1) | that he 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 knowledge, no such other action or claim is pending therein; | |
2) | if there is such other pending action or claim, a complete statement of the present status thereof; and | |
3) | if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.[5] | |
2.2.1 | Nature | |
(a) | The required certificate of non-forum shopping is mandatory but not jurisdictional.[6] | |
(b) | Initiatory pleadings are the complaint, permissive counterclaim, cross-claim, third-party (fourth-party, etc.), complaints and complaints-in-intervention. The certificate of non-forum shopping should be signed by the plaintiff (permissive counterclaimant, cross-claimant, third-party, etc. – plaintiff and plaintiff-in-intervention) and not the counsel.[7] | |
(c) | There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in other fora, or when he repetitively avails himself of "several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same issue or transactions involving the same essential facts and circumstances, and all raising substantially the same issues either pending in or resolved adversely by some other court."[8] Elsewise stated, forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other.[9] Where judgment has already become final and executory, res judicata and not forum shopping should be pleaded as a defense. Forum shopping applies only when two (2) or more cases are still pending.[10] | |
(d) | Failure to comply with the requirement of a certificate of non-forum shopping may not be cured by mere amendment of the complaint or other initiatory pleading. The initiatory pleading should be dismissed without prejudice, unless otherwise provided, upon motion and after hearing. However, even if there is a certificate of non-forum shopping, if the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice of the initiatory pleading and shall constitute direct contempt, as well as a cause for administrative sanctions against the former.[11] |
1) | The rule in this jurisdiction is that when an action is filed in court, the complaint must be accompanied by the payment of the requisite docket and filing fees. |
2) | In real actions, the docket and filing fees are based on the value of the property and the amount of damages claimed, if any, which must be specified in the body and prayer of the complaint. Note that in Tacay v. RTC of Tagum Davao del Norte, the Supreme Court opined that a real action may be commenced or prosecuted without an accompanying claim for damages.[18] |
3) | If the complaint is filed but the fees are not paid at the time of filing, the court acquires jurisdiction upon full payment of the fees within a reasonable time as the court may grant, barring prescription. |
4) | Where the fees prescribed for the real action have been paid but the fees of certain related damages are not, the court, although having jurisdiction over the real action, may not have acquired jurisdiction over the accompanying claim for damages.[19] |
5) | Accordingly, the court may expunge those claims for damages, or allow, on motion, a reasonable time for amendment of complaint so as to allege the precise amount of damages and accept payment of the requisite legal fees.[20] |
6) | If there are unspecified claims, the determination of which may arise after the filing of the complaint or similar pleading, the additional filing fee thereon shall constitute a lien on the judgment award. [21] |
7) | The same rule also applies to third-party claims and other similar pleadings.[22] |
a) | personal service; | |
b) | substituted service; | |
c) | constructive (by publication) service; and | |
d) | extraterritorial service. |
(1) | by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or | |
(2) | by leaving the copies at the defendant’s office or regular place of business with some competent person in charge thereof. [26] |
1) | the efforts exerted by the sheriff to effect personal service within a reasonable period of time; impossibility of service should be shown by stating the efforts made to find the defendant; | |
2) | that such personal service cannot be effected for justifiable reasons; | |
3) | the service of summons was made at the defendant’s residence or office or regular place of business at the time of the service, the address of the defendant to whom summons was supposed to have been served must be indicated in the return; and | |
4) | the service was made with some person of suitable age and discretion residing therein, if effected at defendant’s residence, or with some competent person in charge thereof, if effected at defendant’s office or regular place of business, at the time of the service. [29] |
Service upon defendant whose identity or whereabouts are unknown. — In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.[37]
1) | affects the personal status of plaintiffs; | |
2) | relates to or subject of which is property in the Philippines (real or personal), in which the defendant has claim, lien or interest, actual or contingent; or | |
3) | in which relief demanded consists wholly, or in part, in excluding the defendant from any interest therein; or | |
4) | property of defendant has been attached in the Philippines.[38] |
1) | Personal service; | |
2) | By publication (and copy of the summons and order of the court must be sent by registered mail to the last known address); | |
3) | By publication (and copy of summons and order of the court) must be sent by registered mail at last known address; Any other manner which the court may deem sufficient.[41] |
1.1 | notice of dismissal of the complaint under Rule 17, Section 1; | |
1.2 | amended complaint under Rule 10, Section 2; | |
1.3 | motion for leave to file a supplemental complaint under Rule 10, Section 6; | |
1.4 | motion for leave of court to take the deposition upon oral examination or written interrogatories of any person, whether party or not under Rule 23, Section 1; | |
1.5 | motion for leave of court to serve written interrogatories upon defendant under Rule 25, Section 1; | |
1.6 | motion for production or inspection of documents of things under Rule 27, Section 1; | |
1.7 | motion to declare defendant in default under Rule 9, Section 3. |
2.1 | motion to set aside order of default under Rule 9, Section 3; | |
2.2 | motion for extension of time to file responsive pleading under Rule 11, Section 11; and | |
2.3 | motion for bill of particulars under Rule 12. | |
2.4 | notice of dismissal of the complaint under Rule 17, Section 1. |
A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment.[47]As a general rule, the dismissal of the complaint under this rule is without prejudice. However, the following are the recognized exceptions:
1) | where the notice of dismissal so provides; | |
2) | where the plaintiff has previously dismissed the same case in a court of competent jurisdiction; | |
3) | even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claims involved.[48] For the notice of dismissal to be effective, there must be an order confirming the dismissal.[49] |
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.[50]The filing by the defendant of a motion to dismiss does not affect the plaintiff’s right to amend his complaint without first securing leave of court because a motion to dismiss is not a responsive pleading.[51] Leave of court is necessary after the filing of a responsive pleading. However, even substantial amendments may be made under this Rule. But such leave may be refused, if it appears to the court that the motion was made with intent to delay.[52]
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.[53]The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.[54] The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.[55]
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.6. Request for Admission
At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished.[58]
A trial court has no discretion to determine what the consequences of a party’s refusal to allow or make discovery should be; it is the law which makes that determination; it is grave abuse of discretion for the court to refuse to recognize and observe the effects of that refusal as mandated by law.[60]
If the defending party fails to answer within the time allowed therefore, 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 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.[61]
10.1.1 | Effect of Order of Default | ||
(a) | A party in default loses his standing in court. He cannot appear therein, adduce evidence and be heard nor take part in trial.[64] He cannot file a motion to dismiss without first filing a motion to set aside the order of default.65 He loses his right to present evidence, control the proceedings and examine the witnesses or object to plaintiff’s evidence.66 | ||
(b) | A motion to declare the defending party in default should be served upon him. A party in default, however, shall be entitled to notice of subsequent proceedings but not to take part in the trial.[67] | ||
(c) | Being declared in default does not constitute a waiver of all rights. What is waived is only the right to be heard and to present evidence during trial while default prevails. A party in default is still entitled to notice of final judgments and orders and proceedings taken subsequent thereto.[68] He may be cited and testify as a witness.[69] | ||
10.1.2 | Summary of the Remedies in Default[70] | ||
