1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 35
Summary Judgments

Rule 35

SUMMARY JUDGMENTS
Rule 35 is another important rule Summary judgments. The rule on summary
judgments and judgment on the pleadings are similar no? They are related to each other. I
would say they are brothers. Rule 34 and Rule 35, magkapatid yan silang dalawa because
they have a common denominator. Rule 35 is also a speedy procedure for the early
resolution or decision in a civil case. The same concept but with a difference. In Rule 34
on judgment on the pleadings, the answer filed by defendant has put up no defense at all.
No defense has been raised or the answer admits all the material allegations in adverse
partys pleadings. In Rule 35, the answer filed by defendant puts up a defense but the
defense is not a genuine defense. Meaning, it is invoked only for the purpose of delay and
the defense is not actually seriously being interposed.
Q: Define summary judgment procedure.
A: Summary judgment procedure is a method for promptly disposing of actions in which
there is no genuine issue as to any material fact. (De Leon vs. Faustino, L-15804, Nov. 29,
1960)
How do we apply summary judgment?
EXAMPLE: I will file a complaint and your answer invokes defenses, many defenses. But
the trouble is these defenses are not genuine. They are dilatory. They are invoked only for
the sake of invoking and they are not seriously raised. They are just to delay the case.
So, if we go to trial, I will prove my complaint. And when it is your turn, you still lose
because you have no genuine defenses, still you have succeeded in delaying the case. So I
would like to get a judgment immediately in my favor and curb your dilatory tactics by
showing that your defenses are fake and dilatory.
Q: How am I going to do that?
A: I will file a motion for summary judgment under Rule 35 on the ground that there is
no genuine issue to be tried. And under Section 1 and 2, I will attach to my motion for
summary judgment affidavits, admissions, and depositions.
Sec. 1.
Summary judgment for claimant. - A party seeking to recover upon a
claim, counterclaim, or cross-claim or to obtain a declamatory relief may, at
any time after the pleading in answer thereto has been served, move with
supporting affidavits, depositions or admissions for a summary judgment in his
favor upon all or any part thereof. (1a, R34)

For EXAMPLE: I will file a collection case against you and then you claim that you have
paid already. But in reality, it is not paid. So I know that you are lying. Ikaw naman na
defendant, you know also that you are lying, what you are after is to prolong the case.
Q: As the plaintiff, what should I do?
A: I should execute affidavit stating under oath and under pain of perjury that you have
not paid me. I will attach that to my motion. Well, of course, you know very well that if I
file an affidavit by stating that what you are saying is false, and if I tell a lie, you can file a
case of perjury against me. But since I know that I am correct, I will dare to execute an
affidavit under oath. Therefore, since his defense is false, Im asking for an immediate
decision.
Now, if you are the defendant and you received a copy of my motion, you can oppose
my motion for summary judgment where you will say, No! I paid and my defense is
genuine! The defendant must also execute an affidavit to support his position. So you
will say under oath that you paid me.
So it will become a battle of affidavits versus affidavits under oath. It is possible that
one of us will go to jail for telling a lie. So tingnan natin kung sinong matapang dito. Kung
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Rule 35
Summary Judgments

