Parts 2-3

Question 1

Answer

Answer 1

An answer is a pleading in which a defending party sets forth his or her defense. (R6, S4)

A pleading or defense filed by the sued party.

Question 2

What if you did not raise a specific defense or objection in your answer?

Answer 2

They are deemed waived.

Question 3

What defenses or objections can be taken cognizance of by the court despite the fact that they are not raised in the motion to dismiss or answer?

Answer 3

Under Section 1, Rule 9, the following:

1. that the court has no jurisdiction over the subject matter
2. that there is another action pending between the same parties for the same cause (litis pendentia)
3. that the action is barred by prior judgment (res adjudicata)
4. that the action is barred by statute of limitation (prescription)

The exceptions can be raised at any time during or after the trial, or even for the first time on appeal. EXCEPT that lack of jurisdiction over the subject matter may be barred by laches.

Question 4

Cross-claim

Answer 4

A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may cover all or part of the original claim.

R6, S8

Question 5

Counterclaim

Answer 5

A counterclaim is any claim which a defending party may have against an opposing party.

R6, S6

Question 6

Compulsory counterclaim

Answer 6

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

Question 7

Effect when a compulsory counterclaim or cross-claim is not set up

Answer 7

The same shall be barred.

Question 8

What happens if the defending party fails to answer within the time allowed?

Answer 8

If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default.

Thereupon, the court shall proceed to render judgment granting the claimant such relief as his or her pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.

Question 9

Effect of order of default

Answer 9

A party in default shall be entitled to notices of subsequent proceedings but shall not take part in the trial.

Question 10

Relief from order of default

Answer 10

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.

Question 11

Effect of partial default

Answer 11

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.

Question 12

Within how many days can you file an Answer?

Answer 12

Under Rule 11, the defendant shall file his or her answer to the complaint within thirty (30) calendar days after service of summons, unless a different period is fixed by the court.

Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within sixty (60) calendar days after receipt of summons by such entity.

When the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within thirty (30) calendardaysafter being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within fifteen (15) calendardays from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.

This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)-party complaint, and amended complaint-in-intervention.

A counterclaim or cross-claim must be answered within twenty (20) calendardays from service.

The time to answer a third (fourth, etc.)-party complaint shall be governed by the same rule as the answer to the complaint.

Question 13

Requisites before a party may be declared in default

Answer 13

1. The Court must have acquired jurisdiction over the person of the defendant thru a valid service of summons or voluntary appearance
2. The defending party must have failed to file his answer within the reglementary period or within the period fixed by the court
3. There must be a motion to declare the defendant in default
4. The defending party must be notified of the motion to declare him in default (Sec. 3 R 9)
5. There must be a hearing of the motion to declare the defendant in default
6. There must be proof of such failure to answer.

Question 14

Where no defaults are allowed

Answer 14

1. Annulment of marriage
2. Declaration of nullity of marriage
3. Legal Separation
4. Special Civil Actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed
5. Summary Procedure

Question 15

Effect of a declaration/order of default

Answer 15

1. The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in the trial (R9, S3)
2. While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent proceedings. It is submitted that he may participate in the trial, not as a party but as a witness
3. A declaration of default is not an admission of the truth or the validity of the plaintiff’s claims

Take note that the word ‘defending’ party applies not only to the original defendant but even to the cross-defendant or defendant in a counterclaim.

Question 16

Action of the court after the declaration/order of default

Answer 16

It can do either of the following:

1. To proceed to render judgment, or
2. To require the plaintiff to present his evidence ex parte

Now, “with NOTICE to the defending party” is a new one. You must furnish a copy to the defending party of your motion to order the defendant in default which abrogates previous rulings.

Question 17

If the defendant is declared in default for failure to file an answer is he deemed to have admitted the allegations in the complaint to be true and correct?

Answer 17

YES, because the law NOW says, “the court shall proceed to render judgment granting such claimant such relief as his pleading may warrant.” The reception of plaintiff’s evidence is already dispensed with. That is the GENERAL RULE. That is the same as the summary rules and judgment on the pleadings and the court can grant the relief without presentation of evidence.

HOWEVER under Section 3, it is discretionary upon the court to require the claimant to submit evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such reception of evidence may be delegated to the clerk of court.

Question 18

If a defendant files an answer but did not furnish a copy of the answer to the plaintiff, can the plaintiff move to declare the defendant in default?

Answer 18

YES, because the answer is deemed to have not been legally filed. It was not in accordance with the Rules of Court.

Question 19

Answer filed out of time may be admitted. T or F.

Answer 19

True. Where there is no declaration of default, answer may be admitted even if filed out of time. Where answer has been filed, there can be no declaration of default anymore.

