civpro pre midterms

What is a civil action? (Sec. 3, Rule 1)

one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong

may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action

What is a cause of action? (Sec. 3, Rule 2)

A cause of action is the act or omission by which a party violates a right of another.

Can you file multiple suits for a single cause of action? (Sec. 4, Rule 2)

A party may not institute more than one suit for a single cause of action.

What is the effect of splitting a single cause of action? (Sec. 5, Rule 2)

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in anyone is available as a ground for the dismissal of the others.

What are requisites of a joinder of cause of action? (Sec. 5, Rule 2)(JSRM)

A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions governed by special rules;
(c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (5)

What happens if there is a misjoinder of causes of action? (Sec. 6, Rule 2)

Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately.

Who may be parties to a civil action? (Sec. 1, Rule 3)

Only natural or juridical persons, or entities authorized by law may be parties in a civil action.

Who is a plaintiff? (Sec. 1, Rule 3)

may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)[-]party plaintiff

Who is a defendant? (Sec. 1, Rule 3)

The term "defendant "may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) - party defendant.

Who is a real party in interest? (Sec. 2, Rule 3)

A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.

Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

Who may be a representative? (Sec. 3, Rule 3)

A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules.

If a representative is allowed to file a case... (Sec. 3, Rule 3)

Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.

Can an agent sue? (Sec. 3, Rule 3)

An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

How should spouses be sued? (Sec. 4, Rule 3)

Husband and wife shall sue or be sued jointly, except as provided by law.

How can minor or incompetent persons sue?

A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem.

Requisite for permissive joinder of parties (Sec. 6, Rule 3)

1. The right to relief must arise out of the same transaction or series of transactions;

2. There must be a question of law or fact common to all parties

What is the compulsory joinder of indispensable parties? (Sec. 7, Rule 8)

Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

Who is a necessary party? (Sec. 8, Rule 3)

A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action.

What happens when a necessary party is not joined in the action? (Sec. 9, Rule 3)

Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted.

Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

What happens when he failed follow the order to a inclusion of a necessary party? (Sec. 9, Rule 3)

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party.

Who is unwilling co-plaintiff? (Sec. 10, Rule 3)

If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.

Is a misjoinder or non-joinder a ground for dismissal? (Sec. 11, Rule 3)

Neither misjoinder nor non-joinder of parties is ground for dismissal of an action.

Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage the action and on such terms as are just.

Can claims for a misjoined party proceeded? (Sec. 11, Rule 3)

Any claim against a misjoined party may be severed and proceeded with separately.

What are the requisites of a class suits? (Sec. 12, Rule 3)

1. Subject matter of the controversy is one of common or general interest to many persons;
2. The persons are so numerous that it is impracticable to join them all as parties;
3. The court finds a number of them sufficiently numerous and representative of the class as to fully protect the interests of all concerned; and
4. The representative sues or defends for the benefit of all.

How to determine adequacy of representation? (Sec. 12, Rule 3)

1. Whether the interest of the named party is coextensive with the interest of the other members of the class;
2. The proportion of those made parties as it so bears to the total membership of the class; and
3. Any other factor bearing on the ability of the named party to speak for the rest of the class.

What is an alternative defendant? (Sec. 13, Rule 3)

Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.

What happens when the identity or the name of defendant? (Sec. 14, Rule 3)

Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner heir devisee, or by such other designation as the case may require, when his identity or true name is discovered, the pleading must be amended accordingly.

Entity without juridical personality as defendant. (Sec. 15, Rule 3)

When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.

In the answer of such defendant, the name and addresses of the persons composing said entity must all be revealed.

What happens when a party dies? (Sec. 16, Rule 3)

1) Inform court of such fact within 30 days after the death; and
2) Give the name and address of the legal representative.

What should heirs do after death? (Sec. 16, Rule 3)

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.

What happens if there is no legal representative is named by the counsel for the deceased party? (Sec. 16, Rule 3)

The court may order the opposing party, within a specified time to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased.

The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.

What happens when a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office? (Sec. 17, Rule 3)

The action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue to adopt or continue the action of his predecessor.

Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard.

What happens when a party becomes incompetent or incapacitated? (Sec. 18, Rule 3)

If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem.

What is transfer of interest? (Sec. 19, Rule 3)

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.

