Civil Procedure Questions

1. What are the remedies of the plaintiff if the motion to dismiss is granted?

It depends on the ground specified in his motion to dismiss.
(a) If dismissal is without prejudice, the defendant may REFILE
(b) File an APPEAL if the grounds in the motion are based on prescription, res adjudicata, lis
pendens, or statute of frauds
(c) File for Certiorari under Rule 65 when there is grave abuse of discretion (Rule 16)


2. What are the effects of dismissal of complaint on the counterclaim?

When the complaint is dismissed upon motion of the plaintiff, The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action.

When the complaint is dismissed upon motion of the defendant or upon the court's own motion, it is without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (Rule 17)


3. A. What are the requisites before a party may be declared in default?

The following are the requisites before a party may be declared in default:
(a) failure of the party to file his answer within the time allowed;
(b) Motion of the claiming party;
(c) notice to the defending party;
(d) proof of failure to file answer;
(e) proof that the summons have been validly served;
(f) Hearing on the Motion to declare the party in default

Rule 9, Section 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his 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.

B. What are the remedies of a party declared in default?

(a) file a Motion under oath to set aside the order of default if the default was due to fraud, accident, mistake, or excusable negligence
(b) file a Motion for New Trial if there is new evidence
(c) Petition for relief of judgment

4. What are the effects of a declaration or order of default?

(a) The party declared in default loses standing in trial
(b) Notice of subsequent proceedings must still be served to the default party
(c) He may participate in the trial but only as a witness for the other parties
(d) Declaration of default is not tantamount to an admission of the truth of the plaintiff's complaint because the former still has to present evidence

A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. [Rule 9, Section 3, sub-paragraph (a)]


5. What are the cases where an order of default cannot be made?

(a) Annulment of marriage;
(b) Declaration of nullity of marriage;
(c) Legal separation.

An order of default cannot be made in cases involving the annulment or declaration of nullity of marriage, or for legal separation. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. [Rule 9, Section 3, sub-paragraph (e)]


6. What are the modes of extra-territorial service?

(a) Personal service
(b) Publication plus registered mail
(c) Any other manner that the court may deem sufficient

Rule 14, Section 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.


7. What is the remedy of the defendant if the motion is denied?

Rule 16, Section 4. Time to plead. � If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period.


8. How is substituted service made?

Rule 13, Section 8. If service of pleadings, motions, notices, resolutions, orders and other papers filed with the court cannot be made either personally or by mail, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.

Rule 14, Section 7. If, for justifiable causes, the defendant cannot be served with summons within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.


9. What are the 3 options available to defendant upon receipt of complaint?

(1) File Motion to Dismiss
(2) File a Motion for Bill of Particulars
(3) File an Answer (may be with counter-claim, third-party claim, etc.)

Lacson vs Reyes GR No. 86250 February 26, 1990

Atty. Ephraim Serquina did not pay docket fees in his Motion for Attorney’s Fees, contending that such motion was only incidental to the probate of the will of Carmelita Farlin, he being the executor thereof. Thereafter, the heirs filed their answer and denied the claim for P68,000.00 attorney’s fees alleging that the sum agreed upon was only P7,000.00, a sum they had allegedly already paid.

The Supreme Court ruled that the court acquires jurisdiction over any case only upon payment of the prescribed docket fees. The payment of docket fees is required before the Motion for Attorney’s Fees could be validly tired.

Tacay vs RTC of Tagum GR Nos 88075-77 December 20, 1989

Tacay vs RTC of Tagum
GR Nos. 88075-77
December 20, 1989

Facts:
These were 2 separate cases originally filed by Godofredo Pineda at the RTC of Tagum for recovery of possession (acciones publiciana) against 3 defendants, namely: Antonia Noel, Ponciano Panes, and Maximo Tacay.

Pineda was the owner of 790 sqm land evidenced by TCT No. T-46560. The previous owner of such land has allowed the 3 defendants to use or occupy the same by mere tolerance. Pineda, having himself the need to used the property, has demanded the defendants to vacate the property and pay reasonable rentals therefore, but such were refused.