Question 20

Right of a party in default

Answer 20

He is entitled to notice of:

1. Motion to declare him in default
2. Order declaring him in default
3. Subsequent proceedings
4. Service of final orders and judgments

Question 21

A defendant declared in default cannot take part in the trial, but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. T or F.

Answer 21

True.

Question 22

If the defendant was declared in default upon an original complaint, the filing of the amended complaint results in the withdrawal of the original complaint, hence, the defendant is entitled to file an answer to the amended complaint as to which he was not in default.

Answer 22

Ok.

Question 23

The current judicial trend is to avoid defaults and thus, courts are enjoined to be liberal in setting aside orders of default.

Answer 23

Ohh

Question 24

Within how many days to file a reply?

Answer 24

A reply, if allowed under Section 10, Rule 6 hereof, may be filed within fifteen (15) calendardays from service of the pleading responded to.

Question 25

Extension of time to file an answer

Answer 25

A defendant may, for meritorious reasons, be granted an additional period of not more than thirty (30) calendar days to file an answer. A defendant is only allowed to file one (1) motion for extension of time to file an answer.

A motion for extension to file any pleading, other than an answer, is prohibited and considered a mere scrap of paper. The court, however, may allow any other pleading to be filed after the time fixed by these Rules.

Question 26

Reply

Answer 26

A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters allegedin, or relating to, said actionable document.

All new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. However, the plaintiff may file a reply only if the defending party attaches an actionable document to his or her answer.

In the event of an actionable document attached to the reply, the defendant may file a rejoinder if the same is based solely on an actionable document.

Question 27

Bill of Particulars

Answer 27

A bill of particulars is a more definite statement of any matter which is not averred with sufficient definiteness or particularity in a pleading so as to enable the opposing party to prepare his responsive pleading.

If the pleading is a reply, the motion must be filed within ten (10) calendar days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired.

Question 28

Contents of a Bill of Particular

Answer 28

1. Defects complained of
2. Paragraphs wherein they are contained
3. Details

Question 29

If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) calendar days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.

Answer 29

Oki.

Question 30

A bill of particulars becomes part of the pleading for which it is intended. T or F.

Answer 30

True.

Question 31

Purpose of bill of partculars

Answer 31

To aid in the preparation of a responsive pleading

In less technical terms, a function of a bill of particulars is to clarify the allegations in the pleading so an adverse party may be informed with certainty of the exact character of a cause of action or a defense.

Question 32

When is a bill of particulars not proper?

Answer 32

1) Since the purpose of the motion for bill of particulars is to allow the movant to properly prepare his own pleading, it would be erroneous for the motion to ask the court to order the adverse party to disclose or to set forth in his pleading evidence relied upon for his cause of action or defense. These are matters obtainable by the various modes of discovery. Besides under Sec. 1 of Rule 8, pleadings are meant to contain only a direct statement of the ultimate facts which constitute the party’s claims or defenses. Matters of evidentiary facts are to be omitted.

2) It would likewise not be proper for a motion for a bill of particulars to call for the production of the particulars constituting malice, intent, knowledge, or condition of the mind which, under Sec. 5 Rule 8, may be averred generally. To require a pleader to do so would be to require the statement of evidentiary facts in a pleading.
It would not however, be incorrect to move for a bill of particulars to require the averment of the particular circumstances of fraud or mistake. Under Sec. 5 Rule 8, such matters must be alleged with particularity.

3) A motion for bill of particulars to require a pleader to set forth matters showing the jurisdiction of the court to render its judgment is not proper. The provisions of Sec. 6 Rule 8 are clear: In pleading a judgment it is sufficient to aver the same generally.

Question 33

Sec. 2. Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard.

Reason behind this?

Answer 33

Many lawyers have abused Rule 12.
In what way? A complaint is filed but even if the allegations are clear he will file a motion for bill of particulars claiming that he cannot understand. Then, he will set the motion for hearing 2 weeks from now. Then the motion is denied because it has no merit, then, and only then will he file an answer. In other words, the defendant has succeeded in delaying the period for filing an answer by pretending that he cannot understand.

So in order to prevent that kind of dilatory tactic, when the motion is filed, the court is now authorized to immediately act on the motion without delaying the filing of the answer. That is the reason why this provision was inserted because the filing of the motion for bill of particulars can cause delay.

Question 34

Motion

Answer 34

A motion is an application for relief other than by a pleading.

Question 35

Is it required that a motion be in writing?

