Civ Pro Reviewer

7/28/2019 Civ Pro Reviewer

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RULE I

Q. When does an action deemed commenced?

A. An action is deemed commenced upon the filing of the complaint. This is the provision of the old rule. But this oldrule that an action is deemed commenced as of the date the complaint is filed has been amended to include a provisionwhich envisions a case when the action is already filed and is amended to include an additional defendant.

Example:

The case was filed Dec.2, 1997 by A against B only. Under this rule, the action isdeemed commenced on Dec. 2, 1997 in so far as only A and B are concerned. On .

Dec 3,1997 A filed an amended complaint including now C.

Q. When is this action deemed commenced?A. Insofar as A and B are concerned, the action is deemed commenced on Dec. 2, 1997. But insofar as it concerns Aand C, the action is deemed commenced on Dec. 3, 1997 (as to C).

Q. Why do we distinguish the date of commencement of an action in this situation where the is an additionaldefendant?

A. Because we have the law on prescription.

At the time the case was filed on Dec. 1, 1997, the action against B may not yet have prescribed. But when the

complaint was amended on Dec. 3, 1997, the action of A against B and C may have already prescribed. That is why it isnecessary to consider the situation like this when the action is being commenced with respect to an additional defendant.

RENE NOTES:

1) An action is commenced by the filing of the complaint and the payment of the requisite docket fees within theprescriptive period, this notwithstanding that summons was served on the defendant after the prescriptive period.

2) An action can be commenced by filing the complaint by registered mail. It is the date of the mailing that is consideredas the date of filing, and not the date of the receipt thereof by the clerk of court.

3) The amount of damages in the body of prayer of the pleading must enable the clerk of court to compute the docketfees required.

4) The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicableprescriptive period.

With respect to actions, we have retained the provisions of the old code. With respect to some subject matter underthe old rule, a party plaintiff can file only one complaint based on one single cause of action. He cannot split its cause ofaction. And when he splits his cause of action, the subsequent actions maybe the subject of a motion to dismiss. This rulehas been retained in the New Rules in Civil Procedure.

Example: (Splitting of causes of action which have been retained)Note: Same partiesA is a resident of Sulu, B is of Batanes. There is a piece of land located in Sorsogon. The causes of action of A

against B are as follows:1) sum of money involving P200,000.002) reindivicacion over the lot valued at P50,000.00

Q. Can A file a complaint against B joining in one complaint the action for sum of money and the action forreinvidicacion (if it can, with what court and place)?

A.

Let us vary the facts, the claim for money is P201,000.00. The value of the property is P19,000.00

Q. Can A file only one complaint incorporating therein the sum of money ofP201,000.00 and reindivicacion of lot valued at P19,000.00?

A. Sec. 5 Rule 2(rules on joinder of causes of action )A party may in one pleading assert, in the alternatives or otherwise, as many

causes of action as he may have against an opposing party, subject to the following

conditions:a. the party joining the causes of action shall comply with the rules on joinder of parties;b. the joinder shall not include special civil action or actions governed by special rules;c. where the causes of action are between the same parties but pertain to different venue of jurisdictions, the

joinder may be allowed in the RTC provided one of the cases of action falls within the jurisdiction of said courtand the venue lies herein; and

d. where the claims in all the causes of action are principally for recovery of money the aggregate amount claimedshall be the test of jurisdiction.

The rule on joinder is as follows:


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2A party may join two or more causes of action which he has in his favor in only one complaint. So if A has 10causes of action against B, instead of A filing 10 separate action against B, he may be allowed to file only onecomplaint, and incorporating therein all the 10 causes of action.

Q. Supposing his causes of action pertain to different venues or jurisdiction where willA, the plaintiff, file his 10 causes of action embodied only one complaint?

A. The rule is, if these 10 causes of action pertain to different venues, the action maybe filed in the appropriate RTC provided that the venue of the action lies therein.

In the former example, the first action was the sum of money involving P200,000.00 only and the second causeof action is reinvidicacion involving P50,000.00.

Since A is not obliged to allege all causes of action in one complaint, he may elect to file two separate actions:1) A vs. B for sum of money

2) A vs. B for reindivicacion.Q. If he were to file this action for sum of money only, in what court of what place

may A file the complaint?A. You apply Rule 4 venue

Since this is a personal action for sum of money, the venue could be theresidence of plaintiff A, or the residence of the defendant B at the election of A.So this case can be filed either in Sulu or Batanes.

Q. In what court in Sulu or in Batanes may this action of A be filed?A. Considering the amount which is only P200,000.00, this is within the jurisdiction of

MTC. So this case can be filed either in the MTC of Sulu or in the MTC of Batanes.

Q. If A were to file an action for reindivicacion, over this lot located is Sorsogon, inwhat place should A file the case?

A. We apply again Rule 4 Venue and that would be Sorsogon.

Q. In what court in Sorsogon should the action be filed?A. Considering the value P50,000.00, this action should be filed only in RTC of

Sorsogon.

Let us assume however that A elected to file only one complaint involving these sum of money of P200,000.00and this property involving P500,000.00. The court that has the jurisdiction over the sum of money of P200,000.00 is theMTC. The court that has the jurisdiction over reindivicacion is the RTC of Sorsogon.

Q. Where can these two actions be filed?A. Only in the RTC of Sorsogon. It cannot be filed in Sulu or Batanes. It can be filed

only in Sorsogon.

Let us get the reverse

The value of sum of money is P200,000.00 and so this is within the jurisdiction of the RTC. The value of the propertyhere is P19,000.00, this is within the jurisdiction of the MTC.

Q. Can you now join these two?A. Yes, in the RTC of Sorsogon. Not in Sulu or Batanes, but in the RTC of Sorsogon.

Example:A resident of Sulu, sued B a resident of Batanes, in only one complaint alleging therein these two causes of action:

1. For recovery of P200,001.00 sum of money,2. For forcible entry over a piece of land located in Sorsogon valued at P19,999.99.

Q. Can A join only in one complaint on these two (2) causes of action?A. These two cannot be joined because one is an ordinary civil action (sum of money) and the other is a special civilaction (forcible entry). This is one of the limitation of joinder of causes of action. A special civil action cannot be joinedwith another action which is ordinary.

Example: A is a resident of Sulu, B of Batanes, C of Zamboanga. A loaned 1M to B, and the loan is evidenced by apromissory note which B signed. The promissory note matured without B paying the money notwithstanding. A hasanother cause of action against B and C for another 1M pesos, a promissory note was also executed and signed by B andC. The promissory note also matured but they did not pay.

Q. Can A file only one complaint against both B and C incorporating therein these twocauses of action? (The action against B for 1M pesos and another action against Band C for P1M)

A. No, A cannot file only one complaint against B and C, otherwise, A will violate one


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3of the limitations (Sec. 5 (a)) provided for in joinder of Causes of Action underRule 2 Section 5.

If A is permitted to do so, it will be a violation of the provision on Rules on Joinder of Parties under Rule 3 Sec. 6.C has nothing to do with the first promissory note executed by B. C has no interest on the first cause of action of

A against B alone.

Example: A has the following causes of action for recovery of money against B, all in the promissory notes thatmatured on:

1. Jan. 10, 1998 P 20,000.002. Jan. 20, 1998 30,000.003. Jan. 30, 1998 40,000.00

4. Feb. 10, 1998 50,000.005. Feb. 15, 1998 60,000.006. Feb. 20, 1998 70,000.00

=========P270,000.00

A is a resident of Sulu and B of Batanes. B did not pay on Jan. 10, B did not pay on each and every maturity. ButA waited for the maturity on this loan due on Feb. 20, 1998. Since he was not paid on Feb. 20, 1998, he now decided tofile an action involving all these sum of money.

Q. Should he (A) decide to file a case on Feb. 25, 1998, against B, in what courtshould the action be filed?

A. It should be filed in the RTC of Sulu or in Batanes.

Where all the causes of action are principally for money, the type of jurisdiction is the totality of the amounts inall the cases. If you were A and you want to file only an action for the recovery of P20,000.00 you will file this with theMTC. This is the same with respect to other causes of action. Individually, they are triable by the MTC.

But if all these causes of action are joined in only one complaint, the totality or the language of the rule, the

aggregate, of the amount furnish the jurisdictional test. So, since the amount is P270,000.00, this is an action triable bythe RTC. So you file the action not in the MTC but in the RTC.

RENE NOTES

1) In case the obligation is by installments, each installment constitute a cause of action HOWEVER, if at the time ofbringing of the suit, several installments are already due, all must be included otherwise, others not included will be barre d.

