CIVIL PROCEDURE

MIDTERM EXAM: Pointers

1. Nature of the counterclaim (compulsory or permissive)

A compulsory counterclaim is one that
 Arises out of or is necessarily connected with the transaction or occurrence that
is the subject matter of the opposing party’s claim
 Falls within the jurisdiction of the court
 Does not require for its adjudication the presence of third parties over whom the
court cannot acquire jurisdiction
 Must be within the jurisdiction of the court both as to the amount and the nature
thereof

Note: When the original action is filed with the RTC, the counterclaim may be deemed
compulsory regardless of the amount (sec 7, rule 6)

 Must be raised in the same action; at the time the defending party files his answer
 Do not file a motion to dismiss when you plead a compulsory counterclaim. Better to file
an answer with a counterclaim and plead the ground for dismissal as an affirmative
defense
 Failure to answer a compulsory counterclaim is not a cause for a default declaration

A counterclaim is permissive

 Does not arise out of or is not necessarily connected with the subject matter of
the opposing party’s claim
 Essentially an independent claim that may be filed separately in another case
 Where the counterclaim is not within the jurisdiction of the court when filed in
MTC, the counterclaims should be deemed permissive
 May be set up as an independent action and will not be barred if not contained in
the answer to the complaint
 The docket and other lawful fees should be paid for a permissive counterclaim

2. Remedy available
Crossclaim
Under rule 6, section 8 a crossclaim is any claim by one party against a co-party arising
out of the transaction or occurrence that is the subject matter either of the original
action or of a counterclaim therein. Such cross-claim may cover all or part of the original
claim
No need of leave of court.

Counterclaim

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 Under sec 6 rule 6, a counterclaim is any claim that a defending party may have against
an opposing party.
No leave of court

Third-party complaint
A third party complaint is a claim that a defending party, with leave of court, file against
a person not a party to the action, called the third party, for contribution, indemnity,
subrogation or any other relief, in respect of his or her opponent’s claim

Requisites:
 The party to be impleaded must not yet be a party to the action
 The claim against the third-party defendant must belong to the original
defendant
 The claim of the original defendant against the third-party defendant must be
based upon the plaintiff’s claim against the original defendant
 The defendant is attempting to transfer to the third-party defendant the liability
asserted against him by the original plaintiff

It shall be denied and the defendant shall institute a separate action when
a. The third party defendant cannot be located within 30 calendar days from
the grand of such leave
b. Matters extraneous to the issue in the principal case are raised
c. The effect would be to introduce a new and separate controversy into the
action
Right to intervene
A third party, not originally impleaded in the proceedings, becomes a litigant therein to
enable him to protect or preserve a right or interest which may be affected by such
proceedings.
General rule: Not a matter of right. Subject to judicial discretion
Requisites:
 A legal interest in litigation
 A legal interest in the success of any of the parties
 An interest against both parties
 When he is so situated as to be adversely affected by a distribution of property
in the custody of the court or an officer thereof
 It should not alter the nature of the action and the issues already joined
 The interest contemplated by law must be actual, substantial, material, direct and
immediate and not simply contingent or expectant
 Filed at any time before rendition of judgment by the trial court
Exceptions
a. The intervention will unduly delay or prejudice the adjudication of the rights of the
original parties
b. The intervenor’s right may be fully protected in a separate proceeding
When to Intervene

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 GR: The motion to intervene must be filed at any time before rendition of judgment by the trial
court. (Sec.2, Rule 19)
XPNs:
1. With respect to indispensable parties, intervention may be allowed even on appeal
2. When the intervenor is the Republic
3. Intervention may be allowed after judgment where necessary to protect some interest which
cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to
appeal.

3. Reply (Rule 8)
A reply is a pleading, which is used to deny or allege facts in denial or avoidance of new
matters alleged in, or relating to, an actionable document attached to answer.

It is a responsive pleading to an answer with an attached actionable document.

The filing of a reply to the answer is not mandatory and will not have an adverse effect
on the plaintiff. If a party does not file such reply, all the new matters alleged in the
answer are deemed controverted or denied. No admission follows from the failure to file
a reply.

Actionable document means that the defense in the answer is based upon a written
instrument or document. Hence, the plaintiff has to file a reply under oath if he desires
to deny specifically the genuineness and due execution of the actionable document and
avoid admission of such matters.

Under SEC 8 RULE 8, the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath, specifically denies them, and
sets forth what he claims to be the facts.

