Part I Flashcards
Distinguish between joinder of parties and causes of action (Requisites)
Joinder of Parties:
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.
Joinder of Causes of Action
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?
RULE 9
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.
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?
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 undertaking implied in signature of counsel in pleadings?
RULE 7, Sec. 3
(a) Every pleading [and other written submissions to the court] must be signed by the party or counsel representing him or her.
(b) The signature of counsel constitutes a certificate by him or her that he or she has read the pleading and document; that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) The claims, defenses, and other legal contentions are warranted by existing law or jurisprudence, or by a non-frivolous argument for extending, modifying, or reversing existing jurisprudence;
(3) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after availment of the modes of discovery under these [R]ules; and
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c) If the court determines, on motion or motu proprio and after notice and hearing, that this [R]ule has been violated, it may impose an appropriate sanction or refer such violation to the proper office for disciplinary action, on any attorney, law firm, or party that violated the rule, or is responsible for the violation. Absent exceptional circumstances, a law firm shall be held jointly and severally liable for a violation committed by its partner, associate, or employee.
The sanction may include, but shall not be limited to:
1. non-monetary directive or sanction;
2. an order to pay a penalty in court; or,
3. if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation, including attorney’s fees for the filing of the motion for sanction.
The lawyer or law firm cannot pass on the monetary penalty to the client.
What are the remedies against splitting a cause of action?
RULE 4, Sec. 2. Splitting a single cause of action; effect of. - If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others.
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.
RULE 9. Sec. 3(c)
Effect of partial default. – 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.
Partial default, when applicable:
a. There is more than 1 defendant
b. The pleading states a common action against the several defendants
c. Some of the defendant answered
d. The others failed to do so
Effect:
1. An order of default may be issued against the defendants who failed to file an Answer. These defendants in default will be give notice of the subsequent proceedings but are not entitled to participate in the trial. They are not entitled to present evidence, and object on evidence presented.
2. But reception of evidence ex parte and Default Judgment is not allowed. This is because the court shall try the case against ALL defendants based upon the answers filed and render judgment upon the evidence presented. The non-defaulting defendants are entitled to present their evidence, participate during the trial, and the end-result of the trial shall affect all the defendants, including the defendant in default.
Paragraph (c) only provides for the manner in which the trial will be conducted in a case where a defendant filed no Answer although his co-defendants did. The paragraph provides only that the case will be tried upon the Answers filed by the responsive defendants. Nowhere does it state that the Rule on default does not apply. It is not an exception to a defendant being declared in default.
The defendant who does not file an Answer is to be declared in default. This is the Rule and paragraph (c) of Section 3, Rule 9 is no exception to it. Said provision, in fact, recognizes a situation where one defendant among several is in default. This is clear from paragraph (c)’s own heading, “Effect of partial default”. That very heading recognizes that default exists within the set. This recognition can only be upon the Court’s declaration of default pursuant to the first paragraph of Section 3 of Rule 9.
Paragraph (c) of Section 3, Rule 9 thus provides for the manner of the trial’s conduct in a situation where one party among several, but not all, were declared in default pursuant to the first paragraph of Section 3, Rule 9. It contemplates the existence of a default in one of the defendants. It is, therefore, not an exception to the rule on default, but a consequence.
Distinguish between the ultimate objective approach from the textual approach in determining whether the subject matter of a complaint is beyond pecuniary estimation.
SKIP
Ultimate Objective Approach requires the judge to speculate on the defenses of the plaintiff beyond the material allegations contained in thecomplaint
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 charactersitics if an ideal sheriff and how these are reflected in his return of service.
Manotoc doctrine (Substituted Service) - 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. (Manotoc vs. CA)
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, Sheriffs need to be resourceful, persevering, canny, and diligent in serving the process on the defendant. (Manotoc vs. CA)
What are the consequences of failure to attend pre-trial for the plaintiff and the defendant?
Failure to attend the pre-trial does not result in the “default” of the defendant. The failure of the defendant to attend shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof [Aguilar v. Lightbringers Credit Cooperative, G.R. No. 209605 (2015)]
What should the initiatory pleading contain and how is it verified?
RULE 7
Initiatory pleading should contain the following:
- Caption which sets forth:
a. Name of the court;
b. Title of the action (i.e. the names of the parties and their respective participation); and
c. The docket number, if assigned. - Body which sets forth:
a. Designation
b. Allegations of the party’s claims or defenses which shall be divided into paragraphs. Each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience.