(a) | From notice of the order of default but before judgment, motion to set aside order of default; and, in a proper case, petition for certiorari under Rule 65. | ||
(b) | After judgment but before its finality: | ||
(i) | motion for reconsideration under Rule 37, Section 1; | ||
(ii) | motion for new trial under Rule 37, Section 1; and | ||
(iii) | appeal under Rule 41, Section 1. | ||
(c) | After finality of judgment: | ||
Within the prescribed period, petition for relief from judgment under Rule 38, Section 1; in a proper case and within the prescribed period, petition for certiorari under Rule 65; and in a proper case and within the prescribed periods, petition for annulment of judgment under Rule 47. | |||
10.1.3 | Actions where Default is Not Allowed | ||
(a) | Action for declaration of the nullity of marriage; action for annulment of marriage; and, action for legal separation. | ||
Note: If the defending party fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion exists between the parties, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated;[71] | |||
(b) | Before expiration of period to answer as when there is a pending motion for extension;[72] | ||
(c) | In actions governed by the Rule on Summary Procedure, a motion to declare defendant in default is not allowed.[73] | ||
10.1.4 | Two (2) Kinds of Proceedings after Declaration of Default and the Extent of Relief that may be Granted | ||
(a) | Without Hearing | ||
The Court may immediately render judgment granting the claimant such relief as his pleading may warrant. Such relief however shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages.[74] | |||
(b) | With Hearing | ||
The court may, in its discretion, allow or require the claimant to submit evidence. Such reception of evidence may be delegated to the Clerk of Court. After the reception of claimant’s evidence, the court may render judgment granting the reliefs prayed as established by the evidence. It may also award unliquidated damages without exceeding the amounts prayed for.[75] |
(a) | That the court has no jurisdiction over the person of the defending party; | ||
(b) | That the court has no jurisdiction over the subject matter of the claim; | ||
(c) | That venue is improperly laid; | ||
(d) | That the plaintiff has no legal capacity to sue; | ||
(e) | That there is another action pending between the same parties for the same cause; | ||
(f) | That the cause of action is barred by a prior judgment or by the statute of limitations; | ||
(g) | That the pleading asserting the claim states no cause of action; | ||
(h) | That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished; | ||
(i) | That the claim on which the action is founded is unenforceable under the provisions of the Statute of Frauds; and | ||
(j) | That a condition precedent for filing the claim has not been complied with. |
13.2.1 | Court has no jurisdiction over the person defending party. | |||
13.2.2 | Court has no jurisdiction over the subject matter of the claim.81 | |||
13.2.3 | Venue is improperly laid. | |||
(a) | Venue of an action depends upon the: | |||
a.1 | nature of the action; | |||
a.2 | residence of the parties; | |||
a.3 | stipulation of the parties; and | |||
a.4 | law. | |||
(b) | Test to Determine Nature of Action | |||
The nature of the action is determined from the allegations of the complaint, the character of the relief, its purpose and prime objective. When the prime objective is to recover real property, it is a real action.[82] | ||||
(c) | Rule that Stipulations as to Venue may Either Be Permissive or Mandatory | |||
Written stipulations are either mandatory or permissive. In interpreting stipulations as to venue, inquiry must be made as to whether or not the agreement is restrictive in the sense that the suit may be filed only in the place agreed upon or merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fixed by the rules.[83] | ||||
Qualifying or restrictive words are 'must,' 'only,' and 'exclusively' as cited in Philippine Banking Corporation v. Tensuan,[84] 'solely,' 'in no other court,' 'particularly,' nowhere else but except', etc.[85] | ||||
(d) | Waiver by Failure to File Motion to Dismiss Based on Improper Venue: | |||
Improper venue may now be pleaded as an affirmative defense in the answer.[86] Improper venue may only be deemed waived if it is not pleaded either in a motion to dismiss or in the answer.[87] | ||||
13.2.3 | Plaintiff Has No Legal Capacity to Sue | |||
(a) | Meaning | |||
Legal capacity to sue means that a party is not suffering from any disability such as minority, insanity, covertures, lack of juridical personality, incompetence, civil interdiction[88] or does not have the character or representation which he claims[89] or with respect to foreign corporation, that it is doing business in the Philippines with a license.[90] | ||||
(b) | Decisional Rules | |||
In Pilipinas Shell Petroleum Corporation v. Dumlao,[91] the Supreme Court held that a person who has no interest in the estate of a deceased person has no legal capacity to file a petition for letters of administration. With respect to foreign corporations, the qualifying circumstances of plaintiff’s capacity to sue being an essential element must be affirmatively pleaded.[92] The qualifying circumstance is an essential part of the element of the plaintiff’s capacity to sue.[93] The complaint must either allege that it is doing business in the Philippines with a license or that it is a foreign corporation not engaged in business and that it is suing in an isolated transaction. | ||||
13.2.4 | Litis Pendentia | |||
(a) | Rationale of the Rule: Like res judicata as a doctrine, litis pendentia is a sanction of public policy against multiplicity of suits.[94] The principle upon which a plea of another action pending is sustained is that the latter action is deemed unnecessary and vexatious.[95] | |||
(b) | Requisites of Litis Pendentia: To prevail as a ground for a motion to dismiss, the following elements must be present: | |||
b.1 | Identity of parties, or at least such as representing the same interest in both actions; | |||
b.2 | Identity of rights asserted and prayed for, the relief being founded on the same facts; and | |||
b.3 | The identity on the preceding 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 judicata in the action under consideration.[96] | |||
(c) | Which of the Two Cases Should be Dismissed? | |||
The Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide that there is a pending action, not a pending prior action. Given, therefore, the pendency of two actions, the following are the relevant considerations in determining which action should be dismissed: | ||||
c.1 | the date of the filing, with preference generally given to the first action filed to be retained; | |||
c.2 | whether the action sought to be dismissed was filed merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal; and | |||
c.3 | whether the action is the appropriate vehicle for litigating the issues between the parties.[97] | |||
13.2.5 | Res Judicata | |||
(a) | Statement of the Doctrine | |||
The doctrine of res judicata is a rule which pervades every well-regulated system of jurisprudence and is founded upon two grounds embodied in various maxims of the common law, namely: | ||||
a.1 | public policy and necessity which make it to the interest of the state that there should be an end to litigation – interest reipublicae ut sit finis litium, and | |||
a.2 | the hardship on the individual that he should be vexed twice for the same cause – nemo debet bis vexari et eadem causa. [98] | |||
(b) | The requisites of res judicata are the following: | |||
b.1 | the former judgment or order must be final; | |||
b.2 | it must be a judgment or order on the merits; | |||
b.3 | the court which rendered it had jurisdiction over the subject matter and the parties; and | |||
b.4 | there must be, between the first and second actions, identity of parties, of subject matter and of cause of action.[99] | |||
(c) | Two Aspects of Res Judicata | |||
c.1 | Bar by Former Judgment – when, between the first case where the judgment was rendered, and the second case where the judgment is invoked, there is identity of parties, subject matter and cause of action. | |||
c.2 | Conclusiveness of Judgment – when there is an identity of parties but not cause of action, the judgment being conclusive in the second case only as to those matters actually and directly controverted and determined, and not as to matters invoked thereon.[100] | |||
(d) | Decisional Rules | |||
A judicial compromise has the effect of res judicata and is immediately executory and not appealable.[101] The ultimate test in ascertaining the identity of causes of action is said to be to look into whether or not the same evidence fully supports and establishes both the present cause of action and the former cause of action.[102] Only substantial, and not absolute, identity of parties is required for res judicata.[103] |
ART. 1139. Actions prescribe by the mere lapse of time fixed by law.(a) Decisional Rules
ART. 1140. Actions to recover movables shall prescribe eight years from the time the possession thereof is lost, unless the possessor has acquired the ownership by prescription for a less period, according to article 1132, and without prejudice to the provisions of articles 559, 1505, and 1133.
