Civpro Midterms 2

ANGELES UNIVERSITY FOUNDATIONCIVIL PROCEDURES

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Jmvdg 1st Sem/ A.Y. 2011-20121

RULES OF CIVIL PROCEDURES

JURISDICTION the authority to hear and determine cases or controversies, the power and authority conferred on a court by the constitution and laws to hear and determine cases between parties and to carry its judgments into effect.

- the right to act in a case- conferred only by the Constitution or by

law- apportionment if which is vested in

Congress- determined by the statute in force at the

time of the commencement of eth action.- Determined on the basis of the allegations

of the complaint and not WON the

allegations can be read in the light of the evidence of the other party

GR: Jurisdiction once acquired continues until the case is finally terminatedXPNs:

1. when a subsequent law provides a prohibition for the continued exercise of jurisdiction

2. when the law penalizing an act which is punishable is repealed by a subsequent law

3. when accused is deprived of his constitutional right

4. when the statute expressly provides, or is construed to the effect that it needed to operate as to actions pending before its enactment

5. when proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void

6. when appeal has been perfected7. when the law is curative

Jurisdiction VenueAuthority to hear and determine a case

Place where the case is to be heard or tried

Power of the courts in a real and substantive sense

Procedures by which powers of the courts are put into action

Established a relation between the court and

Established a relation between plaintiff and

the subject matter defendantFixed by laws May be conferred by

the parties

Where a court has jurisdiction over a case, whether its decision was erroneous or correct is entirely apart from its jurisdiction and authority to render it, and however erroneous such decision might be, the error would not divest the court of its jurisdiction and could only be corrected if at all, by appeal.

Classifications of jurisdiction1. AS TO NATURE

a. general vs. limitedgeneral extends to all controversies which may be brought before a court within the legal bounds or rights or remedieslimited confined to particular cases or which can be exercised only under the limitations and circumstances prescribed by statute.b. original vs. appellateoriginal one conferred or inherent in a court in the first instanceappellate power and authority conferred upon a superior court to rehear and determine cases which have been tried in lower courtsc. exclusive vs. concurrentexclusive confined to a particular court or tribunalconcurrent exercised by different courts at the same time over the same subject matter and within the same territory, and wherein litigants may in the first instance resort to either court indifferentlyd. civil vs. criminalcivil jurisdiction which exists when the subject matter is not criminal in naturecriminal exists for the punishment of crimese. territorial vs. extraterritorialterritorial jurisdiction power of the tribunal considered with reference to the territory within which it is to be exercised

2. AS TO OBJECTa. Over the subject matterPower to hear and determine cases of the general class to which the

Effects of lack of jurisdiction

Effects of procedural error

Proceedings are null and void unconditionally

Proceedings are null and void IF and WHEN the error is shown to have caused harm


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proceeding in question belong and is conferred by the sovereign authority which organizes the court and defines its power- acquired by the filing of pleadingsb. Over the partiesThe power, obtained by the service of summons or other processes or notice on defendant personally within the territorial limits of the jurisdiction or by voluntary appearance in person or by attorney, to render a personal judgmentc. Over the resThe power of the court over the thing before it, without regard to persons who may be interested therein, and the presence of the res within the territorial dominion of the sovereign power under authority of which the court acts may confer such jurisdiction

The fact that the trial court has acquired jurisdiction over the person of the defendant does not prevent the defendant from entering his objection to improper venue.

Jurisdiction by estoppel one who subjects himself to the jurisdiction of a court, even where he would not be otherwise subject to suit, becomes subject to any valid claim asserted against him directly relating to the subject of his voluntarily initiated proceeding

JURISDICTION OF THE SUPREME COURTa. original jurisdiction

-cases affecting ambassadors, other public ministers and consuls-petitions for certiorari, mandamus, prohibition, quo warranto, and habeas corpus

b. appellate jurisdiction-constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation-Legality of tax, impost, assessment, toll, or any penalty imposed in relation thereto-jurisdiction of lower court is in question-criminal cases where the penalty imposed is reclusion perpetua or higher-Error or pure question of law is involved

JURISDICTION OF THE COURT OF APPEALSSee Section 9 of BP 129

JURISDICTION OF THE REGIONAL TRIAL COURTSee Section 19 of BP 129

JURISDICTION OF THE MUNICIPAL TRIAL COURTSSee Section 33 of BP 129

Question of ownership does not deprive the MTC with jurisdiction to hear ejectment cases; such determination is only provisional in character.

Jurisdiction of Family Courts One or more of the accused is below 18 but

not lower than 14 years old Petiion for guardianship, custody of children,

and habeas corpus in relation to custody of children

Petition for Adoption of children and revocation thereof

Annulment of marriage, nullity of marriage, and those involving property of husband and wife and those living as such (marital relations)

Action for support and acknowledgement Summary judicial proceedings under the

Family Code of the Philippines Declaration of status of children as

abandoned, neglected etc.. (amended: now lodged with the DSWD)

Petition for constitution of family home Minors prosecuted for Dangerous drugs Act Violation of RA 7610 as amended by RA 7658 Case of domestic violence (RA 9262) Child is a victim in a criminal case

Jurisdiction of other bodiesHLURB

DARAB

Labor Arbiter

Commission on Human Rights

RULES OF COURT

Limitations on the rule-making power of the SC The rules must provide a simplified and

inexpensive procedure for the speedy disposition of cases


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The promulgation must include rules on pleadings, practice, and procedures in all courts, and consequently to the determination of the means or manner in which the jurisdiction of courts, as fixed by the Constitution and acts of Congress shall be exercised

Uniform for all courts of the same grade Shall not diminish, increase, or modify

substantive rights (Art. VIII, Sec, 5[5], Constitution)

The ROC may be repealed, altered or supplemented by the legislature only with the advice and concurrence of the Supreme Court.

Substantive law - part of the law which creates, defines, and regulates rights- defines or regulates rights concerning life, liberty, or the powers of agencies or instrumentalities for the administration of public affairs

Adjective law - prescribed the method of enforcing rights or obtaining redress for their invasion- method by which substantive rights may be enforced in courts of justice

Procedure - method of conducting litigation and judicial proceedings; includes in its meaning whatever is embraced by the three technical terms pleading, evidence, and practice Pleadings - statements, in logical and legal

form, of the facts which constitute plaintiffs cause of action or defendants ground of defense; purpose is to define the issues and form the foundation of the proof to be submitted on the trial

Practice - form and manner of conducting and carrying on actions or prosecutions, civil or criminal, through various stages, from the commencement to final judgment and execution, accdg to the ROC

Evidence - part of procedures, signify those rules whereby the court determines what testimony and documentary evidence are to be admitted and what to be rejected in each case, and what is the weight to be given to the evidence admitted.

KATARUNGANG PAMBARANGAY

PD 1508The primordial objective of PD 1508 is to reduce

the number of court litigations and prevent the deterioration of the quality of justice which has been brought by the indiscriminate filing of cases in the courts.

Lupong tagapamayapa - body composed of the punong barangay as chairman and 10 to 20 members; it exercises administrative supervision over the conciliation panels

Pangkat ng tagapagkasundo - panel constituted for each dispute; composed of 3 regular lupon members with a 4th as an alternate, who handles the actual conciliation proceedings

Rules of venue under the KP Law Disputes between persons actually residing in

the SAME barangay shall be brought before the lupon of said barangay for amicable settlement

Disputes involving residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents reside at the election of the plaintiff

All disputes involving real property shall be brought before the barangay where such property of a larger portion thereof is situated.

