Notes in Civil Procedure - Rules 1-71 (Final)

NOTES IN CIVIL PROCEDURE (Atty. T. Salvador III - Lecturer)

Jurisdiction

o MTCs (outside of MM):

1. Actions involving title to, possession of, or interest in real property the assessed value

of which is not exceeding PhP 20K; if it exceeds said amount, RTC. 2. Basic amount of claim not exceeding PhP 300K; if it exceeds said amount, RTC. 3. In maritime cases, the jurisdictional amount is not exceeding PhP 300K; if it exceeds

said amount, RTC. 4. In probate cases and estate cases, if the value of the estate is not exceeding PhP 300K;

if it exceeds said amount, RTC. 5. In proceedings subject to summary procedure, the jurisdictional amount is not

exceeding PhP 100K. 6. In small claims cases, the claim should not exceed PhP 100K. 7. Forcible entry and unlawful detainer cases (ejectment cases), regardless of the claim

of unpaid rentals.

o MeTCs (within MM):

1. Actions involving title to, possession of, or interest in real property the assessed value of which is not exceeding PhP 50K; if it exceeds said amount, RTC.

2. Basic amount of claim not exceeding PhP 400K; if it exceeds said amount, RTC. 3. In maritime cases, the jurisdictional amount is not exceeding PhP 400K; if it exceeds

said amount, RTC. 4. In probate cases and estate cases, if the value of the estate is not exceeding PhP 400K;

if it exceeds said amount, RTC. 5. In proceedings subject to summary procedure, the jurisdictional amount is not

exceeding PhP 200K. 6. In small claims cases, the claim should not exceed PhP 100K. 7. Forcible entry and unlawful detainer cases (ejectment cases), regardless of the claim

for unpaid rentals.

o Can a grant of certiorari, prohibition, mandamus, quo warranto, injunction, habeas corpus granted by a Manila RTC be enforced in Iligan City? No, it cannot be enforced in Iligan City. Under BP No. 129, the orders of the RTC can only be effective within the judicial district of the issuing court. But an order of attachment can be enforced anywhere in the PH. Attachment is not included in the enumeration under BP No. 129.

o Can the Court of Appeals entertain an ordinary civil action? How about the Supreme Court? No. Under the Rules of Court, the Court of Appeals and the Supreme Court can only entertain original action on special civil actions on certiorari, prohibition, mandamus, quo warranto, habeas corpus, habeas data, writ of amparo, and the like.

o For appellate jurisdiction to apply, would it be sufficient to file an appeal? No. For appellate jurisdiction to apply, you have to file the appeal within the reglementary period and you will have to pay the corresponding docket fees also within the reglementary period.

o What is jurisdiction? Jurisdiction is the authority or power to hear, try and decide a case. Jurisdiction is conferred by law, and is determined by the allegations in a complaint or information.

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1. This applies to both civil and criminal actions. The allegations in a complaint or information help the Judge determine whether he or she has jurisdiction over the case and can therefore act on it.

2. Without a law conferring jurisdiction, the courts are useless. When there is jurisdiction conferred by law, the court through the Judges now have the power to hear, try, and decide a case.

o How does the court acquire jurisdiction over the person of the plaintiff? By the

filing of the complaint and by payment of filing fees. Payment of filing fees is jurisdictional.

1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. (Sun Insurance vs. Asuncion, 1989).

2. The same rule applies to permissive counterclaims, third party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period. (Id.)

3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee. (Id.)

o You are to pay filing fees for permissive counterclaims, because for all intents and purposes,

a permissive counterclaim is independent of the principal action. It has no relationship at all to the principal action.

o In 2004, Rule 141 was amended to include compulsory counterclaim in the payment of filing fees. And then in the same year, the Supreme Court came up with a resolution suspending Rule 141, specifically filing fees on compulsory counterclaims until today.

o Two (2) instances where the lien on the judgment award can be applied:

1. Where there is incorrectly assessed or paid filing fee; 2. Where the court has discretion to fix the amount of the award, i.e. where the court

awards damages which were not prayed for.

o If you relied in good faith, on a computation of the Clerk of Court, and based on that computation, you paid filing fees, the court has acquired jurisdiction. And if by chance, it is later discovered that it is incorrect, or deficient, there will be a lien on the judgment award because it was incorrectly assessed or paid. Jurisdiction is acquired because it was not the fault of the party.

o Do you need to pay filing fees for the amount of interest which accrued at the time of the filing of the complaint? Yes, because it has already accrued. However, in cases where the court awards interest to the prevailing party, interest which accrued during the pendency of the case will be a lien on the judgment award.


o Do you need to pay filing fees for a supplemental complaint? Yes. While the court already acquired jurisdiction on the principal complaint, you need to pay filing fees for the supplemental complaint. Otherwise, the court cannot act on it.

1. There is no waiver on filing fees on the part of the parties (inaction, failure to object,

etc.). Even the lower courts cannot waive the filing fees, only the Supreme Court can waive the payment of filing fees.

o If your case is classified as incapable of pecuniary estimation, the filing fee is a fixed

amount. But if it involves actions on title to, possession of, or interest over real property, you will have to pay filing fees.

1. In actions on title to, possession of, or interest over real property, for purposes of jurisdiction, the threshold amounts are PhP 20K and PhP 50K. But under Rule 141, if the action is capable of pecuniary estimation, and it involves real property, it will be based not on the assessed value (AV), but on the fair market value (FMV) or zonal valuation or, in the absence of which, based on the allegations of the complaint.

2. Jurisdiction over actions for partition depends on what is to be partitioned. If the property to be partitioned is a real property, the basis is the assessed value.

o How do you determine jurisdiction in terms of the claim? You determine it based

on the amount of the claim, exclusive of damages, interest, attorneys fees, and costs of suit. However, where the claim is purely for damages, jurisdiction is determined by the amount of damages claimed (SC Circular No. 09-94).

o How does the court acquire jurisdiction over the person of the defendant? Through service of summons under Rule 14; or voluntary appearance/submission to the jurisdiction of the court.

1. The general rule is that the question of jurisdiction could be raised at any time even on appeal. An exception to this rule is estoppel on the question of jurisdiction (Tijam vs. Sibonghanoy, 1968).

o Declaratory Relief under Rule 63 is covered only by the first paragraph. The second

paragraph refers to Other Similar Remedies, i.e. quieting of title or removal of cloud therefrom, reformation of an instrument, and consolidation of ownership.

1. The case of Sps. Sabitsana vs. Muertegui (2013) treated Other Similar Remedies under Rule 63 as a Declaratory Relief, and for that reason, it is the RTC that has original jurisdiction. The ruling in this case is more attuned to the civil code provision.


RULE 2: Cause of Action

o Can a special civil action have a cause of action? As a general rule, only ordinary civil actions have a cause of action, i.e. breach or violation of ones right. An exception is an ejectment case - a special civil action which has a cause of action.

o When can we say that there is a criminal action? An action is considered to be a criminal action when the State prosecutes, i.e. when an information is filed with the court.