ART. 1141. Real actions over immovables prescribe after thirty years.
This provision is without prejudice to what is established for the acquisition of ownership and other real rights by prescription.
ART 1142. A mortgage action prescribes after ten years.
ART 1143. The following rights, among others specified elsewhere in this Code, are not extinguished by prescription:ART. 1144. The following actions must be brought within ten years from the time the right of action accrues:
- To demand a right of way, regulated in article 649;
- To bring an action to abate a public or private nuisance.
ART. 1145. The following actions must be commenced within six years:
- Upon a written contract;
- Upon an obligation created by law;
- Upon a judgment.
- Upon an oral contract;
- Upon a quasi-contract.
ART. 1146. The following actions must be instituted within four years:However, when the action arises from or out of any act, activity, or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year.[104]
- Upon an injury to the rights of the plaintiff;
- Upon quasi-delict.
Art. 1147. The following actions must be filed within one year:
- For forcible entry and detainer;
- For defamation.
ART. 1148. The limitations of action mentioned in articles 1140 to 1142, and 1144 to 1147 are without prejudice to those specified in other parts of this Code, in the Code of Commerce and in special laws.
ART. 1149. All other actions whose periods are not fixed in this Code or in other laws must be brought within five years from the time the right of action accrues.
ART. 1150. The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought.
ART. 1151. The time for the prescription of actions which have for their object the enforcement of obligations to pay principal with interest or annuity runs from the last payment of the annuity or of the interest.
ART. 1152. The period for prescription of actions to demand the fulfillment of obligation declared by a judgment commences from the time the judgment became final.
ART. 1153. The period for prescription of actions to demand accounting runs from the day the persons who should render the same cease in their functions.
The period for the action arising from the result of the accounting runs from the date when said result was recognized by agreement of the interested parties.
ART. 1154. The period during which the obligee was prevented by a fortuitous event from enforcing his right is not reckoned against him.
ART. 1155. The prescription of actions is interrupted when they are filed before the court, when there is a written extrajudicial demand by the creditors, and when there is any written acknowledgment of the debt by the debtor.
(a) | Elements of a Cause of Action | ||
A cause of action exists if the following elements are present, namely: | |||
a.1 | a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; | ||
a.2 | an obligation on the part of the named defendant to respect or not to violate such right; and | ||
a.3 | an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages.[109] | ||
(b) | Hypothetical Admission of Allegations of Fact in the Complaint | ||
It is axiomatic that a defendant moving to dismiss a complaint on this ground is regarded as having admitted all the averments thereof, at least hypothetically, the test of the sufficiency of the facts found in a petition, as constituting a cause of action, being whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer thereof. In determining the sufficiency of the statements in the complaint as setting forth a cause of action, only those statements in the complaint, to repeat, may properly be considered, and it is error for the Court to take cognizance of external facts, or hold a preliminary hearing to determine their existence.[110] | |||
(c) | The following Allegations are not Deemed Hypothetically Admitted: | ||
c.1 | allegations of which the court will take judicial notice are not true; neither allegations of conclusions nor allegations of fact the falsity of which the court may take judicial notice are deemed admitted;[111] | ||
c.2 | legally impossible facts; | ||
c.3 | facts inadmissible in evidence; and | ||
c.4 | facts which appear by record or document included in the pleadings to be unfounded;[112] | ||
c.5 | When other facts may be considered; | ||
c.6 | Where the motion to dismiss was heard with the submission of evidence or if documentary evidence admitted by stipulation discloses facts sufficient to defeat the claim[113] or admitted during hearing on preliminary injunction,[114] the facts therein adduced may be considered; | ||
c.7 | All documents attached to a complaint, the due execution and genuineness of which are not denied under oath by the defendant, must be considered as part of the complaint without need of introducing evidence thereon;[115] | ||
c.8 | In resolving a motion to dismiss, every court must take cognizance of decisions the Supreme Court has rendered because they are proper subjects of mandatory judicial notice as provided by Section 1 of Rule 129 of the Rules of Court. The said decisions, more importantly, 'form part of the legal system,' and failure of any court to apply them shall constitute an abdication of its duty to resolve a dispute in accordance with law, and shall be a ground for administrative action against an inferior court magistrate;[116] | ||
c.9 | Exhaustion of Administrative Remedies. Where plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action.[117] |
ART. 1231. Obligations are extinguished:
(i) by payment or performance; (ii) by the loss of the thing due; (iii) by the condonation or remission of the debt; (iv) by the confusion or merger of rights of debtor and creditor; (v) by compensation; and (vi) by novation.
Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription, are governed elsewhere in this Code.
ART. 1403. The following contracts are unenforceable, unless they are ratified:
1. Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers;
2. Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases, an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or secondary evidence of its contents:a. An agreement that by its terms is not to be performed within a year from the making thereof;
b. An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum;
c. An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;
d. A representation as to the credit of a third person.
3. Those where both parties are incapable of giving consent to a contract.
Art. 2035. No compromise upon the following questions shall be valid:13. Resolution of the Motion.
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor.[120]
Sec. 1. Defenses and objections not pleaded.–Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record 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 or by Statute of Limitations, the court shall dismiss the claim.
(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 necessity or desirability of amendments to the pleadings; | |
(d) | the possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; | |
(e) | the limitation of the number of witnesses; | |
(f) | the advisability of a preliminary reference of issues to a commissioner; | |
(g) | the propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist. | |
(h) | the advisability or necessity of suspending the proceedings; and | |
(i) | such other matters as may aid in the prompt disposition of the action.[148] |
A. Pre-Trial4. The Pre-Trial Order
1. Within five (5) days after the last pleading joining the issues has been filed and served, the plaintiff must move ex parte that the case be set for pre-trial conference.
2. The parties shall submit, at least three (3) days before the conference, pre-trial briefs containing the following:3. Before the pre-trial conference, the judge must study the pleadings of every case, and determine the issues thereof and the respective positions of the parties thereon to enable him to intelligently steer the parties toward a possible amicable settlement of the case, or, at the very least, to help reduce and limit the issues.
