Basic Concepts in Civil Procedure Part i

8/6/2019 Basic Concepts in Civil Procedure Part i

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BASIC CONCEPTS IN CIVIL PROCEDURE

PART I

1. The Philippines uses the system of code pleadings as distinguished

from the common law system. In the system of code pleading, the proceduralrules are set forth in a codified form like the Rules of Court. In the commonlaw system, the procedural rules are not written in codified form (Marquezand Guttierez Lora vs. Varela, 92 Phil. 373 (1972).

2. The Supreme Court has the inherent power to suspend the Rules ofCourt or to exempt any case from the operation of the Rules (De Guia vs. DeGuia, G.R. No. 135384, April 4, 2001) for compelling reasons such as servingthe ends of justice and preventing a grave miscarriage of justice. (PublicEstates Authority vs. Yuico, G.R. No. 140486, February 6, 2001).

3. The Rules are to be liberally construed (Sec. 6, Rule 1, Rules of Court).Example: The provisions of Sec. 3(b), Rule 9 of the Rules of Court mandatesthat a motion to set aside the order of default must contain an affidavit ofmerit (an affidavit stating that the movant has a meritorious defense).However, in De Guia, the absence of an affidavit of merit in a motion to setaside the order of the court was held not to be a reason for the denial of themotion as long as the defenses of the defendant are set forth in the attachedsworn answer. This was considered a substantial compliance of the rules.

4. In Public Estates Authority vs. Yuico cited earlier, the Supreme Courtreiterated the rule that the payment of the docket fee in case of an appeal ismandatory on the part of the litigant and the court cannot be faulted fordismissing the appeal. However, it was likewise ruled that the mandatorycharacter of the payment of the docket fee does not preclude the court fromtaking cognizance of the appeal in the interest of justice. It does not meanthat non-payment of the fee mandates the court to dismiss the case. It wasexplained by the Supreme Court that the non-payment gives rise to adiscretion on the court to either dismiss or take cognizance of the appeal.

In a similar vein, although normally, periods within which to filepleadings or motions have to be strictly followed, the court in the interest of

justice may disregard such periods. The court may also accept appeals filedeven beyond the reglementary period when doing so would serve the ends of

justice. In other words, the Supreme Court, in a particular case may suspendevery rule in the Rules of Court. This is because the Rules of Court are to beliberally construed. (Sec. 6, Rule 1, Rules of Court). However, any deviationfrom the Rules must be for reasons of justice and other compellingconsiderations. One cannot hark on the rule of liberal construction for everyviolation of the Rules. (Digital Microwave Corp. vs. Court of Appeals, 328SCRA 291 [20002]).

5. The Rules of Court are not penal laws and are not be given retroactiveeffect. (Bermejo vs. Barrios, 31 SCRA 764, 776 [1971]). Rules of procedurehowever, may be made applicable to actions pending at the time of theirpromulgation. Such rules are retroactive only in this sense. (Unity FishingDevelopment Corp. vs. Court of Appeals, G.R. No. 145415, February 2, 200;First Aqua Sugar Traders vs. Bank of the Philippine Islands, G.R. No. 154034,February 5, 2007)

6. The Rules of Court shall not apply to (a) election cases, (b) landregistration, (c) cadastral, (d) naturalization, and (e) insolvency proceedingsexcept by analogy or in a suppletory character and whenever practicable andconvenient. (Sec. 4, Rule 1, Rules of Court). Examples: (1) An election case

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cannot be dismissed for failure to attach a certification against forumshopping which is a requirement under Sec. 5 of Rule 7 of the Rules of Court.Election cases are not covered by the Rules of Court. (Barroso vs. Ampig, 328SCRA 530 [2000]). (2) A protestee in an election case cannot insist on theright to present his evidence after his demurer to evidence was denied. TheRules of Court have no application to election cases. (Gementiza vs.

COMELEC, G.R. No. 140884, March 6, 2001). (3) The Rules of Court are notapplicable to court martial proceedings. (Magno vs. Villa, 199 SCRA 663[1991]). (4) In a naturalization proceeding, the Court of Appeals can deny anapplication for naturalization on the basis of documents not formally offeredin evidence during the trial. This procedure is contrary to Sec. 34 of Rule 132providing that the court shall consider no evidence, which has not beenformally offered but this rule however, does not apply to naturalizationproceedings. (Ong Chia vs. Republic, 328 SCRA 749 [2000]). (5) As a rule,affidavits are hearsay but the argument that the affidavits attached to thecase are hearsay because the affiants were not presented in court for cross-examination is not persuasive because the rules of evidence are not strictlyobserved in proceedings before administrative bodies like the NLRC where

decisions may be reached on the basis of position papers only. Rules thatprevail in judicial proceedings are not controlling before the labor arbiter andthe NLRC (Bantolino vs. Coca-Cola Bottlers, Phil., Inc., G.R. No. 153660, June10, 2003).

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 lawapplicable to a given case. (Smith Bell Co. vs. Court of Appeals, 267 SCRA530 [1997]). Equity cannot supplant the law. (Tankiko vs. Cezar, 302 SCRA559 [1998].

OVERVIEW OF ORDINARY CIVIL ACTIONS

1. Civil procedure starts with the filing of the complaint. Before filing thecomplaint, the plaintiff must initially determine if he has a cause of actionagainst the defendant. Without this cause of action, he has no right to file asuit against the defendant. This means that the plaintiff has no right ofaction.

2. If a cause of action exists, the plaintiff may now start considering thepreparation of the complaint. But before doing so, he must determine thecourt that should take cognizance of the action. This involves on inquiry intothe rules onjurisdiction. He must also determine the place where the actionis to be filed. This means that he must know the venue of the action. He

must also know the persons to be impleaded. He needs to know therefore,the rules on parties. As a starting point, the plaintiff must know the conceptsof action, right of action, cause of action, jurisdiction, venue and partiesbefore filing the action.

3. In preparing his complaint, the plaintiff should remember that heshould allege only ultimate facts, i.e. the facts essential to a partys causeof action. (Sec. 1, Rule 6, Rules of Court). This means that he should notallege conclusions of law and aver evidentiary facts. Conclusions are for thecourt to make while evidentiary matters are reversed for the trial.Conclusions and evidentiary matters in a pleading may be the subject of amotion to strike.

4. The complaint must be signedby the plaintiff or counsel representinghim. (Sec. 3, Rule 7, Rules of Court). The counsel who signs the complaintshould be aware of the significance of his signature. His signature constitutesa certificate by him that (a) he has read the pleading, (b) that to the best ofhis 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).

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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 officeaddress. (Sec. 3, Rule 7, Rules of Court).

6. The pleading need not be under oath. This means that a pleading neednot be verified, except when a verification is required by law. A pleading isverified by an affidavit that the affiant (plaintiff or counsel) has read thepleading and that the allegations therein are true of his personal knowledgeor based on authentic records. (Sec. 4, Rule 7, Rules of Court). A verificationis only a formal and not a jurisdictional requirement. It does not affect thevalidity or the efficacy of the pleading, or the jurisdiction of the court.(Navarro vs. Tamayo, G.R. No. 141307, March 28, 2001; Robert DevelopmentCorporation vs. Quitain, 315 SCRA 150 [1999]). All pleadings in a summaryprocedure are to be verified such as the pleadings in an action for unlawfuldetainer and forcible entry. Other examples are the special civil actions ofcertiorari, prohibition and mandamus.

7. Since a complaint is an initiatory pleading, it must be accompanied bya certification against forum shopping. Note: A thorough preparation for thebar requires remembering the contents of the certification against forumshopping in Sec. 5, Rule 7 of the Rules of Court.

The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional. (Robert Development Corporation vs. Quitain, 315 SCRA 150[1999]) and must be signed by the party himself, it cannot be signed by hiscounsel. (Digital Microwave Corp. vs. Court of Appeals, 328 SCRA 286[2000]). This is the general rule and the prevailing rule, subject of course tothe power of the Supreme Court to suspend procedural rules. Example: While

a petition for certiorari is flawed where the certificate of non-forum shoppingcertiorari was signed only by counsel and not by the party, this procedurallapse may be overlooked in the interest of justice. (Sy Chin vs. Court ofAppeals, G.R. No. 136233, November 23, 2000; Hamilton vs. Levy, G.R. No.139283, November 15, 2000).

The failure to comply with the required certification is not curable byamendment and shall be a cause for the dismissal of the action withoutprejudice unless ordered by the court to be with prejudice. The general ruletherefore, is to the effect that the dismissal is without prejudice where theorder is silent on the matter.

