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 CIVIL PROCEDURE

PART I

 JURISDICTION

 Jurisdiction is the authority or power to hear, try, decide a case(Cuenca vs. PCCGG, 535

SCRA 102) and to execute the judgment thereon(Echegaray vs. Secretary of justice, 301 SCRA 96). 

It is not the power of a judge but of the court.

1. For a judgment to be valid, the judgment must have been rendered by a court having

 jurisdiction over the following: (1) subject matter; (2) parties, (3) issues, and (4) res.

2. Jurisdiction over the subject matter – This kind of jurisdiction is not procedural but a

matter of substantive law. This jurisdiction is CONFERRED by law. Nothing else can confer jurisdiction except the law (De la Cruz vs. Court of Appeals, 510 SCRA 103; Guy vs. Court of

 Appeals, December 10, 2007).If it is conferred by law, it cannot be conferred by waiver, agreement

 by the parties or by acquiescence of the courts. It cannot be conferred by the rightness of the

decision made or by the regularity of its exercise. WHY? Because it is conferred ONLY by law.

Hence, whether or not the court has jurisdiction over the subject matter of an action instituted

 before it is dependent upon the laws on jurisdiction.

3. Payment of filing/docket fees – The rule as it stands now, requires the payment of the

requisite fees when a complaint is filed. It is not simply the filing of the complaint that vests the

court with jurisdiction over the action filed (even if by law, it has jurisdiction) but also by the

payment of the prescribed docket fee. The Supreme Court in several cases, has held that a courtacquires jurisdiction over the case ONLY upon the payment of the said fees(Manchester

Development Corporation vs. Court of Appeals, G.R. No. 75919, May 7, 1987; Nestle Philippines, Inc.,

vs. FY Sons, Inc., G.R. No. 150789, May 5, 2006). This strict rule, as enunciated in Manchester was

prompted by the peculiar circumstances of the case. Here, the Court noted a fraudulent scheme

to avoid payment of the docket fee by the plaintiff’s deliberate omission of the amount of

damages sought in the prayer although alleged in the body of the complaint.

This ruling was relaxed inSun Insurance vs. Court of Appeals ( 149 SCRA 562), when the

Court made a liberal interpretation of the rule by allowing a late payment of the docket fee as

long as it should not be made beyond the action’s prescriptive period. It also declared in thesame case that any unpaid fees should be considered a lien on the judgment. In this case, there

is no evidence that the plaintiff tried to evade the payment of the docket fees.

Note: It should be noted that the pronouncements of the Court on the matter of docket

fees have always been influenced by the peculiar legal and equitable circumstances surrounding

each case. The rule is not as simple, as rigid or as uncomplicated as the Manchester case makes

it appear. There are other circumstances equally important. While the timely payment of docket

fees is jurisdictional, considerations of equity also come into the picture (Yuchengco vs. Republic,

333 SCRA 368).

  4. Objections to jurisdiction over the person of the defendant may be made initially eitherin a motion to dismiss or in the answer as an affirmative defense. However, objections to

 jurisdiction over the subject matter may, as a rule, be made at any stage of the proceedings, even

for the first time on appeal as long as estoppel by laches does not set in(Calimlim vs. Ramirez,

118 SCRA 399; Francel Realty vs. Sycip, 469 SCRA 430).Being estopped to question jurisdiction is

the exception rather than the rule.

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  5. While jurisdiction over the subject matter is CONFERRED by law, it is DETERMINED

 by the allegations of the complaint (Deltaventures Resources, Inc. vs. Cabato, 327 SCRA 521). 

This means that in order to find out if the court has jurisdiction over a complaint filed

 before it, the court must look into the allegations of the complaint and no other. The defenses in

the motions or in the answer of the defendant should not be considered. For this purpose, thecourt shall hypothetically assume the truth of the averments in the complaint. If the complaint

alleges a claim of P500,000, the RTC has jurisdiction even if the defendant claims that his debt is

only P100,000. The truth and the falsity of the claim are not considered as factors in determining

the jurisdiction of the court because such matters are to be addressed in the trial of the case.

  6. The MTC has exclusive original jurisdiction over claims not exceeding P300,000 in places

outside Metro Manila and not exceeding P400,000 within Metro Manila. In determining the

 jurisdictional amount, do not include the following: (a) damages of whatever kind, (b) interests,

(c) attorney’s fees, (d) litigation expenses, and (e) costs. Note that damages will be considered in

determining the jurisdictional amount when the main action is for damages. If damages is not

the main action, damages should be excluded.

Example: Mr. P filed an action for collection of a sum of money, thus: P350,000, the

amount of the note; litigation costs of P6,000; attorney’s fees of P50,000; damages of P5,000. In

what court shall the action be filed assuming the parties are residents of Manila?

The case should be filed in the MeTC of Manila even if the total claim is P411,000. The

amount to be considered for jurisdictional purposes is only P350,000.

Follow the jurisdictional amounts above even if the case is an admiralty or a maritime

case. In matters of probate, the same jurisdictional amounts apply but the basis is the gross

value of the estate whether in personal or real property. Because of the amendments introduced

to BP 129 by R.A. 7691, the MTC may now handle probate cases even if a probate case is a

special proceeding (Sec. 19(4), BP 129 as amended by R.A. 7691). It is not correct to state that an

MTC has no jurisdiction over a special proceeding.

  7. Unlawful detainer and forcible entry cases are to be filed with the MTC which has

exclusive original jurisdiction over said cases regardless of the amount of rentals or damages

prayed for (even if the rentals or damages run into millions)(Sec. 34(2), BP 129 as amended by

R.A. 7691). This is an instance where the MTC can take cognizance of a special civil action.

Forcible entry and unlawful detainer are treated in Rule 70 as special civil actions(Sec. 33(2), BP

129 as amended by R.A. 7691).

Under the same provision of the law, when the defendant raises the issue of ownership

in his pleadings in an unlawful detainer or forcible entry case, the MTC still has jurisdiction over

the case. The MTC may still resolve the issue of ownership but only for the purpose of resolving

the issue of possession. The court shall do so if the question of ownership cannot be resolved

without deciding the issue of ownership(Sec. 33(2), BP 129 as amended by R.A. 7691).

  8. May an MTC now take cognizance over real actions or actions involving title to, or

possession of real property or of any interest therein? YES.

Under R.A. 7691, the answer is in the affirmative depending upon the assessed value ofthe land involved in the litigation. If the assessed value of the land or interest therein does not

exceed P20,000 outside Metro Manila or does not exceed P50,000 within Metro Manila, the MTC

has original jurisdiction over the case (Sec. 33(3), BP 129 as amended by R.A. 7691). Thus, an

MTC can now have jurisdiction over cases involving ownership of land. Under the former law

these cases were under the jurisdiction of the RTC. Hence, an action for reconveyance of real

property, removal of a cloud in a title of real property, cancellation of title to real property and

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similar actions shall fall within the jurisdiction of the MTC or the RTC depending upon the

assessed value of the land involved. Before the amendments introduced by R.A. 7691, they were

within the jurisdiction of the RTC because of express provision of the old law and also because

they were considered also as actions incapable of pecuniary estimation(Heirs ofValeriano Concha

vs. Spouses Gregorio Lumocso, G.R. No. 158121, December 12, 2008; San Pedro vs. Asdala, July 22,

2009).

“Under the old law, there was no substantial effect on jurisdiction whether a case is one,

the subject matter of which was incapable of pecuniary estimation, under Sec. 9 (1) of BP 129 or

one involving title to property under Sec. 19(2) of BP 129. The distinction between the two

classes became crucial with the amendment introduced by R.A. No. 7691 in 1994 which

expanded the exclusive original jurisdiction of the first level courts to include “all civil actions

which involve title to, or possession of, real property, or any interest therein where the assessed

value of the property or interest therein does not exceed P20,000.00, or in Metro Manila, does

not exceed P50,000.00 exclusive of interest, attorney’s fees, damages of whatever kind, attorney’s

fees, litigation expenses and costs.”(Heirs ofValeriano Concha vs. Spouses Gregorio Lumocso, G.R.no. 158121, December 12, 2008; san Pedro vs. Asdala, July 22, 2009).

 9. Jurisdiction over a case ofaccion publiciana, also now depends upon the assessed value of

the property involved(Quinagoran vs. Court of Appeals, August 24, 2007; Atuel vs Valdez, 403

SCRA 517). However, even if cognizable by the MTC because of its assessed value, the case will

not be covered by a summary proceeding. Jurisdiction over anaccion reinvindicatoriaalso

depends upon the assessed value of the land(Hilario vs. Salvador, 457 SCRA 815).These actions

are no longer the exclusive domain of the RTC.

