MIDTERMS Oral Questions 2023 JParungo Flashcards
Distinguish between joinder of parties and causes of action (cite requisites)
(RULE 3) SECTION 6. Permissive
Joinder of Parties.— All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the
alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to
expense in connection with any proceedings in which he may have no interest.
(RULE 2) SECTION 5. Joinder of Causes of Action.— A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:
(a) The party joining the causes of action shall comply with the
rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions governed by special rules;
(c) Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall
be the test of jurisdiction
What are the requisites for securing a declaration of default and what are the remedies against a declaration of default?
Requisites for securing a declaration of default:
- The court must have validly acquired jurisdiction over the person of the defending party, either by service of summons or voluntary appearance;
- The defending party must have failed to file his answer within the time allowed therefor;
- The claiming party must file a motion to declare the defending party in default;
- The claiming party must prove that the defending party has failed to answer within the period provided by the ROC;
- The defending party must be notified of the motion to declare him in default; and
- There must be a hearing set on the motion to declare the defending party in default.
B. Remedies against a declaration of default:
Before judgment
1. File a motion under oath to set aside the order of default upon proper showing that:
i. His or her failure to answer was due to fraud, accident, mistake or excusable
negligence; and
ii. He has a meritorious defense - such that the motion must be accompanied by a statement of the evidence which he intends
to present if the motion is granted and which is such as to warrant a reasonable belief that the result of the case would probably be otherwise if a new trial is granted [Sec. 3(b),
Rule 9].
In such a case, the order of default may be set aside in such terms and conditions as the judge may impose in the interest of justice [Sec. 3(b),Rule 9]
After judgment but before it has become final and executory
1. Motion for new trial under Sec. 1(a), Rule 37; or
2. Appeal from the judgment as being contrary to the evidence or the law.
After judgment has become final and executory
1. Petition for relief under Rule 38; or
2. Petition for certiorari under Rule 65 will lie when said party was improperly declared in default.
What are the remedies against a default judgment?
Section 3(b) of Rule 9 of the Rules of Court provides that a party declared in default may at any time after notice thereof and before judgment, file a motion under oath to set aside the order of default upon proper showing that his or her failure to answer was due to fraud, accident, mistake or excusable
negligence and that he or she has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.
What are the undertakings implied in the signature of counsel in pleadings?
The signature of counsel constitutes a certificate that he or she has read the
pleading and document and that such pleading or document:
1. Is not being presented for any improper purpose to harass, delay, or increase cost of litigation;
2. Has claims, defenses, and other legal contentions that are warranted by law or jurisprudence, and not merely based on frivolous arguments contrary to jurisprudence;
3. Has factual contentions that have evidentiary basis or will most likely
be supported by evidence after availment of modes of discovery; and
4. The denials of facts are based on evidence or based on belief of lack of information if specially so identified [Sec. 3, Rule 7].
What are the remedies against splitting a cause of action?
The filing of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others [Sec. 4, Rule 2].
The defendant facing a complaint which is infirm due to the plaintiff splitting
causes of action may either allege the infirmity as an Affirmative Defense in his
Answer [Sec. 5(b), Rule 6] or file a Motion to Dismiss on the following grounds:
a. Litis Pendentia: There is another action pending between the same
parties for the same cause [Sec. 12 (a)(2), Rule 15]; or
b. Res Judicata: The cause of action is barred by a prior judgment. [Sec.
12 (a)(3), Rule 15.
What is the rule on partial default? Discuss.
Section 3(c) of Rule 9 of the Rules of Court provides that when a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented [Sec. 3(c), Rule 9].
Its effects are:
a. The court should declare defaulting defendants in default and proceed to trial on answers of others; or
b. If the defense is personal to the one who answered, it will not benefit those who did not answer
Distinguish between the ultimate objective approach from the textual approach in determining whether the subject matter of a complaint is beyond pecuniary estimation
Ultimate Objective Approach - requires the judge to speculate on the defenses of the plaintiff beyond the material allegations contained in the complaint.
