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April 24, 2014

Last night we discussed on the ¤ Preliminaries of an ordinary civil action;¤ Reply for purposes on refuting new matters raised on the Answer

Q: If there are new matters raised in the Answer, is there a necessity for a Reply?

A: Remember that if you will not file a Reply, under the Rules, all new matters are deemed controverted EXCEPT:

◎ if there are actionable documents that are appended or raised in the Answer to a responsive pleading.

Remember that after the last pleading is filed, if you are the counsel for the Plaintiff, your REMEDY is to:

→ File a motion to set the case for pre-trial

Otherwise, the court will not initiate. It is not like in criminal cases that the court will be the one to set the case for pre-trial.

In civil cases, it should be the plaintiff. If the plaintiff will not move for pre-trial, the court will not do that for you.

So if you will not do that for one year, the court can dismiss the case for failure to prosecute. So what you will do:

→ File a motion to set the case for pre-trial.

The court will set the pre-trial. Before going to pre-trial, you must:→ Set the case for compulsory mediation - in ordinary civil actions - before the

Philippine Mediation Center (PMC)

If the mediation is successful: > It is remanded back to the court.

Remember, the mediation cannot render judgment based on compromise.

If there is a compromise agreement:> It is submitted back to the court for approval.

If the mediation failed:> That will be submitted to the so-called Judicial Dispute Resolution (JDR).

It is not under the Rules, but under the law, those cases not successful at the PMC will be submitted for mediation at the JDR.

Q: What is this Judicial Dispute Resolution?

A: There are 2 judges in that JDR: the JRD judge and the trial judge. The trial judge will not be the JDR judge. So once happens in that case, once it is remanded back to the court, that will be referred to the JDR judge. The JDR judge will conduct the mediation but he will not be the one to try the case.

But under the rules on JDR, parties can agree that the trial judge will be the JDR judge.

Example: Cases not successful at the PMC will be forwarded to Branch 8. Branch 8 Judge will be the JDR judge. If not successfully mediated by the JDR judge, it will be remanded to the court and the trial judge will be the one to conduct the trial. In no case the trial judge will be the JDR judge UNLESS the parties agree that the trial judge be the JDR judge.

The admissions will not form part of the proceedings. That cannot be admitted in evidence.

JDR is like barangay conciliation proceedings. The judge does not wear a robe. It is simple like an ordinary mediation. If there is a compromise agreement, the JDR

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judge will not rule on the compromise agreement. It will be submitted to the court for approval.

Remember, if there is a compromise agreement and once it is submitted to the court, you have:

- 10 days to repudiate that (10 days or 15 days?)

A compromise agreement is immediately executory. Why?

Because the express intention of the parties is to waive the right to appeal. By entering the compromise agreement, you waive the right to appeal. So, within the 15-day period, from the time that the compromise agreement is approved by the court, there is now judgment, your remedy is not appeal. If your client has been deceived, defrauded into entering that compromise agreement, there is vitiated consent, there was fraud because it was a matter of mistake or accident that he entered into that compromise agreement, your remedy is to:

→ File a motion to set aside the compromise agreement.

And if your motion is denied, the remedy is not appeal. → The remedy is Certiorari under Rule 65. > The remedy of appeal is not available in compromise agreement simply

because a compromise agreement is immediately executory. If that is immediately executory, there is no need for an appeal because appeal stays the execution of the decision except in some instances.

After PMC, the JDR, the parties come into trial. There is now a pre-trial. At the pre-trial, you have to submit your pre-trial brief.

Remember: Failure to file a pre-trial brief is equivalent to non-appearance during pre-trial.

So, if the plaintiff fails to file his pre-trial brief, what happens? If the plaintiff does not appear during the pre-trial what is the consequence?

→ You file a motion. You move that the case be dismissed and you proceed with your counterclaim.

Remember, if the case is dismissed, for example the court order the dismissal of the case, you have the option.

→ You have 15 days to manifest whether you want your counterclaim to be litigated in the same action or you want your counterclaim to be litigated in another action.

¤ Remember, the dismissal is with prejudice hence, the order is now final.

If the defendant does not file his pre-trial brief in accordance to Rule 18 of the Rules of Court, it is the same as non-appearance during pre-trial. Your remedy is not to move to declare the defendant as in default. It is not sanctioned by the rules. What will you do?

→ Your honor, we move that the pre-trial be terminated and will be allowed to present our evidence ex parte.

¤ And you can be allowed that the clerk of court be commissioned to received the evidence ex parte. The clerk of court can even do that.

If the reception of evidence is heard before the clerk of court, the clerk of court cannot move on the admissibility of evidence. When you file your formal offer of exhibits, it will be submitted to the court for the court to appreciate. It is not for the clerk of court to prove on new evidences.

PRE-TRIAL

We are now at the pre-trial. The purpose of the pre-trial is to abbreviate the proceedings. Because as to facts that are admitted, according to Rule 129, judicial admissions need no proof.