Before April 9, 1999, the jurisdiction of the MTC was limited to P100,000.00 and the RTCs in the amount inexcess of P100,000.00. So under the old rule, before April 9, 1999, all claims (money claims) not exceeding P100,000.00was triable by the MTC. All claims exceeding P100,000.00 were triable by the RTC. This is the provinces.

Under the old rules, where the claim was for the money and the parties thereto was the residents of MetroManila, the jurisdiction of the RTCs in Metro Manila was in excess of P200,000.00.

Beginning, however April 9, 1999, the jurisdiction of the MTC were expanded as follows: In areas outside MetroManila, the jurisdiction of the MTCs extended up to P200,000.00. But in Metro Manila, Beginning April 9, 1999, the

jurisdiction of the MTCs was P400,000.00 So, as of now the jurisdiction of the Metro Manila MTCs is P400,000.00. But inareas outside Metro Manila, the jurisdiction of the MTCs is up to P200,000.00 only. This now the new rule which

implemented Sec. 5 of RA 7691. RA 7691 expanded the jurisdiction of the MTCs.

Q.state the rule on permissive joinder of parties

A. Sec. 6 Rule 3All persons in whom or against whom any right to relief in respect to or arising out of the same transactions is

alleged to exist, whether jointly, severally, or in the alternative, may except as otherwise provided in these Rules, join asplaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs orto all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiffor defendant from being embarrassed or put to expense in connections with any proceedings in which he may have nointerest.

The rule contemplates a situation where there are two or more persons in whom a right to relief exist or against

whom a right to relief exist. These two or more persons can join in one complaint or can be joined as defendants in onecomplaint provided that there exist between them a question of law common to both of them. As the term suggests,

joinder is not mandatory. It may be availed of by parties as plaintiffs if they want to. If they do not want to join asparties, they cannot be compelled.

Example:A, B and C are owners of adjoining houses. X is a driver of a gasoline tanker. Because of the manner X drove the

tanker, the driver struck a Meralco Post. As a result, the tanker turned turtle (naging pagong ang tanker) in the process,

it exploded. The fire burned the houses of A, B, and C. A can sue X for the loss of his house. B can sue X for the loss ofhis own house. C can sue X for the burning of his own house. If these were so, there will be now, three (3) complaints


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4against X. On the other hand, A, B and C or A and B alone, or A and C, or B and C, sued X in one complaint. A and Csued X in one complaint, B and C sued X in one complaint, or better still, they joined in one complaint against X.

Q. Can they validly do that?A. Yes, they have each a separate cause of action against X. Under the rule on

joinder of parties, all of them can join in only one complaint.

Q. Why?

A. Right to relief exists in favor of all of them, A, B and C.

Q. What is the basis of their right to relief of A against X?A. The basis of the right of A against X is the negligent act of X in driving.

Q. What is the basis of the right of B against X?A. The same. The negligent act of X.

Q. What is the basis of the right of relief of C against X?A. The same, the negligent act of X in driving.

If these were to be tried separately, if the parties A, B and C filed separately the case, there will be only one issuethat the court will resolve, which is common to all of them. So they can join as parties. This is the rule on permissivejoinder of parties.

Q. Can A, B and C be required or compelled to join in one complaint?A. No. whether they will join or they will not join is a matter of them alone to decide. They cannot be forced to join.

Rene Notes:

Compulsory Joinder-in the case of:

1) indispensable parties2) necessary parties

* The non-joinder of an indispensable or a necessary party is NOT by itself ipso-fato a ground for the dismissal of an action.

the court shall order joinder non-compliance-ground for dismissal

* If the court does not order the joinder of an indispensable party, the validity of the judgment may be questioned on appeal or

certiorari.

Permissive Joinder-parties can either be joined in a single complaint or may themselves maintained or be sued in separate suits. This

rule also applies to counterclaims.

Requisites of Persmissive joinder of parties.

1) right to relief arises out of the same transactions or series of transactions;2) there is a question of law or fact common to all the plaintiffs or defendants; and3) such joinder is not otherwise prescribed by the provisions of the Rules on jurisdiction and venue.

Series of Transcations-separate dealings with the parties but all of which dealings are directly connected with the same type of

subject matter of the suit.

Parties to an Action

Q. Who can be parties to an action?A. Only natural persons or persons with judicial personality or entities authorized by

law.

Q. Is it enough that a person is a natural person or juridical person to entitle him tosue and be sued?

A. No. It is necessary that the party, natural or judicial be likewise a party in interest.

Where the person who sues is not the real party in interest, or where the party

sued is not the real party in interest, the complaint or suit cannot be maintained.

Q. Who is considered a real party in interest?A. It is defined in Sec. 2 Rule 3

Sec. 2 Rule 3A real party in interest is the party who stands to be benefited or injured by the

judgment in the suit.

A real party in interest is the one who is benefited by the judgment. He is onewho may be prejudiced by the judgment or it is he who may avail of the


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5judgment.

Example:So, if A, a tenant of B sues to recover his land from C.

Q. Is A the real party in interest?A. No. He is not, because whatever judgment that he may be rendered in this case will not at all affect the real owner.A is not a real party in interest.

Supposing A is claiming ownership of a lot and he sues C, the tenant of B, to recover the ownership of the lot.

Q. Is C the real party in interest?A. No, because whatever judgment that may be rendered in favor of A cannot

bind the owner B. C is not the real party in interest.

Q. Is it enough that a party be a natural or judicial and a real party in interest to beentitled to sue or be sued?

A. No. The party must likewise have the legal capacity to sue. Meaning, he has the representation that he claims tohave.

So if the person does not have the capacity which he alleges he has, he cannot sue or he cannot be sued.

These are therequirements for suing or being sued:1. Natural person or judicial person;2. Entity authorized by law to sue and be sued;3. Must be the real party in interest; and4. Must have the capacity to sue or be sued.

Q. What are the classes of parties to a suit?A. We have the:

1. Indispensable Parties;2. Necessary Parties.

Q. What is the distinction between the two?A. In the case of an indispensable party, he must always be impleaded becausewithout his being impleaded as a party, whether a plaintiff or defendant, thesubject matter of the suit cannot be terminated. He must always be there becausewithout him, whatever judgment rendered do not terminate the subject matter ofthe suit.

Example: (Indispensable Party)Testator X was survived by three (3) children A, B and C. A sued B alone for a partition of alleging in fact the court

declared A, B and C the owners of the estate and ordered the estate to be divided into three equal parts. So A and Bagreed on how the estate be divided. They agreed that the estate shall be divided into three equal parts as follows:

A B C

Q. Is the judgment in the partition case binding on C?A. No, it is not binding.

When A and B showed C the 1/3 portion allotted to him, C said I do not like that, I like this part. No, this ismine.

Q. What can C now do?A. C can file a case for the partition of the same estate asking that this be divided into

three (3) equal parts.

But A and B said, It is pointless, there is already a declaration that this property be divided into 3 and it wasalready divided into three (3). What else do you like?

Q. Is the reasoning of A and B correct?A. No, it is not correct. It is true that there was a division. But C does not like his

part.

Q. Can C be compelled to accept his part?A. No, because he was not a party to the case. He is not bound by the judgment.

Why? Because he has a right to be heard when A and B divided this property in themanner they want.


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6As a co-owner he has the right to be heard on how the division should be made. Since, he was not heard, he can

file a case.This is what we meant when we say that an indispensable party ought to be impleaded either as a plaintiff or

defendant in order to terminate the subject of the case.So, you see here, the first case did not terminate the question. It is only when all the parties A, B and C have

been impleaded in the case may it terminate.So, when an indispensable party is not impleaded, in violation of that order of the court, the complaint may be

dismissed.

Q. Who is the necessary party?A. A necessary party is one who ought to be impleaded in order to accord complete

relief to all the parties or in order that the claim respecting the subject matter ofthe case can be fully adjudicated, nevertheless, his absence from the court as aplaintiff or a defendant does not prevent the case from being settled insofar as theparties thereto are concerned.

If a case is filed and the necessary party is omitted, the case filed can beterminated. But only partially. But if this omitted party could have beenimpleaded, the subject matter of the case would be fully adjudicated.

EXAMPLE:A is the creditor of B and C based in the promissory note signed by B and C for P1M. The liability of B and C are merely

joint not solidary. A sued B only. He did not sue C because at that time when the case was filed C was no longer in thePhilippines. He for left abroad.