When two or more causes of action are joined, the statement of the first shall be prefaced by the words “first cause of action,” of the second by “second cause of action,” and so on for others.
c. Relief prayed for - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable.
d. Date of the pleading
- Signature and address
- Verification. A pleading is verified by an affidavit of an affiant duly authorized to sign said verification. The authorization of the affiant to act on behalf of a party, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading, and shall allege the following attestations:
a. The allegations in the pleading are true and correct based on his or her personal knowledge, or based on authentic documents;
b. The pleading is not filed to harass, cause unnecessary delay , or needlessly increase the cost of litigation; and
c. The factual allegations therein have evidentiary support for discovery.
- Certification Against Forum Shopping
- Other contents of pleading such as:
a. Names of witnesses who will be presented to prove a party’s claim or defense
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 in support of the allegations contained in the pleading.
Discuss the concept of forum shipping and its legal consequences.
RULE 7, Sec. 5
Section 5. Certification against forum shopping. - The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he [or she] has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his [or her] knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he [or she] should thereafter learn that the same or similar action or claim has been filed or is pending, he [or she] shall report that fact within five (5) calendar days therefrom to the court wherein his [or her] aforesaid complaint or initiatory pleading has been filed.
The authorization of the affiant to act on behalf of a party, whether in the form of a secretary s certificate or a special power of attorney, should be attached to the pleading.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his [or her] counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.
Distinguish personal service of the writ of summons from that of pleadings and other papers.
SERVICE OF SUMMONS IN PERSON 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.
PERSONAL SERVICE OF PLEADINGS AND OTHER PAPERS. RULE 13. SECTION 6. Personal [S]ervice . — 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.
SERVICE OF SUMMONS IN PERSON 1. Personal Service
How done
a. By handing a copy to the defendant in person and informing the defendant that he or she is being served, or
b. 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. [Sec. 5, Rule 14] PERSONAL SERVICE OF PLEADINGS AND OTHER PAPERS
i. Personal service
How personal service is made Service by personal service shall be made by:
1. By personal delivery of a copy to the party, counsel, or to their authorized representative named in the appropriate pleading or motion, or
2. By leaving it in his or her office with his or her clerk, or with a person having charge thereof
● If (a) no person is found in his or her office, or (b) his or her office is not known, or (c) he or she has no office, then by leaving the copy at the party or counsel’s residence, if known, with a person of sufficient age and discretion residing therein.
● Such must be served at the residence at a time between 8 am to 6 pm. [Sec. 6, Rule 13]
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.
I. MODES OF FILING
The filing of pleadings and other court submissions shall be made by any of the following means: (1) Personal service; (2) By registered mail; (3) accredited courier; and (4) Electronic mail.
- Personal Service
This is done by submitting personally the original, plainly indicated as such, to the court. The clerk of court shall endorse on the pleading the date and hour of filing.
Proof of filing. The filing of a pleading or any other court submission shall be proved by its existence in the record of the case. If the pleading or any other court submission is not in the record, but is claimed to have been filed personally, the filing shall be proven by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the pleading or court submission
- By Registered mail
The date of the mailing, 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.
Proof of filing. If the pleading or any other court submission was filed by registered mail, the filing shall be proven by the registry receipt and by the affidavit of the person who mailed it, containing a full statement of the date and place of deposit of the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 calendar days if not delivered.
The modes of filing does not include ordinary mail, while the modes of service allows ordinary mail.
- Accredited courier
The date of the mailing, 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.
Proof of filing. If the pleading or any other court submission was filed through an accredited courier service, the filing shall be proven by an affidavit of service of the person who brought the pleading or other document to the service provider, together with the courier’s official receipt and document tracking number.
- Electronic mail (see Electronic Filing and Service)
II. MODES OF SERVICE
Pleadings, motions, notices, orders, judgments, and other court submissions shall be served: (1) personally; or (2) by mail, either registered or ordinary; (3) accredited courier; (4) electronic means.
- 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. The 1997 Rules simply provides “service of the papers may be made by delivering personally”, while the 2019 Amendments provides “court submissions may be served by personal service”.
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.