Textual Approach - finding its basis in the body of the complaint and the relief sought
without reference to extraneous facts not alleged or evidence still to be presented.
What is the Manotoc doctrine? Discuss the characteristics of an ideal sheriff and how these are reflected in his return of service.
Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant.
For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove
impossibility of prompt service.
“Several attempts” means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted.
The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service. The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return.
What are the consequences of failure to attend pretrial for the plaintiff and for the defendant?
PLAINTIFF AND COUNSEL
Effect : The action shall be dismissed with prejudice, unless otherwise ordered by the court [Sec. 5, Rule 18].
Remedy : Motion for reconsideration, then appeal.
DEFENDANT AND COUNSEL
Effect : The plaintiff shall be allowed to
present evidence ex parte within 10
calendar days from termination of
pre-trial and judgment shall be rendered based on the evidence offered [Sec. 5, Rule 18].
Remedy: Motion for reconsideration, and if
the denial is tainted with grave abuse of discretion, a petition for certiorari.
What should the initiatory pleading contain and how is it verified?
Initiatory pleading should contain the following:
1. Caption, setting forth the:
a. Name of the court;
b. Title of the action (i.e. the names of the parties and respective participation); and
c. The docket number, if assigned [Sec. 1, Rule 7].
2. Body
3. Signature and address
4. Verification
5. Certification Against Forum Shopping
6. Other contents of pleading such as:
a. Names of witnesses;
b. Summary of the witnesses’ intended
testimonies, provided that the judicial affidavits of said witnesses shall be attached to the pleading and form an integral part thereof, and
c. Documentary and object evidence [Sec. 6, Rule 7].
It is verified by an affidavit under oath with the following attestations:
1. The allegations in the pleading are true and correct based on personal knowledge or authentic documents;
2. The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
3. The factual allegations therein have evidentiary support or, if specifically so identified, will likewise have evidentiary support after a reasonable opportunity for discovery.
Discuss the concept of forum shopping and its legal consequences.
Forum shopping is the repeated availment of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues, either pending in or already resolved adversely by some other court.
Test to determine existence of forum shopping: Whether in the two or more cases pending, there is identity of:
1. Parties;
2. Rights or causes of action; and
3. Relief sought
Defect
1. Failure to comply with the requirements - Effect : Not curable by mere amendment of
the complaint or other initiatory
pleading.
Cause for dismissal of the case,
without prejudice, unless otherwise
provided, upon motion and after
hearing.
2. False certification or non-compliance
with any of the undertakings therein - Effect : Constitutes indirect contempt of
court, without prejudice to
administrative and criminal actions.
3. When there is willful and deliberate
forum shopping - Effect : (a) Direct contempt of court (b) Ground for summary dismissal, with prejudice and (c) Cause for administrative sanctions.
Distinguish personal service of the writ of summons from that of pleadings and other papers.
(RULE 14) SECTION 5. Service in
Person on Defendant. — Whenever
practicable, the SUMMONS shall be
served by handing a copy thereof
to the defendant in person and
informing the defendant that he or
she is being served, or, if he or she
refuses to receive and sign for it,
by leaving the summons within
the view and in the presence of
the defendant.
VS
(RULE 13) SECTION 6. Personal Service. —
Court submissions may be served by
personal delivery of a copy to the party or
to the party’s counsel, or to their
authorized representative named in the
appropriate pleading or motion, or by
leaving it in his or her office with his or her
clerk, or with a person having charge thereof. If no person is found in his or her
office, or his or her office is not known, or
he or she has no office, then by leaving
the copy, between the hours of eight in the
morning and six in the evening, at the
party’s or counsel’s residence, if known,
with a person of sufficient age and
discretion residing therein.
Distinguish substituted service of the writ of summons from that of pleadings and other papers.
(RULE 14) SECTION 6. Substituted Service.