Q. Can this case between A and B be finally settled?A. Yes. Even without C. But you will know that the better judgment will be rendered in favor of A will cover only thepart of B in the P1M. So the court will decide the case awarding A only P500,000. The claim of A against C remainpending, so that where C is already within the jurisdiction of the court, A can file a case against him to recover from himhis share in the P1M.

C here is merely a necessary party because even without him, this claim of A against B can be settled.

In order, however, to settle the entire P1M, if C was with the jurisdiction of the court at the time when thecomplaint was filed, A should have filed a complaint against both B and C.

Q. What will be the effect of filing by A of his claim against B and C at the same time?A. His claim of P1M will be entirely settled in only one procedure. Whereas, in

alternative form, the case will be settled insofar as the parties are concerned.That is why, when a party is a necessary party, but he is not impleaded, the reason why he is not impleaded

should be stated in the complaint.

Q. What for is the need to state why C was not impleaded?A. So that the court could determine whether the reason for the non-inclusion

of C is valid or not. Should the court find the reason why C was not impleaded to benefit the merit, the court willnow order A to amend his complaint and implead C.

Should A fail to comply in the order of the court.

Q. What is the effect of such non-compliance on the right of A to recover from theclaim filed?

A. Such failure on the part of A to comply operates as a waiver of his claim against C, so that should A eventuallyfile a case against C, C can file a motion to dismiss the complaint on the ground of waiver of the claim of A

against C on the failure of A to implead C in violation of the order of the court.

Rene Notes:

1) spouses as parties

G.R.

- spouses sued jointly

Exceptions:1) Abandons or fails to comply with marital obligations2) Spouse disposes exclusive property3) Regime of complete separation of property

2) class suit

Requisites of a class/representative suit

1) subject matter of the controversy is one of the common or general interest to many persons;2) persons affected are so numerous that it is impracticable to bring them all before the court;3) parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of the

concerned.


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7Concept of Alternative Defendants

Q. When may a party plaintiff sue defendants in the alternative?A. The rule is this:

A plaintiff may have the right but he is not certain or sure against whom that right should be asserted. He knowshe has the right. There are two or more persons who may be liable to him in connection with his right. But he does notknow who of them is liable under this rule, he is entitled to sue all these persons in the alternative.Example:

A bought a machine from US. The carrier X brought this machine to the Phils. for delivery to A. this machine didnot reach A. He does not know who has custody of this machine at the time it was lost. The fact is, there was supposedto be an arrastre operator who should have taken upon its being unloaded in the port of Manila. Was it lost while thismachine was in the custody of the arrestre? He does not know, but he has the right to recover the value of the machine.But who of them is responsible, he does not know.

Q. What can A do?A. A can sue X and Y (arrestre) at the same time. If it is not X who is liable, it must be Y. If Y is not liable, it must be X.

This is the concept of alternative defendants.

Rene notes:

Unknown Identity or Name of Defendant

* Service of summons is by publication

Requisites:1) there is a defendant2) his identity or name is unknown3) fictitious name may be used because of ignorance of defendants true name and such ignorance is alleged in the complaint 4) identifying description may be used: sued as unknown owner, heir, devisee, or other designation5) amendment to a pleading when identity or true name is discovered6) defendant is the defendant being sued, not a mere additional defendant

Death of a PartyDuty of counsel- inform court within 30 days

* The death of a client will require his substitution by his legal representative to be ordered by the court wherein the case is pending,

or even the appointment of an executor or administrator, but this time, by a court of probate jurisdiction.

In the case of incapacity or incompetency of the party, this fact will merely entail the appointment of a guardian ad litem by

the court trying the case upon being informed thereof by counsel of the parties, the parties themselves, or other reliable sources.

* No summons is required to be served on the substituted defendants. Instead, the order of substitution shall be served upon the parties

substituted in the action, otherwise, the court does not acquire jurisdiction over the substitute party.

* The continuance of a proceeding when a party dies without a valid substitution amounted to lack of jurisdiction and that the need of

substitution is base on the right of a party to due process. HOWEVER, if there is no notice of death of party and the court has no

knowledge thereof, the proceedings are not set aside.

* If there is failure to notify the fact of death: the case may continue and the proceedings will be held valid, and judgment will bind the

successors in interest.

* The court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client.

Otherwise, the entire proceeding is null and void; the court would have no jurisdiction over the estate, the heirs and the executors oradministrators.

Transfer of Interest

* Substitution of parties is not mandatory. Unless the substitution by or the joinder of the transferee is required by the court, failure to

do so does not w arrant the dismissal of the case.

* A transferee pendente lite is a proper and not an indispensable party.

Sec. 20 Rule 3

When the action is for recovery of money arising from contract, express or implied, and the defendant dies beforeentry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed

but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintifftherein shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of thedeceased person.

This is a situation where a contract involving money was entered into: This contract gave rise to the filing of acomplaint against the debtor. When the case is pending against the debtor, the debtor dies.

Q. What now will be the status of this case filed upon the death of the debtor, the case not having been determinedwith finality? Can it continue or must be dismissed?

A: Example:A the creditor sued B to recover the loan, he extended. While this case was pending, B died.


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8Under the old rule, upon the death of B, this case will be dismissed. How could A protect his right over his claim,

if it was already dismissed in this case? He can now file his claim as an ordinary creditor in the proceeding, (estate orintestate proceeding) for the settlement of estate of B. This rule presuppose that the estate of B is under administrationeither in a testate proceeding or intestate proceeding. So under RA 86 A should file his claim in this proceeding. So ifthere was a special proceeding under #SP 34 for the settlement of estate, then A must file his claim in this case.

Q. Is that so now?A. No. The death of the debtor B does not extinguish the action. This will continue. Of course with proper substitution

of B by the administrator or executor if there is any. If there is none, by his heirs. This case will continue litigation untilfinality.

In the event A wins the case and the judgment becomes final

Q. How will A enforce his right as adjudged by the court?A. He will file the case where the settlement of Bs estate is pending, his claim based on this judgment.

Q. Can the administrator or executor contest in that special proceeding this claim now of A?A. No, because it has already been settled by final judgment in that civil case. This is the innovation under the newrules.

RENE NOTES:

Action on Contractual Money Claims

Requisites:1) The action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is

merely incidental thereto.

2) The claim subject of the action, arose from a contract, express or implied, entered into by the decedent in his lifetime or theliability for which had been assumed by or is imputable to him.

* If the defendant dies before entering a final judgment in the court where it was pending at that time, the action shall not be dismissed

but shall be allowed to continue until entry of final judgment thereon.

* Once a final judgment is entered against the estate of the deceased it shall be enforced as a money claim without the need of proving

the same.

Indigent Party

* The amount of docket and other lawful fees shall be a lien on any favorable judgment upon the indigent party.

Rule 4: Venue of Actions

The rules on venue are now simplified. Why? Because the rules in venue likewise involve inferior court and underthe RTC. For purposes of venue, actions may either be real or personal.

Q. What are the rules on venue involving real property?

A. When a suit involves title to, possession of or interest in real property, the venue of the action lie in the proper courtof the place where the real or a part of the real property is located. This is true in cases involving title to, possession of orinterest in, real property.

In forcible entry cases, however, the venue of the action is the inferior court of the place where real property orpart of the real property is located. (MTC)

Take note that when it comes to the venue of the property suits involving title to, possession of or interest in,real property, the venue is the proper court of the place where the real property is located.

But when it comes to forcible entry, the court where the action must be filed is specified and that is the inferiorcourt. It does not say proper court.

Q. Why the difference in the case involving title to, possession of or interest in real property, venue is the proper court?A. Because under the new law, even the inferior court have jurisdiction cases depending on the value of the property.

Where the value of the property involved in the reindivicacion cases does not exceed P20,000.00, in areas outsideMetro Manila, that action for reindivicacion is tried by the inferior (MTC) not the regional trial court.Where the value of the property exceeds P20,000.00, the action for reindivicacion lands with the RTC.In Metro Manilawhere the action is for reindivicacion for instance, and the value of the property does not exceed

P50,000.00, the venue is the inferior court.

This is the reason why the law does not specify what particular court the case must filed when it involves title to,possession of or interest in real properties. But when it comes to forcible entry, the rule is specific, only on MTC of theplace where the property or any part of the property is located.


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9In case of personal actions, the venue is the residence of the plaintiff or any of the principal plaintiffs or the

residence of the defendant or any of the residence of the principal defendants at the option of the plaintiff. However,where the defendant is a non-resident, the venue may also be the place where he can be found.