1. When an information is filed with the Office of the Prosecutor (I.S. No. or Investigation Slip No.), such is only for purposes of preliminary investigation, if it is required.

o The Rules of Court will not apply in cadastral cases, land registration case, insolvency cases,

naturalization proceedings, and election cases because these proceedings have their own rules.

1. Although the laws that created the rule states that the court of original jurisdiction will be the courts of law, the rules that they will follow will be the rules provided under their respective laws.

o When you harp on the liberal application of the rules, it means that you did not apply the rule

to the letter. The court will not entertain your plea of liberal application unless it is compelling; that there is a good reason why the court should give it; and is left to the sound discretion of the court.

o One suit for every cause of action. What you count is the breach or the violation of the right. There can be as many causes of action as you want in a single case. What is prohibited is splitting a single cause of action.

o Is the joinder of causes of action mandatory? Joinder of causes of action, if allowable, is permissive, and not mandatory.

o Joinder of Causes of Action:1

1. If there are multiple parties, you will have to apply the rule on permissive joinder of parties (Rule 3, Sec. 6),2 i.e. it must arise from the same transaction or series of transaction, whether jointly, severally, or in the alternative, or common fact or law.

2. If there is only one party, it need not arise from the same transaction or series of transaction. You can join your causes of action in one complaint.

3. In joinder of causes of action, the option to join lies with the plaintiff; it is without the

discretion of the court because there is no pending cases yet. The courts discretion

1 Rule 2, Sec. 5. Joinder of causes of action. A party may in one pleading assert, in the alternative 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 actions or actions governed by special rules;

c. Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may

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

therein; and

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

the test of jurisdiction. 2 Rule 3, Sec. 6. Permissive joinder of parties. All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative,

may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question

of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders

as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings

in which he may have no interest.


comes in when a party asks for consolidation because the cases are now pending before the court.

4. You can join a personal and a real action in one complaint, but the joinder of the

causes of action is dictated by the case falling within the jurisdiction of the RTC.

o Can you join an ordinary action with a special civil action in one complaint? How about a special civil action with another special civil action? No. If the rules are covered by different rules, you cannot join them.

o Misjoinder of causes of action: A misjoinder of the causes of action will not lead to the dismissal of the case. Filing fees already paid will be forfeited. There is no refund of filing fee.

o Totality Rule: It is the sum of all your monetary claims; recovery of sums of money. You can institute one case for each cause of action; but you can also join all causes of action, in which case jurisdiction will be determined by the total amount of the claim.

o Splitting of Cause of Action3

1. For all intents and purposes, splitting a cause of action is forum-shopping. 2. Forum-shopping can be committed in three (3) ways:

a. There are multiple cases based on the same cause of action, with the same

prayer, the previous case not having been resolved (litis pendencia); b. There are multiple cases based on the same cause of action, with the same

prayer, the previous case having been finally resolved (res judicata); c. There are multiple cases based on the same cause of action, but with different

prayers (splitting cause of action).

3. Splitting cause of action is not a ground to dismiss. The proper ground under Rule 16 in a Motion to Dismiss4 is res judicata or litis pendencia.

o Can you amend a case or complaint when at the outset, there is no cause of

action? No. When at the outset there is no cause of action, you cannot amend the case because in the first place there is no case to speak of.

o Can you amend a complaint to substantially alter the cause of action? Yes. In a case, the Supreme Court held that even if the cause of action is substantially altered, for as long as there is a cause of action, amendment is left to the discretion of the court. What is important is there is a cause of action.

3 Rule 2, Sec. 4. Splitting a single cause of action; effect of. If two or more suits are instituted on the basis of the same cause of action, the filing of one (litis pendencia) or a judgment upon the merits (res judicata) in any one is available as a ground

for the dismissal of the others. (Emphasis and annotations supplied). 4 Rule 16, Sec. 1. Grounds for a Motion to Dismiss. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

a. That the court has no jurisdiction over the person of the defending party;

b. That the court has no jurisdiction over the subject matter of the claim;

c. That venue is improperly laid;

d. That the plaintiff has no legal capacity to sue;

e. That there is another action pending between the same parties for the same cause;

f. That the cause of action is barred by a prior judgment or by the statute of limitations;

g. That the pleading asserting the claim states no cause of action;

h. That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;

i. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds;

j. That a condition precedent for filing the claim has not been complied with.


RULE 3: Parties to Civil Actions

o Requisites for Permissive Joinder of Parties:

1. The right to relief arises from the same transaction or series of transactions; 2. There is a question of fact or law common to all plaintiffs or defendants; 3. Such joinder is not otherwise prohibited by the provisions of the Rules.

o Real Party-in-Interest5

1. You can only be a party to a case if you are the real party-in-interest. Whether you be

the plaintiff, or the defendant, you should be the real party-in-interest.

2. Legal standing or locus standi is different from the concept of real party-in-interest. Locus standi is a concept in Political Law. It means that by reason of some governmental act, you suffer some personal injury.

o Can a natural person sue and be sued? Under what capacity (basis)? Yes. Capacity

is that the person is of legal age. That the person instituting the case has legal capacity.

1. In case of a minor, i.e. a person not of legal age, or an incompetent person should be assisted by the father, mother, guardian, or if he has none, a guardian ad litem appointed by a court.

2. In case of supervening incapacity6, the case will continue. The incapacitated person shall be assisted by his legal guardian or guardian ad litem appointed by the court.

3. In case of spouses as parties, the husband (H) and wife (W) shall sue or be

sued jointly, except as provided by law. The general rule is that both spouses must be impleaded because the case involves a common interest of the H and W.

a. Exceptions: In cases involving personal actions such as negligence, tortious

conduct, practice of profession, separate properties of the spouses.

4. In case of representatives7 as parties, the law requires that the name of the beneficiary be indicated in the title of the case.

5 Rule 3, Sec. 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be

prosecuted or defended in the name of the real party in interest. 6 Rule 3, Sec. 18. Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal

guardian or guardian ad litem. 7 Rule 3, Sec. 3. Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the

real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party

authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be

sued without joining the principal except when the contract involves things belonging to the principal.


5. In case of death of a party, check the facts of the problem as to whether who died, and what the nature of the action is, because these will determine whether Sec. 168 (substitution), or Sec. 209 of Rule 3 will apply.

a. In Sec. 16, death refers to the death of any party as long as the nature of the

action is that which would not be extinguished by reason of death, and it does not involve a sum of money.

b. Sec. 16 is substitution by reason of death. This is a matter of due process. Even if the process of substitution is not followed, but the heirs actively participated and submitted themselves to the jurisdiction of the court, the requirement of due process is faithfully satisfied. The proceedings cannot be declared null and void. The proceedings will only be declared null and void if due process was not served.

c. If there is no court order for substitution, or if the lawyers notice was defective,

there is no substitution. The general rule therefore is that if the process for substitution in Sec. 16 (the two steps: duty of the counsel, and duty of the court) were not followed, there will be no successful substitution; and because there is no successful substitution, the proceedings are null and void because due process was not observed.

i. As to the persons (sons of the deceased party) who actively participated,

who presented their evidence, the judgment is valid. But as to the deceased father where there was no proper substitution, the judgment is null and void. It does not mean that if the sons were in the case, the interest of the deceased father was actively protected.

ii. Where there was no order of substitution, but the heirs actively participated in the proceedings, the proceedings are valid, because the due process requirement was faithfully satisfied.

d. Sec. 20 will apply only under these conditions: the defendant dies, and the nature of the action is a sum of money.

i. Sec. 20 has a very narrow application. If it was the plaintiff who died,

and it is a money claim, Sec. 20 will not apply. It is Sec. 16 which will apply.

