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REMEDIAL LAW REVIEW 2007

INTRODUCTION TOREMEDIAL LAW REVIEW

Jurisdiction is the sun around which the remedial system revolves. Master the issue in jurisdiction, you have already complied with 50% of remedial law.

In answering the exams, you have to determine:1. What rule applies?2. If there be no applicable rule, determine the jurisprudence to which it is related;3. If the two abovementioned are not applicable, solve the problem under the principle

of jurisdiction

Basis of Jurisdiction:1. The Constitution, particularly section 5 of Article 6;2. BP 129 as amended by RA 7691;3. RA 83694. RA 7639- Sandiganbayan- constitutionally mandated court

What is Jurisdiction?It is the authority to hear and decide a case

***There must be actual controversy before any court or tribunal can exercise thatauthority.

Distinguished from Exercise of JurisdictionIt is the effect of that authority. These are decisions, judgments, orders and resolutions.

Jurisdiction is conferred by law. It is the law that gives authority

Kinds of Jurisdiction:1. Over the subject matter 2. Over the person or property3. Over the res4. Over the issue

In criminal cases, there is what you call territorial jurisdiction. Venue here isJurisdictional. In civil cases, venue is different from jurisdiction

Not capable or pecuniary estimation, jurisdiction is with the RTC

Jurisdiction over the subject matter7691 (actions involving title to or possession of real property). If the claim is more that P400,000.00 in Metro Manila; or more thanP300,000.00 outside Metro Manila

Jurisdiction over person/ parties:

1. Plaintiff;2. Defendant.Exception: Special Proceedings, one may oppose but he does not become adefendantException to the Exception: In cases of Habeas Corpus proceedings

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ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTEMENDOZA and SARAH JANE CASAUAYUNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.


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How does the court acquire jurisdiction over the:1. Plaintiff?

Upon filing of the complaint. But jurisprudence dictates the mere filing of the

complaint is not sufficient, payment of the correct docket fees is required (Check Alday vs FGU Insurance).

2. Defendant?a. Valid service of summons;b. Voluntary appearance. When the defendant voluntary submitted himself to the

jurisdiction of the court.

Rule 14 provides for the Summons to be served to the defendant. The defendant maybe a prisoner, incompetent, insane or a corporation. (Check the Millennium case)

In Criminal cases, jurisdiction over the accused is acquired through:

1. Lawful arrest; or 2. Voluntary Surrender

In cases of third/ fourth/ fifth party defendant, court acquires jurisdiction over them through:1. Valid service of Summons;2. Voluntary Appearance

In cases of an Intervenor , court acquires jurisdiction over them upon approval or granting of the motion to intervene .

Jurisdiction over the res is used only in certain occasions such as when the jurisdiction over the person of the defendant is not acquired.

Res means facts of the case or status of a person.

Example:1. Annulment of Marriage- case may proceed.

Extraterritorial service of summons under Section 14, 15 and 16 of Rule 14.2. Actions involving property, may proceed provided court acquire jurisdiction over the

real or personal propertya. An action for a sum of money. The defendant cannot be summoned nor

voluntarily appear. Apply Rule 57- attachment or property to acquire jurisdiction over the res. The plaintiff can only execute the res. Pag kulang,thats it because he did not acquire jurisdiction over the person of thedefendant.

b. If jurisdiction over the person of the defendant is already acquired, res nolonger necessary

Jurisdiction over the issue Acquired through the allegations in the pleadingExample:1. Unlawful detainer/ Forcible entry. The issue here is possession de facto and not

ownership or when the issue of ownership is raised in the pleadings, ownership mustbe solved first to resolve possession.2. Action for sum of money- no demand letter- defendant may dismiss the case

Jurisdiction over the subject matter:Conferred by law- BP 129

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Exercise of Jurisdiction1. Original- for the first time to take cognizance of the case

a. Exclusive- lies particularly with this court and no other courtb. Concurrent- authority is shared by several courts. Eg. Certiorari, prohibition

and mandamus2. Appellate

a. Exclusive; andb. Concurrent

Principle of Jurisdiction:1. Judicial Hierarchy;2. The Supreme Court is not a trier of facts;3. Supreme Court may take cognizance for the first time of cases involving issues of

transcendental importance. Example: Rule 45 appeal by certiorari- must be broughton pure question of law but in the case of Francisco vs House of Representative,that was not the case (Impeachment case of Davide)

Delegated JurisdictionJurisdiction of an inferior court taking cognizance of cadastral and land registrationcases where the value of the property is not more than P100,000.00 and there is noopposition thereto.

Possible BAR QUESTION: San ang appeal nito?General rule is that decisions made by the inferior courts must be appealed to the RTC.

Exception to this rule is the Delegated jurisdiction, appeal in these cases is in theCA .

Special JurisdictionExercised by inferior court in taking cognizance for petition for bail or habeas corpus inthe absence of RTC judges, NOT in the absence of RTC courts.

Limited JurisdictionEg. Settlement of estate. Through a probate court only. Probate is concerned only withthe extrinsic validity of a will.+ Unlwaful detainer, forcible entry

Residual JurisdictionJurisdiction of a court in spite of losing its jurisdiction because of the perfection of anappeal still retains it for purposes of preserving the rights of the parties.

Section 9 Rule 41- Perfection of an appeal- When perfected?Notice of appealRecord on appeal- upon approvalUpon perfection of appeal, the court loses jurisdiction over the subject matter, and mayfile a motion for execution. Saan file? Sa trial court, still exercises residual jurisdiction.

Regular courts:1. Supreme Court2. Court of Appeals3. Regional Trial courts4. Inferior courts5. Sandiganbayan

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Quasi Court:1. Civil Service Commission2. Commission on Election

3. Commission on Audit

Quasi Judicial Agencies All other agencies that exercises judicial or quasi judicial function. Rule 43 provides thatthe Court of Tax Appeals and other quasi judicial bodies, but that is already amended.CTA is already elevated to the level of the CA. Remove that already from Rule 43.Delete the CTA there.

Just remember these five (5): [CONSTITUTIONALLY MANDATED COURTS]1. Court of Appeals2. Sandiganbayan

3. Commission on Election4. Commission on Audit5. Court of Tax Appeals

All other quasi judicial bodies, appeal to the CA, except these five

Securities and Regulation Code, paragraph 5.2 . originally cognizable by the SRCtransferred now to the RTC but pursuant to SC Circular, integrated to the CommercialCourts or RTC.

NB: No more special criminal courts, the only special courts are commercial and

family courts.

Sharia Courts- Muslim1. Sharia Appellate CourtCA2. Sharia District Court---RTC3. Sharia Country Courts---Inferior Courts

***Check RA 7691

Q: What is the distinguishing feature, doctrinal wise, in the cases of Duero vs CA asdistinguish in the doctrine laid down in Roxas vs CA? Are they conflicting?

A: Both of them are about issues of jurisdiction but in one case, the Supreme Courtupheld the decision of the lower court, in another one it denied. Remember that theleading case in this regard is the famous case of Tijam vs Sibonghanoy. We are beingtaught here about the proper application of estoppel. The two cases are notcontradicting, in the Duero case, the participation is that there is no jurisdiction but in theRoxas case the participation is to ask a favor and when he failed to obtain the same, heraised the fact of jurisdiction, here there is estoppel.

Q: What are the remedies of the defendant upon judgment?A: Appeal in Rule 40, 41, 42 and 45.

What are the grounds for new trial/ motion for reconsideration????

Know the timepost of the remedy!1. When a complaint is filed, what is the first remedy of the defendants?

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a. Motion to dismiss under Rule 16b. Dismissal of Action

i. Dismissal by notice (section 1)ii. Dismissal by motion (section 2)

c. Summary Judgmenti. As to defendant- counterclaimii. As to plaintiff- ask for judgment on the pleadings

d. Upon resting of the prosecution, the defendant may ask for demurrer toevidence under Rule 30

2. From the Judgmenta. New trialb. Motion for reconsiderationc. Ask for relief from judgmentd. Appeal under Rule 40, 41, 42 and 45.

3. If you lose in the appeal, your final remedy is annulment of judgment

Knowing the sign post of remedy, the first question you are going to answer is In whatstage of the proceeding is this problem?