In this last case, the venue could not be the residence of the non-resident defendant for a simple reason that, anon-resident defendant does not reside in the Phils. (as the term suggested, non-resident). That is why you cannot suehim in a place where he is not a resident, but he may be found in the Phils. So, it is that place where he may be found,that may be one of the venue.

Example:If A file a complaint against B, for recovery of money and A is a resident of Sulu and B is from Batanes. Whether

the case is tried by the inferior court or by RTC, A can file action either in Sulu or Batanes at his option.

Q. But if B is not a resident of the Philippines, but came to the Philippines for a vacation and could be found in Bulan,Sorsogon, where may A, who is a resident of Sulu file the case?

A. He may file the case in Sulu or in Bulan, Sorsogon.

Where real property is located partly in one place and partly in another, whether the action involves forcible entry ordetainer, or an action for reindivicacion its venue should be any of these places where property is located.

Example:A vs. B for forcible entry or reindivicacion, the property was located in Manila in part, Caloocan in part, Q.C. in

part. So A can file the case in Manila, Caloocan, in Q.C.

Example:A vs. B, an action for declaration of nullity of the marraige of A and B. B the husband is a non-resident defendant

of the Philippines whose permanent address is U.S.A., on the other hand, the wife is a resident of Manila.

Q. What will be the venue of this action?A. Manila.

Example:The action between A and B involved let us say, the recovery of a lot which A claims as his but which B claims is

his. This lot is partly located in Pampanga, Bataan or Batangas. While A is a resident of Manila. The value of this propertyis P19,999.99.

Q. What court has jurisdiction and a court of what place will be the venue?A. MTC of Pampanga, or of Batanes or of Bataan.

Example:A sued B, a non-resident of the Philippines. But at the time the action was filed, B was found in Tawi-Tawi. A is a

resident of Batanes. B is a permanent resident U.S.

Q. If this action is filed, what will be the venue?A. The venue is Batanes, or Tawi-Tawi at the election of the plaintiff.

Where the action involves title to, possession of or interest in real property, the action may be filed in theappropriate or proper court of the place where the property or part of the property is located, except where the action isone for forcible entry, in which case, the action may be filed in the MTC of the place where the property or part of the

property is located.

If the action is personal, the venue of the action may be the residence of the plaintiff or it there are two or moreplaintiffs, the residence of the plaintiff or the residence of the defendant or in case there are two or more defendants, theresidence of the principal defendant, at the option of the plaintiff.

Where the defendant is a non-resident defendant, but is found in the Philippines, and the action is personal, thevenue of the action may either be the residence of the plaintiff or the place where the defendant is found.

In our example, the action was one for money, against the defendant B who is a resident of U.S. But at the timethe action was filed, he was found in Tawi-Tawi, the action by A can be filed in Batanes, As residence or in Tawi-Tawi atthe option of A.

Q. Where the subject matter of a case is real property, is the rule that the venue of the action involving it should be theplace where the property is located or where any part of the property is located absolute? So that in all cases, this rulemust be followed?

A. It is not absolute.

Q. The action involves possession of, interest or in title to real property but the action is not forcible entry. Must thevenue of this action be the place where the property is located or where any part thereof is located or may there be acase where what is located or may there be a case where what is involved in a suit is a real property and yet the venueneed not necessarily be the place where that property is found or where any part thereof is found.

Example:


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10A and B are litigating who has the better right to timber concession located in Cotabato. A is a resident of

Manila and B of Batangas.The action by A against B was filed with the Secretary of DENR. The Secretary awarded the right to the timber

land to A. B now contested the action of the Secretary in awarding the right to A. B sued as well as the Secretary ofDENR.

This action was filed by B in his residence which is Batangas RTC. The Secretary now files a motion to dismiss onthe ground that the venue is improperly laid. The venue should be Cotabato.

If you are the judge, what will your correct ruling on the motion to dismiss filed by the Secretary of DENR?Issue:What is involved here is a motion to dismiss filed by the Secretary, he said any action co ntesting my decisionshould be filed in the court of the place where the property is located. Since the property is located in Cotabato, thevenue should be Cotabato, not the residence of B in Batangas.

Example:The PHHC awarded the lot in Q.C. to a resident of Bacolod City. After A paid so many installments on their lot,

the PHHC unilaterally cancelled this award and awarded the same lot to B. To annul that order of PHHC canceling theaward to A, A now sued PHHC which has its office in Q.C. and B, a resident of Manila in the RTC of Bacolod City.

The prayer of A is for the cancellation of the resolution of PHHC canceling the prior award to A and awarding thesame lot to B.

PHHC and B now file a motion to dismiss on the ground of improper venue. They contended that the proper venueof the action is Q.C., the location of the property, not Bacolod City, the resident of plaintiff A. you are the judge, what willbe your correct resolution to the motion?

Example:A and B agreed in 1990 that any action between them involving this lot in Tawi-Tawi, be filed in Batanes. A being

a resident of Manila and B of Bulan, Sorsogon. The agreement was oral.For a violation of Forcible Entry, A now sued B in Batanes although, we say, that the lot is in Tawi-Tawi. B now

filed a motion to dismiss, on the ground of improper venue. He said that the action should be filed in the inferior court ofTawi-Tawi, not in Batanes.Q. You are the judge, what will be the correct ruling on the motion to dismiss?

A. Deny the motion to dismiss under Sec. 4 (b) Rule 4, the rule on venue shall not apply where parties have not validly

agreed in writing before the filing of the action on the exclusive venue thereof.In the above case, the agreement of A and B was an oral agreement. Therefore the agreement is notenforceable.

1. The agreement between A and B is that any action arising from this lot located in Tawi-Tawi must be filed only inMTC of Batanes. A now sued B in Batanes. B now filed a motion to dismiss on the ground of improper venue being theproperty located in Tawi-Tawi and therefore Tawi-Tawi should be the venue.

Rule on themotion to dismiss filed by B.

2. Agreement in writing between A and B provided as follows:: Any action arising from this land in TawTawi, may befiled in Batanes. Contrary to this writing, A filed the action in Tawa-Tawi. B now filed a motion to dismiss on the groundthat the venue is improperly laid because the agreement called for the venue to be in Batanes. Rule on the motion.

A. Deny the motion to dismiss because the agreement used the word may. Under the rule, the agreement to be validmust be one which is in writing and the agreement on the venue must be exclusive venue.

Where the action involving real property concerns the title to the property, or possession of real property orinterest in real property, the venue is the place where the property is located or where a part of the property is located.

Therefore where the action involving real property does not concern title to the property or it does not concernthe possession of real property or does not concern an interest in real property, the rule that the action should be filed inthe place where the property is located does not apply. There are, therefore, cases when what is involve is real propertyand yet the venue of the action need not be the place where the property or a part of the property is located.Example:

The action is filed by B against A and Secretary of DENR. The action filed by B here is an action for certiorariagainst the Secretary of DENR and A. The subject matter although involving real property is actually the judgment of theSecretary. This is not an action involving title to, possession or interest in real property. The action in effect is a personalaction. So venue would be the residence of plaintiff B or the residence of the Secretary, not Cotabato, the place wherethe lot is located.

In the case of the annulment of the award made by the PHHC, the venue need not necessarily be Q.C. where theproperty is located. Since the action was filed in Q.C. where the defendant PHHC reside. So the motion to dismiss filed inBacolod City is not proper because Bacolod City could be a venue.

Unlike jurisdiction which cannot be the subject of stipulation, venue can be the subject of stipulation and thereforethe parties can agree that the venue of a particular action as filed and provided the agreement provides for an exclusivevenue.


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11So if the property is located in Twi-Tawi, but A and B agreed before any suit is filed that the venue of the action arisingtherefrom be in Batanes and this agreement was in writing before the action was filed, the action can be filed where theproperty is located or in Batanes. Why? Because the wording of the agreement, Batanes would merely be an additionalvenue, the venue agreement controls.

So in our example, A and B agreed in writing before any suit arise, that any action involving this property locatedin Tawi-Tawi can be filed only in Batanes. In violation of that written agreement, A filed suit in Tawi-Tawi where theproperty is located. B now files a motion to dismiss for improper venue. Is the motion to dismiss proper? Yes, becausealthough the property is located in Tawi-Tawi, the agreement called for an exclusive venue, i.e.only Batanes. The

motion to dismiss of B here should be granted.