Those arising at the workplace where the contending parties are employed or the institution where they are enrolled for study shall be brought in the barangay where such workplace or institution is located.

Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived.

GR: ALL disputes are subject to barangay conciliation and prior recourse thereto is a precondition for filing before filing a complaint in court or any government officeXPNs: Where one party is the government or any

subdivision thereof Where one party is a public officer or

employee and the dispute relates to the performance of his official functions

Where the dipute involves real properties located in different cities and municipalities, unless the parties agreed to submit their differences to amicable settlement by an appropriate lupon

Any complaint by or against corporations,


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partnerships, or judicial entities Disputes between parties who actually reside

in barangays of different cities or municipalities, unless such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon

Offenses where in the law prescribed a penalty of imprisonment exceeding 1 year or a fine of more than P5,000

Offenses where there is no private offended party etc

GENERAL PROVISIONSRULE 1

Section 1:1997 Rules of Civil Procedure took effect on July 1, 1997

Rule - rules of practice and procedure established by courts to facilitate the conduct of their business, and which are applicable to all cases and all litigants or their counsel

Purposes of ROC: eliminate technical matters by removing the

basis for technical objection to make it as difficult as possible , for cases to

go off on procedural points To make litigation as inexpensive, as

practicable and as convenient as can be done

The rules adopted by the Supreme Court have the force and effect of law. As such, ROC are binding on the court, and it is ordinarily its duty to enforce them.

The ROC, unlike the old Code of Civil Procedure, do not govern the subject of prescription. The statute of limitation is now found in the NCC.

Section 2.ROC are applicable to all courts unless otherwise mandated by the SC.i.e. Rules on Summary Procedures applicable only to MTC, MCTC, MTCC

This rule is based on Article VIII, Sec. 5, Constitution

Section 3.Action - the right of pursuing in a court of justice, that which is due to one

Suit - prosecution or pursuit of some claim or demand in a court of justice, or any proceeding in a court of justice in which the plaintiff pursues his remedy to recover a right or claim

Civil action - one by which a party sues another for the enforcement of a right or redress of a wrong Ordinary civil action

As to cause or foundation Real Personal

As to place in which they may be commenced Local - action which must be

brought in a particular place Transitory - action the cause of

which might have arisen in one place as another, or one that may be brought, or the venue may be laid inany place; dependent on the place where the party resides regardless of where the cause of action arose

As to their object In rem - action against the whole

world In personam - directed against

specific persons and seek personal judgment

Quasi in rem - proceedings which are not strictly or purely in rem, but are brought against a defendant personally, although the real object is to dela with a particular property or to subject it to the discharge of claims asserted.

Special civil action - they are summary in nature Interpleaded Declaratory relief and similar remedies Review of judgment and trial orders of

the Comelec and COA Certiorari, Prohibition, and Mandamus Quo Warranto Expropriation Foreclosure of REM Partition Forcible entry and unlawful detainer Contempt

Criminal action - action by which the State prosecutes a person for an act or omission punishable by law


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Special proceedings - remedy by which a party seeks to establish a status, a right, or a particular fact Settlement of Estate of Deceased Persons Escheats General guardians and guardianship Trustees Adoption and custody of minors Hospitalization of insane persons Habeas corpus Change of names Voluntary dissolution of corporations Judicial approval of voluntary recognition of

minor, natural children Constitution of family home Absentees Cancellation or correction of entries in the

Civil registry Appeals in special proceedings

Section 4.ROC not applicable to: (ELCaNIO) Election cases Land registration Cadastral Naturalization Insolvency Other cases which fall within the jurisdiction of

special courts (CTA, Sandiganbayan, CSC, SSC, etc)

By analogy - identity where there is no precedent in point; similitude of relations which exist between things compared

suppletory in character - supplies a deficiency, adds or completes, or extends to that which is already in existence without changing or modifying the original

Section 5Civil action is commenced by the filing of the original complaint in court

The court acquires jurisdiction over any case only upon payment of the prescribed docket fee.

Commencement of action - the suing out of process or originating proceedings whereby an action in a court of law is instituted to establish some right or redress some wrong.

Filing of the complaint with the court tolls the operation of the statute of limitations.

If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for itsadmission, if necessary, is denied by the court

Section 6The spirit and purpose of the law, as determined by reason and good sense, rather than the strict letter, must be the controlling principle in interpretation

Pleadings, as well as remedial law, should be construed liberally, in order that the litigants may have ample opportunity to prove their respective claims, and that a possible denial of substantial justice due to legal technicalities, may be avoided.

The rules prescribing the time within which certain acts must be done, or certain proceedings taken, are considred absolutely indispensable to the prevention of needless delays and to the orderly and speedy discharge of judicial business and therefore must be strictly complied with.

Careful and deliberate consideration for the administration of justice is more than a race to end the trial.

CIVIL ACTIONSORDINARY CIVIL ACTIONS

CAUSE OF ACTIONRULE 2

Section 1 and 2.Elements of a cause of action: Legal right of a plaintiff Correlative obligation of the defendant Act or omission of the defendant in violation of

said legal right

To determine WON a complaint states a cause of action, only the allegations of the complaint -taking them to be true - should be considered and that courts should not go beyond and outside of those averred facts

Action - legal demand of ones right in a court of justice- a legal proceeding in a court of justice to enforce a right or to redress a wrong- means of redress of the legal wrong described by the words cause of action


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Right of action - remedial right belonging to some person,-matter of right and depends upon substantive law

Cause of action - primary right, primary duty, and the breach of that duty

Party - one of two opposing litigants, he or they by or against whom a suit is brought

Relief - remedy or redress sought or prayed for by the plaintiff for the violation of his right or rights.

Subject-matter of an action is determined by the nature and the character of the pleadings and the issues submitted by the parties to the court for trial and judgment.

Section 3.Splitting a cause of action - dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon

The rule against splitting cause of action is to prevent repeated litigations between the same parties in regard to the same subject of controversy; to protect the defendant from unnecessary vexation; and to avoid the cost and expenses incident to numerous suits

Rule with regards to the filing of action ex contractu Breaches of entire and indivisible contract -

only one cause of action may arise Breaches f several and divisible contracts - it

may give rise to more than one cause of action, and a judgment recovered for the breach of one separate and independent provision of it does not bar a subsequent suit for a distinct breach of a different condition

Contracts to pay money in installments -divisible in nature; each default in the payment may be a subject of an independent action provided it is brought before the next installment becomes due

When there is only one delict or wrong, there is but a single cause of action, regardless of the number of rights violated, and all of those rights violated must be prayed for in one complaint.

Section 4.Abatement of an action - overthrow of an action caused by the defendant pleading some matter of fact tending to impeach the correctness of the

complaint, which defeats plaintiffs action

The rule against splitting a cause of action may be waived by the defendant.

Section 5Joinder of cause of action - uniting of two or more demands or rights of action in one actionPurpose: avoid multiplicity of suits where the same parties and subject matter are to be dealt with, to effect in one action a complete determination of all matters in controversy and litigation between the parties, affecting one subject matter, and to expedite the disposition of litigation, at minimum cost.

