1997 Rules on Civil Procedure Rule 35

2001 Edition <draft copy. pls. check for errors> Summary Judgments

Rule 35
SUMMARY JUDGMENTS

Rule 35 is another important rule – Summary judgments. The rule on summary judgments and
judgment on the pleadings are similar no? They are related to each other. I would say they are
brothers. Rule 34 and Rule 35, magkapatid ‘yan silang dalawa because they have a common
denominator. Rule 35 is also a speedy procedure for the early resolution or decision in a civil case. The
same concept but with a difference. In Rule 34 on judgment on the pleadings, the answer filed by
defendant has put up no defense at all. No defense has been raised or the answer admits all the
material allegations in adverse party’s pleadings. In Rule 35, the answer filed by defendant puts up a
defense but the defense is not a genuine defense. Meaning, it is invoked only for the purpose of delay
and the defense is not actually seriously being interposed.

Q: Define summary judgment procedure.

A: Summary judgment procedure is a method for promptly disposing of actions in which there is
no genuine issue as to any material fact. (De Leon vs. Faustino, L-15804, Nov. 29, 1960)

How do we apply summary judgment?

EXAMPLE: I will file a complaint and your answer invokes defenses, many defenses. But the
trouble is these defenses are not genuine. They are dilatory. They are invoked only for the sake of
invoking and they are not seriously raised. They are just to delay the case.

So, if we go to trial, I will prove my complaint. And when it is your turn, you still lose because you
have no genuine defenses, still you have succeeded in delaying the case. So I would like to get a
judgment immediately in my favor and curb your dilatory tactics by showing that your defenses are
fake and dilatory.

Q: How am I going to do that?

A: I will file a motion for summary judgment under Rule 35 on the ground that there is no genuine
issue to be tried. And under Section 1 and 2, I will attach to my motion for summary judgment
affidavits, admissions, and depositions.

Sec. 1. Summary judgment for claimant. - A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a declamatory 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)

For EXAMPLE: I will file a collection case against you and then you claim that you have paid
already. But in reality, it is not paid. So I know that you are lying. Ikaw naman na defendant, you know
also that you are lying, what you are after is to prolong the case.

Q: As the plaintiff, what should I do?

A: I should execute affidavit stating under oath and under pain of perjury that you have not paid
me. I will attach that to my motion. Well, of course, you know very well that if I file an affidavit by
stating that what you are saying is false, and if I tell a lie, you can file a case of perjury against me. But
since I know that I am correct, I will dare to execute an affidavit under oath. Therefore, since his
defense is false, I’m asking for an immediate decision.

Now, if you are the defendant and you received a copy of my motion, you can oppose my motion
for summary judgment where you will say, “No! I paid and my defense is genuine!” The defendant must
also execute an affidavit to support his position. So you will say under oath that you paid me.

So it will become a battle of affidavits versus affidavits under oath. It is possible that one of us will
go to jail for telling a lie. So tingnan natin kung sinong matapang dito. Kung baga, if your defense is not
very serious and not genuine, chances are, you will not dare to execute an affidavit claiming that you
have paid the obligation. Takot ka man diyan ba. So if you will not execute an affidavit but you still
Lakas Atenista 61
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 35
2001 Edition <draft copy. pls. check for errors> Summary Judgments

claim that you have paid me, it is now very obvious that the defense of payment is false … and the
court will say, “Tama na ang pagsisinungaling! Taob ka na!”

That is summary judgment where the court will say, “No more trial. The affidavit will take the place of
evidence in court.” That is what the rule is all about.

Rule 35 is similar to judgment on pleadings under Rule 34 but the main difference is: In judgment
on the pleadings, the answer does not put up a defense while in summary judgment, here it puts up a
defense but the defense is not genuine – it is a false defense which should easily be exposed by way of
affidavits for summary judgment.

Now take note, there is no genuine issue because if you look at the complaint and the answer there
is an issue because the answer alleges payment. That is an issue. But in reality that is a false issue.
That is why it is not a genuine issue.