4. When is the last day of filing of notice of appeal (Rule 37)

-day received of the judgment (within 15 days from receipt of the decision, MR may be
filed with proof of service on the adverse party)
-day MR filed
-MR judgment (appeal from judgment may be filed within 15 days from receipt of the
order or the final order denying the motion for recon

The date the denial of the motion was received is the date of notice of final order

When MR is denied, a party may appeal from the judgment or final order. The movant
has a fresh period of 15 days from receipt or notice of the order denying or dismissing
the motion for reconsideration within which to file a notice of appeal (Neypes vs CA)

5. Prohibited Motions

Under sec 12, rule 15 the following are the prohibited motions

 Motion to dismiss except on the following grounds (SLRP)

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  Motion to hear affirmative defenses
 Motion for reconsideration of the court’s action on the affirmative defense
 Motion to suspend proceedings without a temporary restraining order or injunction
issued by a higher court
 Motion for extension of time to file pleadings, affidavits, or any other papers, except a
motion for extension to file an answer as provided under section 11, rule 11
 Motion for postponement intended for delay, except if it is based on acts of God, force
majeure or physical inability of the witness to appear and testify

6. Non-litigious motions
Under Sec 4, Rule 15, motions which the court may act upon without prejudicing the
rights of adverse parties are non-litigious motions:
 Motion for the issuance of an alias summons
 Motion for extension to file answer
 Motion for postponement
 Motion for the issuance of the writ of execution
 Motion for the issuance of an alias writ of execution
 Motion for the issuance of a writ of possession
 Motion for the issuance of an order directing the sheriff to execute the final
certificate of sale
 Other similar motions

These motions shall not be set for hearing and shall be resolved by the court within 5 calendar
days from receipt hereof

7. Proforma MR

Section 2, Rule 37

A motion for reconsideration shall point out specifically the findings or conclusions of the
judgment or final order which are not supported by the evidence or which are contrary to
law making express reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or conclusions.

A proforma motion is one which does not satisfy the requirements of the rules and will be
treated as a motion intended to delay the proceedings

-if it does not specify the findings or conclusions of the judgment which are not supported
by the evidence or contrary to law, making express reference to the pertinent evidence or
legal provisions

a. it was a second motion for reconsideration

b. did not comply with the rule that the motion must specify the findings and conclusions
alleged to be contrary to law or not supported by the evidence

c. failed to substantiate the alleged errors

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 d. merely alleged that the decision in question was contrary to law

e. the adverse party was not given notice thereof

8. Summons
Consequence of service of summons
In actions in personam
Service of summons upon the defendant means the court acquires jurisdiction over the
person of the defendant and to comply with due process

In actions in rem or quasi in rem

To satisfy the due process requirements

Purpose (GR)
To acquire jurisdiction over the person of the defendant
To notify the defendant that an action has been commenced so that he may be given an
opportunity to be heard on the claim against him

Extraterritorial service (not applicable in an action in personam like claim for

damages)

It shall apply when:

a. The defendant is a nonresident

b. He is not found in the philipppines
c. The action against him is either in rem or quasi in rem (personal status of the plaintiff)

Actions that justify the application of extraterritorial service of summons:

a. Actions that affect the personal status of the plaintiff

b. Actions which relate to, or the subject matter of which is property within the Philippines,
in which the defendant claims a lien or interest, actual or contingent
c. Actions in which the relief demanded consists, wholly or in part, in excluding the
defendant from an interest in property located in the Philippines
d. When the defendant’s property has been attached in the Philippines

The period to answer is 60 calendar days from service of summons

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 ii. ESSAY
1. DEMURRER TO EVIDENCE (RULE 33) (Motion to dismiss on the ground of
insufficiency of the evidence or failure to prove a cause of action)
DENY, APPEAL, CA’S ACTION (Resolve or remand?)

Section 1. Demurrer to evidence. — After the plaintiff has completed the presentation of his or
her 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 or her motion is denied, he or she shall have the right to present evidence. (except in an
election case, land registration, cadastral, naturalization, and insolvency proceedings)

If the motion is granted but on appeal the order of dismissal is reversed, he or she shall be
deemed to have waived the right to present evidence.

Section 2. Action on demurrer to evidence. — A demurrer to evidence shall be subject to the

provisions of Rule 15.

The order denying the demurrer to evidence shall not be subject of an appeal or petition
for certiorari, prohibition or mandamus before judgment.

Note: No need of leave of court. The court cannot on its own initiative make a demurrer

2. Rule 47
Whether the petition should be given due course

Annulment of Judgments of Final Orders and Resolutions

Section 1. Coverage. — This Rule shall govern the annulment by the Court of Appeals of
judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the
ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no
longer available through no fault of the petitioner. (n)

Section 2. Grounds for annulment. — The annulment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction.