The dismissal for failure to comply with the requirements relative tothe certification against forum shopping cannot be done motu propio. Therule 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 clearlyconstitute willful and deliberate forum shopping, the same shall be a groundfor summary dismissal. Here, no hearing and motion is required. Thedismissal in this case is also with prejudice.

Where the dismissal is without prejudice, this means the action can berefiled even if it is dismissed. When the complaint is dismissed withoutprejudice, the remedy of the plaintiff is not to appeal. This is because anorder dismissing an action without prejudice is not appealable. The remedy

provided for under Sec. 1 of Rule 41 is to avail of the special civil action ofcertiorari under Rule 65 (Sec. 1(h), Rule 41, Rules of Court).

8. After all those mentioned above have been considered and dulycomplied with, the complaint shall now be filed. The filing of the complaint isthe 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, Rule13, Rules of Court). The mailing through a private forwarding agency like

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Federal Express, LBC, Johnny Air or UPS, is not allowed. (Benguet ElectricCooperative vs. NLRC, G.R. No. 89070, May 18, 1992).

9. The rule in this jurisdiction is that when an action is filed, the filingmust be accompanied by the payment of the requisite docket and filing fees.(Ballatan vs. Court of Appeals, 304 SCRA 34 [1999]). The fees must be paid

because the court acquires jurisdiction over the case only upon payment ofthe prescribed fees. Without payment, the complaint is not considered filed(Manchester Development Corp. vs. Court of Appeals, 149 SCRA 562 [1987]).Payment of the full amount of the docket fee is mandatory and jurisdictional.(Ayala Land, Inc. vs. Carpo, G.R. No. 140162, November 22, 2000) This rulewas however, relaxed later by allowing the payment of the fee within areasonable time but not beyond the prescriptive period. (Sun InsuranceOffice Ltd. vs. Asuncion, 170 SCRA 274 [1998]). If the fees are not paid at thetime of the filing, the court acquires jurisdiction only upon full payment of thefees within a reasonable time as the court may grant, barring prescription.(Ballatan vs. Court of Appeals, 304 SCRA 34 [1997]).

Sometimes a problem arises in the amount of the docket fee to bepaid. This is because of the conflict between the name given to the actionand the allegations of the complaint. Example: A complaint denominated asone for specific performance was filed. The allegations of the complaint aswell as the prayer however, show that the true objective of the plaintiff andthe prayer is to recover ownership and possession of real property. The namegiven to the action therefore, does not reflect the true nature of the action,which, although denominated as an action for specific performance, isactually a real action. Where the action is a real action, the docket fee isbased on the value of the property. Normally the fee would be higher thanthe fee for specific performance. If the fee initially paid was for specificperformance, there would hence, be a deficiency in the fee paid. Should the

court dismiss the action? Following the liberal construction rule, the courtshould not dismiss the action. Instead, it should give the plaintiff reasonabletime to pay the deficiency. Now, if the fee is not paid as directed, this is thetime for the defendant to make his move and raise the matter of non-payment. But he must raise the matter of non-payment seasonably. Thismeans he must move for dismissal on jurisdictional grounds (non-payment ofdocket fee). He must do so in the trial court and not in the appellate courtbecause he runs the risk of being estopped to raise the issue.

10. When the complaint is filed and the prescribed fees are paid, theaction is deemed commenced. (Sec. 5, Rule 1, Rules of Court). The filing ofthe action is significant. First, the filing of the complaint enables the court to

acquire jurisdiction over the person of the plaintiff. Second, it interrupts therunning of the prescriptive period. (Art. 1155, Civil Code of the Philippines).

11. Dismissal by the plaintiff Sometimes after filing the action, theplaintiff may have second thoughts about the filing of the complaint. In thiscase, he may dismiss his own complaint. If the dismissal is before theadverse party had served an answer or a motion for summary judgment, hemay have his own complaint dismissed by the mere filing of a notice ofdismissal. Upon such notice, the court shall issue an order confirming thedismissal. The court has no discretion on the matter. The court does not orderthe dismissal. It merely confirms the dismissal because it is not the courtwhich dismisses the action but the plaintiff himself. However, that the

confirmation is necessary to give effect to the dismissal by the plaintiff.

May the plaintiff refile the case later on? He can. He can do sobecause such a dismissal is without prejudice. He cannot refile the casehowever, in the following instances: (1) If the plaintiffs notice of dismissalstates that it is with prejudice, or (2) If the same action based on or includingthe same claim has once been previously dismissed by the plaintiff. The latteris often referred to as the two dismissal rule. Example: Plaintiff filed an action

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against Defendant in the RTC. Before Defendant responded to the complaint,Plaintiff filed a notice dismissing the complaint. A couple of months after hefiled another complaint based on or including the same claim as the previouscomplaint based on or including the same claim as the previous complaintdismissed earlier. He again filed a notice dismissing the second complaintbefore Defendant served his answer to the complaint.

May he refile the complaint? He may not refile the same. The rule isclear. He is now barred from doing so under the two dismissal rule. Under theRules, the second notice of dismissal operates as an adjudication upon themerits.

After service of the answer or a motion for summary judgment, theplaintiff can no longer have his action dismissed by mere notice. The plaintiffmust now file a motion 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.

Let us consider the following example: Plaintiff filed a motion for the

dismissal of his own complaint. The defendant however, prior to the serviceupon him of the plaintiffs motion had pleaded a compulsory counterclaim inhis answer. The court dismissed not only the complaint but the compulsorycounterclaim as well. The court reasoned that where the complaint isdismissed, the compulsory counterclaim becomes moot. Did the court actcorrectly? Here, the court acted erroneously. Under the Rules, the dismissal islimited to the complaint and is without prejudice to the defendantsprerogative to prosecute his counterclaim in a separate action or in the sameaction. (Sec. 2, Rule 17, Rules of Court). Since Sec. 2 of Rule 17 makes nodistinction as to the counterclaim involved, even a compulsory counterclaimis not deemed dismissed by the dismissal of the complaint. The defendantmay then prosecute his counterclaim despite the dismissal of the complaint

in a separate action or in the same action. (Pinga vs. Heirs of Santiago, G.R.No. 163663, June 30, 2006).

12. Amendments Instead of dismissing his complaint as explained in theimmediately preceding paragraph, the plaintiff may decide to amend hiscomplaint. Amendment of his pleading is a matter of right as long as the saidamendment 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 thedefendant serves his answer, the amendment may be done as a matter ofright and the court has no discretion on the matter. The amendment has tobe accepted. If the court refuses to accept an amendment made as a matterof right, the court may be compelled to do so through the special civil action

ofmandamus. Note that an amendment made as a matter of right may, bythe terms of Sec. 2 of Rule 10, be made only once.

May the plaintiff amend his complaint as a matter of right even after amotion to dismiss has been served? He may. This is because a motion todismiss is not a responsive pleading. Hence, his right to amend his complaintis not affected by the filing of the motion to dismiss. After a responsivepleading has been filed, amendment must be by leave of court. (Sec. 3, Rule10, Rules of Court). This means for example, that after an answer has beenserved, an amendment may be done only with leave of court. Example: Acomplaint was filed. The defendant served an answer to the complaint. Theamendment is no longer a matter of right because an answer has already

been served by the defendant. The amendment would now require leave ofcourt and the amendment has become a matter of judicial discretion.Although existing jurisprudence adopts a liberal policy on amendments, theamendment is intended for delay. It may also be denied if it would result in achange in the cause of action or defense or a change in the theory of thecase. Also, when the court has no jurisdiction over the subject matter of theaction and the amendment is for the purpose of conferring jurisdiction uponthe court, the amendment shall not be allowed. Since the court is without

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jurisdiction over the action, it has no jurisdiction to act on the motion forleave to amend. Comment: The cases (Gaspar vs. Dorado, 15 SCRA 335;Campos Rueda vs. Bautista, 6 SCRA 240), which prohibit amendments to acomplaint for the purpose of vesting the court with jurisdiction, involve caseswhere an answer to the complaint has already been served operates to bringthe amendment within the ambit of judicial discretion. Of course, common

reason suggests that the court would have no jurisdiction to allow theamendment of a complaint over which it has no jurisdiction . in one case, theSupreme Court declared that the court not having jurisdiction over theoriginal complaint, the court has no power to act on the admission of theamendment complaint. (Rosario vs. Carandang, 96 Phil. 845). Take notehowever, that there are decisions (Gumabay vs. Baralin, 77 SCRA 258;Soledad vs. Mamangun, 8 SCRA 110), which allowed such amendments whenthe amendment is made as a matter of right, i.e., before a responsivepleading has been filed. It would seem that the doctrine that amendmentscannot be made to cure lack of jurisdiction should be made to apply only to asituation where a responsive pleading has already been served and not to acase where an amendment is made as a matter of right.