Defendant dies in action and contractual money claims (Sec. 20, Rule 3)

1. Defendant dies before entry of final judgment;
2. The nature of the action is a claim or recovery of money;
3. The contract is either express or implied.

Who is an indigent party? (Sec. 21, Rule 3)

One who has no money or property sufficient and available for food, shelter, and basic necessities.

What is included in the indigent party? (Sec. 21, Rule 3)

If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose.

When should a solicitor general be noticed? (Sec. 22, Rule 3)

In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or a representative duly designated by him.

Where should real actions be brought? (Sec. 1, Rule 4)

Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.

Where should personal actions be brought? (Sec. 2, Rule 4)

All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.

What is the venue for nonresidents? (Sec. 3, Rule 4)

If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found.

When is Rule 4 not applicable? (Sec. 4, Rule 4)

(a) In those cases where a specific rule or law provides otherwise; or
(b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.

What are pleadings? (Sec. 1, Rule 6)

Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

What pleadings are allowed? (Sec. 1, Rule 6)

The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading asserting a claim against him or her.

When may an reply be filed? (Sec. 1, Rule 6)

An answer may be responded to by a reply only if the defending party attaches an actionable document to the answer.

What is in the complaint? (Sec. 1, Rule 6)

The complaint is the pleading alleging the plaintiff's or claiming party's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.

What is an answer? (Sec. 4, Rule 6)

An answer is a pleading in which a defending party sets forth his or her defenses.

What are defenses? (Sec. 5, Rule 6)

Defenses may either be negative or affirmative.

What is a negative defense? (Sec. 1, Rule 6)

A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his or her cause or causes of action.

What is an affirmative defense? (Sec. 5, Rule 6)

An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him or her.

What is a counterclaim? (Sec. 6, Rule 6)

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

What is a compulsory counterclaim? (Sec. 7, Rule 6)

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

What if a compulsory counter claim is not raised? (Sec. 7, Rule 6)

A compulsory counterclaim not raised in the same action is barred, unless otherwise allowed by these Rules.

What is a cross-claim? (Sec. 8, Rule 6)

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

What is a Counter-counterclaims and counter-cross-claims? (Sec. 9, Rule 6)

A counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant.

What if the plaintiffs raises new matters? (Sec. 10, Rule 6)

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

What is a reply? (Sec. 10, Rule 6)

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

What if an actionable document is attached? (Sec. 10, Rule 6)

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

What is a third-party complaint? (Sec. 11, Rule 6)

A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant for contribution, indemnity, subrogation or any other relief, in respect of his or her opponent's claim.

When should it be a separate action? (Sec. 11, Rule 6)

The third (fourth, etc.)-party complaint shall be denied admission, and the court shall require the defendant to institute a separate action, where:

1. the third (fourth, etc.)- party defendant cannot be located within thirty (30) calendar days from the grant of such leave;
2. matters extraneous to the issue in the principal case are raised; or
3. the effect would be to introduce a new and separate controversy into the action.

Bringing new parties (Sec. 12, Rule 6)

When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.

What should be in an answer to a third party complaint? (Sec. 13, Rule 6)

A third (fourth, etc.)- party defendant may allege in his or her answer his or her defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)-party plaintiff may have against the original plaintiff's claim. In proper cases, he or she may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff.

What should be included in a pleading? (Sec. 1, Rule 8)

Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts, including the evidence on which the party pleading relies for his or her claim or defense, as the case may be.

What happens when there is an alternative causes of action or defenses? (Sec. 2, Rule 8)

When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.

What if there are conditions precedent? (Sec. 1, Rule 8)

In any pleading, a general averment of the performance or occurrence of all conditions precedent shall be sufficient.

How is capacity shown? (Sec. 4, Rule 8)

Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred.

How is capacity raised as a defense? (Sec. 4, Rule 8)

A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

What if fraud or mistake is alleged? (Sec. 5, Rule 8)

In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity.

What if malice, intent, knowledge or other conditions are alleged? (Sec. 5, Rule 8)

Malice, intent, knowledge, or other condition of the mind of a person may be averred generally.

What if you are attaching a pleading? (Sec. 6, Rule 8)

An authenticated copy of the judgment or decision shall be attached to the pleading.

Actionable document (Sec. 7, Rule 8)

Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading.

How attested actionable documents (Sec. 8, Rule 8)

GR: The adverse party, under oath, specifically denies them, and sets forth what he or she claims to be the facts.