10. An MTC may also hear and decide petitions for writ ofhabeas corpusin the absence of

all judges of the RTC in the city or province. This is thespecial jurisdiction of the MTC(Sec. 35,

BP 129 as amended by R.A. 7691). This case is another example of a special proceeding under the

 jurisdiction of the MTC. The other special proceeding is a probate proceeding jurisdiction over

which depends upon the gross value of the estate.

  11. The MTC also has adelegated jurisdiction (Sec. 34, BP 129 as amended by R.A. 7691). The

Supreme Court may assign the MTC to hear and determine cadastral and land registration cases

covering lots where there is no controversy or opposition, or in case of contested lots where the

value of which does not exceed P100,000.

The value of the land shall be determined first, by the affidavit of the claimant, orsecond,

if there are several claimants, by their agreement, orthird, from the corresponding tax

declaration of the property. Note: The decision of the MTC under this delegated jurisdiction

shall be appealable in the same manner as decisions of the RTC. Hence, the decision is

appealable to the CA.

  12. All other cases not within the jurisdiction of the MTC or of any other court, tribunal,

person or body exercising judicial or quasi-judicial functions shall be filed with the RTC(Sec.

19(6), BP 129 as amended by R.A. 7691).This is because the RTC is a court of general jurisdiction.

  13. The RTC now also has exclusive original jurisdiction over cases which used to be with

the jurisdiction of the Securities and Exchange Commission(R.A. 8799).

 14. It also has jurisdiction over cases not capable of pecuniary estimation like rescission of a

contract, reformation of an instrument or annulment of a contract, or injunction as a main

action. It also has jurisdiction over an action for specific performance which is also an action

incapable of pecuniary estimation(Sec. 19(1), BP 129 as amended by R.A. 7691).

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How about an action for specific performance OR damages? To know the jurisdiction,

look at the amount of damages. This is an instance where the damages shall be considered

(Cruz vs. Tan, 87 Phil. 627).But an action for specific performance alone or specific performance

AND damages is an action incapable of pecuniary estimation and the action shall be filed with

the RTC.

  15. Jurisdiction over the plaintiff and defendant – Jurisdiction over the plaintiff isacquired

when said plaintiff files the complaint. By seeking affirmative relief through the complaint, there is

an implied submission of the plaintiff’s person to the jurisdiction of the court. Jurisdiction over

the plaintiff may be acquired even if he is not a citizen or a resident of the Philippines.

Note: Jurisdiction over the person of the defendant is relevant only in an actionin

 personam. In an action in remorquasi in rem,what is needed is jurisdiction over theres (the thing

or the status).

 Jurisdiction over the defendant is acquired by (a) a valid service of summons or (b) by

his voluntary appearance or submission to the jurisdiction of the court.

“The defendant’s voluntary appearance in the action shall be equivalent to service of

summons”(Sec. 20, Rule 14, Rules of Court). 

Lack of jurisdiction over one’s person may be invoked in a motion to dismiss alleging

such ground. If no motion to dismiss is filed, it may be raised as an affirmative defense in the

answer.

Under the previous rule, the objection to jurisdiction must be done by making a special

appearance in a motion to dismiss invoking the lack of jurisdiction over the person of the

defendant as theonly ground. Adding any other ground in addition to lack of jurisdiction overthe defendant was construed as a voluntary appearance or submission to the jurisdiction of the

court. The rule as it is now, is different. Now, the“inclusion in a motion to dismiss of other grounds

aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary

appearance. (Sec. 20, Rule 14, Rules of Court).

Illustration under the old rule: Defendant files a motion to dismiss. Ground: Lack of

 jurisdiction over his person because of invalid service of summons. He adds another ground:

 prescription. Under the old rule, defendant had voluntarily submitted to the jurisdiction of the

court by adding prescription as a ground. Under the new rule however, the inclusion of

prescription is not equivalent to voluntary appearance or submission to the jurisdiction of thecourt.

16. Jurisdiction over the issues – This is the power of the court to try and decide issues

raised by the pleadings. In order to determine whether or not the court has jurisdiction over the

issues of the case, one must look into the pleadings. This jurisdiction means that the court must

only pass upon issues raised by the parties. If the issue raised by the parties is possession, the

court has no jurisdiction to pass upon the issue ofownership because it is not an issue in the case.

Thus, it is not correct for the court to order the lessee to vacate the premises where the lessor

did not include in his pleadings a claim for restoration of possession(Buce vs. Court of Appeals,

332 SCRA 151).

Sometimes however, issues may arise in the case even if the same are not raised in the

pleadings. This happens when the issues are tried with the express or implied consent of the

parties. When this happens, the issues shall be treated in all respects as if they had been raised

in the pleadings. (Sec. 5, Rule 10).

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If for instance in an action for a sum of money, the complaint does not allege that a

demand to pay has been made upon the defendant before the action is filed, the defendant may

file a motion to dismiss the complaint for failure to state a cause of action. He may also invoke

the said objection as an affirmative defense in his answer if he chooses not to file a motion to

dismiss. If however, he interposes no objection to the defect in the complaint and during the trial

he likewise does not object to evidence that demand was made before the action is filed, the

matter of demand shall be considered as if it has been alleged in the pleadings.

If a party presents evidence on a matter not at issue in the pleadings, the other may

object to such evidence. The court may sustain the objection and exclude the evidence. However,

the same rule likewise allows the court, in the interest of substantial justice, to direct an

amendment to the pleadings so the pleadings may conform to the evidence. This is true despite

the objection to the evidence. The evidence will then be admitted after the amendments are

made ( Mercader vs. DBP (Cebu Brance), 332 SCRA 82, 97).

17. Summary procedure – Not all pleadings are allowed under the Rules of

Summary Procedure. For example: A party cannot assert a permissive counterclaim although he

may assert a compulsory counterclaim. A reply, a third-party complaint or a complaint in

intervention cannot also be filed. The only pleadings allowed are the complaint, compulsory

counterclaim and cross-claim pleaded in the answer, and the answers thereto. (Sec. 3(A) II).

The answer to the complaint shall be filed and served within ten (10) days from service

of summons.

May the defendant file a motion for bill of particulars or a motion to dismiss? No. These

are not allowed. Exception: A motion to dismiss may be filed if premised on (a) lack of

 jurisdiction or (b) the failure to comply with the barangay conciliation proceedings).

If the defendant does not file his answer, may the plaintiff file a motion to declare the

defendant in default? The answer is likewise, no! The remedy of the plaintiff is to move for the

rendition of judgment. Even without the requisite motion, the court maymotu propio render

 judgment (Sec. 6, II, Rules on Summary Procedure).

NOTE: As of November 25, 2002, the jurisdictional amount subject to summary

procedure is as follows: P100,000 or less (outside Metro Manila); P200,000 or less (within Metro

Manila). An action for forcible entry and an action for unlawful detainer are subject to summary

procedure.

18. An error of jurisdiction is correctible bycertiorari while an error of judgment is

correctible by appeal. When the error of the court consists in the appreciation of the facts or the

evidences adduced, this is an error of judgment. When the court acts without jurisdiction

 because it actually has no jurisdiction, or even it initially it has jurisdiction but gravely abuses

said discretion or acts in excess of jurisdiction which tantamount to lack of jurisdiction, the

special civil action ofcertiorariis the appropriate remedy.

Errors of procedure that do not affect the court’s jurisdiction are not reviewable by

certiorari.It is not also available for the re-examination of conflicting evidences or the re-

evaluation of the credibility of the witnesses.Caveat: It is settled thatcertiorariis not proper

when another remedy is available. So if appeal is available, forget aboutcertiorari. This is the

general rule. However, if appeal would not be speedy or an adequate remedy, thencertiorari

may be availed of.

As a general rule also, a motion for reconsideration should precede a recourse to

certiorari in order to give the trial court a chance to correct its errors. This requirement is not

absolute and may be dispensed with in any or a combination of the following situations: (a)

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when the error of the court is patently void; (b) where the relief is extremely urgent; (c) where

the issue is one purely of law; (d) where the question of jurisdiction has been squarely raised,

argued before, submitted to, and met and decided by respondent court; (e) where the

questioned order is a patent nullity; (f) where there is a deprivation of the petitioner’s right to

due process.

Reminder: Certiorari under Rule 45 should not be confused withcertiorari under Rule 65.

Among others, the most important distinction is the issue raised. In Rule 45, the issue is a pure

question of law; in Rule 65, the issue is whether or not the tribunal, board or officer acted with

grave abuse of discretion amounting to lack of jurisdiction. Rule 45 iscertiorari as a mode of

appeal.Certiorari under Rule 65 is not a mode of appeal but a special civil action.

SOME BASIC CONCEPTS TO REMEMBER

 1. Remedial law (also known as procedural law or adjective law) is not substantive law.Substantive law creates, defines and regulates rights and duties but remedial law which

includes civil procedure, merely prescribes the methods of enforcing rights and obligations

created by substantive law. It is not possible to speak of remedial law without reference to

substantive law, since the latter is the basis of the former.