baga, if your defense is not very serious and not genuine, chances are, you will not dare to
execute an affidavit claiming that you have paid the obligation. Takot ka man diyan ba. So
if you will not execute an affidavit but you still claim that you have paid me, it is now very
obvious that the defense of payment is false and the court will say, Tama na ang
pagsisinungaling! Taob ka na!
That is summary judgment where the court will say, No more trial. The affidavit will
take the place of evidence in court. That is what the rule is all about.
Rule 35 is similar to judgment on pleadings under Rule 34 but the main difference is: In
judgment on the pleadings, the answer does not put up a defense while in summary
judgment, here it puts up a defense but the defense is not genuine it is a false defense
which should easily be exposed by way of affidavits for summary judgment.
Now take note, there is no genuine issue because if you look at the complaint and the
answer there is an issue because the answer alleges payment. That is an issue. But in
reality that is a false issue. That is why it is not a genuine issue.
Some text writers call the law on summary judgment another name it is known as the
law on Accelerated Judgment. Meaning, the process will accelerate, you can easily go to
trial. Instead of going to trial, there is no more trial. The motion for summary judgment
will determine who is telling the truth and who is not telling the truthimmediately. So at
least, the delay has been avoided.
What is the example I gave you, no? A party seeking to recover a claim Ako, I will
file against you a case of recovery of an unpaid debt. or cross-claim etc. at any time
after the pleading if answer thereto has been served meaning , after your answer has
been served, I will move with supporting affidavits, depositions or admissions for a
summary judgment in my favor.
So my motion for summary judgment must be supported with affidavits, or depositions,
or admissions. These will be the basis unlike in the previous rule (Rule 34), there are no
affidavits to support a judgment on the pleadings. All you have to do is ask the court ,
Look at the complaints and look at the answer But here, you will prove that the
defense is false and you demolish it by way of affidavits.
Q: Is summary judgment applicable to all kinds of civil actions?
A: YES, because in most cases, defendants will file an answer with defenses but they
are all false. In other words, these defenses are only interposed to delay the case. So,
summary judgment is applicable to accelerate the decision. Thats why it is similar to
Judgment on the Pleadings.
Just like in the previous rule (Judgment on the Pleadings) in certain types of cases like
declaration of nullity of marriage, annulment of marriage, legal separation, based on the
same principle that there must always be a trial in these cases, where a ground was
established based on the same principle of analogy.
Q: Is Summary Judgment available only to the plaintiff?
Summary Judgment against the plaintiff?
A: YES, that is also allowed under Section 2:

Can a defendant move for

Sec. 2.
Summary judgment for defending party. - A party against whom a
claim, counterclaim, or cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all or any part thereof.
(2a, R34)

Normally, the party who avails of summary judgment is the plaintiff. But this remedy is
not limited to the plaintiff. The defendant can also file a motion for Summary Judgment
against the plaintiff because the cause of action is sham. SO, if the remedy of Summary
Judgment is available to the plaintiff, it can also be availed by the defendant. How?

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Rule 35
Summary Judgments

EXAMPLE: You file a complaint against me. Of course, your complaint puts up a cause
of action, but I know very well that your cause of action is false, although its very rare,
usually it is the defendant who is delaying the case. Well, I could always file an answer
and there would be pre-trial but sabi ko, Matagal pa iyon! So under Section 2, instead of
filing an answer, I can file a motion for Summary Judgment and I will attach to my motion
affidavits to show that the cause of action is not genuine. And if the plaintiff believes that
his cause of action is genuine, he might as well oppose my motion with counter-affidavits.
Now, if you will not, then the court will rule in my favor, dismissing your complaint.
So you notice, Summary Judgment may be availed of by either party either the
defense is not genuine or the cause of action is not genuine.
SEC. 3.
Motion and proceedings thereon. - The motion shall be served at
least ten (10) days before the time specified for the hearing.
The adverse
party may serve opposing affidavits, depositions, or admissions at least three
(3) days before the hearing. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting affidavits, depositions, and
admissions on file, show that, except as to the amount of damages, there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. (3a, R34)

If I will file a motion for Summary Judgment, I must set it for a hearing just like any
other motion. Now, generally, if I will file a motion for Summary Judgment, you must be
served a copy at least 10 days before the hearing. Thats an exception to the general rule
in Rule 15 (general rule: you are only required to give the other party 3 days).
The reason is the other party should also be given time to oppose it with affidavits.
Thats why you have to give him a longer period to oppose and if he decides to oppose, he
must also file his opposition together with affidavits but he must furnish me with his copy
of opposition at least 3 days before the hearing.
Under the rule on deposition, I can take the deposition of my own opponent and based
on your deposition, I can prove that your defense is false. So depositions can be used not
only during the trial but to support or oppose a motion for Summary Judgment.
Rule 23, SEC. 4. Use of depositions At the trial or upon the hearing of a
motion or an interlocutory proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence, may be used against any party who was
present or represented at the taking of the deposition, or who had due notice
thereof, in accordance with any one of the following provisions:
xxx