- A statement of their willingness to enter into an amicable settlement indicating the desired terms thereof, or to submit the case to any of the alternative modes of dispute resolution;
- A summary of admitted facts and proposed stipulation of facts;
- The issues to be tried or resolved;
- The number and names of the witnesses to be presented, and abstract of their testimonies, and the approximate number of hours that will be required by the parties for the presentation of their respective evidence;
- Copies of all documents intended to be presented with a statement of the purposes of their offer;
- A manifestation of their having availed or their intention to avail themselves of any discovery procedure, or of the need of referral of any issues to commissioners;
- Applicable laws and jurisprudence;
- The available trial dates of counsel for complete presentation of evidence, which must be within a period of three months from the first day of trial.
The judge should avoid the undesirable practice of terminating the pre-trial as soon as the parties have indicated that they cannot settle the controversy. He must be mindful that there are other important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case.
4. At the pre-trial conference, the following shall be done:5. After the pre-trial conference, the judge should not fail to prepare and issue the requisite pre-trial order, which shall embody the matters mentioned in Section 7, Rule 18 of the 1997 Rules of Civil Procedure.
- The judge with all tact, patience and impartiality shall endeavor to persuade the parties to arrive at a settlement of the dispute; if no amicable settlement is reached, then he must effectively direct the parties toward the achievement of the other objectives or goals of pre-trial set forth in Section 2, Rule 18, 1997 Rules of Civil Procedure.
- If warranted by the disclosures at the pre-trial, the judge may either forthwith dismiss the action, or determine the propriety of rendering a judgment on the pleadings or a summary judgment.
- The judge shall define the factual issues arising from the pleadings and endeavor to cull the material issues.
- If only legal issues are presented, the judge shall require the parties to submit their respective memoranda and thereafter render judgment.
- If trial is necessary, the judge shall fix the trial dates required to complete presentation of evidence by both parties within ninety (90) days from the date of initial hearing.
6.. Failure of the plaintiff to appear at the pre-trial shall be a cause for dismissal of the action. A similar failure of the defendant shall be a cause to allow the plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof.
7. Failure to file pre-trial briefs shall have the same effect as failure to appear at the pre-trial.The judge should encourage the effective use of pre-trial discovery procedures.[149]
4.1.1 | To prevent manifest injustice;[152] | |
4.1.2 | Issues that are impliedly included or necessarily connected to the expressly defined issues and denser parts of the pre-trial order.[153] | |
4.1.3 | Issues not included in the pre-trial order but were tried expressly or impliedly by the parties.[154] |
To insure speedy disposition of cases, the following guidelines must be faithfully observed:
I. The session hours of all Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts shall be from 8:30 A. M. to noon and from 2:00 P. M. to 4:30 P. M. from Monday to Friday. The hours in the morning shall be devoted to the conduct of trial, while the hours in the afternoon shall be utilized for (1) the conduct of pre-trial conferences; (2) writing of decisions, resolutions, or orders; or (3) the continuation of trial on the merits, whenever rendered necessary, as may be required by the Rules of Court, statutes, or circulars in specified cases.
However, in multi-sala courts in places where there are few practicing lawyers, the schedule may be modified upon request of the Integrated Bar of the Philippines such that one-half of the branches may hold their trial in the morning and the other half in the afternoon.
Except those requiring immediate action, all motions should be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next business day. The unauthorized practice of some judges of entertaining motions or setting them for hearing on any other day or time must be immediately stopped.
II. Judges must be punctual at all times.
III. The Clerk of Court, under the direct supervision of the Judge, must comply with Rule 20 of the 1997 Rules of Civil Procedure regarding the calendar of cases.
IV. There should be strict adherence to the policy on avoiding postponements and needless delay.
Sections 2, 3 and 4 of Rule 30, 1997 Rules on Civil Procedure on adjournments and postponements and on the requisites of a motion to postpone trial for absence of evidence or for illness of a party or counsel should be faithfully observed.
Lawyers as officers of the court, are enjoined to cooperate with judges to ensure swift disposition of cases.
V. The mandatory continuous trial system in civil cases contemplated in Administrative Circular No. 4 dated 22 September 1988, and the guidelines provided for in Circular No. 1-89, dated 19 January 1989, must be effectively implemented. For expediency, these guidelines in civil cases are hereunder restated with modifications, taking into account the relevant provisions of the 1997 Rules of Civil Procedure:
B. Trial
- Unless the docket of the court requires otherwise, not more than four (4) cases shall be scheduled for trial daily.
- The Presiding Judge shall make arrangements with the prosecutor and the Public Attorney’s Office (PAO) so that a relief prosecutor and a PAO attorney are always available in case the regular prosecutor or PAO attorneys are absent.
- Contingency measures must likewise be taken for any unexpected absence of the stenographer and other support staff assisting in the trial.
- The issuance and service of subpoena shall be done in accordance with Administrative Circular No. 4 dated 22 September 1988.
- The judge shall conduct trial with utmost dispatch, with judicious exercise of the court’s power to control trial proceedings to avoid delay.
- The judge must take notes of the material and relevant testimonies of witnesses to facilitate his decision-making.
- The trial shall be terminated within ninety (90) days from initial hearing. Appropriate disciplinary sanctions may be imposed on the judge and the lawyers for failure to comply with the requirement due to causes attributable to them.
- Each party is bound to complete the presentation of his evidence within the trial dates assigned to him. After the lapse of said dates, the party is deemed to have completed the presentation of evidence. However, upon verified motion based on compelling reasons, the judge may allow a party additional trial dates in the afternoon; provided that said extension will not go beyond the three-month limit computed from the first trial date except when authorized in writing by the Court Administrator, Supreme Court.
I. All trial judges must strictly comply with Circular No. 38-98, entitled 'Implementing the Provisions of Republic Act No. 8493' ('An Act to Ensure a Speedy Trial of All Cases Before the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Court, Appropriating Funds Therefore, and for Other Purposes') issued by the Honorable Chief Justice Andres R. Narvasa on 15 September 1998.
II.
- As a constant reminder of what cases must be decided or resolved, the judge must keep a calendar of cases submitted for decision, noting therein the exact day, month and year when the 90-day period is to expire. As soon as a case is submitted for decision, it must be noted in the calendar of the judge; moreover, the records shall be duly collated with the exhibits and transcripts of stenographic notes, as well as the trial notes of the judge, and placed in the judge’s chamber.
2. In criminal cases, the judge will do well to announce in open court at the termination of the trial the date of the promulgation of the decision, which should be set within 90 days from the submission of the case for decision.
3. All Judges must scrupulously observe the period prescribed in Section 15, Article VIII of the Constitution.
This Circular shall take effect on February 1,1999, and the Office of the Court Administrator shall ensure faithful compliance therewith.