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Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in
a motion for new trial or petition for relief. (n)

Section 3. Period for filing action. — If based on extrinsic fraud, the action must be filed within
four (4) years from its discovery; and

if based on lack of jurisdiction, before it is barred by laches or estoppel. (n)

Section 4. Filing and contents of petition. — The action shall be commenced by filing a verified
petition alleging therein with particularity the facts and the law relied upon for annulment, as
well as those supporting the petitioner's good and substantial cause of action or defense, as the
case may be.

The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies
corresponding to the number of respondents. A certified true copy of the judgment or final
order or resolution shall be attached to the original copy of the petition intended for the court
and indicated as such by the petitioner.

The petitioner shall also submit together with the petition affidavits of witnesses or documents
supporting the cause of action or defense and a sworn certification that he has not theretofore
commenced any other action involving the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency if there is such other
action or proceeding, he must state the status of the same, and if he should thereafter learn
that a similar action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days
therefrom. (n)

Section 5. Action by the court. — Should the court find no substantial merit in the petition, the
same may be dismissed outright with specific reasons for such dismissal.

Should prima facie merit be found in the petition, the same shall be given due course and
summons shall be served on the respondent. (n)

Section 6. Procedure. — The procedure in ordinary civil cases shall be observed. Should trial
be necessary, the reception of the evidence may be referred to a member of the court or a
judge of a Regional Trial Court. (n)

Section 7. Effect of judgment. — A judgment of annulment shall set aside the questioned
judgment or final order or resolution and render the same null and void, without prejudice to
the original action being refiled in the proper court. However, where the judgment or final order
or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the
trial court to try the case as if a timely motion for new trial had been granted therein. (n)

Section 8. Suspension prescriptive period. — The prescriptive period for the refiling of the
aforesaid original action shall be deemed suspended from the filing of such original action until
the finality of the judgment of annulment. However, the prescriptive period shall not be
suspended where the extrinsic-fraud is attributable to the plaintiff in the original action. (n)

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Section 9. Relief available. — The judgment of annulment may include the award of damages,
attorney's fees and other relief.

If the questioned judgment or final order or resolution had already been executed the court
may issue such orders of restitution or other relief as justice and equity may warrant under the
circumstances. (n)

Section 10. Annulment of judgments or final orders of Municipal Trial Courts. — An action to

annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial
Court having jurisdiction over the former. It shall be treated as an ordinary civil action and
sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n)

3. Remedy of the defendant when allegation was not clear

-Bill of particulars

RULE 12

Bill of Particulars

Section 1. When applied for;  purpose. — Before responding to a pleading, a party may move
for a definite statement or for a bill of particulars of any matter which is not averted with
sufficient definiteness or particularity to enable him properly to prepare his responsive pleading.
If the pleading is a reply, the motion must be filed within ten (10) days from service thereof.
Such motion shall point out the defects complained of, the paragraphs wherein they are
contained, and the details desired. (1a)

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

Section 3. Compliance with order. — If the motion is granted, either in whole or in part, the
compliance therewith must be effected within ten (10) days from notice of the order, unless a
different period is fixed by the court. The bill of particulars or a more definite statement ordered
by the court may be filed either in a separate or in an amended pleading, serving a copy
thereof on the adverse party. (n)

Section 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient

compliance therewith, the court may order the striking out of the pleading or the portions
thereof to which the order was directed or make such other order as it deems just. (1[c]a)

Section 5. Stay of period to file responsive pleading. — After service of the bill of particulars or
of a more definite pleading, or after notice of denial of his motion, the moving party may file his
responsive pleading within the period to which he was entitled at the time of filing his motion,
which shall not be less than five (5) days in any event. (1[b]a)

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Section 6. Bill a part of pleading. — A bill of particulars becomes part of the pleading for which
it is intended. (1[a]a)

4. About Summons
-whether there is valid service of summons
Summons may be served by the sheriff, his or her deputy, or other court office, and
in case of failure of service of summons by them, the court may authorize the
plaintiff to serve the summons together with the sheriff

5. Two-dismissal rule

Motion to dismiss is merely a motion not a pleading

Motion to dismiss is a prohibited pleading except if it is based on the lack of jurisdiction over
the subject matter, litis pendentia, res judicata, statute of limitations, or prescription.

Rule 17 (Section 1)
Before the service of an answer or a motion for summary judgment, a complaint
may be dismissed by the plaintiff by filing a notice of dismissal
-upon notice of the party

Requisites: will it apply?

REQUISITES
a. Twice dismissed actions of the plaintiff
b. Based on or including the same claim
c. In a court of competent jurisdiction

The second notice of dismissal will bar the refiling of the action because it will operate as an
adjudication of the claim upon the merits.