Some text writers call the law on summary judgment another name – it is known as the law on
Accelerated Judgment. Meaning, the process will accelerate, you can easily go to trial. Instead of going
to trial, there is no more trial. The motion for summary judgment will determine who is telling the
truth and who is not telling the truth…immediately. So at least, the delay has been avoided.

What is the example I gave you, no? “A party seeking to recover a claim…” Ako, I will file against
you a case of recovery of an unpaid debt. “or cross-claim etc. at any time after the pleading if answer thereto
has been served…” meaning , after your answer has been served, I will move with supporting affidavits,
depositions or admissions for a summary judgment in my favor.

So my motion for summary judgment must be supported with affidavits, or depositions, or

admissions. These will be the basis unlike in the previous rule (Rule 34), there are no affidavits to
support a judgment on the pleadings. All you have to do is ask the court , “Look at the complaints and
look at the answer…” But here, you will prove that the defense is false and you demolish it by way of
affidavits.

Q: Is summary judgment applicable to all kinds of civil actions?

A: YES, because in most cases, defendants will file an answer with defenses but they are all false.
In other words, these defenses are only interposed to delay the case. So, summary judgment is
applicable to accelerate the decision. That’s why it is similar to Judgment on the Pleadings.

Just like in the previous rule (Judgment on the Pleadings) in certain types of cases like declaration
of nullity of marriage, annulment of marriage, legal separation, based on the same principle that there
must always be a trial in these cases, where a ground was established based on the same principle of
analogy.

Q: Is Summary Judgment available only to the plaintiff? Can a defendant move for Summary
Judgment against the plaintiff?
A: YES, that is also allowed under Section 2:

Sec. 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)

Normally, the party who avails of summary judgment is the plaintiff. But this remedy is not limited
to the plaintiff. The defendant can also file a motion for Summary Judgment against the plaintiff
because the cause of action is sham. SO, if the remedy of Summary Judgment is available to the
plaintiff, it can also be availed by the defendant. How?

EXAMPLE: You file a complaint against me. Of course, your complaint puts up a cause of action,
but I know very well that your cause of action is false, although it’s very rare, usually it is the
defendant who is delaying the case. Well, I could always file an answer and there would be pre-trial

Lakas Atenista 62
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 35
2001 Edition <draft copy. pls. check for errors> Summary Judgments

but sabi ko, “Matagal pa iyon!” So under Section 2, instead of filing an answer, I can file a motion for
Summary Judgment and I will attach to my motion affidavits to show that the cause of action is not
genuine. And if the plaintiff believes that his cause of action is genuine, he might as well oppose my
motion with counter-affidavits. Now, if you will not, then the court will rule in my favor, dismissing
your complaint.

So you notice, Summary Judgment may be availed of by either party – either the defense is not
genuine or the cause of action is not genuine.

SEC. 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)

If I will file a motion for Summary Judgment, I must set it for a hearing just like any other motion.
Now, generally, if I will file a motion for Summary Judgment, you must be served a copy at least 10
days before the hearing. That’s an exception to the general rule in Rule 15 (general rule: you are only
required to give the other party 3 days).

The reason is the other party should also be given time to oppose it with affidavits. That’s why you
have to give him a longer period to oppose and if he decides to oppose, he must also file his opposition
together with affidavits but he must furnish me with his copy of opposition at least 3 days before the
hearing.

Under the rule on deposition, I can take the deposition of my own opponent and based on your
deposition, I can prove that your defense is false. So depositions can be used not only during the trial
but to support or oppose a motion for Summary Judgment.

Rule 23, SEC. 4. Use of depositions – At the trial or upon the hearing of a
motion or an interlocutory proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence, may be used against any party who was
present or represented at the taking of the deposition, or who had due notice
thereof, in accordance with any one of the following provisions:
xxx

So, depositions can be used at the trial or upon the hearing of a motion.