You admit that there is an obligation. That is admitted. There is no necessity of any proof. If the parties come into terms, remember that a civil case can be

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compromised even if the judgment becomes final and executory even if there is a writ of execution.

If there is a compromise agreement, the judgment will be set aside and a new judgment will be entered by the court.

All matters that are stipulated during the pre-trial will be the one to govern. For example: How many witnesses to be presented?

What are the documents to be presented?

That is the benchbook of the trial. The purpose is to prevent surprises during the trial.

TRIAL

When trial comes, the plaintiff will be the one to present its evidence. See to it the that the witnesses presented are named in the pre-trial order. Otherwise, you can object.

“Your honor, he is not among those witnesses listed in the pre-trial.”

Nautod cuz Metz called - show good cause

Coming into trial is not an easy task especially when you are a neophyte lawyer.

BENCHBOOK of PRE-TRIAL: As a rule, you can only present evidences stated in the pre-trial order.

REMEMBER: Only matters that are not admitted or stipulated can be the subject of trial.

It is limited. The proceedings in civil cases are abbreviated. You have your judicial affidavit. At any rate, when you become lawyers you have your own style of your pleadings, affidavits, or motion.

BASIC RULES ON EVIDENCE

Then you present your evidence.

Three kinds of evidence.(1) Testimonial(2) Documentary(3) Object

When the Plaintiff presents his evidence, the remedy before he rests his case:→ He should file his formal offer of exhibits.

Within that period from that trial, in some cases trial is slow-paced. And during the trial, an nagpresentar pala usa na testigos. After 2 years waray pa.

→ You have the remedy of motion to dismiss.

Under the rules, there are 4 kinds of dismissal: (not mentioned in earlier lectures)1) Dismissal upon notice by the party before the answered is filed2) Dismissal at the instance of the Plaintiff after the responsive pleading is filed but with the conformity of the defendant3) Dismissal for failure to prosecute - motu propio, the court can do that4) Dismissal on demurrer to evidence

After the plaintiff presented its evidence, what is the remedy of the defendant if you think that the evidence is insufficient?

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→ Demurrer to evidence

Is there a need for a prior leave of court?

Remember the distinction between demurrer to evidence in civil cases and demurrer to evidence in criminal cases.

In criminal cases, there must be prior leave of court. In civil cases, there is no need for a prior leave of court. That is not required under the rules.

Consequences:

If the demurrer is granted in civil case, the plaintiff has the remedy of appeal because the dismissal does not constitute res judicata. But in a criminal case, if the demurrer is granted, the accused is acquitted. No appeal will govern there because of double jeopardy except on the civil aspect where the private complainant can appeal on the civil aspect of the case.

Copied from reviewer:

In a civil case, the defendant has the right to file a demurrer to evidence without leave of court. If his demurrer is denied, he has the right to present evidence. If his demurrer is granted and on appeal by the plaintiff, the appellate court reverses the order and renders judgment for the plaintiff, the defendant loses his right to present evidence. (Rule 33)

In a criminal case, the accused has to obtain leave of court to file a demurrer to evidence. If he obtains leave of court and his demurrer to evidence is denied, he has the right to present evidence in his defense. If his demurrer is granted, he is acquitted and the prosecution cannot appeal.

If the accused does not obtain leave of court and his demurrer to evidence is denied, he waives his right to present evidence and the case is decided on the basis of the evidence for the prosecution.

The court may also dismiss the action on the ground of insufficiency of the evidence on its own initiative after giving the prosecution the opportunity to be heard. (Sec. 23 of Rule 119)

In civil cases, if there is no prior permission - leave of court is the permission that you be allowed to file a motion. You file your motion within 5 days and you have a 10-day period. Rule 119 Sec. 23 of the Rules of Court to file demurrer to evidence.

In civil cases, it is lack or insufficiency of evidence. Lack of cause of action.

Copied from codal:

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from this receipt.

The order denying the motion for leave of court to file demurrer to evidence itself shall not be reviewable by appeal or certiorari before judgment. (Sec. 23 Rule 119)

FAILURE TO STATE CAUSE OF ACTION vs LACK OF CAUSE OF ACTION (These grounds are often interchanged)

Lack of cause of action is not a ground of a motion to dismiss under Rule 16, but

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that is a ground for demurrer to evidence.

When your affirmative defense is premised on lack of cause of action, that is the subject of demurrer to evidence. It is not a subject of a motion to dismiss because that is not one of the grounds. Maybe that is your special affirmative defense.

Remember: Demurrer denied. If the demurrer is sustained, what happens? The plaintiff has the remedy of appeal. So, it does not constitute res judicata.

Now, before appeal, the ruling of the lower court is reversed. What happens now? The defendant is barred from presenting evidence.

Who will now decide?

It will not be remanded back to the Regional Trial Court for Trial. It is the appellate court who will render judgment on the merits.

Translation: Dire ginbabalik ha ubos. Otherwise stated: It will not be remanded back to the lower court of origin.

If that is denied, so the trial will continue. The defendant will present evidence. We have the same procedure.