Ibyang | 1 CIVPRO LECTURES By Dean F. Tan 2nd Sem AY 2012-2013 1st Sem AY 2014-2015 NOTE: Let it be known that this is just a guide; not complete nor perfect. Feel free to correct or supplement whatever is needed. But I am hoping that this will help you in studying the subject. -IBYANG- What is Remedial Law? - Nature (Procedural NOT A LAW but has the force and effect of a law) - Distinction between procedural and substantive law (definition, purpose, who promulgates, application, waivability, effect of rights) - 4 divisions of remedial law (civil, criminal, special proceedings, evidence) Civil Procedure, define - Distinguish from crimpro and spec-pro (definition, governing law, parties, commencement, basis of institution) Q:Is a petition for declaration of presumptive death a spec-pro? How about declaration of nullity of marriage?A:Yes, establishing a status. Parts of Civpro (ordinary, provisional remedies, and special civil actions) Application of Civpro in crimpro and specpro - suppletory and by analogy; Sec. 4, Rule 1 Sources of civpro (Constitution, BP 129 as amended by RA. 7169, RA 7160 LGC Sec. 399-422, Admin circulars, jurisprudence, NCC, at marami pang iba) Constitutional Provisions (at marami pang iba) 1.Art. 3, Sec. 1 due process 2.Art. 8, Sec. 1 Constitutional court (SC) (Sandiganbayan, CTA, Sharia District/Lower Court, CA, RTC, MTC Statutory courts) Q:Is a military court a judicial court? No, jurisprudence, under the executive branch. 3.Art. 8, Sec. 1, Par 2 judicial power 4.Art.3, Sec. 9 Expropriation (Rule 67) 5.Art. 8, Sec. 5 Powers of SC (Rules 56, 65, 102, and 45-Question of law/constitutionality, 65-jurisdiction) 6.Art. 8, Sec. 5 Rule making power of SC (not absolute; with limitations) 7.Art. 8, Sec. 18 requirements of valid judgment (Rule 36) 8.Art. 9-A, Sec. 7 COMELEC and COA (Rule 64) Jurisdiction - Define (Rule 30-try, 36-decide, 39-execute) - Distinguished from venue (definition, relations, waivability, dismissal, effect of dismissal, governing law) - Kinds (original, exclusive, exclusive original, appellate, delegated, general, special, concurrent, territorial [within territory], primary jurisdiction [exhaustion of admin. rem], ancillary) - How acquired: a)Over plaintiff filing of complaint and payment of docket and other lawful fees b)Over defendant voluntary appearance (xpn: special appearance) or summons c)Over the subject matter allegations in the complaint/initiatory pleading d)Over issue allegations in the pleadings e)Over res actual or constructive seizure f)Over claim payment of docket fee- Jurisdiction of different courts (marami po ito)Ibyang | 2 a)SC, CA b)Sandiganbayan Civil: forfeiture of illegally acquired properties c)CTA d)Sharia District/Lower Court [PROPERTY RELATIONS] parties involved are Muslims e)RTC land registration cases: uncontested f)MTC - Ordinary procedure (claim less than 300/400, exclusion/inclusion of voters) - Summary [NO TRIAL] (Rule 70: Unlawful detainer and Forcible entry, claims less than 100/200 [except probate], small claims) Commencement of action (Rule 1, Sec. 5) - Filing of initiatory pleading - Plus payment of docket fees Barangay Conciliation [Local Government Code] -Small claims: Lack of - raise an affirmative defense or motu propio dismissal -Exceptions: Prov. Remedies (not limited to Rule 57-61), Estate (a juridical entity) -Effect of pendency (tolls the prescriptive period for not more than 60 days; Sec. 412) -Effect of failure to raise waived, xpns: summary procedure/small claims -REMEDIES: oPlaintiff amendment oDismissal not yet final revive oDismissal is final refile -Appearance (personal); lawyer who appears (subject to DA, filed with IBP) -Repudiation: filing of sworn statement within 10 days (due to vitiated consent, fraud, force) -Non-execution of settlement: after 6 months, file to a regular court based on jurisdiction Preparation of a complaint -Distinctions between pleadings and motion (definition, purpose, kinds, form, when