City of Manila, 15 January 1999.
xxx | ||
(3) | A case is considered submitted for decision upon the admission of the evidence of the parties at the termination of the trial. The ninety (90) day period for deciding the case shall commence to run from submission of the case for decision without memoranda; in case the Court requires or allows its filing, the case shall be considered submitted for decision upon the filing of the last memorandum or the expiration of the period to do so, whichever is earlier. Lack of transcript of stenographic notes shall not be a valid reason to interrupt or suspend the period for deciding the case unless the case was previously heard by another judge not the deciding judge in which case the latter shall have the full period of ninety (90) days from the completion of the transcripts within which to decide the same. | |
(4) | The court may grant extension of time to file memoranda, but the ninety (90) days period for deciding the case shall not be interrupted thereby. | |
(5) | The foregoing rules shall not apply to Special Criminal Courts under Circular 20 dated August 7, 1987, and to cases covered by the Rule on Summary Procedure in which memoranda are prohibited. | |
xxx |
1) | If it is merely discovered; | |
2) | omitted through mistake or inadvertence; or | |
3) | when the purpose is to correct evidence previously offered.[156] |
For motions for postponement after completion of the pre-trial stage, one hundred (Php100) pesos for the first, and an additional fifty (Php50) pesos for every postponement thereafter based on that for the immediately preceding motion: Provided, however, that no fee shall be imposed when the motion is found to be based on justifiable and compelling reason.
If the defending party fails to answer within the time allowed therefore, 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 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.[161]
After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed, he shall be deemed to have waived the right to present evidence.[162]
1) | Motion for Reconsideration; | |
2) | Motion for New Trial; and | |
3) | Appeal. |
1) | Relief for Judgments or Final Orders; | |
2) | Petition for Certiorari; and | |
3) | Annulment of Judgment. |
1) | damages awarded are excessive; | |
2) | evidence is insufficient to justify the decision or final order; and | |
3) | decision or final order is contrary to law.[188] |
1) | must have been discovered after trial; | |
2) | could not have been discovered and produced at the trial despite reasonable diligence; and | |
3) | if presented, would probably alter the result of the action.[199] Mere initial hostility of a witness at the trial does not constitute his testimony into newly discovered evidence.[200] |
1) | the nature or character of the fraud, accident, mistake or excusable negligence on which the motion for new trial is based; | |
2) | the facts constituting the movant’s good and substantial defenses or valid causes of action;[201] and | |
3) | the evidence which he intends to present if his motion is granted. |
If a new trial is granted in accordance with the provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same.[209]
1) | An order denying a motion for new trial or reconsideration; | |
2) | An order denying a petition for relief or any similar motion seeking relief from judgment; | |
3) | An interlocutory order; | |
4) | An order disallowing or dismissing an appeal; | |
5) | An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; | |
6) | An order of execution; | |
7) | A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and | |
8) | An order dismissing an action without prejudice. |
1) | ordinary appeal;[223] | |
2) | petition for review;[224] and | |
3) | appeal by certiorari (petition for review on certiorari).[225] |
1) | Decision in Forcible Entry and Unlawful Detainer, unless appellant stays immediate execution by filing a notice of appeal, supersedeas bond and depositing in court a monthly rental or compensation for the occupation as fixed by the court which rendered the decision;[226] | |
2) | Decision of the Metropolitan, Municipal or Municipal Circuit Trial Court or the Regional Trial Court where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order;[227] | |
3) | Decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure;[228] | |
(4) | Decision of Quasi-Judicial Agencies under the Rules of Court, Rule 43, Section 12, unless otherwise provided for by the Court of Appeals; | |
(5) | Decision in Cases of Injunction, Receivership, Support and Accounting.[229] |
A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties.[233]
1) | issue an order for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal; | |
2) | approve compromise of the parties prior to the transmittal of the record on appeal to the appellate court; | |
3) | permit the prosecution of indigent appeals; | |
4) | order execution pending appeal in accordance with Section 2, Rule 39; and | |
5) | approve withdrawal of appeal.[234] |
1) | When subsequent facts and circumstances transpire which render such execution unjust, or impossible, such as a supervening cause like the act of the Commissioner of Civil Service finding the plaintiff administratively guilty and which constituted a bar to his reinstatement as ordered by the trial court in a civil case;[242] or where the defendant bank was placed under receivership;[243] | |
2) | On equitable grounds, as when there has been a change in the situation of the parties which makes execution inequitable;[244] | |
3) | Where the judgment has been novated by the parties;[245] | |
4) | When a petition for relief or an action to enjoin the judgment is filed and a preliminary injunction is prayed for and granted;[246] | |
5) | Where the judgment has become dormant, the five (5) year period under Rule 39, Section 6 having expired without the judgment having been revived;[247] or | |
6) | Where the judgment turns out to be incomplete[248] or is conditional[249] since, as a matter of law, such judgment cannot become final. |
1) | when it was improvidently issued; | |
2) | when it is defective in substance; | |
3) | when it is issued against the wrong party; | |
4) | where the judgment was already satisfied; | |
5) | when it was issued without authority; | |
6) | when a change in the situation of the parties renders execution inequitable; and | |
7) | when the controversy was never validly submitted to the court.[250] |
a) | file with the register of deeds, a copy of the order and description of the attached property and notice of attachment; and | |
B) | leave with the occupant of the property a copy of the same order, description and notice.[268] |
1) | Those to which parties litigant may resort for the preservation or protection of their rights or interest, and for no other purpose during the pendency of the action. | |
2) | They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter.[284] |
1) | Attachment (Rule 57); | |
2) | Preliminary Injunction (Rule 58); | |
3) | Receivers (Rule 59); | |
4) | Replevin (or delivery of private property) ( Rule 60); and | |
5) | Alimony Pendente Lite (Rule 61). |
Attachment is a juridical institution which has for its purpose to secure the outcome of the trial, that is, the satisfaction of the pecuniary obligation really contracted by a person or believed to have been contracted by him, either by virtue of a civil obligation emanating from contract or from law, or by virtue of some crime or misdemeanor that he might have committed, and the writ issued, granted it, is executed by attaching and safely keeping all the movable property of the defendant, or so much thereof as may be sufficient to satisfy the plaintiff’s demands.[287]
The chief purpose of the remedy of attachment is to secure a contingent lien on defendant’s property until plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make some provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach of creditors.[288]
1) | a sufficient cause of action exists; | |
2) | the case is one of those mentioned in Rule 57, Section 1; | |
3) | there is no sufficient security for the claim sought to be enforced by the action; | |
4) | the amount due to the applicant is as much as the sum for which the order is granted above all legal counterclaims. |
8.1 | The purposes of preliminary attachment are: | ||
1) | to seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment; or | ||
2) | to enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected.[298] |
When parties are ordered to maintain the status quo in a TRO, but the prevailing condition at the time of its issuance is already that resulting from acts of usurpation by one of the parties, which acts of usurpation are clearly established in the pleadings, that TRO amounts to a perpetuation of the injurious effects of such acts of usurpation; such a state of things cannot clearly be allowed, for the office of the writ of injunction is to restrain the wrongdoer, not to protect him.[315]4. Independent action merely to obtain preliminary injunction is not allowed. Some substantive relief must be sought.[316]