Proof of service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a statement of the date, place, and manner of service. If the service is made by:
- By mail
Service by registered mail shall be made by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or to the party’s counsel at his or her office, if known, otherwise at his or her residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after 10 calendar days if undelivered.
If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail.
Proof of service, ordinary mail. For ordinary mail, proof shall consist of an affidavit of the person mailing stating the facts showing compliance with the immediately proceeding paragraph.
Proof of service, registered mail. For registered mail, proof of service shall be made by the affidavit mentioned above and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof, the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.
- Accredited courier service
Proof of service. shall be made by an affidavit of service executed by the person who brought the pleading or paper to the service provider, together with the courier’s official receipt or document tracking number.
The 1997 Rules of Civil Procedure (hereinafter, “1997 Rules”) does not provide for “accredited private courier”, although the Supreme Court has considered service/filing by private courier as equivalent to service/filing by ordinary mail (PSBank vs. Papa, G.R. No. 200469, 15 January 2018).
- Service by electronic means and facsimile (see Electronic Filing and Service)
Distinguish personal and substituted service of the writ of summons on private domestic juridical entitties.
Rule 14. SUMMONS. 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 inhouse 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 above-mentioned 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.
Defendant is a 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.
The enumerations made under this section of the Rule is restricted, limited and exclusive. This means that where the defendant is a private domestic corporation, summons shall be served only through the officers so enumerated therein wherever they may be found. In arriving at this doctrine, the Supreme Court applied the basic rule on statutory construction expressio unius est exclusio alterius and explained that what has not been stated therein is intended not to be included.
In another case, the Supreme Court reiterated the doctrine laid down relative to this restricted, limited and exclusive list when the plaintiff failed to present the sheriff to establish the fact that the summons was received by the cost accountant upon the instruction of the general manager.
Service at Principal Office
If service of summons cannot be made upon any of these officers or their secretaries, it shall be made upon the person who customarily receives the correspondence for the defendant at its principal office.
Discuss the scope and subject matter of small claims under Expedited Rules in First Level Courts
A “small claim” 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:
1. Contract of Lease;
2. Contract of Loan and other credit accommodations;
3. Contract of Services; or
4. 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 One Million Pesos (₱1,000,000.00), provided that
no execution has been enforced by the barangay within six (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 Section 417,
Chapter VII of Republic Act No. 7160, otherwise known as The Local Government Code
of 1991.
Discuss the instances when electronic service is not allowed
When party concerned did not give consent to such mode of service
Rule 13, Section 9. Service by electronic means and facsimile. - Service by electronic means and facsimile shall be made if the party concerned consents to such modes of service.
When party concerned did not give consent to such mode of service
Rule 13, Section 9. Service by electronic means and facsimile. - Service by electronic means and facsimile shall be made if the party concerned consents to such modes of service.
Discuss the concept of presumptive service
Rule 13, Section 10 - Presumptive Service . — There shall be presumptive notice to a party of a court setting if such notice appears on the records to have been mailed at least twenty (20) calendar days prior to the scheduled date of hearing and if the addressee is from within the same judicial region of the court where the case is pending, or at least thirty (30) calendar days if the addressee is from outside the judicial region.
This is a new provision. It may have been made available in order to expedite cases, consistent with the aim of the amendments made.
Requisites:
1) Notice appears on the record;
2) Such record show that it was mailed at least:
a. 20 calendar days prior to the scheduled date of hearing, if the addressee is within the same judicial region; or
b. 30 calendar days prior to the scheduled date of hearing, if the addressee is outside the judicial region
Note: Since it is provided as a mere presumption, it may be subject to proof to the contrary, such as when counsel adduces evidence that notice of the court setting was indeed not served.