filed) -Initiatory pleadings (original complaint, Permissive Counter Claim [Permissive Counter Counter Claim], Cross-Claim, 3rd-4th party complaint, complaint-in-intervention, petitions, special civil actions [except Direct Contempt, special proceedings]) -Responsive pleadings (Answer and Reply to all initiatory pleadings, Response in small claims) -Initiatory pleadings require verification, cert of non-forum shopping, payment of docket fees oVerification Initiatory pleadings Answer (Actionable document, usury, with PCC, with CR-C, response in small claims, forcible entry, unlawful detainer, summary procedure) oDefault (Rules 29, Sec. 5; 62. Sec. 5, lack of answer in OC, PCC, CRC, 3rd 4th party complaint, intervention) oCert of non-forum shopping (initiatory pleading, answer with PCC or CRC) (petitions in appellate court) No splitting in crimpro Motu propio dismissal (Acts of forum shopping: litis pendentia/res judicata; Lack of CNFS in summary procedure) Dismissal with prejudice (ACTS of forum shopping, willful and deliberate) Dismissal without prejudice (LACK of CNFS) Q:Should dismissal under Rule 17, Secs. 1 and 2 be included in CNFS No. CNFS is required for substantial amendment oJurisdiction Ibyang | 3 Dismissal (Motu propio or by motion) Without prejudice: Amend or refile With prejudice: Appeal oVenue Distinguish venue in crim (Rule 110, Sec. 15) from civil (Rule 4) Distinguish from jurisdiction Venuevs. Jurisdiction (Summons) Real (location)Rem (Due process) Personal (residence)Personam (acquire jurisdiction over the defendant) Mixed (location or residence) Quasi-in-rem (ex. Rules 57, 68, 69) (Due process) oVenue -Exclusivity of venue (in writing, before filing, agreed by the parties, use of word/s of exclusivity) -Improper venue: MTD (Rule 16, Sec. 1, c); XPN: Summary Procedure and Small claims -If not objected to: deemed waived -If MTD is granted: dismissal without prejudice; remedy refile -If MTD is dismissed: file an answer within the balance remaining, raise the issue as an affirmative defense, proceed with trial, appeal an adverse decision and assign it as an error; if TGAD, Rule 65 FAVORITE BAR QUESTION: Venue if outside the Phils. (where property is located or where plaintiff resides) oParties Joinder of parties Indispensable party: (Rule 3, Sec. 2 in relation to Rule 16, Sec. 1, g) Class suit (common and general interest) Distinguished from derivative suit (filed by minority stockholder; ground for dissolution of corp) and citizen suit (environmental laws) Q: Is there a class suit in labor cases? Yes, ROC is suppletory Death of a party: Rule 3, Sec. 16 and 20 in relation to Rule 86 and 87 (abandon mortgage, file against estate, foreclose property and apply for a claim against estate) oCause of Action Joinder of COA (Rule 2, Sec. 5/Rule 3, Sec. 6) Splitting of COA (Act of forum shopping that may lead to litis pendentia and eventually, to res judicata) Cause for dismissal with prejudice: remedy, appeal May be amended to confer jurisdiction (amendment as a matter of right) Equity applies if there is no law applicable Additional Notes: Cert. of Non-Forum Shopping (a condition precedent; may be dismissed without prejudice; remedy: refile)(Rule 7, Sec.5) -Acts of non-forum shopping (litis pendentia, res judicata, splitting of COA) oAM/CP/FD DC/SS/SP-CA-R/FJ (Act of malpractice committed by a party by filing different suits in different courts either successively or simultaneously, involving same parties, cause of action, relief for the purpose of securing favorable judgment) oDismissal with prejudice: appeal -GR: Signed by the parties; EXCEPTION: Lawyer has authority and personal knowledge Ibyang | 4 -Substantial compliance rule (Rule 1, Sec.6) Q:Is jurat part of a pleading (GR: No, unless the affidavit is verified or with CNFS) -Should contain IBP, PTR, MCLE, Roll number (lack of: pro forma, no legal effect, ground for dismissal) PROVISIONAL REMEDIES -Should be considered in preparation of pleadings. -Nature: Temporary, effective during the pendency of the action; provisional. -Purpose: protect the property, status quo (last actual, peaceable, uncontested status of the parties), to secure payment of obligation. -Available in all courts (ancillary jurisdiction) except support pendent lite Q: Is the list (Rule 57-61) exclusive? No.