Class Notes for Finals Dean Leonen

Right-duty correlative
*the right-duty correlative gives rise to a COA e.g. if one has a right under a prestation provided by a contract, then it gets BREACHED (i.e. the duty was not performed), then the party whose right is breached 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)

OVERVIEW of CIVPRO

RELIEF vs. REMEDY

2 types of remedy
1. ACTION: WON there is a breach of a right-duty correlative a. b. Criminal actions Civil Actions i. ii. 2. Ordinary 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

Alternative Dispute Settlement

?
E.g. Ford Motors entered in a lease agreement w/ RP for 5yrs. But Ford only wants to stay for 4yrs. Are the parties required to undergo ADR? Under KATARUNGANG PAMBARANGAY: NO. 1 of the parties is a Govt subdivision Under ADR LAW? If theres an arbitration agreement in the Lease agreement providing for such, yes

1|Cha

Mendoza_Civil

Procedure_Ordinary

Civil

Actions

Class Notes for Finals Dean Leonen

(corpo? Questions) Can a fully foreign-owned corporation produce cars in RP? NO. Art12.2 Can a corporation fully owned by foreigners BUT REGISTERED IN RP produce cars in RP? YES What about MRT (owned by foreigner, leased to RP)? *Pede to under transpo ehI forgot na why

Know how to craft ARBITRATION CLAUSE: Study ADR laws

? 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

*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>

What are the procedures for ADR?

1. 2.

Arbitration: voluntary dispute resolution process wherein, in accordance w/ agreement of parties, the dispute is resolved by rendering an AWARD Mediation: voluntary process in which a mediator, selected by the disputing parties, facilitates communicationand assist the parties in reaching a voluntary agreement re: dispute Conciliation

Arbitration vs. Adjudication

3.

*where arbitration would be conducted -usually apply law where the arbitration occurs -depends on the bargaining strength of another party 2|Cha Mendoza_Civil Procedure_Ordinary Civil Actions

Early neutral evaluation: parties and lawyers are brought together early in pretrial phase to present summaries of their cases and receive a nonbinding assessment by an experienced neutral person w/ expertise in the subject matter of dispute *status of agreement to submit to ENE: contractual and consensual ?is it mandatory? NO What if parties agree to a ENE b4 adjudication? Valid, forms part of contract Can it be different from initial contract? Yes Who chooses the evaluator? Law is silent *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 SENIOR DECISION MAKERS, parties seek negotiated settlement 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? If no arbitration clause: may still undergo ADR (pretrial stage conducts ADR) If theres arbitration clause: arbitrate -this would include agreement as to the law applicable, court that would have jurisdiction, the arbitrators What if no agreement as to who is going to be the ARBITRATOR? Default: parties agree If none:

4.

Class Notes for Finals Dean Leonen

The institution: if institutional arbitration If ADHOC: IBP president appoints 3. If under UNCITRAL MODEL LAW: appointed court may choose ?What happens in ENE and Minitrial? What law would apply? The parties may determine consequences when there is a dispute provide proviso as there is no governing rule if no proviso, badly crafted, NULL & VOID? NO. courts would interpret it (*parties intended to undergo ADR, Malabo lang pagkacraft) -In ENE & MT, lawyers have opportunity to craft the rules that would govern MEDIATION, Katarungang pambarangay GR: all civil cases must undergo katarungang pambarangay X: parties agree in writing that jurisdiction of dispute is not under katarungang pambarangay? when party requests for provisional remedies KATARUNGANG PAMBARANGAY: -When undergo: basically all civil cases X: seven exceptions Sec108, LGC: subj matter of Amicable settlement GR: all disputes parties ACTUALLY RESIDING in same CITY/MUNICIPALITY X: 1 party = govt/subd 1 party = public officer/ee + dispute related to performance of official functions Offense punishale by IMPRISONMENT > 1YR FINE > P5K Offenses w/o private offended party (sino magpupunta brgy???) Real property in different cities X: parties agree Parties actually reside in brgys of DIFF CITIES/MUNICIPALITIES X: brgy units adjoin each other + parties agree Disputes determined by the President In interest of justice OR upon recommendation by SOJ -lawyers may be present in Katarungang Pambarangay Proceedings but cannot speak for the parties they may give advice to the parties it is not prohibited by LGC What happens if you put Arbitration proceedings? Go to KB? No, contract governs! Pangkat still conciliation proceedings The assumption is that when the chair cant do it, 3 persons may be able to do it! (Fallacy daw sabi ni sir!) END: Amicable settlement a special kind of contract arising from the settlement 1. 2. -Enforcement: apply for a writ of execution (it has a nature of a final judgment) w/n 6m: before lupon after 6m: Municipal court IF NO AGREEMENT: lupon chair issues a CERTIFICATE TO FILE ACTION -certificate to file action attached to the complain REMEDY for assailing AMICABLE SETTLEMENT: REPUDIATION OF THE SETTLEMENT w/n10d after the date of settlement -grounds: FVI -how: sworn statement/affidavit filed w/ lupon chair -condition precedent: w/o it, action could be dismissed CAN MEDIATION BE COMPULSORY? *Mediation is compulsory in KB parties should undergo KB or else action could be dismissed (condition precedent) BUT GR: mediation is not compulsory (ADR Law: voluntary process nga eh) MEDIATION vs. ARBITRATION vs. CONTRACT Mediation: Mediated settlement (ADR Law) Arbitration: Arbitrational Award (ADR Law, Domestic Arb Law) KB: Amicable Settlement (LGC) Contract: parties themselves entered it

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!)

Okay notes for clarificationSUMMARY

Result Source process Enforcem Amicable settlement LGC KB conciliation w/n6m: enforce Arbitral Award LGC ADR law Domestic Arb Arbitration If under KB: Mediated Settlement ADR Law Mediation, negotiation Petition for Contract parties Agreement of parties Action for

3|Cha

Mendoza_Civil

Procedure_Ordinary

Civil

Actions

Class Notes for Finals Dean Leonen

ent before lupon after 6m: enforce by Motion (?) for execution before MTC w/n6m: enforce before lupon after 6m: enforce by Motion (?) for execution before MTC If under ADR Law: DOMESTIC: Motion for confirmation INTL: -covered by NY convention Motion for recognition and enforcement -not covered by NY convention Follow ROC so motion for writ of execution? -if foreign judgment: Considered as foreing arbitral award If under CiAC: No need to confirm, just apply for execution If under KB: File petition to nullify arbitral award b4 MTC (based on FVI) If Domestic Arb law: Motion to vacate before RTC *Award procured through corruption, fraud *evident partiality on enforcement of settlement agreement before RTC specific performance before RTC? the part of the arbs *arbs guilty of misconduct *Arbs exceeded powers Appealabl e? No? but it has a force and effect of a final judgment of a court, so isnt it appealable?
VS .

Judgment confirming award/recogni zing and enforcing award may be appealed

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 Jurisdiction is conferred by law. Law is created by the Legislature. So parties, and the courts cannot change it by agreement or waiver. -lack of jurisdiction over the res is a MTD ground that can be raised anytime, even after appeal No COA COA is an act or omission by w/c a party violates the right of another -theres a rightduty correlative involved, as compared to the other grounds Failure to state a COA There may be a COA, but the plaintiff failed to properly allege it in the pleading. UF that establish the right-duty correlative absent in the pleading Condition precedent Law mandates that an act/procedure should be complied first before filing of an action -there may be a COA and the court may have jurisdiction but the action cannot be taken cognizance yet since theres a step missing

Remedies against

Repudiation w/n10d after date of settlement sworn statement/affid avit filed before lupon chair lupon chair would issue certificate to file action (based on FVI)

ADR law silent

Action to annul contract?

Examples of Condition Precedents 1. KB should obtain certificate to file action 2. If contract provides for arbitration agreement 3. Exhaustion of administrative remedies 4. In Petition for CPM (R65), need to exhaust all remedies available first ?How to take disputes out of KB? Ask for provisional remedies Civil Actions

4|Cha

Mendoza_Civil

Procedure_Ordinary

Class Notes for Finals Dean Leonen

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 Construction CIAC law EO 1008 Construction Disputes, even if commercial and international in nature Same exceptions 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

3. 4. 5. 6. 7. 8.

