GRADO ESPECULATIVO
2. METODOLOGÍA DEL PROYECTO
Dismiss) Rule 33 (Demurrer to Evidence) Grounded on preliminary objections Based on insufficiency of evidence
May be filed by any defending party against whom a claim is asserted in the action
May be filed only by the defendant against the complaint of the plaintiff
Should be filed within the time for but prior to the filing of the answer
May be filed only after the plaintiff has completed the presentation of his evidence
(Regalado, Remedial Law, Compendium Vol. I, p. 267, 2005 ed.) If denied, defendant answers, or else he may be declared in default. If granted, plaintiff may appeal or if subsequent case is not barred, he may re-file the case
If denied, defendant may
present evidence.
If granted, but on appeal
the order of dismissal is reversed, the defendant loses his right to present evidence (Riano, Civil Procedure: A Restatement for the Bar, p. 399, 2009 ed.)
H. DISMISSAL OF ACTIONS
1. DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE 2. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM
3. DISMISSAL DUE TO THE FAULT OF PLAINTIFF
Q: Distinguish the different types of dismissal under Rule 17. A:
Dismissal upon notice by plaintiff (Sec. 1,
Rule 17)
Dismissal upon motion of plaintiff
(Sec. 2, Rule 17)
Dismissal due to fault of plaintiff (Sec. 3, Rule 17) A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim.
After service of the answer or a motion for summary judgment by the adverse party.
1. If, for no justifiable cause, the plaintiff fails to appear on the date of the presen- tation of his evidence in chief on the complaint. 2. If the plaintiff fails to
prosecute his action for an unreason-nable length of time (nolle prosequi). 3. If the plaintiff fails to
comply with the Rules or any order of the court. It is a matter of right.
GR: A dismissal without prejudice i.e. the
complaint can be re-filed
XPNs:
1. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice; or
2. The plaintiff has once dismissed in a competent court an action based on or including the same claim (Two-
dismissal rule) (Sec. 1, Rule 17)
3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v.
Cabrera, G.R. No. L-5189, Sept. 21, 1953)
Matter of discretion upon the court. A complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper
(Sec. 2, Rule 17).
GR: It is a dismissal without prejudice, XPN: If the order of dismissal specifies
that it is with prejudice (Sec. 2, Rule 17) Note: A class suit shall not be dismissed
or compromised without the approval of the court.
If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint.
Matter of evidence.
GR: Dismissal is with prejudice
because it has an effect of an adjudication on the merits.
XPN: Unless otherwise declared
by the court (Sec. 3, Rule 17)
Since there is no answer yet filed by the adverse party, no counterclaim recoverable
GR: It is also without prejudice to the
right of defendant to prosecute his counterclaim in a separate action.
XPN: Unless within 15 days from notice
of the motion he manifests his preference to have his counterclaim resolved in the same action (Sec. 2,
Rule 17).
Dismissal upon motion of the defendant or upon the court's own motion is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action
Note: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine
and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).
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ACADEMICS CHAIR:LESTER JAY ALAN E.FLORES II
U
N I V E R S I T Y O FS
A N T OT
O M A SQ: When does the two-dismissal rule apply? A: It applies when the plaintiff has:
1. Twice dismissed the actions;
2. Based on or including the same claim; and 3. In a court of competent jurisdiction (Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.)
Note: The second notice of dismissal will bar the re-
filing of the action because it will operate as an adjudication of the claim upon the merits. In other words, the claim may only be filed twice, the first being the claim embodied in the original complaint.
(Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.)
4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT
Q: What is the effect of dismissal upon a counterclaim, which was already pleaded? A:
1. If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff’s motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be limited to the complaint.
2. The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within fifteen (15) days from notice of the plaintiff’s motion to dismiss.
3. The dismissal of the complaint does not carry with it the dismissal of the counterclaim. (Riano, Civil Procedure: A Restatement for the Bar, pp. 266-267, 2009 ed.)
Q: What rule governs the dismissal of
counterclaim, cross-claim, or third-party
complaint?
A: The rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone by notice pursuant to Sec. 1, Rule 17 shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing (Sec. 4, Rule 17).
I. PRE-TRIAL 1. CONCEPT OF PRE-TRIAL
Q: What is pre-trial?
A: It is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition of the action (Herrera, Vol. I, p. 1074, 2007 ed.).
Q: When is pre-trial conducted?
A: After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (Sec.1, Rule 18)
2. NATURE AND PURPOSE
Q: What is the nature of pre-trial? A: It is mandatory (Sec. 2, Rule 18). Q: What are the purposes of pre-trial?
A: The court shall consider the following purposes: 1. Possibility of an amicable settlement or of
a submission to alternative modes of dispute resolution;
2. Simplification of the issues;
3. Necessity or desirability of amendments to the pleadings;
4. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
5. Limitation of the number of witnesses; 6. Advisability of a preliminary reference of
issues to a commissioner;
7. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. Advisability or necessity of suspending
the proceedings; and
9. Such other matters as may aid in the prompt disposition of the action. (Sec. 2, Rule 18)
3. NOTICE OF PRE-TRIAL
Q: To whom shall notice of pre-trial be served? A: It shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him (Sec. 3, Rule 18).
4. APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR
Q: Who has the duty to appear at the pre-trial? A: The parties and their counsel.
Q: What is the effect of a party’s failure to appear during the pre-trial?
A: Plaintiff’s failure to appear during the pre-trial shall be a cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. Defendant’s non-attendance during the pre- trial shall be a cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof (Sec. 5, Rule 18). (1992 Bar Question)
Note: The non-appearance of a party may be excused
only if a valid cause is shown therefore or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (Sec.4, Rule 18)
5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE
Q: When should the parties file with the court and serve on the adverse party their pre-trial briefs? A: They shall file their respective pre-trial briefs in such a manner as shall ensure their receipt thereof at least three (3) days before the date of the pre- trial (Sec. 6, Rule 18).
Q: What should a pre-trial brief contain? A:
1. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;
2. A summary of admitted facts and proposed stipulation of facts;
3. The issues to be tried or resolved; 4. The documents or exhibits to be
presented, stating the purpose thereof;
5. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and
6. The number and names of the witnesses, and the substance of their respective testimonies and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses (Sec. 6, Rule 18). Q: What is the effect of failure to file a pre-trial brief?
A: It shall have the same effect as failure to appear at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004).
6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE
Q: Distinguish pre-trial in civil cases from pre-trial in criminal cases.
A:
Pre-trial in civil case Pre-trial in criminal case It is set when the plaintiff
moves ex parte to set the case for pre-trial (Sec. 1,
Rule 18)
It is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense
The motion to set the case for pre-trial is made after the last pleading has been served and filed
(Sec. 1, Rule 18)
The pre-trial is ordered by the court after
arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. It considers the
possibility of an amicable settlement as an important objective.
It does not include the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule
118).
Requires the proceeding during the preliminary conference to be recorded in the “minutes of preliminary
conference” to be signed by both parties and/or counsel. The rule allows
either the party or his
counsel to sign the minutes (A.M. No. 03-1-
09-SC).
All agreements or admissions made or entered during the pre- trial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused
(Sec. 2, Rule 18)
Sanctions for non- appearance in a pre-trial are imposed upon the plaintiff and the
The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor
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ACADEMICS CHAIR:LESTER JAY ALAN E.FLORES II