Distinguish between prohibited pleadings in summary procedure under the Expedited Rules from the previous Rule in Summary Procedure
New Expedited rules:
Sec. 2. Prohibited pleadings and motions. - The following pleadings, motions, or petitions shall not be allowed in cases governed by these Rules:
(a) In civil cases, a motion to dismiss the complaint or the statement of claim, and in criminal
cases, a motion to guash the complaint or information, except on the ground of lack of jurisdiction over the subject matter or failure to comply with the requirement of barangay conciliation, pursuant to Chapter VII, Title I Book III of Republic Act No. 7160;
(b) Motion to hear and/ or resolve affirmative defenses;
(c) Motion for a bill of particulars;
(d) Motion for new trial or for reconsideration of a judgment on the merits, or
for reopening of proceedings;
e) Petition for relief from judgment;
(f) Motion for extension of time to file pleadings, affidavits or any other paper;
(g) Memoranda;
(h) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(i) Motion to declare the defendant in default;
j) Dilatory motions for postponement. Any motion for postponement shall be presumed dilatory unless grounded on acts of God, force majeure, or physical inability of a counselor witness to personally appear in court, as supported by the requisite affidavit and medical proof;
(k) Rejoinder;
(l) Third-party complaints;
(m) Motion for and Complaint in Intervention;
(n) Motion to admit late judicial affidavit/s, position papers, or other evidence except on the ground of force majeure or acts of God;
(o) Motion for judicial determination of probable cause in criminal cases.
Previous Rule:
Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or information except on the
ground of lack of jurisdiction over the subject matter, or failure to comply with the
preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third party complaints;
(l) Interventions.
Note: Provided for an exception for dilatory motions for postponement namely; those grounded on acts of God, force majeure, or physical inability of a counselor witness to personally appear in court, as supported by the requisite affidavit and medical proof
This is an added list in the enumeration.
Discuss preliminary conference proceedings under the Expedited Rules in First Level Courts
Preliminary Conference
A preliminary conference shall be held not later than 30 days after the last answer is filed.
• The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of Rule 70.
1. The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint.
2. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section.
3. All cross-claims shall be dismissed.
4. If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section.
o This procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.
No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant [Sec. 8, Rule 70].
Distinguish and discuss the grounds for a motion to dismiss from those affirmative defenses
S12, R15 states that a motion to dismiss is a prohibited motion with the exception of the following grounds:
1. That the court has no jurisdiction over the subject matter of the claim;
2. That there is another action pending between the same parties for the same cause; and
3. That the cause of action is barred by a prior judgment or by the statute of limitations
On the other hand, the grounds for affirmative defenses are: Fraud, statute of limitations, release, payment illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession of avoidance. Affirmative defenses may also include grounds for the dismissal of a complaint, specifically, that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment.
Discuss court action on motion to dismiss and on affirmative defenses
Motion to Dismiss
The grounds under the current Rules are limited only to lack of jurisdiction over the subject matter, litis pendentia, res judicata, and prescription. [Sec. 12, Rule 15] Notably, the Amended Rules empower the court to dismiss a case motu proprio if the aforementioned non- waivable grounds are apparent on the face of the complaint. [Sec. 1, Rule 14]
b. Motion to hear affirmative defenses;
Note: Such motion is prohibited since the court is required to act on the affirmative defenses set out in the answer within 30 calendar days if the affirmative defense is among those listed in Sec. 12, Rule 8. The court is also allowed to avail of a summary hearing within 15 calendar days from the filing of the answer, and is thereafter mandated to resolve the affirmative defense within 30 calendar days from the termination of the summary hearing if the affirmative defenses are those set forth in the first paragraph of Sec. 5(b), Rule 6. [Sec. 12, Rule 8]
Discuss the rule on class suits
Section 12, Rule 3 of the Rules of Court defines a class suit, as follows:
Sec. 12. Class suit. – When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest.
From the foregoing definition, the requisites of a class suit are [Necessary elements for the maintenance of a class suit]:
1) the subject matter of controversy is one of common or general interest to many persons;
2) the parties affected are so numerous that it is impracticable to bring them all to court; and
3) the parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of all concerned.
In Mathay v. The Consolidated Bank and Trust Company, the Court held that:
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 suit depends upon the attending facts, and the complaint, or other pleading initiating the class action should allege the existence of the necessary facts, to wit, the existence of a subject matter of common interest, and the existence of a class and the number of persons in the alleged class, in order that the court might be enabled to determine whether the members of the class are so numerous as to make it impracticable to bring them all before the court, to contrast the number appearing on the record with the number in the class and to determine whether claimants on record adequately represent the class and the subject matter of general or common interest.
Distinguish amended pleadings from supplemental pleadings
Section 1. Amendments in general. — Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (1)
Section 2. Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a)
Section 3. Amendments by leave of court. — Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a)
Section 4. Formal amendments. — A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (4a)
Section 7. Filing of amended pleadings. — When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7a)
Section 8. Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (n)
WHEREAS
Section 6. Supplemental pleadings. — Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a)