The complaint was challenged in the Motions to Dismiss filed by each defendant alleging that it did not specify the amounts of actual, nominal, and exemplary damages, nor the assessed value of the property, that being bars the determination of the RTC’s jurisdiction in deciding the case.

The Motions to Dismiss were denied but the claims for damages in the complaint were expunged for failure to specify the amounts. Thus, the defendants filed a Joint Petition for certiorari, mandamus, prohibition, and temporary restraining order against the RTC.

Issue:
Whether or not the amount of damages claimed and the assessed value of the property are relevant in the determination of the court’s jurisdiction in a case for recovery of possession of property?

Decision:
Determinative of the court’s jurisdiction in a recovery of possession of property is the nature of the action (one of accion publicaina) and not the value of the property, it may be commenced and prosecuted without an accompanying claim for actual, nominal or exemplary damages and such action would fall within the exclusive original jurisdiction of the RTC. The court acquired jurisdiction upon the filing of the complaint and payment of the prescribed docket fees.

(CLICK THE TITLE TO VIEW THE FULL TEXT OF THE CASE @ LAWPHIL.NET)
ANOTHER TACAY VS RTC OF TAGUM DIGEGST AT ARELLANOLAW.NET

Sun Insurance Office Ltd. vs Hon. Asuncion and Manuel Uy Po Tiong GR No. 79937-38 February 13, 1989

Facts:
Sun insurance filed a case for the consignation of premiums on a fire insurance policy with a prayer for the judicial declaration of its nullity against private respondent Manuel Uy Po Tiong. Private respondent as declared in default for failure to file the required answer within the reglementary period. Meanwhile, the Respondent Manuel Tiong also filed a case against Sun Insurance for the refund of premiums and the issuance of a writ of preliminary attachment, seeking the payment of actual, compensatory, moral, exemplary and liquidated damages, attorney’s fees, expenses of litigation, and costs of suit, but the damages sought were not specifically stated in the prayer, although it may be inferred from the body of the complaint that it would amount to about P50M. In the body of the original complaint, the total amount of damages sought amounted to about P50 Million. In the prayer, the amount of damages asked for was not stated. The amount of only P210.00 was paid for the docket fee. On January 23, 1986, private respondent filed an amended complaint wherein in the prayer it is asked that he be awarded no less than P10,000,000.00 as actual and exemplary damages but in the body of the complaint the amount of his pecuniary claim is approximately P44,601,623.70. Said amended complaint was admitted and the private respondent was reassessed the additional docket fee of P39,786.00 based on his prayer of not less than P10,000,000.00 in damages, which he paid.
On April 24, 1986, private respondent filed a supplemental complaint alleging an additional claim of P20,000,000.00 in damages so that his total claim is approximately P64,601,620.70. On October 16, 1986, private respondent paid an additional docket fee of P80,396.00. After the promulgation of the decision of the respondent court on August 31, 1987 wherein private respondent was ordered to be reassessed for additional docket fee, and during the pendency of this petition, and after the promulgation of Manchester, on April 28, 1988, private respondent paid an additional docket fee of P62,132.92. Although private respondent appears to have paid a total amount of P182,824.90 for the docket fee considering the total amount of his claim in the amended and supplemental complaint amounting to about P64,601,620.70, petitioner insists that private respondent must pay a docket fee of P257,810.49.

Issue:
Whether or not the court acquires jurisdiction when the correct and proper docket fee has not been paid?

Ruling:
Manchester ruling applies, with modification. Statutes regulating the procedure of courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and in that respect.
The Court dismissed petitioner’s motion and ordered the Clerk of court to re-asses the docket fees.

Personal Observation:
The case is different in Manchester because the respondent herein has shown compliance by paying docket fees upon reassessment and has also paid the docket fees on its amended complaint increasing the claim for damages. Furthermore, there is no substantial evidence that the respondent has the intention of deliberately defraud the court or evaded the payment of docket fees.