What is the effect of the amendment of a pleading? An amendmentpleading supersedes that it amends. (Sec 8, Rule 10, Rules of Court).

This brings us to another question: If the old pleading is superseded, isa new summons required to be served upon the defendant? Answer: Althoughit is well settled that an amended pleading supersedes the original one, andno longer considered part of the record, it does not follow that new summonsbe served. Where the defendant has already appeared before the court byvirtue of the summons in the original complaint (as when defendant had fileda motion to dismiss or an answer), the amended complaint may be servedupon him without need for another summons even if new causes of action are

alleged in the amendment. Conversely, a defendant who has not yetappeared must be served with summons. It is not therefore, the change ofthe cause of action that gives rise to the need to serve new summons.(Viason Enterprises Corporation vs. Court of Appeals, 310 SCRA 26).

There are times when there are issues raised in the trial which havenot been raised in the pleadings of the parties. If said issues are tried withthe express or implied consent of the parties, they shall be treated in allrespects as if they had been raised in pleadings. This gives rise to a situationwhere the issues raised in the trial and the evidences thereto do not conformto the issues in the pleadings of the parties. As a remedy, existing rules allowa 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 theevidence? This is not a problem at all. Since the issues have already beentried with the consent of the parties, the failure to amend the pleadings doesnot affect the result of the trial of such issues. The pleadings are hence,deemed amended by implication.

What if evidence to a matter not in issue in the pleadings is offered inthe course of the proceedings and the other party objects on the ground thatthe evidence is irrelevant because it pertains to a matter not in issue. Maythe court sustain the objection? It is submitted that the court may sustain theobjection but it may also however, allow the amendment of the pleadings ifthe presentation of the merits of the action and the ends of substantial

justice will be observed thereby. It may likewise grant a continuance toenable the amendment to be made. (Sec. 5, Rule 10, Rules of Court).

Are amended pleadings the same as supplemental pleadings? They arenot. Supplemental pleadings allege facts which occur after the originalpleadings have been filed. Note that supplemental pleadings must allegefacts pertaining to the original cause of action in the complaint. Example: Pfiles foreclosure proceedings on a loan of D based on a promissory note

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secured by a real estate mortgage. D encounters by claiming damagesagainst P. While the action was pending, P files another foreclosureproceedings on a loan also of D based on another promissory note secured bya real estate mortgage. The second loan was based on a differenttransaction. D now seeks the admission of a supplemental pleading allegingadditional damages as a result of the second foreclosure suit. Should the

supplemental pleading be admitted? Answer: It should not be admitted. Theso-called supplemental pleading does not relate to the cause of action of thefirst foreclosure suit. Here there are different causes of action based ontotally unrelated transactions.

13. When the complaint is filed and the requisite legal fees have beenpaid, the clerk of court shall issue the summons to the defendant. (Sec. 1,Rule 14, Rules of Court). The service of summons is required so the courtmay acquire jurisdiction over the person of the defendant and to comply withthe requirements of due process. Another way of acquiring jurisdiction overthe 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).

14. Although under the Rules, the defendant is required to answer thecomplaint within fifteen (15) days from service of summons (Sec. 1, Rule 11),the defendant need not answer. If there are matters in the complaint, whichare vague or ambiguous or not averred with sufficient definiteness, he mayfile a motion for bill or particulars under Rule 12. It is not procedurally correctto file a motion to dismiss because the complaint is ambiguous.

If the motion for bill of particulars is granted, the court shall order thesubmission of a bill of particulars. If the order is not obeyed, the court mayorder the striking out of the pleading or portions thereof to which the order

was directed. (Secs. 4 & 5, Rule 12, Rules of Court).

15. Even when the allegations are now clear enough to enable thedefendant to file his responsive pleading because the adverse party hasalready submitted a bill of particulars, the defendant need not file his answerimmediately. He must first explore the possibility of filing a motion to dismissunder Rule 16. if there is no ground for a motion to dismiss, he has to file hisanswer.

When a motion to dismiss is filed, all grounds available at the time themotion is filed must be invoked in the motion. This is required under theomnibus 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 motion todismiss may be availed of as affirmative defenses in the answer (Sec. 6, Rule16). 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 todismiss in relation to waiver of defenses.

16. If the defendant does not file his answer within the time required bythe Rules, he may be declared in defaultunder the provisions of Sec. 3 ofRule 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, noissue that could be the subject of a trial. In this case, the plaintiff or claimingparty should file a motion forjudgment on the pleadings. (Rule 34, Rules ofCourt). If the answer tenders an issue but the issue is not genuine as whenthe issue is one involving mere accounting or the exact amount of damagesthe remedy is a motion for summary judgment. (Rule 35).

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Default: If the defendant does not file an answer, he may upon propermotion be declared in default. Take note that it is the failure to answer withinthe reglementary period that supplies the basis for declaring the defendingparty in default. Hence, it is error to declare an answering defendant indefault. Remember: The court cannot motu propio declare the defendant indefault. A motion has to be filed by the plaintiff. Query: What is the remedy of

the party declared in default? The party declared in default may file a motionto set aside the order of default upon proper showing that his failure to do sowas due to FAME (fraud accident, mistake or excusable negligence). Thismotion must be under oath and must be accompanied by an affidavit ofmerit, i.e., an affidavit that declares that the defaulting defendant has ameritorious defense. This meritorious defense is embodied in what iscommonly known as an affidavit of merit. It is also good practice to attachthe answer of the defendant to the motion to set aside the order of default.

While normally, the affidavit of merit must accompany the motion, ithas been held that this affidavit may be dispensed with if the defendant whofails 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 propersubject ofcertiorari proceedings because of the jurisdictional issue involved.(Ponio vs. IAC, 133 SCRA 577). The principles in default do not apply wherethe 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 motionfor extension of time to file an answer, in both cases, the period to file ananswer has not yet lapsed. In De Guia vs, De Guia, G.R. No. 135384, April 4,2001, the requirement of an affidavit of merit was liberally interpreted. Here,the requirement for the affidavit was deemed substantially complied withwhen the answer filed contained the defenses of the defendant and theanswer was verified (under oath).

Effect of declaration of default on the rights of the party declared indefault: A party in default cannot participate in the trial but he is entitled tonotice of subsequent proceedings. He must be also notified of the motiondeclaring him in default as well as the order of default. He is entitled tonotices because a default order does not mean a waiver of all the rights ofthe defendant. By his default, he is not deemed to have been completelythrown out of court. After the defendant is declared in default, must theplaintiff be required to present his evidences to support his materialallegations? The matter is addressed to the discretion of the court. The courtmay either (1) render judgment on the basis of the complaint, or (2) requirethe plaintiff to present evidence (ex parte). The reception of evidence may be

delegated to the clerk of court. Extent of relief to be awarded: May the courtaward P1 million where the prayer of the complaint seeks for only P500,000?In default judgments, the court may not. A judgment rendered against aparty declared in default shall NOT exceed the amount prayed or be differentin kind from that prayed for. This is true even if during the reception ofevidence the plaintiff proves a higher amount of damages than what hasbeen alleged in the complaint. Also, unliquidated damages shall not beawarded. (Rule 9, Sec. 3(d)).

Cases where no default is allowed: (1) Action for annulment ofmarriage; (2) Action for legal separation, and (3) Action for declaration ofnullity of marriage. Instead of declaring the non-answering defendant in

default, the court shall order the prosecuting attorney to determine whetheror not a collusion exists between parties, and if there is none, to intervene forthe State to see to it that the evidence submitted is not fabricated. Query:May the court motu propio declare the defendant in default for failure totimely file his answer? The court cannot do so. There must be a motion filedto that effect.

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17. Answer: The answer contains the defenses of the defendant. Thesedefenses are of two kinds: negative and affirmative defenses. The negativedefenses are stated in the form ofspecific denials. The specific denials aredescribed in Sec. 10 of Rule 8 (see them). If the denial is not one of thosedescribed, the denial is deemed to be general. A general denial is anadmission. 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), notspecifically denied are deemed admitted. Since the allegations are deemedadmitted, there is no more issue triable between the parties. The plaintiffmay now file a motion for judgment on the pleadings. A negative pregnantdoes not qualify as a specific denial. It is an admission. Example: A complaintalleges plaintiff extended a loan to Defendant in the amount of P500,000 on

July 27, 2002 in Baguio City. The defendant in his answer alleges:Defendant specifically denies that Plaintiff extended a loan to Defendant inthe amount of P500,000 on July 27, 2002. The answer is a mere repetition ofthe allegations made in the complaint. The answer is vague as to what itreally 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.