The rules embodied in the Rules of Court are not laws in the strict sense of the word

since they did not emanate from the legislature, but since they were promulgated under

authority of law, such rules have the force and effect of laws(Alvero vs. De la Rosa, 76 Phil. 428).

The Philippines uses the system of code pleadings as distinguished from the common

law system. In the system of code pleading, the procedural rules are set forth in a codified formlike the Rules of Court. In the common law system, the procedural rules are not written in

codified form(Marquez vs. Varela, 92 Phil. 373 (1972).

2. The Supreme Court has the inherent power to suspend the Rules of Court (Redeña vs.

Court of Appeals, G.R. No. 146611, February 6, 2007) but while the rules may be relaxed or even

suspended by the Supreme Court, it will only do so for persuasive and weighty reasons in order

to relieve a litigant of an injustice. The mere invocation of substantial justice is not a magical

incantation that will automatically compel the Court to suspend procedural rules(Cu-Unjieng

vs. Court of Appeals, 479 SCRA 594, January 24, 2006).What impels the Court to set aside its rules

is not a party’s empty invocations of liberality but the merits of his position so that the samemay not be obstructed by mere deficiencies in form. If a petition has not an iota of merit in it,

there is nothing for the Court to bring to light at all(Muñoz vs. People, 548 SCRA 473, March 14,

2008).

3. The Rules are to be liberally construed (Sec. 6, Rule 1, Rules of Court).

In many instances in the past, the Court allowed appeals filed out of time where the delay

was not due to the fault or negligence of the appellant as long as the appeals were impressed

with merit(Siguenza vs. Court of Appeals, 137 SCRA 570).

Also, while it is true that the pre-trial has already been terminated, the court may allow a

party to make additional markings of documentary exhibits since this is consistent with thediscretion of the court to dispense justice in accordance with the circumstances of the

proceedings before it(Frisco San Juan vs. Sandiganbayan, G.R. No. 173956, August 6, 2008).

4. While the Supreme Court had held that payment of the docket fee within the

prescribed period is mandatory for the perfection of an appeal(Regalado vs. Go, G.R. No. 167988,

February 6, 2007),the non-payment of the docket fees merely gives rise to a discretion on the

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court to either dismiss or take cognizance of the appeal and dismissal is not mandatory (Public

Estates Authority vs. Yuico ,351 SCRA 350, Villamor vs Court of Appeals, G.,R. No. 136858, July 21,

2004).

5. Rules of procedure may be made applicable to actions pending and undetermined at

the time of their passage, and are deemed retroactive only in that sense and to that extent. As ageneral rule, the retroactive application of procedural laws cannot be considered violative of any

personal rights because no vested right may attach to nor arise therefrom (In the Matter to

Declare in Contempt of Court Hon. Simeon Datumanong, G.R. No. 150274, August 4, 2006). 

6. The Rules of Court shall not apply to (a) election cases, (b) land registration, (c)

cadastral, (d) naturalization, and (e) insolvency proceedings except by analogy or in a

suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1, Rules of Court). 

Administrative bodies are not bound by the technical niceties of the rules obtaining in a

court of law. Hence, administrative due process cannot be fully equated with judicial due

process(Samalio vs. Court of Appeals, 454 SCRA 462).Administrative bodies are not bound by thetechnical niceties of law and procedure and the rules obtaining in the courts of law(Department

of Agrarian Reform vs. Uy, G.R. No. 169277, February 9, 2007).

In a naturalization proceeding for instance, the Court of Appeals can deny an application

for naturalization on the basis of documents not formally offered in evidence during the trial.

This procedure is contrary to Sec. 34 of Rule 132 providing that the court shall consider no

evidence which has not been formally offered but this rule however, does not apply to

naturalization proceedings (Ong Chia vs. Republic, 328 SCRA 749 [2000]).

While as a rule, affidavits whose affiants have not been cross-examined are hearsay, the

argument that the affidavits attached to the case are hearsay because the affiants were notpresented in court for cross-examination is not persuasive because the rules of evidence are not

strictly observed in proceedings before administrative bodies like the NLRC where decisions

may be reached on the basis of position papers only (Bantolino vs. Coca-Cola Bottlers, Phil., Inc.,

403 SCRA 699).

7. Philippine courts are both courts of law and equity. (U.S. vs. Tamparong, 31 Phil. 321.

Equity cannot be invoked when there is a law applicable to a given case. (Smith Bell Co. vs. Court

of Appeals, 267 SCRA 530). For all its conceded merits, equity is available only in the absence of

law and not as replacement(Tankiko vs. Cezar, 302 SCRA 559).It is availed of only in the absence

of a law and is never availed of against statutory law or judicial pronouncements(Velez vs.

Demetrio, G.R. No. 128576, August 13, 2002; Bell vs. Court of Appeals, 267 SCRA 530; David-Chan vs.

Court of Appeals, 268 SCRA 677).

FUNDAMENTALS OF ORDINARY CIVIL ACTIONS

1. Civil procedure starts with the filing of the complaint. Before filing the

complaint, the plaintiff must initially determine if he has acause of action against the defendant.

Without this cause of action, he has no right to file a suit against the defendant because every

ordinary civil action must be based on a cause of action (Sec. 1, Rule 2).

2. If a cause of action exists, the plaintiff may now start considering the preparation

of the complaint. But before doing so, he must determine the court that should take cognizance

of the action. This involves an inquiry into the laws on jurisdiction.He must also determine the

place where the action is to be filed. This means that he must know thevenue of the action. He

must also know the persons to be impleaded. Hence, he needs to know the rules on parties. As a

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starting point therefore, the plaintiff must know theconcepts of action, right of action, cause of

action, jurisdiction, venueand parties before he files the action.

3. In preparing his complaint, the plaintiff should remember that he should allege

only “ultimate facts”, i.e. the facts essential to a party’s cause of action. (Sec. 1, Rule 6, Rules of

Court). This means that he should not allege conclusions of law and aver mere evidentiary facts.Conclusions are for the court to make while evidentiary matters are reserved for the trial.

Conclusions and evidentiary matters in a pleading may be the subject of a motion to strike.

4. The complaint must besigned by the plaintiff or counsel representing him. (Sec.

3, Rule 7, Rules of Court). The counsel who signs the complaint should be aware of the

significance of his signature. His signature constitutes a certificate by him that (a) he has read

the pleading, (b) that to the best of his knowledge, information and belief there is good ground

to support it, and (c) that it is not interposed for delay. (Sec. 3, Rule 7, Rules of Court). Remember

that an unsigned pleading has no legal effect (Sec. 3, Rule 7, Rules of Court). It is a mere scrap of

paper.

5. The address of the party or of the counsel must not be a post office address. (Sec.

3, Rule 7, Rules of Court).

6. The pleading need not be under oath. This means that a pleading need not be

verified, except when averificationis required by law or by a particular rule. A pleading is

verified by an affidavit thatthe affiant has read the pleading and that the allegations therein are true of

his personal knowledge or based on authentic records. (Sec. 4, Rule 7, Rules of Court).

It has however, been held that the absence of a verification or the non-compliance with

the verification requirement does not necessarily render the pleading defective. It is only aformal and not a jurisdictional requirement. The requirement is a condition affecting only the

form of the pleading(Benguet Corporation vs. Cordillera Caraballo Mission, Inc., SCRA 381; Micro

Sales Operation Network vs. NLRC, 472 SCRA 328)and non-compliance therewith does not

necessarily render it fatally defective(Sarmiento vs. Zaratan, G.R. No. 167471, February 5, 2007).

All pleadings in a summary procedure are to be verified such as the pleadings in an action for

unlawful detainer and forcible entry(Sec. III (B) 1991 Rules on Summary Procedure) Other

examples are the special civil actions of certiorari, prohibition and mandamus(Rule 65).

7. Since a complaint is an initiatory pleading, it must be accompanied by acertification

against forum shopping. Note: A thorough preparation for the bar requires remembering thecontents of the certification against forum shopping in Sec. 5, Rule 7 of the Rules of Court.

Remember this provision by heart.

The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional (Robert

Development Corporation vs. Quitain, 315 SCRA 150) and must be signed by the party himself. It

cannot be signed by his counsel. (Digital Microwave Corp. vs. Court of Appeals, 328 SCRA 286).

This is the general rule and the prevailing rule, subject of course to the power of the Supreme

Court to suspend procedural rules.

 InSan Miguel Corporation vs. Aballa, 461 SCRA 392, only three out of the ninety seven

petitioners signed the certification of non-forum shopping. The Court ruled that the execution

of the certification by only three of the petitioners constitute substantial compliance with the

Rules because there is a common cause of action against San Miguel Corporation(See also Espina

vs. Court of Appeals, 519 SCRA 327; Pacquing vs. Coca-Cola Bottlers, Inc. 543 SCRA 344, January 31,

2008). 