— If, for justifiable causes, the defendant
cannot be served personally after at least
three (3) attempts on two (2) different
dates, service may be effected:
(a) By leaving copies of the summons at
the defendant’s residence to a person
at least eighteen (18) years of age and
of sufficient discretion residing therein;
(b) By leaving copies of the summons at
the defendant’s office or regular place
of business with some competent
person in charge thereof. A competent
person includes, but is not limited to,
one who customarily receives
correspondences for the defendant;
(c) By leaving copies of the summons, if
refused entry upon making his or her
authority and purpose known, with
any of the officers of the homeowners’
association or condominium
corporation, or its chief security officer
in charge of the community or the
building where the defendant may be
found; and
(d) By sending an electronic mail to the
defendant’s electronic mail address, if
allowed by the court
(RULE 13) SECTION 8.
Substituted Service. — If service
of pleadings, motions, notices,
resolutions, orders and other
papers cannot be made under the
two preceding sections, the office
and place of residence of the
party or his or her counsel being
unknown, service may be made
by delivering the copy to the clerk
of court, with proof of failure of
both personal service and service
by mail. The service is complete
at the time of such delivery.
Distinguish the modes of service from the modes of filing pleadings and other papers.
Modes of Service : Pleadings, motions, notices, orders, judgments, and other court
submissions shall be served personally or by registered mail, accredited courier, electronic mail, facsimile transmission, other electronic means as may be authorized by the court, or as provided for in international
conventions to which the Philippines
is a party (Rule 13, Sec. 5)
Modes of Filing Pleadings: The filing of pleadings and other court submissions shall be made by:
(a) Submitting personally the original
thereof, plainly indicated as such, to
the court;
b) Sending them by registered mail;
(c) Sending them by accredited
courier; or
(d) Transmitting them by electronic
mail or other electronic means as
may be authorized by the [c]ourt in
places where the court is electronically equipped.
In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second
and third cases, the date of the mailing of motions, pleadings, [and other court submissions, and] payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The
envelope shall be attached to the record of the case. In the fourth case, the date of electronic transmission
shall be considered as the date of filing (Rule 13, Sec. 3)
Distinguish personal and substituted service of the writ of summons on private domestic juridical entities.
(RULE 14) SECTION 12. Service upon Domestic Private Juridical Entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel of the corporation wherever they may be found, or in their absence or unavailability, on their secretaries.
If such service cannot be made upon any of the foregoing persons, it shall be made upon the person who customarily receives the correspondence for the
defendant at its principal office.
In case the domestic juridical entity is under receivership or liquidation, service of summons shall be made on the receiver or liquidator, as the case may be.
Should there be a refusal on the part of the persons abovementioned to receive summons despite at least three (3) attempts on two (2) different dates, service
may be made electronically, if allowed by the court, as provided under Section 6 of this Rule.
[Sec. 6, Rule 14] However, with such provision under this section, it appears that the requirement of 3 attempts on 2 different dates does not apply in this instance. As soon as service cannot be made on the officers or their
secretaries, service can already be made on the person customarily receiving correspondence.
Discuss the scope and subject matter of small claims under the Expedited Rules in first level courts
In First Level Courts, small claims cases are those where the claim does not exceed 1M, exclusive of interest and costs. It is an action that is purely civil in nature where the claim or relief raised by the plaintiff is solely for the payment or reimbursement of a sum of
money. It excludes actions seeking other claims or reliefs aside from payment or reimbursement of a sum of money and those coupled with provisional
remedies.
The claim or demand may be:
a. For money owed under any of the following:
i. Contract of Lease;
ii. Contract of Loan and other credit accommodations;
iii. Contract of Services; or
iv. Contract of Sale of personal property, excluding the recovery of the personal property, unless it is made the subject of a compromise agreement between the parties.
b. The enforcement of barangay amicable settlement agreements and arbitration awards, where the money claim does not exceed 1M, provided that no execution has been enforced by the barangay within 6 months from the date of the settlement or date of receipt of the award or from the date the obligation stipulated or adjudged in the arbitration award becomes due and demandable, pursuant to Sec. 417, Chapter 7 of RA 7160.