XPN: The requirement of an oath does not apply when:
1. The adverse party does not appear to be a party to the instrument; or
2. Compliance with an order for an inspection of the original instrument is refused

How official document or act is pleaded? (Sec. 9, Rule 8)

In pleading an official document or official act, it is sufficient to aver that the document was issued or the act was done in compliance with law.

What is a specific denial? (Sec. 10, Rule 8)

A defendant must specify each material allegation of fact the truth of which he or she does not admit and, whenever practicable, shall set forth the substance of the matters upon which he or she relies to support his or her denial.

What if allegations not specifically denied deemed admitted? (Sec. 11, Rule 8)

Material averments in a pleading asserting a claim or claims, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied.

Defenses and objections not pleaded (Sec. 1, Rule 9)

Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.

Compulsory counterclaim, or cross-claim, not set up barred.(Sec. 2, Rule 9)

A compulsory counterclaim, or a cross-claim, not set up shall be barred.

When is there a default? (Sec. 3, Rule 9)

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

Effect of default (Sec. 2, Rule 9)

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

Relief from default (Sec. 2, Rule 9)

A party declared in default may at any time after notice thereof and before judgment, file a motion under oath to set aside the order of default upon proper showing that his or her failure to answer was due to fraud, accident, mistake or excusable negligence and that he or she has a meritorious defense.

Effect of partial default (Sec. 2, Rule 9)

When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.

When will the clerk issue summons? (Sec. 1, Rule 14)

Unless the complaint is on its face dismissible under Section 1, Rule 9, the court shall, within five (5) calendar days from receipt of the initiatory pleading and proof of payment of the requisite legal fees, direct the clerk of court to issue the corresponding summons to the defendants.

Who should serve summon? (Sec. 3, Rule 14)

1. Sheriff
2. Sheriff's deputies
3. Other proper Court officer
4. Plaintiff

When is a plaintiff allowed to serve summons? (Sec. 3, Rule 14)

a. There is a failure of service of summons and he is authorized by the Court to serve summons OR
b. Where the summons is to be served outside the judicial region of the Court where the case is pending and the Plaintiff is authorized by the c. Court to cause the service of summons OR
If summons is returned without being served on any or all of the defendants and the Court orders the Plaintiff to cause the service of summons by other means available under the rules

Validity of summons (Sec. 4, Rule 14)

GR: summons shall remain valid until duly served
XPN: Summons are no longer valid when it is recalled by the Court

Service in person on defendant (Sec. 5, Rule 14)

Summons is served by handing a copy to the Defendant in person and informing them that he or she is being served

When will substituted service apply? (Sec. 6, Rule 14)

For justifiable causes and
Defendant cannot be served personally after at least 3 attempts on 2 separate dates

Summons by publication for action in personam (Sec. 7, Rule 14)

GR: For residents of the Philippines, summons by publication is not available for an action in personam actions as it affects personal rights and obligations against a person.

XPN: Sec. 16 and Sec. 18 of Rule 14 (discussion will be in the following sections)

Non residents in personam (Sec. 7, Rule 14)

GR: For non-residents for an action in personam, publication is not the proper mode of service.

Possible XPN: When defendant is a foreign juridical entity not registered in the Philippines or with no resident agent (Sec. 14, Rule 14)

What if its service upon entity without juridical personality? (Sec. 7, Rule 14)

GR: service of summons can be effected upon all the defendants by:
1) serving upon any one of them
2) serving upon the person in charge of the office or place of business maintained in such name

XPN: such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was filed

Service upon prisoners (Sec. 8, Rule 14)

Service shall be effected upon him by the officer having the management of such jail (jail manager) or institution who is deemed as a special sheriff for said purpose

Service consistent with international conventions. (Sec. 9, Rule 14)

Service may be made through methods which are consistent with established international conventions to which the Philippines is a party.

Service upon minors and incompetents

When the defendant is a minor, insane or otherwise an incompetent person, service of summons shall be made upon him or her personally and on his or her legal guardian if he or she has one, or if none, upon his or her guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service shall be made on his or her parent or guardian.

Service upon spouses

When spouses are sued jointly, service of summons should be made to each spouse individually.

Duty of counsel on record

The lawyer of the defendant is deputized by the court to serve summons on his client when:
- Summons is improperly served
- Lawyer makes a special appearance to question the validity of service of summons