xxx If the ground is the insufficiency of the complaint, the same is apparent from the complaint itself. Preliminary injunction in such a circumstance may be refused outright, with or without notice to the adverse party. In fact, under Section 6 of Rule 58, the court may also refuse an injunction on other grounds on the basis of affidavits which may have been submitted by the parties in connection with such application. xxx
xxx (Section 7 of Rule 58) merely specifies the actions that the court may take on the application for the writ if there is a hearing on the merits. It does not declare that such hearing is mandatory or prerequisite thereof. Otherwise, the courts will be forced to conduct a hearing even if from a consideration of the pleadings alone it can readily be ascertained that the movant is not entitled to the writ. xxx
It would be different xxx if there is a prima facie showing on the face of the motion or pleadings that the grant of preliminary injunction may be proper, in which case notice to the opposing party would be necessary since the grant of such writ on an ex parte proceeding is now proscribed.xxx
(If there is a prima facie showing that preliminary injunction is proper) a hearing should be conducted, since under such circumstance, only in cases of extreme urgency will the writ issue prior to a final hearing. Such requirement for prior notice and hearing underscores the necessity that a writ of preliminary injunction is to be dispensed with circumspection and both sides should be heard whenever possible. But it does not follow that such a hearing is indispensable where right at the outset the court is reasonably convinced that the writ will not lie. What was then discouraged and is now specifically prohibited is the issuance of the writ without notice and hearing. xxx[323]
11.1 | Injunction against courts or tribunals of co-equal rank prohibited.[340] | |
11.2 | Injunction orders are prohibited in the labor cases.341 | |
11.3 | No injunction beyond prayer in complaint.342 | |
11.4 | To enjoin the prosecution of criminal proceedings.[343] |
1) | For the orderly administration of justice; | |
2) | To prevent the use of the strong arm of the law in an oppresive and vindictive manner; | |
3) | To avoid multiplicity of actions; | |
4) | To afford adequate protection of constitutional rights; | |
5) | In proper cases because the statute relied upon is unconstitutional or was held invalid;[345] | |
6) | Where the constitutionality of the Chinese Book Keeping Law was questioned;[346] | |
7) | Where the hearing of the libel case was enjoined by permanent injunction after the Supreme Court in a separate case found the communication alleged to be libelous as privileged and not libelous;347 | |
8) | Where a traffic ordinance was found to be invalid;[348] and | |
9) | Where the fiscal was restrained from further proceeding with criminal case found to be civil in nature.[349] Note: This was later on reconsidered.[350] |
1) | The invasion of the right is material and substantial; | |
2) | The right of a complainant is clear and unmistakable; | |
3) | There is an urgent and permanent necessity for the writ to prevent serious damage.[351] |
1) | to compel cohabitation;[352] | |
2) | in cancellation of attachment;[353]and | |
3) | in release of imported goods pending hearing before Commissioner of Customs.[354] | |
4) | Injunctions are also not available to take property out of the possession or control of one party and place it into that of another whose title has not clearly been established.[355] The office of the writ of injunction is to restrain the wrongdoer [356] not to protect him.[357] |
When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall proceed as follows:
(a) Verified application and bond for preliminary injunction or temporary restraining order;
(b) Determination from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice.
(c) If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance;
(d) In either case, even if no TRO had been issued because there is no extreme urgency, the case shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.
However, (1) where the summons could not be served personally or by substituted service despite diligent efforts, or (2) the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply.
(e) If no TRO has been issued because there is no extreme urgency, the application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.
(f) Within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein.
(g) Determination within twenty days from service of the TRO on the party sought to be enjoined whether a preliminary injunction shall issue or not.
(h) The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued. Another restraining order may, therefore, be issued provided it is not based on the same ground.
1) | S/he posts a redelivery bond and | |
2) | S/he furnishes the plaintiff of a copy of the undertaking within five (5) days from taking and | |
3) | the bond is sufficient and in proper form.[385] |
1) | Interpleader (Rule 62); | |
2) | Declaratory Relief (Rule 63); | |
3) | Certiorari, Prohibition and Mandamus (Rule 65); | |
4) | Quo Warranto (Rule 66); | |
5) | Expropriation (Rule 67); | |
6) | Foreclosure of Real Estate Mortgage (Rule 68); | |
7) | Partition (Rule 69); | |
8) | Forcible Entry and Unlawful Detainer (Rule 70); and | |
9) | Contempt (Rule 71). |
1) | The plaintiff claims no interest in the subject matter or his claim is not disputed; | |
2) | There must at least be two (2) or more conflicting claimants; | |
3) | The parties to be interpleaded must make effective claims; and | |
4) | The subject matter must be one and the same. |
1) | There must be a justiciable controversy;[396] | |
2) | The controversy must be between persons whose interest is adverse; | |
3) | The parties must have legal interest in the controversy; | |
4) | The controversy must be ripe for judicial determination;[397] and | |
5) | The petition must be filed before there is a breach or violation.[398] |
1) | (to obtain judicial declaration of citizenship;[404] | |
2) | to seek relief on moot questions or to resolve hypothetical, abstract or theoretical questions, or to decide claims which are uncertain;[405] | |
3) | (to resolve political issues or questions;[406] | |
4) | to test the correctness or validity of a court decision;[407] | |
5) | to determine hereditary rights;[408] | |
6) | when the petition is based upon the happening of a contingent event; | |
7) | when the petitioner is not the real party in interest;[409] and | |
8) | when administrative remedies have not yet been exhausted.[410] |
1) | A tribunal, board or officer exercises judicial or quasi-judicial function; | |
2) | It or s/he acts without or in excess of jurisdiction or with grave abuse of discretion; and | |
3) | There is no appeal nor plain, speedy and adequate remedy in the ordinary cause of law. |
1) | Without jurisdiction – absence of a legal power to determine a case. | |
2) | Excess of jurisdiction – the court has jurisdiction but fails to comply with the conditions prescribed for its exercise.[411] | |
3) | Grave abuse of discretion – judicial power is exercised capriciously, arbitrarily or despotically due to passion or personal hostility.[412] |
1) | appeal is not a speedy and adequate remedy;[414] | |
2) | order is issued without or in excess of jurisdiction;[415] | |
3) | in consideration of public welfare and for the advancement of public policy;[416] | |
4) | order is a patent nullity;[417] | |
5) | to avoid future litigation;[418] | |
6) | to avoid a miscarriage of justice;[419] | |
7) | in furtherance of the broader interest of justice and equities.[420] |
1) | in the interest of justice and public welfare and advancement of public policy;[422] | |
2) | order was issued without or in excess of jurisdiction;[423] | |
3) | order is a patent nullity[424] as when petitioner's right to due process was denied in the lower court[425] or petitioner has been unlawfully deprived of his right to appeal;[426] | |
4) | when relief is extremely urgent, there is no more need to wait for the resolution of a motion for reconsideration;[427] | |
5) | when the questions raised and passed upon in the lower court are the same as those to be passed upon in the certiorari case;[428] and | |
6) | question is purely of law.[429] |
1) | 1) it must be verified;[430] | |
2) | 2) accompanied by a certificate of non-forum shopping;[431] | |
3) | accompanied with certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto;[432] | |
4) | proof of service pursuant to Rule 13, Section 1; and | |
5) | if not filed and served personally, then, it should be accompanied by a written explanation why personal service was not resorted to.[433] |
1) | a tribunal, corporation, board, officers or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty arising from an office, trust, or station or unlawfully excludes another from the use or enjoyment of a right or office to which the plaintiff is entitled; and | |