The rule of joinder of causes of action is not mandatory

Limitations to joinder of causes of action Rules on joinder of parties Joinder of causes of action shall not include

special civil actions or actions governed by special laws

The joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and venue lies therein

Totality rule - the aggregate amount of the claim shall be the test of jurisdiction

Section 6.Misjoinder of causes of action - the joinder ina complaint of plural causes of action which cannot be joined.

When causes of action are improperly joined, the remedy is not by motion to dismiss but by permitting the claims to be severed and proceeded with separately. But if there is no objection to the misjoinder of action, the court may try and decide all of them.

RULE 3PARTIES TO A CIVIL ACTION

Section 1Parties - designates the opposing litigants in a judicial proceedings - the person seeking to establish a right and those upon whom it is sought to impose a corresponding duty or liability

Plaintiff - person seeking to establish a right in himself


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Defendant - person whom the corresponding duty or liability is sought to be imposed.

GR: In case of an association of natural persons not organized as a juridical entity, all the members thereof must be made parties.XPNs: Subject matter of the controversy is one of

common general interest to many persons so numerous that it is impracticable to join all as parties

When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.

Requirements for a person to be a party to civil action He must be either

A natural person A juridical person An entity authorized by law

Estate of a deceased person Political party incorporated under

the Corpo Code Registered labor union

He must have the legal capacity to sue He must be a real party in interest

Lack of legal capacity to sue Plaintiffs general disability to sue Can be a ground for a motion to dismiss on

the ground of lack of legal capacity to sue

Lack of personality to sue Plaintiff is not the real-party-in-interest May be a ground for motion to dismiss based

on the ground of failure to state a cause of action

Section 2Purpose of the rule: Prevent the prosecution of actions by persons

who have no right, title, or interest in the case To require the actual party seeking relief to

prosecute the action To avoid multiplicity of litigation and keep it

within certain bounds in the interest of sound public policy

This rule is mandatory.

Real party-in-interest - party who stands to be benefited or injured by the judgment in the suit;

the party entitled to the avails of the suit

Classification of Real party-in-interest Indispensable parties - those without whom

no determination can be had of an action (must be joined under all conditions)

Necessary parties - not indispensable but ought to be joined as parties if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (may or may not be joined)

Representative parties - acting in fiduciary capacity; the beneficiary shall be included in the title of the case and shall be deemed the real party in interest

Pro-forma parties - required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses (Section 4, Rule 3, ROC)

Quasi-parties - those in whose behalf a class or representative suit is brought

Interest - material interest, an interest in issue and to be affected by the decree

Indispensable party Necessary partyMust be joined under any and all conditions, their presence being a sine qua non for the exercise of judicial power

Should be joined whenever possible, the action can proceed even in their absence

No valid judgment if indispensable party is not joined

The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined

They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence

They are those whose presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them

The code requirement that the suit be brought in the name of the real party in interest does not mean that it must be brought in the real name of the party in interest. A party may do business in


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any name he wishes and suit may be brought in that name.

Only parties to a contract may sue. However, a beneficiary of a stipulation pour autrui may demand its fulfillment.

Section 3Representative parties Trustee of an express trust Guardian Executor or administrator Party by law or the Rules Agent acting in his own name and for the

benefit of an undisclosed principalXPN: when the contract involves things belonging to the principal

Section 4GR: husband and wife shall sue or be sued jointly because they are both co-administrators of the community property under the system of community of property as well as the conjugal partnership of propertyXPNs: When they are judicially separated If they have in fact been separated for at least

a year When there is a separation of property agreed

upon in the marriage settlements If the administration of all property in the

marriage has been transferred to one of them When the litigation is between the husband

and wife If the suit concerns the paraphernalia property

of the other When the action is upon the civil liability

arising from a criminal offense If the litigation is incidental to the profession,

occupation or business in which one spouse is engaged

In any civil action referred to in Art. 25 to 35 In an action upon a quasi-delict. A quisi-delict

as a source of obligations is culpa sustantiva y independiente

Section 5Guardian ad litem - special guardian appointed by the court to prosecute or defend, in behalf of an infant or insane or incompetent person, a suit to which he is a party

Section 6Purpose of the rule on joinder of parties: To save the parties from unnecessary work,

trouble, and expense, consistent with the liberal spirit of the new Rules of Court, and not to enlarge the courts jurisdiction as applied in the amount of controversy; to enable connected matters to be brought together, and to be litigated in the most convenient manner.

Requisites for permissive joinder of parties Claims of the parties relate to, or arise out of,

the same transaction or series of transactions It must appear that some common question of

law or fact may arise in the action. Such joinder is not proscribed by the

provisions of the Rules on jurisdiction or venue

Transaction - any event resulting in wrong, without regard whether the wrong has been done by violence, neglect or breach of contract

Series of transactions - transactions connected with the same subject matter of the action or suit

The rule permitting the joining of parties applies with equal force to a counterclaim in view of the similarity of rules applicable to both complaint and counterclaim.

Section 7Purpose of compulsory joinder of indispensable parties To prevent multiplicity of suits by requiring the

person asserting a rights against the defendant to include with him either as co-plaintiffs or as co-defendants, all persons standing in the same position, so that the whole matter in dispute may be determined once and for all in the litigation.

Indispensable party - one whose interest will be affected by the courts action in the litigation, and without whom no final determination of the case can be had.

The burden of procuring the presence of all indispensable parties is on the plaintiff

Duty of the court if an indispensable party is not included: Suspend the trial until such parties are made

either plaintiffs or defendants

***Only when the party ordered to implead the indispensable party refuses or fails to do so shall the case be dismissed on the ground of


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disobedience to the Rules or orders of the court (Sec 3, Rule 17)

The absence of an indispensable party renders all subsequent action of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

Voluntary appearance of an indispensable party through counsel cure the defect.

Section 8Necessary parties are also called proper parties - those whose presence is necessary to adjudicate the whole controversy, but whose interests are so far separable that a final decree can be made in their absence without affecting them.e.g.JOINT debtor - he is an indispensable party in a suit against his share but a necessary party in a suit against his co-debtors

Section 9Duty of the pleader whenever a necessary party is not joined State the name of the necessary party, if

known State the reason why the necessary party is

omitted in the pleading

Should the court find the reason unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. (filing an amended complaint)

Effect of non-compliance after being ordered to include a necessary party: WAIVER pf the claim against such party.

Section 10Merely PERMISSIVE

This rule does not apply to an action for partition among co-owners, co-heirs, co-partners.

Section 11A party is MISJOINED when he is made a party to the action although he should not be impleaded

A party is NOT JOINED when he is supposed to be joined but is not impleaded in the action

GR: Niether misjoinder or non-joinder of parties is a ground for dismissal of the action

XPN: in relation to disobedience to the Rules or order of the court for the inclusion of an indispensable party.

Objections to defects in parties should be made at the earliest opportunity I.e. the moment such defect becomes apparent, by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded. Objections to misjoinder cannot be raised for the first time on appeal.

Section 12Class suit principle - An invention of equity; a procedural device aimed in preventing mere number from disabling large group of individuals, united in interest, from enforcing their equitable rights.

Requisites of a class suit: Real party-in-interest rule The subject matter of the controversy must be

of common general interest to many persons That such persons are so numerous that it is

impracticable to bring them all before the court

Adequacy of representation

The rule that free access to courts should not be denied to any person by reason of poverty applies to a class suit.