8 Rule 3, Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death or the fact thereof, and

to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a

ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or

administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty

(30) days from notice.

If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the

specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or

administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court

charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. 9 Rule 3, Sec. 20. Action on contractual money claims. When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry 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 the entry of final judgment. A favorable

judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims

against the estate of a deceased person.


ii. This is not a case of substitution. If the case is for collection of sum of money, and the defendant dies, the case will continue as against the estate (of the defendant).

iii. Provisional remedies availed of (e.g. injunction, attachment) before the

death of the defendant will continue to survive despite the death (of the defendant) because the action continues to survive. What has changed is just the party, i.e. from defendant to estate of the defendant.

6. In case of public officers10 who die, resign, or otherwise cease to hold office during

the pendency of an action in which such public officer is a party, the law requires that within thirty (30) days from the time that a successor has been named or appointed, there should be an indication or showing whether the successor will adopt or continue to adopt the act of his predecessor; and for that reason, he should be given notice and opportunity to be heard. This is the essence of due process.

a. If the successor adopts the acts of his predecessor, the case instituted by or

against the predecessor continues. This is a case of substitution.

7. In case of transfer of interest11, and the transferor dies during the pendency of the action, the transferee cannot be the substitute because death has already set in. Transfer of interest can only apply if both the transferor and the transferee are alive.

a. What will apply in case the transferor dies during the pendency of the action

even if he has transferred his interest, is Rule 3, Sec. 16.

b. In Jocson v. Court of Appeals (1990), the court held that the BPI is bound by the decision of the trial court being the transferee pendente lite of the original defendant therein, despite the fact that it had not been substituted for the original defendant and had not been notified of the proceedings against it. (Heritage Park vs. CIAC, 2008)

c. A transferee pendente lite stands in exactly the same position as its

predecessor-in-interest, the original defendant, and is bound by the proceedings had in the case before the property was transferred to it. It is a proper but not an indispensable party as it would in any event be bound by the judgment against his predecessor. This would follow even if it is not formally included as a defendant through an amendment of the complaint. (Id.)

o Can a domestic corporation sue and be sued? Under what capacity (basis)? Yes.

Capacity is that it is duly organized and incorporated under the rules whether of the PH, or in the country where it was organized.

1. In every pleading, you will have to state capacity - of an individual, of legal age; of a

corporation, that they are duly organized under the law by which they are formed.

10 Rule 3, Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and

maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted

by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it

and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution

is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application

therefor and accorded an opportunity to be heard. 11 Rule 3, Sec. 19. Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action

or joined with the original party.


2. If you would like to make an issue out of capacity, you will have to state it, or you will have to deny it, and you will have to identify the particulars why you oppose the capacity; and if there are documents, you will have to attach the documents.

o Can a foreign corporation sue in the PH?

1. Where the foreign corporation is licensed and has submitted to the jurisdiction of the court, and is doing business in the PH, such foreign corporation can sue and be sued in the PH.

2. Where the foreign corporation is not licensed and has not submitted to the jurisdiction

of the PH law, but it is doing business in the PH, it cannot sue in the PH, but it can be sued.

a. Exception: If the domestic corporation or individual benefitted from his

relationship with the foreign corporation which is not licensed to do business in the PH, he is estopped from raising the abovementioned defense. Hence, such foreign corporation can sue in the PH.

3. Where the foreign corporation is not licensed, but has only dealt with a domestic

corporation or a Filipino individual on an isolated transaction, i.e. not in the regular or ordinary course of business, such foreign corporation can sue and be sued in the PH.

o Can a non-juridical12 entity sue? No, it cannot institute an action because it has no juridical existence, but the individuals comprising the non-juridical entity can sue.

1. Can it be sued? Yes it can be sued. This is for the protection of the public because

the public was made to believe that they are dealing with a juridical entity, but the truth is they are not. If you sue a non-juridical entity, it is the duty of its members to disclose in their answer, their true names and addresses.

2. How do you serve summons?13 You serve the summons to any one of the members

of the non-juridical entity or someone in charge of its office.

3. A judgment14 against the non-juridical entity will be a judgment against its individual members assuming they were made parties to a case, not against the non-juridical entity because it has no separate juridical existence.

o Entities authorized by law: Labor organizations; Political parties; Estate.

o Indispensable and Necessary Parties

1. An indispensable party is someone who should be impleaded in order to have a final

determination of the case. If you dont implead an indispensable party, any judgment will be null and void. It is the duty of the court to stop the proceedings if it identifies

12 Rule 3, Sec 15. Entity without juridical personality as defendant. 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. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. 13 Rule 14, Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all

the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in

such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been

severed before the action was brought. 14 Rule 36, Sec. 6. Judgment against entity without juridical personality. When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known.


that the indispensable party was not impleaded, because it is useless to proceed with the case.

a. If the court orders that an indispensable party be impleaded, but despite the

order of the court, the indispensable party was not impleaded, the court should dismiss the case.

b. In an action for judicial partition, a co-owner of a property is an indispensable party. Under the Rules of Court, partition cannot proceed because an indispensable party is not included.

2. A necessary party should be impleaded in order to have a complete determination or

settlement of the claim subject of the case.

a. If a necessary party is not impleaded, there can still be a valid judgment, unlike in the case where an indispensable party is not impleaded, in which case there will be no valid judgment.

o Can you still proceed with the non-impleaded necessary15 party?

1. If the court ordered that the necessary party be impleaded, and such order was not followed, there will be waiver of claims against the necessary party.

2. But if there was no order from the court to implead the necessary party, that is without

prejudice to any action against the necessary party.

3. What is crucial here is the order from the court requiring you to implead the necessary party.

o A class suit16 requires that there exists a common or general interest; that the parties are so

numerous that it is impracticable to bring all the parties to court; and that there is adequacy of representation, i.e. whether the interests of the named party is co-extensive with the interests of the other members of the class considering the proportion of those made a party as it bears to the total membership of the class.

1. Where the interests of the plaintiffs and the other members of the class they seek to represent are diametrically opposed, the class suit will not prosper. (Banda vs. Ermita, 2010).

2. The mere fact that the complaint says that it is a class suit does not make it a class suit. What makes it a class suit is that it satisfies the requirement of law under Rule 3, Sec. 12, and likewise satisfies the requirement of adequacy of representation.

3. If there is diversity of interests among the members of a class, there is no class suit.

Once the common or general interests tweak, there is diversity. Hence, no class suit will prosper.