(CLICK ON THE TITLE TO VIEW THE FULL TEXT OF THE CASE @LAWPHIL.NET)

Manchester Development Corporation vs Court of Appeals GR No. 75919 May 7, 1987

Facts:
This was originally a case of an action for torts and damages and specific performance with a prayer for temporary restraining order. The damages were not specifically stated in the prayer but the body of the complaint assessed a P78.75M damages suffered by the petitioner. The amount of docket fees paid was only P410.00. The petitioner then amended the complaint and reduced the damages to P10M only.

Issues:
When does a court acquire jurisdiction?
Does an amended complaint vest jurisdiction in the court?

Ruling:
The court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. An amendment of the complaint or similar pleading will not thereby vest jurisdiction in the court, much less the payment of the docket fee based on the amounts sought in the amended pleading.

(CLICK THE TITLE OF THE CASE TO VIEW THE FULL TEXT @LAWPHIL.NET)

Japan Airlines V. Asuncion (G.R No. 161730, January 28,2005) 449 SCRA 544

Digested by Ms. Karen Mae Gonzales

FACTS:
This petition for review seeks to reverse and set aside the October 9, 2002 decision of the Court of Appeals and its January 12, 2004 resolution, which affirmed in toto the June 10, 1997 decision of the Regional Trial Court of Makati City, Branch 61 in Civil Case No. 92-3635.
On March 27, 1992, respondents Michael and Jeanette Asuncion left Manila on board Japan Airlines’ (JAL) Flight 742 bound for Los Angeles. Their itinerary included a stop-over in Narita and an overnight stay at Hotel Nikko Narita. Upon arrival at Narita, Mrs. Noriko Etou-Higuchi of JAL endorsed their applications for shore pass and directed them to the Japanese immigration official. A shore pass is required of a foreigner aboard a vessel or aircraft who desires to stay in the neighborhood of the port of call for not more than 72 hours.
During their interview, the Japanese immigration official noted that Michael appeared shorter than his height as indicated in his passport. Because of this inconsistency, respondents were denied shore pass entries and were brought instead to the Narita Airport Rest House where they were billeted overnight.
Mr. Atsushi Takemoto of the International Service Center (ISC), the agency tasked by Japan’s Immigration Department to handle passengers who were denied shore pass entries, brought respondents to the Narita Airport Rest House where they stayed overnight until their departure the following day for Los Angeles. Respondents were charged US$400.00 each for their accommodation, security service and meals.

On December 12, 1992, respondents filed a complaint for damages claiming that JAL did not fully apprise them of their travel requirements and that they were rudely and forcibly detained at Narita Airport.


Issue: Whether or not JAL is liable of breach of contract of carriage.

Side Issues:
• Whether or not JAL is liable for moral, exemplary damages,
• Whether or not the plaintiff is liable for attorney’s fee and cost of suit incurred (JAL counterclaim)

Ruling:

The court finds that JAL did not breach its contract of carriage with respondents. It may be true that JAL has the duty to inspect whether its passengers have the necessary travel documents, however, such duty does not extend to checking the veracity of every entry in these documents. JAL could not vouch for the authenticity of a passport and the correctness of the entries therein. The power to admit or not an alien into the country is a sovereign act which cannot be interfered with even by JAL. This is not within the ambit of the contract of carriage entered into by JAL and herein respondents. As such, JAL should not be faulted for the denial of respondents’ shore pass applications.

In the Respondents claim that petitioner breached its contract of carriage when it failed to explain to the immigration authorities that they had overnight vouchers at the Hotel Nikko Narita. They imputed that JAL did not exhaust all means to prevent the denial of their shore pass entry applications. JAL or any of its representatives have no authority to interfere with or influence the immigration authorities. The most that could be expected of JAL is to endorse respondents’ applications, which Mrs. Higuchi did immediately upon their arrival in Narita.

Moral damages may be recovered in cases where one willfully causes injury to property, or in cases of breach of contract where the other party acts fraudulently or in bad faith. Exemplary damages are imposed by way of example or correction for the public good, when the party to a contract acts in wanton, fraudulent, oppressive or malevolent manner. Attorney’s fees are allowed when exemplary damages are awarded and when the party to a suit is compelled to incur expenses to protect his interest.[17] There being no breach of contract nor proof that JAL acted in wanton, fraudulent or malevolent manner, there is no basis for the award of any form of damages.