Any person in interest may intervene to protect his individual right

Class suit Permissive Joinder of Parties

Here is ONE single cause of action pertaining to numerous persons

There are MULTIPLE causes of action separately belonging to several persons

Section 13Reason for the rule: avoid multiplicity of suits, for the rule does not compel the plaintiff to join in one single complaint all the parties against whom he may have a right to relief, but he may sue them successively until the real responsible party is determined

Section 14Requisites: There is a defendant His identity or name is unknown Fictitious name may be used because of

ignorance of defendants true name and said


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ignorance is alleged in the complaint Identifying description may be used Amendment to the pleading when identity or

true name is discovered Defendant is the defendant being sued not a

mere additional defendant

Service of summons upon a defendant whose identity is unknown may be made by a publication in a newspaper of general circulation in accordance with sec. 14 of Rule 14

Section 15Requisites: There are two or more persons not organized

as a juridical entity They enter into a transaction A wrong or delict is committed against a third

person in the course of such transaction

Persons associated in an entity without juridical personality may be sued under the name by which they are commonly known, BUT they cannot sue under such name

Instances where substitution of parties is proper Death of party (sec. 16) Death or separation of party who is a public

officer (Sec 17) Incompetency or incapacity (Sec 18) Transfer of interest (Sec 19)

Section 16The provision applies where the claim is NOT extinguished as in cases involving property and property rights.

Actions that survive the death of the defendant: Recovery of real and personal property

against estate Enforcement of liens on such property Recovery of an injury to person or property by

reason of tort or delict committed by the deceased

Only purely personal actions are extinguished upon the death of one party.

Thus if the action does not survive, the court shall simply dismiss the case

Based on the right of the party to due process.

This rule is mandatory.

Section 17Requisites: Public officer is a party to an action in his

official capacity During the pendency of the action he either

DIE, RESIGNS or OTHERWISE CEASES to hold office

It is satisfactorily shown to the court by any party, within 30 days after the successor takes office, that there is a substantial need for continuing or maintaining the action

That the successor adopts or continues or threatens adopt or continue the action of his predecessor

The party or officer affected has been given REASONABLE NOTICE of the application thereof and accorded an opportunity to be heard

Section 18In case a party becomes incompetent or incapacitated, the action survives and may be continued by or against the incompetent or incapacitated assisted by his legal guardian or guardian ad litem, who is his legal representative.

Counsel has duty to inform the court. This provision complements section 16 of Rule 3.

Section 19The transfer referred to in the section is transfer of interest in the subject-matter of the litigation. The transfer must be pendente-lite, for if transfer is made prior to the institution of the action, the transferor cease to be the real party-in-interest and may no longer sue or be sued in connection with the subject matter of the transfer.

If a substitution in case of transfer of interest should not be brought to the attention of the court, the original plaintiff, if successful in the litigation, would hold the fruits of the action as a sort of trustee for the use and benefit of the assignee.

GR: the rule does not consider the transferee as indispensable party. Hence, the action may proceed without the need to implead him.XPN: when the substitution by or joinder of the transferee is ordered by the court (since Section 19 is merely permissive and discretionary on the court)

A transferee pendente lite Stands in the same position as its

predecessor-in-interest


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Jmvdg 1st Sem/ A.Y. 2011-201211

Bound by the proceedings before the property was transferred to it, even if not formally included as a defendant.

GR: The case will be dismissed if the interest of plaintiff is transferred to the DEFENDANTXPN: if there are several plaintiffs, in which case, the remaining plaintiffs can proceed with their own cause of action.

Section 20To require the dismissal of said case and the transfer thereof to the probate court will cause and unnecessary and otherwise avoidable burden on said court which will then be obliged to try and adjudicate the case as a claim against the estate of the deceased defendant, with the possibility that it may even entail a duplication of efforts and proceedings in whole or in part.

Requisites: The action must be primarily for recovery of

money, debt, or interest therein The claim, subject of the action, arose from

contract, express or implied Defendant dies before the entry of final

judgment in the court in which the action is pending.

Execution shall not issue in favor of the winning party. The final judgment should be filed as a claim against the estate of the decedent without need of proving the same.

Section 21The reason for the rule is the constitutional precept that free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

Indigent - person who has no visible means of income or whose income is insufficient for the subsistence of his family

The court may allow a party to prosecute his claim as an indigent after ex-parte application and hearing and that the court has been satisfied that the party is really indigent.

What is included: Payment of docket fees and other lawful fees Transcript of stenographic notes which the

court may order to be furnished him.

A courts grant of authority to litigate as indigent may be contested at any time before judgment is rendered by the trial court.

Section 22Reason: the interest of the Government may be adversely affected

RULE 4VENUE OF ACTION

Venue - the place of trial; place where an action must be instituted and tried.

The rule on venue must be liberally construed especially because such rule is for the convenience of the plaintiff.

The laying of venue is PROCEDURAL rather than substantive thus waiveable.

Section 1Real action - actions affecting title to or possession of real property or any interest therein.- must be commenced and tried in the proper court which has jurisdiction over the are wherein the real property involved, or a portion thereof is situated. If property is located at the boundaries of 2

places; File case in either place at the option of plaintiff

When the case involves 2 properties located in 2 different places:

If the properties are the subject of the SAME transaction, file it in any of the two places

If they are subjects of 2 DISTINCT transactions, separate actions should be filed in each place unless properly joined

**When the action involves parcels of land situated in different provinces and which are the objects of one and the same transaction, the CFI in any of said provinces has jurisdiction to take cognizance of the action, and the judgment therein rendered can be executed in other provinces where the rest of the real estate is situated.

Section 2Personal actions

May be commenced and tried: Where the plaintiff or any of the principal


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plaintiffs reside Where the defendant or any of the principal

defendants reside In case on non-resident defendant, where he

may be found, at the election of the plaintiff.

Resides - place of abode, whether permanent or temporary

The rule on venue, like other procedural rules, are designed to insure just and orderly administration of justice or the impartial and evenhandeddetermination of every action and proceeding.

Means of waiving venue: Failure to object via motion to dismiss Affirmative relief sought where the case is

filed Affirmative defense in an answer Voluntary submission where the case is filed Laches

Section 3Examples of actions that affect the status of the plaintiff Legal separation Annulment of marriage

***Philippine courts may entertain suits against non-resident defendant when the action affects the personal status of the plaintiff, because the court has jurisdiction over the res which is the personal status of the plaintiff domiciled in the Philippines.

Venue: Non resident found in the Phil.

For personal actions - where the plaintiff resides

For real actions - where the property is situated

Non resident NOT found in the Phil. (an action may be filed only when the case involves) Personal status of plaintiff - where

plaintiff resides Any property of said defendant located

in the Philippines - where the property or any portion thereof is situated or found

The SC has the power to order a change of venue to prevent a miscarriage of justice.

Non resident plaintiff suing in isolated transactions - venue for personal action is where the defendant

resides

Objection to venue: May be raised in a Motion to Dismiss or an

Affirmative Defense in an Answer (Rule 16, sec 6)

Where - court where the case was filed by the plaintiff

Section 4The rule of venue is inapplicable in cases: Where specific rule or law provides otherwise The parties have validly agreed in writing

before the filing of the action on the exclusive venue thereof.

In the absence of qualifying or restrictive words, venue stipulation is merely permissive and not exclusive meaning that the stipulated venue is in addition to the venue provided for in the rules

See SUMMARY RULES

RULE 6KINDS OFPLEADINGS

Section 1Pleadings - formal allegations by the parties of their respective claims and defenses, for the judgment of the court.- designed to create a skeleton or framework of a lawsuit. Their whole purpose is to form an issue by statements and denials, upon which hearings may be had.- necessary to confer jurisdiction on a court to render a judgment, that the subject matter be presented for its consideration in some mode sanctioned by law.