So, depositions can be used at the trial or upon the hearing of a motion.
Q: Give examples of a motion where you can use a deposition to support your motion.
A: The following:
1.) a motion for Summary Judgment. Under Rule 35, the motion should be supported
by affidavits, depositions, etc based on what the other party will admit. And
based on Rule 23 Section 4, the deposition of the adverse party may be used for
any purpose. So I can use it to prove that your cause of action or defense is
false, or another way of supporting a motion for Summary Judgment under Rule
35, affidavits, depositions and admissions.
2.) Rule 26 Request for Admission I can avail of the Mode of the Request for
Admission based on your admissions.
According to Section 3, all the issues which are not genuine can be resolved
immediately EXCEPT as to amount of damages. Meaning the amount of damages to be
recovered by the plaintiff cannot be adjudicated through a motion for Summary Judgment
because you still have to present evidence as to how much really is the damages.
Practically every issue can be resolved summarily except the exact amount of
damages. Some people find this hard to imagine, Paano ba yon? I will file a motion for

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Rule 35
Summary Judgments

Summary Judgment and then there will be a judgment except as to the amount of
damages? Ano ba yan?
EXAMPLE: An action for damages based on quasi-delict where I will accuse you of
negligence and then you deny that you are negligent. Now, the issue is: who is negligent
and who is not. Suppose I will file motion for Summary Judgment and the court will decide
in my favor. Therefore the I am telling the truth, the defendant is telling a lie. And then
the court will say, Let the case be heard to determine exactly how much damages the
plaintiff is supposed to recover. So there will be a trial but during the trial, I will just
prove how much I am entitled. But the issue of negligence, tapos na, talo ka na,
terminated na yung issue. Damages generally cannot be granted without evidence. You
have to support really the exact amount you are entitled to receive.
If you will notice, the issue as to the fact that damages, especially unliquidated
damages,which is also subject to proof, is also mentioned in Rule 8, Section 11:
Rule 8, SEC. 11. Allegations not specifically denied deemed admitted
Material averment in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not specifically denied.

Meaning, how much are you entitled cannot be just given to you even if your opponent
will not deny an allegation. You must still prove it and that is very clear even in Rule 35
summary judgment can be granted except as to the amount of damages.
SEC. 4. Case not fully adjudicated on motion. - If on motion under this
Rule, judgment is not rendered upon the whole case or for all the reliefs sought
and a trial is necessary, the court at the hearing of the motion, by examining
the pleadings and the evidence before it and by interrogating counsel shall
ascertain what material facts exist without substantial controversy and what are
actually and in good faith controverted.
It shall thereupon make an order
specifying the facts that appear without substantial controversy, including the
extent to which the amount of damages or other relief is not in controversy, and
directing such further proceeding in the action as are just.
The facts so
specified shall be deemed established, and the trial shall be conducted on the
controverted facts accordingly. (4a, R34)

Q: Is there such a thing as a motion for partial Summary Judgment?

A: YES. Well, if you say Motion for Partial Summary Judgment, some issues
genuine, some are not. So the court can decide immediately on the issues which are
genuine but with respect to issues which are genuine, the law says, trial shall
conducted on the controverted facts summarily under Rule 35 on the issues which are
genuine.

are
not
be
not

SEC. 5. Form of affidavits and supporting papers. - Supporting and opposing

affidavits shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant
is competent to testify to the matters stated therein. Certified true copies of
all papers of parts thereof referred to in the affidavit shall be attached
thereto or served therewith. (5a, R34)

Q: What are the forms of affidavits under Rule 35?

A: The following:
1.) Supporting affidavits to support the motion for Summary Judgment;
2.) Opposing (counter-) affidavits to oppose the motion for Summary Judgment.
Q: Give the requisites of supporting or opposing affidavits to a motion for Summary
Judgment.
A: The following:
1.) The affidavit shall be made based on personal knowledge;
2.) It shall set forth such facts as would be admissible in evidence;
3.) The affiant is competent to testify to the matters stated therein; and
4.) Certified true copies of all papers of parts thereof referred to in the affidavit shall
be attached thereto or served therewith.