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The failure to comply with the required certification is not curable by amendment and

shall be a cause for the dismissal of the action without prejudice unless ordered by the court to

 be with prejudice. The general rule therefore, is to the effect that the dismissal is without

prejudice where the order is silent on the matter (Sec. 5, Rule 7, Rules of Court).

The dismissal for failure to comply with the requirements relative to the certificationagainst forum shopping cannot be donemotu propio. The rule requires that the dismissal be

upon motion and after hearing (Sec. 5, Rule 7, Rules of Court). However, if the acts of the party or

his counsel clearly constitute willful and deliberate forum shopping, the same shall be a ground

forsummary dismissal. Here, no hearing and motion is required. The dismissal in this case is also

with prejudice (Sec. 5, Rule 7, Rules of Court).

Where the dismissal is without prejudice, this means the action can be refiled even if it is

dismissed. When the complaint is dismissed without prejudice, the remedy of the plaintiff is not

to appeal. This is because an order dismissing an action without prejudice is not appealable. The

remedy provided for under Sec. 1 of Rule 41 is to avail of the appropriate special civil actionunder Rule 65. This provision allows a petition for certiorari (Sec. 1(g), Rule 41, Rules of Court).

8. After all those mentioned above have been considered and duly complied with,

the complaint may now be filed.

The filing of the complaint is the act of presenting the same before the clerk of court(Sec.

2, Rule 13, Rules of Court). It may be filed personally or by registered mail. (Sec. 3, Rule 13, Rules

of Court). The mailing through a private forwarding agency like Federal Express, LBC, Johnny

Air or UPS, is not allowed (Benguet Electric Cooperative vs. NLRC,209 SCRA 55).

9. The rule in this jurisdiction is that when an action is filed, the filing must beaccompanied by the payment of the requisite docket and filing fees (Ballatan vs. Court of Appeals,

304 SCRA 34). The fees must be paid because the court acquires jurisdiction over the case only

upon payment of the prescribed fees. Without payment, the complaint is not considered filed

( Manchester Development Corp. vs. Court of Appeals, 149 SCRA 562). Payment of the full amount of

the docket fee is mandatory and jurisdictional ( Ayala Land, Inc. vs. Carpo, 345 SCRA 379) This

rule was however, relaxed later by allowing the payment of the fee within a reasonable time but

not beyond the prescriptive period. (Sun Insurance Office Ltd. vs. Asuncion, 170 SCRA 274). If the

fees are not paid at the time of the filing, the court acquires jurisdiction only upon full payment

of the fees within a reasonable time as the court may grant, barring prescription (Ballatan vs.

Court of Appeals, 304 SCRA 34).

10. When the complaint is filed and the prescribed fees are paid, the action is

deemed commenced (Sec. 5, Rule 1, Rules of Court). The filing of the action is significant. First,

the filing of the complaint enables the court to acquire jurisdiction over the person of the

plaintiff even if the plaintiff is not a resident of the Philippines. Second, it interrupts the running

of the prescriptive period ( Art. 1155, Civil Code of the Philippines).

11. Normally, it is the defendant who seeks the dismissal of a complaint. May the

plaintiff also have his own complaint dismissed?

The rule allows a dismissal at the instance of the plaintiff. Sometimes after filing the

action, the plaintiff, for reasons personal to him, may have regretted having filed the complaint.

When this happens, he may dismiss his own complaint.

If the dismissal is sought before the adverse party had served an answer or a motion for

summary judgment, he may have his own complaint dismissed by the mere filing of a notice of

dismissal. Upon such notice, the court shall issue an order confirming the dismissal (Sec. 1, Rule

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17, Rules of Court). The court has no discretion on the matter. The court does not order the

dismissal. It merely confirms the dismissal because it is not really the court which dismisses the

action but the plaintiff himself.

May the plaintiff refile the case later on? He can. He can do so because such a dismissal

is, as a rule, a dismissalwithout prejudice. He cannot refile the case however, in the followinginstances: (1) If the plaintiff’s notice of dismissal states that it is with prejudice, or (2) If the

dismissed action based on or including the same claim has once been previously dismissed by

the plaintiff. The latter is often referred to as thetwo dismissal rule. 

Example: Plaintiff filed an action against Defendant in the RTC. Before Defendant

responded to the complaint, Plaintiff filed a notice dismissing the complaint. A couple of

months after, he filed another complaint based on or including the same claim as the previous

complaint dismissed earlier. He once again filed a notice dismissing the second complaint before

Defendant served his answer to the complaint.

May he refile the complaint which was already dismissed twice? He may not refile the

same. The rule is clear. He is now barred from doing so under the two dismissal rule. Under the

Rules, the second notice of dismissal operates as an adjudication upon the merits(Sec. 1, Rule

17, Rules of Court).

After service of the answer or a motion for summary judgment, the plaintiff can no

longer have his action dismissed by mere notice. The plaintiff must now file amotion for the

dismissal of his complaint. (Secs. 1-2, Rule 1, Rules of Court). The dismissal is now subject to the

approval of the court.

What is the effect of the dismissal of the complaint on the counterclaim already pleaded before the complaint was dismissed? Is the counterclaim also dismissed?

Consider the following example: Plaintiff filed a motion for the dismissal of his own

complaint. The defendant however, prior to the service upon him of the plaintiff’s motion had

pleaded a compulsory counterclaim in his answer. The court dismissed not only the complaint

 but the compulsory counterclaim as well. The court reasoned that where the complaint is

dismissed, the compulsory counterclaim becomes moot and has no more legal basis. Did the

court act correctly?

The court acted erroneously. Under the Rules, the dismissal is limited to the complaintand is without prejudice to the defendant’s prerogative to prosecute his counterclaim in a

separate action or in the same action (Sec. 2, Rule 17, Rules of Court).

Since Sec. 2 of Rule 17 makes no distinction as to the counterclaim involved, even a

compulsory counterclaim is not deemed dismissed by the dismissal of the complaint. The

defendant may then prosecute his counterclaim despite the dismissal of the complaint in a

separate action or in the same action(Pinga vs. Heirs of Santiago, 494 SCRA 393).

12. After the filing of his complaint, may the same be amended?

Instead of dismissing his complaint as explained in the immediately precedingparagraph, the plaintiff may decide to amend his complaint. Amendment of his pleading is a

matter of right as long as the said amendment is made before the other party has served a

responsive pleading (Sec. 2, Rule 10). So if the plaintiff desires to amend his complaint before the

defendant serves his answer, the amendment may be done as a matter of right and the court has

no discretion on the matter. The amendment has to be accepted. If the court refuses to accept an

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amendment made as a matter of right, the court may be compelled to do so through the special

civil action ofmandamus.

Before the service of a responsive pleading, a party has the absolute right to amend his

pleading, regardless of whether a new cause of action or change in theory is introduced

(Bautista vs. Maya-Maya Cottages, Inc., 476 SCRA 416). Note that an amendment made as a matterof right may, by the terms of Sec. 2 of Rule 10, be made onlyonce.

May the plaintiff amend his complaint as a matter of right even after a motion to dismiss

has been served?

The plaintiff may amend his complaint. This is because a motion to dismiss is not a

responsive pleading(Paeste vs. Jaurigue, 94 Phil. 179; Republic vs. Ilao, 4 SCRA 106; Remington

Industrial Sales vs. Court of Appeals, 382 SCRA 499). Hence, his right to amend his complaint is

not affected by the filing of the motion to dismiss . However, after a responsive pleading has

 been served, amendment must be made with leave of court (Sec. 3, Rule 10, Rules of Court). This

means for example, that after an answer has been served, an amendment may be done only with

leave of court.

Note that the rules on amendment apply also to the amendment of pleadings other than a

complaint. In the case of a reply to which no responsive pleading is available, the reply may be

amended as a matter of right within 10 days after it is served (Sec. 2, Rule 10).

Example: A complaint was filed. The defendant served an answer to the complaint. The

amendment is no longer a matter of right because an answer has already been served by the

defendant. The amendment would now require leave of court and the amendment has become a

matter of judicial discretion.

Be it remembered that although existing jurisprudence adopts a liberal policy on

amendments, the amendment will be denied if it is intended for delay. It may also be denied if it

would result in a change in the cause of action or defense or a change in the theory of the case,

where an amendment is no longer a matter of right.