(Temporary Environmental Protection Order, delivery of legitime, support, visitational rights, witness protection order, production/inspection orders, temporary protection/restraining orders, hold departure order) 1.Attachment (Rule 57, Sec. 1 define) -Placing the property to courts jurisdiction -Quasi-in-rem -COMMENCEMENT: filing of verified complaint or verified motion (before judgment) -Suppletory to Rule 127 when there is civil liability attached to the criminal case -REQUIREMENTS: verified motion/complaint, there is no security for the the judgment, all grounds available, bond -STAGES: application (anytime before judgment, issuance (may be ex parte), annotation of writ [levy: real property] or seizure/garnishment[personal property], served with summons for due process -REMEDIES: (Rule 57, Sec. 12) Discharge Attachment and Bond or Motion to quash without the bond [Sec. 13, Rule 57] (If bond is not required, Rule 39, Sec. 13); If denied, MR/certiorari -If one party dies, rule 86, claims against the estate.Q: Is there attachment in MTC? Yes. REMEDIES: a.MTC MTQ denied: MR in 15 days [Rule 65, Sec. 4] Denied: Certiorari to RTC within 60 days (Rule 65, Sec. 4 in relation to Rule 37) MR within 15 days (Rule 37) Appeal to CA (Rule 41) MR (Rule 37 in relation to Rule 52) Appeal to SC within 15 days (Rule 45) MR (Rule 52) *Rule 65 plus TRO or injunction (Sec. 7) *MR is required in certiorari b.RTC MTQ denied MR within 15 days (Rule37) Certiorari to CA within 60 days (Rule 37 in relation to Rule 65, Sec. 4) MR (Rule 52) Appeal to SC (Rule 45) MR (Rule 52) c.CA MTQ denied MR (Rule 37) Certiorari to SC (Rule 65) MR (Rule 52) d.SC MTQ denied MR (Rule 52) -REQUIREMENTS: verified application, bond, grounds, affidavit 2.Injunction (Rule 58) -KINDS: Preliminary-prohibitory, preliminary-mandatory and final-perpetual -NATURE: Discretionary, interlocutory; final (remedy is appeal) -COMMENCEMENT: filing of verified complaint or verified motion (before judgment) Ibyang | 5 -If as a main action, file with RTC because it is incapable of pecuniary estimation -CRIMINAL PROCEDURE: Not applicable UNLESS 10 conditions (Rule 127 and 112; Broca vs. Enrile) (Ex: preliminary investigations, pending strikes and lock-outs, acts already gone, government infrastructure, franchise or privileges) -Requires notice and hearing -TRO may be ex parte (effective for 20 days if issued by RTC/MTC; 60 days if issued by CA; until further notice if issued by SC) -If action involves irreparable damage: TRO will be effective within 20 days, non-extendible -If needed for extreme urgency: 72 hours, extendible by 17 days (AM # 07-7-12) -GROUNDS: Sec. 3 -Distinguish TRO from Status Quo Order (purpose, dates) -TRO vs. Injunction (dates, requirements ex parte/notice and hearing) -TRO vs. Temporary Environmental Protection Order (applicability) -TRO in summary procedure: Sec. 15 and 20 -TRO is not applicable to environmental cases -Preliminary-mandatory injunction vs. mandamus (Provisional remedy vs. special civil action; discretionary vs. ministerial; directed to persons, court or tribunal vs. directed to judicial and quasi-judicial) -Rule 56 vs. Rule 65, Sec. 7 -Preliminary prohibitory injunction vs. preliminary mandatory injunction vs. final (order, remedy, purpose, when to file) -REMEDY: Motion to Quash with Bond or Rule 65 - 3.Receivership (Rule 59) -Purpose and grounds -COMMENCEMENT: verified complaint or verified motion (before judgment) -REQUIREMENTS: verified application, affidavit, bond, grounds -Interlocutory order -If ground no longer exists, file a motion to terminate receivership - 4.Replevin (Rule 60) -Can either be ordinary