Specific denials: One type of a specific denial is where the defendantalleges that he Is without knowledge or information sufficient to form abelief as to the truth of a material averment made in the complaint. Thistype of specific denial must be made sincerely and in good faith Example:Mr. D signs a promissory note in favor of Mr. P. Because Mr. D failed to paydespite demand, suit was brought against him. The complaint duly pleadedthe promissory note as an actionable document. Mr. D denies the allegedpromissory note by averring lack of knowledge of the note. This averment isclearly one in bad faith and shall be considered as an admission because it isabsurd for Mr. D not to know of the promissory note he himself signed.

Actionable documents: - If a complaint was filed based on apromissory note the promissory note is the basis of the action. How is thispromissory note alleged in the complaint? It must be done in the followingmanner: The substance of this promissory note shall be set forth or stated inthe pleading AND the original or copy thereof shall be attached to thepleading as an exhibit. When attached as an exhibit the promissory note shallbe deemed a part of the pleading, i.e., it may be copied verbatim. (Sec. 7,Rule 8). When the manner of alleging the document is done in accordancewith the Rules, the document becomes an actionable document. Now, whatshall the adverse party do if he desires to contest the document? Theadverse 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 GENUINESS and DUEEXECUTION of the promissory note. Because of this admission, he can nolonger deny that the note was forged or that he had no authority to executethe instrument. These defenses are barred by the admission. May hehowever, still defend by showing that the note was executed by fraud, or thatthe note has prescribed or was already paid? Yes, he can. These defenses arenot barred by the admission.

18. Judgment on the pleadings: A judgment on the pleadings is properwhere the answer of the defendant fails to tender an issue, or otherwiseadmits the material allegations of the other partys pleadings. Actually no

issue is tendered when the defendant admits the material allegations of thecomplaint. This admission arises when (1) there is an actual admission of theallegations, or (2) the defendant makes a general denial instead of a specificdenial. Note: Judgment on the pleadings is not proper in the followingactions: (1) declaration of nullity; (2) annulment of marriage; or (3) legalseparation. In these case, the material facts alleged in the complaint shallalways be proved. (Rule 34, Rules of Court).

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19. Counterclaim; cross-claim; third-party complaint; complaint inintervention: If the defendant has a claim against the plaintiff, heincorporates in his answer a pleading called a counterclaim. This is apleading, which a defending party files against the opposing party. (Sec. 6,Rule 6). It is therefore, a claim by the defendant against the plaintiff. In a

counterclaim, the original defendant becomes the plaintiff, and the originalplaintiff, the defendant. A counterclaim may either be compulsory (Sec. 7,Rule 9) or permissive. If there are two or more defendants, one defendantmay file a claim against a co-defendant. This is done through a pleadingcalled a cross-claim. (Sec. 8, Rule 9). If the defendant wants to bring in aperson who is not yet a party to the suit, he may do so with leave of courtand file a third-party complaint. (Sec. 13, Rule 6). The plaintiff, on the otherhand may wish to answer the defendants answer. This answer is a pleadingcalled reply. (Sec. 10, Rule 6). A reply is not mandatory. Even if no reply isfiled, the allegations of the answer are anyway deemed controverted ordenied. The Rules actually make the denial for the plaintiff.

Sometimes, someone who is not a party to the action feels andbelieves that he has a legal interest in the matter in litigation, or in thesuccess of either of the parties, or an interest against both. In this case, hemay, with leave of court, join the fray and he may do so by filing a complaintfor intervention. (Rule 19, Rules of Court).

Examples: (1) Mr. P sues Mr. D for a sum of money. Mr. D also claimsthat he incurred hospital bills as a result of the unjustified complaint of Mr. P.

The claim of Mr. D is a counterclaim. Since this counterclaim arises from thecomplaint, it is called a compulsory counterclaim. This counterclaim must beset up in the same action. If not set up, it will be forever barred. (2) Plaintifffiled an action to recover ownership and possession of a land occupied by

defendant. Judgment against defendant. Later defendant filed an action torecover the cost of the improvements he introduced in the land. This claimshall be barred. This claim should have been set up as a counterclaim in theaction filed by plaintiff. It is now barred because the counterclaim iscompulsory. (Baclayon vs. Court of Appeals, 182 SCRA 761). (3) Plaintiff filedan action for a sum of money against defendant. The latter claims thatplaintiff is liable to him for damages arising from a quasi-delict, whichoccurred prior to the filing of the action. The claim of defendant is apermissive counterclaim. It has no connection to the subject matter of thecomplaint. It is not barred even if no set up in the action because it could bethe subject of an independent action. (4) Plaintiff, lessee filed an action forspecific performance against lessor in the RTC so the latter would complywith certain obligations in the lease contract. Lessee filed a counterclaim forunlawful detainer on the ground of expiration of the lease. Is this acompulsory counterclaim? It is not. A compulsory counterclaim must bewithin the jurisdiction of the court both as to amount and nature. Thecounterclaim is within the jurisdiction of the MTC, which has jurisdiction overcases of unlawful detainer. An unlawful detainer case must be independentlyfiled in the MTC and not by way of counterclaim in a case. Also, if thecounterclaim is a labor claim, it cannot be cognizable by a regular court.NOTE: A compulsory counterclaim need not be answered, otherwise theplaintiff may be declared in default as to the counterclaim. A docket fee mustbe paid. (5) A depositor sued the bank and its cashier for money depositedwith the bank. The bank alleges it never received the money from thecashier. What should the bank do? The bank should file a cross-claim againstthe cashier. (6) Plaintiff sues the judgment creditor and the Sheriff for sellingplaintiffs property. What may the sheriff do? The Sheriff may file a cross-claim against the judgment creditor. (7) P sues D, and S, the surety. Againstwhom may S, the surety have recourse? Against D. S may then file a cross-claim against D. (8) P sues D on a promissory note. D loaned the money heborrowed to T. What may D do? D may file a third-partycomplaint against T

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for contribution. (9) S sells a car to B. Later O sues B to recover the carbecause he is the true owner of the same. B may file a third-party complaintagainst S to enforce the warranty against eviction. (10) P, whose store wasburned filed a claim against the insurance company. The insurance companyrefused to pay and defended by claiming that the loss was due to the willfulact of P. The insurance company then filed a third-party complaint against

the re-insurance company for indemnity. May the re-insurer assert as adefense that the plaintiff, P, caused the loss? It can. A third party defendantunder 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-partydefendant may not however, ordinarily file a counterclaim against the originalplaintiff, P for lack of privity UNLESS the counterclaim is shown to be inrespect to the original plaintiffs claim against the third-party plaintiff. Thus,the re-insurer may only file a counterclaim against the plaintiff P, if the saidcounterclaim is in respect to the claim of P against the insurance company.(11) Debtor and surety signed a promissory note jointly and severally. If acomplaint is filled by the creditor against the surety alone, how may the latterclaim against the debtor? By filing a third-party complaint against the debtor.

(12) P sues D for damages arising out of a vehicular accident. D claims that itwas T who was the proximate cause of the mishap. D may file a third-partycomplaint against T for subrogation. (13) Creditor files an action againstDebtor No. 1 alone who together with Debtor No. 2 signed a note as solidarydebtors. Debtor No. 1 may file a third-party complaint against Debtor No. 2for contribution. Note: in a solidary obligation, the plaintiff need not impleadthe other debtor because anyone among the debtors may be required to paythe entire debt. The other debtor is not an indispensable party but only anecessary party. (14) P sues D for recovery of a parcel of land. D acquired theland from E who in turn acquired it from F. May D file a third-party complaintagainst F? No. There is no privity between D and F. D should file a third-partycomplaint against E and E should file a fourth-party complaint against F.

NOTE: Summons on third-party defendant is required to acquire jurisdictionover his person (Feria). If the complaint is dismissed, the third-partycomplaint will also be necessarily dismissed. (Go vs. Court of Appeals, 100SCRA 549). The filing of a third-party complaint requires LEAVE of court.NOTE: A third-party complaint seeks affirmative relief. No such relief issought for in declaratory relief, which merely seek a declaration of ones legalrights and duties under a statute, executive ordinance, or governmentalregulation. However, it was held that a counterclaim may be filed in a petitionfor declaratory relief. (Visayas Packing vs. Reparations Commission 155 SCRA542). (15) P sells five trucks to XYX Partnership. Before he was paid thepurchase price, the partnership was dissolved. In the judicial winding up ofthe partnership assets, what may P do to protect his interest? P may file acomplaint in intervention. (16) Creditor sues S, his surety in a monetaryobligation. May D, the principal debtor intervene? He may. A judgmentagainst S will prejudice D because S will have to sue D for reimbursement.(17) A and B are locked in a civil dispute over a parcel of land. C claims theland as his but he is not a party to the action. What may C do? He should filea complaint in intervention. NOTE: Intervention must be with LEAVE of court.It is not an independent action, but is an auxiliary supplemental to theexisting litigation.