15 Rule 3, Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court

find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his

person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver

of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action,

and the judgment rendered therein shall be without prejudice to the rights of such necessary party. 16 Rule 3, Sec. 12. Class suit. When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently

numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party

in interest shall have the right to intervene to protect his individual interest.


o Who is an indigent party? - There are two (2) definitions of an indigent party under Rule 3, Sec. 21, and under Rule 141, Sec. 19.

1. Rule 3, Sec. 21: A party may be authorized to litigate his action, claim or defense as

an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.

2. If the applicant for exemption meets the salary and property requirements under Section 19 of Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the "indigency test" under Section 21 of Rule 3 and use its sound discretion in determining the merits of the prayer for exemption. (Sps. Algura vs. LGU of Naga City, 2006).

3. Under the provision of the Rules, there are two (2) benefits of being an indigent, i.e. exemption from payment of docket fees (which will be a lien on the judgment award in case of a favorable decision), and entitlement to the TSN.

o Tests of Indigency (Rule 141, Sec. 19): For an applicant for legal aid, the combined

means and merit tests shall be used to determine his/her eligibility:

1. Means Test - This test shall be based on the following criteria:

a. The applicant and that of his immediate family must have a gross monthly income that does not exceed an amount double the monthly minimum wage of an employee in the place where the applicant resides; and

b. He does not own real property with a FMV as stated in the current tax declaration of more than PhP 300K.

2. Merit Test A case shall be considered meritorious if an assessment of the law and evidence at hand discloses that the legal service will be in aid of justice or in the furtherance thereof, taking into consideration the interests of the party and those of society. A case fails this test if, after consideration of the law and evidence presented by the applicant, it appears that it is intended merely to harass or injure the opposite party or to work oppression or wrong. [A.M. No. 08-11-7-SC (IRR), Art. IV, Sec. 3]

o The PAO has a different basis in determining indigents. What Sec. 21 of Rule 3 refers to is the

determination of the court on who is to be an indigent; i.e. who is exempt from payment of

filing fees. The determination of an indigent for purposes of being represented by the PAO is

different this is for purposes of representation.

o Can a juridical entity claim that it is an indigent? No, the courts cannot grant to foundations like the Good Shepherd Foundation, Inc. the same exemption from payment of legal fees granted to indigent litigants even if the foundations are working for indigent and underprivileged people. (Re: Query of Mr. Roger C. Prioreschi Re: Exemption from Legal and Filing Fees of the Good Shepherd Foundation, Inc., A. M. No. 09-6-9-SC).

1. The clear intent and precise language of the provisions of the Rules of Court on indigent parties indicate that only a natural party litigant may be regarded as an indigent litigant. The Good Shepherd Foundation, Inc., xxx is a juridical person. As a juridical person, therefore, it cannot be accorded the exemption from legal and filing fees granted to indigent litigants. That the Good Shepherd Foundation, Inc. is working for indigent and underprivileged people is of no moment. Clearly, the Constitution has explicitly premised the free access clause on a persons poverty, a condition that only a natural person can suffer. (Id.)


RULE 4: Venue

o Can venue be a subject of waiver? Yes. Venue can be waived. It can be the subject of an agreement of the parties, while jurisdiction, on the other hand, being conferred by law cannot be subject of an agreement.

1. The court cannot dismiss the case motu proprio on the ground of improper venue, because venue is waivable. If a party does not object to the improper venue either in a motion to dismiss or in the answer, such ground for objection is deemed waived.

o Can the venue of real actions be stipulated upon by the parties? Yes. Rule 4, Sec. 4 provides that where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof, the rule on venue of actions will not apply. The agreement of the parties on venue prevails, most especially if there are words of exclusivity.

1. When there are words of exclusivity in the stipulation on agreement, it excludes all other venues, even those provided for by law. The agreement prevails. In the absence of words of exclusivity, the venue provided in the contract is only in addition to what is provided for by law.

2. If there is a specific provision of law which provides for the venue of the action, such

provision shall prevail over the provisions of Rule 4.

o Venue in personal actions17 is dictated by the residence (not domicile) of the parties. In civil procedure, residence refers to the place where the party is physically present.

o Venue in cases against a non-resident defendant:18

1. In a personal action, plaintiff may institute the action where the plaintiff or principal

plaintiff resides; or where the defendant is found at the option of the plaintiff;

2. In case where the personal status of the plaintiff is involved, the plaintiff may institute the action in the place where he resides; and

3. Where the defendant-owner of a real property is not found in the PH, the case

involving the property of the non-resident defendant may be instituted in the place where the property is located or found.

17 Rule 4, Sec. 2. Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident

defendant where he may be found, at the election of the plaintiff. 18 Rule 4, Sec. 3. Venue of actions against non-residents. If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines,

the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion

thereof is situated or found.


RULE 5: Uniform Procedure in Trial Courts

o What are the procedures to be followed in the first-level courts? The procedures to be followed are Ordinary Procedure, i.e. the procedure under the Rules of Court; Rules on Summary Procedure; and Rules on Small Claims.

o The general rule is that no petition for relief from judgment nor a special civil action of certiorari, prohibition, or mandamus arising from cases covered by the Revised Rule on Summary Procedure may be filed with a superior court. The exceptions are as follow:

1. In view of the unusual and peculiar circumstances of this case, unless some form of relief is made available to Magdato, the grave injustice and irreparable injury that visited him through no fault or negligence on his part will only be perpetuated. Thus, the petition for relief from judgment which he filed may be allowed or treated, pro hac vice, either as an exception to the rule, or a regular appeal to the RTC, or even an action to annul the order (decision) of the MCTC of 20 September 1993. (Bayog vs. Natino, 1996)

2. In situations wherein a summary proceeding is suspended indefinitely, a petition for

certiorari alleging grave abuse of discretion may be allowed. Because of the extraordinary circumstances in this case, a petition for certiorari, in fact, gives spirit and life to the Rules on Summary Procedure. A contrary ruling would unduly delay the disposition of the case and negate the rationale of the said Rules. (Go vs. CA, 1998).

o Jurisdiction over forcible entry and unlawful detainer cases falls on the MeTCs, the MTCCs,

the MTCs, and the MCTCs. Since the case before the MTCC was an unlawful detainer case, it was governed by the Rules on Summary Procedure. The purpose of the Rules on Summary Procedure is to prevent undue delays in the disposition of cases and to achieve this, the filing of certain pleadings is prohibited, including the filing of a motion for reconsideration. However, the motion for reconsideration that petitioners allege to be a prohibited pleading was filed before the RTC acting as an appellate court. The appeal before the RTC is no longer covered by the Rules on Summary Procedure. The Rules on Summary Procedure apply before the appeal to the RTC. Hence, respondents motion for reconsideration filed with the RTC is not a prohibited pleading. (Macadangdang vs. Gaviola, 2009).

o Is the failure to refer the matter to barangay conciliation waivable? Yes. Under Sec. 1 of Rule 9, the only grounds which are not waivable are lack of jurisdiction over the subject matter, litis pendencia, res judicata, and prescription (statute of limitations). Prior barangay conciliation is a condition precedent, and for that reason it is waivable.

o Can the court, on its own, dismiss a case if it finds on the record that the action has already prescribed? Yes, the court can dismiss a case motu proprio on the ground of prescription.