Validity of marriage Any ground for Legal Separation Jurisdiction of courts Future Legitime Criminal liability

Venue

Place where institution located? Institution has panel of mediators

Who appoints mediators/ arbs

1. agreement of parties 2. place convenient and appropriate Agreement of parties

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 arbitrator d. arbitrators fail to appoint 3rd arbitrator e. agreement silent as to # of arbitrator f. arbitrator initially appointed by RTC declines/fails to duly accept the appointment English and Filipino Maybe. Law is silent but ADR law sabi oo

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

Language Confidentia l? 5|Cha

Law is silent Yes Unless:

1. 2. Maybe. Law is silent but ADR law sabi oo Yup

Agreement English

Mendoza_Civil

Procedure_Ordinary

Civil

Actions

Class Notes for Finals Dean Leonen

1. parties agree in authenticate record 2. available to public 3. threats 4. plan crimes 5. abuse, neglect, abandonment, exploitation 6. malpractice of med/party/nonparty 7. Need for evidence heavier, esp: a. hearing in camera b. crime or felony c. reform or ability to avoid liability Conflict of interest?

Challenge for med/arbs Enforceme nt

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?

Before arbiters first then to the court appointed

No need to be confirmed by RTC so just execute?

Petition before RTC -may be deposited to RTC COC

Vacation

Law silent

What parties can agree on

Since ADR law silent, could probably agree on anything as long as not contrary to law 1. agreement to publish mediation proceedings 2. agreement to subject parties to institutional rules 3. appointment of mediators 4. number of mediators

*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 1. agreement to subject dispute to other forms of ADR 2. number of arbs 3. method for naming arbitrators 4. procedure 5. time w/n w/c arbitral award should be made 6. venue for arbitration 7. language to be used

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

Agreement that mediator act as arbitrator and vice versa

1. 2. 3. 4. 5.

agreement to publish proceedings (for confidentiality) procedure to subject parties to institutional rules venue language to be used appoint court that would be competent to a. appoint 3rd arbiter b. decide on challenges on arbitrator

6|Cha

Mendoza_Civil

Procedure_Ordinary

Civil

Actions

Class Notes for Finals Dean Leonen

decide on termination of mandate of arbitrator for impossibility to act d. decide on jurisdiction of arbitral tribunal e. vacate/set aside arbitral award 6. # of arbitrators 7. Procedure for appointing arbitrators 8. Qualification of arbitrator 9. Procedure for challenging an arbitrator 10. How arbitration proceedings conducted (how initiate, rules of procedure, how to decide) 11. Law to be applied by the arbitral tribunal 12. Period w/n which arbitral tribunal would decide 13. Assessment of expenses ***ooops! Recognition of arbitral awards are under Special proceedings! So NOT AN ACTIONnot sure if its a motion though c.

Jurisdiction
JAVIER
The court would not take cognizance of a case under the exclusive original jurisdiction of an administrative agency vested by law (primary administrative jurisdiction)
VS.

CA

Primary Admistrative Jurisdiciton vs. Exhaustion of Administrative Remedies

TIJAM

VS .

SIBONGHANOY

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

7|Cha

Mendoza_Civil

Procedure_Ordinary

Civil

Actions

Class Notes for Finals Dean Leonen

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 value of estate 8. all other cases, Demand exclusive of IDALC MM: exceeds P400k outside MM: exceeds P300k (regardless of assessed value of property) judgment on the question of ownership, when necessary to resolve the issue of possession, would not be conclusive *cadastral *land registration cases When RTC judges not available: >bail application >habeas corpus cases

BP 129
Original Jurisdict ion SC CPMHQ 1. Certiorari 2. Prohibition 3. Mandamus 4. Habeas Corpus 5. Quo Warranto 6. actions affecting ambassadors, public ministers and consuls None not a trial court CA CPMHQA 1. Certiorari 2. Prohibition 3. Mandamus 4. Habeas Corpus 5. Quo Warranto 6. Auxiliary Writs WON in aid of its appellate jurisdiction Actions for annulment of RTC JFOR RTC CPMQHI 1. Certiorari 2. Prohibition 3. Mandamus 4. Habeas Corpus 5. Quo Warranto 6. Injunction effective w/n respective regions 7. actions affecting ambassadors and other public ministers and consuls 1. incapable of pecuniary estimation 2. title to or possession of real property or any interest therein ASSESSED VALUE MM: exceeds 50k Outside MM: exceeds20k 3. all actions involving contract of marriage and marital relations 4. all civil actions and special proceedings falling w/n the EOJ of a JDRC CAR 5.all actions not w/n exclusive jurisdiction of any court, tribunal, etc. (CATCH-ALL COURT) 6. admiralty & maritime, claim or demand 7. Probate, Gross MTC Sorrycant issue writs!

Special Jurisdict ion

--

--

EOJ Civil Cases

1. Probate proceedings (gross estate value) 2. admiralty proceedings (demand) 3. all other actions (demand) MM: does not exceed 400k Outside MM: does not exceed 300k 4. title to or possession of real property or any interest therein (assessed value): does not exceed Outside MM: 20k MM: 50k (exclusive of IDALC) 6. forcible entry and unlawful detainer Civil Actions

Appellat e Jurisdict ion

(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

--

Jurisdiction over the res

-determined by law

8|Cha

Mendoza_Civil

Procedure_Ordinary

Class Notes for Finals Dean Leonen

*Jurisdiction is determined from the allegations in the complaint (as was held in RIVERA VS. SANTIAGO and DAR VS. C UENCA) for orderly administration of justice (regardless if the allegations are true or not) *Jurisdiction over the res = jurisdiction over the subject matter COA vs. Subject of the complaint: COA is the normative while the subject of the complaint is the thing over which the right-duty correlative occurs e.g. COA: right to peaceful possession of land which is breached subject matter: land *determination of COA: if theres a right-duty correlative breached 2. Permissive counterclaims, TPC, similar pleadings (complaints after initiatory pleading): pay kulang w/n reasonable time but in no case beyond applicable prescriptive period 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

3.

Re: jurisdiction of MTC over FEUD ORTIGAS VS. CA

MTC has no jurisdiction over issues of ownership: can only rule on the issue of possession

BARANGAY SAN ROQUE

VS .

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

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???

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

Re: Tenancy problem RIVERA VS. SANTIAGO

Mere invocation of agricultural tenancy does not ipso facto divest the MTC of jurisdiction over a complaint for ejectment when tenancy is averred as a defense and IF shown prima facie to be the real issue, the MTC must dismiss the case for lack of jurisdiction. Under RA 6657, it is the DAR that has authority to hear and decide when tenancy is legitimately involved. Requisites for Tenancy: 1. Parties: landowner and tenant 2. Subj: agricultural Land 3. Mutual consent to tenancy 4. Purpose of relation: agricultural Production 5. Personal cultivation by tenant 6. Sharing of harvest

Jurisdiction over the person

Of the plaintiff: when plaintiff files action Of the defendant: through a. summons b. voluntary appearance

DAR

MANCHESTER DEVT

VS .

CA

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

The payment of docket fees is a mandatory requirement for the court to acquire jurisdiction over the action

SOUTHERN CROSS

SUN INSURANCE

VS .

ASUNCION

-bifurcating of appeals is frowned upon unless the law provides otherwise

VS .

CEMENT MANUFACTURERS

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

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

9|Cha

Mendoza_Civil

Procedure_Ordinary

Civil

Actions

Class Notes for Finals Dean Leonen

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 -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

BACOLOD

VS.

SMB

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 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!)