20. A reply is the last possible pleading that could be filed in the action. Itis the responsive pleading to an answer. You do not file a reply to acounterclaim or cross-claim. What you do is to file an answer, not a reply. Areply is not mandatory if your purpose is to deny the new matters alleged inthe answer. Even if not filed, the allegations of new matters by the defendantin his answer are deemed controverted or denied anyway. A reply musthowever, be filed if the defendants defense is based on a document dulypleaded. The reply should be filed because if such document, which forms thebasis of the defendants defense, is not specifically denied under oath, itsgenuiness and due execution shall be deemed admitted. To avoid this

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admission the reply must contain a specific denial. Further, the reply mustbe under oath. (Toribio vs. Bidin, 134 SCRA 162).

An old case held that if the defendants answer alleges the defense ofusury, a reply under oath must be made. If not, the allegation of usury will bedeemed admitted. (Sun Bros. vs. Caluntad, 16 SCRA 895). It is submitted that

the phraseology of the present rule on the matter has made the applicabilityof the Sun Bros. case suspect. Under Sec. 11 of Rule 8 what need to bespecifically denied under oath is an allegation of usury in a COMPLAINT torecover usurious interest and not a defense of usury in the answer.

21. Pre-trials: After the last pleading has been served and filed, it shall bethe duty of the plaintiff to promptly move that the case be set for pre-trial.

The motion is an ex parte motion. Because it is an ex parte motion, noticeneed not be served on the defendant. Remember that the filing of the motionto set the case for pre-trial is the duty of the plaintiff. It is not the duty of thedefendant. Remember too that to move for a pre-trial before the last pleadinghas been filed is premature. Thus, when there is an unresolved motion to

dismiss or a motion for bill of particulars, or when no answer has yet beenfiled, a pre-trial conference is premature. (Rule 18, Rules of Court).

The plaintiff must appear in the pre-trial. (Sec. 4, Rule 18). What is theconsequence of the non-appearance of the plaintiff? Unless excused, orwhen a representative appears in his behalf duly authorized in accordancewith the Rules, the failure to appear by the plaintiff shall be a cause fordismissal of the action. Under the previous Rules, the plaintiff who fails toappear is declared non-suited.

Example No. 1: Mr. Plaintiff did not appear in the pre-trial without avalid excuse and the action is dismissed. He wants to know from you if he can

refile the case. What would your advice be? I would advice him that hecannot refile the case. This is the general rule. The dismissal as a rule is adismissal with prejudice. The only way the plaintiff can refile the case is whenthe order of dismissal itself declares that the dismissal is without prejudice. Ifthe 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 ofdismissal. Why? The remedy is appeal from the order of dismissal becausethe dismissal for failure to appeal in a pre-trial hearing is an adjudication onthe merits. It is final in character and not a mere interlocutory order. (Sec. 5,Rule 18).

Example No. 2: The plaintiff appeared in the pre-trial. The defendantdid not. What may the court do? The court may order that the plaintiff beallowed to present his evidence ex parte and render judgment on the basisthereof. In the previous Rules, the defendant in this case was declared as indefault. The words, as in default, no longer appear in the present rules.

Example No. 3: 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 beforethe pre-trial. Suppose the plaintiff failed to file the required brief and thecourt dismissed the action, Did the court act correctly? It did. The failure tofile 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 reconsiderationshowing that his failure to file a pre-trial brief was due to fraud, accident,mistake, or excusable neglect. (Saguid vs. Court of Appeals, G.R. No. 150661,

June 10, 2003).

Example No. 4: During the pre-trial conference, the defendantmanifested that he has no interest in any form of amicable settlement. Thecase 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

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present his evidence ex parte because of the defendants failure to appear.Did the court act correctly? It did not. Once a party manifests his oppositionto an amicable settlement, said party may no longer be compelled to attendanother pre-trial conference. (Pioneer Service vs. Hontanosas, 78 SCRA 448;Insurance Company of North America vs. Republic, 21 SCRA 887).

22. Before the trial, any party may avail of any of the modes of discoveryfrom Rules 23-29. Note: IN Bar 2000, the examinees were asked to give andbriefly describe at least five (5) modes of discovery. (Bar 2000, Question No.5).

Example: The defendant filed a motion for the production andinspection of the notes, papers and documents compiled by the attorney forthe plaintiff in preparation for the litigation. The motion was granted. Theattorney refused to comply with the order. May the attorney be compelled toproduce his documents? No. Under the work product rule, said documentsare privileged. NOTE: 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, 299SCRA 376). Note that while the rule requires that only ultimate facts mustbe alleged in a pleading, the modes of discovery may inquire into evidentiaryfacts. Let us suppose that a motion for bill of particulars filed by thedefendant was denied. May he avail of the modes of discovery even if thematters desired in the denied motion are the same matters sought to bediscovered? He may. A bill of particulars is for the purpose of clarifying theallegations of the adverse partys pleading. Yet the bill of particulars wouldrefer only to ultimate facts since evidentiary facts are not proper in apleading. On the other hand, the modes of discovery could elicit evidentiaryfacts on the matters subject of the prior motion for bill of particulars.

Uses of depositions: A deposition may be used to impeach orcontradict the testimony of the deponent. If the deponent is an adverseparty, his disposition may be used not only to impeach him but also to showadmissions on his part. Query: Plaintiff takes the depositions of X. There wasno proof that he would not be available during the trial. (a) May his depositionbe taken? It may be taken. His inability to attend the trial does not precludethe taking of his deposition. Such matter is not a requirement for the takingof persons deposition. (b) By taking the deposition of X, does X now becomethe witness of the plaintiff? He does not. A party shall not be deemed to makea person his own willness for any purpose by taking his deposition. (Sec. 7,Rule 23). The plaintiff served upon the defendant a written request foradmission of the genuiness of several documents as well as relevant andmaterial facts. The defendant ignored the request. What is the effect? Each ofthe matters of which an admission is requested shall be deemed admitted.(Sec. 2, Rule 26).

A party is required to serve upon the adverse party writteninterrogatories. There is a consequence for failure to do so. A party notserved with written interrogatories may not be compelled by the adverseparty to give testimony in open court, or to give a deposition pending appeal.(Sec. 6, Rule 25).

23. Effect of failure to file and serve request for admissionUnlessotherwise allowed by the court for good cause shown and to prevent a failureof justice, a party who fails to file and serve a request for admission on theadverse party of material and relevant facts at issue which are, or ought tobe, within the personal knowledge of the latter, shall not be permitted topresent evidence on such facts (Sec. 5, Rule 26).

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24. After trial (Rule 30), the court shall now render a judgment. A losingparty may avail of certain remedies fore the protection of his rights. Theseremedies are:

(a) Before finality of the judgment

1. motion for reconsideration (Rule 37)2. motion for new trial (Rule 37)3. appeal (Rules 40-45)

i. ordinary appeal (Rules 40-41)ii. petition for review (Rule 42)iii. appeal by certiorari (Rule 45)

(b) After finality of the judgment1.) petition to relief (Rule 38)2.) petition for certiorari (Rule 65)3.) annulment of judgment (Rule 47)

Note: A party still has remedies even if the judgment is already final andexecutory.

CAUSE OF ACTION

1. A cause of action requires the following elements: (a) a right of theplaintiff; (b) an obligation on the part of the defendant to respect or not toviolate such right; (c) an act on the part of the defendant violating the rightto the plaintiff. (Far East Bank & Trust Company vs. Court of Appeals, 341SCRA 485 [2000]).