Answer 35

All motions shall be in writing except those made in open court or in the course of a hearing or trial. A motion made in open court or in the course of a hearing or trial should immediately be resolved in open court, after the adverse party is given the opportunity to argue his or her opposition thereto. When a motion is based on facts not appearing on record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

Question 36

Contents of a motion

Answer 36

A motion shall state

1. the relief sought to be obtained and
2. the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein,
3. shall be accompanied by supporting affidavits and other papers.

Question 37

Non-litigious motions

Answer 37

Motions which the court may act upon without prejudicing the rights of adverse parties are non-litigious motions.

These motions include:

a. motion for the issuance of an alias summons
b. motion for extension to file answer
c. motion for postponement
d. motion for the issuance of a writ of execution
e. motion for the issuance of an alias writ of execution
f. motion for the issuance of a writ of possession
g. motion for the issuance of an order directing the sheriff to execute the final certificate of sale
h. other similar motions

These motions shall not be set for hearing and shall be resolved by the court within five (5) calendar days from receipt thereof.

Question 38

Litigious motions

Answer 38

a. Litigious motions include:
1. motion for bill of particulars
2. motion to dismiss
3. motion for new trial
4. motion for reconsideration
5. motion for execution pending appeal
6. motion to amend after a responsive pleading has been filed
7. motion to cancel statutory lien
8. motion for an order to break in or for a writ of demolition
9. motion for intervention
10. motion for judgment on the pleadings
11. motion for summary judgment
12. demurrer to evidence
13. motion to declare defendant in default
14. other similar motions

Question 39

All motions shall be served by ??

Answer 39

All motions shall be served by personal service, accredited private courier or registered mail, or electronic means so as to ensure their receipt by the other party.

Question 40

The opposing party shall file his or her opposition to a litigious motion within ??

Answer 40

The opposing party shall file his or her opposition to a litigious motion within five (5) calendar days from receipt thereof. No other submissions shall be considered by the court in the resolution of the motion.

The motion shall be resolved by the court within fifteen (15) calendar days from its receipt of the opposition thereto, or upon expiration of the period to file such opposition.

Question 41

Is proof of service necessary before a motion be acted upon?

Answer 41

Yes. No written motion shall be acted upon by the court without proof of service thereof.

Question 42

Day for motion

Answer 42

Except for motions requiring immediate action, where the court decides to conduct hearing on a litigious motion, the same shall be set on a Friday.

Question 43

Omnibus motion

Answer 43

An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which shall include all objections then available and objections not so included shall not deemed waived.

The word “omnibus” means “all embracing or all encompassing.”

Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

Question 44

Motion for Leave

Answer 44

A motion or application for leave is a motion filed with the court seeking permission to deviate from an established rule or procedure of the court.

A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.

Question 45

Form of a motion

Answer 45

he Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form.

Question 46

Prohibited motions

Answer 46

a. Motion to dismiss except on 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
3. that the cause of action is barred by a prior judgment or by the statute of limitations

b. Motion to hear affirmative defenses
c. Motion for reconsideration of the court’s action on the affirmative defenses
d. Motion to suspend proceedings without a temporary restraining order or injunction issued by a higher court
e. Motion for extension of time to file pleadings, affidavits or any other papers, except a motion for extension to file an answer as provided by Section 11, Rule 11
f. Motion for postponement intended for delay, except if it is based on acts of God, force majeure or physical inability of the witness to appear and testify. If the motion is granted based on such exceptions, the moving party shall be warned that the presentation of its evidence must still be terminated on the dates previously agreed upon. A motion for postponement, whether written or oral, shall, at all times, be accompanied by the original official receipt from the office of the clerk of court evidencing payment of the postponement fee under Section 21(b), Rule 141, to be submitted either at the time of the filing of said motion or not later than the next hearing date. The clerk of court shall not accept the motion unless accompanied by the original receipt.

Question 47

Section. 13. Dismissal with prejudice. — Subject to the right of appeal, an order granting a motion to dismiss or an affirmative defense that the cause of action is barred by a prior judgment or by the statute of limitations; that the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished; or that the claim on which the action is founded is unenforceable under the provisions of the statute of frauds, shall bar the refiling of the same action or claim.

Answer 47

Oki.

Question 48

Kinds of Motions

Answer 48

1. Motion Ex Parte is made without the presence or a notification to the other party because the question generally presented is not debatable, like a Motion for Extension of Time to File Pleadings
2. Motion of Course is where a movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court
3. Litigated Motion is one made with notice to the adverse party to give an opportunity to oppose, like a Motion to Dismiss
4. Special Motion is a one addressed to the discretion of the court

Question 49

A motion can pray for judgment. T or F.

Answer 49

As a general rule, NO.