Also, when the court has no jurisdiction over the subject matter of the action and the

amendment is for the purpose of conferring jurisdiction upon the court, the amendment shall

not be allowed. Since the court is without jurisdiction over the action, it has no jurisdiction to act

on the motion for leave to amend.Caveat:: The cases (Gaspar vs. Dorado, 15 SCRA 335; Campos

Rueda vs. Bautista, 6 SCRA 240), which prohibited amendments to a complaint for the purpose ofvesting the court with jurisdiction, involved cases where an answer to the complaint has already

 been served. Because of the answer served, the amendment must now be made subject to

 judicial discretion. Of course, common reason suggests that the court would have no jurisdiction

to allow the amendment of a complaint over which it has no jurisdiction. Thus, in one case, the

Supreme Court declared that the court not having jurisdiction over the original complaint, the

court has no power to act on the admission of the amendment complaint. (Rosario vs. Carandang,

96 Phil. 845).

Take note however, that there are decisions (Gumabay vs. Baralin, 77 SCRA 258; Soledad vs.

 Mamangun, 8 SCRA 110), which allowed such amendments when the amendment is made as amatter of right, i.e., before a responsive pleading has been served. It appears that the doctrine

that amendments cannot be made to cure lack of jurisdiction should be made to apply only to a

situation where a responsive pleading has already been served and not to a case where an

amendment is made as a matter of right (Bar 2005).

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13. What is the effect of the amendment of a pleading? An amended pleading

supersedes the pleading that it amends (Sec 8, Rule 10, Rules of Court).

If the old pleading is superseded, is a new summons required to be served upon the

defendant? Answer: Although it is well settled that an amended pleading supersedes the

original one, and is no longer considered part of the record, it does not follow that newsummons should be served. Where the defendant has already appeared before the court by

virtue of the summons in the original complaint (as when defendant had filed a motion to

dismiss or an answer), the amended complaint may be served upon him without need for

another summons even if new causes of action are alleged in the amendment. Conversely, a

defendant who has not yet appeared must be served with summons. It is not therefore, the

change of the cause of action that gives rise to the need to serve new summons(Viason

Enterprises Corporation vs. Court of Appeals, 310 SCRA 26).

14. There are times when there are issues raised in the trial which have not been

raised in the pleadings of the parties. If said issues are tried with the express or implied consentof the parties, they shall be treated in all respects as if they had been raised in pleadings (Sec. 5,

Rule 10, Rules of Court).This gives rise to a situation where the issues raised in the trial and the

evidences thereto do not conform to the issues in the pleadings of the parties. As a remedy,

existing rules allow a party to move for an amendment of the pleadings so they may conform to

the evidence.

Now, what if the pleadings are not amended to conform to the evidence? This is not a

problem at all. Since the issues have already been tried with the consent of the parties, the

failure to amend the pleadings does not affect the result of the trial of such issues(Sec. 5, Rule

10, Rules of Court).The pleadings are hence, deemed amended by implication.

What if evidence to a matter not in issue in the pleadings is offered in the course of the

proceedings and the other party objects on the ground that the evidence is irrelevant because it

pertains to a matter not in issue? May the court sustain the objection?

 It is submitted that the court may sustain the objection but it may also however, allow

the amendment of the pleadings if the presentation of the merits of the action and the ends of

substantial justice will be observed thereby. It may likewise grant a continuance to enable the

amendment to be made (Sec. 5, Rule 10, Rules of Court).

Where the complaint was filed at a time where no cause of action has yet accrued in favorof the plaintiff, may an amendment cure the defect?

The amendment cannot cure the defect. The reason for this is plain: There is no cause of

action to cure where there is none in the first place.

The curing effect of an amendment under Section 5 is applicableonly if a cause of action in

 fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential

 facts. This means that the curing effect will apply in a situation where there was in fact a cause of

action and the only problem was the insufficiency of the allegations in the complaint.

“It thus follows that a complaint whose cause of action has not yet accrued cannot be cured

or remedied by an amended or supplemental pleading alleging the existence or accrual of acause of action while the case is pending. Such an action is prematurely brought and is,

therefore, a groundless suit, which should be dismissed by the court upon proper motion

seasonably filed by the defendant. The underlying reason for this rule is that a person should

not be summoned before the public tribunals to answer for complaints which are premature

(Swagman Hotels and Travel, Inc. vs. Court of Appeals, 455 SCRA 175).

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15. Are amended pleadings the same as supplemental pleadings?

They are not. Supplemental pleadings allege facts which occur after the original pleadings

have been filed. Note that supplemental pleadings must allege facts pertaining to the original

cause of action in the complaint.

Example: P files foreclosure proceedings on a loan of D based on a promissory note

secured by a real estate mortgage. D counters by claiming damages against P. While the action

was pending, P files another foreclosure proceedings on a loan also of D based on another

promissory note secured by a real estate mortgage. The second loan was based on a different

transaction. D now seeks the admission of a supplemental pleading which he filedin the first

suit alleging additional damages as a result of the second foreclosure suit. Should the

supplemental pleading be admitted? Answer: It should not be admitted. The so-called

supplemental pleading does not relate to the cause of action of the first foreclosure suit. Here

there are different causes of action based on totally unrelated transactions.

16. When the complaint is filed and the requisite legal fees have been paid, the clerk of

court shall issue thesummons to the defendant (Sec. 1, Rule 14, Rules of Court). The service of

summons is required so the court may acquire jurisdiction over the person of the defendant (in

an actionin personam) and to comply with the requirements of due process. Another way of

acquiring jurisdiction over the person of the defendant is his voluntary appearance in the action.

Voluntary appearance shall be equivalent to service of summons (Sec. 20, Rule 14, Rules of Court).

17. Although under the Rules, the defendant is required to answer the complaint

within fifteen (15) days from service of summons (Sec. 1, Rule 11), the defendant need not

answer. If there are matters in the complaint, which are vague or ambiguous or not averred with

sufficient definiteness, he may file amotion for bill or particularsunder Rule 12. It is not

procedurally correct to file a motion to dismiss on the mere ground that the complaint or any

other pleading does not contain particulars or is ambiguous.

If the motion for bill of particulars is granted, the court shall order the submission of a

 bill of particulars. If the order is not obeyed, the court may order the striking out of the pleading

or portions thereof to which the order was directed (Secs. 4 & 5, Rule 12, Rules of Court).

18. Even when the allegations are now clear enough to enable the defendant to file

his responsive pleading because the adverse party has already submitted a bill of particulars,

the defendant need not file his answer immediately. He must first explore the possibility offiling amotion to dismissunder Rule 16. If there is no ground for a motion to dismiss, he has to

file his answer.

When a motion to dismiss is filed, all grounds available at the time the motion is filed

must be invoked in the motion. This is required under the“omnibus motion rule”. Grounds not so

invoked are deemed waived. The grounds not waived however, are lack of jurisdiction over the

subject matter, litis pendencia, res judicata and prescription (Sec. 8, Rule 15; Sec. 1, Rule 9).

When a motion to dismiss is not filed, the grounds for a motion to dismiss may be

availed of as affirmative defenses in the answer(Sec. 6, Rule 16). No defense is waived because

no motion to dismiss was filed. Note: There is a difference as to effects between filing and not

filing a motion to dismiss in relation to waiver of defenses.

19. If the defendant does not file his answer within the time required by the Rules, he

may be declared indefault under the provisions of Sec. 3 of Rule 9. If the defendant answers but

admits all the material allegations of the complaint, the answer is said not to tender an issue.

There is therefore, no issue of fact that could be the subject of a trial. In this case, the plaintiff or

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claiming party should file a motion for judgment on the pleadings (Rule 34, Rules of Court). If the

answer tenders an issue but the issue is not genuine as when the issue is one involving mere

accounting or the exact amount of damages, the remedy is a motion forsummary judgment (Rule

35).

20. If the defendant does not file an answer, he may upon proper motion, be declared indefault. Take note that it is the failure to answer within the reglementary period that supplies the

 basis for declaring the defending party in default. Hence, it is error to declare an answering

defendant in default.Remember: The courtcannot motu propio declare the defendant in default. A

motion has to be filed by the plaintiff(Sec. 3, Rule 9, Rules of Court).

What is the remedy of the party declared in default? The party declared in default may

file a motion to set aside the order of default upon proper showing that his failure to do so was

due to FAME ( fraud accident, mistake or excusable negligence). This motion must be under oath and

must be accompanied by an affidavit of merit, i.e., an affidavit that declares that the defaulting

defendant has a meritorious defense. Although not specifically mentioned in the Rules, it would be good practice to attach the answer of the defendant to the motion to set aside the order of

default.

While normally, the affidavit of merit must accompany the motion, it has been held that

this affidavit may be dispensed with if the defendant who fails to file an answer was never

served with summons. In such a case, the order declaring him in default is VOID because the

court did not acquire jurisdiction over the person of the defendant. This situation is a proper

subject ofcertiorari proceedings because of the jurisdictional issue involved (Ponio vs. IAC, 133

SCRA 577). The principles in default do not apply where the order of default is invalid because

of lack of or invalid service of summons (Laus vs. Court of Appeals, 219 SCRA 688). Also, if there

is a pending motion for extension of time to file an answer, this means that the period to file an

answer has not yet lapsed. It is therefore, improper to file a motion to declare the defendant in

default at this stage.