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 takecognizance of external facts or to hold preliminary hearings to determine itsexistence. (Diaz vs. Diaz, 331 SCRA 302, 316 [2000]). The lack of a cause ofaction must appear on the face of the complaint and its existence may bedetermined only by the allegations of the complaint, consideration of otherfacts being prescribed and any attempt to prove extraneous circumstancesnot being allowed. (Viewmaster Construction Corporation vs. Roxas, 335SCRA 540 [2000]). Note however, that the annexes to the complaint may beconsidered in determining whether or not a complaint states a cause ofaction because such annexes are considered parts of the complaint. (Sea-Land Service, Inc. vs. Court of Appeals, 327 SCRA 135 [2000]). Example: Psues D on a culpa aquiliana theory. D moves to dismiss on the ground thatthe 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 determinewhether or not he has a cause of action. Is the court correct? The court is notcorrect. The allegations of the complaint will tell whether or not the complaintstates a cause of action. Failure to state a cause of action does not mean thatthe plaintiff has no cause of action. It only means that the plaintiffsallegations are insufficient for the court to know that there was a violation ofhis rights by the defendant. Thus, even if indeed the plaintiffs right wasviolated, if the same is not set forth in the complaint, the pleading fails tostate 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 actionis NOT lack of a cause of action or no cause of action. The ground is thatthe pleading asserting the claim STATES NO CAUSE OF ACTION. (Sec. 1(g),Rule 16; San Lorenzo Village Association, Inc. vs. Court of Appeals, 288 SCRA115 [1998]). In Enojas vs. COMELEC, 283 SCRA 229, [1998]), the Court heldthat the ground for dismissal based on the fact that the pleading assertingthe claims states no cause of action is different from the ground that the caseof the claimant should be dismissed for lack of a cause of action. The first is

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raised in a motion to dismiss under Rule 16 before a responsive pleading isfiled and can be determined only from the allegations of the pleading and notfrom evidentiary matters. The second is raised in a demurrer to evidenceunder Rule 33 after the plaintiff has rested his case and can be resolved onlyon the basis of the evidence he has presented in support of his claim. (Seealso Dabuco vs. Court of Appeals, 322 SCRA 853 [2000]).

4. ACTIONS: The examinee needs to master the kinds of actions speciallythe distinction between a real and a personal action and the distinctionamong an action inpersonam, quasi in rem or in rem. Note: The nature of theaction is not dependent upon the name given by the pleader. It is dependentupon the allegations of the complaint. Thus, where the allegations of thecomplaint state that the actual transaction between the parties was not asale but an equitable mortgage, the trial court correctly resolved the matterin issue even if the action was erroneously labeled as an action forreformation. (Lorbes vs. Court of Appeals, G.R. No. 139884, February 15,2001).

5. The distinction between a real action and a personal action isimportant for the purpose of determining the VENUE of the action.

A personal action is transitory, i.e., venue depends upon theresidence of the plaintiff or the defendant at the option of the plaintiff. A realaction is local, i.e., venue depends upon the location of the propertyinvolved in the litigation. An action is real when it is founded upon the privityof real estate. That means that realty is the subject matter of the action.

It must be remembered that not every action involving a real propertyis a real action because the realty may only be incidental to the subjectmatter of the suit. To be a real action, it is not enough that it must deal with

real property. It is important that the matter in litigation must also involveany of the following issues: title to, ownership, possession, partition,foreclosure or condemnation or real property.

Examples: An action for damages to real property, while involvingrealty is a personal action because although it involves real property, it doesnot involve any of the issues mentioned.

An action to recover possession of real property (ejectment) plusdamages is a real action because possession of the real property is involved.

An action to recover possession of a personal property is a personalaction.

An action for a declaration of the nullity of marriage is a personalaction (Tamano vs. Ortiz, 291 SCRA 584).

An action for specific performance is a personal action (Siosoco vs.Court of Appeals, 303 SCRA 186).

Although a complaint is entitled to be one for specific performance, theaction is actually a real action for the recovery of land where the plaintiff asksthat a transfer certificate of title covering said land be issued to him. Theaction must therefore, be filed where the property is situated. Also, if theaction is denominated as one for specific performance, but the plaintiff seeksfor the issuance of a deed of assignment in his favor of certain shares ofstocks to regain ownership and possession of said shares, the action is notone for specific performance but a personal action for the recovery ofproperty. The docket fee therefore, should be computed based on the valueof the property and not based on the docket fee for specific performance(National Steel Corporation vs. Court of Appeals, 302 SCRA 522, 530).

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If the question involves the venue of an action, the examinee mustfollow the following steps: (a) Ask first whether the action is real or personal.(b) After determining the nature of the action, then apply the rules on venueunder Rule 4. For instance, an action to annul a sale of a land located inBaguio City must be filed in Baguio City. For the purpose of venue

determination, the action is a real action and must be filed in the place wherethe property is situated regardless of the residence of the parties.(Emergency Loan Pawnshop, Inc. vs. Court of Appeals, G.R. No. 129184,February 28, 2001).

An action for ejectment must be filed where the property subject of theaction is situated. Do not consider the residence of the parties.

Improper venue: Although the venue is technically improper, thevenue is still proper if the defendant does not object. Venue is not a matter ofsubstantive law but is primarily for the convenience of the parties. It is up forthe defendant to question the venue. If he does not raise the issue of venue,

the Court HAS NO AUTHORITY to motu propio dismiss a case for impropervenue. Exception: In cases covered by summary procedure, the court maydismiss a case outright on any of the grounds apparent in the complaint. Thisof course includes improper venue. The dismissal here need not be precededby a motion to dismiss because it may be done by the court motu propio(Sec. 4, Rules of Summary Procedures).

Venue can be stipulated upon and may have the effect of changing therules on venue provided for in the Rules. Example: P resides in Manila.Defendant resides in Quezon City. The written contract stipulates that anysuit arising from a violation of a contract shall be filed only in Pasay City. Psues D for damages arising from an alleged breach of contract. Action was

filed in Quezon City. Is venue improper? Venue is improper. The stipulation tofile the action only in Pasay City has the effect of ruling out the residences ofthe parties as possible venue of the action because of the exclusive characterof the stipulation. The suit cannot therefore, be filed anywhere other thanPasay City.

What is the effect if the stipulation merely provides, shall be filed inPasay City? The effect is merely to add Pasay City as a venue aside fromManila and Quezon City. Hence, aside from Manila and Quezon City, anothervenue of choice is Pasay City.

NOTE: Venue is not jurisdictional in a civil case but is jurisdictional in acriminal case.

Query: If a motion to dismiss based on improper venue is denied, maythe defendant appeal? He cannot. An order denying a motion to dismiss ismerely interlocutory. It is not final. Only final orders or judgments maybeappealed. The normal remedy is to file an answer and interpose the groundas an affirmative defense, go to trial and appeal from the adverse judgment.However, if the denial is tainted with grave abuse of discretion amounting tolack of jurisdiction, the remedy is certiorari and prohibition (Emergency LoanPawnshop vs. Court of Appeals, G.R. No. 129184, February 28, 2001).

Query: The property of the judgment debtor located in Makati City wasforeclosed. Where should the action be filed if the plaintiff resides in Manilaand the defendant in Quezon City? The action shall be filed in Makati City, theplace where the property is situated. Foreclosure of real property is a realaction.

Query: There was a deficiency after the sale. The debt sought to berecovered is P3 million. The property was sold for only P2.5 million. The

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judgment creditor successfully obtained a deficiency judgment. Thedefendant debtor is a resident of Quezon City and the plaintiff creditor, aresident of Manila. The property foreclosed is located in Makati City. Whereshould the action to enforce the deficiency judgment be filed? Either inManila or Quezon City at the option of the creditor plaintiff. An action torecover the deficiency is a personal action and so the venue depends on the

residences of the parties.

6. An action in personam is not necessarily a personal action. Nor is areal action necessarily an action in rem. An in personam or an in rem action isa classification of actions according to the OBJECT of the action. A personaland real action is a classification according to FOUNDATION. It is in rem whendirected against the whole world. An action for ejectment is a real action butis in personam because it is directed against a particular defendant. While anaction for annulment of marriage is a personal action because it is notfounded on real estate, it is an in rem action because the issue of the statusof a person is one directed against the whole world.

7. Why is there a need to make a distinction between an action inpersonam and an action in rem? This distinction is vital for a party to knowwhether or not jurisdiction over the person of the defendant is required. Such

jurisdiction is vital when the action is in personam. In this kind of action,jurisdiction over the person of the defendant is mandatory. In an in rem orquasi in rem action, what is required is jurisdiction over the res and not

jurisdiction over the person of the defendant.

Where the defendant is a resident of the Philippines and the actionagainst him is in personam, jurisdiction over him is acquired by faithfullycomplying with the summons under Sec. 6 of Rule 14 (service in person) or incase this type of summons is not feasible, by availing of Sec. 7 of Rule 14

(substituted service). Substituted service is not the general rule. It appliesonly if service in person cannot be done within a reasonable time despite thehonest efforts of the sheriff. Jurisprudence requires that efforts be exhaustedto serve the defendant in person and such efforts need be stated in thesheriffs return. Compliance with this requirement is mandatory to justify asubsequent substituted service.

Summons by publication, as far as existing jurisprudence isconcerned, will not enable the court to acquire jurisdiction over the person ofthe defendant. (Pantaleon vs. Asuncion, 105 Phil. 761; Citizens Surety &Insurance Co., Inc. vs. Nieto, 125 SCRA 758, Consolidated Plywood vs. Breva,166 SCRA 589). There are however, exceptions to this rule where thedefendant is a resident of the Philippines. These are:

(a) where the resident defendants identity is unknown or hiswhereabouts are unknown (Sec. 14, Rule 14); (b) Where the residentdefendant is temporarily out of the Philippines. These exceptions apply inANY ACTION, hence, even if the action is in personam. NOTE: Summons maybe dispensed with if the defendant voluntarily appears because under Sec. 20of Rule 14, voluntary appearance is equivalent to service of summons.