Q: Give examples of a motion where you can use a deposition to support your motion.
A: The following:
1.) a motion for Summary Judgment. Under Rule 35, the motion should be supported by
affidavits, depositions, etc… based on what the other party will admit. And based on Rule
23 Section 4, the deposition of the adverse party may be used for any purpose. So I can use it
to prove that your cause of action or defense is false, or another way of supporting a motion
for Summary Judgment under Rule 35, affidavits, depositions and admissions.
2.) Rule 26 – Request for Admission – I can avail of the Mode of the Request for Admission
based on your admissions.

According to Section 3, all the issues which are not genuine can be resolved immediately EXCEPT
as to amount of damages. Meaning the amount of damages to be recovered by the plaintiff cannot be
adjudicated through a motion for Summary Judgment because you still have to present evidence as to
how much really is the damages.

Practically every issue can be resolved summarily except the exact amount of damages. Some
people find this hard to imagine, “Paano ba yon? I will file a motion for Summary Judgment and then there
will be a judgment except as to the amount of damages? Ano ba ‘yan?”

EXAMPLE: An action for damages based on quasi-delict where I will accuse you of negligence and
then you deny that you are negligent. Now, the issue is: who is negligent and who is not. Suppose I
Lakas Atenista 63
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 35
2001 Edition <draft copy. pls. check for errors> Summary Judgments

will file motion for Summary Judgment and the court will decide in my favor. Therefore the I am
telling the truth, the defendant is telling a lie. And then the court will say, “Let the case be heard to
determine exactly how much damages the plaintiff is supposed to recover.” So there will be a trial but during
the trial, I will just prove how much I am entitled. But the issue of negligence, tapos na, talo ka na,
terminated na ‘yung issue. Damages generally cannot be granted without evidence. You have to
support really the exact amount you are entitled to receive.

If you will notice, the issue as to the fact that damages, especially unliquidated damages,which is
also subject to proof, is also mentioned in Rule 8, Section 11:

Rule 8, SEC. 11. Allegations not specifically denied deemed admitted –

Material averment in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not specifically denied.

Meaning, how much are you entitled cannot be just given to you even if your opponent will not
deny an allegation. You must still prove it and that is very clear even in Rule 35 – summary judgment
can be granted except as to the amount of damages.

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

Q: Is there such a thing as a motion for partial Summary Judgment?

A: YES. Well, if you say Motion for Partial Summary Judgment, some issues are genuine, some are
not. So the court can decide immediately on the issues which are not genuine but with respect to issues
which are genuine, the law says, trial shall be conducted on the controverted facts summarily under
Rule 35 on the issues which are not genuine.

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

Q: What are the forms of affidavits under Rule 35?

A: The following:
1.) Supporting affidavits – to support the motion for Summary Judgment;
2.) Opposing (counter-) affidavits – to oppose the motion for Summary Judgment.

Q: Give the requisites of supporting or opposing affidavits to a motion for Summary Judgment.
A: The following:
1.) The affidavit shall be made based on personal knowledge;
2.) It shall set forth such facts as would be admissible in evidence;
3.) The affiant is competent to testify to the matters stated therein; and
4.) Certified true copies of all papers of parts thereof referred to in the affidavit shall be
attached thereto or served therewith.

“The affidavits of your witnesses, or your affidavit must be made on personal knowledge and shall set forth
such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent and the
matters stated therein.”

What does that mean? Suppose the case will go to trial, so the witness will take the witness stand.
He will testify. When a witness testifies under the Rules on Evidence, there must be a showing that
what he is talking about is known by him. Otherwise, it will be hearsay. And based on the law of

Lakas Atenista 64
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 35
2001 Edition <draft copy. pls. check for errors> Summary Judgments

evidence, the testimony is inadmissible. What I will say should be admissible under the law on
evidence otherwise my testimony will not be allowed and I must show that I’m in a position to know
what I’m talking about.

