: TINATANONG SA BAR!)

Rule 57 S1

a. In an action for recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi contract, delict or quasi delict against a party who is about to depart from the Phils with intent to defraud his creditors

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b. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a wilful violation of duty

c. In an action to recover the possession of property unjustly or fraudulently taken, detained, or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person

d. In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof

e. In an action against a party who has removed or disposed of his property, or is about to do so with intent to defraud his creditors

f. In an action against a party who does not reside and is not found in the Phils, or on whom summons may be served by publication

Requirements: (Rule 57 S3)

1. By way of motion or by way of complaint

2. Verified application through Affidavit attached to motion or complaint

- Stating the grounds

- That there is no sufficient security

3. Allegation of the ground necessitating the need for preliminary attachment

4. Posting of bond in an amount to be determined by the court

How is attachment applied for?

By way of motion? Or by way of complaint?

EITHER

HOW?

At the commencement of the complaint

- By verified complaint

At any time before judgment

- By verified motion

Cany you apply for writ of attachment before the MTC?

YES.

In all instances?

YES. Because under Summary Procedure, not a prohibited pleading

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FE/UD- No

Amount 200k MM- yes

100k- no

Ordinary Civil Actions- yes

When is it necessary to issue summons?

In case of implementation of the preliminary attachment (3rd stage)

Stages:

- Publication

- Order/Execution

o BOTH ARE EX PARTE

- Implementation

o With Summons

How attached?

- Garnishment

- Levy on attachment

o Annotated on back of title, warning on subsequent buyer subject to outcome of the case

Remedy in case of issuance of writ of attachment:

R57 S12 and S13

S12- Motion to discharge attachment upon giving of counterbond

S13- Motion to quash the writ of attachment on the ff grounds:

- That the writ was improperly or irregularly issued or enforced

- That the bond is insufficient

If the attachment is excessive, the discharge shall be limited to the excess

Order of denial of motion to quash:

- INTERLOCUTORY, hence,

o M4R R65 S4

o Certiorari R65 S1, R41 S1b

Purpose of the bond:

- To answer for damages incurred by the adverse party in case writ of attachment is improperly or irregularly enforced

Writ of Preliminary Attachment

Writ of Replevin

Covers real or personal property

Covers only personal property

At the commencement of the action or at any time before entry of judgment

Commencement of the action or at any time before answer

Amount of the bond is the value of the obligation (fixed by the court)

Amount of the bond is double the amount of the personal property

May be resorted to even if property is in the possession of a third person

Can be sought only when defendant is in actual possession of the property

B. Preliminary Injunction (Rule 58)

Injunction

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- Judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act

Preliminary Injunction

- An order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court, agency, or a person to refrain a particular act or acts

Preliminary Mandatory Injunction

- An order requiring the performance of a particular act or acts

Denial- interlocutory

- Remedy: certiorari

If FJ- appeal

Can preliminary injunction be issued ex parte?

NO (?). TRO- yes

Writ of preliminary injunction

TRO

A writ granted at any stage of action or proceeding prior to the judgment or final order, requiring a party or a court, agency or person from a particular act or acts. It may also require performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction

An order to restrain particular act or acts of a party for a limited period of time

GROUNDS for preliminary injunction (R58 S3):

a. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually

b. That the commission, continuance, or non performance of the act or acts complained of during the litigation would probably work injustice to the applicant, or

c. That a party, court, agency, or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual

Irreparable damage and injury

- Of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy

How do you avail?

By way of MOTION or by way of VERIFIED COMPLAINT

IF by verified complaint, at the commencement of the action or before entry of judgment, INCORPORATED IN THE BODY OF THE COMPLAINT

If by motion, then by an application for relief complying with the Rules on Motion:

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Notes

civil procedure consolidated notes updated[1]

Documents

special rules

civil procedure rules

special civil actions

rules of procedure

special proceedings

civil procedurenotes

law rule

ordinary civil actions