In a motion, the party is asking the court for a favor other than what is contained in the pleading. Usually, the main relief is prayed for in the pleading, like “Judgment be rendered in favor of the plaintiff,” or, “The complaint be dismissed.” That is what you pray in your complaint or in your answer.

A pleading however is directly related to the cause of action or the defense. But a motion prays for something else. In a motion, you are asking for another relief other than the main cause of action or the main defense. Example is a motion to postpone trial or a motion for extension of time to file answer. You do not do that by a complaint but by way of a motion because you are praying for a relief other than by a pleading.

Pleadings are limited to those enumerated in Rule 6 such as complaint, answer, cross-claim, counterclaim, etc. But if you look at a motion, it looks like a pleading. In form, it looks exactly like a pleading but under the law, it is not a pleading.

However, there are three (3) well known EXCEPTIONS to this. Meaning you are praying, by way of a motion, for a relief which normally should be prayed for in a pleading such as a motion is praying for a judgment already. The exceptions are:

1. Motion for Judgment to the Demurrer to Evidence (Rule 33)
2. Motion for Judgment on the Pleadings (Rule 34)
3. Motion for Summary Judgment (Rule 35)

Question 50

What are the requisites of a valid motion?

Answer 50

They are found from Section 2 to Section 6:

1. It must be in writing except those made in open court or in the course of hearing or trial
2. It shall state the relief sought to be obtained and the ground upon which it is based
3. It must be accompanied by supporting affidavits and other papers, if required by these Rules or necessary to prove facts alleged therein. However, if the facts are already stated on record, the court can check the records
4. There must be a notice of the hearing attached to the motion and the adverse party must receive the motion at least 3 days before the date of hearing, unless the court for good cause sets the hearing on shorter notice
5. There must be notice of hearing addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than 10 days after the filing of the motion
6. There must be proof of service of the motion on the adverse party

Question 51

Is it necessary that a motion be accompanied by supporting affidavits and other papers?

Answer 51

No, unless required by the Rules or necessary to prove facts alleged therein.

Question 52

Give an example of a motion where supporting affidavits are required by the Rules

Answer 52

A motion for new trial on the ground of fraud, accident, mistake of excusable negligence. Under Rule 37, Section 2, in order for a motion for new trial on that ground to be valid, there must Be Affidavit Of Merits. If there is no affidavit of merits, the motion will be denied.

And if necessary to prove facts alleged therein, then, the motion must be accompanied by affidavit and other supporting papers. Example is when you are moving for the postponement of the trial because your client is sick, the best supporting paper would be a medical certificate for that matter.

However, if it is not required by the Rules, or the facts are already stated on record, there is no need of supporting affidavits or documents. Example is when you move to declare the adverse party in default. There is no need to support your motion with affidavits because anyway the court can look at the records, particularly the sheriff’s return, to check when was the defendant was served with summons.

Question 53

Does a defective motion interrupt the reglementary period for the filing of the requisite pleading?

Answer 53

No, it does not interrupt the reglementary period for the filing of the requisite pleading.

Question 54

Examples of omnibus motion

Answer 54

EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding. Where a party is not allowed to file a motion to based on one ground, if denied, second motion to dismiss based on the second ground, denied, third motion to dismiss. Meaning, ini-installment mo. That is not allowed. If you have two or more grounds, you file only one motion to dismiss invoking those grounds because the rule is, any ground not so invoked is deemed waived.

EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial under Section 5 of Rule 37 prohibits the filing of a second motion for new trial based on grounds available to the movant when he filed his first motion. Well, if the grounds came later, that is different.

So, the principle there is, if you have two or more grounds you should only file one motion where you invoke all your grounds.

Now, obviously there is an EXCEPTION because the opening clause of section 8 is “Subject to the provision of Section 1 of Rule 9.”

Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do not raise them in a motion to dismiss, which can be even motu propio proceeded by the court.

Question 55

Section 10.Motion for leave. — A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. (9)

Answer 55

EXAMPLE: Under the OLD rules, if you want to file an amended complaint, there are two (2) Options under the old rules. The first option is to file a motion for leave to file amended complaint. And when it is granted, that is the time for to you file your amended complaint. The second option is you file your amended complaint together with the motion to admitted it.

The same thing iyong sa intervention under the OLD rules. In a motion to intervene, “Motion to intervene. Granted, I will file my pleading in intervention.” The same thing for certain types of motion like motion for leave to file third-party complaint: “Motion for leave. Granted, I will file my third-party complaint.” That is under the previous rule.

NOW, hindi na puwede yan. Under the PRESENT RULE, when you file a motion, the pleading to be admitted must already be included in your motion. Pag-file mo nng motion, kasama na iyong pleading. The pleading sought to be amended must already be included in the motion. One-time filing ba!!