The rules on venue mentioned in Rule 4 do not apply in certain cases, in addition to these cases that i.e. anagreement in writing.

Q. Is there another situation when the rule on venue does not apply other than the ground that there is an agreement iswriting providing for a particular venue?

The Rules on venue do not apply when there is an agreement in writing providing for an exclusive venue. Inaddition to this, is there another situation where the rules on venue mentioned in Rule 4 does apply because in this case,we do not file the action, for instance, in the place where the property or a part of the property is located or in the placewhere the plaintiff or the defendant is residing at the option of the plaintiff.

Is there such a situation?Example:

A published a libel in Manila. B is a resident of Ilocos Norte. However, A was a resident of Manila. People vs. Afiled in Manila. B, subsequently filed in the RTC of Ilocos Norte, his residence, an action for damages against A in manila.A now filed a motion to dismiss this action in Ilocos Norte. His ground is that the venue of the action should not be inIlocos Norte, it should be in Manila where the libel cases is filed but B countered this argument, the recovery of damagesis a personal action, therefore, under Rule 4, sec 2 (B) has the option to file any action either in my residence or theresidence of the defendant A at my (B) option. My option is to file my action in Ilocos Norte.

So, the motion to dismiss is not proper Rule on the merits of the motion to dismissAns.

The rules on venue found in Rule 4 do not apply in two cases:1. When the parties agreed in writing before any action is filed the venue of the action be in a particular place.

Meaning, when the agreement calls for an exclusive venue2. where the law provides for a specific venue.In the first case, where the agreement in writing does not provide for an exclusive venue, but merely an additional

venue, the action may be filed in the proper venue according to Rule 4, or in the venue stated in the agreement. If thewritten agreement on venue provides for a specific and exclusive venue, only the venue specified in the agreement canbe the venue.

In the second case, the law itself provides, for a specific venue, then it should be that venue provided for by law.The libel law provides that where a criminal action is filed in a particular venue, the civil action for damages arising

form that libel should likewise be filed in the same court where the criminal case is pending.In our example, the libel case was filed in Manila. Any action for damages arising form the libel filed must be filed in

the place where the libel case was filed. Although B, in this case, is a resident of Ilocos Norte, he cannot file the action inIlocos Norte because the criminal case was filed in Manila.

RENE NOTES:

Venue of Actions

Real actions

- place where real property locatedPersonal actions

1) residence of the plaintiff2) residence of the defendant

* Choice of the plaintiff

Real actions1) action for the annulment or recision of a sale and the return of realty2) to compel the vendor to accept payment of the purchased piece of land3)

to compel the vendor to deliver the certificate of title of the land

Personal actions1) action to recover the purchased price of the land2) an action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage3) action to annul the cancellation of award of land in favor of the plaintiff

Requisites for venue to be exclusive:

1) A valid written agreement2) Executed by the parties before the filing of the action; and3) Agreement to the exclusive nature of the venue.


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12* In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in

addition to the venue provided for in the rule.

When rules on venue NOT applicable

1) when parties agreed in writing for an exclusive venue before any action is filed2) where the law provides for exclusive venueex. Libel

Libel Law- where a criminal action is filed in a particular venue, the civil action for damages arising from that libel should likewise be filed in

the SAME COURT where the criminal case is pending.

Means of Waiving venue: [FO, AR, VS, L]

1) failure to object by means of motion to dismiss2) affirmative relief sought in the court where the case is filed3) voluntary submission to the court where the case is filed4) laches

IF PROPERTY IS LOCATED AT THE BOUNDARIES OF TWO PLACES: file one case in either place at the option of the

plaintiff

IF CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DIFFERENT PLACES:

a) if the properties are the object of the same transaction, file in any of the two places.b) if they are the subjects of two distinct transactions, separate actions should be filed in each place.

WHEN ALTERNATIVE RELIEF IS SOUGHTvenue would depend on the primary object of the action.

VENUE JURISDICTION

1. place where the action is instituted 1. power of the court to hear and decide a case

2. may be waived 2. jurisdiction over the subject matter and over the

nature of the action is conferred by law and cannot be

waived

3. procedural 3. substantive

4. may be changed by the written agreement of the

parties

4. cannot be the subject of the agreement of the parties

Rule 6: Pleadings

Q. What are pleadings? What are the kinds of pleadings?A. Sec.1 Rule 6

Pleadings are written statements of the respective claims and defenses of the parties submitted to the court forappropriate judgment.

Sec.2 Rule 6 (Pleadings Allowed)1. complaint

The claims of a party are asserted in a:2. counterclaim3. cross-claim4. third (fourth, etc.) party complaint, or5. complaint-in-interventionThe defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answer may be

responded to by a reply.

RENE NOTES:

2 kinds of defenses that may be set forth in the answer

A. NEGATIVE DEFENSES

a. Specific denialsb. Insufficient denial or denial amounting to admissions1) General2) Denial in the form of a negative pregnant

B. Affirmative Defenses in the Nature of Confession or Avoidance


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13

* Unlike the Complaint which alleges only ultimate facts, the Answer may cite legal provisions relied upon for defense

Q. What is the compulsory counterclaim?A. Sec. 7 Rule 6

A compulsory counterclaimis one which, being cognizable by the regular courts of justice, arises outor is connected with the transaction or occurrence constituting the subject matter of the opposing partys claim and doesnot require for its adjudication, the presence of third parties of whom the court cannot acquire jurisdiction. Such a

counterclaim must be with jurisdiction of the court both as to the amount and the nature thereof, except that in anoriginal action before the Regional Trial Court the counterclaim may be considered compulsory regardless of the amount.

Q. What is a counterclaim?A. Sec. 6 Rule 6

A counterclaim is any claim which a defending party may have against an opposing party.

Example:If A filed a case against B. Any claim by B against A is a counterclaim. It is a claim by a party defending himself

against a party who files a case against him.

Two KINDS of counterclaims:1. Compulsory Counterclaim2. Permissive CounterclaimThese two are different for in their component elements and the effect of their not being pleaded.

In the language of the rule, a counterclaim is compulsory when it is one which is cognizable by the court andarises out or is connected with the transaction or series of transactions which constitutes the basis of the action againsthim and does not require for its adjudication the presence of the third person over whom the court cannot acquirejurisdiction. However, where the counterclaim is a money claim and the court in which the case is pending is the RegionalTrial Court, the money claim irrespective of the amount is a compulsory counterclaim.

On the other hand, a permissive counterclaim is one which does not arise out of or is connected with thetransaction which is the basis of the subject of the action.

Example:A files an action against B for collection for sum of money. B, however, has an action against A for recovery of lot.

This action of B against A for recovery of a lot is a permissive counterclaim. Why? Because it is not in any way related.

Q. Why is this permissive?A. Because if B wants to he can file his counterclaim against A in the same action. If he does not file it as a claim, thiscase filed against him.

Q. Can he file it separately, so that if he can file it separately there are now two cases, A vs. B for recovery of lot.A. Yes.

Q. Supposing he (B) does not file his counterclaim in this case against him, and subsequently, B files a separate action,

can A now file an action to dismiss a second action on the ground that this action of B against A should not be pleaded asa claim counter in nature in the civil case?

A. No, because this is a permissive counterclaim. B can file if he wants in to this main action, he may not file if he doesnot want to file.

Q. When is counterclaim compulsory?A. 1) A compulsory counterclaim is one which is cognizable by the court of justice.

2) A counterclaim should be connected with the transaction which constitutes the basis of the action of theplaintiff against the defendant.

3) This counterclaim does not require for its adjudication the presence of a third person over whom the courtdoes not require jurisdiction.

4) This counterclaim is within the jurisdiction of the court except that where the counterclaim is a money claimand the action is filed in the RTC irrespective of the amount whether within or not within the jurisdiction of the

court, the counterclaim is compulsory.

Example:This is an action of A against B for the recovery of a lot. The counterclaim of B against A is for the recovery of

money which represents the unpaid wages of B payable by A and the wages being the result of a contract of employer-employee relationship.

Q. Is this money claim of B arising from the employer-employee relationship is not cognizable by the court?A. No, because the money claimed arising from the employer-employee relationship is not cognizable by the courts ofjustice. This is cognizable by the DOLE Labor Arbiter or the NLRC.


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14So, if A files his complaint and B pleads his money claim arising from the employer-employee relationship, that

counterclaim is not a compulsory counterclaim. It cannot be filed in this case.The counterclaim must be one which arises from the transaction which is the basis of the action of the plaintiff

against the defendant.