action or provisional remedy -Jurisdiction if ordinary action: RTC/MTC -COMMENCEMENT: verified complaint or verified motion with application (before service of answer) -REQUIRES BOND: twice the value of the property -For DISCHARGE: double the bond -Applicable to crimpro (Rule 126): if not used in the commission of the crime nor mentioned in search warrant -Distinguish from attachment (subject matter, when to avail, type of action, bond) - 5.Support pendente lite (Rule 61) -Only in RTC because the main action is support(incapable of pecuniary estimation) -Applicable to criminal procedure -Requires notice and hearing by way of verified complaint or motion -Immediately executory oEFFECTS: Indirect contempt/writ of execution (Sec. 5) -Restitution, reparation, and damages are available (Sec. 7) SPECIAL CIVIL ACTIONS -Extraordinary remedies (Rule 62-71) -Ordinary and special civil actions cannot be joined (Rule 2, Sec. 5) Ibyang | 6 -May be used as suppletory or ordinary action (Rule 7, Sec. 1, venue) -REMEDY: MTD/demurrer -List is not exclusive (continuing mandamus, writ of kalikasan) -Initiatory pleading except Direct Contempt 1.Interpleader (Rule 62) -Verified complaint -Filed either to MTC/RTC -Claimants must file an answer within 15 days -Default is applicable -Distinguish from intervention 2.Declaratory relief and other similar remedies (Rule 63) -Quieting of title, consolidate ownership, reformation of instrument, breach of contract (list is exclusive) -For Declaratory Relief: Violation shall convert the action into ordinary civil action -JURISDICTION: RTC except quieting of title (20/50, MTC/RTC) -PURPOSE: for construction or validity 3.Rule 65 -Matter to consider: GAD, no plain, adequate, speedy relief nor appeal and Rule 41, Sec. 1 -GR: Hierarchy of courts; EXCEPTION: special compelling reasons (SC) -Material dates rule -MR is required except in 10 scenarios -Motion to extend time is prohibited; fixed and non-extendible -Requires CNFS -Correlate to Rule 46 (affidavit of service) Ibyang | 7 Rules 41, 42, 43 and 45 Forms of appeal Rule 45 -Original parties -Does not require MR -Mode of appeal -Period is extendible Rule 65 -Court/tribunal must be impleaded -Requires MR, 10 xpns -Mode of review -Not extendible Rule 37 not extendible, except in special and compelling reasons Rule 52/53, extendible only in SC. 64654543 in relation to R43 42 RTC appellate 41 RTC original 40 a. COA/COMELEC [in relation to R112] - > SC a. Ombudsman (criminal), SB, CTA, CA > SC Subject to Doctrine of Heirarchy of courts a. SB, CA, CTA, RTC > SC RTC: Purely questions of law. a. QJB and Ombudsman (admin) > CA List is not exclusive. XPN: NLRC (R65 to CA within 60 days) a. MTC/RTC > CA a. RTC/MTC (land registration, contested) > CA Also see Rule 40, Sec. 8 MTC > RTCCOURTS b. RTC > CAb. MTC/RTC -> SB c. MTC > RTC d. QJB - >CA 306015151515/3015/30DAYS (from receipt of order) CertiorariCertiorari Requires MR, subject to 10 xpns. Petition for Review on Certiorari Petition for Review Petition for Review Notice of Appeal/ Record on Appeal Notice of Appeal/Record on Appeal TYPE OF PLEADING/PETITION JurisdictionJurisdictionLaw, except 13 Law/FactsLaw/FactsLaw/FactsLaw/FactsISSUES/QUESTION ConstiConstiConstiStatuteStatuteStatuteStatuteBASIS Ibyang | 8 (Continuation of Rule 65) -Distinguish oCertiorari to annul/modify; discretionary oMandamus to require to act; discretion/ministerial oProhibition to prohibit; ministerial -As an extraordinary remedy, it should be filed 60 days from notice of the judgment or order denying MR -Material dates rule applies -Hierarchy of courts is applicable -Grounds: (a.) GAD, (b.) no plain, adequate, speedy remedy, ex. small claims, (c.) no appeal, R41, Sec. 1 -Requires TRO to toll execution/stop proceedings below. -Applicability: (Remedy) oInterlocutory order because not appealable; order which does not dispose the case in its entirety and leaves something else to be done oDecision from Rule 65 is a final order, thus, appealable