2) | there is no other plain, speedy and adequate remedy in the ordinary course of law. |
1) | due process of law – compliance with the rules set down (Rule 67); | |
2) | payment of just compensation; and | |
3) | taking must be for public use.[444] |
1) | make a finding of the amount due the plaintiff including interest, cost and other charges approved by the court; | |
2) | order defendant to pay said amount within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from entry of judgment; and | |
3) | if the defendant defaults, the court should order the sale at public auction of the mortgaged property. |
1) | A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists.[450] | |
2) | Deficiency judgment cannot be rendered against a non-resident defendant.[451] | |
3) | No deficiency judgment may be rendered against the owner who is not a mortgagor and has not assumed personal liability for the debt. The remedy is an ordinary action against the debtor.[452] | |
4) | If the debtor dies, the deficiency may be filed as a claim against his estate.[453] |
1) | a special civil action involving a realty; | |
2) | subject to the Rules on Summary Procedure; | |
3) | under the original exclusive jurisdiction of first level courts; | |
4) | nature of the action is determined by the allegation of the complaint and the character of the relief sought;[460] and | |
5) | one co-owner may institute the action. |
1) | perfect his appeal in due time; | |
2) | files a sufficient supersedeas bond, approved by the Municipal Trial Court; and | |
3) | during the pendency of the appeal, s/he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court on or before the tenth (10th) day of each succeeding month.[464] But upon motion of the plaintiff within ten (10) days from the perfection of the appeal to the Regional Trial Court, the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious.[465] |
1) | demand to pay rental or comply with conditions of the lease and if this is not complied with, | |
2) | demand to vacate within fifteen (15) days in case of land or five (5) days in case of buildings from notice thereof. The two (2) demands may be embodied in one (1) letter.[477] Demand to pay or comply makes lessee a deforciant while demand to pay and vacate is a requirement for filing the action for unlawful detainer. |
Only in cases of clear and contumacious refusal to obey should the power be exercised. A bona fide misunderstanding of the terms of the order or of the procedural rules should not immediately cause the institution of contempt proceedings. 'The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain the respect without which the administration of justice must falter or fail. Such power being drastic and extraordinary in its nature xxx should not be resorted to xxx unless necessary in the interest of justice.[495]
DEFINITION | GROUNDS | PURPOSE | COURT WHICH CAN GRANT | |
1. Preliminary Attachment (Rule 57) | A provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the adverse party therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching party against the adverse party | a. In an action for the recovery of a specified amount or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; b. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; c. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person; d. In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; e. In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; f. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication (Section 1) | As security for the satisfaction of any judgment that may be recovered by the claimant | Supreme Court, Court of Appeals, Regional Trial Court, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts |
2. Preliminary Injunction (Rule 58) | An order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction (Section 1) | a. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; b. That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or c. That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual (Section 3) | To preserve the status quo or to resolve the last uncontested status quo | Supreme Court, Court of Appeals, Regional Trial Court, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts |
3. Temporary Restraining Order (TRO) | An order which may issue upon the filing of an application for preliminary injunction forbidding the defendant to do the threatened act until a hearing on the application can be had | a. Matter is of extreme urgency; and b. The applicant will suffer grave injustice and irreparable injury before the matter can be heard on notice | To prevent grave injustice and irreparable injury to the applicant before the application for a writ of preliminary injunction can be acted upon | Supreme Court, Court of Appeals, Regional Trial Court, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts |
4. Receivership | Provisional remedy by which the court appoints a receiver as its representative and in behalf of all the parties to an action for the purpose of preserving and conserving the property in litigation and to prevent possible wastage or dissipation or otherwise to carry the judgment into effect | a. When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; d. Whenever in other cases, it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court. | To preserve the property during the pendency of the litigation or to dispose of it according to the judgment when it is finally rendered or otherwise to carry the judgment into effect | Supreme Court, Court of Appeals, Regional Trial Court, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts |
5. Replevin | Court orders the seizure of chattels or goods claimed by a party as his which are allegedly wrongfully taken or detained by another person and to be delivered to the former to be retained by him during the pendency of the action | a. Applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; b. The property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information and belief; c. The property has not been distrained or taken of a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; d. The actual market value of the property. | To prevent the subject property from being disposed of during the pendency of the case | Regional Trial Court, Family Court, Metropolitan, Municipal, and Municipal Circuit Trial Courts |
6. Support Pendente Lite | Order issued by a court in which an action for support has been filed fixing an amount of support to be given by the adverse party to the applicant during the pendency of the case | When equity and justice may require having due regard to the probable outcome of the case and such other circumstances as may suggest the reasonability of granting support pendente lite | To answer the material needs of the applicant during the pendency of the case | Family Court |
WHEN AVAILABLE | HOW GRANTED | EFFECTIVITY | HOW DISSOLVED/DISCHARGED | |
1. Preliminary Attachment | At any stage of the action but before entry of final judgment | Ex-parte/or upon motion and hearing | During the pendency of the case unless earlier discharged or quashed by the court | By order of the court after notice and hearing on the ground that the preliminary attachment was improperly or irregularly issued or enforced or the bond is insufficient and when the adverse party makes a cash deposit or files a counterbond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment, exclusive of cost |
2. Preliminary Injunction | At any stage of the action but before judgment or final order | Upon motion and hearing | During the pendency of the case unless earlier discharged or quashed by the court | By order of the court upon affidavit of the party enjoined or if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer and the former files a counterbond |
3. Temporary Restraining Order (TRO) | During the pendency of the application for a writ of preliminary injunction | General Rule: Inter-partes (Summary hearing) Exception: TRO granted by Judge for 72 hours – Ex-parte | Not more than 20 days from service upon the person sought to be enjoined | a. Upon resolution by the court of the application for a writ of preliminary injunction or the expiration of the 20-day period from service of the writ upon the party, whichever comes first; b. Upon affidavit of the party enjoined or after hearing if it appears that although the applicant is entitled to a TRO, the issuance or continuance thereof, would cause irreparable damage to the party enjoined while the applicant can be fully compensated for such damage as he may suffer upon the applicant’s filing of a counterbond |
4. Receivership | At any stage of the proceeding and even after finality of judgment | Inter-partes | Until discharged by the court | a. Filing by the adverse party of a counterbond; b. If it is shown that the appointment of a receiver was obtained without sufficient cause; c. The court motu proprio or on motion shall determine that the necessity of a receiver no longer exists |