Example:The action of B is for recovery of lot. The claim of B is for money arising from a contract of loan being B the

lender and A the borrower. Should B interpose as a counterclaim this action for recovery of money here.

Q. Can that be validly done?A. On the assumption that all the other elements are present, this is allowed.

Supposing, this is the MTC, the action is for reindivicacion because the value of the property is only P200,000. Thisan action filed outside Manila.

Q. Is this counterclaim here allowed to be filed by B as a counterclaim in this case?A. Yes, because this is a claim that is compulsory.

But supposing B does not file a separate case against A for a recovery of money such that if this is done, there willbe now two (2) actions

Q. Can A validly file a motion to dismiss this complaint on the ground that since this is a counterclaim, that should havebeen impleaded by B in the main case?

A. No, because this amount does not arise from the transaction constituting the claim by A against B, this is a recoveryof money. This is a permissive counterclaim the fact that it is not pleaded in the answer in the main case, is not a groundto dismiss it.

In this case, Bs counterclaim is not compulsory, but merely permissive.

Example:The counterclaim of B consists of P200,000.00 but the counterclaim of B is against A and C over this amount is

solidary. B does not plead in his answer in the main case claim and after B files his separate action against A and C torecover his P200,000.00. A filed motion to dismiss on the ground that this should have been impleaded in the main case

because it arose from this main case.

Q. Is the motion to dismiss proper?A. No, because the presence of C is required in their litigation on this P200,000.00 and C is in U.S. and the Court doesnot acquire jurisdiction over him.

So, this counterclaim although arising from that action is merely a permissive counterclaim not compulsorycounterclaim because it requires for its adjudication the presence of a third person over whom the court does not acquirejurisdiction.

This is an action in the MTC. The counterclaim of B arising from this, lets say, the value of the improvementswhich B introduced in this lot is P201,000.00. He does not plead his counterclaim in this action. Instead, he files aseparate action on the recovery of P201,000.00. Now he files a motion to dismiss on the ground that this counterclaim

being connected in the claim of A against B should be pleaded.

Q. Is the motion to dismiss proper?A. No, because the amount claimed though arising from the action exceeds the jurisdiction of the MTC. The jurisdictionbeing only up to P200,000.00. So, it is not.

Supposing, however, that this case is filed in the RTC. And on the assumption that the counterclaim of B against Aarises out of this action of A against B, and the counterclaim is only P50,000.00

Q. Is this counterclaim compulsory or permissive?A. Compulsory. In the RTC, as long as the counterclaim is money, irrespective of the amount, it is always compulsory.

Let us now take a case where the counterclaim is compulsory.

Example: Compulsory Counterclaim

This is an action for the recovery of a lot. The counterclaim of B is for recovery of the value of the propertyimprovements which B introduced.

Q. Is it money claim by nature cognizable by a court whether MTC or RTC?A. Yes.

Q. Is it connected with the case filed by A against B for recovery of the land?


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15A. Yes, because the amount being claimed represents the value of the improvements introduced by B in this lot,which is the subject of the main case. So, it is connected.

Q. Does this action for recovery requires the presence of C, a third person over whom the court cannot acquirejurisdiction?A. No.

Q. Is an action for recovery of a P201,000.00 one with the jurisdiction of the RTC?

A. Yes.

So, in all these cases therefore, the elements of a compulsory counterclaim are present.

Q. What is the rule?A. When a counterclaim is compulsory it must be pleaded in the answer, otherwise, that counterclaim is barred.

Example:In the example that B sues to recover P201,000.00 representing the value of improvements introduced on the lot

which is the subject matter of the complaint of A. What B did was to institute separate action against A for recovery ofthe improvements. He did not plead this as a counterclaim in the action of A.

A now files a motion to dismiss on the ground that, the counterclaim is a compulsory counterclaim, the fact that itnot was pleaded in the main case, is a ground to dismiss it.

Q. You are the judge, what will be your correct ruling on this motion of A to dismiss the case?A. Grant the motion, bec. a compulsory counterclaim not pleaded in the answer is considered barred.

RENE NOTES:

Rules on Counterclaim

1) A counterclaim before the MTC must be within the jurisdiction of said court, both as to the amount and nature thereof.2) In an original action before the RTC, a counterclaim may be considered compulsory regardless of the amount.3) If a counterclaim if filed in the MTC in excess of its jurisdictional amount, the excess is considered waived.4) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set of the claims and file a separate action to

collect the balance.

COMPULSORY COUNTERCLAIM PERMISSIVE COUNTERCLAIM

(1) one of which arises out of or is necessarily connected

with the transaction or occurrence that is the subject

matter of the opposing partys claim.

(1) It does not arise out of nor is it necessarily connected

with the subject matter of the opposing partys claim.

(2) It does not require for its adjudication the presence of

third parties of whom the court cannot acquire

jurisdiction.

(2) It may require for its adjudication the presence of

third parties over whom the court cannot acquire

jurisdiction.

(3) It is barred if not set up in the action. (3) It is NOT barred even if not set up in the action.

(4) Need not be answered; no default. (4) Must be answered, otherwise, the defendant can be

declared in default.

Cross-claim

* filed against a co-party

* always arises out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.* If it is not set up in the action, it is barred, except when it is outside the jurisdiction of the court or if the court cannot acquire

jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim.

* The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking

affirmative relief.

Reply

Effect of Failure to Reply: new facts that were alleged in the answers are deemed converted. Hence, the filing of the reply is

optional except for the denial of the genuineness and due execution of an actionable document used as defense in the answer.

Third (fourth, etc)party complaint

THIRD-PARTY COMPLAINT CROSS-CLAIM* seeks to recover form a non-litigant some relief in

respect to the opposing partys claim.

* claim by a party against a co-party.

* Third party is not yet impleaded. * Cross-defendant is a co-party.

THIRD-PARTY COMPLAINT COMPLAINT IN INTERVENTION

* brings into the action a third person who was not

originally a party.

*same

* initiative is with the person already a party to the

action.

* initiative is with a non-party who seeks to join the

action.

* TEST to determine whether the third-party complaint is in respect of plaintiffs claim:


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16(a) Where it arises out of the same transaction on which the plaintiffs claim is based, or although arising out of another o r different

transaction, is connected with the plaintiffs claim;

(b) Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiffs claim against

the original defendant; and

(c) Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiffs claim.

Rule in non-FORUM SHOPPING ( Under SEC. 5 RULE 7 )The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a

claim for relief, or in a sworn certification annexed thereto and simultaneously file therewith:a) That he has not thereto commenced any action or filed any claim involving the same issues in any court, tribunalor quasi-judicial agency and to the best of his knowledge, no such other action or claim is pending therein;

b) If there is such other pending action or claim, a complete statement of the present status thereof; andc) If he should thereafter learn the same or similar action or claim has been filed or is pending, he shall report the

fact within five (5) days therefrom in the court wherein his aforesaid complaint or initiatory pleading has beenfiled

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or otherinitiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise provided, upon motionandafter hearing. The submission of a false certification or non-compliance with any of the undertakings therein shallconstitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If theacts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground forsummary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

Example:A filed an action against B for forcible entry of a particular lot. While this case was pending, A filed against B for

reindivicacion involving the same lot.

Q. Is there a forum shopping on the part of A?A. No, the two cases are different. One is for forcible entry and the other for reindivicacion.

Example:A filed an action against B in the RTC for reindivicacion. Branch 1 RTC of Manila. In their action, A filed a petition

for receivership. In Branch II of Manila, A filed another action against B also for reindivicacion, for issuance of aninjunction.

Q. Is there forum shopping on the part of A?A. No, there is none because the two cases involves different issues.

Q. What is forum shopping?A. Forum shopping takes two forms:

1) Where a party files the same action involving the same issues either simultaneously or successively in more thanone court.

2) Where a party files two or more actions in different courts, the other action filed in another court not being theresult of an appeal or a petition for certiorari.

Forum shopping is not allowed because this would be constituting to the judicial process making mockery out of therules. This is the reason why whenever the party files a complaint or an initiatory pleading, he is required to accompany

that complaint or initiatory pleading with a certificate. We call the certificate the certificate of non-forum shopping.