RULES 6 (Kinds of Pleadings), 7 (Parts of a Pleading), and 8 (Manner of Making Allegations in Pleadings)

o What should a complaint contain? The complaint should state the claim(s) or the

cause(s) of action. It should make a brief and concise statement of ultimate facts based on the claim or cause of action, devoid of evidentiary matters. Presentation of evidence (evidentiary matters) should be made in the course of the trial.

o Do you need to attach a document to the complaint considering the matters which should be contained in the complaint? Yes, if the action is based on an actionable document. You have to allege the existence of the actionable document and append or attach it either by stating its substance and attaching a copy or the original thereof in the complaint, or you copy or reproduce the same in the body of the pleading. However, in practice, whether you state the substance or reproduce the body of the document in the pleading, you always attach a copy.

o An answer specifically denies the allegations of the complaint. However, a defense could be a negative defense, where you specifically deny the claim, or an affirmative defense, where though you hypothetically admit the material allegations (basis of the claim) of the complaint, it will nevertheless prevent or bar recovery.

1. An affirmative defense could be any ground for as long as it would prevent or bar

recovery, unlike in a motion to dismiss, which grounds are limited to those provided for under Rule 16.

2. In the case of Sps. Mongao vs. Pryce Properties Corporation (2005), the court held that: An answer may allege affirmative defenses which may strike down the plaintiffs cause of action. An affirmative defense is one which is not a denial of an essential ingredient in the plaintiffs cause of action, but one which, if established, will be a good defense, i.e. an "avoidance" of the claim. Affirmative defenses include fraud, statute of limitations, release payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance.

3. The court further held that: Allegations presented in the answer as affirmative

defenses are not automatically characterized as such. Before an allegation qualifies as an affirmative defense, it must be of such nature as to bar the plaintiff from claiming on his cause of action. (Id.)

4. If you will avail of an affirmative defense which is not a ground for a motion to dismiss under Rule 16, you must file an answer with an affirmative defense, you dont file a motion to dismiss.

o What is an answer ex abudanti ad cautelam? An answer ex abudanti ad

cautelam is an answer filed with extreme caution. Ex abudanti cautela means "out of abundant caution" or "to be on the safe side." It is filed if there was a previous motion to dismiss that was denied and such denial was elevated to the next level court on a petition for certiorari, and there is yet no preliminary injunction.

1. The basic rule today is that in the absence of a preliminary injunction or a temporary restraining order, even if you file a petition for certiorari, the proceedings shall not be stayed or suspended. For this reason, once your motion to dismiss is denied, your reglementary period starts to run it is possible that you will be declared in default. This is why one files an answer ex abudanti ad cautelam so that the defendant cannot be declared in default.


o Is an answer ex abudanti ad cautelam an answer? Yes, in the case of Rosete vs. Lim (2006), the court held that an answer ex abudanti cautela does not make an answer less of an answer.

1. The court further held that: A cursory look at the answers filed by petitioners shows

that they contain their respective defenses. An answer is a pleading in which a defending party sets forth his defenses and the failure to file one within the time allowed herefore may cause a defending party to be declared in default. Thus, petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers despite the pendency of their appeal with the Court of Appeals on the denial of their motion to dismiss. (Id.)

o What is a negative pregnant? It is a denial which is pregnant with an admission, that in the course of your denying it, youre practically admitting the assertions of the complaint.

o Are there specific denials in an Answer? Yes. Under Rule 8, Sec. 1019, there are three

(3) kinds of specific denials: specific denial, qualified denial, and lack of knowledge or information to form a belief as to the truth thereof, i.e. you really have no knowledge.

1. The negative and affirmative defenses are the defenses, your basic defenses. The specific denials under Rule 8, Sec. 10 are denials of specific allegations.

2. If the fact is within your knowledge and competence, you have to deny it or admit it. Otherwise, if you use lack of knowledge or information to form a belief as to the truth thereof, that amounts to an admission.

o What is a specific denial? In the case of PNB vs. CA (2004), the court held that: A denial

is not made specific simply because it is so qualified by the defendant. A general denial does not become specific by the use of the word specifically."

1. When matters of whether the defendant alleges having no knowledge or information

sufficient to form a belief are plainly and necessarily within the defendants knowledge, an alleged ignorance or lack of information will not be considered as a specific denial. (Id.)

2. Section 11, Rule 8 of the Rules also provides that material averments in the complaint other than those as to the amount of unliquidated damages shall be deemed admitted when not specifically denied. Thus, the answer should be so definite and certain in its allegations that the pleaders adversary should not be left in doubt as to what is admitted, what is denied, and what is covered by denials of knowledge as sufficient to form a belief. (Id.)

o How do you specifically deny an actionable document? The requirement of law is

that you specifically deny (the allegation based on an actionable document) under oath, i.e. you must declare under oath that you did not sign the document or that it is otherwise false or fabricated.

1. When respondent merely stated in his Answer was that the signature appearing at the back of the promissory note seems to be his, and that respondent reiterated these allegations in his denial under oath, stating that the promissory note sued upon, assuming that it exists and bears the genuine signature of herein defendant, the same

19 Rule 8, Sec. 10. Specific denial. A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a

defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only

the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material

averment made in the complaint, he shall so state, and this shall have the effect of a denial.


does not bind him and that it did not truly express the real intention of the parties, respondents denials do not constitute an effective specific denial as contemplated by law. (Permanent Savings vs. Velarde, 2004).

2. In the early case of Songco vs. Sellner (1917), the court expounded on how to deny the genuineness and due execution of an actionable document, viz.: This means that the defendant must declare under oath that he did not sign the document or that it is otherwise false or fabricated. Neither does the statement of the answer to the effect that the instrument was procured by fraudulent representation raise any issue as to its genuineness or due execution. On the contrary such a plea is an admission both of the genuineness and due execution thereof, since it seeks to avoid the instrument upon a ground not affecting either.

o Why does the law require specific denial under oath of actionable documents

that if you fail to specifically deny it under oath, it is considered admitted? It is considered admitted in order to dispense with authentication. You cut short the process of trial because you do not need to authenticate it anymore. It is as if you stipulated on the actionable documents genuineness and authenticity.

o A reply is not a mandatory pleading. It is filed only to meet the new matters raised in an answer; but even though new matters are raised in an answer, and you did not file a reply, the new matters are deemed as controverted, i.e. disputed.

o Compulsory and Permissive Counterclaims

1. A compulsory counterclaim necessarily arises from the principal action. A compulsory counterclaim set up in the answer is not an initiatory or similar pleading. The initiatory pleading is the plaintiffs complaint. A respondent has no choice but to raise a compulsory counterclaim the moment the plaintiff files the complaint. Otherwise, respondent waives the compulsory counterclaim. In short, the compulsory counterclaim is a reaction or response, mandatory upon pain of waiver, to an initiatory pleading which is the complaint. (Agana vs. Lagman, 2005).