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Rule 35
Summary Judgments

The affidavits of your witnesses, or your affidavit must be made on personal

knowledge and shall set forth such facts as would be admissible in evidence and shall
show affirmatively that the affiant is competent and the matters stated therein.
What does that mean? Suppose the case will go to trial, so the witness will take the
witness stand. He will testify. When a witness testifies under the Rules on Evidence, there
must be a showing that what he is talking about is known by him. Otherwise, it will be
hearsay. And based on the law of evidence, the testimony is inadmissible. What I will say
should be admissible under the law on evidence otherwise my testimony will not be
allowed and I must show that Im in a position to know what Im talking about.
Thats what the witness will have to demonstrate in court. Since in a motion for
Summary Judgment, there is no more trial, there is no more witnesses who will testify in
court, what will take the place of a witness is his affidavit which must also show that the
witness has personal knowledge, etc. Meaning, what you should show during the trial, if
you are, they must also be shown in your affidavit.
If your testimony in court is not admissible, because you are telling only what you
heard from other people, then an affidavit which contains the same thing would also be
inadmissible. So, in other words, the affidavit merely takes the place of oral testimony in
court.
Q: What procedure is similar where the one who will decide, who will only read the
affidavits of both sides and render a decision?
A: Criminal Procedure: Rule 112 on Preliminary Investigation the fiscal conducts a
preliminary investigation on the affidavits lang. The complainant will submit his affidavit.
The respondent will file his counter-affidavit. Then the fiscal will go over the affidavits and
will resolve the issues and determine whether there is probable cause to file the
information or none. So, the resolution is practically based on affidavits. So walang
hearing.
SEC. 6. Affidavits in bad faith. - Should it appear to its satisfaction at
any time that any of the affidavits presented pursuant to this Rule are
presented in bad faith, or solely for the purpose of delay, the court shall
forthwith order the offending party or counsel to pay to the other party the
amount of the reasonable expenses which the filing of the affidavits caused him
to incur, including attorney's fees. It may, after hearing, further adjudge the
offending party or counsel guilty of contempt. (6a, R34)

Well, of course, the affidavits required by law must be filed in good faith.
EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for Summary Judgment
against you alleging that your defense is false and I will support it with affidavit. Ang
defendant, malakas ang loob, he opposed my motion claiming that his defense is true and
genuine and he also supported it with affidavits. Once the opposing party does that, the
court will automatically deny my motion. The court is not in the position now to know who
is telling the truth. Both maintaining under oath that he is telling the truth. So if you
oppose my motion with supporting affidavits, the court will deny my motion for Summary
Judgment and the courts says lets go to trial and during the trial, mabisto na naman and it
turned out really that you have no defense, talo ka pa rin.
Q: What is the penalty for you for filing earlier an opposition to my motion supported by
affidavits in bad faith?
A: The court may order you or counsel to pay to me (plaintiff) the amount of reasonable
expense which the filing of affidavits caused me to incur, including attorneys fees. The
court may also, after hearing, adjudge you or your lawyer guilty and I will add what is not
found in the law, I will file a case of perjury against you for executing a false statement.
That is a criminal sanction under the RPC. I can also file a case of disbarment against
the lawyer for assisting in the filing of an affidavit in bad faith.