The certificate is signed by the plaintiffand if there are two or more plaintiffs and one is a principal plaintiff and theother is not, the certificate must be signed by the principal plaintiff. The contents of the certificate, the plaintiff or in theproper case, the principal plaintiffs, certifies the following:

a) That he has not previously filed in another court, tribunal, quasi-judicial body or any other agency, the sameaction involving the same issues.

b) That there is no pending action in any other court, tribunal, quasi-judicial body or any other agency involvingthe same issues,and if there is pending action in any other court, the status of this action pending in the othertribunal agency or quasi-judicial agaency;

c) Should at the time he filed the pleading, he did not know of the existence of pending of another actioninvolving the same issues in another tribunal court, agency or quasi-judicial body, but that he subsequentlylearns that there is such a pending action involving the same issues, he undertakes to notify the court of that

fact that there is a pending action, within five (5) days from his receipt or acquisition of knowledge of thependency of that action.

These are the three (3) matters certified by the plaintiff or the principal plaintiff.

Q. What are the sanctions against violations of this certificate?A. Violations rule may consist of the following:

1) Failure to attach to the initiatory pleading in the complaint the required certificate of non-forum shopping;2) Statement in that certificate of non-forum shopping of a false certificate.

These are the forms of violation, either you do not accompany or you accompanied the pleading but thecertificate contains a falsehood.


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173) The violation consists in the failure of the party to comply with his undertaking thereafter.

Q. What is the undertaking there?A. To notify the court to the fact that another action is pending in another court.

Therefore, the violations consists of three (3), i.e. non-submission, submitting a false certificate and failure to complywith the undertaking to inform the court of the pending case in another court.

Q. What are the sanctions?A. The failure to accompany the pleading with a certificate results in a dismissal without prejudice of the complaint orinitiatory pleading upon a prior motion and a prior hearing. In other words, where the pleading require a certificate is notattached at, the court may not motu proprio dismiss the complaint. There should first be a hearing either a motion of thedefendant. In this case, the court may dismiss it without prejudice.

Q. Is this all the sanction?A. No,The counsel or the defendant may be held in contempt. And in the case of the lawyer, he may be administrativelyproceeded against:

When there is a false certification, for instance, the certification stated that there was no pending case involvingthe same issue in another court, when the truth is there is.

Q. What is the sanction?A. Not only the pleading be dismissed, not only may the lawyer be proceeded against administratively, he may beproceeded against criminally.

Where the forum-shopping is deliberate.

Q. What are the sanctions?A. The pleading will be dismissed with prejudice and the offending lawyer may be held in direct contempt withoutprejudice to administrative proceeding against.

Take note that the party on whom the sanctions may be enforced is one who does not comply with this certificateof non-forum shopping, only in a case where the pleading which is not accompanied with the certificate is a complaint oran initiatory pleading.

Where the pleading is other than the complaint, or an initiatory pleading, the rule does not require that thepleading be accompanied by a certificate of non-forum shopping. Consequently, where the counterclaim is compulsory, itdoes not have to be accompanied by a certificate of non-forum shopping. Where the counterclaim however, is permissivethan the pleading must be accompanied by a certificate of non-forum shopping.

In the case of UST vs. Zula G.R.#129718 August 17, 1998 (294 S 380). Only a complaint or an initiatorypleading. A compulsory counterclaim is not an initiatory pleading. Why?

Q. When is a pleading initiatory?A. As the term suggests, it is one, which is filed for the first time. Where a counterclaim is compulsory it is not an

initiatory pleading. Why? Because, you cannot file a compulsory counterclaim unless there is a first complaint. That is whya counterclaim is a reaction to the complaint. So, it is all again initiatory, because you cannot file an independent actioninvolving a compulsory counterclaim.

Where a counterclaim is compulsory, it must be pleaded in the answer, otherwise, it is barred if it is filed in aseparate action. But when it comes to a permissive counterclaim, this is an initiatory pleading because it can be filed evenwithout a prior complaint having been filed against a permissive counter claimant.

So, in our example for instance, if A filed a complaint against B for recovery of a lot B files a counterclaim for thevalue of the improvements over the land. So you call this a compulsory counterclaim.

Q. Do you have to accompany this compulsory counterclaim of B with a certificate of B with a certificate of non-forumshopping?

A. No, because this compulsory counterclaim is not an initiatory pleading. It is a reaction. Without this complaint of A,there is no compulsory.

But supposing this were a counterclaim for recovery of money which B loaned to A and B pleaded this claim ofmoney as a counterclaim, you call this permissive counterclaim.

Q. Do you have to accompany this permissive counterclaim with a certificate of non-forum shopping?A. (U.S.T. vs. Zula.) Yes.

Q. State the rule on Alternative causes of action or defenses.A. Rule 8 Sec. 2


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18A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in

one cause of action or defense or in separate causes of action or defenses. When two or more statements are made inthe alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by theinsufficiency of one or more of the alternative statements.

1) Where a person has one claim or one defense he can state that one claim or one defense in two or morestatements either hypothetically or in the alternative.

2) Where two or more statements of a claim or a defense are made and one is made independently of the otherwhich is sufficient, the pleading is not made insufficient by the insufficiency of the other statement of the claim orthe other defense.

Example:A vs. B, this is an action for recovery of a piece of land. The defense of B is that he (B) is the owner, because1) he bought the land from A;2) he inherited the land from C;3) this lot was donated to him by D;4) he acquired this by prescription.

Q. Could this be validly alleged as Bs defense?A. Analysis: The defenses are inconsistent with each other.

B can allege these as his defenses in his answer. The statement of Bs defense that he is the owner is made up of4 inconsistent statements.

The rule says that if the statement of the claim or defense is sufficient in itself, if made independently of theother, the pleading is not made insufficient by the insufficiency of the statement.

RENE NOTES:

Facts that may be averred generally:

(a) conditions precedent (BUT there must still be an allegation that the specific condition precedent has been complied with,

otherwise, it will be dismissed for failure to state cause of action;

(b) malice, intent, knowledge, or other condition of the mind

(c) judgment of foreign courts, tribunals, boards, or officers (no need to show jurisdiction)

Facts that must be averred particularly:

(a) circumstances showing fraud or mistake in all averments of fraud or mistake

(b) capacity

* Two permissibl e ways of pl eading an actionable document:

(a) By setting forth the substance of such document in the pleading and attaching said thereto as an annex

(b) By setting forth said document verbatim in the pleading

* Where the actionable document is properly al leged, the fail ure to deny under oath the same resul ts in:

1) The implied admission of the genuineness and due execution of said document except:

(a) when the adverse party was not a party to the instrument; and

(b) when an order for the inspection of the document was not complied with.

2) The document need not be formally offered in evidence.

* Defenses that the opposing party may set up even af ter fail ure to deny under oath:

(a) mistake;

(b) fraud;(c) compromise;

(d) payment;

(e) prescription;

(f) want or illegality of consideration; or

(g) estoppel.

* BUT the foll owing defenses are waived:

(a) forgery in the signature;

(b) want of authority of an agent or corporation;

(c) want of delivery; or

(d) the party charged signed the instrument in some other capacity.

SPECIFIC DENIAL

THREE WAYS OF MAKING A SPECIFIC DENIAL:

(a) BY specifically denying each material allegation of the party and of the other party and whenever possible, setting forth the

substance of the matters relied upon for such denial;

(b) past admissions or past denial;

(c) By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing

partys pleading.


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19

* A denial cannot be general, a general denial is regarded as admission on the facts stated in the complaint.

* A negative defense must be a specific denial. Otherwise, the denial will be deemed as an admission and entitles plaintiff to a

judgment on the pleadings

Averments in the complaint NOT deemed admitted even if NOT specifically denied:

(a) Allegations as to the amount of damages (unliquidated);

(b) Immaterial allegations;

(c) Incorrect conclusions of fact; and

Averments deemed admitted if not specifically denied under oath:(a) Allegations as to usury in the complaint

(b) The authenticity and due execution of actionable documents thereto.


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20Rule 9: Effect of Failure to Plead

General Rule: All of actions and defenses available at the time the pleading is filed, if not raised in the motion todismiss or as affirmative defense in an answer are deemed waived or abandoned.

So the general rule therefore is, if you have defenses or objections, if you will file, allege all them either in amotion to dismiss or alternative defenses in an answer. All those defenses, all those objections available but not so raisedare deemed waived and abandoned.

There are certain defenses or grounds of objections however which may not be abandoned, either if they were notinitially raised in a motion to dismiss or as an affirmative defense.

EXCEPTIONS to the G.R of FAILURE TO PLEAD

For instance, the court has no jurisdiction over the subject matter of the case. Suppose the case is already barredby the rule on res judicata. Suppose the action has already, one that has prescribed. Suppose there is a lis pendencia andall these four are redeemed either on the basis of the pleadings themselves or under the basis of the evidence, the courtcan dismiss this action based on lack of jurisdiction, res judicata, lis pendencia or prescription, or statue of limitation.