2. The compelling test of compulsoriness characterizes a counterclaim as compulsory if there should exist a logical relationship between the main claim and the counterclaim. There exists such a relationship when conducting separate trials of the respective claims of the parties would entail substantial duplication of time and effort by the parties and the court; when the multiple claims involve the same factual and legal issues; or when the claims are offshoots of the same basic controversy between the parties. (Lafarge Cement vs. Continental Cement, 2004).

3. A permissive counterclaim is a claim independent of the principal action. There is no

logical relationship between the main claim and the permissive counterclaim; the court can only cover a counterclaim within its jurisdiction, i.e. within the jurisdictional amount.

o Do you need a Certificate of Non-Forum Shopping for a compulsory

counterclaim? For a permissive counterclaim?

1. In a compulsory counterclaim, you do not need a Certificate of Non-Forum Shopping. It is not an initiatory pleading. It is a necessary offshoot of the main claim.

2. In a permissive counterclaim, however, such certificate is needed because, for all intents and purposes, a permissive counterclaim is a separate action.


o Can the plaintiff dismiss his complaint? Yes, that is clear under Rule 17. There are two (2) possible scenarios on the dismissal of a plaintiff. These are as follow:

1. The plaintiff, upon filing his action and before there is yet an answer, can decide to

dismiss it. This is dismissal as a matter of right,20 and for this reason the dismissal can only be initiated upon notice. What happens to the counterclaim? Since there is no answer yet, then there is no counterclaim.

2. The plaintiff, upon motion, decides to dismiss his complaint after the defendant has

filed his answer. This dismissal is not as a matter of right, but subject to the discretion of the court. What happens to the counterclaim? The counterclaim will survive and will have to stand based on its own merits.

o What happens to the counterclaim if the principal action was dismissed? The

counterclaim survives. It will have to stand based on its own merits.

1. In the case of Pinga vs. Heirs of German Tinga (2006), the court held that: the dismissal of a complaint due to fault of the plaintiff is without prejudice to the right of the defendant to prosecute any pending counterclaims of whatever nature in the same or separate action.

2. This is without regard as to the permissive or compulsory nature of the counterclaim.

The present rule ensures that any judgment thereon is based on the merit of the counterclaim itself and not on the survival of the main complaint. (Id.)

o Do we need leave of court to file a counterclaim? Cross claim? No, there is no need of leave of court to file a counterclaim or a cross claim because the court has already acquired jurisdiction over the person of the other party.

o Do we need leave of court to file a third-party complaint? Yes, because the court

has not yet acquired jurisdiction over the person of the third party defendant. Summons is required to be served because the court has not yet acquired jurisdiction.

1. A third-party claim is different from a third-party complaint. A third-party claim is found under Rule 39, Sec. 16, re: execution of judgments.

o Requisites for a third-party complaint: The defendant may implead another as a third-party defendant on allegation of liability to the defendant on the following grounds:

1. For contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim; or

2. On the ground of direct liability of the third-party defendant to the plaintiff; or 3. On the ground of the third-party defendants liability to both the plaintiff and the

defendant.

o Should a pleading filed in court be signed? Yes, otherwise it produces no legal effect. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.

20 Rule 17, Sec. 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court

shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that

a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an

action based on or including the same claim.


1. The lawyer is not expected to have personal knowledge of the facts of the case. All that the law requires is that when you sign the pleading, you attest to the fact that you have knowledge, information, and belief.

2. Only a lawyer can sign a pleading. While it could happen that another lawyer could sign for you, a non-lawyer cannot sign the pleading, because the signature is an attestation that that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.

3. If an unsigned pleading was filed, and the failure to sign was inadvertently made, you have to explain to the court that it was indeed inadvertently made. The court may consider it as filed. But if the failure to sign was deliberate, and you made allegations which are scandalous, or you changed your address without informing the court, you may be sanctioned by the court. It is the duty of the counsel to promptly inform the court of his change of address.

o Should a verification21 be based on knowledge, information, and belief? Who

should sign the verification? No, the verification must be based on personal knowledge or based on authentic records. It is the client who must sign the verification. A lawyer cannot sign the verification because he has no personal knowledge of the facts of the case.

o What if the party are the spouses, should they both sign the verification? Yes, the rule is that both spouses must sign the verification.

o What if there are five (5) parties, will all of them be required to sign the

verification? Yes, all of them will have to sign.

o What if the party is a juridical entity, who will sign the verification? The person authorized upon a board resolution embodied in a Secretarys Certificate attached to the pleading.

o What if the proceedings are under the ADR Rule, can the lawyer sign the verification? Yes, the lawyer is expressly allowed by the ADR Law to sign the verification in behalf of a party.

o Is the requirement of verification jurisdictional? No, it is not jurisdictional. It is only a formal requirement, and for that reason it can be cured. Verification is only required if there is a law that requires a verification. If there is no law that requires a verification, forget about it. You do not need to verify the pleading. However, where the law expressly provides that the pleading shall be dismissed if it was filed without verification, the requirement of verification becomes jurisdictional. A pleading required to be verified which lacks proper verification shall be treated as an unsigned pleading.

o Does the lack of a Certificate of Non-Forum Shopping lead to a dismissal of the

case? Yes. Although a complaint without verification will not be dismissed, unless the law expressly provides that the lack of verification shall lead to the dismissal of the case; a complaint which lacks a certificate of non-forum shopping, shall be dismissed, although such dismissal is without prejudice.

21 Rule 7, Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit.

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

his personal knowledge or based on authentic records.

A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge, information

and belief," or lacks a proper verification, shall be treated as an unsigned pleading.


1. While the verification is only a matter of form, and that it can be corrected even by an amendment, a certificate of non-forum shopping is a requirement of law, and for that reason in the absence of such certificate, it will result to a dismissal, although the dismissal is without prejudice.

2. In practice, the verification and the certificate of non-forum shopping is contained in

a single document, i.e. verification and certification. That is why even pleadings not required to be verified are verified (but for purposes of the bar, you only verify pleadings which are required by law to be verified). It may seem that the case was dismissed because of the lack of verification, but in truth, the case was dismissed because of the lack of certification.

o Who should sign the Certificate of Non-Forum Shopping? The certificate of non-

forum shopping should be signed by all the petitioners or plaintiffs in a case, and that the signing by only one of them is insufficient. (Docena vs. Lapesura, 2007)

1. The attestation on non-forum shopping requires personal knowledge by the party

executing the same, and the lone signing petitioner cannot be presumed to have personal knowledge of the filing or non-filing by his co-petitioners of any action or claim the same as similar to the current petition. (Id.)

2. Cases involving co-ownership, similar interest in a family home, or spouses interest wherein a party or just a handful of parties are allowed to sign are merely exceptions by reason of substantial compliance, because of what you call common interest.

o What if the party is a juridical entity, who will sign the certificate? The person

authorized upon a board resolution embodied in a Secretarys Certificate attached to the pleading.

o What if the pleading filed by the juridical entity has a certificate, but there was

no attached authority, or that the signatory was not authorized? The court may consider the certificate duly signed based on the following: that there is a compelling reason why you were not able to attach the authority; and that you submit the authority even belatedly showing that indeed there was such an authority.

o Allegations in the body of the Certificate of Non-Forum Shopping:22

1. That there are no pending case(s) involving the same issue(s) in another court, tribunal, or quasi-judicial agency;

2. That if there is a pending case, you will inform the court of the status thereof; 3. That if you learn later on that there is such a pending case, you will inform the court

of such fact within a period of five (5) days.