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Rule 35
Summary Judgments

So in other words, if you execute an affidavit in bad faith, you must be ready to face all
these later damages, contempt, perjury under the RPC and the lawyer to face
disciplinary proceedings.
SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE PLEADINGS (Rule 34)
Their similarity is that, both of them are methods for promptly disposing civil actions,
wherein a civil case can be adjudicated without undergoing any trial.
Q: Distinguish Summary Judgment (Rule 35) from Judgment on the Pleadings (Rule 34).
A: The following are the distinctions:
1.) as to the ground
Summary Judgment is proper if there is no genuine issue of fact to be tried;
whereas
Judgment on the Pleadings is proper where there is no issue of fact at all to
be tried;
Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA 753)
2.) as to how the judgment rendered
Summary Judgment is rendered on the basis of facts appearing in the
pleadings, affidavits, depositions and admissions on file, whereas
Judgment on the Pleadings is rendered on the basis only of the pleadings;
(Nagrampa vs. Mulwaney, Etc., 97 Phil. 724)
3.) as to who can ask for the judgment
Summary Judgment is a remedy available for both claimant and defendant;
whereas
Judgment of Pleadings is available only on the claimant because the answer
fails to tender an issue.
VERGARA, SR. vs. SUELTO, ET AL
156 SCRA 753
ISSUE: When does an answer fail to tender an issue? When is there no
genuine issue?
HELD: Section 1, Rule 19 (now Rule 34) of the Rules of Court provides that
where an answer fails to tender an issue, or otherwise admits the material
allegation of the adverse party's pleading, the court may, on motion of that
party, direct judgment on such pleading. The answer would fail to tender an
issue, of course, if it does not comply with the requirements for a specific denial
set out in Section 10 (or Section 8) of Rule 8; and it would admit the material
allegations of the adverse party's pleadings not only where it expressly
confesses the truthfulness thereof but also if it omits to deal with them at all.
Now, if an answer does in fact specifically deny the material averments of
the complaint in the manner indicated by said Section 10 of Rule 8, and/or
asserts affirmative defenses (allegations of new matter which, while admitting
the material allegations of the complaint expressly or impliedly, would
nevertheless prevent or bar recovery by the plaintiff) in accordance with
Sections 4 and 5 of Rule 6, a judgment on the pleadings would naturally not be
proper.
But even if the answer does tender issues and therefore a judgment on
the pleadings is not proper a summary judgment may still be rendered on the
plaintiff's motion if he can show to the court's satisfaction that except as to the
amount of damages, there is no genuine issue as to any material fact, that is to
say, the issues thus tendered are not genuine, are in other words sham,
fictitious, contrived, set up in bad faith, patently unsubstantial. The
determination may be made by the court on the basis of the pleadings, and the

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Rule 35
Summary Judgments

depositions, admissions and affidavits that the movant may submit, as well as
those which the defendant may present in his turn.
Now, Summary Judgment is related to Rule 17 Section 1 in which summary judgment is
first mentioned:
Rule 17, Section 1. Dismissal upon notice by plaintiff. - A complaint may be
dismissed by a plaintiff by filing a notice of dismissal at any time before
service of the answer or of a motion for summary judgment. xxx

Q: Can the plaintiff dismiss his complaint as a matter of right?

A: YES, at any time before the defendant has filed his answer or of a motion for
summary judgment. (Rule 17, Section 1)
The second time that it was mentioned was in Rule 18 Section 2:
Rule 18, Sec. 2. Nature and purpose. - The pre-trial is mandatory.
The
court shall consider:
xxx
(g) 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;
xxx

During the pre-trial conference, it is possible for the court to render a judgment on the
pleadings under Rule 34 or a summary judgment under Rule 35. Judgment can be
rendered summarily during the pre-trial.
DIMAN vs. ALUMBRES
299 SCRA 459 [Nov. 27, 1998]
FACTS: The plaintiff files a motion for summary judgment where he said
under oath that the defense is false. The trial court denied it, A summary
judgment is not proper where the defendant presented defenses tendering
factual issues which call for the presentation of evidence. Is the trial court
correct.
HELD: Such a ratiocination is grossly erroneous. Clearly, the grounds relied
on by the judge are proper for the denial of a motion for judgment on the
pleadings as to which the essential question, as already remarked, is: are
these issues arising from or generated by the pleadings? but not as regards a
motion for summary judgment as to which the crucial question is: issues
having been raised by the pleadings, are those issues genuine, or sham or
fictitious, as shown by affidavits, depositions or admissions accompanying the
application therefor? So those are the questions to be answer in a summary
judgment, not whether or not there is an answer.
Errors on principles so clear and fundamental as those herein involved
cannot but be deemed so egregious as to constitute grave abuse of discretion,
being tantamount to whimsical or capricious exercise of judicial prerogative.
Last point to remember: as a General Rule, you cannot secure judgment by motion
alone. This is because a MOTION is defined as any petition for relief other than the relief
prayed for in the pleadings. (Rule 15, Section 1)
A motion prays for relief other than through a pleading. The other way of stating it is, a
motion prays for relief other than through a judgment because a judgment is prayed in a
pleading and not in a motion. So a motion as a rule, cannot pray for immediate judgment.
But there are three (3) known exceptions where a motion can already pray for
immediate relief. They are:
1.) Rule 33 Demurrer to evidence;
2.) Rule 34 Judgment on the Pleadings; and
3.) Rule 35 Summary Judgment.

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In those exceptions, the movant is already asking for a judgment which normally is not
stated in a motion.
oOo-

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