If the stage of the proceeding is after presentation of evidence, you already know whatis your remedy. After presentation of evidence of the plaintiff, defendant can filedemurrer to evidence. But even before answer is filed, your remedy is motion to dismissfor any ground enumerated in section 1 Rule 16

In reading the cases, youll get to know what stage you are now so youll not get lost inthe analysis. Before you go to the decision of the Supreme Court, go first at the court a

quo, what happened there.

NB: The basis for declaration of default is only one, that is failure to file an answer, if your book still states as in default that is no longer correct, wala nayung as in default. There is only now Default.

General Rule is that jurisdiction may be raised at any time, even first time on appeal.Jurisdiction over the subject matter is conferred by law. The law that conferred theJurisdiction of the Supreme Court is the Constitution. I ask you to memorize section 5 of

Article 8 of the 1987 Constitution.Jurisdiction of the Supreme Court:

The law that confers jurisdiction upon the SC is the Constitution under Sec. 5, Art. VIII.Sec. 5. The Supreme Court shall have the ff. powers:1. Exercise original jurisdiction over cases affecting ambassadors, other public

ministers and consuls, and over petitions for certiorari , prohibition ,mandamus, quo warranto, and habeas corpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty,international or executive agreement, law, presidential decree,proclamation, order, instruction, ordinance, or regulation is in question.

b. All cases involving the legality of any tax, impost, assessment, or toll,

or any penalty imposed in relation thereto.c. All cases in which the jurisdiction of any lower court is in issue.(d) All criminal cases in which the penalty imposed is reclusion perpetua(or higher). ( Note: the or higher clause no longer applies because thereis no more death penalty.)a. All cases in which only an error or question of law is involved.

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Note: The jurisdiction of the SC can either be exclusive original or appellate.

Q: Over what actions does the SC have original exclusive jurisdiction?

A: The SC has exclusive original jurisdiction over the ff:Petitions for certiorari, prohibition, and mandamus against:1. Commission on Audit (COA)2. Commission on Elections (COMELEC)3. Court of Appeals (CA)4. Sandiganbayan5. Court of Tax Appeals (CTA)

Concurrent jurisdiction?Notes: A petition for certiorari, prohibition, and mandamus is not always under theoriginal exclusive jurisdiction of the SC except when the respondent thereto is any of

the above-mentioned 5 bodies because these bodies are next to the SC in rank. BUTwhen you speak of petitions for certiorari, prohibition, and mandamus against the RTC,it is not exclusive, rather it is concurrent with the CA.

A petition for habeas corpus and quo warranto is not exclusive in the SC but isconcurrent with the RTC and CA.

Just remember these 5 bodies; All the rest are outside the original exclusive jurisdictionof the SC in petitions for certiorari, prohibition, and mandamus.

Nevermind petitions for quo warranto and habeas corpus because you never file a

petition for quo warranto against these bodies because what is quo warranto?Usurpation of powerwhy would you file it against the CA?...and the same thing withhabeas corpusso, it cannot be exclusive, but always concurrent.

Just remember CA, CTA, COA, COMELEC and Sandiganbayan, all the rest isoutside the original and exclusive jurisdiction of the Supreme Court if it ispetition for certiorari, prohibition and mandamus. But not quo warranto andhabeas corpus because you do not file this petition with these bodies.

Q: What is quo warranto?A: It is usurpation of powers, why will you file it with the CA and petition for habeas

corpus. This cannot be exclusive but always concurrent.

In the application of concurrent jurisdiction, always remember the three (3)principles:

1. Hierarchy of Courts;2. Supreme Court is not a trier of facts; and3. Transcendental Importance

Even if it is in its concurrent jurisdiction, it does not mean that the party has an absoluteright to file it with the Supreme Court or Court of Appeals, he has to consider the threeabovementioned principle.

Supreme Court Appellate Jurisdiction: (b) section 5 Article 8NB: Reclusion Perpetua or Higher; wala na higher sa reclusion perpetua

1. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

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(a) All cases in which the constitutionality or validity of any treaty,international or executive agreement, law, presidential decree, proclamation,order, instruction, ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or

toll, or any penalty imposed in relation thereto.(c) cases in which the jurisdiction of any lower court is in issue.(d) criminal cases in which the penalty imposed is reclusion perpetua

or higher. ( Note: the or higher clause no longer applies because there isno more death penalty.)

(e) cases in which only an error or question of law is involved.

The term Review, Reverse, Revise, Modify or Affirm must be defined separately anddistinctly:1. Review - what does review consist of? It consist of Reverse, Revise, Modify or

Affirm. The term review is a catch all provision. Review means to take cognizance of

the decision but does not cover resolution of the lower body. Review means to lookinto.

2. Reverse - overturn a favorable judgment to an unfavorable one or vice versa3. Revise - revision, not a simple amendment4. Modify - modification or amendment5. Affirm - accept the decision of the lower body

The first paragraph of section a paragraph 5 is exclusive original jurisdiction of theSupreme Court. Paragraph b refers to its appellate jurisdiction. So this power to Review,Reverse, Revise, Modify and Affirm is within the appellate powers of the jurisdiction of the Supreme Court.

Q: What does the phrase review, revise, reverse, modify, or affirm on appeal or certiorari under Sec. 5, Art. VIII, Constitution mean? To what kind of appeal is itreferring to?A: The word appeal is by ordinary appeal. The word certiorari is appeal bycertiorari as a mode of appeal under Rule 45 because when you speak of review,revise, reverse, modify, or affirm it is in the exercise of appellate jurisdiction of the SC; itmust have come from a lower court and not an original action under Rule 65 which is aspecial civil action and not a mode of appeal. Do not be confused.

Q: What are the modes of appeal under Rule 41 section 2?

1. Ordinary Appeal;2. Petition for review; and3. Appeal by certiorari (Rule 45)

But the kind of certiorari mentioned is a mode of appeal because precisely when youspeak of to Review, Reverse, Revise, Modify and Affirm, it is the exercise of appellate

jurisdiction.

Q: So how could it be an original action when it is certiorari?A: Do not be confused, certiorari there refers to Rule 65 because Rule 65 is a specialcivil action, it is not a mode of appeal.

Q: What is a mode of Appeal by certiorari?A: Rule 45. So the statement there on appealordinary appeal or certiorari---appeal bycertiorari---it cannot be a special civil action because it is appellate jurisdiction of theSupreme Court.

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You do not go to the Supreme Court by ordinary appeal, well we are talking of civilaction. In criminal action there is notice by appeal to the Supreme Court. Since there isno more automatic appeal because of the removal of the death penalty, but it does notmean you can no longer appeal to the Supreme Court, how? By notice of appeal and

when you speak of the Constitution, it applies to both civil and criminal cases.

Q: The Court of Appeals has only one original exclusive jurisdiction and what isthat?A: Action for Annulment of Judgment of the RTC. That is the only originalexclusive jurisdiction of the Court of Appeals.

Q: If you file an Action for Annulment of Judgment of the MTC, where will you go?A: To the RTC.

General Rule: There is no way a decision, resolution or judgment of an inferior court

can go up to the CA or SC, all must go to the RTC.Exception: When the inferior court exercises delegated jurisdiction. It is the onlyinstance that the judgment of the MTC can be appealed to the CA or Sandiganbayan.Inferior courts are not included in section 1 of Rule 45.

Q: Under what Rule is the exclusive original jurisdiction of the CA (annulment of judgment of RTC)?A: Rule 47-On what grounds?1. Intrinsic Fraud- prescribes after 4 years from discovery of fraud2. Extrinsic Fraud- does not prescribe, limited only by application of the principle of

laches.

Appellate Jurisdiction of the Court of Appeals All decisions, final orders, judgment of the RTC and quasi judicial agencies. Theexceptions to this are the five (5), all the rest are found under Rule 43. Just remove theCTA, because it is no longer appealable to the CA but to the Supreme Court.

NB: Decisions made by the Civil Service Commission is appealable to the CA.

NB: HLURB is not in Rule 43 because appeal therefrom is to the Office of thePresident. From there, you go up to the CA.

Before, decisions of the NLRC are appealable to the Supreme Court. In labor cases,walang appeal don. What is appealed to the SC is under Rule 65. But because of theSt. Martin Funeral Homes case, appeal is now filed to the CA . The decision of St.Martin Funeral Homes, as reiterated in Rubber World case , is not actually removingthe jurisdiction of the Supreme Court over decisions of the NLRC. But in St. MartinFuneral Homes case, considering in a petition for certiorari from the NLRC, question of facts are waived and the Supreme Court is not a trier of facts. It is more convenient tofile the petition with the CA. Two years thereafter, the Supreme Court laid down acircular stating therein that petition should now be filed in the CA, otherwise it will bedismissed. Not appeal proper, but under Rule 65. Rule 65 is not a mode of appeal but aspecial civil action.