That’s what the witness will have to demonstrate in court. Since in a motion for Summary
Judgment, there is no more trial, there is no more witnesses who will testify in court, what will take the
place of a witness is his affidavit which must also show that the witness has personal knowledge, etc.
Meaning, what you should show during the trial, if you are, they must also be shown in your affidavit.

If your testimony in court is not admissible, because you are telling only what you heard from other
people, then an affidavit which contains the same thing would also be inadmissible. So, in other
words, the affidavit merely takes the place of oral testimony in court.

Q: What procedure is similar where the one who will decide, who will only read the affidavits of
both sides and render a decision?
A: Criminal Procedure: Rule 112 on Preliminary Investigation – the fiscal conducts a preliminary
investigation on the affidavits lang. The complainant will submit his affidavit. The respondent will file
his counter-affidavit. Then the fiscal will go over the affidavits and will resolve the issues and
determine whether there is probable cause to file the information or none. So, the resolution is
practically based on affidavits. So walang hearing.

SEC. 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)

Well, of course, the affidavits required by law must be filed in good faith.

EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for Summary Judgment against you
alleging that your defense is false and I will support it with affidavit. Ang defendant, malakas ang
loob, he opposed my motion claiming that his defense is true and genuine and he also supported it
with affidavits. Once the opposing party does that, the court will automatically deny my motion. The
court is not in the position now to know who is telling the truth. Both maintaining under oath that he
is telling the truth. So if you oppose my motion with supporting affidavits, the court will deny my
motion for Summary Judgment and the courts says let’s go to trial and during the trial, mabisto na
naman and it turned out really that you have no defense, talo ka pa rin.

Q: What is the penalty for you for filing earlier an opposition to my motion supported by affidavits
in bad faith?
A: The court may order you or counsel to pay to me (plaintiff) the amount of reasonable expense
which the filing of affidavits caused me to incur, including attorney’s fees. The court may also, after
hearing, adjudge you or your lawyer guilty and I will add what is not found in the law, I will file a case
of perjury against you for executing a false statement.

That is a criminal sanction under the RPC. I can also file a case of disbarment against the lawyer for
assisting in the filing of an affidavit in bad faith.

So in other words, if you execute an affidavit in bad faith, you must be ready to face all these later –
damages, contempt, perjury under the RPC and the lawyer to face disciplinary proceedings.

SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE PLEADINGS (Rule 34)

Their similarity is that, both of them are methods for promptly disposing civil actions, wherein a
civil case can be adjudicated without undergoing any trial.

Q: Distinguish Summary Judgment (Rule 35) from Judgment on the Pleadings (Rule 34).
Lakas Atenista 65
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 35
2001 Edition <draft copy. pls. check for errors> Summary Judgments

A: The following are the distinctions:

1.) as to the ground

Summary Judgment is proper if there is no genuine issue of fact to be tried; whereas
Judgment on the Pleadings is proper where there is no issue of fact at all to be tried;
Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA 753)

2.) as to how the judgment rendered

Summary Judgment is rendered on the basis of facts appearing in the pleadings,
affidavits, depositions and admissions on file, whereas
Judgment on the Pleadings is rendered on the basis only of the pleadings; (Nagrampa
vs. Mulwaney, Etc., 97 Phil. 724)

3.) as to who can ask for the judgment

Summary Judgment is a remedy available for both claimant and defendant; whereas
Judgment of Pleadings is available only on the claimant because the answer fails to
tender an issue.