Question 56

A motion to dismiss is a responsive pleading. T or F.

Answer 56

False.

Question 57

A motion to dismiss hypothetically admits the truth of the factual allegations of the complaint. T or F.

Answer 57

True. The admission extends only to such matters of fact that have been sufficiently pleaded and not to mere epithets charging fraud, allegations of legal conclusions or erroneous statements of law, inference from facts not stated, matters of evidence or irrelevant matters. Only deemed hypothetically admitted are material allegations, not conclusions. An allegation that a contract is an “equitable mortgage” is a conclusion and not a material allegation. Hence, it is not deemed admitted by the motion to dismiss.

Question 58

Grounds for motion to dismiss

Answer 58

1. The court has no jurisdiction over the person of the defending party
2. The court has no jurisdiction over the subject matter of the claim
3. Venue is improperly laid
4. The plaintiff has no legal capacity to sue
5. There is another action pending between the same parties for the same cause
6. The cause of action is barred by a prior judgment or by the statute of limitations (res judicata and prescription)
7. The pleading asserting the claim states no cause of action
8. The claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished
9. The claim on which the action is founded is unenforceable under the provisions of the statute of frauds
10. A condition precedent for filing the claim has not been complied with (EXAMPLES: 1. Failure to exhaust administrative remedies; 2. Failure to undergo Barangay Conciliation; For parties residing in the same city, one must first settle or compromise the suit at the barangay level before raising the action; 3. Article 151 of the Family Code contemplates suit between family members.

Question 59

Can the issue of lack of jurisdiction over the subject matter be raised in the middle of the trial?

Answer 59

YES, there is no waiver.

Question 60

Suppose you file a motion to dismiss on the ground of improper venue, but your motion to dismiss is denied. What is your remedy?

Answer 60

Your remedy is to resort to the special civil action of prohibition under Rule 65. And you should resort to it immediately because if you will file your answer and go to trial, in effect, you will be waiving the objection. The objection must be pursued diligently.

Question 61

Give an example when the plaintiff has no legal capacity to sue.

Answer 61

A minor will file a case without being assisted by his parents or guardian. Or, a person will file a case in behalf of a minor claiming that he is a guardian when in fact he is not. He is not the parent of the child. He is not also appointed by the court.

According to the SC, when you say that the plaintiff lacks legal capacity to sue, there are 2 possible meanings. It means any of the following:

1. when the plaintiff does not possess the necessary qualifications to appear at the trial such as when the plaintiff is not in the full exercise of his civil rights like when he is a minor, or insane; and
2. when the plaintiff does not have the character or representation which he claims like he claims to be a guardian when in reality he is not

EXAMPLE: I will sue you as the guardian of a minor – guardian ad litem. But actually, you will challenge my being a guardian. There is no court order according to you. So, I might be of age but I have no legal capacity to sue because I do not have the representation which I claim I have.

Question 62

Distinguish lack of legal capacity to sue from lack of legal personality to sue

Answer 62

The lack of legal capacity to sue refers to disability of the plaintiff while the lack of legal personality to sue is to the fact that the plaintiff is not a real party in interest, in which case, the ground for dismissal would be that the complaint states no cause of action.

ILLUSTRATION:
In lack of legal capacity to sue, you are referring to a disability of the plaintiff, like he is a minor; or he is insane or incapacitated.

In lack of legal personality to sue – going back to Rule 3, when you are appointed as agent or attorney-in-fact of somebody to manage his property and to file suit in his behalf – while you have the authority to file cases, it does not mean to say that you should sue in your own name because the real party in interest is the principal, not the agent.

So if the agent files an action in his own name, rather than that of the principal, what you are going to say is, you are not the real party in interest. You are not challenging his age or disability but you are challenging his being placed as plaintiff when actually he is only the attorney-in-fact or agent. In effect, when you raise this ground, actually that would fall more under paragraph [g] – that the pleading asserting the claim states no cause of action because there is no cause of action in favor of the agent. The cause of action is in the principal.

Question 63

LITIS PENDENTIA viz a viz FORUM-SHOPPING

Answer 63

So, what is the difference between forum shopping and litis pendentia? Actually, there is no difference. Mas maganda pa nga i-dalawa mo – litis pendentia and forum shopping. Ano ang effect? Sabihin mo, litis pendentia – one will be dismissed, the other will remain alive. In forum shopping naman, parehong patay iyan. The court will dismiss both. I-disciplinary action pa ang abogado. There is no contempt of court in litis pendentia.