Regional Trial Court has eight subject matters:1. Incapable of pecuniary estimation (Russel vs Vestil; Barangay San Roque case).

a. What is the determining factor whether the action is capable or incapable of pecuniary estimation? What should be the nature?

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When the money claim is incidental to the action, then it is not capable of pecuniary estimation BUT if the claim is determinable in terms of money then it iscapable of pecuniary estimation.

b. Example: A filed a case against B for completion of the house. B agreed to build

for A in the amount of P250,000.00. Which court has jurisdiction over the case?The Regional Trial Court has jurisdiction over the case because it is an action for specific performance. The amount of P250,000.00 is merely incidental to thecase.

c. Suppose in As prayer he said: 1. Ordering B to complete the construction of plaintiffs house; OR 2. Pay B the amount of P250,000.00. Which court has

jurisdiction? No longer the RTC, it is already the MTC because of the word or. Itis now determinable in terms of money. In other words, the cause of thetransaction has been determined in the very pleading which is P250,000.00. If the prayer is for B to complete the construction of the house and payP250,000.00, it is not capable of pecuniary estimation.

d. Rule: if the case is determinable in terms of money, then it depends as to what isthe claim. If the claim is P300,000.00 and below-MTC; if the claim is morethan P300,000.00- RTC.

e. In the case of Russel vs Vestil, that is precisely the issue here whether or not theaction to declare null and void a deed of heirship and partition is capable of pecuniary estimation. The Supreme Court said NO! this is similar to specificperformance and in specific performance money is only incidental so thatwhether or not there is a valid ground to annul a deed of heirship and partition, isnot capable of pecuniary estimation.

f. The same doctrine was enunciated in the case of Barangay San Roque vs theheirs of Francisco. Expropriation proceeding is not capable of pecuniary

estimation while it is true that in an expropriation proceeding there isdetermination of just compensation but that will come after the court hasresolved the issue of whether or not the government or any of itsinstrumentalities is entitled to expropriate the subject property or the entityhas complied with all the requirements of expropriation. So this is again notcapable of pecuniary estimation.

g. In cases like annulment of judgment, whether the judgment is for a certainamount of money, but when you file an action for annulment of judgment it is notcapable of pecuniary estimation because the principal issue here is whether the

judgment is annullable or not, money becomes incidental.h. So as to cases of foreclosure of mortgage .

2. Actions involving title to or possession of real property or any interest therein, wherethe assessed value of the said property exceeds P20,000.00; Metro Manila exceedsP50,000.00. What is action involving title to or possession of real property? Isannulment of title an action involving title to property? It seems so, but not anymorebecause of the case of Russel vs Vestil and Barangay San Roque. Before thesecases came out, this was really complicated.

NB: You must analyze the nature of the action, and how do you do that? According to the prayer. If the prayer for money is only incidental, it is not capableof pecuniary estimation. If the conjunction is and, again it is not capable but if it is

or it is already determinable by the very allegations of the pleadings and the valuedetermines whether it is within the jurisdiction of the RTC or MTC.

NB: So by process of elimination, ano nalang ang action involving title to or possession of real property? It seems to me that the only action is

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Recovery, accion publician and accion reinvendicatoria because all the restnow are capable of pecuniary estimation.

3. All cases which used to be within the jurisdiction of the Juvenile and Domestic

Relations court are now within the jurisdiction of the Regional Trial Court.

NB: BP 129 as amended by RA 7691 that the Securities and RegulationCommission, particularly section 5 paragraph 2, previously handled by the SECare now transferred to the Regional Trial Court but not to the regular courts,rather to the special Regional Trial CourtCommercial Courts. There are no moreIntellectual Property courts because they are already merged with commercialcourts.

4. Admiralty and Maritime cases. Should an admiral always be a party to the case?What is admiralty cases? What are maritime cases? Carriage of Goods Sea Act.

Admiralty should not be confused with someone from the military, they are maritimecases. But the jurisdictional amount now is P300,000.00 and P400,000.00RA7691. Five years after and then five years after. The last five years happened in2004.

5. Estate proceedings. This is something new, this was not included in the old rule. RA7691inferior courts now has jurisdiction already over Estate Proceedings and thatis whether it is testate or intestate. Do not limit probate of a will to the RTC.

6. Marriage and marital relation is with the RTC, although it is a certain kind of RTCbecause it is the family court under RA 8369. So you correlate it with the jurisdictionof the RTC under RA 8369.

NB: Let me just remind you of one provision there that guardianship proceedings andcustody of minor proceedings and petition for habeas corpus in relation thereto, it doesnot necessarily follow that the Family Court has exclusive jurisdiction over petition for Habeas Corpus. If it is a petition for habeas corpus in relation to custody or guardianship proceedings then file it with the family courts. But if it is an ordinaryhabeas corpus, not in any way related to custodial proceedings or guardianshipproceedings, then it is the regular RTC.

Q: What are the Inferior Courts?A: There are four (4): MeTC, MTC, MCTC and MTCC.

Q: Distinguish a municipal trial court from municipal circuit trial court?A: A municipal trial court is one which is located in a municipality with a fixed presiding

judge. If there is no judge permanently assigned there, it is a circuit. There are roving judges.

Note: In inferior courts, there are two proceedings that which are applicable: (1)Regular procedure; and (2) Summary procedure. That is why jurisdiction there getscomplicated because of these two procedures.

Q: What are the subject matter cognizable by the inferior courts?

A: Actions involving personal property

Q: What are the actions cognizable by these courts and governed by the Rules onSummary Procedure?A: Forcible entry and unlawful detainer;

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Money claims limited to the amount of either P300T or P400T, regular procedure but100T and below and 200T and below, Metro Manila, summary procedure.

The Rules on Summary Procedure apply only in inferior courts. As a general rule, there

is no summary procedure in the RTCs. So, even if you hear that it is only summary inthe RTC, it is not the same as Summary Procedure. It only means that there is nocontroversy in the action, there is no opposition. It is handled by RTC but it is summary.Do not apply the word summary there as to mean Summary procedure.

Q: In criminal cases, what is the determining factor to decide whether it is under theRTC or the MTC?A: The duration of imprisonment. If more than 6 years, RTC..less than 6 years, MTC.If the penalty is only a fine, the determining amount is P4,000above P4,000, RTCbelow P4,000, MTC. BUT, if the penalty is BOTH imprisonment and fine, the amount of the fine becomes immaterial.

Note: Violations of BP 22 (Bouncing Checks Law) are now governed by theRules on Summary Procedure irrespective of the amount of the check andexclusively under the jurisdiction of the MTC. The same thing with Negligenceunder criminal law (Criminal Negligence), any crime committed throughnegligence resulting in damage to property is exclusively by the inferior courtirrespective of the amount of damage to property. Violation of Traffic Rules andRegulations, violation of the Rental Laws these are all w/in the jurisdiction of the inferior courts.

In cases of penalty of imprisonment not exceeding 6 years, MTC, but when it is 1 year

and below, it is summary. In claims, if P300T and below, it is MTC, but when it isP200T and below, and P100T, if it is outside Metro Manila, it is Summary.

Sandiganbayan: A Constitutionally mandated court.The determining factor here is not the imposable penalty, but the salary grade of theaccused. If the salary grade of the accused is 27 and above, it is w/in the jurisdiction of the Sandiganbayan. Aside from that determining factor of salary grade, it must be anyof the following violations: (1) Anti-Graft and Corrupt Practices Act; (2) Executive Order 14 and 14-A (the PCGG cases); (3) Criminal Law on Bribery and Sequestration cases.The salary grade is found in the Classification and Composition Act of 1987. Moreover,all of the aforementioned violations must be committed in relation to ones office.

CIVIL PROCEDURE

RULE 1GENERAL PROVISIONS

Sec. 4.In what cases not applicable: In Cadastral cases, Land Registration cases, andElection Cases, the Rules of Court are only suppletorily applicable because they havetheir own rules.

Sec. 6.

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Proper Construction of the rules: Must not favor either party but must favor theadministration of justice.

Sec. 5.