The two dismissal rule will not apply if the prior dismissal was done at the instance of the
defendant

6. Bar Question (2022)

7. Parties; motion for judgment on pleading vs summary judgment

JUDGMENT ON PLEADING SUMMARY JUDGMENT

There is an absence of a factual issue in the Involves an issue but the issue is not genuine
case because the answer tenders no issue at The issue may be to the amount of damages
all but not as to any material fact
When the Answer fails to tender an issue, When the Answer specifically denies the
that is, if it does not deny the material material averments of the complaint or
allegations of the adverse party’s pleadings asserts affirmative defenses, or in other
by admitting the truthfulness thereof and or words raises an issue, a summary judgment
omitting to deal with them at all is proper provided that the issue raised is not
genuine

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 Genuine issue means an issue of fact which
calls for the presentation of evidence
Judgment on the pleadings is based on the A summary judgment is based on supporting
pleadings alone affidavits, depositions or admissions, and the
specific law relied upon

RULE 34

Judgment on the Pleadings

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party's pleading, the court may; on
motion of that party, direct judgment on such pleading.

However, in actions for declaration of nullity or annulment of marriage or for legal separation,
the material facts alleged in the complaint shall always be proved. (1a, R19)

RULE 35

Summary Judgments (no genuine issue as to any material fact

Section 1. Summary judgment for claimant. — A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory 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)

Section 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)

Section 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)

Section 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

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the amount of damages or other relief is not in controversy, and directing such further
proceedings 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)

Section 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 or parts thereof referred to in the affidavit
shall be attached thereto or served therewith. (5a, R34)

Section 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)

8. Appeal: rule 43

A-B- Rule 43

C- Reglementary period; notice of appeal

Section 4. Period of appeal. — The appeal shall be taken within fifteen (15) days from notice
of the award, judgment, final order or resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of the denial of petitioner's motion for new
trial or reconsideration duly filed in accordance with the governing law of the court or agency a
quo.

Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment
of the full amount of the docket fee before the expiration of the reglementary period, the Court
of Appeals may grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the most compelling reason
and in no case to exceed fifteen (15) days. (n)

9. How the summons should be served to the following and deadline to

file answer each: Rule 14 and Rule 11
a. Resident (answer must be filed within 30 calendar days after service of summons)
 Service in person on defendant in their residence and likewise inform the latter
that he or she is being served
 If he refuses, leave the summons within the view and in the presence of the
defendant (tender of summons)
 Substituted service

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Summons by publication against a resident in an action in personam is however, permissible
under the following conditions

 Where the identity or whereabouts of the defendant are unknown

 When the defendant is a resident temporarily out of the Philippines

b. Temporarily out of the country

By leave of court, be effected out of the Philippines through extraterritorial service of
summons by
 Service in person
 As provided for in international conventions to which the Philippines is a party
 By publication in a newspaper of general circulation together with a registered
mailing of a copy of the summons and the order of the court to the last known
address of the defendant
 By any manner the court may deem sufficient
 Also by substituted service

Substituted service

a. By leaving copies of the summons at the defendant’s residence to a person at least 18

years of age and of sufficient discretion then residing therein
b. By leaving of copies of the summons at the defendant’s office or regular place of
business with some competent person in charge thereof. Competent person may be one
who customarily receives correspondences for the defendant
c. By leaving copies of the summons if refused entry upon making his or her authority and
purpose know, with any of the officers of the homeowner’s association or condominium
corporation, or its chief security officer in charge of the community or the building
where the defendant may be found
d. By sending an electronic email to the defendant’s electronic mail address, if allowed by
the court

c. Foreign corporation

If registered:

Service can be made on (a) its resident agent designated in accordance with law for
that purpose, or if there be no such agent,

(b) on the government official designated by law to that effect or

answer shall be filed within 60 calendar days after receipt of the summons by such entity

(c) on any of the officers or agents of said foreign entity within the Philippines

-but should there be a designated person to receive summons in behalf of the corporation, the
designation is exclusive

Foreign private juridical entities not registered in the Philippines or have no resident agents

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 a. By personal service coursed through the appropriate court in the foreign country with
the assistance of the DFA
b. By publication once in a newspaper of general circulation in the country where the
defendant may be found and by serving a copy of the summons and the court order by
registered mail at the last known address of the defendant
c. By facsimile
d. By electronic means with the prescribed proof of service
e. By such other means as the court, in its discretion, may direct

10.Compulsory or permissive

Bar Question – Motion for judgment on the pleading or summary judgment

Pretrial

Unjustified absence of defendant

Unjustified absence of plaintiff

Extrinsic fraud

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