InDe Guia vs. De Guia, 356 SCRA 287,the requirement of an affidavit of merit was

liberally interpreted. Here, the requirement for the affidavit was deemed substantially complied

with when the answer filed contained the defenses of the defendant and the answer was verified

(under oath).

  What is the effect of the declaration of default on the rights of the party declared in

default? 

A party in default cannot participate in the trial but he is entitled to notice of subsequent

proceedings(Sec. 3(a), Rule 9). He must be also notified of the motion declaring him in default as

well as the order of default. Under Sec. 3 of Rule 9, he is entitled to notices because a default

order does not mean a waiver of all the rights of the defendant. By his default, he is not deemed

to have been completely thrown out of court.

 After the defendant is declared in default, must the plaintiff be required to present his

evidences to support his material allegations?

The matter is addressed to the discretion of the court. The court may either (1) render

 judgment on the basis of the complaint, or (2) require the plaintiff to present evidenceex parte

(Sec. 3, Rule 9).The reception of evidence may be delegated to the clerk of court.

What is the extent of the relief to be awarded in a default judgment? May the court

award P1 million where the prayer of the complaint seeks for only P500,000?

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 In default judgments, the court may not. A judgment rendered against a party declared

in default shall NOT exceed the amount or be different in kind from that prayed for. This is true

even if during the reception of evidence the plaintiff proves a higher amount of damages than

what has been alleged in the complaint. Also, unliquidated damages shall not be awarded(Sec.

3(d), Rule 9).

What are those cases where no default is allowed?

These are: (1) actions for annulment of marriage; (2) actions for legal separation, and (3)

action for declaration of nullity of marriage.

Instead of declaring the non-answering defendant in default, the court shall order the

prosecuting attorney to determine whether or not a collusion exists between parties, and if there

is none, to intervene for the State to see to it that the evidence submitted is not fabricated.

In a summary procedure, where the defendant does not file his answer to the complaint,

the remedy is not to file a motion to declare the defendant in default. This motion is prohibited

(Sec. 19(h), Rules on Summary Procedure). The remedy is to file a motion to render judgment. This

rendition of judgment may also be done by the courtmotu propio (Sec. 6, Rules on Summary

Procedure).

21. The answer contains the defenses of the defendant.

These defenses are of two kinds:negative andaffirmative defenses.

The negative defenses are stated in the form ofspecific denials. The specific denials are

described in Sec. 10 of Rule 8. There is a need to study this provision well.

 If the denial is not one of those described, the denial is deemed to be general. A general

denial is an admission. If all the material allegations of the complaint are denied by way of a

general denial, the effect is an admission of those allegations. Under Sec. 11 of Rule 8, material

allegations, (except unliquidated damages), not specifically denied are deemed admitted. Since

the allegations are deemed admitted, there is no more triable issue between the parties. The

plaintiff may now file a motion for judgment on the pleadings.

Anegative pregnant does not qualify as a specific denial because it is deemed an

admission.Example: A complaint alleges : “Plaintiff extended a loan to Defendant in the amount

of P500,000 on July 27, 2009 in Manila”. The defendant in his answer alleges: “Defendantspecifically denies that Plaintiff extended a loan to Defendant in the amount of P500,000 on July

27, 2009 in Manila”. The answer is a mere repetition of the allegations made in the complaint.

The answer is vague as to what it really denies. Is it the existence of a loan that is denied? Is it

the amount? The date? The place? The effect of this kind of denial is an admission.

One type of a specific denial is where the defendant alleges that he “Is without knowledge

or information sufficient to form a belief as to the truth of a material averment made in the complaint”.

This type of specific denial must be made sincerely and in good faith.

Example: Mr. D actually signs a promissory note in favor of Mr. P. Because Mr. D failedto pay despite demand, suit was brought against him. The complaint duly pleaded the

promissory note as an actionable document. Mr. D denies the alleged promissory note by

averring lack of knowledge of the note. This averment is clearly one in bad faith and shall be

considered as an admission because it is absurd for Mr. D not to know of the promissory note he

himself actually signed.

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22. What is an actionable document?

An actionable document is one which is the basis of either aclaim or adefense 

If a complaint was filed based on a promissory note the promissory note is the basis of

the action and is the actionable document.

An actionable document must be properly pleaded. How then would the promissory

note be alleged in the complaint?

It must be done in the following manner: The substance of this promissory note shall be

set forth or stated in the pleading AND the original or copy thereof shall be attached to the

pleading as an exhibit. When attached as an exhibit the promissory note shall be deemed a part

of the pleading. The copy of the document may also with like effect be set forth in the pleading

(Sec. 7, Rule 8, Rules of Court).

Now, what shall the adverse party do if he desires to contest the document?

The adverse party has to do two things: (a) specifically deny the document, set forth

what he claims to be the facts, and (b) deny the document under oath. Without an oath, he is

deemed to have admitted the genuineness anddue execution of the promissory note. Because of

this admission, he can no longer deny that the note was forged or that he had no authority to

execute the instrument. These defenses are barred by the admission.

May he however, still defend by showing that the note was executed by fraud, or that the

note has prescribed or was already paid?

Yes, he can. These defenses are not barred by the admission.

A denial under oath is not required in certain cases as (a) when the adverse party does

not appear to be a party to the instrument, or (b) when the order to allow the inspection of the

original document is refused (Sec. 8, Rule 8). In any of these instances, a mere specific denial is

sufficient.

23. What is a judgment on the pleadings?

A judgment on the pleadings is proper where the answer of the defendant fails totender

an issue, or otherwise admits the material allegations of the other party’s pleadings. Actually noissue is tendered when the defendant admits the material allegations of the complaint.

This admission arises when (1) there is an actual admission of the allegations, or (2) the

defendant makes a general denial instead of a specific denial.

Note: Judgment on the pleadings is not proper in the following actions: (1) declaration of

nullity; (2) annulment of marriage; or (3) legal separation. In these case, the material facts

alleged in the complaint shall always be proved (Rule 34, Rules of Court).

24. If the defendant has a claim against the plaintiff, he incorporates in his answer a

pleading called acounterclaim. This is a pleading, which a defending party files against theopposing party (Sec. 6, Rule 6, Rules of Court). It is therefore, a claim by the defendant against the

plaintiff. In a counterclaim, the original defendant becomes the plaintiff, and the original

plaintiff, the defendant. A counterclaim may either becompulsory or permissive. Remember that

a compulsory counterclaim will be barred if not invoked or set up in the same action (Sec. 2,

Rule 9). It does not require a certification on non-forum shopping and does not have to be

answered by the plaintiff because it is not an initiatory pleading unlike a permissive

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counterclaim which requires a certification against forum shopping, payment of the docket fees

and must be answered by the plaintiff. If no answer is served on the permissive counterclaim,

the plaintiff may be declared in default upon motion, for failure to serve an answer to the

permissive counterclaim.

If there are two or more defendants, one defendant may file a claim against a co-defendant. This is done through a pleading called across-claim (Sec. 8, Rule 9). A cross-claim not

set up in the same action shall be barred (Sec. 2, Rule 9).

If the defendant wants to bring in a person who is not yet a party to the suit, he may do

so with leave of court and file athird-party complaint (Sec. 13, Rule 6). No leave of court is

required to file a counterclaim or a cross-claim.

The plaintiff may wish to answer the defendant’s answer. This answer is a pleading

calledreply (Sec. 10, Rule 6).A reply is not mandatory. Even if no reply is filed, the allegations of

the answer are anyway deemed controverted or denied. The rules actually make the denial for

the plaintiff. A reply is advised if the answer uses an actionable document as a defense and theplaintiff wants to deny the genuineness and due execution of the document. In this case the

reply must be under oath.

Sometimes, someone who is not a party to the action feels and believes that he has a

legal interest in the matter in litigation, or in the success of either of the parties, or an interest

against both. In this case, he may, with leave of court, join the action and he may do so by filing

a pleading inintervention. It is important to remember that one must however, intervene before

the trial court renders judgment and not after the judgment (Rule 19, Rules of Court).

- Mr. P sues Mr. D for a sum of money. Mr. D also claims that he incurred expenses to

defend himself as a result of the unjustified complaint of Mr. P. The claim of Mr. D is a

counterclaim. Since this counterclaim arises from the complaint, it is called acompulsory

counterclaim. This counterclaim must be set up in the same action. If not set up, it will be forever

 barred.

- Plaintiff filed an action to recover ownership and possession of a land occupied by

defendant. Judgment was rendered against defendant. Later, defendant filed an action to

recover the cost of the improvements he introduced in the land. This claim shall be barred. This

claim should have been set up as a counterclaim in the action filed by plaintiff. It is now barred

 because the counterclaim is compulsory (Baclayon vs. Court of Appeals, 182 SCRA 761).