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 10 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions

Class Notes for Finals Dean Leonen

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 R3.11 MISJOINDER and NONJOINDER of PARTIES: not a ground for MTD but for severance or amendment of complaint to add parties R3.12 CLASS SUIT 1. Subject matter of controversy is one OF COMMON INTEREST TO MANY PERSONS 2. Persons interested SO NUMEROUS THAT IT IS IMPRACTICAL TO JOIN THEM ALL AS PARTIES 3. # of parties representing SUFFICIENTLY NUMEROUS AND REPRESENTATIVE as to fully protect the interests of all concerned *any party in interest shall have RIGHT TO INTERVENE to protect his interest >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

Venue
(Rule 4) R4.1 Real Actions actions affecting title to or possession of real property, or interest therein -court w/c has jurisdiction over the area wherein the real property involved, or a portion thereof is situated -FEUD: MTC w/c has jurisdiction over the area wherein property located R4.2 Personal Actions all other actions -commenced and tried where 1. plaintiff or principal plaintiffs reside 2. defendant or any of the principal defendant resides 3. non-resident defendant: where he may be found -election of plaintiff R4.3 Venue vs. nonresidents -defendants: nonresident + not found in RP -action affects the >personal status of the plaintiff >any property of defendant located in RP VENUE: 1. Court where plaintiff resides 2. court where any portion of the defendants property may be found R4.4 RULES on venue not applicable when 1. Law specifies venue 2. Parties validly agreed in writing before filing of action of EXCLUSIVE VENUE (should always contain EXCLUSIVE!) ? When is venue a matter of jurisdiction? When WARSAW CONVENTION APPLIES. In the Warsaw convention, the venue where the action may be brought are limited to the following: 1. Domicile of airline 2. Principal place of business 3. Place of business through which contract was made 4. Final destination However, since Warsaw Convention is a treaty, adopted as a law in the Philippines by the Incorporation Clause, it specifies the rule on exclusive venue in accordance with the first situation under R4.4. Venue (R4) Real Actions: action affecting title to or possession of real property or any interest therein Personal Actions: all other actions Summons (R14) Action in Rem: Actions, the judgment of which affects the whole world.

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

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

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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 e. Fraud, Mistake: stated w/ particularity f. MIKOCM (Malice, Intent, Knowledge, other conditions of the mind): general averment g. Earlier decisions as part of UF: generally aver, no need to show jurisdiction h. ACTIONABLE DOCUMENT: (1) Substance of instrument/document set forth in the pleading (2) Attach Original as exhibit (3) Attach Copy as exhibit (4) Copy set forth in the pleading i. Official document/act: aver that it was issued in compliance w/law 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;

Pleadings
Pleadings -written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment Pleadings Motions Orders Contains the claims Contains any relief not by -may be interlocutory or and defenses of the a pleading final orders parties for appropriate -relief asked merely -from the court judgment from the interlocutory: does not court asks for final resolve the case with relief finality

(Rule 6)

Complaint

-pleading alleging the plaintiffs COA/s -states name and address of the parties

Okay, draft a complaint:

Republic of the Philippines (Court) (judicial Region of the court) (Branch, City where court found) Plaintiffs name, Plaintiff Vs. Defendants name, Defendant x--------------------------------x Civil Case No. (keep blank) FOR: (characterization of the action)

(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. 2.

Plaintiff is (then aver UF relevant for the capacity of the party to sue) and a resident of (specify address) 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) 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! Mendoza_Civil Procedure_Ordinary Civil Actions

3.

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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). (sgd) Name of Notary Public Notary Public Until (date of validity) PTR no. (for tax purposes) Issued at (place where issued) On (date when issued) (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! -CNFS always present in initiatory pleadings ? What if pleading failed to aver UF? MTD based on failure to state COA

Motion for Bill of Particulars

-when: before responding to a pleading (so pede before filing answer to reply to a complaint, pede before filing a reply to respond to an answer) -Ground: More definite statement, matters not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading -Contents: should point out 1. defects complained of: 2. paragraphs wherein the defects are contained; 3. details desired Court may either 1. Deny it: should file responsive pleading w/n time remaining, which should not be less than 5d 2. Grant it: opposing party should comply with order w/n 10d OR ELSE a. Court orders striking out of pleading b. Court would make order which it deems just 3. Allow parties opportunity to be heard *filing of MBP suspends the period to file responsive pleading ONLY IF IT IS GRANTED. The least it could do if denied would be to add 5 days min to the period wherein which one could file responsive pleading.

Doc No. Page No. Book No. Series of 2009.

*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

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).

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So draft an answer! Republic of the Philippines (court) (judicial region) Branch (#), (Location) Plaintiffs name, Plaintiff Vs. Defendants name, Defendant x---------------------------x Civil Case No fill out # For: characterization of the action) 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) 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. (sgd) Counsel Roll # PTR #, date IBP Roll #, date MCLE compliance #, date Email and cellphone number Explanation (if service was made through registered mail if personal service, omit explanation, not sure though if there should be affidavit of service then jurat kasi sa example ni sir sa class meron pa ring affidavit if personal service) The foregoing Answer for the defendant is being filed with the Honorable Court and served on the adverse counsel (not an initiatory pleading so no need to serve to the party) by registered mail due to the limited number of messengers of the Office. (sgd) counsel Republic of the Philippines) City of _______________) s.s. Affidavit (of service)

Answer Defendant, by counsel, respectfully state that: (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) Admissions/Denials

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:

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 #

5.

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Class Notes for Finals Dean Leonen

6. With instructions to post master to return to sender after 10d if undelivered. Book No. Series of 2009. Defects in Answer, effects *Failure to specifically deny: deemed as an admission *failure to plead claims and defenses existent at that time: deemed waived *compulsory counterclaim not set up: barred *failure to take under oath (if actionable doc): Deemed as general denial, so deemed as admission Verification: checklist as enumerated above -should not contain: based on a. information and belief b. information, knowledge and belief -should confirm as true to ones personal knowledge! If you dont personally know it, then it is a belief. Or else deemed as an unsigned pleading: no legal effect What needs to be verified: 1. Answer to complaint or counterclaim assailing an actionable document 2. Petition for Depositions pending action 3. Petition for relief from JFOP (R38) 4. Petition for review: a. RTC to CA b. QJA to CA c. R45 Certiorari 5. Action for annulment of JFOR of RTC 6. Complaints for application of (provisional remedies a. Injunction b. Receivership c. Support Pendente LIte 7. Special Civil Actions a. Petition to review: COA/COMELEC to SC b. CPM c. Quo Warranto d. Expropriation e. FEUD f. Indirect Contempt 8. ALL Complaints subject to the Rules on Summary Procedure *SCA for Forcible entry or unlawful detainer irrespective of amt of damages or unpaid rentals OR *other cases where the TOTAL AMT claimed DOES NOT EXCEED P100k (outside MM) or P200k (w/n MM)

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 (jurat I dont know if this would still be included since meron na sa baba. Sa bagay, ibang CTC NO.) Subscribed and Sworn before me this (date), affiant exhibiting to me his Community Tax Certificate No. (specify) issued at (place) on (date). (sgd) Notary Public Notary Public Until PTR #________ Issued at _____ On _____

Doc No. Page No. Book No. Series of 2009.

Republic of the Philippines) City of ________________) s.s.

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.

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/

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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 4. If filed in a separate action, the defense that would be used to defeat the claim would be the same (same evidence) logical relationship test (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

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.

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.

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) ?What if appealed judgment on TPC then the main case was sought to be enforced: -Cannot enforce TPC vs. the defendant who appealed TPC judgment: TPC makes another person aside from defendant guilty. If main action sought to be enforced against the defendant, then he may be made to pay without recourse to the TPdefendant. ---di ba baligtad? If the main action is appealed, cannot enforce judgment on the TPC because the liability of the TPdefendant would depend on WON the plaintiff has a valid claim in the main action??? *Remedies when TPC denied: Appeal judgment denying TPC

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 16 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions w/n 15d w/n30d after SERVICE OF SUMMONS after receipt

*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

Class Notes for Finals Dean Leonen

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 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 Personal service 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 residing therein (NOTE: under service of summons, this is substituted service) Ordinary mail Registered mail a.Deposited in post office b.In a sealed envelope c. Plaintly addressed to the party or counsel at office or place of residence if known d.With postage fully prepaid e.Evidenced by registry receipt # f. With instructions to post master to return to sender after 10d if undelivered. Completeness Actual delivery 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

w/n15d w/n10d w/n10d w/n15d w/n 30d

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

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

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 Manner of filing Personal How present ORIGINAL COPIES, plainly indicated as such to COC -COC would endorse on the pleading a. Date b. Hour of filing Registered mail(not by ordinary mail) : date of mailing = date of filing *As shown in the post office stamp on the envelope *OR by the registry receipt kept by the party Proof of Filing In the record, the copy of the pleading is included IF NOT IN THE RECORD: >written/stamped acknowledgement on copy of the same (which should be w/ the counsel) Registry Receipt AND AFFIDAVIT OF PERSON WHO DID THE MAILING Contains: *date *place where depositing post office *plainly addressed to the parties *with postage fully prepaid *with instructions to return to sender 10 if undelivered.