22 Rule 7, Sec. 5. Certification against forum shopping. 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

filed therewith: (a) that he has not theretofore 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 or claim is pending therein; (b) if there is

such other pending action or claim, a complete statement of the present status thereof; and (c) 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 five (5) days therefrom to the court

wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere 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. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect

contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel

clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall

constitute direct contempt, as well as a cause for administrative sanctions.


o If the case was dismissed because of false Certificate of Non-Forum Shopping, or non-compliance with your undertaking in the certificate, can the case be re-filed? No, it cannot be re-filed because if you re-file, it will be again dismissed because of litis pendencia.

o The Certificate of Non-Forum Shopping can be made either by a statement under oath in the complaint or initiatory pleading asserting a claim or relief; it may also be in a sworn certification annexed to the complaint or initiatory pleading. In both instances, the affiant is required to execute a statement under oath the allegations required to be contained in the certificate.

1. In relation to the crime of perjury, the material matter in a Certificate of Non-Forum Shopping is the truth of the required declarations which is designed to guard against litigants pursuing simultaneous remedies in different fora.

2. In the case of Union Bank of the PH vs. People (2012), the court held that: the

deliberate and intentional assertion of falsehood was allegedly shown when the accused made the false declarations in the Certificate against Forum Shopping before a notary public in Makati City, despite her knowledge that the material statements she subscribed and swore to were not true. Thus, Makati City is the proper venue and MeTC-Makati City is the proper court to try the perjury case against Tomas, pursuant to Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure as all the essential elements constituting the crime of perjury were committed within the territorial jurisdiction of Makati City, not Pasay City.


RULE 9: Effect of Failure to Plead

o What is the concept of default under Rule 9? Default is the failure to file an answer or any responsive pleading within the reglementary period required by law for you to file an answer, and there is proof of such failure.

1. Under Rule 14, it is the duty of the sheriff to serve a copy of the sheriffs return within a period of five (5) days from service of summons. From such sheriffs return, the court learns of the running of the reglementary period to file an answer.

2. Filing in court can be by personal service, or by registered mail. When you file a motion to declare in default, there should be proof of such failure.

o What are the consequences of being declared in default? Being declared in default

does not mean that the defendant has already lost the case. The defendant can no longer participate in the proceedings, but he is still entitled to receive notices from the court.

1. If there is an Order of Default under Rule 9, the court can render judgment based on

the pleadings, unless in its own discretion, the court requires presentation of evidence ex parte.

2. In an as-in default,23 the plaintiff will be allowed to present evidence ex parte.

o What is your remedy for an Order of Default? Your remedy for an Order of Default is

to file a motion, under oath, to set aside or to lift an order of default, on the grounds of fraud, i.e. extrinsic fraud (fraud which prevents you from participating in the proceedings), accident, mistake, i.e. mistake of fact, and excusable negligence; and you must also show that you have a meritorious defense.

o What is your remedy for a Judgment by Default?

1. Within the reglementary period, you may file a motion for new trial under Rule 37 or

you can file an appeal under Rule 41; you do not file a motion for reconsideration because there was no evidence presented;

2. Outside of the reglementary period, i.e. the judgment is already final and executory, you can file a petition for relief from judgment under Rule 38.

3. You can also file a petition for certiorari under Rule 65 if there was grave abuse of

discretion amounting to lack or excess of jurisdiction.

o General Default applies in actions in rem where there is a duly published notice of hearing where all oppositors are required to appear on a designated time and date of the hearing scheduled by the court. If the public or any oppositor does not appear, you can file a motion for general default. For that reason, any interested party can no longer come forward.

o Can the court allow presentation of evidence ex parte in cases of partial default?

No, because there are evidence to be presented in the course of the trial by the non-defaulting defendants. The court will allow the case to proceed and the non-defaulting party to present evidence and based on the same, the court would render a judgment.

1. The common evidence of all the defendants can benefit or can be considered in favor of the defaulting, non-answering defendants.

23 As-in Default refers to a case where the defendant does not appear in a pre-trial; and since the defendant did not appear, the plaintiff will be allowed to present evidence ex parte.


o What are the cases where the court cannot declare default? The court cannot declare default in cases falling under Summary Procedure; and in actions for annulment or declaration of nullity of marriage, or for legal separation.

1. If the defendant spouse fails to answer, there will be a motion to set the case for a

collusion conference before the prosecutor. Thereafter, the prosecutor will submit a conference report to the court, then the court will issue a notice of pre-trial.


RULE 10: Amended and Supplemental Pleadings

o An amendment is a change on a pleading based on facts already available at the time of the filing of the pleading sought to be amended; a supplement, on the other hand, is based on facts or occurrences or events that have taken place after the filing of the pleading sought to be supplemented.

1. Amendments as a matter of right. A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served.

2. Amendments by leave of court. After an Answer, substantial amendments may be made only upon leave of court or subject to the discretion of the court. But such leave may be refused if it appears to the court that the motion was made with intent to delay.

3. Amendments as a matter of form. A defect in the designation of the parties and

other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.

4. Amendment to conform to or authorize presentation of evidence.

Amendment to the pleading to conform to the evidence is allowed because there is a variance from that which was alleged and that which was proven.

a. Amendment to the pleadings is allowed so that when it is appealed to the higher

court, they will understand why there was a variance from that which was alleged and that which was proven.

o Can the amount proved at the trial be validly awarded even when there was no amendment? Yes. Even if there is no amendment, but if it was proven during trial, the claim as proven may be the basis of a valid award. To this extent, the law recognizes that even in the absence of amendment, there can still be a valid award.

o What is your remedy for an omitted counterclaim? Although Rule 9 says that failure

to raise a counterclaim in an answer bars the counterclaim, Rule 11, Sec. 1024 provides for a remedy, i.e. you can amend, by leave of court.

o How do you allege a decision of the court? When you allege a decision of the court, it is enough to say that it is an order or a decision of a court without saying that the court acted within its competent jurisdiction.

o Do you need to allege mistake and fraud with particularity? Yes, you have to allege mistake and fraud with particularity. It cannot be general. You have to give the details on how you were defrauded or how the mistake was committed. You have to tell the story. However, malice, intent, knowledge, and other conditions of the mind can be averred generally.

24 Rule 11, Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim

or cross-claim by amendment before judgment.