- Plaintiff filed an action for a sum of money against defendant. The latter claims that

plaintiff is liable to him for damages arising from a quasi-delict, which occurred prior to the

filing of the action. The claim of defendant is a permissive counterclaim. It has no connection to

the subject matter of the complaint. It is not barred even if not set up in the action because it

could be the subject of an independent action.

- Plaintiff, lessee filed an action for specific performance against lessor in the RTC so the

latter would comply with certain obligations in the lease contract. Lessor filed a counterclaim for

unlawful detainer on the ground of expiration of the lease. Is this a compulsory counterclaim?

It is not. A compulsory counterclaim must be within the jurisdiction of the court both asto amount and nature. The counterclaim is within the jurisdiction of the MTC, which has

 jurisdiction over cases of unlawful detainer. An unlawful detainer case must be independently

filed in the MTC and not by way of counterclaim in a case. Also, if the counterclaim is a labor

claim, it cannot be cognizable by a regular court. In this case, the counterclaim, even if with a

subject matter related to that of the complaint, is still permissive.

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Note: A permissive counterclaim must be answered, otherwise the plaintiff may be

declared in default as to the permissive counterclaim. A docket fee must also be paid. And a

certification against forum shopping must be attached to the counterclaim.

 - A depositor sued the bank and its cashier for money deposited with the bank. The

 bank alleges it never received the money from the cashier. What should the bank do?

The bank should file across-claim against the cashier.

-Plaintiff sues the judgment creditor and the Sheriff for selling plaintiff’s property. What

may the sheriff do? The Sheriff may file across-claim against the judgment creditor.

- P sues D, and S, the surety of D. Against whom may S, the surety have recourse?

Against D. S may then file across-claim against D.

- P sues D on a promissory note. D lent the money he borrowed to T. What may D do?

D may file athird-party complaint against T for contribution.

- S sells a car to B. Later O sues B to recover the car because he is the true owner of the

same. B may file a third-party complaint against S to enforce the warranty against eviction.

- P, whose store was burned filed a claim against the insurance company. The insurance

company refused to pay and defended by claiming that the loss was due to the willful act of P.

The insurance company then filed a third-party complaint against the re-insurance company for

indemnity. May the re-insurer assert as a defense that the plaintiff, P, caused the loss?

It can. A third party defendant under Sec. 13 of Rule 6 may allege in his answer defenses,which the third-party plaintiff may have against the original plaintiff. Note: The third-party

defendant may not however, ordinarily file a counterclaim against the original plaintiff, P for

lack of privity UNLESS the counterclaim is shown to be in respect to the original plaintiff’s

claim against the third-party plaintiff.

- Debtor and surety signed a promissory note jointly and severally. If a complaint is filed

 by the creditor against the surety alone, how may the latter claim against the debtor? By filing a

third-party complaintagainst the debtor. Note: If both were sued as defendants, the proper

pleading would be across-claim.

- P sues D for damages arising out of a vehicular accident. D claims that it was T whowas the proximate cause of the mishap. D may file a third-party complaint against T for

subrogation.

 - Creditor files an action against Debtor No. 1 alone who together with Debtor No. 2

signed a note as solidary debtors. Debtor No. 1 may file a third-party complaint against Debtor

No. 2 for contribution. Note: In a solidary obligation, the plaintiff need not implead the other

debtor because anyone among the debtors may be required to pay the entire debt. The other

debtor is neither an indispensable party nor a necessary party as far as the creditor is concerned.

- P sues D for recovery of a parcel of land. D acquired the land from E who in turn

acquired it from F. May D file a third-party complaint against F? No. There is no privity between

D and F. D should file athird-party complaint against E and E should file a fourth-party complaint

against F.

Note: The filing of a third-party complaint requiresleave of court. Also, a third-party

complaint seeks affirmative relief. No such relief is sought for in a petition for declaratory relief,

which merely seeks a declaration of one’s legal rights and duties under a statute, executive

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ordinance, or governmental regulation. However, in one case, it was held that a counterclaim

may be filed in a petition for declaratory relief(Visayas Packing vs. Reparations Commission 155

SCRA 542). 

- P sells five trucks to XYX Partnership. Before he was paid the purchase price, the

partnership was dissolved. In a suit involving the judicial winding up of the partnership assets,what may P, a non-party do to protect his interest? P may file a pleading in intervention.

- Creditor sues S, the surety of D in a monetary obligation. May D, the principal debtor

intervene?

He may. A judgment against S will prejudice D because S will have to sue D for

reimbursement.

- A and B are locked in a civil dispute over a parcel of land. C claims the land as his but

he is not a party to the action. What may C do? He should file a pleading inintervention. Note:

Intervention must be with leave of court, hence, a motion for leave to intervene must be filed. Itis not an independent action, but is attached only to the existing litigation.

The intervention must be done before the rendition of judgment(Sec. 2, Rule 19, Rules of

Court).

25. Areply is the last possible pleading that could be filed in the action. It is the

responsive pleading to an answer. You do not file a reply to a counterclaim or cross-claim. What

you do is to file an answer, not a reply. A reply is not mandatory if your purpose is to deny the

new matters alleged in the answer. Even if not filed, the allegations of new matters by the

defendant in his answer are deemed controverted or denied anyway(Sec. 10, Rule 6, Rules of

Court).The failure to file a reply will not result into an admission of the material allegations ofthe answer (because said allegations are deemed denied) but the failure to file an answer to the

complaint will involve an implied admission of the material allegations of the complaint.

A reply must however, be filed if the defendant’s defense is based on a document duly

pleaded. The reply should be filed because if such document, which forms the basis of the

defendant’s defense, is not specifically denied under oath, its genuineness and due execution

shall be deemed admitted. To avoid this admission the reply must contain a specific denial.

Further, the reply must be under oath (Toribio vs. Bidin, 134 SCRA 162).

An old case held that if the defendant’s answer alleges the defense of usury, a reply

under oath must be made. If not, the allegation of usury will be deemed admitted (Sun Bros. vs.

Caluntad, 16 SCRA 895). It is submitted that the phraseology of the present rule on the matter

has made the applicability of theSun Bros.case suspect. Under Sec. 11 of Rule 8 what needs to

 be specifically denied under oath is an allegation of usury in acomplaintto recover usurious

interest and not a defense of usury in the answer.

26. After the last pleading has been served and filed, it shall be the duty of the

plaintiff to promptly move that the case be set for pre-trial. The motion is anex parte motion.

Because it is anex parte motion, notice need not be served on the defendant. Remember that the

filing of the motion to set the case for pre-trial is the duty of the plaintiff. It is not the duty of the

defendant. Remember too that to move for a pre-trial before the last pleading has been filed ispremature. Thus, when there is an unresolved motion to dismiss or a motion for bill of

particulars, or when no answer has yet been filed, a pre-trial conference is premature (Rule 18,

Rules of Court).

The plaintiff must appear in the pre-trial (Sec. 4, Rule 18, Rules of Court). What is the

consequence of the non-appearance of the plaintiff?

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Unless excused, or when a representative appears in his behalf duly authorized in

accordance with the Rules, the failure to appear by the plaintiff shall be a cause for dismissal of

the action. Under the previous Rules, the plaintiff who fails to appear is declarednon-suited. This

term no longer appears in the Rules.

 Mr. Plaintiff did not appear in the pre-trial without a valid excuse and the action isdismissed. He wants to know from you if he can refile the case. What would your advice be?

I would advise him that he cannot refile the case. This is the general rule. The dismissal

as a rule is a dismissalwith prejudice. The only way the plaintiff can refile the case is when the

order of dismissal itself declares that the dismissal is without prejudice (Sec. 5, Rule 18).

 If the dismissal is with prejudice and the plaintiff can no longer refile the case, what

remedy is left to the plaintiff?

He can appeal from the order of dismissal. Why? The remedy is appeal from the order of

dismissal because the dismissal for failure to appeal in a pre-trial hearing beingwith prejudice, isan adjudication on the merits. It is final in character and not a mere interlocutory order (Sec. 5,

Rule 18, Rules of Court).

 The plaintiff appeared in the pre-trial. The defendant did not. What may the court do?

The court may order that the plaintiff be allowed to present his evidenceex parte and

render judgment on the basis thereof. In the previous Rules, the defendant in this case was

declared asin default. The words, ‘as in default’, no longer appear in the present Rules.

Note that the rules require the parties to file their pre-trial briefs and serve the same on

each other at least three (3) days before the pre-trial. Suppose the plaintiff failed to file therequired brief and the court dismissed the action, did the court act correctly?

It did. The failure to file the pre-trial brief has the same effect as the failure to appear at

the pre-trial. The remedy of the plaintiff is to file a motion for reconsideration showing that his

failure to file a pre-trial brief was due to fraud, accident, mistake, or excusable neglect (Saguid

vs. Court of Appeals, 403 SCRA 678).