Neither should JAL be held liable to reimburse respondents the amount of US$800.00. It has been sufficiently proven that the amount pertained to ISC, an agency separate and distinct from JAL, in payment for the accommodations provided to respondents. The payments did not in any manner accrue to the benefit of JAL.

However, we find that the Court of Appeals correctly dismissed JAL’s counterclaim for litigation expenses, exemplary damages and attorney’s fees. The action was filed by respondents in utmost good faith and not manifestly frivolous. Respondents honestly believed that JAL breached its contract. A person’s right to litigate should not be penalized by holding him liable for damages. This is especially true when the filing of the case is to enforce what he believes to be his rightful claim against another although found to be erroneous.[

WHEREFORE, in view of the foregoing, the instant petition is PARTLY GRANTED. The October 9, 2002 decision of the Court of Appeals and its January 12, 2004 resolution in CA-G.R. CV No. 57440, are REVERSED and SET ASIDE insofar as the finding of breach on the part of petitioner and the award of damages, attorney’s fees and costs of the suit in favor of respondents is concerned. Accordingly, there being no breach of contract on the part of petitioner, the award of actual, moral and exemplary damages, as well as attorney’s fees and costs of the suit in favor of respondents Michael and Jeanette Asuncion, is DELETED for lack of basis. However, the dismissal for lack of merit of petitioner’s counterclaim for litigation expenses, exemplary damages and attorney’s fees, is SUSTAINED. No pronouncement as to costs

Dangwa Transportation Co. vs Court of Appeals GR No. 95582 October 1991

Facts:
On March 25, 1985, Pedrito Cudiamat was ran over by a bus operated by Dangwa Transportation Company, and driven by Theodore Lardizabal. Lardizabal, being reckless and negligent, has prematurely stepped on the accelerator of the bus just as when Cudiamat boarded the same. The sudden jerk movement caused Cudiamat to fall from the platform and was ran over by they bus. Moreover, the driver did not immediately brought the victim to the nearest hospital for medical attention.

Issue:
Whether or not the driver and bus company are liable for the death of P. Cudiamat.

Held:
They are liable.

Common carriers, from the nature of their business and reasons of public policy, are bound to observe extraordinary diligence for the safety of the passengers transported by the according to all the circumstances of each case. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence very cautious persons, with a due regard for all the circumstances.

It has also been repeatedly held that in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible to pay the damages sought by the passenger. By contract of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by the passenger is right away attributable to the fault or negligence of the carrier. This is an exception to the general rule that negligence must be proved, and it is therefore incumbent upon the carrier to prove that it has exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the Civil Code.

November 12, 2007

Tonight is going to be the first night of our classes this semester.. Last semester was really hell... The current fad was bombarded with 3.5 and reconsidered grades.. Luckily, i passed all subjects but i was not spared from the 3.5 grade.. Let me publish my grades here (nyahahah!)

Negotiable Instruments - 1.1
Law on Election - 1.6
Land Titles and Deeds - 2.0
Labor Standards - 2.4
Law on Natural Resources - 2.5
Property - 3.0
Criminal Procedure - 3.1
Law on Public Corporation - 3.1
Environmental Rights - 3.5

I had 9 subjects in all and it was really hell. The subject I dreaded most was Criminal Procedure and I was very happy and contented with the 3.1 final grade. I really thought that I would flunk on this subject. Our professor for Public Corporation and Environmental Rights was tough, too!! Damn, I couldn't imagine myself taking again his subjects... I was really lucky to pass all my subjects..

I'm currently enrolled full load this second semester with the following subjects:

Credit Transactions
Administrative Law
Civil Procedure
Transportation
Public International Law
Sales
Social Legislation
Ombudsman/Sandigan Law

8 subjects in all, a bit lighter that the previous semester's load.. Well, good luck to me and good luck to all other law students in UM! Ahehehe.. (--,)