RULE 11: When to File Responsive Pleadings

o Period to file an Answer: 15 days 1. Period to file an Answer (Third-Party Complaint): 15 days 2. Period to file an Answer [Amended Complaint (as a matter of right)]: 15 days 3. Period to file an Answer [Amended Complaint (with leave of court)]: 10 days 4. Period to file an Answer (Supplemental Complaint): 10 days 5. Period to file an Answer (Counterclaim): 10 days 6. Period to file an Answer (defendant is a foreign juridical entity, and there is a

person or a governmental officer authorized by law to receive summons): 30 days

o Period to file a Reply: 10 days

RULE 12: Bill of Particulars

o When do you file a motion for a bill of particulars?25 You file the motion for a bill of

particulars at any time before an Answer is filed.

o Can the court order motu proprio the filing of a motion for a bill of particulars? No, the court cannot order motu proprio the filing of a motion for a bill of particulars. Its filing is left to the party because it is the party-defendant who will file the Answer. It is outside the courts discretion to require the filing of a motion for a bill of particulars.

o Can the court grant or deny outright a motion for a bill of particulars? Yes, the court can grant or deny outright a motion for a bill of particulars. The court may also set if for hearing. This is within the courts discretion.

o Why do you need to file a motion for a bill of particulars? You file a motion for a bill of particulars because, in your view, the complaint is defective. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired.

o Is a motion for a bill of particulars a mandatory motion? No, it is not a mandatory motion. It is left to the discretion of the party-defendant.

o Will you file a motion for a bill of particulars when you notice that the complaint of the plaintiff is defective? No, in practice, why will you correct the defective complaint of your opponent. You may leave it as such. But your use of a motion for a bill of particulars would depend on your strategy in a case, because there are cases where a bill of particulars is necessary.

1. The mindset of the Rule is for the expeditious resolution of cases. The court allows you to assist the other party to call his attention on what you want from him so that you could intelligently answer - this is in an ideal world.

2. If you are confronted with a defective pleading, you can simply file a motion to dismiss, or an Answer so that the issues will be joined. You can opt not to file a motion for a bill of particulars because it is not a mandatory motion.

25 Rule 12, Sec. 1. Bill of Particulars; when applied for; purpose. Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to

enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days

from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the

details desired.


o What does the grant of a motion for a bill of particulars mean? The grant of a motion for a bill of particulars means that the plaintiff will have to file a bill of particulars, i.e. outlining what the court requires him to do, or the party may file an amended pleading.

o In case your motion for a bill of particulars is granted or denied, how many days

are left for you to file an Answer? You will have the remaining days in the 15-day period to file an Answer. If the remaining period exceeds five (5) days, you will have said remaining period as such. If the remaining period is less than five (5) days, you will have five (5) days.

1. Let us say that the complaint and summons were received on June 1, 2015. You have 15 days to file an Answer or until June 16, 2015. Within the 15-day reglementary period, you can file a motion for a bill of particulars, if the complaint is defective; or you can also file a motion to dismiss. You filed your motion for a bill of particulars on the 7th day of the 15-day period, or on June 8, 2015. In case your motion for a bill of particulars is denied, or is granted, and the plaintiff filed a bill of particulars which you received, how many days more do you have to file an Answer?

You have nine (9) more days to file an Answer. The remaining period is not eight (8) days even though you already consumed seven (7) days of the 15-day period.

Under Rule 22, Sec. 226, the act that caused the interruption is not included in the counting of the period.

In the given problem, the filing of the motion for a bill of particulars on June 8, 2015 interrupted the counting of the period. Hence, the day on which the motion for a bill of particulars is filed is not included in the counting of the period. Said period shall start to run again on the day after the interruption. Thus, you have nine (9) more days to file an Answer.

2. This is the same way to compute the period for a motion to dismiss.

o Is a grant or denial of a motion for a bill of particulars a final judgment, or an interlocutory order? Either the grant or denial of a motion for a bill of particulars is an interlocutory order.

o What if your motion for a bill of particulars is either granted or denied, what are your remedies? You can file a motion for reconsideration; or if the grant or denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, you can file a petition for certiorari under Rule 65.

o What if the court granted the motion for a bill of particulars, but the plaintiff did not submit a bill of particulars? The case may be dismissed for violation of Rule 17, Sec. 3, i.e. non-compliance with an order of the court; or his allegations may be stricken from the complaint.

o What if the court granted the motion for a bill of particulars, and the plaintiff filed his bill of particulars, but despite the filing of the bill of particulars, the defendant did not file his Answer? The defendant could be declared in default.

26 Rule 22, Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of

the act that caused the interruption shall be excluded in the computation of the period.


RULE 13: Filing and Service of Pleadings, Judgments and Other Papers

o Filing, manner of: Filing refers to the submission of a pleading or a document before the Clerk of Court. You file pleadings only by personal service (filing) or by registered mail.

1. Proof of personal service (filing): If the pleading appears on the records of the

case, that proves that you have filed the pleading; but if the pleading is not found in the records of the case, you will have to present your receiving copy with the stamped acknowledgement.

2. Proof of filing by registered mail: The rule on filing by registered mail is that the date of mailing is the date of filing. Your proof of filing is the registry return card and the affidavit of the person mailing.

o Service, mode of: Service is the act of providing a party with a copy of the pleading or paper

concerned. It always precedes filing. Before you file your case in court, you must first serve a copy of the complaint to the adverse party. Service is done by personal service, or by mail, i.e. ordinary mail or registered mail.

1. Personal Service: Service of the papers may be made by delivering personally a

copy to the party or his counsel, or 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, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (Rule 13, Sec. 6)

a. This is still personal service, but under Rule 14 on the service of summons, this

manner of service is called substituted service. Service is complete upon actual delivery.

b. Proof of personal service: i. Written acknowledgement that the adverse party received it;

ii. Official return of the server (when the court serves); and iii. Affidavit of the person serving, if the addressee or the person to be served

refuses to accept.

2. Service by mail: A party may serve by ordinary mail, or by registered mail, which service can be made to a party, or even to the court in certain instances.

a. Service by ordinary mail is complete after expiration of ten (10) days after

mailing. The proof of service by ordinary mail is an affidavit of the person mailing.

b. Service by registered mail is complete upon actual receipt, or expiration of five (5) days from the first notice of the postmaster, whichever is earlier. The proof of service by registered mail is the registry return card and the affidavit of the person mailing.

3. Substituted service under Rule 13:27 When you talk of substituted service under

Rule 13, it means that there is failure of personal service, and service by mail (ordinary mail and registered mail), in which case you need to bring to the court the unserved document with an affidavit stating the reason why it cannot be served.

27 Rule 13, Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service

may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The

service is complete at the time of such delivery.


a. When it comes to summons, do not apply Rule 13. You only apply Rule 14. Rule

13 and Rule 14 cannot be used interchangeably.

o Can service of pleadings, or orders, and processes from the court be made by publication? No. The only modes of service of pleadings, motions, notices, orders, judgments and other papers allowed by the rules are personal service, service by mail and substituted service if either personal service or service by mail cannot be made, as stated in Sections 6, 7 and 8 of Rule 13 of the Rules of Court . Nowhere under this rule is service of notice to file answer by publication is mentioned, much less recognized. (Aberca vs. Ver, 2012).

1. The court pointed out that: service by publication only applies to service of summons stated under Rule 14 of the Rules of Court where

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Notes in Civil Procedure - Rules 1-71 (Final)

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