REGISTERED mail

Upon expiration of 10d after mailing 1. actual receipt by addressee 2. after 5d from date sender received 1st notice from postmaster

Affidavit of person who mailed 1. affidavit of person who caused registered mail 2. written admission of party who received it (signature on copy) 3. registry receipt and registry return card

SERVICE
-act of providing a party w/ a copy of the pleading/paper concerned -made to counsel of the other party 17 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions

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

Class Notes for Finals Dean Leonen Amendment and Supplemental Pleadings
Amendment: add or strike out allegation in the pleading 1. As a matter of right -1x only -at any time before a responsive pleading is filed (or, if reply, w/n10d after service of reply wala nang magrereply eh) 2. By leave of court -w/leave of court -after responsive pleading already filed -no intent to delay 3. Amendment to conform to presentation of evidence -party presents evidence not w/n the issues in the pleadings -the opposing party consents to the presentation (express or implied) -treat as if it was raised in the pleadings and may amend pleading AT ANY TIME, EVEN AFTER JUDGMENT) -if evidence objected to for not being made in the pleadings, court may still allow presentation of evidence and amendment when ends of substantial justice may be served (may put on record CONTINUING OBJECTION) -motion to amend filed -so w/ notice and hearing *EFFECT OF AMENDMENT: supersedes the pleading that it amends -admissions in the superseded pleading may still be used as evidence vs the pleader -claims and offenses not incorporated are deemed waived *REMEDY if amendment not allowed: APPEAL, not SCA for certiorari Supplement -also upon motion, so may notice and hearing -set forth TOE (transactions, occurrences, events) which have happened since the date of the pleading sought to be supplemented -EFFECT: supplies deficiencies in aid of an original pleading, but not entirely substitute the latter the original pleading still exists side by side with the supplement to the pleadings

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

VS.

PRESIDING JUDGE

When a motion to intervene has already been granted, as shown by an Order from the court, the intervenor is already a party to the proceeding and therefore has the right to all the notices and processes from the court. When the original parties enter an agreement, with the intervenor not made a party, to dismiss the case, the intervenor not being a privy to the said agreement is not bound by the dismissal and may continue his action of intervention.

Summons
Definition: a coercive order issued by the court to obtain defendant WHO issues: COC Who serves: a. sheriff b. his deputy c. person authorized by the court HOW SERVED Action in personam Natural 1. personal service persons -deliver summons + copy of complaint -defendant to defendant who may be: -tender summons + copy of complaint 1. defendant 2. substituted service 2. prisoner -only resorted to when: 3. entity w/o a. justifiable causes juridical b. cannot serve defendant w/n personality reasonable time 4. minors c. all reasonable diligent efforts have and been exerted incompetent -HOW: leave copies at s *defendants residence: person then 5. resident residing therein w/sufficient age and temporarily discretion jurisdiction over the

Amended complaint differenc e effect

Facts available, exists before Supersedes -may be used as proof (judicial admission) -claims and defenses not set up waived Formal -clerical and typo -period: forever Substantial a. As a matter of right (b4 filing responsive pleading) b. With leave of court (after responsive pleading)

Supplemented complaint
New matters arised after service of pleading sought to be supplemented Merely adds to the pleading

Kinds

Action in rem 1. personal service (see left) 2. substituted service 3. extraterritorial service -only for the following situations: actions involve a. personal status of plaintiff b. relates to, or the subject of w/c, is property w/n RP in w/c defendant has claim or lien, actual or contingent c. relief demanded consists of excluding the

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out of RP 6. defendant cannot be found + does not reside in RP 7. defendant unknown *OR office/regular place of business: person in charge thereof FOR 7 (unknown defendant) -w/leave of court, service by publication in a newspaper of general circulation FOR 5 and 6 extraterritorial service -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 1. personal service on (6 persons only list exclusive): a. President b. GM c. Managing Partner d. Corporate Secretary e. Corporate Treasurer f. In house counsel - no substituted service! Personal service ON (successive) 1. resident agent designated in accordance w/law 2. government official designated by law 3. any of the officers or agents w/n RP RP: Solgen LGU: executive head, other officer/s as law or court may direct defendant from any interest in the property in RP d. property of defendant in RP attached w/n RP 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.

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) (judicial region) Branch #, Location Plaintiffs name, Plaintiff Vs. Defendants name, Defendant x----------------------x

Juridical persons 1. DOMESTIC CORP (corporation s, partnership, association organized under RP Laws) 2. FPJE

Service by publication? Extraterritorial? But domestic nga eh so din a sha nonresident+not found in RP

Extraterritorial service

civil case No (filled up) For (description)

3. Public Corp

Hmmm

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

***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

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Class Notes for Finals Dean Leonen 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 GR: HEARING REQUIRED 1. 2.

X: (other dismissals of action)

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 3. 17.2 MTD on the plaintiffs instance (17.1 kasi notice of dismissal lang) 4. Revised Rules on Summary Procedure 5. 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 IF GROUNDS FOR MTD PLEADED AS AFFIRMATIVE DEFENSE -BUT HERE, hearing not required w/n courts discretion -if complaint dismissed but IN ANSWER, claimed a Counterclaim (silent if compulsory or not): cclaim could still be heard

Dismissal of Actions Motion to Dismiss

-ON THE PART OF DEFENDANT ONLY When : during period BUT BEFORE FILING responsive pleading GROUNDS: 10 1. lack of jurisdiction over the res -not in accordance w/BP129 2. lack of jurisdiction over the person of the defendant -improper service of summons 3. venue improperly laid -either did not follow rules under Rule 4 or exclusive venue not followed 4. plaintiff has no legal capacity to sue -not authorized to sue, no capacity to sue under Rule 3, not a real party in interest 5. litis pendentia a. identity of parties (substantial) b. substantial identity of COA and relief sought, relief founded on same facts c. identity: judgment on any one would amount to res judicata in the other case 6. res judicata or statute of limitations a. previous final judgment b. court had jurisdiction over the subject matter and on the parties c. judgment on the merits (so dismissal w/prejudice) d. identity of COA, subject matter and (substantially) of parties 7. failure to state COA -pleading contains insufficient UF on which COA is based 8. payment, waiver, abandonment, extinguishment (PWAE) 9. claim is unenforceable under statute of frauds 10. failure to comply w/ condition precedent 20 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions

Dismissal on part of plaintiff under R17

17.1 Notice of defendant -b4 SERVICE of answer Or MSJ by the defendant -dismissal w/o prejudice 17.2 MTD by plaintiff -after service of answer Or AFTER MSJ -w/o prejudice -if Answer includes counterclaim, Defendant may either a. file manifestation that he would continue to prosecute his cclaim b4 the court b. file the counterclaim in a separate proceeding (not res judicata as it was dismissed w/o prejudice) 17.3 DISMISSAL because of plaintiffs fault a. plaintiff fails to appear on date of presentationof his evidence in chief w/o justifiable caue b. plaintiff failed to prosecute his action for an unreasonable length of time c. plaintiff failed to comply with ROC or ANY ORDER OF THE COURT (aha! Pede na nga ground for indirect contempt or even contempt pede pang ground for dismissal!) -dismissal WITH PREJUDICE: has effect of ADJUDICATION ON THE MERITS SO CAN BE USED FOR RES JUDICATA PURPOSES -re: defendants counterclaim: same rule as MTD by plaintiff under 17.2

Class Notes for Finals Dean Leonen Dismissal through a Motion for Leave to File a Demurrer to Plaintiffs Evidence
-filed after the plaintiffs presentation of evidence -evidence presented by evidence failed to show his right to relief -however, if plaintiff appealed this, and appeal was granted, Defendant cannot present evidence anymore: the case would be decided based only on what plaintiff was able to present MTD R16 MTD (demurrer to evidence) Grounded on preliminary objections on Based on insufficiency of evidence the allegations in the pleading Filed by DEFENDANT w/n time for But prior to filing answer ONLY after presentation of plaintiffs evidence DENIAL: should answer DENIAL: defendant present evidence GRANT: plaintiff may appeal GRANT: if plaintiff appeals, dismissal Or may refile case reversed, defendant cannot present evidence anymore ?Okay, after MTD, should file answer. What happens when one fails to file answer on time? Plaintiff files MOTION TO DECLARE DEFENDANT IN DEFAULT under R9.3 + proof of nonfiling Then Court issues an ORDER DECLARING DEFENDANT IN DEFAULT Vs. PRETRIAL: absence of defendant during PRETRIAL or non-filing of a PRETRIAL BRIEF -declared AS IN DEFAULT In default Failure to file answer As in default Failure to appear during pre-trial OR submit a pre-trial brief Defendant entitled to notice but cannot take part in the proceedings Presentation of evidence ex parte Relief to be awarded limited by the Relief to be awarded dependent on what prayer the plaintiff could prove 2. Interest which in whole or in part is not disputed by claimants WHO WOULD FILE: person who may be claimed against? WHY: to compel the conflicting claimants to interplead and litigate their several claims among themselves File > ORDER to interplead -court may order that subject matter be paid/delivered to court SUMMONS: served w/ copy of complaint + order to interplead MTD allowed -file w/n time for filing answer (15d from service) -grounds: a. impropriety of interpleader b. other appropriate grounds under R16 -period to file answer TOLLED by MTD -if MTD DENIED: may still file answer w/n the remaining period but not less than 5d from NOTICE OF DENIAL ANSWER (directly or after notice of denial of mtd) -w/n 15d from service -set forth claim -responded to by a reply -FAILURE TO FILE ANSWER: >motion to declare in default >judgment: bar claimant from any claim in respect to the subject matter!!! NO pleadings prohibited (not a summary proceeding) DETERMINATION OF RESPECTIVE RIGHTS AND ADJUDICATION OF CLAIMS -after pleadings filed -after pretrial conducted DOCKET FEES, lawful fees, litigations expenses lien upon subject matter of the action