Purpose of a pleading: (AID) To apprise the court of the rival claims in a

judicial controversy submitted for trial and decision

To indicate fairly the nature of the claims and defenses of both parties,

To define the issues and form the foundation of proof to be submitted during trial as well as advice a party to what his adversary would rely on as a cause of action or as a defense

Test of good pleading: WON the court can render a valid judgment based thereon

PLEADING MOTIONPurpose is to submit a claim or defense for a

Purpose is to apply for an order not included in


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valid judgment the judgmentMay be initiatory Cannot be initiatoryAlways filed before judgment

May be filed even after judgment

Only 9 kinds of pleadings are allowed by the Rules

Any application for relief not by a pleading is a motion

Must be written May be oral when made in open court or in the course of hearing or trial

The formal as well as substantial requisites of a pleading are governed by the law prevailing at the time of its filing.

Section 2Pleadings allowed: Complaint Counterclaim Cross-claim Third party claim Complaint in intervention Answer Reply Counter-counterclaim Counter cross claim

Section 3Complaint - a concise statement of the ultimate facts constituting the plaintiffs cause or causes of action.

Ultimate facts - essential facts; those that cannot be stricken out without leaving the statement of the cause of action insufficientTest: WON upon such facts judgment may be rendered against the defendant

What are NOT ultimate facts: Evidentiary or immaterial facts Legal conclusions etc The details of probative matter or particulars

of evidence Allegations that a contract is valid or void is a

mere conclusion of law

The residence of the parties is required for the purpose of determining the venue of the action as fixed by the rule.

Section 4Answer - pleading where the defendant sets forth his affirmative and negative defenses.

- pleading by which the defendant in a suit of law endeavors to resist the plaintiffs demand by an allegation of facts, either denying the allegations of the complaint or confessing them and alleging new matter in avoidance, which the defendant alleges should prevent a recovery on the facts set out by the plaintiff.

Function: define the issue and show why plaintiff is not entitled to judgment.

Section 52 kinds of defenses: Affirmative

An allegation of a new matter which while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him

Includes:>fraud, prescription, release, payment,

illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, etc.

NegativeDenial of the material fact or facts alleged

in the complaint essential to plaintiffs cause of action.

Plea of confession and avoidance - those which import that, admitting the allegations of the complaint to be true, yet the matters et out in the answer deny or take away the plaintiffs right of action.

The enumeration of affirmative defenses in the rules is not exclusive, the same may include:

> acquittal in a criminal case, constitutionality of a law, contributory negligence, custom, duress, justification, laches, lack of authority, lack of capacity ti sue or be sued, law of a foreign country, real party in interest, specification, ultra vires, waiver.

Denial amounting to admissions: General denials Denial in the form of negative pregnant

Negative pregnant - a denial in such form as to imply or express an admission of the substantial facts which apparently is controverter. This arises when the pleading merely repeats the allegations in a negative form.

Section 6Counterclaim - a cause of action existing in favor


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of the defendant against the plaintiff.- a distinct and independent cause of action

The rules on counterclaim are designed to enable the disposition of the whole controversy of interested parties conflicting claims, at one time, and in one action provided all the parties can be brought before the court and the matter decided without prejudicing the rights of any party.

Section 7

Compulsory counterclaim

Permissive counterclaim

One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim

It does not arise out of nor is it necessarily connected with the subject matter of the opposing partys claim.

It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction

It may require for its adjudication the presence of 3rd parties over whom the court cannot acquire jurisdiction

It is barred if not set up in the action

It is not barred if not set up in the action

Need not be answered, no default(because the issues are deemed automatically joined by the allegations of the complaint)

Must be answered otherwise the defendant can be declared in default

Compulsory Counterclaim - one which being cognizable by the regular courts, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing partys claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.GR: the failure of the corresponding party to set up compulsory counterclaim will bar his right to interpose it in a subsequent litigation.XPNs: If it is a counterclaim which either matured or

otherwise acquired by a party after serving his answer, in such case, he may file a supplemental answer before judgment

When the pleader failed to set up thecounterclaim because of oversight, inadvertence, excusable negligence. The

pleading may be amended before judgment The filing of a motion to dismiss and the

setting up of a compulsory counterclaim are incompatible remedies. If the defending party has both, he must choose only one remedy, if e decides to file a motion to dismiss, he cannot set up his counterclaim. But if he opts to set up his counterclaim

Requisites of a compulsory counterclaim It must be cognizable by the regular court of

justice It must arise out of or is connected with the

transaction or occurrence constituting the subject matter of the opposing partys claim.

It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

It must be within the jurisdiction of the court as to the amount and nature thereof.

When a State files an action either as an original plaintiff or as an intervenor, it waives its right of non-suability, and the defendant may interpose a counterclaim against it.

Rules on Compulsory counterclaim A counterclaim before the MTC must be within

the jurisdiction of the said court, both as to the amount and nature thereof

In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount

However, the nature of the action is always material such that unlawful detainer cannot be set up in the RTC.

A counterclaim lies not only in ordinary civil actions but also in special civil actions.

Section 8Cross claim - any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim.

Purpose: designed as a means to determine the entire controversy, including the defendants sued together, with a minimum of procedural steps.

Requirements: A claim by one party against a co-party It must arise out of the subject matter of the

complaint or of the counterclaim The cross-claimant is prejudiced by the claim


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against him by the opposing party

GR: If a cross claim is not set-up, it is barredXPNs: When it is outside the jurisdiction of the court If the court cannot acquire jurisdiction over

third parties whose presence is necessary for the adjudication of the cross-claim. In which case, the cross-claim is considered permissive.

Cross claim that may mature or may be acquired after service of the answer.

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

Cross claim

Counterclaim 3rd party complaint

Against a co-party

Against an opposing party

Against a person not a party to the action

Must arose out pf the transaction that is the subject matter of the original action or of a counterclaim therein

Must arise out of or be necessarily connected with the transaction or the subject matter of the opposing partys claim in which case it is called a compulsory counterclaim, or it may not in which case it is called a permissive counterclaim

Must be in respect of the opponents (plaintiff) claim

No need for a leave of court Leave of court is needed

Section 9Counter-counterclaim - claim asserted against an original counterclaimant

Counter-cross claim - claim filed against an original cross claimant

Section 10Reply - purely a defensive pleading; the function of which is to deny or allege facts in avoidance of, new matters alleged in the plea or answer and thereby join or make issue as to such matters.- response of the plaintiff to the defendants answer

GR: filing a reply is merely OPTIONAL. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto.XPNs: (reply is necessary) Where an Answer is based on an actionable

document Defense of usury To set up affirmative defenses on the

counterclaim

The nature of plaintiffs cause of action cannot be amended or changed by the reply.A reply cannot aid a complaint by supplying omissions or broadening its scope by adding new grounds of relief, or permit the plaintiff to take a position inconsistent with that taken in the complaint, and any such allegations in the repky constitute a departure from the case made in the complaint.

Section 11Third-party complaint - a claim that a defending party may, with leave of court, file against a person not party to the action for contribution, indemnity, subrogation, or any other relief (CISA), in respect of his opponents claim.