Question 64

Forum-shopping exists where the elements of litis pendencia are present. T or F.

Answer 64

True.

Question 65

What are the requisites of litis pendentia as a ground for a motion to dismiss?

Answer 65

1. Identity of parties between the two actions, or at least such as represent the same interest in both actions;
   In the 2 actions, the parties are the same – the same plaintiff, same defendant. Literally, they may not be the same but the persons who are filing the second case are persons who are actually doing it on your behalf. So they also represent the same interest.
2. Substantial Identity of rights asserted or cause of action and relief prayed for; The rights asserted are the same. The relief prayed for in both actions are the same.
3. The relief must be founded on the same facts; So same basis; same evidence.
4. The identity in these particulars should be such that any judgment which may be rendered on the other action will, regardless of which party is successful, amount to res adjudicata in the action under consideration.

Question 66

Elements of res judicata

Answer 66

(1) The former judgment must be final
(2) The court which rendered it had jurisdiction over the subject matter and the parties
(3) The judgment must be on the merits
(4) There must be between the first and second actions, identity of parties, subject matter and causes of action

Question 67

There can be res judicata without a trial. T or F.

Answer 67

True. There can be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a Summary Judgment (Rule 35); or an order of dismissal under Section 3 of Rule 17.

Question 68

Prescription v. laches

Answer 68

1. Prescription is concerned with the fact of delay while
   laches is concerned with the effect of delay
2. Prescription is a matter of time while laches is a matter of equity
3. Prescription is statutory while laches is not
4. Prescription applies at law, laches in equity
5. Prescription is based on fixed time while laches is not

Question 69

EXAMPLES of Statute of Frauds under Article 1403

Answer 69

1. a contract that by its terms is not to be performed within one year from the making of such contract
2. a special promise to answer for the debt, default, or miscarriage of another
3. an agreement made in consideration of marriage, other than a mutual promise to marry
4. an agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos
5. an agreement for the leasing for a longer period than one year, or for the sale of real property or an interest therein
6. a representation as to the credit of a third person

Question 70

Pre-trial

Answer 70

Pre-trial is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel.

It is mandatory for the trial court to conduct pre-trial in civil cases in order to realize the paramount objective of simplifying, abbreviating, and expediting trial. In light of these objectives, the parties are mandatorily required to submit their respective pre-trial briefs. Failure of the parties to do so is a ground for dismissal of the action with prejudice, unless otherwise ordered by the court.

In all criminal cases cognizable by the Sandiganbayan, First Level and Second Level courts, pre-trial is also mandatory.

A pre-trial conference is likewise mandatory in both civil and criminal cases under the Rules on Summary Procedure.

Question 71

When is a pre-trial conducted?

Answer 71

After the last responsive pleading has been served and filed, the branch clerk of court shall issue, within five (5) calendar days from filing, a notice of pre-trial which shall be set not later than sixty (60) calendar days from the filing of the last responsive pleading.

Question 72

Section. 2. Nature and Purpose. — The pre-trial is mandatory and should be terminated promptly. The court shall consider:

Answer 72

a. the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution
b. the simplification of the issues
c. the possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof
d. the limitation of the number and identification of witnesses and the setting of trial dates
e. the advisability of a preliminary reference of issues to a commissioner
f. the propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist

g. the requirement for the parties to:
(1) mark their respective evidence if not yet marked in the judicial affidavits of their witnesses
(2) examine and make comparisons of the adverse parties’ evidence vis-a-vis the copies to be marked
(3) manifest for the record stipulations regarding the faithfulness of the reproductions and the genuineness and due execution of the adverse parties’ evidence
(4) reserve evidence not available at the pre-trial, but only in the following manner:
i. For testimonial evidence, by giving the name or position and the nature of the testimony of the proposed witness;
ii. For documentary evidence and other object evidence, by giving a particular description of the evidence. No reservation shall be allowed if not made in the manner described above.

h. Such other matters as may aid in the prompt disposition of the action.

The failure without just cause of a party and counsel to appear during pre-trial, despite notice, shall result in a waiver of any objections to the faithfulness of the reproductions marked, or their genuineness and due execution. The failure without just cause of a party and/or counsel to bring the evidence required shall be deemed a waiver of the presentation of such evidence.

Question 73

Notice of pre-trial

Answer 73

The notice of pre-trial shall include the dates respectively set for:

a. Pre-trial
b. Court-Annexed Mediation
c. Judicial Dispute Resolution, if necessary

The notice of pre-trial shall be served on counsel, or on the party if he or she has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him or her.