Commencement of the action: An action is commenced upon filing of the complaint asfar as the plaintiff is concerned, but jurisprudence tells us that something else isrequiredpayment of the correct or prescribed docket fees. This applies to all kinds of pleadings, whether the pleading is initiatory or an answer to a complaint w/c carries w/ ita counterclaim.

Alday v. FGU Insurance: It is only upon payment of the correct docket fees that thecourt acquires jurisdiction over the counterclaim .

Note: Remember that the Rules do not even distinguish as to what kind of counterclaim it is, whether compulsory or permissive. But in the Alday case , the

payment of the correct docket fees is required only in permissive counterclaims .This seems to be the doctrine now, notwithstanding a clear provision in the Rules whichmakes payment of docket fees necessary in compulsory or permissive counterclaims. Itis the defendant who shall file a counterclaim and as far as the counterclaim isconcerned, the defendant is the plaintiff and the plaintiff is the defendant, whether it iscompulsory or permissive.

The Rules were amended after the Alday case was decided, but as it stands,the Rulesprovide no distinction, the case provides a distinction, and in practice, clerks of court donot charge any docket fees as far as compulsory counterclaims are concerned.

Barangay 24, Legaspi City v. Imperial: The payment of the correct docket fees iseven required in cases of appeal. In this case, there was already payment of theappellate docket fees but it was insufficient and so it was dismissed on the ground thatthe court did not acquire jurisdiction over the appeal.

Note: Even if you paid, but what you paid was not enough, still, the court does notacquire jurisdiction over the subject matter of the case.

Q: As to the third-party defendant, when does the action commence? If the parties to acase are A, B, C, and D, how would you possibly situate a third-party defendant, whoamong them and how?

A: A files a complaint against B. B would like to claim against C so he would include Cas third-party defendant.

Q: If the original action was filed by A against B and C, would C be a third-partydefendant?A: No. The third-party defendant in this case would be one against whom thedefendant files a case in the same proceeding. So, If A files a case against B and Bfiles a case against C in the same proceeding, C would be a third-party defendant and if C would further file a case against D, D would be a third-party defendant and C wouldbe a third-party plaintiff.

As far as A is concerned, the action is commenced from the filing of the complaint andthe payment of the correct docket fees. As for B, the defendant, the action iscommenced from the moment the court acquires jurisdiction over him (upon validservice of summons or voluntary appearance, as the case may be). As to C, the third-party defendant, also upon valid service of summons because he is also a defendantand as long as you are a defendant, summons is always necessary, otherwise, the court

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will not acquire jurisdiction over the person of the defendant. BUT when you speak of commencement of the action, payment of the correct docket fees is jurisdictionover the subject matter of the action and not over the person of the defendant.

Q: If the action is filed by A against B and C, they are co- defendants and in that action,if B files a case against C, who would be B as to C?A: Crossclaimant. In that situation, who would be the counter-counter defendant? B.Why? Because the complaint was filed by A against B and C. The complaint by Bagainst A is a counterclaim. The answer to the counterclaim, w/c is required in cases of permissive counterclaims, is also against B, so B would be the counter-counterclaimant.Do not confuse this with a replyreply is different in that a reply is not necessary.

Again, Commencement of the action is not only from the filing of the proper pleading butalso after payment of the prescribed docket fees.

RULE 2CAUSE OF ACTION

Sec. 2.Cause of Action: The act or omission by which a party violates a right of another. Cause of Action v. Right of action:

A Right of Action springs from a Cause of Action; it is a remedial right and it is the rightto commence and maintain an action.

Q: Between A and B who are plaintiff and defendant, respectively, who has the cause of action?A: B because it was his act or omission w/c violated the right of A.

Q: How would you explain that there must be joinder of causes of action ( Sec. 5 ) and infact, in the joinder of causes of action, it is exceptional to the theory of one suit for asingle cause of action ( Sec. 3 )?A: If the Rule defines cause of action as an act or omission by which a party violates aright of another, it must be in the defendant for he is the one who violates the right of theplaintiff. But if it is in the defendant, why is it that there must only be one suit for asingle cause of action when the cause of action resides in the defendant? If we do not

clarify these things, we cannot proceed because this is the difficulty as it is not evendiscussed that is why you keep on inter-changing one for the other Cause of Action andRight of Action). Even in the Rules, the Cause of Action is inter-changed with the Rightof Action. They are used interchangeably while they are not supposed to be becausethe Rule is very clear as to the definition of a Cause of Action. The Right of Actionbelongs to the plaintiff as against the defendant. The Cause of Action brings about thebirth of a Right of Action .

So, when you say one suit for a single cause of action ( Sec.3 ), the word suit belongsto the plaintiff. The cause of action belongs to the defendant.

Examples of Cause of Action: Breach of contract: The defendant breaches thecontract and because of that breach, he violated the right of plaintiff. Suppose thebreach is constituted by non payment of obligation, so the act or omission is nonpayment of the obligation. By non payment of the defendant, the right of plaintiff isviolated. The plaintiff now has a right of action against defendant. That is why we say

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one suit for a single cause of action. The Cause of Action is non payment. The right of Action is a suit for payment of sum of money.

Sec. 4.

Splitting a Cause of Action:

Q: Using the same example, how do you split a single cause of action?A: One suit for collection of money and another suit for damages. Here, the cause of action is split because the damages arose from the non-payment, a single cause of action. You cannot bring two actions.

In a contract of lease, the lessee did not return the property at the expiration of thecontract. That failure to return the property brought about a right of action to the lessor.The lessor now files an action for recovery of property, accion publiciana , but asidefrom the property, he would also like to recover the fruits thereof, unpaid rentals. He

cannot file another case of unpaid rentals because it arose from the same cause of action.

From one cause of action, should arise also one suit only. But it can happen thatbetween the same parties, A and B, there are several acts or omissions on thepart of B. So instead of filing several suits because the Rule provides one is toone only, one suit for a single cause of action, the Rules allow joinder of causesof action. (Sec. 5)

Example of joinder of causes of action: There are several violations done by B against A.

Q: B borrowed money from A in the amount of P10T January 2006. Again, B borrowedmoney from A in the amount of P30T on March of the same year. Again in September,P400T. How many causes of action are there if B does not pay all obligations?A: There are three causes of action. How many rights of Action? There are also three.How many suits should A file against B? He may file three, but may opt to file only onecomplaint. If A opts to file only one complaint against B, collection of sum of money inthe amount of P440T, it will be allowed under the principle of joinder of causes of action.

Q: What are the requirements for joinder of causes of action?

A: The requirements for a valid joinder of causes of action are:1. The party joining the causes of action shall comply with the rules on joinder of parties;

2. The joinder shall not include special civil actions or actions governed by special rules;

3. Where the causes of action are between the same parties but pertain to differentvenues or jurisdictions, the joinder may be allowed in the RTC, provided one of thecauses of action falls within the jurisdiction of the said court and the venue liestherein, and

4. Where the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

Q: In the said example, is there joinder of parties?A: No. There is no joinder of parties here because there is only one-party plaintiff andone-party defendant. There will be joinder of parties if A files a case against X,Y, and Zso there will be joinder of parties-defendants or A, B, C files a case against X, there willbe joinder of parties-plaintiffs, or A,B,C, plaintiffs against X,Y,Z, defendantsthere will

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be joinder of parties. joinder of parties means there must be plurality of party-plaintiffs or party- defendants.

Q: If there is no joinder of parties here, then why does the Rule require that in

joinder of causes of action, there must be compliance with the Rules on joinder of parties? What is the rule under Sec. 6, Rule 3 on Permissive joinder of parties? Whatis the requirement for joinder of parties?A: There must be common question of fact or law.

Q: Is that required in joinder of causes of action?A: Yes. When you join causes of action, there must be commonality of fact or law. Inthe example given, there is commonality of law.

The causes of action joined must be governed by the same rules, so that a special civilaction cannot be joined with an ordinary civil action because these two different actions

are governed by different rules.

If A intends to file collection for sum of money against B and he also wants B to vacatethe premises w/c he leased unto him, he cannot join an action for collection of sum of money and unlawful detainer because the former is governed by regular or ordinaryrules and the latter is governed by special rules, being a special civil action. So in

joinder of causes of actions, all of the actions must be governed by the same rules.

Q: Let us change the value in the example, P10T; P30Tand P401T. If you were to filethree separate actions, where would you file them?A: As to the P401T, in the RTC; As to the P10T, in the MTC; and As to the P30T, also in

the MTC.