Purpose: avoid delay and circuity of actions and to enable the controversy to be disposed of in one suit, that is to permit the determination in a single suit of not only the original claim, but the added partys liability therefore.

Requisites: Defendant must have a claim against the 3rd

party The claim must be for contribution, indemnity,

subrogation, or any other relief Contribution - payment made by each,

or by any, or several having a common interest or liability of his share in the loss suffered or in the money necessarily paid by one of the parties in behalf of the others

Indemnity - obligation or duty resting on one person to make good any loss or damage another has incurred or


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may incur by acting at his request or for his benefit

Claim be in respect of the plaintiffs action

RULE 7PARTS OF PLEADING

Section 1Caption - heading or introductory part of the pleading, motion, depositions, or other legal instrument which indicates the: Name of the court Title of the action The docket number if assigned

Title - distinctive appelation by which any cause in court, or other juridical proceedings, is known and distinguished from othersName of the parties and the respective participation of the parties in the case.

Section 2Body Designation Allegations of the partys claims or defenses Relief prayed for Date of the pleading

Purpose: clarity in the pleading

The character of action is not determined by the prayer of the complaint but by the alleged facts

A single right of action may entitle the plaintiff to several kids of relief, and several rights of action may authorize but a single relief.

Section 3The signature of the counsel is a certification that: He has read the pleading To the best of his knowledge, information or

belief, there is a good ground to support it It is not interposed for delay

This rule is designed lay upon counsel a definite moral and professional obligation in drawing up and presenting pleadings, motions and other papers. His signature is a certificate of good faith.

An unsigned pleading produces no legal effect.

Grounds subjecting counsel to disciplinary actions with respect to the preparation and signing of a pleading are as follows Deliberately filing an unsigned pleading

Signing a pleading in violation of the rule Alleging scandalous or indecent matters

therein Failure to promptly report to the court a

change of his address

Section 4Verification - a statement under oath that the pleading is true. Affiant has read the pleadings That the allegations therein are true and

correct of his personal knowledge or based on authentic documents

List of pleadings which must be verified (see page 280, Francisco)

A want of verification or defective verification may be waived by pleading responsively to an adversarys pleading, by failing to raise the objection until the case is called for trial, or until the parties have gone to trial on the issues of fact formed by the pleadings, or until after judgment

Section 5Forum shopping - filing of multiple suits in different courts either simultaneously or successively involving the same parties, to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief

Test to determine forum shopping Parties or identity of interests represented Rights or causes of action Relief sought

The certificate against forum shopping is to be executed by the petitioner and not counsel. The former is in the best position to know whether he or it actually filed or caused the filing of a petition in that case.

3 ways of committing forum shopping Filing of multiple cases based on the same

cause of action and with prayer, the previous not having been resolved yet (litis pendentia)

Filing multiple cases based on the same cause of action and with the same prayer, the previous having been resolved with finality (res judicata)

Filing multiple cases based on the same causes of action but with different prayers (splitting cause of action where the ground for dismissal is also litis pendentia or res judicata)


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Certificate of forum shopping is a mandatory requirement in filing a complaint and other initiatory pleadings asserting a claim or relief.

Contents of a certificate against forum shopping That he has not therefore commenced any

action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and to the best of his knowledge, no such other action is pending therein

If there is such other pending action or claim, a complete statement of the present status thereof

If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

A compulsory counterclaim is not an initiatory pleading.

Failure to comply with said rule shall not be cured by amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

GR: all of the plaintiffs must sign the certificationXPN: there has been a substantial compliance of the one signing has the authority to sign on behalf of all of the plaintiff(Rule in case there are more than one plaintiff)Commonality of interest - sufficient compliance on the rules

Sanctions: Submitting a false certificate or non

compliance with any of the undertakings therein - INDIRECT CONTEMPT, without prejudice to the corresponding administrative and criminal actions

Willful and deliberate forum shopping -DIRECT CONTEMPT, administrative sanctions ,and summary dismissal of the case with prejudice

RULE 8MANNER OF MAKING ALLEGATIONS IN THE

PLEADINGS

Section 1Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of

mere evidentiary facts.

Ultimate facts- refers to those which directly form the basis of the right sought to be enforced or the defense relied upon. If the ultimate facts are NOT alleged, the cause of action would be insufficient.

Evidentiary facts - refers to those which are necessary to prove the ultimate fact or which furnish evidence of the existence of some other facts

Tests to distinguish conclusion of law from conclusion of fact If from the facts or evidence result can be

reached by the process of natural reasoning adopted in the investigation of truth it becomes ULTIMATE FACTS

If on the other hand, resort may be had to artificial processes in order to reach a final determination , the result is a CONCLUSION OF LAW

Section 2A party may state as many claims or defenses as he has regardless of consistency but each must be consistent in itself.

Sections 3 to 6Facts that may be averred GENERALLY Condition precedent Malice, intent, knowledge or other condition of

the mind Judgment of domestic or foreign courts,

tribunals, boards, or officers Official document or act

Facts that must be averred particularly or specifically Capacity to sue and be sued Capacity to sue or be sued in a representative

capacity Legal existence of an organization Fraud or mistake in all averments of fraud or

mistake

Section 7Actionable document - one which is the basis of the cause of action or defense and not merely evidentiary thereofPleaded in the following manner: Substance of such instrument or document

shall be set forth in the pleading; and the original or copy of which shall be attached to the pleadings as an exhibit, which shall be


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deemed part of the pleading; or Said copy may with like effect be set forth in

the pleading (cite the entire document verbatim)

Section 8Genuineness and due execution of an instrument - the instrument is not spurious counterfeit, or of different import on its face from the one executed

The adverse party may contest the genuineness and due execution of an actionable document by specifically denying it under oath and setting forth what he claims to be the facts.XPN: (simple specific denial, even not under oath, will suffice) When adverse party does not appear to be a

party to the instrument When compliance with order of the court for

inspection of instrument is refused

The following DEFENSES, not being inconsistent with the genuineness and due execution are NOT waived despite failure to specifically deny under oath Fraud Estoppel Want or illegality of consideration Mistake Payment Minority Duress Statute of limitation Compromise

The ffg. defenses are WAIVED (Hibberd vs. Rohde) Forgery in the signature Unauthorized signature in the case of an

agent signing for the principal The corporation was not authorized under its

charter to sign the instrument Want of delivery

Section 9Official document or act - it is sufficient to allege that the document was issued or the act done in accordance with law.

Section 10The ROC do not recognize general denial.

The purpose of requiring to make a specific denial is to make him disclose the matters alleged in the

complaint which he sincerely intends to disprove at the trial, together with the matters which he relies upon to support denial.

Only material allegations of fact need be denied.

Material allegations of fact - allegations which are essential to the cause of action and which cannot be stricken out without leaving the complaint insufficient.

The specific denial must be direct and unequivocal.

Negative pregnant is not a sufficient denial. It does not raise a material issue and operates asan admission of the substance of the allegation to which it is directed.

3 ways of making a specific denial Specific absolute denial Partial specific denial Disavowal of knowledge

Section 11:GR: allegations not specifically denied are deemed admitted.XPNS; Allegations as to the amount of unliquidated

damages Allegations immaterial to the cause if action Conclusions of law

Section 12:Sham or false, redundant, immaterial, impertinent, or scandalous matter may be stricken out from a pleading: Upon motion of a party before filing a

responsive pleading If no responsive pleading is allowed, upon

motion by a party within 20 days after service of the pleading upon him; or

Upon courts initiative

The rule relative to motions to strike, is permissive and accords the court to which the motion to strike is addressed a wide measure of discretion in disposing of the motion.