LIM TANHU

VS.

REMOLETE

R63. DECLARATORY RELIEF

WHO MAY FILE: any person 1. Interested under a deed, will, contract or other written instrument 2. Whose rights are affected by a statute/EO/regulation/ordinance/any other governmental regulation WHEN: before breach/violation WHERE: RTC WHY: 1. To determine any question of construction or validity 2. Declaration of rights and duties underwhich INCLUDES: 1. Action for reformation of an instrument 2. Action to quiet title to real property 3. Action to remove clouds from property 4. Action to consolidateownership

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

Special Civil Action (sorry, no notes from R20-61)

R62. INTERPLEADER
When to file: 1. Conflicting claims upon same subject matter are/maybe made against a person who claims no interest whatsoever in the subject matter 21 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions

Class Notes for Finals Dean Leonen

(in all other cases, court may refuse to exercise power to declare rights and to construe instruments IF: a. Decision would not terminate uncertainty/controversy b. Declaration/construction not necessary and proper) PARTIES -have/claim any interest -this would be an axn in personam: only the parties would be affected NOTICE TO SOLGEN: if involves validity of a governmental regulation -notice made by party assailing the same -notified and heard IF VALIDITY OF LOCAL GOV ORDINANCE: notify prosecutor/atty of the LGU involved -notified and heard -if UNCONSTITUTIONALITY: solgen notified and heard CONVERSION: PETITION FOR DECLARATORY RELIEF to ORDINARY ACTION -breach or violation took place -parties shall be allowed to file pleadings as may be necessary -FAILURE TO COMPLY W/ FORMAL REQUIREMENTS: ground for dismissal! Then SC would a. ORDER TO COMMENT -SC finds that petition is sufficient in form and substance -SC would then order respondents to file COMMENT -period to file COMMENT: w/n10d from NOTICE (more on comment later) b. DISMISS OUTRIGHT -not sufficient in form and substance (e.g. kulang required formalities) -filed manifestly for delay -questions raised are too unsubstantial to warrant further proceedings Comment -filed in 18 copies -original accompanied by: a. CTC of material portions of record b. supporting papers -sa copies: plain copies na lang LIMIT ON PLEADINGS: PETITION AND COMMENT lang unless court orders

R64. REVIEW OF JFOR OF COMELEC AND COA

SCOPE: JFOR of COMELEC AND COA (duh?!) MODE: PETITION FOR CERTIORARI UNDER R65 TO SC TIME TO FILE: w/n 30d from NOTICE of JFOR -if filed MNT/MFR (if allowed): would TOLL period to file petition if MNT/MFR DENIED, may still filed petition w/n remaining period (but 5d always from date of NOTICE OF DENIAL) PAY docket and other lawful fees + deposit P500 FORMS AND CONTENTS: -verified -in 18 LEGIBLE copies -contents: 1. name of aggrieved party (petitioner) 2. name of respondent (COMELEC/COA and person interested in sustaining JFOR) 3. facts w/ certainty 4. issues presented clearly 5. grounds and brief arguments 6. PRAYER: annulment/modification of JFOR 7. ACCOMPANIED BY (photocopies for the other requisite copies): a. clearly legible duplicate original/ctc of JFOR b. CTC of material portions of the record c. other relevant and pertinent docs 8. specific material dates showing that it was filed w/n period fixed 9. sworn CNFS 10. proof of service of copy on COMELEC/COA and adverse party 11. proof of timely payment of docket and other lawful fees *FINDINGS OF FACT: if supported by substantial evidence: FINAL AND NONREVIEWABLE 22 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions

EFFECT OF FILING of PETITION: GR: shall not stay execution of JFOR X: SC says so SUBMISSION FOR DECISION If none of these required or after these complied w/ (or after expiration of period to do the same) a. Sets case for oral arguments b. Requires parties to submit memoranda

R65: CPM
R65.1 PETITION FOR CERTIORARI
Requisites: 1. WHO: TBO (tribunal, board or officer) exercising JUDICIAL or QJ functions 2. WHAT: a. Acted w/o jurisdiction b. Acted in excess of its jurisdiction c. Acted w/ GADALEJ 3. No appeal, nor any PSA (Plain, Speedy, Adequate) remedy in the ordinary course of law 4. VERIFIED petition 5. Before the proper court (SC, CA, RTC) 6. Allege facts w/ certainty 7. PRAYER: Either a. Annul b. Modify the PROCEEDINGS of TBO c. Grant incidental reliefs 8. Accompanied by:

Class Notes for Finals Dean Leonen

a. b. c. CTC of Judgment/order/resolution Copies of all the pleadings and docs relevant and pertinent Sworn CNFS *PROPER COURT: 1. SC 2. RTC: (w/c has jurisdiction over the territorial areaacts or omissions of a +Lower court (MTC) +CBOP 3. CA: WON in aid of its appellate jurisdiction + acts or omissions of QJA (unless otherwise provided) 4. Sandiganbayan: IN AID of its appellate jurisdiction EXTENSION OF TIME: GR: BAWAL X: compelling reason, MAX 15d *if PETITION relates to acts or omissions of J/C/QJA/TCBOP petitioner should join PRIVATE RESPONDENT/S w/ PUBLIC RESPONDENTS PRIVATE RESPONDENTS has duty: >to appear >to defend >to pay costs awarded to petitioner (public respondents dont pay) .PUBLIC RESPONDENTS >merely nominal parties (unless directed by the court, even on appeal) >shall not appear >shall not file an answer/comment IF SUFFICIENT IN FORM AND SUBSTANCE to justify the process: Court issue ORDER: COMMENT w/n 10d fr receipt of a COPY OF ORDER (NOT MTD!) served on RESPONDENTS w/ >COPY of petition >annexes ...SUFFICIENT IN FORM: 18 copies if before SC and CA after COMMENT: file REPLY and other responsive pleadings if gusto ng court INJUNCTIVE RELIEFS *orders expediting the proceedings *TRO (to INTERRUPT the PROCEEDINGS if no TRO, proceedings would still go on even w/ petition filed) *WPI for preservation of rights of parties pending proceedings HEARING WHEN: 1. After comment/other pleadings required by court are filed 2. Time for filing COMMENT/other pleadings EXPIRED WHAT: court 1. hear case OR 2. may require parties to submit MEMORANDA JUDGMENT 1. GRANT if >WHEN: a. after hearing or submission of memoranda b. after expiration of PERIOD for filing memo >GROUNDS: allegations of the petition are TRUE

R65.2 PETITION FOR PROHIBITION

Requisites: 1. WHAT: Proceedings of any TCBOP (tribunal, corporation, board, officer, person), whether exercising J/QJ/ministerial functions 2. GROUNDS proper a. Acted w/o jurisdiction b. Acted in excess of jurisdiction c. Acted w/ GADALEJ 3. No appeal or any other PSA in the ordinary course of law 4. VERIFIED petition 5. In the proper court (SC, CA, RTC) 6. Allege facts w/ certainty 7. PRAY that a. judgment be rendered commanding the respondent to DESIST from further proceedings in the action/matter specified therein b. incidental reliefs as law and justice may require 8. ACCOMPANIED BY: a. CTC of JOR subject b. Copies of all pleadings and documents RELEVANT and PERTINENT c. Sworn CNFS

R65.3 PETITION FOR MANDAMUS

REQUISITES 1. 2. WHO: TBOAC WHEN: a. Unlawfully neglects the performance of an act w/c the law specifically enjoins as a duty resulting from an office, trust, or station b. Unlawfully excludes another from the use and enjoyment of a right or office to w/c such other is entitled No other PSA (no appeal, no case yet) in the ordinary course of law VERIFIED petition In the proper court (SC, CA, RTC) Allege facts w/ certainty Pray that a. Judgment be rendered COMMANDING the respondent, immediately or at some other time specified by the court, to do the act required to be done TO PROTECT THE RIGHTS OF THE PETITIONER b. Pay DAMAGES sustained by the petitioner by reason of the wrongful acts of the respondent ACCOMPANIED BY CNFS

3. 4. 5. 6. 7.