oJudgment by default If there is evidence on record, appeal; if none [usual case], MR/MNT [37] Certiorari [65] MR [52] Relief [38]/Annulment [47] oNLRC MR R65 (CA) MR [52] R45 (SC) oSec. of Labor R65 (CA) oDenial of registration of union R65 (CA) oResolution of Ombudsman R65 oBailable criminal offenses R65 (CA) oOrder of default Motion to lift R65 oOrder of execution R65 Grave abuse of discretion (GAD) arbitrary, whimsical; Excess beyond; lack no basis 4.Quo warranto (Rule 66) -Define; ground for dissolution of a corp. -Concurrent: RTC, CA, SC, Sandiganbayan-Jurisdiction if initiated by Soloen: Sec. 7 (RTC, Manila) -Appealable 5.Expropriation (Rule 67) -Subject matter: right of the state to take private property with just compensation -Procedures/Judgments: oRight to expropriate oJust compensation oExecution (all are appealable through record on appeal) -LGU: There should be an ordinance; for public use and with just compensation -Counterclaim and MTD are not applicable. -Distinguish from Rule 91 (pro v rem vs. spec-pro; purpose; jurisdiction RTC exclusive vs. MTC/RTC depending on the value) 6.Foreclosure (Rule 68) correlate with receivership and consolidation of ownership -Real action and quasi-in-rem (20/50 assessed value) -REMEDIES OF MORTGAGE, in case of death of mortgagor: (Rule 68 in relation to Rule 86) oAbandon the mortgage and file a claim against the estate (Rule 86) oForeclose the property oForeclose, and if there is a deficiency, file a claim against the estate -Action that survives and may be claimed against the estate Ibyang | 9 -Not a prejudicial question in BP 22 cases. -Equity of redemption: Judicial foreclosure (90 120 days or before confirmation) EXCEPT Banks (within 1 year) and family home (R39, Sec. 13) -Right of redemption: Extra-judicial foreclosure (1 year from sale) 7.Partition (Rule 69) -Co-ownership -Quasi-in-rem/Personal, real, mixed action -Non-probate proceeding: compulsory heirs may file -Rule 74, Sec. 1, if a compulsory heir later on disagrees. -STAGES: oDetermination of co-ownership oPartition (Appealable through record on appeal) 8.Forcible entry and Unlawful detainer (Rule 70) -Summary in nature (MR is prohibited) -Distinguish unlawful detainer vs. forcible entry -Tolerance should be based on facts -Appeal: oNotice of appeal within 15 days + appeal docket fees + bond oRecord on appeal deposit of periodic rentals -If judgment is reversed: restitution and damages-Judgment is immediately executory unless appeal is perfected -REMEDIES: MTC (adverse decision) Appeal-RTC [R40] MR [37] (converted into ordinary civ-pro) 42 52 45 52 -To RTC: Rule 65 because order is interlocutory PLUS TRO or injunction -STUDY prohibited motions and pleadings (Sec. 20) 9.Contempt (Rule 71) -KINDS: oDirect Sec. 1 oIndirect Sec. 3 oCriminal penal in nature; attacking the integrity of the court oCivil non-compliance with lawful order oOut of court indirect oIn court direct -Remedy for direct contempt: Sec. 2 -Contempt is inherent power of courts -Contempt power of QJB: Sec. 12 -Where to file: governing law of the QJB, if none, RTC -Contempt power of NLRC/LA: Sec. 218 of Labor Code; Federico vs. NLRC (2012) 10.Continuing Mandamus -Environmental cases; order directed to government office or official -Continues until judgment is fully satisfied. 11.Writ of Kalikasan -2 or more damages of the environment -REMEDY: R45 Ibyang | 10 FILING OF PLEADINGS -Before the clerk of court oOffice of clerk of court where to file oBranch clerk of court issues summons -REMEDIES/PROCEDURES: oLTD Affidavit of adverse claim filed with the Register of Deeds MR (within 5 days) Appeal (LRA within 10 days, Sec. 117) CA (R43) MR (R52) SC (R45) MR (R52) Notice of lis pendens filed with the Register of Deeds MR within 10 days Appeal to LRA within 10 days MR [R37] within 10 days CA (R43) MR (R52) SC (R45) MR (R37) -Distinguish lis pendens vs. litis pendentia (R13, Sec. 14 vs. R16, Sec. 1, e) (notice vs. motion; where to