RULE 9EFFECT OF FAILURE TO PLEAD

Section 1:GR: defenses not made in the Answer or Motion to Dismiss are considered waived


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XPNs: Where the court has no jurisdiction over the

subject matter Where there is another action pending

between the same parties for the same cause (litis pendentia) Identity of parties or at least such as

representing the same interests in both actions

Identity of rights asserted and prayed for; the relief being founded on the same facts

Identity in 2 cases should be such that the judgment rendered in one would, regardless of which party is successful; amount to res judicata in the other

Where the action is barred by prior judgment (res judicata) There is a final judgment or order in the

prior civil case The court that rendered the judgment or

order in the prior case had jurisdiction over the subject matter and over the parties concerned

There was judgment or order on themerits in the prior case

There is, as between the prior case and the new case , identity of parties, identity of the subject matter, and identity of cause of action

When the action id barred by the statute of limitations (prescription)

Section 2Compulsory counterclaim and cross claim not set up shall be barred.

Section 3Procedure for declaring defendant in default File a motion asking the court to declare

defendant in default The defending party must be notified of the

motion to declare him in default The claiming party must prove that the

defending party has failed to answer within the period provided by the rule.

After proof that the defending party has failed to answer within the period provided by the rule, the court shall issue an order declaring the defending party in default

After the defending party has been declared in default, the court shall render judgment granting the claiming party such relief as his pleading may warrant. However, the court in its discretion may

require the claiming party to submit evidence and such reception of evidence may be delegated to the COC. The judgment rendered shall not exceed the amount or different in kind from that prayed for nor award unliquidated damages.

Default in cross-claim and counter claim = 10 days from service (sec. 4, Rule 11)

When a defending party is declared in default, he loses his standing in and considered out of court, and consequently cannot PARTICIPATE IN TRIAL, adduce evidence and be heard, but he is entitled to the notice of subsequent hearings.

Requisites of a motion to set aside/lift an order of default Must be filed at any time after notice thereof

and before judgment. Must be under oath Must show that his failure to answer be due to

fraud, accident, mistake, or excusable negligence.

Must show that the defendant has a meritorious defense

There are no defaults in actions for annulment or declaration of nullity of marriage or for legal separation.Purpose: to secure through collusion of the parties.The prosecuting attorney may intervene to take care that the evidence of the party seeking annulment is not fabricated.

Remedies in case of Judgment by Default: Motion for New Trial Appeal Motion for Relief from Judgment Annulment of Judgment under Rule 47

RULE 10AMENDED AND SUPPLEMENTAL PLEADINGSSection 1Amendment - correction of some error or mistake in a pleading already before the court; change of some kind, ordinarily for the better, but always a change or alteration.Object of amendment: Add something to Withdraw something from that which has been

previously pleaded Cure some defect in a pleading already filed.


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2 classes of amendment Made before the trial

As a matter of right- if refused, it is correctible by mandamus

As a matter of judicial discretion -amendment by leave of court

Made during or after trial (for the purpose of conforming the pleadings to the facts which have been proved, or which are proposed to be proved at the trial)

How may a pleading be amended: By adding an allegation or the name of the

party By striking out an allegation or the name of

any party By correcting a mistake in the name of the

party or a mistaken or inadequate allegation or description in any other respect.

Section 2A party may amend his pleading once as a matter of right at any time before a responsive pleading is served.

Where some but not all the defendants have answered, the plaintiff may amend as of course as to claims asserted solely against the non-answering defendants, but not as to claims asserted against the other defendants.

Motion to dismiss is not a responsive pleading

Instances when Amendment is a matter of right Amendment of COMPLAINT before an

Answer is filed Amendment of an ANSWER before a Reply is

filed Amendment of a REPLY any time within 10

days after it is served Formal amendment

When a defendant is declared in default, may the plaintiff amend his Complaint?Will the judgment if default be lifted?

Section 3After the issues are joined and the case is set for hearing substantial amendments may be made: Only upon leave of court

If amendment is substantial A responsive pleading had already been

served Upon motion filed in court with notice to the

other party and an opportunity to be heard

Application for leave to amend is DISCRETIONARY to the trial court.

Amendment by leave of Court NOT ALLOWED When the cause of action, defense, or theory

is changed Amendment is intended to confer jurisdiction

to the court Amendment to cure a premature or non-

existing cause of action Amendment for purposes of delay

Amendment to a complaint which introduces a new cause of action is equivalent to a fresh suit upon a new cause of action and the statute of limitation continues to run until the amendment is filed.

Section 4Formal amendment covers only clearly clerical or typographical errors.

Formal amendment may be done summarily by the court at any stage of the action, At its own initiative Or on motion***provided no prejudice is caused to the adverse party

Section 5Reason for the rule: to afford a procedure whereby every controversy may be determined on its merits; to liberalize the allowance of amendments to include triable issues covered by the evidence without objection although not raised in the pleadings.

When may a party amend his pleadings to conform to the evidence When at the trial, issues not raised by the

pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they have been raised in the pleadings, which shall be amended, upon motion, at any time, even after judgment, to conform to the evidence

If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleading to be amended, unless the objecting party shows to the satisfaction of the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.


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Amendment may be allowed even after judgment. The purpose of which is to support the judgment or to make the record show more perfectly what was really tried and decided.

Failure to amend the pleadings to conform them to the evidence will not affect the result of the trial court on the issues which were tried by express or implied consent of the parties, although they were not properly raised by the pleadings.

Allowance or disallowance of an amendment of the pleadings to conform to the evidence is DISCRETIONARY on the court.

Section 6Supplemental pleading - special pleading showing facts which occurred or came to the pleaders knowledge after the former pleadings were filed and which are material to the matured claims and/or defenses therein alleged.

Admission of supplemental pleadings is DISCRETIONARY to the court and is not a matter of right.

Supplemental pleading Amended pleadingAlleges facts, occurrences or events which have happened since the filing of the original pleading

Alleges facts which occurred before the filing of the original pleading, which were either overlooked or were unknown to the pleader at the time.

Mere addition to, or continuation of the original pleading

Substitute for and supersedes the original

Always with leave of court

May be made as a matter of right

Does not require the filing of a new copy of the entire pleading

A new copy of the entire pleading must be filed.

An adverse party may plead to the supplemental pleading within 10 days from notice of the order admitting the supplemental pleading.

A supplemental complaint is a pleading, and as such may be amended once as a matter of right.

Section 7In case of amendment, new copy of the entire pleading incorporating the amendment shall be filed, which shall be indicated with appropriate

marks.Purpose: to avoid the necessity on the part of the Court to read the whole pleading in search of the portion thereof which have been amended.

Section 8Effects of amended pleadings: Supersedes the pleading that it amends Admissions in the superseded pleading can

still be received in evidence against the pleader

Claims or defenses alleged therein but not incorporated in the amended pleading shall be deemed waived

An admission in a superseded pleading is an extrajudicial admission and may be proved by the party relying thereon by formal offer in evidence.

RULE 11WHEN TO FILE RESPONSIVE PLEADINGS

Section 1 to Section 7Period within which to file responsive pleading.