Q: If you join them, where will you file the action?A: In the RTC because of condition number 3 under the rules on joinder of causes of action.

Q: Suppose the amounts are P10T; P30T; and P360T. Where will you file it?A: Applying the fourth condition in joinder of causes of action, the action shall be filedwith the MTC as the aggregate mount is only P400T.

Q: Mr. A resident of QC filed a case against Mr. B, resident of Baguio City for collection

of a sum of money in the amount P450T and an action for recovery of property locatedin Batangas. Can A join his causes if action?A: Yes. Both are governed by the same rules, although the first cause of action is apersonal action and the second is a real action. There is no prohibition against

joining personal with real actions or an action in personam with an action in rem .

Q: Which court has jurisdiction over the case if you join them?A: RTC because both actions are within the courts jurisdiction.

Q: Suppose the claim for a sum of money is for P100T, can you still join them? Whatcourt has jurisdiction?

A: The RTC because one of the joined causes of action is cognizable by the RTC.

Q: Where is the venue?A: The venue of the action may be in QC, residence of the plaintiff; or in Baguio,residence of defendant; or Batangas, the location of the property, at the option of the

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plaintiff. There is no preference of real over personal or vice versa. The option belongsto the plaintiff.

In the joinder of vcauses of action, you resolve the issue of both jurisdiction and venue

then you refer to Rule 4: Venue of Actions .

Q: When is the rule on venue not applicable (Rule 4, Sec. 4)?A:1. In those cases where a specific rule or law provides otherwise; or 2. Where the parties have validly agreed in writing before the filing of the action

on the exclusive venue thereof.

Note: Even in the agreement as to venue, it can be interpreted either in the mandatoryor directory character, if it is not exclusivethere must be the character of exclusivity.(ex: exclusive of any other venue; etc.)

Note: Take note of the doctrines in Katon v. Palanca and Manila Bankers Corporationcase.

RULE 3PARTIES TO CIVIL ACTIONS

Q: Who may be parties?

A: Natural persons, Juridical persons, and those entities authorized by law (ex: estateof the deceased).

Q: Who is a party in interest?A: A party who may be benefited or injured in a suit. The term real party-in-interestapplies to both plaintiff and defendant.

Party in interest v. legal standingParty in interest is a matter of procedural law. Legal standing is a matter of substantivelawA party in interest is a party who may be benefited or injured in a suit directly. In Legal

standing , there is interest in the subject matter although one may not be directlybenefited or injured by the suit.

The case of FGU V. Alday is about counterclaim and docket fees.

Q: Is non-payment of docket fees a ground for dismissal?A: Rules provide for payment of docket fees for counterclaim irrespective whether thecounter is permissive or compulsory. The Rule provides no distinction as provided inRule 141 Sec. 7. However in this case the Supreme Court provided for a distinction.

Q: So if presented with this problem which would you follow, the rules or jurisprudence? A little background would help.A: When the Supreme Court amended the rules regarding docket fees it did not haveany distinction. The implementing circular however became a subject of several protestswhich required payment of docket fees of counterclaim whether compulsory or permissive. Because of the protests, the SC recalled the circular. However in 2005, the

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IBP lifted their protest giving way to strict implementation of Rule 141 Sec. 7. But up tonow the clerks of court in particular when there is compulsory counterclaim no fees arecollected. This is what they do in practice. Hence it so appears now that the presentpolicy is in accordance with the FGU decision.

Q: Tests to determine the nature of counterclaim:A:1. When the issues arise from the same transaction2. Whether res judicata will bar subsequent filing of claim by defendant3. Evidence test rule whether the same evidence is required4. Whether there is logical relation between the claim and counterclaim

Q: Kinds of Pleadings:1. Complaint2. Answer

3. 3rd

party complaint4. Counter claim5. Reply6. Intervention

Q: Who may file a counter counter-claim?A: The plaintiff

Q: Suppose A filed a case against B, against whom may B file a cross-claim?A: No one because there is only a single defendant.

Q: May B file a 3rd

party complaint ?A: Yes against a party not an original party to the action to which he sought for indemnification, subrogation or other relief.

Q: Rules on counter-claim:A:1. The counterclaim must be within the jurisdiction of the court both as to the

nature and as to amount.2. You cannot anymore subdivide a counter-claim. A counter-claim which

exceeds the jurisdiction of the court must be dismissed.

RULE 7PARTS OF A PLEADING

Q: Parts of a PleadingA:1. Caption2. Body3. Relief 4. Signature and Address

5. Verification6. Certification against non-forum shopping

Body1. The part which states the right of action2. Jurisdictional requirements:

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a. That the plaintiff has a legal capacity to sue and in the case of defendant thecapacity to be sued. If you do not allege legal capacity the complaint isimmediately dismissible.

b. In case of defendant, his address or at least his whereabouts for service of

processesc. The rule provides that allegations of certain matters to be made with

particularity such as fraud and mistake or with generality such as malice,intent or judgment.

d. Allegations must allege only Ultimate facts which are the bases of ones claimor defenses.

Actionable documentQ: Two (2) ways of pleading an actionable documentA:1. By setting forth the substance of such document in the pleading and attaching the

document thereto as an annex; or 2. By setting forth said document verbatim in the pleading if such document is not

lengthy.

Q: How to contest an actionable documentA: By denying specifically under oath. Failure to deny results in the admission of thegenuineness and due execution of the document.

Q: Exceptions?A:1. When the adverse party is not a party to the instrument

2. When an order for the inspection of the document was not complied with.

Q: Meaning of GenuinenessA: Means that the document is not spurious, counterfeit or of different import on its facefrom the one executed by the party.

Q: Meaning of Due executionA: Means that the document was signed voluntarily and knowingly by the party whosesignature appears thereon, that if signed by somebody else such as representative thathe had the authority to do so, that it was duly delivered and formalities complied with

Q: Four (4) criteria of authenticity and due execution:A:1. Signature is not forged or falsified2. The contents of the instrument is the same at the time it was signed3. That all formal requirements are considered complied with4. The same document has been signed and delivered

Case of Benguet (doctrine)If the authenticity and due execution of a document is duly proved, it extends only to theextrinsic validity of the document and not the truth of the contents of the document,which is the intrinsic validity. The records of the case clearly shows that the documents

were contested.

SIGNATURE AND ADDRESSQ: PurposeA: To assert that the parties had read the pleading and to know where the processes of the court may be properly served. The signature must be of the parties themselves

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VERIFICATIONQ: PurposeA: Same purpose as signature

Q: Is it not a surplusage since it has the same purpose as signature?A: No, because not all pleadings require verification

Q: Which is more important, signature or verification?A: Signature is more important because when the pleading is not signed the effect isthat the pleading is not deemed filed. The remedy is to re-file. Lack of verification on theother hand is not fatal. The remedy is to file an amendment. If both are present,verification is confirmation of the signature.

CERTIFICATION AGAINST FORUM SHOPPING

The certifier attest that he has not commenced any other action against the sameparties with the same issues, or if there is a case pending a statement of the presentstatus thereof or if he should learn of a similar action or claim filed he should inform thecourt within 5 days therefrom.

Q: What is the effect of lack of certification?A: Dismissal under Rule 17, lack of certification of non-forum shopping is not correctibleby amendment.

In practice some lawyers separate verification from certification but some does not. Boththe verification and certification must be signed by the parties themselves except if the

party is a corporation and the lawyer is the in-house counsel.

In case of three or more plaintiffs, all of them must sign the verification and certification.

NOTE: Certification of non-forum shopping is very important because of it can beproved that absence of such is malicious you can even be cited in contempt.

Q: What is Forum-shopping?A: Party seeks a favorable opinion in another forum through means other than appealor certiorari by raising identical causes of action, subject-matter and issues.

Q: Remedy to Forum-shopping?A: Motion to dismiss based on litis pendentia or res judicata

NOTE: Do not confuse forum shopping with pre-judicial question. In forum shopping itinvolves even the same case file in other tribunal. In pre-judicial question it is necessarythat one case is civil and the other one criminal which is not the issue in forumshopping.

RULE 9

EFFECT OF FAILURE TO PLEAD

Q: The following defenses are not waived even if not raised in a motion todismiss or answer (cross refer to Sec. 8 Rule 15):1. Lack of jurisdiction over the subject matter

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2. Litis pendentia3. Res judicata; and4. Prescription of action

NOTE: A compulsory counter-claim not interposed is barred except Sec. 10 Rule 11.