8.

CMP in general
WHEN FILED: NOT later than 60d from >NOTICE of JOR >from the NOTICE OF DENIAL OF MFR/MNT

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DISMISS Patently w/o merit Prosecuted manifestly for delay Questions raised are TOO UNSUBSTANTIAL to require consideration >serve CERTIFIED COPY of JUDGMENT to PRIVATE AND PUBLIC respondents >DISOBEDIENCE: punished as CONTEMPT >EXECUTION: damages and cost follow R39.1 2.

a. b. c.

Person who usurps, intrudes into, unlawfully holds/exercises a public office/position/franchise Public officer who does/suffers an act = ground for forfeiture of his office

Association acting as a corporation w/n RP w/o being legally incorporated OR w/o lawful authority to so act WHO COMMENCES: a. SOLGEN/PUBLIC PROSEC b. SOLGEN/PUBLIC PROSEC at the request of another c. Person claiming to be entitled to the office/position USURPED/UNLAWFULLY HELD WHEN: a. b. When DIRECTED by President of RP When upon complaint/otherwise SOLGEN/PUBLIC PROSEC has good reason to believe that any case specified in the proceeding can be established by proof c. WITH PERMISSION FO THE COURT (W/ LEAVE OF COURT?) if to be commenced at the request and upon the relation of another person SOLGEN/pubprosec may 1st require INDEMNITY for expenses and costs HEARING: COURT will >upon application (when w/ permission of court): DIRECTS NOTICE to respondent >if permission approved: issue ORDER to RESPONDENT serve copies to ALL INTERESTED CONTENTS OF PETITION *if vs. person ururping a public office: a. name of the person claiming to be entitled to the position b. aver right to the position c. aver that respondent is unlawfully in possession VENUE if SOLGEN: RTC in City of Manila/CA/SC If not SOLGEN: SC/CA/RTC exercising jurisdiction over territorial area where RESPONDENT resides PERIOD: court would provide (consider expediting the proceeding) may be given precedence JUDGMENT for usurpation: a. Respondent be ousted + excluded from position b. Petitioner recover costs i. Vs. petitioner/relator ii. Respondent iii. Person/s claiming to be a corporation iv. May apportion cost c. May Determine respectiverights in and to the public office PETITIONER: a. Take oath of office b. Execute official bond c. Take upon himself the execution of the office

R66. QUO WARRANTO

GROUNDS: usurpation of a public office, position or franchise NOT: a. Action for ouster fr office (unless commenced w/n 1yr after the cause of the ouster/right of petitioner b. Action for damages unless commenced w/n 1yr after entry of judgment establishing petitioners right PETITIONER: RP RESPONDENT:

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d. e. f. May demand from respondent the books and papers in his custody /control appertaining to the office IF RESPONDENT REFUSE: file petition for contempt May bring action for damages sustained by reason of usurpation CONTENTS: 1. Specifically designate/identify property in w/c he claims to have an interest 2. Nature and extent of interest claimed 3. All objections and defenses to the taking of his property *NOTE: BAWAL ANG: >counterclaim >cross-claim >TPC *if not alleged: WAIVE OBJECTIONS AND DEFENSES BUTcourt may allow amendment of answer w/n 10d from FILING of answer (so w/leave of court?) *ANSWER NOT REQUISITE for trial of the issue of JUST COMPENSATION: a. may present evidence as to AMOUNT of COMPENSATION TO BE PAID for his property b. may share in the distribution of the award ORDER OF EXPROPRIATION: when issued a. Objections to and defenses against RIGHT OF expropriation OVERRULED b. NO party appears to defend CONTENTS of ORDER OF EXPROPRIATION 1. Declare that plaintiff has lawful right to expropriate for the public use/purpose described in the complaint 2. Upon payment of JUST COMPENSATION (so declare lang na may right to expropriate, cant take it yet!) determined as of DATE of (WHICHEVER COMES FIRST) > TAKING OF PROPERTY OR > FILING OF THE COMPLAINT APPEAL of FOrder SUSTAINING RIGHT TO EXPROPRIATE BUT does not stay the DETERMINATION OF JUST COMPENSATION AFTER RENDITION OF ORDER (rendition: service of order to parties): GR: plaintiff cant DISMISS or DISCONTINUE proceeding X: just and equitable

R67. EXPROPRIATION
FIRST: Determine WON plaintiff has right to expropriate for public use or purpose
COMPLAINT -VERIFIED -CONTENTS: state w/ certainty 1. right to expropriate 2. purpose for expropriation 3. description of the real/personal property to be expropriated 4. show interest of all defendants -join as DEFENDANTS ALL persons owning claiming to own occupying any part/interest thereof 5. aver details of titleif TITLE a. in RP but OCCUPIED by private individuals b. OBSCURE/doubtful, plaintiff cannot w/ accuracy or certainty specify who are the real owners WHEN PLAINTIFF COULD TAKE/ENTER POSSESSION 1. File complaint/anytime after 2. Give DUE NOTICE TO DEFENDANT 3. Deposits w/ authorized government depository a. IF REAL PROPERTY INVOLVED amount: ASSESSED VALUE OF PROPERTY FOR PURPOSESE OF TAXATION IN MONEY (unless court authorizes CERTIFICATE OF DEPOSIT OF A GOVT BANK OF RP PAYABLE ON DEMAND TO AUTHORIZED GOVT DEPOSITORY) b. IF PERSONAL PROPERTY INVOLVED VALUE: provisionally ascertained, fixed by court 4. After DEPOSIT, court ORDER sheriff/proper officer to place plaintiff in possession of property 5. Sheriff would place plaintiff in possession 6. Sheriff would submit a report to court, serving copies to ALL PARTIES ACTION OF DEFENDANT A. NO OBJECTION/DEFENSE TO THE ACTION FILE and SERVE: a. Notice of appearance b. Manifestation of appearance Contents: specify property in which he claims to be interested PERIOD TO FILE: w/n time specified in the summons Effect: DEFENDANT entitled to NOTICE of all proceedings affecting his claim B. W/ OBJECTION/DEFENSE Serve ANSWER PERIOD: w/n time specified in the summons

SECOND: Ascertain value of JUST COMPENSATION

WHEN: after RENDITION OF FOrder OF EXPROPRIATION APPOINTMENT OF COMMISSIONERS -max: 3 -should be disinterested -TASK: a. ascertain just compensation b. report to the court ORDER OF APPOINTMENT OF COMMISSIONERS 1. Specify the commissioners 2. Designate time and place of 1st session 3. Specify time w/n w/c report shall be submitted to court (DEADLINE for commissioners 60d (unless extended) from notification of commissioners of their appointment sa Sec7!) copies of order served on parties if there are OBJECTIONS TO THE APPOINTMENT OF THE COMMISSIONERS: >File w/n 10d from SERVICE