If the defendant in an action in personam is a non-resident, jurisdictionover his person is acquired by service of summons upon him in person withinthe Philippines (Asiavest Limited vs. Court of Appeals, 296 SCRA 529).Summons by publication will not be applicable and unlike in the case ofresidents, is not subject to any exceptions.

Now, if the action is in rem, jurisdiction over the person of thedefendant is not required because what is necessary is jurisdiction over theres. In an action in rem, summons by publication is available. The summonsby publication is coupled with a registered mail of the summons and the

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order of the court directed to the defendant at his last known address (Sec.15, Rule 14).

If a non-resident is sued for collection of a sum of money, jurisdictionover him can be obtained only by service of summons upon him in personwithin the country if he does not make a voluntary appearance. Substituted

service would not work because he has neither a residence in the Philippinesnor a place of business. A residence or a regular place or business is requiredto effect substituted service. Note that jurisdiction over the person of thedefendant is mandatory in this case because an action for a sum of money isan action in personam. Mere summons by publication will not enable thecourt to have jurisdiction over him. But if for example, the suit against such anon-defendant is a suit for annulment of his marriage to a Philippine resident,a suit for annulment may prosper despite the absence of the non-residentdefendant in the Philippines. This is because the action for annulment is anaction in rem. Summons by publication together with registered mail in thedefendants last known address will suffice because what the court merelyneeds is jurisdiction over the res. Other forms of summons (extra-territorial

service) provided for in sec. 15 of Rule 14 may also be available.

In action for specific performance against a non-resident who does notreside in the Philippines, summons by publication will not enable the court toacquire jurisdiction over him. An action for specific performance is an actionin personam (Gomez vs. CA, G.R. No. 127692, March 11, 2004).

7. When the defendant is a non-resident and he is not found in thecountry, summons may in certain instances, be served upon him extra -territorially in accordance with Rule 14, Section 15. Under this provision,there are only four (4) instances when extraterritorial service of summons isproper, namely:

(a) when the action affects the personal status of the plaintiff; (b)when the action relates to, or the subject of which is property within thePhilippines, in which the defendant claims a lien or interest, actual orcontingent; (c) when the relief demanded in such actions consists, wholly orin part, and excluding the defendant from any interest in property located inthe Philippines; and (d) when the defendant non-residents property has beenattached within the Philippines. Note that the above actions are either in remor in personam. Extraterritorial service therefore, can only be effected whenthe action is either in rem or quasi in rem and the defendant is a non-residentwho at the same time is not found in the Philippines. Jurisdiction over theperson of the defendant here is not required. This explains why summons bypublication may be effected in these kinds of actions. Instead of jurisdictionover the person of the defendant, the rule merely requires jurisdiction overthe res. Publication is allowed to enable the court to acquire this type of

jurisdiction. If the action however, against the non-resident defendant is inpersonam, extraterritorial service cannot be availed of. When the defendantin an action in personam is a non-resident, personal service of summonswithin the state is essential to the acquisition of jurisdiction over the person.

This cannot be done if the defendant is not physically present in the country.The court thus, cannot acquire jurisdiction over his person. So when theaction is for the recovery of a sum of money against the non-residentdefendant, the summons by publication is ineffective for the trial court toacquire jurisdiction over the person of the defendant. Any judgment renderedagainst him is therefore, null and void for lack of jurisdiction over thedefendant. (Banco do Brazil, 333 SCRA 545 [2000]).

Example No. 1: An American tourist while in the Philippines, incurredhotel bills of P2 million. Without paying his bills, he surreptitiously left thecountry. The hotel filed an action for a sum of money and with leave of courteffected summons by publication. The defendant made no appearance in any

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form. Judgment was rendered against him. Comment on the judgment.Judgment was rendered without jurisdiction over his person. The summons bypublication did not enable the court to acquire jurisdiction over him. Theaction is an action in personam.

Example No. 2: Mr. D is a balikbayan, a former Filipino and a

naturalized Canadian citizen. He visited the country to attend the funeral ofhis father from whom he inherited a parcel of land. He obtained a loan whilein the Philippines and executed a real estate mortgage on his inherited land.He left without paying the debt. An action to foreclosure the mortgage wasfiled. How may the court obtain jurisdiction over the person of Mr. X? There isno way unless he makes a voluntary appearance. He is already out of thecountry. Besides, jurisdiction over the person of the defendant is notnecessary under the facts of the case because the action for foreclosure isnot an action in personam. Foreclosure suits are in rem or quasi in remactions. In these kinds of actions, jurisdiction over the person of thedefendant is not necessary. Summons by publication and other modes ofextra-territorial service are enough to acquire jurisdiction over the res. May

the court therefore, validly render a judgment in the foreclosure proceedings?The court can. It has jurisdiction over the res as long as any of the modes ofsummons provided for under Sec. 15 0f Rule 14 on extra-territorial service iscomplied with. Extra-territorial service includes summons by publication andmailing by registered mail.

8. There are instances where a non-resident defendant has properties inthe Philippines. In an action in personam, as when the suit is for a sum ofmoney or for damages, there is no problem in acquiring jurisdiction over hisperson if he is in the Philippines because he may be served summons byusing the service under Sec. 6 of Rule 14 (service in person). If however, he isalready out of the country when the summons is to be served, service in

person would not be possible. Summons by publication would likewise beineffective to acquire jurisdiction over his person. The remedy is to file thesuit and at the same time avail of the provisional remedy of attachment.Following established principles, jurisdiction over the person of the defendantwould no longer be required when there is a writ of attachment over thedefendants properties because the suit has assumed the status of an actionquasi in rem which merely requires jurisdiction over the res. Summons bypublication or other modes of extraterritorial service would now be availableand thereafter, the suit can proceed despite the absence of the defendantbecause it would now be the property and not the person of the defendantwhich would be the object of the judicial power.

9. There is no such action called annotation oflis pendens. Notice oflispendens is ordinarily recorded without the courts intervention. Theannotation of lis pendens is not proper where the action is in personam likerecovery of a sum of money and damages. For the annotation to be proper,the action must be one affecting title to property. ( AFP Mutual Benefit

Association vs. Court of Appeals, 327 SCRA 203, 215 [2000]).

10. A party is barred from taking judicial action against another if by theclear terms of the agreement, arbitration is the mode provided by whichdamages and/or indemnity may be recovered. (Sea-Land Services, Inc. vs.Court of Appeals, 327 SCRA 135 [2000]).

11. SPLITTING A SINGLE CAUSE OF ACTION: This practice is discouragedbecause it breeds multiplicity of suits. Example: The act of a defendant intaking possession of the plaintiffs land by means of force and intimidationgives rise to two remedies: (a) recovery of possession, and (b) damagesarising from the loss of possession. Both remedies cannot however, be thesubject of two separate actions and must be alleged and claimed in only onecomplaint. Only one action should be brought. To file a separate action for

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each remedy is to split a single cause of action. Since the rule is that allremedies should be alleged in a single complaint, it goes without saying thatthose not therein included in the action filed cannot be the subjects ofsubsequent complaints because they are barred. Hence, an action for forcibleentry should include not only the plea for restoration of possession but alsoclaims for damages arising out of the forcible entry. The claim for damages

cannot be filed separately. (Progressive Development Corporation, Inc. vs.Court of Appeals, 301 SCRA 637).

NOTE: Splitting a single cause of action is a ground for dismissal basedon litis pendentia or lis pendens. If a final judgment had been rendered whenthe second action is filed, the latter may be dismissed based on res judicata.

The rule against splitting a single cause of action applies not only tocomplaints but also to counterclaims and cross-claims. To interpose a causeof action in a complaint and also invoke it in a complaint against the sameperson or party would be splitting a single cause of action (Mariscal vs. Courtof Appeals, 311 SCRA 51).

Examples: (a) A complaint for the quieting of title (claim of ownership)of the land must include any claim for the income and fruits of the land. Theclaim for income is merely incidental to the claim of ownership. (b) An actionfor partition and a claim for improvements on the land cannot be split in twoseparate complaints. When you file an action for partition, you have to claimthe value of the improvements in the same action. (c) Where a note issecured by a mortgage, the creditor has a single cause of action. Althoughthe debt and the mortgage are two separate agreements, the mortgage issubsidiary to the debt or loan and both refer to the same obligation. Thecreditor therefore, cannot file both an action for foreclosure of the mortgageand another action to collect a sum of money. (d) Where an obligation is tobe performed at different times and therefore, divisible, each breach is a

distinct cause of action. This situation occurs in obligations to be performedin installments where each default of an installment gives rise to a distinctcause of action. Each default may therefore, be the subject of a separate suit.If however, suit is filed only after several breaches, all such breaches shouldbe embodied under a single complaint only. Also, where the breach is totalas when the defendant gives notice of his refusal to comply with the contractat the outset, there is an anticipatory breach and there can only be oneaction filed.