DEFAULTQ: When may a party be declared in default?A: After the lapse of period within which to file an answer and defendant did not file ananswer seasonably.

Q: May a plaintiff be declared in default?A: Yes plaintiff can be declared in default relative to a counterclaim especially of thecounterclaim is permissive.

Q: A files a case against B for unlawful detainer. B received summons Jan. 5 and onJan. 25 B has not filed any answer yet. May B be declared in default?A: No B cannot be declared in default because the case is unlawful detainer whichfalls under summary proceedings. In summary proceedings a motion to declare aparty in default is one of the prohibited pleadings.

Q: Suppose the case is one for collection of sum of money, may he now be declared indefault? If yes, how?A: Yes B can be declared in default by As filing of a motion to declare B in default.

Q: Two kinds of motion:

A:1. Litigated2. Non-litigated

NOTE: If it is established that defendant did not receive a copy, it would be irregular for the court to declare Defendant in default.

The phrase as in default no longer applies. The only ground for declaration of default is failure to file an answer seasonably.

Q: Remedy of defendant declared in default

A: File a motion to lift order of defaultIf denied: Motion for reconsiderationIf denied: Certiorari under Rule 65 on the ground of grave abuse of discretion

Q: Suppose there is no ground?A: Wait for rendition of judgment by default, you now have ordinary remediessuch as appeal or new trial or relief from judgment

NOTE: If the defendant is declared in default, he loses his personality before the courtbut by filing a motion his personality is restored.

Order of default is different from judgment by default. A judgment by default is always preceded by order of default. There is only oneexception to this and that is Rule 29, Sec. 3, Par. C which is refusal to comply withmodes of discovery.

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NOTE: Supreme Court always looks down on default order so if confronted with thisproblem your inclination should always be against default orders.

There are no injunctive relief in default orders.

RULE 10AMENDED AND SUPPLEMENTAL PLEADINGS

Q: Two (2) Classifications of Amendment:A:

1. Amendment as a matter of right or by leave or court2. Substantial or formal amendment

Q: Effect of amendment?A: Amended pleading supercedes the original.

Q: Totally?A: No, admissions in the original pleading may be used as evidence.

Q: A files a case against B for collection of sum of money. Summons was served Jan.10 and B filed an answer Jan. 20. May A still amend his complaint?A: Yes because the period to amend a complaint as a matter of right is anytime before aresponsive pleading has been served. Filing and service are two different things. Filingis with the court while service is to the parties.

NOTE: Amendment as a matter of right is absolute when the plaintiff has not yetreceived a copy of responsive pleading. If a motion to dismiss is filed, such is not a bar for a plaintiff to amend his complaint.

Q: If A filed a case against B for a sum of money and then there was no allegation as toa demand, hence the issue of demand is not within the jurisdiction of the court. Duringthe presentation of plaintiffs evidence, the witness of the plaintiff would like to presentas evidence the demand letter, B objected the same on the ground that it was not raisedin the pleading and therefore the court has no jurisdiction over the issue. If you were the

judge, how will you rule on the objection?

A: You will grant the objection because the court has actually no jurisdiction over theissue. In granting the objection for denying the presentation of such kind of evidencebecause it is without jurisdiction of the court.

Q: As plaintiff, what will you do?A: Under Rule 10 section 5, Amendments to conform or authorize presentation of evidence, the plaintiff may move for amendment and such must be granted to by thecourt with liberality. So even in this instance, at this point in time of the proceeding(during trial), amendment is still available. It is an amendment with leave of court. If thecourt does not grant it, it can be construed as grave abuse of discretion on the part of the court which is adept to certiorari or mandamus as the case may be.

As a general rule, the evidence must conform to the pleading. This time, consideringthat the evidence is not within the jurisdiction of the court, it should be the pleading thatmust conform to the evidence to authorize the presentation of evidence. That is themeaning of section 5 Rule 10.

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Q: Suppose the amendment sought by the plaintiff here is a change of cause of action,will you grant it?A: Even if it is a change of cause of action, it must be granted with liberality. But as ageneral rule, never with jurisdiction. Cause of action yes but jurisdiction no.

Q: Why?A: Because if for example you filed a case with the RTC for sum of money in theamount of P350,000.00. That is definitely outside the jurisdiction of the RTC and youask for amendment with leave of court so that the RTC will have jurisdiction, andchanged the amount claimed to P500,000.00, you cannot do that because this is anissue of jurisdiction. You cannot do that. Why? because remember, under the latest

jurisprudence on that matter, jurisdiction over the subject matter is not only conferredupon filing of the necessary pleading but payment of the correct docket fees. So thedocket fees you paid for is only for the amount of P350,000.00, and you want to changeit to P1 million, you wont be allowed. It is an indirect way of escaping the payment of the

correct docket fees. This is taken from the old Mar Copper doctrine.

Q: How would you distinguish an amended pleading from a supplemental pleading?A: As to the purpose, an amended pleading aims to change certain facts while in asupplemental pleading you dont change anything, you just ask for supplement. As heldin the Remington case, there is no need for the issuance of a new summons because itdid not change the cause of action. If the pleading changes the cause of action, thenanother summons is necessary because as a general rule, an amended pleadingsupersedes the original pleading.

Q: Even if it superseded the original pleading, is there anything admissible from the

original pleading?A: Admissions remain even when the original pleading has been superseded pleading.What kind of admissions are they? They used to be extrajudicial admissions but

jurisprudence now, under the new rule, these are already considered as judicialadmissions. You have to distinguish that because the effect of a judicial admission isdifferent from an extra judicial admissions whereby the latter requires or calls for proof,requires for offer. But because these are judicial admissions, you need not to offer them.It can be used by the court as basis of its decisions, judgment or resolution.

RULE 11WHEN TO FILE RESPONSIVE PLEADINGS

Next rule is only about periods. The only thing to remember here in Rule 11 are thefollowing days- 10 days, then 15 days, then 30 days and finally 60 days. Tandaan nyolang yon and we are through with Rule 11. So this is about when to file responsivepleading, take note they are responsive pleading so if there is nothing to respond to, aresponsive pleading is not necessary but if it is required, when are you suppose to filethem?

Q: So 10 days , what pleading must be filed within the period of 10 days?

A:1. Answer to the complaint when it is covered by the Rules on Summary Procedure;2. Answer to an amended pleading if the amendment is not a matter of right;3. Reply; 4. Answer to the counterclaim, cross claim and answer to a complaint in intervention;5. Answer to a pleading after a bill of particulars has been granted.

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Q: Lets go to 15 days :A:1. Answer to a complaint under regular procedure;

2. Answer to an amended complaint when the amendment is a matter of right;3. Answer filed by a third, fourth or fifth party defendant as the case may be.

Q: Why is the answer in a complaint in intervention only 10 days?A: Remember that the one who answers it is already within the jurisdiction of the court.Kaya 10 days nalang but the one who is suppose to answer within 15 days is not yetwithin the jurisdiction of the court like a fourth party defendant is not within the

jurisdiction of the court. So he must be first before he is brought within the jurisdiction of the court that is why you have the 15 days period.

Q: How about the 30 day period?

A: There is only one instance- when the defendant is a foreign corporation or foreignprivate entity and summons was served to the corporation through the governmentofficial in the Philippines. The 30 day period must be counted not from the receipt of thegovernment official but from the receipt of the defendant itself, the corporation. Under section 13 of Rule 14, you will find out that a foreign private entity can be served withsummons in three (3) ways. Kaya tatandaan nyo. If it is served to the governmentofficial in the country, 30 days, otherwise 15 days. This is the only 30 day period,wala ng iba sa rules.

Now finally, we go the 60 day period- When summons is served under section 15 of Rule 14 or what we call extra territorial service. But take note, there is a cross reference

in section 15, that is 14 and 16. Before and after. That summarizes Rule 11.

RULE 12BILL OF PARTICULARS

Rule 12 is only the Bill of Particulars. Bill of Particulars may be filed by any partythat is suppose to file a responsive pleading. Before one files a responsivepleading and he wants to be clarified on certain matters, then instead of filing of the answer, he must file a motion for a Bill of Particulars.

Q: Who may file a motion for a bill of particulars?A:1. So this can be filed by the plaintiff with regard to a permissive counterclaim.2. This can be filed by the defendant with respect to the complaint.3. This may again be filed by the plaintiff if he intends to file a reply.