During the pre-trial conference, the defendant manifested that he has no interest in any

form of amicable settlement. The case was set for a second pre-trial conference. Notice was duly

sent. Defendant did not appear. The court issued an order allowing the plaintiff to present his

evidenceex parte because of the defendant’s failure to appear. Did the court act correctly? It didnot. Once a party manifests his opposition to an amicable settlement, said party may no longer

 be compelled to attend another pre-trial conference (Pioneer Service vs. Hontanosas, 78 SCRA 448;

Insurance Company of North America vs. Republic, 21 SCRA 887).

27. Before the trial, any party may avail of any of themodes of discoveryfrom Rules 23-

29. Note that the modes of discovery also applies to a criminal case. Example: A party may move

for the production and inspection of documents or things (Rule 27) or move for a physical or

mental examination of persons (Rule 28).

The rules of discovery are cumulative, not alternative. The fact that a party has resorted

to a particular method of discovery will not bar him from using other methods (Fortune Corp. vs.

Court of Appeals, 299 SCRA 376).

Note that while the rule requires that only ‘ultimate facts’ must be alleged in a pleading,

the modes of discovery may inquire into ‘evidentiary facts’. Let us suppose that a motion for bill

of particulars filed by the defendant was denied. May he avail of the modes of discovery even if

the matters desired in the denied motion are the same matters sought to be discovered? He may.

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A bill of particulars is for the purpose of clarifying the allegations of the adverse party’s

pleading. Yet the bill of particulars would refer only to ultimate facts since evidentiary facts are

not proper in a pleading. On the other hand, the modes of discovery could elicit evidentiary

facts on the matters subject of the prior motion for bill of particulars.

What may be the uses of a deposition?

A deposition may be used to impeach or contradict the testimony of the deponent. If the

deponent is an adverse party, his disposition may be used not only to impeach him but also to

show admissions on his part.

Plaintiff takes the depositions of X. There was no proof that he would not be available

during the trial.

(a)May his deposition be taken?

It may be taken. His inability to attend the trial does not preclude the taking of his

deposition. Such matter is not a requirement for the taking of a person’s deposition.

 (b) By taking the deposition of X, does X now become the witness of the plaintiff?

He does not. A party shall not be deemed to make a person his own witness for any

purpose by taking his deposition. (Sec. 7, Rule 23).

The plaintiff served upon the defendant a writtenrequest for admission of the genuineness

of several documents as well as relevant and material facts. The defendant ignored the request.

What is the effect?

Each of the matters of which an admission is requested shall be deemed admitted (Sec.2, Rule 26, Rules of Court). The admission however, shall apply only to the pending action and

shall not constitute an admission in any other proceeding or for any other purpose(Sec. 3, Rule

26).

A party is also required to serve upon the adverse party written interrogatories. What is

the consequence for failure to do so.?

A party not served with written interrogatories may not be compelled by the adverse

party to give testimony in open court, or to give a deposition pending appeal (Sec. 6, Rule 25,

Rules of Court). If a party served with written interrogatories does not serve an answer to the

interrogatories, the court on motion and notice may strike out the pleading of that party or a

part of it, dismiss the proceeding or enter a judgment by default against that party, even if he is

the plaintiff because the rule does not distinguish as to the kind of party(Sec. 5, Rule 29).

28. What is the effect of failure to file and serve request for admission?

Unless otherwise allowed by the court for good cause shown and to prevent a failure of

 justice, a party who fails to file and serve a request for admission on the adverse party of

material and relevant facts at issue which are, or ought to be, within the personal knowledge of

the latter, shall not be permitted to present evidence on such facts(Sec. 5, Rule 26, Rules of Court).

29. After trial (Rule 30), the court shall now render a judgment. A losing party may

avail of certain remedies for the protection of his rights. These remedies are:

(a)Before the finality of the judgment, a party may avail of (1) a motion for reconsideration

(Rule 37); (2) a motion for new trial (Rule 37); or (3) an appeal (Rules 40-45).

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The appeal may be (i) an ordinary appeal under Rules 40-41; (ii) a petition for review under

Rule 42; (iii) a petition for review under Rule 43; or (iv) a petition for review on certiorari under

Rule 45.

  (b) After the finality of the judgment, a party may avail of (1) a petition for relief (Rule 38); (2) an

annulment of judgment (Rule 47); or (3) a petition for certiorari (Rule 65). Note: The availabilityof these remedies means that a party still has remedies even if the judgment is already final and

executory.

CAUSE OF ACTION

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

(Sec. 2, Rule 2, Rules of Court; Monzon vs. Spouses Relova vs. Addio Properties, Inc., G.R. No. 171827,

September 17, 2008).

A cause of action requires the following elements: (a) a right of the plaintiff; (b) anobligation on the part of the defendant to respect or not to violate such right; (c) an act on the

part of the defendant violating the right of the plaintiff (Philippine National Construction

Corporation vs. Court of Appeals, 514 SCRA 569).

2. In determining the existence of a cause of action, only the statements in the complaint

may be properly considered. It is error for the court to take cognizance of external facts or to

hold preliminary hearings to determine its existence (Diaz vs. Diaz, 331 SCRA 302, 316 [2000]).

The failure to state a cause of action must appear on the face of the complaint and its existence

may be determined only by the allegations of the complaint, consideration of other facts being

proscribed and any attempt to prove extraneous circumstances not being allowed (Viewmaster

Construction Corporation vs. Roxas, 335 SCRA 540). Note however, that the annexes to the

complaint may be considered in determining whether or not a complaint states a cause of action

 because such annexes are considered parts of the complaint (Sea-Land Service, Inc. vs. Court of

 Appeals, 327 SCRA 135).

P sues D on aculpa aquiliana theory. D moves to dismiss on the ground that the

complaint fails to state a cause of action. In the hearing of the motion, the court required the

plaintiff to present evidence on his claims to determine whether or not the complaint states a

cause of action. Is the court correct?

The court is not correct. The allegations of the complaint will tell whether or not thecomplaint states a cause of action. Failure to state a cause of action does not mean that the

plaintiff has “no cause of action”. It only means that the plaintiff’s allegations are insufficient for

the court to know that there was a violation of his rights by the defendant. Thus, even if indeed

the plaintiff’s right was violated, if the same is not set forth in the complaint, the pleading fails

to state a cause of action even if there really is a cause of action.

3. Under Rule 16, the ground for dismissal in relation to a cause of action is NOT

“lack of a cause of action” or “no cause of action”. The ground is that “the pleading asserting

the claim STATES NO CAUSE OF ACTION (Sec. 1(g), Rule 16; San Lorenzo Village Association, Inc.

vs. Court of Appeals, 288 SCRA 115).

InEnojas vs. COMELEC, 283 SCRA 229), the Court held that the ground for dismissal

 based on the fact that the pleading asserting the claimsstates no cause of action is different from

the ground that the case of the claimant should be dismissed forlack of a cause of action. The first

is raised in a motion to dismiss under Rule 16 before a responsive pleading is filed and can be

determined only from the allegations of the pleading and not from evidentiary matters. The

second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case

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and can be resolved only on the basis of the evidence he has presented in support of his claim

(See also Dabuco vs. Court of Appeals, 322 SCRA 853).

4. The examinee needs to master the kinds of actions specially the distinction

 between a real and a personal action and the distinction among an action in personam, quasi in

remorin rem. 

An actionin personam is directed to a particular defendant to make him liable, to require

him to perform a particular act or to require him to refrain from a particular act. An action for

injunction, specific performance, unlawful detainer, forcible entry, an action for a sum of money

or for damages are examples ofin personam. A probate proceeding, cadastral or land registration

proceeding, an action for annulment of marriage, or an action for a declaration of nullity of

marriage arein rem actions. An action for foreclosure of real estate mortgage, partition, or

attachment proceedings are in the nature ofquasi in remproceedings.

Note: Thenature of the action is not dependent upon the name given by the pleader. It is

dependent upon the allegations of the complaint.

Thus, where the allegations of the complaint state that the actual transaction between the

parties was not a sale but an equitable mortgage, the trial court correctly resolved the matter in

issue even if the action was erroneously labeled as an action for reformation (Lorbes vs. Court of

 Appeals, 351 SCRA 716).

PERSONAL/REAL ACTIONS AND VENUE

1. The distinction between a real action and a personal action is important for the

purpose of determining the VENUE of the action.

2. A personal action is ‘transitory’,i.e., venue depends upon the residence of the

plaintiff or the defendant at the option of the plaintiff. A real action is ‘local’,i.e., venue depends

upon the location of the property involved in the litigation. An action is real when it is founded

upon the privity of real estate. That means that realty is the subject matter of the action.

3. It must be remembered that not every action involving a real property is a real

action because the realty may only be incidenta