12. JOINDER OF CAUSES OF ACTION: A party may in one pleadingassert, in the alternative or otherwise, as many causes of action as he mayhave against an opposing party (Rule 2, Section 5). To illustrate: D is thedebtor of C for P150,000 due on September 5, 2007. D likewise owes CP350,000 due on September 13, 2007. D has not paid the debts despitedemand. Each debt is a separate cause of action because each is the subjectof different transactions. However, under the rule on joinder of causes ofaction, C may file a single suit against D for the collection of both debts,despite the claims being separate causes of actions and having arisen out ofdifferent transactions. Remember that when there is only one plaintiff andone defendant, you do not have to ask whether or not the causes of actionsarose out of the transaction or series of transactions. This question is onlyrelevant when there are multiple plaintiffs or multiple defendants. In thehypothetical just discussed, is C obliged to join the causes of action againstD? No. C is not obliged to do so. He may file a single suit for each of theclaims or simply a single suit for both because joinder of causes of action isnot compulsory. It is merely permissive. In case C decides on the joinder, thesuit shall be filed in the Regional Trial Court because the jurisdictionalamount is within that courts jurisdiction. When the claims in all the causes ofaction are principally for the recovery of money, the aggregate amountclaimed shall be the test of jurisdiction. (Sec. 5(d), Rule 2, Rules of Court).

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Assume that aside from the above claims, C as lessor also wants toeject D from the apartment occupied by D as lessee. May the action be joinedwith the claims for money? The answer is NO. This is because the action forejectment is a special civil action. This kind of action cannot be joined withordinary actions. The joinder does not include special civil actions or thoseactions governed by special rules. Example: The causes of actions against D

in favor of P are: P1 million based on a note; P1 million based on torts; andforeclosure of a real estate mortgage. May the causes of action be joined?

Yes, but excluding foreclosure of real estate mortgage which is a special civilaction and is governed by special rules.

When there are two or more defendants, or one or more plaintiffs, thecauses of action against the defendants can be joined if there is a compliancewith the rules on joinder of parties under Sec. 6 of Rule 3. This provisionrequires that the right to relief arise out of the same transaction and thatthere exists a common question of law or fact. This requirement does notapply when there is only one plaintiff and one defendant.

Example: Suppose C is the creditor of D for P300,000 and also of E forP200,000. Both debts are due and these debts have been contractedseparately. May C join D and E as defendants in the same complaint? Theanswer is NO. Where a party sues two or more defendants, it is necessary forthe cause of action to arise out of the same transaction and that there shouldbe a common question of law or fact. The debt of D is a transaction differentfrom the debt of E.

Example: Suppose P is a passenger in a passenger vehicle operated byO and driven by D. because of the negligence of D, P sustained injuries whenthe vehicle fell into a ditch by the roadside. May P join O and D as defendantsin the same complaint based on torts? YES. The liability of O and that of D

arose out of the same transaction (same accident) which gives rise to acommon question of law or fact.

JURISDICTION

1. For a judgment to be valid, the judgment must have been rendered bya court having jurisdiction over the following: (1) subject matter; (2) parties,(3) issues, and (4) res.

2. Jurisdiction over the subject matter This jurisdiction is CONFERRED bylaw. Nothing else can confer jurisdiction except the law. (United BFHomeowners Association vs. BF Homes, Inc., 310 SCRA 304, 307).

Jurisdiction is a matter of law and cannot be conferred by waiver, agreementby the parties or by acquiescence of the courts. It cannot be conferred by therightness 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 isdependent upon the laws on jurisdiction.

Payment of filing/docket fees The rule as it stands now, requires thepayment of the requisite fees when a complaint is filed. It is not simply thefiling of the complaint that vests the court with jurisdiction over the actionfiled (even if by law, it has jurisdiction) but also by the payment of theprescribed docket fee. The Supreme Court in several cases, has held that acourt acquires jurisdiction over the case ONLY upon the payment of the saidfees (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 wasprompted by the peculiar circumstances of the case. Here, the Court noted afraudulent scheme to avoid payment of the docket fee by the plaintiffsdeliberate omission of the amount of damages sought in the prayer although

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alleged in the body of the complaint. This ruling was relaxed in Sun Insurancevs. Court of Appeals, 149 SCRA 562), when the Court made a liberalinterpretation of the rule by allowing a late payment of the docket fee as longas it should not be made beyond the actions prescriptive period. It alsodeclared in the same case that any unpaid fees should be considered a lienon the judgment. In this case, there is no evidence that the plaintiff tried to

evade the payment of the docket fees. NOTE: If should be noted that thepronouncements of the Court on the matter of docket fees have always beeninfluenced by the peculiar and legal and equitable circumstances surroundingeach case. The rule is not as simple, as rigid or as uncomplicated as theManchester case makes it appear. There are other circumstances equallyimportant. While the timely payment of docket fees is jurisdictional,considerations of equity also come into the picture. (Yuchengco vs. Republic,333 SCRA 368 [2000]).

Objection to jurisdiction over the person of the defendant may bemade initially either in a motion to dismiss or in the answer as an affirmativedefense. 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 onappeal as long as estoppel by laches does not set in.

While jurisdiction over the subject matter is CONFERRED by law, it isDETERMINED by the allegations of the complaint. (Deltaventures Resources,Inc. vs. Cabato, 327 SCRA 521, 528 [2000]). This means that in order to findout if the court has jurisdiction over a complaint filed before it, the court mustlook into the allegations of the complaint and no other. The motions oranswer of the defendant should not be considered. For this purpose, the courtshall hypothetically assume the truth of the averments in the complaint. Ifthe complaint alleges a claim of P500,000, the RTC has jurisdiction even if thedefendant claims that his debt is only P100,000, an amount cognizable by the

MeTC or MTC. The truth or the falsity of the claim does not matter fordetermining the jurisdiction of the court because such matters are to beadressed in the trial of the case.

The MTC has exclusive original jurisdiction over claims not exceedingP300,000 in places outside Metro Manila and not exceeding P400,000 withinMetro Manila. In determining the jurisdictional amount, do not include thefollowing: (a) damages of whatever kind, (b) interests, (c) attorneys fees, (d)litigation expenses, and (e) costs. Note that damages will be considered indetermining 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; attorneys feesof P50,000; damages of P5,000. Where shall the action be filed assuming theparties are residents of Manila? The case should be filed in the MeTC ofManila 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 anadmiralty or a maritime case. In matters of probate, the same jurisdictionalamounts apply. The basis is the gross value of the estate. Because of theamendments introduced to BP 129 by R.A. 7691, the MTC may now handleprobate cases even if it is a special proceeding and its jurisdiction dependsupon the gross value of the estate.

May an MTC now take cognizance over matters involving ownership orpossession of a land even if they are not ejectment cases? Under R.A. 7691,the answer is in the affirmative depending upon the assessed value of theland involved in the litigation. If the assessed value of the land or interesttherein does not exceed P20,000 outside Metro Manila or does not exceed

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P50,000 within Metro Manila, the MTC has original jurisdiction over the case.Thus, an MTC can now have jurisdiction over cases involving ownership ofland. Under the former law these cases were under the jurisdiction of theRTC.

Jurisdiction over a case ofaccion publiciana, also now depends upon

the assessed value of the property involved (Quinarogan vs. Court of Appeals,August 24, 2007; Atuel vs Valdez, 403 SCRA 517). The action is no longer anexclusive domain of the RTC. However, even if cognizable by the MTCbecause of its assessed value, the case will not be covered by a summaryproceeding. Unlawful detainer and forcible entry cases are to be filed with theMTC which has exclusive original jurisdiction over said cases regardless of theamount of rentals or damages prayed for and regardless of the assessedvalue of the property. In such cases the assessed value is immaterial. This isan instance where the MTC can take cognizance of a special civil action.

An MTC may also hear and decide petitions for writ ofhabeas corpus inthe absence of all judges of the RTC in the city or province. This is the special

jurisdiction of the MTC. This case is another example of a special proceedingwhich an the MTC could have jurisdiction over. The other is a probateproceeding depending upon the gross value of the estate.

The MTC has also a delegated jurisdic

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Basic Concepts in Civil Procedure Part i

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