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>resolved w/n 30d after all commissioners received copies of objections PROCEEDINGS OF COMMISSIONERS Before entering performance: 1. TAKE AND SUBSCRIBE AN OATH that they will faithfully perform their duties 2. File w/ court THE OATH After oath-taking 3. Presentation of evidence commissioners authorized to administer oaths on hearings 4. VIEWING AND EXAMINATION OF PROPERTY SOUGHT TO BE EXPROPRIATED w/due notice to all parties to attend ...commissioners may measure property X: parties consent to the contrary 5. Parties argue the case 6. Commissioners assess CONSEQUENTIAL DAMAGES and BENEFITS Consequential damages: damages to the property not taken Consequential benefits: derived by the OWNER (of the property to be taken) from public use/purpose of the property taken operation of its franchise by the corporation carrying on of the business of the corporation or person taking the property LIMITATIONS: 1. Consequential benefits should not exceed Consequential damages 2. Owner should not be deprived of ACTUAL VALUE of property so taken REPORT OF COMMISSIONERS A. Partial report -court may ORDER commissioners to report when any particular portion of the real estate has been passed upon by the commissioners -court may direct JUDGMENT upon such partial report B. Full and accurate report CONTENTS: All the proceedings before the commissioners Proceedings ONLY EFFECTUAL UNTIL COURT accept report + render judgment in accordance w/ their recommendation FILING OF REPORT: GR: w/n 60d from date the commissioners were notified of their appointment X: extended after report FILED: COC serve copies of the report of the commissioners to all parties interested OBJECTIONS TO THE REPORT: w/n 10d from service to file OBJECTIONS ACTION OF THE COURT When: 1. Upon expiration of 10d period to file objections 2. Before 10d after all interested parties filed objections/statement of agreement 3. After hearing Court could: 1. Accept the report and render judgment in accordance therewith 2. 3. 4. 5. For cause shown: recommit same to commissioners for further report of facts Set aside report of commissioners, appoint new commissioners Accept report in part, reject it in part AND make such order/judgment as shall secure to the plaintiff the property essential to the exercise of his right to expropriation defendant just compensation for the property so taken

IF OWNERSHIP UNCERTAIN CONFLICTING CLAIMS TO ANY PART OF THE PROPERTY Awarded sum may be ordered to be paid to the court for the benefit of the person adjudged to be entitled *PAYMENT ALWAYS REQUIRED to the court or the person awarded before the plaintiff may a. Enter the property b. Retain it for public use or purpose, if entry already made RIGHTS OF PLAINTIFF after the judgment and payment 1. Right to enter upon the property 2. Right to appropriate it for the public use or purpose defined in the judgment 3. Right to retain it (if already in possession) WHEN DEPOSIT to court = payment 1. Defendant/counsel absent themselves from the court 2. Defendant/counsel decline to receive the amount tendered APPEAL shall not delay rights of defendant to expropriate if appellate court decide that plaintiff has NO RIGHT TO EXPROPRIATION: judgment rendered: a. Enforce the restoration to the defendant of the possession of the property b. Determine damages w/c defendant sustained and may recover COSTS *fees of the commissioner: taxed as part of the costs of the proceedings *all costs (except those of rival claimants litigating their claim): paid by plaintiff X: judgment APPEALED, judgment of lower court affirmed cost of APPEAL paid by owner who appealed RECORDING of JUDGMENT Contents of judgment: state definitely by an adequate description 1. Particular property/interest therein expropriated 2. Nature of the public use or purpose for which it is expropriated If Real estate Expropriated: certified copy of judgment RECORDED in registry of deeds of place where property is situated >effect of recording: vest in plaintiff TITLE to real property POWER OF GUARDIAN should be w/ approval of the court

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may represent ward respecting expropriation for public use or purpose (do acts w/c the ward may do in such proceedings if he were of age or competent) *note: in the case of BRGY SAN ROQUE VS. HEIRS OF PASTOR, it was held that expropriation proceedings, being incapable of pecuniary estimation, are under the RTC always (regardless of assessed value of the property) -if, instead of assigning it to one, one of the parties ask that it be sold instead -court would impose conditions REPORT OF COMMISSIONERS -full and accurate report -contents: a. proceedings as to the partition b. assignment to one of the parties OR c. sale -filed before the court -copies served on ALL INTERESTED PARTIES interested parties may file OBJECTIONS w/n 10d from SERVICE OF NOTICE *no transfer of title until court ACCEPTED REPORT + RENDERED JUDGMENT ACTION OF COURT WHEN -upon expiration of 10d OR -before 10d BUT AFTER parties submitted objections/statement of agreement COURT COULD 1. Accept the report + render judgment in accordance therewith 2. For good cause shown: recommit the same to the commissioners for further report on the facts 3. Set aside report + appoint new commissioners 4. Accept in part, reject in part 5. AND make such order + render judgment as shall effectuate a fair and just partition of the real estate ACCOUNTING FOR RENT AND PROFITS: party shall recover just share of rents and profits received by such other party from the real estate in question judgment would include allowance for rents and profits POWER OF GUARDIAN -should be w/ court approval -represent ward (do acts that the ward may do if he were of age or competent) COST and EXPENSES -tax and apportion equitably between and among parties -execution may issue as in other cases JUDGMENT AND EFFECTS if ACTUAL PARTITION -judgment shall state: 1. metes and bounds of the property 2. adequate description of the property 3. particular portion of the real estate assigned to each paryt -EFFECT: vest in each party in severalty the portion of the real estate assigned to him if WHOLE PROPERTY ASSIGNED TO 1 PARTY -Judgment shall state: 1. fact of payment 2. fact of assignment of property -effect: vest in party making payment the whole of the real estate free from any interest on the part of the other parties if the PROPERTY SOLD IN PUBLIC AUCTION, SALE CONFIRMED BY COURT

R69 PARTITION
WHO MAY FILE: person who has right to compel partition of real estate CONTENTS OF COMPLAINT: 1. Nature and extent of title 2. adequate description of the real estate of which partition is demanded 3. join ALL other persons interested in the property as defendants ORDER OF PARTITION When issued: -after trial -court finds that plaintiff has right thereto -then: a. parties may partition among themselves by proper instruments of conveyance then COURT WOULD CONFIRM the partition so agreed partition would be RECORDED in the registry of deeds -appealable b. parties may not agree: so COURT shall appoint max 3 competent and disinterested commissioners to make partition commissioners would set off to plaintiff and to each party such part and proportion of the property as the court shall direct SO PAG MAY COMMISSIONERS 1. Take and subscribe oath that they will faithfully perform their duties as commissioners 2. File Oath to court 3. Commissioners would view and examine the real estate After due notice to the parties to attend at such view and examination 4. Commissioners would hear parties as to their *preference in the portion of the property *comparative value Commissioners would then SET APART the properties to the parties in lots or parcels as will be most ADVANTAGEOUS AND EQUITABLE Consider: *improvements *situation *equality of different parts OR, instead of apportioning the properties among the heirs, the commissioners may instead ASSIGN to an heir or SELL the property in a public sale WHEN? It is made to appear to the commissioners that the real estate, or a portion thereof, CANNOT BE DIVIDED W/O PREJUDICE TO THE INTERESTS OF THE PARTIES 1. Assignment to one of the parties -by court order -party should pay the amounts ast he commissioner deem EQUITABLE 2. Public sale

5.

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-judgment shall state: 1. name of purchaser 2. definite description of the parcels of real estate sold to each purchaser (so pede marami nakabili) -effect: vest title to the purchasers making payment, free from claims of any of the parties ---whatever happens, CERTIFIED COPY OF THE JUDGMENT SHALL BE RECORDED in the registry of deeds EXPENSES of recording: part of the costs *respect PARAMOUNT RIGHTS *parties holding real estate jointly or in common may still enter amicable partition w/o recourse to an action PARTITION OF PERSONAL PROPERTY included: partitions of estates! PLEADINGS NOT ALLOWED: PARA MAS MADALI, MEMORIZE PLEADINGS ALLOWED! ACTION of court 1. Examine allegations in the complaint + evidence attached 2. Then a. DISMISS case outright: on GROUNDS FOR DISMISSAL APPARENT THEREIN b. Issue summons: no ground for dismissal ANSWER -FILE & SERVE w/n 10d from SERVICE OF SUMMONS -affirmative and negative defenses GR: not pleaded: waived X: lack of jurisdiction over the subject matter -cross claims and compulsory counterclaims: not asserted = considered barred Anwer to crossclaims and compulsory counterclaims: file w/n 10d from SERVICE OF ANSWER EFFECT OF FAILURE TO ANSWER -court >motu proprio >OR on motion of the plaintiff render JUDGMENT as may be warranted by the facts, limited by what is prayed for -court may reduce amount of damages and attys fees PRELIMINARY CONFERENCE -not later than 30d after last answer -follow rules on pretrial IF PLAINTIFF FAILS TO APPEAR: -dismiss complaint -defendant who appears shall be entitled to judgment on his counterclaim -ALL COUNTERCLAIMS dismissed IF SOLE DEFENDANT FAILS TO APPEAR: -plaintiff would be entitled to judgment IF 2+ defendants sued UNDER A COMMON COA + pleaded COMMON DEFENSE1 absent: NO DEFAULT *no postponement of preliminary conference X: -highly meritorious grounds -w/o prejudice to such sanctions as the court may exercise RECORD of PRELIM CONFERENCE -w/n5d after termination -issued by the court -states matters taken up, like: 1. WON entered into amicable settlement 2. stipulations/admissions entered 3. WON based on stipulations/admissions, judgment may be rendered w/o need of further proceedings judgment rendered w/n 30d from issuance of order 4. material facts still controverted 5. other matters intended to expedite the disposition of the case SUBMISSION OF AFFIDAVITS & POSITION PAPERS -w/n 10d from receipt of ORDER containing record of prelim conference Civil Actions