PROVISIONAL REMEDY | WHETHER REQUIRED | AMOUNT | UNDERTAKINGS UNDER THE COUNTERBOND |
1. Preliminary attachment | Required | Discretionary with the court but not exceeding the applicant’s claim | To pay: 1. All costs which may be adjudged to the adverse party; and 2. All damages which the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto |
2. Preliminary injunction | Required | Discretionary with the court | To pay all damages which the adverse party may sustain by reason of the injunction if the court shall finally decide that the applicant was not entitled thereto |
3. Temporary Restraining Order (TRO) | Required but the court may exempt | When required, discretionary with the court | To pay all damages which the adverse party may sustain by reason of the injunction, if the court shall finally decide that the applicant was not entitled thereto |
4. Receivership | Required | Discretionary with the court | To pay damages the adverse party may sustain by reason of the appointment of a receiver in case the applicant shall have procured such appointment without sufficient cause |
5. Replevin | Required | Double the value of the property | a. For the return of the property or its value to the adverse party if such be adjudged; and b. To pay to defendant such damages as he may recover from the applicant in the action |
6. Support pendente lite | Not required | Not applicable | Not applicable |
PROVISIONAL REMEDY | WHETHER IT MAY BE FILLLED | AMOUNT | UNDERTAKINGS UNDER THE COUNTERBOND |
1. Preliminary attachment | Yes | Equal to that fixed by the court in the order of attachment | Payment of any judgment that the attaching party may recover in the action |
2. Preliminary injunction | Yes | Discretionary with the court | Pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order |
3. Temporary Restraining Order (TRO) | Yes. If a bond was filed by the claimant, then a counterbond may be filed by the adverse party; but if no bond is filed by the former, what the adverse party can file is a bond | Discretionary with the court | Pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order |
4. Receivership | Yes | Discretionary with the court | To pay all damages which the applicant may suffer by reason of the acts, omissions, or other matters specified in the application or ground for such appointment |
5. Replevin | Yes | Double the value of the property as stated in the plaintiff’s affidavit | a. The delivery of the property or its value to the plaintiff if so adjudged; and b. To pay such damages which the plaintiff may recover against the defendant |
6. Support pendente lite | No | Not applicable | Not applicable |
ORDINARY APPEAL | PETITION FOR REVIEW | APPEAL BY CERTIORARI | |
1. How appeal is initiated | Ordinary appeal by notice of appeal or record on appeal | By filing a petition for review | By filing a petition for review on certiorari |
2. Where to appeal | a. From the Metropolitan, Municipal and Municipal Circuit Trial Courts to the Regional Trial Courts, and from the Regional Trial Courts to the Court of Appeals in decisions of the Regional Trial Court rendered in the exercise of their respective original jurisdictions b. From the Metropolitan, Municipal and Municipal Circuit Trial Courts to the Court of Appeals for decisions rendered by the said courts in the exercise of their delegated jurisdiction, in which case the Metropolitan, Municipal and Municipal Circuit Trial Courts act as Regional Trial Courts | From the Regional Trial Court to the Court of Appeals, a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction | From the Regional Trial Court to the Supreme Court on a pure question of law, a decision of the Regional Trial Court rendered in the exercise of its original jurisdiction |
3. Nature of appeal | Matter of right | Matter of appellate court’s discretion | Matter of appellate court’s discretion |
4. To whom appellate docket and other lawful fees should be paid | Clerk of Court whose decision is being appealed | Clerk of Court of the Court of Appeals | Clerk of Court of the Supreme Court |
5. Payment of appellate docket and other lawful fees as a requirement of perfection of appeal | Not a requisite for perfection of appeal but a ground for dismissal if not paid on time | A requirement for perfection of appeal | A requirement for perfection of appeal to be paid to the Clerk of Court of the Appellate Court |
7. Requirement of record on appeal | In special proceedings and other cases of multiple or separate appeals | Not required | Not required |
9. Perfection of appeal as to appellant | Upon filing of the notice of appeal in due time or if record on appeal is required, upon approval of the record on appeal in due time | Upon timely filing of a petition for review and payment of corresponding docket and other lawful fees | Upon timely filing of the petition for review on certiorari and payment of docket and other lawful fees |
10. When court whose decision is being appealed loses jurisdiction | a. In appeal by notice of appeal – upon perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties b. In appeal by record on appeal – upon approval of the records on appeal filed in due time and the expiration of its time to appeal of the other parties | Upon the perfection of the appeals filed in due time and the expiration of the time to appeal by the other parties | Upon the perfection of the appeals filed in due time and the expiration of the time to appeal by the other parties |
11. As to questions which may be raised | Question of fact, question of law and question of fact and law | Question of fact, question of law, question of fact and law | Only question of law |
12. How parties are referred to | Appellant – party appealing Appellee – adverse party | Petitioner – party appealing Respondent – adverse party | Petitioner – party appealing Respondent – adverse party |
CERTIORARI | PROHIBITION | MANDAMUS | |
1. Purpose of the writ | To annul or modify an act performed by respondent | To prevent commission or carrying out the act | Compel the performance or act desired |
2. Act sought to be controlled | Judicial or quasi-judicial functions | Judicial, quasi-judicial or ministerial functions | Legal duty |
3. Respondent | Persons exercising judicial or quasi-judicial functions | Persons exercising judicial, quasi-judicial and ministerial functions | Persons having legal duty |
4. Nature of the remedy | Corrective remedy and refers to acts already consummated | Preventive remedy and refers to acts still to be done | Directory remedy commanding a person to do a legal duty |
PROHIBITION | INJUNCTION | |
1. Respondent | Generally a court, tribunal or person exercising judicial or ministerial functions | Generally against a party in an action for injunction |
2. Court’s jurisdiction | Lack or excess of jurisdiction may be a ground | Jurisdiction of the court is not questioned |
3. Nature of the remedy | Always a main action with preliminary injunction as a provisional remedy | Can be a main action with preliminary injunction as a provisional remedy |
FORCIBLE ENTRY | UNLAWFUL DETAINER | |
1. Nature of defendant’s possession | Unlawful from the beginning | Initially lawful, then it becomes unlawful |
2. Demand to vacate | No need | There is a need |
3. Proof of prior possession | Plaintiff must prove it | Not necessary for plaintiff to prove it |
4. From what point is the one (1) year period to file action counted | From forcible entry | From demand to vacate |
DIRECT CONTEMPT | INDIRECT CONTEMPT | |
1. Where the act is committed | In the presence of or so near the court or judge as to obstruct or interrupt proceedings thereon | Out of or not in the presence of the court but which tends to impede, obstruct or degrade the administration of justice |
2. Necessity of a charge | Not necessary | A written charge or a show cause order is necessary |
3. Necessity of a hearing | No need – the court can summarily impose a sanction upon the respondent | There is a need of a hearing |
4. Appealability of judgment | Not appealable – but may be challenged in a petition for certiorari | Appealable |
5. Sanctions | a. Fine not exceeding Php 200.00 in the Municipal, Metropolitan and Municipal Circuit Trial Court and not exceeding Php 2,000.00 in the Regional Trial Court, Court of Appeals and Supreme Court b. Imprisonment not exceeding one (1) day in the Municipal, Metropolitan and Municipal Circuit Trial Courts and not exceeding ten (10) days in the Regional Trial Court, Court of Appeals and Supreme Court c. Both fine and imprisonment | a. Fine not exceeding Php 5,000.00 in the Municipal, Metropolitan and Municipal Circuit Trial Courts and not exceeding Php 30,000.00 in the Regional Trial Court, Court of Appeals and Supreme Court b. Imprisonment not exceeding one (1) month in the Municipal, Metropolitan and Municipal Circuit Trial Courts and not exceeding six (6) months in the Regional Trial Court, Court of Appeals and Supreme Court c. Both fine and imprisonment |