Example:

A vs. B, this is an action for forcible entry. The allegations are filed. This case was filed in the RTC. So B did notfile a motion to dismiss for lack of jurisdiction. Neither this lack of jurisdiction of the court to try the forcible entry casealleged as an affirmative defense.

Q. Is jurisdiction here waived?A. No. Although not raised in the motion to dismiss, or although not raised as an affirmative defense, the court can stilldismiss the case although lack of jurisdiction was not so alleged.

Or where the evidence shows, if proceeded to trial, lack of jurisdiction or where the evidence shows res judicataalready, or where the evidence shows that the action has already prescribed or the evidence shows that there is lispendencia, then the court can dismiss the action.

Default.

Default Used to be covered by Rule 18. Rule 18 was limited to default, but Rule 18 now which covered default,

there is another subject of Rule 9.

Q. What is the rule of default?A. Default here means, the failure of the defendant who was validly served a summons to file the answer within thereglamentary period.

So, if for instance, A vs. B was summoned on Dec. 10, 1999. He has only a period until Dec. 25, 1999 or Dec. 26,1999 assuming that Dec. 26, 1999 is a working day within which to file the answer or only appropriate pleading. If B wasvalidly served under Rule 14, and fails to file the answer within that period or fails to file any appropriate pleading withinthat period, we may say that B has already incurred in default.

ALTERNATIVE AND SUCCESSIVE REMEDIES OF A PRTY DECLARED IN DEFAULTa) file a verified motion in set aside the order of default of any time after discovery of the FAME and before

judgmentb) if he did not file one or the same was denied, he would file a motion for a new trial at any time after service

of judgment by default and within 30 days therefromc) if he fail to file said motion or the same was denied, he could perfect his appeal from and on merits of said

judgment by default within the balance of said 30-day periodd) if he failed to take any of said steps, he could file a petition from relief of judgment within 60 days from

notice of the judgment but within 6 months from entry thereof.

Where the defendant has not been validly summoned, under Rule 14, he cannot be declared in default.

Q. How will A here secure the default of B?A. He must file a motion in court.

Q. Can the court moto proprio declare B in default?

A. No. Even if B has not filed an answer, the court cannot moto proprio declare the defendant in default. A must file amotion.

Q. Is B, under the new rules, entitled to a notice of the hearing of the motion to declare in default?A. Yes. This is now the amendment to the old Rule 18.

Under the old Rule 18, the jurisprudence thereunder, a motion to declare a defendant in default could be validlyheard without notice to the defendant. He was not under the same rules and jurisprudence entitled to a notice of thehearing on the motion. It means therefore, that a default motion, under the old rule, will be held ex parte.

This is not now the rule. A here, the plaintiff, must file a motion, furnish B with a copy of the motion and furnishB with a notice of hearing on the motion.

Ruling of the court on the motion


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21The court may deny or grant the motion.

Q. What are the effects of a declaration of default on the defendant?A. There are many. In substance B loses many rights which pertain to a defendant who has not been declared indefault:

1) he cannot file an answer;2) he cannot participate in the proceedings;3) he cannot present evidence on his behalf;4) he cannot cross-examine, (the witness of the plaintiff)

until he regains his standing as a defendant, because the order declaring him in default is set aside, he is in effectoutside the ring, looking at A doing his thing.

So, a case where a defendant is not declared in default, is likened to a boxing fight where both opponents are inthe ring slugging it out. But in the case of a defendant who has been declared in default, the only person in the ring,is the plaintiff A and B, here the defendant is outside the ring looking at what A is doing.

Q. What follows after the court has validly declared the defendant in default?A. 1) The court may now render a judgment. The judgment may be either what is solely in the allegations in thecomplaint without the court receiving evidence from A, the plaintiff in support of the allegations.

2) The court may receive evidence and therafter render a judgment on the basis of evidence presented by A.

Q. Are there limitations on the judgment that the court may render where the defendant is declared in default?A. Yes. The limitations are:

1) The judgment cannot award an amount to the plaintiff in excess of what was claimed in complaint;2) The judgment that the court may render can never be different from the judgment prayed in the complaint.Where a judgment is rendered without the defendant having been declared in default, the judgment may be different

from what has been prayed provided that judgment is sustained by the evidence.

Example:If B was not declared in default and the claim of A in his complaint for damages is P1M, but what A proved was

P1,000,000.01, the court may award A P1,000,000.01 though it exceeds by one (1) centavo they are valid.But in a default case, No!! even though the evidence of the plaintiff proved that sustained damages

P1,000,000.01, the court cannot award an amount in excess of P1M (the amount claimed in the complaint).

Q. How may the defendant regain his standing as a defendant?A. He must file a motion to set aside the order of default at any time before the judgment has become final.

In other words, if the judgment has already become final, a motion to set aside the order of default is no longerproper.

Q. What are the grounds of a motion to set aside a default order?A. Since the default is by reason of failure of the defendant to file the answer, there must be a reason why he failed tofile the answer. And this must be the reason he must alleged when he filed a motion to set aside the order of default.

Q. What are these?

A. You will say:"I fail to file my answer because of the following:1) Fraud was committed against me, so I did not file the answer.2) An accident befell me. This accident prevented me from filing the answer on time.3) I committed a mistake and this mistake prevented me from filing the answerIf he said I was negligent in not filing, but my negligence is excusable because:1)2)3)

These are the grounds, fraud, accident, mistake or excusable negligence, which prevented the defendant of filingthe answer. (FAME)

Q. Is it enough that these grounds be alleged in the motion to entitle the defendant to a restoration to his status as adefendant?

A. No. The motion must be accompanied by the so-called affidavit of merit.

The affidavit of merit is composed of two (2) facts:1) The facts constituting the fraud, the accident, the mistake, the excusable negligence which prevented the

defendant from filing the answer. So, the defendant here must recite the facts constituting the fraud, mistake,negligence or accident. He cannot simply say, I failed to file my answer because there was fraud committedagainst me or that an accident befell me or that I committed a mistake or that I was negligent and thatnegligence is excusable. Why?


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Because these are merely conclusions.So you must state here, Fraud was committed against me, In what did consist of? State there! Same thing with

the accident, mistake or negligence.

2) The good defenses of the defendant to the actionSo, in the affidavit of merits, the defendant must state there the facts constituting his defense. He cannot simply say

there, I have a good defense. No! State there what are your good defenses.

Q. What is the reason why the affidavit of merit indicates therein the good defense of the defendant is required?A. The rule is based on this supposition.

The court must first examine the defenses of the defendant. To determine whether it is proper or not proper toset aside the order of default and allow the defendant to file his answer and adduced his evidence. Why? Because if theaffidavit of merit does not show that the defendant has good defenses so that even if all those defenses alleged in theaffidavit of merit were proven, but notwithstanding he will not be still entitled to a judgment in his person, it would bepointless to allow him to go to trial and prove to state which do not entitle him anyway to any favorable ruling.

But if after the court has examined the proposed evidence as stated in the affidavit of merit, and finds that if thisevidence are established, the judgment may be favorable to defendant, then the court will have a basis of allowing B(defendant) to reacquire his status as a legitimate defendant.(This is the purpose.)

Q. Although a defendant has been validly summoned, can he nevertheless be declared invalidly in default even if he didnot file the answer?

A. YES. When the declaration of default is premature because at the time he was declared B in default, the period of thefiling of the answer has not yet expire.

Example:The last day for B to file the answer is Dec. 26. The court declared B in default on Dec. 24, 1999.

Q. Is the declaration in default proper?A. No. B was not yet in default. Why? Because he has until Dec. 26, 1999 within which to file the answer. So, when hewas declared default on Dec. 24, 1999, he has still an additional two (2) days within which to file the answer.

So B now files a motion to set aside this default order.

Q. Does he need to accompany his motion with an affidavit of merit?A. No, not necessarily. Why> because the default order is illegal. You cannot declare a defendant in default ahead ofthe expiration of the period of the filing of the answer.

Q. Is the failure of the defendant to file the answer within the reglementary period a ground to declare him in default inall cases?

A. No. There are certain cases where a defendant cannot be validly declared in default even though he has not filed ananswer within the reglementary period.

Q. What are these cases?A. The cases are the following:

1) An action for a declaration of nullity or annulment of a marriage;2) An action on legal separation.In these cases where the defendant does not file

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