file, purpose, remedy) SUMMONS -Define -Distinguished from subpoena (definition, purpose, who issues, kinds) -Ground for MTD: Lack of jurisdiction over the person of the defendant -Actions of the court for such ground: oGrant dismiss without prejudice (Refile) oDeny answer oIssue an alias summon -MODES OF SERVICE oPersonal (handing/tendering plus affidavit of service) oSubstitute (residence or office) oExtraterritorial -Foreign juridical entity without agent: through DFA (personal, publication plus mail, electronic means) -If there is MERGER of corporations: To the original corp, UNLESS prevailing corp assumes liability of the original. -Effect of amendment oAppeared (answer already filed) no need to reissue summons EXCEPT if amendment is substantial oNot yet appeared reissue summons-Motion to admit answer is equivalent to motion to extend time -Motion to extend time: voluntary submission UNLESS to question the courts jurisdiction REMEDIES AFTER SUMMONS BEFORE FILING OF RESPONSIVE PLEADING (including Motion for summary judgment, provisional remedies, intervention) a.Motion to Dismiss (Rule 16) -Omnibus and litigated motion -Subject matter: all initiatory pleadings -GR: Prohibited in Summary Procedure EXCEPTION: Lack of jurisdiction over subject matter and brgy. conciliation (condition precedent) EXCEPTION TO EXCEPTION: Small claim (MTD is absolutely prohibited) -Prohibited in envi cases, absolute. -Dismissal with prejudice: Sec. 5 plus litis pendentia (REMEDY: Appeal) -Dismissal without prejudice: All the rest, refile (GR) or amend (also see Rule 41, Sec. 1) EXCEPT: Lack of jurisdiction over subject matter and failure to state cause of action (ADDITIONAL REMEDY: Amend to confer jurisdiction, as a matter of right) -DISTINGUISH Rule 16 from Rule 33 (nature, when filed, grounds, if granted, if denied) -DISTINGUISH Rule 16 from Rule 50 (court, what is to be dismissed) Ibyang | 11 Q: Can you amend a pleading if there is MTD? Yes, MTD is not a responsive pleading. Q: Can you amend after judgment? Yes, provided that its not final and executory. b.Motion for Bill of Particulars (Rule 12) -Distinguish from Bill of Particulars, from order to answer MBoP (motion, order, bill) -Distinguish Rule 12 vs. Rule 116, Sec. 9 (purpose, when to file, who may move, addressed to which pleading) -Not allowed in summary procedure/small claims. Q: Is BoP part of the pleading? Yes, together with initiatory pleadings. c.Motion to extend time (Rule 11, Sec. 11) -Tantamount to submission to courts jurisdiction (same with motion to admit) -Filed within the period to be extended -Not applicable to Rule 65, with 10 xpns. d.Amendment (Rule 10) -Supersedes the original complaint -KINDS: Matter of right, by leave of court, to confer jurisdiction [before a responsive pleading], to conform to evidence, formal, substantial -REMEDY: MR R65 because order is interlocutory *Issue summons if no jurisdiction yet - Amendment in case of non-joinder of action - Distinguish from supplemental (leave of court, when, effects) e. Rule 17 (DISMISSAL BY PLAINTIFF) f. Summary Judgment g. Intervention - ancillary - REMEDY if denied: Appeal or file a separate action - Not applicable to Summary Procedure, small claims, creditors of estate - Applicable to envi cases h. Modes of Discovery - Rule 23-28 is not an exclusive list - Subject to the courts discretion. - Define; purposes (7 + obtain full information) - Kinds: Rule 23-28 - Habaes Data/Amparo: Rule 27 applies - Rule23 in relation to rule 134 Q: Are the modes applicable to criminal cases? Yes, only in suppletory character (Rule 27 does not apply because of Rule 116, Sec. 10 AND Rule 23 does not apply because of Rule 119, Sec. 12 and 13) i.Rule 23 -Deposition is evidence (object, documentary, testimonial), in case of admission -Taking of deposition (oral/written, videotape in case of child witness) oHow (filing, examination of witness [Rule 132, Sec. 3-18], transcribed and presented to deponent, signed, sealed, and filed to