Q: Anyone who is bound or required to file a responsive pleading may ask for a bill of particulars. What does this mean?A: It simply means that you are not clear on a matter in his allegation, so clarify it.

Q: Suppose in the complaint of the plaintiff, the plaintiff joined three (3) causes of action. Assuming the defendant owes him P50,000.00, on another occasion he owes himP130,000.00 and another occasion he owes him P300,000.00. There was no allegationof when and how it was loaned.A: That is a very clear case that calls for a bill of particulars.

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Although a bill of particulars is there in the rules, but you will note that this is veryacademic. Im telling you now because in actual practice you dont ask for a bill of particulars. Good lawyers wont ask for that. What will I do? Ill file a motion to dismiss

for lack of cause of action. If Im not clear on the matter, motion to dismiss so hellamend the pleading. Thus, you bought time. Like default, if I were the plaintiff and he didnot file an answer, I will not move for declaration of default. Why? I will ask for presentation of evidence, after all if the party is in default, you are delaying your owncase. Why? because there are many remedies to default and the court will grant thisremedies. Motion to set aside the order of default, motion for reconsideration then

judgment and you go all over again and when you move up to the Supreme Court thelatter will say, no default, the party must be given due process. Dont fight it out of technicalities, so remand the case for further proceedings after fifteen (15) years.

Although these are very good problems in the bar but later on, if you were in practice,how can you avail of what you dont even know. Like in the bill of particulars, it may not

be that important but it might be given in the bar.

Q: So when do you count the period?A: When you file a bill of particulars, the period to file a responsive pleading is stop andyoull only have the balance of the period within which to file an answer if it is denied butif its granted, you have to file a bill of particulars within the period of 10 days but the 10 day period must be counted from the receipt of the resolution granting your motion for a bill of particulars.

Q: Suppose A filed an action against B and the latter received the summons in January1. So he has ordinarily up to January 16 in which to file an answer but on January 5,

instead of filing the answer he filed a motion for a bill of particulars. The court grantedthe bill of particulars on January 20, then the question is when should B file the answer?A: No answer yet because it is A who should clarify because the bill of particulars isgranted, the order is directed to A to amend, to change what is suppose to be change,and if he does not, this may be ground for dismissal.

Now, after he has changed, the 15 day period will no longer apply. The 15 day periodordinarily within which to file an answer no longer apply because of that bill of particulars. So what applies? You have only the balance of the period but not less than5 days. Pareho lang yan ng motion to dismiss under Rule 16. Under Rule 16, when thedefendant files a motion to dismiss and it is denied by the court, you do not appeal.

Why? It is an Interlocutory order. So the defendant has only the remaining balance of the period but not less than 5 days.

Do not apply the Domingo Mated doctrine, the fresh day rule . This is a September 2005 case, Domingo mated et al vs Court of Appeals penned by Justice Corona. Bagoyan ha, September 14, 2005, this is the fresh day rule or the fresh day doctrine. Bakalumabas sa bar, at least you know. It simply says that when a motion to dismiss isfiled and then the court denies it or grants it as the case may be, of coursedenied. You have the entire period all over again, 15 days, not just the balance.But do not apply it here in a bill of particulars and motion to dismiss because the time tofile the answer is the remaining balance which must not be less than 5 days.

So the old rule applies only to Rule 42, 43 and 45. Yun lang ang may fresh day doctrine.It applies to Rule 41 as well. You have the entire period all over again. In fact my opinionon the matter is that it applies as well to Rule 64 and 65 because in Rule 65, a motionfor reconsideration is mandatory.

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RULE 13FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Q: What is Filing and what is Service? Which comes first, Filing or Service? Distinguish.A: As to initiatory pleading, filing comes first, service later. Thereafter, service comesfirst and filing later.

So when you file a complaint, initiatory pleading yan, you dont serve first because it isthe court that serves the same together with the copy of the summons to the defendantso filing comes first.

But answer, before the court receives the same for filing, you must first establish that

you have served a copy thereof.

Aside from initiatory pleading, ordinary processes that emanated from the court, filingcomes first then service later. For example, judgment. A judgment that emanates fromthe court, this is first filed and then served a copy to the party. Resolutions and orders,they are first filed and then served.

We are going to discuss three (3) topics under Rule 13, so first is Manner or Mode of Filing and Manner or Mode of Service . The second topic is completeness of Filingand completeness of service . And the third topic is proof of Filing and Proof of Service . If you can answer that, tapos nanaman ang Rule 13.

Q: What is the mode or manner of Filing?A: There are two (2):1. Personal Filing; and2. Filing by Registered mail.

You have to distinguish now because in service it is different. How do you personallyfile?

Q: How about service, what are the modes?A: There are three (3):

1. Personal Service;2. Substituted Service; and3. By mail. Under mail, it is divided in two kinds, either registered or ordinary mail.

Importante eto because you might be asked regarding completeness and proof. Somag-didiffer yon, as to completeness and proof.

What is Personal Service? And by mail? Have you ever mailed by registered mail?

By Substituted Service. Do not confuse this with substituted service of summons.

Q: To whom do you leave a copy? Which Clerk of Court?A: In every court, when you say RTC, isa lang yon. Kasi ang concept nyo pag sinabingRTC, ang dami nyon. Isa lang yon, but several branches. Every Regional Trial Court ina judicial region has only one clerk of court. But each branch has what you called abranch clerk of court. This city here in Metro Manila, for example here in Makati, thereare more than 50 branches, but in Manila or Quezon City there are maybe a hundred I

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suppose or even more. Each branch has a branch clerk of court. This SubstitutedService is not with the branch clerk of court but the Chief Clerk of Court. If your booksays in the branch clerk of court, thats wrong. It should be the Chief Clerk of Court andthe latter is the one in charge with all the branches. In fact the sheriff is under the clerk

of court. That is substituted service.

Q: What do you have to establish to avail of substituted service?A: That is section 8, do not confuse that with section 9. You cannot avail of section 8 if the subject matter to be served are final resolution or judgment, that is under section 9.Service of judgment, service of final order under section 9 is different from service of pleadings under section 8. In section 8, there is substituted service of pleadings butwhen you go to section 9, you do not avail of substituted.

Q: What is the provision of section 9? It is through publication. So that the period for finality of the resolution or judgment starts to run only after availment of section 9. In the

case of substituted service, that begins to run upon receipt of the clerk of court of whatever pleading is served.

Do not confuse that with Rule 14, personal service is no longer used in summons.Personal service is used now in Rule 13. If you go to Rule 14, they do not useanymore personal service and you must follow that. It is already called Service on theperson of the defendant under Rule 14 . That is as to summons because substitutedservice of summons is very different. While here in service of pleadings, that is stillpersonal service. If you cannot find the person to whom it must serve, you have to leaveat the residence where a person of sufficient age and discretion is found, or in the officeto a person in charge thereof. These three (3) ways are is still personal service of

pleadings. Distinguish from the service on the person of the defendant under Rule 14.

Q: When is filing complete?A:1. In Personal filing, after actual delivery.2. If it is by registered mail, the posting is the date of filing. When you mail by

registered mail, the post office stamp is the date of filing so that within the 15 dayperiod for example, the stamping is in the 15 th day, that is within the 15 day period.

Q: When is service complete?A: You have to distinguish whether it is by ordinary mail or registered mail.

If it is by registered mail, from the actual receipt of the mail or 5 days thereafter from thefirst notice of the postmaster. The post office sends three notices, it is the first and notthe last. Hindi eto unlawful detainer. In Unlawful detainer, you count the one day periodfrom the last demand, dito first notice.

In substituted service, upon actual receipt of the clerk of court.

Q: Proof of filingA:1. If it is personal filing, the stamp made by the clerk of court.

2. If it is by registered mail, proof is the registry receipt.

Q: Proof of ServiceA: Take note of the requirement, now of an affidavit of the sender, especially if you arefiling with the court of appeals or the supreme court under Rule 66 of the Rules of Court,that is a ground for the dismissal of your petition if you do not include an affidavit of

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service. If you do not include as proof that you have served to the adverse party theaffidavit of the sender together with the registry receipt stamp, that is a ground of thedismissal by the Court of Appeals or the Supreme Court.

Q: There are many instances when you try to establish that you have filed a pleadingwith a court, the court cannot find anymore the pleading you have filed. Should therecord of the court prevail over your personal record?A: You present your own copy kasi karamihan ngayon nakakaligtaan.