Within 15 days from service

Answer to the complaint Answer to AMENDED

complaint, amended counterclaim, amended cross-claim, amended 3rd or 4th party complaint, and amended complaint in intervention (amendment as a matter of right)

Answer to 3rd, 4th etc party-Complaint

Within 10 days from service/notice

Answer to AMENDED complaint, amended counterclaim, amended cross-claim, amended 3rd or 4th party complaint, and amended complaint in intervention(amendment with leave of court)

Answer to Cross-claim or counterclaim

Reply Answer to

SUPPLEMENTAL pleading

Within 30 days Where a defendant is a foreign private juridical


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entity and service of summons is made on the govt official designated by law to receive the same

Within the time specified/At least 60 days after notice

Answer to Complaint in case service of summons is by publication

Answer to complaint in case of a non-resident defendant on whom extraterritorial service of summons is made

Section 8The Answer may contain a counterclaim or cross claimPurpose: to enable to disposition of a whole controversy at one time in one action, provided all parties can be brought before the court and the matter can be decided without prejudicing the rights of any of the parties

Section 9Counterclaim or cross claim arising after the filing of the Answer may be presented by supplemental pleading before judgmentPurpose: provide a means for complete litigation in one action of all claims that parties may have in respect to each other, and thus avoid multiplicity of suits.

This rule is discretionary on the courts.

Section 10Amendment with leave of court is necessary in case a counterclaim or cross claim is omitted by inadvertence, oversight or excusable negligence, or when justice requires.

Oversight - something overlookedInadvertence - involuntary accident, effect of inattention

Section 11Requisites of extension of time to plead Motion for extension Service of such motion to the other party On such terms as may be just

The motion for extension must be filed prior to the expiration of the period fixed by law or before the period sought to be extended, otherwise there is no longer any period to extend..

Although the court has the power to enlarge the period fro answer, it has no power to shorten such period.

RULE 12BILL OF PARTICULAR

Section 1Bill of Particular - more definite statement of any matter which is not averred with sufficient definiteness or particularity- an amplification or more particular specification often matter set forth in pleadingPurpose: enable the moving party to prepare his responsive pleading

A party may file such motion before responding to a pleading or, if no responsive pleading is permitted by the Rules, within 10 days after service of the pleadings upon him.

The motion shall point out: The defects complained of The paragraphs wherein they were contained The details desired

A motion for bill of particulars applies to any pleading which in the perception of the movant contains ambiguous allegations.

The Court may not motu proprio order a bill of particulars.

Section 2The court may either: Deny the motion for bills of particular outright;

or Grant it outright; or Allow the parties the opportunity to be heard.

Section 3The motion for bill of particulars must be effected within 10 days from notice of the order unless the court fixed a different period.

The bill of particulars may be filed: By a separate pleading; or Amended pleading

Section 4Effects of failure to obey order or insufficient compliance Striking out of the pleadings or striking out of

the portions thereof for which the order was directed


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The court may make such other order as it deem just

If the plaintiff fails to obey, his complaint may be dismissed with prejudiceIf defendant fails to obey, his answer may be stricken off and his counterclaim be dismissed, and he will be declared in default upon motion of the plaintiff.

Section 5The filing of a motion for bill of particulars interrupts the running of the period for filing the answer. And the suspended period shall continue to run upon service on the movant of the bill of particulars if motion is granted, or of the notice of its denial, but in any event he shall have not less than 5 days within which to file his responsive pleading.

Section 6Bill of particulars becomes part of the pleading for which it is intended.

The complaint may not be dismissed because of ambiguity, this is basically the purpose of the bill of particulars.

RULE 13FILING AND SERVICE OF PLEADINGS,

JUDGMENTS AND OTHER PAPERS

Section 1 and 2What this rule covers: Filing of all pleadings and other papers Service of pleadings and papers, unless a

different mode of service os prescribed

Filing - act of presenting the original copy of the pleading to the clerk of court

Service- act of providing a party with a copy of the pleading or paper concerned

Notice given to a party who is duly represented by counsel is a NULLITY, unless service thereof on the party himself was ordered by the court or the technical defect was waived.

Where a party is represented by more than one counsel of record, service of notice on any of them is sufficient

The rule on service of notice and other processes to the counsel when a party is represented by one

is NOT WAIVABLE.

Section 3Manner of filing: Personal service - date pf presentment to

court is the date of filing Registered mail - date of mailing is the date of

filing

Filing by mail should be through the REGISTRY SERVICE which is made by deposit of the pleading in the post office, and not through other means of transmission

If a private carrier is availed of, the date of actual receipt of the Court shall be the date of filing.(Benguet Electric vs. NLRC)

Section 4Papers required to be filed and served Pleadings subsequent to the complaint Appearance Written motion Notice Order Judgment Demand Offer of judgment Resolution Similar papers

Sections 5 to 8Modes of service Personal service- by delivering personally to the party or his counsel- by leaving it in his office with his clerk or with a person having charge thereof- if no person is found in his office or his office is not known, by leaving it the partys or counsels residence, if know with a person of sufficient age and discretion to receive the same, between 8am to 6pm

Service by mail shall be required if registry service exists

in the locality by ordinary mail if no registry service

available shall be made by depositing the copy with

the Post Office, in a sealed envelope, plainly addressed to the party with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if not


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Jmvdg 1st Sem/ A.Y. 2011-201224

delivered. Substituted service

delivery of the pleadings and other papers to the clerk of court with proof of failure of both personal service and service by mail.

may be resorted to only if personal service and service by mail cannot be made

deemed complete at the time of delivery

Section 9Modes of service of final judgments Personal service Registered mail Publication at the expense of the prevailing

party summoned by publication failed to appear in the action

Where no notice of a final order or judgment is served to the interested parties or their lawyers, such order or judgment cannot become final and executory with regards to said parties

Section 10Completeness of service of pleadings and other papers

Mode When completed?Personal service Upon actual deliveryOrdinary mail Upon expiration of ten

(10) days after mailing, unless the court otherwise provides

Registered mail Upon actual receipt by the party; orAfter 5 days from the date he received the 1st

notice of the postmaster, whichever date is earlier

Section 11Personal service is the preferred mode of service and filing It expedite action or resolution on a pleading,

motion, or other paper\ Minimizes, if not eliminates, delays likely to be

incurred if service or filing is done by mail

Section 12Proof of filing By its existence in the record of the case If it is not on record, by the written or stamped

acknowledgement of its filing by the clerk of court on a copy of the same

If filed by registered mail, by the RR and by the

affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid and with the instruction to the postmaster to return in to sender after 10 days if not delivered.

Section 13Proof of servicePersonal service Written admission of the party served Official return of the server Affidavit of the party serving, containing a full

statement of the date, place, and manner of service

Service of ordinary mail Affidavit of the person mailing with facts

showing compliance with Section 7, rule 13

Registered mail by the RR and by the affidavit of the person

who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid and with the instruction to the postmaster to return in to sender after 10 days if not delivered.

Due process is the reason behind the rules on service

Section 14Lis pendens - a pending suit- the jurisdiction, power or control which a court acquires over a property involved in a suit, pending the continuance of the action, and until final judgment therein.

Theories on the lis pendens: As a notice to the whole world- any person who delas with property involved in a suit, having presumably known what he was doing, must have acted in bad faith and is therefore properly bound by the judgment rendered- for the purpose of preserving the status of the property

As a matter of public policy- to prevent litigants from disposing of the property in controversy

Date post:	03-Nov-2015
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