Non-appearance at any of the foregoing settings shall be deemed as non-appearance at the pre-trial and shall merit the same sanctions under Section 5 hereof. he non-appearance of a party and counsel may be excused only for acts of God, force majeure, or duly substantiated physical inability.

A representative may appear on behalf of a party, but must be fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and documents.

Question 74

Effect of failure to appear in pre-trial

Answer 74

When duly notified, the failure of the plaintiff and counsel to appear without valid cause when so required, pursuant to the next preceding Section, shall cause the dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant and counsel shall be cause to allow the plaintiff to present his or her evidence ex-parte within ten (10) calendar days from termination of the pre-trial, and the court to render judgment on the basis of the evidence offered.

Question 75

Pre-trial brief

Answer 75

The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least 3 calendar days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others:

a. A concise statement of the case and the reliefs prayed for
b. A summary of admitted facts and proposed stipulation of facts
c. The main factual and legal issues to be tried or resolved
d. The propriety of referral of factual issues to commissioners
e. The documents or other object evidence to be marked, stating the purpose thereof
f. The names of the witnesses, and the summary of their respective testimonies
g. A brief statement of points of law and citation of authorities

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

Question 76

Pre-trial order

Answer 76

Upon termination of the pre-trial, the court shall issue an order within 10 calendar days which shall recite in detail the matters taken up. The order shall include:

a. An enumeration of the admitted facts
b. The minutes of the pre-trial conference
c. The legal and factual issue/s to be tried
d. The applicable law, rules, and jurisprudence
e. The evidence marked
f. The specific trial dates for continuous trial, which shall be within the period provided by the Rules
g. The case flowchart to be determined by the court, which shall contain the different stages of the proceedings up to the promulgation of the decision and the use of time frames for each stage in setting the trial dates
h. A statement that the one-day examination of witness rule and most important witness rule under A.M. No. 03-1-09-SC (Guidelines for Pre-Trial) shall be strictly followed
i. A statement that the court shall render judgment on the pleadings or summary judgment, as the case may be. The direct testimony of witnesses for the plaintiff shall be in the form of judicial affidavits.

After the identification of such affidavits, cross-examination shall proceed immediately. Postponement of presentation of the parties’ witnesses at a scheduled date is prohibited, except if it is based on acts of God, force majeure or duly substantiated physical inability of the witness to appear and testify.

The party who caused the postponement is warned that the presentation of its evidence must still be terminated within the remaining dates previously agreed upon.

Should the opposing party fail to appear without valid cause stated in the next preceding paragraph, the presentation of the scheduled witness will proceed with the absent party being deemed to have waived the right to interpose objection and conduct cross-examination. The contents of the pre-trial order shall control the subsequent proceedings, unless modified before trial to prevent manifest injustice.

Question 77

Special power of attorney

Answer 77

A special power of attorney is a legal document that authorizes one person, called an agent or an attorney in fact, to act on behalf of another person, known as the principal, under specific, clearly laid-out circumstances.

Question 78

Contents of SPA

Answer 78

1. Name, nationality, civil status, and address of the Principal
2. Name, nationality, civil status, and address of the Representative/Attorney-in-Fact to be given authority
3. The task/s that will be undertaken by the Representative/Attorney-in-Fact
4. Date and place where the Principal will sign the SPA
5. Name and signature of the Principal
6. Name and signature of the Representative/Attorney-in-Fact
7. Name and signature of two witnesses
8. Acknowledgment from the Notary Public. Details of the Principal’s valid ID (ID Name, ID Number, and Expiry Date) will be indicated in the Acknowledgment

Question 79

Print copies of the duly-accomplished SPA

Answer 79

After filling in the required information, print at least 3 copies of the SPA for the following:

1 copy for the Principal
1 copy for the Representative/Attorney-in-Fact
1 copy for the Notary Public

Question 80

2 types of power of attorney

Answer 80

1. General power of attorney
   - This type of power of attorney has a broad scope and grants a person the power to administer and manage your business and properties
   - limited to the act of administration
2. Special power of attorney
   - This type of power of attorney is for a specific task to be done by your representative. SPA is also needed on some transactions specified under the Civil Code of the Philippines, e.g. selling of real property by an agent requires a SPA

Question 81

Who can get a Special Power of Attorney?

Answer 81

Anyone who for some reason needs to assign a representative to sign papers, manage assets, or handle money on his behalf, among others, can execute a Special Power of Attorney.

Question 82

Who can be your agent or attorney-in-fact?

Answer 82

You can appoint anyone to be your representative as long as you fully trust the person. He/She should also be of legal age.

Question 83

When can I use a Special Power of Attorney?