VERGARA, SR. vs. SUELTO, ET AL

156 SCRA 753

ISSUE: When does an answer fail to tender an issue? When is there no genuine issue?
HELD: “Section 1, Rule 19 (now Rule 34) of the Rules of Court provides that where an
answer fails to tender an issue, or otherwise admits the material allegation of the adverse
party's pleading, the court may, on motion of that party, direct judgment on such pleading.
The answer would fail to tender an issue, of course, if it does not comply with the
requirements for a specific denial set out in Section 10 (or Section 8) of Rule 8; and it would
admit the material allegations of the adverse party's pleadings not only where it expressly
confesses the truthfulness thereof but also if it omits to deal with them at all.”
“Now, if an answer does in fact specifically deny the material averments of the
complaint in the manner indicated by said Section 10 of Rule 8, and/or asserts affirmative
defenses (allegations of new matter which, while admitting the material allegations of the
complaint expressly or impliedly, would nevertheless prevent or bar recovery by the
plaintiff) in accordance with Sections 4 and 5 of Rule 6, a judgment on the pleadings would
naturally not be proper.”
“But even if the answer does tender issues — and therefore a judgment on the pleadings
is not proper — a summary judgment may still be rendered on the plaintiff's motion if he
can show to the court's satisfaction that except as to the amount of damages, there is no
genuine issue as to any material fact, that is to say, the issues thus tendered are not genuine,
are in other words sham, fictitious, contrived, set up in bad faith, patently unsubstantial.
The determination may be made by the court on the basis of the pleadings, and the
depositions, admissions and affidavits that the movant may submit, as well as those which
the defendant may present in his turn.”

Now, Summary Judgment is related to Rule 17 Section 1 in which summary judgment is first
mentioned:
Rule 17, Section 1. Dismissal upon notice by plaintiff. - A complaint may be
dismissed by a plaintiff by filing a notice of dismissal at any time before
service of the answer or of a motion for summary judgment. xxx

Q: Can the plaintiff dismiss his complaint as a matter of right?

A: YES, at any time before the defendant has filed his answer or of a motion for summary
judgment. (Rule 17, Section 1)

The second time that it was mentioned was in Rule 18 Section 2:

Rule 18, Sec. 2. Nature and purpose. - The pre-trial is mandatory. The
court shall consider:

Lakas Atenista 66
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 35
2001 Edition <draft copy. pls. check for errors> Summary Judgments

xxx
(g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be found to
exist;
xxx

During the pre-trial conference, it is possible for the court to render a judgment on the pleadings
under Rule 34 or a summary judgment under Rule 35. Judgment can be rendered summarily during
the pre-trial.

DIMAN vs. ALUMBRES

299 SCRA 459 [Nov. 27, 1998]

FACTS: The plaintiff files a motion for summary judgment where he said under oath
that the defense is false. The trial court denied it, “A summary judgment is not proper
where the defendant presented defenses tendering factual issues which call for the presentation
of evidence.” Is the trial court correct.

HELD: “Such a ratiocination is grossly erroneous. Clearly, the grounds relied on by the
judge are proper for the denial of a motion for judgment on the pleadings – as to which the
essential question, as already remarked, is: are these issues arising from or generated by the
pleadings? – but not as regards a motion for summary judgment – as to which the crucial
question is: issues having been raised by the pleadings, are those issues genuine, or sham or
fictitious, as shown by affidavits, depositions or admissions accompanying the application therefor?”
So those are the questions to be answer in a summary judgment, not whether or not there
is an answer.
“Errors on principles so clear and fundamental as those herein involved cannot but be
deemed so egregious as to constitute grave abuse of discretion, being tantamount to
whimsical or capricious exercise of judicial prerogative.”

Last point to remember: as a General Rule, you cannot secure judgment by motion alone. This is
because a MOTION is defined as any petition for relief other than the relief prayed for in the pleadings.
(Rule 15, Section 1)
A motion prays for relief other than through a pleading. The other way of stating it is, a motion
prays for relief other than through a judgment because a judgment is prayed in a pleading and not in a
motion. So a motion as a rule, cannot pray for immediate judgment.

But there are three (3) known exceptions where a motion can already pray for immediate relief. They
are:
1.) Rule 33 – Demurrer to evidence;
2.) Rule 34 – Judgment on the Pleadings; and
3.) Rule 35 – Summary Judgment.

In those exceptions, the movant is already asking for a judgment which normally is not stated in a
motion. –oOo-

Lakas Atenista 67
Ateneo de Davao University College of Law