Let me give a special mention to section 11. It says there priority of personal service. Of the many modes we have discussed, the Rules seems to prioritize personal service,why? This is new in the 1997 Rules. If you cannot avail of personal service, you have tomake an explanation stating therein the reasons why you cannot avail of personalservice. Service and filing cannot be made without that written explanation.

What is the historical background regarding this amendment of Rule 13, these additionto the rules? Because several practicing lawyers would try to delay for one reason or the other, some reasons are valid but most reasons are not. They would not expeditethe administration of justice. So the Supreme Court amended the Rules modestly andmoderately by simply prioritizing personal service. For example here in Makati, in thesame building, the plaintiffs counsel is in the 4 th floor while the defendant is in the 1 st

floor. What do they do? They mail pleadings to buy time. No amount of reason willinvalidate your delay, if that is the case. Although the court would not mind it, but nowwith this rule, that must be practiced. The rule calls for a valid reason as long as he hasa reason and the usual reasons are for convenience and practicality or lack of personnel to serve the same or there are other reasons I find like because of the

horrendous traffic in Metro Manila.

RULE 14SUMMONS

Rule 14 is very, very important. As a warning, summons is singular, the plural issummonses. I am warning you that because one of my friend examiners did not correctthe examination booklet anymore because it states summons are, he said thisexaminee is not yet ready to become a lawyer. He underscores that, grade 49. Even if

you get 90 in the Bar, if you have 49, you are already disqualified and only because of that grammar. Again, Summons is singular, the plural is Summonses. Also an examiner in Criminal Law, who in the same manner, did not bother to check the examinationbooklet because of the word stafa was misspelled. So be very careful with your grammar.

Q: What is a Summons ?A: Is a process issued by the court and served upon the defendant for the purpose of acquiring jurisdiction over him and to direct him to file responsive pleading or ananswer.

Q: What is the purpose of a Summon?A: There are only two ways by which the court acquires jurisdiction over the person of the defendant:1. Valid Service of Summons . Remember that it must be VALID. When you say service

of summons that is wrong because even if you serve the summons and the samebut the service is invalid, the court did not acquire jurisdiction.

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2. Voluntary Appearance

To whom is the Summons addressed?To the Defendant-- Together with the summons is a copy of the complaint.

Q: Who serve the summons?A: The sheriff. (see Sec. 3)

Q: How does the sheriff serve summons? What are the modes of service of summons?A:1. Service on the person of the defendant2. Substituted service3. Extraterritorial Service (under section 14, 15 and 16)

a. Service on the person of the defendant

b. Substituted Servicec. Publicationd. By any other modes authorized by the court

Note: There is no service of summons by registered mail

Q: Why is there no service of summons by registered mail?A: Because the purpose of service of summons is to acquire jurisdiction over the personof the defendant and if it is by mail, it is dependent already on the mail proper. The courtwill not allow that. So the sheriff who is tasked to serve the summons will serve thesame either through service on the person of the defendant or substituted service.

Q: After he has done that, what should he do?A: The sheriff will file a return.

Q: What is this return?A: This is one of the most important words in special proceedings like habeas corpus.

Ano nakalagay sa return? Alam nyo crucial yan, because when the sheriff files areturn that he served summons by substituted service, it requires that he musthave exerted effort and his effort is futile that is why substituted service is availedof. Like in Habeas Corpus, you recall your lessons in habeas corpus, very prominentyung return, there is a return as a plea and a return as an evidence.

Q: Aside from the sheriff, who may serve summons?A: Any officer authorized by the court.

Q: Can the plaintiff serve the summons?A: The rule says the sheriff, the deputy sheriff and any person authorized by law, kungsusundin nyo lang yon, you rationalize.

In the analysis of service of summons, you have to know to whom it must be served. Soyou have to consider the defendant. Remember under section 1 of Rule 3, that thedefendant of parties to an action may either be a natural person, a juridical person or

any entity authorized by law. You apply that in cases of defendant. In fact we discussabout necessary and indispensable party, so the first thing you have to ask Who is thedefendant? because the mode of service somehow depend who the defendant is.

Q: If the defendant is a minor to whom should the summons be served?A: To the minor AND the parents or guardian as the case maybe .

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Q: So how many summons?A: Two (2) summonses. If you only serve it to the parents, that is wrong, it will be aninvalid service of summons. The rule says service on the minor AND service on the

parents or guardian or guardian ad litem.

Q: If the defendant is an insane or an incompetent, to whom summons must be served?A: Personally to the insane or incompetent and personally to the guardian.

Q: Why will you serve the summons to an insane defendant? Loko loko na isserve mopa ng summons?A: Because an insane person is not insane all the time. They have lucid interval. But animbecile is different from an insane because the former is not qualified but the latter isqualified, therefore there is no provision regarding an imbecile. If you are given a choicebetween an imbecile and an insane, you choose the latter, must be insane.

Q: If the defendant is a prisoner, to whom summons be served?A: To the prisoner himself or to the deputized sheriff. So he is not within the conceptauthorized by law because the rule says authorizes the sheriff or the warden. The ruleitself authorizes the warden or one charged with the jail to serve it but it is served tothe prisoner or upon the prisoner not to the sheriff. It is only the sheriff or thewarden who is authorized by the rules to serve it. He is deputized . These arenatural persons. The rule says it must be served upon the person of the defendantthemselves but does it follow that it cannot be served through substituted service? Itcan. So if ever it is served upon the warden, it is already substituted service. Take noteof that. It is no longer service upon the person of the defendant but rather substituted

service. Why? because that is where the defendant resides, so you serve it on theperson in charge thereof. So nagiging substituted service. Magandang catch yon if it isgiven in the problem.

Q: What kind of service is service upon the prisoner?A: The answer is the rule requires personal service or service upon the person of theprisoner because the rule says service on the prisoner through the warden. Service onthe warden because he is in charge thereof. Even in cases of this special kind of defendant, service of summons may still be made through substituted service.

Q: What are the requirements for substituted service? Where do you serve substituted

service?A: At the residence of the defendant to a person of suitable age and discretion residingtherein. The place must be the residence of the defendant and you just cannot leave itto anyone there in the residence, it must be a person residing therein and must be of suitable age and discretion. There are many cases to that effect.

Q: If you cannot find his residence, or there is no residence or the residence isunknown?A: At the office of the defendant to a person in charge thereof.

Q: If you leave it to a security guard in the office of the defendant, suppose in a

condominium unit, the office is at the 4th

floor, pag pasok ng sheriff sabi ng guard di hopwede, tapos iniwan sa kanya ng sheriff, valid?A: That is not valid because the security guard is not in charge thereof. For example arethe case of Millenium and the EB Villarosa Doctrine. Substituted service means theservice is not anymore to the person of the defendant but rather to someone else

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whether residing in his residence and must be of suitable age and discretion or tosomeone in charge of his office at his office to be valid.

And another basic requirement is after complying or after exerting earnest effort to

serve summons on the person of the defendant . So that is substituted service. Youwill note, going to Rule 13 that substituted service of pleading is handing over thepleading to the clerk of court, personal service therein includes service in the office andin the residence.

Q: You will note that in summons, it is the residence and then office, in Rule 13 itis office then residence, why is that so? Have you ever thought of that why ganunang priority?A: Because when summons is supposed to be served, there is no counsel yet sothe priority is the residence while in pleading, there is already a presumption thathe is already protected or he has already a counsel of choice. Counsel de parte

kaya ganun.

Q: There is another defendant which is a corporation and under this heading, thecorporation can either be of two kinds:A:1. Public corporation; and2. Private corporation

a. Domestic private entity; andb. Foreign private entity

Q: In public corporation, to whom must summons be served?

A: Correlate this with section 17 Rule 3. In local government unit, the head of the state.If it is a province the governor, vice governor. If it is a city, the city mayor or vice mayor.If it is the municipality, the municipal mayor and in cases of the barangay, the barangaycaptain. You can also serve it on the vice mayor in the absence of the mayor. So anyofficer of that public corporation, summons may be served. But you have to establishthat it was received. Yan ang importante don. That can be done through the return of course.

In private corporation, if it is a foreign corporation, summons may be served to the agentof the corporation or the government entity charged with the said corporation or anyagent authorized by the corporation.

Q: Is there any difference among these three? Who is that Philippine government officer authorized to receive summons?A: In cases of insurance corporati

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