Answer 83

Under the Civil Code of the Philippines, a Special Power of Attorney is necessary in the following cases. It means that if your representative/agent performs the following function without a SPA, the transaction is not valid.

1. Make such payments as are not usually considered as acts of administration
2. Effect novations which put an end to obligations already in existence at the time the agency was constituted
3. Compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of action or to abandon a prescription already acquired
4. Waive any obligation gratuitously
5. Enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration
6. Make gifts, except customary ones for charity or those made to employees in the business managed by the agent
7. Loan or borrow money unless the latter act be urgent and indispensable for the preservation of the things which are under the administration
8. Lease any real property to another person for more than one year
9. Bind the principal to render some service without compensation
10. Bind the principal in a contract of partnership
11. Obligate the principal as a guarantor or surety
12. Create or convey real rights over immovable property
13. Accept or repudiate an inheritance
14. Ratify or recognize obligations contracted before the agency
15. Any other act of strict dominion

In addition to the above, the following are usual transactions where a SPA is used:

1. File tax returns
2. Claim government benefits
3. Maintain business interests
4. Manage bank accounts, cash, and even safety deposit boxes
5. Sell, mortgage, or manage assets and properties;
   Settle claims
6. Enter contracts
7. Plan estate and financial gifts
8. Receive bank loan
9. Submit the NBI application and claim NBI clearance
10. Apply for, renew, or claim PRC license
11. Apply and claim a driver’s license
12. Request for birth certificate and marriage certificate from PSA
13. Receive a birth certificate and marriage certificate from PSA

Question 84

What is a Consularized SPA?

Answer 84

A Consularized SPA is simply a Special Power of Attorney which will be signed abroad. The Consularized SPA is for OFWs who wish to assign a representative back in the Philippines but is unable to come home due to various reasons.

The Consularized SPA will be executed at the Philippine Embassy of the country where you’re currently residing.

Question 85

What are the requirements to get a Consularized SPA?

Answer 85

1. Photocopy of the first and last page of your Philippine passport
2. Valid Philippine-issued government ID (only if the passport is not available, although some may require both the ID and passport)
3. Personal appearance
4. 2 witnesses (should be of legal age and also personally appear with you in the Embassy during the execution of the SPA)
5. Valid IDs of witnesses
6. Notarial fee (amount varies per country)

Question 86

Can the Special Power of Attorney be revoked?

Answer 86

Generally yes, you can revoke the Special Power of Attorney anytime you want. You just have to write a new document titled ‘Revocation of Special Power of Attorney’ which should state that you no longer want to be represented by your assigned representative. After signing the document, have it notarized and it will be effective immediately.

However, a SPA cannot be revoked in the following circumstances:

if a bilateral contract depends upon it;
it is a means to fulfill an obligation already contracted;
if a partner is appointed manager of a partnership in the contract of partnership and his removal from the management is unjustifiable2.
Simply put, you as a principal cannot revoke the SPA granted to another person if doing so, an existing contract cannot be carried out, or the tasks under the SPA are the means to fulfill an obligation under the contract.

Question 87

Does Special Power of Attorney have an expiry date?

Answer 87

It depends on what type of Special Power of Attorney was made. If you have indicated that the SPA will only be valid within a specified period, then it will no longer be effective once that period’s over. On the other hand, if you haven’t indicated a validity period in the SPA, it will remain effective until you have it revoked.

Question 88

The Principal is already an Attorney. Can an Attorney notarize his or her own Special Power of Attorney?

Answer 88

No. As expressly stated under the Rules on Notarial Practice, an Attorney (or a Notary Public) cannot notarize a SPA or any document if he or she is a party to it.

Question 89

Is it okay to make one Special Power of Attorney for the whole family if I am assigning someone to pick up documents on our behalf from the DFA office?

Answer 89

Yes. There is no prohibition to put many representative/Attorney-in-fact in one document to perform particular tasks as long as you include their names in the SPA.

Question 90

Do all the signatories need to be physically present in front of the notary public in order for the Special Power of Attorney to be notarized?

Answer 90

Yes, all parties who affixed their signature on the SPA must be physically present before a notary public at the time of the notarization.

However, if the person cannot be present at the time of notarization, the notary public can sign the document on behalf of a person who is physically unable to sign it provided that:

1. the notary public is directed by the person unable to sign on his behalf
2. the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the document
3. both witnesses sign their names
4. the notary public writes below his signature, “Signature affixed by the notary in the presence of (names and address of two witnesses)”
5. the notary public notarizes his signature by acknowledgment or jurat

Question 91

Petition

Answer 91

A petition is a legal document formally requesting a court order, which, along with complaints, are considered pleadings at the onset of a lawsuit.