R70. FORCIBLE ENTRY AND UNLAWFUL DETAINER

who may file: 1. Person deprived of possession of any land or building BY FITSS (FORCE, INTIMIDATION, THREAT, STRATEGY, OR STEALTH) 2. Lessor/vendor/vendee/other person against whom the possession of any land or building is unlawfully w/held AFTER THE EXPIRATION/TERMINATION OF THE RIGHT TO HOLD POSSESSION (by virtue of a conrtact) When: anytime w/n 1yr AFTER 1. Unlawful deprivation 2. Unlawful w/holding of possession COURT: MTC RELIEF: restitution of possession + damages + costs CONDITION PRECEDENT: 1. Demand to pay/comply w/ conditions of lease OR 2. Serving WRITTEN NOTICE to person found on the premises OR 3. IF NO PERSON FOUND: by posting notice on the premises if lessee fails to comply w/n *15d: land *5d: building PROCEEDINGS: GR: by summary procedure X: 1. Covered by Agricultural tenancy laws 2. Law expressly provides it PLEADINGS ALLOWED: 1. Complaint 2. Compulsory counterclaim in ANSWER 3. Cross claim in ANSWER *pleadings should be VERIFIED

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Procedure_Ordinary

Class Notes for Finals Dean Leonen

-parties would submit 1. affidavits of witnesses 2. other evidence on the factual issues 3. position papers: set forth facts and law relied upon PERIOD for rendition of judgment: w/n 30d after receipt of affidavits and position papers OR expiration of 30d period *IF COURT CLARIFY MATTERS, issue ORDER specifying matters to be clarified + parties submit affidavits and other evidence w/n 10d from receipt of ORDER: render judgment w/n 15d after receipt of last affidavit OR expiration of period for filing the same REFERRAL FOR CONCILLATION: if required -dismiss action, REVIVE ONLY AFTER REQIURED CONCILIATION complied w/ AFFIDAVITS: -state only facts o DIRECT PERSONAL KNOWLEDGE OF THE AFFIANTS admissible in evidence -show competence to testify *if failed to state personally known facts and competence, 1. PARTY/COUNSEL may be subject to disciplinary action 2. affidavit may be expunged from the record PRELIMINARY INJUNCTION -may be granted in accordance w/r58 -prevent defendant from committing further acts of dispossession PRELIMINARY MANDATORY INJUNCTION to restore plaintiff in possession -filed w/n 5d from filing complaint for ejectment -decided by court w/n 30d from filing OWNERSHIP ISSUE -if raised and question of possession cannot be resolved w/o deciding issue of ownership, issue of ownership resolved only to determine the issue of possession JUDGMENT if courts find that the allegations in the complaint are TRUE: judgment in favor of plaintiff -for restitution of the premises -award: a. sums due as arrears/reasonable compensation for use and occupation b. attys fees c. costs if NOT TRUE: judgment for defendant -recover costs -if w/counterclaim: established: court render judgment for sum found in arrears *W/RE ISSUE OF OWNERSHIP: JUDGMENT CONCLUSIVE w/ respect to possession only, NOT A BAR bet same parties respecting title to the land or building APPEALS of judgment: MTC -> RTC -based on a. ENTIRE RECORD b. memoranda/briefs submitted by parties or required by RTC 29 | C h a Mendoza_Civil Procedure_Ordinary Civil Actions PRELIMINARY MANDATORY INJUNCTION IN CASE OF APPEAL -w/n 10d from perfection of appeal to RTC -issued by RTC -restore plaintiff in possession -grounds: 1. appeal is frivolous or dilatory 2. appeal OF PLAINTIFF is prima facie meritorious EXECUTION: GR: immediately executor X: (HOW TO STAY EXECUTION) 1. Appeal perfected 2. defendant files SUFFICIENT SUPERSEDEAS BOND -approved by MTC -executed in favor of plaintiff to pay rents, damages and costs accruing from time of judgment 3. defendant deposits to the court (pending appeal) the (w/contract) amount of rent due fr time under contract OR (w/o contract) reasonable value of the use and occupation of the premises for the preceeding month/period, at the rate determined by lower court judgment on or before 10th day of each succeeding month -deposit amounts w/ >court >authorized govt depositary bank -held there until final disposition of appeal -if defendant FAILS TO PAY abovementioned payments: execution may be ordered but appeal not barred >upon motion of plaintiff > + proof of failure to pay DECISION ON APPEAL by RTC: -dispose amounts deposited in accordance w/ the RTC decision -immediately executory -may still be appealed (but no provision as to supersedeas bond to stay execution... so talagang executory na) R71. CONTEMPT

DIRECT CONTEMPT
Grounds: 1. misbehavior in the presence of the court 2. misbehavior so near a court as to obstruct/interrupt proceedings before the same: a. disrespect toward the court b. offensive personalities toward others c. refusal to be sworn or to answer as a witness d. refusal to subscribe an affidavit or deposition when lawfully required -summarily adjuged -penalty: IF RTC+ 1. fine: max P2k

Class Notes for Finals Dean Leonen

2. imprisonment: max 10d Or both IF lower court 1. fine: P200 max 2. imprisonment: 1d max or both -REMEDY: not appeal but CERTIORARI/PROHIBITION execution: suspended pending resolution of petition + bond filed (condition: petitioner will abide by and perform judgment) vs. lower court 1. fine: P5kmax 2. imprisonment: 1m max or both *WOE issued for the fine if violation of a ..writ of injunction tro status quo order -order to make restitution to party injured If violation: refusal/omission to do an act yet in the power of respondent to perform: imprisonment by order of court until he performs it IF RESPONDENT RELEASED ON BOND AND FAILS TO APPEAR: Court may -issue another order of arrest -order bond forfeited and confiscated Or both ORDER OF RELEASE -may be issued when it appears that public interest would not be prejudiced by his release J/FOR of indirect contempt: appealable -execution NOT SUSPENDED BY APPEAL how to suspend: file BOND CONTEMPT MAY BE APPLIED TO QUASI-JUDICIAL AGENCIES

INDIRECT CONTEMPT
-w/charge in writing filed -w/ opportunity to comment and be heard -GROUNDS: MDAIASR 1. misbehavior in performance of official duties 2. disobedience of/resistance to a lawful writ/process/order/judgment of court 3. abuse of/any unlawful interference w/ processes and proceedings of court not constituting DIRECT CONTEMPT 4. improper conduct tending to impede/obstruct/degrade administration of justice 5. assuming to be an attorney/officer of a court, w/o authority 6. failure to obey subpoena duly served 7. rescue, attempted rescue of person/property in the custody of an officer -how commenced: *motu proprio by court against w/c contempt was committed *any formal charge VERIFIED PETITION -order respondent to show cause why he should not be punished for contempt Other formalities: 1. verified nga 2. supported by a. particulars b. CTC of docs, papers involved 3. comply w/ requirements for filing initiatory pleadings -if arose out of/related to a PRINCIPAL ACTION pending petition shall be docketed, heard and decided Gr: SEPARATELY X: court orders consolidation (no motion needed, discretionary upon court) WHERE TO FILE vs. RTC/officer appointed by it: w/ RTC Vs. lower court: w/RTC in place where lower court is sitting or w/ lower court, subject to appeal to RTC HEARING: release on bail -if no hearing: may release respondent on BOND (conditioned on appearance of respondent if may hearing na) -hearing day: court investigate charge, consider any comment, testimony, defense PUNISHMENT FOR INDIRECT CONTEMPT vs. RTC + 1. fine: P30k max 2. imprisonment: 6m max or both

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Mendoza_Civil

Procedure_Ordinary

Civil

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