court) oWho may take deposition -Use of deposition: Sec. 4 (Impeachment: Rule 132, Secs. 11 and 13) -Effect of death of deponent: remains as an evidence (Rule 130, Sec. 47; no violation in using hearsay evidence) Ibyang | 12 -Objections: officer should not UNLESS granted by the court in the order to take deposition -LIMITATIONS: privileged communications, tends to harass or annoy ii. Rule 24 -Petition filed to any court iii. Rule 25 -Distinguish from Rule 23 -Answer should be verified: If not, summary judgment (R35 or Rule 29, Sec. 5) -REMEDY for actionable document: File answer with specific denial under oath -LIMITATIONS: privileged communications, tends to harass or annoy iv. Rule 26 - Answer should be verified: If not, R34 judgment on the pleadings v.Rule 27 - Distinguished from subpoena duces tecum (how, purpose, when available, nature)- Matters to consider: production and surveying provided its not privileged - Correlate with Rule 130, Sec. 24 - Applies to AMparo, Data, envi - Rule 130, Sec. 3, (b) distinguished from R27 R27R130 Mode of discoveryException to best evidence rule MotionNotice No prior knowledge of the questions/subject matterRequesting party has prior knowledge vi. Rule 28 - Applicable to parties only - Distinguish Rule 28 and Rule 101 (nature, purpose, form, who may file) - Rule 29: Effects DEFAULT -Distinguish Motion to Declare Defendant in Default (MTDDD) vs. Order of Default (OD) vs. Judgment by Default (JD) -Process of MTDDD (REQUIRES: acquisition of jurisdiction, failure to respond, proof of failure, motion, notice, hearing) Q: When can there be an Order of Default? Non-response to initiatory pleadings and Rule 25 -Effects of OD? Lose standing, can still be a witness, admissions are extrajudicial admission, entitle to receive notice, judgment order, substantial amendments Q: Effect if there is substantial amendment? OD is lifted. -REMEDY FOR ORDER OF DEFAULT (EX MTC) oMotion to lift OD, verified, based on FAME, affidavit of merit oMotion to admit answer + answer oIf denied, MR (R65, Sec. 4 plus TRO or injunction) [because interlocutory order] RTC MR (R37) CA (R41) [because judgment of RTC is final] MR (R52) SC (R45) MR (52) -Judgment by default: judgment rendered by virtue of order by default after presentation of evidence ex parte -REMEDIES FOR JUDGMENT BY DEFAULT: (MTC) oBefore it becomes final and executory MR/MNT/Motion to set aside judgment by default (FAME, verified, affidavit of merit) RTC (R65 plus TRO or injunction) MR (R37) CA (R41) MR (R52) SC (R45) MR (R52) oFinal and Executory Ibyang | 13 Relief from judgment (R38) MR MTC (R65 plus TRO) MR (R37) CA (R41) MR (R52) SC (R45) MR (R52) Annulment of judgment (R47) (only in RTC/CA) MR (R37) R65 Certiorari (Ex. RTC) (R65) MR (R37) CA (R41) MR (R52) SC (R45) MR (R52) ANSWER -GR: Need not be verified Exceptions: Answer with PCC, Answer with CrC, Answer to Interrogatories, Answer for actionable document, usury, small claims and summary procedure -KINDS: Affirmative, Negative, SLAPP (of defenses) -Matters to consider: Verification and defenses -DAYS: 10 (summary procedure), 15 (ordinary), 30 (foreign private entity), 60 (extraterritorial, foreign entity) -Judgment on the pleadings is possible -Pleadings may be amended with leave of court -A party may file a reply REMEDIES AFTER FILING OF ANSWER a. Rule 34 b. Supplemental Answer c. Rule 17, Sec 2 d. Rule 10, Sec. 2 e. Deposition f. Provisional remedies PRE-TRIAL (Rule 18) -Lack of is not a ground to dismiss because clerk of court is directed to set the pre-trial if plaintiff fails to move (AM 03-1-09) -Mandatory but can be waived if lack of it is not raised during trial. -Distinguished from R118 (who inititates, when, main purpose, pretrial brief, effect of non-appearance, signature in PTA, effects) -Rule of appearance on parties: personal -Non-appearance of plaintiff: dismissal with prejudice unless otherwise ordered (Principle of non-suited) -Preliminary Conference in Summary Procedure: does not require ex parte motion, does not require brief unless ordered by the court. -Preliminary Conference in CA (Rule 48) -Matters to consider: 1-day, 1-witness rule, Most Important Witness Rule, JDR, Judicial Affidavit Rule-EFFECTS/REMEDIES FOR NON-APPEARANCE OF DEFENDANT oOrder allowing = MR R65 MR Appeal oOrder allowing plus presentation of evidence ex parte = MR/Motion to set aside R65 + TRO R52 Appeal oOrder allowing plus presentation of evidence plus judgment which is not final and executory = MR/MNT R65 MR AppealoJudgment becomes final and executory i. R38 MR R65 MR Appeal ii. R47 MR R65 MR Appeal iii. R65 MR Appeal iv. Collateral Attack (separate action attacking the judgment) TRIAL (Read Rule 132) (Rule 30) Ibyang | 14 -KINDS: In absentia, inverted, ex parte, one-sided, impartial, de novo, public trial, trial by commissioner -Order of trial (Sec 5) -Inverted trial happens if defendant files an answer with affirmative defense -NO TRIAL: summary procedure, small claims, r34, r35, compromise, MTD (grounds raised is for dismissal with prejudice), r17, s3 except non-compliance with order of the court. -Evidence not marked are deemed waived unless allowed by the court -Rule 132, Section 4-8 -Offer of testimony: Rule 132, Section 35 -Offer of evidence: Rule 132, Section 34 -Offer of examination: Rule 132, Section 5-8 -Judicial Affidavit Rule: written testimony of witness (lack of, witness will not be allowed to testify) -Types of objection to testimony/evidence (Leading: suggesting answer, Misleading: contrary to testimony, Argumentative, Hypothetical, No basis, Calling on conclusion, Narrative, Immaterial, Irrelevant) -Actions of court: Rule 132, Section 38 and Section 40 (Section 40: remedy for excluded testimony; to be able to attach to records for appeal) -Resting the case: after all evidence were presented by plaintiff; done by plaintiff DEMURRER TO EVIDENCE (Rule 33) -Nature: Form of MTD, litigated -Distinguish Rule 33 from Rule 119, Section 23 -Distinguish from Rule 16 -Effects if granted (Appeal)/denied PRESENTATION BY DEFENDANT JUDGMENT (not yet final) -MR/MNT (Rule 37): Before appeal -Final: Reopening of case (based on equity); for additional evidence (crim: R119, Section 24/civil: equity) -Neypes ruling applies: Fresh period rule -APPEAL -Distinguish R37 vs R52 vs R53 REMEDIES/PROCEDURE: oBefore finality of trial MTC MR (R37) RTC (R40) MR (R37) CA (R42) MR (R52/53) SC (R45) MR (R52/53) RTC MR (R37) CA (R41) MR (R52/53) SC (R45) MR (R52/53) RTC MR (R37) SC (R45, question of law only) SB SC (R45) -Residual power of the lower court pending appeal -Fresh period rule applies -How perfected: Notice of appeal or Record on appeal oAfter finality Rule 38 filed with the court of origin within 60 days from knowledge and within 6 months from entry of judgment Annulment of judgment (Rule 47): Not applicable to labor cases Rule 65 Collateral Attack: separate action attacking the judgment Ibyang | 15 EXECUTION (Rule 39) -Available in crimpro, in so far as the civil aspect is concerned. -Total of 10 years to execute -Non-satisfaction of whole judgment: Examination of the defendant -Order of execution: (properties) personal real debts/bonds -IMMEDIATELY EXECUTORY: injunction, support, accounting, judgment in Rule 70 in favor of plaintiff, small claims. -REMEDIES against execution: a.Motion to Quash the writ of execution oIf as a matter of right Mandamus oIf as a matter of discretion Certiorari oGROUNDS: wrong party, exempt property, Dispositive portion, compromise agreement b. Terceria (r39, s16 and r57, s14) o3rd-party claim oAffidavit filed with the sheriff c. Writ of Possession in case of denial oEx parte (ministerial) d. Examination under oath of debtor e. Garnishment f. Redemption g. Injunction h. R70, S19 NOTE: Let it be known that this is just a guide; not complete nor perfect. Feel free to correct or supplement whatever is needed. But I am hoping that this will help you in studying the subject. -IBYANG-